text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
Standridge, J.:
The Kansas Department of Revenue (KDR) appeals the district court’s decision to reverse the suspension of Tyron Byrd’s driver’s license. KDR asserts the district court erred in determining that the officer’s certification and notice of suspension form was not properly served on Byrd because an administrative assistant, and not the arresting officer, mailed the form to Byrd. For the reasons stated below, we find the form was properly served as required by statute and thus reverse and remand for further proceedings.
Facts
KDR suspended Byrd’s driving privileges after a blood test reflected an alcohol concentration of .28. After an administrative hearing officer affirmed his suspension, Byrd filed a petition for review in district court. One of the issues that Byrd raised in his petition — and the only issue now on appeal — was whether he was properly served with a copy of the officer’s certification and notice of suspension, commonly referred to as a DC-27 form, as required by K.S.A. 2007 Supp. 8-1002(c).
At the hearing before the district court, Deputy Biyan Clark of the Atchison County Sheriff s Office, the officer responsible for arresting Byrd for driving under the influence and for requesting that he submit a blood sample for testing, testified that he did not personally mail the DC-27 form to Byrd. Based on procedures established in the sheriff s office, Clark stated that after receiving the results of a blood test he would complete the DC-27 form and submit it to an administrative assistant. The administrative assistant would then be responsible for mailing the form to the address shown on the form.
Melissa Hale, the administrative assistant responsible for mailing the DC-27 forms, corroborated Clark’s testimony about the procedures established in the sheriff s office for completing and mailing the forms. Hale could not specifically remember mailing the form to Byrd, but stated that because the form had a date of March 5, 2008, on it, she must have mailed the form on that date.
There is no dispute that the DC-27 form was mailed to Byrd and that he received it. The form was admitted as plaintiff s exhibit No. 2 at trial before the district court.
At the conclusion of the hearing, Byrd argued that Clark failed to properly serve the DC-27 form on him pursuant to K.S.A. 2007 Supp. 8-1002(c) because Clark failed to mail the form himself. Byrd argued that the statute required that Clark personally place the DC-27 form in the mail. Because Clark failed to comply with K.S.A. 2007 Supp. 8-1002(c), Byrd argued that KDR did not have jurisdiction to take action against his license. Thus, he asked the district court to reverse KDR’s decision to suspend his license.
In response, KDR argued that K.S.A. 2007 Supp. 8-1002(c) should not be strictly construed as requiring law enforcement officers to actually place DC-27 forms in the mail. KDR contended that as long as officers “caused” the form to be mailed through the use of administrative staff, the requirements of the statute were satisfied.
The district court held that K.S.A. 2007 Supp. 8-1002(c) required that the law enforcement officer directing administration of alcohol testing must actually place the DC-27 form in the mail. Because Clark failed to do this, the district court concluded that the service by mail requirements of the statute were not satisfied and reversed KDR’s suspension of Byrd’s driver’s license.
KDR initially raised the following four issues for determination on appeal: (A) whether the district court erred in determining that the DC-27 form was not properly served; (B) whether Byrd preserved his right to challenge an alleged misstatement by the officer in the DC-27 form that the officer actually saw Byrd operate the vehicle; (C) whether the district court did, in fact, make a determination that the officer did not have reasonable grounds to believe that Byrd was operating the vehicle and, if so, whether that determination was made in error; and (D) whether the district court did, in fact, make a determination that the DC-27 form was improperly certified because the officer did not actually see Byrd operate the vehicle and, if so, whether that determination was made in error.
In his responsive briefing, Byrd addressed only the first issue raised by KDR in this appeal. When questioned at oral argument regarding his failure to respond to KDR issues B, C, and D, Byrd stated his intention to concede these three issues in favor of KDR. Given Byrd’s concession, the only remaining issue presented for determination in this appeal is the first issue raised by KDR: whether the district court erred in determining that the DC-27 form was not properly served.
Analysis
KDR argues the district court erred when it strictly construed K.S.A. 2007 Supp. 8-1002(c) to require Deputy Clark to actually mail (i.e., place in a mail box) the DC-27 form to Byrd. KDR argues that based on K.S.A. 2007 Supp. 8-1001(q), K.S.A. 2007 Supp. 8-1002(c) should be liberally construed as only requiring that Clark cause the DC-27 form to be mailed to Byrd. In other words, KDR contends that the doctrine of “substantial compliance” should be applied to the service by mail provisions of K.S.A. 2007 Supp. 8-1002(c) in order to find that Byrd was properly served.
To determine whether Byrd was properly served with the DC-27 form, we are required to interpret K.S.A. 2007 Supp. 8-1002(c). Interpretation of a statute is a question of law over which this court has unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
K.S.A. 2007 Supp. 8-1002(c) states:
“When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles. In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension in person or by another designated officer or by mailing notice to the person at the address provided at the time of the test.” (Emphasis added.)
There is no explicit language in K.S.A. 2007 Supp. 8-1002(c) allowing an officer to satisfy the service by mail requirements by simply causing the DC-27 form to be mailed to the person. Compare K.S.A. 2007 Supp. 8-1002(c) with K.S.A. 60-303(c)(2) (“The sheriff, party, or party’s attorney shall cause a copy of the process and petition or other document to be placed in a sealed envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, with postage or other delivery fees prepaid, and the sealed envelope placed in the custody of the person or entity effecting delivery. [Emphasis added.]”). Clearly, a strict reading of K.S.A. 2007 Supp. 8-1002(c) required Clark, as “the officer directing administration of the testing,” to place the DC-27 form in the mail so it could be sent to Byrd.
The Doctrine of Substantial Compliance
Despite Clark’s failure to technically comply with K.S.A. 2007 Supp. 8-1002(c), KDR argues it was enough that Clark substantially complied with the statute’s service by mail requirements when he directed Hale, an administrative assistant, to mail the form to Byrd. Under Kansas law, “substantial compliance” generally means “ ‘compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.’ [Citation omitted.]” City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983).
In response to KDR’s argument, Byrd relies on the holding in Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 355, 853 P.2d 69, rev. denied 253 Kan. 856 (1993), to argue that strict compliance with K.S.A. 2007 Supp. 8-1002(c) is necessary in order to achieve valid service by mail. In Anderson, a panel of this court held that the doctrine of substantial compliance is inapplicable to the personal service provisions of K.S.A. 8-1002(c) (Furse 1991). Although a detailed discussion of the analysis utilized by the Anderson court in reaching its conclusion will be helpful to the analysis in this case, we note at the outset that the statutory scheme upon which the Anderson court primarily relied has since been amended by the legislature.
Post-Anderson Amendment to KS.A. 8-1001 et seq.
In interpreting K.S.A. 8-1002(c) (Furse 1991), the Anderson court relied on several cases that refused to apply the substantial compliance doctrine to notice and service provisions because, unlike the Rules of Civil Procedure contained in Chapter 60 (which allows for liberal construction and substantial compliance with its service rules, see K.S.A. 60-102 and K.S.A. 60-204), the statutory schemes at issue in each of the cases contained no similar provisions. After the Anderson decision, however, the legislature added subsection (i) to K.S.A. 8-1001. L. 1993, ch. 275, sec. 1. That subsection, now found at K.S.A. 2007 Supp. 8-1001(v), states: “This act is remedial law and shall be liberally construed to promote public health, safety and welfare.” Thus, as we discuss the analysis utilized by the Anderson court, we must be mindful of this significant amendment to the statute by the legislature.
The Anderson Decision
In Anderson, the KDR suspended Anderson’s license after he refused to submit to a breath test. Because Anderson refused to take the test, K.S.A. 8-1002(c) (Furse 1991) required that Anderson be personally served with the DC-27 form. On appeal to the district court, Anderson argued he was never validly served with the DC-27 form under 8-1002(c) because the officer who requested that he submit to testing did not personally serve him with the form. There was evidence presented to the district court that suggested the officer placed the DC-27 form with Anderson’s possessions while Anderson was still in custody and that Anderson received the form when he collected his possessions at the time of his release. Anderson made no argument that he did not receive the form or that he did not understand it. Nevertheless, the district court reversed KDR’s suspension of Anderson’s license, concluding that personal service of the DC-27 form was mandatory and must be made in strict compliance with 8-1002(c). 18 Kan. App. 2d at 348.
On appeal, this court had to determine two issues: (1) whether placing the DC-27 form with Anderson’s possessions constituted personal service; and (2) whether the doctrine of “substantial compliance” could be applied to the personal service requirements of 8-1002(c), making service sufficient. Anderson, 18 Kan. App. 2d at 348. With regard to the first issue, the Anderson court looked to the definition of personal service found in K.S.A. 1992 Supp. 60-303(c) (defining “personal service” as “dehvering or offering to deliver a copy of the process and accompanying documents to the person to be served”) and concluded that placing the DC-27 form with Anderson’s possessions did not constitute personal service as that term was defined in the statute. 18 Kan. App. 2d at 350.
With regard to whether the doctrine of substantial compliance could be applied in order to find that service was sufficient under 8-1002(c), the Anderson court looked primarily at two cases exploring the application of the doctrine: Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337 (1988), and Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991). In Barnhart, die Kansas Supreme Court held that the notice provisions of K.S.A. 1985 Supp. 8-1001(f) (now K.S.A. 2007 Supp. 8-1001[k]) — given to a driver prior to asking him or her to submit to testing — were mandatory and not directory. However, the Barn-hart court also concluded that the notices given to a driver did not need to exacdy track the language of K.S.A. 1985 Supp. 8-1001(f). In other words, if the notices substantially complied with the language found in the statute, the notices were sufficient. 243 Kan. at 212-13. The court stated:
“While using the statutory language would have negated the issue now before us, it is generally recognized that substantial compliance with statutory notice provisions will usually be sufficient. To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.” (Emphasis added.) 243 Kan. at 213.
The Barnhart court concluded that the notices given to Barnhart substantially complied with the notices contained in K.S.A. 1985 Supp. 8-1001(f). Additionally, the court noted that Barnhart, who refused to take a breath test, based his decision on reasons that had nothing to do with the notices actually given to him or the notices contained in the statute. Therefore, Barnhart’s arguments concerning the supposed deficiencies in the notices were merely complaints about technical irregularities. As the court noted, “[a]bsent any showing of prejudice by [Barnhart], the point lacks merit.” 243 Kan. at 214.
In Claus, the other case discussed in detail by the Anderson court, a panel of this court had to determine whether the doctrine of substantial compliance could be applied to the service provisions contained in the Act for Judicial Review and Civil Enforcement of Agency Actions (the Act), K.S.A. 77-601 et seq. Claus, who wanted to appeal the suspension of his license, served a copy of his petition for judicial review by mailing it to “Division of Vehicles-Driver Control Bureau” instead of the Secretary of Revenue, as required by K.S.A. 77-615(a) (Ensley 1989). 16 Kan. App. 2d at 13. On appeal, KDR did not deny that it received actual notice of Claus’ petition and, thus, it was not prejudiced by the Secretary receiving Claus’ petition. However, KDR argued that Claus failed to properly serve it under 77-615(a) and, thus, the district court lacked jurisdiction over the case. 16 Kan. App. 2d at 13.
The Claus panel agreed with KDR and remanded the case to the district court with directions that it dismiss Claus’ petition due to a lack of jurisdiction. 16 Kan. App. 2d at 14. In reaching this decision, the panel rejected application of the substantial compliance doctrine to the facts of its case, noting that, unlike the Rules of Civil Procedure contained Chapter 60, the Act did not contain any provisions allowing for substantial compliance with its service requirements. The panel noted that a similar result was reached in Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 673 P.2d 1126 (1983), and, thus, adopted the reasoning of that case.
In Pork Motel, also cited in Anderson, the Kansas Supreme Court refused to apply the substantial compliance doctrine to the service provisions found in the indirect contempt statute at K.S.A. 20-1204a(b) (Ensley) because, unlike the Rules of Civil Procedure contained in Chapter 60 (which allows for liberal construction and substantial compliance with its service rules, see K.S.A. 60-102 and K.S.A. 60-204), K.S.A. 20-1201 et seq. contained no similar provisions. Thus, the Supreme Court concluded that the substantial compliance doctrine could not be applied to the service provisions of K.S.A. 20-1204a(b) (Ensley); strict compliance with the statute was required. 234 Kan. at 390.
After reviewing the Barnhart and Claus opinions, the Anderson court concluded that the facts of its case were more similar to Claus because that case involved the interpretation of service provisions (in contrast to the notice provisions being interpreted in Barnhart). Although readily acknowledging that (1) Anderson claimed no prej udice from receiving the DC-27 form with his possessions at the jail; and (2) the purpose of the statute (making a person aware of his or her right to appeal the license suspension) was fulfilled under the facts of the case, the Anderson court held that the doctrine of substantial compliance was inapplicable to the statute because there appeared to be no authority contained in K.S.A. 8-1002(c) (Furse 1991) for applying the doctrine. Accordingly, the court affirmed the district court’s decision to reverse Anderson’s license suspension and dismiss the case against him. Anderson, 18 Kan. App. 2d at 353-55.
KS.A. 2007 Supp. 8-1001(q) Requires Us to Liberally Construe K.S.A. 2007 Supp. 8-1002(c) to Effectuate Its Purpose
Byrd argues that the reasoning of Anderson is still correct and should be applied to his case. Because the Anderson court found the doctrine of substantial compliance inapplicable to the personal service provisions of K.S.A. 8-1002(c) (Furse 1991), Byrd argues this court should also find the doctrine inapplicable to the service by mail provisions found in the same statute. We disagree. This is because, as we explained earlier, the reasoning set forth by the court in Anderson is no longer valid given the subsequent amendment to K.S.A. 8-1001 et seq.
At the time the Anderson court was interpreting K.S.A. 8-1002(c) (Furse 1991), K.S.A. 8-1001 et seq. did not contain any provision for applying the doctrine of substantial compliance to its service provisions. Thus, Anderson’s reliance upon Pork Motel and Claus was correct because those cases also refrained from applying the doctrine to statutes (K.S.A. 20-1201 et seq. and K.S.A. 77-601 et seq.) that did not contain any statutory provisions allowing courts to do so. As noted earlier, however, the legislature added subsection (i) to K.S.A. 8-1001 after the Anderson decision was issued. L. 1993, eh. 275, sec. 1. That subsection, now found at K.S.A. 2007 Supp. 8-1001(v), states: “This act is remedial law and shall be liberally construed to promote public health, safety and welfare.” This rule of liberal construction was specifically acknowledged and applied to 8-1002(c) in Ashley v. Kansas Dept. of Revenue, 38 Kan. App. 2d 421, 428, 166 P.3d 1060 (2007); Enslow v. Kansas Dept. of Revenue, 26 Kan. App. 2d 953, 955, 996 P.2d 361 (2000); and State v. Counseller, 22 Kan. App. 2d 155, 157, 912 P.2d 757, rev. denied 260 Kan. 997 (1996); see also Southwestern Bell Tel. Co. v. Kansas Corporation Comm’n, 29 Kan. App. 2d 414, 421, 29 P.3d 424 (2001) (“A remedial statute is legislation providing the means or method whereby causes of action may be effectuated, wrongs redressed, and relief obtained. Remedial legislation is liberally construed to effectuate the purpose for which it was enacted.” [Emphasis added.]).
What all this means is that Anderson’s justification for not applying the substantial compliance doctrine to 8-1002(c) is no longer valid. The legislature’s subsequent amendment, stating that K.S.A. 8-1001 et seq. is remedial law and should be liberally construed, allows for the application of the doctrine to the service by mail requirements of K.S.A. 2007 Supp. 8-1002(c). Therefore, when determining whether service by mail has been achieved under K.S.A. 2007 Supp. 8-1002(c), technical irregularities maybe overlooked if the essential purpose of the statute has been fulfilled under the facts of the case. See Barnhart, 243 Kan. at 213; City of Lenexa, 233 Kan. at 164.
The relevant portion of K.S.A. 2007 Supp. 8-1002(c) states: “In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension ... by mailing the notice to the person at the address provided at the time of the test.” In Anderson, the court stated that the purpose of K.S.A. 8-1002(c) is “to guarantee that a person whose license has been suspended is aware of his or her right to appeal.” 18 Kan. App. 2d at 355. This purpose was fulfilled under the facts of this case. Though Clark did not place the DC-27 form in the mail, he directed Hale to do so. Though Hale could not specifically remember mailing the form to Byrd, she obviously did so because: (1) Byrd timely requested an administrative hearing; and (2) he introduced the DC-27 form he received in the mail into evidence at trial before the district court. Simply stated, Hale’s act of placing the DC-27 form in the mail was essentially no different than if Clark had placed the form in the mail himself. Byrd has not raised (nor can he raise) any argument to show how he was prejudiced by receiving a DC-27 form that was placed in the mail by Hale instead of Clark. Absent any showing of prejudice by Byrd, his argument lacks merit. See Barnhart, 243 Kan. at 214.
For these reasons, we reverse the district court’s decision reinstating Byrd’s driving privileges and remand for further proceedings consistent with this decision. | [
-80,
-17,
-12,
-116,
59,
-63,
-14,
-76,
81,
-109,
102,
115,
-17,
-38,
13,
59,
-21,
61,
117,
105,
-59,
-78,
119,
-64,
-18,
-14,
-8,
87,
51,
79,
108,
-76,
29,
-80,
-118,
21,
68,
-54,
-121,
88,
-114,
2,
25,
116,
81,
-53,
44,
99,
34,
15,
113,
-97,
-47,
62,
24,
-125,
77,
76,
-39,
-120,
-56,
-15,
-37,
21,
-5,
6,
-93,
-108,
-104,
13,
-48,
-89,
-102,
57,
32,
-19,
-78,
-74,
-126,
-12,
107,
-119,
32,
-90,
98,
33,
29,
-83,
-84,
-116,
-114,
126,
31,
39,
-101,
89,
75,
36,
-106,
-67,
124,
54,
15,
124,
105,
5,
21,
108,
10,
-49,
60,
-111,
78,
53,
-118,
23,
-17,
32,
-112,
101,
-59,
-9,
94,
87,
112,
27,
-41,
-74
] |
Malone, J.:
David and Janice Steed appeal the district court’s decision granting summary judgment to McPherson Area Solid Waste Utility (the Utility) on the ground that the district court lacked subject matter jurisdiction over the Steeds’ claims. The Utility cross-appeals, arguing that the district court erred in finding that the Steeds substantially complied with the notice filing requirements of K.S.A. 2008 Supp. 12-105b(d). For the reasons set forth herein, we reverse the district court’s grant of summary judgment and remand for further proceedings.
On January 6,2005, David Steed was involved in a motor vehicle accident with a garbage truck owned by the Utility and operated by its employee Justin L. Gunter-Nelson. The underlying facts of the accident are not relevant to this appeal. However, the Utility has not contested Gunter-Nelson s status as an employee at the time of the accident.
Acting under the belief that the Utility was a municipality as defined in the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., the Steeds determined that, under K.S.A. 2008 Supp. 12-105b(d), they were required to file a notice of their claim with the Utility prior to filing a lawsuit. See K.S.A. 75-6102(b). To this end, the Steeds attempted to determine upon whom to serve the notice. According to an affidavit filed by the Steeds’ counsel, he confirmed that individual members of the Utility’s board of directors (Board) did not have offices at the Utility’s main facility. The affidavit further stated that counsel had been informed by a manager at the Utility’s main facility that, although the Utility did not have a designated clerk, its office manager, Maiy Pywell, served in that role on a practical basis and that she would be the appropriate person on whom to serve the notice. Pywell’s official title at the Utility was office personnel and finance manager. Pywell is a CPA and her responsibilities at the Utility included “accounting, general ledger upkeep, and reporting.” Pywell was also responsible for human resources at the Utility.
The Steeds filed the notice of claim with Pywell on December 27, 2006. Upon receipt of the notice, Pywell forwarded the claim to William Ridge, the Utility’s general manager. Ridge informed the Utility’s attorney and liability insurer about the claim. Ridge stated that he informed the Utility’s Board of the claim “probably . . . within the next day” after Pywell forwarded the notice to him. At a subsequent meeting of the Board, Ridge told the Board that it did not need to take any immediate action on the claim because it was being handled by the insurer.
On January 2, 2007, the Steeds filed a petition against the Utility and Gunter-Nelson in McPherson County District Court, alleging negligence, respondeat superior, and loss of consortium. At this point, the Steeds had received no response from the Utility re garding their claim, nor had the 120-day presumptive notice period expired as required by the statute. Nevertheless, the Steeds filed the petition as a precaution because the 2-year statute of Hmitations on their negligence claim was set to expire on January 6, 2007. The Utility filed its answer on February 5, 2007. The answer asserted that the Steeds had failed to substantially comply with the notice filing requirements of K.S.A. 2008 Supp. 12-105b(d) because the notice was not served on the Utility’s “clerk or governing body” as required by the statute.
The Utility took no action on the Steeds’ claim, and the 120-day notice period expired on April 27, 2007. In an attempt to comply with the statutory requirement that a lawsuit cannot be commenced until the claim is denied or the notice period expires, the Steeds sought an agreement with the Utility to file an amended petition. To that end, the Steeds’ counsel sent a May 1,2007, letter to the Utility’s counsel that stated in part:
“The next issue is the need to refile suit now that the 120 days have expired under K.S.A. 12-105b(d). Under Subsection (d), we have 90 days after the claim has been deemed denied to file suit. The 120 days expired last Friday, April 27, 2007 and, therefore, we now have 90 days to refile the suit. In the alternative, we can agree to move forward with the suit as it is filed if your client is willing to waive that period. Otherwise, we want to immediately refile the suit and move forward.” (Emphasis added.)
The Utility’s counsel responded to the letter from the Steeds’ counsel by email dated May 4, 2007:
“This is to confirm the expert deadlines are informally extended by agreement: July 30 for plaintiff and August 30 for defendant. As discussed, the filing of an amended petition will not be contested under 12-105b’s deadline for filing suit after the 120 day waiting period has passed.
“We do contest the notice issue under 12-105b. See attached letter.”
The attached letter referenced in the email dealt exclusively with the issue of whether the Steeds substantially complied with the requirement that notice be filed with the “clerk or governing body” of the Utility by filing their notice with Pywell.
The Steeds subsequently filed a motion for leave of court to file an amended petition. On June 1, 2007, the district court granted the motion, noting that “no protest or contest of the Motion has been filed by the Defendants.” The Steeds filed their amended petition on June 21, 2007. In its answer, the Utility again asserted that the Steeds had failed to substantially comply with the notice filing requirements of K.S.A. 2008 Supp. 12-105b(d) because the notice was not served on the Utility’s clerk or governing body as required by statute. The Utility did not raise an affirmative defense that the lawsuit filed on January 2, 2007, had been prematurely commenced.
The Utility filed a motion for summary judgment on October 10, 2007. The Utility’s supporting memorandum primarily argued that the Steeds had failed to substantially comply with the notice filing requirements of K.S.A. 2008 Supp. 12-105b(d) because the notice was not served on the Utility’s clerk or governing body as required by the statute. The memorandum also briefly argued for the first time that the Steeds’ lawsuit was untimely. Citing the statutory language that “no action shall be commenced” until the claim has been denied or 120 days has elapsed, the Utility argued that the Steeds’ lawsuit was premature because the original petition was filed 6 days after the notice was served and before the claim had been denied.
In response to the Utility’s summaiy judgment motion, the Steeds argued that service of the notice of claim on Pywell constituted substantial compliance with K.S.A. 2008 Supp. 12-105b(d) because she served as the Utility’s de facto clerk. The Steeds’ response to the summary judgment motion did not address the Utility’s argument that their lawsuit had been prematurely filed.
The district court held a hearing on the summary judgment motion on December 5, 2007. At the hearing, the district court noted that the Steeds had failed to address the timeliness issue in their response to the summary judgment motion, but the district court allowed oral argument on the issue. The Steeds argued that summary judgment was not appropriate on the timeliness issue for two reasons. First, the Steeds contended that the amended petition filed after the expiration of the notice period cured any defect in the original premature petition. Second, the Steeds argued that they would have dismissed and refiled their lawsuit except for the apparent agreement with the Utility that it would not challenge the timeliness of the action.
Ruling from the bench, the district court first addressed the issue of whether service of the notice of claim on Pywell substantially complied with the statute. The district court found that, although the Utility had no officially designated clerk, Pywell acted as the Utility’s clerk and that the Steeds had been informed by the Utility’s management that Pywell was the appropriate person to serve with the notice. As a result, the district court found that the Steeds substantially complied with the notice filing requirement by serving notice on Pywell and denied the Utility’s motion for summary judgment on this issue.
The district court then addressed the issue of the Steeds’ premature original petition. The district court found that although the email from the Utility’s counsel to the Steeds’ counsel concerning the amended petition was ambiguous, “[i]t is not clear to me that this letter waives [the] right” to challenge the timeliness of the initial petition. The district court then granted the Utility summary judgment on this issue for two reasons. First, the district court ruled that the Steeds had failed to respond to the timeliness argument and that “[a] mechanical application of [Rule 141] says if an issue is filed, not responded to, diere is an entitlement to judgment.” But the district court added that it did not want to decide the case based on a mechanical application of the rule. Second, the district court found that the original petition was prematurely filed. The district court noted that under K.S.A. 2008 Supp. 12-105b(d), no action shall be commenced until the claim has been denied or 120 days has elapsed. The district court found that the Steeds’ original petition failed to comply with this requirement because it was filed within 6 days of the notice being served and before the claim had been denied. The district court did not address the Steeds’ argument that the amended petition cured the defective original petition.
The district court’s journal entry granting summary judgment differed somewhat from its ruling from the bench on the timeliness issue. The journal entry reflected the district court’s finding that the Steeds’ original petition was prematurely filed. However, the journal entry did not include any finding that the Steeds had failed to respond to the timeliness issue as a basis for granting summary judgment.
The Steeds filed a motion for the district court to reconsider its decision granting summary judgment. The motion argued that any defect in the timeliness of the original petition should have been raised as an affirmative defense in She Utility’s answer. The motion further argued that the Steeds’ amended petition was timely filed and cured any defect in the original petition. The Utility also filed a motion to reconsider the district court’s finding that the Steeds substantially complied with the statutory notice filing requirements by serving notice on Pywell. After a hearing, the district court denied the Steeds’ motion for reconsideration, specifically finding that it lacked subject matter jurisdiction over the Steeds’ claims. The district court also denied the Utility’s motion for reconsideration as moot. The Steeds filed a timely appeal, and the Utility filed a timely cross-appeal.
On appeal, the Steeds argue that the district court erred in finding that it lacked subject matter jurisdiction over their claims due to the Steeds’ premature petition. The Steeds contend that any jurisdictional defect caused by the original petition was cured by their amended petition. In its cross-appeal, the Utility argues that the district court erred in finding that the Steeds substantially complied with the notice filing requirements of K.S.A. 2008 Supp. 12-105b(d) by serving notice on Pywell. The Utility claims that the district court erred in finding that Pywell served as a clerk of the Utility for the purpose of receiving the notice of claim.
Cross-appeal
We will address the Utility’s cross-appeal first because, if the Utility is correct that the Steeds failed to substantially comply with the notice fifing requirements of K.S.A. 2008 Supp. 12-105b(d), then the issues raised by the Steeds in their appeal are rendered moot. Both parties agree that the Utility’s cross-appeal presents an issue of statutory interpretation and appellate review is de novo. See Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 871, 127 P.3d 319 (2006).
K.S.A. 2008 Supp. 12-105b(d) states in part as follows:
“Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality .... In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shah not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shah be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a setdement before the expiration of that period. No person may initiate an action against a municipality unless dre claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shah be commenced within the time period provided for in the code of civil procedure or it shah be forever barred, except that, a claimant shall have no less than 90 days from the date die claim is denied or deemed denied in which to commence an action.” (Emphasis added.)
K.S.A. 2008 Supp. 12-105b(d) dictates that the written notice of a claim against a municipality “shall be filed with the clerk or governing body of the municipality.” The issue in this case is whether service of the Steeds’ notice of claim on Pywell constituted service on the Utility’s clerk as required by the statute. The term “clerk” is not defined in the statute or elsewhere in the KTCA. The statute allows that “[i]n the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.” K.S.A. 2008 Supp. 12-105b(d). The term “substantial compliance” is not defined in K.S.A. 2008 Supp. 12-105b(d). However, the term has been defined by case law as meaning:
‘compliance in respect to dre essential matters necessary to assure every reasonable objective of die statute.’ ” ’ [Citation omitted.] The objective of the statute is to ‘advise the proper municipality... of the time and place of the injury and give the municipality an opportunity to ascertain the character and extent of the injury sustained.’ [Citation omitted.]” Myers, 280 Kan. at 874.
Here, the district court found that the Steeds substantially complied with the requirement that the notice of claim be filed with the clerk or governing body of the municipality by serving Pywell with the notice. The district court determined that the Utility’s Board did not have offices at the Utility’s main facility. The district court also determined that although the Utility did not have an expressly designated clerk, the Utility had informed the Steeds that Pywell served in the role of clerk and that Pywell did, in fact, perform duties consistent with that of a clerk. Finally, the district court determined that the Board acquired actual notice of the Steeds’ claims through service of the notice on Pywell.
We place limited weight on the district court’s finding that Steeds’ counsel had been informed by a manager at the Utility’s main facility that Pywell would be the appropriate party on whom to serve the notice. In Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 116-19, 991 P.2d 889 (1999), the claimant was preparing to file a retaliatory discharge claim against the Kansas Turnpike Authority (KTA). Claimant’s counsel was unsure as to whether the KTA was a municipality under the KTCA, so he called KTA’s general counsel and asked for the identity of KTA’s clerk for the purpose of serving a notice of claim. KTA’s counsel identified the clerk and also asked that a copy of the notice be sent to him. Claimant’s counsel filed the notice of claim with KTA by serving the identified clerk. KTA did not respond to the claim. In the meantime, the statute of limitations expired during the 120-day notice period. After the lawsuit was filed, the KTA filed a motion to dismiss based on the statute of Hmitations. The district court dismissed the lawsuit, finding that KTA was not a municipality that required a notice of claim under K.S.A. 12-105b(d) and that the tolling provision of the statute did not apply. 268 Kan. at 111-12.
On appeal, the claimant argued that KTA should be equitably estopped from claiming that it was not a municipality. The claimant argued that KTA’s counsel had a duty to dispel claimant’s incorrect assertion that KTA was a municipality. Our Supreme Court disagreed, finding that the claimant did not rightfully rely on KTA’s silence or the response by its counsel. The court found that “[t]he attorneys for each side are responsible for their respective clients for researching the law and drawing their own conclusions regarding the applicability of the notice statute.” 268 Kan. at 118.
Returning to our case, the district court also found that Pywell performed duties consistent with that of a clerk. However, the Utility argues that Pywell should not be considered a “clerk” because she did not in fact serve in a role consistent with that of a clerk. The Utility claims that PywelTs roles as personnel and finance manager did not give her authority to be clerk. The Utility argues that because Pywell was not the officially designated clerk, the Steeds were required to serve the notice of claim on the Board, which is the Utility's governing body.
As previously noted, the term “clerk” is not defined in the statute. However, as defined in Black’s Law Dictionary, a clerk is a “public official whose duties include keeping records or accounts.” Black’s Law Dictionaiy 288 (9th ed. 2009). According to Webster’s, a clerk is “[a] person who performs such office tasks as keeping records, handling correspondence, or filing.” Webster’s II New College Dictionary 209 (2001). It appears that Pywell acted as the Utility’s clerk under the plain meaning of the term. Pywell’s responsibilities included record keeping and accounts. Assuming that Pywell served as the Utility’s de facto clerk, then the Steeds complied with the letter of K.S.A. 2008 Supp. 12-105b(d) by serving its notice of claim upon Pywell. However, even if the Steeds failed to comply with the express language of the statute, then the question becomes whether service of the notice on Pywell constituted substantial compliance with the statute.
The Steeds cite Orr v. Heiman, 270 Kan. 109, 114-15, 12 P.3d 387 (2000), to support their argument that service of the notice on Pywell constituted substantial compliance with K.S.A. 2008 Supp. 12-105b(d). In Orr, the court upheld service on a school superintendent as being in substantial compliance with the statute. The court determined that although the superintendent was neither the clerk nor the governing body of the school district, the superintendent was statutorily recognized to have “charge and control” of the public schools. 270 Kan. at 114-15. Here, Pywell was the Utility’s designated office personnel and finance manager, but the evidence falls short of establishing that she had charge and control of the Utility.
The Utility cites Myers to support its claim that the Steeds failed to substantially comply with K.S.A. 2008 Supp. 12-105b(d) by serving the notice of claim on Pywell. In Myers, the claimant, served a notice of claim for wrongful termination on the county counselor. The county counselor forwarded the claim to the county’s governing body, the Board of County Commissioners, thus providing the body with actual notice of the claim. The county investigated and denied the claim, and the claimant subsequently filed a lawsuit. The county argued in a motion for summary judgment that this service was ineffective because the county counselor was neither the county clerk nor the county’s governing body. The district court agreed and granted summary judgment in favor of the county. 280 Kan. at 870.
On review, the Kansas Supreme Court affirmed the district court’s judgment. The court determined that if it allowed service of the notice on the county counselor to constitute substantial compliance with the statute, it “would establish a new, judicially created method of serving notice beyond the methods established by the legislature.” 280 Kan. at 875; see also Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan. App. 2d 379, 383, 988 P.2d 263 (1999) (service of notice on county counselor does not substantially comply with statutory requirement that claim be filed with the county clerk).
Myers is distinguishable from the present facts. Clearly the service of a notice of claim on a county counselor is not the same as service upon a clerk or the governing body as is required by the statute. Other cases cited by the Utility to demonstrate the limits of substantial compliance involve service on a municipality’s attorney. Here, Pywell served in the role of office personnel and finance manager; she was not the Utility’s legal counsel.
In the end, the cases relied on by both parties are factually distinguishable from the present case. However, this court has consistently held that “[t]he purpose of the statutory notice requirement is to sufficiently advise the proper municipality of the time and place of the injury and give the municipality an opportunity to ascertain the character and extent of the injury sustained.” Southwestern Bell Tel. Co. v. Board of Lyon County Comm’rs, 41 Kan. App. 2d 346, 349, 202 P.3d 54 (2009). Here, it is undisputed that the Utility was provided with actual notice of the Steeds’ claim. The Utility has never alleged that the notice was insufficient to advise the Utility of the time and place of the injuiy and to give the Utility an opportunity to ascertain the character and extent of the injuiy sustained by the Steeds. Thus, by serving Pywell with the notice of claim, the Steeds complied “in respect to the essential matters necessary to assure every reasonable objective of the statute.” Myers, 280 Kan. at 874.
Based on these facts, along with the appearance that Pywell served in a role consistent with that of a clerk, we conclude that the Steeds substantially complied with K.S.A. 2008 Supp. 12-105b(d) by serving its notice of claim upon Pywell. Accordingly, we conclude the district court properly denied the Utility’s motion for summaiy judgment on this issue.
Steeds’ Appeal
We will now turn to the Steeds’ appeal of the district court’s decision granting summaiy judgment on the ground that the court lacked subject matter jurisdiction over the Steeds’ claims. The Steeds argue that the district court erred in finding that it lacked jurisdiction over their original petition and further contend that any jurisdictional defect caused by the original petition was cured by the amended petition.
Summaiy judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summaiy judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Resolution of the issues in this case requires this court to interpret K.S.A. 2008 Supp. 12-105b(d). Interpretation of a statute is a question of law over which an appellate court has unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Furthermore, whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009).
Procedural issues
Both parties raise preliminary procedural arguments that the other’s substantive arguments are not properly before this court. First, the Utility claims that the Steeds failed to address the issue of the original petition’s timeliness in their response to the summary judgment motion and that the Steeds therefore waived any such argument in district court and on appeal. The Utility asserts that the district court granted summary judgment on the timeliness issue in part because the Steeds violated Kansas Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225) and K.S.A. 2008 Supp. 60-256. Indeed, the district court stated from the bench that its first basis for granting summary judgment on the timeliness issue was the Steeds’ failure to address the issue in the summary judgment pleadings.
However, the district court’s journal entry contained no finding that the Steeds violated Rule 141 or K.S.A. 2008 Supp. 60-256 as a basis for granting summary judgment. In the journal entry, the district court granted summary judgment solely on the basis that the Steeds’ lawsuit was prematurely filed. In a civil action, a district court’s journal entry of judgment controls over a prior oral pronouncement from the bench. Radke Oil Co. v. Kansas Dept. of Health & Environment, 23 Kan. App. 2d 774, 782, 936 P.2d 286 (1997) (citing K.S.A. 60-258). Because the journal entry of judgment controls and the journal entry made no mention of the Steeds’ failure to comply with Rule 141, the Utility’s contention that the district court granted summaiy judgment on this basis is incorrect.
More importantly however, we disagree that the Utility was entitled to summary judgment on the basis that the Steeds violated Rule 141 and K.S.A. 2008 Supp. 60-256. In this case, the Utility filed a motion for summaiy judgment on October 10, 2007, including a memorandum in support of the motion. Pursuant to Rule 141(a), the Utility’s memorandum set forth 17 separately numbered paragraphs of uncontroverted contentions of fact. The Steeds filed a written response to the Utility’s summaiy judgment motion. Pursuant to Rule 141(b), the Steeds’ memorandum set forth 17 separately numbered paragraphs corresponding to the Utility’s paragraphs and either admitted or denied each of the Utility’s factual contentions. Also, the Steeds’ memorandum set forth 14 additional statements of uncontroverted facts as permitted by Rule 141(b).
Pursuant to Rule 141, if a party opposing summaiy judgment fails to adequately oppose the moving party’s uncontroverted contentions of facts, then such facts shall be deemed admitted for purposes of the summaiy judgment motion. However, there is no express provision in either Rule 141 or in K.S.A. 2008 Supp. 60-256 that provides that a party waives a legal argument by failing to address an issue in the summary judgment pleadings. Although it is correct that the Steeds’ memorandum failed to address the Utility’s legal argument that the lawsuit was untimely, the district court allowed oral argument on this issue at the hearing. We conclude the district court did not abuse its discretion by allowing the Steeds to argue the timeliness issue at the summaiy judgment hearing. Recause the Steeds did not waive argument on the. issue in district court, they have not waived the issue on appeal.
Next, the Steeds argue that the Utility should have been precluded from challenging the timeliness of their petition because the Utility failed to raise the issue as an affirmative defense in its answer. The Steeds claim that the 120-day notice period under K.S.A. 2008 Supp. 12-105b(d) should be characterized as a statute of hmitation rather than a jurisdictional requirement. The Steeds argue that by failing to raise the timeliness issue in its answer, the Utility waived the defense and should not have been allowed to raise the issue in its summary judgment motion.
The Steeds’ argument has been rejected by this court in Christopher v. State, 36 Kan. App. 2d 697, 143 P.3d 685 (2006). In Christopher, the plaintiff sued the State of Kansas for injuries he received while participating in an educational activity as a resident at a juvenile justice facility. The plaintiff failed to file a notice of claim pursuant to K.S.A. 12-105b(d) prior to filing his lawsuit, and the case was dismissed for that reason. On appeal, the plaintiff argued that the defendant was obligated to raise the issue as an affirmative defense in its answer. The Court of Appeals disagreed and determined that compliance with K.S.A. 12-105b(d) was a jurisdictional prerequisite to commencing a lawsuit rather than an affirmative defense that could be waived by the parties. 36 Kan. App. 2d at 703-04; see also Gessner v. Phillips County Comm’rs, 270 Kan. 78, Syl. ¶ 1, 11 P.3d 1131 (2000) (compliance with K.S.A. 12-105b[d] is a jurisdictional prerequisite to commencing a lawsuit). Based on Christopher, we conclude the Utility did not waive the timeliness issue by failing to raise the issue as an affirmative defense in its answer.
Did the district court have subject matter jurisdiction?
Having rejected both parties’ procedural arguments, we finally arrive at the dispositive issue in the Steeds’ appeal, i.e., whether the district court had subject matter jurisdiction over the Steeds’ claims. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Harsch, 288 Kan. at 286.
K.S.A. 2008 Supp. 12-105b(d) states explicitly that “[o]nce notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.” As we have previously indicated, compliance with the statutory requirements is jurisdictional. Christopher, 36 Kan. App. 2d at 703-04. Here, the Steeds’ original petition was filed on January 2, 2007, only 6 days after they filed their notice of claim with the Utility and before the claim was denied. Thus, under the plain language of the statute, the district court properly found that tire original petition was premature and that the court lacked subject matter jurisdiction over the original petition.
However, the Steeds claim that the amended petition filed on June 21, 2007, cured the defect caused by their premature original petition. In response, the Utility argues that an action can only be “commenced” once, and that die Steeds’ action was commenced prematurely. The Utility argues that because the Steeds’ amended petition relates back to the defective original petition, the amended petition cannot cure the defect in the original petition. The district court made no ruling on the effect of the amended petition on the timeliness of the Steeds’ claims.
The parties do not contest that the Steeds’ amended petition was filed within the applicable statute of limitations. Under K.S.A. 2008 Supp. 12-105b(d), the statute of limitations is tolled for up to 90 days following the municipality’s denial of a claim or the expiration of the 120-day notice period to allow the claimant to commence a civil action. Here, the Steeds filed their notice of claim on December 27,2006, prior to the expiration of the 2-year statute of limitations on their negligence claim. The Utility took no action on the claim, and the 120-day notice period expired on April 27, 2007. Ignoring their initial petition, the Steeds had 90 days from this date to commence their action. The Steeds filed their amended petition on June 21, 2007, less than 60 days after the notice period expired. Thus, the Steeds’ amended petition was timely.
The question thus becomes whether the Steeds’ timely amended petition cures the defect caused by their premature original petition. In arguing that it does, the Steeds cite Thompson v. Meyers, 211 Kan. 26, 505 P.2d 680 (1973). Thompson involved a dispute over a real estate investment contract. Under the contract, the plaintiff was due a return payment on his investment 3 years after the execution of a real estate deed. The deed was executed on September 19, 1966; therefore, the payment was due to the plaintiff on September 19, 1969. The plaintiff initially filed a lawsuit prematurely on June 12, 1969, but the plaintiff filed a timely amended petition on December 9, 1969. 211 Kan. at 33.
On appeal, the defendants raised a defense that the plaintiff s petition had been filed prematurely. Although noting that the defendants had not raised the issue in district court, the Supreme Court addressed the issue and determined “[w]here an action has been commenced prematurely, the defect may be cured by fifing an amended or supplemental petition after the cause of action has accrued, unless the amended petition changes the cause of action.” 211 Kan. 26, Syl. ¶ 8; see also Hospital Co. v. Philippi, 82 Kan. 64, Syl. 3, 107 Pac. 530 (1910) (objection that an action was prematurely brought becomes immaterial when an amended or supplemental petition is filed).
Here, the Steeds’ amended petition on June 21,2007, contained the identical claims as were contained in the original petition filed on January 2, 2007. Thompson supports the Steeds’ argument that their timely amended petition cured the defect of their original premature petition. Because it is clear that the Steeds could have dismissed and refiled their cause of action against the Utility on June 21, 2007, it makes no sense that the Steeds could not achieve the same result by fifing an amended petition.
More importandy, however, because the district court lacked subject matter jurisdiction over the Steeds’ original petition due to their failure to comply with K.S.A. 2008 Supp. 12-105b(d), the Steeds’ original petition was a nullity and was void ah initio. See Christopher, 36 Kan. App. 2d at 704. The Utility is correct in asserting tiiat an action can only be commenced once. Here, the Steeds’ action was not properly commenced until the fifing of the amended petition on June 21,2007. Because the amended petition satisfied the jurisdictional requirements of K.S.A. 2008 Supp. 12-105b(d), the district court erred in finding that it did not have jurisdiction over the Steeds’ claims contained therein. Accordingly, we conclude the district court erred by granting summary judgment to the Utility on this basis.
Reversed and remanded. | [
-108,
-20,
-55,
92,
12,
65,
50,
12,
67,
-77,
117,
87,
-1,
-18,
13,
59,
98,
29,
-43,
123,
-57,
-77,
83,
-54,
-42,
27,
-79,
68,
-69,
79,
-12,
-60,
77,
49,
11,
85,
70,
-126,
-58,
28,
-84,
4,
-118,
-16,
73,
-126,
44,
107,
50,
79,
113,
15,
-77,
56,
24,
99,
-55,
46,
123,
-32,
73,
-15,
-87,
5,
127,
19,
-125,
4,
-104,
79,
64,
63,
-102,
57,
32,
-24,
50,
-90,
-122,
-12,
37,
-99,
73,
-30,
98,
1,
4,
-27,
-92,
-88,
15,
-34,
31,
-27,
-110,
25,
123,
41,
-106,
-107,
85,
22,
6,
-4,
-25,
5,
95,
108,
-117,
-50,
-100,
-79,
15,
0,
-115,
31,
-5,
-126,
48,
81,
-56,
-94,
92,
-57,
50,
31,
94,
-70
] |
Rulon, C.J.:
Defendant, Travis Montgomery, challenges the district court’s decision to revoke his probation, requiring him to serve his underlying prison sentence. The primary issue, however, is whether this court should dismiss this appeal as moot since Montgomery has served his entire sentence.
The facts of this case are undisputed. Montgomery entered a guilty plea to a second conviction of possession of a hallucinogenic drug. He was sentenced to 11 months in prison, but placed on probation for 18 months. Ultimately, Montgomery’s probation was revoked. The district court ordered Montgomery to serve his prison sentence, and he appealed, arguing the court abused its discretion. Both parties agree Montgomery completed his prison sentence and was released from State custody and supervision on September 28, 2009.
The general rule is that appellate courts do not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive. However, where a particular issue, although moot, is one capable of repetition and one of public importance, an appellate court may consider the appeal and render an opinion. Appellate courts sometimes entertain issues which, although moot, are subjects of real controversy and include issues of statewide interest and public importance. Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
This court will not dismiss an appeal as moot unless it is clearly and convincingly established the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned. In re M.R., 272 Kan. 1335, Syl. ¶ 2, 38 P.3d 694 (2002).
Montgomery argues this court should hear his appeal because allowing the decision of the district court to stand could disadvantage him in a subsequent criminal action. For example, he argues his probation revocation could be used as a reason to impose a departure sentence or to deny probation in a future criminal action. For authority Montgomery cites State v. White, 41 Kan. App. 2d 943, 206 P.3d 553 (2009). However, White is not in concert with other opinions from this court reviewing a similar issue.
In White, the defendant entered a plea to forgery, identity theft, and attempted theft and was sentenced to 32 months in prison, but granted a downward dispositional departure to 18 months of probation after serving 60 days in jail. Subsequently, the district court issued a show-cause order directing White to explain why he should remain on probation when he failed to remain crime free and had not made any payments towards the court costs. 41 Kan. App. 2d at 944. Ultimately, the district court revoked White’s probation and ordered him to serve the imposed sentence. On appeal, White argued die court erred in revoking his probation because he was unable to pay court costs. In response the State countered the appeal was moot as White had served his sentence. The panel in White accepted the appellant’s argument his appeal was not moot because his probation revocation would remain on his record for a long time. The White court opined that should White ever be considered for probation in the future, the trial court could refuse die request for probation based upon a finding of nonamenabiliiy because of his failure in this case. 41 Kan. App. 2d at 946. But in doing so, the White court created a bright-line rule that whenever a court’s decision could have an adverse effect on the party at some undefined point in the future, the issue will never be moot. Under White, no decision adverse to a criminal defendant could ever be moot since it could potentially cast the defendant in a negative light should he or she again be the subject of a criminal proceeding. 41 Kan. App. 2d at 946.
A second panel of this court has examined an analogous set of facts and reached the conclusion the appeal was moot. In State v. Johnson, 39 Kan. App. 2d 438, 180 P.3d 1084, rev. denied 286 Kan. 1183 (2008), the appellant admitted to violating the terms of his probation. 39 Kan. App. 2d at 439. Three years after his probation was revoked, Johnson filed a motion to file an out-of-time notice of appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The district court dismissed the appeal, finding Johnson had failed to show that he met the Ortiz exception; that his prior probation revocation had been upheld on appeal; and that his appeal in this case was frivolous. 39 Kan. App. 2d at 440. When Johnson’s appeal came to this court, Johnson was ordered to show cause why his case was not moot as he had served the prison portion of his sentence. Johnson responded that if his revocation was reversed he might be placed back on probation from postrelease supervision or be able to receive a reduced term of postrelease supervision, and might be able to contest the amount of attorney fees he was ordered to pay. 39 Kan. App. 2d at 441. The panel rejected Johnson’s claims as without support in the record. No fines or other fees were imposed. The panel further noted Johnson could not receive credit for time served against his postrelease supervision under State v. Gaudina, 284 Kan. 354, 160 P.3d 854 (2007). Further, the court noted there was no statutory authority to reduce the amount of a postrelease supervisory term after sentencing. 39 Kan. App. 2d at 442. After examining all the arguments put forth by Johnson, the court found no plausible argument or application of authority showing that a controversy still existed in that case and dismissed the case as moot. 39 Kan. App. 2d at 443.
In contrast to White, a different panel of this court, in an unpublished opinion, examined the doctrine of mootness and discussed whether the case should be dismissed based on a determination that the consequences of the probation revocation were hypothetical versus concrete. State v. Brown, No. 95,985, unpublished opinion filed June 13, 2008, rev. denied 287 Kan. 766 (2008). In Brown, the appellant sought to appeal his probation revocation and his sentence. Even though Brown had served the underlying sentence, he argued his appeal was not moot because a probation revocation could have adverse consequences in his attempts to obtain employment. He further argued that if he was ever subject to a future criminal action, this probation revocation could be used against him in sentencing, in setting pretrial detention conditions, or for more onerous bond conditions. Further, he argued that if he sued for malicious prosecution based on wrongful probation revocation, he must be able to show his appeal of the revocation was decided in his favor. The Brown court concluded the alleged adverse collateral consequences were too speculative to refute the finding of mootness. The Brown court relied in part on the United States Supreme Court decision in Spencer v. Kemna, 523 U.S. 1, 140 L. Ed. 2d 43, 118 S. Ct. 978 (1998).
In Spencer, the petitioner s parole was revoked based on an allegation Spencer had used crack cocaine and raped a woman. 523 U.S. at 4. Spencer admitted using drugs but denied the sexual assault. After being returned to prison, Spencer attempted to challenge the parole revocation in Missouri state courts. Being unsuccessful in the state courts, 6 months prior to the completion of his sentence, Spencer filed for a writ of habeas corpus in federal court. 523 U.S. at 5. However, before the court ruled on his motion, he was released from custody. The federal district court subsequently dismissed his petition as Spencer was no longer in custody. The United States Court of Appeals for the Eighth Circuit affirmed the federal district court. 523 U.S. at 6. By the time the case reached the Eighth Circuit, Spencer was again in prison serving a 7-year sentence arising from a different case. 523 U.S. at 6 n.2. On review, the United States Supreme Court held the federal district court had erred in dismissing Spencer’s petition, because he was no longer in custody. Spencer was in custody when the petition was filed which satisfied the “in custody” requirement of 28 U.S.C. § 2254 (2006). The Supreme Court, however, went on to examine Spencer’s claims to determine if the case was moot because it did not present a case or controversy. An incarcerated convict’s (or a parolee’s) challenge to his or her conviction always satisfies the case or controversy requirement. However, once a convict’s sentence has expired, some concrete and continuing injury other than the now-ended sentence, some collateral consequence of the conviction, must exist. 523 U.S. at 7.
Spencer argued a number of factors showed there were concrete and continuing injuries in fact, collateral consequences, and therefore his appeal should not be dismissed as moqt. His arguments were:
• Parole revocation could be used to his detriment in a future parole proceeding;
• Revocation could be used to increase his sentence in a future criminal proceeding;
• The allegation of rape could be used to impeach him should he appear as a litigant or witness in a future civil or criminal proceeding or could be used against him directly;
• His parole revocation would foreclose him from pursuing a damage claim under 42 U.S.C. § 1983 (2006);
• His claim was capable of repetition, yet evading review; and
• Even if the case was moot, the mootness was caused by the dilatory tactics of the attorney general’s office in filing extensions of time to respond to Spencer’s petition and the delay in the federal district court.
The United States Supreme Court rejected all of Spencer’s arguments, finding them, for the most part, too speculative to warrant a decision on a case that otherwise appeared moot. 523 U.S. at 14-18. The Spencer Court held: “We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong.” 523 U.S. at 18.
It is noteworthy Spencer argued his case was not moot for many of the same reasons cited by White, by Brown and, in the instant case, by Montgomery. The United States Supreme Court contended that under those circumstances the case was moot and should be dismissed as such.
The facts in Brown, Spencer, and Johnson are similar to the facts presented in this case. Here, the actual controversy before this court, i.e., whether the district court erred in revoking Montgomery’s probation, has ended. Montgomery has served his entire sentence. Any action this court might take in regards to his probation revocation would be an idle act insofar as Montgomery’s rights in this action are concerned. This case is clearly moot.
The appeal is dismissed as moot. | [
16,
-22,
-99,
30,
11,
64,
18,
-108,
64,
-69,
103,
83,
-83,
-5,
4,
123,
-71,
95,
-12,
105,
69,
-73,
119,
-63,
-9,
-13,
-38,
-35,
-73,
110,
-26,
117,
12,
112,
-118,
117,
-26,
-54,
-47,
-34,
-114,
5,
-104,
85,
-15,
-127,
48,
35,
26,
-113,
17,
-97,
-29,
-22,
16,
-61,
-55,
104,
91,
-65,
-48,
-47,
-99,
13,
111,
4,
-93,
36,
-100,
-125,
112,
54,
-104,
57,
1,
-24,
-13,
-106,
-122,
116,
75,
-101,
-116,
118,
115,
-128,
120,
-21,
-95,
-120,
63,
30,
13,
-25,
-104,
89,
75,
65,
-108,
-3,
126,
54,
38,
124,
110,
-123,
87,
-19,
0,
-33,
-74,
-79,
-117,
61,
-58,
-13,
-21,
36,
49,
117,
-51,
-30,
84,
83,
113,
-101,
-70,
-107
] |
Hill, J.:
In this appeal, we affirm the conviction of Doulas E. LeClair for failing to register under the Kansas Offender Registration Act. But we do so for different reasons than those found by the district court.
LeClair left the county and did not establish a neto residence for some time.
Obeying the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., LeClair registered with the Saline County Sheriffs Department as an offender on April 4, 2007. As a component of this registration, a sheriff s deputy explained to LeClair his duties under die Act. LeClair signed and initialed a document confirming that he understood these duties. LeClair s duties included the following:
• “Within ten (10) days of entering into any county where I reside or temporarily reside for more than ten (10) days, I must register with the sheriff of the county.
• “If I change my address, or any other information in reference to my registration changes, I must give written notice to the sheriffs office where I last registered and to the Kansas Bureau of Investigation (KBI) within ten (10) days of the change.
• “If I change my residence to another state, I must inform the sheriffs office where I last registered and the KBI of my change of residence and must register in the new state within ten (10) days.”
Sometime around June 1, 2007, LeClair asked his landlord, Galen Thacker, to drive him to the Salina bus station. LeClair had purchased a ticket to Las Vegas, Nevada, and planned to leave Kansas permanently. At the time of his departure, LeClair was not immediately planning to settle in Las Vegas but rather use the city as a starting point to explore other parts of the Southwest before deciding where he wanted to live. LeClair never notified the sheriff s department he was leaving Salina.
After arriving in Las Vegas, LeClair spent a couple of days in a shelter and then traveled to Provo, Utah. On June 5,2007, LeClair mailed a letter from Provo to the sheriffs department. The letter included the following statement: “I, Douglas M. LeClair ... a registered sex offender in Saline County, am leaving the state of Kansas; I will not be returning. When I get to where I am going, I will contact local law enforcement.” The letter did not contain an address where LeClair could be reached. The Saline County Sheriffs Department received no additional notifications or registration documents from LeClair.
LeClair stayed on the move for a time. Including his trip to Provo, LeClair spent approximately 3 weeks traveling to various cities in the Southwest. During these visits, he slept outside. Then, sometime around the third week of June, LeClair returned to Las Vegas and decided to settle there. On June 29,2007, LeClair asked the Social Security Office to send his disability check to the Salvation Army in Las Vegas. The next day, he rented Apartment 10-C at 29 North 28th Street, Las Vegas, Nevada. Ultimately, LeClair registered as a sexual offender with the Las Vegas Metropolitan Police Department on July 9, 2007. LeClair’s Nevada registration listed his new address as 29 North 28th Street, Apartment 10-C; Las Vegas, Nevada.
In October 2007, the State charged LeClair with five counts of fading to register as an offender as required by K.S.A. 22-4904(b). The State based each count on LeClair fading to notify anyone of his move after he left Salina. The first lapsed 10-day period and the following four 30-day periods each period served as the basis of a separate charge. So, Count I charged LeClair with fading to register any time from June 1,2007, through June 11,2007. Count II charged LeClair with failing to register from June 11, 2007, through July 11, 2007. Count III charged LeClair for failing to register from July 11, 2007, through August 11, 2007. Count IV charged LeClair with failing to register from August 11, 2007, through September 11, 2007. Finally, Count V charged LeClair with failing to register from September 11, 2007, through October 11, 2007.
The State extradited LeClair to Kansas for trial. By agreement the court tried the matter. At trial, LeClair testified that when he registered in Las Vegas, an official with the police department promised to notify Kansas authorities of his registration and new address. Indeed on March 12, 2008, the Saline County Sheriffs Department did receive an email from the Las Vegas police department that told them of LeClair’s registration there on July 9, 2007. At the conclusion of the bench trial, the district court acquitted LeClair of Counts II-V. However, the district court found him guilty of Count I, which alleged that LeClair failed to register from June 1, 2007, through June 11, 2007. The court based its verdict on finding that LeClair failed to notify the Saline County Sheriff s Department within 10 days of his change of address.
In this appeal, LeClair contends the district court erred in finding him guilty of a violation of K.S.A. 22-4904(b), because he had no new residence to report to the sheriff s department. In his view, he was therefore unable to report a change in residence from June 1, 2007, through June 11, 2007. In contrast, the State argues that LeClair had a legal duty to register within 10 days of his June 1, 2007, departure from Salina.
We offer some general points of law useful in this appeal.
Obviously, we must interpret the Kansas Offender Registration Act found at K.S.A. 22-4901 et seq. in order to settle this appeal. Statutory interpretation is a question of law over which this court has unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). The first rule of statutory construction is that the intent of the legislature governs if the court can ascertain that intent. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). Therefore, an appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
When a statute is plain and unambiguous, it is not the province of an appellate court to speculate about the legislative intent behind it or read the statute to add something not readily found in it. In such a case, an appellate court need not resort to statutory construction. “ ‘It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.’ [Citation omitted.]” Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). 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. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008).
Finally, courts must strictly construe criminal statutes in favor of the accused. The court must decide any reasonable doubt about the meaning of the statute in favor of the accused. Even so, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible so the court can effectuate legislative design and intent. Gracey, 288 Kan. at 257-58.
We look to the plain meaning of the words used in this statute.
Within 10 days of changing his or her address, an offender required to register under K.S.A. 22-4904(b) must inform in writing the law enforcement agency where such offender last registered and the Kansas Bureau of Investigation of their new address. Obviously, the law intends for law enforcement officials to know the whereabouts of the people who are required to register. A violation of this reporting provision is a severity level 5 person felony. The Act offers no definition for the term “residence.” Further, we have found no case law deciding whether an offender changes his residence when he or she leaves or when he or she establishes a new residence.
The Kansas Supreme Court has consistently held the purpose of the Act is “to protect the public from sex offenders as a class of criminals who are likely to reoffend and to provide public access to the registration information required when an offender falls within the provisions of the [the Act].” State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006); accord State v. Wilkinson, 269 Kan. 603, 609, 9 P.3d 1 (2000); State v. Myers, 260 Kan. 669, 679-81, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997).
Black’s Law Dictionary 1423 (9th ed. 2009) defines residence as: (1) “[t]he act or fact of living in a given place for some time”; (2) “[t]he place where one actually lives, as distinguished from a domicile”; or (3) “bodily presence as an inhabitant in a given place.” From June 1, 2007, through June 11, 2007, LeClair was both physically present and living in places other than Salina. Therefore, using the ordinary meaning of residence as delineated in Black’s Law Dictionary, LeClair violated K.S.A. 22-4904(b) by failing to report his change in address of residence to the sheriff s department and the KBI when he left Salina, never to return. The district court’s finding that LeClair failed to notify the sheriff s department within 10 days of his June 1, 2007, departure from Salina is supported by the evidence. LeClair was not taking a vacation, he was leaving town.
In our view, LeClair was changing his address when he left Salina and was required to inform the sheriff s department of that fact within 10 days of his move. An offender required by law to register at the local sheriff s office and the Kansas Bureau of Investigation must notify those offices in writing when he or she intends to permanently leave a residence whether he or she has established a new residence or not. To rule otherwise, as LeClair would have us do, would make the reporting provision meaningless for those who choose, for whatever reason, not to establish a new residence. Such an interpretation is consistent with protecting the public. Otherwise, an offender could then evade registration requirements by leading a transient lifestyle, thereby undercutting the statute’s important purposes.
There is ample evidence of LeClair s intent.
LeClair next argues there was insufficient evidence to sustain his conviction because the State did not prove beyond a reasonable doubt that he intentionally failed to comply with the Act. The State argues that LeClair had the requisite intent to commit the crime because he intentionally changed his residence without notifying the sheriff s department.
When a criminal defendant challenges the sufficiency of the evidence, “the standard of review is whether after reviewing all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
Under K.S.A. 22-4904(b) and the duties spelled out in his registration form, LeClair was required to report any changes in his address of residence within 10 days to the law enforcement agency where he last registered as well as to the KBI. Like any other statute, criminal intent is a requisite element of the crime of failure to report. See K.S.A. 21-3201(a). Intentional conduct is defined as conduct that is purposeful, willful, and not accidental. K.S.A. 21-3201(b).
The Kansas' Supreme Court had held that the failure to register under K.S.A. 22-4903 and K.S.A. 22-4904 is a general intent crime. In re C.P.W., 289 Kan. 448, 455-56, 213 P.3d 413 (2009). To prove general intent, the State need not prove that the defendant intended a precise harm or result that occurred. 289 Kan. at 454. All that the State is required to prove in such a case is that the defendant was conscious of the act he or she was committing without necessarily understanding the consequences of that action. State v. Spicer, 30 Kan. App. 2d 317, 324, 42 P.3d 742, rev. denied 274 Kan. 1117 (2002).
In construing the facts in the light most favorable to the prosecution, as we are required to do, there is no doubt that a rational factfinder could have found that LeClair failed to register from June 1, 2007, through June 11, 2007. On June 1, 2007, LeClair permanently left Salina and traveled to Las Vegas. Prior to leaving Salina, LeClair never notified the sheriff s department. He did mail a letter to the sheriff s department on June 5, 2007, from Provo, Utah. In the letter LeClair told the sheriffs department that he was leaving Kansas and was not planning to return. In addition, the letter contained a promise that he would contact law enforcement when he got to where he was going. The letter did not tell the sheriff s office his whereabouts nor where he could be reached. After that the sheriffs department received no additional notifications or registration documents from LeClair.
From the time LeClair left Safina on June 1, 2007, until July 9, 2007, he failed to report his residence or whereabouts to the sheriff s department. LeClair acknowledged this failure but testified that he intentionally chose to defer his registration until he was more permanently settled in a location. LeClair further testified that in the interim, he felt that the letter he sent to the sheriffs department would suffice. There is sufficient evidence of his intent in this record; LeClair did not accidentally pack up and move, he did so intentionally.
Affirmed. | [
-48,
-8,
-36,
28,
24,
101,
50,
0,
82,
-109,
37,
27,
111,
-40,
0,
107,
-63,
111,
100,
121,
-47,
-74,
103,
-127,
118,
-5,
-63,
-59,
50,
77,
-20,
-59,
26,
112,
-54,
81,
6,
73,
21,
88,
-90,
3,
-119,
-48,
-13,
3,
44,
105,
10,
-114,
101,
62,
-45,
75,
62,
-125,
-99,
76,
-103,
-83,
-77,
-11,
-5,
23,
-2,
23,
-93,
4,
-69,
5,
-8,
-85,
-100,
25,
112,
-8,
123,
22,
-122,
52,
7,
13,
-91,
102,
-29,
33,
20,
-59,
-92,
1,
-84,
58,
31,
35,
-103,
88,
99,
12,
-78,
29,
84,
52,
35,
-6,
100,
-28,
29,
104,
-125,
-54,
-44,
-109,
77,
53,
-121,
29,
-1,
37,
-14,
49,
-58,
-10,
86,
71,
112,
27,
44,
-47
] |
Green, J.:
Larry Stinson appeals from his jury trial convictions for one count each of aggravated battery and aggravated robbery against Daniel Harris. Stinson first argues that the trial court committed reversible error when it would not allow defense counsel to impeach Harris with his prior inconsistent statements and repeatedly refused to allow defense counsel to make a proffer of the excluded statements. Stinson’s argument has merit. The trial court applied an erroneous legal standard in determining that Harris could not be impeached with his prior inconsistent statements and in further determining that Harris’ memory could not be refreshed by his prior statements. As a result, the trial court’s decision to exclude the statements constituted an abuse of discretion. Moreover, the trial court committed error when it refused to allow Stinson’s attorney to complete his proffer of the excluded statements.
Under the facts presented, the key to this case was the credibility of Harris, and because Stinson was denied the opportunity to fully and adequately test Harris’ credibility, we determine that the trial court’s error in excluding Harris’ prior inconsistent statements constituted reversible error. Accordingly, we reverse and remand for a new trial. Because we are reversing and remanding for a new trial, Stinson’s remaining argument regarding his ineffective assistance of counsel claims is moot.
The underlying events in this case occurred on the evening of July 29, 2006, at the home of Harris. Stinson and Harris had known each other for at least 10 years and had gone to junior high and high school together. More recent to the incident, Stinson, who was part of a rap group, would use Harris’ recording equipment at Harris’ home to record Stinson’s music.
Stinson had lived with Harris at Harris’ home during May, June, and July 2006. According to Stinson, Harris’ house was considered a party house, and Stinson and Harris sold drugs out of it. Nevertheless, around the middle of July, Stinson moved out of Harris’ house at Harris’ request.
Harris testified that on the evening of July 29, 2006, Stinson called and asked if he could come by the house. Harris’ friend, Kyle Titus, was at Harris’ house when Stinson arrived. Harris testified that after Titus let Stinson in, Stinson came into Harris’ bedroom and started talking to him. Harris then heard Stinson talking on his two-way radio and telling someone else to come inside.
According to Harris, Marcus Moon and another man entered his house and came into his bedroom. Harris had gone to school with Moon and knew him as one of Stinson’s friends, but he did not know the other man. Harris testified that Stinson pointed a gun at his face and ordered him to give Stinson Harris’ money and marijuana. Harris further testified that Moon also pointed a gun at his face and that the third man stood in the doorway.
Harris testified that he gave Stinson approximately $600 in cash and marijuana. Moreover, Harris testified that Stinson took Harris’ cell phone from his dresser. When Harris asked what was going on, Moon told him to shut his mouth and pistol-whipped him in the face. According to Harris, Stinson attacked him, and then Stinson and Moon led him around the house asking where items were located. Harris testified that although he tried to fight back, he was unable to do so because Stinson was choking him. Harris further testified that when he told the men that he had already given them everything, Stinson and Moon beat him more. Harris testified that during the incident, Stinson struck him with his fist and gun and he was pistol-whipped on his torso.
When the men had finished striking Harris, they got into their car and drove away from Harris’ house. Harris later discovered that a gold chain, some rings, and a pistol were missing from his house.
When questioned at trial about Titus’ location in the house during the incident, Harris testified that initially Titus was in Harris’ bedroom in front of Harris’ closet when the three men were in Harris’ bedroom. Harris further testified, however, that he did not know where Titus was while the men were beating him and that he did not see the men strike Titus.
After the men left Harris’ house, Harris and Titus went to a neighbor’s house and called 911. Based on the injuries he received that night, Harris was taken to the hospital. The emergency room treating doctor testified that Harris had sustained multiple bruising, abrasions, swelling on his face, and lacerations to his lip and nose, all of which were consistent with blunt force trauma to the face. A CT scan of Harris’ face revealed that Harris had several facial fractures of die honey structures of his eye and sinus. Further, Harris had a significant mark and bruising on his lower abdomen and some abrasions and bruising on his shoulders.
The State charged Stinson with one count of aggravated robbery in violation of K.S.A. 21-3427 for the taking of money and a telephone from Harris; one count of aggravated battery to Harris in violation of K.S.A. 21-3414; and one count of aggravated robbery in violation of K.S.A. 21-3427 for the taking of a telephone from Titus.
Titus’ testimony at trial about the specific details surrounding the July 29, 2006, incident differed somewhat from Harris’ testimony. Titus testified that when the three men came into Harris’ bedroom, Moon put a gun to the back of Titus’ head and told him to look inside the bedroom closet. Titus further testified that he thought that Stinson had a gun, but he was not completely sure of that fact. According to Titus, the men took Harris out to the hallway where they beat him. Titus testified that although he was facing the closet, he could still look to the left and see what was going on between Harris and the three men. According to Titus, all three of the men were hitting Harris.
While the men were beating Harris, Titus attempted to leave the house. Titus testified that. Moon stopped him from leaving and then Moon punched him and pistol-whipped him. Moon made Titus go back and face the bedroom closet. Titus testified that while he was attempting to leave, he saw Stinson “beat on” Harris. According to Titus, Harris was not really fighting back and was screaming in pain. Titus testified that the whole incident lasted about 5 minutes.
Titus testified that one of the men took his cell phone during the incident, but he was unsure which of the men took it. According to Titus, the man took it from him when he reached in his pocket and attempted to dial 911. Titus testified that no other property was taken from him.
During his testimony at trial, Stinson admitted that he had previously lied to his mother and told her that he was not at Harris’ house when the July 29, 2006, incident occurred and that he had an alibi for that night.
Nevertheless, Stinson testified that he had gone to Harris’ house with Moon and another man on the evening of July 29, 2006. According to Stinson, he had called Harris that evening and had arranged to purchase marijuana from Harris at Harris’ home. Stinson testified that upon arriving at Harris’ home, he, Moon, and the other man all went to the front door together and were let inside by Titus. Stinson walked to the back room and spoke with Harris, while Moon and the other man waited in the front room.
Stinson testified that after he bought the marijuana from Harris, Harris confronted him about how he was able to buy marijuana when he still owed Harris $700. Stinson told Harris that he would eventually pay back the money he owed and that he just wanted to get a few of his items that were still at Harris’ home. Harris, however, told Stinson that he would not be able to get all of his items, including his music CD’s, until Stinson paid Harris the money he owed.
According to Stinson, as the argument between he and Harris escalated, Stinson tried to leave the room but Harris put his arm up and put his hands in Stinson’s face. Stinson testified that as he was trying to move Harris’ hand so that he could leave the room, Harris swung at him and also tried to grab for him. At that point, Stinson and Harris began fighting.
Stinson testified that as he and Harris were fighting, Moon and the other man came into the room and joined the fighting. Stinson and Harris fell to the ground, and Stinson pushed Harris off of him and kicked his feet. According to Stinson, Moon and the other man jumped on top of Harris and “scuffled” with him while Stinson went out to the living room and grabbed his CD’s. After Stinson retrieved his CD’s, he told Moon and the other man that they needed to leave and to get off of Harris. Stinson testified that Moon and the other man kicked Harris a couple of times and then they all left.
According to Stinson, no one had any guns at Harris’ house, and no one took any cell phones or money from anyone there. Moreover, Stinson testified that neither he nor Moon and the other man received any injuries from the fight with Harris.
According to Stinson, when Moon and the other man came into the back room and starting fighting with Harris, Titus came in the back room also. While they were fighting, however, Stinson did not see Titus. At the end of the incident, Stinson asked where Titus was, and Moon told him that Titus was in another bedroom. Stinson testified that he never saw Titus being hit.
According to Stinson, he had seen or talked with Harris by phone several times since the July 29, 2006, incident. Stinson testified that shortly after the incident, he had met Harris to purchase some marijuana and then had dropped Harris off at his house, which was right across the street from Stinson’s mother’s house.
The jury found Stinson guilty of the charges of aggravated robbery of Harris and aggravated battery of Harris. The juiy acquitted Stinson of the charge of aggravated robbeiy of Titus.
After trial, Stinson filed a pro se request for a new trial. Stinson raised numerous arguments as to why he should be granted a new trial, which included several claims of ineffective assistance of counsel. After holding a nonevidentiary hearing, the trial court denied Stinson’s motion for a new trial. The trial court then sentenced Stinson to concurrent sentences of 77 months in prison on his aggravated robbery conviction and 41 months in prison on his aggravated battery conviction.
I. Exclusion of Harris’ Prior Inconsistent Statements
First, Stinson argues that the trial court violated his statutory and constitutional rights and committed reversible error when it refused to allow his attorney to impeach Harris with his prior inconsistent statements.
When reviewing a trial court’s decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless prohibited by statute. K.S.A. 60-407(b); State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has any “tendency in reason to prove any material fact.” K.S.A. 60-401(b).
Once relevance is established, the trial court must then apply the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the rule in question. Therefore, the standard of review that is applicable on appeal will depend upon which rule the court applied to determine the admissibility of the evidence at issue. Riojas, 288 Kan. at 383.
Stinson points out that during the trial, his attorney attempted to introduce Harris’ prior inconsistent statements which Harris had made either in preliminary hearing testimony or in his written statement to the police.
A. Prior Inconsistent Statement Regarding Titus’ Location During Incident
Specifically, after Harris testified at trial that Titus was in the room with him and the other men when the incident began, Stinson’s attorney questioned Harris about his prior testimony at Moon’s prehminary hearing where he stated that Titus was in the closet in another bedroom:
“[Defense counsel:] Now, do you remember testifying in the preliminary hearing with Marcus Moon that you said that Kyle [Titus] was in the other bedroom in the closet? Do you remember testifying to that?
“[Harris:] I don’t recall that, no.
“[Defense counsel:] Okay. If you were to listen to a recording of that, would it help refresh your memory?”
At that point, the trial judge interrupted defense counsel and would not allow him to use Harris’ prior sworn statements to impeach Harris or to refresh Harris’ memory:
“[Trial judge:] May I see counsel for a second? (The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
“[Trial judge:] The only time you can get him to listen to it is if he denies making the statement. If he says he can’t recall, you can’t use it to impeach him because he’s not denying the statement.
“[Defense counsel:] So I can ask him directly is he denying any — that he ever made that statement?
“[Trial judge:] No, sir. You’ve already asked him the question and he said, I can’t recall. I don’t recall saying that. He’s not saying, no, I didn’t say that.
“[Defense counsel:] I’m not trying to impeach him. I asked if he would refresh his memory. I’m not gonna play it to impeach him.
“[Trial judge:] I know, but the reason that you want him to read it is so you can ask him the question. But you can’t ask him the question unless he denies making the statement.
“[Defense counsel:] Well, I think we can — I’m gonna point it out like this ‘cause every police officer we ever have testify in this case for the State, they could never really remember everything. And the police we always ask, would it help you refresh your memory if you looked at your statement, and we always allow them. This is the same thing as we do with a police officer. Yes, it is.
“[Trial judge:] Sir, I’m not gonna argue with you. I’m making my ruling.
“[Defense counsel:] I’m trying to make a record for appeal. This is a critical issue because he did make contrary statements. It is contradiction when he says, I can’t remember, when he did, in fact, testify that Kyle was in this other room— as a proffer—
“[Trial judge:] Okay.
“[Defense counsel:] —that he was never in the bedroom with him. He was in another room.
“[Trial judge:] I understand.
“[Defense counsel:] He testified that he didn’t- — he testified he didn’t know he was hit, but, in fact, he testified in the prehminary hearing that he heard he was hit. This is all contradictory. So when you’re denying, you’re, in fact, contradicting your prior testimony that was only a few months ago.
“[Trial judge:] No. When you say you can’t recall is not denying making the statement. That’s my ruling. You may step back.”
B. Prior Inconsistent Statement Regarding Titus Being Struck
Next, after Harris testified that he had not heard Titus get struck during the incident, Stinson’s attorney asked Harris if he denied testifying previously that he had heard Titus get struck:
“[Defense counsel:] You said you didn’t see [Titus] struck, correct?
“[Harris:] Yes.
“[Defense counsel:] Did you hear him get struck?
“[Harris:] No, I didn’t. At the time, no, I didn’t hear nothing.
“[Defense counsel:] Okay. Do you deny saying in a previous testimony that you heard him get struck?
“[Harris:] I don’t remember.
“[Defense counsel:] Would it — would it help refresh your memory since you don’t remember — ”
At that point, the prosecutor objected, which began a lengthy dialogue between the trial judge, defense counsel, and the prosecutor concerning the exclusion of such evidence:
“[Prosecutor:] Objection, Your Honor, same basis we discussed.
“[Defense counsel:] No. This is different.
“[Trial judge:] Sir?
“[Defense counsel:] Can we approach?
“[Trial judge:] Yes, sir, you can. (The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
“[Defense counsel:] This is a different situation. I asked him does he remember and if he’s he said he’s not denying he said it. He — this is he doesn’t remember. Well, this is the exact instance where you refresh somebody’s memory with a record. And we can do that.
“[Prosecutor:] You asked him, do you deny saying it. He said, I don’t remember. Not the same thing.
“[Trial judge:] And that’s — •
“[Defense counsel:] Well, Judge, you’re saying—
“[Trial judge:] No. You’ve already made your record. You’re trying to use apples and oranges, Mr. Lamb, and I don’t agree with you and I’m making my ruling against you. I’m sustaining her objection and obviously the record reflects all of the arguments you’ve previously made on this particular issue.
“[Defense counsel:] Except on this one. I want to make a proffer because he did testify that he heard it.
“[Trial judge:] It doesn’t make any difference.
“[Defense counsel:] It does, Judge.
“[Trial judge:] No. We disagree on that. If he denied making the statement, then you could refresh his recollection and impeach him.
“[Trial judge:] I’ve made my ruling and it’s basically the same ruling that I made the last time for the same reason. He didn’t deny making the statement. He said he can’t remember. The objection is sustained. Let’s move on.”
C. Harris’ Prior Inconsistent Statements Regarding His Employment
A short time later during Harris’ cross-examination, defense counsel attempted to introduce Harris’ prior inconsistent statement that he was not working when the incident occurred in this case:
“[Defense counsel:] You didn’t have a job at the time. You did tell the police that, didn’t you?
“[Harris:] I was working with my dad remodeling. He owns his own business.
“[Defense counsel:] You’re saying you — you told the police that you were working with your dad?
“[Harris:] No. I didn’t say that. I’m saying I was working with my dad.
“[Defense counsel:] Now, I’m gonna go back to the statement that you gave on August 2nd to Detective Howard. In this statement, would you agree that on August 2nd, he asked you, Daniel, where are you employed, and you answered, I’m not employed. Do you recall that?
“[Harris:] I don’t recall, but I was working with my father.
“[Defense counsel:] May I approach to—
“[Defense counsel:] Would it help you refresh your memory if you read your statement?”
At that point, the prosecutor objected on the basis that Harris had not denied making his previous statement:
“[Prosecutor:] Your Honor, objection. He’s not denying that he made the statement. He’s saying he doesn’t recall.
“[Defense counsel:] Then I’m gonna ask to introduce this as a prior inconsistent statement.
“[Trial judge:] No, sir. You can’t use that particular rule in that fashion. He’s not denying making the statement. He’s saying that, at the time, he was working with his father. You asked him, do you remember telling the police—
“[Defense counsel:] May I approach?
“[Trial judge:] — that. He said, I don’t recall.
“[Defense counsel:] May I approach?
“[Trial judge:] Not if it’s going to be to reargue the same issue. If you have something new, I’ll be happy to listen to you, sir. (The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
“[Defense counsel:] I’m gonna need a break here, ‘cause I’m gonna have to get a subpoena issued to get Detective Howard over here to testify to this.
“[Trial judge:] I’m not giving you a break for that. You can’t use the rules of evidence in that fashion, Mr. Lamb. He’s not denying making the statement. He said, I don’t recall making that statement. That’s not a prior inconsistent statement and you cannot use it to impeach him. That is my ruling.
“[Defense counsel:] Judge—
“[Trial judge:] I believe that is the law. You may step back now.
“[Defense counsel:] This is — I’m gonna malee a proffer. I’m making a proffer for the record that the prior—
“[Trial judge:] I tell you when you get to make a proffer or not.
“[Defense counsel:] Judge—
“[Trial judge:] And this is the same issue that we have talked about three times prior at the bench and now in court. I disagree with you. You disagree with me. The record is clear. But that is my ruling. Now, stand back.”
D. Refreshing of Witness’ Recollection
The State concedes that Stinson should have been permitted to have Harris listen to the recording of the preliminary hearing, outside of the presence of the jury, in order to refresh his recollection.
Regarding the use of memoranda to refresh the memory of a witness, the rule is well established that “[a] witness while testifying, or prior thereto, may refresh his recollection by reference to any memoranda relating to the subject matter, provided he then has an independent recollection of the subject matter.” Barbara, Kansas Law and Practice, Lawyer’s Guide to Kansas Evidence § 9.13, p. 309 (5th ed. 2007); see State v. Scott, 199 Kan. 203, 206, 428 P.2d 458 (1967). The weight and force of the testimony is for the trier of fact to determine. 199 Kan. at 206; see State v. Cook, 180 Kan. 648, 650-51, 305 P.2d 851 (1957). Moreover, our Supreme Court has held that “it is not improper for a prosecutor or any other attorney to allow witnesses to refresh memory by reading their prior sworn testimony.” State v. Humphrey, 252 Kan. 6, 29, 845 P.2d 592 (1992).
Here, when Harris could not remember his previous statement to the police and his specific testimony at the prehminary hearing, it was appropriate for defense counsel to utilize Harris’ prior statement and his prior testimony in an attempt to refresh his memory. Normally, it is within the trial court’s discretion to determine whether memoranda or other items may be used to refresh a witness’ recollection. State v. Kelly, 19 Kan. App. 2d 625, 627, 874 P.2d 1208 (1994). In this case, however, the trial court erroneously determined that Harris had to deny making the statement before the prior statement could be introduced to refresh his recollection. Because the trial court’s determination to not allow defense counsel to refresh Harris’ memory with his prior sworn statements went outside the framework of the proper legal standard, its decision constituted an abuse of discretion. See State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008) (trial court abuses discretion when decision guided by erroneous legal conclusions).
E. Admission of Prior Inconsistent Statements under KS. A. 60-420 and KS.A. 60-422
One of the most important areas of the law of evidence relates to impeaching witnesses. “To impeach a witness means to call into question the veracity of the witness by means of evidence offered for that purpose, or by showing that the witness is unworthy of belief.” State v. Barnes, 164 Kan. 424, 426, 190 P.2d 193 (1948). Moreover, one of the most effective means of attacking the credibility of witnesses is by proving that the witnesses on a previous occasion have made statements inconsistent with their present testimony.
Here, Stinson maintains that Harris’ previous statements in his preliminary hearing testimony and in his written statement to police would be admissible as prior inconsistent statements.
In at least one of the instances where he was attempting to introduce Harris’ previous statements to refresh Harris’ recollection, Stinson also requested to introduce them as prior inconsistent statements. Further, the trial court treated all of Stinson’s three attempts to introduce Harris’ previous statements as if he was trying to introduce prior inconsistent statements for impeachment purposes. Nevertheless, the trial court determined that because Harris had not denied making his previous statements but had only been unable to recall making them, Stinson could not introduce the statements for impeachment purposes.
The trial court’s determination is not in accord with the statutory and case law regarding the admissibility of prior inconsistent statements to impeach a witness who testifies at trial.
K.S.A. 60-420 states the general rule for admissibility of impeachment evidence:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
Both K.S.A. 60-421 and K.S.A. 60-422 limit the admissibility of evidence affecting credibility under K.S.A. 60-420. Specifically, K.S.A. 60-421 limits the admissibility of evidence pertaining to the defendant’s conviction of a crime. K.S.A. 60-422 further limits the admissibility of evidence, including prior inconsistent statements, as follows:
“As affecting the credibility of a witness (a) in examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the witness; (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement; (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
None of the limitations under K.S.A. 60-421 or K.S.A. 60-422 would apply to the circumstances present in this case. Harris’ prior statements did not relate to a criminal conviction and, therefore, were not limited by K.S.A. 60-421. Moreover, Harris was on the stand testifying when Stinson attempted to question him about his prior inconsistent statements, which Harris claimed a lack of recollection of the statements. Because Harris had the opportunity to identify, explain, or deny the statements, an adequate foundation was established for introduction of the prior statements under K.S.A. 60-422(a) and (b). See State v. Murrell, 224 Kan. 689, 693, 585 P.2d 1017 (1978); see also State v. Gauger, 200 Kan. 515, 520, 438 P.2d 455 (1968) (If the witness states that he or she does not recall whether he or she made the former statement and has been given an opportunity to identify, explain, or deny the statement, the foundation is sufficient.).
When Stinson attempted to question Harris about his previous inconsistent statements, the trial court improperly excluded such statements on the basis that Harris did not recall making them. Such a rule is contradictory to statutory and case law. Our Supreme Court has stated that “[w]here an impeaching statement is written, and the witness, although admitting that he gave a statement, cannot remember the contents thereof or denies the same, the statement itself or at least the impeaching portion thereof should be admitted into evidence.” State v. Schlicher, 230 Kan. 482, Syl. ¶ 4, 639 P.2d 467 (1982). See State v. Ward, 31 Kan. App. 2d 284, 291-92, 64 P.3d 972, rev. denied 276 Kan. 974 (2003) (If a witness denies an impeaching fact, or does not recall it, then extrinsic evidence is to be utilized for impeachment.); Barbara, Kansas Law and Practice, Lawyers Guide to Kansas Evidence § 3.1, p. 63. A witness may also be impeached with prior sworn testimony. See State v. Worth, 217 Kan. 393, 395, 537 P.2d 191 (1975), cert. denied 423 U.S. 1057 (1976).
Moreover, within the discretion of the court, a cross-examiner may inquire into collateral matters when the inquiry is not barred by any specific rule. State v. Nix, 215 Kan. 880, 884, 529 P.2d 147 (1974) (allowed inquiry regarding admission of witness to a mental health clinic). In addition, there must be a showing of abuse of discretion or prejudice to the appealing party before reversal is justified. 215 Kan. at 884; see also State v. Nixon, 223 Kan. 788, 792-94, 576 P.2d 691 (1978) (The court held it was error to preclude the defendant from presenting evidence on a collateral matter in an attempt to show that the prosecuting witness had been untruthful in her testimony.).
Because a defendant in a criminal case has a right to confront the State’s witnesses under the Sixth Amendment to the United States Constitution, the defendant must be given an effective opportunity to cross-examine those witnesses. See United States v. Owens, 484 U.S. 554, 559, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988); see also Delaware v. Fensterer, 474 U.S. 15, 20-22, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985) (The Confrontation Clause, which guarantees an opportunity for effective cross-examination, does not guarantee “that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose” the witness’ bad memoiy and other facts tending to discredit the witness’ testimony.).
Here, the trial court’s decision to exclude Harris’ prior inconsistent statements was an abuse of discretion. Moreover, the trial court’s actions prejudiced Stinson when it precluded him from pointing out the inconsistencies, attempted to be elicited and/or proffered during cross-examination, between Harris’ trial testimony and his previous sworn testimony and his written statement. For example, it was extremely important for the defense to show what room Harris and Titus were in when the alleged incident occurred. Stinson wanted to point out that Harris had previously testified that Titus was in another bedroom when the incident occurred. Yet, during the trial, Harris testified that Titus was in the bedroom with him when the incident started.
Indeed, this was important because Titus testified during the trial that he was in the same bedroom with Harris. Moreover, Titus testified that he saw Stinson scuffling with Harris. He further testified that he saw Stinson strike Harris. Nevertheless, if Titus was in a closet in another bedroom when the incident occurred, it would have been extremely unlikely that Titus saw Stinson scuffling with Harris as Titus testified to at trial. As a result, when the trial court precluded Stinson from attacking Harris with his previous mentioned inconsistencies and from pointing out the conflicts between the testimony of Harris and Titus, it destroyed the effectiveness of defense counsel’s cross-examination of Harris. “[W]hen the defense is given a full and fair opportunity to probe and expose” a prior inconsistent statement, it can be the turning point in a trial; it has the potential to blow a case apart. See Fensterer, 474 U.S. at 19-22. Here, the jury may have become bored by what seemed as several inept attempts by defense counsel to impeach Harris by showing that he, on previous occasions, had made statements inconsistent with his present trial testimony.
Because the trial court’s decision went outside the framework of the proper legal standards, the trial court abused its discretion in excluding Harris’ prior inconsistent statements. See Moore, 287 Kan. at 135 (trial court abuses discretion when decision guided by erroneous legal conclusions),
II. Proffer of Excluded Evidence
Stinson further argues that the trial court committed reversible error when it repeatedly refused to allow defense counsel to make a proffer of evidence of Harris’ prior inconsistent statements.
The proponent of excluded evidence has the responsibility of proffering sufficient evidence to the trial court in order to preserve the issue for appeal. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). Under K.S.A. 60-405, a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge or indicated the substance of the expected evidence by questions indicating the desired answers.
Where a trial court rules that evidence is inadmissible, it is error for the trial court to refuse a proffer of that testimony into the record. See State v. Hodges, 241 Kan. 183, Syl. ¶¶ 3-4, 734 P.2d 1161 (1987). This is because the failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion. See Evans, 275 Kan. at 100.
Here, in at least two of the previous instances where Stinson attempted to examine Harris regarding his prior inconsistent statements, the trial court did not allow Stinson to complete his proffer of the statements. Clearly, the trial court should have allowed Stinson’s attorney to complete his proffer of the excluded evidence. Nevertheless, based on Stinson’s attorney’s questions to Harris before the trial court stopped Harris’ cross-examination and Stinson’s attorney’s dialogue with the trial court, Stinson was still able to get into the record the substance of the excluded evidence. Moreover, the preHminary hearing transcript has been included in the record on appeal, and this court can review the prior inconsistent statements by Harris. As a result, appellate review is not precluded, and the trial court’s error in refusing to allow Stinson’s attorney to complete his proffers of Harris’ prior inconsistent statements does not constitute prejudicial error.
III. Harmless Error
Because the record demonstrates that the trial court erroneously excluded Stinson from introducing Harris’ prior inconsistent statements, this court’s analysis now turns to whether this error entitles Stinson to a new trial.
When an appellate court concludes that a trial court erroneously admitted or excluded evidence at trial, the appellate court must then determine whether the error was harmless, that is, whether the evidence admitted or excluded had any likelihood of changing the results at trial. State v. Boggs, 287 Kan. 298, 318-19, 197 P.3d 441 (2008); see K.S.A. 60-261. To determine whether trial errors are harmless or prejudicial, each case must be scrutinized in the Hght of the record as a whole, and reversal is required only where an erroneous admission or exclusion of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice. State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006).
The State maintains that any error by the trial court with regard to the three instances at issue was harmless and does not provide a sufficient basis for the grant of a new trial. Moreover, as the State points out, the trial transcript contains several instances in which Stinson was able to demonstrate inconsistencies in Harris’ trial testimony and his prior statements. On the other hand, Stinson maintains that because credibility was the key in this case, the court’s ruhngs preventing him from attacking his accuser’s credibiHty had a profoundly damaging effect on his case and constituted reversible error.
As Stinson correctly points out, the key to this case reHed on the credibiHty of Harris. If the jury beHeved Harris’ story, it would have to find Stinson guilty of the charged offenses of aggravated battery and aggravated robbery against Harris. Harris’ prior inconsistent statements, which would have allowed Stinson to test Harris’ credibility, were relevant and extremely important to the jury’s ultimate question as to whether Harris’ story should be believed.
The jury’s questions to the court during deliberations indicate that some of the jury members had doubts as to Harris’ credibility. Specifically, the jury first asked the trial court whether Stinson’s presence at Harris’ home with the other two men, “no matter in the end who was responsible,” made him also responsible under Kansas law. Next, the jury asked the trial court the following question:
“Desiring a yes or no answer. The law is what is being used as a basis for the decision and our current understanding of it will determine one way or the other. Does the law state, yes or no, that being in the same place as a crime, no matter your involvement makes [the defendant responsible for] the crime?”
Later, during deliberations, the jury posed the following questions to the trial court: “Can we be hung on two and settled on one? Or does it have to be decided on all counts? Is the jury hung if we don’t decide all three counts unanimous?”
The jury’s questions to the court demonstrate an apparent reluctance by at least one of the jury members to convict Stinson of two of the charged offenses. There is no way to know if the defense had been given a full and fair opportunity to probe and expose the prior inconsistent statements previously discussed whether this might have affected the ultimate outcome in his trial. If the trial court had allowed defense counsel to test Harris’ credibility with the previously mentioned prior inconsistent statements, especially Harris’ testimony concerning Titus’ location during the incident, this might have been enough to tip the balance and create reasonable doubt that Stinson had committed the crimes in question.
As a result, we are unable to conclude that the prior inconsistent statements complained of in this appeal did not affect the outcome of the trial or deny Stinson substantial justice. Therefore, we find that it was prejudicial to Stinson for the trial court to exclude Stinson’s prior inconsistent statements which put Harris’ credibility in doubt and which should have been admitted under K.S.A. 60-420. For this reason, we reverse and remand this matter for a new trial. Because we have granted a new trial, it is unnecessary to address Stinson’s ineffective assistance of counsel claims.
Reversed and remanded for a new trial. | [
-80,
-19,
-87,
-66,
25,
-95,
-114,
52,
33,
-77,
-9,
83,
127,
-34,
69,
115,
-7,
109,
93,
99,
-36,
-89,
7,
-31,
-10,
-109,
64,
87,
-73,
79,
122,
-65,
12,
112,
-62,
117,
102,
72,
-9,
-44,
-118,
-112,
-88,
98,
-37,
-109,
36,
42,
20,
7,
49,
-100,
-94,
46,
-112,
-53,
73,
40,
-49,
40,
64,
-103,
-115,
7,
109,
4,
-94,
55,
-97,
7,
120,
60,
20,
56,
0,
-88,
115,
-106,
-126,
116,
107,
-103,
44,
102,
114,
0,
-55,
111,
-68,
-87,
55,
78,
-105,
-90,
-38,
33,
77,
108,
23,
-33,
101,
20,
63,
-4,
100,
93,
29,
108,
3,
-2,
-112,
-79,
13,
48,
-122,
-77,
-29,
3,
84,
112,
-50,
-30,
92,
55,
120,
-37,
-114,
84
] |
Greene, J.:
The mother of three minor children appeals the district court’s termination of her parental rights. She argues the court erred in its application of a presumption of unfitness under K.S.A. 2009 Supp. 38-2271(a)(5), and she challenges the sufficiency of the evidence to support the court’s findings. We agree with her and reverse the judgment terminating her parental rights.
Factual and Procedural Background
Mother’s three children, ages 8,13, and 16, were removed from her home in February 2008 based on truancy of the children and homelessness issues faced by mother. Until her parental rights were terminated by the district court in September 2009, mother had a mixed history of some compliance and some neglect of the conditions imposed for reintegration of her family. Compliance was undoubtedly affected by mother’s diagnosed bipolar disorder. Among the conditions imposed on mother for reintegration of the children with mother were maintaining employment, maintaining stable housing, submitting to UA’s, taking medications as prescribed, attending individual and family therapy sessions, and otherwise cooperating with community services’ personnel assigned to her case.
Social worker and mother’s case manager Jenny Sutton testified that “things were looking pretty good” for reintegration as of November or December 2008. Mother lost her job in December, however, and the situation began to erode. On one occasion on New Year’s Eve, mother left the children with the 16-year-old son and other adults and “left the house”; it was disputed whether she went “to the bars” or elsewhere, and mother testified her absence was no more than 45 minutes. By spring 2009, the case manager came to believe that reintegration of the children was no longer viable. She cited noncompliance with the conditions of reintegration, stating that mother had “not made progress” and “it had been a year and the court was making a decision” about reintegration.
The final case management report filed by social worker Angela Hernandez indicated that as of July 2,2009, mother was employed, had housing in Plains, had her back rent worked out, had no alleged drug use, had found free medications for a year and was taking them as prescribed, but had not attended therapy sessions because no therapist had been assigned. When this social worker was asked if there were setbacks or other negatives beyond these positive aspects of mother’s progress, she stated, “I’m unable to say that.”
Leslie Bissell, the clinical director of Southwest Guidance Center and the primary therapist for mother, testified as follows:
“Q: . . . [H]ave we just given up on her completely and saying, she’ll never be a good mom?
“A: I believe that [mother] has it within her to become a good parent. Is she able to do that at this moment in time, based upon when I saw her earlier in September [2009], I don’t believe she’s at that point now.
“Q: Okay. Do you think she could get there with your help?
“A: In time, yes.
“Q: Any idea how much time?
“A: If [mother] was to continue with therapy and she was compliant with all the recommendations, I would be a lot more comfortable with it in six months.”
The relationship between mother and children does not appear to have deteriorated in any way. Sutton testified that the visitations “have gone well.” The therapist testified that mother “wants to be with her children and she wants the best for her children,” and on cross-examination, the therapist stated that mother would not intentionally cause physical harm or emotional abuse to the children.
In June 2009, the State filed a motion to terminate mother’s parental rights. The district court conducted an evidentiaiy hearing in which the testimony referenced above was provided to the court. At the close of evidence, the guardian ad litem opposed the termination of mother’s parental rights, stating in material part:
“Well, your honor, [as] the guardian ad litem, I’m supposed to look out for the children’s legal rights and also make recommendations to the Court in the children’s best interests. I’ve talked to the children today. I’ve been here at these proceedings and asked questions and listened to testimony. And my recommendations are that the children be put back in the home immediately. That SRS can continue supervision and even have custody, but make it a placement in the home. She has a home. It’s not an ideal home, but I mean it is a home and that she and the children want to be able to enjoy together. She has an educational plan for the children that is eminendy more workable than what we’ve got now. . . .
“She may not have the best type of job in the world, but she is making an effort and she still wants to better herself to get education. . . .
“But the main thing is, the children want to be with their mama. They miss her. They miss being toith her and they want to get back with her.” (Emphasis added.)
The district court took the matter under advisement and later issued its journal entry concluding that mother s parental rights should be terminated. Among the findings of fact were these:
“The issue of terminating the natural mother’s parental rights is a tough one. She has been attempting to comply with the Orders, but only in an on-again, off-again manner. There is no consistency on her part, whether she is taking her medication or not, whether she chooses to be employed or not. Right now she claims employment as a home caretaker for an individual in Plains, Kansas at the low-income housing apartments she lives at. During the pendency of this action, there have been no severe drug or alcohol issues. Her U.A.s for drugs have been negative, but the evidence reflects she is still consuming alcohol even when the children are with her.
“. . . [T]he Court makes the specific finding she is unfit to be a parent and not able to care for the ongoing physical, mental, and emotional needs of the child as follows:
“a. Reasonable efforts by SRS and SFA have been expended for the benefit of the natural mother and her minor children and notwithstanding those offers and plans, the opportunity to rehabilitate the natural mother has failed;
“b. There has been a lack of effort, and in some ways no effort, by the natural mother to adjust her parental circumstances, conduct, and conditions to meet the day-to-day needs of her minor children;
“c. The natural mother, given the fact the minor children have been living out of her home for more than one year, has failed to cany out a reasonable plan approved by the Court directed towards reintegration of the children into her home and the opportunity to do so is not foreseeable.
“d. The presumption under K.S.A. 2009 Supp. 38-2271(a)(5) applies and the mother has faded to rebut the presumption.”
Mother timely appeals.
Standards of Review
Before parental rights will be terminated, the State must provide clear and convincing evidence that a parent is unfit because of conduct or condition rendering the parent unable to care properly for a child and that the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2009 Supp. 38-2269(a). The court must also consider whether termination of parental rights is in the best interests of the child. K.S.A. 2009 Supp. 38-2269(g)(l). Clear and convincing evidence is “an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt.” In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008).
Our standard of review of an order terminating parental rights is to determine whether, after review of all the evidence, viewed in the light most favorable to the State, the court is convinced that a rational factfinder could have found the determination to be highly probable. See In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4; In re Adoption of Baby Boy M., 40 Kan. App. 2d 551, 559, 193 P.3d 520 (2008).
When an appeal frames an issue of construction and application of a statute, we have unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Did the District Court Err in Its Application of the Presumption of Unfitness Under K.S.A. 2009 Supp. 38-2271(a)(5)P
Among her arguments on appeal, mother contends that the district court erred in its application of the presumption of unfitness under K.S.A. 2009 Supp. 38-2271(a)(5). She argues (1) that the State failed to plead or suggest that the presumption would apply, with resulting due process implications; (2) that the court’s failure to consider K.S.A. 60-414 in applying the presumption was reversible error, citing In re J.S., 42 Kan. App. 2d 113, 119, 208 P.3d 802, rev. denied 289 Kan. 1278 (2009); and (3) that there was insufficient evidence to support the application of the presumption. We agree with mother on all three counts, but we reverse due to the insufficiency of evidence to support the district court’s judgment.
K.S.A. 2009 Supp. 38-2271 sets forth a number of presumptions of unfitness, including:
“(a) It is presumed in the manner provided in K.S.A. 60-414, and amendments thereto, that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:
(5) the child has been in an out-of-home placement, under court order for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home.”
“(b) The bürden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall terminate parental rights in [termination] proceedings pursuant to K.S.A. 2009 Supp. 38-2266 et seq.”
Due Process Violation?
Mother contends she had no notice that the State would argue to apply the presumption, had no opportunity to address and rebut its application, and was prejudiced by its application to terminate her parental rights. She contends the first and only mention of the presumption was in the State’s response to mother’s motion for directed verdict and that the lack of evidence to support the presumption created no reason for her rebuttal of same. Moreover, she contends the first mention of the presumption by the court was in its journal entry following trial. The State does not dispute these facts but argues that no notice was required, an opportunity to rebut was present after the directed verdict motion, and independent grounds support the termination in any event.
We are unable to discern from the record the precise facts surrounding the assertion of the presumption, but this much is clear: (1) None of the State’s pleadings present in the record on appeal reflect an assertion that the presumption should apply; (2) the State has not disputed on appeal mother’s account of the lack of notice that the presumption would be applied; (3) although it appears a final pretrial conference was conducted, no final pretrial order was filed, in contravention of Supreme Court Rule 140(e) (2009 Kan. Ct. R. Annot. 223); (4) the State waived its opening statement, so there was no indication that the presumption would be asserted at the hearing; (5) the only mention of the presumption in the transcript of hearing is a statement by the State in response to a motion for directed verdict that “in this case, we believe that K.S.A. 38-2271 applies”; (6) no suggestion of the applicability of the presumption was mentioned by either party in closing arguments; (7) in closing argument, mother’s counsel acknowledged the magistrate previously found that reintegration was not viable because the children were 1 year into out-of-home placement; and (8) the first mention of the presumption by the court was in the journal entry of judgment, where it appears to be the exclusive basis for termination of mother’s parental rights.
We are troubled by the application of a presumption of unfitness against mother in the court’s journal entry where there has been no more than a brief hint of its applicability in an oral response of the State to a motion for directed verdict. It is beyond question that the presumptions set forth in K.S.A. 2009 Supp. 38-2271 must be applied in a manner that comports with procedural due process. See, e.g., In re J.L., 20 Kan. App. 2d 665, 668-82, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995) (K.S.A. 1994 Supp. 38-1585 presumption was unconstitutional as applied).
This is not the first time we have addressed the need for pretrial notice of the assertion of a statutory presumption in a termination of parental rights proceeding. In In re D.R.R., 25 Kan. App. 2d 561, 965 P.2d 861 (1998), a panel of our court considered whether the lack of a final pretrial order noting the assertion of such a presumption was reversible error. The panel decided that it was not, but its reasoning was based on the fact that, despite the lack of a pretrial order, the district court “exercised great care in orally explaining and applying the statutory presumption of unfitness in the manner prescribed by this court in In re J.L., 20 Kan. App. 2d 665, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995).” 25 Kan. App. 2d at 564. In this case, we cannot ascertain whether such care was taken in any pretrial conference to make mother aware that the State would assert the presumption against her because the pretrial conference questionnaires and transcript have not been made part of the record on appeal and no pretrial conference order was filed by the court.
In any event, we are unable to reverse on this issue because we are not convinced that mother was truly surprised by the assertion of the presumption. First, it appears that the magistrate’s prior decision on reintegration was based on the fact that out-of-home placement had extended beyond 1 year, thus providing some in dication to mother or her counsel that the presumption would again be asserted in the termination hearing. Second, although counsel suggests that there was no pretrial reference to the presumption, the pretrial questionnaires have not been made part of the record, and we are unable to confirm whether there was any contention or issue stated as to the assertion of the presumption. Third, when the presumption was referenced by the State in response to the motion for directed verdict, mother s counsel failed to object, indicate surprise, or seek a continuance to prepare testimony in rebuttal of the presumption. Finally, the admission at the beginning of counsel’s closing argument indicates to this court that counsel was well aware of the problem presented by the presumption, but he took no direct action to rebut the presumption or to preserve mother’s due process argument at that time. Under these circumstances, we must reject mother’s due process argument on appeal. See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008) (appellant has burden to designate a record sufficient to establish the claim of error); Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007) (issues not raised before trial court cannot be raised on appeal).
Nevertheless, we emphasize that in proceedings of this nature, it is critical that the parent against whom a statutory presumption will be asserted have adequate notice of the assertion so that rebuttal evidence can be presented to the court. The better practice is for the court to conduct a pretrial conference and file a final pretrial order that clearly and unequivocally provides notice that a statutory presumption will be asserted against the parent.
Absence ofKS.A. 60-414(a) or (b) Determination
As argued by mother here, failure to consider K.S.A. 60-414 prior to applying a presumption of unfitness is a constitutional violation. In re J.S., 42 Kan. App. 2d at 119. Prior to application of such a presumption, the trial court must first determine whether subsection (a) or (b) of K.S.A. 60-414 is applicable. If it is determined that subsection (b) applies, any evidence which would support a finding of fitness, including the uncorroborated testimony of a parent, will result in the disappearance of the presumption of unfitness, and the burden of proving unfitness would once again be upon the State. In re J.L., 20 Kan. App. 2d at 681.
K.S.A. 60-414(a) and (b) provide:
“Effect of presumptions. Subject to K.S.A. 60-416, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (a) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the nonexistence of the presumed fact is upon the party against who the presumption operates; (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.”
Reversal on this basis is not required where the parent fails to raise the issue before the district court. For the same reasons that we are unable to reverse based upon mother’s due process argument, we are unable to reverse based on the failure of the district court to make the 60-414(a) or (b) determination. Consistent with authority from other panels of our court, however, we stress that the failure to make the determination is error, and the only reason that it is not reversible in this case is the failure of mother to raise the issue in district court. See In re J.S., 42 Kan. App. 2d at 119.
We note that had the statutory determination been made here, the proper subsection was K.S.A. 60-414(b) because the facts from which the K.S.A. 2009 Supp. 38-2271(a)(5) presumption arose had litde if any probative value as evidence of the presumed fact. The testimony reflects that the out-of-home placement in excess of 1 year was not due to indifference of mother but rather to a joint decision of the mother and therapist that more time was needed for reintegration. Where such mitigating circumstances are shown, the determination of the proper K.S.A. 60-414 subsection is critical; notice to mother may have provoked this critical rebuttal, and application of subsection (b) may have resulted in the complete dissipation of the presumption.
Was the Judgment of Termination Supported by Sufficient Evidence?
The State argues that even if the presumption of unfitness under K.S.A. 2009 Supp. 38-2271 cannot be asserted and the K.S.A. 60-414(a) or (b) determination was not made, “there was ample evidence to support a finding of unfitness based on the statutory factors listed in K.S.A. 2009 Supp. 38-2269.” In contrast, mother contends that the evidence was insufficient to support the judgment under either K.S.A. 2009 Supp. 38-2269 or K.S.A. 2009 Supp. 38-2271. We agree with mother.
At the outset, we note that the district court apparently relied exclusively on the presumption under K.S.A. 2009 Supp. 38-2271(a)(5). The journal entry contains no explicit finding that mother’s unfitness is unlikely to change in the foreseeable future; in fact, the only mention of any such unlikelihood is the finding in connection with 38-2271 stating that mother failed to carry out a reasonable plan towards reintegration “and the opportunity to do so is not foreseeable.” We are uncertain whether this finding can or should be interpreted to mean that mother’s unfitness was unlikely to change. It would appear that the finding is directed toward the opportunity to reintegrate the family: Does it mean she will have no opportunity because the presumption applies, thus terminating any such opportunity; does it mean that she will have no opportunity because the relevant agencies and social workers have given up on her; or does it mean that she will have no opportunity because of some obstacle unrelated to her purported unfitness? Obviously, the choice of words here was unfortunate, and we must conclude the finding is inadequate for both K.S.A. 2009 Supp. 38-2269(a) and K.S.A. 2009 Supp. 38-2271(b).
We have consistently held the better practice dictates that the district court expressly reflect in its journal entry of judgment that all statutory findings were made and that the proper standard of proof was employed in making these findings. See In re B.E.Y., 40 Kan. App. 2d 842, 844, 196 P.3d 439 (2008); In re M.B., No. 103,054, unpublished opinion filed March 5, 2010.
Clear and Convincing Evidence that Condition or Conduct of Unfitness Unlikely to Change in Foreseeable Future?
Absent from the State’s brief is any review of record evidence supporting the crucial element that mother’s unfitness “is unlikely to change in the foreseeable future” under K.S.A. 2009 Supp. 38-2269(a). Scouring the transcript of the hearing, we find limited testimony on this issue. First, social worker Hernandez testified that she was unable to say there were setbacks or “anything different than all of these positives” as of the filing of the State’s motion to terminate. Second, social worker and case manager Sutton testified that in the spring of 2009 she was of the belief that “reintegration was no longer viable,” but she was not asked whether she continued to have this belief at the time of the termination hearing in late September. Mother’s therapist testified— as quoted above — that mother “has it in her to become a good parent” and that she could “get there” in 6 months. Mother’s testimony indicates that as of the termination hearing, there had been substantial progress toward all conditions of reintegration.
“Q. . . . Has your life-style changed?
“A. Yes.
“Q. The latest report from SRS says that you have not attended family therapy due to Southwest Guidance Center not assigning a therapist?
“A. Yes.
“Q. Had you, at any time, refused to go to family therapy?
“A. No.
“Q. So it was your understanding that you were just waiting on someone to get you lined up?
“A. Yes.
“Q. As of July of ‘09, it says you were taking your medication. Are you still taking your medication?
“A. Yes.
“Q. It says that you’re employed with Sheldon Farms, and that was just harvest work?
“A. Yes.
“Q. And you’re now employed by someone else?
“A. Yes. That could still become an option, because com harvest just started also.
“Q. It says you’re maintaining housing in Plains, which we talked about, for more than a year. I’m reading this progress report and it says you’ve either met or are meeting each of the goals in your original case plan. Has anyone told you what else you’re supposed to be doing?
“A. No, just about finding employment, is all that I’ve heard for quite awhile now.
“Q. Okay.”
Finally, we note that there was no professional testimony that mother’s condition of unfitness was unlikely to change in the foreseeable future. Based upon all this evidence, viewed in the light most favorable to the State, we are simply not convinced that it was highly probable based on clear and convincing evidence that mother’s condition or conduct of unfitness was unlikely to change in the foreseeable future.
Adequate Consideration and Findings as to the Best Interests of Children
Even if we were to accept the district court’s findings as to mother’s unfitness, however, the court abused'its discretion when it failed to consider whether the termination was in the best interests of the children under K.S.A. 2009 Supp. 38-2269(g)(l), and this omission alone is sufficient to reverse the judgment of termination. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009); In re J.I.C.-L., No. 103,247, unpublished Court of Appeals opinion filed April 2, 2010, slip op. at 4. When the court applies one of the presumptions under K.S.A. 2009 Supp. 38-2271, this alone does not warrant termination. The statute is clear that when a presumption is asserted and the parent does not adequately rebut the presumption, “the court shall terminate parental rights in proceedings pursuant to K.S.A. 2009 Supp. 38-2266 et seq., and amendments thereto.” In proceedings pursuant to K.S.A. 2009 Supp. 38-2266 et seq., the factors to be considered are set forth in K.S.A. 2009 Supp. 38-2269, and subsection (g)(1) provides:
“If the court makes 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. In making this determination, the court shall give primary consideration to the physical, mental and emotional health of the child. If the physical, mental or emotional needs of the child would best be served by termination of parental rights, the court shall so order.” '
It would appear from the journal entry that the district court was aware of the need to consider the best interests of the children, but its findings are short of the statutory requirement. The court held in this regard:
“22. The Court is faced with the daunting task of what is in the best interest of the children, the needs for permanency in their lives, the need to know where they are at, what is going to happen, and what to expect.
“23. The mother testified about having plans to do several things but her past actions reflect an inability to carry through with her day-to-day obligations for the benefit and best interests of [the children].”
These findings fall short of the statutory requirement, which dictates that the court consider “whether termination of parental rights as requested in the petition or motion is in the best interests of the children].” K.S.A. 2009 Supp. 38-2269(g)(l). We understand the district court to find that mother was unable to carry through with some of her obligations for the best interests of the children, but the task before the district court was to determine whether termination of \parental rights was in the best interests of the children. In other words, many parents may be unable to carry through with obligations that are in the best interests of their children, but this does not mean that termination of their parental rights would be in the best interests of their children.
The statutory requirement directs the court to give primary consideration to the physical, mental, and emotional health of the children. In so doing, the court must weigh the benefits of permanency for the children without the presence of their parent against the continued presence of the parent and the attendant issues created for the children’s lives. In making such a determination, we believe the court must consider the nature and strength of the relationships between children and parent and the trauma that may be caused to the children by termination, weighing these considerations against a further delay in permanency for the children. This is of particular concern here, given the clear position of the guardian ad litem, who vigorously advocated against termination and for immediate reintegration. On this basis alone, a reversal of the district court’s judgment of termination is required.
We recognize that mother may not be the best model of motherhood, but this case is devoid of many factors present in other cases of this nature. There are no allegations of abuse, no allega tions of addiction, no allegation of filthy living conditions, no allegations of a dangerous relationship with a boyfriend, and no allegations of lack of interest in the children. Instead, mother’s apparent relationship with the children led to a strong plea from the guardian ad litem to reunite the family. Although children are entitled to permanency in child time, see In re D.T., 30 Kan. App. 2d 1172, 1175, 56 P.3d 840 (2002) , there is no fixed deadline of 1 year for reintegration, as suggested by some of the witnesses here. The totality of these circumstances convinces us that the best interests of these children — “who want to be with mama” — were not served by a termination of mother’s parental rights.
Summary and Conclusion
In summary, these proceedings were flawed by the assertion of a statutory presumption without little if any notice to mother, by the failure of the court to make a K.S.A. 60-414(a) or (b) determination before applying a K.S.A. 2009 Supp. 38-2271 presumption, and by the failure of the district court to consider the best interests of the children under K.S.A. 2009 Supp. 38-2269(g)(l). Additionally, the State failed to establish by clear and convincing evidence that any unfitness of mother was unlikely to change in the foreseeable future as required by both K.S.A. 2009 Supp. 38-2269(a) and K.S.A. 2009 Supp. 38-2271(b). Based upon the insufficiency of the evidence, we reverse the judgment of termination of mother’s parental rights.
We do not remand for further proceedings on the State’s motion to terminate parental rights, but we are cognizant of the ongoing duties of the appropriate agencies and the district court to continue their respective authority and jurisdiction to monitor mother’s progress and the children’s placement. Obviously, the net result of our opinion is that mother may get the 6 months suggested by her therapist to show that she is capable of fully addressing the conditions for reintegration and achieving the goal of family reintegration. Needless to say, this will probably be her final chance. If she cannot achieve the progress necessary, perhaps the parties should explore permanent guardianship.
Reversed. | [
-112,
-8,
-35,
110,
26,
97,
42,
94,
82,
-101,
-25,
119,
-17,
-53,
85,
105,
64,
103,
80,
105,
-45,
-77,
87,
9,
86,
-13,
-80,
-44,
-77,
127,
-28,
84,
78,
80,
-118,
69,
66,
-62,
-41,
-48,
-120,
23,
-120,
-23,
89,
-126,
40,
99,
-110,
6,
113,
78,
-77,
44,
56,
-50,
-120,
38,
95,
-67,
92,
-72,
-103,
5,
107,
68,
-93,
68,
-66,
-89,
112,
55,
-120,
56,
0,
-24,
50,
52,
-110,
101,
95,
-101,
-123,
103,
98,
-95,
12,
-26,
-40,
-120,
-50,
22,
-115,
-126,
-104,
48,
3,
4,
-75,
-7,
108,
20,
47,
124,
-10,
-123,
111,
-20,
-56,
-50,
94,
-127,
-116,
-79,
8,
-85,
-25,
97,
49,
113,
-37,
-32,
84,
-61,
114,
-103,
-18,
-70
] |
Caplinger, J.:
Miguel Barajas appeals from the sentences imposed following his convictions of aggravated robbery and attempted aggravated robbery. He claims the district court erred in classifying his California conviction for driving under the influence (DUI) causing bodily injury, Cal. Vehicle Code § 23153(b) (West 2000), as a person felony based on a determination that it was comparable to the Kansas offense of aggravated battery, K.S.A. 21-3414.
Factual and Procedural Background .
We conclude that while Barajas’ California’s offense of DUI causing bodily injury and Kansas’ offense of aggravated battery similarly require bodily injury to another person, the offenses do not cover similar types of conduct and are not comparable offenses. California’s offense of DUI causing bodily injury is unlike Kansas’ aggravated battery statute because it includes a very specific causation requirement not required to establish aggravated battery, i.e., that Are defendant drive while legally intoxicated and concurrently neglect to perform a duty required by law, which failure results in injury to another person. Further, Kansas’ aggravated battery statute is unlike California’s offense of DUI causing bodily injury because it requires reckless or intentional conduct, while California’s offense requires only general negligence.
Because the district court erred in finding the two crimes comparable and in classifying Barajas’ California conviction as a person felony, we vacate Barajas’ sentences and remand to the district court for resentencing.
Barajas was charged with one count of aggravated robbery in violation of K.S.A. 21-3427, a severity level 3 person felony, in case No. 07CR2397, and with one count of attempted aggravated robbery in violation of K.S.A. 21-3247 and K.S.A. 21-3301, a severity level 5 person felony, in case No. 07CR2415. The two cases, which were based on two separate carjacking incidents occurring the same day, were consolidated on the State’s moAon.
Barajas pleaded guilty in both cases pursuant to plea agreements with the State. Prior to sentencing, Barajas filed three written objections to his criminal history worksheet, challenging (1) the clas sification of his California conviction for DUI causing bodily injuiy as a person felony, (2) the validity of his California conviction, and (3) the use of his conviction in case No. 07CR2397 as a prior conviction for sentencing in case No. 07CR2415.
The district court conducted several hearings on Barajas’ objections. As a result of those hearings, the court sustained Barajas’ objection to the use of his conviction in case No. 07CR2397 as a prior conviction for sentencing in case No. 07CR2415, noting that the cases had been consolidated. Further, based on its finding that the California conviction was a valid conviction obtained against Barajas, the district court included the DUI conviction in Barajas’ criminal history. Finally, the court determined the California crime of DUI causing bodily injury was comparable to the Kansas crime of aggravated battery and classified the California conviction as a person felony.
Pursuant to the plea agreements, the court granted a durational departure and imposed a sentence of 69 months’ imprisonment for the aggravated robbery and a concurrent sentence of 50 months’ imprisonment for the attempted aggravated robbery.
The District Court Erred In Classifying Barajas’ Out-Of-State Conviction As A Person Felony
In this appeal of his sentence, Barajas claims the district court erred in classifying his California DUI conviction as a person felony because Kansas has no offense comparable to the California offense of which he was convicted, DUI causing bodily injury. Specifically, Barajas argues that while Kansas’ aggravated battery statute proscribes causing bodily injury, it is not comparable to the California offense because it is not as specific regarding causation and because it requires reckless or intentional conduct. Barajas also argues that Kansas’ DUI statute is not comparable because it contains no provision requiring bodily injury. Finally, Barajas points out that Kansas’ vehicular homicide statute is unlike California’s crime of DUI causing bodily injury because the vehicular homicide statute requires that driver cause injury resulting in death.
The State contends the district court properly classified the prior conviction as a person felony because the California crime of DUI causing bodily injury and the Kansas crimes of battery and reckless aggravated battery are similar in that they seek to protect “innocent people from harm that results from dangerous behavior.” Further, the State suggests the statutes cover similar conduct because the “Kansas battery statutes have been used to punish drunk drivers who cause injury to others while intoxicated.”
As a preliminary matter, because the district court granted a downward durational departure and imposed a sentence in accordance with the plea agreements, we would normally lack jurisdiction to review Barajas’ sentencing appeal. See K.S.A. 21-4721(c)(2). However, because Barajas is challenging the district court’s classification of a prior conviction for criminal history purposes, we have appellate jurisdiction. See K.S.A. 21-4721(e)(3).
The determination of an offender’s criminal history is governed by provisions of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. See K.S.A. 21-4710; K.S.A. 21-4711. Whether a district court has correctly interpreted and applied the provisions of tire KSGA is a question of law subject to de novo review. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
The classification of out-of-state convictions for criminal history purposes is governed by K.S.A. 21-4711(e), which provides in relevant part:
“Out-of-state convictions and juvenile adjudications will be used in classifying the offender’s criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.”
Thus, to determine whether the district court properly classified Barajas’ California conviction of DUI causing bodily injury as a person felony, we must determine whether Kansas has an offense comparable to his California offense.
Although it is unclear from the record, both parties agree that Barajas’ DUI conviction is based bn a violation of Cal. Vehicle Code § 23153(b), which provides in relevant part:
“(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” Cal. Veh. Code § 23153(b) (West 2000).
Because Cal. Vehicle Code § 23153(b) proscribes conduct that results in bodily injury to a person other than the driver, the district court’s classification of Barajas’ DUI conviction as a person felony seems logical. See State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied, 256 Kan. 996 (1994) (citing the 1994 Kansas Sentencing Guidelines, Desk Reference Manual, p.14, and stating “[designation of a crime as person or nonperson depends upon the nature of the offense. Crimes which inflict, or could inflict, physical or emotional harm to another are generally designated as person crimes. Crimes which inflict, or could inflict, damage to property are generally designated as nonperson crimes”).
However, the plain language of K.S.A. 21-4711(e) requires the sentencing court to consider whether Kansas has an offense comparable to the out-of-state crime when determining whether an out-of-state conviction should be classified as a person felony. See State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003); State v. Hernandez, 24 Kan. App. 2d 285, 287, 944 P.2d 188, rev. denied 263 Kan. 888 (1997). A comparable offense need not contain elements identical to those of the out-of-state crime, Vandervort, 276 Kan. at 179, but must be similar in nature and cover a similar type of criminal conduct. State v. Schultz, 22 Kan. App. 2d 60, 62, 911 P.2d 1119 (1996). If Kansas has no comparable offense, the sentencing court must classify the out-of-state conviction as a nonperson felony. K.S.A. 21-4711(e).
Comparison of Out-of-State Conviction to Kansas Crime of Aggravated Battery
Here, the district court found California’s felony of DUI causing bodily injury comparable to the Kansas crime of aggravated battery. Aggravated battery is defined in K.S.A. 21-3414 as any of the following:
“(1)(A) Intentionally causing great bodily harm-to another person or disfigurement of another person; or
“(B) 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; or
“(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
“(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
“(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
To determine whether the district court correctly concluded that aggravated battery is a comparable offense, i. e., whether it is similar in nature and covers similar conduct as Cal. Vehicle Code § 23153(b), we must compare the elements of each statute, keeping in mind that the elements need not be identical. See, e.g., Vandervort, 276 Kan. at 178-79 (comparing Virginia and Kansas statutes); Schultz, 22 Kan. App. 2d at 62-63 (comparing elements of Kansas and Missouri burglary statutes); State v. LaGrange, 21 Kan. App. 2d 477, 481-82, 901 P.2d 44, rev. denied 258 Kan. 861 (1995) (comparing elements of Colorado assault conviction to elements of K.S.A. 21-3412).
In California, the elements of felony DUI are (1) driving a vehicle while having a blood alcohol level of .08 or above, (2) concurrently committing some act which violates the law or neglecting to perform a duty required by law, and (3) as a proximate result of such violation of law or failure to perform a duty, causing injury to another person. People v. Weems, 54 Cal. App. 4th 854, 858, 62 Cal. Rptr. 2d 903(1997); Cal. Veh. Code § 23153(b). To establish the second element, the State must present evidence of an unlawful act or neglect of duty beyond the act of driving with a blood alcohol level of .08 or above; however, the unlawful act or omission “ ‘need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendant’s ordinary negligence. [Citations omitted.]’ ” Weems, 54 Cal. App. 4th at 858.
In Kansas, the elements of aggravated battery vary depending on the level of harm to the victim and the level of intent of the defendant. For example, to establish reckless aggravated battery the State must prove the defendant (1) recklessly, (2) caused great bodily harm or disfigurement to another person. K.S.A. 21-3414(a)(2)(A). Or, the State must prove the defendant (1) recklessly, (2) caused bodily harm to another person, (3) with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death could be inflicted. K.S.A. 21-3414(a)(2)(B). “Reckless conduct” is defined as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21-3201(c). The terms “gross negligence,” “wanton negligence,” and “culpable negligence” are also included in the definition of reckless conduct. K.S.A. 21-3201(c).
The California crime of DUI causing bodily injury and the Kansas crime of aggravated battery are dissimilar in nature. The California crime is included in Chapter 12, Article 2 of the Vehicle Code along with other traffic offenses involving alcohol and drugs. See Cal. Vehicle Code § 23152 et seq. Essentially, a conviction in California of DUI causing bodily injury to another under § 23153(b) elevates a misdemeanor DUI to a felony DUI. Weems, 54 Cal. App. 4th at 858. Thus, the nature of the crime is to combat drunk driving and to impose harsher punishment on drunk drivers who harm others. In contrast, the crime of aggravated battery in Kansas is found in Chapter 21, Article 34 of Criminal Code along with other crimes against persons. See K.S.A. 21-3401 etseq. Thus, the nature of the crime is to combat crimes against persons, in general, and to punish those who harm others through reckless or intentional acts.
Additionally, the offenses do not cover similar types of criminal conduct. As Barajas points out, unlike K.S.A. 21-3412 or K.S.A. 21-3414, Cal. Vehicle Code § 23153(b) does not require proof of reckless or intentional conduct. Instead, the elements of felony DUI are satisfied if the State presents evidence of a specific blood alcohol level, evidence of ordinary negligence, and evidence that the defendant’s negligence proximately caused injury to a person other than the driver. Weems, 54 Cal. App. 4th at 858; Cal. Veh. Code § 23153(b).
In contrast, K.S.A. 21-3412 (misdemeanor battery) and K.S.A. 21-3414 (aggravated batteiy) both proscribe reckless or intentional conduct that results in physical contact, bodily harm, or great bodily harm. Although reckless conduct includes “gross negligence,” “wanton negligence,” and “culpable negligence,” it requires something more than ordinary negligence. Further, Kansas’ batteiy statutes do not specifically require that the harm result from driving a vehicle while under the influence of alcohol or driving with a specific blood alcohol level.
Nevertheless, as the State points out, Kansas’ aggravated battery statute has been applied to factual situations in which an intoxicated driver causes bodily harm to another. See, e.g., State v. Huser, 265 Kan. 228, 232, 959 P.2d 908 (1998); State v. Lafoe, 24 Kan. App. 2d 662, 663, 953 P.2d 681, rev. denied 263 Kan. 889 (1997).
In Huser, the defendant struck two pedestrians while driving under the influence. Huser, 265 Kan. at 229. In affirming the trial court’s dismissal of two counts of reckless aggravated batteiy, the Huser court explained that the State failed to present evidence of an essential element of reckless aggravated battery, i.e., reckless conduct. 265 Kan. at 232-37. Even though Huser did not involve classification of an out-of-state conviction, the court’s reasoning provides guidance in the case before us.
The State argued in Huser that following the 1993 repeal of Kansas’ vehicular batteiy statute, K.S.A. 21-3405b, and simultaneous amendments to the Kansas batteiy statutes, drunk drivers who caused bodily injury could be convicted of reckless aggravated batteiy absent a showing of any reckless conduct beyond driving under the influence. Huser, 265 Kan. at 235-37. In rejecting the State’s argument, the Huser court explained:
“When the vehicular batteiy statute was in effect, it punished a defendant for unintentionally causing bodily harm to another while driving under the influence, or driving recklessly, or eluding an officer. It treated each of these types of driving as a different method to prove vehicular batteiy. It did not equate driving under the influence with reckless driving.
"When the vehicular battery statute was repealed, the legislature enacted the misdemeanor battery statute and the aggravated battery statute to include reckless acts, not just intentional acts. Thus, unintentionally causing bodily harm, to another by driving a car recklessly is now punishable under the aggravated battery statute. However, this statute continues to use the term recldess in the same manner in which it has been used previously — a realization of imminent danger to another person and a conscious and unjustifiable disregard of that danger. K.S.A. 21-3201(c). As such, driving under the influence of alcohol does not equal driving recklessly, without additional evidence of recldess conduct. It can be argued that merely driving under the influence of alcohol amounts to reckless behavior because one should realize the imminent danger that driving in an impaired condition places another person in. However, in [State v.] Mourning, [233 Kan. 678, 664 P.2d 857 (1983)] this court specifically rejected that argument. . . .
“When the legislature repealed the vehicular battery statute in 1993, it knew that reckless driving did not equate to DUI because the Mourning case had been decided in 1983. Thus, the legislature knew that if it repealed a criminal statute which punished a defendant who caused bodily injury to a victim while driving under the influence of alcohol, this criminal act would not be covered by a statute which punishes recklessness without independent evidence that the drunk driver also drove recklessly.” (Emphasis added.) Huser, 265 Kan. at 236-37.
Thus, as the court explained in Huser, a drunk driver who unintentionally causes bodily harm or great bodily harm can be charged with aggravated battery under K.S.A. 21-3414. However, the State is required to establish evidence of reckless conduct beyond simply driving under the influence of alcohol. Huser, 265 Kan. at 236-37. See also State v. Robinson, 267 Kan. 734, 739, 987 P.2d 1052 (1999) (noting that “[w]hile driving drunk cannot alone stand as probable cause of recklessness, it may, among other factors, be evidence of reckless behavior”); Lafoe, 24 Kan. App. 2d at 663-67 (affirming reckless aggravated battery convictions where defendant worked a double shift, consumed several beers before driving home, crossed the centerline, collided with another car injuring both occupants, and had a blood alcohol level of .172).
Simply stated, the only conduct proscribed by both Kansas’ battery statutes and Cal. Vehicle Code § 23153(b) is causing harm to another person. K.S.A. 21-3412 and K.S.A. 21-3414 require that the harm result from reckless or intentional conduct. In contrast, Cal. Vehicle Code § 23153(b) requires that the harm result from driving with a blood alcohol level of .08 or above and an act or omission that constitutes ordinary negligence. Thus, the two crimes do not proscribe similar types of conduct.
In conclusion, we hold that while Cal. Vehicle Code § 23153(b) and K.S.A. 21-3412 and 21-3414 all contain provisions regarding bodily injury, the offenses are not similar in nature and do not cover similar types of conduct. The single similar element required by both the crimes, i.e., causing bodily injury to another, is insufficient to make them comparable offenses. Thus, the district court erred in finding Barajas’ California offense was comparable to the offense of aggravated battery in Kansas.
Comparison to Other Kansas Offenses
Nor is California's offense of DUI causing bodily injury comparable to any other Kansas offense. As Barajas points out, although Kansas statutes proscribing DUI prohibit operating or attempting to operate a vehicle with a blood alcohol level of .08 or above, see, e.g., K.S.A. 2008 Supp. 8-1567, they are not comparable to Cal. Vehicle Code § 23153(b) because they contain no provision requiring an intoxicated driver to cause bodily injury. Instead, a misdemeanor DUI in Kansas is elevated to a nonperson felony DUI when a drunk driver receives his or her third or subsequent conviction. K.S.A. 2008 Supp. 8-1567(f) and (g).
Finally, Kansas’ vehicular homicide statute, K.S.A. 21-3405, also is not comparable to Cal. Vehicle Code § 23153(b). While K.S.A. 21-3405 proscribes a similar type of conduct as California's offense of DUI causing bodily injury, i.e., operating a vehicle in a matter that deviates from a reasonable standard of care — K.S.A. 21-3405 is distinct in that it requires an unintentional killing.
Because Barajas’ California conviction is not comparable to any Kansas offense, the district court erred in classifying his prior out-of-state conviction as a person felony. As a result of this error, Barajas’ criminal history score was classified as D rather than G.
Accordingly, we vacate Barajas’ sentences and remand for re-sentencing with a corrected criminal history score of G.
The Sentence Imposed Did Not Violate Defendant’s Constitutional Rights
Finally, Barajas claims the district court violated his due process rights as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his criminal history score to calculate his sentences without requiring the State to prove the facts of his prior convictions beyond a reasonable doubt. Barajas acknowledges that his claim was rejected in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), but argues that more recent United States Supreme Court decisions have called Ivory into doubt.
We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Our Supreme Court has repeatedly reaffirmed its holding in Ivory, even in fight of the more recent United States Supreme Court decisions cited by Barajas. See, e.g., State v. McReynolds, 288 Kan. 318, 332, 202 P.3d 658 (2009); State v. Brinklow, 288 Kan. 39, 54-55, 200 P.3d 1225 (2009). Accordingly, Barajas’ second claim fails.
Sentences vacated and remanded for resentencing. | [
-48,
-22,
-39,
126,
59,
97,
43,
20,
115,
-41,
-12,
-105,
-21,
-55,
5,
41,
-47,
101,
117,
121,
-75,
-89,
79,
-63,
-2,
115,
-95,
87,
59,
75,
111,
-76,
13,
-16,
-62,
117,
6,
10,
101,
-36,
-116,
5,
-7,
-40,
-109,
3,
-76,
106,
23,
14,
33,
-82,
-45,
10,
26,
-50,
41,
104,
10,
-83,
-127,
-7,
-55,
21,
72,
18,
-95,
36,
-35,
33,
-44,
56,
-104,
-79,
56,
-8,
114,
-90,
2,
-76,
109,
-125,
-59,
102,
38,
32,
61,
-123,
-4,
-87,
47,
106,
-97,
5,
-112,
88,
73,
8,
-105,
-97,
30,
6,
12,
-8,
-11,
92,
23,
76,
-106,
-49,
-76,
-111,
-51,
116,
78,
121,
-49,
103,
-79,
1,
-50,
-26,
84,
-75,
16,
-101,
90,
-42
] |
The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a judgment of a district court in a workmen’s compensation case awarding compensation to Bert L. Gillig for 10% loss of use of his right leg plus medical expenses incurred by reason of a torn medial cartilage in his right knee.
It was stipulated by and between the parties: (1) That claimant Gillig met with personal injury on January 25, 1973; (2) that claimant’s accidental injury arose out of and in the course of his employment with Cities Service Gas Company; (3) that claimant gave proper notice; (4) that the relationship of employer and employee existed; (5) that the parties are covered by the Kansas Workmen’s Compensation Act; and (6) that respondent is a self- insured. The amount of claimant’s average weekly wage and the amounts paid by respondent for medical and hospital expenses in 1973 were further stipulated.
The injury was received in January, 1973, while claimant was engaged in carrying pipe. Claimant was first treated by a Dr. Christensen and fluid was drained from claimant’s knee. He was then referred to an orthopedic surgeon, Dr. H. O. Marsh, who examined the injured knee and released claimant for regular duty. Claimant returned to work five days after his injury and respondent paid the medical and hospital expenses incurred in making the examination and treating the injury.
Claimant resumed his normal duties and continued to work for respondent until August, 1973, at which time he resigned and left the respondent’s employment. Since that time claimant has engaged in farming and ranching.
In March, 1975, claimant twisted his right knee while stepping from a tractor and experienced some pain. This was not an unusual occurrence. Later that same evening while sitting in a chair he shifted his position to glance at someone on television and the knee locked on him. He was taken to Dr. H. O. Marsh and underwent surgery for repair of the knee and removal of the medial cartilage.
The claimant testified that when Dr. Marsh examined his knee in 1973 the doctor said he did not think the knee cartilage was torn and if it was torn he did not think it was bad enough to warrant surgery. From that time until the "knee locked in 1975 claimant continued to experience pain and a grinding sensation in his right knee. He further testified to the extent of his disability after the surgery was performed in 1975.
Dr. Marsh testified concerning his examination of the claimant in 1973, and stated that he thought he failed to make a proper diagnosis on the tearing of the cartilage. He further testified that once a knee cartilage is torn it will not heal because the cartilage has no blood supply and no way of healing. As to the examination and surgery performed on claimant in 1975, Dr. Marsh stated he found considerable effusion in the knee and that the range of motion was from 20 to 90 degrees. Claimant could not at that time straighten his knee. Dr. Marsh made a diagnosis of torn medial cartilage, performed the surgery, repaired the knee and removed the cartilage. He testified as to the cause and extent of claimant’s present disability as follows:
“As a result of the injury and operation suffered by Mr. Gillig, I am of the opinion that he would have suffered a maximum of 10 percent loss of use to the leg. I’m also of the opinion that, based upon the history given to me by Mr. Gillig in March of 1975 that his knee was never right following a 1973 injury, that the injury of 1973 was the injury that necessitated this surgery in 1975.”
Dr. Roy E. Camp, another orthopedic surgeon, testified that he had examined claimant after the surgery was performed in 1975. He testified as follows:
“. . . I took X-rays of Mr. Gillig’s knee and found that they were within normal limits. I felt that Mr. Gillig had, for one, surgical absence of the medial knee cartilage, and two, that he had an old injury to the medial knee ligament which resulted in some looseness or instability, an old injury to the anterior cruciate ligament resulting in some instability and the combination of the above three problems led to the mild rotatory instability that he had. I would rate Mr. Gillig as having a 20 percent partial penhanent disability in regard to loss of use of the right lower extremity.
“ . . . [I]t is based upon a judgment as to how well he can perform hard manual labor, not'necessarily farming. Irrespective of what occupation Mr. Gillig is employed in, I would still rate him at 20 percent loss of use and that is based upon his ability to perform manual labor if he were ever called upon to perform that.
“. . . I base my opinion that Mr. Gillig’s surgery was the result of the injury he sustained in 1973 and not from an injury he sustained in 1975 due to the fact that after the 1975 occurrence he had no swelling of the knee joint. ... I must conclude that his injury and resulting surgery were the result of the 1973 incident.”
The respondent-appellant contends that claimant did not suffer a compensable injury in 1973 because he was not off work for at least a week as required by K.S.A. 44-501 (a). We have held otherwise.
A workman who suffers an injury actually resulting in permanent partial disability may maintain a claim for such disability even though he returns to work within the week after said injury regardless of the one-week provision contained in K.S.A. 44-501 (a). The case of Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, 207 P. 2d 1179, supports this holding. It contains a thorough discussion and analysis of the statute and the purpose of this particular provision. The discussion need not be repeated here. See also Shepherd v. Gas Service Co., 186 Kan. 699, 703, 352 P. 2d 48, where the rule in Alexander was later approved.
Appellant next contends that the surgery and resulting disability were caused by claimant’s subsequent farming activities which constituted an intervening cause of the disability and that the disability suffered was not the direct and natural consequence of the 1973 injury.
When a primary injury under the Workmen’s Compensation Act arises out of and in the course of employment every natural consequence that flows from the injury is compensable if it is a direct and natural result of the primary injury. (Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 541, 548 P. 2d 746; Jackson v. Stevens Well Service, 208 Kan. 637, Syl. 1, 493 P. 2d 264.)
The district court found:
. . . [Bjased upon the medical testimony in this case, that the original injury suffered by claimant on January 25, 1973 and which is admitted by the respondent, was ultimately responsible for the surgery to claimant’s knee and the present disability to claimant’s leg. The uncontroverted medical testimony ties together the original injury with the re-injury or aggravation of the original knee injury and the resulting need for surgery.”
There was evidence in the record sufficient to support such a finding.
Appellant’s final contention is that claimant’s disability was the result of a new or second injury occurring in non-covered employment. The district court found otherwise and our examination of the evidence indicates that the court’s finding is supported by substantial competent evidence. The scope of this court’s appellate review in workmen’s compensation cases was stated and applied in Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 262, 505 P. 2d 697. The fact that the trial court arrived at an opposite conclusion in Stockman in a somewhat similar situation does not change the limitation upon appellate review. When the trial court’s factual findings are supported by substantial evidence, as in the present case, they must be accepted by the appellate court.
The matters raised by respondent on appeal are largely questions of fact. The testimony of the two doctors supports the findings of the trial court and the findings of the court support the claimant’s award.
The judgment is affirmed. | [
-48,
104,
-39,
-99,
11,
98,
42,
-118,
25,
-75,
37,
83,
-27,
-101,
5,
125,
-29,
61,
-44,
42,
-9,
-77,
83,
-21,
-110,
51,
59,
-59,
-71,
107,
-12,
84,
79,
48,
2,
-108,
-26,
-128,
68,
28,
-50,
-124,
11,
-23,
89,
0,
56,
46,
16,
75,
49,
-98,
106,
42,
24,
-57,
44,
44,
91,
40,
-112,
-8,
-62,
13,
127,
19,
-93,
4,
-100,
39,
88,
10,
-104,
48,
72,
-24,
82,
-74,
-62,
-11,
35,
-71,
4,
98,
103,
50,
53,
-20,
104,
-72,
15,
-34,
-99,
-123,
-109,
56,
50,
11,
-98,
-99,
114,
4,
6,
124,
-11,
29,
15,
37,
2,
-118,
-80,
-77,
-113,
96,
-98,
-118,
-1,
-89,
-74,
113,
-36,
-94,
92,
69,
122,
23,
-85,
-70
] |
The opinion of the court was delivered by
Fromme, J.:
Kenny D. Hamilton appeals from jury convictions of burglary (K.S.A. 21-3715), felony theft (K.S.A. 21-3701), and misdemeanor criminal damage to property (K.S.A. 21-3720). The sufficiency of the evidence to support these convictions is not questioned on appeal so a short summary of the evidence should suffice.
At approximately 1:40 a.m. on July 31, 1975, Sgt. Claycomb of the Topeka Police Department was on routine patrol in North Topeka. He observed a person inside the Torrence Animal Clinic and radioed for a back-up unit. On investigation no one was found inside the clinic but a window had been broken. The Dowd Service Station, located a short distance from the clinic, had also been burglarized. Two windows of the station had been broken. Numerous articles were missing from the service station including a small calculator and a glass jar containing $15.00 to $20.00 in coins. Two vending machines had been pried open and the machine money-boxes were missing. It was determined that $85.00 in small coins was missing from these machines. The fruits of these crimes were later recovered.
An officer using a police dog searched the area and defendant was discovered in a field behind the animal clinic at 2:00 a.m. The defendant was found lying face down in weeds a foot high at a point 75 feet from the clinic. He was sweating and had $26.60 in small change in his pockets. The defendant initially refused to identify himself to the police officers but when informed that it was necessary to have his name so the police could notify someone of his whereabouts defendant then gave his name. He refused to make any further statement. Defendant was taken to the police station and charged. A trial followed which ended in these convictions. This appeal was then filed.
Defendant-appellant has abandoned the first point raised on appeal in which he claimed the trial court erred in overruling his motion to suppress evidence of his fingerprints found on broken glass at the animal clinic. The point was not briefed and abandonment of the point was announced on oral argument before this court.
We are concerned with the one remaining point which relates to certain comments by the prosecutor in closing argument regarding the initial refusal of appellant to give his name.
At the trial Sgt. Claycomb was cross-examined as to appellant’s •statements, if any, at the time he was discovered lying face down in a field some 75 feet from the animal clinic. The questions by appellant’s counsel and the answers by the officer were as follows:
“Q. Did you take any statements from him or question him at all at that time?
“A. No, sir. I asked him his name. He wouldn’t give it to me, and I didn’t question him any further.
“Q. All right, was he questioned by any officer while in your presence?
“A. Not to my knowledge other than to try to find out who he was.”
Officer Brown, who was at the scene, searched the appellant. He testified that appellant initially refused to identify himself but that he did give his name when advised it was necessary in order for the police to be able to inform someone of appellant’s whereabouts.
The prosecutor commented on the testimony of the two officers in his closing argument. The comments of the prosecutor to the jury were:
“We’re asking you to use your common sense. That’s what the jury system is all about. That’s why it works. You get twelve people together, they use a little bit of common sense, and they come up with good decisions. We hope you do it in this case; and we submit a good decision, a just decision is guilty. Spurious logic — Is it spurious logic to think that a person would be laying out there; be arrested; and refuse to give his name, wouldn’t give his name — Is it spurious logic to base a finding of guilty? Now, here’s a man out here in a field 2:00 o’clock in the morning, short distance away from the crime, wouldn’t give his name— (interrupted).”
The appellant argues that the appellant’s initial refusal to give his name was used by the prosecutor to infer a tacit admission of guilt and that the prosecutor’s summation included impermissible comment on appellant’s exercise of the constitutional right to remain silent as held in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and State v. Mims, 220 Kan. 726, 556 P. 2d 387.
The prosecution counters this argument by pointing out the testimony which formed the basis for the prosecutor’s comments was elicited by the defense on cross-examination. It contends that a prosecutor may argue all reasonable inferences which arise from evidence elicited by the defendant’s counsel.
Preliminarily it should be noted that the officer’s inquiry and the appellant’s initial refusal to identify himself by name occurred during an on-the-scene investigation. In State v. Phippen, 207 Kan. 224, 229, 485 P. 2d 336, the difference in treatment of evidence which may arise from such an investigation and from a custodial interrogation was distinctly recognized on the authority of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974.
It should also be noted that K.S.A. 22-2402, commonly referred to as the stop and frisk statute, authorizes a law enforcement officer, without making an arrest, to stop any person whom he reasonably suspects has committed a crime and “demand of him his name”. This would include a person, such as the appellant, found at the scene of the crime lying face down in weeds a foot high, in a field 75 feet from the rear of a building which had been recently broken into. The justification and limitations applicable to the authority expressed in this statute are set forth in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The officer had a perfect right to demand of appellant his name. Neither the officer’s inquiry nor the officer’s statement that appellant refused to identify himself by name violated the privilege against self-incrimination.
It was pointed out in Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, that the privilege against self-incrimination protects an accused from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature bearing on proof of the commission of the crime. To require a person found at the scene of a recent crime to identify himself by name and address cannot be considered as providing the state with evidence of a testimonial or communicative nature bearing on proof of the commission of the crime. Therefore, we see nothing wrong in the testimony of the two officers.
However the comments of the prosecutor during closing argument constitute a different matter. In a rather circuitous fashion the prosecutor argued that the refusal of appellant to give his name could be used by the jury as a basis for finding appellant guilty. We are of the opinion that these comments were improper in that they were designed to mislead the jury as to the inference it might draw from appellant’s refusal to identify himself by name. In State v. Dearman, 198 Kan. 44, 422 P. 2d 573, cert. den. 396 U.S. 895, 24 L. Ed. 2d 173, 90 S. Ct. 194, under somewhat different facts, it was held reversible error to permit a jury to draw an inference of guilt from the accused’s reliance upon his constitutional right to silence. In State v. Heath, 222 Kan. 50, 563 P.2d 418, it was held constitutionally impermissible for a state prose cutor to question a defendant and comment in closing argument on his post-arrest silence after receiving the Miranda warning. See also Doyle v. Ohio, supra.
However, the violations of the defendants’ rights to remain silent in Dearman, Heath and Doyle were flagrant. Both the impermissible testimony and the prosecutors’ comments thereon related to post-arrest silence after defendants had received the Miranda warning and had been taken into custody under formal charges. Here the comments of the prosecutor related to the circumstances surrounding the initial discovery of the defendant at or near the scene of a recent crime. Any comment on defendant’s appearance, demeanor and location when discovered in the field was proper. The sole impropriety in the closing argument was the urging of an inference of guilt based upon the defendant’s exercise of his constitutional right to silence.
Misconduct of counsel does not necessarily require a new trial unless it appears to have been so prejudicial as to deprive defendant of a fair trial. (State v. Thompson, 221 Kan. 176, 183, 558 P. 2d 93; State v. Murrell, 215 Kan. 10, 523 P. 2d 348.) Considering the overwhelming evidence of appellant’s guilt in this case we do not believe the misconduct of the prosecutor was so prejudicial as to deprive defendant-appellant of a fair trial. In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. (State v. Thompson, supra.) Where the evidence of guilt is of such direct and overwhelming nature that it can be said the misconduct of counsel could not have affected the result of the trial, such misconduct is harmless error. (State v. Thompson, supra; State v. Mims, supra.)
Under the facts of the present case where testimony by police officers is elicited by defense counsel to the effect that defendant initially refused to identify himself by name at the scene of the crime, comment thereon by the prosecutor during his closing argument is not such misconduct as to require a reversal of defendant’s conviction. There seems little, if any, likelihood that such comment could have changed the result of the trial, and such belief is declared beyond a reasonable doubt by this court in accordance with the requirement of Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. den. 386 U.S. 987, 18 L. Ed. 2d 241, 87 S. Ct. 1283.
The judgment is affirmed. | [
-80,
-28,
-3,
-99,
58,
96,
58,
12,
67,
-95,
54,
115,
101,
-61,
5,
107,
-62,
-3,
84,
97,
-51,
-73,
107,
-31,
-122,
-13,
-37,
-59,
-73,
79,
-12,
-44,
9,
48,
-118,
-43,
38,
64,
-57,
-44,
-114,
5,
-119,
-47,
112,
0,
-84,
57,
-66,
10,
49,
28,
-29,
42,
24,
66,
105,
40,
91,
45,
-48,
-7,
-85,
5,
-66,
20,
-93,
-92,
-97,
1,
-8,
63,
-100,
49,
0,
-24,
113,
-90,
-126,
116,
109,
-117,
12,
102,
98,
33,
24,
-17,
100,
-123,
46,
123,
-97,
-89,
-104,
73,
99,
5,
-106,
-99,
115,
18,
39,
-4,
-13,
-36,
85,
108,
-121,
-34,
-112,
-109,
73,
48,
-106,
-8,
-5,
37,
48,
113,
-51,
-30,
92,
21,
114,
-101,
-114,
-44
] |
The opinion of the court was delivered by
Kaul, J.:
This litigation stems from probate proceedings in the estate of Esme Cellars, deceased, in the probate court of Labette County. The issue presented is whether a gift made by the deceased in her lifetime to appellees took the place of and adeemed by satisfaction a bequest to appellees contained in the Last Will and Testament of deceased.
For convenience the appellants will sometimes be referred to as Baker and the appellees as Pittsburg.
Esme Cellars and her brother, S. R. Cellars, neither of whom was married, lived together for many years at Chetopa in Labette County. On December 18, 1965, each made and executed a will prepared by their attorney, John F. Amos, of Oswego. The wills were reciprocal in that each left all of his or her property to the other if the other survived, and in case the other did not survive the testator or testatrix, then each devised the same farm to their cousin George Tullís, each bequeathed the sum of $20,000.00 to Pittsburg for the establishment of a scholarship fund, and each devised and bequeathed the residue of their respective estates to Baker.
S. R. Cellars, sometimes referred to as Roscoe by the witnesses, died on March 15, 1971, predeceasing Esme. Since their property was held jointly Roscoe’s will was not probated. Sometime after Roscoe’s death Esme advised her attorney, Mr. Amos, that she had decided to convey the farm to her cousin, George Tullís. The farm in question was devised to Mr. Tullís in item (a) of the third paragraph of each of the two wills. At the same time she also advised Mr. Amos that she desired to establish a scholarship fund at Pittsburg during her lifetime as she and her brother Roscoe had expressed in their wills. As directed by Esme, Mr. Amos prepared a deed for conveyance of the farm to George Tullís and made inquiry about the procedure for establishing a scholarship fund at Pittsburg. The deed to George Tullís was executed by Esme on February 3, 1972, completing the gift of the farm. Mr. Amos testified that in connection with the scholarship fund, Esme stated that she desired to establish the fund in the amount of $40,000.00 to carry out the plan expressed in her will and the will of her brother. After correspondence with Clifford E. Beougher, business manager of Pittsburg, and secretary-treasurer of the Endowment Association of the College, Mr. Amos prepared a document for the establishment of a scholarship fund at Pitts-burg, which was approved by the Endowment Association, and at presentation ceremonies held at her home on September 13, 1972, the scholarship document was executed by Esme and the president of the Endowment Association.
Four months after the presentation ceremonies, Esme died on January 5, 1973. In due course her 1965 will was admitted to probate and in the course of the proceedings George Tullís, executor, filed a petition for instructions alleging the facts concerning the gift to Pittsburg and asking the court to determine whether the $20,000.00 bequest should be paid to Pittsburg.
Pittsburg filed an answer to the executor’s petition for instructions alleging in substance that the $20,000.00 will bequest and the $40,000.00 inter vivos gift to the Endowment Association were two separate and distinct funds and moved the court to dismiss the petition for instructions and to order the executor to forthwith comply with the will.
Baker also filed an answer alleging in pertinent part:
“(8) Baker University alleges-that the intent of Esme Cellars in making the inter vivos gift of Forty Thousand ($40,000.00) Dollars to Pittsburg College on September 13, 1972, was to establish the same memorial scholarship fund which subparagraph (b) of Item Third of her Will intended to create and that it was her intent that such lifetime gift was to take the place of and to adeem by satisfaction said testamentary bequest.”
Baker moved the court to hear the evidence as to the facts and the intent of Esme and for an order determining that the bequest to Pittsburg in Esme’s will had been adeemed by satisfaction, and, therefore, is null and void and that the executor be instructed to proceed accordingly.
After hearing extensive evidence the probate court made comprehensive findings and concluded that the evidence clearly showed it was decedent’s intention and purpose in establishing the scholarship fund at Pittsburg in her lifetime that it should take the place of and carry out the plan which she and her brother had made and expressed in their wills for the establishment of such scholarship fund at Pittsburg; and further, that it was not decedent’s intention that having established such scholarship fund in her lifetime that Pittsburg would receive additionally the $20,000.00 bequeathed for such purpose by her will; and that it was her intent and purpose to execute a new will eliminating the devise to George Tullís and the bequest to Pittsburg and leaving her entire estate to Baker. This last finding was based on testimony of Mr. Amos that at Esme’s direction, following the presentation ceremonies, he prepared a will eliminating the devise and bequest referred to, but that Esme died without executing the new will. The testimony of Mr. Amos concerning this matter will be discussed later in the opinion.
Pittsburg appealed to the district court. After a trial de novo the district court ruled contrary to the decision of the probate court as follows:
“Thereafter, on the 24th day of June, 1974 the Court, after having reviewed the record and authorities and after receiving briefs and written arguments of the parties, finds that the inter vivos gift of Esme Cellars of $40,000.00 to Kansas State College of Pittsburg, Pittsburg, Kansas, was accompanied by a written, clear and unambiguous agreement to be set up in a certain fund and administered in a certain manner. The Court further finds that the record does not substantiate any other purpose than an inter vivos gift of $40,000.00. The Court further finds that said inter vivos gift does not adeem the legacy and bequest in the Will of Esme Cellars of $20,000.00 to the Kansas State College of Pittsburg, Pittsburg, Kansas, and that the Last Will and Testament of Esme Cellars is a Clear expression of her intention and is unambiguous and certain as to the disposition of her property. The Court further finds that the $20,000.00 legacy and bequest set out in said Will was to create a separate and distinct and identifiable fund to be administered in a certain manner.”
Following the district court’s ruling this appeal was perfected.
On appeal Baker claims the erroneous exclusion of evidence in several instances; that the district court failed to recognize and apply principles of law applicable to the issue presented; and further that the district court failed to make factual findings and legal conclusions in compliance with K. S. A. 60-252(a) and Rule No. 116 of this court (214 Kan. xxxvii) [now Rule No. 165 ].
Before discussing applicable principles of law it is necessary to set out the language of the bequest in question and that of the endowment fund inter vivos gift. The bequest to Pittsburg appears as item (b) of the third paragraph of the will which reads:
“(b) I give and bequeath unto the Trustees of the Endowment Association of Kansas State College of Pittsburg, at Pittsburg, Kansas, the sum of $20,000.00, to be used by said trustees to establish the S. R. Cellars and Esme Cellars Fund at said College, to be administered upon the following terms:
“The income from, but not the principal, of, the S. R. Cellars and Esme Cellars Fund shall be used to provide scholarships in such amounts as said trustees may from time to time determine, for worthy and deserving students at said College, leaving to the discretion of said trustees the academic standards and the standards of need to be required of such students to qualify for such scholarships, and said income from said fund, or any part thereof, may be used by said trustees to match funds for Federal scholarships, should Federal funds be available and it be desired by said trustees, provided said matching funds and Federal funds be used for the same purposes, and upon the same terms, as hereinabove provided.
“Said trustees are authorized to invest the S. R. Cellars and Esme Cellars Fund in government obligations, in corporate common and preferred stocks and bonds and/or in such other forms of investment as may be approved by the Trustees of said College.
“In the event that now unforeseen changes of a political, social, economic or educational nature make the use of the fund as provided above no longer practical and desirable, the President of Kansas State College of Pittsburg, and the Trustees of the Endowment Association of said Kansas State College of Pittsburg, are authorized to make such changes in the use of said fund as they may determine advisable, such use, however, to be for the promotion of the welfare of needy individual students at said College.”
The bequest to Baker, which follows in item (c), is written in essentially the same language except that it bequeathed the residue of the deceased’s property.
The document establishing the scholarship fund by an inter vivos gift reads:
“The S. R. and Esme Cellars Scholarship Fund is hereby established in the Endowment Association of Kansas State College of Pittsburg, Kansas, Inc., for the purpose of assisting Kansas State College of Pittsburg students subject to the following express terms and conditions:
“(1) The purpose of this S. R. and Esme Cellars Scholarship Fund is to provide scholarships for needy deserving students at Kansas State College of Pittsburg, Kansas.
“(2) The Endowment Association of Kansas State College of Pittsburg is hereby authorized at the discretion of the Board of Trustees of said Association to maintain, invest, and reinvest said Scholarship Fund in any and every kind of property, real and personal, wheresoever situated, including but not limited to common and preferred stocks, bonds, government obligations, real estate and any and all other kinds of property and forms of investment. Said Scholarship Fund may be merged and commingled for investment purposes with other funds similarly held by the Association.
“(3) The income from, but not the principal of, said Scholarship Fund shall be used to provide scholarships for needy deserving students at Kansas State College of Pittsburg and the amount of such scholarship awards and the recipients thereof shall be determined by an appropriate committee of Kansas State College of Pittsburg.
“(4) In the event that unforeseen changes render the use of the said scholarship Fund no longer practical or desirable, the Board of Trustees of the Endowment Association of Kansas State College of Pittsburg is hereby authorized to make such changes in the use of the principal or income therefrom as said Board of Trustees may deem advisable; provided, however, that the same be used to promote the welfare of needy students at said College.
“(5) To the establishment of said S. R. and Esme Cellars Scholarship Fund and the accomplishment of the purpose of said Fund hereinabove stated, I agree to pay to the Endowment Association of Kansas State College of Pittsburg, Kansas, Inc., the sum of Forty Thousand and No/100 Dollars ($40,000.00), upon the acceptance thereof by said Association, upon the terms and conditions and for the use and purpose hereinabove set out.
“Dated this 13th day of September, 1972.
“Is/ Esme Cellars
“Donor.”
In their brief on appeal appellants first contend the conclusions of the district court were contrary to the applicable law of ademption by satisfaction. Their arguments are made under two headings:
“A. The Doctrine of Ademption by Satisfaction Should Be Recognized Under Kansas Case Law.
“B. The Trial Court Failed to Apply or Understand the Doctrine of Ademption by Satisfaction.”
The general concept of the doctrine of ademption has been recognized and applied in this jurisdiction for many years. (Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026.) However, an examination of our cases dealing with the doctrine reveals no decision in which this court has actually relied upon the specific doctrine of ademption by satisfaction upon which appellants rely herein. Although this is the first appearance of the specific doctrine before this court, it is well-grounded in the common law and has been recognized by many sister jurisdictions. (6 Page on Wills [Bowe-Parker Revision], Ademption, Sec. 54.21, p. 277; Atkinson on Wills [2d Ed.], Satisfaction, Sec. 133, p. 737; 96 C. J. S., Wills, Sec. 1172, p. 985; 80 Am. Jur. 2d, Wills, Sec. 1719, p. 776; 26 A. L. R. 2d, Anno., General Legacy-Ademption by Payment, Sec. 3, p. 18.)
Although the terms “advancements” or “advances”were employed rather than ademption, the analogous equitable principles underlying advancements and ademption by satisfaction were considered in depth in the case of In re Estate of Bush, 155 Kan. 556, 127 P. 2d 455. Bush involved a testate estate wherein the testator, in his lifetime, but subsequent to the making of his will, made gifts which were spoken of as advancements to a son named as a beneficiary in the will. The arguments presented and the conclusion of the court were stated by Mr. Justice Hoch in these words:
“. . . It may be argued that the testator could have changed his will at any time, and that not having done so after making the later advances, it is to be presumed that in the absence of provision indicating otherwise he intends his will to wipe out all advances no matter when made. The argument commands respect. However, we find the argument on the other side more persuasive. The general theory upon which advances made prior to execution of the will are held to be wiped out is largely based upon a presumption that when the testator made his will he had the prior advances in mind and in the light of such advances made such disposition of his property as he desired. It would be stretching this presumption to make it include subsequent advances which he could not then have had in mind. Moreover, if a testator intends that advances which may be made after the will is executed are to be wiped out, what point is there in treating them, when they are subsequently made, as ‘advances’ at all? Why provide that they are to be charged against the recipient’s share, when no such result is to follow? Why are they not made as outright gifts and the result sought by the testator thus simply accomplished? Advances, subsequent to execution of the will, seem to fall more logically into the same class with true ‘advancements’ which obtain in cases of intestacy and are charged against the recipient’s share of the estate. It may be said further that this view is in line with the general doctrine of ademption, the limits and intricacies of which lie beyond any need of examination here. Suffice it to say that the doctrine, as the term has come to be used in modern law, applies to the act of a testator in paying to a legatee, in the lifetime of the testator, a legacy he had previously provided by will, or in satisfying it by giving something of value in its place. Under these circumstances the legacy is said to have been wholly or partially satisfied or adeemed. . . .” (pp. 562-563.) (Emphasis supplied.)
As may be seen the equitable principles underlying ademption by satisfaction were actually employed in Bush, although the term “advancement” was used. While “advancement,” strictly speaking, applies only to intestate estates, the two terms are often used in analogous concepts in discussions of ademption by satisfaction. (See 80 Am. Jur. 2d, Wills, Sec. 1719, pp. 776-777.)
The later case of In re Estate of Snyder, 199 Kan. 487, 430 P. 2d 212, involved ademption by extinction; however, in discussing the general principles involved in the doctrine of ademption we quoted, with approval, language from 6 Page on Wills (BoweParker Revision), Ademption, Sec. 54.1:
“ ‘In modern law the term ademption has two distinct meanings. It is used with reference to the act of the testator in paying to the legatee, in the lifetime of the testator, a legacy which the testator has given to the legatee by will, or in satisfying such legacy by giving, in place thereof, something of value. This is sometimes spoken of as ademption by satisfaction. . . . ’ ” (p. 491.)
If what was said in Bush and Snyder does not constitute a clear recognition of the doctrine of ademption by satisfaction, we do so now. We believe the similarity in the equitable principles underlying both ademption by extinction and satisfaction compels recognition of the latter to avoid inconsistency. The satisfaction doctrine is recognized by a majority of English and American jurisdictions. (See 26 A.L.R. 2d, Anno. p. 9, and Later Case Service and Supplement.)
Appellees present two arguments against the recognition of ademption by satisfaction. First that it had not been recognized in any Kansas case and second that the doctrine of ademption has been abolished by statute.
While, as we have pointed out, the specific terms were not used in Bush, the language of the opinion, in effect, recognized the principles of ademption by satisfaction. In their statutory argument appellees rely on K. S. A. 59-611 which provides:
“Except as provided in K.S.A. 59-610, no will in writing shall be revoked or altered otherwise than by some other will in writing; or by some other writing of the testator declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same by the testator himself or herself by another person in the testator’s presence by his or her direction.”
Appellees point out that prior to 1939 the predecessor of K. S. A. 59-611, G. S. 1935, 22-241, ended with the proviso:
“. . . [B]ut nothing herein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”
It is further pointed out that the 1939 revision omitted this proviso. Thus, appellees argue, this omission evinces a legislative intent to preclude application of the doctrine of ademption by satisfaction. The omission of the proviso is explained by the note following the statute — Judicial Council, 1939:
“Last sentence of G. S. 1935, 22-241, is omitted, as it is believed to be fully covered by 59-610 and the rules of ademption and lapse.” (59-611)
This statement shows that the reason for the omission of the proviso was the addition of 59-611, which deals with the automatic revocation of a will by marriage, birth, adoption or divorce, and that the rules of ademption then in force by way of case law dispensed with any need for statutory provision in that regard.
Appellees’ argument has been rejected by courts as well as text writers. The following appears in 96 C. J. S., Wills, Sec. 1178:
“. . . The doctrine of satisfaction is not abrogated by statutory provisions that a will shall be construed to speak and take effect as of the time of the testator’s death, or that no act subsequent to execution, except revocation, shall prevent the operation of the will with respect to such estate or interest as the testator shall have power to dispose of by will at that time.”(p. 1009.)
In Atkinson on Wills (2d Ed.), Satisfaction, Sec. 133, the author observes:
“... There is no occasion to resort to the theory of revocation in order to justify the doctrine of ademption by satisfaction, and none of the statutory methods of revocation are necessary for satisfaction of a legacy. . . .” (p. 739.)
It is a fundamental rule in this jurisdiction that a will speaks from the date of the testator’s death in the absence of a clear intention to the contrary. (In re State of Snyder, supra; and In re Estate of Zimmerman, 207 Kan. 354, 485 P. 2d 215.) In the case of ademption, the act of extinction or satisfaction is, of course, antecedent to the death of testator. We see no bar, in the language of 59-611, to the application of the doctrine of ademption by satisfaction where it is otherwise shown to be applicable.
In passing, we note that the Uniform Probate Code, which has not been adopted in Kansas, requires a direction in the will or by a collateral document written by the testator or an acknowledgement of satisfaction in writing by the legatee in order that a payment work an ademption (See 1 Uniform Probate Code Practice Manual, Sec. 2-612, pp. 153-154 ).
Authorities on the subject indicate that the intention of the testator at the time of the inter vivos gift is the heart of ademption by satisfaction. (6 Page on Wills [Bowe-Parker Revision], Ademption, Sec. 54.25, p. 282; 96 C. J. S., Wills, Sec. 1178, p. 1009.) The importance of intention, as related to ademption, is made clear in our opinion in the recent case of In re Estate of Graham, 216 Kan. 770, 533 P. 2d 1318. The Graham case dealt with ademption by extinction, the issue being whether a conveyance, by an attorney in fact for an incompetent testator’s specifically devised real property worked an ademption. In the context presented on appeal we were confronted with the choice of applying the identity theory with respect to ademption by extinction or the intention theory. In holding the intention theory to be paramount in such a case, Mr. Justice Prager speaking for the court said:
“ . . . We adopt this rule not only because of the fact that it represents the rule which is followed in the overwhelming majority of the jurisdictions in this country but also because we consider it the better reasoned rule and more in line with our prior decisions which give supreme importance to the intention of a testator in determining how his property should be distributed on his death.”(p. 778.)
We believe the intention of Esme at the time she made the inter vivos gift to Pittsburg is the critical issue at bar. In its decision the trial court emphasized that both the gift document and the decedent’s will are clear and unambiguous. These rulings are irrelevant to the controlling issue of intention. A reading of the court’s decision and its various evidentiary rulings during the course of the trial indicates the court may have viewed the action as one to construe a will or to determine whether either the will or gift document was ambiguous. Neither approach was determinative of the issue here. The fact that both instruments are clear and unambiguous does not proscribe ademption by satisfaction the determination of which is primarily controlled by intention.
The decision of the district court fails to meet the standards of K. S. A. 60-252(a) and Rule No. 165. The court’s decision does not state the controlling facts or the legal principles controlling the decision. We cannot ascertain from the language of its ruling whether the court recognized the doctrine of ademption by satisfaction and found against appellants on the issue of intention or whether it ignored the doctrine and based its ruling on the premise that both instruments were clear and unambiguous. For this reason alone the case must be remanded. In this connection we held the requirements of the statute and rule to be mandatory in the recent case of Mies v. Mies, 217 Kan. 269, 535 P. 2d 432, and further held:
“The findings required by K. S. A. 60-252(a) should be sufficient to resolve the issues, and in addition they should be adequate to advise the parties, as well as the appellate court, of the reasons for the decision and the standards applied by the court which governed its determination and persuaded it to arrive at the decision. (Following, Read v. Estate of Davis, 213 Kan. 128, 515 P. 2d 1096, Syl. par. 2.)
“Where the findings and conclusions of the trial court are inadequate to permit meaningful appellate review, the appellate court has no alternative but to remand the case for new findings and conclusions. (Following, Read v. Estate of Davis, 213 Kan. 128, 515 P. 2d 1096, Syl. par. 3.)” (Syl. 2 and 3.)
In view of a retrial of this matter we deem it appropriate to consider recognized rules applicable to the application of the doctrine in the context of the record presented here. Ordinarily, the burden of proof as to the testator’s intention falls on the party who claims that a payment operates as an ademption of a legacy. (6 Page on Wills [Bowe-Parker Revision], Ademption, Sec. 54.26, p. 282.) A gift will not be treated as satisfaction when an actual intention that it should not so operate is sufficiently made to appear. Conversely, where an actual intention shows, by competent evidence, that a subsequent gift is to satisfy a legacy, such intention will be enforced. (96 C. J. S., Wills, Sec. 1178, p. 1009.) There are recognized presumptions in connection with intention which may arise from the evidence. One of which, and pertinent to this case, is a presumption of ademption where the specific purpose for which the legacy was given is satisfied by the testator himself. (96 C. J. S., Wills, Sec. 1178, p. 1010; 6 Page on Wills [Bowe-Parker Revision], Ademption, Sec. 54.31, p. 290.) However, where a presumption of an intention to adeem arises it is one of fact and not of law and may be rebutted by competent evidence. The question is one for the trier of facts. In the case at bar, the overall purpose (to provide scholarships for worthy or needy and deserving students) is spelled out in both of the instruments in question in almost identical language, although there is some difference in directions as to precisely how the funds are to be handled by the appellees. There is some conflicting testimony on this point that one document set out a scholarship “gift” fund, whereas the other spoke of a scholarship “loan” fund and that there was some difference in the administration of the two funds. On the other hand, Mr. Amps testified that the testatrix did not want or intend any material differences between the two documents. Appellees argue the differences are significant while appellants, on the other hand, contend the identity of purpose in the two instruments is clearly shown. This is a question to be determined by the trial court after hearing the testimony of the witnesses.
We turn next to appellants’ claim of error with respect to the trial court’s rulings on the admission of evidence. Appellants’ first complaint concerns the trial court’s refusal to permit Mr. Amos to testify concerning decedent’s intention in making the inter vivos gift to Pittsburg. In sustaining an objection the court ruled that Mr. Amos “had already testified to this matter.” Our review of the record reveals that this subject had not been explored during the testimony of this witness. Appellants also complain as to the exclusion of the testimony of various witnesses concerning the intention of decedent in making a new will after the presentation of the inter vivos gift and that it contained no provision for George Tullís or Pittsburg. The trial court erred in both instances. The intention of a testator as to whether a gift should satisfy or adeem a legacy may be shown by extrinsic or parol evidence, including evidence of his conduct subsequent to the execution of the will. (96 C. J. S., Wills, Sec. 1178[a], p. 1012.) The rule and the underlying reason therefor is stated in 6 Page on Wills [Bowe-Parker Revision], Ademption, Sec. 54.27, p. 283, in these words:
“In most cases testator’s intention with reference to ademption does not appear upon the face of the will, and, if it does, it relates to the future, and it is possible that testator may change it. Accordingly, it is generally held that extrinsic evidence is admissible to show the intention which testator had when he made the payment in question. This includes parol evidence of testator’s declarations, evidence of the surrounding facts and circumstances from which his intent may be inferred and evidence of testator’s conduct. . . .”
There is some authority that evidence of declarations made long after the inter vivos payment is not admissible for the purpose of showing a testor’s intention in making a gift. (Will of Cramer, 183 Wis. 525, 198 N. W. 386.) However, it should be noted that in Cramer, unlike the instant case, the only evidence sought to be introduced on the question of intent was manifested long after (eighteen months) the inter vivos gift and there were no accompanying or corroborating statements made by the testator contemporaneously with or prior to the gift. On the other hand, what we believe to be the better reasoned authorities allow evidence of such declarations even if made subsequent to the gift, the matter of time merely going to the weight to be accorded such evidence rather than its admissibility. Attempted alterations in the will, although insufficient as such, may be pertinent to show the testator’s intention as to whether the gift is adeemed or satisfied. (96 C. J. S., Wills, Sec. 1178(a), p. 1012; and Matter of Tallman, 131 Misc. 863, 229 N.Y.S. 308.) Testimony that decedent made a new will, omitting the Tullís and Pittsburg bequests, shortly after she made the inter vivos gift is admissible to show her intention at the time of making the gift. The purpose of such testimony was not to revoke or replace the 1965 will. It is generally recognized that the attorney-client privilege does not prohibit an attorney from testifying about the execution of a will. The privilege does not apply to litigation between parties who claim under the client after the death of the client. (8 Wigmore on Evidence [McNaughton Revision, 1961], Sec. 2314, p. 611; Tanner v. Farmer, 243 Or. 431, 414 P. 2d 340; 66 A. L. R. 2d, Anno. p. 1302.)
In the instant case, testimony of facts and declarations going to decedent’s intention in making a new will and in explanation of why it was not executed, as well as testimony as to her intention in making the inter vivos gift, is all relative to the critical issue whether she intended to satisfy the legacy at the time she made the inter vivos gift.
For the foregoing reasons the judgment below is reversed and the cause is remanded with directions to grant a new trial on all issues.
Owsley, J., not participating. | [
-13,
108,
-36,
-116,
10,
96,
42,
24,
80,
-25,
32,
83,
111,
88,
17,
105,
35,
45,
65,
107,
-61,
-73,
31,
-63,
82,
-13,
-14,
-43,
-79,
-51,
52,
-57,
77,
32,
10,
-43,
-30,
-126,
-59,
84,
-114,
78,
9,
-31,
-39,
-110,
52,
99,
22,
12,
97,
14,
-77,
43,
61,
98,
45,
44,
89,
-71,
72,
-72,
-98,
7,
127,
6,
-110,
38,
-112,
-126,
74,
42,
-104,
53,
-128,
-24,
115,
-74,
-122,
116,
11,
-103,
13,
102,
102,
48,
37,
-17,
-72,
8,
14,
118,
29,
-89,
-100,
89,
112,
72,
-75,
-97,
113,
112,
75,
-12,
-28,
23,
31,
-4,
0,
-114,
-42,
-109,
-127,
-68,
-124,
-58,
-21,
-91,
50,
81,
-39,
114,
92,
67,
113,
-101,
-122,
-78
] |
The opinion of the court was delivered by
Prager, J.:
This is an action in quo warranto brought in Shawnee county district court by Curt T. Schneider, as attorney general, to oust the legislative members of the state finance council from the execution of certain statutory powers on various constitutional grounds. The district court granted a writ of quo warranto and defendants appealed. On March 14, 1977, this court entered an order reversing the case and entered judgment in favor of the defendants stating that our decision would be implemented by a formal opinion to be filed when prepared. This formal opinion sets forth our reasons for reversing the district court and entering judgment in favor of the defendants.
This is the third case before this court in the last twenty years challenging the constitutionality of various powers and duties of the state finance council. The first action was State, ex rel., (Anderson) v. Fadely, 180 Kan. 652, 308 P. 2d 537 (1957), in which the attorney general challenged the vesting of the administration of the state emergency fund in the state finance council. No other powers were questioned in that case, and this court upheld the legality of the finance council’s powers regarding the state emergency fund. In the second action, State, ex rel., (Schneider) v. Bennett, 219 Kan. 285, 547 P. 2d 786 (1976), the attorney general attacked a variety of powers vested in the state finance council by statute on the grounds that the statutory provisions violated the separation of powers doctrine. In this opinion we will refer to that case as Schneider I. Since the issues in this case are directly related to the issues in Schneider I we should first briefly review what we held in that case.
Schneider I stands for the following general principles of law:
(1) The separation of powers doctrine does not in all cases prevent individual members of the legislature from serving on administrative boards or commissions created by legislative enactments. Individual members of the legislature may serve on administrative boards or commissions where such service falls in the realm of cooperation on the part of the legislature and there is no attempt to usurp functions of the executive department of the government.
(2) The separation of powers doctrine prohibits individual members of the legislature from serving on administrative boards or commissions where such service results in the usurpation of powers of another department by the individual legislators.
(3) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented.
(4) A usurpation of powers exists where there is a significant interference by one department with operations of another department.
(5) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time.
Schneider I involved statutory powers vested in the state finance council relating to direct supervision and control over the operations of the state department of administration and its divisions. The exercise of these powers was held to be an unconstitutional usurpation of executive powers by the legislative branch in violation of the separation of powers doctrine. It was further held that the power exercised by the state finance council with respect to expenditures from the state emergency fund (75-3713 and 75-3713a) and the power to authorize the issuance of certificates of indebtedness under K. S. A. 1975 Supp. 75-3725a did not constitute a usurpation of executive power and hence were constitutional. These powers are not involved in the present action.
In Schneider I it was determined that the following powers of the state finance council were legislative in nature and could be delegated to the state finance council provided the legislature established adequate standards and guidelines to control the state finance council in their exercise: The power to authorize expenditures from special revenue funds which exceed the limits of expenditures authorized by statute; the power to increase the fixed positions of employment authorized for state agencies; and the power to approve the receipt and expenditure of federal or other funds not authorized by specific statutes. It was held that the legislature had failed to establish adequate standards or guidelines to govern the state finance council in the exercise of these powers.
The opinion of the court in Schneider I was filed on March 6, 1976, while the legislature was in session. The legislature immediately responded to that decision by the enactment of Chapter 388, Laws of 1976, the provisions of which may now be found in K. S. A. 1976 Supp. 75-3711, 75-3711a, and 75-3711c. Other statutes were also amended and, where pertinent, will be referred to in the course of this opinion. Essentially, in response to our opinion in Schneider I, the legislature vested solely in the governor those powers which the court had determined to be executive powers and withdrew from the state finance council the power to act in those areas. This was accomplished by K. S. A. 1976 Supp. 75-3711 which provides in pertinent part as follows:
“75-3711. Division of powers between governor and state finance council; vote upon matters of legislative delegation; application of guidelines, (a) The governor shall:
“(1) Hear and determine appeals by any state agency from final decisions or final actions of the secretary of administration or the director of computer services.
“(2) Approve, modify and approve or reject proposed rules and regulations submitted by the secretary of administration as provided in K. S. A. 1976 Supp. 75-3706, and amendments thereto.
“(3) Make allocations to, and approve expenditures by a state agency, from any appropriations to the governor for that purpose, of funds for unanticipated and unbudgeted needs, under guidelines and limitations prescribed by K. S. A. 1976 Supp. 75-3711c or other legislative enactment enhancing or altering K. S. A. 1976 Supp. 75-371lc.
“(4) Exercise powers and perform functions specified for the state finance council or governor by the Kansas civil service act.
“(c) Whenever statutes provide for any matter to receive state finance council action, the same shall be made a matter of business before said council, if and only if the matter is characterized as a legislative delegation, and in other such cases the governor shall exercise the function specified for the state finance council by applying the guidelines and limitations of K. S. A. 1976 Supp. 75-3711c or other legislative enactment enhancing or altering the same.”
Those powers and functions which the court in Schneider I characterized as legislative functions were again vested in the state finance council, subject to be exercised only when certain specified legislative standards or guidelines were satisfied. The statute which sought to accomplish this objective was K. S. A. 1976 Supp. 75-37ÜC which provides as follows:
“75-3711c. Guidelines for exercise of certain functions; characterization of legislative delegations and executive functions, (a) The following matters of business before the state finance council are hereby declared to be matters characterized as legislative delegations:
“(1) Increase of expenditure limitations on special revenue funds imposed by legislative act.
“(2) Grant of approval pursuant to K. S. A. 1976 Supp. 75-3711a.
“(3) Exercise of functions specified in K. S. A. 1976 Supp. 75-3712, 75-3713, 75-3713a or 75-3725a.
“(4) Exercise of the functions specified in K. S. A. 48-938.
"(b) All matters of business provided by this act to be performed by the governor in lieu of the state finance council are hereby declared to be executive functions to be exercised by the executive department subject to subsequent enactment by the legislature.
“(c) The matters specified in subsection (a) shall be approved, authorized or directed by the governor and a majority vote of the legislative members of the state finance council and such approval, authorization or direction shall be given only when the legislature is not in session upon findings, in addition to any enhancement or alteration thereof by legislative enactment, that:
“(1) Unforeseeable occurrence or unascertainable effects of a foreseeable occurrence characterize the need for the requested action, and delay until the next legislative session on the requested action would be contrary to paragraph (3) of this subsection.
“(2) The requested action is not one that was rejected in the next preceding session of the legislature, and is not contrary to known legislative policy.
“(3) In cases where the action is requested for a single state agency, the requested action will assist the state agency in attaining an objective or goal which bears a valid relationship to powers and functions of the state agency.”
In K.S.A. 1976 Supp. 75-3711a the state finance council was granted the authority to approve the receipt and expenditure of grants of moneys and funds appropriated under any federal or state act or from any other source. This section provided as follows:
“75-371 la. Receipt and expenditure of grants and moneys from federal or state agencies or other sources not otherwise authorized by law; approval of finance council; guidelines; limitation on commitments, (a) Any state agency not otherwise specifically authorized by law may, with the approval of the state finance council, receive grants of money and funds appropriated under any federal act or from any other source.
“(b) Any state agency not otherwise specifically authorized by law may, with the approval of the state finance council, contract with and receive, and/or spend or transfer, moneys from other state or federal agencies.
“(c) In addition to the findings required by subsection (c) of K. S. A. 1976 Supp. 75-3711c, functions under (a) and (b) of this section shall be exercised only after a finding by the governor and a majority vote of the legislature members of the state finance council that the program proposed will benefit the health or welfare of the people of this state.
“(d) No authorization under this section shall undertake to give any vested commitment that a future legislative enactment will provide any additional state funds to the purpose of the proposed program.”
Other statutory amendments enacted in the 1976 session are not pertinent to the issues raised in this appeal.
In his petition in this case the attorney general challenged as unconstitutional the exercising of the following powers of the state finance council:
(1) The power of the finance council to authorize state agencies to exceed limitations on expenditures of appropriated special revenue funds. (K. S. A. 1976 Supp. 75-3711c [a] [1].)
(2) The power to authorize a state agency to exceed a limitation on expenditures of a reappropriated balance of a state general fund appropriation. This power is granted under sections of various appropriation acts.
(3) The power to authorize a state agency to exceed a limitation imposed by an appropriation act on the number of personnel positions which may be funded by the act. (For example, Laws of 1976, Chapter 24, Section 69.)
(4) The power to authorize state agencies to receive and spend federal and other moneys, when not otherwise specifically authorized by law. (K. S. A. 1976 Supp. 75-3711a and 75-371lb.)
(5) The power to authorize transfer of funds between items of appropriation from the Kansas educational building fund. (Laws of 1976, Chapter 24, Section 76 [&].)
In the district court the attorney general challenged the exercise of these powers by the state finance council on several grounds. First, it was contended that direct appointment by legislative act of members of the legislature to a body such as the state finance council which exercises executive power was in violation of Article 2, Section 1, and Article 15, Section 1, of the Kansas Constitution. Second, it was urged that the direct appointment of legislators to a body with executive powers to be exercised coextensively with the governor is in violation of Article 1, Section 3, of the Kansas Constitution which provides that the supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state. Third, it was urged that the standards by which the state finance council was to be guided in the exercise of these powers were impermissibly vague and ambiguous, and thus resulted in an unconstitutional delegation of legislative power to an executive or administrative body. Fourth, as to the authority to transfer line items of appropriation from the Kansas educational building fund, this power was clearly executive in nature and could not be exercised by the legislative members of the state finance council.
In its memorandum decision and judgment granting relief by way of quo warranto, the district court followed our decision in Schneider I and held that the challenged powers numbered 1, 2, 3, and 4 above are all legislative powers. The court further held that the power to authorize a transfer of funds between items of appropriation from the Kansas educational building fund set forth in paragraph 5 is an executive power. The district court granted judgment in favor of the attorney general on the grounds that the standards and guidelines established by the 1976 legis lature for the exercise of the challenged powers numbered 1 through 4 above were inadequate legislative standards. As to the power to authorize transfer of funds between items of appropriation from the Kansas educational building fund, the district court held that such power was exclusively executive in nature and could not be exercised by the legislative members of the state finance council.
On this appeal the attorney general again raises a number of the same legal issues previously raised and determined in Schneider I pertaining to the right of the legislature to designate certain of its members to serve and their right to serve on the state finance council. In regard to these points we adhere to the conclusions previously reached in Schneider I. We do not deem it necessary to consider those contentions further. In our judgment the district court correctly recognized the two fundamental issues to be determined in this action. They are: First, whether the legislative standards and guidelines established by the 1976 legislature to control the exercise of delegated legislative power by the state finance council are unconstitutionally vague and insufficient to sustain a delegation of legislative power. Second, whether participation by the legislative members of the state finance council in the exercise of the statutory authority of the council to authorize transfer of funds between items of appropriation from the Kansas educational building fund is unconstitutional as a usurpation of powers of the executive department by the legislature and hence a violation of the doctrine of separation of powers.
As to the first issue we agree with the conclusion of the district court that (1) the power to increase an expenditure limitation contained within an appropriation of special revenue funds; (2) the power to authorize a state agency to exceed a limitation in expenditure of a reappropriated balance of a state general fund appropriation; (3) the power to authorize a state agency to exceed a limitation imposed by an appropriation act on the number of personnel positions which may be funded by the act; and (4) the power to authorize state agencies to receive and spend money from federal grants or other sources, are legislative powers. These powers were discussed in depth and held to be legislative in nature in our opinion in Schneider I. As pointed out in State, ex rel., (Anderson) v. Fadely, supra, except as is restricted by the constitution, the legislature has the exclusive power to direct how, when, and for what purpose the public funds shall be applied in carrying out the objects of the state government. Such legislative powers may be delegated to the state finance council provided legislative standards and guidelines are established to control the state finance council in the exercise of such power.
In Schneider I the only standard or guideline provided for the exercise of the power of the state finance council to approve expenditures from special revenue funds in excess of fixed statutory limitations was “where such excesses are the result of circumstances which could not reasonably have been foreseen when the legislature was in session.” We held this standard to be insufficient to satisfy the constitutional requirement that the legislature may not delegate legislative power unless adequate standards are established for the exercise of such power. We pointed out that under that statute there was no standard which limited the finance council as to the amount or the subject matter of the expenditures which it might authorize. Since that opinion was filed the 1976 legislature in response thereto amended the statutes and provided the additional standards and guidelines which are contained in the statutes set forth above.
As we analyze the 1976 statutory provisions the new legislative standards and guidelines now provided are as follows:
(1) The state finance council may exercise its powers only when the legislature is not in session. (75-3711c.)
(2) The finance council may exercise its powers in a particular matter of business only if the matter is characterized by the legislature as a legislative delegation. (75-3711.) 75-3711c which is set forth in full above declares the following matters of business before the state finance council to be matters characterized as legislative delegations: (a) Increase of expenditure limitations on special revenue funds imposed by legislative act; (b) grant of approval pursuant to 75-3711a which concerns the receipt and expenditure of grants of money and funds appropriated under any federal act or from other sources; (c) exercise of functions relating to the state emergency fund (K. S. A. 75-3712, 75-3713, 75-3713a) or the issuance of certificates of indebtedness under 75-3725a; and (d) allocation of funds from the state emergency fund pursuant to 48-938. Additional statutes characterize other matters as legislative delegations.
(3) The finance council can act only when it makes a specific finding that some unforeseeable occurrence or an unascertainable effect of a foreseeable occurrence characterizes the need for the requested action. (75-3711c [c] [1].)
(4) The finance council may act in cases where the action is requested for a single state agency only when the requested action will assist the state agency in attaining an objective or goal which bears a valid relationship to authorized powers and functions of the agency. This standard should be interpreted to restrict the authority of the state finance council to authorize state agency action only in a general area in which the state agency has previously been authorized to act by the legislature. The finance council may not authorize action in areas not previously authorized by the legislature. (K. S. A. 75-3711c [c] [3].)
(5) The finance council may exercise its powers only when it finds that delay until the next legislative session on the requested action would be contrary to (or in some way obstruct or interfere with) the attaining of some authorized goal or objective of the state agency. (75-3711c [c] [1] and [3].)
(6) The finance council can exercise its powers only when the requested action is not one that was rejected in the next preceding session of the legislature, and is not contrary to a known legislative policy. (75-3711c [c] [2].) In this regard it is important to note that both the majority and minority leadership of the legislature are designated as members ex officio of the state finance council. (75-3708.) Prior to any meeting of the finance council a notice of each meeting and a copy of the proposed agenda must not only be mailed to each member of the finance council but also to each member of the legislature. Following a meeting of the finance council, the governor, as chairman, is required to cause minutes of the meeting to be prepared and to be sent to all members of the council, to each member of the legislature, and to others specified by statute. (75-3710.) We consider the statutory requirement of mailing a notice of a meeting and the agenda in advance of the meeting to each member of the legislature to be of significance. The legislative leadership and other members of the legislature should be fully familiar with legislative policies. It could reasonably be anticipated that the views of individual legislative members in regard to a particular matter would be vigorously communicated to the finance council. This requirement should serve as an effective restraint on the finance council in the exercise of its powers.
(7) Before authorization is given for the receipt and expenditure of federal or other funds, the state finance council, in addition' to making those specific findings required by 75-3711c mentioned above, must also make a finding that the program proposed will benefit the health or welfare of the people of the state. Although at first glance this guideline would seem rather vague and ambiguous, nevertheless it does require the members of the finance council to direct their attention to the importance of the proposed program and requires an exercise of their judgment in that regard. It should also be noted that with respect to the receipt and expenditure of federal funds or funds from other sources, the finance council may not give any vested commitment that a future legislative enactment will provide any additional state funds to the purpose of the proposed program. This is certainly an additional limitation on the power of the council in this area. (75-3711a [c] and [d].)
As pointed out above the district court considered these guidelines and held them to be inadequate as legislative standards to govern the finance council in the exercise of the legislative powers referred to above. Since the sufficiency of the guidelines is one of the primary issues to be determined on this appeal, it would be helpful to see what this court has said in the past in regard to legislative standards and guidelines. In Schneider I we stated that great leeway should be allowed the legislature in setting forth guidelines or standards and the use of general rather than minute standards is permissible. In Board of Satanta v. Grant County Planning Board, 195 Kan. 640, 408 P. 2d 655, it is stated that what constitutes adequate standards will of necessity depend upon the nature of the power delegated in each particular case and the constitutional grants or prohibition pertaining thereto. In State, ex rel., v. Hines, 163 Kan. 300, 309, 182 P. 2d 865, there is a helpful discussion of what standards should be required to sustain a delegation of legislative power. In that case a standard is defined as a definite plan or pattern into which the essential facts must be found to fit before specified action is authorized. We noted that standards are difficult to define because of the variable nature thereof but stated that the test of the sufficiency of standards is whether they are sufficiently definite and certain to enable one reading them to know his rights, obligations, and limitations thereunder. Stated in another way, the power given an administrative tribunal must be “canalized” so that the exercise of the delegated power must be restrained by banks in a definitely defined channel. Professor Davis in his Administrative Law Treatise, Section 2.15, suggests that, in considering a delegation of legislative powers to an administrative agency, courts should be less concerned with standards than with safeguards to provide protection against arbitrary action, unfairness, or favoritism.
Under all of the circumstances in this case we have concluded that the delegation of the specified legislative functions is constitutionally sufficient. The obvious purpose and practical consequences of delegating these legislative powers to the state finance council were to enable the Kansas state government to function without the necessity of the state legislature remaining permanently in session throughout the year. In our judgment the legislative standards and guidelines which are discussed above effectively “canalize” the exercise of the delegated powers in a definitely defined channel, so that the members of the finance council should know their rights, obligations, and limitations in the exercise of those powers. The state finance council has not been given the power to authorize the expenditures of money limited only by the caprice and desire of its members. The standards which have been provided by the legislature in our judgment limit the power of the finance council to act only in the event of unforeseeable circumstances, where there is some necessity for prompt action, and only within the general area of previously authorized functions of the various state agencies. We must assume that the state finance council will exercise its powers within the legislative guidelines in a fair and conscientious manner. Of course, if it fails to do so and the limitations of its powers established by the legislature are violated, then the courts are available to restrain any abuse of its powers. Under all the facts and circumstances we have concluded that the delegation of the legislative powers to the state finance council in this case is accompanied by adequate standards to guide the finance council in the exercise of such powers with sufficient safeguards to restrain the finance council from arbitrary and illegal action. In ruling to the contrary the district court was in error.
The second basic issue to be determined on the appeal involves the power of the state finance council to authorize the transfer of funds between items of appropriation from the Kansas educational building fund. The district court held this power to be exclusively an executive power and hence the exercise of such power by the legislative members of the finance council would constitute an unconstitutional usurpation of executive power by the legislative branch in violation of the separation of powers doctrine. This issue arose as a result of an amendment to an appropriation bill. House bill 3059, which now appears as Chapter 33, Laws of 1976, authorized Kansas State College of Pittsburg, University of Kansas Medical Center, Wichita State University, University of Kansas, and Emporia Kansas State College to initiate and complete certain specified capital improvement projects on each campus. In each instance a specified amount was appropriated from the educational building fund to the particular college or university. Additional moneys were also appropriated from certain special revenue funds. These appropriations are contained in sections 2 through 6 of chapter 33. This appropriation bill was amended later in the session by Senate Bill 1034 which now appears in Chapter 24, Laws of 1976. The particular section granting powers to the state finance council is section 76 (b) of chapter 24 which provides as follows:
“(b) With regard to Kansas educational building fund appropriations made in sections 2 through 6, inclusive, of 1976 House bill No. 3059 to institutions under the state board of regents, amounts from one item of appropriation from the Kansas educational building fund for a project of any such institution under the state board of regents may be transferred to another item of appropriation for a project at the same institution or for a project at any other institution under the state board of regents upon written application by the state board of regents and approval by the state finance council acting on this matter, which is hereby characterized as a matter of legislative delegation and subject to the guidelines prescribed in subsection (c) of section 2 of 1976 House bill No. 3261, except paragraph (3) of said subsection (c), and in addition upon a finding by the state finance council that the transfer requested will permit the completion of the project from which amounts are transferred without substantially changing the scope of that project and will permit or aid in the completion of the project to which the transfer is made without substantially changing the scope of that project.”
It should be noted that in authorizing such a transfer of funds, the state finance council must follow the general guidelines contained in K. S. A. 1976 Supp. 75-3711c discussed above with an additional finding required that the transfer requested will permit the completion of the project from which funds are transferred without substantially changing the scope of that project and will permit or aid in the completion of the project to which the transfer is made without substantially changing the scope of that project.
The issue to be determined is whether the exercise of this power to transfer items of appropriation from the Kansas educational building fund constitutes a usurpation of powers in violation of the separation of powers doctrine. In Schneider I one of the issues to be determined was the nature of the power of a state agency to transfer funds from one item of an appropriation to another item of that agency’s appropriation. The specific power under consideration in Schneider I was granted to the state finance council by K. S. A. 1975 Supp. 75-3726a. We held that this power was essentially executive or administrative in nature since it concerned the day-to-day operations of the department of administration and its various divisions. We declared that the vesting of such power in the state finance council granted to a legislatively orientated body control over the operation of an executive agency and constituted a usurpation of executive power by the legislative department in violation of the separation of powers doctrine.
The specific power vested in the state finance council to transfer items of appropriation from the Kansas educational building fund was not involved in Schneider I. We have concluded that because of unusual circumstances involving the nature of the Kansas educational building fund the power to make line item transfers from such fund as vested in the state finance council does not constitute a violation of the separation of powers doctrine. In Schneider I we emphasized that a usurpation of powers exists only where there is significant interference by one department with operations of another department. The Kansas educational building fund was established by the legislature under the specific authority of Article 6, Section 6 (a), of the Kansas Constitution which provides as follows:
“Sec. 6. Finance, (a) The legislature may levy a permanent tax for the use and benefit of state institutions of higher education and apportion among and appropriate the same to the several institutions, which levy, apportionment and appropriation shall continue until changed by statute. Further appropriation and other provision for finance of institutions of higher education may be made by the legislature.”
This constitutional provision has been implemented by statutory provisions providing for an annual permanent state tax on all tangible property in the state for the use and benefit of state institutions of higher education and for the depositing of all money received from that tax in the Kansas educational building fund. These statutory provisions may be found at K. S. A. 1976 Supp. 76-6b01, 76-6b02, and 76-6b03. Pursuant to these statutes and the constitutional provision mentioned above, at each session the legislature appropriates money from this special fund to various institutions of higher education as required for the construction, reconstruction, equipment, and repair of buildings and grounds at these various institutions. The apportionment of these funds is a matter of particular legislative concern. Each of the educational institutions is, of course, seeking as large an appropriation for its building program as it can obtain, and the appropriation of the funds to the educational institutions is exclusively a legislative decision.
This particular matter of concern to the legislature is one which undoubtedly could be left to each legislative session. However, as in the case of other matters, unforeseeable circumstances may arise where prompt action is required to avoid delay in the construction projects previously authorized by the legislature. So long as adequate legislative standards or guidelines are provided by the legislature, we see no constitutional impediment to permitting the legislature to delegate certain powers in this regard to the state finance council. In our judgment the statutory guidelines provided to govern the action of the state finance council in this area are sufficiently definite and certain to satisfy the constitutional requirements.
We grant that the transfer of line items of appropriation to a single state agency ordinarily involves the exercise of executive power. However, in a matter of such great legislative concern, the exercise of the power to transfer items of appropriation by both the governor and the legislative members of the state finance council does not in our judgment constitute a usurpation of powers in violation of the separation of powers doctrine. We think it significant that appropriations from the Kansas educational building fund are made directly to a particular educational institution designated in the appropriation act. The practical effect of transferring items of appropriation from one educational institution to another is that authorized expenditures for one institution are thereby decreased while authorized expenditures by another institution are, in effect, increased. In our judgment the district court erred in ousting the legislative members of the state finance council from exercising the power to transfer items of appropriation from the Kansas educational building fund.
For the reasons set forth above the judgment of the district court is reversed. Judgment is for the defendants as heretofore entered by this court on March 14, 1977. | [
116,
-24,
-11,
-4,
10,
-64,
-104,
-102,
83,
-31,
-75,
-45,
-21,
-54,
-127,
123,
-78,
29,
80,
105,
-59,
-74,
87,
-39,
-10,
-45,
-8,
-43,
-77,
79,
-28,
-2,
92,
-72,
-62,
-107,
70,
-62,
-123,
92,
-114,
-118,
-118,
-55,
-48,
-52,
52,
-21,
82,
75,
113,
111,
-13,
62,
24,
-61,
-20,
44,
-37,
-91,
-126,
-77,
-98,
-113,
95,
22,
1,
2,
-104,
71,
112,
46,
-104,
49,
9,
-8,
115,
-90,
18,
84,
79,
-119,
40,
98,
96,
23,
108,
-81,
-84,
-120,
6,
-45,
-65,
-122,
-109,
89,
35,
1,
-74,
-99,
117,
16,
7,
-2,
-25,
-123,
-41,
108,
-122,
-50,
-60,
-79,
-50,
117,
26,
82,
-30,
-31,
48,
113,
-64,
-10,
92,
119,
59,
27,
-26,
-116
] |
The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant (Moore Childers) appeals from a conviction by a jury of second degree murder (K. S. A. 21-3402). This is the second appearance of this case before this court. Defendant was previously convicted of the same charge by a different jury. The prior conviction was reversed in State v. Childers, 217 Kan. 410, 536 P. 2d 1349, because of the trial court’s failure to instruct on the lesser included offense of involuntary manslaughter (K. S. A. 21-3404). Upon remand the case was retried before another trial judge who submitted the previously omitted lesser offense instruction, but the trial resulted in the same jury verdict as that returned in the first trial. This appeal followed.
The record reflects that the state’s evidence in the second trial closely parallels the facts recited in our opinion in the first appeal. Therefore, only a brief summarization is necessary.
The deceased, James C. Frost, lived with his wife and stepson next door to the defendant’s residence. During the evening of July 21, 1973, the Frosts had visitors at their residence who had a young son about the same age as that of the deceased’s five year old stepson. The two boys were playing between the two houses during the evening in question and their activities apparently caused defendant’s dogs to bark. Defendant and his wife, who had gone to bed at an earlier hour, were awakened and defendant got up and went outside to ascertain the cause of the dogs barking. Defendant told the boys to quit bothering the dogs and induced them to leave his premises by giving them some candy. Defendant then returned to his house and went back to bed.
A few minutes later Emory Farris, a thirteen year old boy who lived across the street, went over to the Frost residence. The boys told Farris of their encounter with the defendant and that he had given them some candy to keep off his yard and that he “cussed at” them. In the meantime, Frost returned from a neighbor’s house where he had been visiting and was informed by Farris what he had been told by the boys. Farris testified that thereupon Frost, the deceased, stated that he was going to have a talk with defendant and proceeded toward defendant’s house. Farris followed along and overheard a conversation between Frost and defendant at a bedroom window of defendant’s house. According to Farris defendant told Frost that he had given the boys candy to keep them off his yard and added that if they did not stay off he would “blow their asses off.”
As Farris and Frost were leaving the defendant’s premises defendant was heard to mumble something. Frost returned to the bedroom window and asked defendant what he had said. Farris testified that at this point defendant began firing a gun out of the window and Frost ran away from the defendant’s house, down the slope of the yard toward the street. According to Farris, Frost bent over as he ran and was hit by one of the six shots fired by the defendant. The shot struck Frost in the lower back at a severe angle. According to Dr. William G. Eckert, a pathologist who performed an autopsy, the bullet entered Frost’s body in the lower back area, proceeded through the body penetrating several vital areas and eventually lodged in the neck. Frost made it back to his own front porch where he died.
Police Officer Gary Olson was directed by the police dispatcher to the scene and arrived a few minutes after the shooting. He was told that the man who did the shooting was in defendant’s house. Officer Olson and two other officers, who had arrived in the meantime, positioned themselves outside defendant’s house. One of the officers yelled for the man in the house to come out. In a few minutes the porch light went on and defendant came to the front door. He was told to step outside and place his hands in the air. The officers then stepped onto the front porch and handcuffed defendant. Olson advised defendant of his constitutional rights and asked if he understood those rights. Defendant said he did and in response to Olson’s question as to where the gun was, defendant nodded his head in a northeasterly direction which led the officers to believe the gun was by the side of the house. The officers then took defendant to the north side of the house. Defendant then told the officers that the gun was not there, but that it was in his bureau drawer in the bedroom. Defendant was asked to show the officers where the bureau drawer was and they proceeded into the house to the southeast bedroom where defendant nodded at the bureau drawer directly beside the bed. Olson opened the drawer and saw a blue steel revolver inside the drawer. Olson testified that after viewing the gun, the drawer was closed so the gun would not be disturbed until the laboratory investigators arrived. Olson took defendant to his police car and again advised him of his constitutional rights and asked if he would like to talk about what happened. Defendant again said he understood his rights and that he would talk. Defendant described the incident with the children; that he had given them candy; and about Frost coming to his bedroom window and telling him that he did not appreciate his cussing the children. Defendant told Olson that Frost then turned and walked away, but returned and came back toward the window. Olson testified that defendant said, “Mr. Frost came back, and I didn’t know what he had in his hands, so I let him have it.”
Several days after the shooting Mr. and Mrs. Edgar Boston, who lived directly across the street from the Childers’ house, discovered two holes in the wall of their house which Mr. Boston said were not there prior to July 21, 1973. Police determined the holes were caused by bullets which were recovered, but found to be damaged to the extent that ballistic tests were impossible.
Other testimony will be recited in the course of the opinion as it relates to points on appeal.
Defendant’s first two points on appeal concern alleged insufficiency of the state’s evidence. The points are interrelated and defendant merges his arguments. He first asserts the verdict and judgment are contrary to the law and evidence with respect to second degree murder, and then further contends the evidence failed to show a malicious, intentional killing.
As we have previously indicated, the evidence presented in the instant record closely parallels that which was before us in State v. Childers, supra, wherein we said:
“The state presented a strong case to support its theory that the defendant’s killing of Frost met the second degree murder requirements of K. S. A. 21-3402. . . .” (p. 416.)
Nevertheless, we have again closely examined the evidence in the light of the arguments presented by defendant’s industrious counsel in his brief filed in the present appeal.
The crime of murder in the second degree is defined in K. S. A. 21-3402 in these words:
“Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.”
Defendant structures his arguments in this manner — he admits the shooting and concedes that it was intentional, but he then proceeds to point out the distinction between intentional shooting and intentional killing, and that the statute requires intentional killing. Defendant goes one step further and says that even evidence of an intentional killing is insufficient, absent a showing of malice. Defendant’s analysis of the elements of second degree murder is correct. (See State v. Gregory, 218 Kan. 180, 542 P. 2d 1051; State v. Childers, supra; State v. Osbey, 213 Kan. 564, 517 P. 2d 141; and State v. Roberson, 210 Kan. 209, 499 P. 2d 1137.) But to reach the conclusion sought by defendant the evidence must be viewed in the light most favorable to him which we cannot do under our long-standing rules of appellate review.
(State v. Sparks, 217 Kan. 204, 535 P. 2d 901; and State v. Smolin, 221 Kan. 149, 557 P. 2d 1241.)
The element of malice may be inferred from the fact that the killing was effected by a deadly weapon. (State v. King, 221 Kan. 69, 557 P. 2d 1262; State v. Hamilton, 216 Kan. 559, 534 P. 2d 226; and State v. Blake, 209 Kan. 196, 495 P. 2d 905.) Neither is the element of intent without evidentiary support in the instant case. Intent, like any element of a crime, may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts. (State v. Wright, 221 Kan. 132, 557 P. 2d 1267.) Defendant argues this presumption of intent was overcome by his own testimony that he was firing the gun into the ground and by Farris’ testimony that the deceased remained at the window untouched and unharmed while four shots were fired. In this connection defendant is viewing conflicting evidence in the light most favorable to his case. On direct examination Farris testified that the deceased began to run after the first shot was fired. Using a police report for impeachment and skillful cross-examination techniques, counsel for defendant persuaded Farris to recant and state that four shots were fired while the deceased was standing at the window. However, in the very next breath, the witness testified the deceased was struck in the back by one of the first four shots, thus, inferentially retracting the recantation.
In contrast to defendant’s assertion that he fired all of the shots into the ground, the state presented evidence that the paths of at least two of the errant shots closely paralleled the slope of the terrain and were approximately four feet off the ground at one point in their trajectories. The path of these two shots was established by the recovery of the two bullets from the neighbor’s house across the street. Both of these bullets were fired in the direction of the path used by the deceased in fleeing from the premises. Regardless of which view is taken of the record testimony, it is clear that some shots were fired in the deceased’s direction and nearly parallel to the ground after he had departed the immediate area of the bedroom window, and while he was attempting to flee from the premises of the defendant. From these circumstances alone an inference of intent to kill may be drawn. A similar contention was rejected under analogous circumstances in the second degree murder case of State v. Hill, 211 Kan. 239, 505 P. 2d 704. In that case the rejected third party of a lover’s triangle fired several shots through his apartment wall into the apartment and bedroom of his adversary, killing him and wounding the girl who was the subject of their mutual affections. This court said:
“ . . . Admittedly appellant did the shooting. There was evidence from which the jury could have inferred that the shots were not fired either accidentally or haphazardly but were, without just cause or excuse, carefully directed toward an area known to be occupied by the victims. The contention cannot be sustained.” (p. 246.)
The circumstances shown by the instant record likewise permit a reasonable inference of an intent to kill and provide ample evidentiary support for the verdict.
In points three and four defendant contends the definition of maliciously given by the trial court in instruction No. 4 is confusing and erroneous and that he should have been permitted to demonstrate this fact by the affidavit of a juror, which was proffered on motion for a new trial. Defendant argues the jury was confused as to the distinction between intentional shooting and intentional killing. Defendant concedes the instruction was not objected to at trial, but now contends it was clearly erroneous. The instruction in question reads:
“No. 4. Maliciously means wilfully doing a wrongful act without just cause or excuse.
“Intentionally means conduct that is purposeful and wilful and not accidental.”
The instruction is PIK, Criminal, Sec. 56.04 and as a definition of malice has been approved in State v. Wilson, 215 Kan. 437, 524 P. 2d 224; and State v. Jensen, 197 Kan. 427, 417 P. 2d 273. As we noted in Wilson, when read out of context, and apart from other instructions, the instruction might be subject to criticism as being imprecise. However, the instruction is not to be read in isolation. In State v. Ingram, 211 Kan. 587, 506 P. 2d 1148, we held:
“The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions in the case.” (Syl. 5.)
See, also, State v. Blocker, 211 Kan. 185, 505 P. 2d 1099. Applying this rule in Wilson, we considered the malice instruction together with the instruction on second degree murder (PIK, Criminal, Sec. 56.03) and found the resulting combination to be “. . . most descriptive of the crime. . . .” (State v. Wilson, supra, p. 439.)
In the instant case, instruction No. 4 was preceded by instruction No. 2, murder in the second degree (PIK, Criminal, Sec. 56.03), and No. 3, involuntary manslaughter (PIK, Criminal, Sec. 56.06). Instruction No. 4 was followed by the definition of wilfully (PIK, Criminal, Sec. 56.04[c]). Read together the instructions adequately apprise a jury that the killing and not merely the shooting must be done wilfully to constitute second degree murder. In this connection we held in State v. Osbey, 213 Kan. 564, 517 P. 2d 141:
“The term ‘maliciously’, as it relates to the crime of murder, imports and includes the term ‘willfully’.” (Syl. 6.)
Following the trial, defendant’s counsel had a conversation with the jury foreman which led counsel to assert, on motion for a new trial, that the jury had misinterpreted instruction No. 4. Counsel asked leave to obtain the affidavit of the foreman, the state objected and the trial court sustained the state’s position. The matter is controlled by K S. A. 60-441, which reads:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
In State v. Myers, 215 Kan. 600, 527 P. 2d 1053, the convicted defendant offered affidavits of jurors in support of his motion for a new trial to show, inter alia, that certain instructions on intent and circumstantial evidence were confusing to the jury. In sustaining the trial court’s ruling which excluded these affidavits we said:
“The instructions complained of, although somewhat overbroad in comparison with those recommended in PIK, Criminal, are not clearly erroneous. Moreover, as in the point with respect to the juror’s comments concerning appellant’s failure to testify, the alleged misconduct, if it could be deemed to rise to that level, was not extrinsic but related rather to the reasoning process by means of which certain jurors arrived at and acquiesced in the verdict. That verdict may not be so impugned and the trial court properly excluded the affidavits and denied new trial on this ground.” (p. 603.)
So, also, in this case, the matter sought to be explored was not extrinsic to the verdict and thus was inadmissible under K. S. A. 60-441. We find no error shown with respect to defendant’s points three and four.
Defendant next contends the trial court erred in admitting statements made by him following his arrest, in particular a statement to Officer Olson, “Mr. Frost came back, and I didn’t know what he had in his hands, so I let him have it.” The issue was first presented in pretrial motions to suppress both the gun seized in defendant’s bedroom and the statements in question. After an evidentiary hearing the trial court sustained the motion as to the gun finding unlawful search and seizure thereof, but overruled the motion to suppress the statements and specifically found they were voluntarily made. The trial court made the same rulings after an out-of-court hearing during the trial. The trial court found the arrest to have been lawful, but, apparently, because it was effected on the front porch rather than inside defendant’s house, found that the warrantless search inside the house was unlawful. Defendant argues the statement in question resulted from the unlawful search and seizure of the gun, that it was tainted thereby and under the fruit of poisonous tree doctrine was inadmissible. The state first takes the position that the trial court erred in finding the search unlawful, contending it was reasonable under the “exigent circumstances” shown to exist and in the alternative the state says that defendant’s conduct amounts to consent. As a second alternative position the state contends that even though the gun was the product of an illegal search, the defendant’s statements were, nevertheless, admissible since they were not induced by the illegally seized evidence.
Even if the question of the legality of the search is properly before us, we need not decide it in order to determine the issue presented. Assuming the illegality of the search, the question narrows to one of determining whether defendant’s statements were brought about by that illegality rather than by means sufficiently distinguishable to be purged of the primary taint. Under Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, the fruits of the poisonous tree doctrine, when applicable, not only bars derivative physical evidence, but also derivative testimonial evidence, such as confessions and admissions obtained as a result of confronting the accused with information learned in an unlawful search. The doctrine is inapplicable, however, where the state learns of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. This court recognized the teaching of Wong Sun and considered the application thereof in depth in the recent case of State v. Deffenbaugh, 216 Kan. 593, 533 P. 2d 1328. In Deffenbaugh, as in the case at bar, the issue whether challenged evidence was so connected with an illegal search as to be tainted was presented on a motion to suppress. We said:
“. . . This was the issue of fact which had to be determined by the district court at the hearing on the motion to suppress.” (p. 599.)
We further noted in Deffenbaugh that the trial court’s finding was supported by the evidence and could not be disturbed on appeal. There was no connection, in the instant case, between the finding of the gun and the statements made later by defendant. From the time of his arrest and through both trials defendant had admitted the ownership, possession and shooting of the gun. Defendant’s intent was the only important disputed issue at trial. While the challenged statement was probative and relevant to the issue of intent, there is no showing whatsoever that the statement was triggered or induced by the finding of the weapon which defendant always admitted firing. There was no causal connection between the search and the statement.
Defendant relies on McCloud v. Bounds, 474 F. 2d 968 (4th Cir. 1973) and Brown v. Illinois, 422 U. S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, as support for his argument that the fruit of the poisonous tree doctrine renders his statement inadmissible. Both cases are distinguishable on the facts from the case at bar. In Brown police officers broke into defendant Brown’s apartment, searched it, and then arrested him all without a warrant and, as the court determined, without probable cause. Brown was given full Miranda warnings and thereafter, while in custody, made two challenged inculpatory statements. The Illinois Supreme Court affirmed Brown’s conviction (56 Ill. 2d 312, 307 N. E. 2d 356), on the rationale, as to the point in question, that the Miranda warnings in and of themselves severed the causal connection so that any subsequent statements, even though induced by the unlawful search and arrest, were admissible so long as, in the traditional sense, the statements were voluntary and not coerced in violation of the Fifth and Fourteenth Amendments. The United States Supreme CouA granted certiorari because of concern about the implication of its Wong Sun holding to the facts of the. Broten, case. In reversing Brown’s conviction the court expressly limited and qualified its holding. The court said:
“It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and perse, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U.S. 436, 496-497 (1966).
“While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’.rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. . . .” (p. 603.)
The Brown decision makes clear there must first be a causal connection between the illegal arrest or search and the statement in question before the issue whether a Miranda warning breaks the connection arises. In the case at bar, defendant’s arrest was legal, probable cause was obvious and never challenged. The only search involved was the finding of the gun which was left in the bureau drawer. Possession or ownership of the gun was never at issue and the defendant was not confronted with the gun by the officers during their conversation with him. We see no connection between the search and defendant’s statement, thus, the issue framed in Brown is not presented here.
Likewise, in McCloud v. Bounds, supra, it was said:
“. . . [T]he state here concedes, that the police had neither a warrant nor probable cause for the search, seizure, and arrest, and that they were therefore illegal.” (p. 969.)
McCloud was confronted with an illegally seized unique coin collection which was used to induce or trigger his confession. No such causal relationship is shown in the record presented here. To the contrary, the evidence shows that the challenged statements were the product of defendant’s free will, unaffected by and not connected with the seizure of the gun. The evidence fully supports the trial court’s ruling on the issue and it cannot be disturbed on appeal.
Defendant next contends the trial court abused its discretion in permitting the state to present rebuttal evidence over defendant’s objection. The challenged evidence consisted of testimony of Detective Ronald Eggleston, a crime scene investigator for the Wichita Police Department, concerning the path of two bullets recovered from a house located directly across the street from defendant’s house. Defendant objected to the evidence on the grounds that it was irrelevant and improper rebuttal. The state’s purpose in offering the testimony was to refute defendant’s assertion that he was firing at the ground and did not intend to hit the deceased. The evidence was relevant to the issue of defendant’s intent, the critical issue in the case.
Defendant’s argument on the relevancy point focuses on the state’s inability to prove positively that the bullets taken from the neighbor’s house were fired from the defendant’s gun. The state contends that this could not be shown because the damaged condition of the bullets prevented an accurate microscopic comparison. This technical deficiency affects only the weight to be accorded the evidence rather than its admissibility. (State v. Curtis, 217 Kan. 717, 538 P. 2d 1383.)
The standards for identification and admission of physical evidence are discussed in State v. Robinson, 203 Kan. 304, 454 P. 2d 527, wherein we held:
“The admissibility in evidence of a physical object is to be determined by the trial judge on the basis of its relevance and connection with the accused and with the crime. In order to justify its admission its identity must be shown to the satisfaction of the trial judge.” (Syl. 5.)
In Robinson we approved the rule stated in 2 Wharton’s Criminal Evidence (11th Ed.) Sec. 762, p. 1293. We believe the evidence in the instant case fully supports the trial court’s determination as to identification.
Defendant further argues the testimony in question was improper rebuttal in that it could have been offered in the state’s case in chief. On this point in State v. Nirschl, 208 Kan. 111, 490 P. 2d 917, we said:
“With respect to the propriety of the rebuttal testimony, this court has held that evidence which could have been admitted in the case in chief but which was not, may be admitted in rebuttal to contradict some new fact or circumstance brought forth in the defendant’s evidence. That is the case here. The state could not attack the credibility of the defendant’s testimony until he had taken the stand. Once that issue was raised, it properly could be rebutted, (citing cases.)” (p. 117.)
Even though the state was aware that defendant would probably testify that he fired into the ground, the state is not required to anticipate what defense might be offered at trial and to offer evidence in its case in chief to meet all probable facets of the defense, . . If so, the state would be required to elicit testimony in its case in chief to cover every possible contingency. . . .” (State v. Phippen, 207 Kan. 224, 230, 485 P. 2d 336.) We find no abuse of discretion in the trial court’s ruling in this regard.
Defendant next claims error in the admission of three photographs which he says were gruesome, of no probative value and introduced solely for prejudicial effect. In defendant’s first trial color photographic slides of the deceased’s body, taken during the autopsy, were introduced. On appeal this court found the color photographic slides to be gruesome and that the admission thereof, under the circumstances shown, was error. Apparently, the colored slides were not used in the trial on remand. In the instant case the evidence complained of, as it appears in the record, consists of three black and white photographs labeled Exhibits 1, 10 and 11. Exhibit 1 depicts the front porch of the deceased’s house and a pillow lying on the floor. There were dark splotches on the pillow which were said to be blood stains by the state’s witness, Merle Horn. Horn was a friend of the deceased and was visiting in his house at the time of the shooting. The photographs were used during Horn’s testimony to describe the front porch, where deceased finally came to rest after the shooting. Exhibit 10 is a photograph of the deceased lying on his back at the morgue. It was used primarily to identify the deceased. Neither Exhibit 1 nor Exhibit 10 can be said to be gory or gruesome. Exhibit 11, the only photograph showing the lethal wound, depicts the deceased’s back as he lay on his side at the morgue. As a black and white photograph, it cannot be said to be inflammatory and it was of probative value. It was relevant to the pathologist’s testimony concerning the nature and angle of the entry wound and the ultimate location of the spent projectile. The evidence was relevant and material in relating the bullet trajectory and direction to the departure of the deceased from the Childers’ house and the position of his body when struck.
This court has repeatedly held that the admission of photographs of a decedent, including photographs taken during an autopsy, is not error when they are relevant to matters in issue such as the cause and manner of death and aid the understanding of a pathologist’s testimony. (State v. Steward, 219 Kan. 256, 547 P. 2d 773; and State v. Campbell, 210 Kan. 265, 500 P. 2d 21.) We find no abuse of discretion in the admission into evidence of the challenged exhibits.
The defendant next claims error in the admission into evidence — over objection — testimony of Officer Fred D. Debes as to statements made by Mrs. Childers. Defendant claims a violation of the marital privilege afforded by K. S. A. 60-428. Officer Debes arrived at the scene within a few minutes after the shooting. While the other officers were arresting defendant and searching for the gun, Debes remained with Mrs. Childers. His testimony concerning the conversation is as follows:
“A. I was assigned to the house to stand by the scene to guard it, and during my station at that house, I noticed she was quite upset, very emotional, and I tried to get her to calm down. She said she had a heart problem, and to keep her from having any further problems, I asked her where her medicine was.
“I got it for her. It was directly around where I was supposed to be stationed. I asked her if I could call someone to take care of her, and she gave her neighbor’s name, and I called her. And I finally called her doctor, because she was still very excited, and talked to him.
“During the absence of other officers and before the neighbor got there, I asked her what had taken place at the residence. She stated that she was sleeping in her bedroom, and that at an unknown time, she awakened to hear a cracking noise, and I said, ‘What type of a noise was it,’ or I asked her what type of a noise it was. She said it sounded like shots. I said how many shots, and she stated at least three, maybe more. She stated that they were very close. I believe I asked her if she meant close together or relatively close to the house. She said just very close. She stated that when she awakened and heard the sounds, she yelled at her husband, asked him if he knew what was going on, and his reply was, T told that nigger to stay out of the yard and to keep away from the window,’ and I had her repeat this so that I could write it down. Those were her exact words.
“Q. After that, did you have any more conversation, or what did you do then?
“A. I just stood by my assignment waiting for the laboratory investigator, and then further tried to calm her down, because she was still quite excited.
“Q. Sir, when you arrived, what kind of mental state was Mrs. Childers in?
“A. Very excited.
“Q. Did she mention that she had anything physically wrong with her at that time?
“A. She stated that she had a heart problem.
“Q. Did you do anything about this?
“A. I asked her if she had any medicine, and then we found it, and I don’t recall if she took it at that time, or if I just gave her the bottle.
“Q. Would you consider her irrational at the time?
“A. No, just highly excited, confused.”
The defendant objected on two grounds. First that the statement of Mrs. Childers, as testified to by Debes, was hearsay and, second, that it was a violation of the marital privilege. The state responded by arguing privilege had been waived by the communication of Mrs. Childers to a third party (Debes) and that there had also been a waiver of the privilege by virtue of defendant agreeing to talk to the officers. The state further argued that where a privileged communication between husband and wife had been communicated to a third person, that person, so long as it falls within the exception to the hearsay rule (K. S. A. 60-460 [a]), can relate what the substance of it was because he is not bound by the privilege. The record does not reflect the rationale of the trial court in overruling the objections. The court merely ruled, “I think it is all right.”
On appeal defendant points out that the statement in question was made to his wife when no other person was present, thus, it was confidential, and that as an accused the privilege was solely his and could not be waived by his wife under K. S. A. 60-423, citing our opinion in State v. Glover, 219 Kan. 54, 547 P. 2d 351.
In addition to the arguments advanced at trial, the state, on appeal, argues that without regard to the marital privilege, the testimony of Officer Debes was admissible under K. S. A. 60-460 (d) (2) [res gestae], and K. S. A. 60-463 [multiple hearsay].
As an exception to the hearsay rule, a res gestae statement is defined in these words in the first two clauses of 60-460 (d):
“(d) A statement (1) which the judge finds was made while the declarant was perceiving the event or condition which the statement narrates, describes or explains, or (2) which the judge finds was made while the declarant was under the stress of a nervous excitement caused by such perception. . .
In Card, Kansas Code of Civil Procedure Annotated, Sec. 60-460 (d), the Author’s Commentary reads:
“Clauses (1) and (2) of this section describe conventional res gestae, admissible hearsay with the characteristic of spontaneity arising either from the reaction to contemporary perception or from the excitement which carries over from the event. The Kansas law is unchanged as to these two described kinds of res gestae. . . (pp. 469-470.)
While the trial court made no specific separate finding in this regard, we believe the record conclusively shows that defendant’s statement to his wife was spontaneous and a part of res gestae and that the restating thereof by Mrs. Childers to Officer Debes arose from the excitement which carried over from the event.
We note, in passing, that the language in clauses (1) and (2) is identical to that appearing in clauses (a) and (b) of Rule 63 (4) of the Uniform Rules of Evidence, Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings (1953), p. 199. Rule 1(8) of the Uniform Rules, p. 164, provides that a ruling implies a supporting finding of fact. Debes described Mrs. Childers as “very excited” and emotionally upset. She was also suffering from a heart problem and Debes, at her request, got her medicine for her. We further note that the statement of Mrs. Childers was not made as a direct response to any specific question put to her by Debes, but was a part of her spontaneous description of what had happened.
K. S. A. 60-463 reads:
“A statement within the scope of an exception to K. S. A. 60-460 shall not be inadmissible on the ground that it includes a statement made by another declarant and is offered to prove the truth of the included statement if such included statement itself meets the requirements of an exception.”
In both instances, the statement made by defendant to his wife and repeated by her to Officer Debes was clearly a part of the res gestae and, thus, excepted from the hearsay rule under the provisions of 60-460 (d). As an exception to section 60-460, the statement was not inadmissible by reason of the provisions of 60-463. We note in State v. Blake, 209 Kan. 196, 495 P. 2d 905, that under 60-460 (d) (2) “nervous excitement” is the statutory requisite for admissibility and that even prior to codification the presence of that element has been relied on to admit statements as res gestae.
We have not, heretofore, been confronted with the precise issue presented. However, our holding on the point appears to accord with prevailing authority. This succinct statement appears in 2 Wharton’s Criminal Evidence (13th Ed.), Sec. 301:
“A res gestae declaration by one spouse will be admissible against the other, even though the declarant would not have been a competent witness against his spouse.”(p. 93.)
The general rule is stated in 29 Am. Jur. 2d, Evidence, Sec. 727, in the following language:
“. . . Accordingly, the fact that the declarant is incompetent to testify as a witness will not ordinarily affect the admissibility of his statements under the res gestae rule in either civil or criminal prosecutions. Thus, the res gestae declarations of a husband and wife are admissible for or against each other, even if the spouse would be incompetent to testify as a witness in the case. . . .” (p. 799.)
See, also, 22A C. J. S. Criminal Law, Sec. 662 (7), p. 674.
In a case factually similar to that at bar, and involving statutes comparable to ours, the Supreme Court of South Dakota, in State v. Burtts, 81 S. D. 150, 132 N. W. 2d 209, said:
“Mrs. Burtts was incompetent to testify against the defendant, her husband. SDC 1960 Supp. 36.0101 (1). However, she was not called to testify and, as we have said, the statements of the wife were a part of the res gestae. Consequently, the statute rendering the wife incompetent to testify against her husband did not make inadmissible the testimony of either Quenzer or the police officers as to the declarations and statements of the wife. The competency of the declarant is not an essential prerequisite to proof of her declarations as a part of the res gestae. Declarations and statements made by one spouse against the other, are admissible against the other when part of the res gestae, (citing cases.)” (p. 156.)
Cases in accord from other jurisdictions are: Eubanks v. State, 242 Miss. 372, 135 So. 2d 183; State v. Murray, 67 Nev. 131, 215 P. 2d 265; Davidson v. State (Tex. Crim.), 386 S. W. 2d 144; and People v. Foley, 64 Mich. 148, 31 N. W. 94.
As previously indicated, the record does not reflect the reasons for the trial court’s ruling, but in any event it was correct and must be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. (See, Owens v. City of Bartlett, 215 Kan. 840, 528 P. 2d 1235, and cases cited therein.)
Defendant next claims error in the trial court’s refusal to give an instruction on self-defense. Self-defense as a defense in a prosecution such as at bar is defined in K. S. A. 21-3211:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use oí unlawful force.”
The phrase “reasonably believes,” as it is used in the statute, is clarified by the advisory committee in its notes following the statute. The committee states:
“. . . A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief.”
We agree with the advisory committee’s interpretation of the phrase in question. In other words, in order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of some facts that would support such belief. In this connection, the applicable test was set forth in State v. Smith, 161 Kan. 230, 167 P. 2d 594, where in referring to the evidence in such case, we said:
“. . . [I]t is well to remember the test is not how much but is there any. . . .” (p. 237.)
We also pointed out in Smith that where the giving of a self-defense instruction is warranted by the evidence, failure to give it is reversible error even in the absence of a request.
In response to defendant’s contention, the state says that even though defendant might have believed he was in danger there was absolutely no evidence to support such belief. We have carefully examined the defendant’s testimony, which is the only evidence on the point and, viewing it in the light most favorable to him, we are, nevertheless, compelled to agree with the state’s position. In summary the defendant testified that he had never had any trouble with Mr. Frost prior to July 21, 1973. The two conversations preceding the shooting were very brief, defendant was addressed by Frost as Mr. Childers, there were no verbal threats or threatening gestures made by Frost in either of the two conversations. In his testimony, defendant related the second conversation in these words:
“A. ‘Mr. Childers, I asked you to stop molesting my children. I don’t mind you giving them candy, but don’t cuss them.’ I told him, I said, ‘Mr. Frost,’ I said, ‘I ain’t cussed your children.’ I said, ‘Go away and leave me alone.’ ”
At the conclusion of the second conversation the parties remained silent for about three minutes; Frost was standing outside the window, defendant was lying on his side in bed looking at Frost through the window. Defendant was asked:
“Q. And his standing there like that, and what he said to you, this is what made you scared enough to pull a gun and start shooting; is this correct, sir?
“A. Yes, sir.”
There is nothing shown that would persuade a reasonable man to believe that he was in imminent danger. We find no error in this regard.
For his final point on appeal defendant asserts error in the denial of his motion for a new trial. In support of this point defendant merely refers to his arguments made on his other points. We have carefully examined all of the points raised by defendant’s industrious and thorough counsel, but find no reversible error shown.
The judgment is affirmed. | [
-16,
-8,
-76,
-98,
10,
96,
42,
84,
70,
-25,
98,
115,
41,
-49,
85,
121,
-102,
47,
84,
105,
-63,
-77,
87,
-63,
-70,
-13,
-13,
-43,
-75,
-49,
-84,
-12,
8,
112,
-54,
85,
38,
8,
-27,
-42,
-114,
25,
-104,
-48,
18,
2,
52,
111,
84,
11,
49,
30,
-69,
42,
26,
-61,
73,
44,
75,
-67,
-44,
121,
10,
5,
-33,
22,
-77,
-126,
-66,
-115,
112,
46,
-104,
49,
0,
-24,
115,
-74,
-122,
-12,
109,
-103,
12,
102,
66,
33,
-115,
-25,
-7,
-55,
47,
-9,
-67,
-89,
-103,
104,
67,
68,
-73,
-33,
114,
116,
11,
-8,
-25,
79,
12,
104,
-128,
-49,
-76,
-103,
-51,
56,
-110,
-104,
-29,
1,
52,
113,
-51,
-94,
86,
-59,
48,
-37,
-118,
-106
] |
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a jury verdict which found Larry Woods (defendant-appellant) guilty of battery (K. S. A. 21-3412) and aggravated battery (K. S. A. 21-3414) arising from separate attacks on Reinhart Dusin in Phillipsburg, Kansas, on August 24, 1975.
Various alleged trial errors are asserted on appeal.
Reinhart Dusin, 57 years old, owned a farm northwest of Phillipsburg, Kansas. Just before midnight on August 23, 1975, he came into the Colonial Lounge in Phillipsburg for a beer. Shortly thereafter Dusin heard loud voices, including that of the bartender and owner, Leon Preister. Dusin, thinking it would be a good time to leave, walked by the proprietor and Larry Woods and said something like, “hi, what’s going on” to Mr. Preister. Almost immediately thereafter he was struck twice in the face and knocked out by Larry Woods. Dusin did not say anything to the defendant or provoke the incident in any manner. Mr. Preister confirmed the sudden and unprovoked nature of Larry Woods’ attack. As a result of this Colonial Lounge incident, the defendant was charged with battery. (K. S. A. 21-3412.)
When Dusin regained consciousness he rested for a while. At approximately 1:30 a. m. he drove to the Rocket Grill for some food. As he walked toward the rear of the grill, he recognized the defendant. Dusin stopped to say that he did not mean any offense at the lounge. While he had his hands at his side, the defendant suddenly jumped up from his seat, struck Dusin several times and pushed him to the ground. This time when Dusin fell to the floor the defendant “kicked and clobbered” him. Florence Richards, owner of the Rocket Grill, testified Larry Woods kicked Dusin in the face and ribs many times despite her pleas and the pleas of Larry’s girl friend to stop. John Gorache, a farm laborer, Mitchell Johnson, a Phillipsburg teacher, and Larry Henderson, who worked for the Norton Daily Telegram, uniformly testified and confirmed that Larry was kicking and stomping the helpless Dusin.
Florence Richards and the other witnesses also uniformly testified they never heard Dusin say anything to the defendant, try to hit the defendant or attack him in any way. Nothing appears in the record to show the brutal assault was in any way provoked by Dusin.
When the defendant was finally pulled away, Dusin started to get up. The defendant broke away from those holding him, pushed Dusin out the door and continued to kick him. Dusin suffered severe contusions to his face and body and severe lacerations to his mouth which required a doctor’s treatment at the hospital. Due to these injuries, Dusin was unable to complete his summer fallow. Dusin still bore scars from the assaults some two months later. As a result of this Rocket Grill incident, the defendant was charged' with aggravated battery. (K. S. A. 21-3414.)
The trial commenced on November 24, 1975. Pertinent trial events are referred to later in this opinion. On November 26, 1975, the jury found the defendant guilty of both charges. On December 3, 1975, a motion for a new trial was denied, and appeal was thereafter duly perfected.
The appellant first contends the court erred in sustaining the state’s motion to amend Count Two of the information immediately prior to the trial, and the amendment prejudiced the substantial rights of defendant.
Count Two of the original information, filed September 24, 1975, charged:
“That on or about the 24th day of August, 1975, the said Larry Woods, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, willfully and feloniously apply force to the person of another, to-wit: Reinhart Dusin, at the Rocket Grill, Phillipsburg, Kansas, with the intention to injure said Reinhart Dusin, and which did inflict great bodily harm upon or cause disfigurement to the said Reinhart Dusin. . . .”
On November 24, 1975, the first day of trial, the last sentence of Count Two was amended, over the defendant’s objection, to read as follows:
“[A]nd either which did inflict great bodily harm upon the said Reinhart Dusin, or which was done in a manner whereby great bodily harm or disfigurement could have been inflicted to the said Reinhart Dusin. . . .”
The county attorney thought the amended information was clearer and more accurately reflected the statutory language of K. S. A. 21-3414.
The appellant’s contention is controlled by K. S. A. 22-3201(4) (now K. S. A. 1976 Supp. 22-3201[4]) which provided:
“The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The appellant does not complain that he was taken by surprise. The amendment did not change the nature of the crime alleged, charge the appellant with any additional or different crime, or prejudice the substantial rights of the appellant. Accordingly, no error is shown by the amended information. (K. S. A. 22-3201[4]; State v. Rives, 220 Kan. 141, 144-145, 551 P. 2d 788; and State v. Osburn, 216 Kan. 638, 640-641, 533 P. 2d 1229, and authorities cited therein.)
Second, the appellant contends it was error for the court to give jury instruction No. 2(3) which stated an element of the crime charged in the disjunctive. The appellant attacks both the information and the instruction thereunder as being stated in the disjunctive and lacking certainty. (Citing State v. Seeger, 65 Kan. 711, 70 Pac. 599; and State v. Kamen, 166 Kan. 664, 203 P. 2d 176.)
State v. Seeger, supra, involved a complaint where one could not tell whether the defendant was being charged with maintaining a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or whether they were being prosecuted for maintaining a place where such liquors were kept for the purpose of sale, barter or delivery in violation of the law.
In State v. Kamen, supra at 665, the information charged the defendant did unlawfully, feloniously, willfully buy and receive personal property “that had been embezzled, taken or secreted, or stolen from another . . . knowing the same to have been so embezzled, taken or secreted, or stolen.” The court held this information, which charged that the defendant did one thing, or another, or still another, not only lacked certainty but failed to clearly set forth the offense charged.
Both of these cases involve situations where the act complained of could not be determined with certainty. The appellant in the instant case argues the same reasoning applies to the information and instruction given thereunder. Here the appellant was informed of the act complained of, although the consequences of that act may have been uncertain.
The information and instruction given thereunder comply with the statutory language of K. S. A. 21-3414 and PIK Criminal, Sec. 56.18. Generally an information drawn in the language of the statute is sufficient. (State v. Clanton, 219 Kan. 531, 534, 548 P. 2d 768; and Carithers v. State, 207 Kan. 607, 485 P. 2d 1368.) Similarly, an instruction patterned after the statute is valid. (State v. Beard, 220 Kan. 580, 552 P. 2d 900; State v. Schriner, 215 Kan. 86, 91, 523 P. 2d 703; and State v. Worth, 217 Kan. 393, 395, 537 P. 2d 191, cert. denied, 423 U. S. 1057, 46 L. Ed. 2d 647, 96 S.Ct. 792.) (See also 42 C. J. S., Indictments and Informations, Sec. 139[c], p. 1037.)
Although using the disjunctive “or” the information and the instruction given thereunder do not lack certainty or fail to set forth the offense charged. (State v. Rogers, 142 Kan. 841, 52 P. 2d 1185.) Generally the use of the disjunctive is fatal only where uncertainty results. (42 C. J. S., Indictments and Informations, Sec. 139[b], p. 1037; and State v. Loy, 146 W. Va. 308, 119 S. E. 2d 826 [1961].)
Our conclusion that the use of the disjunctive did not cause fatal uncertainty is supported by the fact that the appellant did not request a bill of particulars under K. S. A. 22-3201(5) which provides:
“When a complaint, information or indictment charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare his defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial the state’s evidence shall be confined to the particulars of the bill.”
The appellant next attacks the trial court’s instruction on self-defense contending that the second paragraph was redundant and confusing and prejudiced his rights.
The trial court instructed:
“A person is justified in the use of force to defend himself against an aggressor’s imminent use of unlawful force, to the extent it appears reasonable to him under the circumstances then existing.
“A person may lawfully use, however, only such force as may reasonably seem necessary to him or her in defending one’s self against unlawful attack and serious bodily harm, but such person may not go further than appears reasonably necessary for such defense.”
The first paragraph in this instruction is a verbatim recitation of PIK Criminal, Sec. 54.17. The second paragraph is taken from State v. Blocker, 211 Kan. 185, 192, 505 P. 2d 1099,which quoted 40 Am. Jur. 2d, Homicide, Sec. 139, pp. 429-430. Standing alone, PIK Criminal, Sec. 54.17 adequately instructs on self-defense. (State v. Duckworth, 219 Kan. 619, 549 P. 2d 554.) However, the second sentence is permissible in this case because the evidence adduced at trial demonstrated that a distinct pause occurred at the Rocket Grill before the defendant resumed his attack on Dusin, and further that the defendant repeatedly kicked and stomped Dusin while he lay defenseless on the floor.
The appellant speculates these two sentences confused the jury. We disagree. Identical attacks upon similar self-defense instructions have been rejected in the past. In State v. Blocker, supra, the court approved an even lengthier instruction on self-defense saying:
■ • In our opinion, the instructions cover very adequately — and perhaps in much more detail than required — the essential elements of the age-old doctrine of self defense; the right of a person attacked to defend himself against serious personal harm and to use such force, but no greater, as reasonably appears to him to be necessary for that purpose, and in so acting the person attacked is justified.” (Emphasis added.) (p. 194.)
Similarly in State v. Stokes, 215 Kan. 5, 8-9, 523 P. 2d 364, a two sentence self-defense instruction consisting of PIK Criminal, Sec. 54.17 and a sentence on the use of deadly force was approved. (See also State v. Gregory, 218 Kan. 180, 185, 542 P. 2d 1051; and State v. Beard, supra.) The self-defense instruction above, considered as a whole, clearly and accurately reflected the law on self-defense. No error is shown.
The trial court’s instruction No. 6 relating to a presumption of intent reads as follows:
“There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.”
This instruction was taken verbatim from PIK Criminal, Sec. 54.01.
The appellant contends the trial court erred in giving jury instruction No. 6 because it confused general intent with a specific intent instruction No. 2.
Instruction No. 2(2), which instructed on the crime of aggravated battery, specifically required the state to prove that the act was with intent to injure Reinhart Dusin. This instruction was supplemented by instruction No. 5, which defined the word “intentionally” for the jury. The inclusion of these instructions, in conjunction with instruction No. 6 from PIK Criminal, Sec. 54.01, fulfilled the trial court’s duty to properly instruct on intent. The committee’s comments regarding PIK Criminal, Sec. 54.01 are:
“The Committee feels that the requirements of general intent are sufficiently covered by the above instruction. Where a specific intent is involved in any crime, such requisite intent is included as an item in the elements instruction required to be proved. This included recital, together with the above instruction, adequately covers the statutory specific intent requirements.” (p. 74.)
That one is presumed to intend all the natural consequences of his acts is a well established rule in Kansas. (State v. Gander, 220 Kan. 88, 551 P. 2d 797; and State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152.) Furthermore, intent, like any element of a crime, may be shown by circumstantial evidence. (State v. Gander, supra at 90; and State v. Townsend, 201 Kan. 122, 439 P. 2d 70.)
This court has consistently upheld the challenged instruction. (See State v. Gander, supra; State v. Lassley, 218 Kan. 752, 545 P. 2d 379; and State v. Warbritton, supra at 509.)
The appellant argues such a presumption of intent instruction violates K. S. A. 21-3201(1) which provides in part:
“. . . Proof of willful conduct shall be required to establish criminal intent. . . .”
This precise point was recently answered in State v. Lassley, 218 Kan. 758, 545 P. 2d 383. There the court said:
“The presumption that a person intends all the natural and probable consequences of his voluntary acts is rebuttable, and may be overcome by evidence to the contrary. (State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152.) This principle is consistent with the requirement that the prosecution prove the criminal intent. Intent is difficult, if not impossible, to show by definite and substantive proof. Thus, it is agreed that criminal intent may be shown by proof of the acts and conduct of the accused, and inferences reasonably drawn therefrom. We fail to see any conflict with the statutory burden placed on the state.
“The propriety of the instruction given by the trial court is evident when the instructions are considered as a whole. This is especially true when the challenged instruction is read in conjunction with Instruction No. 9, which states:
“ ‘The law places the burden on the State to prove that the defendant is guilty. The law does not require the defendant to prove his innocence. Accordingly you must assume the defendant is innocent unless you are convinced from a consideration of all of the evidence in the case that he is guilty.’ The burden was properly placed on the state to prove defendant’s guilt. The state was entitled to the presumption that defendant intended the natural and probable consequences of his acts and the trial court correctly instructed to that effect.” (pp. 762-763.)
The trial court here also instructed the jury that the law places a burden on the state to prove that the defendant is guilty. Taken as a whole, we find no error in the intent instruction given.
The appellant contends the trial court erred in failing to give an instruction on the lesser included offense of criminal injury to persons, K.S.A. 1976 Supp. 21-3431, even though both plaintiff and defendant agreed the instruction not be given. Counsel for the appellant candidly admits that at the trial he requested the instruction not be given.
However, K. S. A. 21-3107(3) provides:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.” (Emphasis added.)
Thus the alleged error may be presented on appellate review. (State v. Weyer, 210 Kan. 721, 504 P. 2d 178; and see State v. Childers, 217 Kan. 410, 415, 536 P. 2d 1349.)
The simple answer to appellant’s contention is that the criminal injury to persons statute, K. S. A. 1976 Supp. 21-3431, was declared unconstitutionally vague in State v. Kirby, 222 Kan. 1, 563 P.2d 408. Since an unconstitutionally vague statute is of no force, an instruction thereon would be erroneous and a conviction based thereon could not stand. (State v. Sisson, 217 Kan. 475, 476, 536 P.2d 1369.)
Furthermore, the record discloses no evidence to support an instruction on criminal injury to persons. The appellant has the burden to establish that error has been committed. (State v. Robertson, 221 Kan. 409, 411, 559 P. 2d 810; State v. Lee, 221 Kan. 109, 558 P. 2d 1096; and State v. Pettay, 216 Kan. 555, 532 P. 2d 1289.) All the witnesses testified to a brutal and unprovoked assault, to the defendant’s kicking and stomping Dusin, and to the defendant’s resumption of the attack when a helpless Dusin attempted to flee. Even if the statute had not been declared unconstitutional, no instruction on criminal injury to persons would have been necessary. (State v. Wright, 221 Kan. 132, 557 P.2d 1267.)
The appellant contends the court erred in refusing to permit Naomi Bowen to complete her testimony before the jury.
At the trial Dusin testified on cross-examination he had never been involved in an altercation like this, or one involving pushing and shoving before, although he had pled guilty to a disorderly conduct charge in the past. The appellant’s counsel offered, for impeachment purposes, the testimony of Naomi Bowen who worked at the VFW club in Phillipsburg. Her proffered testimony was that Dusin had cussed at her, struck her in the shoulder, and wrestled with her husband following an altercation at the VFW club.
The state objected to this proffered testimony as irrelevant, incompetent and immaterial in view of the appellant’s testimony that he knew absolutely nothing about Mr. Dusin and thus would not know his reputation for being a fighter. After listening to Naomi’s testimony outside of the jury’s hearing, the trial court sustained the objection.
The appellant contends the proffered testimony of Naomi Bowen tended first to cast doubt upon the credibility of the complaining witness, Reinhart Dusin, and secondly it bore upon the intent of the appellant, and upon whether or not his actions were taken in self-defense.
The appellant’s contentions are without merit. K. S. A. 60-422 provides in part:
“As affecting the credibility of a witness ...(d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
K.S.A. 60-447 provides in part:
“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K. S. A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible. . .
Here the challenged evidence was offered primarily to attack Dusin’s credibility and portray him as the person who provoked both the Colonial Lounge and Rocket Grill incidents. As such, the testimony of one specific past instance was properly excluded under 60-422 (d) and 60-447 (a), supra. The appellant did not attack Dusin’s general reputation or present opinion testimony attacking his credibility under K. S. A. 60-446. (State v. Humphrey, 217 Kan. 352, 364, 537 P. 2d 155; State v. Johnson, 219 Kan. 847, 851-852, 549 P. 2d 1370; and State v. Mason, 208 Kan. 39, 41, 490 P. 2d 418.)
The proffered evidence was not relevant on the issue of self-defense because there is no evidence in the record to indicate the appellant knew Dusin or anything about him.
The judgment of the lower court is affirmed. | [
113,
-18,
-39,
-97,
8,
-32,
58,
28,
50,
-109,
-14,
115,
-53,
-5,
77,
121,
-13,
109,
84,
105,
-34,
-105,
22,
33,
-108,
-13,
58,
-43,
-79,
74,
-76,
-33,
74,
112,
10,
29,
-26,
90,
-57,
20,
-120,
4,
-103,
-48,
83,
80,
-84,
58,
-116,
11,
49,
30,
-29,
42,
28,
-53,
9,
44,
91,
43,
88,
-7,
-45,
21,
-35,
50,
-94,
2,
-98,
7,
88,
127,
-103,
-72,
33,
-24,
115,
-95,
-126,
116,
69,
-119,
12,
102,
98,
36,
-103,
-51,
-32,
-119,
15,
124,
-99,
-121,
-72,
65,
0,
32,
-98,
-97,
98,
86,
27,
-16,
-31,
31,
25,
108,
-122,
-54,
-112,
-77,
15,
44,
22,
120,
-21,
47,
36,
101,
-55,
-6,
77,
117,
113,
-101,
-102,
-107
] |
The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a district court order affirming the decision of the State Corporation Commission of the State of Kansas (Commission) dismissing a complaint filed by Lola B. Jones and Marie R. Wilson (complainants) attacking the validity of the late payment charges imposed by the Kansas Gas and Electric Company (KG&E) and the Gas Service Company (Gas Service).
The complaint, filed August 3, 1972, alleged that Jones was a subscriber to the services of KG&E and on May 10, 1972, she received a bill for services in the amount of $11.64. The bill stated that if she did not pay the amount due by May 24, 1972, she would have to pay a late payment charge of fifty-nine cents. Wilson was a subscriber to the services of Gas Service and on June 16, 1972, she received a bill for services in the amount of $16.46, $9.60 of which was past due from previous billing periods. Her bill stated that if she did not pay the amount due by June 30, 1972, she would have to pay a late payment charge of thirty-four cents. The complainants further stated that both were public assistance recipients; therefore, they encountered great difficulty in paying their utility bills within the allotted payment period and were forced to pay late penalties. In addition, complainants alleged the utility companies did not allow customers to choose a convenient date for billing purposes. According to complainants, the late charges were usurious interest in violation of K.S.A. 16-201, et seq.; violated the Kansas Truth In Lending Act (K.S.A. 16-801, et seq., now repealed) and the Federal Truth In Lending Act (15 U.S.C., Sec. 1601, et seq)-, and were “unjust, unreasonable, arbitrary, capricious, unjustly discriminatory, and unduly preferential, all in violation of K.S.A. 66-107.”
Complainants asked the Commission to convene and conduct an investigation and (1) compel the utilities to permit a 45-day period to expire from billing before assessing any late penalty; (2) allow utility subscribers to choose their own regular billing date; (3) limit late charges to no more than one-half of 1% of the principal of their bills; (4) require the utility companies to conform their billing practices with K.S.A. 16-820 and 15 U.S.C., Sec. 1637; and (5) apply all previously paid late charges, together with 6% annual interest, to the accounts of their respective subscribers.
KG&E answered the complaint admitting jurisdiction and identity of the parties. As a defense it stated the late payment charges were provided within its approved rates as follows:
“GROSS MONTHLY BILL
“The net monthly bill; computed in accordance with the Net Monthly Rate, plus 5% on the first $200 and 2% on the balance thereof.
“PAYMENT
“The net monthly bill is due and payable when rendered; when not paid within 15 days from date, the Gross Monthly Bill applies.”
Gas Service answered in a similar fashion, setting forth Rule IV (a) of its rules and regulations on file and approved by the Commission, which stated:
“Bills for service shall become delinquent fifteen (15) days after date of the bill or meter reading in case of self billing. If bill becomes delinquent, a 5% penalty charge will be added on the first $200 and 2% on the balance thereafter. ° ° 0 ”
Both respondents asserted the late charge was necessary to encourage prompt payment, to offset the cost of handling, processing and collecting delinquent accounts, and was reasonable; that the charge was neither interest nor a charge for forbearance of collection and therefore neither usurious nor in violation of K.S.A. 16-201, et seq.; and that the provisions of K.S.A. 16-801, et seq., and 15 U.S.C., Sec. 1601, et seq., specifically excluded application to public utilities.
Hearings commenced on January 16, 1973, and continued intermittently until their conclusion on February 23, 1973. The matter was taken under advisement, and on April 3, 1974, the Commission rejected in toto the complainants’ allegations and requested relief. Petition for rehearing was denied. Jones and Wilson then filed a petition in district court for judicial review, pursuant to K.S.A. 66-118c. Following submission of the transcript and briefs, the district court issued an order sustaining the Commission’s order of dismissal. This appeal ensued.
Before proceeding further, the billing practices of the respective utilities should be disclosed. Gas Service and KG&E, as well as most other utility companies in this state, practice “cycle billing.” Under this system the utility divides its service area into geographic districts for meter reading and billing purposes. The districts are read and billed so all are processed in a continuous cycle. Gas Service bills on a 30-day cycle. Since there are normally 21 working days in each billing period, the service area is divided into 21 districts. If a customer lives in a district where bills are prepared on the first day of the month, his meter is usually read on the 25th or 26th day of the preceding month. After the meter is read, the meter reading card is sent to the Gas Service central office where the computer prepares the bill. It is then shipped to the local office and on to the customer, who receives it on the 4th. The customer has until the 15th to pay his bill without incurring the 5% late payment charge; however, Gas Service takes no action to collect late bills until the 22nd. At that time all bills in the district are reconciled to determine which customers are tardy, and second notices are prepared and mailed to those customers. The second notice informs the customer that his service may be shut off if payment is not made within 10 days. Gas Service generally waits a week after the shut-off date listed on the customer’s second notice, then sends a collector to the customer’s address to either collect the bill or shut off service. The time elapsing from preparation of the first bill until potential termination is about 41 days.
KG&E uses a similar billing system, except its second notice is not mailed until 10 days after the late payment charge is assessed, or 25 days after the bill is initially prepared. Like Gas Service, this is KG&E’s first effort to collect a delinquent account after initial billing.
As indicated, both complainants were subscribers to services of the utilities and had been assessed late payment fees. KG&E had threatened to terminate Jones’ service eleven times for nonpayment of bills. Wilson had paid her bill to Gas Service without incurring a penalty only eight times in the two years preceding the complaint. Both alleged their tardiness was attributable to the fact they received their public assistance checks on the first of the month and by the time they paid other bills they did not have enough to pay their utilities. As a result a late charge was imposed before they received their next checks and paid their bills. Since they received their welfare checks at the first of the month they felt the utilities should be required to bill on a date chosen by each individual consumer and there should be a 45-day period before any late penalty was assessed. Furthermore, they felt penalties should be limited to one-half of 1% of their bills.
To support their position, complainants called Warren J. Samuels, Professor of Economics at Michigan State University. As an author of many articles, he testified as an expert on utility billing practices, particularly late payment charges. He felt that “net-gross billing,” “forfeited discounts” or “late penalties” are semantically interchangeable and that in reality all these charges are interest, not a penalty. A 5% charge assessed as a penalty on a late bill, in his opinion, is usurious interest. To illustrate his point he noted that the 5% assessed on a bill due on the 15th of the month would amount to more than 1800% annual interest if the bill were paid on the 16th. If the bill were paid on the 17th the annual interest rate would drop, to about 900%. He concluded that because the late penalty was a one-time charge and the actual interest rate declined each day a bill was not paid after the late penalty was assessed, late penalties were dysfunctional to their purpose of encouraging people to pay their bills promptly. He also stated that utilities do not attempt to collect delinquent accounts until 22 to 25 days after the initial bill is rendered and 7 to 10 days after the penalty is imposed; therefore, there are actually three classes of customers involved: (1) Those who pay on time and incur no penalty; (2) those who do not pay on time and incur a penalty, but pay before any collection effort is made; and (3) those who do not pay on time and incur a penalty, but force the utility company to undertake additional collection efforts. He concluded late charges assessed against the second class of persons were unreasonable because the utility companies suffered no collection costs because of them. The witness further stated there would be no inconvenience to the utilities to extend their current 15-day billing cycle to 30 days or longer. Although he had no hard data he concluded it would not create any additional delinquencies or bad accounts.
KG&E and Gas Service defended their present billing practices and attacked complainants’ requests as unreasonable. They explained that the present system of “cycle billing” is the most efficient use of personnel and equipment possible and has the effect of keeping down their overall rates. If they were required to allow consumers to choose their own billing date or if they were required to issue all bills at the first of the month, cycle billing would be disrupted and accounting costs would increase dramatically.
Witnesses for both utilities testified that “late payments,” “forfeited discounts” or “net-gross charges” were used (1) to encourage prompt payment of bills, and (2) to levy collection costs against those persons responsible for creating them. They contended that elimination of the late payment charge or creation of an extension beyond the current 15-day grace period would do substantial harm to the utilities by increasing delinquent accounts, collection costs and bad debts. Kenneth E. Holeman, assistant controller for Gas Service, supported this argument by pointing out that Wichita Gas Company (predecessor to Gas Service) imposed a 10% late penalty prior to 1927. That year the penalty was reduced to the present 5% charge. At the same time the amount of delinquent payments rose from 7.9% to 16.7%. W. B. Walker, secretary and comptroller for KG&E, stated that he had studied billing practices for more than twenty years. In his experience with KG&E, other utility companies, and professional study he determined that late charges encourage prompt payment and the greater the period of time between billing and imposition of the late charge, the greater the number of delinquent accounts and uncollectible debts. Holeman testified than an additional 15-day extension before imposing a late charge would cost Gas Service $159,000 a year for extending credit and would increase bad debts by $45,000. Bad debts are written off the books and have the effect of being borne by all customers through higher overall rates.
These conclusions were supported by intervenors Kansas City Power & Light Company (KCP&L) and Central Telephone & Utilities Corporation (CT&U). Louis C. Rasmussen, assistant manager for rates at KCP&L, explained that his studies indicate a 15-day extension of the present period would double the number of late payments and bad debts. This would increase collection costs and ultimately the overall utility rate. John C. Ewing represented CT&U. He said the utility serves areas in Kansas and Colorado. In Kansas the “net-gross” billing method is used; however, no late charges are imposed on Colorado customers, as the Colorado tariff does not allow the practice. Ewing stated:
“I have made a study of the company’s recent experience with delinquent acccounts in Colorado similar to the study which I made in Kansas. This again was for the month of December, 1972. At the end of the first 15 days following issuance of the bill, 21,514 customers, or 35.7% of the total 60,252 customers in Colorado had not paid their bills. This compares with 9,012 customers, or 16% of the total in Kansas. At the end of the first 30 day period, 11,860 customers, or 19.7% had not paid their bills in Colorado. This compares with 5,229 customers, or 9.3% in Kansas. At the end of the first 60 day period, 2,594 customers, or 4.3%, had not paid their bill in Colorado. This compares with 708 customers, or 1.3% in Kansas.
“My study shows that the percentage of customers [who] do not pay promptly in Colorado is more than twice as high as it is in Kansas. In my opinion, the gross-net billing that we have in Kansas is effective in producing prompt payment.”
The utilities further argued that the 5% late charge was not unreasonable or excessive. They pointed out that the cost of collection should be borne by those causing it or it would have to be assimilated into the general rate structure. This would discriminate because it would require the prompt paying customer to share in costs created by another class of customers.
The present late charge was designed to recover collection costs. Based upon company records, KG&E spent $463,529 in collecting delinquent accounts and at the same time collected late fees in the amount of $355,670. Gas Service collected $444,220 in late payment charges, spending $484,984 collecting late bills. Both utilities argued late fees could not be considered interest because the charges were directly related to the real cost of collecting delinquent accounts. The Commission agreed.
I. Scope of Review
The scope of review is controlled by K.S.A. 66-118d. It is limited to determining the lawfulness and reasonableness of the order of the Commission and this court has no power to set aside its order unless it is found the Commission acted unlawfully or arbitrarily without supporting evidence. (K.S.A. 66-118d; Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P. 2d 1; Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P. 2d 266.) If the order of the Commission is based upon substantial competent evidence the order will generally be considered reasonable. (Central Kansas Power Co. v. State Corporation Commission, supra; Rock Island Motor Transit Co. v. State Corporation Comm., 169 Kan. 487, 219 P. 2d 405; Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985.) Substantial competent evidence is evidence which possesses something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved. (Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, 527 P. 2d 1065; Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P. 2d 614; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828, 28 A.L.R. 3d 472.)
II. Application of Interest Laws to Late Charge
Complainants characterize the late charge as usurious interest, relying upon K.S.A. 16-201. They argue that since they did not agree to the imposition of the 5% charge the highest rate of interest they can be assessed is 6% per annum; therefore, all charges in excess of the legal rate are usurious.
This argument overlooks the clear language of the statute and the settled case law of this state, both of which limit the application of 16-201. Interest is defined as compensation allowed by law or by agreement of the parties for the use or forbearance of money. (Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 357, 532 P. 2d 1081; Brown v. Hiatts, 15 Wall. 177, 185, 21 L. Ed. 128.) The following cases have held that late payment charges are not interest: Ferguson v. Electric Power Board of Chattanooga, Tenn., 378 F. Supp. 787 (E.D. Tenn. 1974), aff’d mem., 511 F. 2d 1403 (6th Cir. 1975); Delich v. Iowa Electric Light & P. Co., 9 P.U.R. 4th 335 (1975); Re Utah Power & Light Co., 19 P.U.R. (N.S.) 369 (1937).
Public utilities have now been specifically excluded from the restraints of consumer credit laws because of their regulated status. During the pendency of this suit Kansas adopted the uniform consumer credit code, known as the UCCC (K.S.A. 16a-l-101, et seq.). The Kansas Comment to K.S.A. 16a-l-102 states that “[o]ne of the primary purposes of the U3C is to place under a single statutory umbrella all aspects of consumer credit, thereby treating the subject as a functional unity.” The Comment to 16a-l-108 states that the act displaces prior usury laws relating to consumer transactions. Thus, even if late payment charges are considered interest they are not subject to 16-201 because the sale of commodities is a consumer transaction. Credit charges by public utilities are specifically exempted from the UCCC (16a-l-202 [3]), however, because they are regulated by other means. (K.S.A. 66-101, et seq.) Public utilities have also been freed from application of the Kansas Truth In Lending Act (K.S.A. 16-801, et seq., now repealed) and the Federal Truth In Lending Act (15 U.S.C., Sec. 1601, et seq) because of specific statutory exemptions, and complainants’ argument that utilities must comply with these laws has no merit. (K.S.A. 16-804; 15 U.S.C., Sec. 1603; 12 C.F.R., Sec. 226.3 [d].) See also, Ferguson v. Electric Power Board of Chattanooga, Tenn., supra; State Ex Rel. Guste v. Council of City of New Orleans, 309 So. 2d 290 (La. 1975). The appropriate basis for regulation of late charges by a public utility is neither the usury statute nor consumer credit laws; regulation of late charges rests solely with the agency of the state vested with the authority to supervise operation of the utility, subject to judicial review of the reasonableness of the rate. (State Ex Bel. Guste v. Council of City of New Orleans, supra.)
III. Reasonableness of Late Charge
The question next arises as to whether the late charge allowed by the Commission is reasonable. Complainants allege it is not and mount their attack on several fronts. They contend the present billing system is unreasonable because (1) it discriminates against low income persons; (2) it does not conform to standard commercial practices; (3) it does not encourage prompt payment; and (4) it does not reasonably assess collection costs against those who create them.
A considerable portion of complainants’ brief is devoted to the proposition that present billing practices discriminate against low income families, older persons, welfare recipients and persons on fixed incomes. They argue that because the utilities use “cycle billing,” coupled with a short payment period, these persons are consistently required to pay an excessive late charge. Complainants asked the Commission to require the utilities to allow consumers to choose the date on which they are billed and that the time for payment be extended to 45 days before a late penalty is imposed. The Commission ruled that both requests were unreasonable.
We believe there was substantial competent evidence to support the ruling of the Commission on both requests. Allowing consumers to choose the date on which they were to be billed would increase operating costs. Extending the time for payment would increase the amount of borrowed capital necessary to operate and would increase delinquent accounts, collection charges and bad debts. Ultimately, these increases would reach the general public through rate increases. The Commission correctly noted that the solution to the problems did not lie within the purview of the Commission to solve by forcing the general public to shoulder larger utility bills.
The Commission further found there was no proof the utilities intentionally designed their billing to discriminate against lower income consumers. On the contrary, the record indicates this class of persons is spread throughout the respective service areas with no significant concentration in one billing district over any other. Absent any proof the utilities have deigned to discriminate against the poor, this court can offer no relief. (State Ex Rel. Guste v. Council of City of New Orleans, supra.) Mere disparity of wealth alone does not require a court to act. (San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L.Ed. 2d 16, 93 S.Ct. 1278.)
Complainants next assert the late charge is inconsistent with standard business practices and therefore contrary to public policy. The inherent weakness with the argument is the fact respondents are not standard commercial enterprises; they are public utilities which are regulated by the state. (K.S.A. 66-101, et seq.) The legislature has declared that utility services are affected with a public interest. Every common carrier and public utility controlled by the Commission is required to serve all members of the general public without discrimination and must establish just and reasonable rates, fares, tolls and charges. (K.S.A. 66-107.) Rates, regulations and charges must be published (K.S.A. 66-108), and must not be ignored except within strict exceptions. (K.S.A. 66-109.) Utilities cannot refuse to serve a slow-paying customer or a credit risk who might be turned away by a local merchant. In order to compensate for this factor utilities are allowed to require deposits and impose late charges to minimize the risk of bad debts. The operation of a public utility cannot be compared with an ordinary business. (Delich v. Iowa Electric Light & P. Co., supra.)
Complainants argue throughout their brief that there are ways to enhance and improve present billing and collection procedures. These were considered and rejected by the Commission. Ignoring the limited scope of review possessed by this court, complainants attempt to convince us of the viability of their proposals. Suffice it to say that the existence of another method of collection does not preclude our determination that the methods previously mentioned are nonetheless reasonable. The choice of a method of collection remains with the Commission. Our review is limited to a determination of whether a method is reasonable, not whether it is the most desirable of those possible. Having made this determination we need not consider the merits of the alternatives proposed in the complainants’ brief.
Complainants contend that late payment charges do not encourage prompt payment. The evidence clearly disproves this fact. Both respondents and two intervenors, KCP&L and CT&U, presented opinion evidence and statistics which demonstrated that customers facing late charges pay more promptly than those who are not faced with late charges, and the greater the late charge the more promptly they pay. In their challenge, complainants presented evidence that Southwestern Bell Telephone did not levy a late charge and still collected 92% of its bills without any collection effort after initial billing. The Commission distinguished Southwestern Bell from KG&E and Gas Service on the basis that Southwestern Bell bills in advance of service to be performed, while KG&E and Gas Service bill for past service. The distinction is valid.
Finally, complainants allege the late charge is unreasonable because it does not assess collection costs against those who create such costs. Before examining the point it is necessary to review the billing procedure. When bills are prepared on the first day of the month they are due on the 15th. If a consumer does not pay by that date the 5% penalty is added. No additional action is taken by the utility company to collect the bill until later. Gas Service prepares its second notice on the 22nd. KG&E does not prepare its second notice until the 25th. The evidence is uncon troverted that until the second notice is prepared neither utility makes any effort to collect any of the outstanding accounts. Yet, during this time customers continue to pay their bills, including the 5% penalty assessed as a late charge and collection fee. KG&E collected $355,670 while it spent $463,529 on collections. Gas Service collected $444,220 while it spent $484,984 collecting late bills.
There are two classes of late payers: (1) Those who pay after a penalty is imposed but before collection efforts are initiated, and (2) those who do not pay until the utility company is forced to make additional collection efforts. The practice of assessing the same penalty against the two classes is unreasonable. Forty-four percent of all persons paying late fees to KG&E did so although they did not cause the company to incur any expense other than the extension of credit for the time between the date the late penalty was imposed and the date the bill was paid. KG&E’s cost of extending credit to all its late customers was only $11,333. Assuming the first class of late payers shared the same proportion of the cost of credit as their percentage of the entire group (44%), they would cause KG&E to extend $4,986.52 in credit. However, the actual proportion must be smaller, as the remaining 56% of late payers still had not paid their bills and forced the company to extend them additional credit. The number of persons comprising the first class of late payers for Gas Service is not known; therefore, similar calculations are not possible.
While the first class of late payers cost KG&E $4,986.52 in credit, they paid $156,494.80 in late fees. Had all late payers paid between the 15th and 25th day, before second notices were sent, KG&E would have collected $355,670 in penalties and spent nothing for collection. This further illustrates the irrational application of the present late penalty system.
The touchstone of public utility law is the rule that one class of consumers shall not be burdened with costs created by another class. (Coffelt v. Ark. Power & Light Co., 248 Ark. 313, 451 S.W. 2d 881 [1970]; Utilities Comm. v. Consumers Council, 18 N.C. App. 717, 198 S.E. 2d 98 [1973].) The Commission recognized this rule and we are in full accord. The problem is whether this theory is carried out by charging a uniform penalty or charge to all delinquent customers. The evidence demonstrates that many delinquent customers pay their bills before any collection costs accrue. Under the present system they must pay the same as the more recalcitrant customer pays. The argument advanced by the utility companies, the theory of which we approve, is that a prompt paying customer should not be burdened with the expense caused by someone else; but when fairness to the first class of late payers is considered we find they are required to do the very thing the penalty is intended to prevent, and are required to contribute toward the cost of collecting the bills owed by the more delinquent customers. To this extent we think the practice of assessing the same penalty against all delinquent customers, regardless of the nature or character of their delinquency, is discriminatory and unfair. (Ford v. Waterworks Co., 102 Miss. 717, 59 So. 880 [1912]; Pub. Serv. Com. of Mo. v. Kansas City Power & Light Co., 2 P.U.R. [N.S.] 391 [1933].)
Our decision does not condemn the use of a late penalty. There is ample justification for imposing a late payment charge. (City of Columbus v. Gas Co., 96 Kan. 367, 149 Pac. 402; Southwestern Tel. Co. v. Danaher, 238 U.S. 482, 490, 59 L.Ed. 1419, 35 S.Ct. 886.) The charge which is levied, however, must be reasonably related to the purpose to be achieved; and if the purpose is to recover collection costs the utility company must collect from the class of consumers creating the costs. The penalty charged the late payer who causes the utility company to incur collection costs should reflect those costs and should be more than the penalty charged the late payer who does not cause collection costs. The penalty against the first class of late payers should be less than the penalty against the late payer who causes collection costs and should be limited to an amount which encourages prompt payment and covers the cost of extending credit.
We conclude the action of the Commission relating to utility billing and late payment charges is not unreasonable except as to the imposition of a uniform late penalty. That portion of the judgment of the district court which affirmed the Commission’s decision on the reasonableness of the late charge is reversed and the case is remanded with directions to return the matter to the Commission for further proceedings consistent with the opinion.
The decision of the district court is affirmed in part and reversed in part and remanded with directions.
Schroeder, J., not participating.
Fromme, J., dissenting.
Any classification of customers made for the purpose of fixing late payment charges is bound to be arbitrary in nature. Some discrimination will necessarily result in fixing the classes. Late payment charges have the effect of decreasing late payments and bad debts. Those are the primary purposes for allowing such charges to be made. Such charges appear to be a means of accomplishing a legitimate purpose in the rate making process. A late payment charge requires that some arbitrary time limit be set for paying bills. This of necessity fixes two arbitrary classes of customers — those who pay on time and those who don’t.
The majority on this court seem to agree that a five percent (5%) late charge on customers who fail to pay their bills within some arbitrary time limit after billing is reasonable. However, the majority hold that such a charge is unduly discriminatory, unless an additional class of late-late paying customers be recognized. At this point I disagree with the majority and will briefly set forth my reasons.
To require the state Corporation Commission to further divide late paying customers into additional classes so as to burden the late-late paying customers with some additional expense incurred in securing payment of their bills is both economically burdensome and practicably unworkable. Where are the lines of classification to be drawn? Should the additional classification be set on a basis of payment after additional days, weeks or months from the first billing? If so, how do you arrive at a flat charge for these late-late paying customers which will reflect the actual costs incurred for postage, bookkeeping, billing, personal collection efforts, costs of turning off meters and of restoring service up to the time a bill is finally paid?
What I am saying is that any further classification of late-late paying customers must likewise be made on an arbitrary basis and not on the basis of the actual expenses incurred. Some discrimination will result regardless of where the lines are drawn. Some economically feasible balance must be struck between expenses incurred and classifications to be charged.
The rule that one class of consumers shall not be burdened with costs created by another class as set out in paragraph 10 of the syllabus was designed for classifications of customers based upon the different classes of utility service received. See Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 561 P. 2d 779. It was not designed to apply to subclassifications of customers used in determining proper variances in late payment charges.
In the present case all customers are residential customers in and around Wichita and the costs of generating and transmitting their electrical energy are the same. Relatively, the amount of late payment charges collected is minor in comparison to the costs of generating and transmitting energy. The amount of the late payment charges of one of the two complainants in the present case, when figured over a 24-month period, amounts to an average of 38 cents per month. She made only 14 payments to the utility during this 24-month period.
K.S.A. 66-107 requires that utility charges be just and reasonable and that classifications used to fix such charges not be unduly preferential or unreasonably discriminatory. I consider the late charge of 5% in this case reasonable and I do not consider the classifications, those who pay on time and those who do not, unduly discriminatory.
The power and scope of judicial review provided in K.S.A. 66-118d does not give the courts authority to substitute their judgment for that of the commission. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that a court may nullify it. (Central Kansas Power Co. v. State Corporation Commission, supra, Syl. 2.)
The matter falls within the realm of fair debate and I would affirm the district court’s judgment which approved the order of the commission.
Kaul J., joins in the foregoing dissenting opinion. | [
-46,
-24,
-8,
94,
14,
-32,
48,
-126,
91,
-79,
-91,
87,
-87,
-32,
20,
121,
-37,
125,
-80,
106,
-61,
-77,
39,
74,
-106,
-77,
-7,
-43,
-69,
95,
-12,
-60,
72,
48,
74,
-107,
-58,
-62,
77,
30,
-100,
2,
-119,
69,
-39,
10,
52,
104,
54,
9,
81,
47,
-13,
40,
24,
67,
109,
44,
123,
41,
-64,
-15,
-109,
-123,
127,
20,
16,
6,
-108,
-121,
-8,
62,
-104,
48,
56,
-24,
123,
-90,
-122,
124,
101,
-103,
9,
110,
98,
3,
-124,
-17,
-4,
-72,
14,
-42,
-99,
-90,
-110,
120,
35,
8,
54,
29,
100,
22,
7,
86,
-9,
-124,
95,
-3,
11,
-117,
-8,
-77,
-115,
117,
-118,
-97,
-25,
38,
32,
113,
-17,
-32,
92,
71,
50,
27,
71,
-75
] |
The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from a jury conviction of two counts of burglary (K.S.A. 21-3715) and two counts of theft (K.S.A. 21-3701).
The crimes took place at the Kechi Drilling Company, Inc., located in North Wichita, Kansas. The first burglary occurred on or about February 8, 1974; the second, on or about June 7, 1974. Losses from the first burglary included currency, a large number of quarters taken from two antique slot machines, an antique German pendulum clock, a battery charger and two antique bottles. Items taken in the second burglary included a magnetometer, a knife, a pair of binoculars, two antique slot machines, and approximately $500.00 in currency and between $200.00 and $300.00 in coins.
As a result of an investigation by the Sedgwick County sheriff’s office, defendant was arrested and charged with the burglaries and thefts. Although many items were taken, defendant was charged only with theft of the clock and money in the first burglary, and theft of the two slot machines, the magnetometer and money in the second burglary.
The victims of the crimes were W. P. Simmons and his wife, Frances. Simmons was a geologist and president of Kechi Drilling. Frances was the bookkeeper and office manager. Both testified they were personally acquainted with defendant as he had been a friend of their son, Mike. Occasionally, defendant would come to the office looking for Mike. On February 7, 1974, defendant was in the office and he saw Frances take fifty dollars from a desk drawer to give to an employee for expenses. Prior to that time only Mr. and Mrs. Simmons knew cash was kept in the desk.
The burglary was discovered the next morning. Entry had been gained by forcing a side door. Cash had been taken from the desk drawer, and a large number of quarters was taken from two antique slot machines in which glass had been broken. The cash and quarters totaled approximately $300.00. The Simmonses later missed a German pendulum clock, a battery charger and two antique bottles.
On June 7,1974, the office was again burglarized. Both doors to the office were open and the office was in disarray. Approximately $500.00 was taken from the desk. Two jars of coins containing between $200.00 and $300.00 were missing. The two slot machines pilfered in the first burglary were now gone. In addition, a pair of binoculars, a knife, and a magnetometer valued at $2,500 were missing.
Simmons described some of the items taken in the burglaries. The slot machines were antiques made of wood. On the front of one machine, written on masking tape, was the legend, “Jackpot pays twenty dollars.” The German clock was gold in color and had a pendulum drive, but it wouldn’t keep time. In addition to other items taken, Simmons discovered that a small black television set with a three-inch screen was missing. He was not certain when it was taken.
Frances Simmons testified she thought defendant had commit ted the burglaries. Shortly after the first burglary she confronted defendant by showing him the pry marks made on the door when entry was gained. She testified that he became extremely nervous, slammed the door and left. Despite their suspicions about defendant, they hired him as a roughneck in April, 1974. In the latter part of the month Frances again questioned defendant about items missing from the office. He denied wrongdoing and told her his roommate had taken them. Shortly thereafter defendant quit his job.
Defendant’s roommate, Markie Rice, testified for the state. He stated that defendant showed him an inoperable antique German pendulum clock on February 8, 1974. When asked where the clock came from defendant implied it was stolen. Rice stated he didn’t want it kept in the house so he and defendant took it to an antique shop and sold it. Rice further testified that after they sold the clock defendant stated he knew of a drilling company that had two antique slot machines.
The state also called Ronald Watson, manager of a Wichita nightclub. He testified that he knew defendant and that he purchased a large number of quarters from defendant in February, 1974. Defendant also attempted to sell him a small black television set. About midnight of June 8, 1974, defendant returned to the nightclub and offered to sell Watson a slot machine which he had in his car. Watson looked at the machine and noticed that it had “Twenty Dollar Limit Jackpot” written on it. He did not buy the machine. A few days later defendant returned to the club and sold the witness a large number of dimes and quarters.
Defendant called his wife, Mary Katherine Jackson. She testified that she worked as a waitress for a year preceding the first burglary and until April, 1974. During that time she collected her tips and put them in a bottle. In February, 1974, she gave the change to defendant and had him exchange it for currency at the club managed by Watson.
On cross-examination, Mary Jackson stated that her husband was at home with her on the night of June 7. She was asked why she had never previously told anyone that she collected tips and had given them to defendant to cash. She answered that she had never heard anything about coins being important until the trial. At this point the state called Detective Goddard of the sheriff’s office. He testified that he questioned Mary shortly after the June burglary. At that time she told him defendant had left and she had not seen him since the afternoon of June 7. The officer further stated that he asked her about several of the items taken in the burglaries, including the coins, the magnetometer and the slot machines. She made no comment about the coins at that time, but did tell the detective the slot machines had been sold and the magnetometer had been thrown into a river.
The jury found defendant guilty as charged.
Defendant sets forth twenty points in his statement of points on appeal. For purposes of this opinion we have realigned them into five topics.
I. Admitting Evidence of Other Crimes
Defendant’s first argument concerns testimony about the theft of items taken for which defendant was not charged. This included the theft of a pair of binoculars, the battery charger, two antique bottles and a hunting knife. He alleges this violates K.S.A. 60-455. The argument has no merit. The items discussed by the witnesses were all taken in the burglaries; thus, part of the res gestae and admissible. (State v. Platz, 214 Kan. 74, 519 P. 2d 1097.) Since they were evidence of the crime charged and not of another crime, 60-455 is inapplicable.
A similar argument is made with respect to the introduction of the loss of the television set. Defendant argues it was evidence of a later crime and inadmissible. The Simmonses testified the set disappeared sometime prior to the June 8th burglary. The record does not disclose whether it was taken during the February break-in or subsequent thereto. If the set was taken during the first burglary the evidence was admissible for the reasons set forth in the preceding paragraph. If it was taken at a later time the evidence was admissible under 60-455 to show identity and plan of operation. Evidence of the theft of the television set and defendant’s later possession of it was admissible in either event. (State v. Crowe, 207 Kan. 473, 486 P. 2d 503. See also, State v. Moore, 218 Kan. 450, 543 P. 2d 923; State v. Winston, 214 Kan. 525, 520 P. 2d 1204.)
Defendant also complains of the state’s use of a guilty plea to prior charges of theft. Defendant’s father owned a Universal service station. Defendant found a key at the station which unlocked another Universal station. After looking the place over, he entered it at night and removed money. At his plea hearing he admitted it was so easily done that he continued to break in until he was caught. After proper hearing and over objection of counsel the trial court admitted the conviction to show plan of operation and identity. A limiting instruction was given.
Applying the principles set forth in our prior cases discussing 60-455, we find no abuse of discretion on the part of the trial court. The record of the hearing indicated factual similarity of the offenses in four respects. First, both offenses were unlawful entries and thefts. Second, in both cases a business was involved. Third, both crimes were committed after defendant studied and became familiar with the premises and knew where the money was kept. Finally, he repeatedly committed crimes upon both premises until he was caught. These facts are sufficient to demonstrate a pattern of similarity which was relevant to the issue of identity and plan of operation. (State v. Wasinger, 220 Kan. 599, 556 P. 2d 189; State v. Howard, 220 Kan. 117, 551 P. 2d 835; State v. Donnelson, 219 Kan. 772, 549 P. 2d 964.)
Finally, defendant challenges the sufficiency of his identification as the defendant in the prior theft convictions. The state introduced defendant’s prior convictions through the use of judicial notice of the district court file. In order to establish identity the state called a jailer who would match fingerprints on defendant’s booking sheet on the present charge. When the jailer attempted to offer his opinion, defendant objected. The court in an abundance of caution then ordered defendant to be taken to the jail and immediately re-fingerprinted. The officer taking the prints then took the stand and compared the fingerprints from the prior convictions file, the booking sheet, and the defendant, and stated they were all from the same person. The process used rendered the previous convictions admissible. It was the function of the jury to determine the weight and credibility to be given to the identification process.
II. Recalling Witness
Frances Simmons took the stand for the state on two occasions. At her first appearance she testified about her contacts with defendant and the losses from the burglaries. When she was recalled she was able to give more specific information about the money and property taken. She also testified about two conversations with defendant which she had forgotten while on the stand the previous day. On cross-examination she stated she had been nervous and excited on the first day and consequently became confused. At the conclusion of court she talked with her husband, with Detective Goddard, and with the prosecutor concerning her initial testimony, then went home and reviewed her notes.
Defendant moved to have her entire testimony stricken because she had been assisted. He now assigns this as a ground for error. It is entirely proper for a prosecutor to acquaint a witness with courtroom procedure and to review testimony, and he may assist the witness in recalling testimony. (State v. Collins, 204 Kan. 55, 460 P. 2d 573; State v. Kimmel, 202 Kan. 303, 448 P. 2d 19.) It was not error to permit the witness to be recalled to correct or add to her testimony. In State v. Greenwood, 197 Kan. 676, 421 P. 2d 24, this court stated:
“. . . The object of any trial is a search for the truth. If a witness has time to reflect as to what he has testified to and then decides in good conscience that his testimony should be changed, the court has the discretion of allowing him to change his testimony. . . .” (p. 684.)
Defendant also argues the testimony should be stricken as repetitious. There is no merit to this argument. Defendant objected on this basis on several occasions at trial and was sustained by the trial court. The remainder of the testimony was admitted without objection.
III. Impeaching Defendant’s Wife
Although defendant did not testify, he presented his defense through the testimony of his wife. The state impeached her credibility through cross-examination and the use of a rebuttal witness. Defendant now claims both practices were improper.
Defendant first claims the cross-examination was improper because it exceeded the scope of direct examination. The record reveals the only objection by defendant to the state’s cross-examination was when defendant’s wife was questioned about collecting tips; thus, the questions asked by the prosecutor, to which there was no objection, are now beyond our scope of review. (K.S.A. 60-404; Baker v. State, 204 Kan. 607, 464 P. 2d 212.)
Defendant also objects to the state’s effort to impeach defendant’s wife concerning her explanation of how defendant came into possession of the large number of coins he sold to Ronald Watson. This was proper as it tested the credibility of her story. While it is generally true that a defendant is under no obligation to present evidence in his defense prior to time of trial, it does seem natural that a person who knew facts which would protect a defendant, particularly a family member, would come forward when the opportunity existed rather than remain silent. (State v. Brown, 16 Utah 2d 57, 395 P. 2d 727 [1964].) This silence raises proper concern for the credibility of the story and is a proper subject of inquiry. (98 C.J.S., Witnesses, Sec. 464, p. 334.) This is particularly true when evidence reveals the witness talked with law enforcement officials and remained silent when the subject matter of her later testimony was discussed with her.
Finally, defendant objects to the use of the rebuttal testimony of Detective Goddard. First, the matter is not properly preserved for review because defendant made no objection to the testimony at trial. (K.S.A. 60-404; Baker v. State, supra.) Second, the rebuttal testimony was proper. Rebuttal evidence is proper to deny some matter an adverse party has attempted to prove or to complete the impeachment of a witness. (State v. Burnett, 221 Kan. 40, 558 P. 2d 1087; State v. Norwood, 217 Kan. 150, 535 P. 2d 996; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. denied, 384 U.S. 1025, 16 L. Ed. 2d 1030, 86 S.Ct. 1981.) The state used Detective Goddard to contradict statements made by Mary Jackson and to impeach her credibility. On cross-examination she stated, defendant was home with her on the nights of June 7 and 8. Detective Goddard testified she had previously told him she had not seen defendant since the afternoon of June 7. The detective further stated that he discussed the coins with her in June, 1974. This directly refuted her contention that no one ever told her the importance of the coins until the day before she testified at trial.
IV. Prosecutor’s Remarks
Defendant argues the prosecutor was guilty of misconduct throughout the course of trial. Most of the alleged instances of misconduct have previously been found to be groundless; therefore, the only issue to be discussed here will be a remark made by the prosecutor during opening statement.
During the course of opening statements the prosecutor told the jury he would introduce a prior conviction of defendant through the testimony of a parole officer. The parole officer never testified. Defendant alleges the remark was made to purposefully prejudice the jury.
This court has consistently held that a prosecuting attorney is allowed reasonable latitude in stating to the jury the facts he proposes to prove. (State v. Wasinger, supra; State v. McCollum, 211 Kan. 631, 507 P. 2d 196; State v. Campbell, 210 Kan. 265, 500 P. 2d 21; State v. Miller, 204 Kan. 46, 460 P. 2d 564.) It is only when the prosecutor acts in bad faith and substantial prejudice results that appellate courts act. Here there was no prejudice in the statement. The record reveals the prior conviction was admitted into evidence. When evidence of a prior conviction is admissible under K.S.A. 60-455, the prosecutor may make reference to it in his opening statement. (State v. Wasinger, supra; State v. Miller, supra.)
V. Instructions
Defendant argues with the wording in the trial court’s instruction on the law of possession of recently stolen property. The court instructed that the jury may “infer” the defendant committed the burglary and theft because he possessed recently stolen property. Defendant argues the word “believe” should have been used. The instruction given by the trial court correctly states the law on possession of recently stolen property. (See, State V. Atkinson, 215 Kan. 139, 523 P.2d 737.)
All points raised by defendant have been considered and found to be without merit. The judgment of the trial court is affirmed. | [
-16,
-24,
-40,
-100,
24,
-32,
42,
62,
66,
-91,
-90,
87,
-95,
-24,
85,
123,
-13,
109,
-44,
113,
-61,
-77,
7,
99,
-42,
59,
-7,
-51,
-70,
75,
-12,
-44,
72,
112,
-118,
85,
6,
-126,
71,
28,
-114,
4,
-86,
-14,
117,
8,
46,
43,
-76,
10,
-15,
28,
-9,
40,
20,
71,
73,
44,
-53,
-67,
80,
-7,
-93,
5,
93,
20,
-126,
-122,
-72,
-59,
-8,
47,
-100,
24,
0,
104,
123,
-90,
-62,
116,
69,
-117,
-115,
110,
98,
34,
29,
-17,
96,
-119,
14,
-10,
-99,
-89,
-67,
0,
101,
46,
-98,
-99,
116,
22,
7,
-4,
-25,
21,
75,
108,
-121,
-34,
-48,
-109,
13,
119,
-116,
-70,
-17,
-91,
2,
113,
-117,
38,
92,
22,
114,
-97,
-114,
-79
] |
The opinion of the court was delivered by
HtjtchisoN, J.:
This was an action upon a note, commenced by the holder thereof against the surety thereon nearly seven years after the note became due and a few months after the death of the maker thereof. A copy of the note, with the endorsements of interest payments made thereon by the maker, was attached to the petition as an exhibit, and showed a payment of interest about nine months before the death of the maker. Another exhibit was attached which is a copy of a letter written by the surety to the plaintiff about six months before the commencement of this action. ■ There was nothing alleged in the petition as to the defendant having paid anything on the note herself, or having done anything concerning the same since she signed it as surety, until she wrote the letter to the plaintiff in answer to a letter from the plaintiff.
The defendant filed a demurrer to the petition attacking its sufficiency in stating a cause of action and also raising the question of the statute of limitations. The trial court sustained the demurrer, and from that ruling the plaintiff appeals.
There is no contention but that the action would be barred by the statute of limitations but for the letter written by the defendant. The following is a copy of the letter:
“Macksville, Kansas,' January 8.
“Miss Cora E. Updegrove, Hutchinson, Kansas.
“Received your letter and in reply will say I talked with Frank last summer about the note and he told me he had not paid it all.
“I also know the note is still good as he had been paying as he could. I also know that my name is on the note as his security.
“I also know that I will be expected to pay it if Verna can’t.
“She can’t pay it now as an expected event in her family this month will take quite a little money.
“I don’t know how soon I can pay it — might have to pay a little at a time. Wish you would tell me just how much the note was for and the date of the note. Also the rate of interest. Also the date, amount of each payment and how much was paid on the note and how much was paid on the interest. How much is there yet to pay? (Signed) Mes. J. V. Cooper.
“Letter sent from Kinsley, Kansas, post-marked January 9, 1937, 2 p. m.”
G. S. 1935, 60-312, is as follows:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
Two elements must be found in the letter to bring the action within the statute of limitations under the provisions of the above-quoted statute: first, the identification of the original indebtedness, which is the note in this case, and as to that matter we must hold that the letter refers to the note set out in exhibit A and was signed by the defendant. The second element is that the letter should contain an unquálified acknowledgment of a present existing liability to pay the indebtedness. The appellant insists that the letter of the defendant fully meets that requirement and cites a number of cases where similar letters were held to have been sufficient for that purpose. Among such were Elder v. Dyer, 26 Kan. 604; Pracht v. McNee, 40 Kan. 1, 18 Pac. 925; Clark v. King, 54 Kan. 222, 88 Pac. 281; Cosandier v. Junod, 127 Kan. 524, 274 Pac. 276; Harbaugh v. Herr, 131 Kan. 235, 289 Pac. 957; Hottell v. Kemp, 139 Kan. 239, 31 P. 2d 64.
In the Elder case the surety, defendant, wrote to the holder of the note, among other things which were mostly about the principal, “I do not want to be held longer on that note,” and such language was there held to have acknowledged an existing liability.
In the Pracht case the maker of the note wrote, “I will turn you over farmers’ notes for the note you hold against me.”
In the Clark case the defendant wrote the holder of the notes about “my notes” and the amount due thereon, “and you ask me to pay $300, would leave $444.” This was held to be a sufficient acknowledgment of an existing liability.
In the Cosandier case the maker of the note wrote the holder thereof that it was impossible for him to pay it at that time, that he needed more time on it and would like to have the note renewed. This was held to manifest acknowledgment of existing liability.
In the Harbaugh case the maker of the note wrote that he was unable to raise the money, that his expenses had been high but would be lessened next year and that he hoped to be able to do something then. He further stated that he had reduced the amount “to the present figures, and I expect to complete the payment as soon as I can.” This was held to be “a distinct and sufficient acknowledgment of a present existing liability and identification of the liability with the note on which the suit is based.”
In the Hottell case many letters were written by the maker of the note to the holder in which expressions like the following were used: “After harvest I will try and pay part, and get a loan on the rest.” In another letter he said: “You will never lose a cent”; and in another, “Will do all I can as soon as I can.” In a later letter it was stated, “As soon as I can get my crop to market I will do something for you, but don’t know just how much.” In another, “Will do anything I can to get some money for you as soon as I can.” There were two subsequent letters of similar import and a further letter which stated, “But now if I can’t get the money we can-deed you the land.” These statements in letters were held to “constitute a sufficient acknowledgment of an existing liability under R. S. 60-312.”
The wording of the letter in the case at bar is strong as to the identification of the note involved, but is not as strong as most of those above cited as to an acknowledgment of a. present existing debt or liability. The two portions of the letter upon which reliance must be- had to make such acknowledgment are as follows:
“I also know that I will be expected to pay it if Verna can’t.
“I don’t know how soon I can pay it — might have to pay a little at a time.”
The first sentence recognizes what the holder of the note expects of the defendant. The second sentence deals only with the matter of time and amount of possible payments. Neither of these, nor both of them together, seem to bring the statements fully within the rule as expressed in Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, as follows:
“An acknowledgment in writing that a debt once existed, but which does not contain an admission of a present, subsisting debt on which the party is liable, is insufficient to avoid the bar of the statute of limitations.” (Syl. f 3.)
In Durban v. Knowles, 66 Kan. 397, 71 Pac. 829, it was held:
“An acknowledgment which will remove the bar of the statute of limitations must be distinct, unequivocal, and without qualification, and nothing less than a direct admission of a present existing liability is sufficient.” (Syl.)
In Corbett v. Hoss, 98 Kan. 290, 157 Pac. 1195, the letter, among other things, stated:
“. . . it is impossible for me to pay any on my account at present . . . but I will try and scratch out if you will only be patient with me.”
And it was there held that it did not constitute an acknowledgment within the meaning of the statute.
The syllabus in the case of Hamilton v. Beaubien, 92 Kan. 944, 142 Pac. 245, is as follows:
“A general reference to an indebtedness of the author of certain letters or expressions in them of a desire and purpose to raise and pay money to one who was the holder of an obligation is not such an acknowledgment as will remove the bar of the statute of limitations. To be sufficient it must be a distinct and unequivocal admission of a present, existing debt upon which the party signing the admission is liable.”
In the case of Pump and Planter Co. v. Taylor, 114 Kan. 380, 219 Pac. 258, the defendant wrote about having written to his brother and not having heard from him, and further stated:
"... I am sorry to say that I am not in shape to do anything either now . . . so it will be awful hard to get through till another year. We owed some other Cos. some, too, and early in the spring they offered to throw off the interest if I could raise the money, so a friend here let me have the money, thinking we would sure have a crop this season, so I do not know when I can get you any money now, and I cannot say what my brother can do till I hear from him.”
It was there held:
“An acknowledgment of a debt which will remove the bar of the statute of limitations must be distinct, unequivocal and without qualifications, and nothing less than a direct admission of a present existing liability is sufficient.” (Syl.)
In the recent case of Wichita Sanitarium v. Bierschbach, 136 Kan. 84, 12 P. 2d 806, where the letter expressed the need of time, it was held:
“Where a debtor simply mentions the need of time in a letter to the -representative of the creditor, in connection with the indebtedness under consideration and other indebtedness of his, it is too indefinite in and of itself to constitute an acknowledgment of present existing liability sufficient to avoid the bar of the statute of limitations.” (Syl. IT 2.) (See, also, along the same line, Haythorn v. Cooper, 65 Kan. 338, 69 Pac. 333; Lewis v. Norris, 80 Kan. 620, 103 Pac. 134; and Miles v. Hamilton, 106 Kan. 804, 189 Pac. 926.)
In line with the above-cited decisions, we have no difficulty in concluding that the letter of the defendant taken in the most favorable attitude for the plaintiff and with all proper inferences, which is the correct rule upon the hearing of a demurrer, does not express a definite acknowledgment of a present existing indebtedness or liability and that there was no error in the sustaining of the demurrer to the petition.
The judgment is affirmed. | [
-14,
104,
112,
-3,
-118,
-32,
42,
-102,
113,
-95,
32,
115,
-23,
-61,
20,
105,
118,
41,
113,
104,
102,
-77,
55,
72,
82,
-13,
-7,
-43,
-79,
93,
-28,
87,
76,
48,
-54,
-43,
-26,
-54,
-59,
-38,
-50,
-123,
-119,
-27,
-39,
106,
-80,
107,
118,
76,
-11,
94,
-13,
43,
60,
78,
-81,
44,
107,
-85,
-48,
-80,
-101,
-123,
125,
23,
-79,
7,
-108,
68,
88,
46,
-104,
49,
1,
-24,
48,
-90,
-122,
116,
107,
-87,
8,
-10,
98,
32,
-11,
-23,
-100,
-104,
39,
-14,
-83,
-89,
-78,
88,
11,
36,
-66,
-99,
125,
16,
39,
118,
-2,
21,
21,
-20,
10,
-117,
-10,
-112,
31,
126,
-110,
-113,
-29,
-93,
33,
113,
-51,
32,
92,
103,
59,
-101,
-113,
-100
] |
The opinion of the court was delivered by
DawsoN, C. J.:
The defendant was convicted of embezzlement, and appeals.
He contends that the crime charged was not proved, and in any event the statute of limitations had run before the prosecution was begun.
The state’s evidence tended to prove that in 1934 one Minnie Schrader, an elderly widow, resided in Ellsworth with her two daughters, Alma Schrader and Elsie Libby. In May of that year Mrs. Schrader, acting through her daughter Alma, loaned defendant 60 shares of United Telephone and Electric Company stock. It was agreed that he would pay interest on the stock at the same rate as the dividend income thereon, and return the stock when Mrs. Schrader wanted it.
In August, 1934, defendant obtained from Mrs. Schrader 60 shares of United Telephone Company stock which he was to exchange for 5-year government bonds, and shortly thereafter she executed a power of attorney in blank, authorizing their sale and transfer on the books of the company.
In September, 1934, defendant induced Mrs. Schrader to execute an instrument which read:
“Defendant’s Exhibit One.
“We this day confirm receipt of you Sept. 6th, 1934.
“Quantity—
“Received of Carl Perry S6,000.00 cash in hand ‘United States Currency,’ which is payment in full for sixty (60) shares United Telephone Company 7% preferred stock and sixty (60) shares United Telephone & Electric 7% preferred stock. Mrs. Minnie Schrader,
“Witness: Elsie Libby. By Alma Schrader.”
There was not the slightest basis of fact to warrant the recitals stated in the instrument just quoted; and it was clear that Mrs. Schrader and her daughters did not understand its purport. In October, 1934, defendant paid the dividend income on the United Telephone and Electric Company stock to Mrs. Schrader and borrowed it for another six months’ period.
In December, 1934, defendant called on Mrs. Schrader and showed her some 20-year government bonds which he said had been sent to him by mistake, but that he would return them and get the 5-year bonds Mrs..Schrader desired. He also told her that her telephone stock was in Chicago but he could get it at any time.
In July, 1935, defendant promised to call at Mrs. Schrader’s home in response to her demand for a return of the stock, but he failed to do so until August, at which time he confessed that he had sold her stocks but did not have the proceeds, and that all he could do was to give her some sort of acknowledgment of his obligation to her. What he did do was to give her his promissory note for $6,000, payable in six months, with six percent interest. Payments aggregating $780 were made on this note, apparently out of dividends; and on February 15, 1936, defendant gave her another note for $5,220 payable in six months with six percent interest. On the latter note he made three payments totaling $450.
On November 4 [or 12], 1936, a warrant was issued charging defendant with obtaining Mrs. Schrader’s stocks by false pretenses, with intent to cheat and defraud her of them. His arrest followed on November 20, and he was given a preliminary hearing before a justice of the peace; and on the evidence developed thereat, defendant was bound over to the district court on a finding that various crimes of embezzlement had been committed, and that he was probably the guilty party.
Next followed the filing of an information against defendant, on April 26, 1937, charging him in three counts with the crime of embezzlement (two of which were later dismissed), and shortly thereafter the cause was tried before a jury which returned a verdict of guilty, and defendant was sentenced to a term of penal servitude therefor.
Touching the question whether the evidence supported the charge of embezzlement, it cannot be gainsaid that the dealings of defendant with that 77-year-old woman and her unsophisticated daughters were susceptible of the interpretation that defendant embezzled the stocks entrusted to him; and the evidence — at least that part of it which the jury chose to believe — tended to show that until August, 1935, defendant pursued a course which tended to conceal from Mrs. Schrader the fact that he had converted the proceeds of her stocks to his own use (In re Perry, 145 Kan. 212, 64 P. 2d 578); so whether the prosecution may be deemed to have been begun on December 31, 1936, when defendant’s preliminary examination was held, or on April 26, 1937, when the formal information charging him with embezzlement was filed, the prosecution was begun in time. (G. S. 1935, 62-503, 62-504; State v. Wingett, 136 Kan. 436, 16 P. 2d 486.)
In State v. Evans, 143 Kan. 29, 31, 53 P. 2d 789, it was said:
“It is the law that the crime of embezzlement is committed when one who is entrusted with the money or property of another fails to have it forthcoming on the lawful demand of the person to whom it belongs. This is a rule of necessity. The state could never show at what particular instant of time or in what particular locality any wrongdoer conceived and put into execution his wicked design of appropriating to his own use the money or property entrusted to his keeping.”
See, also, State v. Sanders, 127 Kan. 481, 484, 274 Pac. 223.
We note, of course, that defendant had some talking points to urge before a jury, to the effect that Mrs. Schrader had acquiesced in his appropriation of her bonds to his own use by executing defendant’s exhibit one, on September 6, 1934, and by accepting his note for $6,000 dated August 7, 1935, and payments thereon, and by accepting defendant’s renewal note dated February 15, 1936, for the ostensible balance then due. But the jury saw through that camouflage, and their interpretation of the facts will have to stand.
The judgment is affirmed. | [
112,
120,
-8,
-82,
10,
-32,
58,
-70,
115,
-26,
-91,
115,
-23,
-28,
5,
61,
82,
-67,
84,
104,
-42,
-109,
23,
43,
90,
-77,
-71,
-43,
-80,
-36,
-92,
-34,
77,
50,
-126,
21,
102,
-46,
103,
60,
-114,
4,
-86,
-24,
-35,
112,
52,
-69,
-80,
72,
113,
-50,
-77,
43,
24,
91,
40,
41,
-17,
-71,
-64,
-7,
-69,
-57,
111,
22,
-94,
4,
-104,
37,
-56,
14,
-104,
49,
-64,
-24,
115,
-90,
6,
-11,
111,
-119,
12,
102,
34,
1,
5,
111,
-24,
-120,
54,
-1,
-99,
-89,
80,
72,
-125,
44,
-67,
-99,
44,
-48,
3,
-12,
-18,
30,
88,
108,
1,
-114,
-26,
-109,
61,
110,
-98,
-110,
-21,
-91,
46,
112,
-50,
-96,
77,
119,
122,
-77,
-114,
-75
] |
The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a mortgage. Judgment was for plaintiff. Defendant appeals.
The facts are simple. On November 22, 1917, Carrie Moore executed a mortgage on the real estate in question to the Putnam Investment Company of Salina. This mortgage was in the amount of $3,100 and was due December 30,1922. This mortgage was duly recorded.
On October 13, 1933, the receiver for the mortgage company executed an assignment of the mortgage to Fowler, the plaintiff in this action. This assignment was duly recorded.
On December 8,1922, the Moores entered into an extension agreement with the Putnam Investment Company extending the time for the payment of the balance due on the mortgage.
On November 21, 1927, the Moores entered into another extension agreement on the mortgage with the Putnam Investment Company extending the time for the payment of the balance due on the mortgage for five years from December 30, 1927. This agreement provided that the original mortgage should be in full force and effect except as altered by the agreement.
The court found that the evidence failed to show that Fowler, to whom the mortgage had been assigned, the plaintiff in this action, had any knowledge concerning the extension agreement made on November 21,1927, until after the commencement of this action.
Prior to the commencement of this action no registration fee had been paid upon the mortgage or upon any extension agreement.
When the action was instituted the defendant in his answer pleaded that no mortgage registration fee had been paid upon the extension agreement made November 21, 1927. This was after the taking effect of G. S. 1935, 79-3101, 79-3102 and 79-3107. These sections are as follows:
“The words ‘real property’ and ‘real estate’ as used in this act, in addition to the definition thereof contained in the Revised Statutes of 1923, shall include all property a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state. The words ‘mortgage of real property’ shall include every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property. An executory contract for the sale of real estate, or a bond for a deed, the complete performance of which is deferred for a longer period than ninety days from its execution, under which the grantee or vendee is entitled to the possession of such real estate, by the terms of which the grantor holds the legal title as security for the unpaid purchase money, shall for the purpose of this act be treated as a mortgage of real property to secure the balance of the unpaid purchase price. (G. S. 1935, 79-3101.)
“Before any mortgage of real property, or renewal or extension of the same shall be received and filed for record on and after the first day of March, 1925, there shall be paid to the register of deeds of the county in which such property or any part thereof is situated, a registration fee for each one hun dred dollars and major fraction thereof, of the principal debt or obligation which is secured by such mortgage, the sum of 25 cents; that no registration fee whatsoever be paid, collected or required for or on any mortgage or other instrument, given solely for the purpose of correcting or perfecting a previously recorded mortgage or other instrument, or for the purpose of providing additional security for the same indebtedness, where the registration fee herein provided for has been paid on the original mortgage or instrument: Provided, however, That the register of deeds shall receive no additional fees or salary by reason of the receipt of fees as herein provided: Provided further, That after the payment of the registration fees as aforesaid the mortgage and the note thereby secured shall not otherwise be taxable.” (G. S. 1935, 79-3102.)
“Any mortgage of real property executed on or after March 1, 1925, on which the registration fee as herein provided has not been paid, shall not be filed for record by any register of deeds, and such mortgage shall not be received in evidence in any suit, action or proceeding, and no judgment, decree or order for the enforcement thereof shall be rendered, made or entered in or by any court in this state.” (G. S. 1935, 79-3107.)
The theory of defendants was that since the mortgage registration fee had not been paid on the last extension agreement it could not be received in evidence in an action to foreclose it. The effect of such a rule would be to invalidate any mortgage upon which the registration fee was not paid. When, during the course of the proceedings, it appeared that this registration fee had not been paid the plaintiff immediately paid it. The court then admitted it in evidence and gave judgment in foreclosure.
Defendant argues that the admission of this extension agreement in evidence when the registration fee had not been paid on it until after the action to foreclose had been commenced was .error.
The trial court admitted the extension agreement under the circumstances because it had found that the record did not disclose that plaintiff had any knowledge of the extension agreement until after the action was commenced.
The action of the court was correct, but it was not necessary to place it on the ground of lack of knowledge of plaintiff. This court considered this question in Coryell v. Hardy, 144 Kan. 194, 58 P. 2d 1151. In that case the tax had not been paid on a mortgage which was being foreclosed until after the foreclosure action was commenced. The same point was raised there. This court said:
“The statute defines the term ‘mortgage’ to include executory contracts for the sale of real estate, and provides such a ‘mortgage’ shall not be received in evidence unless the tax is paid. Prior to the time the contract was offered, tax was paid. That it was not paid immediately after the contract was made makes no difference; that the amount of tax that was paid may not have been fully sufficient cannot avail appellant — that is the concern of the tax-collecting authorities.” (p. 202.)
It will be noted that the statute provides for registration of the mortgage and that it shall not be registered unless the fee has been paid and shall not be received in evidence unless the fee is paid. Ordinarily the provision that the mortgage should not be recorded by the register of deeds unless the fee has been paid would have been sufficient to cause the fee to be paid. Most mortgagees are careful and anxious to keep their mortgages recorded. If the legislature had intended that a failure to pay the fee within a reasonable time should render the mortgage inadmissible it might very well have so provided. It did not see fit to do this, however. As it is, the provision is a rule of evidence. When the extension agreement was presented to the court with registration fee paid it was the court’s duty to admit it.
In the case of Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448, upon which defendant relies, the defendants argued that the instrument was not the sort upon which the tax should have been paid at all. The record showed that it had not been paid. That case is not in point here.
The judgment of the trial court is affirmed. | [
-10,
122,
-100,
-84,
-118,
-32,
40,
27,
107,
-96,
-91,
87,
109,
-60,
6,
109,
-122,
109,
85,
104,
87,
-77,
39,
-70,
-46,
-13,
115,
-35,
-67,
93,
-12,
87,
76,
36,
-62,
-107,
-26,
-126,
-59,
92,
78,
-123,
-119,
77,
-39,
64,
48,
107,
-64,
12,
81,
78,
-77,
47,
57,
-64,
40,
42,
-17,
40,
-16,
-7,
-118,
-115,
-1,
23,
-77,
69,
-82,
-125,
72,
-118,
-112,
53,
32,
-56,
83,
38,
-41,
116,
79,
11,
40,
34,
102,
33,
-16,
-21,
-40,
-104,
7,
114,
-99,
-90,
-78,
88,
66,
34,
-65,
-103,
125,
0,
5,
118,
-25,
-115,
93,
105,
13,
-117,
-106,
-103,
15,
124,
-104,
11,
-10,
-121,
32,
113,
-49,
-86,
85,
98,
117,
-37,
-114,
-39
] |
The opinion of the court was delivered by
Thiele, J.:
Plaintiffs brought an action for partition of certain real estate and for an accounting in connection therewith, and from a judgment that they had no interest in the real estate appeal to this court.
Although plaintiffs’ petition states three causes of action, the gist of the matters complained of pertains to the second cause of action, and it alone will be noticed. It was alleged that Emmaline Hayden died (May 31, 1931), leaving as her only heirs at law the plaintiffs and the defendants Sally Hughes, Noah Hayden and Harry Hayden, and being at her death the owner of a certain tract of land in Stafford county, which was subject to two mortgages, one to the John Hancock Mutual Life Insurance Company, hereafter referred to as the insurance company, the other to one Joseph Bittiker, and that each heir was the owner of an undivided one-fifth interest, subject to the mortgages; that on September 16, 1931, Bittiker brought suit to foreclose his mortgage, subject to the first mortgage in favor of the insurance company, secured judgment, which was assigned to Evart Garvin, the lands were sold by the sheriff to Garvin for $1,766.76, the sale confirmed, and a certificate of purchase issued to Garvin, and that Garvin entered into a contract with the insurance company, copy being attached to the petition. Briefly stated, this contract provided that Garvin assign his certificate of purchase to the insurance company to be held by it during the period of redemption, and if no redemption was made that Garvin have an option for ninety days from issuance of sheriff’s deed to purchase the real estate on stated terms which included giving of a new mortgage to the insurance company for $5,500. Other clauses need not be noticed. It was further alleged in the petition that the period of redemption would have expired November 16, 1932, but that the time was extended by the first mortgage moratorium statute; that on March 24, 1934, the plaintiff John Henry Hayden (same as Henry Hayden) and defendant Sally Hughes, on behalf of themselves and the other heirs as tenants in common, filed in the district court an application for extension of the period of redemption, and the same was extended to March 1, 1935; that plaintiffs, and defendants Sally Hughes and Noah Hayden, acted in common to obtain moneys to make redemption, and on February 25, 1935, plaintiff Joe E. Hayden had such arrangement made, but on the same day was informed that defendants Noah Hayden and Sally Hughes had made arrangements to get the money, and that Sally Hughes would take assignment of the contract of purchase and would then reconvey to plaintiffs their shares; that as consideration for the moneys needed Sally Hughes would execute an oil and gas lease; that at the time the named plaintiffs and defendants were tenants in common of the real estate and were in possession thereof by a tenant; that defendant Sally Hughes obtained the moneys by entering into a contract whereby Marie Dyck or her husband was to furnish the money to pay Garvin for an assignment of his contract with the insurance company, and under which defendant Sally Hughes was to execute an oil. and gas lease to Dyck covering the interest of all the tenants in common in the lands and to convey royalty interests, at which time the period of redemption had not expired and no sheriff’s deed had been issued; that the named defendants should be estopped from setting up any title in contravention of plaintiff’s title, as she had lulled them into a sense of security by assuring them she would get the deed to the land and reconvey to them, and after the period of redemption had expired and a deed to Sally Hughes had been executed by the insurance company, she refused to convey or to account for their shares of the moneys received, and that after she received the deed she had made a certain royalty deed and an oil and gas lease to Marie Dyck, the terms of which are not of present interest, and that she had refused to account for rents and profits. The prayer was for partition, accounting and equitable relief.
Defendant Sally Hughes filed a motion to strike, which was denied. She filed no motion to make definite and certain nor any demurrer.
The answer of defendant Sally Hughes alleged plaintiffs were guilty of laches in instituting the action, in that the sheriff’s deed to the insurance company was issued March 7, 1935, filed for record April 6, 1935, and suit was not commenced until March 18, 1936; that any interest plaintiffs had was cut off by the sheriff’s deed, and they were estopped. It was further alleged plaintiffs had failed to tender Sally Hughes any amounts she had paid out. She also set out fully all matters connected with foreclosure of the Bittiker mortgage, assignment of the judgment to Garvin, sheriff’s certificate of purchase to Garvin, Garvin’s assignment to the insurance company, sheriff’s deed to the company, and the deed of the company to her, and alleged that she was exclusive owner of the land and the plaintiffs and her codefendants had no interest therein. In this statement we have ignored allegations about defendants not directly interested in this appeal.
We shall notice plaintiffs’ reply only to state it is alleged Sally Hughes did not use her personal moneys to purchase the lands, but funds arising from use of plaintiffs’ and defendants’ interest in the lands, also that plaintiffs inquired of Sally Hughes in what amounts, if any, they were indebted to her and she refused to inform them.
There was no dispute concerning the foreclosure of the Bittiker mortgage, the assignment of judgment to Garvin, issuance of certificate of purchase to him, his assignment thereof to the insurance company, the ultimate sheriff’s deed to the insurance company, nor the deed of the company to Sally Hughes. Neither was there any dispute that the period of redemption as extended expired March 1, 1935.
The evidence showed the following: Under date of February 26, 1935, Evarfc Garvin assigned in writing to Sally Hughes, for the stated consideration of $2,110.23, of which receipt was acknowledged, all his interest in his contract with the insurance company whereby he had the option to purchase the lands involved, as above mentioned in the petition. Under date of February 27, 1935, Sally Hughes and husband, as first parties, entered into a written contract with Marie Dyck as second party, which provided that first parties execute and deliver to second party a royalty deed covering the lands involved for a consideration of $3,900, of which it was stated $2,110 had already been paid, the balance of $1,790 being placed in escrow with a copy of the contract until performance of the contract was had. It was also provided:
“It is agreed and understood that the above described premises have been foreclosed by the John Hancock Mutual Life Insurance Company, and that said premises have been sold under their mortgage foreclosure proceedings, and that they are the holders and owners of a certificate of purchase, and that a sheriff’s deed will be executed to them within the next few days and that this transaction contemplates that the' John Hancock Mutual Life Insurance Company will reconvey said premises by a warranty deed to the parties of the first part and carry back a fifty-five hundred dollar ($5,500) first mortgage; and that the consideration herein escrowed will be required to be paid to the said John Hancock Mutual Life Insurance Company as a balance due them under their certificate of purchase.”
and that the royalty deed should be subject to the mortgage. When the abstract of title to the lands had been approved by second party, the escrow agent was to deliver the royalty deed to second party and pay the $1,790 to the insurance company. Also, it was provided:
“It is, however, further agreed that in the event that the John Hancock Mutual Life Insurance Company shall demand the delivery of said seventeen hundred ninety dollars ($1,790) before they deliver the deed to the said parties of the first part, then upon presentation to the escrow holder of a deed from the John Hancock Mutual Life Insurance Company to the parties of the first part, which would vest the title in them with authority to the escrow holder to have the same recorded, that in such event the escrow holder would be authorized and is hereby authorized to deliver said seventeen hundred ninety dollars ($1,790) to said John Hancock Mutual Life Insurance Company; this being conditioned, however, upon the further understanding that at such time said abstract shall show a fee' simple title in the John Hancock Mutual Life Insurance Company, free, clear and unencumbered, only subject to their right to take said fifty-five hundred dollar ($5,500) mortgage ahead of such oil and gas royalty conveyance.”
Provision was also made for the execution and delivery of an oil and gas lease, for waivers of priority of the insurance company over the oil and gas lease and matters not now material. On the same date the oil and gas lease and the royalty deed were made pursuant to the contract. It was also shown that under date of June 23,1934, the plaintiffs and Sally Hughes leased the lands to a third person for farming operations, the lease to commence August 1,1934, and to end July 31, 1935, for a cash rent of $150, payable July 15, 1935, and a share of the wheat, oats and other small grain. It was further shown that plaintiff John Henry Hayden and defendant Sally Hughes, for themselves and the other defendants in the foreclosure action brought by Bittiker, on March 24,1934, filed an application for extension of the period of redemption, and on April 21, 1934, procured an order of the district court extending the period of redemption to March 1, 1935. As abstracted, there is no showing that Sally Hughes denied the testimony of negotiations with the plaintiffs and her two co-defendants for saving the lands from the foreclosure. Her husband testified that in addition to the moneys received through the Dyck contract and used in getting title to the lands, he paid out $314.77 for abstract charges, insurance, recording fees, and repairs to the house. He further testified he had collected $150 cash rent, and crop rents sold for at least $500. It is not necessary that we detail the oral testimony with reference to the conversations between plaintiffs and defendants, especially Sally Hughes, with respect to plans for redeeming the lands from the sheriff’s sale, or the agreement whereby the lands would ultimately be saved for them by the arrangement finally carried out.
At the conclusion of the trial the court rendered a written opinion setting out many of the undisputed facts. This opinion is embodied in the journal entry of judgment. After stating plaintiffs had never paid or offered to pay Mrs. Hughes any of her expenses, except the prayer of the petition that they be paid her; that there had been no statutory redemption; that Mrs. Hughes had spent a considerable sum for taxes and interest (apparently after getting title) and had given a new mortgage; that the record title stood in her name; that the sheriff’s deed barred all persons to the foreclosure action, and that thereby the insurance company became the owner of the prop erty, and that the company had the right to sell to anyone and that Sally Hughes had the right to purchase, the court concluded as a matter of law that any interest the plaintiffs may have had in the real estate was extinguished by the sheriff’s deed executed to the insurance company, and at the time the action was instituted plaintiffs had no interest in the real estate. It accordingly rendered judgment for defendants. The plaintiffs filed a motion for a new trial, in support of which they filed a written brief, shown in the abstract, and referring to a previous brief, the burden of which was that the trial court had overlooked their contention as to their rights as tenants in common with Sally Hughes and her codefendants and that she could not use their property commonly owned as a basis to provide moneys to get the property back and then deny their interest, and that it was the duty of the trial court to impress the property with a trust and to do equity among the parties. The motion for a new trial was denied and the appeal followed.
Appellants complain that the trial court erred in ignoring their rights as tenants in common with Sally Hughes. It may be observed that in the trial court the appellants made no claim of any irregularity in the Bittiker foreclosure action, nor of any matter subsequent thereto, and which resulted in title being vested in Sally Hughes, further than that Mrs. Hughes, as tenant in common with them, could not use the common property as a basis for raising funds, which by an indirection were so applied that she obtained title and thereafter denied appellants’ rights. It may also be observed there is no contention by any party that appellants and Sally Hughes were not tenants in common until the period of redemption following foreclosure had expired.
It is quite clear from the trial court’s opinion that it concluded that a formal redemption not having been made during the period of redemption, and a sheriff’s deed having issued to the insurance company, the rights of all those entitled to make redemption were cut off, and that the company could sell to Sally Hughes or any other person, and that appellants, as former cotenants of hers, could not object. In arriving at that conclusion we think the trial court overlooked vital matters leading up to the acquisition of title by Sally Hughes.
After a cotenancy is actually dissolved there is nothing which forbids a former tenant from acquiring title to the entire property for himself (7 R. C. L. 861), and it would follow that if there were no collusion, and a third person purchased the property and ultimately received the sheriff’s deed, a purchase by one of the coten-ants from the previous purchaser would convey full title and the other former cotenants could claim no interest. But the case at bar is not so simple. It is well settled and the general rule is that if a cotenant in possession purchases the property, either directly or indirectly, at a sale under foreclosure, the purchase will be deemed to have been made for the benefit of all the cotenants (62 C. J. 456, 463, 466; 7 R. C. L. 866; Annotations: 6 A. L. R. 297; 54 A. L. R. 891; 85 A. L. R. 1537). There is no dispute that prior to the expiration of the period of redemption the appellants and Sally Hughes, as cotenants, leased the lands for agricultural purposes; that they appeared together in having the period of redemption extended, and there is evidence, which according to the abstract is undisputed, that they consulted with each other with reference to ways and means of effecting a redemption. There is and can be no dispute that Sally Hughes, using the common property as a security therefor, obtained moneys by which purchase was made of the Garvin contract with the insurance company, and after the sheriff’s deed was issued, to pay to the insurance company the requisite down payment in order that title be vested in her.
In Rutland Savings Bank v. Norman, 125 Kan. 797, 266 Pac. 98, the right of one cotenant to redeem and to cut off other cotenants was considered, and after a review of some of the authorities and our statutes, it was said:
“We have a statute prescribing the rights, privileges and duties of cotenants. (R. S. 60-3437.) We also have the statute on redemption by cotenants from foreclosure sales. (R. S. 60-3435.) We have the specific requirement as to their relative rights and duties with reference to the payment of taxes. (R. S. 79-426.) The plain and apparent purpose of all of them is to protect a cotenant in his property and at the same time protect others holding exactly the same kind of -interest in the property. Their relations are fiduciary, and they are not to he permitted to benefit themselves to the detriment oj those holding similar interests. (Italics ours.)
“‘When two parties jointly own real property, and jointly occupy it harmoniously, one of them cannot, as against the other, claim full title to such real property by adverse possession.’ (Shaw v. Bandel, 122 Kan. 343, syl., 251 Pac. 1086.)
“ ‘While it is a general rule that one tenant in common may not, as against his cotenant, acquire sole title to the common property by purchase at a sale made to satisfy a lien existing when they became owners, the cotenant may not desire to object. He may consent that the purchaser take the full title indicated by master’s or sheriff's deed, he may afterwards voluntarily relinquish his interest, and he may lose it by lack of diligence in electing to call on a court of equity to give him the benefit of the purchase.’ (Moon v. Moon, 107 Kan. 466, syl. ¶ 2, 192 Pac. 840.)” (p. 801.)
And it was held:
“If a cotenant defendant in a foreclosure action elects to redeem a greater interest than his own proportion allowed by statute he does so for the benefit of himself and his cotenant, with the right of contribution in the latter within a reasonable time.
“When the cotenant who has redeemed the entire estate from foreclosure sale holds his interest therein free from the obligation of the common grantor, and the other did not, the latter, in order to enjoy the privilege of contribution, must pay the redeeming cotenant the entire amount paid by him for redemption and interest thereon.” (Syl. ¶[¶ 3, 4.)
Where the cotenants were all anxious that their common property be saved, and to accomplish this each made an effort to raise funds for that purpose, and one used the common property as security for raising funds and ultimately acquired title by purchasing contract rights of the holder of the certificate of purchase, should it be said that because a sheriff’s deed issued to a third person, the rights of the cotenants as such were extinguished, and the one purchasing obtained title through an independent source, or should it be said that the circumstances were such that the one acquiring title held for all who wished to come in and contribute? Should form rather than substance govern? As we view the matter, were we to place approval on what was done, we would encourage breaches of confidence, undue advantages, and conduct, which, if not actually fraudulent, was unconscionable. Suppose that one of the plaintiffs had used the property to raise money and had taken the property using the same methods followed by Sally Hughes, would she have had cause to complain? We think it cannot be gainsaid. In such a case, the relations between the cotenants are fiduciary, and one cannot benefit himself at the expense of the others. (See Rutland Savings Bank v. Norman, supra, page 801; 62 C. J. 456, 463, 466; 7 R. C. L. 857.) What was done, although actually carried out as a purchase of Garvin’s contract with the insurance company and a subsequent performance of the rights therein granted, was in substantial effect a redemption from the Bittiker foreclosure sale. The moneys paid Garvin for his assignment would, if paid to the clerk of the court, have effected a redemption. The effective purpose to be served by the method that was followed was to refinance the first mortgage lien of the insurance company. Back of it all, however, was the use of the common property to effect the result of saving the property, and the method used was to a considerable extent immaterial. And this appears from the undisputed written evidence. Appellants’ oral testimony corroborates and explains what was done. It must be held that Sally Hughes holds title for the appellants as their interests may appear.
In its written opinion the trial court stated that appellants had never paid or offered to pay Sally Hughes any part of her expenses except as tendered in her petition, but that it did not base its decision thereon is clear. But it is not at all clear that the evidence as abstracted warrants the finding, for evidence is disclosed of an offer to pay and a refusal to disclose any amount due. If there was any denial it is not abstracted, nor does the brief of Sally Hughes say more than to quote the finding. On the other hand, it appears from written documents that practically all of the funds used by Sally Hughes in acquiring the title were those raised by using the common property and that before the period of redemption had expired. The record is not clear, but apparently Sally Hughes has collected rents in excess of any other amounts expended in acquiring the property. In the view taken by the trial court, there was no necessity for, and it made no specific findings with respect to, any accounting between the parties, nor as to any amounts that may be due from any one to the others. Nor did it make any findings with respect to defendants Noah Hayden and Harry Hayden, former cotenants with appellants and appellee Sally Hughes, as to whether they had acquiesced in what she had done in such manner that they no longer have any interest in the lands involved. On further hearing, those matters are proper for consideration. It is obvious they must be determined before it can be found just what interest appellants may now have in the real estate.
The trial court made no findings that appellants were guilty of laches in instituting the action. There is little in the evidence that may be said to pertain thereto. The deed to Mrs. Hughes was not made until June 10, 1935, nor recorded until July 12, 1935. The action was commenced March 18, 193.6. The record does not disclose laches barring the appellants.
The judgment of the lower court is reversed and the cause remanded for further proceedings consistent herewith. | [
-16,
122,
-104,
44,
74,
96,
56,
-102,
91,
-96,
-89,
83,
-5,
-50,
0,
45,
-5,
41,
81,
104,
-89,
-78,
23,
35,
-46,
-13,
-47,
-43,
-80,
-51,
-12,
87,
12,
36,
-54,
117,
-26,
-86,
-63,
30,
94,
-124,
-72,
-27,
-39,
64,
52,
95,
82,
11,
85,
-113,
-29,
41,
21,
67,
72,
47,
-37,
57,
-80,
-8,
-117,
-113,
-3,
11,
17,
6,
-104,
-29,
-56,
10,
-112,
49,
-120,
-23,
114,
-90,
-106,
-12,
71,
9,
8,
38,
102,
16,
101,
-17,
-16,
-104,
46,
118,
-115,
-90,
-76,
88,
3,
8,
-66,
-99,
96,
16,
7,
124,
-20,
-107,
28,
-24,
5,
-117,
-10,
-79,
-115,
-10,
-102,
3,
-42,
-123,
48,
112,
-49,
-96,
93,
-27,
61,
-69,
15,
-84
] |
The opinion of the court was delivered by
Smith, J.:
This case is here on rehearing. (See Corr v. Continental Oil Co., 145 Kan. 78, 64 P. 2d 30.) In that opinion we held that the demurrer of defendants to the evidence of plaintiffs should have been sustained on the ground that plaintiffs had not established by substantial, competent evidence that drainage had occurred. A petition for a rehearing was filed in due time. It was argued vigorously that this court had laid down too strict a rule as to the proof required to establish á prima facie cause of action in cases of this type. Briefs were filed by all parties and by various friends of the court. A rehearing was allowed and the appeal has been reargued.
Defendants presented three contentions on appeal: first, that defendants could not be held liable in damages for the alleged drainage by reason of failure to drill wells, because under the express terms of the lease the payment of the delay rentals and the acceptance of them by plaintiffs permitted the postponement of drilling operations, and no demand of any kind had been made upon defendants by plaintiffs to protect against drainage; second, plaintiffs proved no cause of action after the period when a producing well was brought in on the Lambe lease for the reason that no demand was ever made for the drilling of a protection well or surrender of the lease; third, that no competent evidence' was submitted by the plaintiffs that there had been drainage or that these plaintiffs had been damaged because the evidence that was submitted was based on no facts, was entirely conjectural, and too remote and speculative to afford any proper measure of damages.
In the former consideration of this case we did not deal with the first two questions, but placed our decision on the third question. On that question we said:
“We have examined the record in this case and have reached the conclusion that the plaintiffs did not sustain their burden by proving that there was oil under the ‘Lambe 80’ when drilling in the Valley Center field first started or that oil was drained from under the ‘Lambe 80’ through wells operated by defendants. The evidence relied on to prove these issues was so speculative as to amount to but little more than guesswork. It follows that the judgment of the trial court overruling the demurrer of defendants to the evidence was erroneous.” (p. 85.)
Judgment was ordered for defendants.
The argument of those who sought a rehearing was that our original opinion required a plaintiff in this sort of a case to establish the porosity and permeability of the oil-bearing strata and the hydrostatic head as well as the gas pressure in the field in order to establish drainage sufficiently to require a submission of the case to a jury. We did not intend that such a construction as this should be given our opinion. The above circumstances, as well as many others, are proper to be considered.
Many basic facts were not disputed at the trial, such as the dates of the drilling of the various wells' in 'the field, the production of each of them as well as the fluctuation in production, their location in the field as well as their distance from the “Lambe 80,” the movement of salt water in the field and the general geological structure. The dispute is as to the inferences to be drawn from these undisputed facts. In this connection it should be noted now that this case is here on appeal from an order overruling a demurrer to the evidence. The rule has been stated in many different ways, but it may be said that on a demurrer to the evidence of plaintiff every reasonable inference to be drawn from the evidence should be indulged in favor of the allegations of the petition, or, on demurrer the strongest possible effect is given to evidence against party demurring (Russell v. Considine, 101 Kan. 631, 168 Pac. 1095), or the demurrer should be overruled where there was a mpdicum of probative proof (Bank v. Jacobs, 97 Kan. 798, 156 Pac. 771).
We have again examined the record in this case upon the question of whether- the evidence offered by plaintiffs met the requirement of the above rule. In doing this we have given consideration to all the above circumstances as well as the known experience in the field. After such a consideration we have reached a conclusion that the evidence offered.by plaintiffs is so speculative and remote as not to warrant the submission of the issue of drainage to a jury. In reaching this conclusion we have considered evidence offered by defendants which tended to supply certain elements of proof that were lacking in the plaintiffs’ case as well as that offered by plaintiffs.
We have examined the authorities relied on by plaintiffs but have found none involving oil drainage where the wells through which the drainage was claimed to have taken place were located as far from the land claimed to have been drained as were the wells in this case.
The judgment of reversal is adhered to.
Hutchison, J., not sitting. | [
-12,
-18,
-95,
-83,
8,
-32,
104,
-102,
65,
-93,
119,
83,
-19,
-61,
-124,
105,
-53,
63,
116,
107,
-58,
-74,
23,
82,
-62,
-13,
115,
-43,
-16,
-17,
-28,
84,
76,
52,
-53,
-43,
102,
10,
-43,
92,
-50,
12,
-104,
-19,
-23,
10,
48,
107,
54,
79,
101,
-124,
-30,
44,
25,
-57,
9,
44,
-1,
57,
73,
121,
-102,
7,
95,
1,
49,
-108,
-76,
66,
-40,
14,
-48,
-71,
9,
-24,
114,
-92,
-124,
116,
39,
-103,
44,
34,
106,
-127,
85,
111,
104,
-72,
63,
-73,
29,
-90,
-111,
24,
75,
98,
-106,
-103,
124,
20,
39,
-2,
-22,
5,
94,
-20,
7,
-117,
-14,
-79,
7,
117,
-100,
81,
-21,
-121,
4,
100,
-51,
-94,
92,
69,
83,
-33,
-122,
-104
] |
The opinion of the court was delivered by
AlleN, J.:
This is an original proceeding in habeas corpus. On January 31, 1938, a judgment was entered by the district court of Cowley county committing the petitioner, M. B. Light, to the state asylum for dangerous insane at Lansing, Kan. The habeas corpus proceedings now before us calls in question the validity of that judgment.
The petitioner, Miles B. Light, was arrested in 1936 and charged in ten counts with the crime of embezzlement. After a preliminary hearing in a justice court he was bound over for trial in the district court of Cowley county. In June, 1937, following the appointment of Judge Edgar Bennett, of Marysville, by the chief justice of this court, as judge pro tern, to try the case of State of Kansas v. Miles B. Light, that cause was proceeded with and a trial was held. After the cause was submitted to the jury, two jurors advised Judge Bennett that they had been approached with the offer of a bribe; thereupon the trial judge declared a mistrial, the cause was continued and the defendant continued to be at liberty under bond.
In December, 1937, Judge Bennett stated in writing to the clerk of the district court of Cowley county that by reason of the press of business in his own judicial district he could not try the case of the State of Kansas v. Light during the January terna. Thereupon the chief justice of this court, upon a proper showing and at the request of counsel for the state, appointed Judge John G. Somers, of Newton, as judge pro tem to try the case.
On January 10, 1938, Judge Somers assigned the case for trial on Monday, January 31. After adjournment of court on January 10, counsel for Light privately told Judge Somers that he expected to have a proceeding commenced in the probate court of Cowley county to inquire into the mental condition of the defendant Light. On January 10, 1938, an information signed by John S. Light, a son of the defendant, Miles B. Light, was filed in the probate court charging that the defendant was a distracted and feeble-minded person; thereupon a commission was appointed by the probate court and a hearing was held by the commission so appointed. The commissioners found that Light was distracted, feeble-minded and confused. The probate court adopted the findings and found that Light was a feeble-minded, distracted and confused person, and appointed a guardian for his property, but not for his person. Counsel for the state refused to participate in the proceedings in the probate court.
On January 18, 1938, counsel for the state filed a motion in the district court suggesting that the defendant Light was mentally disabled and that he lacked mental capacity to comprehend his position or properly make his defense, and requested the district court to proceed at once in the manner prescribed by law to determine the mental condition of the defendant.
Thereafter Judge Somers made an order appointing a commission to inquire into the sanity of the defendant Light, and set the date for hearing January 21,1938. Counsel for the defendant Light were duly notified of the time and place of the hearing and at the hearing the defendant Light appeared in person and by his counsel. On the date of the hearing, January 21, 1938, Judge Somers conducted a hearing in conformity with the provisions of our statute, G. S. 1935, 62-1531. The commission appointed by him heard the statements of several witnesses produced by counsel for Light, and the commission, assisted by Dr. D. V. Conwell, a psychiatrist of Halstead, who had been subpoenaed by Judge Somers, made a personal examination of Light and thereafter the commissioners made their report, finding that the defendant Miles B. Light “was insane, incompetent to make his defense and unable to comprehend his position.”
Thereafter the trial judge, upon due consideration, confirmed the report of the commission and entered judgment confirming the report of the commissioners and ordered and adjudged that the petitioner be committed to the state asylum for the dangerous insane at Lansing.
Attached to the petition is an agreed statement of facts setting forth the proceedings as above outlined, and other matters that may be referred to in the opinion.
In the agreed statement of facts it is stated:
“12. That at 3:30 p. m. on January 20, 1938, counsel for Miles B. Light was served with a copy of a court order made in chambers at Hutchinson, Reno county, Kansas (that Reno county, Kansas, is a part of the ninth judicial district and not a part of the nineteenth judicial district, which is comprised of Cowley county), appointing a commission composed of Doctors K. Armand Fischer, J. L. Wentworth and E. H. Clayton, all of Arkansas City, Kan.
“13. That on the morning of January 21, 1938, defendant Light and his counsel appeared in response to the order and advised the court that it was the defendant’s understanding that there was to be only a hearing upon the motion on January 21, but that the hearing, as ordered, was proceeded with.
“16. That the defendant Light offered testimony on January 31 in support of his various motions to show that the report filed by the commission was not in truth and in fact the actual report and finding of the commission; that transcript of said offer is attached hereto as exhibit K.
“17. That the cause was continued from January 21, 1938, to January 31, 1938, for further hearing upon the report of commissioners, said date being the regular-assigned trial date for said defendant.
“22. It is admitted that the defendant Light was not present with the commission which conducted the examination on January 21, 1938, except during such time as he was being examined by said commission.”
Petitioner asserts that the order made and signed by the trial judge outside of Cowley county is void and all proceedings thereafter had are void for want of jurisdiction.
From the record it appears, and indeed -it is not denied, that the court not only had jurisdiction of the subject matter and of the person of the defendant, but also authority to render the particular judgment that was entered. It is thoroughly established in this state that when the court which has rendered a judgment, had jurisdiction of the person and the subject matter, and the order or judgment which has been entered is of the character prescribed by law that habeas corpus will not lie for the release of a petitioner because of mere errors, irregularities and defects in the proceedings which do not render it void. (In re Bundy, 144 Kan. 64, 58 P. 2d 80; Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502; Levell v. Simpson, 142 Kan. 892, 57 P. 2d 372; In re Terry, 71 Kan. 362, 80 Pac. 586.)
In In re Owen, 109 Kan. 695, 200 Pac. 1070, it was held that the supreme court will not discharge a petitioner on habeas corpus when the petitioner’s cause is still pending and undetermined in such lower court and where all the objections to the validity of the proceedings may be urged before the court whose process has deprived him of his liberty and where all adverse rulings of the trial court can be reviewed, and, if erroneous, corrected on appeal.
An attack upon a judgment by habeas corpus is a collateral attack, and is subject to the rules restricting collateral attacks. (3 Freeman on Judgments, 5th ed., § 1546.) Thus in the case In re Wallace, 75 Kan. 432, 89 Pac. 687, it appeared that a boy had been sentenced to the reformatory. Under the law no offender under sixteen years of age could be imprisoned in the state reformatory. Upon the hearing the petitioner offered to prove that the young man was in fact under sixteen when the sentence was pronounced. It was urged that his age was a jurisdictional fact, and that, therefore, the judgment was void. In upholding the judgment it was said:
“This proceeding is no more than a collateral challenge of a record of the district court. That record discloses that the question of the age of the prisoner was heard and decided by the court. The record imports absolute verity, and cannot( be overthrown by parol testimony or impeached from without. If a mistake was made in deciding the question ofi fact it can only be corrected upon an appeal. The jurisdiction of the court and the legality of the sentence are open to inquiry in habeas corpus, and if it appeared from the face of the record that Wallace was less than sixteen years of age the sentence would be illegal and he would be entitled to a discharge in this proceeding. On the face of the record the judgment appears to be valid. It has been held that ‘where a party is held under process issued on any final judgment of a court of competent jurisdiction the inquiry in habeas corpus is limited to the question, Was the judgment void, or has it been stayed, superseded, or otherwise spent its force?’ (In re Rolfs, Petitioner, 30 Kan. 758, 759, 1 Pac. 523. See, also, In re Watson, Petitioner, 30 Kan. 753, 1 Pac. 775; In re Macke, Petitioner, 31 Kan. 54, 1 Pac. 785; In re Brown, 62 Kan. 648, 64 Pac. 78; In re Terry, 71 Kan. 362, 80 Pac. 586.)”
In the case at bar the order appointing the commission to inquire into the sanity of the petitioner Light was made outside of the district. It appears that the petitioner Light was present in person and represented by his counsel at the hearing and that witnesses were introduced upon his behalf. It does not appear how the rights of the petitioner were in any manner prejudiced. We think that at most this was a mere irregularity and that such irregularity did not render the proceedings void. (See In re Watson, supra.) The fact that the petitioner was not present during all of the proceedings is immaterial. In In re Terry, 71 Kan. 362, 365, 80 Pac. 586, it was stated that “the objection that the record does not affirmatively show that the petitioner was personally present when the judgment was rendered is not good on habeas corpus.”
The petitioner asserts that the hearing before the probate court ousted the district court of jurisdiction. The language of the statute shows this contention to be without foundation, and besides the point has been directly passed upon by this court. In State v. Gould, 40 Kan. 258, 19 Pac. 739, it was held that proceedings in the probate court did not defeat jurisdiction of the district court.
Petitioner Light next contends that our statute, G. S. 1935, 62-1531, must be construed to permit the commitment and restraint only of those persons who should be restrained of their liberty for their own welfare or the safety of the public. Under our statute, G. S. 1935, 76-2460, the board of administration was directed to establish and maintain suitable buildings to be known as the “state asylum for the dangerous insane” for the purpose of holding in custody and caring for such insane persons, idiots, imbeciles and epileptics as may be committed thereto by the courts of criminal jurisdiction. As the petitioner herein was committed to this institution by a judgment of the district court upon a due and proper hearing, this objection must be ruled against the petitioner. The argument of the petitioner might be of persuasive force when addressed to the legislature. This court has no power to strike down the express command of the statute.
We have carefully examined all of the objections suggested by the petitioner and find them without substantial merit. The rights of the petitioner appear to have been carefully guarded in the proceedings in the trial court, and the writ must be denied. It is so ordered. | [
-80,
-24,
-7,
94,
10,
-96,
42,
-118,
90,
-77,
-76,
115,
-87,
82,
4,
121,
123,
85,
85,
113,
-28,
-105,
67,
-63,
-46,
-13,
57,
-35,
-77,
89,
-74,
-41,
77,
112,
10,
21,
-122,
-54,
-57,
92,
-114,
5,
-87,
-64,
-47,
42,
32,
111,
18,
15,
117,
62,
-9,
42,
30,
-9,
-55,
60,
-37,
-86,
24,
-80,
-81,
15,
109,
22,
-93,
-126,
-102,
-127,
80,
63,
-104,
49,
-125,
-20,
115,
-90,
2,
-12,
99,
-87,
12,
38,
98,
1,
-83,
-17,
-88,
-102,
63,
54,
-99,
-89,
-104,
88,
98,
-84,
-106,
-103,
117,
80,
11,
-16,
-25,
28,
112,
104,
-124,
-49,
-76,
-111,
-113,
124,
-120,
-33,
-5,
-89,
48,
113,
-115,
-74,
92,
70,
122,
27,
-121,
-108
] |
The opinion of the court was delivered by
Habvey, J.:
This is an appeal from a judgment in a state highway condemnation case. In March, 1936, the state highway commission, desiring to widen and improve a portion of the state highway system, known locally as the “Reidy Road,” in Wyandotte county, filed its petition, in due form, for the appointment of appraisers for the taking of a strip of land 50 feet wide and 363 feet long belonging to J. N. Glover and adjoining the then right of way of the state highway. Commissioners were appointed, who gave notice as provided by law, and who made an appraisement for the land taken, $105, for fence, $10.20, for trees, $30, and for yard damage, $50, making a total award of damages of $195.20, and filed their report with the clerk of the district court, May 12, 1936. On May 28, 1936, being dissatisfied with the appraisement, J. N. Glover filed with the clerk of the district court a notice of appeal and a bond in the penal sum of $50, signed by himself and two sureties, residents of the county, which recited the proceedings taken and the appraisement made, that he felt himself aggrieved thereby, and appealed therefrom to the district court of Wyandotte county, which bond concluded:
“Now, therefore, if the said J. N. Glover will prosecute his appeal to effect and without unnecessary delay, and if a judgment rendered against him on the appeal will satisfy such judgment and costs, then this obligation to be null and void, otherwise to be and remain in full force and effect.”
This bond was approved by the clerk of the district court, and the proceeding was docketed as a civil action. Thereafter, and before the trial of the action in the district court, the state highway commission filed a motion to dismiss the appeal, for the reasons: (1) that it was not taken as provided by law, in that a bond conditioned by law was not filed; and (2) that the owner of the land did not, within thirty days, file a bond for the cost of such appeal, as required by law, in that he filed a bond for a specific amount, to wit, $50. This motion was considered by the court and overruled. Thereafter the action was tried to a jury and resulted in a judgment for Glover against the state highway commission for $1,500. From this judgment the state highway commission has appealed, and contends (1) that the appeal bond filed by Glover did not give the district court jurisdiction of the action, (2) that the court erred in admitting evidence as to damages, and (3) in refusing to receive certain evidence offered. We shall speak of the landowner as plaintiff and of the state highway commission as defendant.
Before considering questions argued by defendant, as appellant here, we must consider a question raised by plaintiff, as appellee here; namely, that there is no appeal from the district court to this court in a condemnation proceeding conducted under G. S. 1935, 26-101 and 26-102. In support of appellee’s motion to dismiss this appeal on that ground it was argued that condemnation under these sections is a special proceeding or inquest (State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 Pac. 872; Todd v. Atchison, T. & S. F. Rly. Co., 134 Kan. 459, 461, 7 P. 2d 79); that the legislature was under no constitutional duty to provide for any appeal from the award of the commissioners (20 C. J. 1091; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453, 461), and that it has, in fact, provided only for an appeal to the district court. Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233; National Bank of Topeka v. State, 146 Kan. 97, 68 P. 2d 1076, and G. S. 1935, 60-3823, are cited and principally relied upon, although other cases and other sections of the statute having a less direct bearing upon the question also are cited. The Norman case construed the workmen’s compensation law as rewritten in 1927 (Laws 1927, ch. 232). This set up an entirely new machinery for handling a compensation case from that previously existing. There was a clear intention to create a procedure applying to that class of cases only, and to make it complete within itself, and one of the things to be accomplished was the early determination of claims in workmen’s compensation cases. With some doubt upon the point (the court was divided), it was thought that the omission to provide for an appeal to the supreme court was intentional. That this conclusion was perhaps not well founded is indicated by the fact that at the first session of the legislature following that decision provision was made to appeal those cases to this court (Laws 1929, ch. 20.6); hence, there should be no disposition to extend the doctrine of the Norman case on this point.
The National Bank of Topeka case involved the determination of the amount of an inheritance tax, first by the inheritance tax commission, and then, upon a review of its order, by the district court. There is no provision for appeal from the inheritance tax commission to the district court, nor does the statute provide that it becomes a “civil action,” or any kind of an action in the district court. Under those statutes the district court simply sits as a reviewing body of the order of the inheritance tax commission; hence, what was said in that opinion is not in point here.
G. S. 1935, 60-3823, so far as here pertinent, reads:
“Until the legislature shall otherwise provide, this code [of civil procedure] shall not affect proceedings to assess damages for private property taken for public uses, . . . but such proceedings may be prosecuted under the code whenever it is applicable.”
So far as it applies here, this section simply means that the code of civil procedure has no application to any special procedure provided by the legislature for the taking of private property for public use unless and until an appeal is taken to the district court, unless the legislature specifically makes the civil code applicable prior to that time, which it has not done. G. S. 1935, 26-102, reads as follows:
“If the petitioner or the owner of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions.”
This follows, of course, what has been done under the special proceedings for the taking of private property for public use, as outlined in G. S. 1935, 26-101, and the filing of the report of the commissioners, previously appointed, with the clerk of the district court, showing the award of damages made by them to the landowner. That prior proceeding is what the code of civil procedure does not apply to, as was stated in G. S. 1935, 60-3823. But when the notice of appeal and bond are given and approved, as authorized by G. S. 1935, 26-102, “an action shall be docketed and tried the same as other actions.” With respect to the trial of such an action the civil code does apply. (C. I. & K. Bld. Co. v. Townsdin, 45 Kan. 771, 774, 26 Pac. 427; Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 Pac. 708; State Highway Comm. v. Phillips, 146 Kan. 78, 69 P. 2d 12; Bruna v. State Highway Comm., 146 Kan. 375, 69 P. 2d 743.) The result of the trial of such an action becomes a judgment (Stewart v. Marland Pipe Line Co., supra), and our code provides that an appeal may be taken from the district court to this court upon the final judgment of an action tried in the district court. (G. S. 1935, 60-3302.) It follows, therefore, that the contention of plaintiff, as appellee here, that no appeal lies from the district court to this court in this kind of an action, is not well taken.
We shall now take up the questions presented by defendant, as appellant here. First, it is contended that the bond given by the landowner, Glover, in his effort to appeal from the award of the appraisers, isinot in conformity to the statute (G. S. 1935, 26-102), and was insufficient to give the court jurisdiction; hence, that its motion to dismiss that appeal, filed in the district court, should have been sustained. The appellant here was the appellant in Russell v. State Highway Comm. (and another case disposed of in the same opinion), 146 Kan. 634, 73 P. 2d 29, where the bonds, so far as here important, were worded the same as they are in this case. Appellant made the same contention in those cases it is making here. In the decision of that case a majority of this court agreed with appellant and reversed the judgments obtained by the property owners in the district court, with directions to vacate the judgments and to dismiss the appeals attempted to be taken to the district court. Following the handing down of that decision motions for rehearing were filed, supported by briefs of counsel for the respective parties, also by briefs of counsel appearing as amici curiae by leave of court. Pending the consideration of these motions for rehearing, and briefs thereon, this action was submitted. Thinking that because of other questions argued (one of which caused the division of the court), perhaps the court had not given as careful attention as it might to the specific question of whether the bonds given were sufficient to confer jurisdiction of the actions upon the district court, we ordered a rehearing in the Russell case and its companion and reassigned this case for reargument at the same time, and requested the argument to be directed at the sufficiency of the bonds to give the district court jurisdiction of the actions on appeal from the awards. The cases have been reargued and additional briefs filed, all of which we have considered. We are now of the opinion that the conclusion reached by the majority of the court in the decision of the Russell case (146 Kan. 634, 73 P. 2d 29), was erroneous, in that we regarded the statute (G. S. 1935, 26-102) to be tantamount, so far as the bond to be given is concerned, to G. S. 1935, 61-1002, and in not considering more carefully the purpose the legislature had in mind with respect to the conditions of bonds in condemnation proceedings.
G. S. 1935, 61-1002, is one of the sections of chapter 229, Laws 1931 (G. S. 1935, 61-1001 to 61-1003a, incl.). This statute was enacted to deal with appeals in civil actions from justice of the peace courts and other courts of the state having justice of the peace jurisdiction. Its principal purpose was to avoid some of the hardships to litigants in such cases, which frequently occurred under previously existing statutes. One of the purposes was to enable a defendant, against whom a money judgment had been rendered, to appeal to the district court without giving bond to pay double the amount of the judgment against him; hence, it provided that the appeal might be taken by filing a notice of appeal and by giving a bond to pay the cost of the appeal. If in addition to that he desired to stay execution on a money judgment against him he could give an additional bond for that purpose. The statute was written so as to avoid confusion as to just when the appeal becomes effective. Under it, when the notice of appeal is filed and the bond given to secure the cost of the appeal, the statute declares, “thereupon the appeal shall be deemed perfected.” Only two things are required to be done; they are clearly stated, and they are not burdensome to a litigant. When cases came up involving the statute it was said, in effect, that the statute should be followed. (Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585; Id., 139 Kan. 17, 29 P. 2d 1115.) The statute was designed to apply to appeals from the courts mentioned in it, or other appeals which the statute required to follow the justice of the peace practice. (Durkee v. Bourbon County Comm’rs, 142 Kan. 690, 691, 51 P. 2d 984; Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080.) It was never intended to apply to all classes of appeals to the district court. (See In re Estate of Johnson, 147 Kan. 12, 14, 75 P. 2d 813.)
G. S. 1935, 26-102, came into our statutes at the time of the general revision of 1923, eight years before chapter 229, Laws 1931, was enacted, and hence could not have been influenced by it, or by the decisions construing it. This is a section of a statute which did not deal alone with appeals. It was a part of our statutes dealing generally with condemnation proceedings, and specifically with condemnation proceedings by corporations (other than railroads), privately owned but having the right of eminent domain.
The commission to revise our statutes in 1923 found many sections of existing statutes relating to procedure for condemning private property for public purposes. In some of these the procedure was before the district court, or judge thereof; in some before the probate court, and in some before county commissioners. These are mentioned at page 11 of the report of the commission of December, 1922, and it is said:
“We have, therefore, prepared a general statute on eminent domain, providing for condemnation in every instance before the district court, and have eliminated all of these conflicting provisions.”
The general statute proposed was set out at pages 97 to 99 of the report, and with a slight change, not here important, appeared as articles 1 and 2 of chapter 26 of the Revised Statutes of 1923 (G. S. 1935, 26-101 to 26-210). See, also, Miltimore v. City of Augusta, 140 Kan. 520, 522, 38 P. 2d 675. Article 1 of this chapter (G. S. 1935, 26-101, 26-102) deals with the procedure when the condemning party is a corporation. Article 2 (G. S. 1935, 26-201 to 26-210) deals with the procedure when the condemning party is a city, and with this we are not here concerned.
The commission which drafted the statute (G. S. 1935, 26-101, 26-102), and the legislature which adopted it, had before them the previous statutes of the state and the previous decisions of this court respecting eminent domain and procedure therein. Certain principles respecting those matters had become settled in the law of this state, of which the following may be mentioned: (1) The power of eminent domain; that is, the right to take private property for a public use is inherent in a state; it is not one granted by our constitution. (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453; Jockheck v. Comm’rs Shawnee Co., 53 Kan. 780, 789, 37 Pac. 621; 20 C. J. 513; 10 R. C. L. 6; Lewis on Eminent Domain, § 1), but its exercise may be limited by the constitution (Challiss v. A. T. & Santa Fe Rld. Co., 16 Kan. 117; 20. C. J. 516; 10 R. C. L. 11, 12). (2) Except as so limited, it may’be exercised for any public purpose designated by the legislature, and in the manner it prescribes. (Irrigation Co. v. Klein, 63 Kan. 484, 485, 65 Pac. 684; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., supra; 20 C. J. 624; 10 R. C. L. 195.) (3) The taking of private property for public uses is not necessarily a judicial act; it may be done by or before a nonjudicial officer, board or tribunal. (See authorities above cited.) (4) That may be the district court, or any judge thereof, the probate court, or its judge, boards of county commissioners, or any other official board or tribunal authorized by the legislature to act in that capacity. (See Gen. Stat. 1915, §§ 1075, 1745, 1971, 1972, 2187 to 2207, 5733 to 5740, 9408 to 9413, and cases there annotated; 20 C. J. 1023 to 1028.) (5) The nature of the proceedings is not changed by reason of other duties, or of the class or classification of the official board or tribunal before whom, or by whom, the proceeding is conducted. The proceeding in all cases consists of a declaration or prima facie showing by the condemning party that it has the right of eminent domain and to take the private property in question for a specific public use, that it has found it necessary to do so, and a request for the appointment of commissioners to determine the amount the condemning party should pay for the property taken, and the amount of damages, if any, to the remaining property of the owner resulting from the taking, the determination of those matters by the commissioners, and their report to the official board or tribunal designated by statute to receive such report. (6) The amount found by the commissioners proper to be paid by the condemning party was called an award. (See above authorities.) It was determined by the commissioners, not by the official board or tribunal which appointed them, or to whom they made their report. It was not a judgment; no execution could be issued on it. (7) While it was usual for statutes to make a provision for either party not satisfied with the award to appeal to the district court, such a provision was not essential to the validity of the proceedings or the award. (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., supra.) (8) There was no action in court until one of the parties took an appeal from the award. Prior to that time everything done was in the nature of an inquest (State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 Pac. 872), and under the procedure specifically provided for the particular kind of condemnation.
There is nothing in the statute (G. S. 1935, 26-101, 26-102), or in the report of the commission to revise the statutes, which indicates an intention to change the essential nature of these proceedings prior to the time one of the parties took an appeal to the district court.
In some of our cases it has been held that even after the appeal had been taken it continued as a proceeding to determine the amount of an award. (W. & W. Rld. Co. v. Kuhn, 38 Kan. 104, 109, 16 Pac. 75; K. C. W. & N. W. Rld. Co. v. Kennedy, 49 Kan. 19, 23, 30 Pac. 111, 126.) The parties were left to their common-law remedies. (Railway Co. v. Murphy, 75 Kan. 707, 714, 90 Pac. 290.) Whether under the new statute (G. S. 1935, 26-102) the result of the trial of the action on appeal would be an award or a judgment was not determined in State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 Pac. 872, since it was not necessary to a decision in that case; but in Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 Pac. 708, it was held that after an appeal it is an action governed by the code of civil procedure, in which a personal judgment may be rendered.
The new statute (G. S. 1935, 26-101, 26-102) attempted to make the procedure uniform in all cases to which it applied, and provided the appeal should be docketed and tried as an action, and an action is defined by our code (G. S. 1935, 60-104).
Having provided (in G. S. 1935, 26-101) a special procedure for the exercise of the right of eminent domain by corporations, a section was added (26-102) giving the condemning party, or the owner of the real property, if dissatisfied with the award made by the commissioners, a right of appeal to the district court, where what was previously a special proceeding in the nature of an inquest became an action to be docketed and tried the same as other actions in the district court. To accomplish that, the dissatisfied party, within thirty days after the report of the commissioners is filed with the clerk of the district court, shall file a notice of appeal “and give bond for the costs thereof, to be approved by said clerk.” The notice of appeal was given in this case, and no question is raised as to its sufficiency. Also, a bond was given which was approved by the clerk of the district court.
Appellant contends the bond does not conform to the statute and is insufficient to give the district court jurisdiction of the action; that in fact it is void and of no effect, for the reasons (1) it is not a bond to pay all the costs of the appeal, but only so much thereof as are adjudged against the appealing party; and (2) it is limited to the penal sum of $50, whereas the cost of the appeal, even the part adjudged against the appealing party, might exceed that sum.
It will be observed the bond to be given was for the cost of the action in the district court, and that the clerk of that court was designated as the official whose duty it was to approve the bond. The language of this statute does not follow the language of any of the previous statutes respecting the kind of a bond one dissatisfied with an award in a condemnation proceeding should give in order to have a hearing in the district court. Some of the previous statutes required the same kind of a bond one should give in appealing a civil action from a justice of the peace court to the district court. Some specifically set out the kind of a bond which should be given, and some of these required a different kind of a bond, depending on whether the property owner or the condemning party was appealing; and at least one of them required no bond where state property was being taken and the appeal was by the governor acting for the state.
Since the special proceeding was being converted into an action in the district court, there is reason to believe the commissioners who framed the act, and the legislature which passed it, had in mind the kind of a bond a litigant would give in filing an ordinary-civil action in the district court. Our code (G. S. 1935, 60-2401) requires such a bond to be approved by the clerk of the district court, and that it be “conditioned that the plaintiff will pay all costs that may accrue in said action in case he shall be adjudged to pay them, or, in case the same cannot be collected from the defendant if judgment be obtained against him, that the plaintiff will pay the costs made by such plaintiff.” The bond given in this case, and approved by the clerk of the district court, followed, in the main, this statute. This kind of a bond is not required to be in any definite sum (Simpson v. Rice, 43 Kan. 22, 22 Pac. 1019), but it has been held that where such a bond was in the penal sum of $50 it is not void for that reason (Obertino v. Mining Co., 87 Kan. 297, 299, 124 Pac. 172); and, generally speaking, such bonds are required for the protection of court officials and witnesses. Defects in the wording of such a bond do not affect the jurisdiction of the court to hear the action. (Farmer v. Warner, 64 Kan. 878, 68 Pac. 1127.) The opposing party may ask the court to require new or additional bond, and the case should not be dismissed because of imperfections in such a bond unless and until the party who gave it has had an opportunity to give another or a sufficient bond.
Defendant, as appellant here, in effect contends that because of the words “bond for the costs thereof” (in G. S. 1935, 26-102), the legislature was fixing the conditions of the bond and requiring the party giving it to give bond for the costs of the action irrespective of who was adjudged to pay the costs. This is the foundation for the argument that the language used should be given the same construction as this court has given to the language in G. S. 1935, 61-1002. This is a matter to which we have given much thought, and have reached the conclusion that the contention eannot be sustained. As previously pointed out, that statute and the decisions construing it were not in existence at the time the statute here being considered was enacted, and it had a purpose decidedly different from the statute now being considered. In the statute now being considered the commissioners who framed it, and the legislature which passed it, by providing for the notice of appeal and bond, were simply endeavoring to transfer a special proceeding into an action in court. They were familiar with the terms of the bond required for the beginning of a civil action in the district court. The statute in its present wording on that point was originally passed in 1909, but somewhat similar statutes have been in force since 1858. Many decisions of our court have interpreted it. We think it much more reasonable to say that was the intent of the language used than to say that the legislature, by these few words, was intending to state the conditions of the bond to be given.
Another reason prompts us to reach this conclusion. In the taking of private property for a public purpose the owner of the property is entitled to be paid the reasonable value of the property taken and the damages to the remainder of his property by reason of the taking, and this sum should not be diminished by costs. They should be paid by the condemning party. The statute (G. S. 1935, 26-101) requires the condemning party to pay the costs of the special procedure for the taking of the property. It is the general rule in this state and elsewhere that -where an appeal is provided from the special procedure to a court, and the same is taken by the owner of the property aggrieved with the award, and if the amount due him is increased upon a hearing in court, he should not be required to pay any costs. (See Bruna v. State Highway Comm., 146 Kan. 375, 69 P. 2d 743, and cases cited therein.) We think the commission which framed this statute, and the legislature which passed it, had no thought of changing that fundamental rule. It is argued on behalf of plaintiff, as appellee here, that a statute which would require the property owner in such a proceeding to give a bond to pay the costs in an appeal from an award in any event, would be in • violation of. our constitution. We find it unnecessary to go into that question. We prefer to rest our decision on this point upon the ground that it would have been such an innovation in the law of this state respecting such appeals, and so questionable from a constitutional viewpoint, that we are confident the legislature would not have attempted to do so in the few words chosen, but would have made its intent clear by sufficient appropriate language.
The fact that the clerk of the district court approved this bond should be given some force. He is the official designated by the statute as the person to pass upon and approve the bond. Unless it can be said to be wholly void, his approval of it cannot be ignored.
Having given the question more careful consideration, being aided by the briefs of counsel, we feel confident in holding that the bond given in this case was not so defective as to deprive the court of jurisdiction of the action. The holding in Russell v. State Highway Comm., 146 Kan. 634, 73 P. 2d 29, to the contrary is overruled.
In 1929, when the legislature created the state highway commission and placed upon it the duty of acting for the state in improving state highways (Laws 1929, ch. 225), it found it necessary for the state to acquire private property for the use of the state in constructing and improving state highways. This it did by section 14 of the act, now G. S. 1935, 68-413, later amended by chapter 286, Laws 1937. After, providing the state may acquire property for such use by the exercise of eminent domain, in order that there should be no confusion about the procedure to be followed, it was said the right should be exercised “in accordance with the provisions of article 1, chapter 26, of the Revised Statutes of 1923” (G. S. 1935, 26-101, 26-102). These sections, as previously noted, were originally intended for the exercise of the right of eminent domain by privately owned corporations (other than railroads). In some respects, perhaps not important in this case, they are not the most suitable for the condemnation of property for use of the state. But we need not stop to consider the prudence of the requirement that the state must proceed under these sections; that was a legislative matter. The reference in the statute to the procedural sections has the merit of definiteness and makes it unnecessary to debate about what procedure is applicable.
We now take up the questions'^ evidence argued. A description of the premises will help us to understand these. Plaintiff owned a tract of about 8 acres in the southeast corner of a certain quarter section of land in Wyandotte county five miles west of the city of Kansas City. Its width east and west is 363 feet and its length .north and south is 1,248 feet on the east side and 850 feet on the west side. The north line runs diagonally northeast and southwest. On the east line of this tract is an oil-surfaced township road. The state highway is on the south line of the tract, and before this condemnation proceeding it was 60 feet wide and had been improved with a cement slab 20 feet wide. Plaintiff purchased a part of this land in 1933 and the balance in 1935, and thereafter built a residence on the property at a cost of about $4,000, which was not fully completed when this condemnation proceeding was commenced. This was situated about 60 feet west of the highway on the east and 195 feet north of the state highway on the south. The entrance was from the east.
In order to provide a highway adequate for the traffic west of Kansas City the state highway commission early in 1936 found it necessary, or prudent, to rebuild the state highway along the south line of plaintiff’s land, a distance of about 20 miles west of Kansas City, by widening the highway and placing on the surface two 20-foot-wide cement slabs, two feet apart, and regrading the uneven surface by cutting down the high places and filling the low ones and by rebuilding culverts. In order to do this properly it was necessary to have an additional width of the state highway right of way. This condemnation proceeding was of a strip of plaintiff’s land 50 feet wide and 363 feet long of the south side of his tract and adjoining the previously existing right of way of the state highway.
Soon after the commissioners appointed by the court made their appraisement and award, in May, 1936, the work of improving the highway commenced, and continued for several months, and perhaps was completed when this action was tried in district court. The work to be done on the old and newly acquired right of way of that portion of the state highway adjoining plaintiff’s land on the south was the breaking up and removing of the old cement slab, regrading the highway by raising and widening it, the putting in of a new and larger culvert near the southwest quarter of plaintiff’s land, and resurfacing the new grade.
One of the elements of damage sought by plaintiff resulted from the manner in which the old pavement was broken up and removed by the workmen. Over defendant’s objection, plaintiff was permitted to testify that in doing this part of the work a large hammer, weighing about a ton, raised by power machinery and permitted to fall, was used in breaking up the old pavement; that this seriously annoyed the members of his family then living in the house he had built and jarred the house and things in it — so much so that it cracked large stones in the fireplace he had built in his house at a cost of about $500, which could not be repaired without tearing the fireplace down and rebuilding it. It is clear this is not a proper element of damage in this action, and that it was error to admit this testimony. Primarily, the plaintiff was entitled to recover for the property taken — the strip of land 50 feet by 363 feet — and damages, if any, to the remainder of plaintiff’s land by reason of the fact that this part was taken. Defendant was not liable to plaintiff in this action for any damages caused plaintiff some time after the property was taken by misconduct or negligence of workmen employed by it, or its contractor; neither has the state ever given its consent to be sued for damages of this character.
Another line of evidence of damage, admitted over defendant’s objection, that it was too remote and speculative, was to this effect: That when the plaintiff purchased this tract of land he had in mind that some day it would be more valuable to divide into half-acre and acre tracts and sell for suburban improvements. The evidence on this point disclosed that there had been some developments of this character along each of the paved highways out from Kansas City; that such developments had been made possible by reason of the paved highways, but the plaintiff’s land was five miles from the city; there had been none of such developments that far out, and many of those attempted had been unsuccessful from a financial viewpoint; that the closest development of this character to plaintiff’s land is two and one half miles northeast of it on U. S. 40, and that at the best, in the natural course of things, it would be a long time before plaintiff’s land would have any appreciable value by reason of the thought of such future development. The objection to this line of evidence should have been sustained. Primarily, the value of the property taken and damages, if any, to plaintiff’s property not taken, considered as of the time of the taking, were the things to be determined; not a speculative view of what the property might be worth under the most favorable conditions at some remote time in the future. (20 C. J. 775, and authorities there cited.) Later cases to the same effect are: Super-Power Co. v. Sommers, 352 Ill. 610, 186 N. E. 476; In re Dillman, 255 Mich. 152, 237 N. W. 552; Olson v. United States, 67 E. 2d 24.
A point much relied upon by plaintiff for the recovery of damages was the change of grade made by defendant in that portion of the improved highway adjoining plaintiff’s land on the south. The evidence disclosed that the grade of the highway had been raised over that of the old highway about one foot at the southeast corner of plaintiff’s land, about six feet west of there 100 feet, about ten feet 200 feet west, and about twelve feet near the southwest corner. This fact was stressed as an element of damages to plaintiff’s land not taken by the condemnation proceeding by the testimony of plaintiff and many of his witnesses. Defendant’s objections that this was not a proper basis or element of damages were overruled. They should have been sustained. Defendant already had a highway right of way 60 feet wide, which it had improved. It could have changed the grade of its road on that right of way by raising it, or lowering it, without being liable in damages to the owners of property adjoining the highway. The rule is well settled that in the absence of a constitutional or statutory provision authorizing it, an abutting property owner is not entitled to recover damages from a state, county, township, or city because of the change of the grade of an existing highway or street. (Callender v. Marsh, 18 Mass. 417; Smith v. Boston & Albany Railroad Co., 181 N. Y. 132, 73 N. E. 679; Offutt v. Montgomery County, 94 Md. 115, 50 Atl. 419; McCullough v. Campbellsport, 123 Wis. 334, 101 N. W. 709; Talcott Bros. v. City of Des Moines, 134 Ia. 113, 109 N. W. 311; Psota v. Sherman County, 124 Neb. 154, 245 N. W. 405; In re Forsstrom, 44 Ariz. 472, 38 P. 2d 878; Calhoun v. Highway Com., 208 N. C. 424, 181 S. E. 271; Hoffer v. Reading Co., Appellant, 287 Pa. 120, 134 Atl. 415; Vannoy v. Pennington, 9 N. J. Misc. Rep. 98, 152 Atl. 784.) Such was the rule at common law. (Stegall v. City of Chattanooga, 16 Tenn. App. 124, 66 S. W. 2d 266.)
In this state we have no statute making the state, counties or townships liable for damages for changing the grade of an established highway. Where a public easement exists, no damages should be allowed for its exercise. (20 C. J. 744; New Bern v. Wadsworth, 151 N. C. 309, 66 S. E. 144.) The plaintiff was not entitled to any damages to his land not taken by reason of the change of the grade of the highway. That was the effect of our holding in De Vore v. State Highway Comm., 143 Kan. 470, 54 P. 2d 971.
Defendant wanted a wider right of way because it was widening the portion of the highway designed for use for travel, for the slope of the grade, and for drainage; but the widening of the highway is not relied upon as an element of damage to the land not taken. This affects only the necessity of defendant to have additional width of highway, a matter which is included in the value of the land taken.
With respect to the value of the land taken — the strip, 50 by 363 feet, being about 42/100 of an acre — there was evidence as to the value of the land alone, and a fence thereon, concerning which there was not much conflict. There was also testimony as to the value of the trees on the land. It appears to have been discovered that they were exceptionally valuable trees. This testimony pertained principally to nine trees, seven black walnuts, varying in size from 10 to 24 inches in diameter, one white hickory, 22 inches in diameter, and one hackberry tree, 48 inches in diameter.
At the time of the trial of the action in district court all of the trees on the tract had been cut down except the hackberry tree and four walnut trees. In mitigation of damages, defendant offered to show that it was its policy not to cut trees on land taken for highway purposes unless it was necessary in completing the work to be done; that it frequently planted trees or shrubs on its right of ways, and that it had given orders that the five trees should be let stand. Objections to receiving this testimony were sustained on the ground that defendant, having taken the land on which the trees are growing, had a right to cut them down at any time in the future, notwithstanding its present declared' intention. Defendant did not offer this evidence by affidavit or otherwise on the hearing of its motion for a new trial; hence, it is not entitled to be heard here on its objection to the court’s ruling. (See G. S. 1935, 60-3004, and cases cited in the annotations.) More than that, we see nothing in the brief which convinces us the court was wrong in its ruling.
To show the value of these nine trees plaintiff called two witnesses as experts. One was a tree surgeon, who placed a value upon ■ the walnut trees and hickory tree at various figures from $30 to $200 each, and a value of $1,000 on the hackberry tree. He made it clear from his testimony that he was placing this value from a “tree surgeon’s standpoint.” Perhaps what he meant by that term is disclosed by his testimony with respect to work on trees in yards, parks and estates in and about Kansas City, where there were nice trees which the owners desired to preserve. Another was a nurseryman, whose business was setting out trees in yards, parks, and on estates in and about Kansas City. He placed substantially the same aggregate value on the trees (higher on some and lower on others). From his testimony it is clear he had in mind the value of such trees if moved to the yard, park, or estate of an owner who wanted that type of a tree. All of these trees were too large to move or transplant, unless, perhaps, the smallest walnut tree. None of the walnut trees was large enough, or had such a body shape as made it valuable to cut and sell for commercial purposes, except one, and no value was placed on it for that purpose. Objections to this evidence on the ground that it was not a proper measure of the value of the trees where they stood on the land to be taken were overruled, although the court told the jury they should consider the value where they stood. There is a conflict in the evidence as to the value of the trees'for ornamental purposes because of the shape in which they had grown. It is conceded, however, by defendant that the hackberry tree is an unusually beautiful tree, and several of the walnut trees were well shaped. Perhaps it can be said from the record that the five trees left standing were so regarded by defendant. We feel clear in saying that the evidence of the two expert witnesses above mentioned should not have been received, for the reason the testimony did not pertain to the value of the trees where they were, and for the further reason that it was placing a separate value upon the trees. Other witnesses called by plaintiff valued the trees separate and apart from the value of the land. The question being considered was the market value of the tract that was taken, 42/100 of an acre. It was proper to show what was on the land in the way of trees, but since they were growing there they were part of the land, and should not have been valued separately from the land.
In Lee v. Missouri Pac. Rld. Co., 134 Kan. 225, 231, 5 P. 2d 1102, the landowner was claiming as an element of damage for land taken the value of a matured corn crop on the land. The claim was denied, but in discussing the question it was said in the opinion:
“If the corn crop was still drawing sustenance from the soil it should have been regarded merely as part of the land, like the grass, the trees and the buildings, and the value of the land taken would include the corn crop.”
In Saathoff v. State Highway Comm., 146 Kan. 465, 466, 72 P. 2d 74, in the opinion it was said:
“The other claim of error is this: Appellant had some currant bushes and a few fruit trees on the condemned land. They were not permitted to put a value on -them separate from the value of the land. While it was proper to permit testimony as to how the land was improved, the improvements were a part of the real estate and were not to be valued separately.”
In Lewis on Eminent Domain, 3d ed., § 724, it is said:
“The compensation should be estimated for the land as land, and not for the materials which compose it. But it is proper to show the value of crops . on the land, though it is not competent to go into the question of the profits which might have been made therefrom but for the taking. So it is proper to consider the value of trees, or of peat on the land, or of a spring of water, or a well. .But these items should not be valued separately but considered as affecting the value of the land.”
The same rule is stated in -20 C. J. 798; 10 R. C. L. 129; in The Law of Eminent Domain by Randolph, § 242; in Nichols on Eminent Domain, 2d ed., § 226, and is referred to approvingly by Orgel on Valuation under Eminent Domain, p. 542, note 38; and is specifically followed and applied in the following cases: Commonwealth v. Combs, 244 Ky. 204, 50 S. W. 2d 497; Louisiana Highway Com mission v. Dunn, 173 La. 998, 139 So. 384; Logan County v. Davenport, 214 Ky. 845, 284 S. W. 98; Foote v. L. & C. Ry. Co. et al., 21 Ohio C. C. 319; Blair v. Waldo (Tex. Civ. App.), 245 S. W. 986; Texas & St. Louis R. R. Co. v. Matthews, 60 Tex. 215; P. B. & C. Traction Co. v. Vance, 234 Ill. 36, 84 N. E. 607; City of Tulsa v. Lloyd, 129 Okla. 27, 263 Pac. 152; Saulsberry v. Ky. & W. Va. Power Co., 226 Ky. 75, 10 S. W. 2d 451; Kukkuk v. City of Des Moines, 193 Ia. 444, 187 N. W. 209.
Our attention has been called to no cases to the contrary.
Broadly speaking, there are but two questions to be tried in this action: (1) The market value of the land taken — the tract 50 by 363 feet — to be arrived at in harmony with the authorities above cited pertaining to that question. Its location, the quality of the land, and the trees thereon and forming part of it, may be described, but they should not be valued separately. The only value to be placed on the tract is the market value as it was when taken, May 12,1936. (2) The damage, if any, to the remainder of plaintiff’s 8-acre tract by reason of the fact the 50 by 363 foot tract was taken or sold. In determining that the testimony respecting annoyance to plaintiff’s family and damages to his house because of work later done on the highway, plaintiff’s thought that at some time in the future the tract might be divided in half-acre or acre tracts and sold as a suburban improvement, and the fact that defendant changed the grade of the state highway, with resulting damages, should not be received, for the reasons hereinbefore stated.
The judgment of the court below should be reversed, with directions to grant a new trial, to be conducted in harmony with the views herein expressed. It is so ordered.
HuTCHisoN, J.,
dissents from the second paragraph of the syllabus and the corresponding portion of the opinion. | [
-16,
110,
-75,
-100,
-53,
-62,
90,
27,
81,
-79,
-76,
83,
111,
-54,
0,
127,
-82,
-65,
-59,
120,
-64,
-73,
67,
-93,
18,
-13,
91,
-51,
59,
93,
-28,
-42,
78,
112,
-54,
-107,
102,
-56,
-51,
92,
-50,
7,
-85,
-52,
-55,
72,
56,
-21,
20,
10,
-111,
-113,
-25,
46,
60,
-29,
104,
44,
91,
-87,
24,
-16,
-72,
-105,
94,
4,
17,
102,
-104,
-125,
72,
42,
-104,
55,
0,
-24,
119,
-90,
-121,
116,
45,
-103,
12,
-74,
103,
49,
52,
-17,
-24,
-104,
14,
-2,
-115,
-93,
-126,
24,
74,
97,
-106,
-99,
117,
86,
71,
126,
-18,
5,
93,
108,
3,
-53,
-78,
-15,
-51,
56,
-104,
65,
-53,
-91,
50,
112,
-51,
-14,
93,
103,
51,
91,
-121,
-79
] |
The opinion of the court was delivered by
Dawson, C. J.:
This was an action for damages sustained by plaintiff, who tripped on a plank negligently laid across a sidewalk, which caused her to fall and injure herself.
The locus in quo was as follows: Pine street and Walnut street in the city of Pittsburg run north and south. Seventh street runs east and west, intersecting Walnut and Pine streets. There is a brick or concrete sidewalk, 5 feet wide, on the south side of Seventh street in that locality.
Early in 1936 the defendant, W. R. Grimshaw Company, had undertaken the construction of a building for the water department of the city near the southwest corner of the intersection of Seventh and Pine streets. Defendant had 25 or 30 men employed, and considerable excavation work had been done. There was some testimony that dump trucks had been used to haul earth across the sidewalk, and some earth or mud lay on the sidewalk. On the premises where the excavation work was being done a considerable number of pieces of boards and planks were lying about, not far from the sidewalk.
On the evening of March 7, about 7:30, the plaintiff walked eastward on the sidewalk on the south side of Seventh street, between Walnut and Pine streets. When she arrived immediately north of where the excavation work was being done, she tripped on a plank, 12 feet long, 2 feet wide, and 2 inches thick, which was lying across the sidewalk, and which caused her to fall and sustain injuries.
Plaintiff brought this action, alleging that on March 7, 1936, defendant, through one J. L. Bridges, its agent and foreman, had negligently placed the plank across the sidewalk; that while exercising due care she came along the sidewalk about 7:30 p. m.; that there was no light or signal thereabout; and that she caught her left foot and anide on the plank, which caused her to fall and sustain injuries which her petition particularized.
Issues were joined and the cause was tried before a jury. In addition to the facts summarized above, there was evidence that where plaintiff fell the sidewalk was “very dirty,” and also muddy because of recent rain, and that at the time it happened it was dark.
Plaintiff testified to the extent and severity of her injuries, but that she continued to work at her employment (at a WPA sewing room) for several weeks, but eventually, about the last of April, she called on Bridges, defendant’s foreman, and told him of her injuries, and asked if his company could do anything for her. Bridges expressed his regret that she had waited so long before she told him; and said that if he had known it sooner he could have investigated the matter; but he told her to report to Doctor Kiehl at the Community hospital, which she did.
Defendant demurred to plaintiff’s evidence on the ground that it wholly failed to sustain the specific allegations of negligence charged in plaintiff’s petition — that there was no evidence that Bridges had placed the plank across the sidewalk and no evidence that it had been so placed by defendant or by any agent or employee of it. This demurrer was overruled. So also was defendant’s motion for a directed verdict.
Certain instructions given by the court were not complained of, and so became the law of the case. (Burns v. Hunter, 126 Kan. 736, 271 Pac. 398; Winston v. McKnab, 134 Kan. 75, 4 P. 2d 401; Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571.) These read:
“15. The mere receipt of an injury is never evidence of negligence. In this case the mere fact that plaintiff received certain injuries, if you find that she did receive any injuries by falling on the sidewalk, is not evidence of negligence on the part of defendant.
“22. If you find from a preponderance of the evidence in the case that the plaintiff was injured on or about March 7, 1936, at the place alleged in her petition and that her injuries and damages, if any, were caused by the negligence alleged by her which is in substance that a board or plank as described in her petition was placed across said sidewalk by J. L. Bridges, an agent and servant of the defendant, that is to say, if you find that the plaintiff was injured by the negligence and carelessness of the defendant and you find that her injuries and damages were caused by her falling over a board placed on said sidewalk by J. L. Bridges, and that there was no contributory negligence on the part of plaintiff that contributed to or helped cause her injuries, then your verdict should be for the plaintiff. But if you do not so find your verdict should be for the defendant.”
The jury returned a general verdict for plaintiff in the sum of $896‘.50, and answered special questions thus:
“1. Was there a board as described in plaintiff’s amended petition, across the sidewalk in question, at a place about forty feet east of the alley running north and south from Sixth street to and through Seventh street, at the time plaintiff claims she fell and was injured? A. Yes.
“2. If you have answered the above question in the affirmative, then state when said board was placed across said sidewalk. A. Sometime before 7:30 p. m., March 7, 1936.
“3. If you have answered question numbered one in the affirmative, then state whether or not you can find from the evidence in this case what person it was that placed said board across said sidewalk. A. No.
“5. If you find for the plaintiff, then state whether or not you do so find because from the evidence you believe said board was carelessly and negligently placed across said sidewalk. A. Yes.
“7. Were there six electric lights at a distance of approximately one hundred eighty to two hundred feet from the place the plaintiff claims to have fallen at the time the plaintiff claims to have fallen? A. Yes.”
Defendant filed a motion for judgment on the answers to the special questions notwithstanding the general verdict. Plaintiff filed a motion for a new trial, but later withdrew it, and defendant’s motion for judgment on the jury’s special findings was overruled. Judgment was entered on the general verdict; hence this appeal.
Defendant contends that its demurrer to plaintiff’s evidence should have been sustained because it wholly failed to prove that the plank which lay across the sidewalk had been placed there as alleged in plaintiff’s petition, and likewise failed to show that defendant directly or indirectly or through its foreman, employees, or otherwise, had caused it to be laid across the sidewalk. Based on the same asserted want of evidence defendant also contends that it was entitled to a peremptory instruction to the jury in its favor.
The majority of this court decline to sustain either of these contentions. It holds that the circumstances were sufficient to warrant an inference that defendant, through its agent or employees, in the course of the excavation work being done nearby had placed the plank on the sidewalk for defendant’s purposes and had negligently left it there at quitting time on March 7, 1936.
In support of such theory of the evidence, counsel for the appel-lee cites Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215; Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 275 Pac. 164; Supica v. Armour & Co., 131 Kan. 756, 293 Pac. 483; Asche v. Matthews, 136 Kan. 740, 18 P. 2d 177. The gist of all these cases is that circumstantial evidence may be quite sufficient to support a cause of action for damages and to permit a recovery thereon.
Defendant also contends that it was entitled to judgment non obstante on the jury’s special findings. The majority of this court hold otherwise. The findings are not absolutely inconsistent with the general verdict; therefore it cannot be nullified; nor can the judgment based thereon be set aside.
The judgment is affirmed. | [
-16,
106,
-40,
-18,
26,
96,
58,
-56,
25,
-123,
-75,
127,
-83,
71,
77,
113,
59,
125,
-47,
43,
-9,
-77,
3,
-117,
-78,
-9,
51,
-106,
-79,
93,
116,
103,
76,
112,
-54,
-99,
-26,
74,
-59,
28,
-116,
-100,
56,
-20,
29,
96,
52,
123,
-96,
79,
113,
-98,
-13,
40,
24,
-49,
40,
44,
79,
57,
66,
-79,
-96,
-107,
125,
22,
-96,
4,
-98,
3,
-56,
25,
-40,
53,
0,
-22,
115,
-90,
-105,
116,
39,
-71,
4,
98,
102,
33,
21,
39,
-24,
-40,
46,
-10,
-83,
-89,
-96,
56,
81,
7,
-67,
-99,
101,
64,
10,
122,
-2,
92,
89,
-20,
15,
-117,
-12,
-15,
-49,
-8,
-108,
-105,
-17,
-125,
50,
101,
-52,
-72,
94,
-27,
51,
-101,
31,
-8
] |
The opinion of the court was delivered by
Thiele, J.:
Claude Epperson held two licenses for the calendar year 1937 to sell cigarettes under G. S. 1935, 79-3301 et seq. Upon notice and after hearing, the defendant J. L. Grimes, the director of inspections and registration, revoked one' license and suspended the other for sixty days. As provided by the above statute, Epperson appealed to the district court. From certain rulings of the trial court hereafter mentioned the director appeals to this court.
Without reciting it in detail, the plaintiff’s petition charged that the action of the director in revoking and suspending his licenses was willful and malicious and deprived him of his property and rights without due process of law, and that unless the director was enjoined from enforcing his orders and from refusing to sell plaintiff the stamps required under the above statute, he would suffer irreparable injury. On the same day the petition was filed the trial court enjoined and restrained the director from refusing or denying plaintiff the privilege of purchasing stamps for cigarettes until further order of the court. In due time the director answered, admitting suspension of the licenses and denying his action was malicious, willful or arbitrary.
It is sufficient for our purposes here to say that at the trial, on November 10, 1937, the court rendered judgment in favor of the defendant, and “It is further considered, ordered, adjudged and decreed by the court that plaintiff be given thirty days in which to perfect his appeal.” On December 10, 1937, Epperson appealed to this court. Thereafter and on December 17, 1937, the notice, not having been sent forward to this court, was withdrawn by Epperson from the files of the district court. We shall not discuss the legal effect of this maneuver. On the same day he filed a document in the district court entitled “Petition for Rehearing,” alleging newly discovered evidence, all of which, according to the allegations, pertained to matters subsequent to the trial on November 10, 1937, including that on December 6, 1937, Epperson had ordered cigarette stamps from the director, who had refused the order. There were also reallegations of bad faith and arbitrary conduct on the part of the director. On the same day, and without serving any copy on the director and without notice to him, plaintiff presented the document to the trial court, which granted a rehearing. In its order the trial court made no reference to any temporary injunction, restraining order or stay.
Thereafter and on December 21, 1937, the trial court caused citation to issue for the director, commanding him to appear before the court on December 28, 1937, and show cause why he should not be punished for contempt of court for refusing to sell cigarette stamps to Epperson. On the appointed date the director did not appear personally, but was represented by his attorney. When the trial court was so advised it issued a bench warrant directing the sheriff to arrest the director, if necessary to hold him in jail and to bring him before the court there to show cause why he had failed to comply with the orders of the court. The director immediately appealed from all adverse rulings, and pending disposition of the appeal, further action in the trial court was stayed by order of this court.
The appellant presents five questions for our consideration and determination, and in connection therewith contends the trial court erred: (1) in restraining the appellant from in any way carrying out the order of suspension; (2) in granting plaintiff thirty days in which to perfect his appeal; (3) in granting plaintiff a rehearing; (4) in citing appellant to show cause why he should not be held in contempt, and (5) in ordering the bench warrant to issue for appellant.
The appellee challenges appellant’s right to be heard as to the first question for the reason that more than sixty days expired between the date the temporary injunction or restraining order was made and the present appeal was perfected, and as to the fourth and fifth questions because the orders complained of were not final orders. It seems conceded the appeal does lie as to the second and third questions.
Because of the manner in which we shall treat the questions, it is not necessary that we now determine whether the appeal was in time as to the first question nor that we discuss whether the order granting the injunction was a judgment from which an appeal must be taken in sixty days as required by Laws 1937, chapter 268, section 2, or a ruling under section 5 of that act, which could be reviewed at any time. And for reasons hereafter mentioned we need not determine whether the orders mentioned in the fourth and fifth questions were final orders.
Although appellant insists that courts are without power to restrain public officers from performing required official acts, for the purpose of disposing of this appeal it is not necessary we consider and determine the question. As has been noted, the main purpose of the action was to review the order of the director suspending licenses of the plaintiff as a cigarette dealer and the injunctive relief was sought only as a provisional remedy. We shall assume that the temporary injunction granted by the trial court at the time the petition was filed on September 10, 1937, was a proper exercise of power under G. S. 1935, 60-1102. When the action was tried on November 10, 1937, and determined in favor of the defendant, the effect was to discharge the injunctive ordei', and it could only remain effective by reason of a stay order properly made by the court. The court made its order as above quoted, giving the plaintiff thirty days in which to appeal. Such authority as the trial court had under the circumstances was that conferred by G. S. 1935, 60-3331, which for our purposes reads:
“When an order discharging . . . temporary injunction shall be made in any case, and the party who obtained such . . . injunction shall appeal from such order to the supreme court, the court or judge granting such order shall, upon application of the appellant, fix the time, not exceeding ten days from the discharge ... of such . . . injunction, within which the appeal shall be perfected, and during such time the execution of said order shall be suspended and until the decision of the case upon appeal, if the appeal be taken; ... If the appeal be not taken within the time limited, the order of discharge shall become operative and be carried into effect.” (Italics inserted.)
It will be observed that under the statute the order of discharge became effective if the appeal to this court was not perfected within ten days. The trial court was without power to extend the time to thirty days — its order, by reason of the statute, must be read as though it fixed time for appeal at ten days. As the appeal was not perfected in that time, the order of discharge became operative, and the temporary injunction was thereafter a nullity, unless the order of the trial court granting a rehearing had the effect of reinstating it, and unless it was reinstated in some manner, it is obvious there was no ground upon which to rest a citation for contempt for violation of it or for the subsequent issuance of a bench warrant.
As has been noted, the cause was determined November 10, 1937, and the time for appeal insofar as discharge of the injunction was concerned expired November 20,1937. On December 6,1937, plaintiff sent the defendant $20 with which to purchase cigarette stamps, and on December 10, 1937, defendant returned the remittance to plaintiff and advised him he was operating under suspension made by the defendant department. On the last-mentioned date, plaintiff perfected his appeal, which he later attempted to withdraw. But all he could appeal from at that late date was the correctness of the trial court’s ruling in finding in favor of the defendant on the main issue whether his license as a cigarette dealer had been properly suspended.
Although the statute provides that during term time the trial court shall have power to vacate and modify its own orders and judgments (G. S. 1935, 60-3007 et seq.), and although our decisions recognize that the district court has a wide and extended discretion in opening up judgments and modifying proceedings if it does so at the same term (among others: State, ex rel., v. Sowders, 42 Kan. 312, 22 Pac. 425; Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176; State v. Langmade, 101 Kan. 814, 168 Pac. 847; Klopfenstein v. Traction Co., 109 Kan. 351, 354, 198 Pac. 930; Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988), it will be observed that there are statutory provisions that the adverse party have notice and that each party have an opportunity to be heard. (See the above statutes and decisions and G. S. 1935, 60-722, 60-2932, 60-3003, and rule 45 of this court.) The order granting rehearing here was made immediately upon filing of a petition therefor and without any notice whatever to appellant. If it had the effect of reinstating the temporary injunction it made defendant guilty of a violation, although at the time he refused to sell plaintiff stamps there was no injunction in force. It must not be overlooked that before the action was tried on November 10, 1937, defendant had answered. While the trial court might properly allow injunctive relief without notice as provided by G. S. 1935, 60-1102 and 60-1108, under G. S. 1935, 60-1109, an injunction shall not be granted against a party who has answered, unless upon notice. Even if it be assumed that plaintiff could let his time for appeal pass, as he did here, and then seek and obtain further injunctive relief, it would seem he could do so only upon specific application for such provisional relief, notice to the adverse party, and a new order, and that such a result does not follow from the granting of a petition for rehearing after time for appeal has passed. And we so hold. The result is that there was no injunctive order of any kind in existence at the time the proceedings for contempt were being had, and those proceedings in all their parts must be vacated and set aside.
In connection with the contention the trial court erred in granting a rehearing, it is to be observed that the licenses, the suspension or revocation of which gave rise to this action, have by their terms expired (G. S. 1935, 79-3303), that nothing the trial court or this court may do with respect to licenses issued for the calendar year 1937 will now be of any force or effect, and that the matter is moot.
Insofar as the proceedings in contempt are concerned, the cause is remanded with instructions to the trial court to vacate and set aside its orders with respect thereto. In all other respects the appeal is dismissed. | [
-80,
-8,
-4,
-116,
27,
-31,
40,
-110,
86,
-95,
-90,
115,
-83,
-46,
-108,
47,
-5,
127,
84,
122,
-33,
-77,
6,
2,
118,
-45,
-37,
-43,
-79,
-51,
-27,
117,
12,
48,
-54,
21,
102,
-96,
-59,
88,
-58,
-95,
-71,
-31,
89,
56,
48,
107,
80,
15,
113,
-97,
-29,
44,
27,
-54,
45,
44,
107,
57,
-112,
-8,
-85,
13,
127,
18,
-77,
1,
-99,
-91,
-8,
46,
-120,
49,
0,
-8,
51,
-106,
-58,
116,
111,
-71,
8,
118,
98,
17,
93,
-19,
-20,
-120,
46,
123,
-83,
-90,
-103,
88,
1,
-123,
-74,
-97,
100,
18,
7,
126,
110,
-43,
93,
60,
1,
-118,
-74,
-77,
-81,
120,
-114,
10,
-18,
-91,
16,
113,
-35,
-92,
93,
81,
59,
31,
-122,
-124
] |
The opinion of the court was delivered by
Hutchison, J.:
The legal question involved in this appeal is whether the action is barred by the three-year statute of limitations, and this depends upon the question of whether the letter attached to the petition constitutes a written contract between the parties to this action, and, also, on whether the year 1931 is included therein.
The plaintiff was a traveling salesman and had been in the employ of the defendant corporation for many years. The headquarters of the defendant company were in Kansas City, Mo.; with a branch office at Wichita, Kan., under the charge of a local agent, and it was under this local agency that the plaintiff worked.
The petition alleged that the plaintiff during the last week of December, 1929, received an offer of employment from a competitive company with an advance in compensation, and therefore tendered his resignation to be effective January 1, 1930. The local agent at Wichita orally offered plaintiff a salary substantially equivalent to the offer made him by the other company, which would increase his monthly drawing account from $125 to $150, plus commission on sales, with a guaranteed total salary of $225 per month, or $2,700 per year. In July, 1930, plaintiff interviewed the manager of the company at the office of the company in Kansas City, Mo., and he, as manager, wrote a letter to Mr. Austin, who was in charge of the Wichita agency, dated July 9, 1930, which letter, omitting the first two paragraphs, is as follows:
“As the statements made to him by you, and practically confirmed by Mr. West at the time he was offered a position by the National Candy Company, to the effect that he would earn 8225 per month if he stayed with us, amount to a guarantee of wages at that rate as long as he is in our'employ, it will be satisfactory to consider his drawing account at the rate of $225 per month for the year 1930-1931 if he remains in our employ.
“It is understood that if his earnings for one month exceed this amount he is not to be paid any excess, but the whole earnings for the year are to be considered as a total, and the object of this arrangement is to pay him at the rate of $225 per month, or $2,700 per year.
“This does not make any general change in the method of figuring commis sions. His commissions are to be figured on the $2,083.33 net basis for a salary of $100 per month, so if his commissions on that basis should run over $225 per month, or $2,700 per year, you will pay him the excess amount; but if not, you will just pay him the difference between his drawing account of $150 per month, which is to be effective July 1, 1930, and $225 per month.
“In other words, at the end of this year, if his sales are not in such volume that he will earn more than $225 per month or $2,700 for the whole year, he is to be paid $1,050 to make the amount as agreed.
“We are assuming in this that he has drawn $125 per month for the first six months, and will draw $150 for the last six months of this year.
“This arrangement is not to be construed as a contract of service to continue for the length of time as specified, but rather it is understood that his employment is subject to the same limitations as heretofore existed. While we have a great deal of confidence in Mr. Fey, and we feel that he will give us his best efforts at all times, in case anything should occur to prevent him from doing so, we may discharge him or negotiate a change in contract; or, in case he should become incapacitated this agreement, of course, would be at an end immediately.
“We hope that by diligent effort and cooperation with the Wichita office and the sales department at Kansas City Mr. Fey will be able to run over his guarantee regularly before the end of the year. Yours truly,
“Jambs McQueeny, Manager.
“P. S. There will be no objection to giving Mr. Fey a copy of this letter if he desires it.”
The first two paragraphs refer to having had a conversation with Mr. Fey, the plaintiff, before telephoning to Wichita and to matters of account with Mr. Fey for the years 1928 and 1929.
The answer filed by defendant company admits the writing and the receipt of the letter attached to the petition, but alleges that under the provisions of the letter the Wichita agency made a different oral contract with plaintiff for the year beginning January 1, 1931, whereby plaintiff was to receive a monthly salary of $150 plus commission on sales actually made upon definite percentages, and the answer pleaded the bar of the statute of limitations.
The action was commenced June 30, 1936, and was for a recovery of compensation under the terms of the letter for the year ending January 1, 1932, in the sum of $875 with interest. The evidence showed that a copy of the letter was given to the plaintiff by the Wichita agency and at the close of the year 1930 a check was given the plaintiff for $692.80 in compliance with the provisions of the letter for the compensation for the year 1930. The evidence was conflicting as to the making of a new oral agreement for the year 1931, and the court placed the burden on the defendant as to that issue. The trial court instructed the jury that if it did not find that a new contract was entered into as of January 1, 1931, but that the .plaintiff continued to work under the old contract during the year 1931, then it should find for the plaintiff for the difference between what had been paid him and the sum of $2,700 per annum with interest. The verdict was for the plaintiff in the sum of $1,106.
The defendant demurred to the petition and to the evidence of plaintiff and filed a motion for a new trial, all of which were overruled, and defendant appeals from these rulings and also assigns error in the giving and refusing to give certain instructions. Of course, the action would be barred by the three-year statute of limitations unless there was a contract in writing for the services and compensation of plaintiff for the year 1931, this action having been commenced four and a half years thereafter.
It is urged that this letter could not be a written contract because it was not signed by the plaintiff' and was only a letter between two agents of the defendant. Appellant cites the case of Brant v. Johnson, 46 Kan. 389, 26 Pac. 735, where it was held:
“A letter of instructions from one agent to another cannot be construed into a contract between the principal and a third party respecting the business referred to in the letter.” (Syl. fi 2.)
In that case agents of the defendant Johnson wrote the officers of the bank where Johnson had his deposit promising to pay the debt of another, which debt was the commission for the sale of the land by plaintiff for the owner, a third party, Johnson being the mortgagee. Two points of difference exist between the facts in that case and in the case at bar. Here the debt concerning which the letter was written was that of the defendant, and not a third party, and agents of corporations are different from those of individuals because corporations cannot speak or write for themselves, and their only communications must of necessity be by officers or agents. The act of the manager in writing this letter was the act of the defendant company.
In the case of Willey v. Goulding, 99 Kan. 323, 161 Pac. 611, it was held:
“A sufficient memorandum in writing to satisfy the statute of frauds may consist of a letter from the owner of real estate to his agent, offering to lease it on stated terms, followed by an oral acceptance by the tenant.” (Syl. ¶ 3.)
In the opinion, in treating this question, it was said:
“The fact that it was addressed and delivered to the agent of the writer and not to the other party to the contract does not render it inadequate for the purpose. . . . And the offer having been made in writing, signed by the party sought to be charged, an oral acceptance was sufficient.” (pp. 326, 327.)
In 13 C. J. 277 it is said:
“A contract may be formed by accepting a paper containing terms. If an offer is made by delivering to another a paper containing the terms of a proposed contract, and the paper is accepted, the acceptor is bound by its terms. . . .”
On page 305 of the same volume it is said:
“Signature is not always essential to the binding force of an agreement. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways; and unless a contract is required by statute or arbitrary rule to be in writing, it need not be signed, provided it is accepted and acted on.”
The exception just mentioned was applied in the case of Petrie v. Sherman County High School, 134 Kan. 464, 7 P. 2d 104, where the school-district officers employed a teacher and noted the fact on the minutes of the board. The statute required such contract to be in writing and to be filed in the clerk’s office, and since that was not done it was held not to be a contract as required by the specific statute.
In 14a C. J. 426 it is said that for many purposes the officers and agents of a corporation may employ persons to perform services for the corporation, and on the next page it states that such authority to employ includes a complete contract as to the amount of compensation “and also to renew the employment, and to increase the compensation of an employee in order to retain him.”
In 6 R. C. L. 641 it is said:
“A written contract, not required to be in writing, is valid if one of the parties signs it and the other acquiesces therein. Acceptance of a contract by assenting to its terms, holding it and acting upon it, may be equivalent to a formal execution by one who did not sign it.” (See, also, Miller v. Railroad Co., 58 Kan. 189, 48 Pac. 853; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Strong v. Thurston, 107 Kan. 368, 191 Pac. 575; Van Doren v. Cement Co., 92 Kan. 470, 141 Pac. 560; Reid v. Kenworthy, 25 Kan. 701; and 27 C. J. 301.)
In order for the letter to be considered a written contract it must contain all of its necessary terms. A written contract is thus defined in 37 C. J. 763:
“A written contract is generally defined as one which in all its terms is in writing, and a contract partly in writing and partly oral is in legal effect an oral contract, an action on which is governed, as to the period of limitation, by the statute governing verbal contracts generally. . . .”
In the case of Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867, there was a letter making a proposition for the purchase of certain machinery and an acceptance by letter, the matter of warranty not being mentioned in either letter, and it was held:
“Whether parties have committed their entire contract to writing is a question for the determination of the court. In this determination the writing itself is the guide. If, on its face, it imports to be complete — that is, if it contains such language as imports a complete legal obligation between the parties — it is complete, and parol evidence will not be admitted to extend its obligations to cover matters upon which the writing is silent.” (Syl. It 2.)
We have no hesitancy in concluding as did the trial court, as shown by the instructions given, that the entire contract between plaintiff and defendant in the case at bar was committed to writing in the letter sent by the defendant company to its agent at Wichita, and its terms were accepted by the plaintiff when a copy of the letter was given him.
Appellant insists that the claimed guarantee for the year 1931 cannot be found in the letter, citing the following clause therein as being insufficient for that purpose:
“. . . it will be satisfactory to consider his drawing account at the rate of $225 per month for the year 1930-1931 if he remains in our employ.”
In construing the statement “year 1930-1931” it will be proper to take into consideration the statute upon statutory construction, G. S. 1935, 77-201 (3), which is as follows:
“Words importing the singular number only may be extended to several persons or things, and words importing the plural number only may be applied to one person or thing. . . .”
Besides, there are several other references to the question of time in the letter: one is “at the end of this year.” This follows a statement about a certain payment “to be effective July 1, 1930,” showing that calendar years were in contemplation instead of fiscal or other years consisting of parts of two calendar years. Another statement in the letter is “|2,700 for the whole year”; still another is “for the length of time as specified.” And twice the words “per year” are used. We think the letter plainly and intentionally covers the two calendar years, 1930 and 1931, and therefore there was a written contract for the guaranteed salary for the year 1931.
As to the giving and refusing to give certain instructions to the jury, we find no error. As to the failure to submit to the jury the four special questions asked by defendant, we have before us no ruling of the trial court thereon, and therefore nothing to review.
The judgment is affirmed. | [
48,
106,
-4,
-99,
26,
96,
58,
-110,
57,
-31,
-89,
83,
-23,
94,
20,
121,
115,
45,
80,
106,
-41,
-73,
7,
40,
-46,
-13,
-39,
-35,
-67,
75,
-12,
84,
76,
48,
74,
-107,
-26,
-62,
73,
28,
-34,
-123,
41,
-20,
-7,
2,
48,
107,
16,
91,
-15,
-66,
-13,
42,
28,
-49,
-20,
44,
-5,
43,
-48,
-16,
-94,
-115,
125,
22,
48,
4,
-102,
-123,
-8,
14,
-104,
53,
32,
-24,
82,
-74,
-58,
116,
47,
-87,
40,
118,
98,
32,
17,
-17,
-36,
-104,
46,
-14,
-115,
-90,
-80,
24,
10,
77,
-66,
-103,
48,
20,
-125,
126,
-2,
21,
21,
44,
3,
-117,
-12,
-93,
31,
116,
30,
15,
-17,
-125,
18,
113,
-49,
-90,
92,
71,
42,
-109,
-121,
-104
] |
The opinion of the court was delivered by
HutChisoN, J.:
This was an action on account for money, expenses, and materials furnished in farming operations on an oral contract between plaintiff as landlord and the first-named defendant as tenant. It covers a period of nine years, and includes the raising of lambs, as well as farming. On account of drought and failure of crops plaintiff alleges defendant became greatly indebted to plaintiff because of being unable to meet the expenses of several of these intervening years; that in the summer of 1935 a new oral contract was made by them as to putting in wheat and the expenses thereof and the disposition of the crop or proceeds thereof. There was a good crop of wheat harvested in 1936, amounting to about 7,500 bushels. It is alleged by plaintiff that the oral contract of 1935 included a reference to the previous indebtedness of the defendant to the plaintiff and applying the crop of 1936 toward its payment ; that if no crop were raised the expenses would be paid by the plaintiff, but if a crop were produced the entire proceeds of it should be turned over to the plaintiff, one half of which was to pay off wheat expenses, other expenses and money advanced to the defendant, and the bal- anee to be applied on the account, and any balance remaining to be applied on indebtedness to the plaintiff and the First National Bank, owner of part of the land being farmed by defendant.
The answer of the first-named defendant, the tenant, was a denial of such contract, and alleged that the oral contract of 1935 concerning the wheat crop of 1936 was, if a crop were raised the plaintiff and the defendant would share the expense and the crop equally, the plaintiff’s share to include the landlord’s share of the crop, and if no crop were raised the tenant was not to be charged with the expense, and there was no agreement of any kind that the title to the wheat or any proceeds thereof would be in plaintiff. Both petition and answer contained other details which will be mentioned later.
There was a controversy throughout most of the trial as to whether the plaintiff’s action was upon an account or an account stated, and it extended to the right of trial by jury. The court called a jury in an advisory capacity, and later during the trial it was announced there was no disagreement as to the amount of plaintiff’s claim, and near the close of the trial the defendant, who was the tenant, offered to confess judgment for that undisputed amount, and judgment was so rendered. The jury did not render a general verdict, but only answered special questions, which the trial court approved and adopted. For these reasons we will not be concerned with a review of any of the matters involved in either of these two questions which engaged the attention of the trial court to a considerable extent.
The petition further alleged that the wheat crop was harvested and placed in two elevators and in a bin on the land, and that whatever interest the tenant might have in said wheat was subject to the indebtedness due the plaintiff and the cost of harvesting. That the defendant tenant, with the intent to evade the payment of his indebtedness to the plaintiff, executed in June, 1936, chattel mortgages on the undivided one-half interest in different tracts of such wheat land. The petition also alleged that said mortgages are inferior to the rights of the plaintiff and should not be considered as liens until the amounts due the plaintiff are paid, and that because the defendant tenant was about to convert said wheat into money for the purpose of placing it beyond the reach of the plaintiff as a creditor with the intent to defraud the plaintiff, the latter asked that the property of the defendant, including the grain in the elevators, be attached to recover the sum of $3,218.97, which the tenant owed the plaintiff, and that the chattel mortgagees, made defendants therein, be required to answer why their purported lien should not be held for naught and inferior to the plaintiff’s lien.
Motions of defendants were filed attacking said petition, which were overruled in part and sustained in part, and an amended petition was filed which contained the allegations as above recited but in greater detail as to the oral contract made in 1935 concerning the wheat crop of 1936 and the application or use of one half of it or its proceeds to pay the expenses of the crop and the earlier indebtedness of the tenant to the plaintiff and the bank. The amended petition alleged in greater detail than in the original petition the placing of chattel mortgages on the undivided one-half interest in the wheat crop as being done with fraudulent intent, to the detriment of the plaintiff and in violation of the terms of the oral agreement made in 1935; that due to the agreement of 1935 plaintiff has a first, prior- and paramount lien on all of said wheat for the payment of the indebtedness and the expense of harvesting and hauling; and whatever interest the tenant might have, the same is subject to the indebtedness due the plaintiff and the cost of harvesting, hauling and all expenses incidental to the planting and harvesting of said crop and the other indebtedness to the plaintiff, and that all of said wheat is, as per the oral agreement, the property of the plaintiff. The amended petition concluded with a prayer for a first and prior lien on all of such wheat located in the elevators, as described, subject to the conditions contained in the oral agreement and judgment against the holders of the chattel mortgages therein, holding such mortgages to be void and of no effect as against plaintiff’s wheat.
Answers were filed by the tenant and his wife, the representatives of the elevators and the holders of the chattel mortgages. The answers were general denials of the allegations of the amended petition and alleged the good faith of the making and giving of the chattel mortgages. The verified answer of the tenant pleaded estoppel in, that plaintiff, in his original petition, claimed a lien upon an undivided one-half interest in said wheat, and in his amended petition claims that he has now and has ever had an ownership of it.
A reply in the form of a general denial was filed and the case was submitted by the trial court to an advisory jury on the question of the nature and terms of the oral contract óf 1935 as to the wheat crop of 1936. The following are the four questions submitted to the jury and the answers thereto given by the jury:
“1. Did the plaintiff and defendant orally agree that the title of all the wheat in question would be in the plaintiff? A. No.
“2. Did the plaintiff and defendant orally agree that the expenses of putting in the wheat in question were to be paid out of Quakenbush’s undivided one-half of the wheat? A. No.
“3. Did the plaintiff and defendant orally agree that the expenses of putting in the wheat in question were to be paid out of the wheat crop before division by the plaintiff and defendant? A. Yes.
“4. If you answer 'no’ to questions Nos. 1 and 2, then under the evidence and instructions of the court in this case, what rentals do you find that the plaintiff is entitled to and what rentals do you find the defendant is entitled to? A. Expenses to be paid and then net proceeds to be divided equally.”
As stated above, the parties agreed during the trial as to the amount of indebtedness of the defendant tenant to the plaintiff, so the rulings of the trial court on that question prior to such agreement as to whether the suit was on an account or on an account stated, whether right or wrong, become immaterial. The question submitted to the advisory jury was the nature of the contract made in 1935 as to the putting out and growing of a wheat crop for 1936. There was a direct conflict of testimony between the two contracting parties, with very little corroborating evidence. All the answers of the jury were in favor of the defendant tenant, and they were approved by the trial court, and our duty with reference to such findings of fact is ended when we find that there was sufficient evidence, if believed, to support such findings, and we so find.
The court included in its instructions to the jury the circumstances pleaded in the answer as to estoppel, and sustained the demurrer of the defendant as to the chattel mortgages given by the defendant on an undivided one-half interest in the growing wheat in June, 1936, being fraudulent and given with the intention to hinder, delay and defraud the plaintiff in the collection of a debt due him by the tenant.
The appellant first insists there was error in the procedure, particularly in two matters: first, the ruling during the introduction of "evidence, holding the action to be on an account stated. Counsel for appellant frankly admits this is not so material, since defendant has confessed judgment in an amount about which there is no controversy. The second procedural error that is urged is with reference to the estoppel pleaded in the answer and the instructions relating thereto. The court instructed the jury that if the evidence tended to show that plaintiff claimed at the time this action was commenced that the title to the wheat in question was in the defendant and had caused an attachment order to issue on that theory, that may be considered as a circumstance tending to show the kind of a contract plaintiff at that time'understood to be between him and the defendant with reference to the wheat in question, and if plaintiff once claimed title thereto to be in the defendant he would be estopped frbm later claiming that plaintiff had the title thereto. There was evidence of the plaintiff’s having caused attachment to be issued at the commencement of this action, which under the pleadings and evidence in this case would justify the giving of such an instruction to consider it as a circumstance in determining the nature of the contract between the plaintiff and defendant as to the tenant’s part of the 1936 wheat crop. It is said in 20 C. J. 12, under the title of “Election of Remedies”:
“All actions which proceed upon the theory that the title to property is in plaintiff are inconsistent with those which proceed upon the theory that title is in defendant.”
The case of Bank v. Jesch, 99 Kan. 797, 163 Pac. 150, involved a tenant’s share of a wheat crop, also the question of estoppel and the inconsistency of claims by the landlord.
In the case of Lillard v. Johnson County, 102 Kan. 822, 172 Pac. 518, it was held:
“The doctrine of estoppel requires of a party consistency of conduct when inconsistency would work substantial injury to the other party.” (Syl. fí 1.)
It is further claimed that the answer to question No. 4 is a conclusion requiring the setting out of evidence. It might have been preferable to have asked two or three questions instead, with the same result. A familiar instance is in negligence cases, where instead of asking a separate question as to each item of negligence alleged, the jury is asked to state the act of negligence. We find no error in these procedural features of which complaint is made.
The appellant considers together several errors assigned, all of which concern the landlord’s lien on the crop. Two sections of the statute are cited in this connection. They are 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.
“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 re-plevin.” (G. S. 1935, 67-524, 67-525.)
These sections apparently refer to the landlord’s share and his right to obtain or recover the same. In the case at bar the landlord’s share was not involved except as to the expense of putting out, harvesting and hauling the crop, it being admitted that the landlord was entitled to one half the crop less one half the expense in connection with growing and harvesting the same. Several decisions in this and other states are cited in support of the landlord’s lien for his rent. It cannot be seriously disputed that under our statute the landlord in this state has a lien on the share of the tenant, but it is for his rent. Therefore, if his rent is not withheld or opposed, there would naturally be no lien. In this case the only dispute was as to half the expense in connection therewith as claimed by the tenant and found by the advisory jury, the landlord claiming he was not liable for any of the wheat expense.
The item of $200 for rent of pasture for 1936 is pointed out as being in the bill introduced in evidence by the plaintiff which might properly be included in a lien for ordinary rent, but there being no dispute as to the amount of the indebtedness, and the jury finding a definite wheat contract as to the crop of 1936, we cannot go outside of the findings, which had the approval of the court, to reach these two items that might otherwise have been included in that for which the plaintiff might have had a lien. We will continue the consideration of this subject in connection with the two other errors urged by the appellant, viz., that the court erred in sustaining defendant’s demurrer to the testimony of plaintiff attacking the chattel mortgages and in approving the chattel mortgages given by the tenant to other parties.
The evidence showed that the defendant tenant gave four mortgages about the middle of June, 1936, upon his undivided one-half interest in the wheat in the total sum of $3,418.50. The plaintiff argues that the giving of these mortgages showed bad faith on the part of the tenant when he knew that he owed the plaintiff a considerable amount of money as a result of farming operations of previous seasons and years, and the plaintiff’s testimony was to the effect that he, the plaintiff, expected to be paid that amount, or at least a part of it, out of the defendant’s share of the crop. The plaintiff further contended that the mortgages given by the defendant on the undivided one-half interest in the growing crop were invalid because of the landlord’s lien, and that his interest was therefore superior to the lien of any of these mortgages.
Appellant cites many Kansas cases construing and enforcing a landlord’s lien on the whole crop for his rent or his share of the crop, as provided by our statute above quoted, G. S. 1935, 67-524. Among the many cases cited by appellant in this connection is Bowland v. McDowell, 132 Kan. 820, 297 Pac. 691. The first paragraph of the syllabus would be quite applicable to the contention of the plaintiff in this case if the wheat crop were to be used for the expenses and indebtedness of the tenant for previous years. It is as follows:
“In a controversy between a landlord and a subsequent mortgagee as to the enforcement of a landlord’s lien on crops grown on leased land, where the leases to the tenant had been renewed annually for a period of years, each including the same terms and conditions and each providing that any unpaid rental should be carried over and become obligations of the following years, it is held that the leases should be deemed to be a continuing tenancy and that the lien covered the unpaid rentals of the tenancy, following Towle v. Weise, 64 Kan. 760, 68 Pac. 637.”
The second paragraph of the syllabus is as follows:
“The notice to a purchaser or mortgagee of the existence of a landlord’s lien is sufficient if he has knowledge of facts sufficient to put him on inquiry as to the existence of the lien and the nonpayment of the rent. Such knowledge is deemed to be notice of whatever the inquiry would have disclosed.”
There was evidence introduced in the case showing that one or two of the mortgagees had knowledge of the indebtedness of the defendant to the plaintiff incurred during previous years, but there was no evidence of their knowledge of any leases being in writing or of the main controversy in this case being whether or not the oral lease made in the fall of 1935 concerning the wheat crop of 1936 included the former indebtedness. The jury finally found that it did not have reference to anything else but the wheat crop, so this decision cannot be made to apply to the facts in this case very specifically because of this controversy which did not exist in the Bowland case, swpra.
Appellant cites the case of Hamilton v. Maas & Brother, 77 Ala. 283, where it was held that the landlord’s lien for rent is superior to that of a mortgagee and such lien would cover advances made by the landlord to enable the tenant to raise the crop, referring to a specific statute (Code, §§ 3286-3287), which statute specifically provided that the landlord’s lien oh the crop should cover the advances made by him to the tenant to enable him to grow the crop. This is entirely different from the statute in this state where the lien is given only for the rent, and the decision in the Bowland case, supra, was not based upon a statutory lien but a written agreement that the former indebtedness should be carried forward and put in the lease of the following year. So we are not helped from the appellant’s viewpoint by either of these decisions where our statute does not provide for the lien covering the former indebtedness, as the Alabama statute does, and we have no written agreement as to carrying forward the indebtedness, but instead we have only a controversy on that question where the jury and the court failed to accept the theory of the landlord as to that matter.
As between the plaintiff and the mortgagees, each has limited rights which, however, must be consistent throughout. No fraud on the part of any of the defendants appears to have been established in this case; only a knowledge on the part of some of the mortgagees of the indebtedness of the defendant to the plaintiff for advances and expenses for earlier years seems to have been shown toward that end.
In Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062, it was held:
“When a debtor assigns and delivers property to his creditor in payment of the debt, and the creditor, instead of holding the property and applying it on the debt, causes the issuance and levy of an attachment on it as the property of the debtor, and as against the execution creditor of their common debtor litigates their adverse rights thus to levy on the property and apply it, through judicial proceedings, on their debts, he cannot, when defeated in the litigation, set up his claim on the property by reason of the assignment and delivery which had been made to him, but will be held to have waived his rights under the assignment and delivery and to have elected the remedy by suit and attachment.” (Syl. IT 2.)
This is largely a fact case — -the main fact in controversy being whether or not the plaintiff had a landlord’s lien. The jury found otherwise. He had testified definitely several times that he was the owner of the mortgaged wheat of the 1936 crop which was designated as the tenant’s undivided one-half interest in the crop.
The case of Johnson v. Beach, 146 Kan. 781, 73 P. 2d 1040, was one where both replevin and attachment were used to protect the lien of the landlord in his share of the crop, and in the opinion it was said:
“A lien is not ownership, general or special. It is a claim or charge for the payment of an obligation, and the statute provides the method of enforcement. Under attachment the property may be sold, and the rights of both parties are protected. But in replevin, if plaintiff is the absolute owner, he keeps the property and is not required to account to anyone.” (p. 783.)
We conclude that there was no error in the proceedings nor in the rulings as to the interest of the chattel mortgagees.
The judgment is affirmed. | [
-16,
106,
-8,
45,
-118,
96,
40,
-38,
81,
-95,
-89,
87,
-7,
87,
4,
105,
-25,
77,
65,
106,
71,
-77,
32,
-56,
-46,
-5,
-55,
-51,
-71,
77,
-28,
84,
76,
48,
74,
-45,
-26,
-62,
-63,
28,
-98,
-122,
-87,
101,
-3,
2,
48,
127,
82,
77,
113,
-106,
-13,
44,
21,
-57,
77,
44,
79,
45,
-127,
-16,
46,
-115,
127,
23,
16,
38,
-114,
71,
-54,
62,
-104,
113,
-128,
-64,
122,
-92,
-122,
116,
47,
-71,
40,
118,
102,
1,
37,
-21,
92,
-119,
38,
-34,
29,
-92,
-112,
72,
3,
72,
-66,
-99,
118,
16,
-90,
118,
-3,
-59,
29,
-19,
3,
-114,
-44,
-93,
-113,
-4,
-102,
11,
-21,
-93,
49,
97,
-51,
-94,
92,
71,
122,
-109,
-121,
-108
] |
The opinion of the court was delivered by
Wedell, J.:
This was essentially an action in the nature of a suit to quiet title. Plaintiff prevailed, and defendants appeal.
The plaintiff claimed title to a residence property in the city of Beloit, as the common-law wife and sole heir of one L. E. Cooper, who died intestate July 24, 1935. The material portions of the petition, in effect, disclosed: An oral contract of marriage entered into by the parties in the year 1924; ability of the parties to enter into a valid contract of that character; cohabitation as husband and wife from 1924 until the death of L. E. Cooper; as a part of the contract of marriage Cooper agreed to pay plaintiff $5 per week and to devise all of his property to her; plaintiff performed her part of the agreement; plaintiff was held out to the public as the wife of Cooper; Cooper intended to make a will, but by reason of sudden illness was prevented from executing the same; plaintiff was the sole and only heir.
Defendants first contend the trial court erred in overruling their motion to dismiss the action. The motion was on the ground the administration of the estate of L. E. Cooper in the probate court had not been closed and the question of heirship had not been determined. Defendants concede such an action might be instituted during the pendency of 'such proceedings in the probate court, but contend this action involved facts which estopped plaintiff from maintaining an action of this nature. Such facts, if true, were not disclosed by the petition, and hence could not be reached by a motion to dismiss. Facts alleged to work an estoppel were pleaded in the answer and will be treated presently.
It is next urged defendants’ demurrer to the petition should have been sustained. The only grounds of the demurrer urged here are that several causes of action were improperly joined and that the petition stated insufficient facts to constitute a cause of action in favor of the plaintiff on any theory. The first ground presents a question which is now moot. Plaintiff introduced evidence only on the question of her right to the property as the common-law wife. Prior to judgment she elected to stand solely on that ground and judgment was rendered in her favor on that theory. It is not seriously contended here the overruling of the general demurrer constituted error.
Defendants also contend the evidence was insufficient to sustain the claim of a common-law marriage. The averments contained in the petition stated a cause of action on that theory. (Matney v. Linn, 59 Kan. 613, 54 Pac. 668; Shorten v. Judd, 60 Kan. 73, 55 Pac. 286; Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534; Butler v. Butler, 130 Kan. 186, 190, 285 Pac. 627; Jacoby v. Jacoby, 132 Kan. 77, 80, 294 Pac. 857; Freeman v. Fowler Packing Co., 135 Kan. 378, 380, 11 P. 2d 276.) There was substantial evidence to support every element of the cause of action. True, the record discloses a conflict between plaintiff’s and defendants’ evidence. This was particularly true with regard to the question of whether plaintiff was held out to the public as the wife of L. E. Cooper. Defendants insist plaintiff’s evidence was not worthy of belief. Unfortunately for defendants, the trial court thought otherwise. In Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043, it was said:
“Appellant cites cases like Hoover v. Hopkins, 122 Kan. 65, 251 Pac. 411, which hold that the proof of a claimant’s interest in land based upon an oral contract, where enforceable at all, where his adversary holds the title, must be clear and convincing. Quite so. But must the proof be clear and convincing to the appellate court? Not necessarily. It must be clear and convincing to the tribunal authorized to ascertain the controverted issues of fact.” (p. 915.)
Defendants also contend that in an action for the recovery of specific réal or personal property, where issues of fact are raised, the parties are entitled to a trial by jury as a matter of right. (G. S. 1935, 60-2903.) It is therefore urged the trial court erred in re fusing to grant defendants’ request for a trial by jury. Assuming, without deciding, that the petition as framed presented a separate cause of action for compensation for services rendered, it must be borne in mind that plaintiff, prior to judgment, elected to stand solely on her rights as a common-law wife and abandoned all claim for compensation for services rendered. The action thus became one essentially for equitable relief. Plaintiff was in possession of the property. A jury trial could therefore not be demanded as a matter of right. (See Fisher v. Rakestraw et al., 117 Kan. 441, 232 Pac. 605, and numerous cases therein reviewed.)
It is next urged that in any event it was within the discretion of the trial court to grant a jury trial, and the refusal to grant it constituted abuse of discretion. The contention cannot be sustained. In cases of equitable cognizance a jury serves only in an advisory capacity and its functions are not conclusive upon the court. In the final analysis the court must assume the duty and responsibility of determining for itself every issue of fact. Under such circumstances it cannot be said the trial court abused its discretion in refusing to grant a jury trial. (See Shorten v. Judd, supra, involving a consensual or common-law marriage.)
Was plaintiff estopped from maintaining this action? Defendants’ contention of estoppel is based on the following alleged facts: Plaintiff was responsible for the appointment of an administrator for the estate of L. E. Cooper, deceased; she joined in the filing of an application for the appointment of an administrator in order to file a claim for compensation for services rendered to the deceased during his lifetime; plaintiff agreed to the statement in the application for the appointment of an administrator, to the effect that J. M. Cooper was the sole heir of the deceased.
The foregoing were in substance the material allegations contained in defendants’ answer on the subject of estoppel. It will be observed it was not alleged plaintiff filed a claim for compensation for services rendered. The record does not disclose that she did so. Nor does it disclose she signed the application for the appointment of an administrator. She introduced no evidence in the case in support of a claim for compensation. We are, however, not required to determine whether the remaining acts pleaded were sufficient to work an estoppel. There was evidence she discussed with J. J. Kindscher, prior to his appointment as administrator, and with Leon W. Lundblade, attorney for defendants, the question of the appointment of an administrator. Plaintiff, however, denied she ever agreed to or knowingly participated in any statement contained in the application for the appointment of an administrator, to the effect that J. M. Cooper was the sole heir of L. E. Cooper, deceased. Assuming the question of estoppel might have become an issue by virtue of a representation in the probate court that J. M. Cooper, and not the plaintiff, was the sole heir of L. E. Cooper, it is obvious in view of the conflicting testimony that we cannot disturb the judgment.
Defendants insist the court erred in permitting plaintiff to elect to stand solely on her claim as a common-law wife, after the action had been tried. The election was made prior to the rendition of judgment. It is in no wise disclosed how such election affected the substantial rights of defendants. In the absence of such affirmative showing, we are not at liberty to disturb the judgment. (G. S. 1935, 60-3317.) Defendants urge their demurrer to the petition should have been sustained. We have préviously discussed that contention. In this connection we might say that the ruling on the demurrer was made on March 26, 1936. No separate appeal was perfected from that ruling within six months. The general appeal was not perfected until January 28, 1937. That was too late to obtain a review of the ruling on the demurrer. (G. S. 1935, 60-3309.) Moreover, as previously indicated, the petition stated a cause of action on the theory upon which the judgment was based, and the evidence supported the judgment.
It is urged the trial court erred in refusing to grant defendants a continuance. It appears that plaintiff, on cross-examination, denied that a certain signature on a note made payable to a hardware company was her signature. The note had been given for the purchase of a washing machine. Defendants desired to show it was her signature and that she had signed her name as Simmons, and not as Cooper. The evidence would have been merely cumulative on the general question of whether plaintiff held herself out to the public as the wife of Cooper. Assuming, however, that this particular evidence might have become important, let us examine the record as a whole, in order to ascertain whether the failure to grant a continuance for the obtaining of this evidence constituted reversible error. It appears the proprietor of the hardware store had not handled the transaction. Counsel for defendant dictated a motion for continuance. The pertinent portion thereof reads:
“The attorney for the defendants further alleges that he has talked with Mr. Fitzgerald, of the Fitzgerald Hardware Company, who informed him that one Ben Wilson, of Ellsworth, Kan., is the one who handled the drawing up, the execution and the procurement of the signature to defendants’ exhibit 7, and that if said witness were present he would testify that he drew up the note and had the same signed by the plaintiff, and that the signature on the face of defendants’ exhibit 7 is the signature of the plaintiff, and that she signed the same. . . and that as to the Fitzgerald Hardware Company testimony, he talked to Mr. Fitzgerald, saw the note, noted the payments on same, and from the talk with Mr. Fitzgerald he had no idea that the plaintiff would deny the execution of that instrument, which is defendants’ exhibit 7, and that such a denial is a surprise, about which the defendants could not well have prepared themselves.”
We are told that the city of Ellsworth, where the desired witness, Wilson, was then located, was only about sixty miles from the place of trial. The action had been filed October 17, 1935, but was not tried until over a year later. Under these circumstances can we say defendants exercised due diligence in procuring the necessary testimony concerning the execution of this note, and that the trial court abused its sound discretion in refusing a continuance? We think not. The motion for new trial was heard about two and one-half months after the trial. No showing was made on the motion for a new trial, by affidavit or the oral testimony of Wilson, as to what his testimony would have been had he been present at the time of the trial, or what his testimony would be in the event of a new trial. The mere proffer by counsel, during the trial, as to what he hoped to prove by the witness, was of course not sufficient. (Walker v. S. H. Kress & Co., ante, pp. 48, 56, 75 P. 2d 820.)
It is finally urged the court erred in overruling the motion for a new trial. In view of what has been said, it follows the record disclosed no trial errors which would justify the granting of a new trial. In reaching this conclusion we have noted each of the authorities cited by defendants and are convinced the judgment must be affirmed. It is so ordered. | [
80,
108,
-3,
127,
10,
34,
42,
-118,
112,
-127,
39,
83,
39,
-39,
16,
45,
114,
125,
81,
106,
-41,
-77,
23,
-94,
-46,
-77,
-45,
-51,
-95,
-51,
-25,
-41,
76,
32,
-62,
-43,
-29,
-64,
-59,
80,
-114,
-121,
-117,
-27,
-39,
-54,
48,
113,
84,
76,
1,
-50,
-13,
43,
25,
67,
-88,
44,
-53,
-75,
-16,
-72,
-97,
5,
-33,
19,
49,
5,
-100,
-91,
72,
10,
-112,
56,
0,
-19,
51,
-74,
-121,
52,
107,
-119,
40,
114,
103,
34,
-59,
-17,
-112,
-104,
46,
58,
13,
-89,
-102,
88,
73,
40,
-66,
-97,
117,
16,
103,
118,
-22,
21,
29,
-20,
1,
-113,
-106,
-101,
-81,
122,
-100,
-127,
-29,
-81,
36,
117,
-49,
96,
93,
70,
25,
59,
15,
-68
] |
The opinion of the court was delivered by
Hopkins, J.:
The plaintiffs recovered on two causes of action: First, on the defendant’s liability as a stockholder; second, on account of moneys paid out of the bank’s funds for defendant’s stock which he had sold to the managing officer of the bank. The defendant appeals.
The facts are substantially as follows: The defendant owned ten shares of stock in the plaintiff bank. On October 19, 1921, he sold his stock to W. E. Davis, managing officer of the bank. He surrendered his stock certificates to Davis, who agreed to have the stock transferred on the books of the corporation. Later, on inquiry by the defendant, Davis informed him that his stock had been transferred on the books of the bank. The bank was closed several months thereafter, when it was learned that the stock in question had not been transferred on the books of the bank. It appeared also that Davis had placed a note in the bank in the sum of $1,340, made out on the typewriter and signed “Condon Bank Stock Bought Account.” The note was attached to the defendant’s stock certificate, was given a number, and was carried in the assets of the bank. The bank had held a $200 note of the defendant. On the date of the sale by the defendant to Davis of his stock, the defendant’s account was credited with the sum of $1,140 and the note which he owed the bank was shown to have been paid. At the same time the defendant’s note was surrendered to him and a deposit slip was given him for $1,140. The latter amount he checked out before the bank went into liquidation.
1. The defendant’s first contention is that the receiver could not maintain the action to enforce the liability of a stockholder unless there was an affirmative showing that the bank was so involved that it was necessary to enforce the stockholders’ double liability. The statute reads:
“At any time after the closing of any incorporated bank if it shall appear to the receiver thereof that the assets of such bank are insufficient to pay its liabilities, it shall be the duty of such receiver to immediately institute proper proceedings, in the name of the bank, for the collection of the liability of the stockholders of such bank.” (R. S. 9-156.)
The petition alleged the necessary facts, and there was testimony that the assets were insufficient to pay the liabilities. No more was necessary as a prerequisite to recover from the stockholder on his double liability.
2. The defendant contends that he did all that a reasonably careful and prudent man could do to have the stock transferred on the books of the bank, and that he should not be held liable for the dereliction of Davis, the managing officer, in failing to enter the transaction upon the proper books of the corporation. He cites substantial authorities to sustain this position. Similar questions have been considered by this court. (See Plumb v. Bank of Enterprise, 48 Kan. 484, 29 Pac. 686; Henley v. Myers, 76 Kan. 723, 93 Pac. 173.)
In Bank v. Strachan, 89 Kan. 577, 132 Pac. 200, it was said:
“To effect an assignment and disposition of shares of capital stock in a bank so as to release the assignor from the superadded liability of shareholders fixed by law, he must procure a transfer of the stock on the books of the bank in accordance with the provisions of the banking act.” (Syl.)
This language appears in the opinion:
“An unregistered transfer of stock would not be invalid as between vendor and vendee (Culp v. Mulvane, 66 Kan. 143, 71 Pac. 273), but creditors, stockholders and everyone dealing with the bank may resort to the stock register to ascertain who are entitled to the rights and subject to the liabilities of stockholders, and if a holder of stock disposes of his shares without taking steps to register the transfer and negligently allows it to stand upon the books in his own name he is not released from liability, whoever may be the purchaser.” (p. 582.)
It was the defendant’s duty to follow up the transaction and, if necessary, compel a transfer on the books of the bank. He did not do so. It is perfectly apparent that he trusted Davis to do it, and it was not done. He received the bank’s money in payment for his stock and received back his note of $200 which he was owing to the bank. This was sufficient to put him on notice that Davis was paying him with the bank’s money and property.
3. The plaintiff recovered judgment for the $1,340 in addition to defendant’s liability on his stock, the recovery being grounded upon the fact that the property received by him was the property of the bank. The recovery was in accord with the rule in this state.
In Hier v. Miller, 68 Kan. 258, 75 Pac. 77, it was said:
“The cashier of a bank organized under the laws of this state has no implied authority to pay his individual debt by entering the amount of it as a credit upon the pass-book of his creditor, who keeps an account with the bank, and permitting the creditor to exhaust such account by checks which are paid, the bank having received nothing of value in the transaction. . . . If the cashier of a bank, without actual authority so to do, undertakes to pay his individual debts in the manner stated, the bank may recover of his creditor the amount of money paid on checks drawn upon the faith of the unauthorized pass-book entries. . . . The fact that the cashier is personally interested in a transaction of the character described is sufficient to put his creditor upon inquiry as to the actual extent of the former’s power.” (Syl.)
In the opinion it was said:
“The cashier had a right to dispose of the funds of the bank for purposes contemplated by its charter. For this his office is a warrant of authority. But he could not absorb the funds of the bank in the satisfaction of his private debts without an express and especial authorization. The office of cashier does not import such power. Whether or not such authority actually did exist the defendant was bound to inquire. It has been well understood from of old that no man can serve two masters. He will hold either to one or to the other. For a like reason the cashier could not serve both himself and the bank in a single transaction, and because he was attempting such a perilous thing the defendant was put upon guard as to the extent of his power.” (p. 260. See, also Washbon v. Hickson, 87 Kan. 310, 124 Pac. 366; Epley v. Bank, 104 Kan. 480, 180 Pac. 187.)
The judgment is affirmed. | [
-16,
124,
-36,
-100,
26,
-32,
42,
-70,
72,
-96,
-89,
-13,
-23,
66,
21,
101,
-12,
45,
-11,
98,
-28,
-77,
23,
-117,
-46,
-109,
49,
-35,
-75,
79,
-32,
-41,
76,
48,
-54,
-43,
102,
-62,
-61,
-68,
78,
1,
56,
76,
-35,
112,
48,
43,
48,
79,
113,
76,
-29,
40,
29,
94,
105,
43,
107,
-79,
112,
-71,
-118,
-123,
119,
21,
51,
37,
-100,
103,
-40,
46,
-104,
51,
1,
-23,
114,
-90,
-122,
84,
107,
-103,
8,
98,
102,
3,
117,
-17,
-100,
-120,
38,
-66,
-99,
-122,
-112,
80,
11,
32,
-66,
-99,
110,
0,
6,
-12,
-22,
-52,
29,
108,
23,
-114,
-10,
-78,
-51,
126,
-102,
-125,
-46,
-109,
48,
113,
-50,
-94,
92,
23,
120,
27,
-34,
-43
] |
The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment enjoining them from merging and consolidating the Saint Joseph National Croatian Beneficiary Association with the National Croatian Society of Pennsylvania, or any other fraternal insurance association, until the defendant officers have complied with the statutes of the state of Kansas and submitted the merging or consolidating proposition to the members of the National Croatian Beneficiary Association for their approval, and enjoining the defendant banks from honoring any check or draft drawn in favor of the National Croatian Society of Pennsylvania, or any other fraternal insurance corporation, for the purpose of consolidation or merger.
The Saint Joseph National Croatian Beneficiary Association is organized under the laws of this state. The plaintiffs are members of the association, some of the defendants are officers of the association, and the other defendants are banks in which funds of the association are deposited. The proposition to merge or consolidate has not been submitted to the members of the association for their approval.
The plaintiffs contend that section 40-721 of the Revised Statutes has not been complied with because the contract between the officers of the Saint Joseph National Croatian Beneficiary Association and the National Croatian Society of Pennsylvania has not been submitted to the members of the association for approval, and has not been approved by a majority of its members’. Section 40-721 provides that the contract of merger “shall provide for its ratification by an affirmative vote of the majority of the members of the supreme legislative body of such organizations, to be sent, in writing, to the principal office and there counted by the managing board of said organization; or by any affirmative vote of a majority of the members of the supreme legislative body of such organization, assembled in regular or special session, and by an affirmative vote of a majority of the beneficiary members of such organization voting upon said proposition.”
The defendants contend that, even if they are not complying with the law, the plaintiffs do not have authority to prosecute this action.
The plaintiffs cite section 60-413 of the Revised Statutes which reads :
“When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”
The defendants rely on section 40-716 of the Revised Statutes, which in part reads:
“Any association authorized to do business under this act . . . which shall fail to comply with any of the provisions of this act shall be excluded from doing business within this state'. ... No injunction shall be granted by any court in this state against any association authorized to do business under this act, except on application of the attorney-general, at the request of the superintendent of insurance.”
Section 60-413 of the Revised Statutes first appeared in our law in the General Statutes of 1868 as section 38 of the code of civil procedure, and has remained in the statutes continuously since that time. Section 40-716 first appeared in the laws of this state as section 13 of chapter 23 of the Laws of 1898.
Chapter 23 of the Laws of 1898 was an act “providing for the organization and regulation of fraternal beneficiary societies, orders, and associations, and to provide penalties for violation thereof.” In section 1 the act declared that “a fraternal beneficiary association is hereby declared to be a corporation, society or voluntary association formed or organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit.” That section appears as section 40-701 of the Revised Statutes, but it has been amended since it was first enacted. Section 2 of chapter 23 of the Laws of 1898 provided that—
“All such associations coming within the description as set forth in section 1 of this act, organized under the laws of this or any other state, province, or territory, and now doing business in this state, may continue such business, provided that they shall show to the satisfaction of the superintendent of insurance that their plan of organization is in keeping with section 1 of this act. All such societies shall hereafter be governed by this act.”1
The remainder of the act provided the details governing fraternal beneficiary associations.
In 1913 the legislature passed chapter 210 of the Laws of that year, section 2 of which appears as section 40-721 of the Revised Statutes. That act provided for the consolidation and merger of fraternal beneficiary societies, was an addition to the law governing such societies, became a part of that law the same as if it had been enacted by chapter 23 of the Laws of 1898, and must be construed with it. A violation of any of the provisions of section 40-721 can be prevented only in accordance with section 40-716 of the Revised Statutes. The Saint Joseph National Croatian Beneficiary Association is an organization governed by the provisions of section 40-716 of the Revised Statutes, and the last sentence of that section applies to that organization.
The statute prohibiting injunctions against such associations, except on the application of the attorney-general, was under consideration in Albach v. Fraternal Aid Union, 100 Kan. 511, 164 Pac. 1065, where this court said:
“A fraternal insurance corporation of Kansas and a fraternal insurance corporation of Colorado effected a merger pursuant to the statutes of Kansas and Colorado, under the supervision of the insurance departments of both states and with their approval. Certain members and insurance certificate holders of the Kansas corporation filed an action charging irregularities, fraud, etc., in bringing about the merger, praying for the appointment of a receiver and for a segregation of the assets and affairs of the merged corporations, and to restore the independence of the Kansas corporation. Held, that where there is no powerful and peculiar equity involved, an action of such gravity can only be commenced in the name of the state on the relation of its responsible legal representative, and that the plaintiffs as private individuals cannot maintain it.” (Syl. 112.)
Section 40-716 of the Revised Statutes and section 60-413 do not concern the same subject. One concerns the code of civil procedure and is general in its nature, covering all fields. The other concerns only fraternal beneficiary associations and societies, and is special or particular in nature. One rule of statutory construction is that where a statute of a general nature and one of a special or particular nature conflict, the latter should be followed. (36 Cyc. 1087; 25 R. C. L. 1010; The State v. Thomas, 74 Kan. 360, 370, 86 Pac. 499; Wilson v. Edwards County, 85 Kan. 422, 116 Pac. 614; Shortall v. Huppe, 99 Kan. 639, 641, 162 Pac. 319.) Another rule of statutory construction is that where a later act of the legislature is in irreconcilable conflict with the former one, the later act will control. (Topeka v. McCabe, 79 Kan. 329, 99 Pac. 602; Hicks v. Davis, 97 Kan. 312, 318, 154 Pac. 1030; The State, ex rel., v. City of Wichita, 100 Kan. 399, 406, 164 Pac. 290.) If there is any conflict between section 40-716 and section 60-413, the former must prevail against the latter because the former is special or particular in its nature and is the last expression of the legislature.
The language of the statute, the rules of statutory construction, and the construction placed on section 40-716 in Albach v. Fraternal Aid Union, supra, denies to plaintiffs the right to maintain this action.
The judgment is reversed, and judgment is entered for the defendants. | [
48,
120,
-43,
-84,
10,
96,
40,
62,
83,
-94,
39,
83,
109,
-51,
4,
127,
-25,
61,
64,
67,
-42,
-77,
7,
-118,
-42,
-13,
-15,
69,
-80,
126,
-9,
92,
72,
32,
10,
-43,
-26,
-62,
67,
-108,
-114,
-124,
104,
97,
-15,
69,
52,
122,
18,
74,
117,
-97,
-77,
45,
24,
-61,
104,
40,
25,
-3,
65,
-8,
-114,
-49,
85,
16,
19,
0,
-102,
39,
-40,
46,
-104,
49,
32,
-24,
81,
38,
30,
52,
107,
25,
-115,
110,
99,
-127,
48,
-18,
-36,
-104,
14,
95,
-99,
-122,
-107,
24,
-96,
4,
-73,
-97,
124,
85,
-117,
124,
-18,
20,
31,
108,
-123,
-54,
-58,
-77,
-49,
116,
25,
3,
-22,
-93,
50,
113,
-63,
112,
95,
-41,
50,
113,
94,
-104
] |
The opinion of the court was delivered by
Burch, J.:
The action was one to recover damages resulting from negligent blasting done in the construction of a city sewer. The jury relieved the city of liability, on the ground that Botsford, who did the blasting, was an independent contractor, and returned a verdict against Botsford, who appeals. The question in the case is, what was the proximate cause of the injury?
Tom Holton drove a team of horses into Tonganoxie, delivered milk at a creamery, as he had done for years, tied the team, as he was in the habit of doing, to a hitching rail which had been standing in the street for five or ten years, and went to a barber shop. A sewer was under construction in an alley opening upon the street near the place where the team was tied. The earth formation was such that blasting was necessary. An explosion of dynamite, followed quickly by another, which made a tremendous noise and scattered debris on the roofs of buildings in the vicinity and across the street in which the team stood, frightened the team. The team broke loose, and ran diagonally across the street and into the plate-glass front of plaintiff’s store. The jury found specially that Holton was not negligent, and found that Botsford was negligent, on abundant evidence and under correct instructions.
The team was quite similar to a projectile hurled through plaintiff’s store front. What put the projectile in motion? The answer is, fright of the team which had the same effect as an explosive force behind an inanimate projectile. What caused the fright (explosion) which put the team (projectile) in motion? The answer to this question determines the case, and must be the inordinate noise of the blast set off by Botsford. Whether or not the blasts were negligently set off depended on a variety of circumstances, which need not be detailed. When that question was- determined adversely to Bots-ford, it necessarily followed that his negligent production of the terrifying noise was the direct and proximate cause of plaintiff’s injury.
Botsford cites a number of decisions of this court discussing the subject of' proximate cause. It is not necessary to review them. One of them, however, is illustrative. A city stretched a rope across a street to exclude travel. An automobile struck the rope, and caused the rope to strike a pedestrian and injure him. It was held the automobile was the proximate cause of the injury. (Petty v. City of Cimarron, 116 Kan. 141, 225 Pac. 1033.) So here, noise of the blast (automobile) acting upon the team (rope) caused the team (rope) to strike the plaintiff’s store front.
The case of Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938, relied on by plaintiff, is directly in point. A farmer hitched his team to a hitching rail in front of a store. While the team was standing quietly a boy turning a “flip-ñop” over the rail struck the nose of one of the horses with his foot, the team became frightened, broke loose, ran away, collided with a buggy, and caused serious injury to the occupant of the buggy. It was held the striking of the horse’s nose by the boy’s foot was the proximate cause of the injury.
The jury found specially that the team ran away because it was frightened by the noise or sudden report of the blasts. It is contended plaintiff pleaded that the team was frightened and ran away because debris was thrown up by the blasts, which fell upon and around the team. There was an allegation, however, that due to its excited condition, caused by the “explosion,” the team ran away, and instructions given the jury at the request of defendants recognized noise of the blasts as cause of the team’s fright. A contention that, if the city was not liable, as the jury found, Botsford could not be liable, is unsound, first, because of submission to the'jury of the question whether Botsford was an independent contractor, and second, because Botsford, the actor whom the jury found to be negligent, may not complain that his negligence was not carried over against the city.
The judgment of the district court is affirmed. | [
-16,
120,
-48,
-114,
26,
106,
26,
-70,
-11,
-59,
-75,
-9,
-115,
-49,
13,
97,
-6,
73,
-12,
59,
-11,
-73,
15,
-109,
-46,
-41,
59,
-57,
55,
77,
124,
95,
76,
81,
-118,
-43,
-26,
10,
85,
92,
-114,
-116,
43,
-24,
-103,
64,
-78,
94,
118,
7,
17,
-114,
-13,
42,
28,
-57,
105,
58,
75,
60,
-15,
113,
-56,
5,
119,
20,
-79,
38,
-68,
39,
80,
44,
-104,
57,
25,
-24,
112,
-92,
-128,
92,
1,
-101,
-116,
-30,
98,
40,
9,
-29,
40,
-104,
39,
-34,
15,
-81,
52,
24,
41,
35,
-97,
-99,
122,
20,
-122,
110,
-1,
93,
31,
-20,
-125,
-125,
-48,
-15,
-49,
36,
-108,
5,
-17,
-121,
22,
113,
-50,
-30,
92,
37,
114,
-97,
31,
-68
] |
The opinion of the court was delivered by
Hopkins, J.:
The state obtained an injunction against the defendants under a petition charging them with keeping a place where persons were permitted to resort for the purpose of drinking intoxicating liquors, for the purpose of gambling, where women and men were permitted to resort for the purpose of having illicit intercourse, and keeping a house of assignation and prostitution. The defendants appeal.
The action was filed jointly by the state and the city of Independence. A temporary injunction was granted at the beginning of the action. Trial was had on April 30, 1924, and the injunction made permanent. The appeal appears to be taken largely on the ground that the evidence was not sufficient to warrant the court in entering a permanent injunction.
The evidence showed that the defendant Richardson was the owner of the premises; that he had there conducted a rooming house for colored people for more than two years; that a number of people had been arrested on the premises for being intoxicated and disturbing the peace; others had been arrested and convicted for gambling on the premises; that some half dozen young colored women had rooms there for which they were paying $3 per week, and with no visible means of support; that colored men and women to the number of fifteen or twenty sometimes congregated on the premises, visiting those that were rooming there; that the police were frequently called there to make arrests or to quiet disturbances; that the young women who had rooms were frequently seen in front of the place with the appearance of advertising their business; that a young colored man shot another while in the room of a colored woman who roomed there; that the man who did the shooting pleaded guilty to the charge of assault with intent to kill, and was sentenced to the penitentiary; that this colored woman, who was notoriously known as “Stingaree,” continued to room there with Richardson’s consent and approval; that Richardson and his wife lived upstairs in rooms adjoining twelve other rooms occupied by chese men and wom,en; that one James McNeal and a colored woman named Tolliver occupied adjoining and connecting rooms for more than a year with Richardson’s knowledge and consent, and that the door between the rooms was usually open; that these parties used the rooms so indiscriminately that others who visited there were confused as to which room belonged to the woman and which to the man; that six men were arrested in one of the upstairs rooms charged with shooting craps, ■ all of whom were convicted in police court and upon appeal to the district court were again convicted of gambling; that in another room six men were arrested charged with playing poker for money, and the keeper of the room, James McNeal, was convicted of running a gambling room; that McNeal appealed to the district court, thereafter dismissed his appeal and paid his fine in police court.
The defendants contend that the numerous and sundry infractions of the law above briefly narrated were not committed with the permission of the defendants; that the defendants used all reasonable and lawful means in their power to prevent and avoid the occurrence of such wrongful acts about or near their premises. It would serve no useful purpose to set out or analyze the testimony of the various witnesses. It is sufficient to say that notwithstanding the denials and protestations of the defendants there was abundant evidence to support the judgment of the trial court. The defendants rely on the case of The State v. Glass, 99 Kan. 159, 160 Pac. 1145 and say that, “In order to make a case against the defendants it was necessary for the state to allege and prove that the nuisance was maintained with the knowledge, permission and consent of the defendants.” The cited case does not sustain defendants’ contention. In the opinion it was said:
“The defendants insist that the testimony did not prove 'that a nuisance had been kept or maintained by them. It was not necessary to prove that they had kept or maintained the nuisance. It was sufficient if the evidence proved that the nuisance had been kept and maintained with the knowledge, permission or consent of the defendants.” (161.)
The record presents no error. The judgment is affirmed. | [
-15,
-18,
-4,
-66,
42,
-64,
72,
-68,
66,
-94,
-12,
115,
-23,
83,
65,
121,
-7,
111,
84,
121,
-64,
-73,
70,
32,
-46,
-37,
-37,
-43,
-79,
78,
-10,
-3,
8,
116,
-54,
-39,
-26,
74,
-13,
92,
-118,
1,
-88,
-32,
-47,
90,
50,
127,
66,
14,
17,
15,
-29,
44,
28,
-46,
-23,
45,
83,
47,
114,
-7,
-114,
-107,
-21,
20,
-79,
51,
-100,
-121,
-40,
60,
-104,
49,
0,
-8,
115,
-76,
4,
116,
71,
-117,
12,
34,
98,
0,
-15,
-81,
-96,
-72,
30,
58,
-99,
-90,
-112,
97,
11,
76,
-68,
-99,
124,
52,
7,
114,
-25,
21,
89,
108,
-51,
-101,
-68,
-77,
-83,
41,
-106,
67,
-29,
37,
48,
113,
-52,
-54,
76,
84,
116,
91,
-113,
-104
] |
The opinion of the court was delivered by
Harvey, J.:
This is a suit for the possession of real property and for rents. It was tried to the court, who made finding of facts and rendered judgment for defendant. The plaintiff has appealed. The evidence is not before us. The court found the facts to be as follows : In August, 1910, W. F. Metsker, then the owner of a certain lot in the city of Osawatomie, executed a contract in writing to sell the lot to L. S. Cook, the payments to be made in work. Cook went into actual possession of the property under his contract of purchase, has made lasting and valuable improvements, paid the taxes thereon, and has remained in possession. He completed payment to Metsker in August, 1912, but never received a deed from Metsker. In October, 1922, the plaintiff, with actual knowledge of Cook’s contract of purchase, that he was in possession of the property and had made improvements and paid the taxes thereon, bought the property from Metsker, who had moved from Osawatomie, and obtained a general warranty deed from Metsker and wife, and then brought this suit, claiming title to the lot and the right to possession and to rents by virtue of such deed.
From the above facts found, the court adjudged Cook to be the owner of the real property and that plaintiff has no right, title or interest therein.
Appellant contends that under the finding of the court, judgment should have been rendered in his favor. There is no merit in this contention. When one purchases real property under a written 'contract and pays the full contract price therefor, he becomes entitled to a deed from his vendor, and when he rightfully goes into possession of the real property under his contract, and makes valuable improvements and pays taxes thereon, he cannot be ousted at the suit of a grantee of his vendor.
The judgment of the court below is affirmed. | [
-47,
110,
-40,
-113,
10,
104,
42,
-103,
105,
-75,
38,
91,
111,
64,
21,
109,
87,
61,
-63,
104,
7,
-77,
7,
3,
-46,
-13,
-7,
-52,
-71,
-51,
116,
71,
76,
48,
66,
-73,
-58,
-94,
-43,
28,
14,
0,
42,
-55,
-35,
64,
52,
27,
80,
74,
1,
30,
-13,
46,
29,
-53,
-19,
46,
-53,
63,
-47,
-8,
18,
15,
93,
6,
-111,
38,
-100,
7,
-56,
8,
-112,
49,
0,
-56,
115,
54,
-122,
116,
13,
-101,
8,
38,
99,
35,
21,
-19,
-8,
-100,
47,
-1,
-113,
-90,
-76,
24,
2,
105,
-76,
-99,
116,
21,
47,
114,
-26,
5,
29,
109,
15,
-50,
-106,
-77,
15,
126,
-110,
65,
-33,
19,
37,
112,
-49,
50,
92,
67,
115,
-101,
-113,
-71
] |
The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment convicting him of petty larceny and of burglary in the second degree.
The information charged that the defendant did “unlawfully, feloniously and burglariously break into and enter, in the nighttime, a certain store building, to wit, the store building of one G. H. Garrett, situate on Main street in the city of Goodland, county and state aforesaid, by forcibly opening the outer door of said store building, with intent certain goods, wares or merchandise, or other valuable thing then and there being kept or deposited as the property of the said G. H. Garrett, unlawfully, feloniously and burglariously to steal, take and carry away; and one shotgun, two thermos bottles, one toilet set, one traveling bag, and one roll of shelf oilcloth, all of the value of fifty dollars ($50), of the personal goods and chattels of the aforesaid G. H. Garrett, in the said store building then and there being, did unlawfully, feloniously and burglariously take, steal and carry away.”
There were two verdicts returned by the jury, one in response to the charge of burglary and the other in response to the charge of larceny. The one concerning burglary was as follows:
“We, the jury, impaneled and sworn in the above-entitled case, do upon oaths find for the defendant, Carl Boyle, guilty of the crime of burglary, and that said crime was committed at the time, place and in the manner and form as charged in the information herein.”
The judgment recites that the defendant was sentenced “to the penitentiary of Kansas, at Lansing, Kansas, for the crime of burglary in the second degree as charged in the information and defined in section 3436 of the 1915 General Statutes of Kansas, for an indeterminate time, there to be confined at hard labor, until discharged according to law.”
The defendant contends that three degrees of burglary were charged in the information, and that he could have been convicted of any one of them if the evidence had warranted. For that reason he argues that the verdict was erroneous in that it did not state the degree of burglary of which he was found guilty. If the information charged different degrees of burglary the judgment was erroneous and a new trial must be granted. (The State v. Reddick, 7 Kan. 143; The State v. Huber, 8 Kan. 447; In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414; The State v. Treadwell, 54 Kan. 513, 38 Pac. 813; The State v. Scarlett, 57 Kan. 252, 45 Pac. 602; The State v. O’Shea, 59 Kan. 593, 53 Pac. 876; The State v. Heth, 60 Kan. 560, 57 Pac. 108.)
Was there more than one degree of burglary charged in the information? The statutes concerning burglary are sections 21-513 to 21-526, inclusive, of the Revised Statutes. Section 21-513 to 21-519, inclusive, concern burglary in a dwelling house. ' The information filed in. this case did not charge burglary in a_ dwelling house. Therefore those sections are eliminated. Section 21-522 restricts the meaning of burglary in a dwelling house. Section 21-523 prescribes the punishment for burglary in the different degrees. Section 21-524 concerns prosecution for both burglary and larceny committed at the same time. Section 21-525 concerns burglary with explosives, and section 21-526 prescribes the punishment for' burglary with explosives. This eliminates all the sections of the statute concerning burglary except sections 21-520 and 21-521. Section 21-520 reads:
“Every person who shall be convicted of breaking and entering in the nighttime — First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse, or other building, or any boat or vessel, in which there shall be at the (time some human being, or any goods, wares, or merchandise, or other valuable thing kept or deposited; or, third, any passenger coach, baggage, freight or express car, caboose or other railway carriage in this state, with the intent to steal or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree.”
This is the statute under which the information in this case was drawn, and does not charge burglary under any other statute unless it be under section 21-521, which reads:
“Every person who shall be convicted of breaking and entering in the daytime any dwelling house or other building, or any shop, store, tent, booth, boat or vessel, or any passenger coach, baggage, freight or express car, caboose, or other railway carriage, under such circumstances as would have constituted ithe offense of burglary in the second degree if committed in the nighttime, shall be deemed guilty of burglary in the third degree.”
Section 21-520 concerns burglary in the nighttime; section 21-521 concerns burglary in the daytime.
In The State v. Behee, 17 Kan. 402, this court said:
“Burglary in the nighttime, as defined by section 63 of the act relating to crimes and punishments, does not include burglary in the daytime as defined by section 69 of the same act.
“Upon an information or an indictment for an offense consisting of different degrees, the jury can only find the defendant guilty of a degree inferior to the one charged when the facts constituting the offense stated include the lesser offense.
“Where a defendant is charged in an information with the commission of the crime of burglary in the second degree, and in the nighttime, under section 63 of the act relating to crimes and punishments, a verdict that the defendant is guilty of burglary in the third degree is error, and will be set aside on appeal to the supreme court.”
So far as this case is concerned, section 63 of the act relating to crimes and punishments mentioned in The State v. Behee is the same as section 21-520 of the Revised Statutes, and section 69 of that act is the same as section 21-521 of the Revised Statutes. The State v. Behee, supra, is therefore a declaration of this court that a charge of burglary under section 21-520 does not contain a charge of burglary under section 21-521. It follows that the information charged only one offense of burglary, and the defendant could not have been properly convicted of any other offense. When the jury returned a verdict of “guilty of the crime of burglary, and that said crime was committed at the time, place and in the manner and form as charged in the information,” the jury returned a verdict convicting the defendant of burglary in the second degree under section 21-520 of the Revised Statutes, the section that appears as section 3446 of the General Statutes of 1915, referred to in the judgment of the court.
No argument is made concerning the conviction for petty larceny, and that matter need not be further noticed.
The judgment is affirmed. | [
-16,
-22,
-3,
61,
26,
-32,
42,
124,
33,
-111,
54,
83,
-19,
-64,
5,
105,
83,
125,
-44,
121,
-27,
-105,
7,
-63,
-46,
-13,
-109,
-59,
59,
79,
-20,
-12,
13,
112,
-118,
21,
70,
8,
65,
-100,
-114,
5,
-88,
-45,
-47,
8,
44,
43,
4,
10,
-15,
-97,
-13,
42,
30,
-53,
9,
44,
-53,
-67,
80,
-79,
-78,
-123,
125,
20,
-77,
38,
-104,
7,
-40,
62,
-100,
117,
0,
-24,
-13,
-122,
-122,
116,
111,
-101,
109,
102,
98,
49,
1,
-21,
108,
-119,
46,
119,
-99,
-89,
-99,
72,
97,
32,
-106,
-99,
117,
48,
-126,
124,
-29,
20,
31,
124,
-123,
-33,
-108,
-109,
-119,
118,
-116,
-6,
-5,
37,
33,
112,
-49,
-94,
93,
87,
88,
-101,
-114,
-43
] |
The opinion of the court was delivered by
Mason, J.:
Charles E. Miller brought replevin against the Colonial Underwriters Insurance Company and others for the possession of a Ford automobile. A verdict for the plaintiff was set aside, and a new trial was granted on motion of the insurance company on the sole ground that error had been committed in refusing to allow it to introduce in evidence a Missouri statute requiring certain steps to be taken to effect a valid sale of a car.
The evidence tended to show these facts: J. Cohen, of Kansas City, Mo., owned a Ford coupe which on August 29, 1921, he sold to Miller, a resident of Kansas City, Kan., for $600. The Missouri statute referred to was not complied with. Thereafter Cohen made a claim to the insurance company, Which had insured him against theft, that the car had been stolen from him on September 5, 1921. The claim (for $563) was paid on November 5, 1921, Cohen giving the company an assignment of his right, title and interest in all that remained of the automobile. In May, 1922, the car was taken possession of as stolen property, and Miller brought this action, only the insurance company making a defense.
The Missouri statute provides that:
“In order to make valid or legal a sale or transfer of any motor vehicle registered in accordance with the provisions of this chapter, the vendor shall, in the presence of an officer qualified to take acknowledgments to deeds, indorse his name on the back of said certificate of registration described in section 7555, and the vendee shall also, in the presence of such officer and underneath the name of the vendor, write his own name, and to both of said names the said officer shall sign his name as a witness and receive the sum of twenty-five cents therefor; and thereupon the vendor shall deliver to the vendee or transfer the said certificate of registration and which shall be the evidence of the vendee or transferee of his ownership of said motor vehicle, and it shall be the duty of such vendee or transferee, upon request of any peace officer, to exhibit to such officer the said certificate of registration. Upon such sale of a motor vehicle, the vendor shall give notice thereof with the name and address of the vendee to the secretary of state, and the vendee shall, within five days after such sale, give notice to the secretary of state of such sale, also the business address of the previous owner, if known, the number under which the motor vehicle is registered and the name, county and business address of the vendee, and upon the payment by the vendee of a fee of fifty cents the secretary of state shall note upon the registration or index such change in ownership. Any sale or transfer of such motor vehicle without complying with the provisions of this section shall be fraudulent and void, and the vendor and vendee shall each be subject to a penalty not exceeding fifty dollars.” (Revised Statutes of Missouri 1919, § 7561.)
1. According to the evidence Cohen gave the plaintiff a bill of sale of the car, acknowledging payment of the price, but the certificate of registration was not indorsed or delivered, and no notice of the transfer was given to the secretary of state. It is doubtless true, as the plaintiff suggests, that Cohen himself, after taking his money for the car, could not assert a valid claim for its return because of the noncompliance with the statute. The plaintiff further contends that the insurance company is in no better situation than Cohen, because it derived from him whatever right it has to the car. In support of this contention he cites authorities to the effect that neither assignment nor subrogation can give an insurance company a cause of action against a wrongdoer whose negligence has subjected it to a liability, unless such a right existed in favor of the insured. (Cooley, Briefs on the Law of Insurance, p. 3894.) That rule applies where a loss to an insurance company is caused by the negligence of a third party in setting fire to insured property, but it does not fit the situation here presented. The failure to conform to the statute prevented the plaintiff from obtaining the legal title to the car through his deal with Cohen. Assuming that as against Cohen the plaintiff could assert an equitable title to the car, the question whether such a title could be asserted against the insurance company depends upon the relative equities of the claimants. The plaintiff has not merely omitted some formal requirement of the statute. If he had obtained the registration certificate when he got the car Cohen would have lacked the means of convincing the insurance company that he still owned it. If he had caused a record of the transfer to be made with the secretary of state inside of five days the insurance company would have had opportunity to prbtect itself against Cohen’s fraud. One purpose of the statute is obviously to make it difficult for a thief to dispose of a stolen car, but it. has other beneficial effects, one of them being to prevent the tricking of a would-be purchaser into paying for a car after his supposed vendor has parted with the title. If, as the evidence tends to show, the insurance company was tricked out of its money by Cohen through a device which was made available to him because of the failure of the plaintiff to take the steps required by the statute in order that his purchase should be valid, the superior equities are clearly with the insurance company; it is within the protection of the statute, and the provision that a sale of a car made without an indorsement and delivery of the registration certificate, and without a record of the change of ownership with the secretary of state, shall be fraudulent operates in its favor against the plaintiff.
'2. A further objection to the admission of the Missouri statute in evidence is that it is penal and therefore has no extra-territorial force. The fifty-dollar penalty of course could not be enforced in this state. But the provision that the valid sale of a car can only be effected in a particular way is a local regulation by which the validity of sales made in Missouri may be tested, and if such a contract is void where made it is without force elsewhere. (5 R. C. L. 934, 949.) The rule that a state will not by comity give effect to a foreign law to the prejudice of its own citizens (12 C. J. 440, 449; 5 R. C. L. 911) does not mean that it will enforce a contract which is invalid under the law of the state where it was entered into, merely because the litigation is between a resident who asserts and a nonresident who denies its application. The statutes to which that rule is applied are those which discriminate against residents of other states in favor of its own. (See Motor Co. v. Warren, 113 Kan. 44, 213 Pac. 810, where effect was given to the Missouri statute here involved.)
The order granting a new trial is affirmed. | [
-80,
-20,
120,
44,
26,
-32,
42,
-104,
82,
-29,
36,
83,
41,
-62,
1,
45,
-21,
29,
85,
99,
-42,
-73,
87,
-101,
-46,
-77,
-39,
-59,
-67,
-55,
110,
95,
92,
32,
-118,
-35,
-60,
-62,
-123,
88,
94,
12,
-70,
-28,
89,
112,
48,
40,
64,
75,
65,
-97,
-25,
46,
27,
-49,
45,
40,
-5,
41,
-16,
-8,
-117,
15,
127,
30,
-79,
4,
-100,
37,
-40,
12,
-104,
49,
17,
-7,
115,
-74,
-122,
84,
111,
-119,
8,
34,
103,
19,
17,
-49,
-16,
-104,
46,
-6,
15,
-122,
52,
89,
2,
37,
-98,
-97,
123,
16,
6,
116,
-22,
21,
85,
40,
7,
-117,
-78,
-78,
105,
114,
-98,
9,
-1,
-127,
48,
113,
-49,
114,
93,
85,
122,
-101,
-121,
-27
] |
The opinion of the court was delivered by
Harvey, J.:
Appellant was found guilty of maintaining a nuisance under the intoxicating liquor law. He has appealed, and contends that the court erred in giving the following instruction:
“Under the laws of this state, places as are hereinafter described are declared to be common nuisances:
“First: All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law;
“Second: All places where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage;
“Third: All places where intoxicating liquors are kept for sale, barter or delivery in violation of law; and
“Fourth: All intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining a place as above set out and described.
“Under the law of this state every person who maintains or assists in maintaining such a common nuisance as above defined shall be guilty of a misdemeanor.”
And another instruction in which the jurors were told it was not necessary to find the defendant guilty in all of these four different conditions or states of fact, but that it was only necessary for the state to prove the existence of one or more such conditions.
The point is made that the nuisance defined in the fourth subdivision of the instruction complained of is not a place.
It may be noted that the instruction is almost in the identical language of the statute (R. S. 21-2130), hence there is no merit in appellant’s contention.
The evidence upon which the state relied was procured mainly through the activity of a man employed by the county for that purpose and spoken of as a detective. Appellant asked for an instruction on entrapment by an officer or detective, and complains of the refusal of the court to give it.
The difficulty of predicating error upon that in this case is that the defendant’s own testimony, which is as favorable to his view as any in the record, does not disclose a case of entrapment. He had the key to the Redmen hall, where the liquor was taken, unlocked the door when the whisky was taken in, went down on the street and met a friend, whom he invited to go to the hall to drink, and gave the friend his key that he might get in while he went to look for other people whom he invited to go to the hall and drink. He was later present when the drinking was going on, took part in it, and passed the whisky to some of the persons who came there on his invitation. So, even though, as he contends, he went with the detective to buy the whisky and the detective bought it and paid for it with money furnished by the county, his own evidence discloses that he provided the place and invited guests there to drink. Hence there is no view of this case in which an instruction concerning an entrapment by the detective was proper.
The place to which the liquor was taken and drank was the Red-men’s lodge room, to which the evidence tends to show other persons than appellant had keys. When the hall was visited by the officers there were found intoxicating liquor, bottles, glasses and jars, some containing liquor and others having the appearance of having previously contained liquor. Appellant requested an instruction that since other persons had keys to the lodge room and as much right to go to it as appellant had, the intoxicating liquor, bottles, glasses, etc., found therein could not be imputed to the possession of appellant unless it is shown that appellant had actual physical possession of the same. Instead of this requested instruction the court gave the usual instruction that all persons participating in the maintenance of a place where intoxicating liquors are kept or used in violation of law were guilty of maintaining. That is the rule that had been frequently announced by this court. All who participate in maintaining a place defined by the statute as a nuisance are guilty as principals, and the refusal to give the instruction requested was not error.
Appellant complains of the refusal of the court to give an instruction to the effect that if the other persons invited to the hall by appellant were members of the Redmen lodge and entitled to go to the hall, and there drank liquor furnished by the detective, that fact cannot be taken into consideration in considering the charge against him. There was no error in the court’s ruling, for it was the duty of appellant, as well as all other members of the lodge, to see that a liquor nuisance was not maintained there.
Lastly it is argued that the evidence is insufficient to support the verdict. This is upon the theory that appellant cannot be held responsible for what other members of the lodge did there, but, as we have seen, there is no merit in that; and upon the argument that the acts of the detective in purchasing the liquor and bringing it to the lodge room could not be imputed to him. It is not claimed that the detective had a key to the lodge hall. The appellant had the key to the hall, unlocked the door, took the whisky into the hall or permitted the detective to take it there, invited persons to go there to drink, and went there and drank with them. These things show his personal activity and responsibility in the matter amply to support the verdict.
The judgment is affirmed. | [
-15,
-18,
-36,
-100,
58,
96,
42,
-4,
65,
-83,
-9,
87,
-23,
82,
1,
35,
-7,
125,
84,
123,
-59,
-74,
7,
65,
-42,
-45,
-48,
-47,
53,
78,
-10,
-12,
12,
-76,
-53,
-11,
102,
74,
-47,
-44,
-126,
5,
56,
-24,
123,
-118,
52,
59,
6,
15,
97,
31,
-29,
46,
28,
-61,
73,
44,
73,
61,
80,
-8,
29,
-99,
79,
22,
-109,
50,
-99,
-123,
-8,
42,
-98,
53,
0,
-8,
-13,
-74,
0,
116,
79,
-101,
-116,
98,
98,
1,
77,
-89,
-24,
-71,
47,
14,
-99,
-89,
-72,
25,
73,
64,
-106,
-99,
60,
16,
-116,
118,
-25,
84,
95,
108,
-125,
-121,
-74,
-79,
-49,
56,
-122,
87,
-53,
39,
48,
101,
-57,
-2,
92,
101,
82,
27,
-116,
-108
] |
The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding brought by the public utilities commission to compel the Missouri-Kansas-Texas Railroad Company and the Western Union Telegraph Company to restore the telegraph station and resume the furnishing of telegraphic service at Strawn, Kan.
It appears that such service had been furnished by the defendants at the town for twenty-five years prior to February 2, 1922, under a contractual relationship between them. On the date mentioned the service was discontinued without application to or the permission of the public utilities commission. On March 30, 1922, a complaint was made by certain citizens to the commission, and upon due notice to defendants a hearing was had at Strawn as to the necessity for and the right to the service formerly provided. On the evidence produced the commission reached a decision on July 18, 1922, and entered an order to the effect that the defendants should restore the telegraphic service at Strawn within thirty days from that date, and should thereafter maintain such service as had been maintained prior to February 2, 1922. The defendants did not comply with the restoration order and hence this proceeding was brought to enforce compliance.
Several defenses were set up by the defendants, among which was that a transfer of ownership and control of the railroad had occurred since the order was made and also that the telegraph business was almost entirely interstate, the regulation of which was beyond the jurisdiction of the commission, and that such intrastate business as had been transacted at the station was infinitesimal, and that a requirement to maintain a commercial telegraph station in that town where there were only about 150 residents and only an intrastate message or two within a year was arbitrary, confiscatory and void. It was also contended that the order constituted an interference with and a direct burden upon interstate commerce. Although the telegraph business at the station was largely interstate, which is unquestionably outside of state control, it appears that a part of it was intrastate. The defendants and their predecessors had undertaken a telegraph business, and had served the public in that way for many years. The public had an interest in the business so conducted and the regulation of state business was well within the power of the commission. The sale and transfer of the railroad to another company did not defeat regulations made nor take the utility out of state control. In acquiring the franchise, easements and property of the company the purchaser took them subject to the obligations and burdens which inhered in the original grant of franchise. (Public Utilities Co. v. Armour, Sheriff, 115 Kan. 152, 222 Pac. 748, and cases there cited.) In the conduct of the intrastate telegraph business the defendants were unquestionably within the supervision and control of the commission. The legislature has so declared, and the court has determined that “the power thus granted is a valid exercise of governmental supervision and does not contravene any provision of either the national or state constitution." (The State, ex rel., v. Kansas Postal-Telegraph Co., 96 Kan. 298, 150 Pac. 544.) The legislature has expressly provided that utilities cannot change any rate, rule, regulation or practice without the consent of the commission, and however unprofitable the business may have been at Strawn, the defendants had no right to ignore the provisions of law respecting a change of practice or a discontinuance of service. The defendants are corporations, creatures of the law, and have no powers except such as are granted by law, and therefore have no excuse for flouting the law under which they exist and. operate. If the service is burdensome and of a kind which it is unjust to require, there is an easy way to secure relief from the burden. It must be assumed that the commission will sanction the discontinuance of a rule or practice which is confiscatory in effect or which by a change of conditions has become unnecessary or unwarranted. If such relief is not granted by the commission, an ample remedy may be obtained through an application to the court. In no event may public utilities arrogate the right to determine for themselves the function and powers conferred upon the commission. In The State, ex rel., v. Postal Telegraph Co., supra, the telegraph company closed a telegraph station and discontinued telegraphic service at a town without the consent of the commission, claiming it was entitled to suspend the services on its own hook where the station was operated at a loss. Of this it was said:
“If this public utility, a telegraph company, can close one of its offices and quit business without the consent of the commission, any other public utility, like the Santa Fe railway, for example, could close its depot at Dodge City, Hutchinson or Emporia without the consent of the commission. Where would this end? If these utility corporations may abandon this particular service without the consent of the commission, may they not take off their passenger trains, take up and abandon unprofitable branch lines, change the fares and rates of transportation for passengers and freight or raise the charge for telegraph messages without the consent of the commission? These questions answer themselves.” (p. 305.)
While the discontinuance of the telegraph service was unwarranted and-illegal, the question remains, What shall the penalty be, and what disposition should we make of the present litigation? The public utilities commission must concede that interstate business is free from state control, and that the commission has no jurisdiction to regulate or control that part of the business. Complaints as to service given in that' line of business or application to compel restoration of such service should be presented to the interstate commerce commission, which is vested with exclusive jurisdiction over that character of business. (Railroad Co. v. Utilities Commission, 114 Kan. 190, 217 Pac. 322.) It has been shown that the defendant railroad company can be efficiently operated without a telegraph station at the village of Strawn, and that the telegraphic business both state and interstate was small, and very little of that which was done was intrastate. The principal use of the wires- was made by two grain dealers, resident in Strawn, but their business appears to have been interstate in character. Some of the messages transmitted were sent from one point to another in the state, but under the system they were transmitted from Strawn through the territory of another state to destinations. Within the law the transmission of a message through two states is interstate commerce. The fact that the terminals are in the same state does not make the messages intrastate where they pass part of the distance through another state. (Railroad Co. v. Utilities Commission, supra; Western Union Tel. Co. v. Speight, 254 U. S. 17.) That part of the business which was intrastate may be said to be almost insignificant in amount and the compensation for handling this business far exceeds the expense of maintaining the same. The defendants of course cannot be required to carry on the business at a loss. (Court of Industrial Relations v. Packing Co., 109 Kan. 629, 201 Pac. 418; Brooks-Scanlon Co. v. R. R. Comm., 251 U. S. 396.) Evidence was produced tending to show that messages may be sent from Hartford, which is about six miles away from Strawn, on one side, and about eight miles distant from Burlington on the other side. These messages may be sent by what is called mailgrams and by telephone to these near-by points where there is telegraphic service, and from which they may be transmitted with only the loss of a few minutes’ time. Under the circumstances an order compelling the service demanded would be unreasonable and confiscatory. While the service was discontinued without the consent of the commission and in violation of law, the practical question arises, What judgment should be awarded? Ordinarily the question of whether a service demanded is necessary, reasonable and just, or unreasonable and confiscatory, should be first presented to and determined by the commission, but it appears that the subject in hand received prompt attention, and the facts in the case were tried out fully before the commission. A complaint was made the month following the suspension of the service and the commission at once took up the complaint, had a full hearing on its merits and passed on the evidence taken when an order was made: In the present proceeding the facts have been fully developed, the rights of the parties fully considered, and there can be no doubt that the defendants would have been entitled to an order of the commission suspending the service if proper application therefor had been made. It would be futile to send the parties back to retry the case and come back here in a few weeks to be told again that the service could not reasonably be required. Following the practice in The State, ex rel., v. Telephone Co., 102 Kan. 318, 170 Pac. 26, we have concluded that such a duplication of effort would not serve any good purpose. There, as here, a telephone company discontinued a public service without the consent of the commission. The matter was brought to the attention of the commission, where a full hearing was had and a decision made. When a mandamus proceeding was brought it was held that it having been shown that the consent of the commission must have been granted if it had been asked, the restoration of the service would not be compelled by mandamus. It was said:
“Assuming that it was the duty of the company to have kept the line in operation at any expense until it had obtained leave to discontinue it, yet if the facts established in a hearing before the commission showed clearly that such permission must necessarily have been, granted upon request, it would be allowing considerations of mere form to prevail over those of substance to require the company to rebuild the line as a prerequisite to the commission’s applying the law: to the facts and declaring that it had then the right to remove it. Such a course could result in no practical benefit to the public, and is not necessary to the vindication of the rule that no change in service may be lawfully made without the consent of the commission.” (p. 323.)
Although the writ asked will not be issued, we have concluded that the costs of this proceeding should be paid by the defendants. Their disregard of a specific provision of the law in the discontinuance of the service without obtaining the permission of the commission warrants the court in imposing the costs upon the defendants. The judgment will be that the peremptory writ will not be issued, but the costs of the proceeding will be taxed to defendants. | [
-80,
98,
-4,
-97,
42,
98,
56,
-102,
91,
-79,
-90,
115,
-119,
-48,
-127,
121,
-53,
61,
-47,
105,
-28,
-45,
83,
-22,
-101,
-45,
121,
-51,
-79,
94,
116,
-44,
77,
48,
74,
21,
102,
-54,
77,
30,
-114,
37,
-23,
-31,
89,
-64,
54,
105,
18,
74,
85,
-49,
-13,
42,
24,
-45,
105,
62,
-5,
-87,
-119,
-16,
-102,
-57,
77,
22,
1,
4,
-104,
-125,
104,
62,
24,
53,
8,
-88,
119,
-90,
-105,
-11,
39,
-55,
41,
98,
35,
33,
-107,
-17,
-20,
-120,
14,
-70,
-107,
-26,
-124,
24,
35,
97,
-100,
25,
69,
20,
7,
-2,
-65,
-123,
87,
108,
1,
-118,
-106,
39,
63,
110,
-102,
23,
-21,
-95,
48,
112,
-58,
-16,
92,
87,
58,
-101,
-113,
-4
] |
The opinion of the court was delivered by
Johnston, C. J.:
In a prosecution Clarence Reed was found guilty of the unlawful possession of intoxicating liquor. His only complaint on appeal is that the evidence on which the conviction rests and which the trial court found to be ample is insufficient.
The defendant was president of an organization of colored men designated as the Sunflower Club and sometimes called The Clarence Reed Club. In a raid on the club room the officers found defendant and several others seated at a table on which were playing cards, money, and upon a desk in the same room three or four steps away was a bottle of corn whisky. The prosecution failed on the charge of gambling, but did procure a conviction on the liquor charge. There was testimony tending to show that defendant controlled and ran the club, had the profits arising from the sale of soft drinks and the games played at the pool tables. In the situation it was a fair inference that defendant had control of the whisky in the room. The statute denounces the unlawful possession of intoxicating liquors and also makes it unlawful for any person to permit another to have, keep or use intoxicating liquors on any premises owned or controlled by him. (R. S. 21-2101.) It is said that the liquor in the club room managed by the defendant may have been the property of some other member of the club. It has been determined that where there are violations of the prohibitory law in a lodge, society or club, the officers and members thereof responsible for such violations are all subject to criminal prosecution. (The State v. Order of Eagles, 98 Kan. 793, 161 Pac. 903; The State v. Clark, post, p. 133).
The evidence is sufficient to uphold the judgment, and therefore it is affirmed. | [
-79,
-6,
-35,
28,
40,
-32,
42,
-72,
74,
-15,
-9,
115,
-31,
-38,
4,
99,
-31,
-49,
116,
107,
-50,
-105,
23,
97,
-46,
-109,
-5,
-43,
-79,
109,
-12,
-4,
12,
52,
-49,
-11,
38,
-54,
-29,
92,
-118,
5,
57,
-64,
81,
90,
60,
43,
87,
79,
113,
-97,
-29,
44,
-99,
75,
-87,
44,
73,
45,
112,
-7,
-118,
-99,
-53,
22,
49,
66,
-99,
-91,
-24,
44,
24,
49,
9,
-24,
123,
-90,
4,
-12,
111,
-87,
-115,
102,
98,
37,
-11,
-17,
40,
-39,
23,
47,
-99,
-89,
-102,
89,
97,
105,
-107,
-97,
118,
16,
47,
108,
-21,
-43,
17,
116,
9,
-114,
-76,
-77,
-83,
56,
2,
94,
-57,
-29,
96,
69,
-51,
116,
92,
85,
114,
31,
-126,
-108
] |
The opinion of the court was delivered by
Dawson, J.:
This lawsuit grew out of the trading of a farm for a stock of hardware. The plaintiff owned a farm in Harper county, which he contracted to sell and exchange to the defendant for a mercantile stock of hardware and implements belonging to the latter and located at Hillsboro, in Marion county. The farm consisted of a half section of land and was priced to defendant at $67.50 per acre, subject to an incumbrance of $4,000. ■ In exchange for the farm plaintiff was to accept defendant’s mercantile stock and implements at an invoice price based on wholesale cost less freight to Hillsboro. Certain specified fixtures and equipment were priced to plaintiff at $1,500, and some obsolete and used stock was also to be charged to him at a price to be fixed by agreement of the parties or by arbitrators chosen by them if they could not agree. It was also agreed between the parties that defendant should furnish a certified list of his creditors in conformity with the bulk-sales law and pay all indebtedness against the mercantile stock, and that whatever balance was due to either party when the value of the mercantile stock was invoiced should be paid in cash, and that a deed to the farm executed by plaintiff and a bill of sale to the stock of merchandise executed by defendant should be deposited in escrow in a Wichita bank, to be delivered to the parties respectively entitled thereto when their contractual obligations were fully performed.
Plaintiff took possession of the stock of merchandise and defendant took possession of the farm. The inventory of the merchandise was taken, but defendant would neither agree to a valuation of the obsolete and used goods, nor would he name an arbitrator as his contract bound him to do. The invoice value of the merchandise was much less than anticipated, and consequently a large balance was due from defendant to plaintiff, the precise amount of which could not be determined because of defendant’s failure to agree or provide for arbitration. Neither did defendant furnish a certified list of the creditors nor take any steps to pay their claims. Hence this lawsuit.
Plaintiff set up the foregoing facts, exhibited the contract, and alleged that the land was to be priced at' actual measurement, 324 acres, and for which, after assuming the |4,000 mortgage, defendant was bound to pay to plaintiff the sum of $17,872; that the invoice value of the hardware and implements was $10,628; that the obsolete stuff which had not been determined because of defendant’s delinquency was of no value; and that the invoice value plus the agreed price on the specified list of office equipment, etc., $1,500, entitled the defendant to a credit of $12,128, less defendant’s share of the cost of invoicing and other deductions, which left a net credit of $10,090.56 [$12,090.54] to be applied on the contract, leaving a balance due plaintiff thereon in the sum of $7,782 as alleged, but which apparently should have been stated at $5,779.46. (There is an unusual number of discrepancies in the figures and computations of figures involved in this lawsuit, but except as they tend to hinder this court in getting at the matters of controlling significance they are of no present importance.) Plaintiff set up the fact that until he was furnished with a list of defendant’s creditors he could not safely settle with defendant, and prayed to be protected on that matter, and that the deed which he had executed to convey the farm and which had been deposited in escrow should be canceled and the land sold to satisfy his claim against defendant, and that the remainder be paid to defendant’s creditors as their interests might appear, and for all proper relief.
Defendant filed an answer and cross-petition, traversing plaintiff’s principal allegations, alleged fraud and misrepresentation on the part of plaintiff in respect to the character of the farm and otherwise in matters no longer material; that the total value of the stock of merchandise was $13,000; that he was entitled to an offset of $9,070 on account of plaintiff’s misrepresentations as to the value of the farm and the quality of its soil and to an offset of $872 for certain guttering, drain pipes, hog pens and hay carriers which plaintiff had removed from the farm after the contract of exchange had been executed; and defendant prayed that such offsets be allowed, and that his title be quieted and that the Wichita bank be directed to deliver to him the deed to the farm held in escrow, and for such other and further relief as should be deemed proper by the court.
Cross-petitions and intervening petitions were filed by many of defendant’s judgment creditors and other creditors, and also by E. W. Hamson, who set up a note for $2,614.01 executed by defendant in cross-petitioner’s favor, which note was secured by a mortgage given by defendant and wife on the Harper county farm which was to pass from plaintiff to defendant in the contract of exchange. That mortgage was dated October 17, 1922, and its execution was acknowledged on the same date, and it was filed for record on October 20, 1922. Hamson alleged default and prayed foreclosure. The holders of the first and second mortgages on the farm, given by plaintiff before the contract of exchange of May 10, 1922, was executed, likewise intervened, setting up their prior lien interests and praying that their rights of precedence be protected.
The trial court rejected defendant’s demand for a jury trial, heard the evidence, made findings of fact and conclusions of law favorable to plaintiff and to the several lienholders and to certain other creditors of defendant, and gave judgment accordingly, decreeing that the Harper county farm should be subjected to liens for the approved claims of the appearing claimants, and that the farm should be sold and the proceeds applied: first, to the satis faction of the lien of the first mortgagee; second, to the satisfaction of the lien of the second mortgagee; third, to the satisfaction of plaintiff’s claim of balance due on account between the plaintiff and defendant pursuant to invoice price of the stock of merchandise and the stipulated price of the farm less incumbrances; and providing that the claims of certain judgment creditors of defendant should be satisfied next, in the fourth, fifth, sixth and seventh positions of priority; and that Hamson’s mortgage should have the eighth position in order of precedence; and that the claims of some twenty other creditors of defendant should jointly take ninth place in the order of precedence for payment.
Defendant appeals, complaining chiefly of the denial of a jury trial. Hamson appeals because his lien was set eighth in the order of priority when it should have been given fourth place, immediately following the priorities of the first and second mortgagees and the plaintiff.
In civil actions a jury can be claimed as a matter of right only in actions for the recovery of money or of specific real or personal property. (R. S. 60-2903; McCardwell v. McNay, 17 Kan. 433; Sword v. Allen, 25 Kan. 67.) In Mills v. Hartz, 77 Kan. 218, 223, 94 Pac. 142, it was said: *
“Error is predicated on the ruling of the court denying the application of Mills for a jury trial. A suit to cancel a lease is equitable in its nature and one in which a jury may not be demanded as a matter of right. It is true, as plaintiff in error contends, that there were issues of fact to be tried, but the code provides that only issues of fact arising in actions for the recovery of money or specific real or personal property are to be tried by a jury. All other issues of fact are triable by the court, subject to its power and discretion to order any of the issues to be tried by a jury or by a referee in the manner directed by the code. (Civ. Code, §§266, 267; Gen. Stat. 1901, §§4713, 4714; Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959.)”
In Houston v. Goemann, 99 Kan. 438, 162 Pac. 271, where the principal error assigned was based on the trial court’s refusal of a jury trial, plaintiff sought to give the cause the color of an action for the recovery of real estate, but the court held that it was essentially equitable in character. In the opinion it was said:
“While forms of action and the distinction between actions at law and suits in equity have been abolished, and a single remedy in the form of a civil action has been provided, by means of which any desired relief may be obtained, essential differences have not been obliterated and a jury is not demandable as a matter of right in those civil actions which are grounded on equitable rights and in which equitable relief is sought. . . .
“The plaintiffs’ right to possession and enjoyment of the land as owners depended on their right to have the deed canceled. What they desired was the verdict of a jury on their right to cancellation. That was a subject of equitable cognizance, and the request for a jury trial as in an action at law was properly denied. The principles involved are sufficiently illustrated in the following cases, several of them being cancellation cases: Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959; Mills v. Hartz, 77 Kan. 218, 94 Pac. 142; Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530; Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147; Akins v. Holmes, 89 Kan. 812, 133 Pac. 849; Kuhn v. Johnson, 91 Kan. 188, 137 Pac. 990; Appling v. Jacobs, 91 Kan. 793, 139 Pac. 374.” (pp. 440, 441.)
It was similarly held in Larkin v. Wilson, 28 Kan. 513, that where plaintiff’s suit is essentially one stating a cause of action for equitable relief, defendant cannot alter its character into an action of law triable as of right before a jury by setting up a counterclaim in the nature of ejectment.
In Butts v. Butts, 84 Kan. 475, 478, 114 Pac. 1048, it was said:
“It is true that the courts recognize the doctrine that where the action should have been, and in substance is, an action for the recovery and possession of real estate, the right of the defendant to a jury cannot be defeated by the mere device of the plaintiffs in bringing the action in an equitable form. (See Gordon v. Munn, 83 Kan. 242.)”
In Rayl v. Brown, 108 Kan. 385, 198 Pac. 611, the case last cited was summarized thus:
“In Gordon v. Munn, 83 Kan. 242, 125 Pac. 1, which was an action in partition, it was held that under the issues in that case a jury trial should have been granted as a matter of right. In that case it was held that ‘for all practical purposes it would result in a recovery of the possession of the property from one party and an award of it to the other, which would seem to embrace all the essential features of an action in ejectment.’ ” (p. 387.)
Where an action is essentially one for equitable relief to which the injured party is adjudged to be entitled, and where such relief cannot be granted and as a consequence redress has to be granted in a money judgment, the equitable nature of the action is not thereby changed and a jury is not demandable as a matter of right. (Brush v. Boyer, 104 Kan. 168, and citations, 178 Pac. 445; 36 Cyc. 748, 753; 10 R. C. L. 370; 25 R. C. L. 341.)
While plaintiff’s petition, critically examined, may disclose some defects in mere art of pleading, it fairly states a cause of action for purely equitable relief, and it is not fairly susceptible of any construction which would characterize it as an action for the recovery of money or property. Of course the prayer of the petition itself is not of controlling importance (Eagan v. Murray, 102 Kan. 193, syl. ¶ 2, 170 Pac. 389), yet it was a prayer for equitable relief; and, indeed, defendant’s cross-petition recited some matters calling for equitable relief and his prayer was to the same effect. When the facts alleged in plaintiff’s petition are examined in detail it is readily discernable that the action was of an equitable nature — an action for an accounting between the parties and for the impleading of the mortgagees, judgment creditors, and other claimants, whose rights in the stock of merchandise were protected by the bulk-sales law, and for a determination of the order of priorities between them, and for the sale of the farm to satisfy all such liens and claims. A jury was not demandable as of right .in such a case. Defendant urges, however, that he set up “a demand in money to pay the damages which he claimed to have suffered” — presumably by the alleged fraudulent misrepresentations of plaintiff as to the quality of the farm. But as we have shown above, a suit which is essentially of an equitable nature cannot be transformed into an action with a jury trial demandable as of right by pleading a setoff which, considered independently or in an ordinary action at law, might have been justiciable before a jury as a matter of right. (Larkin v. Wilson, supra; Butts v. Butts, supra. See, also, Akins v. Holmes, 89 Kan. 812, 133 Pac. 849; Foresman v. Foresman, 103 Kan. 698, 175 Pac. 986, 176 Pac. 147; Winkler v. Shusky, 112 Kan. 283, syl. ¶ 1, 211 Pac. 124.)
It follows that the refusal of defendant’s demand for a jury trial was not error.
Defendant seeks to make a point on the matter of the second mortgage, urging that he traded for the farm on the assumption that it was covered by one mortgage only, for $4,000. The record is too scant to permit us to review this point critically. Probably the second mortgage was an incident to the first; presumably the trial court disposed of it correctly and gave it due significance in determining the true balance due between the parties. No error is apparent under this assignment.
Touching the error assigned on the low rank of priority accorded by the trial court to the lien of Hamson, counsel contend that an obvious error appears in the trial court’s finding No. 12, where it is stated that the Hamson mortgage was recorded “on the-day of January, 1922.” The mortgage was executed on October 17, 1922, as found by the trial court and as the instrument itself shows, and the instrument itself likewise shows beyond cavil that it was filed for record on October 20, 1922. The judgment creditors given the fourth, fifth, sixth and seventh places of precedence over the appellant Hamson for the satisfaction of their liens, according to finding No. 11 of the trial court, filed their respective judgment transcripts from Sumner county at later dates — the Simmons Hardware Company and the Townley Metal Company on October 24, 1922, and the Malleable Iron Range Company and the Blish-Mize Company on November 3, 1922. Since the error in finding No. 12 is apparent and is susceptible of correction under section 580 of the civil code (R. S. 60-3316), it is clear that Hamson’s contention is meritorious. His mortgage was filed for record in Harper county before the above-named judgment creditors filed their Sumner county judgments for record in Harper county; and it therefore follows that Hamson’s lien should take precedence over theirs; it is entitled to the fourth rank, following immediately after that of plaintiff. In the latter respect the judgment is therefore modified as contended for by Hamson, and as so modified the judgment is affirmed. | [
-16,
110,
-72,
-115,
24,
-32,
40,
-102,
81,
-95,
36,
83,
-19,
-58,
5,
105,
-25,
89,
80,
104,
70,
-77,
3,
-29,
-46,
-69,
-39,
-59,
-71,
79,
-91,
-42,
76,
52,
66,
85,
-30,
-64,
-59,
-36,
-34,
0,
27,
104,
-35,
66,
60,
43,
50,
66,
49,
-124,
-13,
46,
61,
-53,
105,
44,
-21,
61,
113,
-7,
42,
7,
63,
23,
17,
38,
-102,
69,
88,
110,
-112,
49,
1,
-24,
115,
-90,
-122,
116,
9,
-103,
9,
38,
103,
3,
5,
-49,
-56,
-116,
47,
-5,
-115,
-26,
-80,
88,
35,
9,
-65,
-100,
-4,
18,
6,
-10,
-3,
12,
29,
108,
7,
-49,
-108,
-125,
-113,
54,
-104,
19,
-21,
-121,
-80,
97,
-49,
-94,
93,
71,
48,
-101,
-114,
-5
] |
The opinion of the court was delivered by
Johnston, C. J.;
This was an action upon a promissory note for $5,000 given by Carl J. Gregg to himself, and which was transferred through the Saline County Lumber Company and the R. N. Powell Lumber Company to Nelson Smith and Ed M. Roach. In their action to recover on the note, and after the evidence for plaintiffs had been introduced, the court instructed the jury to return a verdict for the plaintiffs, which was done. The defendant appeals.
It appears that the Powell Lumber Company, of Hutchinson, owned two lumber yards, one at Brookville „and one at Glendale in Saline county. It organized the Saline County Lumber Company to take over the yards and dispose of the stock of the new company. The defendant, Gregg, was induced to purchase a block of the stock and to give his notes up to the amount of $84,000, a portion of which was paid. It was alleged and there was proof tending to show that false representations were made and that the note in suit had been obtained from him by fraud and had been fraudulently negotiated. The defendants, without contesting the fraud in the inception of the note, testified on their own behalf that they had no notice or knowledge. of the transactions wherein the note was executed, no notice of any defect or infirmities in it, and that they were holders in due course. The place of business of the Powell Lumber Company was Hutchinson, and the plaintiffs lived in that city. The appellant lived in Brookville in Saline county. No testimony other than their own was offered by plaintiffs, and at the conclusion of their testimony the court on its own motion directed a verdict for plaintiffs. This is the ruling presented for review. If there was anything in the evidence for a jury to consider, any question of the. credibility of the witnesses or the truth of their statements, or anything which tended to show a lack of good faith in the transaction by which they acquired the note, the case> of course, should have been submitted to the jury. Defendant’s evidence was sufficient to make a prima ■facie case that there was fraud in the inception of the note, and when this was shown the burden shifted to the plaintiffs to prove that they were holders in due course. (Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Security Co. v. Low, 112 Kan. 153, 210 Pac. 190.)
Plaintiffs contend that no witnesses other than themselves testified as to notice or knowledge of infirmity or relating to defects of title, and they insist that having made a full disclosure of all the facts relating to their purchase of the note, and there being no circumstances in the evidence from which an inference of notice or knowledge of the fraud might be drawn or anything tending to show the note was taken in bad faith, there was nothing to submit to the jury. Can it be said that the burden cast upon the plaintiffs to show innocence and good faith in the transaction was fully met by them? They positively denied knowledge of the fraud and of infirmity in the note, but circumstances are sometimes stronger than dogmatic denial. The proof offered by them was not conclusive in character, but was oral, and defendant contends that their testimony was biased, unreasonable and conflicting and betrayed suspicious circumstances inconsistent with the theory of good faith. The credibility of a witness is ordinarily a question for the jury, and the trier of the facts is not required to accept the statements of a wit ness, although there is no direct contradiction of the testimony given. In Jevons v. Railway Co., 70 Kan. 491, it was said:
“Oral evidence in support of an affirmative defense, even if not contradicted, will not authorize a trial court peremptorily to direct the verdict for defendant.”
In Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115, where the question of directing a verdict was under consideration, it was said:
“A court or jury is not required to accept a statement of a witness as conclusive, although there may be no direct evidence contradicting his statements, and hence the court could not direct a verdict.” (p. 525.)
See, also, Harrod v. Latham, 77 Kan. 466, 95 Pac. 11; Saindon v. Morrell, 78 Kan. 53, 95 Pac. 1056; Fisk v. Neptune, 96 Kan. 16, 149 Pac. 692; Wyrick v. Street Raihvay Co., 100 Kan. 122, 163 Pac. 1059; The State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986; Collins v. Hayden, 104 Kan. 351, 179 Pac. 308; Beachy v. Jones, 108 Kan. 236, 195 Pac. 184. The court may direct a verdict where a party upon whom the burden rests fails to show something essential to his action or defense, or where the facts upon which the result depends are not in dispute, but where there is a controversy as to facts and there is a question as to the credibility of a witness and the truth of the testimony or the weight to be given to it, the case should be submitted to the jury.
The defendant calls attention to the following facts and circumstances as tending to discredit the claimed good faith of plaintiffs and an absence of knowledge on their par-t as to infirmities. In his testimony Roach, who appears to have been the active partner in conducting the negotiations, stated that plaintiffs paid $5,000 for the note, but on cross-examination testified that they did not give either cash or check for defendant’s note, but exchanged a note of R. N. Powell, on which there was still due about $5,000 and which was secured by 140 shares of stock in the Powell Lumber Company, each share being of the par value of $100. He stated that his firm was in need of money, but it appears that he traded a note which was due and secured, being stock of the face value of $14,000 in a company which he thought was solvent, for an unsecured note not due for five months, executed by one he had not seen and did not know and of whom plaintiffs made no inquiry either as to the transaction in which it was given or his financial responsibility, although he resided only about fifty miles away and with whom communication was easy. Aelmore, one of the holders of the note and who had been active in procuring it to be executed, lived in Hutchinson, where plaintiffs resided, was known to them, and yet they made no inquiry of him as to defendant or as to the transaction in which the note was given. Neither did they make any inquiry about the financial standing of defendant of anyone in Saline county or in Brook-ville, where the defendant lived, as to the solvency of defendant or his disposition to meet his obligations. They did testify that they made inquiry of a man in Ellsworth county, who gave defendant a good recommendation. Although the amount of the note purchased was large, made by a stranger to plaintiffs, and although they had been dealing in the stock of the Powell Lumber Company, they did not take the precaution to inquire how that company happened to acquire the defendant’s note nor as to the consideration given for it. It may be said that shortly after the purchase of the note the insolvency of the Powell Lumber Company became known and its property passed into the hands of a receiver. Some of the facts and 'circumstances are quite unusual, and those related are such as may properly be considered in determining whether plaintiffs’ statements were true and whether they were purchasers in good faith.
Under the circumstances we think the court could not say to the jury, the plaintiffs are credible witnesses and their testimony must be accepted as true, that there is no evidence directly contradicting the testimony given by them, and the fact that they refrained from making inquiry as to the maker of the note, as to the consideration for which it was given, and the other circumstances in exchanging a secured note for one of equal amount that was unsecured, collection of which could not in any event be enforced for considerable time in the future, are not entitled to consideration, and therefore I direct you to return a verdict in favor of the plaintiffs.
We are of opinion that the case was clearly one for the determination of the -jury, and therefore the judgment will be reversed and the cause remanded for a new trial.
Hopkins, J., not sitting. | [
112,
-20,
-76,
29,
28,
-32,
42,
-102,
17,
-127,
36,
83,
-23,
-62,
69,
107,
-26,
29,
112,
104,
-60,
-77,
7,
107,
-62,
-77,
-7,
-123,
-72,
74,
-92,
-41,
76,
48,
74,
-43,
102,
-64,
-57,
-100,
-114,
4,
40,
-60,
-39,
72,
56,
-81,
20,
75,
117,
-114,
-5,
41,
28,
67,
73,
46,
107,
45,
-48,
-7,
-70,
-121,
95,
22,
51,
6,
-104,
71,
-56,
46,
-48,
49,
1,
-24,
122,
-74,
-122,
-12,
41,
13,
13,
102,
99,
32,
-107,
-81,
-68,
-56,
47,
-9,
29,
-25,
-112,
8,
3,
41,
-74,
-99,
116,
80,
6,
-2,
-1,
13,
29,
108,
5,
-54,
-10,
-109,
27,
54,
24,
27,
-17,
-79,
18,
97,
-51,
-96,
93,
87,
50,
27,
-114,
-79
] |
The opinion of the court was delivered by
Mason, J.:
The Lawrence Business College, a "Kansas corporation, obtained a permanent injunction against the county clerk, treasurer and sheriff, forbidding the enforcement of personal taxes against it for 1921 and 1922, on the ground that its property is used exclusively for educational purposes within the meaning of the provision of the state constitution (art. 11, § 1) exempting from taxation property so used. The defendants appeal.
1. The plaintiff’s field of instruction appears to be practically the same as that of commercial schools generally. The defendants suggest that this limited field prevents its being classed as an educational institution within the meaning of the constitutional provision. A business college has been held not to be within the protection of a statute exempting from taxation property owned by educational institutions while occupied solely for the purposes for which they were incorporated. (Parsons Business College v. Kalamazoo, 166 Mich. 305.) That case, however, was influenced by the history of an amendment to the statute in the light of prior decisions, and also by the fact that the principal reason for the incorporation of the school was shown to have been to avoid taxation. All organizations the purpose of which is to give instruction are in a sense educational. ' Doubtless some of them are not within the meaning of the word as used in exemption laws. The word education as used in an exemption law is not to be construed in accordance with expressions of opinion concerning the purposes of education in general, however sound in that connection, such, for instance, as that education is to be considered “not as a means of livelihood, but as an adornment of the spirit,” and is to be exalted “not as a means of getting on in the world, but as a means of understanding and enjoying the world.” (White’s Woodrow Wilson, pp. 139, 140.) A business devoted to giving instruction in driving automobiles or piloting air craft does not seem to fit into the ordinary conception of an educational activity, although it may not be easy to say exactly why or just where the line should be drawn. We believe, however, a school of the type usually designated as a commercial college, notwithstand ing that the period of its instruction is very short, that the subjects taught are confined to a narrow field, and that its purpose is utilitarian to the last degree, is educational within the scope of that term as employed in the constitutional provision under consideration.
2. Two questions remain to be determined: (1) Does the constitutional provision referred to exempt schools which are conducted for financial profit? and (2), Is the plaintiff’s school of that character? The clause in full reads:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes . . . shall be exempted from taxation.” (Art. 11, § 1.)
Of similar provisions it has been said:
“An exemption from taxation of the property of educational institutions is provided by the constitution or laws of most of the states. While the exact phraseology of the exemption differs in the different states, it is generally considered that the exemption of such institutions is intended to be confined to those of the same general character as the benevolent and charitable institutions with which they are associated in the statute, and that it does not extend to schools which were not established primarily for the purpose of education but for the pecuniary advantage of individuals.” (26 R. C. L. 320.)
The rule is widely recognized and is followed in this state that laws exempting property from general taxation are construed strictly • against the claim of immunity, which must be clearly established in order to be allowed. (37 Cyc. 891, 892; The State v. Educational Association, 54 Kan. 542, 38 Pac. 796.) If a paper or magazine were conducted solely for the cultivation of literature, publishing nothing except literary matter, but yielding a financial profit to its owners, it would quite obviously not be within the spirit of the constitutional exemption. And this would be true of a laboratory used exclusively in discovering chemical combinations of practical utility, the sale of rights in connection with which brought to the owners a return in dollars and cents on their investment. Probably a religious, benevolent or charitable institution cannot be reasonably conceived the real purpose of which is to make money for its owners, for this would involve a contradiction of terms. But if a concern professing to be religious, benevolent or charitable turned out to be operated for the purpose of directly enriching the operators, its plea of exemption would be given short shrift by the courts. We' are not here concerned with the difference between public and private schools or between schools that charge tuition and those that do not. The distinction under consideration turns upon whether education or financial gain is the primary purpose for the maintenance of the institution, which is the subject of the inquiry. We think where a school of the plaintiff’s type is maintained as an ordinary business enterprise for the monetary advantage of its owners it is not entitled to the benefit of the constitutional exemption.
Decisions bearing explicitly upon this precise question are few, largely because of the different language of the various constitutional and statutory provisions involved. The division of authority upon the more general phases of the matter has been thus indicated:
“If an exemption from taxation is granted generally to schools or educational institutions, without requiring that they shall be public or charitable institutions, it may be claimed by a private school maintained by an individual or corporation as a business enterprise. In some states, however, it is considered that such an institution is not within the spirit of the exemption laws.” (37 Cyc. 933.)
Of the decisions cited in the notes to this text only two appear > fully to cover the situation here presented. They are in favor of the exemption and are directly in point, although one of them involves a license and not a general-property tax (Montclair Military Academy v. Assessors, 65 N. J. L. 516), a consideration which might affect the matter of strict construction, and in the other it is not' specifically stated that the school was maintained for financial gain (City of Indianapolis v. Sturdevant, 24 Ind. 391). Other cases of a similar effect are: Pitcher v. Miss Wolcott School, 63 Colo. 294; Corporation Commission v. Construction Co., 160 N. C. 582; Ward Seminary v. City Council, 129 Tenn. 412; Rohrbaugh v. Douglas County, 76 Neb. 679. In the case last cited the question here involved is treated as having been settled in earlier decisions, none of which contains, a full discussion of the point which is vital here. On the other hand, Brunswick School v. Greenwich, 88 Conn. 241, not cited in the notes referred to, has a tendency against the exemption. In a dissenting opinion in the Tennessee case above referred to it is said:
“If corporations for profit be allowed entrance into the class with corporations for public welfare, it is not improbable that, in this age of promotion, enterprises will be launched in corporate form, under the guise of educational corporations, having in view yet more patently private profit, such as business colleges.” (p. 437.)
In Home & Day School v. Detroit, 76 Mich. 521, where a seminary was held exempt as a “scientific institution,” althnwh at one time a three per cent dividend had been paid to stockholders, it was said in the answer:
“These defendants submit that it is not the intention of the statute to exempt from taxation institutions which, although educational, are purely commercial in their purposes; that the complainant has no greater right to claim an exemption than a business college, or school of telegraphy, or school of stenography, which is established as a purely commercial enterprise.” (p. 529.)
3. Bearing in mind that one who claims the benefit of a tax exemption has the burden of affirmatively and clearly bringing himself within its operation, the question whether the plaintiff’s school is to be regarded as one maintained for its financial profit turns upon, the effect of an agreed statement submitted to the trial court, which shows these facts:
The Lawrence Business College has been in operation for more than fifty years. It was incorporated in 1907 without capital stock. The five incorporators constitute a board of trustees, having complete supervision of its property and general supervision of the administration of the school. A vacancy in the board of trustees is filled by the remaining members. The trustees elect three directors, one designated as president, who must be a trustee, and is also president of the board of trustees; one as superintendent, and one as adviser. If at the end of- any year the school treasury has a balance of more than twenty-five per cent of the receipts for the year it is to be used to establish or increase a “permanent student loan fund,” to be administered by the board of directors. W. H. Quackenbush has been president and E. S. Weatherby (also a trustee) secretary and superintendent since the incorporation. C. 0. Bowman, a teacher in the school, is also a trustee. The names of the other trustees and directors are not shown and do not appear in the minutes of the annual meetings from 1913 to 1921, which are incorporated in the agreed statement. In 1917 the trustees, on recommendation of the directors, fixed the salary of President Quackenbush at $200 a month and that of Superintendent Weatherby at $166.66 a month. In 1018 these salaries were each increased to $250 and $200,. respectively, and in 1919 'to $350 and $300. Prior to its incorporation the school was presumably owned by Messrs. Quackenbush and Weatherby, for the equipment used by the plaintiff was donated to it by them. The' receipts of the school consist of tuition paid by the students. The total receipts annually from 1914 to 1921, inclusive, with the total expenditures, and the combined amounts paid to President Quackenbush and Superintendent Weatherby as salaries, were as follows:
Salaries of Total Total president and Year. receipts. expenditures superintendent.
1914.................... 86,167 86,691 81,870
1915 .................... 7,440 7,651 2,895
1916.................... 9,565 9,658 3,163
1917.................... 11,697 11,415 4,9131
1918.................... 19,446 19,628 7,140
1919.................... 19,030 19,104 5,676
1920.................... 17,272 20,679 5,252
1921.................... 13,716 12,908 2,458
It will be observed that the payments to the officers referred to vary with the amount collected for tuition, although not in an exact proportion. The expenditures exceeded the income in every year excepting 1917 and 1921, and the expenses for the eight years exceed the receipts by $3,407. It is not shown what motives led to the incorporation. Its practical effect seems to be that, whereas formerly any excess of receipts over expenses went to Messrs. Quackenbush and Weatherby as profits of the business, it now goes to them as their salaries, or to apply on their salaries. We think, as was said in Carteret Academy v. State Board of Taxes and Assessment, 120 Atl. 736 (N. J.), the plaintiff “has failed to sustain the burden resting upon it to clearly establish that it is not conducted for profit.”
The judgment is reversed and the cause is remanded with directions to deny the injunction. | [
-12,
-6,
-36,
-68,
27,
106,
106,
-98,
65,
-127,
-91,
19,
109,
-38,
5,
121,
-41,
77,
80,
122,
-3,
-73,
3,
-125,
-112,
-5,
-38,
-35,
-79,
79,
-11,
-1,
76,
48,
-54,
-43,
-122,
-53,
-55,
-44,
-114,
4,
43,
71,
-39,
-127,
-76,
72,
114,
11,
17,
-97,
51,
40,
28,
-61,
41,
46,
75,
-27,
-95,
-79,
-70,
7,
127,
23,
17,
38,
-100,
-121,
-56,
44,
24,
59,
33,
-23,
115,
-90,
86,
-44,
13,
-119,
-87,
110,
99,
51,
56,
-17,
-68,
-103,
14,
83,
61,
-26,
-110,
-40,
98,
73,
-105,
29,
116,
80,
3,
122,
-26,
20,
-97,
125,
5,
31,
-12,
-77,
-115,
117,
-102,
4,
-17,
-89,
48,
100,
-60,
22,
95,
67,
122,
27,
-114,
-76
] |
The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages because of failure and refusal to accept certain securities according to contract. Each party prevailed in part, and both appeal.
The plaintiff is engaged in the business of buying and selling road machinery and building bridges in the state of Texas. The defendant is engaged in buying and selling municipal securities. The plaintiff, in selling road machinery and doing bridge work for counties in Texas, ordinarily received its pay in county warrants. It had sold several issues of warrants to defendant prior to this controversy. This action involved issues of - county warrants of three counties — Archer, Hall and Hood. The trial court entered judgment for plaintiff on account of the Archer county warrants, but denied judgment on the Hall and Hood county warrants. The plaintiff filed a cross-appeal, alleging error by the trial court in refusal to award judgment on account of Hall and Hood county warrants.
The facts are substantially enumerated in the findings of the trial court, which recite, inter alia:
That on September 8, 1919, defendant wrote plaintiff: “I feel that the best basis that we can work on on these Texas securities of large and small issues would be 97 cents and expenses.” That on December 16, 1919, plaintiff wrote defendant, inter alia: “We have made a contract with Archer county to handle $20,000 worth of time warrants. We hereby contract them to you at 97 cents and will not be able to make delivery until some time in-the spring, as they want to get in some bridge work and machinery that they want to buy between now and that time and put it in this issue. We think when the time comes to close up with them there will be $30,000. We have arranged with Hood county to handle $10,000 more of refunding warrants to become due as follows,” etc. That on December 27,1919, the defendant canceled its offer of September 8, 1919, by writing: “Market conditions are in such shape at the present time that we are compelled to withdraw any commitments that we have with you for the purchase of county warrants. This, of course, only applies to contracts that have not yet been executed.” That on December 27, 1919, and prior to the receipt of the -order of cancellation, the plaintiff had obtained alleged contracts with Archer county for $20,000,' with Hood county for $10,000, and with Hall county for $7,344, and which contracts were reported by plaintiff to defendant prior to such cancellation. That on January 3, 1920, the defendant acknowledged prior receipt of notice of contracts with Archer, Hood and Hall counties, and which notice was received prior to cancellation date, December 27, 1919, and informed plaintiff: “Of course the Archer, Hood and Hall county issues are already contracted for and are satisfactory to us.” That prior to writing the letter of January 3, 1920, the defendant knew that the contracts with the several counties referred to were, not final. That on January 22, 1920, plaintiff informed defendant that the Archer and Hood issues would be delayed about 90 days; that the maturity dates were as yet undetermined and at that time (January 22, 1920) the defendant knew the legal form of the various issues had not been determined upon, and this arrangement and condition were acquiesced in by the defendant. That on January 27, 1920, the defendant wrote plaintiff: “There will be no charge to you for the preparation of proceedings.” That on June 1, 1920, defendant requested information relative to the Archer and Hood county matters in the following direction to plaintiff: “Let us have that information on Archer and Hood counties before submitting to Harris.” That Mr. William Harris was the attorney of the Texas Bridge Company and also of Brown-Crummer Company. The latter company relied upon Harris to see that all of the proceedings in the issue of the warrants were regular and legal. That on June 7, 1920, plaintiff wrote defendant: “Replying to your letter of June 1 regarding the Archer and Hood county issues, beg to say that I took the papers to Harris when I left you in Dallas. I am expecting the proceedings to arrive here to-morrow and will send you a list of maturities of the $42,000. I am making them come due with early maturities just as you suggested, and hope to be able to get them through on that basis. ... I am making the Hood county maturities as early as Harris will approve them also.” That on August 12, 1920, defendant wrote plaintiff, inter alia: “We have come to the conclusion that we cannot afford to make further investments in Texas warrants either for ourselves or for our clients; . . . therefore we are returning the Archer county proceedings, together with executed warrant No. 1, and have instructed our bank to return the other 39 warrants of this issue.” (The proceedings referred to as returned were the proceedings prepared by Mr. Harris; the attorney.) That the Archer county road and bridge warrants on the amount of $29,500 on June 15, 1920, are for material, labor and obligations furnished and incurred by the plaintiff prior to December 29, 1919, and were so dated by Harris for the purpose of embodying in legal form the prior contracts of plaintiffs with Archer county. That the funding warrants issued by Hall county on June 18, 1920, were so issued at the instance of William Harris and were for the purpose of taking up outstanding warrants issued against the road and bridge fund of said county for warrants issued to the plaintiff on March 3, 1920, for $7,344. That the contract entered into by plaintiff on June 15, 1920, and the commissioners of Hood county, Texas, was prepared by William Harris, and the consideration therefor was work, labor and obligations incurred prior to December 27, 1919. That the contracts, supposedly entered into with Archer, Hood and Hall counties prior to December 27, 1919, were delivered by plaintiff to William C. Harris, who was retained to prepare the legal requirements necessary to enable him to approve the various issues. Mr. Harris, to suit his own ideas,' changed the proceedings and dates of maturities, but all acts shown in the subsequent proceedings prepared by Mr. Harris and executed by the officials of Archer, Hood and Hall counties were based on the original supposed contracts offered defendant by plaintiff prior to December 27, 1919. That the warrants of Archer county were formally tendered to the defendant by the plaintiff on July 12, 1920. That the warrants of Hall and Hood counties, in controversy, were never formally tendered by plaintiff to the defendant; that a formal tender would have been useless as the defendant informed plaintiff that it would not accept such warrants.
The court concluded, inter alia: That by correspondence and conversations between plaintiff and defendant a working arrange ment had been entered into by them prior to December 27, 1919, by which the plaintiff was to offer to defendant warrants issued or to be issued by counties in Texas to plaintiff for machinery furnished or to be furnished and road work performed or to be performed by plaintiff, and which defendant would purchase if the rate of interest which the warrants bore and the proceedings on which they were based were satisfactory to defendant. That the delay in the Archer, Hood and Hall counties’ issues was reasonable under the contracts between the parties. That the letters between the parties make a contract by which the defendant was to purchase of plaintiff $20,000 of the Archer county time warrants, the Hall county warrants for road machinery, which was afterwards determined to amount to $7,344, and $10,000 of Hood county refunding warrants. That by certain correspondence thereafter the plaintiff conceded that the defendant was required to purchase only $20,000 of the Archer county warrants. That the plaintiff should recover of the defendant, as damages for failure to purchase the Archer county warrants, $3,405.53. That the defendant was not liable for failure to purchase the Hall county warrants for the reason that the warrants offered were funding warrants and not road and bridge warrants, as specified in a letter by the plaintiff to the defendant, dated December 16, 1919. That the defendant was not liable for failure to purchase the Hood county warrants for the reason that they were contract warrants and not refunding warrants, as specified in the letter of December 16, 1919.
The controversy turns largely on the question as to whether William Harris was attorney for the defendant. The defendant contends that there was no competent evidence to support the finding that he was. There was both written and oral evidence on the point. On August 19,1919, the defendant wrote the plaintiff: “Replying to your letter of August 16, we would be glad to take up the Hood county funding warrants just as soon as we receive the approving opinion from our attorney, Mr. W. M. Harris.” The letter was offered in evidence but rejected, presumably because it was claimed by the defendant that the letter was written by a Mr. Tucker, who was not at the time of writing the letter familiar with the work in defendant’s office. It appears, however, that while the court declined to admit the letter when offered in evidence, it was afterwards considered as a part of the evidence. The sixteenth finding reads:
“Mr. William Harris was the attorney of the Texas Bridge Company and also of Brown-Crummer Company. (Exhibit 14.) The latter company relied upon Harris to see that all of the proceedings in the issuing of the warrants were regular and legal.”
The case having been tried to the court, it was within the power of the court to reconsider his ruling excluding the letter. This he undoubtedly did. However, we are of the opinion there was sufficient evidence, aside from the letter, to sustain the finding of the court that Mr. Harris was acting as attorney for the defendant in the matters in controversy. On January 14 defendant wrote plaintiff that they (the defendant) had been paying Mr. Harris for his approving opinion, but that his (the writer’s) recollection was that the plaintiff was to pay therefor, and asked plaintiff’s president to state his recollection of the matter. Mr. Lowe, president of the plaintiff company, responded: “We have not paid Mr. Harris for preparing any proceedings and have understood from his office that you have paid his charges without question and promptly, so we did not think there was any question on this point.” On January 27,1920, the defendant wrote plaintiff: “We are marking our records so that there will be no charge to you for the preparation of proceedings.” On January 22, 1920, plaintiff offered to prepare the various issues without submitting to Mr. Harris, saying: “In many of these issues we can copy the forms used by Mr. Harris and save expense, and will do so if you desire.” The defendant requested that the matter of maturities be submitted to Mr. Harris, and the maturities were changed by Mr. Harris. On June 7, 1920, the plaintiff wrote defendant: “Replying to your letter of June 1 regarding the Archer and Hood county issues, beg to say that I took the papers to Harris when I left you in Dallas. I am expecting proceedings to arrive here to-morrow and will send you a list of the maturities of the $42,000. I am making them come due with early, maturities just as you suggested, and hope to be able to get them through on that basis. I am making the Hood county maturities as early as Harris will approve them also.”
Mr. Lowe, president of the plaintiff, testified:
“I took these contracts to Brown-Crummer’s attorney at Dallas, Mr. Harris. Mr. Harris wanted to make up these proceedings to suit his own idea, and he changed the date of the maturities and procedure in carrying out these original contracts that we made with this county. . . .”
“Mr. Depew: We object to Mr. Harris as being Brown-Crummer’s attorney put in evidence.
“The Court: Overruled.
“A. And that accounts for the change in the date of these warrants, the three issues for Hood county, Archer county and Hall county. On some of these matters I already had warrants issued by the counties which I intended to put into a refunding warrant issue.
“Q. At whose suggestion was that being done A. At Brown-Crummer’s suggestion.”
There appears to have been no objection to the witness’ statement of what he did, and at whose suggestion. There was oral testimony by the defendant denying that Mr. Harris was the defendant’s attorney. The trial court heard the evidence and resolved the dispute in favor of the plaintiff. The evidence was sufficient to sustain the finding, and under the circumstances it will not be disturbed.
We have examined the evidence, which consisted largely of correspondence, and conclude that the trial court’s findings of fact were amply supported. The court’s conclusion, in so far as the $20,000 of Archer county warrants was concerned, was correct, but we are of opinion that the court erred in its conclusion relative to the Hall and Hood county warrants. The defendant had agreed to purchase “Texas securities of large and small issues.” It was well understood that the “securities” were warrants issued by various Texas counties in payment for road machinery and bridge work. Some were “contract warrants” some “funding warrants” and some “refunding warrants.” No distinction appears to have been drawn between the different kinds of county warrants until the defendant concluded it could not afford to purchase them. The trial court concluded that the defendant was not liable on account of failure to buy the Hall county warrants, because they were “funding warrants” and not “road and bridge warrants”; that the defendant was not liable for failure to purchase the Hood county warrants, because they were “contract warrants” and not “refunding warrants.”' These warrants, by whatever name called, were certificates of indebtedness. They were recognized by the parties as Texas securities. In the case of Hall county they were put in form and issued as “funding warrants” at the instance of William Harris.
The reason the defendant declined to take the warrants was contained in a letter of the defendant to the plaintiff on August 12, 1920, “We cannot afford to make further investments in Texas warrants,” and not because they were not warrants as contracted for. While all the details or features of the warrants were not mentioned or specified in the correspondence, it was not necessary that they should be. There was a meeting of the minds of the parties on the essentials necessary to a binding contract. (Brown-Crummer Co. v. W. M. Rice Const. Co., 285 Fed. 673.) Furthermore, the defendant acquiesced in the details that had not been originally mentioned.
The defendant complains that it had no notice of the time and place of resale of the warrants. Under all the circumstances we do not regard notice to the defendant of a resale as necessary. (35 Cyc. 523.) The court found that plaintiff, on September 24, 1920, offered the Archer county warrants to defendant at 85 cents, saying: “We are compelled to sell them at the best price obtainable. If you will purchase all or any of them at any price we will be glad to have your offer.” The defendant accepted the offer, and when the warrants were about to be shipped defendant added to the condition of purchase, “a complete settlement.” The plaintiff declined to sell them to defendant under the conditions specified. Under all the circumstances, plaintiff is entitled to an affirmance of the judgment on account of the Archer county warrants; also to recover on its cross-appeal on account of the Hall and Hood county warrants.
The judgment for plaintiff will be affirmed, and the judgment for defendant on account of the Hall and Hood county warrants will be reversed and the cause remanded with directions to render judgment for plaintiff. | [
-16,
124,
113,
-83,
-102,
-32,
42,
-102,
80,
-95,
103,
-41,
-23,
-62,
0,
123,
-18,
93,
100,
106,
-25,
-78,
71,
35,
-45,
-77,
-53,
-59,
61,
79,
-26,
87,
76,
32,
-62,
-43,
102,
66,
69,
88,
-50,
-124,
-104,
-20,
-35,
90,
48,
-5,
48,
74,
49,
-114,
-13,
44,
29,
-61,
109,
40,
-21,
57,
-48,
-15,
-5,
13,
95,
5,
17,
71,
-100,
71,
-40,
46,
-112,
49,
1,
-8,
114,
-74,
-122,
116,
105,
-103,
12,
50,
38,
2,
-43,
-49,
-36,
-88,
46,
-2,
-115,
-89,
2,
88,
43,
33,
-98,
-99,
124,
22,
5,
-2,
-18,
4,
91,
100,
15,
-49,
-44,
-29,
-97,
102,
-103,
11,
-17,
-127,
50,
97,
-49,
-14,
93,
71,
114,
-101,
15,
-104
] |
The opinion of the court was delivered by
Dawson, J.:
The plaintiff, who claimed to have been a Kansas soldier in the world war, was denied compensation and appealed to the district court of Labette county. The issue was whether the plaintiff was a bona fide resident .of Kansas at the time he enlisted in the army. The trial court decided in the negative. Plaintiff assigns error on' this finding of fact and argues that the trial court did not give due significance to the fact that plaintiff’s parents, residents of Missouri, had emancipated the claimant during his minority so as to leave him free to establish a residence for himself separate and apart from that of his parents. Plaintiff contends that the evidence established the fact that he was an emancipated minor, and that as such he had á right to establish a separate residence. Both contentions may be conceded, but they do not control this case. The evidence did not show — to the satisfaction of the trial court, at least— that plaintiff was a bona fide resident of Kansas at the time he entered the army. Indeed, the evidence to which the trial court gave credence was to the effect that plaintiff was not then a resident of Kansas. Since there was some competent evidence to support the trial court’s finding of fact, its decision and judgment cannot be disturbed. (Bayer v. Cockerill, 3 Kan. 282, syl. ¶ 6; Farney v. Hauser, 109 Kan. 75, syl. ¶ 7, 198 Pac. 178; In re Soldiers’ Compensation Appeals, Doniphan’s Case, 116 Kan. 601, 603, 227 Pac. 1117; id., 116 Kan. 607, 229 Pac. 355.)
Affirmed. | [
-112,
-22,
-27,
127,
10,
96,
34,
42,
48,
-95,
39,
83,
109,
-54,
1,
121,
-22,
29,
64,
120,
79,
-73,
6,
-117,
-16,
-13,
-7,
-43,
-79,
77,
100,
84,
76,
120,
-118,
-43,
98,
74,
-123,
28,
-50,
-124,
-87,
73,
81,
0,
52,
105,
18,
26,
53,
-97,
-13,
42,
25,
-61,
-87,
44,
75,
-71,
-111,
-47,
-118,
71,
-4,
4,
33,
4,
-98,
71,
80,
38,
-102,
56,
-127,
-3,
115,
52,
-122,
52,
35,
-103,
41,
100,
99,
35,
57,
-22,
-4,
-103,
46,
-72,
-113,
-90,
-106,
88,
67,
109,
-74,
-103,
125,
96,
79,
-16,
-29,
4,
29,
108,
15,
-113,
-92,
-79,
13,
52,
-78,
-125,
-17,
-123,
-112,
112,
-59,
-94,
92,
67,
122,
-69,
-114,
-6
] |
The opinion of the court was delivered by
Johnston, C. J.:
This case involved the right of the Kaw Valley drainage district to the writ of mandamus to compel The Chicago, Rock Island & Pacific Railway Company and the commissioners of Wyandotte county to remove the wreckage of two bridges, one of which was owned by the railway company and the other by the county, and which were washed away in the flood of 1903.
It was contended that the wreckage was in the bed of 'the river, that it obstructed navigation and reduced the carrying capacity of the channel. An order was made by the plaintiff for the removal of the same, which the trial court held could not be enforced by mandamus.
The questions involved are substantially the same as were considered in Drainage District v. Wyandotte County et al., ante, p. 369, just decided, and following that authority the judgment rendered in this case' must be affirmed. | [
-12,
-30,
-68,
-52,
-54,
-118,
16,
24,
83,
-77,
-11,
83,
-115,
-118,
8,
121,
-26,
-3,
-15,
121,
-58,
-73,
39,
-22,
-106,
-45,
-7,
-49,
-65,
-8,
-4,
-58,
76,
48,
10,
-107,
-60,
-64,
-51,
92,
-50,
2,
10,
-23,
81,
-63,
60,
107,
118,
-49,
53,
-113,
-13,
43,
24,
-61,
-87,
60,
-53,
-85,
81,
-111,
-116,
-42,
95,
20,
49,
36,
-102,
-127,
-24,
58,
-112,
49,
21,
-84,
119,
-90,
-122,
-11,
97,
-37,
9,
-14,
98,
67,
53,
-49,
-68,
-104,
12,
-2,
-103,
-90,
-102,
24,
75,
-31,
-106,
-35,
100,
18,
6,
-2,
-17,
-123,
95,
108,
-125,
-113,
-78,
-13,
-117,
44,
-111,
99,
-53,
49,
38,
112,
-124,
-10,
76,
87,
49,
31,
-97,
-68
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action by the payee on a promissory note for $3,000 against Harold A. Williams, Marie S. Williams, his wife, and Carrie F. Williams, whose names appear on the note as makers. The petition is in the usual form for such an action. The two defendants first named defaulted and judgment was rendered against them. No complaint is made of that. Carrie F. Williams filed an answer containing, first, a general denial; and second, it is averred, in substance, that plaintiff was promoter 'of and interested in a bank at Keenesburg, Colo.-; that it induced Harold A. Williams to put in a hardware store at Keenesburg in order to increase the business of the town and the bank, and for that purpose loaned him $3,000 upon a note executed by him and his wife; that she (the answering defendant) had no interest in the business at Keenesburg, had no knowledge of the arrangements made, was not asked to and did not consent to it; that when the note came due, May 4, 1921, plaintiff renewed the loan by taking a renewal note signed by Harold A. Williams and wife, secured by a second mortgage upon their home at Keenesburg; and that,
“About four weeks thereafter, George Eresch, vice president of plaintiff bank, and as such officer, called this defendant to plaintiff’s place of business and told her that said ‘Harold Williams was not meeting with success at Keenesburg,’ and stated ‘that they had renewed his note and hoped that times would get better so that he could pay them’; that ‘he had got to thinking the matter over and was afraid the bank examiner would criticize the bank,’ and then asked her, ‘we would like to have you indorse the note which Harold has given us.! This defendant then stated that she had no interest in the matter, that it was a business transaction entirely between the bank and Harold and she knew nothing about it. That she would not sign the note, because the plaintiff would expect her to pay it, and that if she was compelled to pay such a sum it would take more than she had. Whereupon George Eresch said to her, ‘We only ask you to sign the note as an accommodation indorser for the bank; that will not make you liable on the note, but will save the bank from the embarrassment of criticism of the bank examiner; the bank will hold you absolutely free from any liability to it on the note.1 These statements were made by George Eresch as vice president of plaintiff and as agent for plaintiff, for the false and fraudulent purpose of securing this defendant’s signature on the said paper with the intent to cause her to believe said statements; and this defendant did believe the same and was misled thereby and relied on them, and, believing them to be true, offered her name as an accommodation indorser for the plaintiff on the paper set out in plaintiff’s Exhibit A; all with the intent on the part of plaintiff to secure this defendant’s signature thereon, by representing to her that the plaintiff would not hold her liable thereon; that she was an accommodation indorser without receiving value therefor, for the purpose of lending her name to plaintiff; and the further false and fraudulent intent to later repudiate said promises to this defendant, as it has now done; and falsely and fraudulently seek to make this defendant liable thereon by claiming liability against this defendant as it is now doing in this case— and all without any consideration from the plaintiff to this defendant, and by reason of which the plaintiff did not part with value as to this defendant’s signature, and this defendant is an accommodation indorser on the note sued on in plaintiff’s petition, if her name really appears thereon, and the same is void as to this defendant and without consideration.”
The reply denied generally the second defense, admitted that Harold A. Williams purchased a hardware stock at Keenesburg, and that plaintiff held a second mortgage upon his home, and affirmatively alleged that the answering defendant was interested in, part owner of and a copartner in the ownership of the hardware stock; that the stock was formerly at Beloit, Kan., and while there was owned in part by the answering defendant, was moved to- Keenesburg, after which the answering defendant put an additional $1,000 into the business; that she had full knowledge of the establishment of the store at Keenesburg, personally visited it, and was now estopped from asserting the defense set up.
When the case was called for trial the defendant in the opening statement admitted signing the note and assumed the burden of proof of her answer. The court sustained plaintiff’s motion for judgment upon the pleadings and opening statement, and the answering defendant has appealed.
It will be noted that defendant pleaded a failure of consideration, that she signed the note at the request of the payee and for its accommodation, four weeks after it had been executed by the other makers, and that she was induced to do so by the fraud of plaintiff. With this answer it was error for the court to render judgment for plaintiff on the pleadings.
A failure of consideration is a defense to a promissory note when the suit is by the payee against the maker (R. S. 16-108, 52-305), and this may be shown by parol evidence (8 C. J. 1024), and is naturally a jury question (8 C. J. 1064).
A plea by a defendant, when sued on a promissory note, that he signed or indorsed the same at the request and for the accommodation of the plaintiff ordinarily states a good defense (R. S. 52-306, 52-605 [3]), and this may be shown by parol evidence. (Means v. Bank, 97 Kan. 748, 156 Pac. 701.) This is ordinarily a jury question. (8 C. J. 1064.)
The fraud attempted to be pleaded here is covered by the other defenses pleaded. If the other defenses are good it is not material whether the claimed fraud existed; if the defenses are not good there is no fraud amounting to a defense.
It is argued on behalf of appellee that the answer and pleadings taken as a whole show that appellant signed the note for her own accommodation because of her interest in the hardware business. The answer of appellant does not disclose that; the averments are to the contrary. It is true the new matter set up in the reply might indicate that, but new matter in a reply is regarded as denied without further pleading. (R. S. 60-748; Board of Education v. Shaw, 15 Kan. 33, 41; Ross v. Insurnace Co., 84 Kan. 572, 575, 114 Pac. 1054.) Hence the pleadings presented a controverted issue. Other questions argued need not be specially noted.
The judgment will be reversed with directions to overrule plaintiff’s motion for judgment upon the pleadings and opening statement and to grant a new trial. | [
-78,
108,
81,
-34,
74,
-32,
42,
-102,
32,
-95,
-91,
115,
-23,
-35,
4,
109,
119,
13,
84,
106,
119,
-77,
22,
72,
-46,
-45,
-13,
-43,
-79,
-36,
-10,
86,
76,
48,
-54,
-99,
102,
-62,
65,
-106,
-114,
5,
9,
-59,
-39,
0,
48,
58,
116,
79,
-15,
78,
-13,
44,
60,
78,
45,
46,
107,
127,
-16,
-79,
-101,
-113,
93,
23,
17,
18,
-100,
71,
-56,
10,
-104,
49,
73,
-23,
50,
-90,
-122,
84,
73,
59,
12,
102,
98,
17,
-47,
-23,
-68,
-120,
38,
-6,
-99,
-89,
-16,
72,
-93,
32,
-106,
-99,
-68,
20,
7,
-12,
-18,
29,
29,
-20,
15,
-53,
-78,
-112,
-97,
124,
-98,
11,
-5,
3,
49,
97,
-58,
48,
93,
67,
123,
-109,
-114,
-72
] |
The opinion of the court was delivered by
Johnston, C. J.:
Woodie L. Turner and Myrtle Newkirk were arrested on a charge of the murder of Jack Newkirk, the husband of Myrtle Newkirk. At a preliminary examination both were held for trial in the district court. He instituted a proceeding in habeas corpus in the district court, asking a discharge on the ground that the evidence introduced on the preliminary examination before a justice-of the peace was insufficient to show probable cause for believing that a crime was committed of which he was guilty. The trial court examined the evidence and decided it was sufficient to hold the petitioner for a trial. An appeal from that decision to this court has been taken.
We are in accord with the district court on its measure of the evidence. Whether or not the evidence presented would sustain a conviction at the end of a trial, it is deemed sufficient to hold the petitioner for trial. In his discussion of the evidence petitioner seems to proceed on the theory that we can settle conflicts in evidence and weigh it much the same as is done in an appeal from a conviction. In In re Danton, 108 Kan. 451, 195 Pac. 981, it was remarked:
“It may be said that the same measure of proof is not necessary in a preliminary examination in a trial. An examination is in no sense a trial, in which the guilt or innocence of a person is adjudged, and it is not necessary that the evidence upon which the accused is committed be sufficient to support a conviction. It is necessary that there be proof sufficient to show that a crime has been committed and that there is probable cause to believe the accused is guilty of the crime.” (p. 453.)
In the later case of The State v. Pfeifer, 109 Kan. 232, 198 Pac. 927, it was said:
“There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty.” (p. 233.)
It is not necessary to recount at length the evidence produced, but it may be said that, measured by the appropriate standard, it is enough to show that the offense was committed and probable cause to believe that the petitioner is guilty of the offense.
Some complaint is made as to the regularity of the return made by the sheriff, as to defects in the certification of the complaint, and as to the production of the original commitment, but in none of them do we find anything substantial — anything that deserves serious consideration as grounds for a discharge of the petitioner.
The judgment of the district court is affirmed. | [
-16,
-22,
-20,
-67,
42,
96,
42,
-4,
67,
-95,
32,
115,
-83,
-46,
5,
122,
26,
77,
85,
105,
-42,
-73,
50,
-63,
-74,
-13,
121,
-33,
-105,
-36,
-10,
92,
76,
52,
-62,
-43,
98,
-54,
81,
88,
-114,
-123,
-71,
-61,
98,
98,
36,
121,
-14,
30,
-15,
-34,
-61,
40,
28,
-57,
41,
44,
75,
60,
-48,
113,
-118,
-113,
75,
22,
-77,
38,
-84,
-121,
-40,
46,
24,
-79,
0,
-24,
112,
-122,
-110,
-12,
77,
-119,
8,
102,
98,
33,
29,
-21,
41,
-127,
39,
38,
-73,
-89,
24,
72,
73,
109,
-74,
-7,
101,
112,
46,
108,
-25,
85,
80,
108,
-120,
-57,
-76,
-109,
11,
61,
-70,
91,
-53,
37,
16,
113,
-115,
-30,
92,
-75,
89,
-37,
-98,
-74
] |
The opinion of the court was delivered by
Johnston, C. J.:
Is a corporation in listing its capital stock for taxation entitled to deduct from the valuation thereof government bonds owned by it, and which forms part of the assets of the corporation? The Farmers and Bankers Life Insurance Company had a paid-up capital stock of $275,000. The president of the company listed its property for taxation, placing the valuation of the whole at $285,090. Among other property listed in the return was $75,600 of Liberty bonds. Noticing the inclusion of the Liberty bonds in the return and deeming them to be exempt, the county clerk deducted the amount of the same from the valuation, leaving $209,490, as the amount upon which taxes were payable. On this valuation the company paid the first half of its taxes, to wit: $3,058.55. The county assessor learning that there had been a deduction of the United States bonds made out and filed a supplemental sheet placing the Liberty bonds back on the tax roll, and when the company came to pay the last half of its taxes it found a charge of $5,266.70, instead of $3,058.55, as full payment of the taxes due, and a tender of this amount being refused a tax warrant against the company was issued. To enjoin the collection of the alleged excess of $2,207.57 this proceeding was brought. The injunction was granted and defendants appeal.
The plaintiff is a life insurance company, and one of the statutory provisions relating to taxation reads:
“The property of all life insurance companies organized and operating under the laws of this state shall be subject to taxation for state, county, municipal and school purposes, as provided in the general revenue laws of this state. Each such company or association shall make returns: First, of all the real estate held or controlled by it; second, of the net value of all its other assets or values in excess of the legally required reserve necessary to reinsure its outstanding risks, and of any unpaid policy claims, which net value shall be assessed and taxed as the property of individuals: Provided, That nothing herein shall operate to exempt from such taxation the paid-up capital stock of such companies.” (R. S. 79-324.)
A general provision of the statute in regard to the listing of the capital stock of corporations and the deductions authorized to be made is as follows:
“That no person shall be required to include in the list of personal property any portion of the capital stock of any company or corporation which is required to be listed by such company or corporation; but all incorporated companies, except such companies and corporations as are specially provided for by statute, shall be required to list, by their designated agent in the township or city where the principal office of said company is kept, the full amount of stock paid in and remaining as capital stock, at its true value in money, and such stock shall be taxed as other personal property: Provided, That such amount of stock of such companies as may be invested in real or personal property, which at the time of listing said capital stock shall be particularly specified and given to the assessors for taxation, shall be deducted from the amount of said capital stock: Provided, That mortgages owned by any such company on property, real or personal, in any other state, shall not be deducted: Provided further, That real or personal property in any other state, or county in this state, shall be deducted if it be made to appear that the same has been duly listed for taxation in such other state, or county in this state.” (R. S. 79-310.)
The defendants concede that in the listing of property, bonds of the United States are ordinarily not regarded to be subject to taxation, but they insist that the statute last quoted specifically provides for deductions from the amount of the valuation of corporate capital stock, and that as government bonds are not specifically mentioned in the exceptions the plaintiff was not entitled to a deduction of them. Under the statute the property of life-insurance companies is subject to taxation for public purposes as provided in the general revenue law of the state. Such corporations are required to list or make returns of their property for taxation, and in doing so are to list the full amount of the paid-up capital stock which remains as capital at its true value in money. The stock is to be listed and taxed as personal property, and the public officers are enjoined to tax the stock as other personal property is taxed. Other taxpayers owning personal property, a part of which is government bonds, cannot be required to pay taxes on such bonds and are entitled to have the amount of the same deducted from the listed valuation. On the question at issue the case of Home Savings Bank v. Des Moines, 205 U. S. 503, corresponds so closely in its facts to those in this case that the decision of the federal supreme court is deemed to be controlling here. There an Iowa bank listed its assets for taxation. In fixing the valuation account was taken of the value of the capital stock, surplus and undivided earnings. The listing was done by the bank, and the tax levied on the capital stock was to be paid by the bank as upon corporate property. Among the assets of the bank were United States bonds, the amount of which it insisted should be deducted from the assessed valuation, but the taxing authorities refused to make the deduction and an action to test the validity of the tax was brought. The court held that the United States securities are beyond the taxing power of the state, and the question for decision in that case was whether in point of fact government bonds had been taxed. On an examination of the Iowa statutes relating to such a tax it was decided that the law was enacted and administered upon the theory that the tax was not upon the corporation or its franchise, but it was upon the property of the bank. The course taken by the Iowa officers in imposing the tax was somewhat like that followed in this case. In the opinion it was stated: .
“The valuation was first made-on the exact figures of the capital, surplus, and undivided earnings, deducting the holdings of United States securities. Then, upon being advised that the deduction was erroneous, the assessor corrected the valuation by adding the value of the securities deducted. We therefore conclude that the substantial effect of the law is to require taxation upon the property, not including the franchise, of the banks, and that the value of the shares, ascertained in a manner appropriate to determine the value of the assets, is only the standard or measure by which the taxable valuation of that property is determined.” (p. 512.)
The court ruled that a tax upon the property of a corporation in which United States securities are included is invalid, and cited Bank of Commerce v. New York City, 67 U. S. (2 Black) 620, Weston v. City Council of Charleston, 27 U. S. (2 Pet.) 449, and the Bank Tax Case, 69 U. S. (2 Wall.) 200.'
To the contention there made that the tax was imposed upon the corporation and not its property, Justice Moody said:
“The case at bar cannot be distinguished in principle from these cases. In the first case the tax was on the capital stock at its actual value; in the second case on the amount of the capital stock and the surplus earnings, and in the case at bar on the shares of the stock, taking into account the capital, surplus and undivided earnings. It would be difficult for the most ingenious mind and the most accomplished pen to state any distinction between these three laws, except in the manner by which they all sought the same end — the taxation of the property of the bank. The slight concealment afforded by the omission of the property eo nomine is not sufficient to disguise the fact that in effect it is the property which is taxed.” (Savings Bank v. Des Moines, 205 U. S. 505, 515.)
In the cited case it was contended that a tax on the corporation measured by the value of the shares in it is equivalent to a tax upon stockholders for the shares of stock owned by them. The court said:
“But the two kinds of taxes are not equivalent in law, because the state has the power to levy one and has not the power to levy the other. The question here is one of power and not of economics. If the state has not the power to levy this tax, we will not inquire whether another tax which it might lawfully impose would have the same ultimate incidence. . . . But holding the opinion that the law directly taxes national securities, our duty is clear. If by the simple device of adopting the value of corporation shares as the measure of the taxation of the property of the corporation that property loses the immunities which the supreme law gives to it, then national securities may easily be taxed, whenever they are owned by a corporation, and the national credit has no defense against a serious wound.” (pp. 519, 521. See, also, Farmers Bank v. Minnesota, 232 U. S. 516, Iowa Loan & Trust Co. v. Fairweather, 252 Fed. 605.)
The contention that because the United States securities are not included in the provisos or exceptions mentioned in the statute renders them taxable cannot be sustained. The fact that they were not expressly exempted and that there is no provision for a deduction of the same from a tax statement does not affect the exemption nor justify the taxing authorities imposing a tax on such securities. Under the federal law, which is supreme, a state cannot impose a tax on United States bonds, and this prohibition must be enforced whether there is an express authorization of the tax by the state, an express exemption from it, or that it is not mentioned in the state statute.
There is a suggestion that as an officer of the plaintiff made a verified return showing the value of the stock and assets of the company to the full amount, it is now estopped to claim a deduction. The listing officer did give the full value of the assets of the company, but the statement showed expressly that in the assets which entered into the valuation there were Liberty bonds to the amount of $75,600, thus furnishing the necessary information to the officers for making the deduction. Because the Liberty bonds were so plainly set forth in the statement the county clerk made the deduction, thinking that it was his duty to do so. There is no basis for the claimed estoppel, nor is there anything substantial in the objection that injunction is not a proper remedy to prevent the collection of an illegal tax.
The judgment of the district court is affirmed. | [
-12,
126,
-36,
-20,
-102,
96,
122,
-38,
81,
-32,
-89,
83,
57,
-30,
17,
107,
-12,
61,
-11,
66,
-42,
-73,
51,
-93,
-106,
-69,
-39,
-35,
49,
79,
-26,
68,
76,
38,
-118,
-75,
-86,
47,
-59,
94,
-50,
12,
-70,
89,
-3,
96,
52,
-117,
114,
75,
113,
-36,
-85,
36,
-107,
67,
9,
40,
75,
-79,
-63,
-72,
-86,
-121,
111,
22,
49,
68,
-104,
99,
-40,
44,
-112,
49,
-56,
-24,
127,
-90,
22,
-76,
43,
-99,
8,
102,
103,
17,
21,
-19,
92,
-40,
46,
-54,
15,
-25,
-106,
89,
51,
71,
-73,
-99,
90,
84,
-121,
124,
-18,
84,
-97,
109,
21,
-98,
-58,
-77,
-81,
99,
-104,
3,
-42,
-119,
-78,
97,
-52,
42,
92,
39,
57,
51,
-114,
-50
] |
The opinion of the.court was delivered by
Harvey, J.:
This case involves the priority of liens upon crops grown upon rented premises between the landlord and a mortgagee of the lessee. Plaintiff is the owner of 800 acres of farm, meadow and pasture land in Saline county. Some time in 1916 he leased this land to S. A. Carlson for one year, beginning March 1, 1917, and by the terms of the lease Carlson was to pay plaintiff as rent one-third of the crops grown upon the leased premises, and in addition thereto the sum of $1,200. Carlson went into possession under the lease and paid the rental as agreed. Some time in 1917 a new lease on practically the same terms was executed by the parties for the year beginning March 1,1918. At the expiration of this lease anew lease was not made, but Carlson held over and paid rental in accordance with the terms of his last lease. Some time in 1920 a lease for the real property was executed by the parties for the year beginning March 1, 1921, on terms substantially the same as the former lease. For the cash rental two notes were given of $600 each, due at different times, the last one being due November 1, 1921. That note was not paid when due and a new note was given for it. During the fall of 1921 plaintiff and Carlson talked of a new lease, but Carlson wanted to lease the farm land only, about 200 acres of which he had then plowed for wheat. The plaintiff did not agree to that, but told Carlson that if he remained on the place he would have to remain under the terms of his existing lease. No new lease was written for the year beginning March 1,1922, but Carlson, with the assent of the plaintiff, continued to occupy the premises until about March 1,1923. Carlson delivered to plaintiff one-third of the wheat harvested upon the premises in 1922, but did not pay the $1,200 cash rent for that year, nor the last $600 payment of the year before, and plaintiff sued to enforce a lien for such rent upon Carlson’s share of the wheat harvested on the premises in 1922.
On October 17,1921, Carlson executed to the Planters State Bank a chattel mortgage on “my two-thirds interest” in the wheat then growing on the leased premises to secúre a note for $650. On February 20, 1922, Carlson and wife executed to the same bank a mortgage on “my % interest in all of the growing wheat” on the leased premises (and other personal property) to secure a note for $4,-020.82. The notes secured by the mortgages represented valid ob ligations of Carlson to the bank and the mortgages were duly recorded.
The question presented for our decision is, Do these mortgages give the bank a lien upon two-thirds of the wheat grown by Carlson on the leased premises and harvested in 1922 (one-third of it having been delivered to plaintiff in accordance with the terms of the lease), prior to the lien of the plaintiff under the terms of the lease and the statute, for the cash rental due him under the lease? The answer must be in the negative.
In Bank v. Equity Exchange, 113 Kan. 696, 698, 699, 216 Pac. 278, it was said:
“The landlord’s interest, however, is inchoate with the sowing of the seed in his ground; it attaches to the growing grain to such an extent that he may sue for damage done by a wrongdoer (Sayers v. Railway Co., 82 Kan. 123, 107 Pac. 641); it may be sold before maturity or division of the crop (Howell v. Push, 27 Kan. 702); and it ripens into full ownership with maturity of the crop. This interest the tenant is powerless to encumber or defeat, and he could not maintain an action to recover for its destruction (Sayers v. Railway Co., supra). The statute would be mockery to landlords if at any time after planting and before maturity, even the day before maturity, the tenant could deprive the landlord of his share of the crop; and as between landlord and tenant and persons claiming under the tenant, the landlord’s statutory ownership relates to incipience of the crop.” (p. 698.)
It is argued that since the note given by Carlson to plaintiff for a part of the cash rent for 1921 was not due until November 1 of that year, that the landlord’s lien did not attach until the note was due, and hence that the mortgage given to the bank in October, 1921, became a lien prior to it. There can be no merit in this contention. It may just as well be argued that the lien of a chattel mortgage or of a real-estate mortgage does not attach to the property therein described until the note it is given to secure is due. A landlord would need no lien to secure the payment of cash rentals if the rentals were paid in advance; it is only when the rentals are to be paid at the termination of the lease, or at some time during the term of the lease, that the lien becomes of any value.
In 16 R. C. L. 988 the rule is thus stated:
“The statutory lien of a landlord for rent attaches at the beginning of the tenancy, ... in the case of crops, from the commencement of their growth, whether or not the rent is then due. Such lien does not depend upon a levy, and exists independently of the institution of any proceedings for its enforcement. The remedy by levy, distress or attachment, when available, is simply to enforce a lien already existing.”
To the same effect is 24 Cyc. 1250.
There is some language in the second paragraph of the syllabus and corresponding portion of the opinion of Wyandt v. Merrill, 107 Kan. 661, 193 Pac. 366, 1087, which might be construed as supporting an opposite view, though the specific question now before the court was not considered nor passed upon in that case. To the extent that Wyandt v. Merrill tends to support a view in opposition to that herein expressed, it is disapproved.
It is argued that when the plaintiff took notes for the cash rental to be paid him under the lease, he waived the lien provided for by the lease under the statute. The taking of such notes did not have that effect. While the lien would have existed without the notes, they were simply additional evidence of the amount and the time when it was to be paid, and did not destroy the lien for rent. (16 R. C. L. 1022.)
It is further argued that by taking a renewal note for the amount of the rent payable November 1, 1921, the plaintiff waived any lien he had under the lease under the statute, but such is not the effect. (Gonder v. Dodge, 97 Kan. 562, 155 Pac. 937.) It simply evidenced a modification of their former agreement with reference to the time of the payment.
It is argued that the holding over of the leased premises by Carlson for another year after the termination of the written lease March 1, 1922, constituted a new tenancy, and hence that the plaintiff could not in any event have a lien upon the wheat harvested in 1922 for any portion of the rent under the written lease ending March 1,1922. There is authority under some circumstances for treating a holding over as a new tenancy (35 C. J. 1104), but this is not construed to defeat a landlord’s lien upon the crops sown and to which his lien attached during the terms of the lease and which matured and were harvested during the year of the holding over, and generally where there is an agreement that the holding over shall be under the terms of the former lease it is considered as a continuing tenancy just as though the lease had been written for two years in the first instance. (Towle v. Weise, 64 Kan. 760, 68 Pac. 637.) Here Carlson wanted' to keep a part of the place for another year on terms different from his written lease, but was told by plaintiff that if he continued in possession he would have to continué under the terms of the lease, and he did continue in possession with the assent of the plaintiff. It would not be difficult under this state of facts to hold that what was done amounted to an agreement to hold over under the terms of the lease, but it is not necessary to resort to that, for it is well settled that where a tenant does hold over with the assent of the landlord and no new terms have been agreed upon, the holding over is under the terms of his existing lease. Here the wheat was sown during the term of the written lease. The lien of the landlord attached to it as soon as it was sown, and the tenant was powerless to abrogate or destroy that lien by holding over, hence it continued and could be enforced out of the crop when it matured.
At the time of the trial there was a controversy about a thresher-men’s lien, but that has been paid out of the proceeds of the wheat and is no longer of any consequence. After the threshing of the wheat in 1922 Carlson went into bankruptcy and the wheat was sold and the money impounded to abide the final decision of this case. The money is not sufficient to pay plaintiff and the bank, hence neither Carlson nor his trustee in bankruptcy have any interest in the matter.
There is an intimation on behalf of the bank that the $1,200 cash was for the rent of the pasture and meadow land, and hence would not be a lien upon the crops grown upon the farm land. There were not separate leases, nor does the lease specifically provide that the $1,200 was for the pasture land. The entire 800 acres was leased under dne lease and the rent to be paid was one-third of the crops raised and $1,200 in cash. Hence the cash rent was a lien upon the crops grown upon the premises. (Firstenberger v. McBee, 113 Kan. 110, 213 Pac. 813.)
There are some findings to the effect that Carlson did not use the pasture on the premises during the summer of 1922 except for his own horses and cattle, but that a neighbor put stock in the pasture without charge; and further, that Carlson did not put up the alfalfa on the premises that year, nor put out and cultivate the corn, but that his son did those things. A tenant cannot evade the payment of rent by conduct of this character.
The court found the sum due plaintiff for rent, but held that he had no lien prior to that of the bank. The judgment is reversed in so far as it denies appellant’s lien on the crops attached and the proceeds thereof and directs the payment of the claim of The Planters State Bank from the proceeds of the sale of wheat, and the court is directed to pay the plaintiff the sum found due him out of the money impounded and the balance, if any, to be paid to said bank.
Bxjrch, J., not sitting. | [
-14,
108,
-100,
13,
26,
104,
10,
-102,
81,
-94,
54,
83,
-23,
86,
20,
105,
110,
61,
64,
104,
-122,
-78,
4,
-32,
19,
-5,
-63,
-51,
-71,
109,
-12,
-60,
72,
20,
-126,
23,
-30,
-96,
-55,
28,
14,
-123,
-87,
104,
-35,
16,
52,
43,
20,
72,
37,
47,
-13,
97,
53,
71,
13,
46,
-55,
45,
-63,
-16,
10,
-116,
127,
6,
-110,
98,
-120,
-59,
-56,
46,
-112,
113,
12,
-24,
123,
38,
-106,
116,
47,
-101,
44,
38,
102,
16,
117,
-17,
64,
-104,
47,
-1,
-115,
-90,
-112,
72,
3,
70,
-66,
29,
102,
85,
86,
126,
-3,
-123,
13,
104,
7,
-54,
-44,
-77,
7,
-8,
-106,
67,
-61,
7,
-79,
113,
-113,
-94,
124,
103,
115,
27,
-121,
-103
] |
The opinion of the court was delivered by
Harvey, J.:
This is a suit to partition certain real property. The circumstances giving rise to the controversy are as follows:
James Elward and Bridget Elward were husband and wife, and to this union children were born. Each of them had been married before, and each had children by the former union. Some difficulty arose between them, and in adjusting that James Elward executed to his wife the following instrument:
“Deed — General Warranty.
“This indenture, made this 18th day of October, a.d. 1893, between James Elward, of Reno county, in the state of Kansas, of the first part, and Bridget Elward, his wife, of Reno county, in the state of Kansas, of the second part.
“Witnesseth, That said party of the first part, in consideration of the sum of one dollar and the further consideration of love and affection and other good and valuable consideration, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto said party of the second part, her heirs and assigns, all the following described real estate, situated in the county of Reno and state of Kansas, to wit:
“The northwest quarter (%) of section number twenty-four (24) township number twenty-six (26) range number five (5) west of the 6th P. M. Subject to a certain mortgage of $1,000 which the party of the first part agrees to pay.
“It is agreed by the parties hereto that at the death of the party of the second part the said described real estate shall descend to the children bom of the wedlock of the parties hereto, share and share alike. It is further agreed that the party of the second part cannot sell or in any way alienate the title to said real estate without the consent of the party of the first part, and that said land shall be farmed and occupied by the party of the first part and the product thereof be the joint property of the parties hereto the same as heretofore.
“To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining forever.
“And said James Elward for himself, his heirs, executors or administrators, does hereby covenant, promise and agree, to and with said party of the second part, that at the delivery of these presents he is lawfully seized, in his own right, of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, estates, judgments, taxes, assessments and incumbrances, of what nature or kind soever: Except the mortgage above described.
And that he will warrant and forever defend the same unto said party of the second pait, her heirs above named and described and assigns, against said party of the first part, his heirs and all and every person or persons whomsoever, lawfully claiming or to claim the same.
“In Witness Whereof, The said party of the first part has hereunto set his hand the day and year first above written.”
James Elward signed this by his mark, and his signature was attested by two witnesses, was acknowledged before a notary public, and the instrument was filed for record-.
James Elward died intestate January 7, 1905, and left surviving him his wife, Bridget Elward, his son, John Elward, and his daughters, Alice Biggs, Hannah Schweitzer, and Dora Biggs, children of his marriage to Bridget Elward. (He also left children by his first wife.)
Dora Biggs died intestate in May, 1920, and left surviving her husband Anthony S. Biggs and three minor children, James, Velma and Francis Biggs.
Bridget Elward died intestate May 26, 1922, leaving children by her marriage to James Elward, a son, John Elward, and daughters, Alice Biggs; Hannah Schweitzer, also grandchildren, being the children of Dora Biggs. (She also left children by her first husband.)
Hannah Schweitzer died in June, 1922, leaving her husband, C. E. Schweitzer, and one minor child, Robert Glenn Schweitzer.
This suit in partition was brought by John Elward as plaintiff, and he named as defendants Alice Biggs, O. E. Schweitzer, and Robert Glenn Schweitzer, a minor, Anthony S. Biggs, and James, Velma and Francis Biggs, minors, and also named as defendants all the children of James Elward by his first wife and of Bridget Elward by her first husband. The case was tried to the court, who found the interest of the parties to be as follows:
John Elward, one-fourth; Alice Biggs, one-fourth; C. E. Schweitzer and Robert Glenn Schweitzer, each one-eighth; Anthony S. Biggs, one-eighth; and James, Velma and Francis Biggs, each one-twenty-fourth; and that the other defendants had no interest in the property, and rendered decree for partition accordingly.
From this judgment and decree John Elward, Alice Biggs, C. E. Schweitzer and Robert Glenn Schweitzer have appealed. They contend that the property should have been divided into three parts, instead of four, and that Anthony S. Biggs, James, Velma, and Francis Biggs should not have been decreed as having any interest in the property. This is the only question for our determination. None of the children of James Elward by his first wife nor Bridget Elward by her first husband, nor persons who might claim under them, have appealed'.
Appellants take the position that upon the death of Bridget Elward the title to the real property vested in the three children of James and Bridget Elward, who were then living under either of two constructions which might be placed upon the instrument: First, if the deed at the time it was executed vested title in Bridget Elward with descent to heirs by procreation, the title would not vest until the death of Bridget, and then only in the special heirs then living. Second, if the deed created a life estate only in Bridget, with remainder over to those who could be ascertained upon the death of Bridget and as of that event, then the title vested only in the children born of the wedlock who were then living at that time.
Neither of these contentions is the correct interpretation of the instrument. The instrument conveys the property to the wife without power in her to sell, but to have the use1 of it (jointly with the grantor while he lived) during her life, with the remainder in the children of the parties to the instrument. The class of persons in whom that remainder vested was specifically designated and was known at the time the instrument was executed. While it was possible for the number of individuals in that class to be increased by the birth of other children while James Elward and Bridget Elward were both living, it could not be increased after the death of either of them. The individuals constituting the class in whom the title vested subject to the life use of James and Bridget was definitely known at the time of the death of James Elward. At that time there were four living children of the union of James and Bridget Elward, hence there were four persons who had vested title in the leal property in equal shares, subject to the use thereof by Bridget Elward for her life, and upon her death the real property was subject to partition among those four children or their heirs, if any of them were deceased, and this is the division made by the court.
The judgment of the court below is affirmed. | [
-16,
110,
-75,
124,
-56,
98,
42,
-102,
99,
-125,
37,
87,
-51,
-54,
20,
105,
50,
45,
64,
107,
85,
-78,
79,
-63,
-48,
-13,
-15,
-35,
-71,
93,
-90,
-41,
76,
32,
74,
21,
-58,
-54,
-55,
92,
-114,
69,
11,
68,
-39,
0,
52,
123,
82,
72,
65,
-86,
-13,
45,
61,
-13,
104,
44,
-55,
44,
-47,
-72,
-81,
-123,
94,
3,
-109,
38,
-36,
7,
-56,
-114,
-112,
53,
0,
-24,
123,
-74,
-122,
116,
13,
-117,
9,
54,
103,
48,
101,
-17,
-16,
-104,
14,
-13,
-115,
39,
-77,
88,
115,
72,
-66,
-103,
117,
16,
11,
124,
-25,
5,
28,
108,
13,
-117,
-106,
-111,
-113,
58,
-104,
3,
-13,
-89,
49,
97,
-53,
-94,
93,
71,
58,
-109,
-113,
-8
] |
The opinion of the court was delivered by
Hopkins, J.:
The defendant, who was charged with having stolen some harness, was convicted of grand larceny and appeals.
The defendant first contends that the court erred in permitting the state to indorse additional names on the information after the case was called for trial. He was arrested in November, 1923. The case was tried the latter part of March, 1924. He claims that some of the witnesses whose names were indorsed after the case was called for trial were the most important produced by the state; that the county attorney knew the importance of their testimony and should have earlier indorsed their names on the information. It is a matter resting in the sound discretion of the trial court whether or not the names of witnesses may be indorsed during a trial or after a case is called for trial. Continuances are sometimes caused, at no small cost, by failure of the state to indorse the names of witnesses on the information where the defendant is not prepared to meet their testimony and for that reason is entitled to a continuance. In the instant case, however, no continuance was requested, nor does the defendant appear to have been prejudiced by the action of the court in permitting the names to be so indorsed. Under the circumstances we cannot say that the trial court abused its discretion or that the substantial rights of the defendant were prejudiced. (See The State v. Logue, 115 Kan. 391, 223 Pac. 482, and cases cited; The State v. Buckle, 116 Kan. 51, 225 Pac. 1035.)
The defendant complains of the admission of the harness in evidence. It was shown to belong to C. E. Koontz, while the information laid the ownership in W. 0. Koontz. The evidence, however, disclosed that W. 0. Koontz was the son of C. E. .Koontz; that the son leased a farm, farm machinery and other chattels from the father and had the right to the exclusive use, possession and control of the harness in question. Who had the legal title to it was of no concern to the defendant. (The State v. Bartholomew, 116 Kan. 590, 227 Pac. 366, and cases cited. See, also, Davis v. Sim, 100 Kan. 66, 163 Pac. 622.)
Complaint is made that the court supplemented the examination by the county attorney by a number of questions to various witnesses, and that such examination, considered with other alleged indiscretions, so prejudiced the defendant’s rights as to entitle him to a new trial. It is not beyond the province of the trial judge to' propound such questions to witnesses as may be necessary to elicit pertinent facts in order that the truth may be established. In fact, he should not sit still and see justice defeated through failure to ask pertinent questions. (See 28 R. C. L. 587, 16 C. J. 831; and cases cited by both authorities.) We are unable to say that defendant’s rights were prejudiced by the questions propounded by the trial court.
Error is predicated on the giving of a special instruction after several hours deliberation by the jury. The case was given to the jury about noon. At eight o’clock in the evening, at the request of the jury, they were returned into court and asked the court two questions: First, “Have we a right to recommend a parole?” Second, “Have we a right to recommend mercy?” In answer thereto the court told the jury:
. . That, as to the matter of mercy or clemency you have nothing to do, . . . and the only question for you to decide and determine is . . . the guilt or innocence of the defendant. ... As to the penalty you have nothing to do, and such question should not in any way influence you in arriving at a verdict. As to the matter of parole from any sentence, this is a matter wholly for the court or judge to decide, and of that you have nothing to do. . . . While the court does not pass on any such question until the time comes, personally I believe any court would value the recommendation or suggestion of the jury more than the ordinary citizen or business man, but the court will say that you have the right, after doing your duty under your oath in returning a verdict, to make such recommendations or request as your good, honest judgment dictates.”
After a further deliberation of two hours, the jury found the defendant guilty and “recommended a parole.” It is strongly contended by the defendant that the language, “that after doing your duty under your oath in returning a verdict,” etc., was in effect an instruction to_ find the defendant guilty. We do not so construe the instruction and do not believe the jury were misled by the language. The jury undoubtedly believed that the court meant that they had the right, after doing their duty in returning a verdict, if they found the defendant guilty, to recommend a parole. While the language was not clear, and we cannot put our stamp of approval upon it, we cannot regard it as prejudicial to the rights of the defendant,' and unless it did affect his substantial rights there should be no reversal. (R. S. 62-1718.)
Error is claimed in the giving of certain instructions and the refusal to give others. We have examined the record and conclude that the requested instructions were properly refused, and that the instructions given fairly covered the issues in the case. Other objections raised have been considered, but we find nothing which would warrant a reversal.
The judgment is affirmed. | [
-80,
-24,
-68,
63,
24,
-32,
42,
24,
114,
-121,
32,
82,
-87,
66,
5,
43,
-6,
15,
84,
97,
70,
-74,
55,
-61,
-110,
-13,
88,
-44,
-77,
79,
-90,
-35,
77,
48,
-62,
85,
102,
72,
-59,
90,
-118,
0,
-87,
-51,
74,
104,
48,
49,
-106,
14,
81,
31,
-29,
42,
28,
67,
41,
44,
75,
-75,
80,
112,
-69,
71,
79,
22,
-93,
6,
-104,
-121,
88,
31,
-104,
25,
0,
-8,
115,
-74,
-122,
117,
73,
-101,
-116,
98,
102,
0,
93,
-25,
-92,
-104,
46,
51,
-97,
-89,
-104,
64,
75,
13,
-98,
-99,
99,
50,
6,
116,
-15,
92,
93,
108,
35,
-49,
-106,
-109,
13,
52,
-122,
27,
-61,
1,
48,
33,
-115,
-30,
92,
71,
81,
-101,
-121,
-105
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiff, an attachment creditor, brought this action to recover judgment against the defendant, the sheriff of Ford county, for negligence in failing to hold possession of property attached at the suit of the plaintiff in an action against A1 Bryan for the recovery of damages sustained in an automobile collision. The plaintiff recovered judgment for $300, and the defendant appeals.
There was evidence which tended to prove that upon receipt of the order of attachment the defendant sheriff, with one of his deputies, went to a garage where a damaged automobile belonging to A1 Bryan was being repaired, in Dodge City, levied the order of attachment on the-automobile, appraised it at $300, and left it in charge of those who were making repairs on it at the request of A1 Bryan; that the automobile was so damaged it could not be moved by its own power; that the deputy sheriff requested the men in charge of the garage to keep the automobile and not let anyone take it away without a written order from the sheriff; that the garage manager responded “All right”; that the automobile was whát may be termed a house-automobile; that, without the knowledge of the sheriff, A1 Bryan continued to go into it and sleep there until it was so repaired that it could be taken away, when it was taken away by him without the consent of the defendant or of the manager of the garage; that the sheriff passed the car every day and noticed it, but did not do anything to take the car away from thé garage; that after the car had been taken away the sheriff was unable to recover it; and that judgment in the attachment action was rendered against A1 Bryan for $400.
The action against the sheriff was tried to a jury. At the close of the evidence the court instructed the jury to return a verdict in favor of the plaintiff for $300, the appraised value of the car.
The defendant contends that the evidence should have been submitted to the jury under proper instructions, and that it was error for the court to instruct the jury to return a verdict in favor of the plaintiff.
35 Cyc. 1670 says:
“A sheriff is held to the same degree of prudence, vigilance and care with respect to property under seizure and in his custody as a careful and prudent man would be likely to exercise over his own property; but he is not liable as an insurer, and hence if the property in his possession or under his control is lost, destroyed or damaged without neglect on his part he is not liable.”
The rules here declared are supported by 24 R. C. L. 938, 939, and a note in L. R. A. 1915 A 193. Reasonable diligence is all that is required of a sheriff. What is reasonable diligence on the part of a sheriff in holding attached property is ordinarily not a question of law, but a question of fact to be determined by a jury under proper instructions. The evidence in this case did not warrant the trial court in instructing the jury to return a verdict in favor of the plaintiff. The evidence should have been submitted to the jury under proper instructions.
The judgment is reversed, and a new trial is granted. | [
-16,
100,
112,
-84,
26,
96,
42,
88,
-63,
-125,
55,
83,
-85,
-53,
1,
107,
-12,
63,
117,
104,
-13,
-77,
3,
107,
-14,
-77,
-71,
-59,
-77,
104,
-28,
84,
77,
48,
-54,
-107,
6,
8,
-59,
86,
-50,
-124,
57,
105,
-55,
-120,
52,
42,
20,
75,
85,
-113,
99,
46,
56,
-61,
105,
40,
-53,
41,
-64,
-48,
-53,
7,
95,
16,
-111,
4,
-98,
35,
-8,
42,
-112,
49,
0,
-7,
123,
-74,
-126,
-12,
109,
-101,
8,
102,
99,
17,
21,
-53,
-8,
-120,
14,
-2,
15,
-89,
-103,
88,
11,
9,
-74,
-99,
107,
114,
6,
-2,
-21,
5,
93,
100,
7,
-53,
-110,
-79,
-115,
48,
26,
72,
-53,
-95,
48,
113,
-51,
-16,
93,
69,
27,
-101,
-121,
-78
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued the defendants for $5,699.35, items alleged to be due to plaintiff from defendant Dreiling as treasurer of Ellis county, which amount he had failed to turn over to his successor in office. The defendant company was the surety on the bond of Dreiling as county treasurer. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
Findings of fact and conclusions of law were made as follows:
“During the term of Fred N. Dreiling as county treasurer of Ellis county, Kansas, many errors were made by him in the keeping of his records, from time to time, both for and against him.
“There is no evidence that Dreiling ever made any false entry in the books, or that he, at any time, ever converted any of the funds of the county or made an erasure or change in the records to cover up anything. The items which go to make up the shortage claimed consist of erroneous entries. They did not affect' the county funds or assets in Dreiling’s hands. He gained nothing by them nor did the county lose anything thereby. They were matters that could, and perhaps were, corrected later. The city of Ellis account was an erroneous entry or mistake, which was corrected to the satisfaction of both the city of Ellis and the board of county commissioners of Ellis county, Kansas. He carried in his hands an excess of the balance called for in his books, to the amount of $1,263. This was accounted for and turned over to his successor in office.
“He kept by order of the board of county commissioners accounts as treasurer in nine (9) different banks of Ellis county, and it is nowhere shown that he ever gave a check drawn.on these funds or accounts, for his own or private account or use.
“During his terms of office he carried his balance on his daily statements, and also kept a memoranda of the amounts by which the assets held by him as treasurer varied the amount called for by this balance.
“At the close of each year he made an annual settlement with the county commissioners, as required by law.
“At the close of Dreiling’s term of office his daily balance called for assets in the amount of $49,811.15. He had in his hands as treasurer funds in excess of that amount $1,263. All of these assets were turned over to his successor, including the amount called for by his balance and the amount held by him in excess thereof, such excess being caused by the errors in the book before referred to.
“Dreiling, as such treasurer, kept the county funds separate, never mingled his funds with those of the county; properly deposited all money of the county he received with the county funds, and expended such money only for proper county purposes. All monies coming into his hands as treasurer was either properly expended or turned over to his successor in office and accounted for.
“conclusions of law.
“Judgment should be rendered for the defendants for their costs.”
We quote from the brief of the plaintiff:
“The court in making its findings of fact, refused to make any of the findings requested by the plaintiff as to the specific items alleged to constitute shortage, but simply found in a general way that the defendant had accounted for all the money in his hands.
“The court found, however, in addition to this, that his daily statement called for assets in the amount of $49,811.15, and that he had in excess of that amount, $1,263,- which he turned over to his successor in office. We particularly desire to call the court’s attention to this finding, as we think it shows conclusively that the plaintiff was entitled to judgment for the full amount sued for, for the reasons hereinafter set out.”
The court found that at the close of Dreiling’s term of office his daily balance called for assets in the amount of $49,811.15; that he had in his hands in excess of that amount, $1,263; and that Dreiling turned over to his successor all of these assets, including the amount shown by the daily balance and the excess of $1,263. The evidence, as abstracted, does not show that amount of assets turned over; it shows that assets amounting to $48,151.15 only were delivered to his successor when the latter took charge of the office, and that a check for $1,263 was later given the successor to cover the excess amount in Dreiling’s hands as treasurer. There was no evidence to show that assets amounting to $49,811.15 were turned over. That part of the finding was not supported by evidence.
The findings of fact contain the following statement: “They were matters that could, and perhaps were, corrected later.” This statement concerned the errors in bookkeeping that had been made. Of this statement, one part may be stated as follows: “They were matters that could have been corrected later.” ' That does not amount to a finding of fact; it was a statement of what could have been done, but not of what had been done. The other part of the statement, “They were matters that . . . perhaps Were corrected later,” does not state a fact; it states a possibility, nothing more.
The finding that the defendant turned-over to his successor $49,-811.15, and the finding, or rather statement, that the errors were matters that could have been and perhaps were corrected later, must have entered into the judgment.
The evidence for the plaintiff consisted almost wholly of the books kept by defendant Dreiling while he was county treasurer. Those books showed that in 1917, in the collection of taxes, penalties were collected from taxpayers amounting to $1,487.19. The books also showed that in the collection of taxes for 1917 there were rebates to taxpayers who paid their taxes on or before December 20 amounting to $4,361.41. Dreiling charged himself with the amount collected, and no more. He entered on the book an amount equal to the total of the rebates as disbursements made by him. The penalties and rebates appear to have been carried on the books in that manner until the time the funds of the office were turned over to his successor. The defendant Dreiling received the penalties, but he did not receive the rebates. It was improper for him to enter the rebates as disbursements, because he did not make any disbursement of them, and should not have so entered them. By so doing he erroneously depleted his receipts by the amount of rebates shown as disbursements. In balancing the books between the county treasurer’s office and the county clerk’s office, the rebates should have been considered, and credit should have been given by the county clerk to the county treasurer for the rebates; but the county treasurer should not, under disbursements, have received credit for those rebates. He did not receive the money and he did not pay it out.
The other large item concerned election expenses for the general election of 1918. The defendant paid out on warrants regularly issued for general election expenses $2,249.83, for which amounts he took credit against the county; but his books showed that he also took credit for moneys disbursed to the several townships and cities as election expenses to the amount of $2,173.73. The county treasurer did not pay the election expenses twice. His books show that he did. This mistake was carried on the books by Dreiling until settlement was made with his successor.
One finding of the trial court states, and that finding was supported by evidence, that defendant Dreiling made mistakes in his books both for and against himself. So many mistakes were made that they almost destroyed the probative force of the books, but they could not be rejected; .they were competent evidence.
Defendants argue that the plaintiff did not show that Dreiling appropriated to his own use any of the money represented by the mistakes in bookkeeping. In response it may be stated that the defendants did not show, except by oral evidence, that Dreiling did not take the money represented by the erroneous entries. The defendants should not have rested with the oral testimony, but should have shown wherein and how the erroneous entries were corrected or offset by other entries and that Dreiling did not misappropriate the money claimed by the plaintiff.
The rule of law governing the introduction of evidence under such circumstances is found in 20 C. J. 482, where, in discussing the law of criminal embezzlement, the writer says:
“As in other criminal cases, the burden of proving all the elements of the crime rests on the prosecution; but where the state has made a prima facie case of embezzlement, as by proving facts which give rise to a presumption in its favor, it becomes incumbent upon defendant to adduce evidence in denial or explanation of the incriminating circumstances.”
The rule is the same in civil actions as it is in criminal cases, except that in criminal cases facts must be proved beyond a reasonable doubt.
The plaintiff argues that it is entitled to judgment for the amount sued for in this action. This argument cannot be sustained. There were many errors made by the defendant in keeping the books of his office. Many of those errors were shown by the evidence for the plaintiff. To sustain this argument the evidence must have shown that the mistakes resulted in Dreiling’s getting the money represented by those mistakes and appropriating it to his own use. Mistakes do not show that he misappropriated the money. If the plaintiff had desired that judgment be rendered in its favor by this court, it should not have rested with the introduction of the books; it should have gone ahead with explanation of those books and have shown by them that the defendant actually appropriated to his own use the money represented by the mistakes. The books made a prima facie case for the plaintiff, but when the trial court made findings of fact that almost completely exculpated Dreiling from any wrongdoing, judgment should not be rendered for the plaintiff on a prima facie case made by books that are so erroneous as to have almost no probative force.
The plaintiff rested on making a prima facie case as shown by the books. The defendants rested on their oral testimony. The truth could have been ascertained by a proper examination of the books. On the evidence, the trial court found for the defendants and rendered judgment in their favor. That judgment would not be disturbed except that material and necessary findings of fact were not supported by evidence.
Because material and necessary findings of fact were not supported by evidence and because the action was not properly tried, it should be tried again. On another trial the plaintiff should not rest on a production of the books without showing that the errors made were not in some manner corrected or offset by other mistakes. The plaintiff should establish that Dreiling has money which belongs to the county. The defendants should not rest on oral testimony tending to prove that Dreiling did not take any of the money belonging to the county. Each side should seek to establish the truth.
The judgment is reversed and a new trial is directed. | [
-16,
-20,
-23,
-35,
26,
-32,
42,
10,
73,
-127,
-75,
83,
-23,
-54,
4,
127,
-26,
91,
-12,
106,
-25,
-73,
15,
-21,
-46,
-78,
-119,
-43,
-77,
73,
-12,
-43,
76,
48,
42,
-107,
70,
34,
-57,
-36,
-114,
0,
8,
80,
-39,
0,
48,
37,
50,
75,
113,
44,
115,
42,
60,
107,
73,
44,
95,
-71,
64,
-15,
-29,
-123,
93,
23,
17,
36,
-102,
71,
72,
46,
-104,
114,
-80,
-24,
122,
-90,
-122,
116,
41,
-71,
13,
46,
98,
49,
37,
-19,
-84,
-120,
6,
-41,
29,
-89,
-106,
88,
99,
47,
-74,
-99,
117,
82,
6,
-12,
-24,
-107,
25,
108,
-109,
-38,
-42,
-109,
13,
119,
-102,
-117,
-33,
-123,
54,
113,
-51,
34,
92,
71,
56,
27,
-18,
-47
] |
Foth, J.:
Plaintiff Wilbur Goff brought this action to recover disability benefits under a group life, sickness and accident policy issued by the defendant Aetna Life Insurance Company. The case was tried to a jury. At the conclusion of all the evidence the trial court ordered dismissal, or in the alternative a directed verdict, based on its finding that plaintiff had not timely filed his proof of loss. Plaintiff has appealed.
Plaintiff was an employee of the Boeing Company for some 25 years, reaching supervisory status, and his coverage under the group policy arose out of that employment. His evidence indicated that perhaps as early as 1967 and certainly by the summer of 1969 he began to experience forgetfulness and difficulty in concentrating. In August, 1969, he was put on sick leave with a diagnosis from a general practitioner of “duodenal ulcer, active, abnormally nervous.” Six months later he was released to go back to work, but when offered a nonsupervisory job he elected to take early retirement (at age 55) instead.
Plaintiff’s employment and the payment of his premiums under the policy ceased as of February 12, 1970. Plaintiff’s condition slowly deteriorated and in early 1973 he was referred to a neurologist. After extensive testing his condition was diagnosed as Alzheimer’s disease. This is a rare, untreatable, terminal disease of the brain, marked by a slow loss of memory and intellectual power extending over a period of 4 to 20 years. Its onset is described as subtle and insidious, difficult to detect and frequently mistaken for other illnesses. The victim and his family, it is said, tend to compensate for and cover up the victim’s deficiencies rather than to seek their cause.
The diagnosis was made in plaintiff’s case on or about March 30, 1973. He filed his proof of loss with the defendant company on June 11, 1973. It is the company’s position, sustained by the trial court, that this was too late because it came almost three and one-half years after his coverage under the policy had terminated.
Limitations on filing proof of loss were contained in two sources: the policy itself and the applicable Kansas statutes. The policy provided:
“Upon receipt by the Insurance Company at its Home Office, either before the discontinuance of premium payments for an employee’s insurance, or within twelve months thereafter, of due proof that the employee, while insured under this Title, before attaining age sixty-five and before termination of employment with a Participant Employer, has become permanently and totally disabled, as hereinafter defined,
(1) the Insurance Company shall begin paying to the employee a monthly income in the amount hereinafter provided, and
(2) [provided for continuation of life insurance]
(3) [provided for payment of contributions for medical expense coverage].”
The policy, it may be seen, flatly required proof of loss within twelve months after premium payments stopped, or in this case not later than February 12, 1971. The June, 1973, filing was clearly out of time under the policy.
This does not end the inquiry, however, and the trial court did not base its decision on the policy terms. Group sickness and accident policies are governed by K.S.A. 40-2209. The trial court and the parties agree that insofar as it provided monthly benefits the policy here was a group sickness and accident policy and subject to that section. Subsection (B) (3) of 40-2209 commands that each such policy shall contain provisions covering, among other things, “notice of claim, proofs of loss and claim forms.” It goes on to say: “Such provisions shall not be less favorable to the individual insured or his beneficiary than those corresponding policy provisions required to be contained in individual accident and sickness policies.”
The reference is to the uniform policy provisions required of individual policies by K. S. A. 40-2203(A). That section, so far as applicable here, requires each policy to contain:
“(5) A provision as follows: ‘Notice of claim-. Written notice of claim must be given to the insurer within twenty (20) days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. . . .’
“(6) A provision as follows: ‘Claim forms: The insurer, upon receipt of a notice of claim, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not furnished within fifteen (15) days after the giving of such notice the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, the character and the extent of the loss for which claim is made.’
“(7) A provision as follows: ‘Proofs of loss: Written proof of loss must be furnished to the insurer at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety (90) days after the termination of the period for which the insurer is liable and in case of claim for any other loss within ninety (90) days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required.’ ”
These provisions, it will be noted, are somewhat more favorable to the insured than those of the policy in that the time limits otherwise imposed are waived if compliance is not reasonably possible. A notice of claim is timely under (5) even though more than twenty days have elapsed so long as filed “as soon thereafter as is reasonably possible”; a proof of loss is timely under (7) if filed “as soon as reasonably possible,” subject only to the one year limitation of the last sentence. Hence, under the express terms of 40-2209 (B) (3) the policy provisions must yield to the more favorable provisions of the statute, as the court below found. Cf. Canal Insurance Co. v. Sinclair, 208 Kan. 753, 494 P. 2d 1197.
The trial court, in finding the proof of loss was not timely here, cited subsection (7). Presumably it relied on the last sentence, and in particular on the requirement that proof of loss be furnished “in no event . . . later than one year from the time proof is otherwise required.”
The company, arguing in support of the trial court’s conclusion, says that the “time proof is otherwise required” is, at the latest, the one year from termination of employment permitted by the policy, or February 12, 1971. Adding the statutory one year to that, the company arrives at a final deadline for plaintiff’s proof of loss of February 12, 1972. Hence, it says, the trial court was clearly right in saying that June, 1973, was too late. (The company might concede an additional 90 days under the statute, but this would not affect the outcome.)
Plaintiff, on the other hand, argues that subsections (5), (6) and (7) of the statute are to be read and applied sequentially; first a notice of claim is filed; then the company must furnish claim forms; and only then is the proof of loss required. If his first step was timely, he says, so must his final step be timely since it followed promptly after claim forms were furnished. He therefore devotes a good deal of his brief to demonstrating that his notice of claim was filed “as soon [after the 20 days] as reasonably possible.” In support he cites cases holding that where it is not reasonably possible for an insured to know that he is disabled or that his disability is caused by a covered occurrence a notice of claim is timely if filed within a reasonable time after he becomes aware of the facts giving rise to coverage. E.g., Beeler v. Continental Casualty Co., 121 Kan. 642, 249 Pac. 579; Hawthorne v. Protective Association, 112 Kan. 356, 210 Pac. 1086; Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293.
The company does not quarrel with the rule of those cases as applied to a notice of claim. Neither does it contend that a jury might not reasonably find plaintiff’s notice of claim here to have been timely, i.e., given as soon as reasonably possible. Rather, the company like the trial court focuses entirely on the proof of loss provision, relying on its “in no event” language. Our own analysis, then, assumes that plaintiff’s notice of claim might have been found timely under subsection (5), and we turn to the proof of loss requirements of subsection (7).
We must reject at the outset plaintiff’s argument that subsection (7) imposes no limitation at all other than the “reasonably possible” standard. That argument ignores the “in no event” language, which we are not free to do. “[W]e are not permitted under the rules of statutory construction to treat any part of a statute as superfluous.” (Driscoll v. Hershberger, 172 Kan. 145, 155, 238 P. 2d 493.) Instead we are bound by “the oft-repeated rule that in construing a statute courts should attempt to give effect to every word and clause.” (State, ex rel., v. Consumers Cooperative Ass’n, 163 Kan. 324, 343, 183 P. 2d 423.) We must, therefore, ascribe some meaning to the legislative declaration that proof of loss must be filed “in no event . . . later than one year from the time proof is otherwise required.”
We do not, however, construe the limitation in the same way the company does, and that is because we start with a different reference point. The outside limitation for filing proof of loss is one year from “the time proof is otherwise required.” The company looks to the policy to determine when proof is “otherwise required”; because the limitation is found in the second of two sentences in a statute prescribing the time for filing proofs we look to the statute itself. We think that the time proof is “otherwise required” is the time prescribed by the statute for the normal case.
The first of the subsection’s two sentences, prescribing the ordinary time for filing proof, differentiates between two different types of losses: those of a continuing nature for which periodic payments are due under the policy; and other losses, for which presumably lump sum payments are due. We are dealing here with a loss of the former type, i.e., a continuing disability for which the company is to pay monthly benefits. The statutory policy provision requires proof of loss “in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety (90) days after the termination of the period for which the insurer is liable.”
In our view, the “time proof is otherwise required” for computing the one year limitation found in the last sentence of the subsection is fixed by the phrase in the first sentence, “within ninety (90) days after the termination of the period for which the insurer is liable.” Our problem then becomes one of determining when the ninety days begin, or what is meant by “the period for which the insurer is liable.”
The phrase speaks of a “period” and applies only in a case where “any periodic payment” is due under the policy. Where, as here, payments are due monthly it seems inescapable that each month for which a payment is due is a “period for which the insurer is liable.”
If that is so, and we are convinced it is, then the statutory ninety days for filing proof of loss commences at the end of each month during which the insured is disabled. That is the time when proof is “otherwise required” by the statute to be filed, and marks the beginning of the one year maximum time for filing.
Such a construction makes the statutory policy provision, in effect, a self-contained special statute of limitations. As each month after the first 90 days plus one year goes by, a monthly benefit is barred. It may seem harsh to require the doing of an act not reasonably possible, on penalty of forfeiture, but that appears to be the result of the “in no event” language. Compare, e.g., the limitations on tort actions found in K. S. A. 60-513 (b) and (c). Under both those provisions an action for personal injuries may be barred before the fact of injury becomes “reasonably ascertainable to the injured party.” In the one case the claim is barred within ten and in the other four years from the act giving rise to the injury, regardless of the injured party’s lack of knowledge.
Our construction, barring each installment in turn, is consistent with the manner in which statutory limitations are generally applied to disability insurance policies. Thus, in Everhart v. State Life Ins. Co., 154 F. 2d 347 (6th Cir. 1946), the insured was injured and received installment payments under his policy from 1922 to 1925. He then attempted to go to work and benefits were stopped. More than seventeen years later (in 1942) he sought benefits which had accrued from 1925 to the policy’s maturity in 1939. In response to the insurer’s statute of limitations defense the court held:
“The applicable statute of limitations is Section 11221 of the General Code of Ohio, which provides: ‘An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued.’ The statute would bar only any particular disability-benefit instalment if an action for its recovery was not brought within fifteen years from the date it became due. . . . The right to sue on each instalment accrued when the monthly disability payment fell due and was not paid. [Citation omitted.] Inasmuch as the right of action on each separate instalment accrued only upon default of payment of that instalment, the bar of the statute of limitations runs separately against each separate instalment. . . .
“ . . . We are of firm conviction that the Ohio statute of limitations bars no benefit instalments payable to appellant, except those which fell due more than fifteen years before this action was brought on August 20, 1942.” (p. 356. Emphasis added.)
In a similar situation the Arkansas Supreme Court stated:
“[I]n policies of insurance similar to the one under consideration and which provides a monthly indemnity to the insured for life in the event of total and permanent disability incurred during the effectiveness of the policy, suits may be instituted, prosecuted and maintained by the beneficiary at any time after receipt of such injury, but the aggregate recovery is limited to a five year period immediately prior to the filing of such suit.” (Aetna Life Ins. Co. v. Langston, 189 Ark. 1067, 1070, 76 S. W. 2d 50 [1934].)
See also, Aetna Life Ins. Co. v. Moyer, 113 F. 2d 974 (3d Cir. 1940); Alsup v. Travelers Ins. Co., 196 Term. 346, 268 S. W. 2d 90 (1953); Pacific Mutual Life Ins. Co. v. Jordan, 190 Ark. 941,82 S. W. 2d 250 (1935); Columbian Mut. Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225 (1938); Universal Life & Acc. Ins. Co. v. Shaw, 139 Tex. 434, 163 S. W. 2d 376 (1942); Frederick v. United States, 280 F. 2d 844 (U.S.Ct.Cl. 1960).
Those cases,'to be sure, do not deal directly with proof of loss requirements. They do, however, stand for the proposition that an obligation to make periodic payments is a severable obligation, so that for limitations purposes each period for which a payment is due is considered separately. Kansas has specifically recognized and applied the principle, particularly in the area of child support payments. See, Leonard v. Kleitz, 155 Kan. 626, 127 P. 2d 421; Riney v. Riney, 205 Kan. 671, 473 P. 2d 77; Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561.
The result is that if plaintiff became permanently disabled while covered by the policy each subsequent month of such disability became a “period for which the insurer is liable.” He had ninety days from the end of each month in which to file a proof of loss, if that was “reasonably possible.” If it was not, however, he had additional time not to exceed one year from the end of the ninety days. Applying that construction here, the latest date to file for February, 1972, was May 29, 1973 (i.e., 90 days plus one year from the end of February). Since the proof of loss was filed here in June, 1973, the earliest period plaintiff could reach was March, 1972. (The company has the right under the policy to require proof of the continuance of disability once it is established, but that issue is not involved here.)
We do not, of course, determine the merits of plaintiff’s claim, but only that it was erroneously taken from the jury. On retrial it will be up to the finder of fact to determine whether plaintiff became totally disabled while coverage still existed, and whether he filed his notice of claim and proof of loss as soon as was reasonably possible. On the record before us those appear to be submissible issues.
Plaintiff also asks for reinstatement of his life insurance and health insurance benefits under the policy. As to the latter the policy required the insurance company, at the end of each month of disability, to make payment of the insured’s “contribution” (i.e., premium) under a separate medical expense policy issued by it. Each such payment, in our view, would be a “periodic payment contingent upon continuing loss” under the statute. Each is thus subject to the same principles as govern the disability income benefits discussed above.
The pure life insurance aspect of the policy, however, stands on a different footing. As to it the policy provides, in effect, for a waiver of premiums conditioned on proof of loss as required by the policy. There are no “periodic payments” which might be covered by 40-2203 (A) (7), and there are no other statutorily required uniform policy provisions which might supplant those of the actual policy. We therefore conclude that the policy provision governs and, there having been no compliance, the life insurance is no longer in effect.
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion. | [
-80,
108,
-36,
-100,
25,
-96,
120,
-38,
113,
-124,
55,
81,
-19,
-31,
85,
111,
-9,
45,
81,
98,
-9,
51,
51,
2,
-42,
-65,
-5,
-59,
-72,
79,
-28,
-44,
76,
120,
-118,
-43,
-30,
-62,
-59,
24,
-36,
6,
-67,
-23,
57,
16,
48,
111,
-48,
77,
81,
-98,
111,
42,
55,
67,
8,
42,
90,
-88,
-29,
-31,
-117,
5,
-19,
16,
-93,
-58,
-102,
79,
-48,
14,
-98,
-79,
40,
-72,
50,
-74,
-58,
52,
35,
-103,
-124,
98,
-30,
-91,
16,
-91,
-56,
8,
23,
20,
63,
-123,
-77,
33,
57,
15,
-68,
-99,
112,
20,
5,
88,
-4,
84,
29,
32,
11,
-98,
-106,
-77,
-49,
108,
-100,
-85,
-17,
-85,
34,
83,
-33,
-90,
92,
7,
115,
31,
82,
-106
] |
Parks, J.:
This is an appeal from a judgment of the trial court denying a writ of habeas corpus to the petitioner, Terry J. Brodie.
Petitioner alleges that he is being restrained of his liberty within the meaning of K.S.A. 60-1501 in that the Secretary of Corrections has refused to allow him credit on his Kansas sentence for the time he spent in confinement in the state of California. Petitioner accrued the time in the foreign jail following his escape from the Kansas State Penitentiary (KSP) at Lansing, Kansas, where he is presently confined.
Petitioner plead guilty to second degree murder in Wyandotte County, Kansas, in November 1969. Thereafter he was sentenced and transferred first to the Kansas State Industrial Reformatory at Hutchinson, Kansas, and then to KSP, where he escaped on September 13, 1973. The following day a complaint was filed charging him with the crime of escape and a warrant was issued by the then Magistrate Court of Leavenworth County, Kansas.
While on escape status, the petitioner was shot and wounded by the Kansas City, Missouri, police as he was being arrested for attempted burglary. Following this arrest he was taken for treatment to General Hospital, from which he subsequently escaped on January 3, 1974. Petitioner remained at large until the Kansas City, Missouri, police recaptured him on March 19, 1974.
With the acquiescence of the Kansas authorities, petitioner was extradited from Missouri to California where murder charges were pending against him. The crimes allegedly occurred after petitioner’s escape from KSP. Kansas officials were advised by a telephone call from Kansas City on May 31, 1974, that petitioner had been turned over to the California authorities and that the Kansas warrant had been sent to California along with the petitioner.
Following the petitioner’s arrival in California, a preliminary hearing was held on the two California murder charges. Subsequently a dismissal was entered without prejudice on July 31, 1974, because the preliminary hearing had not occurred within the time specified by law. Notwithstanding a notation in the court records that petitioner was at that time “released,” there is a question whether petitioner remained in custody. From the record presented it appears that twenty-six days elapsed between this dismissal and the refiling of the murder charges on August 26, 1974.
After a series of continuances and other events not germane to this appeal, the California case was dismissed on December 18, 1975, for lack of prosecution. However, the petitioner was not returned to the Kansas State Penitentiary until April 14, 1976, a lapse of one hundred and eighteen (118) days from the dismissal.
Petitioner argues that he is entitled to credit on his Kansas sentence (the 1969 second degree murder sentence) for all the time he spent in the California jail from and after his May 31, 1974, extradition from the state of Missouri.
The trial court held that the petitioner is not entitled to credit on his sentence for any of the time he was absent from the Kansas State Penitentiary on escape status; that the petition failed to state a claim upon which relief can be granted in a habeas corpus proceeding; and that a writ should not be issued.
The petitioner appeals to this court claiming that the petition on its face was sufficient to show that the petitioner-appellant had been wrongfully restrained.
If a convict escapes or is released on bail, he is not entitled to credit on his sentence for the time of his absence. 21 Am.Jur.2d, Criminal Law, § 545, p. 521; State ex rel. Siehl v. Jorgenson, 176 Minn. 572, 224 N.W. 156. The record in this case shows that from the time of his escape on January 3,1974, until he was returned to KSP on April 14, 1976, petitioner’s confinement in various jails outside the state of Kansas was always the result of either charges filed by a foreign jurisdiction or the Kansas warrant issued charging him with the new and distinct crime of escape. At no time during this period was he confined solely as a result of his status as one convicted of a Kansas crime. Accordingly, we find no error in the trial court’s ruling denying the petitioner credit on his original sentence — the 1969 second degree murder charge.
Having determined and affirmed the trial court’s ruling denying credit on petitioner’s second degree murder sentence, we now turn our attention to the escape charge referred to in the record. It is not clear from the record presented as to whether the petitioner was prosecuted and sentenced on the escape charge following his return to Kansas.
K.S.A. 21-4614 provides that a sentence shall be computed from a date to allow for the time which defendant has spent in jail pending the disposition of defendant’s case. Justice Prager, speaking for our Supreme Court, said that “it is obvious the legislature intended the word ‘jail’ in K.S.A. 21-4614 be given its commonly understood meaning as any place of confinement and not just a local bastile.” State v. Mackley, 220 Kan. 518, 519, 552 P.2d 628. (Emphasis added.)
If Mr. Brodie was (1) prosecuted and sentenced on the escape charge following his return to Kansas; (2) held during the period of July 31, 1974, to August 26, 1974 (when the California charges were first dismissed and refiled) and from December 18, 1975, to April 14, 1976, solely on the Kansas escape warrant (provided there was no concurrent Missouri warrant filed with the California authorities during these periods); and (3) not released on bond during these periods, it is our opinion that credit for one hundred and forty-four (144) days should be granted to petitioner only on his sentence for escape. The 1973 amendment to K.S.A. 21-4614 making the jail time credit provisions mandatory rather than discretionary discloses legislative intent to give criminal defendants sentenced to incarceration credit for all time spent in custody on the chhrge for which they are sentenced. The statute places no limits, conditions, or discretion upon the grant of credit. State v. Thom, 1 Kan.App.2d 460, 570 P.2d 1100.
By way of emphasis, we again state that under the circum stances of this case, no credit of time should be granted to petitioner on his original Kansas sentence for second degree murder.
This case is remanded to the trial court with directions to determine and order the allowance of credit of time for the sentence of escape only, if applicable, in accord with this opinion. As modified, the judgment is affirmed. | [
80,
-24,
-7,
62,
10,
-31,
43,
16,
99,
-77,
100,
83,
-19,
73,
5,
123,
121,
101,
117,
121,
-23,
-105,
119,
-55,
-14,
-5,
89,
-43,
-13,
91,
-4,
-44,
72,
-64,
-118,
85,
70,
72,
63,
28,
-114,
3,
-103,
-48,
81,
2,
40,
107,
24,
14,
-79,
30,
-13,
42,
18,
-54,
-55,
44,
-37,
-83,
-56,
-39,
-53,
7,
-1,
30,
-94,
-124,
-108,
5,
84,
63,
-104,
-111,
32,
-24,
115,
-122,
-122,
-12,
67,
-85,
-92,
102,
99,
37,
28,
-17,
-88,
-87,
46,
26,
-83,
-90,
-103,
64,
65,
44,
-106,
-35,
113,
-108,
43,
124,
-28,
36,
21,
108,
-122,
-50,
-80,
-111,
77,
48,
-122,
-67,
-13,
37,
32,
113,
-115,
-30,
76,
-9,
121,
-69,
-82,
-14
] |
Spencer, J.:
This is an appeal from a judgment of the district court granting a permanent injunction against further construction and ordering the removal of a structure in DeSoto, Kansas. The court found reasonable a decision by the governing body of the city that the structure in question was in violation of existing zoning ordinances in that it was a mobile home and not a modular home.
On January 31, 1975, appellant submitted to the city of DeSoto an application for a building permit for the construction of a dwelling at 900 Jewett Drive. The application stated that the home would be single-family with a floor area of 1,675 sq. ft.; that construction would be wood frame, after which was handwritten “modular”; that the foundation would be poured concrete; and that the roof would be composition shingle.
On February 3, 1975, the city building inspector issued the permit pursuant to section 19 of Ordinance No. 340 of the city of DeSoto. That section of the ordinance provides in part:
“No [building] permit shall be issued for any building, structure, construction . . . unless the same be in conformity in every respect with all the provisions of this Zoning Ordinance.
“A permit may be revoked by the Building Inspector at any time prior to the completion of the building or structure for which the same was issued, when it shall appear that there is departure from the plans, specifications or conditions as required under terms of the permit, that the same was procured by false representation or was issued by mistake, or that any of the provisions of the Zoning Ordinance are being violated. . . .”
Construction commenced and continued until March 10, 1975, when a notice of violation was served on appellant by the building inspector indicating a violation of the city’s Ordinance No. 396 in that a double wide mobile home must first be submitted to the planning commission for approval to be permitted in an area outside an approved mobile home park. That ordinance provides in part:
“SECTION ONE: (DEFINITIONS): Mobile Home. A residential structure, assembled in total or in not more than three sections at a factory, and transported over the road by truck or temporary wheel carriage to its destination.
“Mobile Home, Double Wide. A mobile home, as defined above, and having been built in two section sections, approximately of equal length, at the factory, which two sections are transported over the road separately, with assembly into one structure of a width of not less than twenty (20) feet occurring at the destination. . . .
“Modular Home. A residential structure, assembled in total or in several sections at a factory, and transported over the road by truck to its destination. A modular home, as distinct from a mobile home, shall have exterior building materials and appearance similar to the customary single family structures in the neighborhood, and shall be permanently situated on a concrete slab or foundation.
“SECTION TWO: (MOBILE HOMES — WHERE PERMITTED): . . . A double wide mobile home may be permitted in an approved mobile homes park or on a foundation on a lot which complies with all of the regulations of the zoning and subdivision ordinances of the City of DeSoto. Such double wide structure to be located outside an approved park shall first be submitted to the Planning Commission for review as to architectural conformity with the surrounding neighborhood, based upon the following:
“A. The physical condition of the structure is sound, well maintained, and of neat appearance.
“B. The proposed site of the structure is not in a neighborhood which contains homes of size and value sufficiently higher than will result from the establishment of the double wide mobile home that the contrast in appearance will depress property values in the neighborhood. . . .”
There is no evidence as to any ordinance restricting the placement of modular homes.
On March 15, 1975, at a special meeting of the planning commission, appellant was advised that it could proceed with the construction if it would agree in writing to construct brick siding at various parts of the exterior and a covered porch over the front entry as shown on plans presented to that commission. There is no evidence as to whether this action of the planning commission was based on a determination that the structure was a modular or a mobile home, which after the requested modifications would meet the requirements of Section Two (A & B) of Ordinance No. 396.
Appellant continued construction but on March 22, 1975, a special meeting of the governing body of DeSoto was held and it was determined that the structure was not a modular home as defined in Section One of Ordinance No. 396 for the following reasons:
“1. The structure in question was not transported over the road by truck to its destination and was, in fact, transported by wheel carriage.
“2. That the structure in question does not have exterior building materials similar to the customary single family structures in the neighborhood.
“3. That the structure in question does not have an appearance similar to the customary single family structures in the neighborhood.”
The building permit was revoked; appellant was given thirty days to obtain a proper building permit; and the “appropriate City authority” was ordered to take whatever action was necessary to remove the structure in the event of failure to secure such permit. No further action was taken by appellant and the city filed suit seeking a permanent injunction. Trial was to the court and the trial judge, after considering the evidence and having viewed the structure in question and the surrounding area, entered findings of fact and conclusions of law in part as follows:
. . . The plaintiff City claimed these were mobile homes lined up side by side. The defendant claims they are modular homes. The Court believes that really from the evidence the tendency would support more that they lean towards being mobile homes side by side, and I think you can’t ignore the labeling on the homes as one of the factors in this, but I don’t think it makes an awful lot of difference. When you review the Ordinance 396 and you talk about modular home and the definition and you talk about mobile home, the Court’s reasoning in this case is contained in both of them.
“The thing that has impressed the Court both from his examination of the area . . . there is no way that . . . you . . . can convince me . . . that those exhibits of those homes in this area are of such structure that they are comparable to what conversely is . . . the structure in question. I think we should show some consideration for these neighbors . . . .”
Appellant claimed estoppel, and to this the trial court stated:
“Very frankly to the Court I think this is a very sloppy handling of city affairs. They led Mr. Thomas to believe that he could proceed and then they withdrew and Mr. Thomas had done some — spent some monies and expenditures. There could easily be an issue of estoppel in the matter. I am not going to rule on it in that way. I think very conceivably Mr. Thomas may have some redress in other sources ....
“I think the City should not have led Mr. Thomas into the belief that he could do it, but conversely I think they do have a right to rescind the thing. . . .”
Issues presented are:
1. Did the district court err in finding reasonable the decision of the governing body that the structure was a mobile home as distinguished from a modular home?
2. Did the district court err in failing to consider the issue of whether the city was estopped from revoking the building permit and should the city be so estopped?
The rules of review have been succinctly stated:
“The rules for judicial review of municipal zoning ordinances and determinations are well established. ‘It must be understood that the governing body has the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning.’ [Citation omitted.] The power of the district court, in reviewing zoning determinations, is limited to determining (1) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed, and (2) the reasonableness of such action. In making the second determination, the court may not substitute its judgment for that of the governing body and.should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. [Citations omitted.] ‘There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof, by a preponderance of the evidence. [Citations omitted.] The mark of unreasonable action by zoning authorities is ‘. . . when the action is so arbitrary it can be said it was taken without regard to the benefit or harm involved to the community at large including all interested parties and was so wide of the mark its unreasonableness lies outside the realm of fair debate.’ [Citation omitted.]” (Highway Oil, Inc. v. City of Lenexa, 219 Kan. 129, 132, 547 P.2d 330.)
“In reviewing a district court’s judgment, this court, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, will make the same review of the administrative tribunal’s action as does the district court. [Citations omitted.]” (Rickard, v. Fundenberger, 1 Kan. App. 2d 222, 224, 563 P.2d 1069.)
The lawfulness of the action by the governing body is not challenged on procedural grounds. Accordingly, the issue on review is clearly limited to the reasonableness of that action.
Apparently, the city was confronted with a situation where its existing ordinance did not restrict the placement of modular homes. The city has not argued otherwise and a reading of the zoning ordinances in question fails to reveal any such restrictions. Therefore, if the structure was a modular home as defined in the ordinance, nothing could prevent its placement at this location. Mobile homes, however, were restricted to mobile home parks, with the exception of double wide mobile homes which could be placed “on a foundation on a lot” which otherwise complied with zoning and other regulations. Before placing such double wide mobile homes outside a mobile home park, however, the planning commission must review them for “architectural conformity with the surrounding neighborhood” based on physical condition, appearance, and the effect on property values. Ordinance No. 396 defined “modular home” (1) as transported over road by truck to its destination (whereas “mobile home” is defined as transported by truck or temporary wheel carriage); and (2) “as distinct from a mobile home” haying “exterior building materials and appearance similar to the customary single family structures in the neighborhood . . . .” Although we consider it of little consequence as to how the structure was transported, the governing body determined that the structure in question failed to meet both of these standards.
It is of note that this action is one by the city for an injunction and was not brought by appellant under K.S.A. 12-712 to determine the reasonableness of the ordinance. Although a question exists as to whether the action of the governing body was reasonable, no issue has been raised as to whether the ordinance itself is reasonable. The pretrial order delineated an issue of whether the ordinance was so vague and indefinite as to be unconstitutional but no argument was presented to the trial court on that issue, the trial court made no ruling in that regard, and appellant has not argued the point to this court. Its strongest arguments are that the city was unreasonable and the trial , court erred in limiting the definition of “neighborhood” as used in “similar to the customary single family structures in the neighborhood” to those houses on Jewett Place and did not include houses on surrounding streets.
One of the cases cited by appellant (State ex rel. Saveland P.H. Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217) states that “neighborhood,” although extending further than immediately adjoining property, must be determined by the facts of each case. The other cases cited are clearly in other contexts or equally vague. It would seem that the definition must remain vague and that the question must be decided on a case-by-case basis. It has been said:
“The mere fact that property in a restricted area adjoins or is close to property in a nonrestricted area does not necessarily render the ordinance invalid, since if there is to be zoning at all the dividing line must be somewhere, with the result that certain desirable neighborhoods adjoin others less desirable . . . .” (82 Am. Jur. 2d, Zoning and Planning § 37, p. 443.)
The city knew of the quality of structures on surrounding streets, as well as of those on Jewett Place, and the trial court viewed the area. We conclude that in this case the trial court did not err in limiting its definition of neighborhood, as used in the ordinance in question, to Jewett Place in the city of DeSoto, which appears to be a distinct area unto itself.
As to the overall question of reasonableness, there was conflicting testimony as to whether the structure had exterior building materials and appearances similar to other homes in the neighborhood. Given the rule of review that where a question is debatable the. reviewing court must not substitute its judgment for that of the zoning authority (Houston v. Board of City Commissioners, 218 Kan. 323, 543 P.2d 1010), the reasonableness of the city’s action must be upheld.
There is no doubt that equitable estoppel can be applied to a city in Kansas and that such estoppel can be in relation to a zoning matter. Benson v. City of DeSoto, 212 Kan. 415, 510 P.2d 1281. In Benson, the city, upon request of a developer, annexed a tract of land and rezoned it for his requested special use — a mobile home park. Thereafter, the developer spent a considerable sum in preparation of a plat for the park but, before submitting the plat for approval, a new city commission was elected. When the plat was submitted, the city commission refused to accept it and challenged the rezoning of the annexed tract for technical reasons. The Supreme Court held the city estopped to deny the validity of its own ordinance and ordered approval of the plat.
The distinction between the cases cited from other jurisdictions by the two sides in this case is that they stand for two distinct principles: (1) The city may be estopped from revoking a validly issued building permit, as where e.g. the zoning is changed after issuance of the permit and the city seeks a retroactive enforcement (82 Am. Jur. 2d, Zoning and Planning § 237, p. 762); and (2) a building permit issued in violation of law or under a mistake of fact confers no right, may be revoked at any time, and does not estop the city from doing so (82 Am. Jur. 2d, Zoning and Planning § 244, pp. 776-777).
The question of estoppel will be determined by whether the city was reasonable in holding that the structure in question was actually a mobile home. If so, it follows that the permit was issued under mistake of fact and such cannot be the basis for estoppel. Nor may the action of the planning commission be considered the basis for estoppel. In Houston v. Board of City Commissioners, supra, it was said:
“The function of a planning commission is advisory only. The final authority in zoning matters rests with the governing body possessing legislative power.” (218 Kan. 323, Syl. 3.)
Appellant must be presumed to know the law and as such to know that the action of the planning commission can be overturned by the governing body of the city.
In Skaggs v. City of Pratt, 183 Kan. 424, 327 P.2d 1083, the plaintiff alleged that he tore out an old sidewalk in front of his store and replaced it with a new one. In doing so, he relied on a slant and grade approved and aligned by the city engineer. The city engineer, in turn, was required by city ordinance to establish and align sidewalk grades. After the new sidewalk was in place, the city passed a resolution condemning it and required plaintiff to replace it, again with grade and alignment determined by the city engineer. The Supreme Court noted that the first sidewalk was put in with reliance on the acts of the city engineer as authorized by city ordinance. In the case at bar the city ordinance authorized the building inspector to issue the building permit in accordance with the zoning ordinance. If a permit is issued by mistake to a project which does not comply with the zoning ordinance, it cannot be said to be authorized by the city, and Skaggs is distinguishable.
Judgment affirmed. | [
-107,
106,
-44,
-36,
10,
-63,
88,
-74,
122,
-79,
100,
83,
-17,
-54,
-124,
107,
-17,
127,
-12,
-11,
-63,
-77,
67,
-61,
-112,
-13,
-25,
81,
-7,
111,
116,
-105,
88,
97,
-54,
-99,
70,
8,
85,
88,
-50,
39,
10,
-36,
-47,
67,
36,
111,
0,
14,
-43,
-113,
-78,
44,
24,
-53,
-24,
44,
-51,
45,
121,
-16,
-106,
29,
110,
14,
-95,
116,
-102,
-123,
120,
33,
-111,
49,
0,
-8,
115,
-74,
-74,
100,
71,
-37,
8,
32,
98,
2,
41,
-25,
-24,
-88,
14,
-46,
-99,
-90,
-93,
25,
67,
1,
-66,
-75,
112,
22,
78,
124,
102,
21,
91,
108,
-114,
-50,
-112,
-79,
15,
48,
-104,
19,
-17,
-127,
49,
49,
-51,
-78,
94,
-92,
53,
11,
-121,
-40
] |
Caplinger, J.:
Jerry D. Johnson appeals his conviction of felony obstruction of official duty and his two convictions of identity theft, challenging the sufficiency of the evidence with respect to those convictions. Asserting constitutional grounds, Johnson also appeals the sentence imposed by the district court. We affirm Johnson’s conviction of identity theft of John Dale; however we reverse his conviction of identity theft of Michael Robinson, finding the evidence insufficient for the jury to have found beyond a reasonable doubt that Johnson possessed Robinson’s identification with the intent to defraud for economic benefit.
Factual and procedural background
Jerry Johnson and Marshall Cooper attempted to make a purchase for $483 using a check in the name of John Lewis at the Home Depot Store in Merriam. When the store’s check-scanning system flagged the check and indicated it contained a bad routing number, the store’s head cashier, Marilyn Angle, requested a driver’s license from Cooper, who had provided the check. Angle could see that the driver’s license had been altered, and she contacted Assistant Store Manager Wesley McLaughlin. McLaughlin had previously assisted Johnson in another aisle. While assisting Johnson, McLaughlin noticed he was carrying a black backpack.
Cooper gave McLaughlin a driver’s license which did not match the information on the check. In the course of his duties, McLaughlin had reviewed hundreds of drivers’ licenses, and he believed this one had been altered and relaminated. The letters “DL” on the face of the license overlapped with the word “Kansas,” which McLaughlin knew to be incorrect.
McLaughlin informed Cooper the check had a bad routing number and asked whether Cooper could provide another form of payment. McLaughlin also advised Cooper that he would hold the check to give to the police. At that point, Johnson instructed Cooper to retrieve his check from McLaughlin. Cooper snatched the check from McLaughlin and began walking toward the exit. McLaughlin instructed the phone center to telephone the police and followed Cooper to the door. Johnson walked with McLaughlin and engaged him in small talk along the way, ostensibly for the purpose of delaying his advance towards Cooper.
Merriam police officer Shannon Goodnight responded to a call regarding a verbal disturbance between the manager and a customer at Home Depot. Upon arriving at the store, she was informed by McLaughlin that customers had attempted to purchase approximately $500 worth of merchandise with a bad check. At that point, Goodnight believed she was investigating a forgery or bad check offense with a value in excess of $500. Upon their arrival at Home Depot, the officers were directed by McLaughlin to Cooper and Johnson, who were located approximately 100 yards away in the parking lot in a tan pickup truck.
When Goodnight approached the truck, Cooper was sitting inside and Johnson was standing next to the truck. As Goodnight began talking to the men, Johnson, who was carrying a backpack, took off running. Goodnight ordered Johnson to stop, and at one point, Johnson said over his shoulder, “I didn’t do anything, I didn’t do anything.” Goodnight caught up with Johnson while another officer, Sergeant Mike Daniels, stopped a patrol car in front of him.
Sergeant Daniels ordered Johnson to the ground, and when Johnson failed to comply, Daniels grabbed him by the arm. Johnson told him, “You got the wrong person, I didn’t do anything.” Johnson dropped an identification card bearing the name of Dennis Hanna. As Daniels bent down to pick it up, Johnson again took off running.
Goodnight pursued Johnson on foot while Daniels gave chase in the patrol car. At one point, Johnson turned and moved towards Goodnight and she sprayed him with pepper spray. Johnson swung die backpack at Goodnight’s head but did not hit her. Goodnight sprayed Johnson again, and he took off running, disappearing over a fence into a residential area. Goodnight lost sight of Johnson and ended the chase pursuant to department policy, as she did not know whether he had a weapon. She radioed her location and police set up a perimeter. Johnson eventually was apprehended by Corporal Todd Sparks.
Sparks searched Johnson and discovered an envelope containing four business checks bearing the name RGIS Inventory Specialist and a fraudulent Kansas identification card in the name of John Dale, the name on the check. Sparks also found an identification card on Johnson bearing the name Michael Robinson. Sparks believed the Dale identification was fraudulent because the photo had been tampered with and the card appeared to have been re-laminated. The Robinson identification was expired and also appeared to have been relaminated. Johnson told Sparks his name was Michael Robinson, a claim he later repeated at the police station.
When Goodnight arrived at the Merriam police station, she learned Johnson had identified himself as Michael Robinson. However, Goodnight had spoken with Michael Robinson the previous day, and she told Johnson she knew he was not Robinson. When Officer Goodnight attempted to telephone Robinson, Johnson admitted Robinson was his brother.
The following day, Carl Kauffman, who lived near the Home Depot, found a black backpack under some shrubs in his backyard. He turned the bag over to police, and Sergeant Daniels identified the backpack as the one carried by Johnson. The backpack contained a pistol, loose ammunition rounds, and cocaine.
A few days later, Kauffman saw two men, one of whom he later identified as Johnson, walking in the yard next door, approximately 5 feet from where Kauffman had found the backpack. Johnson informed Kauffman he had lost his wedding ring in the area and the homeowner had given him permission to look around.
Kimberly Southard, a federal agent with the Inspector General’s Office of the Social Security Administration, testified that the social security numbers and dates of birth on the identification cards of Michael Robinson and John Dale belonged to those individuals and not to Johnson.
Johnson testified at trial that he tried to avoid police because he had an outstanding warrant, and the backpack he carried, that he thought contained tools, belonged to Cooper, who had asked him to carry it while the men were in the store. Johnson also testified he carried his brother s identification card because they looked alike and Johnson intended to assume Robinson’s identity if he was approached by law enforcement.
In an amended complaint, Johnson was charged with making a false information, felony obstruction of official duty against Goodnight and/or Daniels while investigating “a forgery and/or making false information and/or passing a worthless check w/a value of $500 or more,” assault of a law enforcement officer, criminal trespass, possession of cocaine, and one count of identity theft each with regard to John Dale and Michael Robinson.
At the close of the State’s evidence, Johnson moved for acquittal on the felony obstruction charge on the basis that the amount of the check was less than $500. He also sought acquittal on the identity theft charges arguing there was no evidence that he intended to defraud someone for economic benefit. The district court denied the motions without elaboration.
Johnson was convicted of felony obstruction of official duty, assault of a law enforcement officer, criminal trespass, and two counts of identity theft. He was acquitted of making false information, and the juiy could not reach a verdict on the possession of cocaine charge.
Johnson appeals his convictions and sentence.
Denial of motion for acquittal of felony obstruction charge
Johnson first argues the evidence is insufficient to support a conviction for felony obstruction of official duty because the State chose not to charge him with forgery and he was acquitted of making false information, the only possible felony underlying the obstruction charge. Absent the commission of an underlying felony, Johnson reasons, there can be no felony obstruction of official duty.
Johnson phrases the issue as one of statutory construction and suggests this court’s standard of review as unlimited. However, at trial, Johnson’s counsel moved for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal, we examine the sufficiency of the evidence to support die conviction. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004). Spe cifically, we consider whether, after a review of all the evidence viewed in a light most favorable to the State, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. 278 Kan. at 479.
Johnson was charged with obstructing Officer Goodnight and/ or Sergeant Daniels in the performance of their official duty in violation of K.S.A. 21-3808. That statute provides in relevant part:
“(a) Obstructing legal process or official duty is laiowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process ... in the discharge of any official duty.
“(b) (1) Obstructing legal process or official duty in the case of a felony, or resulting from parole or any authorized disposition for a felony, is a severity level 9, nonperson felony.
(2) Obstructing legal process or official duty in a case of misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case is a class A nonperson misdemeanor.”
Whether Johnson could be charged with felony obstruction is controlled by State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997). There, the court held “[t]he touchstone for the classification of the [obstruction] offense is the reason for the officer’s approaching the defendant who flees or otherwise resists, and not the status of the defendant.” 261 Kan. at 538-39. Because the officer in Hudson attempted to stop the defendant for a traffic violation, but ended up chasing the defendant after he attempted to elude the officer, the court held the obstruction offense should have been charged as a misdemeanor rather than a felony. 261 Kan. at 539; see also State v. Lundquist, 30 Kan. App. 2d 1148, 1154-55, 55 P.3d 928 (2002), rev. denied 275 Kan. 967 (2003) (evidence was insufficient to convict defendant of felony obstruction when officers originally approached defendant regarding expired tag and broken taillight, and eventually arrested him on drug charges following a chase; officers’ knowledge and intent at the time they approached the defendant concerned only misdemeanor offenses); State v. Carter, 30 Kan. App. 2d 1247, 1248, 1253-54, 57 P.3d 825 (2002), rev. denied 275 Kan. 966 (2003) (evidence was sufficient to support obstruction charge when officer originally responded to stabbing incident but defendant eventually acquitted of that charge; pur suant to Hudson, defendant’s reason for eluding capture and his actual status were irrelevant; instead, only the officer’s reason for attempting to capture the defendant was significant).
Despite Hudson’s clear direction to consider the reason for the officers’ investigation of the defendant in determining whether the felony obstruction charge is supported by the evidence, Johnson argues this case is controlled by State v. Seabury, 267 Kan. 431, 985 P.2d 1162 (1999). There, police obtained a warrant to search the defendant’s home in connection with a drug trafficking investigation involving the defendant’s son. The defendant was arrested after failing to comply with the officers’ requests during the search.
The State appealed the district court’s reduction of the obstruction count to a misdemeanor, arguing K.S.A. 21-3808 does not require an underlying felony. Further, the State contended the officers were investigating felony cocaine trafficking when they executed the warrant on Seabury’s home.
The Supreme Court in Seabury reiterated Hudson’s determination that the “classification of an obstruction charge . . . depends on the reason the officer approached the defendant, not the status of the defendant.” 267 Kan. at 436-37. The court then stated the issue and its conclusion as follows:
“Our key question is whether the language in K.S.A. 21-3808(b)(1) ‘in tíre case of a felony’ means an underlying felony must have been committed before a defendant can be charged with felony obstruction of official duty. We conclude an underlying felony is required (either felony charges have been filed or there has been a felony committed). A plain reading of the statute and a review of the case law supports our conclusion.” (Emphasis added.) 267 Kan. at 437.
Johnson points out that both officers who responded to the call at Home Depot testified they believed they were investigating a felony. Relying upon the above-italicized language, Johnson contends that before he could be charged with felony obstruction of official duty, he must have either committed a forgery, or forgery charges must have been filed against him.
We do not read Seabury’s holding so broadly. Rather, in light of Seabury’s reiteration of Hudson’s broader holding, we believe Sea-bury must be restricted to its facts. Specifically, Seabuiy was charged with felony obstruction as a result of his actions during the execution of a search warrant. And significantly, the warrant was issued based on an investigation of Seabury’s son — not Seabury. At the time of the search, Seabury was not being investigated for any felony offense.
Moreover, Johnson’s analysis ignores the court’s ultimate conclusion in Seabury: “Here, no felony was committed, nor were felony charges filed based on the investigation.” 267 Kan. at 438. In contrast, in this case, the responding officers testified they believed they were investigating a forgery, and related felony charges eventually were filed based on that investigation.
Accordingly, we conclude Seabury did not alter Hudson s rule that the “touchstone” for the classification of an obstruction offense is the reason the officer approached the defendant, and not the status of the defendant. Here, both of the officers Johnson was charged with obstructing testified they believed they were investigating a forgeiy based upon the information available to them at the time. Further, Johnson was eventually charged with making a false information, a related felony.
Under these circumstances, the trial court did not err in denying Johnson’s motion for acquittal on the charge of felony obstruction of official duty.
Denial of motion for acquittal of identity theft of John Dale
Johnson next argues the evidence was insufficient to support the charge of identity theft, and the trial court erred in denying his motion for acquittal. As with the previous issue, we must determine whether the evidence was sufficient to allow a rational factfinder to find Johnson guilty beyond a reasonable doubt of identity theft. See State v. Cavaness, 278 Kan. at 479.
Johnson was convicted of identity theft in violation of K.S.A. 2003 Supp. 21-4018 based upon his possession of counterfeit checks made payable to John Dale and a manufactured identification card in the same name. That statute provides:
“Identity theft is knowingly and with intent to defraud for economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, one or more identification documents or personal identification number of another person other than that issued lawfully for the use of the possessor.”
K.S.A. 21-3110(9) defines “intent to defraud” as “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.”
Johnson argues the legislature created identity theft as a criminal offense to protect individuals whose personal information is stolen and used to their detriment. Johnson reasons that even if he did intend to commit a fraud with Dale’s information, “he intended to defraud the bank or establishment at which he cashed the manufactured checks; he certainly had no intent to defraud Mr. Dale.” Because the legislature did not intend K.S.A. 2003 Supp. 21-4018 to protect third parties from harm, Johnson argues the evidence was insufficient to convict him of a violation of that statute.
Although not cited by defendant, this court’s decision in State v. Meza, 38 Kan. App. 2d 245, 165 P.3d 298, rev. denied 285 Kan. 1176 (2007), controls this issue. There, the defendant purchased a social security card and Kansas identification card in the name of Nayssa Davila and used the documents to obtain employment at two different locations. Nayssa Davila was a lifetime resident of Texas whose name on her social security account was changed to Nyssa Nicole Carlson following adoption by her stepfather at age 7. Following the use of her identity, Carlson received threatening calls from debt collection agencies and notices of unpaid taxes assessed for income she had reportedly earned. Meza was convicted of identity theft based upon her use of Carlson’s identity.
Meza argued the evidence was insufficient to prove she intended to defraud Carlson for economic benefit. Citing the definition of “intent to defraud” in K.S.A. 2004 Supp. 21-3110(9), the Meza court reasoned the statute would be satisfied “if Meza, for her own economic benefit, used Carlson’s social security number knowingly and with the intent to defraud [the employer] by inducing it to create for her a right with respect to property.” 38 Kan. App. 2d at 248. The court specifically concluded the crime of identity theft does not require proof of economic loss to the victim but only proof of the defendant’s intent to defraud for his or her own economic benefit. 38 Kan. App. 2d at 248; see also State v. Oswald, 36 Kan. App. 2d 144, 145, 150, 137 P.3d 1066, rev. denied 282 Kan. 795 (2006) (defendant used friend’s social security number and credit card information to open new cellular phone account and malte vehicle payment without friend’s permission; court found evidence sufficient to prove defendant acted with “intent to defraud for economic benefit” because defendant received economic benefit from opening account).
Here, in a search of Johnson’s person, officers discovered four counterfeit checks made payable to John Dale and an identification in Dale’s name. A federal Social Security Administration agent testified the social security number on the card belonged to John Dale, a real person. Further, Johnson admits that using Dale’s identity to negotiate fabricated checks would constitute a fraud upon the financial institutions involved. We find ample evidence of Johnson’s intent to defraud for his own economic benefit, and we affirm his conviction of identity theft with regard to Dale’s personal information.
Denial of Johnsons motion for acquittal regarding identity theft of Michael Robinson
Johnson next claims the evidence was insufficient to prove his intent to defraud for economic benefit regarding his possession of the personal information of his brother, Michael Robinson. Johnson argues the only evidence of his intent came from his own testimony, in which he stated he intended to use his brother’s identification to avoid arrest on outstanding warrants.
The State acknowledges it was required to prove Johnson possessed Robinson’s personal information with the intent to defraud for economic benefit. The State suggests it established this element by presenting evidence that (1) Johnson possessed counterfeit checks; (2) individuals who attempt to use counterfeit checks often possess false identification documents; and (3) these individuals offer such documents when asked for identification. Further, the State points out that the jury was not bound to accept the defendant’s version of facts in question and, upon a conviction, the jury is presumed to have believed the State’s evidence and to have drawn from it all inferences favorable to the State. See State v. Aikins, 261 Kan. 346, 392, 932 P.2d 408 (1997). Thus, because the jury convicted Johnson of identity theft, the State argues the jury necessarily disbelieved his explanation of his motive for carrying Robinson’s ID card.
While it may be true that the jury disbelieved Johnson’s Explanation of his motive for carrying his brother’s identification, the burden remains on the State to produce evidence sufficient to allow a rational factfinder to conclude beyond a reasonable doubt that Johnson possessed Robinson’s personal information with the intent to defraud for economic benefit. The State failed to do so here. The counterfeit checks possessed by Johnson were payable to John Dale, not Michael Robinson, and Johnson possessed false identification in the name of John Dale. Thus, the connection between Johnson’s possession of identification bearing the name Michael Robinson and any scheme by Johnson to use that identification to aid in passing counterfeit checks was tenuous, at best.
Because the evidence was insufficient for the jury to have found beyond a reasonable doubt that Johnson possessed his brother’s identification card with the intent to defraud for economic benefit, we reverse Johnson’s conviction of identity theft of Michael Robinson.
Sentencing issues
Although Johnson failed to object to his sentence below, he now raises constitutional concerns regarding the sentencing court’s imposition of aggravated sentences within the presumptive ranges. Constitutional grounds for reversal raised for the first time on appeal are not properly before this panel for review. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006). Additionally, because the sentence imposed was within the presumptive guidelines, we lack jurisdiction to review it. See K.S.A. 21-4721; State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000).
Finally, Johnson argues his constitutional rights were violated by the district court’s imposition of an increased sentence based upon his prior criminal history, without requiring the State to prove the prior crimes to the jury beyond a reasonable doubt. Johnson acknowledges that State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), decided this issue adversely to his position; nevertheless, he raises the issue to preserve it for appeal. Pursuant to Ivory, we affirm the sentence imposed.
Affirmed in part and reversed in part. | [
-80,
-32,
-23,
-68,
24,
-96,
42,
14,
19,
-95,
-25,
83,
-25,
-56,
4,
121,
-9,
127,
-43,
121,
-64,
-77,
99,
-32,
-14,
-77,
-71,
85,
-78,
75,
-92,
-43,
30,
48,
-114,
61,
102,
0,
-89,
-100,
-120,
0,
40,
114,
-46,
65,
44,
-86,
118,
14,
49,
44,
-15,
58,
18,
67,
-55,
44,
-22,
-71,
-48,
-14,
-85,
5,
-35,
20,
-93,
5,
-101,
3,
-8,
31,
-104,
57,
0,
-8,
-14,
-74,
-126,
52,
75,
31,
-64,
98,
98,
0,
17,
-17,
-28,
-119,
-82,
-66,
-97,
-89,
-104,
88,
75,
45,
-105,
-100,
119,
52,
6,
-4,
115,
13,
31,
108,
-124,
-33,
-12,
-109,
-115,
52,
14,
-6,
-1,
52,
48,
113,
-57,
-30,
93,
87,
50,
27,
-50,
-15
] |
STANDRIDGE, J.:
This case involves the timeliness of an insurance subrogation claim. Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from the district court’s decision to dismiss the case for failure to state a claim on grounds that the statute of limitations on the claim had expired. In dismissing the case, the district court held that Farm Bureau’s only potential claim for subrogation was grounded in tort, and Farm Bureau failed to assert its right of subrogation for this tort claim in a timely fashion. We affirm the district court’s decision.
Factual and Procedural Background
On July 13, 2003, Joseph Binkley injured Sabrina Henry in a car accident. Binkley was insured by Progressive Direct Insurance Company (Progressive). Farm Bureau provided underinsured motorist (UIM) coverage to Henry.
Heniy asserted a tort claim against Binkley to recover for her injuries. Progressive subsequently offered to'pay Heniy its policy limits of $25,000 to setde the claim. As required by K.S.A. 40-284(f), Henry notified Farm Bureau of the offer. Given the possibility of an underinsured claim by Henry against Farm Bureau for damages exceeding $25,000, Farm Bureau elected to substitute its payment for Progressive’s offer. Pursuant to K.S.A. 40-284(f), Farm Bureau then became subrogated to Henry’s right of recoveiy against Binkley.
On or about December 7, 2005, Farm Bureau requested that Progressive reimburse Farm Bureau for the $25,000 it had paid to Henry. In support of this request, Farm Bureau cited its right of subrogation to enforce the $25,000 settlement offer Progressive originally had extended to Heniy. Progressive denied Farm Bureau’s request. More specifically, Progressive claimed that Heniy, and thus Farm Bureau as the entity standing in Hemy’s shoes, no longer had a right to enforce the settlement offer because the statute of limitations on the underlying tort claim against Binkley expired on July 13, 2005.
Farm Bureau sued Progressive, asserting subrogation rights grounded in statute, contract, and equity. Progressive filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings, countering that Farm Bureau’s subrogation rights were limited to any cause of action in tort that Heniy may have had by virtue of the accident, and that such a tort action was time-barred. Progressive also asserted that Progressive was not a proper party in the suit because Farm Bureau’s subrogation rights limited Farm Bureau to a cause of action against the tortfeasor Binkley. In response, Farm Bureau filed its own motion for summaiy judgment. The district court ultimately ruled in favor of Progressive and dismissed the action. Farm Bureau appealed.
Standard of Review
“Upon appellate review of a district court’s order granting a motion to dismiss for failure to state a claim, an appellate court is required to assume that the facts alleged by the plaintiffs are true, along with any inferences reasonably to be drawn therefrom. The court must also decide whether those facts and inferences state a claim on the theories presented by the plaintiffs and also on any other possible theory.” McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, Syl. ¶ 1, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
Here, there is no factual dispute between the parties, which leaves this court a question of law upon which our review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Furthermore, construction of a written contract and statutory interpretation are questions of law over which an appellate court exercises unlimited review. Elliott v. Farm Bureau Ins. Co., Inc., 26 Kan. App. 2d 790, 793, 995 P.2d 885 (1999), rev. denied 269 Kan. 932 (2000).
Issues Presented
Farm Bureau concedes its K.S.A. 40-284 tort subrogation action against Binkley and Progressive is time-barred. As it did with the district court below, however, Farm Bureau argues on appeal that the following three alterative subrogation claims against Progressive — none of which are based in tort — remain viable:
(1) the statutory right under K.S.A. 40-284 to pursue a subrogation action against Progressive to enforce the settlement offer made to Henry (3-year statute of limitations);
(2) a common-law right to pursue a contract subrogation action against Progressive to enforce the settlement offer (5-year statute of limitations);
(3) a common-law right to pursue an equitable subrogation action against Progressive to properly allocate the loss resulting from Binkley s negligence (at least a 3-year statute of limitations).
We will address the issues by Farm Bureau in the order they were raised.
Subrogation Right under K.S.A. 40-284 to Enforce Progressive’s Settlement Offer
Farm Bureau argues the district court erred in rejecting its claim that Farm Bureau had a statutory right under K.S.A. 40-284 to pursue a subrogation action against Progressive to enforce the settlement offer made to Henry. According to Farm Bureau, this stat utory cause of action is grounded in contract, not tort, and thus is timely.
The general rule regarding the rights of a subrogated insurer was stated by our Supreme Court in Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 539, 608 P.2d 923 (1980):
“The insurer’s right of subrogation against third persons causing the loss paid by the insurer to the insured is derived from the insured alone. Consequently, the insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses. . . . [T]he insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter.”
This general rule was codified in K.S.A. 40-284(f), which provides for a right of subrogation in the event that a UIM insurer substitutes its payment for a tentative agreement to settle for liability limits:
“An underinsured motorist coverage insurer shall have subrogation rights under the provisions of K.S.A. 40-287 and amendments thereto. If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. . . . Within 60 days of receipt of this written notice, the underinsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The underinsured motorist coverage insurer is then subrogated to the insured’s right of recovery to the extent of such payment and any settlement under the underinsured motorist coverage. If the underinsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within 60 days, the underinsured motorist coverage insurer has no right of subrogation for any amount paid under the underinsured motorist coverage.” (Emphasis added.)
As noted in K.S.A. 40-284(f), the specific subrogation rights to which a UIM insurer is entitled are set forth within K.S.A. 40-287:
“The policy or endorsement affording the coverage specified in K.S.A. 40-284 [uninsured and underinsured motorist coverage] may further provide that payment to any person of sums as damages under such coverage shall operate to subrogate the insurer to any cause of action in tort which such person may have against any other person or organization legally responsible for the bodily injury or death because of which such payment is made, and the insurer shall be subrogated, to tire extent of such payment, to the proceeds of any settlement or judgment that may thereafter result from the exercise of any rights of recovery of such person against any person or organization legally responsible for said bodily injury or death for which payment is made by the insurer. Such insurer may enforce such rights in its own name or in the name of the person to whom payment has been made, as their interest may appear, by proper action in any court of competent jurisdiction.”
Farm Bureau contends the language set forth in K.S.A. 40-287 confers upon it a statutory right to enforce Progressive’s $25,000 settlement offer. Because the right to enforce the offer is grounded in statute, Farm Bureau further contends the statute of limitations is 3 years.
K.S.A. 60-512(2) establishes a 3-year time limit for “[a]n action upon a liability created by a statute other than a penalty or forfeiture.” This time hmitation applies when a statute creates a liability where liability would not exist but for the statute. If the statute merely provides a procedure for obtaining relief, however, K.S.A. 60-512(2) is not triggered. McCormick v. City of Lawrence, 278 Kan. 797, 799, 104 P.3d 991 (2005).
Beyond a right of subrogation to a cause of action in tort, which Farm Bureau concedes is time-barred, the only other right to which Farm Bureau could be subrogated under K.S.A. 40-287 is “to the proceeds of any settlement or judgment that may thereafter result from the exercise of any rights of recovery of [die insured] against any person or organization legally responsible for said bodily injury or death for which payment is made by tire insurer.”
We find K.S.A. 40-287 was not meant to create a new statutory cause of action. Rather, we find the statute merely provides a procedure whereby Farm Bureau can obtain reimbursement for its payment. See Farmers Ins. Co., 227 Kan. at 538 (holding K.S.A. 40-3113 intended to recognize the insurer’s right of subrogation and to assist the insurer, through subrogation, to recover from the tortfeasor, and the tortfeasor’s insurer did not create a statutory cause of action). Accordingly, K.S.A. 60-512(2) is inapplicable.
In addition to our finding that the 3-year time limit set forth in K.S.A. 60-512 is inapplicable to K.S.A. 40-287 under the facts presented here, we also find that K.S.A. 40-287 does not establish a statutory right for Farm Bureau to contractually enforce the $25,000 settlement offer. When read in context, we find use of the term thereafter in the K.S.A. 40-287 provision set forth above sim ply cannot be ignored. Thereafter clarifies that an insurer is only entitled to the proceeds of any settlement or judgment generated after the insurer makes the payment entitling it to subrogation. See K.S.A. 40-287. Here, the alleged settlement that Farm Bureau wants to enforce occurred prior to Farm Bureau’s payment entitling it to subrogation pursuant to K.S.A. 40-284(f). Thus, we find K.S.A. 40-287 does not establish a statutory right for Farm Bureau to contractually enforce the $25,000 settlement offer.
Common-Law Right of Subrogation to Enforce the Settlement Offer
Farm Bureau also argues that it succeeded to Henry’s common-law contractual right to enforce Progressive’s $25,000 offer. In support of this claim, Farm Bureau maintains Henry would have been entitled to receive $25,000 under the tentative settlement agreement if Farm Bureau had not substituted its payment to Henry for the tentative settlement amount. Upon being subrogated to Henry’s rights, Farm Bureau reasons that it was then entitled to enforce Progressive’s $25,000 offer. Farm Bureau argues that because it was entitled to enforce a contractual right of recovery against Progressive, the applicable statute of limitations is either 3 or 5 years. See K.S.A. 60-511(1) (“An action upon any agreement, contract or promise in writing” must be brought within 5 years.); K.S.A. 60-512(1) (“All actions upon contracts, obligations or liabilities expressed or implied but not in writing” must be brought within 3 years.). We disagree.
A settlement agreement is a type of contract and, therefore, is governed by contract law. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998). An unconditional and positive acceptance of a settlement offer is required to form a contract. Nungesser v. Bryant, 283 Kan. 550, 565, 153 P.3d 1277 (2007). Here, Hemy could not fully accept Progressive’s settlement offer until Farm Bureau was notified of the tentative agreement. See K.S.A. 40-284(f). Farm Bureau’s substitution of its payment for the tentative settlement amount under K.S.A. 40-284(f) meant that Hemy never accepted Progressive’s offer. Thus, there was no contract for Farm Bureau to enforce upon subrogation.
Moreover, it is a basic rule of contract law that an offer which states no time limit for its acceptance lapses after the expiration of a reasonable time. See Trounstine & Co. v. Sellers, 35 Kan. 447, 453-55, 11 Pac. 441 (1886); 1 Williston on Contracts § 5:7 (4th ed. 2007). Here, Farm Bureau did not make demand on Progressive until December 2005, nearly 7 months after Farm Bureau substituted its payment for the settlement offer. Thus, even if it is assumed that Farm Bureau could have accepted Progressive’s settlement offer after Farm Bureau substituted its payment, the offer lapsed before Farm Bureau indicated a timely acceptance. Consequently, Farm Bureau’s subrogation did not entitle it to enforce any common-law contractual rights of recovery against Progressive.
Equitable Right of Subrogation
Finally, Farm Bureau maintains that it is entitled to enforce Progressive’s settlement offer as a matter of equity. Specifically, Farm Bureau argues that “[sjimply by virtue of having satisfied Progressive’s obligation, Farm Bureau . . . acquired an equitable right of subrogation to recover the amount properly payable by Progressive under its offer to Ms. Heniy.” Farm Bureau maintains that the statute of limitations applicable to equitable subrogation is either 3 or 5 years.
In National City Mortgage Co. v. Ross, 34 Kan. App. 2d 282, 117 P.3d 880, rev. denied 280 Kan. 984 (2005), the court cited United States Fidelity & Guaranty Co. v. First State Bank, 208 Kan. 738, 749, 494 P.2d 1149 (1972), for the proposition that
“[t]he doctrine of equitable, or legal, subrogation ‘ “is a creature of equity invented to prevent a failure of justice, and is broad enough to include an instance in which one party is required to pay what is, between them, the debt of another. . . . [It] is founded upon principles of natural justice.” [Citations omitted.]’ ” 34 Kan. App. 2d at 288.
Plowever, our Supreme Court has cautioned that “[ujnlike Zorro or the Scarlet Pimpernel, a court under the guise of exercising its equitable powers may not right what it perceives as a wrong or unfairness absent an adequate equitable basis therefor.” Rice v. Garrison, 258 Kan. 142, 151, 898 P.2d 631 (1995). Accordingly, the doctrine of equitable subrogation will not be applied to relieve a party “of a condition attributable to a failure to exercise ordinary care for his, her, or its own interests.” Bankers Trust Co. v. United States of America, 29 Kan. App. 2d 215, 222, 25 P.3d 877 (2001); see also Rex v. Warner, 183 Kan. 763, 771-72, 332 P.2d 572 (1958) (“Equity aids the vigilant and not those who slumber on their rights. [Citation omitted.]”).
Here, it appears that the real reason Farm Bureau wishes to invoke equity is because it failed to take advantage of the opportunity to bring a timely tort action against Binkley under K.S.A. 40-284(f) and K.S.A. 40-287. Henry’s accident occurred July 13, 2003. Farm Bureau substituted its payment for the settlement amount on May 12, 2005. In light of the 2-year statute of limitations for torts, Farm Bureau had until July 13, 2005, to bring a timely action against Binkley. See K.S.A. 60-513(a)(4). Farm Bureau did not do so. Farm Bureau’s failure in this regard precludes relief through equitable subrogation.
Based on the discussion above, we find Farm Bureau was subrogated to Henry’s right to recover in a tort cause of action and nothing else. Accordingly, Farm Bureau’s subrogation claim is barred by the statute of limitations, and we affirm the district court’s dismissal.
Affirmed. | [
-12,
109,
-4,
-51,
11,
96,
98,
58,
83,
-25,
36,
83,
-1,
-26,
-107,
61,
-25,
13,
69,
-22,
-43,
-93,
51,
-126,
-9,
-77,
-127,
77,
-101,
-49,
46,
79,
76,
56,
2,
-43,
-28,
-102,
-115,
-38,
-118,
-106,
-103,
108,
-103,
-64,
-72,
-39,
86,
79,
53,
-123,
-77,
42,
26,
-50,
40,
40,
123,
61,
-63,
-8,
-118,
5,
127,
3,
33,
4,
-102,
99,
-6,
30,
-112,
-71,
9,
-56,
114,
-90,
-106,
36,
79,
-103,
8,
102,
103,
-128,
53,
-17,
-36,
-104,
38,
92,
31,
-122,
-112,
72,
3,
42,
-65,
29,
112,
52,
70,
-4,
-20,
13,
13,
105,
1,
-50,
-48,
-125,
-49,
100,
-100,
7,
-17,
-121,
48,
113,
-49,
-30,
93,
-25,
119,
-37,
79,
-86
] |
Hill, J.:
To be convicted of an attempt to commit a crime, a defendant must intentionally take a first step towards committing that crime. Our courts call that step “performing an overt act.” In this appeal of his conviction for attempted indecent liberties with a child, John Risinger contends the State did not present enough evidence to prove he performed an overt act toward committing that crime. After our review of the record on appeal, we find three facts, when considered together, convincing. First, Risinger engaged in more than 15 conversations about sexual relations online with an undercover policewoman who pretended to be 14 years old. Next, with the avowed purposes of “making out, feeling around, or having oral sex,” Risinger set up a face-to-face meeting with her. Finally, Risinger drove to her house and knocked on her door. We hold there was sufficient evidence presented for a rational factfinder to find Risinger guilty beyond a reasonable doubt. We affirm.
The background facts of the case are clear.
This case was tried to the court. The State presented evidence that Risinger had engaged in a series of online conversations with Detective Jennifer Wright, who had identified herself to Risinger as a 14-year-old young woman named “Lexi.” In their last online conversation on February 3, 2006, Risinger agreed to meet with Lexi at her house to “make out, feel around, and/or have oral sex.” Risinger then drove to the house, got out of the car, and knocked on the door. While knocking on the door, Risinger was arrested.
Risinger presented evidence to show that he did not intend to commit a sexual act with “Lexi.” First, Risinger referred to his interview with the detective in which he later asserted that he chatted with adult women online before but did not engage in sexual activity when he met them. Second, Risinger provided his psychological evaluation report written by Dr. Jeff Lane. In that report, Lane says that Risinger suffers from poor impulse control and low self-esteem. But, Lane thinks Risinger s strong sense of morality and religious background and training had kept him from acting out sexually when he met other women on the internet and later met them in person. He claims it would have been the same here. The district court was not convinced.
Seeking reversal, Risinger claims the evidence was insufficient to prove the attempt element of his conviction. First, he argues that his actions, such as knocking on the door of “Lexi’s” house, did not malee up an overt act. Second, Risinger points to the character evidence that he presented during his bench trial and asserts this evidence shows he never had the intent to commit the crime of indecent liberties with a child.
We list our standard of review.
“When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).
We review Kansas law on overt acts.
Under Kansas law, an overt act is determined in context. There is no statutory definition. Thus, “ ‘[e]ach case is dependent on its particular facts and the reasonable inferences the jury may draw from those facts.’ [Citation omitted.]” State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007). Nevertheless, PIK Crim. 3d 55.01 indicates that “[a]n overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense.” See State v. Peterman, 280 Kan. 56, Syl. ¶ 2, 118 P.3d 1267 (2005).
Here, Risinger maintains his actions amounted to mere preparation but not an overt act toward committing the crime of indecent liberties with a child. “Mere preparations” in prior cases include “devising or arranging the means or measures necessaiy” for committing the offense. See Peterman, 280 Kan. at 61.
In Peterman, the defendant was in a club conversing with Donna Davis about making money from child pornography. Davis, intending to see if die defendant was serious, asserted that she could provide the defendant with young girls and gave him her pager number for a later contact. Two weeks later, the defendant paged Davis to see if she had any young girls that he could have sex with and photograph that night. Davis lied and said yes, described her 9-year-old niece, and then called the police about the matter. Davis then provided the defendant with the location of her brother’s apartment.
The defendant arrived about 20 minutes later. Davis joined the defendant in his truck and conversed with him until the police arrived. In this conversation, the defendant told Davis that he wanted to drug the little girl, penetrate her vagina with a vibrator, and have sex with her. The defendant also showed Davis his briefcase which contained dildos, vibrators, sex creams, condoms, and photographs of naked little girls. He also told Davis that he had sex with those girls in the photographs.
When the police arrived, they arrested the defendant and discovered all the items he had shown Davis. The defendant was convicted of attempted rape, solicitation to commit rape, and solicitation to commit sexual exploitation of a child. In his appeal, the Court of Appeals upheld the latter convictions but reversed his conviction for attempted rape. The State filed a petition for review, which the Supreme Court granted.
In reversing the Court of Appeals’ finding and reinstating the defendant’s conviction for attempted rape, the Supreme Court held that “Peterman’s act of driving to meet Davis to pick up a child for the purpose of sexual intercourse constituted an overt act beyond mere preparations. Peterman went as far as he could toward completing his criminal intentions prior to discovering that the child victim was fictional.” 280 Kan. at 64.
Similarly, the evidence here shows that Risinger went as far as he could toward completing the crime of indecent liberties with a child before discovering the child victim was fictitious. Risinger engaged in over 15 online conversations with “Lexi” spanning the period from January 14, 2006, to February 3, 2006. But, leaving his keyboard behind, Risinger arose and took action. He left his residence with the purpose of making out, feeling around, and/or having oral sex. Risinger arranged a meeting with “Lexi,” drove to her location, approached what he thought was her house, and knocked on the door. Risinger’s conduct was not mere preparation but was essential steps in completing the crime. Thus, his conduct satisfies the requirement for an overt act, to prove an attempted crime. There is sufficient evidence on this point.
We also think there was sufficient evidence to prove Risinger intended to commit the crime of indecent liberties with a child.
To be convicted of an attempted crime a defendant must intend to commit the crime attempted. See Peterman, 280 Kan. at 60. The underlying crime in this matter is indecent liberties with a child. K.S.A. 21-3503(a) defines indecent liberties with a child as engaging in any lewd fondling or touching of a child who is 14 or more years old but less than 16 years old.
Here, Risinger’s last online conversation with “Lexi,” occurring on the day of his arrest, shows Risinger’s intent to engage in lewd fondling or touching of a 14-year-old child. We give some excerpts:
“[Risinger]: but surely you know what things we could do . . . you know what there is to do . . . and surely you have thoughts on what u’d like to tiy . . . I'd be glad to do anything.
“[Lexi]: hummm well like wut? I will tell yea if im kewl wit it.
“[Risinger]: tell me . . . I’ve done everything ... u are the one I want to please ... do what u want ... so tell me what u want.
“[Risinger]: well, there is making out, which you’ve done . . . there is feelling [sic] around, you feeling me and playing with me, me feeling around on you. there is oral sex.
“[Risinger]: so, what would u like to do when I come over? Surely you have something u want to try . . . you have made out . . . what else would you like to tiy? tell me.
“[Risinger]: like I said, I won’t make u do anything u don’t want to do ... I don’t want to have sex . . . we shouldn’t do that.
“[Risinger]: but . . . let’s talk about what we could do . . . so either of us won’t be surprised ... I’ll mention things . . . tell me if you want to do them.”
We need not elaborate on this. Risinger’s own words betray his intent. Nevertheless, Risinger asks us to find his character evidence more credible than the State’s evidence. In reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006).
The evidence presented at this trial is enough for a rational fact-finder to find Risinger guilty beyond a reasonable doubt.
Affirmed. | [
17,
-4,
-4,
-82,
10,
96,
42,
60,
118,
-125,
127,
51,
-81,
-53,
4,
59,
-107,
103,
92,
97,
-39,
-77,
-89,
-95,
-14,
-13,
-5,
-41,
-73,
79,
116,
-4,
12,
112,
-48,
117,
66,
-54,
-91,
90,
-126,
-123,
-112,
-22,
-110,
66,
38,
123,
-111,
15,
113,
-66,
-13,
74,
30,
-41,
-85,
104,
2,
-3,
-30,
112,
-80,
29,
-51,
54,
-93,
36,
-99,
1,
-8,
30,
-100,
-103,
0,
-24,
115,
-90,
-128,
-12,
111,
-85,
-124,
96,
98,
-95,
-19,
-25,
-87,
-127,
63,
126,
-67,
-90,
120,
105,
73,
109,
-65,
-65,
36,
52,
44,
104,
115,
-50,
61,
108,
-117,
-49,
-76,
-111,
-51,
32,
20,
-71,
-25,
53,
69,
49,
-49,
-30,
84,
84,
-8,
-33,
-116,
-73
] |
Hill, J.:
Jeffrey LaShure sued two emergency room doctors, Marc Felts, M.D., and Titus Darabant, M.D., for incorrectly diagnosing his condition as gout, a purine metabolism disorder. LaShure discovered later that he suffered from osteomyelitis, a bacterial bone infection. This appeal centers on a claim of jury instruction error. The trial court gave several instructions from Pattern Instructions for Kansas (PIK) that were not objectionable. But this appeal arises from the trial court reading a paraphrased jury instruction pulled from an old Kansas Supreme Court opinion. The instruction, drafted in negative terms, tried to tell the jury what the law was not. It injected new ideas into the case that served only to confuse and mislead the jury. Jury instructions must clearly express the law to the jury, not obscure it. Because we cannot hold this error as harmless, we must reverse and remand the case for a new trial.
Also, the two doctors cross-appeal, claiming LaShure’s expert witness faded to prove that their negligence caused his damages. An appellate court will not reweigh the evidence, evaluate credibility, or decide factual disputes. When we view the record in the light most favorable to the appellant, as the law requires, we hold that LaShure’s witness’ testimony is sufficient to show causation. Therefore, we deny the cross-appeal.
LaShure vainly seeks help for his hurting foot.
Jeffrey LaShure is diabetic with a history of gout. After completing his shift at a Manhattan convenience store, on June 5,2003, LaShure went to the emergency room at Geary Community Hospital complaining of foot pain. Dr. Marc Felts examined LaShure. Based on the examination and LaShure’s medical history, Dr. Felts diagnosed and treated LaShure for gout. He prescribed medicine for pain and medicine for gout and told LaShure to elevate his foot and consult with a podiatrist if his condition worsened.
Three days later, LaShure returned to the emergency room because his foot pain had increased. This time, Dr. Titus Darabant examined LaShure. After examining LaShure and reviewing his medical records from the prior visit, Dr. Darabant continued the treatment for gout. He drought the gout medicine had not yet been effective because of LaShure’s continuous standing at work since his prior emergency room visit. Dr. Darabant prescribed the next stage of gout treatment and told LaShure to follow up with his primary care physician within 24-48 hours whether his condition improved or not.
Following up, LaShure called his primary care physician on June 9, 2003. His doctor gave LaShure a prescription but did not see him. Because LaShure’s condition did not improve, he had an x-ray on June 12. The doctors read it as normal. LaShure’s primary care physician saw him on June 16 and told LaShure they could treat his foot with oral antibiotics or admit him to the hospital. LaShure chose to go to the hospital and received antibiotics intravenously. The next day, LaShure had a magnetic resonance imaging test that revealed osteomyelitis, a bacterial bone infection in his foot. Based on this diagnosis, LaShure had surgery to remove infection from his foot and implant a catheter for the continued intravenous administration of antibiotics. He stayed in the hospital for about a week.
We list some details about LaShure’s lawsuit and trial.
On July 9, 2004, LaShure filed a medical malpractice action against Dr. Felts and Dr. Darabant in Geary County District Court. At trial, he asserted both doctors had departed from the applicable standard of care in three ways. First, they failed to include in the differential diagnosis an infected foot in a diabetic patient. Second, they failed to treat LaShure’s condition with oral antibiotics. Third, they made a presumptive diagnosis of gout. LaShure alleged that because of these departures, his “fractured and infected foot went undiagnosed until June 17, 2003.” This resulted “in more pain, suffering, disability and accompanying mental anguish, medical bills and lost time from employment.”
At trial, LaShure testified on his own behalf and presented the testimony of Dr. Felts; Dr. Darabant; Dr. Richard Lochamy, LaShure’s primary care physician; and Dr. Joseph Donnelly, LaShure’s expert witness. The defendants presented the testimony of LaShure and four expert witnesses.
The jury returned a no-fault verdict after asking the court to clarify the first paragraph of Instruction No. 15. After the court refused to clarify the instruction, the jury responded with its verdict.
The law about review of jury instructions is clear and well settled.
An appellate court reviews all the instructions, and isolated errors found in them do not call for reversal:
“The trial court is required to properly instruct the jury on a party’s theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. [Citation omitted.]” (Emphasis added.) Pullen v. West, 278 Kan. 183, 203, 92 P.3d 584 (2004).
Our Supreme Court has, for some time, recommended that our trial courts use PIK instructions because the committee developed the instructions to bring accuracy, clarity, and uniformity to jury instructions. Judges should only make modifications or additions if the particular facts of a case require it. See State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004).
We repeat here all the professional liability instructions given at the trial.
The following are all the court’s instructions that dealt with the law of medical negligence. All but No. 15 are from pattern instructions found in PIK. LaShure’s appeal focuses on No. 15.
“INSTRUCTION NO. 8
“In performing professional services for a patient, a physician has a duty to use that degree of learning and skill ordinarily possessed and used by members of that profession and of that school of medicine in the community in which the physician practices, or in similar communities, and under like circumstances. In the application of this skill and learning the physician should also use ordinary care of diligence. A violation of this duty is negligence.”
“INSTRUCTION NO. 9
“In determining whether a physician used the learning, skill, and conduct required, you are not permitted to arbitrarily set a standard of your own or determine this question from your personal knowledge. On questions of medical or scientific nature concerning the standard of care of a physician, only those qualified as experts are permitted to testify. The standard of care is established by members of the same profession in the same or similar communities under like circumstances. It follows, therefore, that the only way you may properly find that standard is through evidence presented by a physician expert witness.”
“INSTRUCTION NO. 10
“A physician who holds himself out to be a specialist in a particular field of medicine has a duty to use his skill and knowledge as a specialist in a manner consistent with the special degree of skill and knowledge ordinarily possessed by other specialists in the same field of expertise at the time of the diagnosis and treatment. A violation of this duty is negligence.”
“INSTRUCTION NO. 12
“Where, under the usual practice of the profession of the physicians, Marc Felts, M.D. and Titus Darabant, M.D., different courses of treatment are available which might reasonably be used, the physicians have a right to use their best judgment in the selection of the choice of treatment.
“However, the selection must be consistent with the skill and care which other physicians practicing in the same field in the same or similar community or specialties practicing in the same field of expertise would use in similar circumstances.”
“INSTRUCTION NO. 13
“A physician who undertakes the treatment and care of a patient and refers the patient to the patient’s primary care physician for follow-up evaluation, treatment and care is not legally responsible for any negligence on the part of the patient’s primary care physician.”
“INSTRUCTION NO. 15
“The law does not require that the care provided to a patient by a medical care provider be perfect. A provider is not responsible in damages for lack of success or honest mistake or errors of judgment unless it is shown that he did not exercise the reasonable care, sldll and diligence used by providers in the same field of expertise under like circumstances.
“If there is more than one course of treatment that a physician could reasonably pursue, it is not negligence for the physician to adopt one of the methods even though subsequent events may show that the choice was not the best.”
We look at Instruction No. 15 and its effect.
The first paragraph of the instruction is the primary subject of our inquiry because the second paragraph is essentially a repetition of a PIK instruction already given by the court in prior instructions. Instruction No. 15 read:
“The law does not require the care provided to a patient by a medical care provider be perfect. A provider is not responsible in damages for lack of success or honest mistake or errors of judgment unless it is shown that he did not exercise the reasonable care, skill and diligence used by providers in the same field of expertise under like circumstances.
“If there is more than one course of treatment that a physician could reasonably pursue, it is not negligence for the physician to adopt one of the methods even though subsequent events may show that the choice was not the best.”
The defendants requested this instruction, citing Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, decision clarified on denial of rehearing hy 187 Kan. 186, 354 P.2d 670 (1960). LaShure objected to the instruction on several grounds. The instruction was phrased in the negative; it was not a PIK instruction; it did not follow the PIK format; and it was cumulative with other instructions and was not proper to give in a misdiagnosis case.
Instruction No. 4 in Natanson is the ostensible source for Instruction No. 15 in this case. We do note some differences however. The instruction referred to in Natanson says:
“ ‘The law does not require that treatments given by a physician to a patient shall attain nearly perfect results. He is not responsible in damages for lack of success or honest mistakes or errors of judgment unless it be shown that he did not possess that degree of learning and skill ordinarily possessed by radiologists of good standing in his community or that he was not exercising reasonable and ordinary care in applying such skill and learning to the treatment of the patient. And if among radiologists more than one method of treatment is recognized, it would not be negligence for the physician to have adopted any of such methods if the method he did adopt was a recognized and approved method in the profession at die time and place of treatment.’ ” (Emphasis added.) 186 Kan. at 399.
Prior cases cited hy Natanson
None of the cases cited in Natanson deal with instructions, but they demonstrate a shift from a contract theory of liability in professional liability cases to modem principles of negligence. The law of professional liability in Kansas has changed over time. Professional liability originally arose as a violation of a contract covenant, implied by law. Now, we have professional liability based on breaches of duties arising from the reasonable practice of the profession. Judges must view ancient precedents with caution when instructing juries in modern cases. Thus, before we fully examine Natanson, we follow the historical string from contract to contemporary law.
In 1870, the law clearly sounded in contracts:
"[A physician] is never considered as warranting a cure, unless under a special contract for that purpose; but his contract, as implied in law, is, that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by others of his profession; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes; and that he will use his best judgment in all cases of doubt as to the proper course of treatment.” Tefft v. Wilcox, 6 Kan. 46, 61 (1870).
Then, in 1912, the court speaks of reasonable care and diligence by a physician using methods understood and settled by the profession and not insuring a cure:
“ ‘A physician is required to possess a reasonable degree of learning and skill only; he is required to exercise ordinary care and diligence in the treatment of a patient, and is not responsible for errors of judgment in matters of reasonable doubt. He does not insure a cure, and in the case of a dislocated finger, the fact that the finger does not do weE under this treatment does not of itself alone show negligence on the part of the physician. AE he is required to do is to use ordinary care and diligence in the treatment of the patient.’ ” Sly v. Powell, 87 Kan. 142, 151, 123 Pac. 881 (1912).
Errors of professional judgment are considered for the first time in 1919:
“A physician or surgeon cannot be held liable for the results of an honest error in judgment, if it is shown that he possesses a reasonable degree of skill and learning in medicine and surgery, and that he used ordinary skill and care in the diagnosis, operation, and treatment of the plaintiff. [Citation omitted.]” Paulich v. Nipple, 104 Kan. 801, 805 180 Pac. 771 (1919).
In 1923, our Supreme Court, although not using the term “negligence,” approaches that field of law:
“In case of doubt as to which of two or more courses is to be pursued, he must use his best judgment. [Citation omitted.] He does not guarantee good results, and no civil liability arises merely from bad results [citations omitted], nor if bad results are due to some cause other than his treatment. [Citation omitted.] But where he fails to possess ordinary learning and skill or fails to use ordinary care and diligence, and injury results therefrom, he is hable for tire injury to the patient in a civil action for damages. [Citations omitted.] These principles apply to diagnosis as well as to treatment thereafter. [Citation omitted.]" James v. Grigsby, 114 Kan. 627, 632, 220 Pac. 267 (1923).
Then, in 1939, the court clarifies the source of any standards of conduct by which a doctor s actions are measured but maintains the physician is not a guarantor:
“A physician or surgeon is not a guarantor of the correctness of his diagnosis or of the efficacy of the treatments prescribed [citation omitted], but he is required to exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by die members of his profession in good standing and to use ordinary and reasonable care and diligence and his best judgment in the application of his sltill to the case. [Citation omitted.]” Riggs v. Gouldner, 150 Kan. 727, 728, 96 P.2d 694 (1939).
Then, in 1952, the court clearly deals with negligence and a presumption (that no longer exists) that was recognized at the time:
“This court has recognized the general rule that a physician or surgeon is presumed to have exercised his legal duty of ordinary care and skill and, in the absence of an allegation in the petition to the contrary, it is presumed that he possesses that reasonable degree of learning and sltill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities, and that he carefully and skillfully operated on the patient. No presumption of negligence of a physician or surgeon is to be indulged from the fact of injury or adverse result of his treatment of, or operation on, the patient. [Citations omitted.]” Cummins v. Donley, 173 Kan. 463, 465, 249 P.2d 695 (1952).
Then, in 1957, the Supreme Court recognized advances in medical and surgical science and public policy concerns:
“The relationship between a physician and Iris patient, implied in law, is that he possesses that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in tire community where he practices or similar communities, having due regard for the advance in medical or surgical science at the time, and that he will use such learning and skill in his treatment of the patient with ordinary care and diligence. This rule is elementary and is founded on considerations of public policy, its purpose being to protect the health and lives of the public. A physician is not a guarantor of good results, and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment. In case of doubt as to which of two or more courses is to be pursued a physician is bound to use Iris best judgment.” Goheen v. Graben 181 Kan. 107, 111-12, 309 P.2d 636 (1957).
We list here the present-day law of professional liability.
The transition from contract principles to negligence rules is now complete, but certain elements remain in the law. The following elements establish a medical malpractice case:
1. The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury;
2. The physician breached this duty or deviated from the applicable standard of care; and
3. The patient was injured and the injury proximately resulted from the physician’s breach of the standard of care.
See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008); Nold v. Binyon, 272 Kan 87, 103, 31 P.3d 274 (2001); Delaney v. Cade, 255 Kan 199, 202-03, 873 P.2d 175 (1994).
We examine the instruction referred to in Natanson.
Obviously, the Supreme Court has not remained static when dealing with cases of professional liability. But we question why appellees rely on 50-year-old dicta as the source of an instruction. In Natanson, the Supreme Court did not approve the legal statements as an instruction. In fact, in that case, the jury in a special verdict returned an answer to the court that the doctor was “not guilty” of negligence, a concept not in use today. Nevertheless, the Supreme Court reversed the judgment in Natanson because the trial court failed to instruct the jury about informed consent. The court, in passing, simply commented about two instructions raised in the appeal and then focused on the issue of the lack of an informed consent instruction.
Here, Instruction No. 15 changes the phrase from Natanson “ ‘[t]he law does not require that treatments given by a physician to a patient shall attain nearly perfect results’ ” into “that the care provided a patient by a medical care provider be perfect.” See 186 Kan. at 399. Perfect results in Natanson becomes perfect care in this case. Since no one is perfect, we must question if a physician can ever be liable under such a standard. By whom would perfection be defined?
This instruction has injected the idea of perfection into the law of professional liability that has no historical foundation. Further, we think this idea of perfect results in the Natanson instruction arises from the old contract law concept that a physician is not a guarantor of good results. See Paulich v. Nipple, 104 Kan. 801, 805, 180 Pac. 771 (1919). But none of the old cases cited in Natanson speak in terms of perfect care. More importantly, none of the expert witnesses here spoke of perfect care as a standard of care applicable to this case.
Looking further into the instruction, we note the liability resulting from “lacking the degree of learning and skill” used in the Natanson instruction is omitted in Instruction No. 15. This omission serves to limit liability and is not accurate. With this omission, the statement conflicts with Instruction No. 8 which tells the juiy “a physician has a duty to use that degree of learning and skill ordinarily possessed and used by members of that profession.”
Drafted in the negative
Instruction No. 15 is drafted in a way that tries to tell the reader what the law is not: “The law does not require ... A provider is not responsible in damages for lack of success Our Supreme Court has warned against the use of negative instructions. See State v. Borman, 264 Kan. 476, 482-83, 956 P.2d 1325 (1998).
Often, academics and judges will write in negative terms to an educated audience familiar with the subject matter. Such sentences are used to complete the reader s understanding of a particular subject because they offer shades of meaning that show subtle nuances. But negative sentences do not make good juiy instructions if the aim is to provide a juiy with an understanding of fundamental points of law that apply to a given case. The use of negatives with negatives is one of the language constructions that decrease a juiy’s understanding of an instruction. According to one psycholinguistic study, such sentences take much longer to process, and the reader must have higher language skills to understand their meaning. See Charrow and Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, Colum. L. Rev. 1306 (1979). Obviously Instruction No. 15, especially the first paragraph, contains such constructions.
We know Instruction No. 15 was confusing to the jury.
When Instruction No. 15 is read with Instruction No. 9, confusion arises. Instruction No. 9 says: “On questions of medical or scientific nature concerning the standard of care of [a] physician only those qualified as experts are permitted to testify.” Here, none of the experts gave evidence of a perfect standard of care. What could a reasonable juiy malee of that? The jury asked for clarification.
The request made by the jury was: “Please clarify Instruction 15, the first paragraph.” The trial judge offered no help to the jury. The judge responded: “I cannot now comment on any jury instruction.” After that, the jury returned its verdict. We hold the confusing way that Instruction No. 15 was written, in negative terms, along with the insertion of the idea of perfect care, created confusion among the jurors to such an extent that reversal is required. Despite the arguments of the two doctors to the contrary, this instruction is not plainly written or easy to understand.
We hold there is no reason to grant the doctors a directed verdict.
On cross-appeal, the defendants contend the district court erred in not granting their motion for a directed verdict. A trial court’s decision on a motion for judgment as a matter of law, under K.S.A. 60-250, is reviewed under the former directed verdict standard of review. Under this standard, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. If reasonable minds could reach different conclusions based on the evidence, the motion must be denied. The appellate court applies a similar analysis when reviewing the trial court’s decision on a motion for directed verdict. Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007).
Specifically, the defendants contend LaShure’s expert witness, Dr. Donnelly, did “not testify within a reasonable degree of medical certainty that Mr. LaShure’s hospitalization and surgery would have been avoided if [the defendants] diagnosed infection or provided antibiotic treatment.” They claim Dr. Donnelly could not testify with enough certainty that LaShure did not already have osteomyelitis when he was diagnosed by the defendants. In their view, LaShure would have wanted the same surgery and treatment for osteomyelitis at the time of the defendants’ diagnoses as he later received when he was diagnosed with osteomyelitis. Because the treatment in this scenario would have been the same as what LaShure ultimately received, and because “[a]ll of LaShure’s claimed injuries flow from the fact he had surgery for osteomyelitis,” the defendants assert LaShure failed to establish that the defendants’ conduct was the cause of his surgery or that the defendants’ conduct resulted in any damages to LaShure.
LaShure responds by contending Dr. Donnelly’s failure to give specific testimony about whether LaShure had osteomyelitis at the time of the initial diagnosis is immaterial. Fixing the necessary treatment did not depend on whether LaShure had osteomyelitis at the first diagnosis. Dr. Donnelly testified that LaShure had an infected foot that likely would have improved with oral antibiotics, and LaShure asserts the defendants’ failure to diagnose this infection resulted in “prolonged medical treatment, pain and suffering, and expenses.”
When viewed in the light most favorable to LaShure, Dr. Donnelly’s testimony appears sufficient to establish causation. He testified he did not agree the necessary treatment was dependent on whether LaShure had osteomyelitis. He testified that his opinion was that it was more likely than not that LaShure “would have gotten better with an oral antibiotic.” He testified that LaShure could more probably than not have avoided surgeiy, the intravenous antibiotics, and installing the catheter if he had been properly examined and treated at the time of the first diagnosis.
The defendants cite testimony by Dr. Donnelly, claiming he could not opine whether LaShure had osteomyelitis at the first diagnosis and that oral antibiotics will not cure osteomyelitis. This testimony seems to undermine Dr. Donnelly’s testimony that LaShure would have gotten better with an oral antibiotic. But this court’s role is not to weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008). We believe that when our dissenting colleague writes the doctor’s testimony “was completely undermined by the cross-examination,” he engages in weighing the evidence. We must leave such tasks to the jury. Because Dr. Donnelly provided testimony that could show causation and injury, the district court did not err in overruling the defendants’ motion for directed verdict.
Reversed and remanded for a new trial. Cross-appeal denied. | [
80,
-20,
-67,
13,
8,
64,
49,
2,
65,
-127,
55,
115,
125,
-54,
-123,
47,
-11,
45,
84,
123,
84,
-77,
23,
65,
-30,
-46,
89,
-57,
-75,
-17,
-12,
-36,
13,
120,
-126,
-107,
-26,
75,
-19,
92,
-122,
22,
-128,
80,
83,
-125,
124,
118,
92,
15,
48,
-114,
-29,
44,
62,
-61,
104,
48,
74,
52,
-55,
-95,
-39,
13,
125,
-123,
-95,
54,
-97,
-123,
82,
28,
-102,
49,
8,
-4,
50,
-74,
-126,
116,
71,
25,
4,
103,
99,
-95,
9,
-19,
56,
-70,
31,
95,
15,
-92,
-126,
104,
106,
10,
-73,
-75,
124,
94,
7,
-8,
-11,
85,
-97,
108,
-128,
-106,
-112,
-77,
-1,
49,
-100,
3,
-21,
-121,
16,
81,
-123,
-86,
92,
-59,
51,
-109,
110,
-74
] |
Caplinger, J.:
This appeal involves a dispute over real property located in Reno County. Jon R. and Debra G. Barb (the Barbs) and Donald W. and Donna M. Badgett (the Badgetts) (collectively, the appellants) appeal from the district court’s determination that they did not obtain ownership of the disputed strip of land through adverse possession, nor did they obtain a prescriptive easement. Additionally, the appellants challenge the district court’s damages award to Bill and Lois J. Rowland (die Rowlands).
We do not reach the merits of this appeal, however, because the appellants’ failure to file their notice of appeal within the statutory period created a jurisdictional defect which is not subject to the statutoiy exception for excusable neglect. See K.S.A. 60-2103(a). Further, to the extent the doctrine of unique circumstances remains viable in Kansas after Finley v. Estate of DeGrazio, 285 Kan. 202, 170 P.3d 407 (2007), the facts of this case preclude application of the doctrine. Accordingly, this appeal is dismissed.
Factual and procedural background
The underlying facts of this dispute are set forth in Rowland v. Barb, No. 94,151, unpublished opinion filed August 11, 2006 (Rowland I), and need not be repeated here. Highly summarized, the parties continue to dispute ownership of an approximate 700-foot strip of land which lies between two parcels of land formerly owned by the Rowlands. More than 20 years ago, the Barbs purchased one parcel and the Badgetts purchased the other. The Row-lands retained ownership, by title, of the strip of land between the parcels for use as a southern access route to their pasture on the northern border of the parcels sold to the appellants.
Procedurally, the case began in October 2003 when the Row-lands filed a petition to eject the appellants from the disputed strip of land and to recover damages for trespass. In a counterclaim, the appellants asserted they had obtained ownership of the strip of land through adverse possession or, alternatively, that they had obtained a prescriptive easement. The district court concluded the appellants failed to establish their claim of adverse possession, found in favor of the Rowlands, and awarded $15,000 in damages. The appellants moved for reconsideration, and the district court reversed its decision, concluding the appellants did obtain ownership of the land through adverse possession, awarding legal title to the appel lants and rescinding the award of damages. The district court denied the Rowlands’ subsequent motion for reconsideration, and the Rowlands appealed to this court.
On appeal, the panel reviewed the district court’s factual findings and concluded the findings were insufficient to support the element of exclusive possession for a period of 15 years. Rowland I, slip op. at 6-10. Thus, the panel reversed and remanded “for additional findings of fact as to whether the defendants were in exclusive possession,” and noted that the issue of damages “may be further considered by the district court on remand.” Slip op. at 10-11.
On remand, the district court heard oral arguments and received proposed findings of fact from both parties. The court concluded the evidence was insufficient to support the appellants’ claim of adverse possession and prescriptive easement and reinstated the damages award in favor of the Rowlands. The district court denied the appellants’ subsequent motion for reconsideration, and the appellants appeal the district court’s findings.
Jurisdiction to hear untimely appeal
Before considering the merits of the issues raised in this second appeal, we must first address the Rowlands’ contention that we lack jurisdiction to review this appeal because the appellants filed an untimely notice of appeal. The appellants object to our consideration of this issue, pointing out that the Rowlands failed to file a cross-appeal from the district court’s ruling granting the motion to file an appeal out of time.
Contrary to the appellants’ suggestion, the Rowlands’ failure to file a formal cross-appeal does not relieve this court of its independent duty to question jurisdiction. The right to appeal is purely statutory, and if the record shows a lack of jurisdiction for an appeal, an appellate court must dismiss the appeal. Smith v. Russell, 274 Kan. 1076, 1080, 58 P.3d 698 (2002). Whether jurisdiction exists is a question of law subject to de novo review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Moreover, resolution of this issue involves interpretation of K.S.A. 60-2103(a), which is also subject to de novo review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
In order to timely perfect an appeal, a notice of appeal must be filed within 30 days of the entry of judgment. K.S.A. 60-2103(a). Historically, we have recognized two exceptions to this rule. Statutorily, the legislature created an exception which permits the district court to extend the time for appeal by an additional 30 days upon a showing of excusable neglect based on a failure to learn of the entry of judgment. K.S.A. 60-2103(a). Doctrinally, Kansas appellate courts have applied a “unique circumstances” exception to permit review of an otherwise untimely appeal when (1) the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant files a notice of appeal within the period apparently judicially extended. Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972 P.2d 747 (1999) (citing Schroeder v. Urban, 242 Kan. 710, Syl., 750 P.2d 405 [1988]).
As discussed below, the limited statutoxy exception does not apply here and the unique circumstances doctrine has recently been disfavored, if not disapproved, by our Supreme Court in Finley v. Estate of DeGrazio, 285 Kan. 202, 170 P.3d 407 (2007).
Application of K.S.A. 60-2103(a)
The appellants argue the district court had statutory authority to grant the extension to file an out of time appeal based on “excusable neglect” under K.S.A. 60-2103(a).
A district court may extend the 30-day time period for filing a notice of appeal for an additional 30 days “upon a showing of excusable neglect based on a failure to learn of the entry of judgment.” K.S.A. 60-2103(a). Absent an affirmative showing by the appellants that their failure to timely file the notice of appeal was based on a failure to learn of the entiy of judgment, the district court has no authority to grant an extension of time under K.S.A. 60-2103(a). Stanton v. KCC, 2 Kan. App. 2d 228, 230, 577 P.2d 367, rev. denied 224 Kan. 845 (1978).
In Stanton, the appellants filed a notice of appeal more than 30 days late based upon their counsel’s mistaken belief that they had 60 days to file the notice because a state agency was involved. The district court granted appellants’ leave to file their appeal out of time based upon its finding that counsel acted in good faith and the neglect was excusable. Relying upon the plain language of K.S.A. 60-2103(a), this court determined that the only statutory exception for excusable neglect is “based on a failure of a party to learn of the entry of judgment.” 2 Kan. App. 2d at 229 (quoting K.S.A. 60-2103[a]). Because appellant’s counsel admitted that he learned of the entry of judgment, the Stanton court concluded the district court lacked authority to grant the extension of time. 2 Kan. App. 2d at 229-30.
Here, the district court received the mandate in Rowland I on September 15, 2006. After hearing argument and receiving proposed findings of fact and conclusions of law from the parties, tire district court entered an order adopting the Rowlands’ proposed findings of fact and conclusions of law. The journal entry of judgment, which incorporated the memorandum decision, was filed on January 4, 2007. Finally, on January 19, 2007, the district court denied the appellants’ motion for reconsideration.
Thus, the 30-day time period from which to file a timely notice of appeal began to run on January 20, 2007 and expired on February 18, 2007. See K.S.A. 60-206(a).
On March 1, 2007, the appellants moved to file an appeal out of time based on the their “failure to learn that the order filed on January 19, 2007, constituted an entry of judgment from which the appeal time started to run.” In support of the motion, appellants’ counsel filed an affidavit averring that he assumed, based on the language of this court’s opinion in Rowland I, that the case would be returned to this court after the district court made additional findings of fact. Counsel further stated that February 27, 2007, was the first day that he was aware that the district court had received the mandate and that the January 19, 2007, district court decision was a final judgment. After “discovering” the mandate in the case file, appellants’ counsel contacted the Court of Appeals and learned that when a mandate is issued, a new appeal must be filed.
On March 13, 2007, the district court granted the appellants’ motion to file an appeal out of time on the grounds of “excusable neglect based on [the appellants’] failure to learn of the date of the entry of the judgment.” The district court extended the time to file an appeal for 30 days from February 18, 2007, citing K.S.A. 60-2103(a). The appellants filed their notice of appeal on March 15, 2007.
Although their counsel timely learned of die January 19, 2007, entry of judgment, appellants argue on appeal that the district court properly applied the excusable neglect exception of K.S.A. 60-2103(a) because their counsel was unaware of the significance of the entry of judgment. See K.S.A. 60-2103(a). Appellants suggest the language of this court’s order remanding the case to the district court caused this misunderstanding. Appellants further claim that their counsel was unaware until February 27, 2006, that the mandate from this court had been received by the district court.
In addressing these claims, we initially note that appellants’ counsel’s claim that he was unaware of the receipt of the mandate from this court until February 27, 2006, is inconsistent with the record. The district court stated in the first sentence of its Memorandum Decision of December 6, 2006, that “the Mandate from the Kansas Court of Appeals in Case No. 05-94151-A” was received on September 15, 2006. Also, on the first page of the district court’s Journal Entry of Judgment of January 4, 2007, the district court again noted its receipt on December 6, 2006, of “the Mandate from the Kansas Court of Appeals in Case No. 05-94151-A.”
In any event, even assuming the accuracy of appellant’s counsel assertion that he misunderstood the significance and finality of the journal entry of judgment, we must nevertheless conclude the district court erred in granting an extension of time pursuant to K.S.A. 60-2103(a) based upon excusable neglect. As this court held in Stanton, the plain language of K.S.A. 60-2103(a) prohibits application of the exception absent the failure of a party to learn of the entry of judgment. 2 Kan. App. 2d at 229. It is undisputed that appellants’ counsel timely learned of the entry of judgment.
We thus conclude the district court erred in granting appellants an extension of time to file a notice of appeal under K.S.A. 60-2103(a) based upon excusable neglect.
Unique Circumstances
Alternatively, appellants urge us to retain jurisdiction under the unique circumstances doctrine.
In Kansas, the unique circumstances doctrine was first recognized in Schroeder, 242 Kan. 710. There, our Supreme Court approved this court’s holding in Stanton, i.e., that a district court lacks statutory authority under K.S.A. 60-2103(a) to grant an extension of time to file a notice of appeal except upon a finding that the party failed to learn of the entry of judgment. 242 Kan. at 711-12. The Schroeder court distinguished Stanton, however, because the party seeking to appeal out of time in Stanton did not request the extension within the original 30-day filing period. 242 Kan. at 712. Our Supreme Court has applied the unique circumstances doctrine to permit an untimely appeal where (1) the appellant reasonably and in good faith relied upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant filed a notice of appeal within the period apparently judicially extended. Finley, 285 Kan. at 207; Nguyen, 266 Kan. at 587; see also In re Tax Appeal of Sumner County, 261 Kan. 307, 316-17, 930 P.2d 1385 (1997) (untimely filed petition for reconsideration excused when Board of Tax Appeals made erroneous statement regarding filing period); Slayden v. Sixta, 250 Kan. 23, 30-31, 825 P.2d 119 (1992) (doctrine applied when 40-day delay in serving summons was caused by error of clerk of district court); Schroeder, 242 Kan. at 713-14 (untimely filing of notice of appeal excused when the district court purported to extend the appeal period).
Significantly, Schroeder relied upon Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 9 L. Ed. 2d 261, 83 S. Ct. 283 (1962), to conclude that in the absence of statutory authority to grant an extension, a district court may nevertheless grant an extension based upon the equitable doctrine of unique circumstances. 242 Kan. at 712-14.
However, in Bowles v. Russell, 551 U.S. 205, 168 L. Ed. 2d 96, 127 S. Ct. 2360 (2007), the United States Supreme Court expressly overruled Harris Truck Lines and held that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” 551 U.S. at 214. The Court reasoned:
“Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate. Given that this Court has applied Harris Truck Lines only once in the last half century, Thompson [citation omitted], several courts have rightly questioned its continued validity. . . . We see no compelling reason to resurrect the doctrine from its 40-year slumber. Accordingly, we reject Bowles’ reliance on the doctrine, and we overrule Harris Truck Lines and Thompson to the extent they purport to authorize an exception to a jurisdictional rule.” 551 U.S. at 214.
Further, the Court in Bowles specifically distinguished between statute-based filing periods which are jurisdictional and rule-based time limits which are procedural and “ ‘can be relaxed by the Court in the exercise of its discretion.' [Citation omitted.]” 551 U.S. at 212.
Our Supreme Court had an opportunity to consider Bowles in a decision filed after the parties filed their briefs in this appeal, Finley, 285 Kan. 202. There, the district court initially granted the plaintiffs motion for an extension of time under K.S.A. 60-203(a)(1), which gives the district court authority to extend the time to perfect service of process for an additional 30 days “upon a showing of good cause.” K.S.A. 60-203(a)(1). However, upon reconsideration, the district court found that the plaintiff failed to establish good cause, further found the unique circumstances doctrine inapplicable, and dismissed the petition as time barred under the statute of hmitations in K.S.A. 60-513(a)(7). A panel of this court reversed the district court’s dismissal, applying the unique circumstances doctrine in Finley v. Estate of DeGrazio, 36 Kan. App. 2d 844, 148 P.3d 1284 (2006).
In reversing the panel’s decision, our Supreme Court specifically recognized Bowles’ conclusion that a court lacks authority to create equitable exceptions to jurisdictional requirements and, therefore, that “ ‘use of the unique circumstances doctrine is illegitimate.’ ” Finley, 285 Kan. at 210 (citing Bowles, 551 U.S. at 214). Despite its explicit recognition of Bowles’ holding, the Finley court proceeded to consider application of the unique circumstances doc trine, ultimately concluding the doctrine did not apply because it “depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error” — concepts the court concluded could not be applied to the facts before it. 285 Kan. at 209, 213.
It appears the Finley court interpreted Bowles to permit application of the unique circumstances doctrine only if equitable exceptions justify its application — when in fact, Bowles ruled that courts have no authority to apply the doctrine “to create equitable exceptions to jurisdictional requirements.” 551 U.S. at 214. Further, while our Supreme Court recognized that the unique circumstances doctrine had its roots in Harris Truck Lines, Inc., it failed to recognize that the United States Supreme Court explicitly overruled Harris Truck Lines to the extent it authorized an exception to a jurisdictional rule. Bowles, 551 U.S. at 214. This overruling is significant in that, as discussed, our Supreme Court relied upon Harris Truck Lines in adopting the unique circumstances doctrine in Schroeder, 242 Kan. at 712-13.
Applying Bowles, the appellants’ failure to file their notice of appeal within the statutory period created a jurisdictional defect which could not be cured by application of the “illegitimate” doctrine of unique circumstances. However, even if Finley can be interpreted to preserve the viability of the unique circumstances doctrine, the doctrine could not save this untimely appeal.
Appellants have failed to establish the second of three requirements set out above, i.e., the district court’s order granting the extension was not made and entered prior to the expiration of the official appeal period. The appellants’ original 30-day filing period commenced on January 20, 2007, and expired on February 18, 2007. The appellants filed their motion to appeal out of time on March 1, 2007, well after tire original 30-day filing period had expired, and the district court granted the extension on March 13, 2007. Because the district court’s order granting the extension was not “made and entered prior to the expiration of the official appeal period,” see Nguyen, 266 Kan. at 587, the unique circumstances doctrine, even if viable, would not apply.
Because the appellants failed to timely perfect an appeal, we lack jurisdiction and this appeal is dismissed.
Appeal dismissed. | [
-48,
-18,
-4,
76,
-120,
-24,
24,
-94,
99,
-93,
119,
87,
-19,
-38,
1,
57,
-29,
29,
97,
121,
87,
-73,
79,
-64,
-4,
-5,
-102,
79,
-72,
73,
-90,
-42,
12,
48,
-54,
21,
70,
-62,
-83,
-36,
-82,
-122,
25,
88,
-55,
-64,
56,
107,
18,
79,
49,
15,
-14,
40,
49,
-29,
72,
46,
-117,
45,
19,
-39,
-81,
21,
94,
7,
33,
20,
-80,
67,
72,
-21,
-112,
57,
9,
-24,
115,
50,
-122,
117,
95,
-103,
9,
38,
103,
0,
60,
-17,
96,
56,
14,
89,
9,
-26,
-78,
88,
83,
35,
-74,
-99,
125,
-126,
67,
-2,
-17,
-124,
29,
-24,
-121,
-50,
-44,
-79,
-113,
40,
-126,
3,
-29,
33,
-80,
113,
-53,
-57,
93,
71,
48,
-97,
-98,
-72
] |
Malone, J.:
The Kansas Health Policy Authority (KHPA) appeals the district court’s decision that a discretionary trust benefit-ting Charles L. White constituted an exempt resource for the purposes of Medicaid, making White eligible for Medicaid assistance. The primary issue is whether the district court erroneously interpreted the provisions of K.S.A. 2007 Supp. 39-709(e)(3) concerning when a discretionary trust is an available resource for Medicaid eligibility purposes. We agree with the district court’s interpretation of the statute, and we affirm the district court’s decision in favor of White.
Factual and procedural background
On August 28, 1997, Charles B. and Ola White (the settlors) created the Charles L. White Trust (White Trust). Charles L. White is the son of the settlors and was bom October 2, 1950. White is disabled. The White Trust was a discretionary trust, meaning the settlors delegated complete discretion to the tmstee to decide when and how much income or property from the trust would be distributed to the beneficiary. The trust instrument clearly expressed the settlors’ intent that the trust be supplemental to other benefits that White was entitled to receive. The introductory paragraph of Article V of the trust instrument stated:
“This Trust for Charles L. White is created for the express purpose to provide for Charles L. White so long as he shall live during the continuance of this Trust, the extra and supplemental care, maintenance, support and education in addition to and over and above the benefits Charles L. White otherwise receives as a result of Charles L. White’s handicap or disability from any local, state or federal government, or from any private agencies, any of which provides services or benefits to handicapped or disabled persons. It is the express purpose of Settlors that the Trust Estate herein provided for Charles L. White be used only to supplement other benefits received by said Charles L. White.” (Emphasis added.)
Ola White died on September 13, 1998. Charles B. White died on August 7, 2005, and it appears the trust was funded from his estate in December 2005, with approximately $46,000. At about the time the trust was funded, Carol Miller, the settlors’ daughter and successor trustee, obtained a modification of the trust instrument in Pawnee County District Court. The trust modification was made to attempt to comply with a 2004 legislative amendment requiring trust instruments to make specific reference to Medicaid, medical assistance, or Title XIX of the Social Security Act, in order for the trust to be an exempt resource for Medicaid eligibility purposes. The trust modification changed the first paragraph of Article V to read:
“1. Trust for Charles L. White is created for the express purpose to provide for Charles L. White, so long as he shall live during tire continuance of this trust, the extra and supplemental care, maintenance, support and education in addition to and over and above the benefits Charles L. White otherwise receives as a result of Charles L. White’s handicap or disability from any local, state or federal government, or from any private agencies any of which provides services or benefits may include Medicaid, medical assistance or other benefits under Title XIX of the Social Security Act. It is the express purpose of Settlor that the Trust Estate herein provided for Charles L. White be used only to supplement other benefits received by Charles L. White.” (Emphasis added.)
In 2006, White was living in Barton County, where he was receiving benefits in the form of medical assistance by Home Community Based Service and food stamps. In late 2006, Becky Montgomery, with the Great Bend Social & Rehabilitation Services (SRS) office, conducted a review of these benefits and learned of the trust. She contacted Jeanine Schieferecke at the KHPA to determine whether the trust should impact White’s benefit eligibility. Schieferecke determined:
“[T]he trust was a supplemental trust established by his father, Charles B. White. Although the original trust does include a statement regarding the supplemental nature of the trust, it does not specifically state the trust is supplemental to Medicaid or Title XIX. That’s why the trustee has discretion to make the trust available and the assets owned by the trust are countable in full per KEESM 5620. Please note that tire trustee did attempt to amend the trust, however, the amendment is not sufficient to meet the requirement of the trust to contain specific contemporaneous language.”
Based upon this information, Montgomery counted the trust resources and determined that White was ineligible for benefits. She closed White’s case effective January 31, 2007. On January 24, 2007, Miller, acting as White’s guardian and conservator, filed a demand for fair hearing with the SRS regárding the decision to stop the medical and food assistance benefits. The hearing was held on March 2, 2007. Montgomery testified and the parties presented their arguments.
On March 20, 2007, the hearing officer issuéd her initial order. The hearing officer agreed with White’s argument that the trust instrument had been properly modified to include the necessaiy language referring to Medicaid benefits. Thus, the hearing officer determined the denial of benefits was erroneous and reversed Montgomery’s determination.
On March 22, 2007, the SRS filed a request for review of the initial order with the KHPA State Appeals Committee (Appeals Committee). The parties submitted briefs and then offered oral arguments at a hearing before the Appeals Committee on September 10, 2007.
On October 9, 2007, the Appeals Committee issued its final order. The Appeals Committee agreed with the SRS’s argument that the trust failed to comply with the statutory requirements to be an exempt resource for Medicaid eligibility purposes, because there was no specific reference in the trust instrirment to Medicaid, medical assistance, or Title XIX of the Social Security Act, contemporaneous with the creation of the trust. Thus, the Appeals Commit tee reversed the hearing officer’s initial order and determined that White was ineligible for benefits because of the trust.
On October 16, 2007, White filed a petition for judicial review in Barton County District Court. The parties filed briefs repeating their previous arguments. The district court reviewed the briefs, the transcripts of the hearings, and the Appeals Committee’s decision. The district court determined no further oral argument was necessary and made its decision based on the briefs and the record.
On January 25, 2008, the district court issued its decision and adopted the hearing officer’s findings. The district court concluded that the White Trust had been properly modified to be exempt for Medicaid eligibility purposes and that this modification satisfied the language of the 2004 statutory amendment. The district court also concluded the legislature either did not intend to apply the statute retroactively or else intended to allow existing trust instruments to be modified to conform to the statute. Finally, the district court concluded, in what seems to be an alternative reasoning, that because the trust was not funded until December 2005, the trust modification qualified as “specific contemporaneous language” as required by the statute. The district court reversed the Appeals Committee’s final order and ruled that White was eligible for Medicaid assistance. KHPA timely appeals.
Standard of review
The standard of judicial review of a state administrative agency action is defined by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Ninemire v. Kansas Dept. of SRS, 284 Kan. 582, 585, 162 P.3d 22 (2007). The scope of review under the KJRA is as follows:
“(c) The court shall grant relief only if it determines any one or more of the following:
(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) the agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied the law;
(5) the 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 the agency, that 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) die agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c).
Under the KJRA, a district court may not substitute its judgment for that of an administrative agency. The court may only grant relief from a agency action when one of the circumstances set forth in K.S.A. 77-621(c) has occurred. Under K.S.A. 77-621(c)(4), the court may grant relief when the agency has erroneously interpreted or applied the law. In reviewing a district court’s decision reviewing an agency action, the appellate court must first determine whether the district court followed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as did the district court. Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005).
What was the source of the trust funds?
KHPA first argues that because the district court found that the White Trust was not funded until December 2005, the trust funds must have come from White, rather than from the setdors. In order for a trust to be exempt for Medicaid eligibility purposes, the trust must be funded exclusively from resources of a person owing no duty of support to the applicant or recipient. KHPA argues that White received the inheritance from his father’s estate and then White or his personal representative placed these funds into the trust, providing the consideration for the trust. Under these circumstances, the trust would constitute an available resource for the purposes of Medicaid eligibility. See Williams v. Kansas Dept. of SRS, 258 Kan. 161, 175, 899 P.2d 452 (1995).
KHPA failed to raise this argument at any point below. In fact, the district court found, “[i]t is clear by agreement of all parties in this case [that] the trust was funded exclusively from a resource of a person who at the time of the creation of the trust owed no duty of support.” KHPA never challenged this finding or otherwise raised the issue in district court. Generally, an issue not raised before the district court cannot be raised on appeal. Miller v. Battle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
The consequence of KHPA’s failure to raise this issue below is that no detailed record was created regarding the funding of the White Trust, since the funding was apparently not at issue. Thus, the record does not definitively establish how the trust was funded. The lack of a record here is directly attributable to KHPA’s failure to raise this issue below. Accordingly, we decline to address KHPA’s claim that the trust was funded by White, rather than by the settlors, and is therefore not exempt for Medicaid eligibility purposes.
Did district court erroneously interpret KS.A. 2007 Supp. 39-709(e)(3)P
Next, KHPA contends that the district court erroneously interpreted K.S.A. 2007 Supp. 39-709(e)(3) in determining that the modification of the White Trust complied with the 2004 statutory amendment. KHPA argues that the agency correctly applied the statute in determining that the trust instrument did not make specific contemporaneous reference to Medicaid, medical assistance, or Title XIX of the Social Security Act in order for the trust to be an exempt resource for Medicaid eligibility purposes.
K.S.A. 2007 Supp. 39-709(e)(3) provides:
“Resources from trusts shall be considered when determining eligibility of a trust beneficiary for medical assistance. Medical assistance is to be secondary to all resources, including trusts, that may be available to an applicant or recipient of medical assistance. If a trust has discretionary language, the trust shall be considered to be an available resource to the extent, using the full extent of discretion, the trustee may malee any of the income or principal available to the applicant or recipient of medical assistance. Any such discretionary trust shall be considered an available resource unless: (1) The trust is funded exclusively from resources of a person who, at the time of creation of the trust, owed no duty of support to the applicant or recipient; and (2) the trust contains specific contemporaneous language that states an intent that the trust be supplemental to public assistance and the trust malees specific reference to medicaid, medical assistance or title XIX of the social security act.” (Emphasis added.)
As we have discussed, there was no dispute in district court that the White Trust was funded exclusively from resources of a person who owed no duty of support to the trustee. The settlors, as parents of an adult disabled child, owed no legal duty of support to White. There was also no dispute that the original trust instrument contained specific contemporaneous language expressing the settlors’ intent that the trust be supplemental to public assistance. However, the original trust instrument, created in 1997, did not malee any specific reference to Medicaid, medical assistance, or Title XIX of the Social Security Act. This requirement was not included in K.S.A. 39-709(e)(3) until the 2004 amendment. Miller, the successor trustee, attempted to comply with the statutory amendment by modifying the language of the trust instrument in 2005. However, KHPA argues that the trust modification failed to comply with the statutory requirement because the specific reference to Medicaid, medical assistance, or Title XIX of the Social Security Act was not contemporaneous with the creation of the trust.
The specific question here is whether “contemporaneous” in K.S.A. 2007 Supp. 39-709(e)(3) modifies both the provisions that follow or whether it is only applicable to “language that states an intent that the trust be supplemental to public assistance.” In other words, does the statute require that the original trust instrument contain a specific contemporaneous reference to Medicaid, medical assistance, or Title XIX of the Social Security Act, in order for the trust to be an exempt resource for Medicaid eligibility purposes.
Statutory interpretation is a question of law, but special rules apply when an appellate court reviews an administrative agency’s interpretation or application of a statute. Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007).
“The doctrine of operative construction of statutes provides that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative agency’s interpretation is erroneous as a matter of law, the court should taire corrective steps. The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. [Citation omitted.]” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 70, 150 P.3d 892 (2007).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe, 283 Kan. at 77. An appellate court’s first task 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).
‘When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
The plain language of the statute
Our first task is to determine whether K.S.A. 2007 Supp. 39-709(e)(3) is plain enough that we may derive legislative intent without going beyond the statutory language. As previously stated, the Appeals Committee concluded that the statute requires the specific reference in the trust instrument to Medicaid, medical assistance, or Title XIX of the Social Security Act be made contemporaneously with the creation of the trust. Because the White Trust did not include this language until the modification of the trust instrument several years after the trust was created, KHPA contends the trust provision did not satisfy the statute. Thus, according to KHPA, the trust funds constitute an available resource for the purposes of Medicaid, making White ineligible for Medicaid assistance. On the other hand, the district court found that the language in the trust instrument need not be contemporaneous with the creation of the trust. The district court concluded that the White Trust had been properly modified to comply with the statute, thus making White eligible for Medicaid assistance.
The contested portion of the statute states: “Any such discretionary trust shall be considered an available resource unless: ... (2) the trust contains specific contemporaneous language that states an intent that the trust be supplemental to public assistance and the trust makes specific reference to medicaid, medical assistance or title XIX of the social security act.” (Emphasis added.) K.S.A. 2007 Supp. 39-709(e)(3).
The problem with the interpretation favored by KHPA is that, under a plain reading of the statute, “contemporaneous” does not modify “specific reference to medicaid, medical assistance, or title XIX of the social security act,” but it only modifies “language that states an intent that the trust be supplemental to public assistance.” The portion contains two independent clauses, each of which expresses a complete thought. The first complete thought is: “[T]he trust contains specific contemporaneous language that states an intent that the trust be supplemental to public assistance.” The second complete thought is: “[T]he trust makes specific reference to medicaid, medical assistance or title XIX of the social security act.”
The inclusion of “the trust” before the second clause, as well as the second use of “specific,” transforms it from a clause that would be modified by “contemporaneous” into a clause that is not. That is, had the legislature intended for “contemporaneous” to modify both language requirements, then the provision should have read: “the trust contains specific contemporaneous language that states an intent that the trust be supplemental to public assistance and makes reference to medicaid, medical assistance or title XIX of the social security act.” An even better formulation would have been: “the trust contains contemporaneous language that (a) specifically states an intent that the trust be supplemental to public assistance and (b) makes specific reference to medicaid, medical assistance or title XIX of the social security act.” However, as phrased, it does not appear possible to properly conclude that “contemporaneous” modifies the specific medicaid reference requirement.
As the district court pointed out, KHPA’s interpretation of the statute would lead to an unreasonable result. KHPA argues that White is ineligible for Medicaid assistance because the trust language did not make specific reference to Medicaid, medical assistance, or Title XIX of the Social Security Act contemporaneously with the creation of the trust. This, of course, would have been impossible because this specific language, added to the statute in 2004, was not a requirement when the trust instrument was prepared in 1997. See L. 2004, ch. 146, sec. 1. According to KHPA, the White trust could not possibly be amended in order to satisfy the “contemporaneous” language added to the statute in 2004.
However, K.S.A. 58a-412, which is part of the Kansas Uniform Trust Code, provides in part:
“(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor’s probable intention.”
As the district court noted, it was clearly the settlors’ intent to make the White Trust a supplemental needs trust. The change in the statute was a circumstance not anticipated by the original settlors of the trust. Accordingly, the trust was modified to include the required statutory language created by the 2004 amendment. KHPA’s argument that the White Trust could not be modified to conform with the statutory changes would render the provisions of K.S.A. 58a-412(a) meaningless.
The legislature could have included language within K.S.A. 2007 Supp. 39-709(e)(3), which would have made it clear that the statute was to apply retroactively to any trust created prior to 2004 and that such a prior trust could not be modified to conform with the new statute. This language was not included, which supports the district court’s determination that the White Trust was properly modified in accordance with K.S.A. 58a-412(a).
We conclude the district court correctly applied the plain language of K.S.A. 2007 Supp. 39-709(e)(3). Under the plain language of the statute, a discretionary trust instrument must make specific reference to Medicaid, medical assistance, or Title XIX of the Social Security Act, in order for the trust to be an exempt resource for Medicaid eligibility purposes. However, there is no requirement for this language to be contemporaneous with the creation of the trust. Because the statute requires contemporaneous language in die trust instrument only as to the intent for the trust to be supplemental to public assistance, and because the original White Trust included such language, the district court correctly concluded that the trust did not disqualify White from receiving Medicaid assistance. It does not appear necessary to go beyond the statutory language to ascertain the legislative intent of K.S.A. 2007 Supp. 39-709(e)(3). However, for the sake of argument, if one were to conclude that K.S.A. 2007 Supp. 39-709(e)(3) is ambiguous, we will also examine the legislative history of the statute.
Legislative history
In 2003, the Kansas Senate formed the President’s Task Force on Medicaid Reform. The goal of the Task Force was to “look at the big picture of Medicaid and have discussions on all issues of concern for the future recommendations by the task force.” Minutes of the President’s Task Force, on Medicaid Reform, February 6, 2003. Issues to be considered by the Task Force included prescription costs, nursing home administration, foster care, reimbursement of physicians and hospitals, health care law, role of providers, and civil rights. Minutes of the President’s Task Force on Medicaid Reform, February 6, 2003. Notes in the course of the Task Force’s meetings show that one of its concerns was changing the eligibility process to address the problem of individuals who make themselves eligible for Medicaid through mechanisms such as trusts, despite having the resources to pay for long-term care. Minutes of the President’s Task Force on Medicaid Reform, March 7, 2003, attachment 6 (comments by Robert Harder).
In the Task Force’s final report, it recommended that the legislature take immediate action to “[rjequire that discretionary trusts be considered a countable resource for public assistance.” Final Report of the President’s Task Force on Medicaid Reform, p. iii. The Task Force elaborated later in the report:
‘We support legislation that requires discretionary trusts funded by people other than the consumer (or spouse) to be considered a countable resource for public assistance purposes based on the total value of assets contained in such trusts. Refusal to pay for necessary medical care from the trust would be considered a breach of fiduciary duty and contrary to public policy. This would overrule a longstanding District Court case that allowed such trusts to be exempted for Medicaid purposes.” Final Report of the President’s Task Force on Medicaid Reform, p. 5.
It is not clear to what “District Court case” the Task Force was referring. Perhaps it was referring to Myers v. Kansas Dept. of SRS, 254 Kan. 467, 866 P.2d 1052 (1994), as KHPA suggests in its briefs. In Myers, the Kansas Supreme Court held that a discretionary trust created by a mother for her disabled son could not be counted as an available resource for the purposes of determining the beneficiary’s eligibility for medical assistance from SRS. 254 Kan. at 477.
Senate Bill 272 was introduced in the 2003 legislature to implement some of the changes recommended by the Task Force. Minutes of the Senate Federal and State Affairs Committee, March 28, 2003, attachment 4-2 (testimony of Candy Shively, Deputy Secretary of SRS). Among other things, S.B. 272 amended K.S.A. 39-709(e) by adding the funding and specific language requirements in K.S.A. 2007 Supp. 39-709(e)(3) at issue in this case.
The chair of the Task Force, Senator Stan Clark, testified in favor of the bill before the Senate Federal and State Affairs and the House Committee on Appropriations. He expressed concern about “the contortions families go through to spend, shelter or give away assets so that the State can pick up the tab.” Minutes of the Senate Federal and State Affairs Committee, March 28,2003, attachment 1; Minutes of the House Committee on Appropriations, May 1, 2003.
Representatives of the SRS also spoke in favor of the bill before the committees. They offered SRS’s opinion that use of a discretionary trust
“as a shelter from the ordinary Medicaid eligibility rules is an abuse of the trustee’s discretion. If a consumer needs medical care, and there is a trust that can pay for that care, the trust and not the State, should be the primary person responsible to pay those costs. This provision would view these trusts as available assets to the extent that the trustee by using his or her full discretion could make any of the income or principal available to the Medicaid consumer.” Minutes of the Senate Federal and State Affairs Committee, March 28, 2003, attachment 4-2 (testimony of Candy Shively, Deputy Secretary of SRS); Minutes of the House Committee on Appropriations, May 1, 2003, attachment 4 (testimony of Dennis Priest, SRS Program Administrator).
However, SRS’s testimony continued: “This amendment does not require a parent of an adult disabled child to disinherit the child. Instead, it specifically allows for a parent of an adult child to create a supplemental needs trust by making specific reference in the trust that the parent intends that the trust only supplement Medicaid.” (Emphasis added.) Minutes of the Senate Federal and State Affairs Committee, March 28, 2003, attachment 4-2 (testimony of Candy Shively); Minutes of the House Committee on Appropriations, May 1, 2003, attachment 4 (testimony of Dennis Priest).
S.B. 272 did not pass in 2003. However, the legislature returned to it in 2004 and passed a House substitute for the bill, making no changes to the original version’s language creating K.S.A. 2007 Supp. 39-709(e)(3). See L. 2004, ch. 146, sec. 1.
In summary, the legislative history of the 2004 amendments to K.S.A. 39-709 does not clearly indicate whether the legislature intended to require that the specific language regarding Medicaid be contemporaneous with the original trust instrument. On the one hand, the Task Force seemed broadly concerned with making sure that all available resources were counted in making the eligibility determination. On the other hand, the Task Force’s concern appeared to be with individuals sheltering their own assets in trusts to increase their chances of qualifying for Medicaid. The language of S.B. 272, as well as the testimony of its proponents, clearly indicates that it was the legislature’s intent to still allow the parents of an adult disabled individual to create a supplemental needs discretionary trust that would not be counted as an available resource for Medicaid eligibility purposes. We reject KHPA’s contention that the legislative history of K.S.A. 2007 Supp. 39-709(e)(3) supports its interpretation of the statute.
We note that in 2008, the legislature enacted Senate Bill 412 which eliminated the specific language requirements of K.S.A. 2007 Supp. 39-709(e)(3). See L. 2008, ch. 12, sec. 1. We do not need to address White’s argument that S.B. 412 should be applied retroactively to his trust. We also do not need to address the district court’s alternative reasoning that because the White Trust was not funded until December 2005, the trust modification qualified as “specific contemporaneous language” as required by K.S.A. 2007 Supp. 39-709(e)(3).
Conclusion
The KHPA’s position in this case is essentially that it was the intent of the legislature in 2004 to institute a “magic words” requirement that would arbitrarily and irreparably invalidate any supplemental needs discretionary trust created before that date whose settlors had failed to somehow foresee the “magic words” requirement. It would not matter if the trust, such as the one at issue in this case, clearly reflected an intent to supplement the medical assistance provided by a state agency to a person the settlors had no duty to support. The settlors and beneficiaries of such a trust were simply “out-of-luck,” because they had failed to anticipate the “magic words” requirement and were not now allowed to amend the trust to comply with the requirement, since such language had to be “contemporaneous” with the creation of the trust.
The plain language and the legislative history of K.S.A. 2007 Supp. 39-709(e)(3) do not support the KHPA’s position. There was no apparent intent by the legislature at any time to create this sort of arbitrary trap for a trust that, in all other respects, reflected an intent to supplement the medical assistance provided by a state agency. Based upon the plain language of K.S.A. 2007 Supp. 39-709(e)(3), and also the legislative history of the statute, we agree with the district court that the White Trust was an exempt resource for the purposes of Medicaid, making White eligible for Medicaid assistance. Therefore, we conclude the district court did not err in granting judgment in favor of White and against the KHPA.
Affirmed. | [
53,
-24,
-3,
108,
8,
64,
18,
2,
67,
-69,
39,
81,
-95,
-6,
21,
47,
-13,
-67,
69,
107,
-61,
-79,
23,
-127,
-40,
-13,
-7,
-59,
-15,
87,
99,
-33,
12,
56,
10,
20,
98,
-121,
-9,
-40,
-114,
-124,
10,
68,
89,
-127,
44,
111,
-106,
65,
97,
30,
19,
42,
24,
123,
-56,
44,
89,
-79,
116,
-16,
-82,
-122,
-21,
23,
1,
4,
-80,
-49,
80,
34,
-36,
17,
8,
-23,
122,
-74,
-50,
52,
106,
-119,
45,
122,
98,
5,
0,
-3,
-92,
-114,
30,
-105,
-115,
-27,
-106,
-40,
98,
7,
-107,
-102,
125,
54,
75,
124,
-26,
4,
26,
44,
-123,
-98,
-34,
-111,
-51,
124,
-100,
-125,
-9,
-121,
34,
17,
-56,
-30,
92,
83,
59,
59,
-102,
-74
] |
Per Curiam-.
Ronnie Morlock appeals his convictions of possession of marijuana with intent to sell and no tax stamp. Morlock claims tire district court erred in denying his motion to suppress the evidence. This case arose from a traffic stop in which Morlock was the passenger. Specifically, Morlock claims that the arresting officer violated his constitutional rights by asking questions about travel plans which were unrelated to the purpose and the scope of the traffic stop. Morlock also claims that the arresting officer exceeded the reasonable scope and duration of the traffic stop when he ran a warrant check on Morlock’s driver’s license without reasonable suspicion of criminal activity.
Factual and procedural background
On February 3, 2006, at 5:22 p.m., Deputy Henry Cocking of the Sedgwick County Sheriffs Department was traveling eastbound on Highway 54 when he observed a van with Arizona tags driving in front of him. Cocking worked as a K-9 handler and primarily investigated narcotics. His work shift that day was ending, and Cocking was on his way home with his narco tics-detection dog in the back of the patrol vehicle. Cocking followed the van for approximately 1 mile and noticed the driver failed to signal two different times when changing lanes. Cocking activated his emergency lights and stopped the van. Once Cocking activated his emergency lights, the video mounted in his patrol vehicle began recording, although the audio failed to record.
Cocking approached the driver of the van, Ronald O’Kelly, who was 16-years-old, and Cocking asked O’Kelly to produce his driver’s license. Cocking noticed that O’Kelly was nervous when obtaining his driver’s license, that he was shaking and trembling, and that he dropped the license into his lap. Cocking also noticed that the passenger, Morloek, was staring straight ahead and never looked at Cocking. Cocking thought the behavior of both O’Kelly and Morlock was odd, although he admitted some young drivers, like O’Kelly, may be nervous when stopped by an officer.
Cocking asked O’Kelly to step out of the vehicle, and he and O’Kelly walked to the rear of the van. Cocking asked O’Kelly if the information on his driver’s license was correct and “where he was coming from.” O’Kelly said that the information was correct and that he was traveling from Phoenix to Kansas City. Cocking asked O’Kelly how long he had been in Phoenix, and O’Kelly indicated a couple of days. Cocking asked O’Kelly why he was in Phoenix, and O’Kelly said he was visiting his dad’s girlfriend. O’Kelly also told Cocking that the van was rented by his dad. He identified his dad as Morlock, the passenger of the van. •
At that point, Cocking went to the passenger side of the van and asked Morlock for the rental agreement and his driver’s Acense. While Morlock was looking for the rental agreement, Cocking asked him “where he was going or coming from.” Morlock said he was traveling from Phoenix to Kansas City. Cocking asked Morlock how long he had been in Phoenix, and Morlock responded he had been in Phoenix for 2 days. Cocking asked Morlock why he went to Phoenix. Morlock responded that he went to see a woman he had met on the Internet, but he was unable to contact her. Upon examining the rental agreement, Cocking determined that the van was rented from Tucson and not from Phoenix. Cocking asked Morlock about this discrepancy, and Morlock said he had flown into “a Phoenix/Tucson airport located right in that area.” Cocking asked Morlock why he flew to Phoenix but was driving back. Morlock explained that he did not have enough money to purchase a return flight, so he rented the van.
Cocking then took both driver’s Acenses and the rental agreement to his patrol vehicle. While walking past the van, Cocking looked into the rear window and noticed four bags in the cargo area. Cocking found the number of bags unusual because Morlock and O’Kelly had said they were in Phoenix for only a couple of days. While in the patrol vehicle, Cocking wrote O’Kelly a warning citation and ran both names through a warrant check.
When both names cleared the warrant check, Cocking returned to the passenger side of the van. Both Morlock and O’Kelly were seated in the van. Cocking handed the documents to Morlock, stepped back, and said, “Have a nice day.” Cocldng turned and walked one or two steps away from the van toward his patrol vehicle, and then he turned and reapproached the van. The passenger window was still down. Cocking asked, “Hey, do you mind if I ask you a couple of questions?” Morlock and O’Kelly both responded, “Yeah, go ahead.” Cocking testified that he spoke in a friendly manner and he never displayed his firearm when he reapproached the van.
Cocldng asked Morlock and O’Kelly if they would mind stepping out of the van, and both complied. Cocking directed them to stand near the front of the van. Cocking asked Morlock if he could search his person for weapons, and Morlock agreed. Cocking searched and found no weapons on Morlock; Cocking then told Morlock that large amounts of drugs were transported on Highway 54 and asked him if he had drugs or weapons in his van. Morlock said he did not. At that point, Cocldng asked, “Can I search your car?” and Morlock responded, “Yes.”
After opening the rear of the van, Cocking opened one of the suitcases in the cargo area. Cocking observed cellophane packages that he believed were packaged drugs. Cocking stuck a knife into one of the packages, and he smelled and saw marijuana. Cocking then arrested both Morlock and O’Kelly and called for backup. Law enforcement officers ultimately removed 113 pounds of marijuana from the van.
Morlock was charged with possession of marijuana with intent to sell and no tax stamp. Morlock filed a motion to suppress the evidence. The district court held a hearing on the motion in conjunction with a bench trial. At trial, Morlock conceded the initial stop was proper, but he argued his detention was not reasonably related to the scope of the stop. The State argued that the encounter became voluntary after Cocking returned die documents to Morlock, and even if the encounter was not voluntary, Cocldng had reasonable suspicion of criminal activity to support further investigation after the purpose of the traffic stop was completed.
After hearing the evidence, the district court found that the encounter between Cocldng and Morlock was continuous and never became voluntary. However, the district court found that Cocking articulated reasonable suspicion of criminal activity to continue the investigation after the purpose of the traffic stop was completed. Thereafter, the district court found that Morlock voluntarily consented to the search of the van. The district court overruled Morlock’s motion to suppress the evidence and found him guilty as charged. Morlock timely appeals.
Morlock claims the district court erred in denying his motion to suppress the evidence. Specifically, Morlock claims Cocking violated his rights under the Fourth Amendment to the United States Constitution to be free of unreasonable searches and seizures by asking questions of Morlock and O’Kelly about their travel plans which were unrelated to the purpose and the scope of the traffic stop. Morlock also claims that Cocking exceeded the reasonable scope and duration of the traffic stop when he ran a warrant check on Morlock’s driver’s license without reasonable suspicion of criminal activity. Under the circumstances, Morlock claims that he was unlawfully detained and Cocking did not receive a voluntary consent to search the van.
The State contends that Cocking asked Morlock and O’Kelly routine questions about their travel plans during a valid traffic stop. The State contends that after the stop concluded, the encounter became voluntary, and Morlock consented to a search of his van. The State argues that even if the encounter did not become voluntary, Cocking had reasonable suspicion of criminal activity to extend the duration of the traffic stop.
Burden of proof and standard of review
The State has the burden of proving that a search and seizure was lawful. K.S.A. 22-3216(2); State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006). In reviewing a district court’s decision regarding the suppression of evidence, an appellate court reviews the factual underpinnings by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
When the material facts to the district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Here, Cocking was the only witness who testified on the suppression issue and his testimony was undisputed. At the end of the hearing, the district court was not required to weigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. The district court’s determination that Cocking articulated reasonable suspicion of criminal activity was a legal conclusion drawn from the evidence which is subject to this court’s unlimited review. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). An appellate court does not give deference to the district court’s judgment on questions of law. State v. Hicks, 282 Kan. 599, 608, 147 P.3d 1076 (2006).
Questioning about travel plans
Morloclc claims it was impermissible for Cocking to ask him and his son about their travel plans. He claims the questions were unrelated to the purpose of the traffic stop. He further claims the questions exceeded the reasonable scope of his detention and violated his Fourth Amendment right to be free of unreasonable searches and seizures.
We begin our analysis by examining the applicable constitutional provisions. The Fourth Amendment to the United States Constitution protects against “unreasonable searches and seizures” of “persons.” Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. “[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other.” State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993).
A routine traffic stop is a seizure under the Fourth Amendment. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). The seizure resulting from a traffic stop is generally analyzed as an investigatory detention. As a result, courts examine the reasonableness of a traffic stop under the principles set forth in Terry v. Ohio, 392 U.S. 1, 18, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). These principles are codified at K.S.A. 22-2402(1), which provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand the name, address of such suspect, and an explanation of such suspect’s actions.” (Emphasis added.)
The State’s response to Morlock’s argument is straightforward. K.S.A. 22-2402(1) specifically provides that during an investigatory detention, a law enforcement officer may request an explanation of the suspect’s actions. The State claims this statute expressly authorizes a law enforcement officer to question a suspect about his or her travel plans during a traffic stop.
We disagree with the State’s reliance on K.S.A. 22-2402(1) to justify Cooking’s questioning about travel plans. Although a routine traffic stop is akin to an investigatory detention, there is an important difference. In a traffic stop, the law enforcement officer usually stops the motorist for a particular reason, i.e., to issue a citation for an observed traffic offense. The law provides that such a stop must be minimally intrusive, diligently pursued, and reasonably related in scope to the circumstances which justified the initial interference. United States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985). Issuing a traffic citation generally does not require the law enforcement officer to demand an explanation of the motorist’s actions.
The Kansas Supreme Court has previously described the reasonable scope of a routine traffic stop:
“A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning.” State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998).
The Kansas Supreme Court has further indicated that when the original purpose of a traffic stop has been completed, further questioning is permissible only if (1) the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning, or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity. State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998).
Kansas courts have never explicitly addressed whether a law enforcement officer may question a detained driver or a passenger about his or her travel plans without unconstitutionally extending the scope of the traffic stop. In some cases, Kansas courts have considered a detained motorist’s answers to an officer’s questions about travel plans to determine whether the officer developed reasonable suspicion of criminal activity to extend the traffic stop. See State v. Moore, 283 Kan. 344, 355, 154 P.3d 1 (2007) (officer questioned driver about travel route from Las Vegas to Maryland); DeMarco, 263 Kan. at 739 (officer questioned driver and passenger about purpose of trip to Los Angeles); State v. Chapman, 23 Kan. App. 2d 999, 1010, 939 P.2d 950 (1997) (officer questioned driver about trip from Arizona). However, these cases do not address whether it was permissible for the law enforcement officer to question a detained motorist about his or her travel plans in the first place.
Our research has uncovered a line of federal cases that hold a law enforcement officer may inquire about a detained driver’s travel plans during a traffic stop without unconstitutionally extending the scope of the stop. United States v. Betancourt, 2008 WL 1970950, at *1 (9th Cir. 2008); United States v. Brigham, 382 F.3d 500, 507-08 (5th Cir. 2004); United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003); United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999), cert. denied 528 U.S. 1176 (2000); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999), cert. denied 528 U.S. 1161 (2000). The Tenth Circuit has directly addressed this issue multiple times and concluded that “questions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.” United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001); see United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005); United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). Although courts have held that questions about travel plans generally fall within the scope of a traffic stop, courts have also held that a citizen is not legally obligated to answer such routine questions and that an officer cannot compel an answer to these questions. See Williams, 271 F.3d at 1267.
State courts have similarly held that during a routine traffic stop a law enforcement officer may ask a detained driver about his or her travel plans. See Caldwell v. State, 780 A.2d 1037, 1049 (Del. 2001) (relying on statute that allowed officers to question detained motorists on destination); Woodard v. State, 289 Ga. App. 643, 647, 658 S.E.2d 129 (2008); State v. Ramirez, 2008 WL 2357707, at *3 (Idaho App. 2008); People v. Williams, 472 Mich. 308, 315-16, 696 N.W.2d 636 (2005); Tyler v. Kyler, 15 Neb. App. 939, 944, 739 N.W.2d 463 (2007); State v. Baum, 393 N.J. Super. 275, 286-87, 923 A.2d 276 (2007); State v. Carlson, 102 Ohio App. 3d 585, 596-98, 657 N.E.2d 591(1995); Marinaro v. State, 163 P.3d 833, 835 (Wyo. 2007).
In many of the cases that permit a law enforcement officer to question a driver about travel plans, the facts were limited to questions concerning the driver’s place of departure or destination. However, in some of the cases the scope of the permissible questioning was much broader. See Brigham, 382 F.3d at 507-08 (officer permitted to ask about the purpose and itinerary of a driver’s trip); Bradford, 423 F.3d at 1153 (when motorist responded that she was returning from a family reunion, officer was permitted to ask how long her family reunion had lasted and where it was held); Baum, 393 N.J. Super, at 286-87 (officer may ask routine questions of the vehicle’s occupants, such as where they are going and coming from, and for what purpose); Carlson, 102 Ohio App. 3d at 597-98 (officer permitted to ask motorist why she had left California and why her boyfriend had not accompanied her on the trip).
Although courts have uniformly held that a law enforcement officer may question the driver of a vehicle about travel plans, there is limited authority upholding such questioning of passengers. See United States v. Muriel, 418 F.3d 720, 726 (7th Cir. 2005); Tyler, 15 Neb. App. at 944; People v. Bunch, 207 Ill. 2d 7, 796 N.E.2d 1024 (2003). However, die court in Muriel believed that Terry stop limitations were not applicable where the stop was based on probable cause rather than reasonable suspicion. 418 F.3d at 724. In Tyler, the court held that the defendant was no longer in the vehicle at the time of the encounter and therefore not subject to the “investigatory authority flowing from an observed traffic violation.” 15 Neb. App. at 945. Finally, in Bunch, the court concluded that passenger questioning as to travel plans after the stop was concluded unreasonably prolonged the passenger s detention and required suppression of the evidence. 207 Ill. 2d at 15-20.
In summaiy, the cases from other jurisdictions hold that during a routine traffic stop, a law enforcement officer may question the driver about his or her travel plans provided that the questioning is reasonably related to the scope of the traffic stop and the questioning does not unreasonably alter the nature or the duration of the stop. Courts further emphasize that a citizen is not legally obligated to answer routine questions about travel plans and that an officer cannot compel an answer to these questions.
In a letter of additional authority, the State has cited Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005), for the proposition that during a lawful detention, a law enforcement officer may question a suspect about matters unrelated to the detention. In Mena, the respondent and others were detained in handcuffs for 2 to 3 hours during a search of the premises they occupied. During the detention, law enforcement officers questioned the respondent about her immigration status. The respondent later sued the officers under 42 U.S.C. § 1983 claiming she had been detained in violation of her Fourth Amendment rights. The district court found in the defendant’s favor, and the Ninth Circuit Court of Appeals affirmed.
The United States Supreme Court reversed and held that the respondent’s detention in handcuffs for the length of the search did not violate the Fourth Amendment. 544 U.S. at 98-100. The Court also held that the officers’ questioning of the respondent, during the lawful detention, about her immigration status did not constitute an independent Fourth Amendment violation because mere police questioning did not constitute a seizure and there was no evidence that the questioning prolonged the detention. 544 U.S. at 101.
The State argues that based upon Mena, a law enforcement officer may question a detained motorist about matters unrelated to the traffic stop, including the motorist’s travel plans, without violating the motorist’s constitutional rights. We disagree that the Court’s analysis in Mena readily applies to a traffic stop case. As previously stated, in a traffic stop the law enforcement officer usually stops the motorist for a particular reason, i.e., to issue a traffic citation for an observed traffic infraction. We do not believe that Mena overrules the longstanding federal and state precedent that a traffic stop must be reasonably related in scope and duration to the circumstances which justified the initial interference. In fact, the Kansas Supreme Court has recently held that Mena does not alter the general rule that a law enforcement officer violates tire Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a traffic violation, while the driver and the passenger arq still being detained, to consent to a search that is unrelated to the purpose of the stop. State v. Smith, 286 Kan. 402, Syl. ¶ 2, 184 P.3d 890 (2008). To the extent that other courts have relied on Mena to allow law enforcement questioning about matters unrelated to the stop, we believe such analysis is not in keeping with our Supreme Court’s distinction of Mena in Smith. 286 Kan. at 402-03.
Returning to our facts, Cocking initially stopped the van when he noticed O’Kelly failed to signal two different times when changing lanes. The parties do not dispute that a traffic infraction provides an objectively valid reason to effectuate a stop. Moore, 283 Kan. at 350. After the stop, Cocking asked O’Kelly to step out of the vehicle. Kansas courts have recognized that a law enforcement officer may, even without suspicion of additional crimes, order a driver to exit a vehicle when the vehicle is lawfully stopped for a traffic violation. State v. Schneider, 32 Kan. App. 2d 258, 263, 80 P.3d 1184 (2003); see Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977).
When Cocking and O’Kelly walked to the rear of the van, Cocking asked O’Kelly whether the information on his driver’s license was correct. Cocking also asked O’Kelly: (1) where he was traveling from; (2) how long he had been in Phoenix; and (3) what he was doing in Phoenix. After O’Kelly informed Cocking that Morlock was his father and the person who rented the van, Cocking asked Morlock to produce the rental agreement. Cocking also asked Morlock: (1) where he was going and coming from; (2) how long he had been in Phoenix; (3) why he went to Phoenix; (4) why he rented the vehicle from Tucson when he was visiting Phoenix; and (5) why he flew to Phoenix but was driving back. Cocking then took both driver’s licenses and the rental agreement to his patrol vehicle.
We are persuaded by the substantial legal authority from other jurisdictions that Cocking was permitted to ask O’Kelly where he was traveling from. This routine question was reasonably related to the scope of the traffic stop, and the inquiry did not unreasonably alter the nature or the duration of tire stop. Although the question was not directly related to the original reason for the stop, i.e., failing to signal when changing lanes, the question allowed Cocking to determine if O’Kelly was on the proper course, and the question did not unreasonably delay O’Kelly or infringe upon his rights.
However, we disagree with the State that Cocking was permitted to ask O’Kelly how long he had been in Phoenix and what he was doing there. We acknowledge that similar questioning has been upheld by courts in other jurisdictions. However, we conclude these were not routine questions about O’Kelly’s travel plans, and the questions were not reasonably related to the scope of the traffic stop. Instead, the questions were designed to allow Cocking to probe into O’Kelly’s personal business in the hope of uncovering suspicious activity.
Such an intrusion cannot be justified by reasoning that the motorist is not legally obligated to answer the questions. This analysis blurs the distinction between a voluntary encounter and a traffic stop, which is an investigatory detention. In a voluntary encounter, a law enforcement officer may approach an individual and ask questions without constituting a seizure provided the individual is free to leave, but the officer cannot force the individual to answer. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 11 S. Ct. 2382 (1991); McKeown, 249 Kan. at 509. However, a traffic stop constitutes a seizure, and the motorist is not free to leave while he or she is being temporarily detained and questioned. The motorist is not allowed to pick and choose which questions must be answered. Until the law enforcement officer conveys to the motorist that he or she is free to refuse the requests or otherwise end the encounter, the motorist is expected to cooperate with the investigation and to answer all questions posed by the law enforcement officer. This is why it is essential that law enforcement questioning during a traffic stop be reasonably related in scope to the circumstances which justified the initial interference.
Once O’Kelly indicated to Cocking that his father had rented the van, it was reasonable for Cocking to approach Morlock and ask for information. Cocking was certainly entitled to ask Morlock to produce the rental agreement, as this document established that Morlock was authorized to possess the van in lieu of a vehicle registration. While Morlock was looking for the rental agreement, Cocking asked him where he was going and coming from. Morlock said he was coming from Phoenix to Kansas City. When Cocking determined that the vehicle was rented from Tucson and not from Phoenix, Cocking asked Morlock about this discrepancy.
We conclude that these routine questions were reasonably related to the scope of the traffic stop, and the questions did not unreasonably alter the nature or the duration of the stop. Cocking asked the initial question about where Morlock was going and coming from while Morlock was looking for the rental agreement, so the question caused no additional delay. When Cocking examined the rental agreement and discovered the van was rented from Tucson and not from Phoenix, Cocking was entitled to ask a follow-up question about the discrepancy.
However, we conclude that Cocking had no authority to ask Morlock how long he had been in Phoenix, why he went to Phoenix, and why he flew to Phoenix but was driving back. We do not believe these were routine questions about Morlock’s travel plans, especially in light of the fact that Morlock was the passenger and not the driver of tire vehicle. Although the questions did not unreasonably alter the nature or the duration of the stop, we find that the questions were not reasonably related to the scope of the traffic stop and were designed solely to uncover suspicious activity.
In summary, under the circumstances of this case, some of Cocking’s routine questions of Morlock and O’Kelly about their travel plans were reasonably related to the scope of the traffic stop, and the inquiries did not unreasonably alter die nature or the duration of the stop. However, some of the questions were improper. Specifically, Cocking had no authority to ask O’Kelly how long he had been in Phoenix and what he was doing in there. Cocking also had no authority to ask Morlock how long he had been in Phoenix, why he went to Phoenix, and why he flew to Phoenix but was driving back. We conclude these questions were not reasonably related in scope to the traffic infraction which justified the stop in the first place.
Warrant check on passenger
Morlock also claims that Cocking violated his constitutional rights by seizing his driver’s license and running a warrant check without reasonable suspicion of criminal activity. Morlock claims that Cocking’s action exceeded the reasonable scope and duration of the traffic stop and subjected Morlock to an unlawful detention.
The reasonable scope of a law enforcement officei'’s investigation during a routine traffic stop differs somewhat as it relates to the driver of the vehicle as opposed to the passengers. While a law enforcement officer may demand that the driver produce his or her driver’s license and vehicle registration in order to run a warrant check on the driver, the Kansas Supreme Court has held that the seizure of a passenger for identification and a records check constitutes an unreasonable detention, in the absence of reasonable suspicion of criminal activity. State v. Damm, 246 Kan. 220, 224-25, 787 P.2d 1185 (1990).
In Damm, a law enforcement officer stopped the defendant’s vehicle because of defective taillights. The officer gathered the driver’s licenses from the defendant and his two passengers and returned to the patrol car to perform a routine records check. The officer discovered an outstanding warrant on one of the passengers, who was then arrested and placed in the patrol car. The officer then searched the defendant’s vehicle incident to the passenger’s arrest. After discovering drug paraphernalia and cocaine in the vehicle, all three occupants were arrested for drug possession. The district court suppressed the evidence and discharged the defendant.
On appeal, the Kansas Supreme Court affirmed. The court found that the law enforcement officer had no reasonable suspicion drat there were outstanding warrants for the passengers. The court held the seizure exceeded the reasonable scope and duration of the traffic stop when, in the absence of any reasonable suspicion, the passengers’ licenses were taken and their records were checked. 246 Kan. at 225. As the court explained:
“While [the defendant] was properly stopped and checked for the defective taillights, it was improper to seize him for the amount of time it took to run a check on every passenger in the car with him. An individual is ‘seized’ when an officer restrains his freedom, even if the detention is brief and falls short of arrest. The Fourth and Fourteenth Amendments prohibit unreasonable seizures as well as searches. [Citations omitted.] The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. [Citation omitted.] Otherwise, the driver of a carload of people on the way to work, the driver of a vanload of people on the way to a ball game, or the driver of an intercity bus loaded with passengers, when stopped for a defective taillight, could be detained for an inordinate amount of time while the officer runs record checks on every passenger aboard.” 246 Kan. at 224.
Cases from other states are in accord with the holding in Damm. See St. George v. State, 197 S.W.3d 806, 822-23 (Tex. App. 2006) (warrant check on passenger is not routine and necessary part of traffic stop); State v. Johnson, 805 P.2d 761, 764 (Utah 1991) (detention of passenger to run warrant check was not justified by articulable suspicion of crime and violated passenger’s Fourth Amendment rights). But see People v. Harris, 228 Ill. 2d 222, 237, 886 N.E.2d 947 (2008) (running warrant check on passenger in car stopped for making illegal turn did not violate Fourth Amendment); State v. Rubio, 136 P.3d 1022, 1028-29 (N.M. App. 2006) (officer’s request for identification from passenger who was' owner of vehicle and subsequent computer check based on identification were lawful).
In Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), a state trooper stopped the respondent for speeding. When the trooper radioed the dispatcher to report the stop, a second trooper overheard the transmission and drove to tire scene with a narcotics-detection dog. While the first trooper was writing a warning ticket, the second trooper walked the dog around the car, and the dog alerted at the trunk. The troopers searched the trunk and found marijuana. The entire incident lasted less than 10 minutes. The Illinois Supreme Court suppressed the evidence and held, in part, that the use of the dog unjustifiably enlarged the scope of a routine traffic stop into a drug investigation.
On certiorari, the United States Supreme Court vacated and remanded. The Court noted that the initial seizure was lawful and the duration of the stop was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop. 543 U.S. at 407-08. The court held that the intrusion on the respondent’s privacy expectations caused by the dog sniff did not rise to the level of a constitutionally cognizable infringement. 543 U.S. at 409.
We do not believe the holding in Caballes diminishes the precedent of Damm. The facts of the two cases are clearly distinguishable. In Caballes, there was no evidence that the drug sniff extended the duration of the traffic stop at all, but here it is evident that the warrant check on Morlock extended the duration of the traffic stop to at least some degree. Furthermore, Morlock is not arguing that the warrant check infringed upon his privacy interest, which was the focus of the court’s decision in Caballes. The majority decision in Caballes did not discuss Terry or the scope of a Terry stop. As a result, our Supreme Court has been explicit that Caballes is to be read narrowly in Kansas, and that it has no general application to Terry stops in Kansas. Smith, 286 Kan. at 419.
Returning to our facts, even if Cocking violated no rights by questioning Morlock and O’Kelly about their travel plans, Cooking’s investigation went off course when he seized Morlock’s driver’s license and returned to his patrol vehicle to run a warrant check'not only on O’Kelly, the driver, but on Morlock as well. In Damm, the Kansas Supreme Court makes it clear that during a routine traffic stop, a law enforcement officer may not request a passenger’s driver’s license and run a warrant check on the passenger in the absence of any reasonable suspicion of criminal activity. It appears that neither party cited Damm in the district court, and the district court did not analyze the holding of Damm in rendering its decision on the motion to suppress the evidence.
During the hearing on the motion to suppress, Cocking never explained why he ran a warrant check on Morlock, the passenger, during the course of his investigation. Cocking testified that at the time he requested Morlock’s driver’s license to run the warrant check, he was somewhat suspicious about O’Kelly’s nervousness, the one-way car rental and the short stay in Arizona, and the discrepancies in the information he received about Morlock’s travel plans. Cocking also thought the amount of luggage was suspicious, but this was after he had already seized Morlock’s driver’s license to run the warrant check. Other than those factors, Cocking admitted that he had no reasonable suspicion of criminal activity other than O’Kelly’s failure to signal when changing lanes. In fact, during cross-examination, Cocking acknowledged that he had to let Morlock and O’Kelly go when he handed back the ticket, and he could not detain them to search the van without their consent.
The State argues on appeal, as the district court found, that Cocking articulated reasonable suspicion of criminal activity to continue the investigation after the purpose of the traffic stop was completed. In DeMarco, the Kansas Supreme Court, quoting the United States Supreme Court, defined reasonable suspicion as “ ‘ “a particularized and objective basis for suspecting the person stopped of criminal activity. [Citation omitted.] Something more than an unparticularized suspicion or hunch must be articulated.” 263 Kan. at 735. Nervousness alone is not sufficient to justify further detention; however, in combination with other suspicious circumstances, it might contribute to a finding of articulable suspicion. 263 Kan. at 737. Furthermore, the use of a rental car for a short-term trip has been identified as a factor supporting reasonable suspicion. Moore, 283 Kan. at 355; DeMarco, 263 Kan. at 735-41. Also, discrepancies in travel plans have been used as objective reasonable suspicion factors in some cases. Moore, 283 Kan. at 355; DeMarco, 263 Kan. at 739. As we have concluded, however, much of the information Cocking received from Morlock and O’Kelly about their travel plans was based upon questioning outside the scope of the traffic stop.
Despite the presence of some factors supporting reasonable suspicion, other factors did not support any reasonable suspicion of criminal activity on Morlock’s part. Cocking had no reason to believe there might be an outstanding warrant for Morlock. Cocking had not been advised by dispatch that the van was suspected of transporting drugs. Cocking did not recognize Morlock from any previous contact, nor did he have any personal knowledge of him. Cocking had not observed the van stop at any location that was known for illegal drug activity.
Cocking testified he never observed any drugs, drug paraphernalia, weapons, or alcohol containers inside the van. Cocking also testified he never smelled an odor of alcohol or marijuana, nor did he smell any air freshener, fabric softener, coffee grounds, or anything else that could mask the odor of drugs. Morlock did not seem impaired, and he did not provide any statements to Cocking which would give rise to the suspicion of criminal activity. For the most part, the information Cocking received from Morlock and O’Kelly about their travel plans was consistent. As for tire amount of luggage, four bags for two passengers traveling from Kansas City to Arizona and back does not seem that unusual.
Basically, Cocking had a rental van from Arizona with a nervous 16-year-old driver. Cocking may have had a hunch that Morlock and O’Kelly were up to something, which later proved to be correct, but there was simply no particularized and objective evidence to support a reasonable suspicion of criminal activity. Although Cooking’s narcotics-detection dog was in tire back of his patrol vehicle, Cocldng’s suspicion never reached the point that Cocking employed the trained animal to sniff for tire presence of drugs. Instead, Cocking ultimately asked Morlock for his consent to search the van.
Based upon tire totality of the circumstances, we conclude that Cocking lacked reasonable suspicion of criminal activity at the time Cocking requested Morlock’s driver’s license to run a warrant check. Thus, Cooking’s action in this regard unreasonably extended the scope and duration of the traffic stop and violated Morlock’s constitutional rights pursuant to Darnm.
Did consent remove the taint?
Ultimately, Morlock consented to Cooking’s search of die van which led to the discovery of the marijuana. On appeal, Morlock claims that his consent was not voluntary because he was subjected to an unlawful detention at the time the consent was given. The State contends that after Cocking returned the documents to Morlock, the traffic stop ended and Morlock consented to additional questioning, relying on State v. Thompson, 284 Kan. 763, 166 P.3d 1015 (2007).
Thompson holds that an initial traffic stop can subsequently become a consensual encounter if, under the totality of the circumstances, the law enforcement officer’s conduct conveys to a reasonable person that he or she is free to refuse the requests or otherwise end the encounter. 284 Kan. 763, Syl. ¶ 9. However, Thompson is distinguishable from the present case because at the point of requesting consent in Thompson, there had been no “taint” of the encounter. Here, as we have concluded, Morlock’s constitutional rights were violated when Cocking asked impermissible questions about travel plans and when he ran the warrant check on Morlock.
Once the encounter is tainted, the focus must be on whether the consent purged the taint. State v. Grace, 28 Kan. App. 2d 452, Syl. ¶¶ 6-8, 17 P.3d 951, rev. denied 271 Kan. 1039 (2001). The analysis requires consideration of the proximity in time of the violation and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the law enforcement officer’s misconduct. Most importantly, the State must establish a break in the causal connection between the illegality and the evidence thereby obtained. 28 Kan. App. 2d at 460; see State v. Rice, 264 Kan. 232, 241-44, 955 P.2d 1258 (1998).
Here, there was a close proximity in time between the constitutional violation and Morlock’s consent. There were no interven ing circumstances present to purge the taint of the constitutional violation. For instance, if the warrant check had uncovered an outstanding warrant for Morlock, Cocking could have arrested Morlock on the warrant even though the information was illegally obtained. See State v. Martin, 285 Kan. 994, 1005, 179 P.3d 457 (2008). However, these are not the facts of this case.
Furthermore, there was a direct causal connection between Cocking’s illegal actions and evidence ultimately seized from the van. Cocking testified that by the time of his request for consent, he was suspicious of drug trafficking based in large part on the information he received about the travel plans. As we have concluded, much of the information Cocking received from Morlock and O’Kelly about their travel plans was based upon questioning outside the scope of the traffic stop. The State failed to establish a break in the causal connection between Cocking’s illegal actions and the evidence thereby obtained. In fact, the district court expressly found that the encounter between Cocking and Morlock was continuous and never became voluntary.
For these reasons, we conclude there is no need to analyze the voluntariness of Morlock’s consent to additional questioning and his consent to the search of the van, employing Thompson. We conclude that Cocking violated Morlock’s constitutional rights when Cocking asked impermissible questions about travel plans and, more importantly, when he ran the warrant check on Morlock. We further conclude that the State failed to establish that Morlock’s consent purged the taint of the constitutional violations. Thus, the district court erred in denying Morlock’s motion to suppress the evidence. Because the evidence establishing Morlock’s guilt is suppressed, Morlock’s convictions are set aside, and he is discharged from further proceedings.
Reversed. | [
48,
-24,
111,
14,
45,
96,
18,
-66,
-45,
-45,
106,
51,
-81,
-62,
6,
57,
-5,
127,
117,
77,
-63,
-74,
103,
50,
-14,
-13,
-118,
79,
-105,
-53,
108,
67,
78,
48,
-126,
85,
68,
88,
-91,
88,
-50,
37,
-104,
-14,
-46,
-110,
32,
40,
2,
15,
49,
30,
-61,
14,
26,
-53,
9,
12,
-37,
-119,
-63,
80,
-7,
29,
-33,
32,
-93,
36,
-119,
5,
-16,
30,
-112,
-71,
16,
-8,
115,
-90,
-128,
-12,
111,
-101,
-124,
6,
98,
33,
29,
-17,
-28,
-120,
12,
58,
15,
7,
-102,
105,
105,
5,
-105,
-99,
112,
18,
14,
-4,
107,
84,
93,
108,
-94,
-49,
-80,
-127,
77,
-22,
14,
27,
-33,
69,
16,
117,
-49,
-10,
93,
69,
115,
-101,
-23,
22
] |
Malone, J.:
The State appeals the district court’s determination of Wanda Luttig’s criminal history score following her conviction of two counts of forgeiy. Luttig had two prior forgeiy convictions. Based on Luttig’s third conviction of forgery, the district court or dered her to serve 45 days in jail as a condition of probation. The issue is whether the district court used Luttig’s prior forgery convictions to enhance her applicable penalty in this case and, if so, to what extent. We affirm in part, vacate in part, and remand for further proceedings.
On February 15, 2008, Luttig pled guilty to two counts of forgery. Luttig’s presentence investigation report listed her criminal history score as category E based on three prior nonperson felonies, two of which were forgeries. Luttig objected to the inclusion of the two prior forgeries in her criminal history score to the extent that the convictions were being used to enhance her penalty in the current case.
Luttig was sentenced on March 28, 2008. The district court found that because the case was Luttig’s third forgery conviction, the statute required her to serve at least 45 days in jail as a condition of probation. Thus, the district court determined that the two prior forgery convictions enhanced the applicable penalty and could not be counted in Luttig’s criminal history. The district court stated:
“The court will find, since in the court’s view and interpretation of a statute that criminal history does not include prior convictions which enhance the applicable penalties, that in fact because of the nature of tire forgery and there is mandatory jail time on subsequent convictions, that in fact the prior convictions do enhance the penalty and therefore are not included in the criminal history. So the two prior forgeries will not be included which would change the criminal history from category E to category G.”
The district court imposed a controlling sentence of 10 months’ imprisonment and placed Luttig on probation for 18 months with the mandatory condition that she serve 45 days in jail. The State timely appeals.
The State claims the district court erred in determining Luttig’s criminal history score. Specifically, the State argues that the mandatoiy 45 days’ imprisonment as a condition of probation on a third forgery conviction does not enhance the applicable penalty. Thus, the State argues that Luttig’s two prior forgeiy convictions should have been scored as part of her criminal history.
Resolution of this issue involves statutory interpretation. Interpretation of a statute is a question of law, and an appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008).
We must examine two separate statutes under the Kansas Criminal Code. First, K.S.A. 21-3710, the forgery statute, provides in part as follows:
“(b)(1) Forgery is a severity level 8, nonperson felony.
(3) On a second conviction of a violation of this section, a person shall be required to serve at least 30 days’ imprisonment as a condition of probation, and fined the lesser of the amount of the forged instrument or $1,000.
(4) On a third or subsequent conviction of a violation of this section, a person shall be required to serve at least 45 days’ imprisonment as a condition of probation, and fined the lesser of the amount of the forged instrument or $2,500.” (Emphasis added.)
Second, K.S.A. 21-4710(d)(11), found in the Kansas Sentencing Guidelines Act (KSGA), provides as follows:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the seventy level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs. State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006). An appellate court’s first task 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).
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read the statute to add something not readily found therein. In such an instance, an appellate court need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that an appellate court moves to the next analytical step, applying canons of construction or relying on legislative his tory construing the statute to effect the legislature’s intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
When statutes are ambiguous or unclear, an appellate court will apply canons of construction to effect the legislative intent. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). A specific statute controls over a general statute. In re K.M.H., 285 Kan. at 82. As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
Against this backdrop, the State argues that Luttig’s 45-day prison term for her third forgery conviction mandated by K.S.A. 21-3710(b)(4) did not affect her sentence for forgery, but was merely an additional condition of probation. Because the district court always has discretion to include incarceration in a county jail for up to 60 days in felony cases as a condition of probation pursuant to K.S.A. 21-4602(c), the State argues that the mandatory 45-day term on a third or subsequent forgery conviction cannot be viewed as an enhancement of the penalty.
This argument fails under the plain language of K.S.A. 21-3710(b)(4), which mandates the 45-day imprisonment upon a third or subsequent forgery conviction. The fact that a district court otherwise has discretion to order a period of confinement as a condition of probation does not matter. K.S.A. 21-4710(d)(11) provides that prior convictions cannot be counted in determining criminal history if they enhance the applicable penalty for the current crime of conviction. The fact that Luttig is required to serve 45 days in jail as a condition of her probation certainly enhances her penalty in this case, even if the requirement does not otherwise affect the length of her sentence.
The State’s argument would have merit if K.S.A. 21-4710(d)(11) prescribed that prior convictions shall not be counted in determining criminal history if they enhance the applicable sentence for the present crime of conviction. As the State notes, the fact that Luttig was ordered to serve 45 days in jail as a condition of her probation does not otherwise affect the length of her sentence. However, the statute’s use of the word “penalties” rather than “sentence” is significant. Here, because this was Luttig’s third forgery conviction, and for this reason alone, the district court was required to impose a 45-day jail term as a condition of her probation. Under the plain language of K.S.A. 21-4710(d)(11), this enhanced her applicable penalty for forgery in the present case.
We do not interpret K.S.A. 21-4704(i) to require the inclusion of all prior forgery convictions in determining a defendant’s criminal history regardless of whether probation is granted, as is argued by the dissent. K.S.A. 21-4704(i) does not address criminal history. This provision was added to the KSGA to address mandatory rules of imprisonment for driving under the influence of alcohol, domestic battery, forgery, and other specified crimes. We interpret K.S.A. 21-4704(i) to mean that if an offender is convicted of any of the specified crimes and is going to be placed on probation, the offender must serve the mandatory term of imprisonment or jail time required by statute, even if the offender is otherwise presumptive probation under the guidelines. If an offender is convicted of one of the specified crimes and is going to be imprisoned anyway, then the special rules for mandatory jail time do not apply.
We agree with the dissent that application of K.S.A. 21-3710(b) and K.S.A. 21-4710(d)(11) can lead to inequitable results in certain hypothetical situations. Nevertheless, we find the language of the statutes to be plain and unambiguous, requiring no further statutory construction. Even if the statutory language is somehow ambiguous or unclear, the criminal statutes must be strictly construed in favor of Luttig. We affirm the district court’s judgment that, to the extent Luttig’s prior forgery convictions were used to enhance her applicable penalty in the present case, the prior convictions cannot be construed in determining her criminal history score.
However, we disagree that the district court was required to use both of Luttig’s prior forgery convictions in order to impose the mandatory 45-day jail term as a condition of her probation. Luttig pled guilty to two counts of forgery in the present case. She was required to serve 45 days in jail as a condition of probation on a third or subsequent felony conviction. K.S.A. 21-4710(a) forbids the use of multiple convictions from the same information/complaint in determining criminal history, but the forgery statute’s progressive penalty provisions contain no such analogous restrictions. K.S.A. 21-3710(b)(4) states in relevant part that “[o]n a third or subsequent conviction of a violation of this section, a person shall be required to serve at least 45 days’ imprisonment as a condition of probation.” The words “prior conviction” are not used. Furthermore, there is no timing requirement relative to the convictions; there is only the requirement that a third conviction exists.
Because Luttig pled guilty to two counts of forgery in the present case, the district court was only required to use one of her prior forgery convictions in order to impose the 45-day jail term. The district court should have counted Luttig’s other prior forgery conviction, resulting in a criminal histoiy of two prior nonperson felonies. Therefore, we vacate Luttig’s sentence and remand with directions to resentence Luttig under criminal history category F.
Affirmed in part, vacated in part, and remanded. | [
112,
-6,
97,
-1,
46,
33,
58,
-68,
114,
-91,
125,
81,
-21,
-62,
5,
121,
41,
109,
96,
97,
-46,
55,
55,
3,
-10,
-69,
-69,
86,
-5,
111,
124,
5,
14,
48,
-118,
125,
68,
-120,
-91,
88,
-124,
6,
-101,
-21,
81,
65,
36,
45,
-101,
15,
113,
-50,
-89,
46,
-76,
94,
40,
41,
75,
57,
-56,
-111,
-75,
13,
105,
22,
-93,
20,
-68,
12,
-38,
37,
-100,
17,
-128,
-8,
51,
-106,
-122,
84,
75,
-101,
-123,
34,
34,
-127,
20,
-49,
-83,
-120,
6,
126,
-51,
-125,
24,
-47,
43,
110,
-106,
-43,
118,
-42,
6,
-2,
102,
29,
95,
108,
-123,
-49,
20,
-101,
93,
100,
-122,
-29,
-45,
37,
51,
113,
-52,
98,
93,
52,
113,
26,
-50,
-73
] |
Leben, J.:
Landmark National Bank brought a suit to foreclose its mortgage against Boyd Kesler and joined Millennia Mortgage Corp. as a defendant because a second mortgage had been filed of record for a loan between Kesler and Millennia. In a foreclosure suit, it is normal practice to name as defendants all parties who may claim a Hen against the property. When neither Kesler nor Millennia responded to the suit, the district court gave Landmark a default judgment, entered a journal entry foreclosing Landmark’s mortgage, and ordered the property sold so that sale proceeds could be applied to pay Landmark’s mortgage.
But Millennia apparently had sold its mortgage to another party and no longer had interest in the property by this time. Sovereign Bank filed a motion to set aside the judgment and asserted that it now held die tide to Kesler’s obligation to pay the debt to Millennia. And another party, Mortgage Electronic Registration Systems, Inc. (“MERS”), also filed a motion to set aside the judgment and asserted that it held legal title to the mortgage, originally on behalf of Millennia and later on behalf of Sovereign. Both Sovereign and MERS claim that MERS was a necessary party to the foreclosure lawsuit and that the judgment must be set aside because MERS wasn’t included on the foreclosure suit as a defendant.
The district court refused to set aside its judgment. The court found that MERS was not a necessaiy party and that Sovereign had not sufficiently demonstrated its interest in the property to justify setting aside the foreclosure.
I. The District Court Properly Refused to Set Aside the Foreclosure Judgment Because MERS Was Not a Necessary Party.
To resolve these claims, we will review some basic concepts of mortgages and foreclosure proceedings. We must pay close attention not only to the terms given to the parties in carefully crafted documents but also to the roles each party actually performed. No matter the nomenclature, the true role of a party shapes the application of legal principles in this case.
A mortgage grants a title or lien against a property as security for the payment of a debt or the performance of a duty. The “mortgagor” is the borrower who grants a mortgage in exchange for a loan; the “mortgagee” is the lender who gives the loan secured by the mortgage. See Black’s Law Dictionary 1031, 1034 (8th ed. 2004). The mortgagee is so well understood as the lender that Black’s Law Dictionary defines a “foreclosure” as an action brought by the lender/mortgagee: a foreclosure is a “legal proceeding to terminate a mortgagor’s interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property.” Black’s Law Dictionary 674. Similarly, tire tie between a mortgage and an underlying debt is so intrinsic that Kansas law provides that “[t]he assignment of any mortgage . . . shall carry with it the debt thereby secured.” K.S.A. 58-2323. Indeed, an assignment of a mortgage without the debt transfers nothing. 55 Am. Jur. 2d, Mortgages § 1002. Thus, the mortgagee, who must have an interest in the debt, is the lender in a typical home mortgage.
But for reasons thought beneficial by a group of lenders who trade mortgages, the form of mortgage used in this case designates an entity that is not the lender as the mortgagee. See MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 96, 828 N.Y.S.2d 266, 861 N.E.2d 81 (2006) (MERS was established by large lenders to allow easy electronic trading and tracking of mortgages). Specifically, the mortgage says that the mortgagee is MERS, though “solely as nominee for Lender.” Does this mean that MERS really was the mortgagee, even though it didn’t lend money or have any rights to loan repayments? Assuming so, MERS argues that it was a necessary party to the foreclosure and that the foreclosure must be set aside. But the premise upon which MERS bases this argument is flawed.
What is MERS’s interest? MERS claims that it holds the title to the second mortgage, not the real estate. So it does, but only as a nominee. In terms of the roles that we’ve discussed in the mortgage business, MERS holds the mortgage but without rights to the debt. The district court found that MERS was merely an agent for the principal player, Millennia. While MERS objects to its characterization as an agent, it’s a fair one.
MERS had no right to the underlying debt repayment secured by the mortgage; MERS did not even act as the servicing agent to receive the payments and remit them to the lender. MERS’s right to act to enforce the mortgage was strictly limited: if “necessary to comply with law or custom,” MERS could foreclose the mortgage or enter a release of the mortgage. MERS certainly could not act at odds to its principal, the lender. Its role fits the classic definition of an agent: one “ ‘authorized by another to act for him, or intrusted with another’s business.’ ” In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 534, 920 P.2d 947 (1996) (quoting Black’s Law Dictionary 85 [4th ed. 1968]).
Only one Kansas case has discussed the meaning of nominee in any detail. In Thompson v. Meyers, 211 Kan. 26, 30, 505 P.2d 680 (1973), the court noted that the meaning of the term may vaiy from a pure straw man or limited agent to one who has broader authority.
But whatever authority the nominee may have comes from the delegation of that authority by the principal. In its ordinary meaning, a nominee represents the principal in only a “nominal capacity” and does not receive any property or ownership rights of the person represented. See, e.g., Cisco v. Van Lew, 60 Cal. App. 2d 575, 583-84, 141 P.2d 433 (1943); see also Applebaum v. Avaya, Inc., 812 A.2d 880, 889 (Del. 2002) (referring to nominees “as agents of the beneficial owners”). The Millennia mortgage does not purport to give MERS any greater rights than normally given a nominee. The mortgage says that MERS acts “solely as nominee for Lender.” There is no express grant of any right to MERS to transfer or sell the mortgage or even to assign its duties as nominee. Nor does MERS obtain any right to the borrower s payments or even a role in receiving payments.
MERS and Sovereign correctly note that a foreclosure judgment may be set aside for failure to join a contingently necessary party. E.g., Wisconsin Finance v. Garlock, 140 Wis. 2d 506, 512, 410 N.W.2d 649 (1987). For the purposes of our case, a party is contingently necessary under K.S.A. 60-219 if the party claims an interest in the property at issue and the party is so situated that resolution of the lawsuit without that party may “as a practical matter substantially impair or impede [its] ability to protect that interest.” The real issue is that of the lender, the true mortgagee, to protect its security interest against the property. Whether MERS may act as a nominee for the lender, either to bring a foreclosure suit or for some other purpose, is not at issue in Landmark’s foreclosure lawsuit. Moreover, an agent for a disclosed principal is not a necessary party to a lawsuit adjudicating the substantive rights of the principal. Hotel Constructors, Inc. v. Seagrave Corp., 99 F.R.D. 591, 592 (S.D.N.Y. 1983); Liles v. Winters Independent School District, 326 S.W.2d 182, 188 (Tex. App. 1959).
In support of the necessary-party argument, MERS and Sovereign cite Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 606 P.2d 1009 (1980). In Dugan, a bank agreed to act as escrow agent for three parties who loaned money and obtained a mortgage as collateral. The bank was to receive all repayments made on the various loans and then remit them to the lenders in the appropriate percentages; the bank was also the named mortgagee, apparently due to the multiple lenders who were separate actors. The court held that the bank and the lenders were all necessary parties to the lawsuit, in which the borrower sought reformation or cancellation of the mortgages based on fraud and breach-of-fiduciary-duty claims. The bank was a necessary party even though it had no direct financial interest in the loans and would “be affected only tangentially in its position as designated mortgagee and escrow agent.” 227 Kan. at 212.
In response, Kesler cites Moore v. Petroleum Building, Inc. 164 Kan. 102, 187 P.2d 371 (1947). In Moore, a plaintiff had intervened in a past foreclosure action and later filed suit to enjoin a bank and escrow holder from delivering deeds to another party. The bank was used only to hold deeds that would be delivered upon termination of the leases and was not a party to the original foreclosure. The court held that the plaintiff should have raised issues regarding his rights under the escrow agreement in the previous foreclosure case, noting that “there probably was no necessity that [the bank] should have been made a party, for it stood by only as a custodian of the deeds and for no other purpose.” 164 Kan. at 108.
We find Moore closer to our facts than Dugan. Like the bank in Moore, MERS did not receive any funds on behalf of Millennia or Sovereign. The mortgage set out clearly that the borrower, Kesler, was to pay his monthly payments to the lender. The mortgage also suggests that the reputed mortgagee, MERS, was not interested in receiving notices of default. The Millennia mortgage, which was duly recorded in the public record, included a section titled “Request For Notice of Default and Foreclosure Under Superior Mortgages or Deeds of Trust.” As the district court noted, that section provided that both “Borrower and Lender request” the holder of any mortgage with priority “give Notice to Lender, at Lender s address set forth on page one of this Mortgage, of any default . . . and of any sale or other foreclosure action.” Millennia’s address was noted on page one of the mortgage; the mortgage did not list MERS as an entity to contact upon default or foreclosure.
Two older Kansas cases should also be noted, though the parties didn’t cite them. In Swenney v. Hill, 65 Kan. 826, 70 P. 868 (1902), the court faced a situation somewhat different than today’s typical residential-mortgage. As part of the same transaction, a couple borrowed money and then gave mortgage bonds to two individuals and a mortgage to an investment company. Repayment of the loan was made to the bondholders, but the mortgagee/investment company had “extensive rights and active powers over the relationship” between the borrowers and the bondholders. 65 Kan. at 828. While the court did not concern itself with why this structure had been chosen, it determined that the mortgagee/investment company was a necessaiy party because it had a right under the written agreements to advance additional funds, thus increasing the amount of the lien, as well as the right to declare the loan matured and bring suit. In addition, the mortgage could not be released by the bondholders alone; the mortgagee/investment company was also required to approve it. We do not know from the court’s opinion whether the investment company organized the transaction initially or made any guarantee of repayment to the bondholders, but the court said that the investment company had “substantial rights and interests.” 65 Kan. at 829.
A second relevant case is Gibson v. Ledwitch, 84 Kan. 505, 114 P. 851 (1911). It involved the converse of our case — a party sued to quiet title against a mortgage, which would clear the title from the encumbrance of that mortgage. But the plaintiff joined only a trustee who had no beneficial interest in that mortgage; the beneficial owner was not made a party. The court held that the judgment did not bind the beneficial holder of the mortgage since the trustee had no right to the payments, was not the party to declare default, and had no authority to transfer or foreclose the mortgage.
We also believe that the decisions in Swenney and Gibson are supportive of the result here. MERS does not have the sort of “substantial rights and interests” that the investment company had in Swenney. MERS points to its ability to foreclose or to release the mortgage, authority provided in the mortgage “if necessary to comply with law or custom.” Kansas law does require through K.S.A. 58-2309a that a mortgage holder promptly release a mortgage when the debt has been paid; MERS could be required as a matter of law to file a mortgage release after a borrower proved that the debt had been paid. Other than that, however, it is hard to conceive of another act that MERS — instead of the lender— would be required to take by law or custom. And although Gibson involves the converse of our case, it suggests that a party with no beneficial interest is outside the realm of necessary parties.
In addition to the claim that MERS was a necessary party under K.S.A. 60-219, MERS and Sovereign also argue that the failure to include MERS violated its due process rights. But MERS had no direct property interests at stake; even its right to act on behalf of its principal was not at issue in Landmark’s suit. Without a property interest at stake, there can be no due process violation. State ex rel. Tomasic v. Unified Gov’t of Wyandotte County/Kansas City, 265 Kan. 779, 809, 962 P.2d 543 (1998).
We do not attempt in this opinion to comprehensively determine all of the rights or duties of MERS as a nominee mortgagee. As the mortgage suggests may be done when “necessary to comply with law or custom,” courts elsewhere have found that- MERS may in some cases bring foreclosure suits in its own name. Mortgage Electronic Registration v. Azize, 965 So. 2d 151 (Fla. Dist. App. 2007). On the other hand, some have suggested potential problems created by MERS’s practices, MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 100-04, 828 N.Y.S.2d 266, 861 N.E.2d 81 (2006) (Kaye, C.J., dissenting), or with the handling of paperwork documenting who owns what in the residential-mortgage industry in general. E.g., In re Nosek, 386 B.R. 374, 385 (Bankr. D. Mass. 2008); In re Foreclosure Cases, 2007 WL 3232430 (N.D. Ohio 2007) (unpublished opinion). In this case, we are only required to address whether the failure to name and serve MERS as a defendant in a foreclosure action in which the lender of record has been served is such a fatal defect that the foreclosure judgment must be set aside. We hold that it is not.
II. The District Court Did Not Abuse Its Discretion by Denying Motions of MERS and Sovereign to Intervene After the Judgment Had Been Entered.
Neither MERS nor Sovereign argue that Landmark was required to join Sovereign. But both MERS and Sovereign argue that the district court wrongly denied their motions to intervene.
On this argument they face a major hurdle: the Kansas Supreme Court has held that there is no jurisdiction even to consider a motion to intervene made after the entry of judgment and the expiration of the 10-day period for filing new-trial motions. Smith v. Russell, 274 Kan. 1076, Syl. ¶ 4, 58 P.3d 698 (2002). Even so, timeliness is to be determined from the specific circumstances of each case. See Mohr v. State Bank of Stanley, 244 Kan. 555, 562, 770 P.2d 466 (1989). Although some caselaw allows intervention after judgment “where it is necessary to preserve some right which cannot otherwise be protected,” these authorities generally have allowed intervention so that there would be appropriate representation in an appeal when a party that originally participated in the case is no longer adequately representing the intervenor’s interest. E.g., Hukle v. City of Kansas City, 212 Kan. 627, 631-32, 512 P.2d 457 (1973). Of course, that’s not our situation.
The intervention argument faces another hurdle too: the decision whether to permit intervention may be reversed only when no reasonable person could agree with the district court’s decision. See Mohr, 244 Kan. at 561-62; Farmers Group, Inc. v. Lee, 29 Kan. App. 2d 382, 385, 28 P.3d 413 (2001). Sovereign’s motion to intervene was filed 76 days after foreclosure, 53 days after the court ordered the property sold, and 26 days after the property was sold. MERS’s motion to intervene was filed 134 days after foreclosure, 111 days after the court ordered the property sold, and 84 days after the property was sold. Especially in light of Smith’s holding that a court lacked jurisdiction when the motion to intervene came after the 10-day period for filing new-trial motions, we believe it would be extremely difficult — even if the district court had juris diction to grant intervention — to reverse for an abuse of discretion on motions filed as far after judgment as those of Sovereign and MERS.
MERS and Sovereign argue that their intervention motions were timely because the time for filing an appeal had not yet run. They base this argument on a claim that the time to file an appeal doesn’t begin until the sheriff s sale of the property is confirmed. But a judgment of foreclosure is a final judgment for appeal purposes when it determines the rights of the parties, the amounts to be paid, and the priority of claims. Stauth v. Brown, 241 Kan. 1, 6, 734 P.2d 1063 (1987). The foreclosure judgment in this case did so. We find no abuse of discretion in denying intervention.
III. Separate Claims by Kesler and Other Parties Are Not Properly Raised on Appeal.
Dennis Bristow and Tony Woydziak, who together bought the property at a sheriff s sale, have sought to proceed with Kesler on a cross-appeal to challenge the district court’s orders enjoining them from finalizing sale of the property while the appeal was heard. They also seek a ruling that Sovereign is bound by the district court’s judgment.
Kesler, Bristow, and Woydziak raise issues that are not based on the same judgments on which MERS and Sovereign have filed their appeal. The joint notice of appeal from MERS and Sovereign noted an appeal from “(1) Journal Entry of Judgment filed September 6, 2006; (2) Order filed January 18, 2007; (3) Supplemental Order filed January 18, 2007; and (4) Order Denying Motions for Reconsideration filed March 22, 2007.” But Kesier, Bristow, and Woydziak attempted to include a separate district court decision, entered May 2, 2007, which had denied their motions to dismiss for lack of jurisdiction the motions to intervene by MERS and Sovereign and also granted a stay pending appeal to MERS and Sovereign. A cross-appeal must involve the same judgment as the underlying appeal, but Kesler, Bristow, and Woydziak argue a separate issue from a different district court order.
Even if the same judgment were involved, notice of a cross-appeal must be filed within 20 days of the notice of appeal. MERS and Sovereign filed their joint notice of appeal on March 28, 2007; Kesler, Bristow, and Woydziak did not seek to file a cross-appeal within 20 days of that date.
This court is without jurisdiction to address the separate issues raised on appeal by Kesler, Bristow, and Woydziak.
Conclusion
The district court properly determined that MERS was not a contingently necessary party in Landmark’s foreclosure action. The district court also was well within its discretion in denying motions from MERS and Sovereign to intervene after a foreclosure judgment had been entered and the foreclosed property had been sold. The judgment of the district court is affirmed. | [
-111,
-28,
-56,
108,
-56,
96,
-88,
-40,
72,
-14,
37,
-41,
-19,
-64,
21,
13,
-27,
107,
-27,
104,
21,
-77,
35,
65,
-42,
-77,
-112,
85,
-72,
95,
116,
93,
12,
-16,
66,
-11,
-58,
-126,
-97,
92,
14,
-122,
26,
101,
-15,
64,
48,
-37,
92,
101,
87,
-11,
-77,
45,
-66,
110,
-56,
42,
111,
29,
-16,
-68,
-117,
-115,
123,
1,
-107,
100,
-102,
103,
-24,
4,
-112,
53,
1,
-24,
118,
54,
-126,
52,
73,
27,
-87,
54,
98,
32,
105,
-21,
-71,
-119,
47,
-49,
15,
-121,
-108,
56,
3,
43,
-66,
-97,
120,
1,
6,
-2,
-26,
-124,
-98,
-20,
19,
-22,
-42,
-109,
13,
-1,
-102,
-117,
-10,
-45,
32,
112,
-116,
104,
94,
-60,
124,
123,
12,
-3
] |
Malone, J.:
Eric Paul Loggins appeals his sentences following his convictions of felony theft in two separate cases. Loggins claims the district court erred in calculating his criminal history score for the purpose of determining his sentences. He also claims the district court erred by ordering him to pay the Board of Indigents’ Defense Services (BIDS) application fee in each case. Finally, Log-gins claims that the imposition of a BIDS application fee under K.S.A. 22-4529 is unconstitutional.
Loggins was charged in separate cases with one count of felony theft of property having a value of at least $1,000 but less than $25,000, and one count of felony theft based on two prior theft convictions. At the first appearance in each case, the district court considered financial information submitted by Loggins, found him to be indigent, and appointed counsel to represent him. The district court assessed a $100 BIDS application fee in each case, as noted in each order appointing counsel. The district court also made payment of the BIDS application fee a condition of Loggins’ appearance bond in each case.
On January 4, 2007, Loggins pled no contest as charged in each case. Under the plea agreement, the State agreed not to object to probation if Loggins’ presentence investigation (PSI) report revealed a criminal history score of category C or lower. The PSI report classified Loggins’ criminal history as category B. Loggins filed a general written objection to the report prior to sentencing.
At his sentencing hearing on April 26, 2007, Loggins challenged five specific convictions included in the PSI report. Loggins denied that he was the person convicted of one count of simple robbery and two counts of violating a no contact order in Ramsey County, Minnesota, and denied that he was the person convicted of batteiy and obstruction of legal process in Shawnee County, Kansas. The State offered a certified journal entry as evidence of Loggins’ prior Shawnee County convictions. The State also offered authenticated copies of computer printouts of court records from the district court of Ramsey County, Minnesota, as evidence of Loggins’ Minnesota convictions.
After considering the evidence, the district court found that the State sufficiently proved Loggins’ criminal history to he category B and sentenced him to a 14 months’ incarceration in each case, to be served concurrently. The district court waived the assessment of attorney fees to reimburse BIDS for Loggins’ court-appointed counsel but ordered Loggins to pay the $100 BIDS application fee in each case. Loggins timely appeals.
Determination of criminal history
Loggins first claims the district court erred in finding that the State met its burden to prove the prior Minnesota convictions. Although Loggins also objected in district court to two prior convictions in Shawnee County, Kansas, Loggins does not challenge the existence of those convictions on appeal. An issue not briefed by an appellant is deemed waived or abandoned. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
The State has the burden to prove a defendant’s criminal history by a preponderance of the evidence for the purpose of sentencing the defendant. K.S.A. 21-4715(a). This burden is satisfied by the summary of the defendant’s convictions set forth in the PSI report unless the defendant objects to the report. K.S.A. 21-4715(b). In the case of an objection, K.S.A. 21-4715(c) provides:
“Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.”
On appeal, the State contends that Loggins failed to properly raise his objection to the PSI report and, therefore, the State had no burden of producing further evidence of Loggins’ criminal history at the sentencing hearing. Loggins’ written objection to the PSI report was general and failed to identify the specific convictions that Loggins was challenging. K.S.A. 21-4715(c) requires the defendant to specify the exact nature of any alleged error in a PSI report. The State is correct that a general objection to the PSI report is usually insufficient to require the State to produce further evidence of the defendant’s criminal history. State v. Sykes, 35 Kan. App. 2d 517, 538, 132 P.3d 485, rev. denied 282 Kan. 795 (2006).
However, the State is raising this argument for the first time on appeal. Generally, issues not raised before the district court cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Loggins followed his general written objection to the PSI report with specific objections at the sentencing hearing. The State produced further evidence of Loggins’ criminal history without raising any procedural objections. Accordingly, we will address the merits of Loggins’ claim that the State failed to meet its burden to prove the prior Minnesota convictions.
Whether the State has met its burden to prove a prior conviction by a preponderance of the evidence is a question of fact, and an appellate court’s review is limited to determining whether substantial competent evidence supports the district court’s finding. State v. Hankins, 19 Kan. App. 2d 1036, 1049, 880 P.2d 271 (1994). Substantial evidence is evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person would accept as being adequate to support a conclusion. Walker, 283 Kan. at 594-95.
Loggins does not contest the authenticity or admissibility of the documents obtained from the Minnesota court, which were offered by the State to prove his convictions. Instead, Loggins argues that the documents were deficient because they were not journal entries and because the information contained in the documents was insufficient to prove either that the convictions existed or that Log-gins was the person convicted.
A certified journal entry is the best evidence of a prior conviction. State v. Presha, 27 Kan. App. 2d 645, 646-47, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). However, a journal entry is not the only permissible form of evidence to prove a defendant’s criminal history. 27 Kan. App. 2d at 647-48. In State v. White, 23 Kan. App. 2d 363, 372, 931 P.2d 1250, rev. denied 261 Kan. 1089 (1997), this court upheld a criminal history finding based on authenticated letters from the California Youth Authority that included information identical to that revealed in the PSI report. In State v. Connell, No. 97,361, unpublished opinion filed March 28, 2008, rev. denied 286 Kan. 1181 (2008), documents characterized as docket notes that accompanied a journal entry of probation violation were held sufficient to support a finding of a prior conviction. In State v. Arnold, No. 91,962, unpublished opinion filed February 18, 2005, rev. denied 279 Kan. 1008 (2005), a criminal felony information, along with an order placing the defendant on probation and a copy of the criminal docket, were deemed sufficient to support a finding of the defendant’s criminal history.
Here, the State offered Exhibits 1 through 4 at the sentencing hearing in order to prove Loggins’ Minnesota convictions. The exhibits included authenticated printouts of computer screens from the district court of Ramsey County, Minnesota, including criminal case summaries, activity summaries, traffic displays, and a status history report. Loggins’ conviction of simple robbery is shown in State’s Exhibit 1. This exhibit includes a criminal case summary and an activity summary in case 62-K0-02-004134. The criminal case summary contains Loggins’ identifying information, including his name, alias, date of birth, sex, race, and ethnicity. This page also contains information relating to the disputed conviction, including the crime charged, statute violated, date of offense, plea, verdict, and type and name of defense counsel. The document specifies that Loggins pled guilty and was convicted of simple robbery committed on November 7, 2002. The activity summary contains information relating to all activity in the case and includes the name of the presiding judge, date of sentencing, and Loggins’ sentence.
The information in State’s Exhibit 1 is sufficient to show by a preponderance of the evidence that Loggins was convicted of simple robbery in Ramsey County, Minnesota. It is an authenticated court record, as required by K.S.A. 60-465. While it is not a journal entry, it contains much of the same information required of a journal entry under K.S.A. 22-3426. Furthermore, the case number listed in the documentation from Minnesota is corroborated in the PSI report.
Loggins’ two convictions of violating a no contact order are shown in State’s Exhibits 2 and 3. These exhibits include traffic display printouts accompanied by activity summaries. Both documents contain Loggins’ identifying information, including his name, date of birth, race, and ethnicity. The documents also contain information relating to the offense, including the crime charged, statute violated, plea, sentence, and case number. The documents specify that Loggins pled guilty and was convicted and sentenced in two separate cases for violating a no contact order. Furthermore, the case numbers listed in the documents are corroborated in the PSI report. This evidence sufficiently proves that it is more likely than not that Loggins was convicted in Ramsey County, Minnesota, of two counts of violating a no contact order.
The State offered additional evidence confirming Loggins’ identity as the convicted party, which Loggins does not dispute on appeal. Exhibit 4 is a status history report, which contains a photograph of Loggins. The report also contains Loggins’ full name and birth date, both of which are identical to those listed on all the disputed documents. Further, the report contains Loggins’ social security number, which is corroborated in the PSI report.
The district court’s finding that the State sufficiently proved Loggins’ Minnesota convictions is supported by substantial competent evidence. Therefore, the district court did not err in clas sifying Loggins’ criminal history as category B and sentencing him accordingly.
BIDS application fee
Next, Loggins claims the district court erred by ordering him to pay the $100 BIDS application fee in each of his two cases. Loggins argues that the district court failed to consider whether he had the ability to pay the application fees and the burden such payment would impose. Loggins further argues that the district court failed to consider whether payment of the application fees would impose a manifest hardship.
The payment of the BIDS application fee is controlled by K.S.A. 22-4529. The 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).
K.S.A. 22-4529 is part of a statutory scheme that provides defense services to indigent defendants. See K.S.A. 22-4501 et seq. Under this scheme, a defendant who requests appointed counsel is required to file financial information supporting the defendant’s claim of indigency. K.S.A. 22-4504; K.A.R. 105-4-1. If counsel is appointed and the defendant is convicted, the district court may order the defendant to reimburse BIDS for his or her attorney fees. K.S.A. 22-4513. The defendant may also be hable for an application fee for court-appointed counsel under K.S.A. 22-4529, which provides:
“Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall pay an application fee in the amount of $50 for the period commencing on the effective date of this act and ending on June 30, 2004, and the amount of $100 on or after July 1, 2004, to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of die application fee. All moneys received pursuant to this section shall be remitted to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the indigents’ defense services fund. If the defendant is acquitted or the case is dismissed, any application fee paid pursuant to this section shall be remitted to the defendant.”
Before analyzing the assessment of the BIDS application fee under K.S.A. 22-4529, it is instructive for purposes of distinction to examine the assessment of the BIDS attorney fees under K.S.A. 22-4513. This statute provides that in determining the amount and method of payment of attorney fees, “the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” K.S.A. 22-4513(b). In State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), the Supreme Court interpreted this statute to mean that before ordering a defendant to reimburse BIDS for attorney fees, the district court must consider on the record at the time of sentencing the financial resources of the defendant and the nature of the burden that payment of the attorney fees will impose. If the district court fails to make explicit findings on the record regarding tire assessment of attorney fees, the case must be remanded to the district court to consider the appropriate findings. 281 Kan. at 548. Although the dispute in Robinson concerned fees under both K.S.A. 22-4513 and K.S.A. 22-4529, the court did not distinguish between the two statutes and made no independent ruling on the requirements of K.S.A. 22-4529. 281 Kan. at 539-41, 546-48.
In State v. Hawkins, 285 Kan. 842, Syl. ¶¶ 5-7, 176 P.3d 174 (2008), the Supreme Court clarified that the BIDS application fee is governed by K.S.A. 22-4529 rather than by K.S.A. 22-4513, which governs BIDS attorney fees. In interpreting K.S.A. 22-4529, the court found that when a defendant applies for a court-appointed attorney in any case, the district court must make a determination whether the defendant is indigent, in full or in part, based upon the defendant’s affidavit and other evidence brought to the court’s attention. In conjunction with the indigency determination, the district court should make the additional determination whether payment of the application fee will impose a manifest hardship on the defendant. If so, the court should waive all or part of the application fee; otherwise, the court should order the defendant to pay the application fee at that time. 285 Kan. 842, Syl. ¶ 6. If any part of the application fee remains unpaid at the time of sentencing, the district court may include the unpaid fee in its sentencing order without making any additional findings. 285 Kan. 842, Syl. ¶ 7.
Here, Loggins applied for court-appointed counsel in each of his cases, and the district court assessed the BIDS application fee at the time counsel was appointed, as noted on the bond form and the order appointing counsel in each case. There is no evidence that Loggins paid the application fees prior to sentencing. At the sentencing hearing, the district court expressly waived the assessment of the BIDS attorney fees, but the district court renewed its prior order for Loggins to pay the BIDS application fee in each case. The journal entry of judgment in each case also included the assessment of the applicable BIDS application fee.
On appeal, Loggins argues that the district court erred in assessing the BIDS application fees because the district court failed to consider at sentencing whether Loggins had the ability to pay the application fees and the burden such payment would impose. However, these findings only apply to the assessment of the BIDS attorney fees under K.S.A. 22-4513. See Robinson, 281 Kan. at 546. These findings are not required at sentencing in order to assess any BIDS application fee under K.S.A. 22-4529. The court in Hawkins specifically stated that once an application fee is initially assessed, if any part of the application fee remains unpaid at the time of sentencing, the district court may include any unpaid fee in its sentencing order without making any additional findings. 285 Kan. 842, Syl. ¶ 7; see State v. Scaife, 286 Kan. 614, Syl. ¶ 7, 186 P.3d 755 (2008).
Loggins also argues that the district court erred because it did not explicitly determine on the record whether payment of the BIDS application fees would impose a manifest hardship on Log-gins at the time the application fees were initially assessed. Loggins claims that his cases should be remanded to the district court to consider the appropriate findings. Here, the record reflects that the district court assessed the BIDS application fee at the time counsel was initially appointed to represent Loggins in each case. Loggins is correct that there is nothing in the record to reflect whether the district court considered if the payment of the application fees would impose a manifest hardship on Loggins. K.S.A. 22-4529 provides that the district court may waive payment of all or part of the application fee if the court finds that payment of the fee will impose a manifest hardship on the defendant. However, there is no language in the Hawkins opinion which requires this determination to be explicitly stated on die record. In fact, in Hawkins the court remanded the case to the district court only for appropriate findings regarding the assessment of the BIDS attorney fees, and the court upheld the BIDS application fee assessed without any finding in the record whether payment of the fee would impose a manifest hardship on the defendant.
K.S.A. 22-4513(b) contains mandatory language that before assessing the BIDS attorney fees at sentencing, the district court “shall” take into account the financial resources of the defendant and the nature of the burden that payment of the attorney fees will impose. In Robinson, the court interpreted K.S.A. 22-4513(b) to require the district court to explicidy state its findings on the record regarding the assessment of attorney fees. Regarding an application fee under K.S.A. 22-4529, the statute contains permissive language that the district court “may” waive payment of all or part of the application fee if the court finds that payment of the fee will impose a manifest hardship on the defendant. This provision involves the waiver of the fee rather than its assessment. The fact that this language is permissive, rather than mandatory, supports a conclusion that the district court is not required to explicitly make this determination on the record.
A district court is presumed to know the law. State v. Johnson, 258 Kan. 61, 65, 899 P.2d 1050 (1995). Here, we can presume that the district court was aware that it could have waived payment of all or part of the BIDS application fee when it initially assessed the fee against Loggins in each case. However, the district court did not do so. The application fees remained unpaid at the time of sentencing. At the sentencing hearing, the district court expressly waived the assessment of the BIDS attorney fees, but the district court renewed its prior order for Loggins to pay the BIDS application fee in each case. The journal entry of judgment in each case also included the assessment of the BIDS application fee. This is consistent with the procedure set forth in Hawkins. Thus, the dis trict court did not err in assessing the BIDS application fee against Loggins in each of his two cases, and there is no need to remand the cases to the district court for further findings.
Constitutionality of K S.A. 22-4529
Finally, Loggins claims that K.S.A. 22-4529 violates an indigent defendant’s rights under the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of Kansas Constitution Bill of Rights. Loggins did not challenge the constitutionality of K.S.A. 22-4529 in district court. Constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 843 (2007). Among the exceptions to the general rule that a new legal theoiy may not be asserted for the first time on appeal is when consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights. Hawkins, 285 Kan. at 845. Because the right to counsel is a fundamental right, we will briefly consider the merits of Loggins’ constitutional claim.
Loggins argues that the mandatory BIDS application fee under K.S.A. 22-4529 unnecessarily chills a defendant’s constitutional right to counsel and violates a defendant’s constitutional rights to due process and equal protection. In State v. Casady, 40 Kan. App. 2d 335, Syl., 191 P.3d 1130 (2008), aff'd 289 Kan. 150, 210 P.3d 113 (2009), this court considered the same arguments and held the provisions of K.S.A. 22-4529 to be constitutional. We adopt the reasoning set forth by this court in Casady, and we incorporate the holding of that decision in rejecting Loggins’ constitutional claim.
Affirmed. | [
-112,
-23,
-19,
-3,
27,
-31,
27,
-104,
83,
-13,
-28,
19,
-81,
-62,
7,
107,
-15,
125,
116,
120,
-51,
-73,
99,
-31,
-10,
-69,
-69,
-57,
-5,
75,
-12,
-106,
24,
-16,
-110,
53,
102,
-128,
-90,
-36,
-114,
7,
-119,
120,
-63,
65,
48,
35,
6,
-117,
49,
-98,
-13,
34,
16,
66,
72,
44,
-37,
-85,
0,
-71,
-73,
-115,
125,
20,
-95,
23,
-102,
5,
88,
60,
-100,
57,
2,
-24,
122,
-74,
-126,
-11,
75,
-103,
-83,
110,
-30,
0,
56,
-49,
-76,
-55,
14,
-98,
-99,
-121,
-39,
88,
66,
109,
-106,
-35,
116,
86,
39,
-4,
109,
68,
29,
109,
-125,
-18,
-16,
-109,
-115,
-12,
-122,
-13,
-33,
53,
-110,
113,
-50,
98,
76,
-10,
48,
95,
-118,
113
] |
McAnany, J.:
This appeal requires us to examine K.S.A. 21-3522(a)(3), sometimes referred to as the “Romeo and Juliet” law. Here, 12-year-old E.R. was adjudicated a juvenile offender for sexually fondling a 14-year-old girl who was a willing participant. E.R. argued to the district court without success that the charge should be dismissed and he should not be adjudicated a juvenile offender because he is younger than the girl involved in this illicit liaison. This appeal follows the district court adjudicating E.R. to be a juvenile offender on this charge.
E.R. argues that the plain language of K.S.A. 21-3522(a)(3) requires an offender charged under the statute to be older than the victim. This is an issue of law over which we have unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 21-3522(a) provides:
“Unlawful voluntary sexual relations is engaging in voluntary. (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and the child and the offender are the only parties involved and are members of the opposite sex.” (Emphasis added.)
The intent of the legislature in enacting K.S.A. 21-3522(a) controls. See State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). In our effort to determine that intent we examine the statutory language the legislature employed, giving ordinary words their ordinary meanings. See State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When the language of a statute is plain and unambiguous, we do not speculate as to the legislature’s intent behind it or read into the statute something that is not readily found in it. We do not look for ambiguity where none is apparent. See Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001). We do not add words that are not found in the statute, nor do we ignore words that have been included. We need only resort to the various tools of statutory construction or to the statute’s legislative history if the language of the statute is unclear or ambiguous. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008). In the end, we defer to the legislature on all constitutional statutory enactments and do not substitute our own views for those of the legislature on what the law should or should not be.
As we understand it, the State argues that a 12-year-old offender is less than 4 years older than a 14-year-old victim because a person 4 years older than a 14-year-old is age 18, and the age of a 12-year-old is less than the age of an 18-year-old. We suspect that the average reader will have to read the foregoing sentence more than once to figure out the State’s theory. We did. We are confident a mathematician could easily express the State’s theory in a simple equation. But people do not talk that way. And legislators do not write laws that way.
All of the State’s interesting arguments for why we should apply its tortured construction and all of E.R.’s equally interesting policy considerations, which he claims support a contraiy view, are predicated on the existence of an ambiguity in the statute. We never apply the familiar rules of construction which the State turns to if the statute is clear and unambiguous on its face. In re K.M.H., 285 Kan. at 79. The State’s construction of the statute is a solution looking for a problem. We see no ambiguity. We do not believe our legislators, in enacting this law, meant anything other than older when they characterized the offender as being “older than the child.” The offender could be 1 day older than the child, 1 year older, and even 3 years and 364 days older. But the defining characteristics of the offender, as clearly expressed by the legislature, are that the offender is under age 19 and older than the child by some period less than 4 years.
We note in passing the general rule that if the statute were ambiguous, because it is a criminal statute we would ordinarily construe it in a fashion favoring the accused, not the State. See State v. Paul, 285 Kan. at 662. But since there is no ambiguity, our analysis ends with a simple reading of the clearly expressed words of the statute without resorting to the rules of construction.
Accordingly, we conclude that the district court erred in refusing to dismiss this charge and in adjudicating E.R. to be a juvenile offender for violating K.S.A. 21-3522(a) when he was younger, rather than older, than his female participant.
This renders E.R.’s remaining claims moot.
Reversed. | [
-48,
-22,
-36,
-66,
14,
98,
42,
20,
19,
-13,
55,
83,
-81,
-52,
4,
123,
-45,
107,
68,
120,
-111,
-73,
23,
-63,
-66,
-5,
-41,
-33,
-69,
79,
102,
-4,
74,
112,
-54,
-43,
34,
-54,
-23,
-44,
-126,
-123,
-118,
-56,
16,
3,
38,
103,
82,
14,
113,
62,
-13,
43,
60,
-37,
107,
44,
-119,
-3,
-54,
17,
-5,
23,
-34,
22,
-93,
4,
-68,
9,
112,
46,
-104,
25,
0,
-20,
-13,
-90,
-122,
-10,
111,
-87,
-119,
99,
98,
33,
-99,
-49,
-68,
-128,
62,
119,
-67,
-89,
-104,
89,
99,
13,
-97,
26,
64,
84,
46,
-6,
-29,
69,
55,
-20,
-126,
-53,
-124,
-111,
-51,
50,
26,
59,
-5,
53,
1,
117,
-34,
-92,
86,
-43,
18,
-37,
-98,
-10
] |
Greene, J.:
Harold Hawkins appeals his convictions of aggravated assault, aggravated assault against a law enforcement officer, and criminal possession of a firearm, arguing reversal of the aggravated assault conviction is required because of an erroneous response from the district court to a jury question, multiplicity, insufficiency of the evidence, cumulative trial errors, and sentencing errors. Concluding the district court erred in its response to a jury question, we reverse Hawkins’ conviction for aggravated assault and remand for new trial on that charge, but we affirm the remaining convictions.
Factual and Procedural Overview
Off-duty Police Officers Carl Lemons and Fongvilay Phommachanh were working security in full uniform at a restaurant in Wichita when they were approached about a skirmish in the parking lot. As the officers moved in response, Phommachanh observed a man walking toward him lifting his hand when he heard a loud bang and saw a flash come from an apparent firearm. Phommachanh called for Lemons and began to chase the man with the gun, identifying himself as a police officer and demanding the man stop and drop the weapon. As the man continued to flee, Phommachanh saw him turn around several times and motion like he was going to shoot at Phommachanh again. Lemons joined the chase, heard gunfire from Phommachanh’s service weapon, and eventually shot the fleeing man in the back. The man was identified as Hawkins.
As a result of these events, the State charged Hawkins with four counts: Count I, aggravated assault of Phommachanh as an individual; Count II, aggravated assault of Phommachanh as a law enforcement officer; Count III, aggravated assault of Lemons as a law enforcement officer; and Count IV, criminal possession of a firearm. The jury found Hawkins guilty of Counts I, II, and IV but acquitted him of Count III.
Hawkins moved for a judgment of acquittal and new trial. After allowing argument, the trial court denied both motions. The trial court then imposed consecutive aggravated sentences for all three convictions, totaling 63 months in prison. Hawkins timely appeals.
Were Hawkins’ Convictions of Aggravated Assault and Aggravated Assault on a Law Enforcement Officer Supported by Sufficient Evidence?
Hawkins challenges the sufficiency of the evidence to support his convictions of aggravated assault and aggravated assault on a law enforcement officer. “When the sufficiency of the evidence is reviewed in a criminal case, [an appellate] court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006). A conviction for even the gravest offense may be sustained by circumstantial evidence. Circumstantial evidence is evidence of events or circumstances from which a reasonable factfinder may infer the existence of a material fact in issue. State v. Lopez, 36 Kan. App. 2d 723, 725, 143 P.3d 695 (2006). As the finder of fact, the juiy is responsible for weighing of the evidence, determining witness credibility, and resolving conflicts in the evidence, and this court will not second guess its performance of such vital tasks. See State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006).
From our review of the record, we conclude there was some conflicting evidence of the details of the incident, but Hawkins’ involvement was not placed in serious doubt. The officers testified clearly regarding the Hawkins’ movements, shots fired, and being placed in fear of bodily harm as a result of Hawkins’ actions. Additionally, a partially loaded but jammed semiautomatic handgun was found on die floor of the vehicle Hawkins was entering as he was shot by Lemons. Ballistics matched one of the six cartridges or shell casings found at the crime scene to that handgun, and a bullet hole was found in the top of the windshield of a car in the parking lot in the vicinity where Phommachanh first observed someone shoot at him. One witness, who was in front of the restaurant at the time of the first shot, heard the shot, testified generally consistent with the officers, and specifically stated that the individual who fled appeared to be shooting at the officers and at her group of friends.
Hawkins’ arguments on appeal highlight evidence suggesting his innocence. For example, he points to evidence presented in his defense which tended to contradict Phommachanh’s testimony on direct examination that he thought Hawkins was shooting at him, as opposed to a car. He maintains that Phommachanh’s conflicting statements in that regard were insufficient for the jury to find beyond a reasonable doubt that he was guilty of aggravated assault. His claim is similar with regard to evidence of the events that led to the charge of aggravated assault against Phommachanh as a law enforcement officer, which included conflicting witness accounts of Hawkins’ actions as he ran from the officers.
We conclude that Hawkins’ arguments go to the weight of the respective evidence and the assessment of credibility. We decline to resolve such issues. See Pham, 281 Kan. at 1252. We are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt of aggravated assault resulting from the initial shot fired and of aggravated assault on a law enforcement officer resulting from the balance of Hawkins’ actions. His challenge to the sufficiency of the evidence is rejected.
Did the District Court Err in Responding to a Jury Question on Aggravated Assault, and if so, Was the Error Harmless?
Hawkins argues the district court erroneously responded to a question from the jury during its deliberations and the erroneous response entitles him to a new trial on his aggravated assault conviction. He makes no similar challenge as to his remaining convictions. This court generally reviews a trial court’s response to a jury’s question for abuse of discretion. Our appellate courts will find an abuse of judicial discretion only when no reasonable person would take the view adopted by the trial court. State v. Kendall, 274 Kan. 1003, 1006, 58 P.3d 660 (2002). However, to the extent Hawkins contends the trial court misstated the law in responding to the juiy’s question and resolution of the issue calls for statutory interpretation, this court’s review of such strictly legal issues is unlimited. See State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried. Kendall, 274 Kan. at 1007.
Instruction 9 directed the juiy that to find Hawkins guilty of the aggravated assault of Phommachanh as an individual, the jury had to find, in pertinent part, that “Mr. Hawkins intentionally placed Fongvilay Phommachanh in reasonable apprehension of immediate bodily harm.” Both parties focused in their closing arguments upon what the jury had to find — or not find — that Hawkins intended. More than an hour into deliberations, the jury sent a note to the court referencing “Instruction 9, item 1” and asking: “Does aggravated assault require Mr. Hawkins [’] target specifically to be Officer Phommachanh?”
The State argued the doctrine of transferred intent applied and suggested the trial court simply refer to its instructions already given. Hawkins argued the question mandated a “yes” response because the jury had to find this was an intentional act against Phommachanh specifically.
Relying on State v. Eichman, 26 Kan. App. 2d 527, 989 P.2d 795, rev. denied 268 Kan. 890 (1999), the trial court noted that aggravated assault and/or aggravated assault on a law enforcement officer are general intent crimes. The court then explained its understanding that “[tjhere has to be an intent to do the act, but it does not have to be the intent to place someone in immediate apprehension of bodily harm.” (Emphasis added.) Thus, over defense counsel’s objection, the trial court responded by writing below the jury’s question: “To be guilty of aggravated assault someone’s act must have been intentional. The intentional act must have placed another in reasonable apprehension of immediate bodily harm.”
We fundamentally disagree with the district court in its belief that the intent necessary “does not have to be the intent to place someone in immediate apprehension of bodily harm.” This was a serious misstatement of die law. See K.S.A. 21-3408 (assault). Although aggravated assault is a general intent crime, the general intent necessary requires proof that the defendant intentionally placed another person in immediate apprehension of bodily harm. Eichman, 26 Kan. App. 2d at 522-30; see K.S.A. 21-3410 (aggravated assault); K.S.A. 21-3411 (aggravated assault on a law enforcement officer). The district court’s response changed this essential intent element of assault by stating that “someone’s act must have been intentional” and that the intentional act “must have placed another in reasonable apprehension of immediate bodily harm.” The response misled the jury to the extent it required only an undefined intentional act, such as the general firing of a weapon, and that this act had the result of placing someone in apprehension of bodily harm. Under the plain language of K.S.A. 21-3408, an “assault” defendant must possess the general intent to “place another person in reasonable apprehension of immediate bodily harm.” The district court’s response effectively eliminated this element of the charged offense of aggravated assault.
Instructive to our analysis is our court’s decision in State v. Campbell, 30 Kan. App. 2d 70, 39 P.3d 97, rev. denied 273 Kan. 1037 (2002), where the question framed was the general intent necessary for battery against a law enforcement officer under K.S.A. 2000 Supp. 21-3413. In Campbell, the defendant threw water from his jail cell toilet toward two deputies (Magdaleno and Fletcher) and a staff nurse (Clark) as they attempted to deliver medication to the defendant. The water hit one of the deputies, resulting in charges against the defendant in violation of K.S.A. 2000 Supp. 21-3413. The Campbell court noted K.S.A. 2000 Supp. 21-3412(a)(2) defines “battery,” as used in K.S.A. 2000 Supp. 21-3413, as “ ‘intentionally causing physical contact with another person when done in a rude, insulting or angry manner’ ” and battery and battery against a law enforcement officer are general intent crimes. 30 Kan. App. 2d at 72-74.
At issue in Campbell was the propriety of the trial court’s aggravated battery instruction. The instruction included language generally tracking the battery statute in that it provided the State had to prove Campbell “intentionally caused physical contact with [Deputy] Magdaleno in a rude, insulting or angry manner.” The source of controversy was the trial court’s addition of a paragraph to the instruction that provided: “ ‘As used in this instruction, the State must prove that Mr. Campbell intended to throw the liquid. The State is not required to prove Mr. Campbell intended to throw the liquid onto Ms. Clark, Deputy Magdaleno or Deputy Fletcher.’ ” 30 Kan. App. 2d at 71.
The Campbell court defined the ultimate legal question before it as: “What, exactly, must a battery defendant have had a general intent to do?” 30 Kan. App. 2d at 73. The Campbell court concluded that the plain statutory language clearly required that the battery defendant
“must have possessed the general intent to ‘caus[e] physical contact with another person.’ K.S.A. 2000 Supp. 21-3412(a)(2). Mere recklessness is not enough . . ., but neither must the State have to prove that the defendant had physical contact with a specific individual in mind. . . . [The defendant] need not have possessed the intention for the liquid to hit Magdaleno specifically.” 30 Kan. App. 2d at 73.
Because the jury could reasonably have been misled, this court reversed the defendant’s battery against a law enforcement officer conviction and remanded the case. 30 Kan. App. 2d at 73-75.
Similarly, we must conclude that the district court’s response to the jury’s question was not harmless. Here, the court’s response misstated the intent element required for aggravated assault and likely misled the jury. See State v. Kunellis, 276 Kan. 461, 473, 78 P.3d 776 (2003). Accordingly, we must reverse Hawkins’ conviction of aggravated assault and remand for a new trial on this charge.
Were Hawkins’ Convictions of Aggravated Assault and Aggravated Assault on a Law Enforcement Officer MultiplicitousP
Hawkins next contends that his convictions for the aggravated assault against Phommachanh as an individual and the aggravated assault against Phommachanh as a law enforcement officer violated his constitutional right to be free from double jeopardy. We address this issue despite our reversal of the aggravated assault conviction because if it is meritorious, no retrial would be necessary.
Hawkins acknowledges that he did not raise the multiplicity issue at trial. Nonetheless, he properly notes that our appellate courts consider multiplicity issues raised for the first time on appeal to serve the ends of justice or to prevent a denial of a fundamental right. See, e.g., State v. Simmons, 282 Kan. 728, 743, 148 P.3d 525 (2006).
Whether the State violated Hawkins’ protections against double jeopardy and multiplicity are questions of law subject to unlimited review. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006). Multiplicity is the charging of a single offense in several counts of a complaint or information, which may violate the federal and state Constitutions’ protections against double jeopardy. 281 Kan. at 475. The Schoonover court held that “the single act of violence/ merger analysis should no longer be applied when analyzing double jeopardy or multiplicity issues in multiple description cases where a defendant has been convicted ... of multiple statutes arising from the same course of conduct.” 281 Kan. at 493. Thus, this court’s inquiry to determine if convictions are for the same offense involves two components, both of which must be met for there to be a double jeopardy violation: “(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” 281 Kan. 453, Syl. ¶ 15.
To answer the first question, “[i]f the conduct is discrete, i.e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation.” 281 Kan. at 496. The parties dispute whether the Hawkins’ conduct was unitary. Schoonover identified four factors to be considered in answering this question:
“(1) [W]hether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. at 497.
Hawkins summarily argues the charges against him for the aggravated assault of Phommachanh as an individual and against Phommachanh as a law enforcement officer stemmed from one uninterrupted incident that lasted only a few minutes so the charges “were undoubtedly based on the same unitary conduct.”
We reject Hawkins’ multiplicity argument because the challenged convictions did not proceed from the same conduct. Rather, the facts detailed above demonstrate that discrete conduct resulted in the separate charges of the aggravated assault of Phommachanh and the aggravated assault of Phommachanh as a law enforcement officer. Hawkins first pointed and fired a gun toward Phommachanh as he and several others stood outside in front of the crowded restaurant. Shortly thereafter, Officers Phommachanh and Lemons chased Hawkins down the street, repeatedly identifying themselves as police officers as they commanded Hawkins to stop. As the chase continued, Hawkins turned around and acted as if he was going to shoot at Phommachanh.
Hawkins’ actions clearly did not occur at the same time or location. Moreover, there was an intervening event — Phommachanh identified himself as a police officer and Hawkins turned around to run away. Hawkins’ subsequent decision to turn around while running and motion as though he was going to shoot Phommachanh was a fresh impulse beyond the earlier event of frightening Phommachanh by shooting toward him as he stood in front of the Denny’s. Accord State v. Gomez, 36 Kan. App. 2d 664, 674, 143 P.3d 92 (2006) (discussing an intervening event and fresh impulse on similar facts in holding that convictions for aggravated assault and criminal discharge of a firearm at an occupied vehicle were not multiplicitous because they did not proceed from the same conduct).
Because Hawkins’ actions did not proceed from the same conduct, his convictions were not for the same offense so there was no violation of the Double Jeopardy Clause.
Was Hawkins Denied a Fair Trial by Reason of Cumulative Error?
Hawkins next claims that cumulative trial error denied him a fair trial as guaranteed by the United States Constitution. We recognize that cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992).
Here, the only error we have found among Hawkins’ challenges was an error related specifically to his conviction for aggravated assault. Based upon that error, we have reversed his conviction for this charge and remanded for a new trial. We have not found there to have been any other error to be considered in a cumulative error analysis and therefore reject Hawkins’ challenge to cumulative error. State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007); State v. Anthony, 282 Kan. 201, 217, 145 P.3d 1 (2006).
Did the District Court Err in Sentencing Hawkins Based on a Criminal History Not Proven to a Jury Beyond a Reasonable Doubt?
Hawkins also contends the trial court erred by considering his prior convictions to score his criminal history for sentencing purposes without submitting those convictions to a jury to be proven beyond a reasonable doubt. He claims such a practice violates the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Hawkins acknowledges this same argument was rejected in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). However, he suggests that our Supreme Court’s reliance therein on Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), “is somewhat weakened” in light of Justice Thomas’ concurring opinion in Shepard v. United States, 544 U.S. 13, 26-28, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005), which questioned the continuing viability of Almendarez-Torres.
Absent some indication that the Kansas Supreme Court is departing from its position in Ivory, this court is duty bound to follow that precedent. See State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). Our Supreme Court has given no indication of any departure from its decision in Ivory, and, in fact, it continues to uphold Ivory. See, e.g. State v. Storey, 286 Kan. 7, Syl. ¶ 4, 179 P.3d 1137 (2008) (no persuasive reason given for the court to retreat from its position in Ivory); State v. Gonzalez, 282 Kan. 73, 114-18, 145 P.3d 18 (2006). Accordingly, Hawkins’ Apprendi violation argument must be rejected.
Does this Court Have Jurisdiction to Consider Hawkins’Remaining Challenge to his Presumptive Sentences?
Hawkins next argues the trial court violated his Sixth and Fourteenth Amendment rights under the United States Constitution by imposing the aggravated sentencing number for each of his convictions without submitting the aggravating factors to a jury to be proven beyond a reasonable doubt as required by the United States Supreme Court in Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007). Hawkins maintains that the mid-number in the Kansas sentencing grid box is the maximum presumptive sentence and if the court imposes the aggravated number, it must submit the aggravating facts to a jury. The State correctly responds that this court lacks jurisdiction to review a presumptive sentence on direct appeal.
Pursuant to K.S.A. 21-4704(f), the three numbers contained within a sentencing guidelines grid box constitute the range for a presumptive sentence. K.S.A. 21-4721(c)(1) expressly forbids this court from reviewing a presumptive sentence. In State v. Lewis, 27 Kan. App. 2d 134, 140-42, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000), a panel of this court held that because this court lacks jurisdiction to consider such a claim on direct appeal, a challenge to the constitutionality of a presumptive sentence must be brought in a K.S.A. 60-1507 motion. Other panels of this court have likewise dismissed Cunningham challenges to the imposition of aggravated sentencing terms for lack of jurisdiction. See State v. Walker, No. 97,213, unpublished opinion filed February 15, 2008, rev. denied 286 Kan. 1185 (2008); see also State v. McHone, No. 97,748, unpublished opinion filed February 29, 2008, rev. denied 286 Kan. 1183 (2008) (noting this court’s consistent recognition of the tension between our statutory jurisdiction limitation and the potential gravity of the constitutional Cunningham issue and adopting the reasoning of Lewis until our Supreme Court resolves such tension). For these reasons, we dismiss Hawkins’ challenge to his presumptive sentences.
In summary, we reverse Hawkins’ conviction and sentence for aggravated assault, we affirm his remaining convictions, we reject his Apprendi argument, and we dismiss his challenge to his presumptive sentences. We remand for a new trial on the aggravated assault charge. Because the conviction reversed was not the primary crime among multiple convictions, we conclude K.S.A. 21-4720(b)(5) is inapplicable, and there need be no resentencing on the convictions affirmed. See State v. Heath, 264 Kan. 557, 571- 72, 592, 957 P.2d 449 (1998); State v. Spangler, 38 Kan. App. 2d 817, 839, 173 P.3d 656 (2007).
Convictions affirmed in part and reversed in part, appeal dismissed in part, and case remanded with directions. | [
-112,
-21,
-23,
125,
10,
97,
16,
-68,
-110,
-109,
-26,
50,
-91,
-47,
5,
105,
-55,
89,
68,
73,
-51,
-73,
79,
65,
-14,
115,
35,
-59,
19,
79,
-25,
-43,
94,
-16,
66,
85,
70,
2,
-17,
88,
-114,
0,
-71,
96,
16,
-128,
4,
62,
48,
15,
49,
-114,
-5,
106,
16,
-54,
73,
44,
75,
-72,
81,
121,
-55,
5,
-81,
20,
-93,
-122,
-97,
11,
80,
46,
-103,
49,
16,
104,
115,
-122,
-126,
116,
71,
-119,
-20,
96,
114,
48,
-39,
-20,
-88,
-119,
47,
62,
-120,
-89,
-103,
41,
107,
37,
-106,
-97,
-18,
84,
15,
120,
79,
-3,
83,
108,
-122,
-33,
-108,
-79,
95,
100,
30,
-46,
-21,
23,
84,
112,
-49,
-26,
92,
23,
114,
-101,
-85,
-48
] |
Green, J.:
Janet J. Jeanes appeals from a summary judgment granted in favor Sharon Kunard and Rudy Wrenick in Jeanes’ negligence, breach of fiduciary duty, and breach of contract claims. On appeal, Jeanes contends that the trial court improperly determined that the claims against Kunard sounded in tort. We disagree. In addition, Jeanes asserts that die trial court inappropriately granted summaiy judgment in favor of Kunard on her tort claims against Kunard. We disagree. Jeanes further maintains that the trial court erred in granting summary judgment to Wrenick on Jeanes’ breach of fiduciary duty claim. We agree. Finally, Jeanes contends that the trial court erred in granting summary judgment to Wrenick on Jeanes’ breach of contract claims. We disagree. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings in accordance with this opinion.
On June 13, 1991, Maxine J. Anton created a living trust agreement entitled the “Maxine Jeanes Anton Living Trust.” Under the living trust, Anton was to receive income from the trust assets for life. Upon Anton’s death, the living trust set aside some of the assets to fund charitable remainder trusts for Anton’s stepson and Anton’s personal assistant. Nevertheless, the vast majority of the assets were to pass to Janet J. Jeanes, Anton’s niece and sole heir. Bank IV, the predecessor of Bank of America (the Bank), was named successor trustee of Anton’s living trust. Anton also had two unit-rusts, for which the Bank was trustee.
Anton entered into a written agency agreement with the Bank on July 5,1991. Under the agency agreement, Anton deposited her common stock and securities with the Bank, including her common stock in Exxon Mobil Corporation. Anton served as trustee of her living trust, and the Bank served as agent for the trustee. According to the agency agreement, the Bank performed certain tasks for Anton, including the collection of dividends and interest for deposit in Anton’s accounts; the collection of proceeds from the sale of assets as directed by Anton for deposit in Anton’s accounts; and the paying of bills, debts, and other obligations such as charitable donations. In addition, the Bank collected financial and tax information and delivered it to Anton’s accountant for preparation of Anton’s tax returns. The agency agreement stated that the Bank would charge a fee for these services “in accordance with the schedule agreed upon by the Principal and Agent in writing.” Anton’s primary source of income was dividend and interest income, and most of that income came from her Exxon Mobil stock.
Anton first met with Sharon Kunard, a Topeka attorney, in 1991 to discuss setting up a trust for one of Anton’s employees. At Anton’s request, Kunard drafted trust documents and a will reflecting the wishes of Anton as expressed to Kunard. The last time Kunard was contacted by Anton for legal services was in June 2000. Anton’s will, living trust, unitrusts, and all amendments thereto were prepared by Kunard.
In 1998, Rudy Wrenick was assigned to Anton’s account and served as Anton’s contact at the Bank. Wrenick holds the title of president of the Topeka branch of the Bank; he is a senior vice president and trust officer of the Bank.
Anton died on April 25, 2003. Anton’s estate tax return indicated that Anton had a gross estate of $39,491,806. Anton’s estate paid estate and inheritance taxes on Januaiy 24, 2004, which amounted to approximately half of the estate.
On November 24, 2004, Jeanes, in her capacity as administrator of Anton’s estate, sued the Bank; Bank of America Corporation (BAC); Wrenick; and Kunard. The petition alleged claims of negligence and breaches of fiduciary duty, contract, and trust against the Bank, BAC, and Wrenick. In addition, Jeanes alleged negligence and breaches of fiduciary duty and contract claims against Kunard. These claims were based on the alleged failure of die appellees to protect Anton’s assets from tax liability upon her death. Specifically, Jeanes alleged that setting up a family limited partnership would have saved over $6 million in taxes. Jeanes later amended the petition to include claims of improperly charged fiduciary fees.
The Bank, BAC, and Wrenick moved for summary judgment. Kunard moved separately for summary judgment. The trial court granted summary judgment on all claims in favor of BAC, Wrenick, and Kunard. The trial court noted that Jeanes had withdrawn her claims against BAC. The trial court later filed journal entries modifying its rulings, adding that its decisions granting summary judgment to Kunard and Wrenick constituted final judgments under K.S.A. 60-254(b). Jeanes timely appeals the grant of summary judgment to Wrenick and Kunard.
Did the trial court err in ruling that the claims against Kunard sounded in tort?
Jeanes argues that the trial court erred when it failed to consider Jeanes’ separate breach of contract claim against Kunard and instead determined that Jeanes’ claims against Kunard sounded only in tort. Jeanes claims that the evidence showed Anton had a contract with Kunard to give estate planning advice and Kunard breached that contract by failing to furnish any estate planning advice.
Turning to our standard of review, the standards for summary judgment are well known and can be stated as follows:
“ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show flrat diere is no genuine issue as to any material fact and diat the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” ’ [Citations omitted.]” Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007).
Additionally, the determination of whether a tort and contract claim can be brought in the same case is a question of law, which this court reviews de novo. See Bittel v. Farm Credit Svcs. of Central Kansas, P.C.A., 265 Kan. 651, 660, 962 P.2d 491 (1998).
In analyzing this issue, the trial court relied on our Supreme Court’s decision in Canaan v. Bartee, 276 Kan. 116, 133, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003), where our Supreme Court stated:
“ When there is both a contractual relationship and a relationship that gives rise to a legal duty, such as the attorney-client relationship, the breach of that duty and not of the contract itself gives rise to a tort action. ... If the gravamen of the action is a breach of the legal duty and not of the contract itself, the action is in tort.’ [Citation omitted.]”
In determining whether Jeanes’ claims sounded in contract or in tort, the trial court considered the expert opinions procured by Jeanes. The trial court noted that the opinions included statements explaining the legal duties Kunard owed to Anton in connection with the estate planning services Kunard had provided. Jeanes’ expert opined that Kunard was obligated to Anton to “use reasonable and ordinary care and diligence”; to use her “best judgment”; and to exercise that “reasonable degree of learning, skill, and experience which is ordinarily possessed by other attorneys in the community who practice estate planning.” Moreover, regarding the agreement between Kunard and Anton, Jeanes’ expert stated that if Kunard had intended to limit the scope of her estate planning services to Anton, Kunard “had the duty to explain” to Anton the consequences of the limitation and had “the duty to recommend” that Anton obtain other estate planning counsel.
Viewing this evidence in the light most favorable to Jeanes, the trial court determined that Jeanes’ claims were based on allegations that Kunard had failed to exercise “ ‘that degree of learning, skill, and care that a reasonably competent lawyer would use in similar circumstances.’ ” Thus, the trial court determined that the claims against Kunard sounded in tort, and the court granted summary judgment in favor of Kunard on the contract claim.
Because an action for negligence against an attorney relies on a contract for employment, a legal malpractice claim generally contains elements of both tort and breach of contract. Pancake House, Inc. v. Redmond, 239 Kan. 83, 85-86, 716 P.2d 575 (1986). As a result, a legal malpractice claim can be brought as a breach of contract claim when “the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby.” 239 Kan. at 86. Nevertheless, when “the essential claim of the action is a breach of duty imposed by law upon the relationship of attorney/ client and not of the contract itself, the action is in tort. [Citation omitted.]” 239 Kan. at 86. A plaintiff may not frame a contract action as a tort action or a tort action as a contract action merely to avoid the legal limitation of one particular cause of action. Malone v. University of Kansas Medical Center, 220 Kan. 371, 376, 552 P.2d 885 (1976).
Jeanes argues that her breach of contract claim is different from her malpractice claim, that the trial court erred in blending the two claims, and that she should be allowed to bring both claims against Kunard. Jeanes cites Pizel v. Zuspann, 247 Kan. 54, 72-73, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), for the proposition that a tort and breach of contract claim can both be brought in the same case. In Pizel, however, the court noted that the case had been submitted to the jury on both contract and tort theories. The Pizel court pointed out that the jury had found no breach of contract. The court further noted that the jury had based its verdict on negligence. The Pizel court analyzed whether the negligence cause of action had accrued in order to determine if it was barred by the applicable statute of limitations. Our Supreme Court, however, did not analyze whether it had been proper to raise a contract claim under the facts of that case. See 247 Kan. at 73-78.
“The nature of a claim — whether it sounds in tort or contract— is determined from the pleadings [citation omitted] and from the real nature and substance of the facts therein alleged. [Citation omitted.]” Malone, 220 Kan. at 374. Our Supreme Court analyzed whether both tort and breach of contract claims were warranted in KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 936 P.2d 714 (1997). In KPERS, the court carefully read the allegations set forth in the petition. Specifically, the breach of contract claim, which was based on an attorney-client employment contract, stated that the law firm had breached its contract by failing to properly advise the client. The court determined that the claims made under the breach of contract count sounded in tort and did not set forth contractual claims. 262 Kan. at 113-15.
In contrast, an attorney s conduct was determined to constitute a breach of contract in Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). In Juhnke, the client sued his attorney for failing to file a timely notice of appeal. In the petition, the client alleged that he had employed the attorney to file an appeal from a decision, but alleged that the attorney had failed to do so within the prescribed period. The court stated that the client had pleaded breach of a specific contract: that the attorney had failed to do that which the attorney had expressly agreed to do. 211 Kan. at 441; see also Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 622-23, 675 P.2d 361 (1984) (Because the cause of action was based on an oral contract calling for a specific result, the 3-year statute of limitations applied instead of the 2-year statute of limitations based on negligence.).
In the professional negligence portion of her petition, Jeanes alleged that Kunard had agreed to advise Anton concerning estate tax planning and other tax matters, including working with the Bank on estate planning, estate management, and tax matters. The petition then stated that Kunard was negligent or reckless in failing to perform certain acts that would have reduced the ultimate tax liability of Anton s estate after her death. In the breach of contract portion of the petition, Jeanes stated that Kunard and Anton had entered into an attorney-client and a contractual relationship. Jeanes alleged that Kunard had failed to recommend and to implement estate tax planning measures that would have allowed the estate to avoid a substantial estate tax liability.
Yet, unlike the Juhnke decision, Jeanes’ petition contained no allegation that Kunard had failed to do what she had expressly agreed to do, such as filing a notice of appeal, which was the issue in Juhnke. On appeal, Jeanes maintains that Kunard breached her contract with Anton by not giving her any estate-planning advice. Jeanes’ assertion about Kunard’s failure to give Anton any estate-planning advice is nebulous. To illustrate, Jeanes does not point to any evidence or language in her petition that states that Kunard had failed to do something which she had specifically agreed or contracted to do.
Moreover, under her negligence count, the petition stated that Kunard “worked with and consulted the Bank defendants with respect to estate planning and estate management on behalf of Ms. Anton, including with respect to tax matters.” Similarly, under the breach of contract claim, the petition stated that Kunard had failed to implement estate planning measures. Particularly, there was no allegation that Kunard had agreed to implement a particular tax-saving method and had failed to do so. The breach of contract claim hinges on the same allegations made in the negligence claim: that Kunard had failed to satisfy her legal duty to exercise ordinary skill and knowledge in giving legal advice. See Canaan, 276 Kan. at 120. Jeanes’ petition was not based on a breach of an alleged agreement of the parties. Instead, it was based on a breach of an alleged legal duty.
Consequently, the trial court correctly determined that the evidence did not support a breach of contract claim and that the gravamen of Jeanes’ claims against Kunard sounded in tort. The trial court properly granted summary judgment on the breach of contract claim in favor of Kunard.
Did the trial court err in granting summary judgment on the tort claims against Kunard because they had accrued after Anton’s death?
Jeanes argues that the trial court erred in failing to find the Kansas survival statute, K.S.A. 60-1801, applied to allow her to bring tort claims on behalf of Anton’s estate for legal malpractice against Kunard. Because the trial court granted summary judgment in favor of Kunard on Jeanes’ tort claims, the summaiy judgment standard of review applies. See Robbins, 285 Kan. at 459-60. Moreover, to the extent the resolution of this issue requires interpretation of a statute or other questions of law, this court reviews those issues de novo. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Legal malpractice requires a plaintiff to prove the following: (1) a duty of the attorney to exercise ordinary skill and knowledge; (2) a breach of that duty; (3) a causal connection between the breach of duty and the resulting injury; and (4) an actual loss or damage. Canaan, 276 Kan. at 120.
Jeanes argues that her tort claims were properly brought by the estate because the alleged legal malpractice actually caused harm to the estate. She also argues that the estate’s claims survive under K.S.A. 60-1801 because they would have survived at common law.
Whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801. Nicholas v. Nicholas, 277 Kan. 171, 189, 83 P.3d 214 (2004) (citing Gross v. VanLerberg, 231 Kan. 401, 405, 646 P.2d 471 [1982]). K.S.A. 60-1801 states:
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”
The trial court pointed out that K.S.A. 60-1801 provides for survival of “causes of action for ... an injury to the . . . personal estate.” Finding that the statute did not specifically address the issue of when a claim must have accrued in order to survive, the trial court relied on common law in deciding when a personal representative may recover damages for injury to die personal estate.
Relying on Mason v. Gerin Corp., 231 Kan. 718, 721, 647 P.2d 1340 (1982), the trial court determined that even if the legal malpractice claim was viewed as an injury to the personal estate of the decedent, the decedent’s personal representative could only recover damages that accrued between the date of injuiy and the death of the decedent. Because the damages alleged by Jeanes were the payment of excess estate taxes, the trial court determined that these damages accrued after Anton’s death. Thus, the trial court found that the tort claims did not survive as a matter of law and that Kunard was entitled to summary judgment on those claims.
Now we turn our attention once again to Jeanes’ argument. Jeanes argues that the rule from Mason, which the trial court relied on in determining that postdeath damages could not be recovered, is distinguishable. In Mason, 231 Kan. at 721, our Supreme Court stated: “A survival action allows the personal representative to recover damages accrued by the injured party between the date of injury and death for the benefit of the decedent’s estate.” Jeanes asserts that this statement is dicta because the Mason court was concerned with whether the statute of limitations had run on a wife’s wrongful death claim under K.S.A. 60-1901 et seq.
Jeanes further points out that the Mason court relied on Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, 494 P.2d 1184 (1972), for tire rule when a particular cause of action survives the death of a party. In Flowers, the plaintiff sought to bring a claim for loss of earnings or earning capacity under the survival statute (K.S.A. 60-1801) in order to bypass the recovery cap on a wrongful death claim. Our Supreme Court held that “in an action under die survival statute to recover damages for personal injury to plaintiffs decedent who died as a result of such injury, recovery may not be had for loss of earnings or earning capacity beyond tire time of death.” (Emphasis added.) 208 Kan. at 908. Jeanes, however, argues that because K.S.A. 60-1801 does not specifically limit recovery of damages to property while a person is alive, recoveiy of postdeath damages should be recoverable under Restatement (Second) of Torts § 917 (1964).
Nevertheless, our Supreme Court adopted and favorably cited tire Flowers decision in Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 337, 552 P.2d 1363 (1976) (The legislature in enacting the Kansas Automobile Injury Reparations Act dealt with two separate and distinct types of actions: the first, K.S.A. 60-1801, a survival action authorizing recoveiy of damages accruing between the injury and the death of the injured person; the second, K.S.A. 60-1901, a wrongful death action for the exclusive benefit of all the heirs who have sustained loss from damages accruing after death.).
In addition, the trial court relied on Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967), in making its decision. In Price, the court held that to determine whether a particular cause of action survived, one must first determine when the cause of action accrued. The Price court stated that a cause of action in tort arising out of the faulty execution of a will did not accrue until damages had occurred. 198 Kan. at 104-06. Moreover, the court stated that if the decedent died before damages had occurred, a cause of action in tort did not survive him or her. 198 Kan. 105-06. Indeed, “[a] cause of action in tort does not survive in favor of the personal representative of a deceased person unless the same has accrued to die decedent during his [or her] lifetime.” 198 Kan. 100, Syl. ¶ 4.
In Price, an action was filed to recover damages suffered by plaintiff s decedent because of a faulty execution of a will. The Price court, in applying K.S.A. 60-1801, held that the faulty execution of the will amounted to a breach of warranty. Moreover, the court held that the breach of warranty survived the death of the defendant decedent under K.S.A. 60-1801 and allowed the administrator of the plaintiff decedent to maintain the action against the defendant decedent. 198 Kan. at 106-07. In short, Price states that a tort action accrues when the injury occurs, but a contract action accrues when the breach occurs. 198 Kan. at 104-06.
On die other hand, Jeanes’ challenges the trial court’s determination that these tort claims cannot be brought by the estate because they did not accrue during Anton’s lifetime. Jeanes argues that the estate’s claims should be allowed because the harm in this case was suffered before Anton’s death and the excessive taxes were simply an escalation of damages. Basically, Jeanes argues that Anton could have sued Kunard for negligent estate planning while she was alive, possibly receiving as damages a refund of her attorney fees paid to Kunard and attorney fees incurred in restructuring her estate plan. Moreover, Jeanes contends that because such a cause of action existed while Anton was alive, Anton’s estate’s cause of action for recovery of excessive estate taxes survived Anton’s death.
Jeanes’ argument comes directly from the Texas Supreme Court’s decision in Belt v. Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780 (Tex. 2006). In Belt, two sisters were executors of their father’s estate. The two sisters, in their capacity as executors, sued the attorneys who had prepared their father’s will. They alleged that the attorneys were negligent in drafting the will and in advising their father on asset management. Specifically, the executors maintained that the estate had incurred over $1,500,000 in tax liability that could have been avoided by competent estate planning.
The trial court granted the attorneys’ motion for summary judgment on the grounds that the estate planners owed no duty to the personal representatives of the deceased client’s estate. The court of appeals affirmed, relying on a previous precedent. In the previous case, the court of appeals had held drat an estate-planning malpractice claim did not accrue during the decedent’s lifetime and, therefore, did not survive the decedent because the estate’s injuries did not arise until after the decedent’s death. Nevertheless, the Texas Supreme Court reversed. 192 S.W.3d at 789. The court held that the estate’s personal representatives could maintain a legal malpractice action against the decedent’s attorneys. 192 S.W.3d at 789.
In reaching its decision, the Belt court did not focus on the fact that the damages had occurred after the decedent’s death. Instead, the court relied on the fact that the attorneys’ alleged negligence occurred before the decedent’s death: If the decedent had discovered the injury before death, the decedent could have sued the estate planners, possibly recovering die fees paid to them or the fees incurred in restructuring the estate to minimize tax liability. 192 S.W.3d at 786. The Belt court determined that “if the injury occurs during the client’s lifetime, a claim for estate-planning malpractice survives the client’s death. [Citation omitted.]” 192 S.W.3d at 786. It would seem that the Belt court believed that if there was an “actionable wrong” suffered by the decedent during his lifetime, his estate should be allowed to bring a claim after his death. 192 S.W.3d at 786.
Nevertheless, Belt is distinguishable from this case based upon Kansas law. For example, Kansas courts allow a beneficiary of a will to sue an attorney who has negligently drafted a will in certain situations. See Pixel, 247 Kan. at 67-68; Johnson v. Wiegers, 30 Kan. App. 2d 672, 674-78, 46 P.3d 563, rev. denied 274 Kan. 1112 (2002). In contrast, whether a beneficiary could sue in the alternative was important to the Belt court when it decided that a representative of an estate could bring a negligence claim against an attorney alleging the payment of excessive estate taxes. 192 S.W.3d at 783-89.
In particular, one of the reasons for allowing the executors to pursue a recovery in Belt was that in Texas, a beneficiary could not sue the decedent’s attorney. The Belt court noted that “precluding both beneficiaries and personal representatives from bringing suit for estate-planning malpractice would essentially immunize estate-planning attorneys from liability for breaching their duty to their client.” 192 S.W.3d at 789. This is not the case in Kansas. Because beneficiaries can sue attorneys, Kansas attorneys may still be held liable to potential beneficiaries for malpractice. Pixel, 247 Kan. at 67-68.
Jeanes, however, attempts to distinguish her case from Pixel by maintaining that the estate’s representative can bring the claims because the estate had been harmed. In adopting California’s test for determining whether a beneficiary could recover against an attorney who has negligently drafted a will or trust document, the Pixel court quoted from a California Supreme Court case:
“ ‘In some ways, the beneficiary’s interests loom greater than those of the client. After the latter’s death, a failure in his testamentary scheme works no practical effect except to deprive his intended beneficiaries of the intended bequests. Indeed, the executor of an estate has no standing to bring an action for the amount of tire bequest against an attorney who negligently prepared the estate plan, since in the normal case the estate is not injured by such negligence except to the extent of the fees paid; only the beneficiaries suffer the real loss.’ [Citation omitted.]” (Emphasis added.) 247 Kan. at 66.
Jeanes argues that her claims do not involve the normal case where the estate is not injured. Instead, she contends that this is a case where the estate itself toas harmed by the attorney’s alleged negligence.
Even if we accept Jeanes’ assertions that her tort claims for legal malpractice are either a cause of action that involves injuiy to Anton’s personal estate under K.S.A. 60-1801 or a cause of action that would have survived at common law, the tort claims must have accrued during Anton’s lifetime to survive. Mason, 231 Kan. at 721. Jeanes cites Sizemore v. Swift, 79 Or. App. 352, 719 P.2d 500 (1986), in support of her argument that the legal malpractice claim survived Anton’s death. This case relied on by Jeanes, however, is clearly distinguishable.
In Sizemore, a father had been receiving payments from a spendthrift trust for which the father was the beneficiaiy. When the father died, it was determined that the spendthrift trust included no provision for its distribution on the father’s death. The father’s son and sole heir had an attorney file a declaratory judgment action, which ultimately declared that the remainder of the trust corpus should be paid to the father’s estate. Thereafter, the attorney opened the father’s estate and was appointed administrator. The attorney received the trust corpus, paid his legal fees and the estate’s administrative costs, and distributed the remainder to the son. The son then sued the attorney who had drafted the spendthrift trust for malpractice for not including a provision for distribution of the trust after the beneficiaiy’s death. The administrator of the father’s estate was substituted as the plaintiff, bringing a claim under the survival statute. In setting out the damages caused by the attorney’s negligence, the estate claimed the following damages: die legal fees and costs charged by the attorney who litigated the declaratory judgment action and ultimately received the trust corpus on behalf of the father’s estate.
The first issue the Sizemore court had to resolve was whether the administrator of die estate was the real party in interest. The Sizemore court determined that the estate had paid the attorney fees and costs of litigation in order to receive the trust corpus, so “[i]f anyone was damaged by an error of [the attorneys who drafted the spendthrift trust], it was the estate; it is, therefore, the real party in interest.” 79 Or. App. at 356. After making some other determinations not relevant here, the court then determined whether the expenses of litigation were damages that would support a negligence action. The court found that if the will containing the father s spendthrift trust was determined to be negligently drafted and if that negligence led to litigation expenses, the father s estate would not have otherwise incurred those expenses and if the other requirements for liability were satisfied, then the estate was damaged by the amount of the litigation expenses. 79 Or. App. at 358.
The only similarity between this case and Sizemore is that both cases deal with an estate suing an attorney for malpractice. Size-more, however, is distinguishable from this case. For example, in Sizemore, the estate was incomplete when the decedent died because the trust corpus was not included; the estate had to incur fees in order to obtain the trust corpus, which made the estate whole. The attorney fees were paid by the estate in making the estate whole and in overcoming the alleged errors of the attorneys who drafted the trust for which the decedent was the beneficiary. In Anton’s case, there is no allegation that the estate was incomplete at her death and that funds were incurred by the estate in realizing the estate.
Turning once again to Jeanes’ argument that her tort claims survive under K.S.A. 60-1801, we will consider some of Jeanes’ other authorities cited in her brief.
Jeanes cites Jones v. Siesennop, 55 Ill. App. 3d 1037, 371 N.E.2d 892 (1977), in support of her argument that the legal malpractice claim survived Anton’s death as injury to her personal estate. Nevertheless, in Jones, the decedent’s malpractice claim had clearly accrued during her life. The decedent and her husband had been represented by an attorney at a real estate closing. Before her death, the decedent had filed a lawsuit against the attorney for negligence in his handling of the transaction by failing to provide the decedent with clear title to the property because he did not secure and record a release of a previous mortgage on the property. Because the plaintiff decedent had already been damaged by the attorney’s conduct before she died, her claim had accrued during her lifetime. 55 Ill. App. 3d at 1041-42. Moreover, the Illinois Court of Appeals recognized that a legal malpractice claim must have accrued in the decedent’s lifetime to survive the decedent’s death. 55 Ill. App. 3d at 1039-41. Thus, Jones actually supports the trial court’s decision.
Jeanes also cited Nathan v. Touro Infirmary, 512 So. 2d 352 (La. 1987), in support of her argument that her tort claims survived as injury to Anton’s personal estate. Yet, in Nathan, the plaintiffs claim for medical malpractice stemmed from treatment he had received for a broken hip, and the plaintiff actually filed a lawsuit alleging malpractice before he died. The plaintiff in that case had sustained damages before he died, and there was no question that his claim had accrued during his lifetime.
Jeanes also cites Katz v. Filandro, 153 Ariz. 601, 739 P.2d 822 (1978), on this issue. The decedent’s wrongful death claim accrued during her lifetime because her claim was based on her daughter, who was tolled while the plaintiff decedent was still living. After the court in Katz held that the plaintiff decedent’s claim for loss of economic support survived her death, it went on to hold that her damages for that claim were limited to those which had accrued at the time of her death. 153 Ariz. at 606-07. Thus, Katz supports the trial court’s finding that “even if the Plaintiffs legal malpractice claim survived, recovery would be limited to the damages which accrued between tire date of injury and the death of Maxine T. Anton.”
Jeanes also cites Cleveland v. United States, 2000 WL 1889640 (N.D. Ill. 2000) (unpublished opinion). There, the decedent’s wife alleged that her deceased husband’s attorney had given him bad advice in dealing with the Internal Revenue Service (IRS). Moreover, as a result of that advice, her husband was told by the IRS that he was going to be audited. He committed suicide before the audit. Clearly, the decedent was harmed by his attorney’s negligence before he tolled himself. Consequently, his claim accrued during his lifetime. See 2000 WL 1889640, at *3. Cleveland is inapplicable to the issue of whether Anton’s claim accrued during her lifetime.
Jeanes relies heavily in her brief on Hosfelt v. Miller, 2000 WL 1741909 (Ohio App. 2000) (unpublished opinion). Moreover, the Hosfelt court noted: “The outcomes of various Ohio cases seem to presume, without directly addressing the issue, that a personal representative of the estate has standing to assert legal malpractice claims which arose during the decedent’s lifetime. [Citation omitted.]” 2000 WL 1741909, at *5. Thus, the Hosfelt court also recognized that the malpractice claim must have arisen during the decedent’s lifetime, although the court may have incorrectly held that the decedent’s legal malpractice claim had accrued during her lifetime. See 2000 WL 1741909, at *5-6.
The proposition that a malpractice claim must have arisen during a decedent’s lifetime was considered in Rutter v. Jones, Blechman, Woltz & Kelly, 264 Va. 310, 568 S.E.2d 693 (2002). There, the plaintiff raised the same argument Jeanes raises here: that there was a cause of action during the decedent’s lifetime because the decedent could have sued to recover the amounts she had paid to the attorneys who had drafted the deficient testamentary documents. Moreover, the plaintiff argued that the tax liability and associated accounting and legal expenses incurred after the decedent’s death were merely an escalation of the damages caused by the attorneys’ malpractice. In rejecting this argument, the court stated:
“As noted above, one of the elements of a legal malpractice cause of action is injury or damage proximately caused by the breach of contract. In this case, the fee Duncan paid the defendants for their services was not an injury resulting from the legal malpractice. It was merely the agreed-upon cost of the service, the consideration given for the contract, and not the damage or injury arising from the breach of the contract.
“The injury or damage that was proximately caused by the legal malpractice alleged in this case was the additional amount of the tax assessed against the estate and additional legal and accounting fees required — all of which did not arise until after Duncan’s death.
“Accordingly, because the cause of action for legal malpractice asserted in this case did not come into existence during Duncan’s lifetime and thus did not survive her death, we will affirm the judgment of die trial court.” 264 Va. at 314.
The injury that was proximately caused by the legal malpractice was the additional amount of taxes assessed against the estate. Because the cause of action for legal malpractice did not come into existence during the decedent’s lifetime and did not survive her death, judgment in favor of the attorney was upheld. 264 Va. at 314. The language in Rutter is very persuasive.
For example, the fees Anton paid Kunard for her legal services were not any injury resulting from any alleged malpractice. They were merely the agreed-upon cost of Kunard’s services and were not the substantial injury arising from the alleged legal malpractice claim.
To illustrate, Kansas courts generally observe the rule that a cause of action accrues as soon as the right to maintain a legal action arises. The test to determine when an action accrues is that point when a plaintiff could have first filed and prosecuted an action to a successful conclusion. Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986). The Pancake court recognized that depending upon the facts and circumstances of each case, at least four theories can apply in Kansas when determining the accrual of a cause of action for legal malpractice:
“(1) The occurrence rule — the statute begins to ran at the occurrence of the lawyer’s negligent act or omission.
“(2) The damage rule — the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct.
“(3) The discovery rule — the statute does not begin to ran until the client discovers, or reasonably should have discovered, die material facts essential to his cause of action against the attorney.
“(4) The continuous representation rale — die client’s cause of action does not accrue until die attorney-client relationship is terminated.” 239 Kan. at 87.
For cases discussing all four points, see Annot., 32 A.L.R.4th 260; ABA/BNA Lawyers’ Manual on Professional Conduct § 301:901 (1985); Mallen and Levit, Legal Malpractice § 388 et seq. (2d ed. 1981).
Under the damage rule, “[a] tort action shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury.” Chavez, Executrix v. Saums, 1 Kan. App. 2d 564, 565, 571 P.2d 62, rev. denied 225 Kan. 843 (1977); see Knight v. Myers, 12 Kan. App. 2d 469, 473, 748 P.2d 896 (1988) (K.S.A. 60-513(b) specifically states that a tort action accrues either when (1) the act giving rise to the cause of action first causes substantial injury, or (2) if the fact of the injury is not reasonably ascertainable, the time at which the injury does become reasonably ascertainable to the injured party.).
In the present case, Anton suffered no ascertainable injury to justify an action for recovery of damages until after her death. In her brief, Jeanes states as follows: “Had Kunard provided competent estate planning as she was retained for, [Anton’s] estate would not have had to pay $6,793,804.06 in additional taxes.” No injury occurred until die estate’s tax liability was determined, which would have been after Anton’s death. It was at that point in time that the estate suffered substantial injury.
In summary, substantial injury resulting from Kunard’s alleged malpractice would have been the estate taxes imposed against Anton’s estate, which did not arise until after Anton’s death. Therefore, the cause of action for legal malpractice did not accrue in Anton’s lifetime and did not survive her death. To illustrate this point further, Kunard points out that the trial court correctly stated that Jeanes’ pretrial order made no allegation that Kunard had caused Anton damages during Anton’s lifetime. Moreover, in the pretrial order, Jeanes framed the damages to Anton’s estate as the amount of taxes imposed after Anton’s death.
The trial court properly found that Jeanes’ tort claims for legal malpractice did not survive Anton’s death. Based on Mason, Flowers, and Price, we determine that the trial court properly granted summary judgment to Kunard.
Did the Trial Court Err in Granting Summary Judgment to Wrenick on Jeanes’ Breach of Fiduciary Duty Claim Because That Claim Did Not Survive Antons Death?
Jeanes argues that the trial court erred in granting summary judgment to Wrenick on Jeanes’ breach of fiduciary duty claim because the trial court did not believe the claim survived Anton’s death. Because this issue was resolved on summary judgment and involves interpretation of K.S.A. 60-1801, an agency agreement, and an agreement allegedly relieving Wrenick of fiduciary respon sibility, our review is unlimited. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. at 13, 19, 152 P.3d 34 (2007).
In determining that Jeanes’ tort claim for breach of fiduciary duty did not survive Anton’s death, the trial court determined that generally tort claims are personal in nature and do not survive the death of a decedent, citing Nicholas v. Nicholas, 277 Kan. 171, 188-92, 83 P.3d 214 (2004). The trial court determined that a breach of fiduciary duty claim was personal, relying on Singer v. Dungan, 45 F.3d 823, 827 (4th Cir. 1995). The Singer court stated that “a breach of fiduciary duty claim is personal in nature because it springs from the duty to deal honestly and fairly with fiduciaries.” 45 F.3d at 827.
Singer involved a determination of what statute of limitations should be applied to a breach of fiduciary duty claim under Virginia law. The plaintiff in Singer argued for application of a 5-year statute of limitations for injury to his property based on dilution of his stock under a breach of fiduciary duty. The Fourth Circuit Court of Appeals determined that because a breach of fiduciary duty claim “springs from the duty to deal honestly and fairly with fiduciaries,” the claim was personal in nature and subject to a 1-year statute of limitations. 45 F.3d at 827.
Nevertheless, Jeanes argues that Anton’s breach of fiduciary duty claim was preserved under K.S.A. 60-1801. Moreover, because it is a remedial statute, Jeanes argues that it should be liberally construed in order to accomplish its purpose, citing Mitchell v. Miller, 27 Kan. App. 2d 666, 671, 8 P.3d 26 (2000). Jeanes further argues that Anton’s personal estate was reduced by hundreds of thousands of dollars before her death due to Wrenick’s breach of fiduciary duty. Moreover, Jeanes contends that the cause of action based from that breach of fiduciary duty survived because Anton’s personal estate or property had been harmed.
In support of her argument, Jeanes cites Lovejoy v. Bailey, 214 Mass. 134, 101 N.E. 63 (1913), and Holiday Properties Acquisition Corp. v. Lowrie, 2003 WL 1040162 (Ohio App. 2003) (unpublished opinion). Nevertheless, Jeanes fails to explain how these two holdings are similar to this case.
In Kansas, where a fiduciary relationship exists between two parties, it is the duty of the person in whom confidence was placed to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his or her principal. Stevens v. Jayhawk Realty Co., 9 Kan. App. 2d 338, 342, 677 P.2d 1019, aff'd 236 Kan. 90, 689 P.2d 786 (1984). While the allegation of breach of fiduciary duty here concerns the personal relationship between Wrenick and Anton, it would seem that the type of harm alleged before Anton s death would have constituted an injury to Anton’s personal estate.
This alleged breach of fiduciaiy duty does not involve allegations of mental anguish or embarrassment that are difficult to quantify after the decedent’s death, as was the invasion of privacy cause of action considered in Nicholas, 277 Kan. at 192. The Nichols court stated that “ ‘because the alleged injuries are so personal [in an invasion of privacy lawsuit], a jury would have to guess on the extent and nature of the decedent’s emotional devastation, humiliation and ostracism without his presence and testimony at trial.’ [Citation omitted.]” 277 Kan. at 192. Furthermore, Nicholas makes a telling point that an invasion of privacy claim must be brought by the person whose privacy was invaded. 277 Kan. at 191.
Similarly, whether a decedent’s cause of action survives may depend on the type of harm or injury involved. In Lowe v. Experian, 340 F. Supp. 2d 1170, 1174-85 (D. Kan. 2004), the United States District Court for the District of Kansas applied K.S.A. 60-1801 to determine whether the plaintiff s negligence and tortious interference with business expectancy or relationship cause of action survived the plaintiff s death. The Lowe court determined that the real question of whether a decedent’s cause of action survived depended on the type of harm or injury involved. If the decedent’s claim was for injury to his or her real or personal property, then it would seem to have been a cause of action that would have survived at common law. 340 F. Supp. 2d at 1174-75. In Lowe, because the plaintiff had alleged that the defendant’s actions caused damages to her reputation, the court found that the claim did not survive the plaintiffs death. 340 F. Supp. 2d at 1175.
The breach of fiduciary duty claim in this case would have involved a claim of an injury to Anton’s personal property. K.S.A. 60-1801 states that actions for injury to the personal estate survive. Seemingly, the alleged over-charges of fiduciary fees would have been an injury to the personal estate. Consequently, we determine that the trial court erred in determining that the breach of fiduciary duty claim was personal in nature and, therefore, did not survive Anton’s death.
Nevertheless, Wrenick argues that even if the breach of fiduciaiy duty claim survives, Jeanes could only recover damages accrued between the date of injuiy and death, citing Mason v. Gerin Corp., 231 Kan. 718, 647 P.2d 1340 (1982). Moreover, Wrenick contends that Jeanes did not allege that Anton or her property was damaged while Anton was alive. Nevertheless, in arguing the survivability of this claim on appeal, Jeanes contends that Anton’s “personal estate was reduced by hundreds of thousands of dollars before her death due to [Wrenick’s] breach of fiduciaiy duty.” Moreover, Jeanes later amended her petition to include claims of improperly charged fiduciaiy fees totaling $294,169.50 for the years 1991 through 2003. In reviewing the record, it would seem that the trial court did not consider whether any damages alleged from the breach of fiduciary duty claim accrued before Anton’s death. Obviously, this lack of a finding in the record would require us to reverse and to remand this issue to the trial court for further proceedings.
Nevertheless, Wrenick argues, alternatively, that any fiduciary duty owed to Anton was extinguished by an agreement signed by Anton in which she directed the Bank to retain her Exxon Mobil stock. Before we can address this issue, we need to set out some additional facts explaining the parties’ relationship with one another.
On June 13, 1991, Anton created a living trust agreement entitled tire “Maxine J. Anton Living Trust.” Anton was the grantor of her living trust and appointed herself and served as the sole trustee of the living trust from its inception to her death. Jeanes was sole beneficiary of the living trust.
On July 5, 1991, Anton, as trustee of her trust, entered into a written agency agreement with Bank IV Topeka, N.A., the pred ecessor of Bank of America, N.A. The agency agreement stated that Anton was the “principal” under the agreement and that the Bank was the “agent.” The agency agreement was signed by Anton and Bank IV. Wrenick did not sign the agency agreement. The agency agreement stated in Article III that the Bank was to charge a fee for various described services “in accordance with the schedule agreed upon by the Principal and Agent in writing.”
Under the agency agreement, Anton, as trustee, served as the principal and the Bank served as agent for the trustee. The agency agreement stated specific duties and responsibilities of the Bank as agent of the trustee of the trust. Each of those duties were expressly subject to Anton s prior authorization. Under the agency agreement, the Bank over the years performed certain tasks for Anton, including the collection and depositing into her bank account with the Bank dividends, interest, and other income from the stock holdings in the living trust; collection and depositing in her bank account of proceeds from sales of those assets as directed by her; and the payment from that account of Anton’s bills, debts, and similar obligations (such as charitable donations) when bills or directions were received from her or from her designated representative.
In addition, subject to Anton’s previous authorization, the agency agreement authorized the Bank “to do all things necessary for the care, preservation, management, protection, investment and reinvestment of’ all property held in the agency account.
On November 20, 2000, Anton signed an agreement entitled “Direction by Grantor/Beneficiary to Retain Asset,” in which she directed the Bank to retain in its custody her entire Exxon Mobil stockholdings. This agreement expressly stated: “I [Maxine Anton] hereby direct the Bank to purchase, sell or retain indefinitely in this account the described investment(s) until I give written direction to the contrary.” The agreement separately described the investment involved as Anton’s Exxon Mobil stock and separately stated her direction was to “retain” that stock in her account with the Bank.
Anton also agreed to the following: “I understand and agree that the Bank will have no fiduciary responsibility for such assets . . . retained in accordance with my directions hereunder.”
Further, in the agreement, Anton agreed to the following: “I also understand and agree that, as long as the direction to retain an asset remains in effect the Bank will not perform investment reviews of such asset(s) and will have no responsibility to advise me or any other party whether to retain or sell such asset(s).” Moreover, the agreement indemnified, released, and held harmless tire Bank and its officers, employees, and agents (of which Wrenick was one) with respect to the handling of her Exxon Mobil stock:
“On behalf of myself, my heirs, successors, and assigns, I hereby indemnify, release and hold harmless said Bank, its directors, officers, employees, agents, successor and assigns from any and all liability, claims, losses, and expenses, including attorney fees, which I or they may suffer as a result of following my directions.”
Given this agreement, it would seem that Anton expressly relieved the Bank and Wrenick from analyzing and monitoring her Exxon Mobil stock holdings.
Jeanes, however, points out in her reply brief that while a party may contract away responsibility for its own negligence, an agreement seeking to protect a parly from liability for its own negligence is subject to strict construction and will not be enforced unless the protection from liability is expressed in clear and unequivocal terms. Furthermore, contracts that attempt to exempt a party from liability for negligence are not favored by the law and are strictly construed against the party relying on them. See Johnson v. Board of Pratt County Comm'rs, 259 Kan. 305, 328-29, 913 P.2d 119 (1996) (citing Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, Syl. ¶¶ 1-2, 894 P.2d 881, rev. denied 257 Kan. 1097 [1995]).
In addition, Jeanes points out that the agreement is devoid of any language relating to the Bank or Wrenick’s duties to advise Anton on estate and tax planning matters. While it would seem that the agreement relieved the Bank and Wrenick from any responsibility for analyzing and monitoring the Exxon Mobil stock, the agreement did not expressly reheve the Bank or Wrenick from any responsibility to advise Anton about estate and tax planning matters, which would have helped preserve her estate upon her death.
We note a clear distinction between die analyzing and monitoring the Exxon Mobil stock and the alleged failure to give estate and tax planning advice. It would seem that the language of the exculpatory agreement relieved the Bank and Wrenick only from analyzing and monitoring the Exxon Mobil stock. Because an issue of fact exists as to whether Wrenick was relieved of his fiduciary responsibility regarding estate and tax planning advice, it would be improper for us to grant summary judgment on Wrenick’s alternative theory.
For the foregoing reasons, we reverse and remand to the trial court to determine whether any damages alleged from the breach of fiduciary duty claim accrued before Anton’s death. Moreover, if any such damages had accrued before Anton’s death, the trial court is directed to determine whether Anton’s personal estate was injured by those damages, which would allow them to survive her death under K.S.A. 60-1801.
Did the trial court err in dismissing the remaining claims against Wrenick?
Finally, Jeanes argues that the trial court erred in dismissing her breach of express or implied contract claim against Wrenick because he was a disclosed agent for a known principal. Jeanes alleges a breach of an express or implied contract against Wrenick for his alleged failure to furnish and to implement certain estate planning advice to Anton during her life. Jeanes also alleges that Wrenick is personally liable for an overcharge by the Bank of fees due under the agency agreement. To the extent the resolution of these issues require interpretation of an agreement, this court’s review is unlimited. See LSF Franchise REO 1, 283 Kan. at 19; Botkin v. Security State Bank, 281 Kan. 243, 248, 130 P.3d 92 (2006).
In making her argument, Jeanes, however, does not address the issue of whether Wrenick can be held liable, first, on a contract to which he was not a party or a signatory, and, second, on any implied contract where his agency for the Bank was disclosed to or otherwise known by Anton.
The trial court granted Wrenick’s motion for summary judgment, holding that “the record reveals no evidence that Rudy Wrenick was a party to the express and/or implied contract between Maxine Anton and Bank of America, N.A.” Moreover, the court reasoned that because Wrenick “was acting as 'a disclosed agent [of the Bank of America]’ at all relevant times,” he was not personally liable to tire decedent for any breach of the contract between Bank of America and the decedent.
Here, the Bank of America entered into an express contract with Anton. After the creation of her living trust, Anton, as trustee of her trust, entered into a written agency agreement on July 5,1991, with Bank IV Topeka, N.A., the predecessor of Bank of America, N.A. Under the agency agreement, Anton, as trustee, served as the principal and the Bank served as agent for the trustee. Wrenick was not a party to that contract. He did not sign it. Jeanes does not suggest that Wrenick was a party to any express contract with Anton. Thus, summary judgment was appropriate on any claim of breach of an express contract by Wrenick.
In addition, Jeanes argues, in the alternative, that Wrenick breached an implied contract to furnish estate planning advice to Anton. The record shows that Wrenick acted as an officer and employee of Bank of America, N.A., and its predecessors, Bank IV and NationsBank, and held the title of president of the Topeka branch of the Bank. Throughout his tenure as the bank employee assigned to Anton’s account with the Bank, Wrenick clearly disclosed his agency on behalf of the Bank to Anton.
The law of Kansas is unequivocal that “[w]here the other party [to a contract] has actual knowledge of the agency and the identity of the principal, the agent will be relieved from liability, whether he himself makes the disclosure or the other party acquires the knowledge from some other source. [Citation omitted.]” Lentz Plumbing Co. v. Fee, 235 Kan. 266, 271, 679 P.2d 736 (1984). Stated another way, a company officer escapes personal liability under a contract entered into with third persons on behalf of a corporation if the third person is aware of the corporation’s existence. Hill & Company, Inc. v. O’Malley, 15 Kan. App. 2d 709, 713, 817 P.2d 660 (1991) (citing Lentz Plumbing, 235 Kan. at 271). The company officer or agent must disclose the fact of the agency and the identity of the principal in order to escape personal liability. See Bruce v. Smith, 204 Kan. 473, 476, 464 P.2d 224 (1970). The record before the trial court demonstrated that both Wrenick and the Bank disclosed to Anton that Wrenick was an agent of the Bank. As a result, summary judgment in favor of Wrenick was appropriate on Jeanes’ claim of breach of an implied contract.
Affirmed in part, reversed in part, and remanded with directions to the trial court for further proceedings. | [
-112,
108,
-39,
-84,
-72,
38,
58,
30,
115,
-120,
-75,
83,
-3,
-49,
20,
111,
116,
-7,
81,
115,
-45,
-78,
23,
32,
-110,
-69,
-7,
76,
-94,
79,
-28,
-34,
76,
48,
-120,
-107,
98,
-125,
-33,
22,
4,
-109,
26,
108,
-35,
0,
48,
119,
20,
77,
113,
78,
35,
40,
57,
70,
-20,
44,
123,
-75,
-14,
-80,
-117,
5,
79,
23,
-110,
5,
-102,
79,
-38,
12,
24,
52,
40,
-24,
115,
-74,
2,
112,
10,
57,
-124,
102,
102,
-128,
20,
77,
-76,
-104,
6,
-1,
-115,
-89,
-110,
84,
-117,
71,
-84,
-98,
82,
76,
7,
-4,
-28,
-36,
31,
100,
13,
-49,
86,
-95,
-116,
-4,
-35,
11,
-17,
-126,
32,
113,
-54,
32,
92,
71,
123,
19,
-50,
-9
] |
McAnany, J.:
Two 12-year-old boys, D.A. and N.A., were ad judicated juvenile offenders for breaking into and vandalizing a church in Perry. D.A. appeals his adjudication, claiming the evidence against him was insufficient; his lawyer was ineffective; his due process rights were violated; the court lacked jurisdiction because he was developmentally delayed and had not yet reached the maturity of the threshold age for jurisdiction over a child under the Revised Kansas Juvenile Justice Code (Juvenile Code); and, finally, he lacked the mental maturity to form the intent necessary for adjudication for these offenses.
The charges arose from an incident on October 8, 2006. When Pastor Douglas Merriman arrived at his church that day, he discovered D.A. and N.A. sitting outside with various items of church property strewn around'them. The boys fled. Upon entering the church, Merriman observed extensive damage from vandalism throughout the church. He found items tom off walls, smashed light bulbs, ceiling fans with missing blades, tipped over pianos, graffiti on the bathroom doors, water-damaged floors, a smashed chandelier, broken bathroom mirrors, paper-clogged toilets, and glitter glue on the carpets and steps. Fire extinguishers had been discharged inside the church. D.A. admitted his participation to Pastor Merriman shortly after the incident.
The boys were charged with burglary and criminal damage to property in excess of $25,000. Attorney Dennis Hawver was appointed by the court to represent the boys.
Hawver reviewed the complaint and police report and discussed possible disposition options with the prosecutor. The prosecutor expressed a willingness to dismiss the burglary charges against the boys in exchange for their stipulating to the criminal damage charges and each of their families paying half of the church’s out-of-pocket expenses incurred on account of the vandalism.
Hawver first communicated with the boys in a joint meeting with them and their families on the morning of the boys’ first appearances on November 21, 2006. He told them what the prosecutor was prepared to do. N.A. and his family agreed to accept the State’s offer. D.A.’s family wanted more time to consider the offer, so the court continued the matter until December 12, 2006. At the end of the hearing, Hawver gave his business card to D.A.’s parents and told them that “we could contact him to retain counsel through him or we could hire our own attorney.” Hawver then told D.A.’s parents that N.A. had told the police that “it was all [D.A.].”
D.A.’s family decided to privately retain counsel to represent their son. To that end, they hired attorney Karen Eager, who entered her appearance on December 12, 2006. Hawver withdrew from representing D.A. at that time, though he continued to represent N.A. With Eager as his substitute counsel, D.A. was arraigned and pled not guilty.
On March 16, 2007, D.A. moved to dismiss the charges based upon ineffective assistance of counsel and prosecutorial misconduct. At the evidentiary hearing on May 2, 2007, the court received extensive testimony from D.A.’s mother, from the director of support services for the Association of Retarded Citizens of Douglas County, and from attorney' Hawver. Following the hearing, the district court denied the motion and set the matter for trial on June 1, 2007.
At trial N.A. testified against D.A. N.A. was subpoenaed by the State to testify. There is no indication that Hawver appeared or was present for N.A.’s testimony. In fact, the appearances noted in the record indicate the contrary.
Pastor Merriman testified to the extensive damage to his church, where he had been the minister since 1999. Merriman’s duties at the church included being its administrator. Over D.A.’s objection, he testified that the damage to the church exceeded $25,000.
Ramon Gonzalez, part-time police chief of the City of Perry and a part-time detective for the Jefferson County Sheriff s office, testified regarding his prior work as a risk manager for Southwestern Bell. In that job, he was trained to identify losses caused by employees and to estimate restitution costs the company would have to pay. Gonzalez testified that the water damage to the floors, the carpet damage from glue, and the discharge of fire extinguishers involved more than nine rooms in the church building. In his view, the damages were $25,000 or greater.
Before resting its case, the State amended its criminal damage charge to criminal damage to property exceeding $1,000, rather than $25,000 as originally pled.
The district magistrate judge adjudicated D.A. a juvenile offender based upon both the burglary charge and the amended criminal damage charge. Upon appeal for a de novo review on the record before the district judge, D.A. was again adjudicated based on these charges. D.A. now appeals to us.
Sufficiency of the Evidence
D.A. claims the court should have excluded the damages evidence as speculative and without foundation. Without it, he claims there is insufficient evidence to support the adjudication for criminal damage to property.
We review the sufficiency of the evidence, both direct and circumstantial, in the light most favorable to the State to determine if a rational factfinder could have found D.A. guilty beyond a reasonable doubt. See State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007); In re B.M.B., 264 Kan. 417, 433, 955 P.2d 1302 (1998) . Here, the issue is whether there was substantial competent evidence to establish that the loss to the church from D.A.’s vandalism exceeded $1,000.
Except for certain unique types of personal property, the damages needed to support a conviction for criminal damage to property are measured by the cost to restore the damaged property, unless the repair costs exceed the fair market value of the property, in which case the fair market value at the time of the loss is the measure. See State v. Jones, 247 Kan. 537, 540, 802 P.2d 533 (1990).
While the factfinder may not rely on rank speculation, mathematical precision in the calculation of damages is not required. Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974). Here, we must determine whether there was properly admitted evidence which, viewed in the light most favoring the State, establishes a loss in excess of $1,000.
Property owners are presumed to know the value of their property. State v. Moss, 221 Kan. 47, 49, 557 P.2d 1292 (1976). The term “owner” in the Kansas Criminal Code means any person with any interest in the subject property. K.S.A. 21-3110(13). As pastor and administrator of the church, Merriman had an interest in the property. As the church’s administrator he was charged with the care, oversight, and stewardship of the church’s property, and he had the authority to speak for the church as its agent regarding the value of church property. Cf., e.g., Brooks v. January, 116 Mich. App. 15, 321 N.W.2d 823 (1982) (finding pastor acted as an agent for his church when he transferred church property; cited with approval in National Inspection & Repair, Inc. v. Valley Forge Life Ins. Co., 274 Kan. 825, 848, 56 P.3d 807 [2002]). Further, Gonzalez testified to various items of damage he observed. While D.A. complains about the foundation for certain aspects of Gonzalez’ testimony, taken as a whole, and viewed in the light most favoring the State, it is abundantly clear from the testimony of Merriman and Gonzalez that the extensive damage throughout the church caused by D.A.’s vandalism easily exceeded the $1,000 necessary to support this conviction.
Ineffective Assistance of Counsel.
D.A.’s claim of ineffective assistance of counsel was the focus of the trial court’s extensive evidentiary hearing on D.A.’s motion to dismiss. This issue involves mixed questions of fact and law requiring de novo review on appeal. Bledsoe v. State, 283 Kan. 81, 91, 150 P.3d 868 (2007); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). To prevail on this claim, D.A. must show that Hawver’s representation fell below an objective standard of reasonableness, considering all the circumstances. Then he must show that but for Hawver’s deficient performance, there is a reasonable probability the outcome of the proceedings would have been more favorable to D.A. See Bledsoe, 283 Kan. at 90-91.
A. Conflict of Interests
The right to the effective assistance of counsel arises from the provision in the Sixth Amendment to the United States Constitution which requires that “[i]n all criminal prosecutions, the accused . . . shall have . . . the Assistance of Counsel for his defense.” The right to counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). As stated in Strickland v. Washing ton, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984): “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Stated more directly, “the purpose ... of the Sixth Amendment ... is simply to ensure that criminal defendants receive a fair trial.” 466 U.S. at 689.
Though D.A. cites Hawver for violating nine specific Kansas Rules of Professional Conduct in his brief, KRPC 1.9(a) (2007 Kan. Ct. R. Annot. 457) is the rule central to his argument. KRPC 1.9(a) provides:
“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”
The fact that counsel represents more than one defendant does not automatically make counsel ineffective. State v. Lem’Mons, 238 Kan. 1, 5, 705 P.2d 552 (1985). An actual conflict of interests is required. 238 Kan. at 5. Here, D.A. must demonstrate that an actual conflict adversely affected his lawyer’s performance. See Jenkins, 257 Kan. 1074, Syl. ¶ 5, 898 P.2d 1121 (1995).
In Holloway v. Arkansas, 435 U.S. 475, 490-91, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978), codefendants moved for, but were denied, separate counsel in a capital case in which they alleged their lawyer had a conflict of interests in representing both of them. The Supreme Court did not reach the issue whether an actual conflict of interests existed. Nevertheless, it determined that the trial court unconstitutionally endangered the right to counsel and turned to the issue of prejudice. The Court concluded:
“In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. . . . But in a case of joint representation of conflicting interests . . . [i]t may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but ... to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.” 435 U.S. at 490-91.
Three justices dissented, expressing the concern that the majority opinion “contains seeds of a perse rule of separate representation.” 435 U.S. at 491.
The issue arose again 2 years later in Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). After confirming that “unconstitutional multiple representation is never harmless error,” the Court noted that a showing that counsel “actively represented conflicting interests” is a constitutional predicate to a claim of ineffective assistance of counsel. 446 U.S. at 350. The Court concluded:
“We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” 446 U.S. at 350.
Four years later in Strickland, the Court explained that what amounts to an irrebuttable presumption of prejudi.ce exists only in a narrow field of conduct, such as when the defendant is completely denied the assistance of counsel or when the State interferes with counsel’s assistance. On the other hand, the Court observed that the type of claim presented in Cuyler warrants a more limited presumption which does not equal a per se rule of prejudice, but rather requires a showing of an actual conflict that affects the lawyer’s performance. 466 U.S. at 692.
This court considered the issue in State v. Ryan, 29 Kan. App. 2d 297, 299, 26 P.3d 707, rev. denied 272 Kan. 1422 (2001). In Ryan, the defendant and her brother were both represented by the same counsel for their drug charges. Counsel negotiated a favorable plea which Ryan accepted. As required by the plea agreement, Ryan testified against her brother at her plea hearing. The charges against Ryan’s brother were dismissed, and Ryan sought to withdraw her guilty plea, which the court denied. The trial court found that a conflict existed, but the conflict could only have prejudiced Ryan’s brother, not Ryan. This court reversed, 29 Kan. App. 2d at 300, finding that prejudice is presumed under these facts and citing State v. Jenkins, 257 Kan. at 1084, wherein the court declared: “Prejudice to the defendant is presumed, and reversal of the defendant’s conviction is automatic.”
In Jenkins, defendant’s counsel represented the police’s confidential informant who engaged in a controlled drug buy which led to the current charges against the defendant. Counsel brought this to the attention of the trial court and her client. At the hearing where this was disclosed, counsel asked her client, “[A]re you willing to go forward with me as your attorney in this case?” Jenkins answered, “Yes.” 257 Kan. at 1077. Counsel continued in her representation of both the defendant and the informant. The informant testified against the defendant at trial.
Unlike the attorneys in these cited cases, here, attorney Hawver had no contact whatsoever with these two boys until the date of their arraignment. Hawver’s contact with D.A. and his family was limited to that day. With respect to D.A.’s case, nothing happened that day. His arraignment was continued to a new date when his family chose not to accept the plea agreement proposed by the prosecutor. In the meantime, D.A.’s family retained separate counsel and Hawver withdrew. D.A.’s new counsel represented D.A. at the arraignment and throughout the case thereafter, including this appeal. D.A. had the duty to show that an improper dual representation of the boys accused in this incident affected Hawver’s representation of D.A. He has failed to do so.
D.A. contends that Hawver did not protect confidential attorney-client communications. He identifies no such confidential communications. Our examination of the record discloses only the communications at D.A.’s first appearance, which was continued at D.A.’s request. Any communications between Hawver and the boys and their families occurred before the scheduled hearing that day and in a joint meeting, not separately with each boy and his parents. None of those communications were of a confidential nature. See State ex rel. Stovall v. Meneley, 271 Kan. 355, 375-76, 22 P.3d 124 (2001) (gathering authorities). Further, D.A. concedes there were no communications with Hawver before his first appearance. In fact, he argues that Hawver was ineffective for failing to return phone calls before that first hearing. In making this claim, D.A. claims no nexus between Hawver’s dual representation of the boys and his failure to return phone calls. Given Eager’s entry as new counsel before the initial proceedings in the case and the subsequent entry of D.A.’s not guilty plea, the lack of communication was of no consequence. D.A. does not demonstrate that he was in any way prejudiced by Hawver’s lack of communication.
D.A. also contends Hawver failed to adequately explain to him and his family the advantages and disadvantages of the State’s plea agreement offer, its ramifications, D.A.’s defenses, and the ramifications of N.A. accepting the plea agreement and D.A. rejecting it. It is important to note that at no time while Hawver was representing D.A. did D.A. reject the State’s offer. D.A.’s first appearance was continued to allow his family to consider further the State’s offer. Hawver had no further communication with D.A.’s family. Attorney Eager then entered her appearance before D.A.’s arraignment. There is nothing to indicate that the State’s offer was not still outstanding. It was only after Eager entered her appearance that D.A. and his family chose to reject the State’s offer. At that time, both D.A.’s family and Eager were aware of the fact that N.A. had accepted the plea agreement and contended that D.A. had committed the vandalism. We presume that Eager fulfilled her responsibility to advise D.A. and his family regarding the plea offer and the various possible consequences before entering a plea. D.A. fails to explain how Hawver’s performance had any bearing on the plea he entered and the proceedings that followed.
D.A. also argues that Hawver was hostile and disloyal to him by openly declaring D.A.’s guilt. D.A. refers us to the record of the hearing on his motion to dismiss where Hawver, who had been replaced by Eager as D.A.’s counsel, was called to testily. It is important to note that Hawver’s testimony was based upon (1) his review of the charges in the juvenile complaint, (2) his review of the police report, (3) D.A.’s admission to Pastor Merriman of his participation in the vandalism, (4) N.A.’s statement to the police, and (5) Hawver’s discussions with the prosecutor regarding the State’s position on settlement. None of Hawver’s testimony was based upon any confidential communications between him and D.A. or D.A.’s family.
The cross-examination of Hawver brings to mind the old aphorism, “Be careful what you ask for, you might get it.” Attorney Eager asked Hawver, “[Y]ou made a decision in this case that he was, he was guilty, didn’t you?” There being no objection, Hawver was required to answer, which he did: “Based on the police report and the statement of the child and the co-defendant, I made the determination that he was there and that he participated in vandalism.” Hawver’s task in undertaking D.A.’s representation included a factual investigation to determine D.A.’s potential exposure to the State’s charges. He did that in advance of his first and only meeting with D.A. His truthful response to the question he was asked by D.A.’s own attorney displayed neither hostility nor disloyalty to D.A.
D.A.’s sole authority for the impropriety of Hawver’s conduct in this respect is Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002). Fisher does not apply. In Fisher, the defendant was sentenced to death following a trial at which the defense counsel failed to cross-examine most of the State’s witnesses and called the defendant as the only defense witness. In the penalty phase, defense counsel waived opening statement, presented no evidence, and waived closing argument. Unlike in Fisher, Hawver did not represent D.A. when D.A. entered his plea or any time thereafter. The conduct of D.A.’s case, from the day he entered his plea through trial and the final disposition hearing, was in the hands of Eager, not Hawver. D.A. fails to demonstrate that Hawver’s affirmative answer to Eager’s leading question demonstrates disloyalty that led to a less favorable outcome for D.A. than would otherwise have occurred.
D.A. also directs us to a portion of the record of that hearing where Hawver was asked whether he made the statement “ your kid’s guilty’ ” to D.A.’s parents, apparently immediately before the December 12, 2006, hearing where D.A. entered his plea. Hawver did not recall making the statement. On the one hand, D.A. criticizes Hawver for not adequately advising him and his family about the case and, on the other hand, for candidly expressing his factual opinion after review of the available evidence to the very persons responsible for making decisions about how D.A. should proceed. Hawver’s remark, if made, does not evidence hostility to his client.
Returning to first principles, we must not forget that the Sixth Amendment’s requirement that the accused have the effective assistance of legal counsel is to assure the defendant a fair trial. Coun sel is ineffective when his or her conduct “undermine[s] the proper functioning of the adversarial process” so that we cannot rely on the trial “as having produced a just result.” Strickland, 466 U.S. at 686. D.A. presents neither argument nor evidence that leads us to question the integrity of the process from arraignment to adjudication and disposition based upon anything Hawver did or failed to do.
Violation of Due Process by the Prosecutor
D.A. next argues that the prosecutor in this case “in effect took advantage of a minor disabled child defendant who had no attorney protecting his legal rights.” He argues that the prosecutor knew or should have known of Hawver’s conflict, and the prosecutor “secured the plea and testimony of [N.A.] at the expense of the constitutional rights of D.A.” These actions caused “irreparable harm and prejudiced D.A. and fundamentally impacted his right to due process of law.”
This claim fails for several reasons. First, it presumes that Eager’s role was that of the proverbial potted plant. D.A. was not left alone and abandoned and subject to being preyed upon by the prosecutor. Eager was D.A.’s trial counsel at the time D.A. chose to reject the State’s plea offer and to proceed to trial. She actively and vigorously defended her client from the day D.A. entered his plea.
With respect to D.A.’s claim that the prosecutor is responsible for ensuring conflict-free defense counsel, we, like D.A., are unable to find any authority for this proposition. Hawver withdrew from the case. Eager entered her appearance and, presumably, reviewed with D.A. and his family the advantages and disadvantages of the outstanding plea offer, after which D.A. and his family rejected the offer and chose to go to trial. D.A. fails to explain how the prosecutor took advantage of the situation given these facts.
D.A. relies on State v. Price, 24 Kan. App. 2d 580, 581-82, 948 P.2d 1145 (1997). Price dealt with the issue of inappropriate prosecutorial statements. Price does not hold that prosecutors violate due process by failing to remain vigilant against defense counsel’s conflicts.
D.A. also relies on State v. Campbell, 29 Kan. App. 2d 50, 62, 23 P.3d 176 (2001), which dealt with a prosecutor who lied about the existence of exculpatory evidence. Generally, Campbell teaches that prosecutors cannot lie to win. 29 Kan. App. 2d at 60-61. Campbell does not stand for the proposition that prosecutors violate due process when they do not ensure that defendants have conflict-free counsel.
The prosecutor did not violate D.A.’s due process rights.
Subject-Matter Jurisdiction
D.A. argues that even though he was 12 years of age when charged, he was not subject to the Juvenile Justice Code because his developmental disabilities caused him to have the cognitive and emotional maturity of a child under the age of 10. He argues that since the State can seek to rebut the presumption of juvenile status and try a juvenile as an adult under the Kansas Criminal Code, K.S.A. 2007 Supp. 38-2347(a)(1), he also should be able to rebut the presumption that he is subject to the Juvenile Justice Code with evidence that he should be treated as a child in need of care (CINC).
This is not the law in Kansas. D.A. argues, however, that we should follow the lead of Pennsylvania, New York, California, Washington, and Maryland, states that have created an “infancy defense” to the jurisdiction of their juvenile codes.
The “infancy defense” in juvenile proceedings is not as well established as D.A. claims. The Pennsylvania case he cites, Comm. v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978), has been overruled on this precise point of law by In re G.T., 409 Pa. Super. 15, 25, 597 A.2d 638 (1991). The New York case, In re Andrew M., 91 Misc. 2d 813, 398 N.Y.S.2d 824 (1977), is factually irrelevant because it dealt with an 8-year-old child who would be exempt from the juvenile code anyway. The California case, In re Marven C., 33 Cal. App. 4th 482, 487, 39 Cal. Rptr. 2d 354 (1995), actually rejects the argument D.A. advances. So does the Washington case he cites. State v. T.E.H., 91 Wash. App. 908, 912-13, 960 P.2d 441 (1998). Maryland, as reported in In re William A., 313 Md. 690, 698-99, 548 A.2d 130 (1998), is the only state recognizing this defense to juvenile code jurisdiction.
D.A/s argument presents an issue of statutory interpretation over which we exercise unlimited review. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). Our first task is to ascertain the legislature’s intent, if possible, by applying the plain meaning of the statutory language. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). We do not strain to find ambiguities when none is apparent. See American Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 1059, 179 P.3d 1104 (2008). If the statute is plain and unambiguous, we need only apply the statute as written and need not resort to the rules of construction. See In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
The Juvenile Code defines “juvenile” as:
“a person to whom one or more of the following applies, the person: (1) Is 10 or more years of age but less than 18 years of age; (2) is alleged to be a juvenile offender; or (3) has been adjudicated as a juvenile offender and continues to be subject to the jurisdiction of the court.” K.S.A. 2007 Supp. 38-2302(i).
K.S.A. 2007 Supp. 38-2304 provides, in relevant part,
“(a) Except as provided in K.S.A. 2007 Supp. 38-2347 [the trial-as-an-adult exception section], proceedings concerning a juvenile shall be governed by the provisions of this code.
“(c) When a complaint is filed under this code, the juvenile shall be presumed to be subject to this code, unless the contrary is proved.”
These statutes clearly provide that only those persons chronologically younger than 10 or older than 18 are not subject to the Juvenile Code. K.S.A. 2007 Supp. 38-2302(i)(1). No exception is listed in the Juvenile Code for persons chronologically within the Code’s age range but “developmentally” younger than age 10. Except as provided in K.S.A. 2007 Supp. 38-2347, the Juvenile Code considers only how long a child has been alive.
Further, the Juvenile Code presumptively applies to children between the ages of 10 and 18, unless the State proves the contrary. K.S.A. 2007 Supp. 38-2304(a). According to the statute, the State is the only party that may move that the proceedings not be held pursuant to the Juvenile Code. K.S.A. 2007 Supp. 38-2347, the trial-as-an-adult exception, is the only jurisdictional exception in the Juvenile Code and the only jurisdictional exception listed in 38-2304(a).
A juvenile may come within the Juvenile Code by overcoming the presumption of adulthood described in K.S.A. 2007 Supp. 38-2347(a)(2). There is no corollary for younger children seeking to be treated as CINC rather than juvenile offenders. Given the plain and unambiguous expression of the legislature, D.A.’s argument fails.
Mens Rea
Finally, D.A. argues that his diminished capacity negates the intent elements of the crimes charged. D.A. was adjudicated a juvenile offender based upon criminal damage to property and burglary. Criminal damage to property is a general intent crime. State v. Sterling, 235 Kan. 526, 530, 680 P.2d 301 (1984). Therefore, the only intent the State needed to prove to convict D.A. was that D.A. purposefully or knowingly caused damage to the church. See K.S.A. 21-3720(a)(1). That is, so long as D.A.’s actions inside the church were not accidental or involuntary, he possessed the required culpable intent. See K.S.A. 21-3201(b).
Here, it is clear from the evidence that D.A.’s actions were not accidents and that D.A. knew what he was doing. He intentionally entered the church. He intentionally broke windows, lights, and mirrors, he caused sinks and toilets to overflow, and he overturned expensive electronic organs. He wrote profanity on the women’s bathroom door without assistance from N.A.
Dr. Nichols, D.A.’s expert witness, testified that D.A.’s pervasive developmental disorders were not so debilitating as to prevent him from controlling his actions. The test in Kansas for diminished capacity focuses on whether a defendant had the required criminal state of mind, not on his or her ability to make moral choices. K.S.A. 22-3220; State v. Pennington, 281 Kan. 426, 434, 133 P.3d 902 (2006). Here, D.A. intended the consequences of his actions, so his diminished capacity argument fails with respect to the criminal damage to property charge.
Burglary is a specific intent crime. K.S.A. 21-3715; State v. Harper, 235 Kan. 825, 827, 685 P.2d 850 (1984). To convict D.A. of burglary, the State needed to prove that he entered or remained in the church with the intent to commit criminal damage to property, a general intent crime. See State v. Gutierrez, 285 Kan. 332, 338-39, 172 P.3d 18 (2007). Intent may be inferred from circumstantial evidence. State v. Dunn, 243 Kan. 414, 431, 758 P.2d 718 (1988). Here, there was direct evidence that D.A. and N.A. remained in the church in order to “destroy stuff.” The damage was extensive, and it extended through more than nine rooms in the church. From the extent of the damage and the amount of time it would have taken to accomplish it, it is apparent that once the destruction began, D.A. made a decision to stay inside the church to complete the rampage. See Dunn, 243 Kan. at 431; Sterling, 235 Kan. at 530. There is ample evidence from which the trial court could conclude that D.A. had the requisite intent to commit the crime of burglary. Therefore, his argument fails with respect to the burglary charge.
Affirmed. | [
-80,
-56,
-17,
44,
11,
96,
110,
110,
7,
-13,
118,
83,
-23,
-18,
1,
127,
-46,
109,
84,
112,
-48,
-77,
119,
-32,
-90,
-77,
-9,
69,
-80,
109,
108,
-35,
72,
114,
-102,
125,
2,
-120,
-51,
-108,
-122,
-128,
40,
-14,
-45,
75,
-92,
107,
22,
14,
-95,
-65,
-10,
59,
60,
-53,
72,
44,
-51,
-83,
81,
-101,
-118,
21,
124,
23,
-127,
32,
-104,
1,
100,
45,
-100,
-71,
35,
-88,
-13,
-126,
-62,
100,
15,
-119,
-115,
116,
98,
32,
-104,
-27,
-32,
-55,
7,
35,
-107,
102,
-109,
104,
99,
45,
-73,
-43,
100,
85,
34,
-8,
-29,
68,
1,
108,
-128,
-53,
84,
-121,
77,
-80,
78,
56,
-21,
-92,
32,
49,
-51,
-74,
94,
-57,
48,
-43,
30,
-103
] |
Green, J.:
Buckley Kuenstler appeals from the trial court’s judgment dismissing his petition for review of an administrative ruling by the Kansas Department of Revenue (KDR). The KDR’s ruling suspended Kuenstler’s driving privileges. First, Kuenstler argues that the trial court erred in determining that it lacked subject matter jurisdiction because his petition failed to comply with K.S.A. 77-614(b)(5). We disagree. Because Kuenstler failed to state facts sufficient to demonstrate that he was entided to obtain judicial review under K.S.A. 77-614(b)(5), we determine that the trial court properly dismissed Kuenstler’s petition for review of KDR’s ruling. Finally, Kuenstler argues that the trial court erred in denying his motion to amend his original petition and to relate the amendment back under K.S.A. 60-215(c) to cure the alleged deficiencies in his original petition. We again disagree. Because Kuensder failed to comply with the pleading requirements of K.S.A. 77-614(b) within the statutory time period for filing his petition for review, the trial court did not have subject matter jurisdiction over the matter. Kuenstier’s untimely attempt to comply with K.S.A. 77-614(b) by amending his petition could not remedy his failure to establish subject matter jurisdiction within the statutory time period. Accordingly, we affirm.
In June 2005, Kuenstler was stopped for an improper turn and for failing to maintain his lane of travel. According to the officer’s certification and notice of suspension, Kuenstler exhibited several signs of intoxication during the stop, including the smell of alcoholic beverages, the failure of field sobriety tests, the bloodshot eyes, the poor balance or coordination, and the admission that alcohol or drugs had been consumed. Kuenstler submitted to an Intoxilyzer 5000 breath-alcohol test, which registered a breath-alcohol concentration level of .098.
The KDR suspended Kuenstler’s driving privileges. After an administrative hearing, the KDR administrative hearing officer affirmed the suspension of Kuenstler’s driving privileges. Kuenstler filed a petition for judicial review of the KDR’s decision with the trial court. The KDR filed an answer alleging as an affirmative defense that Kuenstler failed to state a claim on which relief could be granted by not strictly complying with K.S.A. 77-614(b) and K.S.A. 8-1020(o).
The KDR later moved to dismiss the case for lack of subject matter jurisdiction. The KDR argued that Kuenstler’s petition did not give focus to the alleged agency error, as required by K.S.A. 77-614(b) and Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), and that Kuenstler had failed to exhaust his administrative remedies on one of the issues. In response to the KDR’s motion to dismiss, Kuenstler argued that his petition for review was sufficient. In the alternative, however, Kuenstler moved to amend his petition to be more fact specific and to relate back to his original petition for review under K.S.A. 60-215(a) and (c).
In a written memorandum decision, the trial court determined that Kuenstler had failed to comply with K.S.A. 77-614(b)(5), which requires that the petition set forth facts demonstrating the petitioner’s entitlement to relief. The trial court stated that Kuenstler’s petition was “devoid of any facts that would tend to demonstrate or indicate with any specificity the issues to be presented.” Moreover, the trial court found that an amendment of Kuenstler’s pleadings would not suffice to grant the court subject matter jurisdiction. Accordingly, the trial court granted the KDR’s motion to dismiss based on lack of subject matter jurisdiction.
Subject Matter Jurisdiction
On appeal, Kuenstler first argues that the trial court erred in dismissing his petition for lack of subject matter jurisdiction. Subject matter jurisdiction is vested by statute and establishes a court’s authority to hear and decide a particular type of action. Bruch, 282 Kan. at 773-74. The issue of subject matter jurisdiction and the associated issue of statutory interpretation present questions of law over which an appellate court’s review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 371, 130 P.3d 560 (2006).
Under K.S.A. 2007 Supp. 8-259(a), the suspension of a person’s driving privileges is subject to review. K.S.A. 2007 Supp. 8-1020(o) allows a licensee to file a petition for review of the administrative hearing order under K.S.A. 2007 Supp. 8-259. The review “shall be in accordance with the act for judicial review and civil enforcement of agency actions [KJRA.].” K.S.A. 2007 Supp. 8-259(a).
A petition for review under K.S.A. 2007 Supp. 8-259 requires more than notice pleading; the petition must strictly comply with the pleading requirements of K.S.A. 77-614(b). Bruch, 282 Kan. at 787. K.S.A. 77-614(b)(5) requires that the petition include “facts to demonstrate that the petitioner is entitled to obtain judicial review.” An additional related requirement is contained in K.S.A. 77-614(b)(6), which requires that the petition include “the petitioner s reasons for believing that relief should be granted.”
In determining that Kuenstler s petition did not meet the pleading requirements of K.S.A. 77-614(b)(5), the trial court relied on our Supreme Court’s decision in Bruch. In Bruch, the appellant’s petition for review of the KDR’s ruling generally alleged that his driver’s license suspension should be vacated for the following reasons:
“ ‘7. That the order suspending plaintiff s driving privileges should be vacated by this Court because the officer lacked reasonable suspicion to begin a DUI investigation; the office[r] lacked probable cause to arrest plaintiff; that plaintiff s due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing; that plaintiff also seeks review of all issues raised before the administrative hearing officer at the October 7, 2004, hearing.’ ” 282 Kan. at 767.
At the bench trial, tire appellant in Bruch raised specific issues concerning the admissibility of his preliminary breath test (PBT). The trial court dismissed the appellant’s petition for lack of subject matter jurisdiction. The trial court found that the appellant had failed to allege sufficient facts in his petition to raise the PBT issue and that the issue had not been litigated by the appellant at the administrative hearing.
On appeal, our Supreme Court in Bruch determined that the trial court had correctly dismissed the appellant’s petition due to his failure to strictly comply with the requirements of K.S.A. 77-614(b). Our Supreme Court in Bruch recognized that “ 'specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought.’ ” 282 Kan. at 782 (citing Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 45, 36 P.3d 853 [2001], rev. denied 273 Kan. 1036 [2002]). Our Supreme Court noted that there was nothing in the appellant’s petition for review that indicated he intended to raise the PBT issues that he raised at the hearing before the trial court. Determining that the appellant’s issue of “probable cause to arrest” contained in his petition was too broad to give the trial court any focus on the agency error to be reviewed, our Supreme Court stated:
“Bruch’s argument that these issues fell under the broad umbrella of the probable cause’ to arrest issue is widiout merit. ‘Probable cause to arrest,’ even if taken as the reviewable issue of whedier there were ‘reasonable grounds’ to believe the licensee was DUI, is far too expansive of an issue, as it could include any number of arguments. [Citation omitted.] Bruch’s broad statement concerning probable cause does not provide the department or die district court with any focus on the agency error to be addressed at trial.” 282 Kan. at 786.
As a result, our Supreme Court affirmed the trial court’s dismissal of the appellant’s petition for lack of subject matter jurisdiction.
Here, as in Bruch, Kuenstler’s petition for judicial review set forth broad allegations that failed to strictly comply with the requirements of K.S.A. 77-614(b). Specifically, Kuenstler’s petition for judicial review provided in relevant part:
“5. Plaintiff is entided to judicial review as provided by die statutes of die State of Kansas for the following reasons: There was insufficient reasonable suspicion or probable cause for the stop of Plaintiff s vehicle; there was insufficient probable cause for the arrest of Plaintiff; protocol, procedure and statutory requirements were violated prior to and during administration of the Intoxilyzer 5000 test.
“6. Plaintiff believes diat relief should be granted to him because of the reasons stated in paragraph 5 hereof.
“7. Plaintiff requests that the suspension order of August 17th, 2005, be vacated and that his driving privileges be restored.”
As stated earlier, under K.S.A. 77-614(b)(5), the body of the petition must set forth “facts to demonstrate that the petitioner is entitled to obtain judicial review.” Here, Kuenstier alleged that “[t]here was insufficient reasonable suspicion or probable cause for the stop of Plaintiff s vehicle; there was insufficient probable cause for the arrest of Plaintiff; protocol, procedure and statutory requirements were violated prior to and during administration of the Intoxilyzer 5000 test.” Were these allegations of fact? Or were they conclusions? Moreover, if they were conclusions, and not facts, were they conclusions of fact or conclusions of law? Here, Kuenstler s allegations were legal conclusions.
In a defense based upon a lack of reasonable suspicion or probable cause, it is not sufficient to allege the mere happening of the car stop and call it a lack of reasonable suspicion or probable cause for the car stop on the part of the arresting officer. This is necessarily so because insufficient reasonable suspicion or probable cause for an officer to stop someone’s car is not a fact, but it is the legal result based on certain facts. The phrase “reasonable suspicion to stop a vehicle” has a legal meaning. See State v. Field, 252 Kan. 657, 664-65, 847 P.2d 1280 (1993) (“[T]he determination of whether an officer has reasonable suspicion to stop a vehicle is a question of law, or in some cases a mixed question of law and fact, for the appellate court to determine under the totality of the facts and circumstances.”).
In addition, Kuenstler alleged, as part of a single sentence, that “there was insufficient probable cause for the arrest of Plaintiff.” This phrase also has a legal meaning based on the result of certain facts. See State v. Hopper, 260 Kan. 66, 68-69, 917 P.2d 872 (1996) (An appellate court’s review of the trial court’s determination of whether an officer had probable cause to make a warrantless arrest in a DUI case is a mixed question of law and fact.). Again, Kuenstler’s petition states no facts upon which this legal conclusion is based.
Kuenstler’s first two allegations do not disclose what occurred, when it occurred, where it occurred, who did what, or any other factual information that describes the circumstances of the alleged wrongful conduct of the arresting officer. K.S.A. 77-614(b)(5) requires the petitioner to distinguish between facts and legal conclusions and plead only facts showing that the petitioner is entitled to judicial review. Kuenstler’s first two allegations fall short of this minimum standard.
Finally, in Kuenstler’s last allegation, he alleged that the “protocol procedure, and statutory requirements were violated before and during the Intoxilyzer 5000 breath test.” This allegation, also, was a legal conclusion. The problem with this allegation is that it alleges no facts describing in what way the arresting officer violated the protocol, procedure, and statutory requirements before and during the administration of the Intoxilyzer 5000 test. As a result, this allegation merely asserts a legal conclusion. Here, there is no factual basis to show that Kuenstler is entitled to judicial review.
Nevertheless, Kuenstler argues that he should not be required to be any more specific in his petition for review than the KDR administrative hearing record. Kuenstler points out that the KDR’s administrative hearing notes outline the issues he raised as follows: (1) “No P.C. to stop”; (2) “No P.C. to arrest”; and (3) “Protocol not followed on intox.” In addition, the administrative hearing notes contain the following entry: “Attorney Proffers — There was no P.C. to stop. No reasonable articulable suspicion. There was no reason to arrest.”
To accept Kuenstler’s argument, this court would have to ignore the plain language of K.S.A. 77-614(b) and our Supreme Court’s interpretation of the statute. K.S.A. 77-614(b)(5) and (6) place strict requirements on the petitioner to plead facts demonstrating that he or she is entitled to obtain judicial review and to plead the reasons for believing that relief should be granted. As the petitioner seeking review of the KDR’s administrative ruling, Kuenstler had the burden to stricdy comply with K.S.A. 77-614(b).
In adopting the strict compliance standard for petitions filed under K.S.A. 77-614(b), our Supreme Court in Bruch quoted Kohorst v. Iowa State Commerce Com’n, 348 N.W.2d 619, 621 (Iowa 1984). The Kohorst court explained why such a stringent pleading requirement should be followed in proceedings for judicial review of agency action:
“ ‘Unlike an original action where the issues may develop and change in the course of presenting evidence and making proof, the proof is not susceptible to change in the appellate process. Moreover, an opposing party is entitled to know the exact nature of the claimed errors, and each error must be separately and distinctly stated so an opponent can adequately prepare and respond to the issues being reviewed. [Citation omitted.]’ ” 282 Kan. at 780 (quoting Kohorst, 348 N.W.2d at 621).
Similarly, a petitioner’s strict compliance with K.S.A. 77-614(b) gives the opposing party sufficient notice of the exact nature of the claimed errors in order to avoid surprise at the trial. Moreover, notice of the claimed errors allows the opposing party to adequately prepare its response and to determine what evidence and witnesses need to be presented to support its position. In addition, the strict compliance standard allows a court reviewing the pleadings to determine the exact nature of the claimed agency errors to be decided. Moreover, the strict compliance standard permits the court to declare the law upon the facts stated. The court cannot do so if mere legal conclusions are stated. Finally, the petition for judicial review serves as a permanent record in the case and as a basis for res judicata in later proceedings.
Here, the language in Kuenstler s petition for judicial review was insufficient to meet the strict pleading requirements of K.S.A. 77-614(b)(5) and (6). As the trial court aptly stated in its memorandum decision, “Other than a bare assertion of issues, there were no facts set forth in the petition to demonstrate entitlement to relief.” Moreover, Kuenstler failed to plead the specific reasons why relief should be granted, We determine that the trial court properly determined that Kuenstler s failure to comply with the strict pleading requirements of K.S.A. 77-614(b) deprived it of subject matter jurisdiction.
Amendment of Petition
Finally, Kuenstler argues that the trial court erred in determining that his amended petition could not relate back under K.S.A. 60-215(c) to cure any claimed deficiencies in his original petition. On the other hand, the KDR argues that Kuenstler s failure to strictly comply with the requirements of K.S.A. 77-614(b) within the 10-day statutory period for filing his petition for review deprived the trial court of subject matter jurisdiction. As a result, the KDR maintains that the trial court did not have jurisdiction to allow Kuenstler to amend his petition.
Kuenstler s argument requires interpretation of statutes. The interpretation of a statute presents a question of law over which an appellate court’s review is unlimited. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
Here, Kuenstler filed his original petition in August 2005. In September 2007, after the KDR moved to dismiss the case, Kuenstler moved to amend his petition to relate back under K.S.A. 60-215(a) and (c). Attached to Kuensder’s motion was an amended petition for review that contained additional facts and specified the particular issues that Kuenstler wished to raise.
As pointed out by Kuenstler, K.S.A. 77-603(b) states that the KJRA “ ‘creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.’ ” 30 Kan. App. 2d at 39. Moreover, K.S.A. 60-201 states the scope of Chapter 60: “This article governs the procedure in the district courts of Kansas, other than actions commenced under the Code of Civil Procedure for Limited Actions and governs the procedure in all original proceedings in the supreme court in all suits of a civil nature whether cognizable as cases at law or in equity, except as provided by K.S.A. 60-265, and amendments thereto.”
K.S.A. 60-215, which is the section in the Code of Civil Procedure that governs the procedure for amending and supplementing pleadings, states in relevant part:
“(a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . .
“(c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
In denying Kuenstler’s motion to amend his petition and to relate the amendment back to his original pleading, under K.S.A. 60-215(c), the trial court relied on Pittsburg State University, 30 Kan. App. 2d 37, and Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). The trial court determined that Kuenstler was required to file a petition for review that met the strict pleading requirements of K.S.A. 77-614(b) within the statutory time period and that he could not later cure jurisdictional deficiencies by amending his petition.
In Pittsburg State University, this court considered whether the petition for judicial review was sufficient to confer jurisdiction under K.S.A. 77-614(b) when it failed to name the agency, Public Employee Relations Board (PERB), in the case caption and named the Kansas Department of Human Resources (KDHR) as the respondent agency and hsted the KDHR’s mailing address. The trial court had denied the appellant’s motion to amend the case caption, determining that the failure to name the proper agency was fatal to jurisdiction. On appeal, the appellant argued that it should have been allowed to amend the petition to add PERB to the case caption.
This court found that “[a] petition for judicial review of an agency action is jurisdictional,” and the “[fjailure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.” 30 Kan. App. 2d 37, Syl. ¶ 3. Nevertheless, nothing in K.S.A. 77-614(b) or in the KJRA requires a case caption. This court determined that because a case caption is a logical necessity, K.S.A. 60-210(a) supplements the KJRA and provides the rule for a case caption in a petition for judicial review of an agency action. Recognizing that a trial court could grant leave to amend the case caption because it was not one of the pleading requirements set forth in K.S.A. 77-614(b), this court stated:
“[W]hile K.S.A. 2000 Supp. 60-215(a) may not allow a petitioner to amend, for example, an item of a pleading strictly required by K.S.A. 77-614(b), the KJRA does not have a case caption requirement. As such, a strict compliance rule does not apply to the case caption and, under K.S.A. 2000 Supp. 60-215(a), the trial court may grant leave to amend the case caption of a petition for judicial review of any agency action if the amendment is in the interest of justice.” 30 Kan. App. 2d at 41.
As a result, this court determined that the appellant should have been allowed to amend the case caption under K.S.A. 60-215(a).
Our Supreme Court in Pieren-Abbott, 279 Kan. at 97, adopted the holding from Pittsburg State University that “the Code of Civil Procedure may be used by the district court to supplement the KJRA if the provision is a logical necessity that is not addressed within the KJRA.”
Here, unlike the facts of Pittsburg State University, the amendments requested by Kuenstler were directly addressed by the KJRA. Kuenstler moved to amend an item strictly required by K.S.A. 77-614(b). As a result, the rule from Pittsburg State University and Pieren-Abbott that the trial court may use the Code of Civil Procedure to supplement the KJRA “if the provision is a logical necessity that is not addressed within the KJRA” has no application here.
Nevertheless, arguing that his requested amendment should relate back to his original petition, Kuenstler cites University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 887 P.2d 1147 (1995), and Karns v. Kansas Bd. of Agriculture, 22 Kan. App. 2d 739, 923 P.2d 78 (1996). Both University of Kansas and Karns held that the specificity requirement under K.S.A. 77-614(b) was not a jurisdictional rule. Relying on University of Kansas, Kams held that the petitioner’s failure to comply with K.S.A. 77-614(b)(5) and (6) did not deprive the court of jurisdiction of the matter. 22 Kan. App. 2d at 744.
This court in Pittsburg State University, however, rejected the decision in University of Kansas, which was relied on in Karns: “We reject the holding in University of Kansas that the petition for judicial review is not jurisdictional. Instead, we hold that the failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.” 30 Kan. App. 2d at 46. Later, in Bruch, our Supreme Court followed the rule in Pittsburg State University when it held that “[a] petition for judicial review of an agency action is jurisdictional and the failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.” 282 Kan. 764, Syl. ¶ 2. As discussed previously, our Supreme Court in Bruch determined that the appellant failed to strictly comply with K.S.A. 77-614(b) and that the trial court cor rectly dismissed his petition for lack of subject matter jurisdiction. 282 Kan. at 787.
Here, Kuenstler failed to comply with the specific pleading requirements of K.S.A. 77-614(b) in his original petition. In his requested amendment, Kuenstler attempted to add facts that would demonstrate his entitlement to relief and particular reasons for why relief should be granted, items that were specifically required by K.S.A. 77-614(b)(5) and (6). Nevertheless, Kuenstler requested those amendments well outside of the 10-day statutory time period for filing his petition under K.S.A. 2007 Supp. 8-1020(p). We agree with the trial court that a petition in compliance with K.S.A. 77-614 must be filed within the statutory time period to give the trial court subject matter jurisdiction. We further agree that the relation back provisions under the Code of Civil Procedure cannot operate to cure the trial court’s lack of subject matter jurisdiction in an administrative action.
As pointed out by the KDR, the Indiana Court of Appeals reached a similar result in Commissioner v. Bethlehem Steel Corp., 703 N.E.2d 680 (Ind. App. 1998), which case was referred to in Bruch. In Bethlehem, the petitioner failed to meet several statutory requirements for its petition for judicial review of a final administrative order. The court held that due to the petitioner’s failure to meet the statutory requirements, the trial court never obtained jurisdiction over the case. 703 N.E.2d at 683. In addressing the petitioner’s argument that it should be allowed to file an amendment to the petition, the Bethlehem court quoted Hoosier Environmental Council v. DNR, 673 N.E.2d 811, 815-16 (Ind. App. 1996):
“ ‘Permitting a party to amend an otherwise noncompliant petition, after the thirty-day period has elapsed, would make the thirty day requirement ineffective. . . . Although the unverified petition was timely filed, at the time HEC sought to amend its petition, the thirty day period had expired. As such, HEC’s amended petition could not “relate back” to the initial petition, because “there [being] no timely filing, there is nothing which an amended pleading could relate back to.” ’ ” 703 N.E.2d at 683.
As a result, the Bethlehem court held that the petitioner could not file an untimely amendment to satisfy statutory pleading requirements.
Similarly, Kuenstler s failure to strictly comply with the requirements of K.S.A. 77-614(b) within the statutory period for filing his petition was a jurisdictional defect that rendered the trial court without subject matter jurisdiction and precluded his statutorily granted right of appeal. Kuenstler cannot circumvent the strict pleading requirements of K.S.A. 77-614(b) by using K.S.A. 60-215(c) to amend his petition more than 2 years after the statutory time period for filing his petition has expired.
Affirmed. | [
-112,
-22,
-35,
-82,
11,
64,
51,
-90,
65,
-41,
119,
115,
-17,
-37,
5,
57,
-21,
93,
113,
106,
-49,
-74,
119,
-64,
-42,
-13,
-56,
70,
-14,
75,
-4,
-16,
15,
-72,
-117,
85,
6,
-53,
21,
88,
-114,
6,
-103,
-32,
121,
-102,
40,
105,
82,
15,
49,
-113,
-29,
62,
27,
-61,
-83,
44,
25,
-92,
-55,
-16,
-37,
21,
95,
0,
-93,
20,
-104,
5,
84,
59,
-102,
-71,
49,
-7,
115,
-74,
-62,
-76,
47,
-103,
-119,
-26,
99,
33,
25,
-27,
-84,
-87,
46,
123,
-113,
-91,
-102,
89,
105,
8,
-106,
-97,
126,
22,
14,
-4,
-19,
84,
23,
-4,
-122,
-54,
-80,
-77,
79,
113,
-122,
83,
-17,
-59,
53,
97,
-122,
-10,
84,
87,
112,
-101,
-18,
20
] |
Buser, J.:
William Sherrod appeals his conviction of attempted aggravated indecent liberties with a child in violation of K.S.A. 21-3301(a) and K.S.A. 21-3504(a)(3)(A). Sherrod contends he was deprived of a fair trial by prosecutorial misconduct. Sherrod also claims there was insufficient evidence to convict him of attempted aggravated indecent liberties with a child because the evidence showed he committed the completed crime. We affirm the conviction.
Factual and Procedural Background
The State’s evidence consisted of testimony by the complaining witness, G.S., and her mother. G.S. was 13 years of age both at the time of the crime and at trial. At the beginning of G.S.’s direct testimony, the prosecutor asked the child if she knew the difference between a truth and a lie, that she was under oath, and that she was obliged to tell the truth. Defense counsel did not object to the questions, and G.S. answered yes to each one.
G.S. tiren described how on January 31, 2004, Sherrod and his wife, Kelly Sherrod, hosted a parly at the Sherrods’ home. The family of G.S. attended the event. After the party, G.S. spent the night at the Sherrods’ home. G.S. slept in the hving room on a bed that was converted from a couch.
Shortly after G.S. awoke the next morning, Sherrod came into the living room and laid down on the bed, apparently to sleep. G.S. testified that Sherrod then began rubbing her back on the outside of her shirt. The prosecutor asked G.S. how it made her feel, and she replied, “Uncomfortable” but not “worried.” There was no objection to the question.
The prosecutor later asked, “And then what did he do?” The transcript shows G.S. made no audible response. The following exchange then occurred:
“Q. Do you want to be here today, [G.S.]?
“A. No.
“Q. Okay. But you understand your duty to tell the truth, right?”
Sherrod’s counsel objected, but G.S. replied, “Yes.” Out of the jury’s hearing, Sherrod’s counsel argued the question was leading and that “to suggest that she has a duty to be there I think is unfairly prejudicial.” The district court replied, “Well, in terms of duty to be here it was couched in terms of duty to tell the truth.” The district court did not specifically rule on the objection, and there was no further response by G.S. to the question.
G.S. testified that Sherrod next reached under her shirt to rub her back and then he rubbed her legs. She described how Sherrod told her that “I couldn’t tell anybody what he was doing and I couldn’t even tell my best friend.” When the prosecutor asked G.S. what she was “thinking at this point,” she responded, “I was scared and just wanted to throw up.” There was no objection to the question.
Sherrod next began rubbing G.S.’s stomach. While doing so, Sherrod touched the bottom of G.S.’s bra and the outside of her underwear. Under questioning by the prosecutor, G.S. then testified:
“Q. Okay. He was on the outside first, and then what did he do?
“A. He started going on the inside.
“Q. Okay. And when you say he started going, what part of his body?
“A. His hand.
“Q. Okay. His hand? And it was going where?
“A. On the inside of my underwear.
“Q. Okay. On the inside of your underwear? Okay. And how far did his hand go inside of your underwear?
“A. Not very far.
“Q. Okay. Did his hand go between your legs?
“A. No.
“Q. Okay. Did it go further than just the inside band of your underwear?
“A. A little bit.
“Q. Okay. Um, did it go down to where you use the restroom at?
“A. No.
“Q. Okay. Did it go hallway down to that area?
“A. Yeah.
“Q. Okay. And I have to ask you some questions about your body. You’re 13 years old, correct?
“A. Yes.
“Q. Okay. Are you developed enough where you do have pubic hair in your genital area?
“A. Yes.
“Q. Okay. Did his hands go that far?
“A. Yes.
“Q. Okay. And what did you say to him?
“A. I told him to stop.
“Q. Okay. And what happened?
“A. He did.”
Afterwards, Sherrod told G.S. that he hoped they could still be friends and “he wouldn’t do it again unless I wanted him to.” The prosecutor asked G.S. how that made her feel, and she replied, “Angry.” G.S. said Sherrod “tried to make a joke out of it,” won dering if he could pay her not to tell anyone about it. The prosecutor asked G.S. how that made her feel, and she replied, “Bad.” There were no objections to the questions.
The mother of G.S. testified that upon her daughters return home later that morning, G.S. began ciying hysterically and went to the bathroom. G.S. initially did not respond to her mothers questions asking if anyone had touched her. She ultimately told her mother, however, about the encounter with Sherrod.
A short time later, G.S/s mother and her boyfriend confronted Sherrod and Kelly about the allegations. According to G.S/s mother, Sherrod claimed that all he had done was “rub her back.” Kelly looked at Sherrod and asked him “why he always thinks he has to rub everybody’s back.” When G.S.’s mother asked Sherrod why he had told G.S. not to tell anyone, Sherrod “just said he didn’t think it was appropriate. Some people might think it would be inappropriate for him to rub other people’s backs.”
The jury was instructed to find whether Sherrod had performed an overt act towards the commission of aggravated indecent liberties with a child but “failed to complete the commission of the crime.” The elements of aggravated indecent liberties with a child were stated as touching or fondling G.S. “in a lewd manner, with intent to arouse or satisfy the sexual desires of either [G.S.] or [Sherrod] or both,” and that “at the time of the act [G.S.] was a child under the age of 14.” Sherrod did not object to these instructions, request any instructions, or submit proposed instructions. The jury returned a guilty verdict, and Sherrod appeals.
Prosecutorial Misconduct
Sherrod alleges two kinds of prosecutorial misconduct. First, he claims the prosecutor’s questioning of G.S. regarding her understanding of the duties imposed while testifying under oath constituted impermissible bolstering of her credibility. Second, he contends the prosecutor’s questions to G.S. about her thoughts or feelings during the encounter with Sherrod were designed to inflame the passions of the jury.
In reviewing a prosecutorial misconduct claim we employ a two-step analysis without regard to tire existence of an objection below. The first step asks whether the “complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence.” State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). The second step asks “whether the remarks constituted plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial.” 283 Kan. at 428.
The court considers three factors in determining whether there was plain error: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct demonstrated ill will by the prosecutor; and (3) whether the evidence was of such a direct and overwhelming nature that it would have had little weight in the jurors’ minds. No single factor is controlling. The third factor may not override the other two unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967), have been satisfied. Albright, 283 Kan. at 428.
First, with regard to Sherrod’s bolstering of credibility claim, a witness must understand the duty to tell the truth. See K.S.A. 60-417. It is appropriate to lay a foundation for a child’s understanding of this duty by asking the child questions such as those posed in this case. See State v. DeLespine, 201 Kan. 348, 351, 440 P.2d 572 (1968).
Sherrod nevertheless asserts that it is “inconceivable” such questions were necessaiy. We disagree. Not only was G.S. a 13-year-old complaining witness in a sex abuse case, the trial transcript indicates she testified with difficulty. G.S. was repeatedly asked to speak up, she failed to respond to questioning, and the trial judge once found it necessary to direct her to answer.
It was, therefore, not impermissible for the prosecutor initially to question G.S. about her duties as a witness and then to reexamine her understanding when she did not respond to a question. Although the objected-to question was leading, it was not bolstering. In State v. Elnicki, 279 Kan. 47, 60, 105 P.3d 1222 (2005), for example, a prosecutor improperly told a jury, “ '[Y]ou know [the victim] was telling you the truth.’ ” Here, in contrast, the questions all focused on G.S.’s own understanding of her testimonial duties.
Moreover, assuming the questions were improper, there was no plain error. The questions were brief and to the point. The prosecutor did not mention G.S.’s duty to tell the truth in closing arguments, instead telling the jury, “It’s your job to determine the credibility of the witnesses.” The district court also instructed the jurors “to determine the weight and credit to be given the testimony of each witness.” Jurors are presumed to follow the instructions from the court. State v. Daniels, 278 Kan. 53, 72, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004). We find nothing gross or flagrant here, nor any prosecutorial ill will.
We next address Sherrod’s claim that the prosecutor’s questions concerning G.S.’s thoughts or feelings were improper. Sherrod argues: “The sole purpose of the State . . . was to make tire jur[ors] sympathize with the victim and to inflame their passions against [him].” Sherrod infers this intent from an asserted lack of relevance to the “thoughts and feelings” testimony, a point to which the State had no chance to respond to below because Sherrod never objected to the questions.
On appeal, the State counters the testimony was relevant “to show . . . [G.S.] was not . . . over-reacting to what was just a back rub.” Sherrod did not testify at trial, but G.S.’s mother recalled that when she confronted Sherrod after the incident, he claimed, “ '[A]ll did was rub her back.’ ” Yet, both G.S. and her mother testified to G.S.’s hysterical reaction later in the day.
The testimony regarding G.S.’s contemporaneous thoughts and feelings provided the jury with context to understand the occurrence:. It confirmed the escalating nature of the encounter, and it helped to explain G.S.’s reaction to Sherrod’s touching. As a result, the evidence had some tendency in reason to prove Sherrod had done more than he claimed when confronted by G.S.’s mother. See K.S.A. 60-401(b) (relevant evidence). Finally, assuming there was prosecutorial misconduct, Sherrod has wholly failed to prove the requisites for plain error.
We find Sherrod’s two claims of prosecutorial misconduct are without merit.
Sufficiency of the Evidence
Sherrod contests tire sufficiency of the evidence. He argues that “if the jury believed” the facts as alleged by G.S., those facts “equate to the completed crime of aggravated indecent liberties” with a child. According to Sherrod, therefore, the “State did not prove a critical element of the crime of attempted aggravated indecent liberties, specifically that [he] failed to complete the crime.”
Aggravated indecent liberties with a child is defined in relevant part as: “Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, or the offender, or both.” K.S.A. 21-3504(a)(3)(A). “An attempt is any overt act towards the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301. “When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether [we are convinced] a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).
We first note Sherrod’s concession on appeal that he never raised this particular basis for insufficiency before the district court. If Sherrod believed the State’s evidence established the greater crime of aggravated indecent liberties with a child and not the lesser included crime of attempted aggravated indecent liberties with a child, he had numerous opportunities to object below. See K.S.A. 21-3107(2)(b) (an attempt is a lesser included crime). Sherrod did not move to dismiss the charge. See K.S.A. 22-3208(4). He did not defend on this basis at the preliminary hearing. See K.S.A. 22-2902. Sherrod did not object to the attempted aggravated indecent liberties with a child instruction. See K.S.A. 22-3414(3). Finally, he did not seek a new trial on this particular ground. See K.S.A. 22-3501(1).
Sherrod did move for a judgment of acquittal, but only on the basis that- the facts alleged by the State to prove the overt act did not occur. See K.S.A. 22-3419(1). This argument is different from Sherrod’s claim on appeal that those facts constituted more than overt acts and, instead, constituted the completed crime. Quite simply, we believe Sherrod has raised a new issue on appeal. As a general rule, issues not raised before the district court may not be raised on appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).
As to the merits, Sherrod does not show error. At oral argument, Sherrod’s counsel contended the crime of aggravated indecent liberties with a child was completed when Sherrod first touched G.S.’s legs. In his brief, however, Sherrod relies on G.S.’s testimony that he “rubbed her legs, rubbed her stomach, intentionally brushed up against her bra . . . [and] put his hand down her underwear and touched her pubic hair.”
The State counters that
“[djuring the massage the defendant was careful to not touch her breast area or her buttocks or the inside of her thighs. However, when he started to put his hand inside her underwear it becomes clear what his intent was. In this case the child told him to stop when he put his hand in her underwear and he did, which is why the State charged it as Attempted Aggravated Indecent Liberties.”
Sherrod essentially invites us to find as a matter of law that the crime was completed at some point before G.S. told him to stop. The aggravated indecent liberties with a child statute, however, does not specify any particular touching which, if committed, establishes a completed crime. In fact, Kansas case law is replete with a variety of indecent touchings perpetrated upon children which resulted in convictions for aggravated indecent liberties with a child. See State v. Kessler, 276 Kan. 202, 214-15, 73 P.3d 761 (2003) (touching of penis and buttocks); State v. Sampsel, 268 Kan. 264, 267-68, 997 P.2d 664 (2000) (sexual intercourse); State v. Ippert, 268 Kan. 254, 255-56, 259-60, 995 P.2d 858 (2000) (touching in vaginal area with finger and penis); State v. Lewis, 33 Kan. App. 2d 634, 636-38, 656-57, 111 P.3d 636, rev. denied 277 Kan. 924 (2003) (rubbing vaginal area).
Under the facts of this case, the jury could have reasonably viewed the touching of G.S. as an overt act toward the commission of aggravated indecent liberties with a child. In this regard, it is important to remember: “The jury determines the existence of an overt act. There is no definitive rule concerning what constitutes an overt act; each case depends on the inferences a jury may reasonably draw from the facts.” State v. Zimmerman, 251 Kan. 54, Syl. ¶ 6, 833 P.2d 925 (1992).
For example, the jury may have considered Sherrod’s rubbing of G.S.’s back, legs, and stomach to be “mere preparation made by the accused,” which prefaced his actual overt act towards touching G.S.’s genitalia, i.e., reaching below her underwear. State v. Stevens, 285 Kan. 307, Syl. ¶ 5, 172 P.3d 570 (2007). Then again, the jury may have considered Sherrod’s admission to rubbing G.S.’s back as beyond preparation and constituting an overt act towards touching her genitalia. Regardless, our task in reviewing the sufficiency of the evidence is not to substitute our judgment for that of the jury. See State v. Henderson, 284 Kan 267, 297-98, 160 P.3d 776 (2007).
A reasonable factfinder could conclude from Sherrod’s escalating actions that he intended more — in particular, to actually touch G.S.’s genitalia. Such a factfinder could also conclude that Sherrod’s intent was thwarted when, as the prosecutor told the juiy, G.S. summoned “the courage to say stop” and Sherrod complied. Considering the evidence in the light most favorable to the prosecution, we hold a rational factfinder could have found beyond a reasonable doubt that Sherrod was guilty of attempted aggravated indecent liberties with a child.
Affirmed. | [
16,
-20,
-19,
122,
40,
-32,
106,
-68,
18,
-109,
-29,
114,
-87,
90,
12,
58,
-69,
47,
80,
33,
-63,
-77,
118,
83,
-10,
-5,
50,
-41,
119,
79,
-84,
-68,
24,
50,
-38,
113,
70,
-54,
-25,
86,
-120,
-123,
-72,
-6,
-110,
2,
36,
33,
30,
15,
49,
62,
-13,
42,
-98,
127,
9,
40,
75,
-71,
83,
65,
-79,
-105,
-7,
48,
-94,
36,
-100,
40,
-8,
54,
-34,
-75,
0,
-20,
51,
-90,
0,
-12,
79,
-119,
-120,
102,
-14,
34,
45,
-89,
-91,
-56,
71,
46,
-84,
-89,
-101,
73,
73,
108,
-65,
-35,
32,
16,
62,
56,
-31,
76,
125,
-32,
42,
-113,
-108,
-109,
29,
1,
0,
50,
-29,
13,
20,
65,
-41,
-92,
92,
85,
80,
-111,
-82,
-15
] |
The opinion of the court was delivered by
Prager, J.:
This is an action in quo warranto brought by the state of Kansas on the relation of the attorney general, seeking to oust members of the state finance council from the exercise of various powers and responsibilities placed in them by statute.
Hearing has been expedited by a preferential setting of the case for argument. The case has been briefed and was orally argued by the parties on March 4, 1977.
Upon due consideration by a unanimous court, we conclude that the judgment of the district court ousting the defendants from the exercise of their statutory powers as members of the state finance council should be reversed. Judgment is entered for the defendants. This brief opinion announcing our decision will be implemented by a formal opinion to be filed when it is prepared. | [
-80,
-20,
-67,
-98,
10,
96,
51,
-101,
83,
-31,
37,
83,
-23,
-22,
21,
123,
83,
13,
84,
121,
-123,
-74,
87,
-63,
-74,
-5,
-8,
-35,
-79,
93,
-26,
-2,
72,
48,
66,
-107,
70,
-62,
-63,
92,
-114,
13,
-88,
-15,
-47,
72,
52,
107,
82,
11,
113,
127,
-29,
42,
25,
-47,
-24,
44,
-37,
73,
24,
-15,
-65,
-121,
79,
83,
1,
96,
-98,
7,
-48,
47,
-104,
57,
9,
-24,
115,
-90,
14,
116,
15,
-23,
12,
114,
96,
33,
60,
-89,
-56,
-120,
14,
83,
-67,
-58,
-77,
88,
34,
9,
-106,
-103,
117,
22,
7,
-10,
-29,
21,
63,
124,
-110,
-53,
-44,
33,
-98,
117,
-118,
66,
-21,
-31,
32,
113,
-127,
102,
92,
119,
51,
27,
-10,
-84
] |
The opinion of the court was delivered by
Miller, J.:
A jury convicted Anna R. Bennett of felony theft and she appeals, raising but one claim of error. She contends that the court on its own motion disqualified a juror, who had been impaneled and sworn, on the grounds that the juror was possibly biased against the state and in favor of the defense, thus depriving her of due process and a fair trial.
During the morning of June 6,1976, a jury was impaneled to try this case, and court then recessed during the noon hour. Upon returning, one of the jurors, counsel, and the defendant held a bench conference out of the hearing of the other jurors. This juror, Mr. Chilton, disclosed that during the noon recess he discovered that he knew defendant’s husband and at least two of her children. Her husband was a friend of his father, the children were friends of his brothers. Though Chilton did not know the defendant, their families were friends.
Questioning by counsel discloséd that Chilton didn’t know if he could be fair to both sides; he would try; but if anything he would be inclined toward a finding of not guilty. He knew the defendant was presumed to be innocent, and said, . . [I]t is going to be even more so now.”
The defendant then said, “Maybe we better get somebody else, you know, he doesn’t feel right about it.”
Further questioning disclosed that though Mr. Chilton would try to be fair to the state, he was not sure that he could be. The judge then asked:
“. . . Do you want to recess so we can call a juror?”
and the assistant district attorney responded:
“In light of some of the responses . . . I would, Your Honor. . . . I would ask the juror to be excluded for cause.”
Defense counsel then moved for a mistrial, and that they impanel another jury. The court then stated:
“That is what it is. It is a mistrial. And the only way we could avoid that would be by an agreement.”
Defense counsel asked for a recess in order that he might confer with his client. The court then excused Mr. Chilton, and declared a recess. After the recess, the judge informed the eleven jurors that by stipulation and agreement of court and counsel, the twelfth juror was to be selected by allowing each side all necessary challenges for cause plus two peremptory challenges. Both attorneys and the defendant, in open court, expressed agreement to this procedure. Five new prospective jurors were called, sworn and examined, and a twelfth juror was thus selected.
False statements of a juror on voir dire which prevent a fair trial are cause for declaring a mistrial. K.S.A. 22-3423 (1) (e). Here Chilton discovered that his original answers on voir dire, that he did not know defendant or members of her family, were false, and he hastened to inform the court and counsel. It was apparent, and the trial judge found, that a fair trial could not be had.
In State v. Hansford, 76 Kan. 678, 92 Pac. 551, Chief Justice Johnston said:
“. . . [A] jury may be discharged not only for the reasons named in the statute but whenever it appears to the court that there is a manifest necessity for the act or that the ends of justice would otherwise be defeated. . . .” (p. 685.)
In the recent case of State v. Howard, 221 Kan. 51, 557 P. 2d 1280, we cited Hansford with approval, and said:
“It is within the discretion of the trial court to declare a mistrial in a criminal jury trial when it is shown that a juror is or becomes so prejudiced during the trial that he or she cannot serve as a fair and impartial juror and give both the state and the defendant a fair trial. . . .” (p. 57.)
The trial judge did not act on his own motion, though he quite properly could have done so. His action in discharging the juror was proper. The proceedings thereafter were with the full and voluntary agreement of counsel and the defendant.
A defendant may waive the right to a jury trial altogether by pleading guilty or, by agreement between the defendant and the prosecuting attorney, and with the consent of the court, the parties may submit the trial to the court without a jury. K.S.A. 22-3403 (1). Or a defendant may agree with the state, with the approval of the court, that the jury consist of less than twelve members. K.S.A. 22-3403 (2).
Surely a defendant and his counsel may agree to the manner of selection of one juror, and may not — after conviction —successfully challenge the agreed procedure.
In 73 Am. Jur. 2d, Stipulations, pp. 536-537, the text reads in applicable part:
“Sec. 1. A ‘stipulation,’ . . . is an agreement . . . made in a judicial proceeding by the parties or their attorneys, respecting some matter incident thereto. Its purpose is generally stated to be the avoidance of delay, trouble, and expense.
“Sec. 2. . . . Oral stipulations of the parties in the presence of the court are generally held to be binding, especially when acted upon . . .”
Relief from stipulations is dealt with in section 13, where the text says in substance that in the exercise of judicial discretion, a party may be relieved from a stipulation where it appears that relief is necessary to prevent manifest injustice, and that the granting of such relief will not place the adverse party at any disadvantage; however, where there is no showing that injustice or inequity will result, and where the original object of the stipulation would be frustrated should it be interfered with, courts should not intervene.
Here no prejudice is claimed, and we find none. Manifest injustice is not shown simply because the jury convicted the defendant. Both the state and the defendant stipulated to the procedure followed, and we see no reason to relieve the defendant from her voluntary and binding agreement. The court indicated that a mistrial would be declared and a new jury chosen unless the parties agreed otherwise. They did. That agreement was carried out to the letter, and defendant does not claim it was not.
We find no error. The judgment is affirmed. | [
-16,
-8,
-91,
-66,
58,
-30,
42,
-40,
80,
-125,
51,
115,
41,
-34,
21,
123,
121,
127,
84,
105,
-46,
-78,
55,
115,
-65,
-45,
26,
-59,
-77,
106,
-10,
-1,
12,
-80,
-62,
-43,
102,
72,
7,
86,
-126,
18,
-72,
97,
-104,
122,
52,
55,
86,
13,
-15,
30,
-13,
42,
29,
71,
-24,
40,
91,
112,
-112,
-80,
26,
-121,
-53,
18,
-77,
-122,
-114,
-125,
-8,
46,
88,
25,
2,
-24,
51,
-106,
2,
84,
107,
-69,
12,
102,
100,
1,
109,
-117,
-8,
-87,
54,
63,
-83,
-89,
88,
33,
9,
72,
-74,
-35,
112,
50,
-82,
-36,
111,
-59,
85,
116,
12,
-33,
-102,
-111,
-113,
48,
-84,
-62,
-29,
-93,
18,
97,
-52,
-32,
94,
52,
83,
25,
-49,
-90
] |
The opinion of the court was delivered by
Miller, J.:
Lewis McDonald brings this appeal from the Pawnee District Court where he was convicted of battery against a law enforcement officer, Dennis Hunt, in violation of K.S.A. 21-3413. He was sentenced to six months in jail and a fine of $500.
McDonald contends that the evidence establishes as a matter of law and fact that Hunt was not a “law enforcement officer” and that the court erred (1) in refusing to receive a “learned treatise” in evidence; (2) in refusing to give the jury an instruction on involuntary intoxication; (3) in denying defendant’s motion for a new trial on the grounds of prejudicial pretrial publicity; and (4) in refusing to permit counsel to make inquiry of the jurors with respect to prejudicial pretrial publicity.
Hunt, a part-time police officer for the city of Larned, was on duty, working a seven-hour shift, during the early morning hours of February 15,1976. He was in full uniform. McDonald failed to stop his car at a stop sign. Hunt followed, stopped McDonald, and prepared to write a citation. McDonald got out of his car and threatened Hunt. Hunt sprayed McDonald in the face with Mace. McDonald promptly kicked Hunt in the stomach. It is this kick which forms the basis of the charge.
Defendant contends that because Hunt was only a part-time policeman, he is not a “law enforcement officer.” Defendant relies upon the definition contained in K.S.A. 1976 Supp. 74-5602 (e). That statute is a part of the Kansas Law Enforcement Training Center and Advisory Commission Act, K.S.A. 74-5601, et seq., and its application is limited to that act. The controlling statute here is K.S.A. 1976 Supp. 21-3110 (10), which defines a law enforcement officer as:
“. . . [A]ny person who by virtue of his or her office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes.”
Defendant also complains that Hunt was originally hired by the chief of police and not by the city manager pursuant to K.S.A. 12-1014. Hunt was wearing a city police uniform and badge; he was driving a city vehicle, ordinarily driven by the city manager; he had been doing this part-time police work for some time; and presumably he was paid by the city. Though his original employment, some months before the incident in question, may have been irregular and not in strict conformity with the cited statute, we have no hesitancy in holding that Hunt was a “law enforcement officer” under the facts before us.
Defendant sought to introduce in evidence a portion of the Merck Manual, but he produced no witnesses to authenticate the manual or attest to its reliability. Apparently the trial judge was not sufficiently familiar with the publication to take judicial notice of it, and he declined to do so.
K.S.A. 60-460 (cc) provides in substance that statements in published treatises, offered to prove the truth of a matter stated therein, are exceptions to the hearsay rule and may be received in evidence:
“. . . [I]f the judge takes judicial notice, or a witness expert in the subject testifies, that the treatise ... is a reliable authority in the subject.”
As we said in Zimmer v. State, 206 Kan. 304, 309, 477 P. 2d 971:
“Mere publication does not ipso facto render a work admissible as independent substantive evidence. Such a work becomes admissible when a proper foundation has been laid — establishment of its reliability either by means of judicial notice being taken or the attestation of an expert witness. . . . We hold the determination of reliability requisite to admission into evidence of learned treatises rests in the sound discretion of the trial court.”
Here no foundation was laid, and the court declined to admit the proffered portion of the manual into evidence. We find no abuse of discretion.
McDonald claims the court erred in failing to give a requested instruction on involuntary intoxication. The basis of this claim is his contention that Mace was applied to him involuntarily, and that he did not know what he was doing thereafter. This requires a determination of whether Mace can cause intoxication. There is nothing in the record to indicate this is so, and thus no error in the court’s ruling is shown in this regard.
Next we turn to the final claims of error relating to prejudicial pretrial publicity. About two weeks prior to the commencement of defendant’s jury trial, copies of a two-page typewritten document were distributed to places of business and to residences in Larned. These pamphlets were exceedingly vituperative publications which could well inflame the community and engender hatred towards the defendant and towards his father, who testified as a defense witness. McDonald’s attorney was not a local resident, and did not learn of this publication until the case had been submitted and the jury was deliberating.
The motion for new trial was based in part on the existence of this prejudicial pretrial publicity. Upon oral argument, counsel informed the court that he had not interviewed any of the jurors, feeling that he should first secure the consent of the trial judge before doing so. He asked leave for both trial counsel to contact the trial jurors in order to determine “the existence or possible non-existence of prejudicial pretrial publicity.” The trial court denied the motion, refused any type of examination of the trial jurors, and expressed its opinion that the publication had absolutely no effect. This we hold was error.
K.S.A. 60-441 prevents inquiry into the mental processes of jurors. State v. Schroeder, 201 Kan. 811, 822, 443 P. 2d 284, and State v. Morgan, 207 Kan. 581, 485 P. 2d 1371. By its terms the statute prohibits the receipt of evidence to show the effect of any statement upon the mind of a juror. But whether the jurors had read the pamphlet, whether they knew of its existence, whether it was discussed in the jury room — these are matters which are highly relevant and inquiry into these and like matters are not proscribed by the statute.
In our judgment counsel should have been granted leave to interview the trial jurors, and the trial court abused its discretion in refusing counsel permission to do so. While there is nothing in our law to prohibit counsel from interviewing jurors after the conclusion of trial, leave of court is required before jurors may be called for hearings on posttrial motions. Supreme Court Rule No. 181 (220 Kan. lxviii). We think counsel pursued a proper course in seeking permission of the court to interview jurors. When in doubt in an area such as this, counsel cannot be faulted for seeking guidance from the court.
Upon the record before us, we cannot say that substantial justice has been done insofar as the disposition of defendant’s motion for a new trial is concerned. K.S.A. 60-2105. Accordingly, the order of the trial court overruling the motion for a new trial is reversed and the cause is remanded to the trial court with directions to set aside its order overruling the motion for a new trial, to grant counsel leave to interview the trial jurors, and to grant counsel an opportunity to present relevant evidence, if any, upon the hearing of the motion for a new trial.
In all other respects, the judgment below is affirmed. | [
-80,
-18,
-32,
-36,
11,
96,
50,
48,
81,
-77,
-28,
115,
45,
-37,
5,
123,
-37,
125,
20,
105,
-55,
-73,
71,
64,
118,
115,
-40,
-59,
51,
79,
-12,
-20,
13,
48,
66,
-43,
38,
74,
-123,
-36,
-116,
6,
41,
-6,
-38,
2,
-84,
58,
50,
15,
49,
-98,
-29,
42,
24,
-29,
-19,
44,
90,
-92,
-111,
-79,
-21,
5,
94,
20,
-77,
38,
-36,
5,
88,
62,
-104,
49,
16,
104,
123,
-94,
-128,
-12,
47,
-103,
-84,
102,
98,
47,
29,
-19,
-84,
-87,
12,
26,
-97,
-89,
-104,
25,
107,
13,
-106,
-71,
103,
20,
3,
-4,
-25,
5,
95,
108,
15,
-37,
-60,
-111,
-51,
52,
-110,
-48,
-21,
1,
16,
81,
-51,
-30,
94,
71,
114,
95,
-81,
-108
] |
The opinion of the court was delivered by
Miller, J.:
This is an action for the recovery of damages based upon a claim of breach of contract, commenced by the Kansas State Bank against Overseas Motosport, Inc. The bank prevailed in the district court, and Overseas appeals.
Overseas admits that it breached the contract, and that the bank’s loss is $1,500. The question before us is whether the breach caused the loss or, stated another way, whether the damages are such as may fairly and reasonably be considered as arising naturally, according to the usual course of things, from the breach of the contract itself.
We have long followed the rule of Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Reprint 145, 5 Eng. Rul. Cas. 502 (1854); and see 22 Am. Jur. 2d Damages, Sec. 56. Simply stated, the rule is that damages recoverable for breach of contract are limited to those damages which may fairly be considered as arising, in the usual course of things, from the breach itself, or as may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach Cain v. Grosshans & Petersen, Inc., 196 Kan. 497, 501, 413 P. 2d 98; Hess v. Jarboe, 201 Kan. 705, 708, 443 P. 2d 294; Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 738, 512 P. 2d 379; Denman v. Aspen Drilling Co., 214 Kan. 402, 405, 520 P. 2d 1303; Mahoney, Inc. v. Galokee Corporation, 214 Kan. 754, 756, 522 P. 2d 428.
Conversely, damages which are not the proximate result of the breach of contract, and those which are remote, cannot serve to support a judgment. Recovery may not be had where it is not shown with reasonable certainty that the damages resulted from the act or omission complained of. Apperson v. Security State Bank, 215 Kan. 724, 735, 736, 528 P. 2d 1211.
The activity out of which this controversy arose commenced in May, 1974, when Steven C. Hunter applied for a loan from the Kansas State Bank. The bank made the usual credit checks, found that Hunter was serving in the U. S. Army, and approved the credit. On July 16, 1974, Hunter returned to the bank and signed a note and security agreement. The agreement described the collateral as a 1974 Suzuki GT-750, SN#52811. The bank accepted the note and security agreement, and issued its cashier’s check in the amount of $1500, payable to Hunter and Overseas. Stamped on the back of the check, above the endorsement, was the following legend:
“The endorsers of this money order guarantee that the Kansas State Bank of Manhattan, Kansas, has a recorded first lien against 1974 Suzuki GT-750, ft52811.”
The bank called Overseas and was assured that Overseas would show the bank’s lien when title was delivered to Hunter.
The motorcycle sold for $2023.43. Overseas accepted the bank’s check for $1500, and carried the balance of $523.43 on an open charge. It delivered title to Hunter, but inadvertently showed itself as the lien holder. The bank’s lien was not shown. Overseas admits that this was a breach of its agreement with the bank.
Hunter’s first payment to the bank was due on August 15, 1974. When this was not paid, the bank mailed notices to Hunter on August 20 and August 30; there was no response. About this time, the bank discovered that Hunter was AWOL, and that he had been AWOL since before July 16, when the loan was made. Thereafter, the bank tried to find him.
Between September 7 and 15, one of the bank officers located Hunter and the motorcycle in Manhattan. Hunter refused to surrender possession of the motorcycle, and stated that the bank couldn’t do anything about it because he was sure the bank did not have a lien on the cycle. The bank checked with the motor vehicle department and found that it had no recorded lien. The bank then erroneously concluded that it could not foreclose because it had no perfected lien. About the middle of October, the bank discovered that Overseas was listed on the title as a lien holder. The bank continued its efforts to locate Hunter, but could find neither Hunter nor the motorcycle. On December 20 ythe bank commenced this action.
The bank argued to the trial court, and argues here, that the defendant’s breach resulted in the bank having no enforceable lien on the motorcycle, and thus no legal avenues were open to it to secure possession of the motorcycle. The trial court found that this was not the paramount issue; that the omission of the bank’s lien on the title caused the bank to delay foreclosure or take other action, and that the delay thus caused by the defendant was the proximate cause of the loss. The court did not decide whether the bank in fact had an enforceable lien.
K. S. A. 84-9-201 provides in applicable part that:
“Except as otherwise provided by this act a security agreement is effective according to its terms between the parties . . .”
K.S.A. 1974 Supp. 84-9-203 (since amended) provides that:
“(1) . . . [A] security interest is not enforceable against the debtor or third parties unless
“(b) the debtor has signed a security agreement which contains a description of the collateral . .
K. S. A. 84-9-204 (since amended) provides in part that:
“A security interest cannot attach until there is agreement . . . that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.”
K. S. A. 84-9-501 (also since amended) provides that:
“When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this part . . . He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. . . .”
K. S. A. 84-9-503 provides that:
“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. . . .”
The Kansas Comment to 84-9-503 is instructive. It reads in part as follows:
“The secured party’s right to possession of the collateral . . . accrues on default unless otherwise agreed in the security agreement. The secured party may take possession without the issuance of judicial process, but may not create a breach of the peace. . . .
“. . . To obtain possession by judicial action, the [secured party] may bring a replevin action. . . .”
K. S. A. 1974 Supp. 84-9-302 (since amended) provides in part that:
“(3) A security interest in
“(c) a vehicle . . . subject to a statute of this state which requires indication on a certificate of title or a duplicate thereof of such security interests in such vehicle:
“Can be perfected only by presentation, for the purpose of such registration or such filing or such indication, of the documents appropriate under any such statute to the public official appropriate under any such statute and tender of the required fee ...”
K. S. A. 8-135 regulates the transfer of ownership and the registration of motor vehicles. It provides in substance that an application for a certificate of title shall disclose all liens or encumbrances against the vehicle, and when the certificate of title is issued, it likewise shall list all liens or encumbrances shown upon the application.
The UCC does not require that a security interest be perfected by filing or otherwise in order to be valid. Gulf Oil Company v. First National Bank of Hereford, 503 S. W. 2d 300 (Tex. Civ. App. 1973); Security Bank of Oregon v. Levens, 257 Ore. 630, 480 P. 2d 706 (1971); Branch v. Steph, 389 F. 2d 233 (10th Cir. 1968).
. . Sec. 9-204 provides that a Security Interest attaches when there is (1) an agreement that it attach, (2) value is given, and (3) the debtor has rights in the collateral. Section 9-401 . . . sets forth the proper places for filing a security interest in order to perfect it, and is concerned only with priority of liens — not with the status of a lienholder. In other words, perfection of a lien in accordance with sec. 9-401 acts only to give the secured creditor priority over all liens on the same collateral perfected subsequent thereto and not to create or destroy a security interest valid under sec. 9-204. . . " Branch v. Steph, supra, p. 236.
Here, Hunter signed a security agreement. It contained a description of the collateral. Hunter agreed that the security interest attach to the vehicle. Value was given by the bank. The title to the vehicle, and physical possession of it, were given to Hunter by Overseas, and thus Hunter acquired rights in the collateral. It is clear that the security interest of the bank attached, pursuant to the provisions of sections 9-203 and 9-204, above set forth. Upon Hunter’s default, the bank had the right to possession of the collateral pursuant to section 9-503.
We should emphasize that we are concerned here with the rights of only the original parties to a secured transaction— Hunter and the bank. So far as the record discloses, Hunter remained the owner of the vehicle. He did not sell it; he did not transfer the title; he did not mortgage, pledge, or otherwise encumber the vehicle to third parties; nor did he cause the cycle to become subject to the lien of a repairman.
The bank acquired its security interest — its lien on the vehicle — pursuant to the terms of its security agreement and the provisions of the Uniform Commercial Code. A security interest is created by a security agreement, and attaches as provided by sec. 9-204. Priority is established and protected by recording the lien on the title; but we are not here concerned with priorities or the rights of third parties. No third party is claiming an interest superior to that of the bank.
The bank confused “security interest” with “priority.” It misunderstood the law, and took no action. Hunter absconded with the motorcycle after the bank contacted him in early September. Neither the bank’s misconception of the law nor Hunter’s flight can be laid at the door of Overseas.
There is no evidence that Hunter or the motorcycle remained in Manhattan for any period of time after the bank made contact with Hunter in early September. Thus there is nothing in the evidence to support a finding that the bank could have foreclosed its lien anytime after that contact, or that delay by the bank caused its loss.
Upon the record before us we conclude that Hunter’s flight, and his concealment of the motorcycle, caused the loss. As a matter of law, then, the loss was not caused by defendant’s breach.
Accordingly, the judgment of the district court is reversed. | [
-110,
120,
-7,
44,
89,
98,
34,
26,
89,
-95,
37,
-45,
-63,
-53,
20,
109,
-26,
73,
-32,
98,
-41,
-73,
7,
-118,
-42,
-77,
-15,
77,
-72,
79,
100,
-33,
76,
48,
-126,
-43,
-26,
-54,
-63,
-100,
-82,
6,
24,
69,
-3,
72,
60,
42,
112,
72,
49,
-115,
115,
34,
25,
-57,
-23,
42,
-21,
-68,
-48,
-16,
-86,
5,
127,
17,
17,
4,
-100,
39,
-48,
46,
-112,
57,
9,
-88,
-14,
-90,
-122,
-12,
45,
-101,
9,
98,
102,
48,
100,
-53,
-36,
-72,
38,
-42,
15,
-89,
-106,
72,
35,
47,
-65,
-99,
62,
6,
38,
-4,
-6,
28,
31,
109,
23,
-53,
-12,
-77,
-115,
116,
-102,
9,
-25,
-125,
-79,
96,
-114,
-96,
93,
71,
123,
19,
31,
-71
] |
The opinion of the court was delivered by
Smith, J.:
This was an action on a promissory note and to foreclose a mortgage securing it. Judgment was entered for plaintiff on a judgment on the note had in an action in another county. The trial court refused to foreclose the mortgage. The plaintiff appeals from that portion of the judgment refusing to foreclose the mortgage. Certain intervenors also appeal from a portion of the judgment affecting them.
There is no dispute about many of the essential facts.
This action was filed December 4, 1934. The petition alleged the making of the note in question by the defendants, Wilbur D. Nevitt; Pearl M. Nevitt, his wife; Catherine M. Nevitt, a single woman; Oak D. Nevitt; Helene Nevitt, his wife; Frank R. Nevitt, a single man; and Zerelda W. Nevitt, a widow, who was deceased at the time the action was brought. It made the allegations necessary to plead a default in payment of the note, such as failure to pay interest and taxes, and that the note had been made to the Albright Farm Loan Company and transferred to plaintiff and that plaintiff treated the entire indebtedness as due. Judgment was asked against the defendants in the amount of $25,451.67. For a second cause of action the petition alleged that on June 11,1930, defendants owned the land in Sumner county covered by the mortgage which the action sought to foreclose; that on June 11, 1930, defendants executed the mortgage in question and that this mortgage also covered certain real estate in Cowley county, Kansas, and Kay county, Oklahoma. The petition further stated that the mortgage in question was given to secure the payment of a note for $25,000 and that this mortgage provided that on default in certain payments the mortgage should be a lien on the real estate in question. The petition further stated that the mortgage had been given to the P. H. Albright Farm Loan Company and had been assigned to plaintiff and that default had been made in three payments on the note; that the conditions of the mortgage had been broken and it was subject to foreclosure. The petition then set out certain other persons who claimed some interest in the real estate, all inferior to plaintiff’s lien.
The prayer was for the foreclosure of the mortgage and that the land be sold to satisfy it.
On January 19,1935, defendants-filed an unverified general denial by way of answer to this petition. On March 25, 1935, defendants filed an amended answer in the nature of a general denial. This answer was verified.
On the above date certain minors filed an intervening petition. These intervenors were all heirs of the original defendants. This petition alleged that the intervenors were each minor devisees of Harry B. Nevitt, deceased; that on June 1,1926, Harry Nevitt made a will whereby he disposed of all his property; that under the terms of the will a life estate was given to the brothers and the sister of testator, who survived him, and a remainder was devised to the in-tervenors ; that these brothers and sister were appointed executors of the will with a limited power to sell; that at the time of his death Harry B. Nevitt was the owner of the undivided one-sixth interest in the real estate mentioned in the petition. The petition further stated that the will spoken of was a matter of public record on June 10, ' 1930, when the mortgage in question was executed, and plaintiff had actual and constructive notice of its terms; that plaintiff caused the executors to execute a purported transfer of their interest in the property that belonged to the estate of Harry B. Nevitt to James H. Albright on the 10th day of June without any consideration being paid, and on the same day Albright transferred this undivided interest to secure the payment of their personal note; that these transfers were made with full intention on the part of all parties to circumvent the provisions of the will. The petition then alleged that each of the intervenors was alive at the time Harry B. Nevitt made his will and at the time he died, and that plaintiff had notice of this. The prayer was that the mortgage be held for naught as a lien upon the interest of the intervenors in the real estate in question.
A copy of the will was attached to the petition. It contained the following clause:
“Upon the death of the last survivor of my brothers and sister, I give, devise and bequeath all the personal property then in the hands of such last survivors, belonging to my estate, and any real estate which has not been sold, to the bodily heirs of all of my brothers and sister in equal shares, in fee simple, per capita, and not per stirpes.”
In order to understand the questions involved it now becomes necessary to set out certain proceedings from Cowley county. On December 1, 1934, three days before the filing of the action just described plaintiff in this action filed an action in Cowley county on the same note. Coupled with it was an action to foreclose the same mortgage, except that it asked only that the mortgage be foreclosed upon the land covered by it that was located in Cowley county. It should be noted that no reference was made in the Cowley county action to the various other people whose claimed liens were mentioned in the Sumner county action. Personal service was had upon defendants in that action. The defendants did not answer. January 7, 1935, judgment was taken, foreclosing the mortgage and ordering the property sold. On February 18, 1935, the property was sold and on February 19, 1935, the sale was confirmed. The property was sold for $5,000 to the plaintiff. This amount was applied on the judgment.
On December 20, 1935, defendants applied for leave to file an amended answer in this action. On January 13.1936, they filed their amended answer. In this answer they stated first a general denial. The answer further stated that the court did not have jurisdiction of the cause because the plaintiff had endeavored to split one cause of action on the note and mortgage into two causes of action. All the pleadings and the journal entry of judgment in the Cowley county action were attached to the amended answer. The prayer was that the action be dismissed.
At the trial of this action some evidence was offered and rejected. A point is made of that on this appeal, but on account of the conclusion reached on the action as a whole we shall not consider it further. The court gave the plaintiff judgment for $35,775.62, but not on the note upon which the action was brought. The journal entry recited that the note sued upon had been merged in the judgment in Cowley county and that by virtue of the exhibits attached to the answer and introduced in evidence in the case the judgment was before the court and the plaintiff should have judgment against the defendants for the sum of $35,775.62 with interest and costs. As to the mortgage which plaintiff sought to foreclose, the trial court found that it was pleaded in the action mentioned in Cowley county, and the court was without jurisdiction to order the foreclosure of the same mortgage upon real property located in Sumner county. As to the intervening petition, the trial court found that the will of Harry B. Nevitt created an estate tail in the first takers, and the entailment was cut off by a conveyance and reconveyance to defendants.
Judgment was rendered in favor of plaintiff and against Wilbur D. Nevitt, Pearl M. Nevitt, his wife, Catherine M. Nevitt, a single woman, Oak D. Nevitt, Helene M. Nevitt, his wife, and Frank R. Nevitt, a single man, in the sum of $35,775.62 and refusing to foreclose the mortgage.
The plaintiff appeals from that part of the judgment wherein the trial court refused to foreclose the mortgage on the Sumner county land. Present counsel for appellants did not present the case to the trial court. The intervening petitioners appeal from that part of the judgment wherein the court held that the will of Harry Nevitt created an estate tail in the first takers.
Plaintiff points out first that there were some parties who were necessary parties to the action to foreclose the mortgage on the Sumner county land, who were not necessary to the action to foreclose the mortgage on the Cowley county land. There were certain persons who claimed liens on the Sumner county land. Plaintiff points out that the Cowley county action did not ask a foreclosure on the Sumner county land, but only on that in Cowley county, and that the judgment rendered upon the mortgage was for foreclosure upon the land in Cowley county. Plaintiff argues that it had a right to bring an action on the note and to foreclose the mortgage all in one action or it could, if it wished, seek this relief -in two different actions.
On this question we will examine the statutes on the subject.
G. S. 1935, 60-501, provides as follows:
“Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in the next section: First — For the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom. Second — For the partition of real property. Third— For the sale of real property under a mortgage, lien or other encumbrance or chai'ge.”
G. S. 60-502 provides:
“If the real property, the subject of the action, be an entire tract, and situated in two or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract or part hereof is situated, unless it be an action to recover possession thereof; and if the property be an entire tract situated in two or more counties, an action to recover the possession thereof may be brought‘in-either of such counties; but if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions, brought in the counties where they are situated.”
G. S. 1935, 60-601, also provides:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or pther liens.”
G. S. 1935, 60-3107, provides as follows:
“In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, as well to the plaintiff as other parties to the action having liens upon the mortgage premises by mortgage or otherwise, with interest thereon, and for the sale of the property charged and the application of the proceeds, or such application may be reserved for the further order of the court; and the court shall tax the costs and expenses which may accrue in the action, apportion the same among the parties according to their respective interests, to be collected on the order of sale or sales issued thereon. When the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county shall make sale of the lands situated in the county of which he is sheriff. No real estate shall be sold for the payment of any money, or the performance of any contract or agreement in writing, in security for which it may have been pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction ordering such sale.”
It will be seen that G. S. 1935, 60-502, provides that where real estate, which is the subject matter of the action, consists of separate tracts situated in two or more' counties, the action may be brought in any county in which any tract is situated. That statute provides where the action should be brought to foreclose a mortgage covering land in different tracts, some in one county and some in another. Under the terms-of this statute, the action could have been brought in either county. This statute should be construed in this case, together with G. S. 1935, 60-3107.
It will be noted that the above statute provides that in case of a judgment being rendered in an action to enforce a mortgage where the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county shall make sale of the lands situated in the county of which he is sheriff. When these two statutes are construed together it becomes clear that action to foreclose this mortgage should have been brought in either Sumner or Cowley county, and an order of sale pursuant to the judgment should have been issued to the sheriff of each county so that he could sell the land situated in his county. Had the procedure outlined in these statutes been followed in this case the action filed in Cowley county would have referred to the Sumner county land and judgment would have been asked for and. given foreclosing the mortgage on the Sumner county land. The fact that there were some parties who claimed liens on the Sumner county land who did not claim any on the Cowley county land makes no difference. Their liens could have been litigated in the Cowley county action by proper allegation in the petition. The concluding provision in G. S. 1935, 60-601, meets that situation. It will be noted the above section provides that several causes of action may be united in one petition, but the causes of action so united must affect all the parties to the action except in actions to enforce mortgages or other liens.
Once we have concluded that the action to foreclose this mortgage on the Sumner county land could have been brought in Cowley county, we must examine the question of the effect of bringing the action in Cowley county and in it asking for a foreclosure on the Cowley county land only.
In Kaw Valley State Bank v. Thompson, 140 Kan. 726, 37 P. 2d 985, this court considered a somewhat analogous question. In that case the plaintiff had filed an action asking for judgment on a note and for foreclosure of a mortgage. The defendants defaulted. When the case came on to be heard the plaintiff stated to the court that it did not wish to press the foreclosure. Judgment was given for recovery on the note. An attempt was made to satisfy the judgment by levying on some property of defendants in another county. Later the plaintiff asked in another action that its mortgage be foreclosed. This court held that the foreclosure of the mortgage was res judicata on account of the former action in which the petition had asked for its foreclosure. The rule from Fletcher v. Kellogg, 125 Kan. 330, 263 Pac. 1048, was invoked. There this court held:
“That a lawsuit between litigants in their ordinary capacity adjudicates between them not only what they chose to litigate, but everything incidental thereto which could be litigated under the facts which constitute the cause of action.”
See, also, McMichael v. Burnett, 136 Kan. 654, 17 P. 2d 932; also, City of Council Grove v. Kansas Electric Power Co., 137 Kan. 109, 19 P. 2d 460.
In Kaw Valley State Bank v. Thompson, supra; this court said:
“If everything incidental to the cause of action — and there- was but a single cause — be properly determinable in the first judgment, it, under the authorities, is deemed a final one and subject to the objection of defendants against the relitigation of that issue or any part of it in any subsequent proceeding.” (p. 730.)
In Insurance Co. v. Carra, 101 Kan. 352, 166 Pac. 233, this court approved a judgment where an action was brought in one county to foreclose a mortgage on land in separate tracts, part situated in the county where the action was brought and part in another county.
The action in this case could have been brought in Cowley county to foreclose the mortgage on the land in that county and in Sumner county as well. A copy of the mortgage was attached to the petition. Every question necessary to be litigated with reference to the note and the mortgage on the land in both counties could have been litigated in the Cowley county action. We hold, therefore, that the question of the mortgage foreclosure was res judicata by reason of the judgment in Cowley county.
Plaintiff next points out that these two actions were filed within three days of one another and that defendants did not file their amended and supplemental answer raising the defense of plaintiff splitting its cause of action until after the expiration of the term at which the Cowley county judgment was rendered. It is also pointed out that at the proper time for filing an answer defendants in this action filed an unverified general denial. Plaintiff argues that when defendants filed their unverified denial they waived their right to raise the defense that plaintiff had split its cause of action.
This argument is not good, for the reason that plaintiff saw fit to file a reply by way of a general denial to the answer of defendants in which they raised the defense of the Cowley county proceedings. Plaintiff went to trial on the issues raised by that answer. Plaintiff urges that the question of the right of defendants to raise the defense of the Cowley county proceedings was presented to the trial court on the motion for a new trial; but the fact remains that as the issues were finally made up by the pleadings, including the reply of plaintiff, and submitted to the trial court the trial was had on the issues raised by the amended and supplemental answer of defendants and the reply of plaintiff denying the allegations of this answer. In view of this situation plaintiff cannot argue that defendants waived their right to raise the defenses pleaded in their amended and supplemental answer.
"We hold, therefore, that the trial court was correct in holding that it was without jurisdiction to foreclose the mortgage sought to be foreclosed in this action.
There remains the issue raised by the intervening petition. It will be noted that Harry B. Nevitt left a will whereby a question arises whether that will created an estate tail. If it did, then it was cut off by the conveyance of the land in question to the mortgage company and the reconveyance of it. If it did not, then the intervening petitioners own an undivided one sixth of this real estate. The will was in part as follows:
“Subject only to the payments provided in paragraph 1 above, I give, devise and bequeath to my brothers and sisters surviving me, the net income during their natural lives, of all the property of which I may die seized, real and personal; and such net income is to be divided quarterly, without anticipation among such brothers and sister, into the number of shares there are brothers, or brothers and sister, living at the time of each division; that is to say, as each of my brothers, or sister, shall die, the net income is to be divided by the number surviving until the death of the last one. And I further direct that said brothers and sister surviving me, named as executors herein, shall have a right to sell any real estate of which I may die seized, without any order of court, and invest the proceeds of such sale in good, safe securities, and the proceeds thereafter to be considered and treated as personal property and the net income from such securities to be paid as above provided; and I further enjoin upon them, and direct, that they keep such personal estate separate from the individual estates and accounts of my brothers and sister, so that said property may be at any time readily identified.
. “Upon the death of the last survivor of my brothers and sister, I give, devise and bequeath all the personal property then in the hands of such last survivor, belonging to my estate, and any real estate which has not been sold, to the bodily heirs of all of my brothers ánd sister in' equal shares, 'in fee simple, per capita, and not'per stirpes.”
The question is whether the above will created an estate tail in the brothers and sister of Harry B. Nevitt. This court considered a case somewhat analogous to this in Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884. In that case a will devised property for the use and benefit of four grandchildren of testator, during their natural life,- but provided that only the net income should be paid to thé grandchildren and at death of the last survivor of the grandchildren all the estate left in trust should be equally divided among the heirs of the grandchildren. Some of the grandchildren brought an action in which they contended 'that the will created an estate tail which they were at liberty to terminate by conveyance. This court held that the will did not create an estate tail because it did not devise any property directly to‘the grandchildren, but only provided that the income should be paid to them. It was pointed out that there was an active duty for the trustee to perform which could not be fully executed until the death of the last surviving grandchild.
This reasoning applies to this case. Here nothing was devised directly tó the brothers and . sister of the testator except the net income of the property. The will provided that the brothers and sister could sell the property, but provided that when it was sold the proceeds should be invested in securities and held intact for .the benefit of the bodily heirs of the brothers and sister. This will did not create an estate tail, but, on the other hand, was an active trust to be executed for the benefit of the intervening petitioners. See, also, Coleman v. Shoemaker, ante, p. 689, 78 P. 2d 905; also, Meyer v. Meyer, ante, p. 664, 78 P. 2d 910 (both opinions handed down this month). The conveyance to the mortgage company was of no effect.
The judgment of the trial court holding that it was without jurisdiction to foreclose the mortgage is affirmed; that part of the judgment holding that the will of Harry B. Nevitt created an estate tail is reversed. | [
-13,
108,
-80,
110,
74,
-32,
-120,
-117,
-37,
-96,
-93,
83,
-23,
66,
5,
109,
102,
45,
85,
105,
103,
-78,
23,
-55,
-46,
-13,
-15,
-35,
-72,
-3,
-28,
-105,
76,
52,
74,
-41,
-90,
-118,
-57,
92,
-50,
-121,
9,
-27,
-39,
-126,
48,
107,
80,
12,
-43,
111,
-13,
45,
60,
98,
72,
46,
-53,
41,
-48,
-71,
-66,
-116,
125,
7,
17,
101,
-98,
-59,
-62,
-86,
-112,
53,
1,
-24,
114,
38,
-106,
52,
79,
27,
8,
118,
102,
34,
-44,
-21,
40,
-120,
39,
127,
-115,
-90,
-111,
88,
98,
36,
-66,
-103,
109,
64,
15,
-2,
-17,
5,
28,
108,
4,
-54,
-106,
-109,
15,
60,
-104,
11,
-13,
-126,
32,
113,
-49,
32,
92,
102,
61,
-69,
-114,
-71
] |
The opinion of the court was delivered by
Hutchison, J.:
This appeal is from an order overruling and denying an application of the defendant, in a specific-performance action, to modify a decree rendered in that action on May 3, 1933, which was signed as a contract by both plaintiff and defendant, and contained a'provision authorizing the modification thereof under certain circumstances. The application was filed' May 12, 1937, and was denied June 23,1937.
The action for specific performance was commenced February 12, 1932, to enforce the financial part of a decree of divorce granted on February 19, 1930. The judgment rendered in the specific performance case on May 3,1933, contained a complete adjustment and set-, tlement of all alimony provisions contained in the decree of divorce • and made definite provisions for the care and maintenance of the daughter who was and still is a minor. It was not only a decree of the court, but being signed by both plaintiff and defendant, it became a contract and is referred to in the brief of appellee as a decree-contract. And because it is a contract providing for the future care and maintenance of the daughter and also for the court to retain full jurisdiction of the case with authority, upon the application of either party, to amend or alter the terms of the decree with reference to the care and maintenance of the daughter or the amount to be paid by the defendant therefor under certain circumstances, it is within the power and jurisdiction of the court in this specific-performance case to amend or alter it if in the judgment of the court the circumstances or situation of the parties justifies such amendment or alteration, wholly aside from and independent of the statutory provision authorizing changes and modifications of provisions and re- ■ quirements for the care and maintenance of minor children in divorce actions (G. S. 1935, 60-1510).
An earlier motion was filed in this specific-performance action to modify the decree of May 3, 1933, but there was one feature of difference between that motion and the one now and here under con sideration. The former motion asked for the modification of the decree or contract as to items of maintenance that were nearly all past due and unpaid, while the motion under consideration in this appeal concerns maintenance items that were not due at the time the motion was filed.
Another feature of difference in the final rulings in the district court on the two motions is that in the former the trial court regarded the ruling made as an interpretation of the decree, while in this case the denial by the trial court was of the motion or application to modify the decree.
The grounds of both motions are the same in effect except that they concern different dates. The former motion concerned the summer months, June, July and August of 1934 and 1935, while the daughter was with the defendant, her father, and her maintenance was entirely paid for by him, and the school year from September to May, inclusive, when she was attending school in Kansas City, ■wholly at the expense of her father. The motion in this appeal concerns the summer months of June, July and August of 1937, while the daughter was, by the terms of the contract, to be with her father, and also the school year of 1937-1938 when she was to attend, by agreement, Stanford University in California at the expense of her father.
There was no claim on the part of the defendant either that the daughter was not still dependent or that the defendant was not financially able to meet this expense. Appellee claims these are the only possible changes under the terms of the contract which would justify a modification thereof. We think there could be several others, but mention only one — the physical illness or complete disability of the plaintiff which would render her incapable of maintaining a home for the daughter or caring for her.
The contention of the defendant is that the absence of the daughter from the home of the plaintiff during the three summer months and the ensuing school year is such a change of circumstances and situation as to justify a modification of the terms of the decree or ■contract with reference to the care and maintenance of the daughter and the amount to be paid for such care and maintenance under the terms of the contract and decree. There was no testimony introduced on the hearing of this last motion, but from the abstract, briefs and arguments we understand that evidence as to the expense of maintaining the home by the plaintiff, which was introduced on the hearing of one of the former motions, was considered on the hearing of this motion.
The portions of the contract and decree, dated May 3, 1933, necessary for consideration in connection with the motion to modify it for the year above mentioned, namely, the summer of 1937 and the school year following, are as follows:
“That the plaintiff herein, Helen G. Hyde, shall have the custody, care and control of the minor child of the parties, namely Sarah Grace Hyde, during the school period of each year, and at all other times except such periods in the months of June, July and August in each year when the defendant, Alex Hyde, shall desire such custody and care. . . .
“For the care and maintenance of the child of the parties, namely, Sarah Grace Hyde, the defendant, Alex Hyde, shall pay to the plaintiff, Helen G. Hyde, thirty-six hundred dollars ($3,600) per annum, divided into monthly payments of three hundred dollars ($300) each; such payments may be made by the said defendant, Alex Hyde, by depositing the same to the credit of the plaintiff, Helen G. Hyde, in the First National Bank in Wichita, Kan., at any time on or'before the 5th day of each calendar month; such payments for the care, custody and maintenance of said child shall continue so long as said child shall remain dependent, and this court hereby retains full jurisdiction upon the application of either party to, if in the judgment of this court that should be done, determine whether or not, at the time of such application, such child is still dependent and whether or not the circumstances or situation of the parties to this action justify the amendment or alteration of the terms of this decree with reference to the care and maintenance of said child or the amount to be paid by the defendant therefor. . . .
“It is further by the court ordered and adjudged that the defendant, Alex Hyde, shall also pay the tuition and schooling expense of the said child, Sarah Grace Hyde; and it is ordered that said child shall not be permitted to attend any school, college or institution which is not approved by both of her parents, the parties to this action.”
The ruling of the trial court on the former motion to modify as above stated, resulted in an interpretation of the contract, and an appeal was taken to this court where it was held that the interpretation made was erroneous and the decree was held not to have been modified. (Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437.)
Inasmuch as the contention and the circumstances are the same under both motions, except in the two particulars above mentioned and described, the opinion in the former review (Hyde v. Hyde, supra) will be pertinent and substantially controlling in the review of the ruling on the last motion. On page 666 of that opinion it was said:
“Here was a daughter fourteen years of age at the time the decree in question was entered, of well-to-do parents, no doubt having friends among the same class of people. It costs money to purchase or rent, furnish and maintain a home such as both of the parties apparently wanted this daughter to have. The fact that she was absent and with her father a few days or a few weeks in the summer might not decrease to any great extent the yearly expense of furnishing and maintaining such a home. Perhaps realizing that, the' parties made no provision in their agreement, and the court made none in its decree, for any reduction of payments by reason thereof. The parties also looked forward to the time when they might want their daughter to attend a private school, or a special school of some character. The parties realized that the sum to be paid for the maintenance of the child would not pay the expense of such a school, so they agreed and the court decreed, that defendant ‘shall also pay the tuition and schooling expense’ of the child. The parties evidently contemplated that even though the daughter were in school a home for her should be maintained by the mother where she could spend as much time as possible and where she could bring her friends. It is an inaccurate interpretation of the decree to say that the amount, S3,600, to be paid, at $300 per month, was to be' reduced by any of those matters.”
While the conclusion and decision in the former case was that the interpretation was erroneous, it is a necessary and positive conclusion from the language used in the opinion that the absence of the daughter from the home during the summer and while at school was not, in the minds of the parties when making the contract or of the court when entering it as a decree, considered such a change in the circumstances or situation of the parties as to justify a modification of the contract and decree. The district court in the journal entry ruling on this motion to modify the contract and decree, after discussing the question involved both pro and con, decided to overrule and deny the motion. We think this absence from home was not such a change as to justify a modification of the contract or decree.
The case of Davis v. Davis, 145 Kan. 282, 65 P. 2d 562, is cited and discussed, but we think it is not applicable to the question here involved where the divorce feature is eliminated from the case.
The judgment is affirmed. | [
-16,
-8,
-11,
108,
-54,
96,
-54,
-101,
121,
-93,
-89,
-45,
-85,
-14,
20,
121,
-1,
105,
80,
99,
-41,
-77,
6,
-64,
-10,
-13,
-31,
93,
-73,
77,
118,
87,
76,
32,
74,
-43,
-26,
-38,
-63,
84,
-114,
35,
25,
-23,
-39,
2,
54,
127,
18,
31,
113,
-49,
-13,
44,
28,
-42,
108,
44,
-39,
56,
-39,
-72,
-65,
-115,
127,
4,
-79,
20,
-100,
-123,
-48,
50,
-104,
57,
0,
96,
50,
-74,
-42,
116,
111,
59,
32,
114,
98,
1,
100,
-17,
-36,
-104,
102,
94,
-115,
-89,
-39,
88,
40,
67,
-90,
-68,
116,
16,
-121,
126,
-1,
-99,
25,
-28,
2,
-113,
-44,
-79,
-123,
112,
24,
10,
-30,
-93,
16,
116,
-24,
-96,
92,
70,
59,
-109,
-90,
-104
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action by the administrator of the estate of Clara M. Fordyce, who died November 20, 1929, to recover on two promissory notes given to her by Foster H. Fordyce, who died May 2,1928. From an adverse judgment the administrator appeals.
There is no dispute as to the facts out of which the controversy arose. Isaac M. Fordyce, a resident of Parsons, Kan., and the owner of lot 25, block 26, and lot 1, block 11, in the city of Parsons, died in 1913, leaving a will which was duly admitted to probate, in which he gave to his wife, Clara M. Fordyce, a life estate in the above property, and of the remainder an undivided four-ninths interest to Foster H. Fordyce, an undivided four-ninths interest to Irene For-dyce and the remaining one ninth in trust for certain beneficiaries. In 1925 Foster H. Fordyce was married. His wife’s father advanced him $3,800 in consideration of his agreement to execute a will leaving his wife all of his property and the delivery to his wife of a transfer and conveyance of all his interest in the real estate left him by Isaac M. Fordyce. He made a will dated June 28, 1926, in which his wife, Bessie Fordyce, was sole beneficiary and executrix. Later he made the conveyance, which, for our purposes, reads:
“To Whom [It] May Concern: “Toledo, Ohio, Apr. 29, 1927.
“I owe my wife Bessie Fordyce S3,800 and accrued interest from date and do hereby assign and set over without resign all interests in properties and real estates left me by Isaac M. Fordyce, deceased, of Parsons, Kansas, to said Bessie Fordyce. (Signed) Foster H. Fordyce.
Witness: (Signed) J. Gawrys”
Under date of May 31, 1927, Foster H. Fordyce delivered to Mrs. Clara Fordyce his demand note for $3,060. On the back of the note was an endorsement that the note covered all of his indebtedness to her and that it was payable at the time of her demise only or as near after as possible. Later, and on April 6,1928, he delivered her another note due in one year for $405. On May 2, 1928, Foster H. Fordyce died. His will was duly admitted in Missouri where he lived, and in September, 1930, was made a matter of record in the probate court in Labette county, Kansas. On November 20, 1929, Clara M. Fordyce died, and her will was duly admitted to probate in Labette county, and H. A. Bryant was appointed as executor. Such other facts as are pertinent will be mentioned later. On June 19, 1934, the executor of the estate of Clara M. Fordyce brought an action to recover on the two notes given by Foster H. Fordyce. He alleged the death of Foster H. Fordyce on May 2,1928, and his non-residence in Kansas and his ownership of the interest in the above-described real estate, and that he had no other property in Labette county, Kansas; that Bessie Fordyce was executor of his estate and the sole beneficiary under his will; that she had remarried and her name was Bessie Fordyce Armstrong, and that she was a nonresident of Kansas. The prayer of the petition was for judgment on the notes and for an order of attachment on defendant’s interest in the real estate. On the same day the petition was filed, an order of attachment issued and thereafter the lands were attached and publication notice was given as provided by statute.
Bessie Fordyce Armstrong answered, making some admissions about matters not in dispute, denying specifically that she was the executrix of the estate of Foster H. Fordyce, and denying generally. She alleged affirmatively that plaintiff’s claim was barred by the statute of limitations, and in detail alleged the facts with reference to the advancement by her to her then husband, Foster H. Fordyce, of the $3,800 and the conveyance of his interest in the above-described real estate to her; the death of Foster H. Fordyce; that Clara M. Fordyce was notified thereof; that his will was admitted to probate in St. Louis, Mo., but no administration was had, as he owned no personal property and owed no debts; that Clara M. Fordyce made no demand for payment of any indebtedness; that such sums as Clara M. Fordyce paid to Foster H. Fordyce were as advances against his interest in her estate, a copy of her will being attached as an exhibit; that immediately after the death of Clara M. Fordyce she claimed her right of possession in the real estate and filed her petition for partition against Irene Springer Fordyce and the executor of the estate of Issac M. Fordyce, as result of which she and Irene Springer Fordyce purchased the real estate, and they have since been the owners and in possession thereof. Other affirmative allegations need not be noted. By way of cross petition, she alleged that Clara M. Fordyce failed to pay certain taxes and that plaintiff, as agent of the owners of the real estate, used funds of the defendant in the amount of $358.52 to pay taxes which were an obligation of Clara M. Fordyce and payable from her estate. She prayed judgment for that amount, with interest from November 20, 1929. The plaintiff filed a general reply. On March 31, 1937, the court rendered a judgment in favor of the defendants. Plaintiff filed a motion for a new trial, and while it was pending an affidavit was filed by Carl V. Rice that Bessie Fordyee Armstrong had died intestate on March 30, 1937, and he had been appointed administrator of her estate. On June 15, 1937, the court vacated the judgment rendered and revived the cause in the name of the administrator, who filed a supplemental cross petition with reference to the taxes, as above mentioned. The plaintiff filed a general reply, and by stipulation the cause was submitted on the record previously made. On July 9, 1937, the trial court found all issues in favor of Carl V. Rice, administrator of the estate of Bessie Fordyee Armstrong, deceased, and against the plaintiff, and on the cross petition found the administrator should recover $522.74. Judgment was entered accordingly, and the attachment of real estate was vacated and set aside. Plaintiff’s motion for a new trial was denied, and he appeals.
The trial court made no findings of fact nor conclusions of law, and we do not know on just which of the several defenses alleged it grounded its decision.
Appellant directs our attention to a number of our decisions with reference to whether his claim was barred by the statute of limitations, but we do not think it necessary to consider that asserted defense nor whether it was good. As we view the matter, insofar as the plaintiff’s claims on the notes are concerned, it may be conceded for purposes of discussion the notes are unpaid, and not barred by any statute of limitations or of nonclaim. But that does not determine that the real estate may be appropriated to the payment thereof. No one had any liability on the notes except Foster H. Fordyee and no property may be appropriated for the payment thereof except property belonging to him. And so we inquire whether the document quoted above was good as a conveyance between Foster H. Fordyee and his wife. There is and can be here no claim that it was made in fraud of creditors, nor is there any claim that Clara M. Fordyee loaned any moneys to Foster H. Fordyee on any assumption he still owned the interest in the real estate. Her will, which has been referred to but not quoted, indicates an intention that his debt shall be charged against the estate therein devised to him. A deed signed by the grantor, even though unacknowledged, conveys the property described as against the grantor and those claiming under him (Simpson v. Mundee & Brown, 3 Kan. 172); the total want of an acknowledgment does not affect the validity of a deed (Gray v. Ulrich, 8 Kan. 112; Clark v. Akers, 16 Kan. 166, 174), and where execution of a deed is proved it is immaterial whether the deed was acknowledged, as an unacknowledged deed passes title equally with one duly acknowledged. (Mo. Pac. Rly. Co. v. Houseman, 41 Kan. 300, 21 Pac. 284. See, also, Heil v. Redden, 45 Kan. 562, 26 Pac. 2; Heaton v. Bank, 59 Kan. 281, 289, 52 Pac. 876; Mathewson, Adm’r, v. Richards, 114 Kan. 500, 503, 220 Pac. 185; and Brinkman v. Empire Gas & Fuel Co., 127 Kan. 551, 274 Pac. 277.) Nor can any serious complaint be made concerning the operative words of conveyance used, i. e., “assign and set over,” for they indicate an intention by the grantor to transfer to the grantee. It is not necessary that technical words be used (Knutson v. Hederstedt, 125 Kan. 312, 264 Pac. 41; 18 C. J. 178; 8 R. C. L. 936). Neither can it be said the description of the conveyance was not sufficient, for it referred to all the real estate left the grantor by Isaac M. Fordyce, of Parsons, Kan. As the record shows, his will left Foster H. Fordyce a definite interest in specifically described real estate. The description is not ambiguous, but if it were, evidence to explain the ambiguity and identify the land intended to be conveyed is admissible. (Riley v. Foster, 95 Kan. 213, 148 Pac. 246.) Sufficiency of description in a tax deed was involved in Herod v. Carter, 81 Kan. 236, 239, 106 Pac. 32, and it was there said:
“As between grantor and grantee in an ordinary conveyance it is not essential that a description shall be so particular and complete that a resort to extrinsic evidence shall be unnecessary. It has been said 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.’ (D. M. & A. Rly. Co. v. Lockwood, 54 Kan. 586, 591. See, also, Seaton v. Hixon, 35 Kan. 663; Hollis v. Burgess, 37 Kan. 487; Abercrombie v. Simmons, 71 Kan. 538.) For the purpose of applying the defective description and identifying the property conveyed the court may look to other facts and circumstances suggested by the description.” (p. 239.)
And see Tucker v. Allen, 16 Kan. 312, syl. ¶ 5, and Powers v. Scharling, 64 Kan. 339, syl. ¶ 3, 67 Pac. 820, on the same matter. There is no question of identity of the grantee nor that the instrument of conveyance was not made and delivered. We are of opinion that the conveyance from Foster H. Fordyce to his wife was good.
Neither is there any dispute that since the death of the life tenant Bessie Fordyce Armstrong, as grantee in the above deed, was not in possession of her interest in the above-described real estate.
Unless Foster H. Fordyce was the owner of the real estate at the time of his death, it could not be appropriated to the payment of claims against his estate, and where the real estate had been conveyed by him long prior to his death,‘and prior to the time the claimed debt was incurred, it was not subject to attachment in an action brought after his death. In Dearborn v. Vaughn, 46 Kan. 506, 26 Pac. 1038, the syllabus recites:
“Where real estate attached in a civil action as the property of the defendant does not belong to him, and he has no title, estate or interest therein, such property is not subject to the payment of the defendant’s debts.” (Syl. U 1.)
In Julian v. Oil Co., 83 Kan. 440, 111 Pac. 445, it was said:
“An attachment creditor acquires no greater right in the property seized than the defendant in the attachment owned. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152; Bank v. Fleming, 63 Kan. 139. See, also, Johnson v. Brant, 38 Kan. 754.) The attachment bound the interest of the defendant only, whether that interest was shown by the record or not. The attaching creditor is not a purchaser for value buying upon the strength of a record title. (Markley. v. Investment Co., 67 Kan. 535.)” (p. 440.)
And in the more recent case of Federal Trust Co. v. Ireland, 132 Kan. 615, 296 Pac. 704, where some of our decisions are reviewed, it was stated:
“It is well settled that an attachment execution or judgment lien does not attach to or affect an interest in property beyond what the debtor owns.” (p. 616.)
It follows the trial court properly set aside the attachment.
It is also to be observed that the notes involved were made by Foster H. Fordyce and no other person. Although there was an allegation that Bessie Fordyce was the executor of his estate, that allegation was denied, and the record shows that she was not. There was lack of any party to the suit against whom any judgment could be rendered as to any liability there may have been on the notes.
Appellant contends that the judgment against him to recover for moneys belonging to Bessie Fordyce Armstrong and used by him to pay taxes, which were an obligation due from Clara M. Fordyce, should be reversed for the reason the claim so made was not the proper basis of a counterclaim or setoff under the code. The record shows that defendant, by way of cross petition, alleged the facts about the payment of taxes. Plaintiff filed no motion with respect to the claim being properly pleaded, nor did his reply raise any such claim. The agreed statement of facts covered the matter. So far as the record shows, not until the second motion for a new trial was there any question raised as to defendant’s right to re cover on the cross petition. In any event, it appears the trial court properly had the matter before it. Under G. S. 1935, 60-.710, it is provided:
“The defendant may set forth in his answer as many grounds of defense, counterclaim, setoff and for relief as he may have,” etc.
and in G. S. 1935, 60-711, that:
“The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof,” etc.
Here the gist of the action was to establish claims against the estate of Foster H. Fordyce and to appropriate property belonging to his grantee for payment thereof. In that circumstance, she was entitled to show any defense she had, and to recover such relief as she may have been entitled to because of plaintiff’s use of her moneys (rents from the specific real estate) to pay taxes on that real estate which concededly should have been paid by plaintiff’s intestate. To say the least, the relief granted was properly involved in a complete determination of the action. (See Solomon v. Lampl, 135 Kan. 469, 475,11 P. 2d 1028.) If there was any error, it would be fruitless to reverse this part of the judgment, and compel another trial where the facts are undisputed.
The judgment of the trial court is affirmed. | [
-10,
108,
76,
93,
26,
96,
42,
26,
66,
98,
39,
83,
-23,
95,
20,
111,
102,
13,
81,
107,
-29,
-77,
23,
9,
-46,
-14,
-13,
-99,
-79,
-35,
-9,
-57,
77,
48,
10,
-107,
-62,
-126,
-59,
90,
-116,
-124,
-118,
-11,
-39,
0,
48,
43,
86,
76,
81,
14,
-9,
41,
61,
71,
104,
46,
-5,
40,
-32,
-79,
-117,
-123,
91,
22,
17,
4,
-106,
-121,
-56,
42,
-104,
85,
9,
-23,
59,
-74,
-122,
116,
79,
-119,
41,
102,
99,
17,
-127,
-19,
-80,
-120,
14,
-14,
21,
-90,
-10,
72,
98,
44,
-68,
-103,
117,
16,
7,
-8,
-13,
-99,
29,
100,
9,
-117,
-42,
-79,
41,
126,
-104,
-110,
-13,
-127,
32,
113,
-51,
34,
92,
39,
122,
-101,
-121,
-110
] |
The opinion of the court was delivered by
DawsoN, C. J.:
This was an action to recover $2,500 as the alleged value of thirty shares of installment stock in a building and loan association which were canceled when the mortgage loan to which the stock was incidental was paid off.
The pertinent facts must be stated at some length. Early in January, 1926, plaintiff Myers owned a house and a parcel of ground in Lyons. About that time (the dates in the abstract are confusing) he borrowed $2,500 from the Railroad Building, Loan and Savings Association, of Newton; and in accordance with the usual formalities for procuring a loan of money from that sort of institution he was required to subscribe for thirty shares of installment stock, and to execute a promissory note for the desired amount, and to execute a mortgage on his Lyons property to secure its payment.
The installment stock, designated “Series G,” was never formally issued, but an entry was made in the books of the loan association that the shares stood in his name. At their inception these shares had no actual value, but they had a potentially growing value as contemplated monthly installments should be paid. These installments were so computed that if 120 of them were regularly and timely paid the thirty shares of stock would attain their ultimate par value at the same time the mortgage indebtedness would fall due, and by appropriate book entries the stock would then be canceled and the mortgage indebtedness thereby satisfied.
For some two years plaintiff Myers paid the monthly installments on his loan, but in the meantime he had gotten into debt to defendant Isern in the sum of $2,313.33. On May 11, 1928, apparently to secure or satisfy that indebtedness, Myers executed a deed conveying the Lyons property to Isern, and about the same time they made a written contract which may be summarized thus:
Myers was' to continue to pay the dues, interest and installments on the mortgage indebtedness according to the instruments pertaining thereto. He also agreed to pay the taxes, and keep the property insured and in good repair. Isern agreed that at any time within five years he would reconvey the property to Myers upon receipt of the $2,313.33 with six percent interest. It was also agreed that if Myers breached the contract in any particular Isern would be entitled to immediate possession — from which provision it can be inferred that possession of the property was not delivered to Isern when he received the deed thereto.
Sometime after this transaction and agreement Myers became delinquent in his payments to the loan company, thus breaching his contract with Isern of May, 1928. The last payment by Myers occurred in November, 1930.
On September 17, 1932, Meyers and Isern entered into another written contract, in which Isern was recognized as the owner of the property subject to the loan association mortgage, and Isern agreed to lease the premises to Myers for four years at $35 per month payable in advance. The agreement stated that Myers was in possession at that time and that he could continue to enjoy possession so long as he complied with its terms. It was also agreed that Isern would convey the property to Myers, subject to the mortgage, at any time within four years if Myers should pay him $2,400— apparently a return of the consideration Isern had given for Myers’ equity in the property. It was further agreed that on Myers’ failure to pay the monthly rent as it became due, the agreement should terminate and Isern would be entitled to immediate possession. Another provision of the agreement, which may become important as we proceed, reads:
“It is further agreed that this agreement and lease supersedes and takes place of all other and prior agreements, contracts and instruments heretofore entered into between the parties hereunto.”
This agreement was shortly thereafter breached, and a forcible detainer action was begun which found its way into the district court and culminated on September 8, 1933, in a judgment in favor of Isern for possession and for $300 due him as rent.
From time to time, whenever Myers made default in his payments of dues, interest and installments to the loan association, Isern paid them, as he also did the later installments up to and including the 112th, which he paid on February 20,1935. At all times Myers was aware of these facts. Indeed, it was one of Myers’ contentions in this lawsuit, as it still is, that Isern had agreed to assume and pay the mortgage indebtedness to the loan company according to its terms.
About February 25, 1935, Isern signified to the loan company his desire to pay off the mortgage loan. Accordingly, the then paid-up value of the stock plus the dividends credited thereto which aggregated $2,400, together with an additional cash payment of $100 by Isern, was applied to the mortgage indebtedness, which thereby extinguished it. Whether it likewise extinguished the thirty installment shares which were brought into nominal existence at the time the loan was made as an incident thereto and which were intended to be extinguished with the mortgage indebtedness at its maturity is the gist of this lawsuit.
Plaintiff sought to hold both Isern and the loan association for $2,500 as the alleged value of the shares. The trial court held that the shares were merely incidental to the mortgage loan transaction, that when the mortgage was paid the shares were extinguished as contemplated from their inception, and gave judgment for defendants.
Plaintiff appeals, assigning errors in the trial court’s findings of fact and conclusions of law.
He first complains of the trial court’s refusal to find that Isern had agreed to pay the mortgage, and directs our attention to certain language in the contract of September 17,1932, where it recites that Isern is the owner of the Lyons property subject to a first mortgage for $2,500 “which. . . was assumed and to be paid” by Isern “in accordance with the deed of conveyance of said property to him.” Looking into the deed, however, there is no such assumption stated nor any language susceptible of such a construction. On the contrary, the written contemporaneous agreement of the parties, dated August 13,1928, expressly provided that Myers, grantor of the deed, agreed “to pay all the dues, interest or installments becoming due on said mortgage according to the terms thereof.” Moreover, the agreement of September 17, 1932, provided that whatever may have been the prior agreements of Myers and Isern, they were all to be superseded by the contract of that date, and it contained no such obligation on the part of Isern. From all the evidence, including the pertinent documents as well as the circumstances, the trial court concluded that the recital in the agreement of 1932 was merely a mistake, as it certainly was insofar as it stated that the deed from Myers to Isern provided that the grantee should pay the mortgage. No substantial error is made to appear on this point. (In re Estate of Dennis, 146 Kan. 121, 126, 68 P. 2d 1083.)
Counsel for plaintiff remind us that a grantee’s agreement to assume a mortgage may be oral and wholly outside the conveyance. True, but the quoted provision of the written agreement of 1932 disposed of any such oral, extraneous agreement, if there had been one; so the point now sought to be made on the theory of an oral extraneous agreement cannot be sustained.
An insistent argument is also based on the proposition that the installment shares had an altogether independent status until the maturity of the mortgage debt, and that the exact time of such maturity never did arrive because Isern decided to pay the last few installments — apparently the 113th to 120th, inclusive — before they were due, so that, according to plaintiff’s reasoning, Isern and the loan company had no right to terminate the independent existence of the shares by liquidating the mortgage indebtedness with them and their pertinent dividends.
Broadly viewed, we think there is no merit in this contention; and if we had any doubt about it, we would be shocked at the grossly inequitable consequence which plaintiff would deduce therefrom. The trial court correctly found that taking into account the $2,313.33 which Myers had owed Isern for ten years or longer, together with the interest thereon, and the dues, interest and installments which Isern had to pay to the loan company to protect himself, since Myers repeatedly breached his obligation to pay, Isern’s total investment in the Lyons property was between $5,400 and $5,500 — a good round sum, indeed, and apparently more than the property was worth.
Plaintiff uses hard words like “conspiracy,” “collusive appropriation” and “concealment of facts,” to characterize what he conceives to be the attitude of his adversaries in this lawsuit. We think those hard words are ill-advised. Plaintiff says he received no benefit from this transaction or series of transactions running over a period of ten years. No benefit? Did he not get $2,500 of the loan company’s money, of which he but haltingly and irregularly repaid but a relatively small amount? Did he not receive $2,313.33 of Isern’s money many years ago, and the only consideration Isern has gotten for that sum besides this lawsuit was whatever equity there was in the Lyons property above the mortgage? There is no merit in the contention that plaintiff received no benefit from his ten years’ dealings with Isern, as shown by this record.
The case of Prudential Bldg. & L. Ass’n v. Greenlee, 141 Kan. 667, 43 P. 2d 217, is cited. We shall not take space to review that well-considered case further than to say that it is readily distinguishable from this case by its facts. It is not an authority on which plaintiff’s present effort to obtain $2,500 of defendants’ moneys can be successfully predicated.
The trouble to which Isern has been put in this lawsuit grows out of the fact that when the Lyons property was conveyed to him in 1928, the provision of the bylaws for the transfer of the installment stock was not complied with. But in 1928, when the deed and agreement were made, it was understood and intended that Myers should continue to pay the dues, interest and installments of the mortgage debt, and that Myers was to pay his indebtedness of $2,313.33 to Isern within five years, and the property was then to be reconveyed to him — which would be still several years before the mortgage indebtedness fell due. It is therefore quite easy to understand why the formality of transferring the stock to Isern was omitted. If Myers performed his agreement those shares would have to be retransferred to him. We agree with the trial court’s finding No. 8 and conclusion No. 5, which, in effect, held that Isern was the equitable owner of the installment shares in February, 1935, and had a right to have them applied to the extinction of the mortgage indebtedness.
In making the loan association a party defendant and seeking a recovery against it, we cannot discern that plaintiff has even a talking point against that institution. In answer to specific inquiries and letters of Myers, the loan company wrote him as follows:
“Warren J. Myers, ... .... jan. iy, 1U34.
“We have your letter of the 17th inquiring as to the manner of settlement of mortgages under certain conditions which you outline.
“In the repayment of loans we require that the collateral shares be canceled and their value applied toward the payment of the debt. . .
Everett McCann, Secretary.”
On March 21, 1934, Myers wrote to the loan association:
“I am perfectly willing that this be paid provided he (Isern) makes full payment in cash and no attempt is made to deduct the collateral against my rights, and ownership of the stock pledged.”
To this the loan association replied:
“W. J. Myers, .... “March 27, 1934.
“We have your letter of the 21st referring to your loan account 131. We may say in reply that payments on this loan have, to our knowledge, been made by Mr. E. D. Isern, of Ellinwood, Kansas, over quite a long period, and should he offer payment in full with a balance due under this account, we would feel obliged to accept payment, our loans being repayable at any time at balances, allowing credit for the cash value of collateral shares.
.... Everett McCann, Secretary.”
The loan company’s position was clearly stated, and was perfectly correct from a strictly legal standpoint. The installment stock constituted a pledge as well as an assignment, not a mortgage which needed to be foreclosed. (G. S. 1935, 17-1011,17-1014.) It was subject to disposition under the law of pledges, if all the instruments evidencing the mortgage debt had not clearly provided for their disposition. In Hunter v. Hamilton, 52 Kan. 195, 34 Pac. 782, it was said:
“The remedy of the pledgee, and the disposition to be made of a pledge of commercial paper upon default or other contingency, may be regulated by the agreement of the parties, where such agreement is not fraudulent, or against statute or public policy.” (Syl.)
See, also, Bank v. Bank, 80 Kan. 205, 101 Pac. 1005; and Bailey v. Pierce, 123 Kan. 359, 255 Pac. 37.
In Thornton and Blackledge on Building and Loan Associations, section 169, it is said:
“Whatever may be said with reference to a payment on his stock not being a payment on the borrower’s indebtedness to the association, it is quite clear that he has a right, under his contract with the association, to have such payments applied to the extinguishment of his indebtedness, pro tanto; and the association, if it hold a lien on such share, has the right to make the same application. This right, of course, extends to his assignee in insolvency . . . If the stock has been pledged to the association as a collateral security for the debt, as is almost universally the case, the association has the right to apply the payments thereon as pro tanto payments upon the borrower’s debt.”
Were the loan company’s position less tenable than it is, plaintiff’s protracted inaction — “standing by” — following the correspondence quoted above, would subject him to the bar of equitable es-toppel against it. The loan association had plainly told him that if Isern signified his desire to pay off the loan, it would feel bound to apply the shares to its extinction. Plaintiff took no effective step to prevent that contemplated and avowed course. In 21 C. J. 1152 it is said:
“Where a person stands by and sees another about to commit or in the course of committing an act infringing upon his rights and fails to assert his title or right, he will be estopped afterward to assert it.”
See, also, 10 R. C. L. '692-694.
It is useless to discuss'this case at further length. No error of law or miscarriage of justice is made to appear, and the judgment is therefore affirmed. | [
-16,
122,
-72,
-82,
-102,
96,
42,
-104,
88,
-92,
-75,
-33,
-19,
66,
4,
109,
-44,
57,
113,
121,
-43,
-77,
22,
-93,
-46,
-77,
-37,
-35,
-79,
77,
-12,
-43,
76,
48,
-54,
-67,
102,
-128,
67,
60,
14,
-115,
-72,
69,
-35,
80,
52,
59,
64,
78,
17,
-6,
-13,
38,
29,
79,
73,
40,
-21,
57,
-128,
-7,
-70,
-123,
111,
23,
-96,
100,
-108,
3,
-24,
30,
16,
53,
33,
-23,
115,
-92,
22,
116,
75,
-119,
12,
98,
102,
0,
97,
-17,
-4,
-104,
46,
-10,
-99,
-90,
-16,
88,
3,
41,
-68,
-99,
108,
6,
23,
-12,
-20,
-123,
88,
108,
7,
-113,
-42,
-62,
-99,
124,
-104,
3,
-2,
-125,
48,
112,
-114,
-68,
92,
119,
122,
19,
15,
-35
] |
The opinion of the court was delivered by
Dawson, C. J.:
These consolidated appeals are chiefly a sequel to Wilson v. Stephenson, 143 Kan. 91, 53 P. 2d 874, in which the administrator de bonis non recovered judgment against the defendant Huldah Stephenson for $3,039.42 which had come into her hands as administratrix of the estate of her husband.
Following our affirmance of the judgment in that case, execution issued on 160 acres of Sumner county land standing in the name of Huldah, to satisfy it. The land was sold and the sale confirmed.
After that happened the first of these cases, No. 33,463, was begun by two daughters of Huldah, plaintiffs herein, who alleged that the land which had stood on the record in their mother’s name for many years was in fact theirs, under a contract between them and their mother dated in 1928, which contract was followed by a warranty deed dated in 1932, but which was not recorded until 1935.
In their petition the plaintiffs, Mildred and Emma Stephenson, prayed that the confirmation be set aside, likewise the sale, and that the execution be quashed, and that any further levy or execution against the property be enjoined.
After a lengthy trial the district court made findings of fact and conclusions of law to the effect that plaintiffs were not the owners of the property at the time the judgment was rendered against Huldah Stephenson, that the agreement and deed under which plaintiffs claimed the property were fraudulent and void, and that the deed was without consideration and was given for the purpose of hindering, delaying and defrauding the creditors of Huldah Stephenson. Case No. 33,463 is an appeal to this court from that judgment.
The second of these appeals had its inception in the fact that in 1932 Huldah Stephenson owned 25 shares in the Diamond National Bank, of Pittsburgh, Pa. On November 14 of that year that bank became insolvent and passed into the control of the comptroller of the currency, and a receiver was appointed to liquidate it. On September 19, 1934, that receiver filed an action in the district court of Sumner county against Huldah Stephenson to recover judgment on her double liability as stockholder. Judgment was entered in favor of the receiver on August 14,1935, and execution was issued thereon. To satisfy it, the sheriff, J. L. Harris, levied on the quarter section of land in controversy; and thereupon the plaintiffs, Mildred and Emma Stephenson, brought an action alleging their ownership of the property and praying that the sheriff be enjoined from selling it to satisfy their mother’s judgment indebtedness to the receiver of the Pittsburgh bank. The receiver was made a party to that action, and on the issues joined the trial court held, as it did in No. 33,463, that plaintiffs were not the owners of the land, that their mother, Huldah, was its owner at the time the receiver’s judgment was entered against her, and at the time the execution levy was made thereon to satisfy Huldah’s judgment creditors. The second of these consolidated appeals, No. 33,464, is from that judgment.
Counsel for appellants present and argue certain assignments of error which will be considered in the order they appear in their brief.
In the trial court it was stipulated that the evidence adduced in case No. 33,463 should be considered in case No. 33,464. On all material matters where the evidence in one case was not germane to the other, the controlling facts are largely matters of record, and none of serious dispute.
The first error assigned is based on a finding of the trial court which reads:
“The court finds that Huldah Stephenson, from the beginning of the administration proceedings, was attempting to defraud the creditors of her deceased husband out of the possibility of obtaining any substantial payment of their claims and that the daughters knew of this and aided her.”
Appellants contend that "this is an arbitrary finding not supported by ... a single inference that could be legitimately drawn.” To this contention this court cannot assent. The record is long, but it has been diligently perused; and it fairly justifies an inference that a policy of pretended shifting of title to property between certain members of this Stephenson family to hinder and delay their creditors had been in vogue for many years. Certain written evidence adduced by defendant for another purpose, if accorded any credence whatever, tended to prove that this practice began as early as 1916, when C. N. Stephenson, 13 years before his death, signed a paper purporting to turn over all his property to his wife, Huldah, for which she was “to take care of me as long as I live.” And one of these plaintiffs signed that paper as a witness. The evidence tended, however, to show that C. N. Stephenson continued not only to care-for himself but also to manage the property in controversy for another dozen years after that ostensible instrument transferring his property was executed — if its date was entitled to any credence, a question which concerned the trial court, not this court. That paper never came to light until Huldah Stephenson was cited to appear in the probate court in February, 1931, to make a true report of the assets of the estate of C. N. Stephenson. And although Mildred Stephenson had witnessed that purported transfer of'all her father’s property to her mother in 1916, she testified in this case that neither before nor after her father’s death did she know of any property owned by her mother except the home place, which was not and is not involved herein.
The basis of the plaintiffs’ claim to the ownership of the quarter section subjected to levy and execution as the property of Huldah was a secret oral contract (afterwards reduced to writing), unknown even to other members of the immediate family except one brother who resided with his mother and the two sisters, Mildred and Emma, appellants herein. That contract, when reduced to writing, bore the date of January 7, 1928, and recited in substance that whereas Mildred and Emma had for some time past attained their majority, and that at their mother’s insistence and request they had agreed not to marry during her lifetime and to stay at home with her and render her “care, attention, love, kindness and affection beyond that rendered ordinarily by daughters,” in consideration of which the mother agreed to convey to them the 160 acres of land now in controversy, and that she would deliver to them a deed to the property on their demand.
The evidence to which the trial court gave credence tended to show that in fact no lawful consideration passed from appellants to Huldah Stephenson in pursuance of their purported agreement. The parties lived together as they had been accustomed to do; they kept a common household fund to which the income of the land contributed as it had done prior to the agreement; and there was no change of possession nor change of exercise of ownership and dominion of the land on account of that agreement.
The deed purporting to convey the land to plaintiffs was apparently dated and acknowledged before a notary on November 23, 1932 — nine days after the failure of the Pittsburgh bank in which Huldah was a stockholder. Touching its execution at that time, one of the plaintiffs, Emma Stephenson, testified:
“As to whether I knew of the Diamond Bank in Pennsylvania failing in November, 1932, I don’t know whether that was the time I knew it or not. Immediately after that we discussed the failing of the bank . . . Naturally, we had the deed made, to make it safer.”
This deed was held off the record, and no one except the mother, the i laintiffs and one brother, knew of its existence until about Marca 25, 1935, when it was recorded. Ere then the property had been levied upon and sold on execution to satisfy the judgment in Wilson v. Stephenson, No. 32,521, supra, and that sale had been confrmed, and the property also had been levied on to satisfy the judgment in favor of the receiver of the Pittsburgh bank. The foregoing are merely a few of the significant features of the evidence which supported the criticized finding of the trial court. There is a well-established rule of law that conveyances and transfers of property from one member of a family to another are subject to stricter scrutiny as to their bona fides than between strangers, where the rights of creditors are, or may be, thwarted thereby. (Hardcastle v. Hardcastle, 131 Kan. 319, 291 Pac. 757.) The law books are laden with decisions to this effect. In Hansen v. First Nat. Bank of Dunlap, 197 Ia. 1101, 198 N. W. 505, the action was to quiet the title to certain real estate held by plaintiff by a deed from her husband on the same date on which an execution had been issued to subject the property to satisfy a judgment in favor of the defendant-bank. Plaintiff prevailed in the court below, but the supreme court reversed the judgment, saying — ■
"Although the mere relationship between the parties to a contract does not por se constitute a badge of fraud, courts sense the obligation to scrutinize closely transactions between relatives when a creditor’s interests are involved. Therefore, in dealing with this class of testimony, we necessarily, and perhaps unconsciously, give weight to it in the light of experience and are influenced by the accordance of the evidence offered with facts within the realm of human conduct and experience. The' circumstances surrounding the impeached transaction are mute witnesses in the case, and usually are vitally forceful and probatively cogent. We think in terms of their probability, and in the last analysis, the weight to be given the evidence rests, as Greenleaf said, 'upon our faith in human testimony, as sanctioned by experience.’ ” (p. 1103.)
In a similar case, Barks v. Kleyne, 198 Ia. 793, 200 N. W. 439, the court said:
“Although blood relationship is not per se a badge of fraud, it strengthens the inferences that arise' from circumstances; and whenever this confidential relation exists, the parties are held to a fuller and stricter proof of the consideration and the fairness of the transaction.” (p. 799.)
In Miller v. Correll, 97 W. Va. 215, 124 S. E. 683, the rule is thus stated:
“A conveyance of land between near relatives is not a badge of fraud when such conveyance is attacked by creditors, though it may require less proof to show fraud than where such relationship does not exist.” (Syl. IT 2.)
In Williams v. Ellington, 233 Ala. 638, 172 So. 903, the suit was a creditor’^- bill which attacked as fraudulent and void a conveyance of real estate from a husband to his wife and children. In reversing the judgment of the trial court the supreme court said:
“As to the deed, it is to be observed that at the time of its execution the grantor was largely indebted to the bank, and the conveyance is to the wife, son, and daughter. The burden of proof was then shifted to defendants to establish by strong and convincing evidence that an adequate and valuable consideration was paid for the conveyance. (Citations.)
“True, the relationship is not within itself a badge of fraud, but under all the authorities, supported by reason and common sense, transactions between such relatives are to be jealously watched, and must be subjected to closer scrutiny than would be required of a stranger. (Citations.)” (p. 640.)
Appellants’ next complaint pertains to the trial court’s finding (No. 6) that the alleged agreement of 1928 between Huldah and her daughters—
“Was a mere colorable paper transaction between Huldah Stephenson and her daughters, to be used by them in case it ever became beneficial to them to cover up and conceal the title and ownership of this particular tract of land. Neither before nor after the 7th of January, 1928, was there any change in the use, occupation, possession, control, beneficial enjoyment or title to said real estate, and the parties did not intend nor contemplate by said agreement that there should be any such change. The daughters had not rendered, nor did they thereafter render any care, attention, love, kindness or affection to their mother beyond that rendered ordinarily by daughters.
“The court further finds that said agreement was not made in good faith and was a mere sham and was contrary to public policy and was and is void.”
It would serve no useful purpose to recapitulate the evidence which justified this finding, but a careful reading of the record makes certain incidents of probative force stand out significantly. Possession of the land was not transferred by the agreement. No dominion over the property was exercised by the plaintiffs. There is no convincing evidence that the daughters rendered any service on account of it. The agreement, although notarized, was not recorded. Its existence was secreted even from the other children of Huldah, the sisters and a brother of the plaintiffs.
In Bank v. Lawrence, 86 Kan. 171, 119 Pac. 535, the plaintiff attached and sold a half section of Finney county land as the property of its judgment debtor, whose mother claimed to own it by a deed dated prior to the attachment and entry of judgment but not recorded until afterwards. In affirming a judgment denying the mother’s motion to set aside the sale on her claim of ownership this court said:
“She could not give the date it was recorded and no satisfactory explanation was given for withholding it from record. . . . [she] only made use of the deed when the land was about to be taken for her son’s debt. All this tends very strongly to refute ownership by the grantee and indicates that the real purpose of the deed was to embarrass and defeat the defendant’s creditors. The plaintiff was an existing creditor when the deed was made, and without discussing the evidence further the court holds that the deed was void as to the plaintiff under the statute of frauds and perjuries, which reads as follows:
“ ‘Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.’ (Gen. Stat. 1868, ch. 43, § 2, Gen. Stat. 1909, §3834.)” (pp. 173, 175.)
See, also, Sakis v. Sawyer, 143 Kan. 813, 816-818, 57 P. 2d 52.
In this case it is unnecessary to consider that feature of the purported agreement wherein plaintiffs bound themselves not to marry during their mother’s lifetime — further than to remark that the rule announced in Smith v. Nyburg, 136 Kan. 572, 16 P. 2d 493, is not an authority to uphold that feature of the contract. (See Restatement, Contracts, § 581.)
The next matter urged on our attention is the significance given by the trial court to the fact that when creditors of the estate of C. N. Stephenson discovered that Huldah, as administratrix, had gotten her hands on some $3,000 belonging to that estate, when her bond was only for $1,500, they consulted the record and found that the land in present controversy stood in her name unencumbered, and on the information there obtained they refrained from asking for an increase in her bond as administratrix. We think that no undue significance was given to this fact. In Kinsley Bank v. Aderhold, 131 Kan. 448, 292 Pac. 798, where credit had been extended to a husband because certain land alleged to belong to his wife had actually stood on the record as his property, this court propounded the question:
“Did this situation of affairs create an estoppel against Mrs. Aderhold? The trial court held that it did not — largely constrained thereto, no doubt, by the decision of this court in McAdom v. Hassard, 58 Kan. 171, 48 Pac. 846.” (p. 453.)
After reviewing earlier decisions, the court answered the question by holding that the circumstances were sufficient to estop the wife from asserting her title against the creditors of her husband. And so here. Even if the bona fides of the agreement of 1928 were not questioned, plaintiffs knowingly suffered the title to remain in their mother when they knew that her creditors would naturally look to that quarter section of land to satisfy their claims against herself and to satisfy their claims against her as administratrix because of her appropriation of the moneys of her husband’s estate which had come into her hands as administratrix. Indeed, one of the plaintiffs testified that a realization of that possibility had induced them and their mother to supersede the agreement of 1928 by a deed to the property, which, although withheld from the record for nearly three years, was avowedly intended “to make it safer.”
Other findings of the court are briefly criticized by appellants, but they disclose nothing requiring discussion.
The final point urged relates to the second levy on the land in controversy to satisfy the junior judgment of the Pittsburgh bank. Appellants cite the statute which forbids that practice. (G. S. 1935, 60-3460 et seg.) The record does not show that this point was fairly presented in the trial court, so it cannot be presented here. (Clark v. Linley Motor Co., 126 Kan. 419, 268 Pac. 860; State v. Pyle, 143 Kan. 772, 782-783, 57 P. 2d 93.) Moreover, since we have discovered no material error in the judgment of the trial court holding that these plaintiffs do not own the land in controversy, and since their mother is not here complaining in this appeal of the suggested breach of the statute forbidding more than one sale to satisfy any number of existing judgments or other liens, there is no occasion at present to consider this point.
The judgment is affirmed. | [
-12,
-20,
-7,
45,
24,
-32,
40,
-69,
91,
-79,
-75,
83,
-85,
-36,
5,
121,
66,
29,
81,
105,
-26,
-73,
27,
-93,
-46,
-13,
-103,
-51,
-79,
77,
-12,
-41,
76,
32,
10,
5,
-26,
-126,
-59,
28,
-116,
-124,
-85,
-52,
-35,
66,
52,
-17,
16,
74,
117,
-114,
-13,
41,
29,
71,
104,
47,
-21,
-70,
16,
-88,
-85,
-57,
127,
22,
1,
-124,
-102,
-91,
-56,
46,
-104,
49,
1,
-24,
115,
38,
-106,
-12,
73,
9,
45,
102,
102,
3,
-108,
-17,
40,
-120,
38,
-10,
-115,
-89,
-128,
88,
-94,
40,
-68,
-99,
85,
80,
71,
-12,
-22,
5,
89,
108,
-123,
-49,
-74,
-127,
15,
60,
-102,
31,
-13,
-95,
-78,
113,
-55,
-30,
77,
39,
59,
-69,
-121,
-6
] |
The opinion of the court was delivered by
Wedell, J.:
This was a suit by the owners of land to cancel the assigned portion of an oil and gas mining lease, on the ground it had been forfeited, and to recover statutory damages and attorney’s fees under the provisions of G. S. 1935, 55-202. The defendant assignee leveled a general demurrer against the amended petition, which was overruled. The defendant elected to stand on its demurrer. The trial court canceled the assigned portion of the lease, quieted title thereto in the plaintiffs and rendered judgment against defendant in the sum of $450. The money judgment consisted of statutory damages in the sum of $100 and $350 as reasonable attorney’s fees. From that judgment defendant appeals.
No question is raised concerning the sufficiency of the procedure for the cancellation of a forfeited lease, or the amount of damages, or concerning the fact that defendant refused to execute a release of its rights under the assignment. The sole question is whether the lease was terminated as to the assigned portion thereof. The answer must be found in the lease contract and in certain other facts pleaded. The amended petition disclosed:
On- October 10, 1935, plaintiffs were and are now the owners of a quarter section of land situated in Cowley county. On that date they executed and delivered to Earl F. Wakefield an oil and gas mining lease on this land. On March 26, 1936,'Wakefield assigned to defendant, the Texas Company, the south half of the lease. After the execution and delivery of the assignment, but prior to the expiration of the first year and on or about April 15, 1936, Wakefield drilled and completed a well on the north half of the quarter section. It was a dry hole, and the well was abandoned and all equipment and supplies were removed. This was the only test well which had been drilled on the lease. The defendant, assignee, paid no rentals on the south half on or before October 10, 1936, which was the end of the first year.
The pertinent portions of the lease contract provided:
“1. Witnesseth, That the said lessor, for and in consideration of one and no/100 dollars cash in hand paid, receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of lessee to be paid, kept and performed, has granted, demised, leased and let, . . .
“2. (This paragraph provided for a primary term of five' years.)
“3. If no well be commenced on said land on or before the 10th day of October, 1936, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, . . . the sum of one hundred and sixty dollars, which sum shall operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred. (Italics inserted.)
“4. Should the first well drilled on the above-described land be a dry hole, then, and in that event, if a second well is not commenced on said land within twelve months from the expiration of the last rental period which rental has been paid, this lease shall terminate as to both parties, unless the lessee on or before the expiration of said twelve months shall resume the payment of rentals in the same amount and in the same manner as hereinbefore provided. And it is agreed that upon the resumption of the payment of rentals, as above provided, that the last preceding paragraph hereof, governing the payment of rentals and the effect thereof, shall continue in force just as though there had been no interruption in the rental payment?. (Italics inserted.)
“5. If the lessee shall commence to drill a well within the term of this lease or any extension thereof, the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch, and if oil or gas, or either of them, be found in paying quantities, this lease shall continue and be in force with like effect as if such well had been completed within the term of years herein first mentioned.
“6. If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns, '. . . and it is hereby agreed in the event this lease shall be assigned as to a part or as to parts of the above-described lands and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportionate part of the rents due from him or them, such default shall not operate to defeat or affect this lease insofar as it covers a part or parts of said lands upon which the said lessee or any assignee thereof shall make due payment of said rentals.”
This identical lease contract was before us for construction in a suit brought by the same plaintiff to cancel the north half of the lease on the ground the delay rentals had not been paid by the lessee, Wakefield, on or before October 10, 1936. We held the lease contract had not been terminated and that the lease was not subject to cancellation. (Wilson v. Wakefield, 146 Kan. 693, 72 P. 2d 978.) While the lessee had paid no delay rental on or before October 10, 1936, he had completed the drilling of a well before October 10,1936. After discussing the various terms of the lease contract, we said:
“It must have been intended the lease' should not terminate on October 10, 1936, unless no well was commenced within the first, year and the delay rental was not paid on or before October 10, 1936. In other words, it appears to have been intended the lease should not terminate on October 10, 1936, unless lessee failed in both of the contingencies mentioned. Unless the contract is so construed the provision concerning the commencement of a well within the first year becomes utterly meaningless. It follows the fair intendment was that if no well were commenced within the first year then a delay rental became due on October 10, 1936. In the instant case a well having been not only commenced but completed within the first year, we conclude no delay rental payment was intended on or before October 10, 1936, and that it did not become due until October 10, 1937.” (p. 696.) (Italics inserted.)
The defendant insists the trial court erred, in the instant case, in holding the lease had terminated as to the assigned portion thereof. It contends the commencement and drilling of one well is all that was required under the contract to hold the entire lease until October 10, 1937, and that it was immaterial where on the land, or by whom, the well was drilled. On the other hand, plaintiffs contend that although one well was drilled by the lessee it was not drilled on the portion assigned to defendant, and hence the lease terminated as to that portion unless a delay rental of $80 was paid thereon on or before October 10, 1936'. Plaintiffs further urge the well had not been drilled by the lessee at the time of the assignment. As to the latter 'fact, defendant counters with the contention that such fact is immaterial, as the entire lease could be protected by the drilling of one well at any time within the first year and that it was so drilled.
Both parties concede the question is one of first impression in this state and admit they have been unable to find that the question has been decided elsewhere. Our search has disclosed no decision squarely in point. In order to avoid confusion it is well to bear in mind, at the outset, that this is not a case involving a question of implied covenants to develop. Nor are we concerned with the question of drilling offset wells in order to prevent drainage. Defendant has cited numerous cases from other jurisdictions in which it was held that the drilling of a well, from which oil is produced in paying quantities, on one portion of a lease will also protect the assigned portions thereof against forfeiture. Many of them pertain to an extension of the lease contract beyond its fixed or primary term under contract provisions similar to those contained in paragraph five of the lease in the instant case. The question before us, however, does not pertain to the extension of the lease beyond its primary term of five years, and paragraph five of the present lease contract is not applicable. Defendant does not contend that paragraph five is determinative or even involved in the question presented, but cites cases dealing with a situation covered by that paragraph to show it is well established that where a definite condition is prescribed to keep a lease alive, and such condition is met by the lessee or assignee, the entire lease will be kept alive. While the principles stated in those cases appear to be a correct statement of the law as applied to the facts involved, the decisions do not reach the precise point before us, and we prefer to place our decision upon the construction of the contract before us and upon the facts pleaded. Of course the question of whether the conditions prescribed by the instant lease contract, in order to keep it alive, have been performed, is the essence of this lawsuit. That question will be treated presently.
The real issue is whether under the terms of the contract the lease had terminated as to the assigned portion thereof. In Harter v. Edwards, 108 Kan. 346, 195 Pac. 607, it was said:
“The contract prescribed the terms which kept it alive and fixed the conditions which terminated it.” (p. 349.)
The contract here involved did not require a producing well in order to keep the lease alive beyond the first year. It required the commencement of one well within the first year or the payment of rentals on or before October 10, 1936. How much rental? It required $160 to protect the entire lease, or 160 acres. The well was not only commenced but it was completed within the first year. It follows no delay rentals were due on any part of the lease prior to October 10, 1937. Plaintiffs, in effect, urge that when part of the lease was assigned the requirements to keep it alive increased. We fail to find any express or implied provision in the lease contract which, in the event of an assignment of one half or any other portion thereof, required the drilling of an additional well or wells on the assigned portion or portions thereof prior to October 10, 1936, in order to protect such portion or portions from forfeiture. Obviously if one well, under the terms of the contract, protected the entire lease until October 10, 1937, then the drilling of an additional well or wells was not required. It must likewise be clear that if one well took the place of rental payments on the entire 160 acres then no rental payments were due on October 10, 1936, to protect an assigned portion of the lease. The lease did not provide nor contemplate that in the event of an assignment of one half of the lease the lessors should be entitled to receive $160 rental from the lessee and an additional $80 rental from the assignee. Nor did it provide or contemplate that lessors were to receive in addition to one well an extra rental payment from such assignee in the sum of $80 or any other amount. Let us pursue the problem a step further. Assuming the 160-acre lease was divided into ten tracts of 16 acres each, and assignments of nine of such tracts were made, then on plaintiffs’ theory, even though the one required well was drilled by the lessee, the nine assignees would be required to drill nine additional wells in the first year or would be required to pay $144 in rentals. In our judgment such a result was not intended by the contract. We think it was the intention of the parties that one well drilled within the first year at any location on the 160-acre lease should protect the entire lease until October 10, 1937, and not merely the portion thereof on which the well was located. Such intention appears not only from One single provision of the lease contract but from the contract as a whole. Paragraph three of the contract did not provide “In the event a portion of the lease is assigned, and if no well be commenced on the assigned portion of the land on or before the 10th day of October, 1936, this lease, as to the assigned portion thereof, shall terminate, unless the assignee on or before that date shall pay or tender to the lessor such sum of money as the number of acres assigned shall bear to the total acreage of the lease.” On the contrary, the contract reads, “If no well be commenced on said land.” Obviously, the land referred to was any portion of the 160 acres. While paragraph four is not determinative of the precise question raised in the instant case, we there find the same intention clearly expressed. The contract reads: “Should the first well drilled on the above described land be a dry hole, then, and in that event, if a second well is not commenced on said land,” etc. Clearly, under the contract only one well was required, and it could have been drilled anywhere on the 160-acre tract.
Plaintiffs, however, contend the contract provided for a severance of the lease in that it expressly permitted assignment in whole or in part. The lease contract did provide for assignment, but it also expressly provided that its covenants were extended (not enlarged or decreased) to the assigns of the parties. (Par. 6.) Under the covenants of the lease the commencement of only one well, and unrestricted as to location, was required prior to October 10, 1936, in order to grant relief from the payment of all rentals for the next year.
In support of plaintiffs’ contention that the assignment provision made the lease divisible they quote from Mills and Willingham, Law of Oil and Gas, § 146, p. 214, as follows:
“The assignee in severalty of a part of the lease is not a sublessee. This results from the divisibility of the commercial lease in its present form. It contemplates that when part has been assigned the several portions are thereafter (for certain purposes only) to be regarded as separate leases. So the assignee may pay his delay rentals and maintain his lease or may fail to pay and forfeit without being affected by, and without affecting, the unassigned portion. Such assignee is, therefore, liable on the covenants of the lease only so far as they pertain to the portion assigned to him.”
It will be observed the author in the above statement inserted in parenthesis the words “for certain purposes only,” and then proceeded to state for what purposes the several portions of the lease are to be regarded as separate leases. One of the purposes stated is to enable an assignee to protect his portion of the lease against forfeiture, even though the lessee or some other assignee may forfeit the portion retained by or assigned to him. That is exactly what the assignment clause in the instant lease provides. If, therefore, rentals had been due on October 10, 193.6, on the entire lease, the defendant assignee could have paid the rentals due on the south eighty and thus kept its lease thereon alive, although the lessee had failed to pay the rentals due on the north eighty and the lease on his eighty had terminated. The author says another purpose for which the assigned portion shall be regarded as a separate lease is that the assignee shall be liable on the covenants of the lease only so far as they pertain to the portion assigned to him. But what application can those purposes have to circumstances in the instant case, where the rentals on the entire 160 acres had been paid by the performance of the condition which the lease contract substituted for the payment of the entire rental, to wit, the commencement of one well? Obviously none.
The parties concede the cases cited by them do not decide the precise issues presented in the instant case. We have, however, examined them in connection with the contentions urged, and find that they pertain primarily to issues which we previously indicated are not involved in the instant case. In the case of Nigh v. Haas, 139 Kan. 307, 31 P. 2d 28, the question of severance by assignment was raised, but that issue really passed out of the case under the ruling that the assigned portion of the lease had been abandoned. The case of Cowman v. Phillips Petroleum Co., 142 Kan. 762, 51 P. 2d 988, cited by both parties, dealt with the forfeiture of an assigned portion of a lease, which was treated, with the consent of appellants, as though both portions of the lease were owned by the same party. The real issues were nondevelopment, implied covenants, waiver of right of forfeiture and extension of the lease beyond the primary term as a result of production. In view of the admission of the parties heretofore indicated, it is unnecessary to discuss each of the cases cited. In the light of what has been said, it follows the judgment must be reversed with directions to enter judgment for the defendant. It is so ordered. | [
-16,
-22,
113,
13,
-102,
96,
40,
-102,
89,
33,
55,
83,
-87,
-117,
4,
57,
-29,
93,
116,
104,
103,
-90,
2,
114,
-110,
-109,
81,
77,
-79,
94,
-26,
87,
76,
4,
-54,
-43,
-58,
66,
-63,
92,
14,
36,
-71,
-28,
-37,
8,
50,
123,
48,
79,
65,
-114,
-13,
45,
29,
-29,
104,
44,
-17,
45,
88,
-7,
-70,
-123,
95,
2,
1,
-59,
-104,
-123,
-40,
62,
-112,
52,
9,
-24,
115,
38,
-60,
116,
47,
-69,
44,
118,
103,
97,
-20,
-17,
108,
-104,
55,
-70,
-115,
-90,
-64,
80,
-93,
64,
-106,
29,
124,
30,
-121,
-10,
-26,
-123,
93,
44,
23,
-54,
-42,
-95,
15,
-4,
-104,
91,
-21,
-89,
21,
116,
-51,
-86,
92,
71,
113,
-97,
71,
-112
] |
The opinion of the court was delivered by
Johnston, C. J.:
A judgment was obtained by F. M. Brick against The National Fire Insurance Company, of Hartford, Conn., upon a contract of insurance, and the company has taken an appeal.
The policy in question covered a soda fountain and the ordinary equipment used in connection with it. Plaintiff averred and offered proof tending to show that a fire which occurred destroyed the insured property, and to the plaintiff’s evidence the defendant filed a demurrer. This demurrer was overruled, whereupon the defendant declined to produce any testimony, and the jury returned a verdict for plaintiff for the full amount of the insurance under the direction of the court. In due time the defendant filed its motion for a new trial in these words:
“1. Because of erroneous rulings of the court.
“2. Because of erroneous instructions by the court.
“3. Because the verdict is contraiy to the evidence.”
There was nothing in the motion to indicate what ruling was regarded by defendant as erroneous nor the particular instruction of which complaint was made, nor was there anything to indicate wherein the evidence was lacking. This motion was thrown at the court without explanation or identification of the errors that the defendant had in mind. There is a recital in the record that when the motion for a new trial came on for hearing, both parties were present, and “defendant offering nothing in support of its motion, the motion for a new trial is by the court overruled.” The motion itself was blind, and the defendant, instead of specifically pointing out the rulings, as was its duty, sat silent and offered nothing in support of the motion. The purpose of a motion for a new trial is to give the court an opportunity to reexamine rulings made in the course of the trial and to correct any errors in the proceedings, so that parties may avoid the trouble and expense of having them corrected on appeal. How could the court reexamine, and correct a ruling unless the party called attention to the particular one to which objection was made and the statement of the grounds of his objections? It is manifest that no specific ruling was brought to the attention of the trial cdurt in the submission of the motion, and that it has had no opportunity to reconsider any objections or errors which might have been assigned as grounds for a new trial. Rulings of which a review is desired, whether or not they constitute grounds for a new trial, should be clearly pointed out to the court, and when this is not done they will as a general rule be deemed to have been waived.
On a motion to quash filed by a defendant, in which it was alleged that an information did not state facts sufficient to constitute a public offense, and where counsel declined to inform the trial court the nature of the defect on which he relied, it was decided that he was not entitled to have the objection reviewed on an appeal. It was said to be unfair to insist that the courts had erred when the objection or point relied on was concealed from the court. (The State v. Everett, 62 Kan. 275, 62 Pac. 657.)
In The State v. Balliet, 63 Kan. 707, 66 Pac. 1005, there was a general attack upon an information in which attorneys failed to point out to the trial court the specific defects in it, and it was held that the failure to state the specific grounds of objection relieved the supreme court of any duty in respect to the alleged defects.
In Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796, where a party declined to specifically point out defects relied on in a motion for a new trial, and the motion was for that reason overruled, it was remarked:
“It is the duty of every attorney engaged in the presentation of a cause to a court to assist in reaching a just conclusion, by stating fully and frankly to the court, when requested, all that he knows about the question under consideration. With such a statement the court might be able to grant the relief at once and save further delay and expense. A court has the right, upon such an application, to have the errors complained of pointed out fully and clearly, and concealment or evasion of pertinent facts by the attorney is a violation of professional duty which will justify a refusal of the order requested.” (p. 431.)
In Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075, it was held:
“The duty of an attorney as an officer of the court is to assist the court in arriving at a just and lawful conclusion and judgment in every cause; and when he has a proper objection to the pleadings or proceedings, he should point out clearly and specifically the grounds for his objection; and when he fails to make it-with such clearness and precision that the court can understand it, he will ordinarily be held to have waived his objection.” (Syl. (f2.)
Aside from the matter of waiver it may be said that only questions passed upon by the trial court are reviewable here, and since no objection or error was in fact presented to the trial court on the motion for a new trial, there was no consideration of any error in the proceedings, and hence nothing is here for review.
Notwithstanding the waiver of the defendant by its failure to bring its objections to the attention of the trial court, we have looked into the record and the contentions of the defendant, and are of opinion that a just result was reached in the action and a valid judgment rendered.
The judgment is affirmed. | [
-80,
-4,
-4,
-81,
-102,
96,
32,
-8,
69,
1,
39,
83,
-81,
-45,
-108,
39,
-14,
89,
-43,
107,
-44,
-77,
23,
66,
-42,
-13,
83,
-43,
-79,
-2,
-1,
126,
76,
52,
-118,
-43,
102,
72,
-59,
20,
-50,
-115,
-72,
-19,
-103,
106,
48,
123,
116,
95,
69,
-97,
-29,
40,
27,
-61,
105,
40,
122,
-79,
-48,
-72,
-88,
13,
125,
1,
49,
54,
-98,
7,
120,
44,
-112,
49,
0,
-24,
115,
-74,
-122,
-12,
107,
-71,
0,
102,
99,
0,
69,
111,
-84,
-102,
39,
14,
29,
-26,
-104,
16,
75,
34,
-74,
-99,
116,
22,
-89,
118,
-18,
20,
-100,
100,
1,
-117,
-108,
-79,
-49,
109,
-102,
-61,
-10,
-93,
48,
116,
-51,
-24,
92,
70,
83,
-71,
-114,
-100
] |
The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal by the Pittsburg Paving Brick Company and the Coffeyville Vitrified Brick and Tile Company from a conviction for the violation of the anti-trust law.
The indictment under which the conviction was based charged in substance that the Pittsburg Paving Brick Company and the Coffeyville Brick and Tile Company, and also the Buffalo Brick Company, through certain of its officers who were also accused, entered into a trust combination by which one Oswald, a citizen of Reno county, should represent himself to be acting in the public interest for the building of roads, and actuated only by a desire to serve the people of the community, should procure the signing of petitions for the creation of a benefit district and the construction of a road paved with brick from Hutchinson through Nickerson to the county line, known as “Federal Project No. 15.” At a conference of these parties it was agreed that the company chosen to furnish the brick used on the project should pay Oswald three cents per square yard for the bricks delivered for any part of the project, and that Townsley, who should assist in procuring petitions and in the building of the road with brick, should receive one cent per square yard from the company whose bid for the supply of brick should be accepted. It was alleged to have been a part of the trust agreement that each brick company should become bidders for supplying the brick for the project, and that whatever company secured the contract should assume the obligations with Oswald and Townsley, and carry out the unlawful agreement. 'It was further alleged that bids were made and contracts were awarded to the Pittsburg Paving Brick Company and the Coffeyville Vitrified Brick and Tile Company, and performance of the contracts was at once entered on by these companies. Later each of these companies sent money to their representative in Hutchinson which was paid to Oswald and Townsley. The payments were of considerable amounts, and were made by means of check to the order of the representative of the company, who deposited them to his own account and issued his personal checks to Oswald and Townsley. No record was made of these transactions, no letter was sent with the checks, nor any explanation inclosed in the envelopes which contained the checks. It was further alleged that the carrying out of the trust agreements and the payment so made as provided in the agreements greatly increased the cost of the brick to the consumers.
A motion for a change of venue was made and also a plea in abatement was filed, both based on similar grounds, to the effect that the grand jury finding the indictment had been improperly selected, that the trial judge had been guilty of misconduct in the selection, and it was desired he should be used as a witness in the case. The motion for a change of venue was denied and the plea in abatement overruled. A few days later, when the case was called for trial, the county attorney and two assistant attorneys-general representing the state, and also counsel for all the defendants, announced to the court that they had been in conference and had agreed upon a statement of facts which they had reduced to writing and on which the cause would be submitted. It was' announced that they had agreed that the prosecution should be dismissed as to all of the individual defendants who were officers of the several corporate defendants. The assistant attorney-general remarked that after an examination of the transcript of the testimony before the grand jury, he deemed that the interest of the state would be best sub-served by submitting the case upon the agreed statement, that it had developed during the conference that only the two brick companies, the Pittsburg Paving Brick Company and the Coffeyville Vitrified Brick and Tile Company, were involved, because the statute of limitations had run in favor of the Buffalo company; that so far as Townsley was concerned the testimony showed that his compensation came from the Chamber of Commerce or Good Roads Association, and not from the brick companies. Further that admis sions had been made by the defendants in the agreed statement which the state would not be able to establish. The agreed statement was not read to the court, but a brief statement of its contents was made by one of defendants’ counsel. The court inquired whether all of the brick companies executed the agreed statement, and was informed that the Buffalo company had not for the reason it was conceded that the statute of limitations had run against that company, as shown on the face of the indictment. The court then stated that he would want all of the brick companies’ signatures to the agreed statement of facts, and thereupon counsel for the brick company signed the agreed statement of facts and the court thereupon accepted the agreed statement, whereupon pleas of not guilty were entered and also a waiver of trial by jury. The court made the following notation on his minute docket:
“Oct. 11-21. Arraignment waived and plea of not guilty entered by all of the defendants. Case submitted on agreed facts; jury waived.”
Thereupon the agreed statement was filed, and immediately following the defendants filed their joint and several demurrers, setting forth a number of reasons that the facts stated were not sufficient to constitute an offense; that the evidence adduced was insufficient to prove the offense charged or attempted to be charged, and that to find the defendants or any of them guilty under the indictment upon the facts and the imposition of a penalty against them would be violative of several provisions of the constitution of the United States.
On the day following the submission of the case the judge called counsel for the parties before the court and announced that he had determined to set aside the submission mentioned, because of a misunderstanding of the court that the submission had been made upon the theory that all of the defendants had joined in it, which the court said appeared to be erroneous. Whereupon the court set the same aside and fixed a time about two months later for another trial. The defendants objected to the setting aside of the submission, upon the ground that jeopardy had already attached and they could not be subjected to a second trial. Besides they insisted that they would be prejudiced in another submission, as they had made admissions in the agreed statement in order to effect an agreement with counsel for the state, and that these admissions had already been published in the newspapers, which would operate to their prejudice in a second trial of the cause. All objections were overruled by the court and the plea of former jeopardy was denied. In the resubmission of the case the court advised the jury that all the defendants had been dismissed from the case except the Pittsburg Paving Brick Company and the Coffeyville Vitrified Brick and Tile Company, and these defendants were convicted, notwithstanding the alleged jeopardy to which they had been subjected.
Error is assigned on the overruling of the plea of former jeopardy. Did jeopardy attach in the first submission of the cause? The offense charged in the information is a misdemeanor, triable by the court with or without a jury. (R. S. 62-1401.) The prosecution against appellants began, proceeded to arraignment, to pleas of not guilty, to waiver of jury, to presentation of the agreed facts, the acceptance of these by the court as the controlling facts, and the sufficiency of these facts to constitute the offense charged were brought to the attention of the court on the demurrer of the defendants. Our constitution expressly provides that no person shall be twice put in jeopardy for the same offense, and it is well settled that a person is in jeopardy when he is regularly charged with a crime before a court of competent jurisdiction and a trial has commenced. In The State v. Reed, 53 Kan. 767, 770, 37 Pac. 174, it was said that:
“It is true that the jeopardy of the defendant began when the jury were impaneled and sworn and the reception of evidence was commenced, and it is also true that the discharge of the jury without the consent of the defendant, and without sufficient reason, will ordinarily bar a further trial.” (See, also, The State v. Stiff, post, p. 243.)
So far as jeopardy is concerned, the commencement of a trial without a jury must be deemed the equivalent of one begun with a jury. The peril of jeopardy arises before a judge acting alone under the same circumstances as before a judge and jury. The submission of the case on the agreed facts advanced the trial to the stage reached in a trial with a jury where the testimony of all the witnesses of both parties had been taken and presented to a duly impaneled jury which had taken the weight and effect of the evidence under consideration. (City of Olathe v. Adams, 15 Kan. 391; The People v. Miner, 144 Ill. 308; The State v. Brown, 45 Minn. 145; Trittipo v. The State, 13 Ind. 360; 8 R. C. L. 136.) The defendants’ jeopardy having begun, the discontinuance of the case thereafter during the trial without the consent of the defendants and without a sufficient legal reason operated as a bar to another prosecution for the offense charged. Here there was nothing approaching a consent of the defendants. The setting aside of the first trial so far as it had gone was done over the objection of the defendants. What are sufficient reasons for arresting a trial once begun before verdict or judgment has been the subject of consideration in earlier cases, and it has been held that where the trial is stopped before it is completed, without good reason,' the defendant cannot be again tried for the offense charged. (The State v. Reed, surpa; The State v. Allen, 59 Kan. 758, 54 Pac. 1060; The State v. Stiff, supra.) See, also, The State v. Smith, 44 Kan. 75, 24 Pac. 84. In The State v. Allen, supra, it was decided:
“Where a defendant has been placed upon trial on a criminal charge and the jury is duly impaneled and sworn, the court cannot arbitrarily discharge the jury before a verdict is returned; and a discharge in such case, unless an absolute necessity, and for reasons which are sufficient in law, will operate as an acquittal.”
“The essential facts upon which the discharge is based, and the finding of the court thereon, must be entered of record, and unless the record shows the existence of such facts and the decision of the court thereon, and that they constitute sufficient grounds for discharge, the defendant cannot again be put on trial for the same offense.” (Syl. ¶¶ 1, 2.)
Before there can be a discharge of a j,ury during a trial or an ending of a trial after the guilt or innocence of the accused has been submitted, there must exist an overruling necessity for such discharge or discontinuance. No such reason existed here. The trial judge gave as his reason for terminating the trial that he had understood that all of the defendants had joined in the agreed statement which had been accepted on the previous day, but that he had since learned that all had not done so. It appears that when the submission was presented the court inquired if all had signed it, when it was stated by counsel that the Buffalo Brick Company had not done so because it was conceded by the prosecution that the offense charged against it in the indictment was barred by the statute of limitations. However, to avoid any question, the signature of that company was then attached to the statement. The only persons thereafter prosecuted under the indictment were the two appealing defendants. The prosecution of all the others was abandoned by the state, and this is made manifest where the court in the submission of the case on the second trial informed the jury that all parties other than the appellants had been dismissed from the case. Instead therefore of an absolute and overweening reason for ending the first trial, it appears that no real reason existed for ending the trial. It clearly appears that the defendants were in jeopardy when the case was first submitted and the court had taken their guilt or innocence under consideration. The trial involving their jeopardy was ended without fault upon their part and against their objection. The unnecessary and unwarranted termination of the first trial prevented a further prosecution, and'therefore the plea of jeopardy advanced by defendant should have been sustained.
The judgment of the district court is reversed and the cause remanded with directions to discharge the defendants.
Hopkins, J., not sitting. | [
81,
-22,
-12,
108,
30,
64,
26,
-102,
92,
-95,
-92,
87,
-23,
-52,
4,
115,
-65,
93,
-60,
120,
-29,
-77,
115,
-31,
-62,
-5,
123,
-51,
-79,
77,
-90,
-42,
76,
84,
-54,
-99,
38,
66,
71,
92,
-114,
5,
43,
-58,
-39,
0,
-76,
127,
118,
11,
17,
-116,
-13,
40,
20,
-62,
124,
44,
123,
45,
17,
-15,
40,
-107,
93,
21,
33,
68,
-104,
-121,
-16,
47,
-104,
49,
0,
-24,
83,
-90,
-58,
-12,
79,
-7,
8,
126,
99,
33,
-75,
-89,
108,
-40,
15,
-2,
-115,
-89,
-80,
25,
34,
33,
-73,
-99,
112,
18,
11,
-4,
-2,
5,
19,
108,
-125,
-113,
-80,
-14,
-17,
124,
-101,
85,
-17,
-91,
51,
96,
-51,
-14,
125,
87,
114,
27,
14,
-16
] |
The opinion of the court was delivered by
Dawson, J.:
Glenn A. Dellinger, a resident citizen and native of Stafford county, enlisted in the signal service reserve corps of the United States army on December 27, 1917. He was told by the recruiting officer to go home and hold himself in readiness for a call to report for duty. In April, 1918, he received orders from the war department to report at once at Berkeley, Cal. He obeyed, and served from April 4, 1918, to May 2, 1918, when he was honorably discharged. He claimed compensation from December 27, 1917, until May 2, 1918. Compensation was refused for the period preceding his call into service. Dellinger appealed, and prevailed in the trial court on the assumption that the case was governed by our decision in Dew v. Davis et al., 115 Kan. 219, 222 Pac. 750. The defendant board brings the case here for review.
The case of Dew v. Davis, supra, was that of a sailor who was regularly enlisted in the United States navy, not that of an enlistment in the naval reserve, army reserve, or any other reserve corps then maintained by the government. One rough-and-ready test rued by military men to determine whether a man was in the army or the navy at a particular time was the test of pay. If he was receiving pay from the government he was in the service; if not, he was not regarded as in the service. Dew was a regularly enlisted sailor and he received pay as such. That he was sent home temporarily was of no consequence. He had to obey orders. Dellinger was only enlisted in the reserve. He did not receive compensation from the government from December 27, 1917, to April 4, 1918, for the very good reason that the government did not regard him during that interval as being in its service. This test of receiving pay from the -national government may not be an accurate one to measure every claim for compensation under the Kansas act, but ordinarily it is one of prima facie practical usefulness. We think the Claimant rendered no military service in the world war entitling him to compensation under the Kansas statute until he was called into service April 4, 1918. (In re Soldiers’ Compensation Appeals, Winkler’s case, 116 Kan. 601, 603, 227 Pac. 1117; id., 116 Kan. 677, 229 Pac. 355.)
Plaintiff moves to dismiss on the ground that this court has no jurisdiction since the disputed amount of compensation involved is less than $100. . But these compensation cases are not ordinary civil actions for the recovery of money judgments as contemplated by R. S. 60-3303. Money judgments cannot properly be decreed in compensation cases. Appellate jurisdiction in this class of cases is conferred by special legislation. (R. S. 73-130.) That section prescribes the mode of appeal — the same mode as in other civil cases. The mode of appeal has nothing to do with the amount of compensation involved in the appeal. In Duckworth v. Board of Compensation, 116 Kan. 399, 401, 226 Pac. 707, it was said:
“The proceeding upon appeal is*somewhat like one to obtain a declaratory judgment. The court takes up the dispute between the board and the veteran as in an equity proceeding, and the decision, when made in an ordinary case like this one, is to be certified to the compensation board, which should make payment to the veteran, not to the clerk of the court, of the amount of compensation found and declared to be due.”
The motion to dismiss is denied, and the judgment is reversed with instructions to enter judgment for defendant. | [
-16,
106,
-59,
-33,
10,
-32,
2,
-128,
56,
-79,
39,
83,
107,
67,
5,
121,
-24,
13,
80,
104,
-49,
-73,
2,
-55,
86,
-13,
-7,
-47,
-79,
77,
-16,
86,
78,
-88,
-126,
-43,
102,
98,
-59,
28,
-50,
4,
-72,
-55,
-48,
-128,
52,
111,
-14,
-53,
17,
-65,
-5,
42,
21,
-61,
45,
36,
91,
-69,
-128,
-15,
-118,
5,
-3,
20,
51,
6,
-98,
-57,
80,
62,
-48,
17,
8,
-3,
91,
-90,
-110,
53,
99,
-103,
-92,
96,
102,
33,
53,
-24,
-4,
41,
46,
-70,
-113,
-28,
-108,
80,
66,
13,
-106,
-99,
126,
20,
70,
116,
-5,
5,
29,
108,
15,
-113,
-84,
-111,
79,
116,
-78,
-125,
-57,
-63,
-74,
100,
-52,
-26,
92,
71,
114,
-109,
-113,
-36
] |
The opinion of the court was delivered by
Burch, J.:
The action was one of ejectment to obtain possession of land in Barton and Stafford counties, and for partition of the land in Stafford county. Plaintiff claimed under a contract for the land, specific performance of which was prayed for. Judgment was rendered for defendant on the pleadings, and plaintiff appeals. The question is whether relief was barred because of estoppel, pleaded in the answer, created by unsuccessful prosecution of a previous action to recover the same land, by plaintiff against defendant, based on a contradictory theory of plaintiff’s title.
In his lifetime Korzuszkiewicz owned all the land, which consisted of several tracts. Previous to his death he conveyed one tract to his son, Nicodemus, who quitclaimed to defendant, and conveyed the remainder to defendant. He died in May, 1920, leaving nine children, who may be classified in two groups: the plaintiff and three others, and the defendant and four others. The petition alleged that, before Korzuszkiewicz’s death, he contracted with plaintiff that if she would render certain services she would at his death inherit the Barton county tract and an undivided one-ninth of the Stafford county land; that plaintiff performed the services; and that defendant took her deeds without consideration and with knowledge of plaintiff’s contract. The answer pleaded the proceedings and judgment reviewed by this court in the case of Winkler v. Korzuszkiewicz (Shusky), 112 Kan. 283, 211 Pac. 124. That case was one of ejectment and partition, commenced by plaintiff and the members of her group against defendant and the members of her group, and related to the Stafford county land. At the same time, an identical suit was commenced relating to the Barton county land, which was dismissed when Winkler v. Korzuszkiewicz was decided. The original petition alleged that Korzuszkiewicz died intestate, owning the land in fee simple, that plaintiffs and defendants were his children and heirs, and that plaintiffs and defendants each owned an undivided one-ninth of the land of which they were tenants in common. An amended petition stated that plaintiffs and defendants were the children and only heirs of Korzuszkiewicz; that Korzuszkiewicz in his lifetime conveyed the land to his daughter Mary; that each of the plaintiffs had an equitable title to an undivided one-ninth of the land; and that the deed to Mary was void; but if the deed conveyed title to Mary, she held the land as trustee for Korzuszkiewicz during his lifetime, and after his death for the use and benefit of the plaintiffs to the extent of their interest, which was four-ninths of the whole. The grounds upon- which the deed was attacked were want of mental capacity of the grantor, and undue influence, duress and fraud practiced upon him by Mary and the members of her group. One of the fraudulent inducements to execution of the deed was that Mary, not intending to do so, represented to her father that she would at his death distribute the property among all the heirs, according to the law of descents and distributions. The plaintiffs were defeated, and Mrs. Winkler now changes position, claims the land by virtue of contract with her father, and asks for specific performance, possession, and partition of the portion in which she has a fractional interest.
Some preliminary observations will clarify and simplify the problem proposed for solution. Plaintiff’s claim to the Barton county land is identical in kind with her claim to the Stafford county land. In one case the claim extends to the'whole interest, and in the other to an undivided one-ninth interest. Therefore, the Stafford county land may be left at one side, while attention is directed to the Barton county land.
In this action, as in the former suit, it is charged that Mary’s deed is of no avail to her, as against the plaintiff, and is an impediment to plaintiff’s enjoyment of ownership. Method of removing the impediment, whether by setting the deed aside altogether, or using it as a basis for imposing a trust, or holding it to be of no effect because taken without consideration and with notice, is a matter of procedure — adjective and not substantive. The substantive thing is plaintiff’s right, which receives no increment from the remedial means adopted to clear away obstruction and place, her in possession.
As plaintiff states it, the terms of her contract with her father were that, in consideration of rendition of certain services, she would “inherit” the Barton county land at his death. Of course she could not do that. Inheritance is regulated by law and, if plaintiff took as heir, her eight brothers and sisters also took as heirs. Since the contract was intended to cut off their inheritance and give the property to plaintiff alone, its effect was that of a contract of sale for a stated consideration, investing the vendee with title and possession at the vendor’s death.
In view of the foregoing, the question is this: May one who, claiming title to land as heir of an intestate, was defeated in an action of ejectment, recover the land from the same occupant in a second action of ejectment, based upon a claim of title by virtue of being the intestate’s vendee?
There are but two ways known to the law of acquiring title to land. One is by purchase, and the other is by descent. Plaintiff’s claim of title by descent was claim of title by operation of law. Her claim of title by purchase is claim of title by act of the intestate. In the first action, plaintiff asserted, expressly or by implication, that Korzuszkiewicz continued in unqualified ownership of the land to the end of his life; at his death he left it to descend according to the common course of inheritance; he did nothing effective to prevent operation of the law of descents and distributions; consequently, plaintiff took one-ninth, and one-ninth only, as heir; each child belonging to her group took one-ninth as heir; and while the truth might be obscured by defendant’s voidable deed, in reality, the defendant and each child belonging to her group also took one-ninth as heir. In the present action, plaintiff aserts that Korzuszkiewicz did not continue in unqualified ownership of the land, he did not leave it to descend according to the common course of inheritance, he did prevent operation of the law of descents and distributions, and none of Korzuszkiewicz’s children took anything as his heirs, because in his lifetime he sold the land to plaintiff for a price which she paid.
Each of the theories of title proposed involves negation of the other. If there was hereditary succession, there was no purchase, and if there was purchase, there was no hereditary succession. When Korzuszkiewicz died, defendant was in possession, and plaintiff was at liberty to choose the status she would occupy in relation to the land. She knew whether or not she had bought and paid for the land. She could deny the right of her brothers and sisters, and proceed alone as purchaser, or she could make common cause with those who were unfriendly to defendant, and join with them in an attack upon defendant’s deed, in the.capacity of heirs. Whether she would be purchaser or heir depended on her own election. She could not claim under the statute giving her title, and then against it, any more' than she could claim under a will or deed giving her title, and then against it; and having chosen to litigate in the capacity of heir, she was forbidden, when defeated, to renew the contest in the capacity of purchaser.
Plaintiff’s complaint in each case was that, having a title which carried with it right to possession, defendant kept her out of possession under a claim of ownership based on her father’s deed. In the first suit, the court was asked to declare the deed to be ineffectual as a conveyance to defendant on stated grounds: The grantor was not mentally competent to convey; he was unduly influenced; he acted under duress; and he was deceived by fraudulent representations. In that suit the court found the stated grounds of invalidity did not exist, and made the following finding of fact relating to ownership:
“On the 8th day of November, 1917, the defendant, Mary Korzuszkiewicz, the youngest child of all the children, became the owner by deed of general* warranty of all the land owned by her father, . . .”
In the present-suit, plaintiff attaches a supplement to the list of grounds for declaring the deed to be ineffectual as a conveyance to defendant: The grantor had previously conveyed to plaintiff, and defendant was not an innocent purchaser. If the contentions made in the first action are consistent with the contentions made in this action, defendant’s ownership of the land by virtue of the deed is res judicata. Plaintiff was not privileged to attack the same deed in one action for incompetency of the grantor, in a second action for undue influence, and so on through the supplemented list. She was required to urge all grounds for declaring the deed to be ineffectual as a conveyance, in one suit. If the contentions made in the first suit are not consistent with the contentions made in this suit, plaintiff elected what she would contend when she commenced the first suit.
It was noted above that, when the first suit was commenced to recover the Stafford county land, an identical suit was commenced to recover the Barton county land, and after the decision by this court in the Stafford county suit the Barton county suit was dismissed. In applying the principle of estoppel by election, the court looks for the first decisive step. That step was taken respecting the land in both counties when the original suits were filed, and it is of no consequence that the Barton county suit was not pressed.
There is no dispute between counsel for the respective parties about the law. They differ only respecting application of familiar rules to the facts of the case. The conclusion of the court that the successive attitudes assumed by plaintiff were inconsistent, determines the case against her, and the judgment of the district court is affirmed. | [
-16,
108,
-7,
-115,
43,
-32,
42,
-24,
64,
-105,
39,
115,
77,
-40,
0,
109,
-23,
13,
97,
121,
-45,
-73,
21,
19,
86,
-13,
122,
-43,
-74,
-55,
-25,
87,
78,
32,
74,
85,
-28,
-54,
-51,
86,
-114,
68,
24,
73,
-39,
88,
48,
123,
118,
79,
81,
-113,
-13,
-86,
60,
-57,
10,
62,
-37,
-84,
-64,
-72,
-82,
-123,
79,
27,
49,
0,
-104,
-94,
-118,
106,
-112,
49,
-96,
-8,
115,
52,
-122,
-11,
3,
-104,
-87,
96,
103,
51,
-11,
-1,
-96,
-103,
14,
-66,
-115,
-89,
-36,
120,
43,
8,
-90,
-99,
92,
84,
71,
-4,
-20,
20,
28,
108,
22,
-117,
-42,
-79,
-113,
120,
-124,
3,
-25,
-95,
50,
113,
-49,
114,
92,
71,
121,
-101,
-98,
-39
] |
The opinion of the court was delivered by
Harvey, J.:
This is a suit by a woman against her former husband for the recovery of money she had paid out for the support of their children. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for plaintiff for $1,800. The defendant has appealed.
Plaintiff and defendant were married in August, 1904. Four children were born to them. They separated at Flagler, Colo., in August, 1917, the defendant going to work for a bridge company, which work took him into several states, and the plaintiff took the children and went to the home of her parents in Smith county, Kansas. In 1919 she sued for divorce in that county, procured service of process by publication, and obtained a decree granting her a divorce and the custody of the children. Tb,e decree made no provision for alimony for plaintiff nor for the support of the children. Plaintiff was married to a second husband in June, 1920, with whom she was living at the time this suit was brought. Defendant was married to a second wife in 1921, in Smith county, where he w*as living on a rented farm when this suit was brought. He was in debt about $3,000 for money borrowed to purchase livestock and farm implements to conduct the farming operations, all of which property was mortgaged to secure the indebtedness, though the value of such property was not shown. Since the separation in 1917 the children have been with plaintiff, except that for about a year prior to the bringing of this suit the eldest son has been with defendant.
At the time of the separation in 1917 the only property owned by the parties was a business property at Flagler, Colo., which was rented for $55 per month. The title to this property was in defendant. He arranged for the rent to be paid to plaintiff, out of which she was to pay certain bills, and the balance to be used for the support of plaintiff and the children. Later defendant deeded this property to plaintiff, and she sold it, and after paying a mortgage on the property and interest and taxes, used the balance for the support of the children. Defendant sent plaintiff some money from his wages, and about the time of his marriage some arrangement was made by which he was to pay plaintiff $25 a month, which payments were made for some months, for the support of the children.
Appellant criticizes the court’s findings as to the amount plaintiff has paid for the support of the children and as to the net amount she received out of the Flagler property. The evidence concerning those matters is not as satisfactory as it should have been, and perhaps the trial court’s findings as a whole are as accurate as any We could reach from the evidence. The order of the court overruling defendant’s motion to set aside certain findings as not supported by the evidence is not assigned as error, hence we shall regard the finding as proper under the evidence. The court found that plaintiff had expended $2,600 for the support of the children since the separation of the parties. He also found that she received from the sale of the Flagler property $1,000 after paying the mortgage, interest and taxes, and received $900 from rents of that property, after the payment of bills, and that defendant ' had paid to plaintiff from time to time sums aggregating $487.50. This makes total payments by defendant to plaintiff of $2,387.50. Appellant’s real complaint in this court is that the findings of the court do not support a judgment against him of $1,800, and contends that the only judgment which could be rendered against him under the findings is for the difference between the $2,600 which had been expended by plaintiff and the $2,387.50 which had been paid plaintiff by defendant. This point is well taken; the judgment under the findings made should have been for $212.50. In suits of this character there should be a definite showing of the sums paid out by plaintiff and the reasonable necessity therefor (Cheever v. Kelly, 96 Kan. 269, syl. ¶ 3, 150 Pac. 529), and the defendant should be given credit for payments or advances he has made.
Appellee argues that the rents and proceeds of the sale of the Colorado property should be treated as alimony'. There is nothing in the record to support this contention. Ordinarily when one procures a divorce and no provision is made for alimony the litigation on that question is ended. (McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546.) Then, the defendant’s evidence is that this property was turned over to plaintiff for the support of the children, and plaintiff’s evidence is that she used all of it for that purpose.
The judgment is modified by reducing it from $1,800 to $212.50, ard as so modified is affirmed. | [
-48,
110,
-76,
92,
10,
100,
-86,
-118,
113,
-95,
-91,
87,
-87,
74,
16,
105,
110,
45,
64,
104,
-41,
-73,
23,
-63,
82,
-13,
-71,
-35,
-71,
93,
-28,
-42,
76,
48,
10,
-43,
102,
-62,
-59,
20,
-114,
6,
-87,
-59,
-39,
-122,
52,
107,
98,
79,
117,
-114,
-13,
42,
29,
-13,
12,
46,
-37,
-67,
-48,
-16,
-118,
-123,
79,
19,
-111,
2,
-106,
-59,
72,
46,
-40,
57,
8,
-24,
115,
38,
-122,
116,
95,
-103,
9,
52,
102,
19,
-11,
-23,
-20,
-120,
46,
-13,
-99,
-89,
-112,
88,
2,
97,
-76,
-99,
124,
84,
11,
-6,
-1,
13,
61,
-20,
9,
-117,
-106,
-79,
15,
56,
-100,
3,
-13,
-93,
49,
112,
-53,
-94,
93,
71,
122,
-101,
-113,
-66
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action for the contract price of an oil and gas lease on eighty acres of Saline county land. The chief de fense relied on was that plaintiffs had failed to furnish a good and merchantable title as agreed to in the contract of purchase.
The trial court made findings of fact and conclusions of law which were favorable to plaintiffs, and judgment was entered pursuant thereto.
Defendant assigns various errors which will be noted.
It is first contended that the trial court erred in admitting oral testimony concerning the Skaer-Crum Oil Corporation and of plaintiffs’ ownership by succession of this defunct corporation’s assets, which included the amount due on this contract as a chose in action. Since there was no jury to be misled, even if the evidence was incompetent, and since there was competent evidence to the same effect, no prejudicial error was committed in admitting the testimony complained of. (Starbuck v. Kingore, 112 Kan. 102, 210 Pac. 930, and citations.)
It is next urged that the trial court should have made a finding that plaintiffs had not tendered a good and merchantable title. But the record is clear that the title under this contract was to be one which would satisfy the reasonable requirements of defendant’s attorney to whom the abstract of title was submitted, and the trial court found that all such requirements were met by plaintiffs. That was a sufficient compliance with plaintiff’s obligation so far as title was concerned. (Wheeler v. Beem, 111 Kan. 700; 208 Pac. 626.)
But error is also assigned on the trial court’s finding that all the title requirements specified by defendant’s attorney had been fully met. Under this assignment the appellant raises this point: The eighty acres covered by the lease in controversy was part of the United States land grant to the Union Pacific railroad. That grant reserved to the government “all mineral land, should any such be found,” in the tracts granted to the railway company. It is gravely suggested that this reservation may defeat the original patent and the rights of all who hold thereunder. But we have already said that this land was in Saline county. The court takes judicial notice of the fact that Saline county land is now and always has been considered as agricultural, not mineral land. If modern enterprise at some future time should discover that the land has also mineral value, that would not defeat the title. The government parted with all its title to this property by its patent issued thirty-odd years ago and all questions as to the validity of the rights of persons holding thereunder were laid at rest by statute a generation ago. (Act of Congress March 3, 1891, 26 U. S. Stat. 1099, U. S. Comp. Stat. 1918, § 5114; Act of Congress March 2,1896, ch. 39, § 1, 29 U. S. Stat. 42, U. S. Comp. Stat. 1918, § 4901 et seq.) Furthermore, when defendant’s attorney made his memorandum of requirements as to this abstract he made no requirement touching the reservation of mineral lands from the government grants to the patentee. What possible requirement could he conceivably have had in mind? It would be libeling his intelligence to construe his remark relating to reservation of mineral lands in the grant to the railway company to mean that before he would approve plaintiffs’ title they would have to secure from congress a statutory waiver of the government’s reserved mineral rights in this land. This point attempted by defendant is really too captious for patient consideration.
Another objection to the sufficiency of the title pertains to the mortgages covering this and other lands owned by the lessor. No requirement as to these mortgages was made by defendant’s attorney. This eighty acres was only a relatively small part of the lands (880 acres) covered by the mortgages. The lease apparently contemplated the possible existence of mortgages on the real estate and defined the rights of the lessee under such circumstances. The lease provided:
“Lessor hereby warrants and agrees to defend the title to the lands herein described, and agrees that the lessee shall have the right at any time to redeem for lessor, by payment, any mortgage,' taxes or other liens on the above-described lands, in the event of default of payment by lessor, and be subrogated to the rights of the holder thereof.”
It will be noted that while the lessor agreed to defend the title, he did not warrant the real estate to be free from incumbrances; the lessee was given the right to redeem from any and all such incumbrances and was to have subrogation therefor. This provision in the lease contract precludes the idea that the land was warranted to be free from incumbrance; and certainly such a contract stipulation did not render the title unmerchantable, since the lessee acquired precisely what he bargained for.
Another contention of defendant is that the trial court erred in finding that at the time this action was begun the plaintiffs owned and held all rights of the Skaer-Crum Oil Corporation and of their predecessors in title. The evidence disclosed that the Skaer-Crum corporation had been dissolved and its debts liquidated. Its assets, therefore, belonged to the stockholders. The plaintiffs were the only stockholders. They were therefore the beneficial owners of the chose in action in controversy. If on dissolution there had been any unsettled business to attend to, the last board of directors would ex officio have been trustees for the winding up of the corporate business and for dividing the property among the stockholders. The plaintiffs were members of the last board of directors as well as the only stockholders. Their ownership of the chose in action seems to have been fairly well established from the evidence,, and it is not conceivable that it could have belonged to anybody else. So the trial court’s finding of fact on the point cannot be disturbed.
The record contains no error prejudicial to defendant, and the judgment is therefore affirmed. | [
-14,
110,
-7,
47,
56,
96,
56,
-118,
89,
-127,
100,
83,
-19,
-53,
4,
57,
-26,
57,
100,
106,
-42,
-78,
7,
113,
-42,
-73,
89,
-59,
49,
73,
116,
-58,
76,
0,
-54,
-43,
98,
96,
85,
92,
-50,
-124,
-103,
100,
-56,
32,
52,
107,
16,
74,
97,
-114,
-13,
45,
25,
-61,
41,
46,
-53,
61,
81,
-16,
-70,
15,
127,
2,
1,
70,
-104,
70,
-56,
42,
-112,
57,
9,
-4,
123,
54,
-58,
-12,
45,
27,
-120,
-90,
107,
33,
20,
-17,
-20,
-104,
47,
-65,
13,
-90,
-108,
8,
-21,
79,
-74,
-99,
124,
2,
7,
-10,
-26,
5,
95,
-4,
7,
-49,
-42,
-31,
15,
105,
-110,
65,
-21,
-125,
-76,
96,
-51,
-14,
92,
71,
60,
-109,
-113,
-66
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to have a deed conveying certain real property to the defendant declared a mortgage, to have the mortgage canceled, and to compel the defendant to convey the real property to the plaintiffs. Judgment was rendered in favor of the defendant, and the plaintiffs appeal.
A'imee R. Perkins and O. E. Perkins, for the consideration of one dollar executed a warranty deed conveying the real property in controversy to the defendant. The deed was dated May 3, 1921, and acknowledged May 6, 1921. The Citizens State Bank, for a consideration of one dollar, agreed in writing that, upon a payment of $1,000 on or before November 1, 1921, it would make a quitclaim deed to Aimee R. Perkins conveying to her the real property in controversy. Prior to that time, F. M. Perkins, who had been a large stockholder in the Citizens State Bank, sold his stock to one A. F. McClanahan and guaranteed the payment of all notes held by the Citizens State Bank at the time of the sale of the stock. Among the notes in the bank at that time was one signed by John T. Constant for $1,000, secured by a mortgage on real property. This note had been paid and was worthless. The contract by the defendant to convey the land to Aimee R. Perkins provided that on payment of $1,000 the Constant note and the mortgage securing it would be delivered to F. M. Perkins. The evidence of the plaintiffs tended to shdw that the warranty deed was given to secure the discharge of the obligation of F. M. Perkins arising out of the Constant note. The evidence of the defendant tended to show that it had refused to accept the deed except as an absolute conveyance of the property, that the deed had been given as an absolute conveyance, and that the obligation of F. M. Perkins to make good the Constant note had been canceled. The defendant had received $25 a month rent for the property.
The judgment contained the following:
“Whereupon defendants proceed to introduce their evidence, during which time the court indicated in open court what his holding or decision would have been if defendants had stood upon their demurrer, namely, that he would hold that the deed in question was absolute, and that the contract set out in plaintiffs’ petition should be construed and adhered to in accordance with the provisions made therein, except that the plaintiffs should have a reasonable time in which to tender the defendants the sum of $1,000 mentioned in the contract, less the net proceeds of rents and profits collected by the defendants. . . . ”
“And now, on this 30th day of December, a.d. 1922, at a regular session of the November term of the district court, said cause comes on for further consideration by the court, the plaintiffs appearing by their attorney, O. E. Learnard, and the defendants by their attorney, M. A. Gorrill. Whereupon the court reannounces his decision heretofore made, and finds from the evidence that the plaintiff, Aimee R. Perkins, upon the payment by her to the Citizens State Bank at any time on or before May 1,1923, the sum of $871.06, with interest at the rate of six per cent from this date, shall be entitled to a deed to the real estate in plaintiffs’ petition described; and that upon the payment of said amount The Citizens State Bank should execute and deliver to the defendant, Aimee R. Perkins, a deed to said real estate.”
The $871.06 was $1,000 less the amount of rents that had been received by the defendant.
The evidence of the plaintiffs tended to establish their contention, while the evidence of the defendant tended to sustain its position. The court found for the defendant. The complaint of the plaintiffs is in substance that the court should have found that the deed given was a mortgage. The court found otherwise, and his finding was sustained by evidence. Under numerous decisions of this court that finding is conclusive, and compels an affirmance of the judgment. The citation of authorities is unnecessary.
The judgment is affirmed. | [
-16,
110,
-48,
-82,
74,
96,
42,
-102,
-56,
-128,
-90,
83,
-23,
68,
85,
69,
-27,
61,
-43,
107,
-59,
-77,
6,
-94,
-46,
-13,
-47,
69,
-76,
93,
-26,
87,
76,
36,
-62,
29,
-26,
-94,
-61,
28,
-58,
-123,
41,
101,
-35,
64,
48,
43,
64,
76,
21,
-49,
-13,
45,
29,
66,
105,
42,
-53,
57,
80,
-8,
-117,
-115,
127,
3,
-111,
113,
-100,
5,
72,
10,
-112,
53,
1,
-24,
122,
-74,
-122,
-12,
109,
-101,
44,
38,
99,
19,
-27,
-19,
-40,
-104,
46,
-1,
-115,
-90,
-77,
88,
-117,
32,
-67,
-99,
77,
16,
7,
-10,
-22,
-107,
29,
108,
15,
-117,
-42,
-79,
-81,
122,
-102,
-53,
-10,
-125,
48,
113,
-49,
58,
93,
71,
120,
19,
-114,
-39
] |
The opinion of the court was delivered by
Johnston, C. J.:
The Kaw Valley drainage district invoked the extraordinary remedy of mandamus to compel the commissioners of Wyandotte county and the Kansas City Southern Railway Company to remove from the channel of the Kaw river the wreckage of two bridges cast into the river in the flood of 1903, more than twenty years ago, part of which it is alleged is still in the river. It appears from the record that the county bridge was erected in 1879 and that the railroad bridge was built in 1892. The county, it appears, had nothing to do with the building or maintenance of the railroad bridge, and no responsibility for its ■destruction when it was swept away in the flood of 1903, Neither did the railroad company have any part in the construction or maintenance of the county bridge, and of course is not responsible for the unprecedented flood, and it insists it is not ’ responsible for any wreckage of the county bridge that may be in the channel of the river. While the defendants are sued jointly, it does not appear that either was concerned with the bridge of the other, or ■that one can be affected by a judgment that might be rendered against the other. There was no connection between the bridges nor any apparent reason for joining the parties, unless it be the proximity of the bridges, which it is said were only about 150 feet apart, and the possibility that the wreckage may be near together or intermingled in the channel of the river.
Defendants moved to quash the alternative writ issued in the first instance, contending that there was an improper joinder of parties and causes of action; that the averments of the plaintiff were indefinite and uncertain as to the existence or location of the wreckage in the river; that the facts pleaded formed no basis upon which a peremptory writ of mandamus could be issued; that if there is wreckage of the bridges in the river it was placed therein by vis major or act of God, and was not wrongfully placed or maintained there by the defendants; that if it be necessary to remove the debris from the river it should be done by plaintiff, which has been provided, at public expense, with the machinery for clearing the river; that the remedy sought is unreasonable and not within the scope of the remedy of mandamus, and even if the remedy were appropriate it should be denied because of the laches of the plaintiff. The court sustained the motion to quash, remarking that if there were obstructions in the river as alleged, they were not placed or maintained there by the defendants; that the loser of property washed away by the unprecedented flood was not required to search the bed of the river for the same; that as twenty years had elapsed since the flood, and as the wreckage was not definitely located and probably was not susceptible of identification, and as the county was without dredging facilities or means for clearing the channel and the plaintiff had been provided these facilities at great expense, the issuance of a peremptory writ against the defendants was not justified.-
On the application of the plaintiff it was given ten days to amend its pleading, and within that time one was filed, which included a new and supplemental resolution adopted by the board of the drainage district after the ruling on the original pleading, which recited, among other things, that the bridges washed out were too short and too low; that they were built without authority of the state or the United States; that there were seventeen bridges in the vicinity at the time of the flood and that sixteen of them were washed away because they were too low and too short; that they were not wrecked by the act of God, that the county had since rebuilt its bridge under authority of the plaintiff, which had imposed as a condition for rebuilding that the abutments of the old bridge should be removed; that the county had at one time offered to pay a part of the cost of the removal of the wreckage; and that the railway company has not abandoned its right of way and had taken and used portions of the old bridge that were left standing; and that the delay in bringing this action to compel the removal of the wreckage was caused by the promises and the conduct of the defendants. There was in the new pleading an allegation that wreckage of the bridges was so buried in the sand and silt and so intermingled that the identity of the parts of each bridge could not be ascertained or distinguished, and further, that it was impractical to remove the wreckage of one without removing that of the other.
In their answers the defendants repeated the defenses originally set forth and added that plaintiff had elected as its remedy the recovery of damages sustained in respect to the obstructions in the river; that in May, 1923, it served a notice on the defendants stating that it was engaged in clearing the channel of the river and removing wreckage of the bridges, and that it would hold the defendants liable for all expenses incurred in the removal of such wreckage, and if payment was not made a suit for the recovery of the same would be brought. Another averment was that when the bridges were built by the defendants no harbor limits had been established, and that as constructed they complied with the existing law. It was further averred that the plaintiff itself is equipped for removing debris from the river while the defendants are not, that after the river is cleared the liability of defendants, if any exists, may be determined in an ordinary action at law. The railway company alleged that to avoid the expense of litigation it had offered to pay a small sum as the purchase of peace, and that this was the only reason for the proposal made. Some of the allegations of the pleadings are not deemed to be material to the decision that is to be made, and hence are not recounted at length. The testimony of a single witness was heard at the trial, and at the conclusion of the testimony the court again denied the writ.
It is clear that the remedy sought was properly refused. The writ of mandamus does not lie to enforce a right which is in substantial dispute. It is a remedy which may only be resorted to where the party invoking it is clearly entitled to it and where there is no other adequate remedy. It should never be granted in doubtful cases. (Swartz v. Large, 47 Kan. 304, 27 Pac. 993; National Bank v. Hovey, 48 Kan. 20, 28 Pac. 1090.) It is designed to promote justice and hence should not be employed to compel official action that is unreasonable or unjust. (City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309; 26 Cyc. 155.) The demand of the plaintiff is unreasonable and would cast an unjust burden on the defendants. Passing the procedural question of misjoinder, the defendants are asked to excavate sand and silt over a considerable area in order to reach wreckage said to be a part of the bridges carried away by the flood. The wreckage in the river, from whatever source it may have come, is buried to a depth of from two to fifteen feet in the sand and silt in the bed of the river. To reach the wreckage an excavation costing a large sum of money must be made before it can be ascertained whether the wreckage in the river is a part of the bridges swept away twenty years ago, or is made up of trees, timbers, implements and other solids formerly owned by others that may have been carried by the flood from the upper reaches of the river. The county ought not to be compelled to incur the expense of this excavation in order to dig up the property of the railway company or that which formerly belonged to others; neither is it reasonable that other owners should be compelled to uncover and bring up the property of the county. It is specifically alleged and the proof shows that there is no means of ascertaining what the wreckage is without bringing it to the surface. If there is wreckage in the river which was formerly a part of either bridge it was not put there through the volition or action of the defendants, but was thrown into the river by what is recognized by all as an act of God. The fact that the wreckage of one bridge may be intermingled with that of the other or with other debris that has floated down the river is no reason why one defendant should .be compelled to uncover and lift out of the river the property of the other. This must be so even if it were held that either can be required to remove parts of its own bridge that may be found in the river. It is said that the order of the board is an exercise of its legislative power, and that it must be obeyed, but the statute only authorizes the board to make orders that are reasonable, and the reasonableness of its orders is open to judicial review. (Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937.) Where parties have placed obstructions in the river since the flood and the creation of the district and are maintaining them there contrary to a reasonable order of the board, a proceeding to •remove them may be maintained. (Drainage District v. Railway Co., 87 Kan. 272, 123 Pac. 991; Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937.) The bridges of defendants, as we have seen, were destroyed in 1903 before the board had an existence, and in no sense can it be said that the wreckage of these is being maintained in the channel of the river by the defendants.
• Another reason for refusing the writ is that the county is without equipment or funds that may be used in clearing the channel of the river of obstructions. The purchase of dredging machinery and the organization of a force of experts to remove wreckage and put the channel in proper condition would necessarily require a large expenditure of money which is not presently available to the county for that purpose. Inability to comply with a compulsory mandate is generally regarded as a good ground for the denial of the writ. An official act involving the expenditure of money will not be coerced by mandamus in the absence of a showing that the money therefor is at once available. (18 R. C. L. 139, 241.) It would be a useless formality to issue a writ that could not be enforced. It has been held that courts will not exercise this extraordinary jurisdiction where its authority cannot be vindicated by the enforcement of process. It has likewise been held that it will not issue where it would cause disorder in the fiscal affairs of a municipality or be attended with manifest hardships and difficulties. (18 R. C. L. 138.)
Defendants argue, with plausibility, that the district itself has been given control of the river, the clearing of the channel of obstructions and the raising of money to be expended in the improvement of the river. It further appears that the board has expended a large sum of money in providing facilities for dredging and clearing the channel, and even if the owners of property carried into the river by the flood are liable for the expense of removal, the work should nevertheless be done by the board and not by parties unskilled in such work and without proper equipment for carrying it on. Such parties might injure the dikes, interfere with navigation and do that which would cause more damage than benefit. We rest the decision, however, on the ground that the demand made by the plaintiff is unreasonable and would operate unjustly, and because of this view it is unnecessary to determine whether there is a liability of - defendants, recoverable in another form of a.ction, for the expense of moving any wreckage from their, bridges that may be lodged in the river, nor some other questions so much discussed in the briefs. The award of the writ is not an absolute right, but is to be given or withheld in the exercise of sound judicial discretion as the circumstances may warrant. In view of the long delay of twenty years in the bringing of an action, thus tending to show acquiescence of the plaintiff in present conditions and the circumstances already mentioned, the. trial court in the exercise of a proper discretion was justified in giving judgment for defendants.
' The judgment is affirmed. | [
-16,
-22,
-68,
-52,
-54,
-54,
72,
40,
83,
-77,
-11,
83,
-115,
-117,
8,
121,
-26,
-3,
-16,
121,
-58,
-73,
39,
-118,
-110,
-13,
-7,
-49,
-71,
92,
-12,
-57,
76,
48,
10,
-107,
-58,
64,
-59,
-36,
-50,
2,
8,
-31,
81,
-55,
60,
123,
102,
75,
53,
-82,
-13,
43,
20,
-61,
-19,
60,
75,
-86,
81,
-111,
-114,
-44,
95,
20,
49,
32,
-104,
-125,
104,
62,
-104,
49,
1,
-68,
115,
-92,
-122,
-11,
101,
-37,
8,
-14,
98,
33,
-75,
-17,
-20,
-120,
14,
-10,
-115,
-90,
-112,
24,
74,
65,
-74,
-35,
116,
84,
6,
126,
-26,
5,
-33,
108,
3,
-117,
-80,
-13,
-113,
60,
-102,
35,
-53,
33,
50,
112,
-59,
-14,
77,
87,
49,
31,
-97,
-71
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action to enforce a contract for the sale of 160 acres of land.
The property had belonged to one Sallie A. Bowlus, who died testate in 1916. By her will she directed that all her just debts should be paid out of her estate, and devised one-third of the annual crops raised on the land in question to a daughter, Maud, for her lifetime, and provided that if Maud should die before her two children became twenty-four years of age they should receive one-fourth of the crops until they attained that age, after which time and after the death of Maud, the land was to be divided among four persons— two sons, another daughter, and a stepson. A son, Don L. Bowlus, w'as named as executor.
The will was executed on November 24, 1916, and the testatrix died two days later. Some months prior thereto, on April 19, 1916, she had borrowed $1,500 from the Warren Mortgage Company, and had given a mortgage on the property to secure its payment, with interest, in seven years after date.
The personal estate of Sallie, less some household goods specifically bequeathed by the will, was valued at $259. As the time of maturity of the mortgage drew near, the executor filed a petition in the probate court, alleging—
“That the amount of debts ’due from the said Sallie A. Bowlus, deceased, as nearly as they can be ascertained, is sixteen hundred and seventy-five ($1,675) dollars.
“That the amount of charges of administration of said estate is about one hundred dollars.
“That the value of the personal estate and effects of the said Sallie A. Bowlus, deceased, is two hundred and fifty-nine ($259) dollars.”
The petition in the probate court contained pertinent recitals, and the prayer was for an order to sell the property at private sale and to use the proceeds to pay “the debts of said real estate.”
The record shows compliance with the requisite statutory proceedings to sell the property, including the order of the probate court directing its sale. Pursuant thereto the executor contracted to sell the property to defendant for $7,000, less the mortgage of $1,500 and interest due thereon and the taxes for the years 1921 and 1922, all of which the purchaser assumed and agreed to pay. The contract also provided:
“Party of first part [executor] agrees to furnish second party with an abstract of title within ten days showing said land free and clear except the said mortgage and taxes. If any other liens or defects appear in said title first party is to have a reasonable time to correct the same. . . . Can-celled note and mortgage due Warren Mortgage Company and tax receipts 1921 and 1922 to be filed with probate court, Kinsley, Kansas, for receipt. In witness whereof we have hereunto set our hands this 24th day of May, 1923.
“Don L. Bowlus, party of first part,
“Wm. F. Winters, party of second part.”
The contract of sale was approved by the probate court. An abstract of title was submitted to defendant, and his attorney made certain requirements thereon which eventually were satisfied (unless as hereinafter noted), and an executor’s deed was tendered. This was declined, and this action followed.
About the same time foreclosure proceedings to subject the property to the payment of the mortgage indebtedness were instituted in a separate action, which has perhaps little to do with the case at bar.
Defendant grounded his main defense to the plaintiff’s action on the proposition that, no debts or claims were presented to the probate "court for allowance within two years (R. S. 22-702), which would justify the selling of the property; that the files of that court and the petition praying for an order to sell the real estate disclosed personal assets of $259, and that there were no exhibited claims unpaid in the probate court, and none other affecting the estate cognizable by the probate court except the implied claim of the executor for compensation, about $100; that the'duties of the executor had been completed, and nothing remained to be done concerning the executorship except that he be paid and discharged; and that the executor had no power to sell the property nor had the probate court power to authorize or confirm the sale of it.
The trial court made extended findings of fact, some of which read:
“3. The assets received by Don. L. Bowlus as executor of the estate of Sarah A. Bowlus, deceased, were sufficient to pay all claims legally allowed against said estate, together with the probable cost of administration thereof, and all of such claims were paid and such assets received by the executor within two years of the date of his appointment. No claim by the executor for his services or for other costs of administration had been filed or allowed prior to May 19th, 1922. ...
“5. That the mortgage note heretofore referred to on said real property was included in the amount set out in the petition of said executor to sell said I'eal estate in his statement of the amount of debts due from said estate, and that the holder of said mortgage note has never at any time filed a claim therefore in the probate court of Edwards county, Kansas, against the estate of Sarah A. Bowlus, deceased. Since this case was tried and after judgment had been rendered in favor of the defendant, and while the matter was pending on a motion for a new trial, an action was commenced in the district court of Pawnee county, Kansas, for the purpose of foreclosing the mortgage herein-before mentioned.
“6. The abstract of title submitted by the plaintiff to the defendant did not contain any statement of the claims allowed or paid against the estate of Sarah A. Bowlus, deceased.
“7. That the parties to this action by their course of dealings and negotiations rendered the time of the performance of the contract immaterial.
“8. Prior to the time of the filing of the petition the plaintiff had tendered an executor’s deed for said land and furnished an abstract of title and tendered performance of his contract, which tender had been refused by the defendant.
“conclusions of law.
“The court concluded as a matter of law that specific performance of the contract for the sale and purchase of said real estate between the plaintiff and the defendant should be decreed.”
Judgment was entered in favor of plaintiff. Defendant appeals, contending that the probate court proceedings were void, and that the executor’s deed would afford him no protection against the heirs and devisees of Sallie A. Bowlus, and that no such title was tendered him as he should be required to accept and pay for under the equitable principles governing specific performance.
It is settled law that within its jurisdiction a judgment'of a probate court unappealed from is as binding as that of a court of general jurisdiction. (Lake v. Hathaway, 75 Kan. 391, 89 Pac. 666.) Appellant contends that the probate court did not have jurisdiction to authorize a sale of the property to satisfy the mortgage indebtedness, because there was no timely presentation of a claim therefor in that court. In Bank v. Grisham, 105 Kan. 460, 473, 185 Pac. 54, it was said:
“It is also urged that the debt was not exhibited as a demand against the estate. That formality is not required of a mortgagee, if he is content to look to his security alone for payment, and not to the general assets. (Andrews v. Morse, 51 Kan. 30, 32 Pac. 640; Linn v. Ziegler, 68 Kan. 528, 75 Pac. 489; Smith v. Kibbe, 104 Kan. 159, 165, 178 Pac. 427. See, also, Robertson v. Tarry, 83 Kan. 716, 112 Pac. 603.)”
So the real question is whether the probate court had jurisdiction to authorize a sale of the property to satisfy an indebtedness which incumbered it, but which, being a secured indebtedness, did not have to be presented to the probate court for allowance — a claim on the property involved, although not a claim on the general estate unless presented to the probate court for allowance, but one which the probate court could not affect, either by allowance or disallowance, if the security were sufficient for its satisfaction.
It has been held .that an executor may be compelled to use personal funds of an estate to pay off a mortgage indebtedness on real estate, although the latter indebtedness was neither presented to nor approved by the probate court. (Smith v. Kibbe, 104 Kan. 159, 165, 178 Pac. 427.)
In Baker v. Webster, 106 Kan. 326, 187 Pac. 870, 1119, a testator had devised his mortgaged farm to his wife for life, with remainder to some of his children. His executor borrowed various sums to pay taxes, to support the widow, and for other purposes. The executor paid off the mortgage indebtedness on the farm (to Medill, mortgagee) without first having it presented to, or had it allowed by, the probate court. Some of the remaindermen filed various objections to the executors’ final settlement, including the amount claimed by’ him for paying off the mortgage on the farm. This court said:
“It appears that within a few months after his appointment the executor petitioned for and was granted authority to sell the Kansas real estate for the payment of debts and the charges of administration. . . . There is no doubt that when a mere money claim against an estate is sought to be collected out of the personal assets it must be presented within two years after the executor or administrator has given bond. (Gen. Stat. 1915, § 4590.) But the Medill mortgage, like the note, was signed by the deceased and his wife; it was a lien upon the land which was in no wise removed or impaired by the appointment of the executor. When the latter sold the real estate for the payment of debts he had either to sell subject to this mortgage or satisfy the lien out of the proceeds. . . . There is nothing to indicate that Medill looked to the general assets for payment of his mortgage or any part thereof, and the fact that the petition to sell the real estate was grounded on the claim that it was necessary to pay the debts and expenses indicates that the general assets were nil.
“We hold, therefore, that the mortgage was not barred and the payment thereof was properly approved.” (pp. 328, 329, 330.)
In Randel v. Randel, 64 Kan. 254, 67 Pac. 837, it was held that where it was a known fact that the personal property of an estate was insufficient to pay the debts of the deceased, the administrator was not required to wait until such debts had been presented and allowed, but might apply at once for an order to sell realty to create a fund to pay them. The court said:
“It is contended that the sale of the real estate is void because at the time the probate court made the order of sale there were no debts established or allowed against the estate of the deceased. There is no provision of our law which provides or requires that debts shall be allowed against the estate by the probate court before lands may be ordered sold. The law is that when the administrator ascertains that the personal property will not be sufficient to pay the debts he may petition the court to sell the real estate. (Gen. Stat. 1901, §2919.)” (p. 255.)
The statute just cited is R. S. 22-801, which reads:
“As soon as the executor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased and the charges of administering the estate, he shall apply to the probate court for authority to sell the real estate of the deceased, or any interest he may have in any real estate situated within this state subject to the payment of debts.”
Neither by the statute itself, nor by the interpretation thereof, as shown in the excerpts of cases above cited, can it be said that the executor, under sanction of the probate court, had no power to sell the property to pay the secured indebtedness due the Warren Mortgage Company. Nor can there be any doubt of the jurisdictional power of the probate court to give its sanction thereto. The pertinent statutes read:
“22-802. In order to obtain such authority, the ex-ecutor or administrator shall file his petition in the court which issued his letters testamentary or of administration.”
“22-804. The petition shall set forth the amount of debts due from the deceased, as nearly as they can be ascertained, and the amount of charges of administration, the value of the personal estate and effects, and a description of the real estate to be sold.”
“22-807. If the court is satisfied that it is necessary to sell real estate of the deceased to pay his debts, it shall order the real estate described in the petition, or so much thereof as may be necessary for the payment of the debts, to be sold at public or private sale, as the court may direct, by the executor or administrator, for cash in hand, or upon deferred payments not exceeding two years, with interest, as shall be ordered by the court.”
It is argued, however, that if the files of the probate court are searched it will appear that no debt had ever been exhibited against the estate of sufficient magnitude to justify the order of the probate court that the property be sold to satisfy it. That argument is mere reiteration of the contention that the land can only be sold to pay debts which must be proved against the estate. A fair reading of the statute warrants no such interpretation. The statute does not even require the executor to defer his application to the probate court for leave to sell the realty until claims which would seemingly justify its sale have been presented. (R. S. 22-801; Randel v. Randel, supra.) And on proper occasion the probate court may approve the sale of realty to pay a debt never exhibited in conformity with the provisions of R. S. 22-702, the so-called statute of non-claim. [Baker v. Webster, supra.) In view of this, it seems clear that the probate court had jurisdiction to order the sale of the realty of the testatrix to satisfy the indebtedness.
This conclusion, of course, necessitates an admission that the tes- • tamentary disposition of the property will fail. This is measurably true, but when Sallie A. Bowlus made that will she knew she had already mortgaged the property, and knew that by her will she was making no provision to pay the indebtedness secured by it, and knew that she had insufficient assets to meet that indebtedness, and as everybody is assumed to know the law, she knew to a moral certainty that, barring possible circumstances she could not foresee, her land would be sold in a few years either by her executor or by the mortgagee, her creditor, and her testamentary disposition of it in whole or in part defeated.
It follows that the probate court had jurisdiction to authorize the sale of the property; the proceedings under which the property was sold contained no irregularity, and being unappealed from were binding and valid against either direct or collateral attack. If the heirs or devisees of Sallie A. Bowlus, or other interested parties, should dig into the official files pertaining to this estate they will have no difficulty in discovering that the material facts alleged in the executor’s petition were perfectly true, and that the indebtedness for the payment of which this property was ordered sold did exist, and that its bona fides was beyond dispute, as the probate court did determine and as it had jurisdiction to determine. (11 R. C. L. 326, 327, 339, 341.)
The conveyance tendered to defendant, an executor’s deed, was the only sort of deed an executor proceeding under lawful authority could execute, and defendant cannot be heard to say that he contracted for any other; and there was no infirmity in the title or conveyance to justify its rejection or to relieve defendant from his contract of purchase. (Maupin on Marketable Title to Real Estate, 708; 25 R. C. L. 275-276.)
The other arguments urged against the judgment have been considered but need no discussion. The record discloses no error and the judgment is affirmed.
Burch, Mason, and Harvey, JJ., dissenting. | [
-15,
108,
-36,
-51,
26,
96,
26,
-38,
121,
97,
-91,
87,
107,
82,
20,
105,
55,
73,
81,
104,
-9,
-77,
23,
0,
82,
-13,
-79,
-51,
-79,
93,
-9,
-33,
76,
40,
10,
-99,
-26,
-126,
-63,
82,
94,
80,
-119,
-11,
-35,
-30,
48,
43,
82,
72,
85,
14,
-77,
41,
61,
110,
40,
44,
-7,
57,
80,
-96,
-113,
-123,
127,
27,
-112,
70,
-104,
-57,
-56,
10,
-112,
49,
0,
-24,
123,
-90,
-106,
84,
11,
-103,
8,
98,
102,
19,
-91,
-17,
-104,
-120,
39,
118,
-115,
-89,
80,
88,
-110,
8,
-74,
-98,
124,
80,
7,
-10,
-18,
-107,
93,
105,
1,
-113,
-106,
-95,
-114,
-2,
-100,
-102,
-21,
47,
48,
113,
-51,
34,
93,
99,
52,
-109,
-114,
-35
] |
The opinion of the court was delivered by
Dawson, J.:
The plaintiff, a citizen and resident of Kansas, en- . listed in' the United States army in 1913. His term of enlistment expired during the world war and he reenlisted and served abroad until he was honorably discharged at Gievres, France, on June 20, 1919. Plaintiff remained in France for over three years, sailing for the United States in February, 1923. He was shipwrecked, rescued, and landed at Baltimore, where he secured employment. During the winter of 1923-’24 he learned that the state of Kansas had enacted compensation for Kansas soldiers, but he was then seriously ill and unable to learn the requirements for securing it. In May, 1924, he returned to Kansas, at which time he made application for compensation.
The defendant board declined to consider, allow or reject his claim for compensation because of the statute which, in part, reads:
“73-146. Time for presentation of claims. That the state compensation board is directed not to receive any claim or claims, under the provisions of the compensation acts heretofore enacted and that may be enacted at this session of the- legislature subsequent to January 1, 1924, and said board shall forthwith publish notice of this direction in the official state paper: Provided, however, That this act shall not apply to minors or persons under legal disability.” (L. 1923, ch. 8, § 1, Sp. Sess. [H. J. R. No. 1]; Aug. 19.)
Our original jurisdiction in mandamus is invoked to require the defendant board to act on plaintiff’s claim. The board moves to quash, and the cause is submitted on the petition and motion.
It seems clear that plaintiff’s cause must fail. He was not a minor; he was under no legal disability. To suit his own inclination he tarried in France; he did not keep in touch with affairs in his home state. That he was shipwrecked was unfortunate; likewise that he was ill for some time in the East. But these untoward occurrences only covered a relatively small part of the time provided for the presentation of claims. The state cannot be expected to maintain permanently the necessarily expensive establishment of a compensation board to audit and allow claims which are unreasonably delayed in their presentation. For all practical purposes, so far as Kansas was concerned, the world war ended by the middle of the year 1919 when the mass of Kansas soldiers got home or could have gotten home. (R. S. 73-102.) The setting of the date, January 1,1924, as the limit when compensation claims would be received and audited was reasonable to the point of generosity, and only complete indifference on the part of plaintiff to what was going on at home could have prevented him from knowing of the adoption and enactment of compensation for Kansas soldiers in plenty of time to take advantage of its terms.
The motion to quash is sustained and the action is dismissed. | [
-16,
104,
-36,
63,
26,
96,
42,
-126,
80,
-127,
37,
83,
109,
67,
1,
105,
108,
41,
80,
123,
-25,
-73,
22,
-118,
-46,
-13,
-7,
-43,
-71,
77,
-8,
92,
76,
56,
14,
-47,
102,
74,
-63,
28,
-50,
4,
-88,
-51,
91,
16,
48,
123,
-46,
27,
17,
-66,
-29,
42,
20,
-41,
41,
44,
-53,
-8,
-63,
-79,
-118,
7,
-19,
16,
33,
6,
-98,
71,
80,
63,
-40,
16,
-15,
-19,
121,
-90,
-122,
117,
35,
-71,
-96,
98,
99,
33,
21,
-23,
-4,
-72,
46,
-78,
-113,
-92,
-107,
80,
67,
109,
-106,
-103,
127,
20,
38,
120,
-6,
4,
-43,
44,
7,
-117,
-74,
-77,
95,
36,
-106,
19,
-21,
-127,
-76,
113,
-44,
-30,
92,
67,
122,
-69,
-113,
-6
] |
The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the city of Hutchinson to enjoin the defendants from erecting a machine shop over Cow creek, a stream which runs diagonally through the city of Hutchinson. Originally the stream took a zigzag course through the city, and in 1878, in order to straighten it and thus facilitate the flow of water and prevent overflows in times of flood, a right of way 150 feet wide was condemned which extended from the northwest to the southeast through the city. The old bed was abandoned and a new channel for the stream was cut in this right of way. The defendants owned four lots through which the right of way had been condemned. Over forty years later they began the construction of a building which according to the plan was to extend across the right of way and channel of the stream. The proposed structure was designed to be built of concrete, three stories high, 160 feet long and 40 feet wide. Foundation walls had been constructed and caissons 20 feet apart had been built in the channel of the stream. Retaining walls had been built about 50 feet apart and between these walls there was ordinarily a flow of water 12 feet wide. The city alleged that the structure would interfere with the drainage of the city and cause it to be flooded in times of high water, and if the caissons and foundations are allowed in the bed of the stream and along the banks it will interfere with the proper drainage and cause the creek to overflow its banks, with the result that property will be destroyed and the health of the citizens injured. Testimony was offered as to the condemnation of the ground for the new channel and as to the plans of the building which defendants proposed to build. There was testimony, too, that other buildings had been erected on the right of way, some of which encroached upon the channel and would obstruct the flow as much as the structure proposed to to be built by the defendants. The court found that in pursuance to an ordinance passed in 1878 the city condemned a right of way 150 feet wide across the lots. That while the channel was cut across the lots it had never occupied all of the 150 foot right of way. It is found that taxes had been levied and collected by the city on buildings previously constructed on the right of way. The court sustained a demurrer to the defendants’ evidence, holding that it did not prove or tend to prove a defense to plaintiff’s cause of action and that defendants had no right to take possession of or erect a building over or across the right of way. The order of injunction was allowed.
There can be no question but that the city obtained such interest in and control of the right of way as can be gained by a condemnation. The purpose of condemning and procuring land for a change of the channel of the stream is undoubtedly a public and a legal one. The validity of the ordinance under which the appropriation was made is not questioned. It is conceded to be a valid appropriation of the ground for the purpose of providing a suitable channel for the flow of water in the creek, and that no one has a right to obstruct the natural flow of the water which passes through the creek. It is contended that the proprietors of the lots from which the right of way was taken are entitled to use any part of such right of way as is not necessary to the purpose for which the property was condemned. The public authorities appear to have determined that a. strip of land 150 feet wide was necessary for carrying off the water and draining the city.
There is little evidence as to the effect of freshets or of flood.conditions on the stream or as to the necessity for the use of the entire right of way to carry off the flow of water coming from the watershed. Enough is admitted or shown, however, to warrant the injunction against the placing of foundations and caissons in the channel of the stream. The wall of defendants narrowed the course to 50 feet, and defendants concede that seven piers are designed to be built across the channel each of which is 30 inches in diameter. It was shown that there is ordinarily 30 inches of water in the stream, and the proposed building of defendants over the stream will only be 4 feet and 7 inches from the top of the water to the beams of the building. The extent of the watershed is a well known fact and the volume carried during freshets or heavy rains is necessarily great, and whatever may be the rights of the defendants in parts of the right of way not needed or used for the purposes for which the appropriation was made, defendants had no right to interfere with the use of the channel, no right to place the obstructions mentioned in the channel without the consent of the city. (K. C. Rly. Co. v. Allen, 22 Kan. 285.) These obstructions within the flowing limits of the creek necessarily would impede the flow and to an appreciable extent defeat the use and the rights obtained • by the city in the condemnation proceeding. The whole right of way 150 feet wide was condemned, and the presumption must be not only that the condemnation was legal but that in this proceeding it was determined that there was a necessity for an appropriation of land and also for the quantity of land taken. (Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251.) All recognize that there is need for more land than is required for the channel itself. It is necessary that there shall be room for embankments and a roadway along the stream, so that the city may have access to the channel in order to maintain it and keep it in good condition. Again, the city authorities doubtless considered the future growth of the city, and were making provisions for the greater accumulations and flow of water that will result from an enlargement of the boundaries of the city. Whether the city acquired the full title and exclusive right to the ground condemned or only such right as is necessary to accomplish the purpose, and whether all of the strip condemned is necessary to effectuate that use, it is not necessary in this case to decide. Evidently it was the view of the district .court that the city obtained the exclusive right to the whole, but that question will be reserved until there is a fuller presentation of the facts and law, and also where it 'is essential to the decision of the case.
There is a further contention that the city should not prevail since other structures had been erected which encroached on the ground appropriated as much as would the proposed building of the defendants. The fact that officers may have been lax in protecting the rights of the city, or have failed to take steps to expel intruders, or that the city itself through its officers have used portions of the condemned ground for other purposes, does not relieve the present officers from performing their duties in this respect nor estop them from asserting the rights of the city. In matters relating to public welfare or any exercise of the police power a state or any of its municipal agencies is not estopped to assert or protect public rights. It is held that a state cannot estop itself even by grant or contract from the exercise of the police power. (Texas & N. O. R. R. Co. v. Miller, 221 U. S. 408; Denver & R. G. R. R. Co. v. Denver, 250 U. S. 241; The Sanitary Dist. v. United States, 45 Sup. Ct. Rep. 176.) Nor is there any basis for a contention that the city has abandoned the property condemned. Those who entered upon the property and occupied a part of it stand in about the same relation as if they had intruded upon and used portions of a public street. It is held that public property cannot be diverted from the use for which it was acquired, and that those who intrude upon and occupy public grounds are presumed to hold it subject to the paramount rights of the public. (Giffen v. City of Olathe, 44 Kan. 342, 24 Pac. 470; Wilson v. City of Neosho Falls, 93 Kan. 178, 144 Pac. 230.)
Under the facts the city was entitled to the injunction granted, and the judgment is therefore affirmed. | [
-16,
-22,
-112,
-18,
58,
74,
0,
-104,
73,
-87,
-76,
87,
-83,
-37,
4,
113,
71,
125,
-44,
121,
-57,
-77,
3,
-14,
-110,
-45,
-13,
-51,
-6,
77,
-10,
71,
72,
53,
74,
-107,
-26,
-128,
69,
92,
-122,
-75,
9,
-63,
-11,
64,
54,
123,
114,
71,
21,
45,
-13,
40,
28,
-61,
-87,
44,
75,
44,
81,
-15,
-88,
-107,
93,
7,
49,
96,
-97,
3,
-24,
56,
-48,
-79,
-112,
-72,
115,
-90,
-105,
116,
79,
-101,
44,
118,
99,
3,
109,
-53,
108,
-104,
14,
-38,
-115,
-90,
-112,
25,
10,
33,
-67,
-107,
117,
18,
6,
126,
-2,
-108,
91,
108,
-123,
-105,
-76,
-79,
-49,
56,
-108,
5,
-17,
-125,
50,
101,
-57,
-78,
95,
101,
83,
27,
-98,
-40
] |
The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel the officials of the city of St. John to issue duplicate bonds to take the place of bonds formerly issued by the city and which were lost while owned by plaintiff. The application for the writ avers that in 1920 the city of St. John, through its proper officers, duly and legally issued certain bonds, which are described, both principal and interest payable to bearer at the office of the state treasurer; that on November 2, 1923, plaintiff was the owner of the bonds described and had them in its vault, when four bandits entered and robbed the bank of a large amount of cash and bonds, among them the bonds previously described; that plaintiff at great expense has endeavored without success to apprehend the bandits and recover the bonds, and that the same are lost; that thereafter plaintiff presented to the city an affidavit of its ownership of the bonds and their loss and requested the city to issue duplicate bonds in lieu thereof; that it had offered to indemnify the city by a good and sufficient bond from loss which might accrue by reason of the issuance of such duplicates and to pay the expense of such issue, but the city has refused to issue such duplicates. The state treasuruer is made a defendant, and as to him it is averred the bonds and coupons are made payable at his office and some accrued interest is now in his hands.
The return of the city admits that it issued the bonds described in the application; that they were payable to bearer at the office of the state treasurer; that they were stolen from plaintiff as it averred; that plaintiff had requested the city to issue duplicate bonds, had offered to furnish a proper indemnity bond to the city and to pay the expense of such issue, which request the city had refused; and admits it has paid to the state treasurer interest on the bonds as the same matured. It further alleges that defendant intends to pay to the state fiscal agency the interest and principal of the bonds as the same come due; that the bonds are payable to bearer, negotiable without indorsement, and are likely to pass into the hands of holders in due course who will be entitled to receive payment thereon; that the statute authorizing the city to issue duplicate bonds when originals have been lost, mutilated or destroyed is not mandatory, but leaves it to the discretion of the city officials, and that in refusing to issue such duplicates the city officials are exercising such discretion in fairness and good faith, believing such action to be for the best interest of the city and with no desire to injure plaintiff; that the statute does not provide for the issuance of duplicate for original bonds which have been stolen, but only for original bonds which have been lost, mutilated or destroyed; that the issuance of such duplicate bonds would affect the credit of the city, tend to render its bonds unmarketable, and to increase the liability of the city beyond the legal limits of bonded indebtedness; and that the application for the writ does not state facts sufficient to justify the issuance of the writ or to state a cause of action. The plaintiff has moved for judgment notwithstanding the answer. The state treasurer moved to dismiss because the application prays for no specific relief as to him.
We take it that what the parties really want is an adjudication of their respective rights and duties. When state or city officials have a clear understanding of their rights and duties it is seldom necessary to issue a writ of mandamus to compel them to perform their duty. These .questions require an interpretation of our statute, which reads:
“That whenever any bond or warrant of the state or territory of Kansas, or any county, city, township, or school district, shall become so far mutilated as to become unfit for circulation, or shall be lost or destroyed, a duplicate thereof may be issued by the officer authorized by law to issue such bonds or warrants, under the regulations and restrictions hereinafter prescribed.” CR. S. 10-701.)
“Such duplicate shall correspond, in number, date, amount and coupons, with the original bond or warrant, and shall have indorsed on its face, and on the face of each coupon, by the officer issuing the same, the word ‘duplicate,’ together with the date of its issuance.” (R. S. .10-702.)
“A duplicate for a lost or destroyed bond or warrant shall not issue until there shall have been filed with the proper officer an affidavit of some person knowing the facts, setting forth the ownership of such bond, the description thereof, the number of coupons thereto attached, and the manner of its loss or destruction, and until there shall have been executed and filed with the same officer an indemnifying bond, with securities to be approved by such officer, in a sum equal to double the amount of such warrant or bond and the coupons attached, conditioned that the parties thereto shall pay all damages which the state, county, city,-township or school district, as the case may be, may sustain if compelled to pay such lost or destroyed bonds or coupons.” (R. S. 10-704.)
The defendant city calls attention to the wording of the statute, that the permissive word “may” is used instead of the imperative word “must” or “shall,” and argues with much force that the statute vests a reasonable discretion in the officers, and does not compel the issuing of duplicates when the officials acting fairly in the matter do not deem it to the best interest of the city to do so.- As we view the matter, the statute is, first, an enabling or authorizing statute, for, generally speaking, no municipality has authority to issue bonds for any purpose unless the power to do so is specifically granted, or necessarily implied, by legislative enactment; second, in harmony with most statutes authorizing bond issues, there are certain matters to be passed upon by the officials in which they should in fairness use a reasonable discretion; here the sufficiency of the affidavit of the loss of the bonds, the form of the indemnifying bond to be given and the sufficiency of the sureties thereon, and perhaps the expense of issuing the duplicate bonds, but, third, when the matter has reached the stage that one de jure entitled to the bonds has made a proper showing of their loss, furnished an indemnity bond in the amount required by the statute, in proper form and with adequate sureties, and is willing to pay the actual expense of the reissue, he is entitled to have the duplicates issued to him, and the statute should be construed as mandatory. (Kansas Pacific Railway Co. v. Reynolds, 8 Kan. 623, 628; In re McCort, 52 Kan. 18, 20, 34 Pac. 456; Phelps v. Lodge, 60 Kan. 122, 124, 55 Pac. 840; The State v. School District, 80 Kan. 667, 103 Pac. 136; Johnson v. Connelly, 88 Kan. 861, 129 Pac. 1192; Gleason v. Sedgwick County, 92 Kan. 632, 141 Pac. 584; and see generally cases cited in Words and Phrases, first and second series.)
By the pleadings in this case it is averred and admitted that plaintiff was the owner of the bonds in question at the time they were stolen. It did not lose title to the bonds by their theft from it, hence it is still the rightful owner of the bonds and is entitled, primarily to receive payment of the interest and principal thereon. Anyone else presenting the bonds or coupons for payment and claim ing to be a holder in due course of them would have the burden of proving that fact. And the defendant city, with knowledge of plaintiff’s ownership and the theft, could not safely pay either the interest or the principal of these bonds to any other holder of them without first requiring such holder to assume the burden and establish the fact that he is a holder in due course.
In 2 Daniels on Negotiable Instruments, 6th ed., § 1470, it is said:
“When, however, the loss by the original owner, or the theft from him, is proved, the burden of proof shifts, and the holder must show that he acquired it bona fide for value, and before maturity, or from some one who had a perfect title.”
This is in accord with the provisions of our negotiable-instruments law. (R. S. 52-505; R. S. 52-509.) See, also, 2 Parsons on Notes and Bills, pp. 256-260; Edwards’ Bills, Notes and Negotiable Instruments, § 434; Byles on Bills, 7th ed., 378, et seq.
Such being true, a field is open for many suits. There are several of these bonds, each having semiannual interest coupons attached. It is possible for each bond and each coupon to be the basis of a separate action by the holder against the city, and each bond and coupon might form the basis of an action by plaintiff against the city. This situation arises without any fault on the part of the city — its bonds were issued for a. lawful purpose, in legal manner and in legal form, and in this case without fault on the part of the plaintiff; yet it is a situation which is hazardous both to plaintiff and defendant. Without a statute specifically pertaining to the matter courts of equity were sometimes called upon and undertook to handle the situation, having due regard for the rights of all parties. In some of the cases a chancellor was appointed with authority to issue duplicate bonds on indemnity being given or such other terms as would secure the rights of the issuing body. In some cases the court required the suit to take the form of an injunction by the rightful owner of the bonds against the issuing body, enjoining it from paying either interest or principal to anyone else claiming to be a holder of the coupons or bonds, and providing that such holder could interplead in such suit and required him to establish the fact that he was a holder in due course. (See 25 Cyc. 1608, 1614, 1615; 28 Cyc. 1645; 13 Enc. Pl. & Pr. 357, and cases cited; Bainbridge v. City of Louisville, 83 Ky. 285; Hinckley v. Union Pacific Railroad, 129 Mass. 52; Munroe v. Weir, 177 Mass. 301.)
Our legislature as early as 1868, in an effort to avoid the confusion of rights and the possible litigation growing out of such a situation, passed the statute above mentioned. By this statute the issuing body, the city in this case, is relieved in the first instance, at least, of litigation with the lawful owner, the plaintiff in this case, by issuing to it duplicate bonds, and it is protected against any claim for payment that it may rightfully make to a holder of any of the coupons or bonds by the indemnity bond given by the lawful owner. This is at least a partial, and may be a complete, solution of the difficulty in which both the issuing body and the lawful owner find themselves. And, to the extent that it is a solution of the difficulty, it is beneficial both to the lawful owner and to the issuing body. There is no reason why a compliance with it on the part of the issuing body should not be enforced by mandamus, if necessary.
The defendant city argues that the statute does not apply to stolen bonds, but only to those which have been mutilated, lost or destroyed. There is no merit in this; a bond stolen from the lawful owner, and for which he has made diligent and exhaustive search, is lost to him. The authorities discussing the rights of the parties treat loss and theft from the rightful owner as the same. (8 C. J. 796; 19 A. & E. Enc. of L., 2d ed., 569.)
In Force v. City of Elizabeth, 27 N. J. Eq. 408, it was held:
“Equity, in relieving against the loss of a bond payable to bearer, makes no discrimination against loss by theft.”
Lastly it is argued that the issuing of duplicate bonds might be construed as increasing the bonded indebtedness of the city and would tend to impair the city’s credit. Such issue, being duplicates, would not increase the bonded debt of the city; there is no reason why it should impair its credit.
Because the bonds are payable at the office of the state treasurer, which is by statute (R. S. 10-501) the state fiscal agency of the state, and some payments of interest, which plaintiff is entitled to receive, have been paid to the state treasurer, the indemnity bond in this case should run to the state of Kansas, for the benefit of the city of St. John and the state treasurer.
Judgment will be rendered for plaintiff. The writ of mandamus will not be issued at this time, but the case Will be held open for the purpose of making such further orders as may be necessary. | [
-16,
108,
-12,
-66,
58,
96,
10,
-72,
83,
-103,
-92,
-45,
-87,
107,
17,
109,
-1,
-3,
-44,
106,
-10,
-74,
31,
10,
-46,
-13,
-15,
-59,
56,
111,
-10,
84,
92,
52,
-118,
-99,
70,
64,
-63,
94,
-50,
-127,
-85,
-27,
91,
120,
52,
121,
96,
3,
117,
30,
-21,
44,
20,
126,
73,
40,
-55,
61,
80,
-7,
-119,
-115,
93,
20,
-127,
16,
-99,
69,
-48,
46,
-104,
53,
20,
-24,
115,
-90,
-122,
116,
109,
-101,
8,
114,
38,
16,
-11,
-25,
-4,
-120,
62,
-6,
-121,
-90,
-108,
0,
107,
36,
-108,
-99,
77,
20,
-89,
126,
-29,
20,
93,
108,
15,
-50,
-10,
-93,
-85,
108,
28,
3,
-45,
35,
52,
113,
-52,
34,
92,
103,
16,
27,
-113,
-39
] |
The opinion of the court was delivered by
Mason, J.:
The state board of administration on December 27, 1924, made an order removing the chancellor of the state university from that position. On the same day the chancellor brought an action in the district court asking an injunction against the enforcement of the order, the operation of which was stayed pending the hearing. On January 5 judgment on the pleadings in favor of the defendants was rendered in the district court, and the plaintiff appeals.
The plaintiff contends that the board of administration can remove the-chancellor of the university only for cause. The board asserts that he is removable at its pleasure.
The statute contains two seemingly conflicting provisions, one supporting the plaintiff’s view, the other that of the board. They are:
“The board of administration shall appoint a chancellor, who shall be the chief officer of the university, the head of each department thereof, and whose duties and powers otherwise than prescribed in this act shall be prescribed by the board of administration. ... . The said chancellor shall hold his place at the pleasure of the board.” (R. S. 76-304.)
“It shall be the duty of the board of administration to appoint a superintendent or other chief executive officer of each institution under its control, and said officer shall hold his office unless removed by' the said board of administration for official misconduct, neglect of duty, incompetency, or other cause; belief or political affiliation of such officer shall not be sufficient cause.” (R. S. 76-121.)
“In case any superintendent or other executive officer of either of the institutions under the control of the state board of administration shall fail, neglect or refuse to abide by the rules and regulations of such board or shall fail to carry out in good faith any order of such board, the said board shall have power to remove such officer from his office.” (R. S. 76-105.)
If these conflicting statutes stood upon equal footing in point of time of their enactment there would be good ground for invoking the rule that the general provision must yield to the specific, thus giving effect to that relating to the chancellor alone. The provision that the chancellor should hold his office during the pleasure of the appointing power (then the board of regents) originated in 1889 (Laws 1889, ch. 258, § 8.) The section containing it was rewritten in the revision of 1923, but the only change made other than verbal was to substitute the new appointing power, the board of administration, for the old. In 1905 the board of control was given the appointment of heads of state institutions other than the university, the appointees to hold until removed for cause. (Laws 1905, ch. 475, §§ 24, 21.) In 1917 the board of administration was created, and the university, as well as the other state institutions, was placed under its supervision. (Laws 1917, ch. 297, § 14.) In the revision of 1923 the name of'the board of administration was substituted for that of the board of control in the sections of the act of 1905 above cited. The plan of having the head of the university hold office until removed for cause instead of being removable at pleasure was therefore the later expression of the legislature on that particular subject, and should have the preference under the rule for construing the provisions of a statute, so far as they are the same as those of any prior statute, as a continuation of them and not as a new statute. (R. S. 77-201, sub* div. first.)
But the statute authorizing the chancellor of the university to hold the position until removed for cause is in conflict with the provision of the state constitution that—
“The tenure of any office not herein provided for may be declared by law; when not so declared such office shall be held during the pleasure of the authority making the appointment, but the legislature shall not create any office the tenure of which shall be longer than four years.” (Art. 15, § 2.)
The chancellor is obviously an officer. He is described in one statute as a “superintendent or other chief executive officer” of a state institution and in another as the chief officer of the university. He is the head of a governmental department. A statute fixing a definite term of office at more than four years or an indefinite tenure during good behavior is to that extent void, and the incumbent holds at the pleasure of the appointing power. (Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351; Haney v. Cofran, 94 Kan. 332, 146 Pac. 1027.)
It is suggested in behalf of the plaintiff that although the chancellor holds his position at the pleasure of the body which appointed him, there are limits to arbitrary conduct in this respect beyond which the board may not go, and that the pleadings raise an issue of fact in this regard. In an English -case, where the head master of Rugby was dismissed by the governing body and the validity of the act was challenged in court, language was used indicating the power to remove in order to be beyond judicial review must be honestly and fairly exercised. There, however, the court refused to interfere, Vice Chancellor Malins saying:
“It is impossible for this court, when parliament has put it so absolutely in the power of the governing body, to interfere. I repeat, according to the construction of the act of parliament, my opinion is that every head master of a public school — that is, of the great public schools, for I believe every one of them is subject to this act — that every head master is as much at the mercy of the governing body as a coachman is at the mercy of his master, and can be dismissed with or without reason.” (Hayman v. Rugby School, 43 L. J. Ch. 834, 855; L. R. 18 Eq. 28.)
Possible conditions might of course exist justifying a court in disregarding an order removing an officer who held only at the pleasure of the body making it, such, for instance, as actual corruption or its equivalent. But the fact of its having been due to prejudice or passion will not justify a judicial retention in office of one whose title to it has been thus terminated.
We do not regard the allegations of the petition as tendering an issue of fact proper to be determined by the court.
It is suggested further that, conceding, for the purpose of the argument, that the board had the power to displace the chancellor without reason other than its own pleasure, it undertook to remove him for cause and is confined to that method. We think the pleadings show the order of removal to have been made in the exercise of the plenary and absolute power of the board, the allegations of its answer in that connection having rather the color of explanations of the motives which actuated it than of grounds authorizing its course.
The judgment is affirmed.
Harvey, J., not sitting. | [
-76,
-24,
-36,
-84,
27,
96,
26,
-76,
67,
-109,
39,
-45,
-87,
-45,
5,
125,
-109,
111,
-41,
89,
-41,
-9,
-58,
-31,
118,
-45,
-6,
-123,
55,
110,
-11,
127,
13,
-80,
10,
-43,
-58,
67,
-55,
-36,
-118,
7,
-86,
-19,
-47,
-55,
48,
43,
82,
-113,
97,
-33,
-13,
44,
17,
71,
-24,
40,
-39,
41,
-7,
-79,
-100,
-115,
127,
4,
51,
35,
-72,
-89,
-24,
46,
24,
57,
-121,
-4,
33,
-74,
-126,
100,
79,
-71,
40,
98,
98,
17,
47,
-9,
-80,
-104,
46,
40,
-67,
-90,
-109,
25,
-86,
0,
-74,
-71,
117,
80,
3,
116,
-26,
-124,
-41,
36,
76,
-118,
-122,
-75,
-57,
-27,
-98,
2,
-21,
-29,
49,
112,
-116,
-22,
93,
71,
18,
19,
-122,
-44
] |
The opinion of the court was delivered by .
Dawson, J.:
Plaintiff bank brought an action to recover on a note for $222 executed by defendant.
Defendant answered that the note was a renewal of one given in consideration of a policy of life insurance which defendant had applied for but never received. Another consideration was to have been a $100 certificate of stock in the insurance corporation and that had not been received. Defendant also alleged that the plaintiff’s cashier, Hemphill, was working in connection with one Higgins, agent of the insurance company—
“That Hemphill was fully cognizant of what Higgins was doing in reference to writing life insurance and was advising and directing Higgins as to prospective applicants, and directing Higgins to call on defendant for the purpose of selling him life insurance, and knew at the time Higgins delivered the note dated August 10, 1921, for $214.50 to the bank that the same was taken by Higgins as a premium for a policy of life insurance to be thereafter delivered to defendant; that Hemphill knew at the time the bank took said note that no policy of life insurance had been delivered to defendant and that no stock in said company had been issued or delivered to defendant. . . .
“That the note sued on by plaintiff was only a renewal of the note for $214.50 given August 10, 1921, and was taken by the bank with full knowledge of all the foregoing facts, and was not 'taken as payment of the prior note but only as a renewal thereof, the bank simply retaining the first note.”
In the original note as well as the renewal note the Nashville State Bank was named as payee.
Plaintiff replied with a general denial, a plea of waiver and estoppel, and of compromise and settlement, and that the bank had advanced money to agent Higgins on defendant’s note merely as a loan to defendant.
The controlling facts were mainly these: Hemphill, the plaintiff’s cashier, knew all the circumstances of the giving of the note. He was to receive from Higgins some commission on all policies after the first three had been written for persons suggested by Hemphill. Higgins delivered the note to the bank, which cashed it upon an understanding that the proceeds, less $10 or $15 paid in money to Higgins, should remain on deposit to the credit of the insurance company. After sixty days the insurance company drew out the money. Shortly after defendant signed the application for insurance and after he executed and delivered the original note to Higgins, payable to the bank, defendant was requested to call on a neighboring doctor to take the customary medical examination to the issuance of an insurance policy. He refused to be examined; consequently the policy of insurance never was and could not prudently be delivered to him. At defendant’s request Hemphill wrote to the insurance company to get back the money, but the company declined and repeatedly urged defendant to take the medical examination. To explain his refusal to be examined, defendant testified that he “had changed his mind.” He admitted that since executing the original note and making the application he had applied for insurance in another company and had passed its medical examination and had obtained insurance. The renewal note was not given until the first note was three months past due, and when renewed it included the accrued and unpaid interest on the first.
After a jury was called and had heard the evidence, plaintiff moved that the jury be instructed to return a verdict in its favor. This was denied; and it was then agreed that the jury might be discharged and the cause submitted to the trial court for decision.
Judgment was entered for defendant, and plaintiff assigns error, arguing, first, that even if plaintiff’s rights were not greater than those of the insurance company, it would be entitled to recover. Let us see about that. The statute provides:
“It shall be unlawful for any insurance company, or corporation, or any agent thereof, who shall have accepted premium notes in payment for policies of insurance, to sell or assign said note or notes to innocent purchasers prior to the delivery of said insurance policies to the insured.” (R. S. 40-225.)
That statute is just as potent as any provision of the negotiable instruments act, and so far as relevant they must be construed together; but while a negotiable instrument is prima facie valid and imports a legal consideration, yet there is certainly nothing new in the rule that between maker and payee, or between the maker and a holder standing on no stronger footing than the original payee, the consideration may be shown and the want of consideration may be shown. So reads the statute of contracts and promises (R. S. 16-108.) To a like effect also is section 35 of the negotiable instruments act, R. S. 52-305. See, also, 8 C. J. 1024, 1064;'3 R. C. L. 942, et seq.
Could the insurance company itself have recovered on the note? Hardly. The consideration was $100 worth of the company’s stock and a $5,000 insurance policy, neithér of which the defendant had received. But it is urged that it was by his own fault that he had not received the consideration. Very true. There was an implied contractual duty on defendant, after signing the application for insurance and upon its approval by the insurance company, to submit to a medical examination so that if physically qualified and accepted for insurance the consideration for his promissory note could be de livered to him. But it is no crime in a free country for a man to breach or repudiate his contract. He may and usually will be liable in damages for so doing. But the damages will be .measured by the extent of the loss sustained by the other party to the contract which he has repudiated.
Now in this case it could not be pretented that the insurance company’s loss was the entire amount of the note given by defendant. Since the insurance company did not have to carry an insurance risk for defendant, and did not part with its $100 certificate of stock to him, it is not clear what damages other than nominal it did sustain through defendant’s refusal to go ahead with his part of the conditional contract between him and the company. The case of Ten Broek v. Jansma, 161 Mich. 597, was much like the case here. An insurance agent, Ten Broek, obtained from Jansma an application for a life-insurance policy and Jansma gave his note for $160 payable to Ten Broek therefor. Jansma called on the doctor two or three times to take the requisite medical examination, but did not find him, and finally concluded that he did not care for the insurance, and so advised Ten Broek. When sued by Ten Broek on the note Jansma’s defense was “want of consideration.” Defendant prevailed. The supreme court affirmed the judgment, saying, in part:
“If any contract was made (which we do not intend to imply) it was between the company and the defendant. Counsel’s claim seems to be that the application and note bound defendant to submit to an examination, and that inasmuch as he did not, 'but refused, he is liable on this note. If it were to be conceded that a binding contract was made, it was not a contract of insurance but a conditional contract to insure. If either party repudiated the alleged contract, the other might sue for breach and recover damages, but could not recover on a note given for a premium upon a policy never issued.” (p. 600. See, also, Citizens Nat’l Life Ins. Co. v. Murphy, 154 Ky. 88.)
Was the bank in any better position than the insurance company? We would not attach undue significance to the mere fact that the bank was named as payee instead of the insurance company. The authorities are at variance on= that point. See reported cases and annotations in 31 L. R. A., n. s., 613; L. R. A. 1915 B 144; 15 A. L. R. 437; 21 A. L. R. 1365; 26 A. L. R. 7.69; 32 A. L. R. 289. But here the bank knew — by the knowledge of its managing officer, Hemphill, its cashier (Graves v. O’Brien, 111 Kan. 320, 328, 207 Pac. 198) — that the note was given for an insurance policy which had not been issued and for corporate stock which had not then been delivered, and that under the interdict of the statute (R. S. 40-225) the note was not then ready to be set afloat in the channels of trade endowed with the attributes of negotiable paper. Having such knowledge, the bank did not and could not acquire the note free from whatever defenses there were to it in the hands of the first taker. (Nelson v. Southworth, 93 Kan. 532, 539, 144 Pac. 835; Bank v. Bank, 100 Kan. 194, 164 Pac. 137.)
But it is’also contended that the giving of the renewal note aftef the first was three months overdue, and after a controversy had arisen over defendant’s liability on the first note, was in effect a compromise and settlement, which together with an extension of time for payment and a raise in the rate of interest, furnished a sufficient consideration for the renewal note. In the absence of an express agreement that a renewal note is executed in satisfaction of an older note, or to compromise, settle and satisfy a preexisting debt, there is a presumption of law that the renewal note is not a payment of the older obligation but merely given to extend the time of payment (8 C. J. 569, et seq.; 3 R. C. L. 1217, et seq.). On the evidence presented to the trial court, its judgment on this point cannot be disturbed. (Bank v. Cooper, 99 Kan. 731, 162 Pac. 1169; Bank v. George, 105 Kan. 129, 181 Pac. 574; Gregory v. Williams, 106 Kan. 819, 822, 189 Pac. 932.)
It is also argued that the defendant was estopped to deny liability because “he evidently understood that the bank was not permitted to carry overdue paper, and it would be against public policy for him to conspire with the bank to make it appear that his note was good if such were not the fact.” The argument is ingenious; but the circumstances surrounding the giving of the renewal note were so well established and, indeed, so obvious that it is not surprising that the trial court gave no weight to such fanciful theory of estoppel.
Yet another objection is urged on the admission of incompetent testimony. Since by mutual consent the jury was discharged and the cause submitted to the court, the presumption is that the trained mind of the trial judge was not led astray nor his judgment perverted by the fact that some incompetent testimony had been aired in his hearing. (Crum et al. v. Oil Co., 117 Kan. 54, 230 Pac. 299.)
No error of any material consequence appears in the record, and the judgment is therefore affirmed. | [
-80,
124,
-80,
-65,
26,
-32,
42,
27,
27,
-96,
-91,
83,
-23,
-25,
5,
113,
-10,
9,
-11,
-32,
-9,
-73,
23,
34,
-46,
-77,
-15,
-60,
-79,
-36,
-28,
-41,
12,
50,
-54,
81,
-26,
74,
-59,
-44,
78,
12,
-79,
-27,
-35,
72,
48,
91,
80,
75,
117,
-115,
-13,
40,
25,
-54,
41,
45,
107,
-71,
-48,
-71,
-117,
-121,
127,
21,
49,
5,
-104,
65,
88,
14,
-104,
51,
1,
-7,
80,
-90,
-122,
52,
111,
-87,
8,
102,
98,
16,
113,
-17,
-4,
-104,
39,
-34,
-99,
-90,
-110,
88,
-117,
4,
-65,
-99,
124,
16,
-121,
-44,
-2,
29,
29,
108,
5,
-113,
-74,
-93,
-113,
126,
24,
43,
-1,
19,
49,
117,
-49,
-32,
93,
71,
122,
-101,
-98,
-112
] |
The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order sustaining a demurrer to the evidence and dismissing an appeal from an award of damages of the board of county commissioners in the proceedings locating a road. Briefly stated, the facts disclosed by the record are as follows:
At some time prior to 1915, James M. May bought real property near Manhattan. At the time his son, Jesse D. May, contributed one-third of the purchase price, with an understanding that he had a one-third interest in the land, but the title was taken in the name of the father. James M. May died in August, 1915, and left a will, giving to his widow a life use of his property with power to sell, with remainder to his children. The widow and the son, Jesse D. May, and two daughters continued to live on the land, which was managed and operated wholly by Jesse D. May for himself and as agent for the others interested. In 1918 proceedings were had before the board of county commissioners for the relocation of a road along the May farm, which took some of the land, and notice was given to Jesse D. May, as agent or guardian, of the action about to be taken and the time when the viewers would meet. He appeared and filed a claim for damages in the sum of $1,000, which was signed “Jesse D. May, agent.” The viewers and commissioners allowed him $110, making the allowance to Jesse D. May, agent. Not being satisfied with the allowance, an appeal was taken, the necessary papers and bond being signed “Jesse D. May.” At the hearing of the appeal in the district court there was evidence that Jesse D. May had an undivided one-third interest in the land in addition to such interest that he might have under his father’s will, and that in all that he did in this matter he was acting for and on behalf, not only of himself, but of his mother and any other members of the family who had any interest in it. There was also evidence as to the amount of damages. At the close of appellant’s evidence the court sustained a demurrer and dismissed the appeal upon the ground that the appeal was not being prosecuted by the real parties in interest, and this is the judgment appealed from.
The statute provides:
“Any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decision of said board of county commissioners to the district court.” (R. S. 68-107.)
So, even if it be argued that the appeal is taken by Jesse D. May personally, it should not have been dismissed because not prosecuted by the real party in interest, for it is clearly shown and at least tacitly admitted that he had a one-third interest in the real property.
But it seems clear from the entire proceedings and the evidence adduced that the appeal was taken in th.e same capacity in which he presented the claim, in the same capacity in which he and others interested in the proceedings were notified of the laying out of the road. Perhaps the proceedings would have appeared more uniform had the word “agent” appeared on the appeal bond, but since the evidence showed the capacity in which the appeal was taken, that is not very material. The damages, if any, to the land was the thing to be ascertained. All the county was interested in was knowing that whatever sum it paid would relieve it from further claims of damages. (Brown County v. Burkhalter, 75 Kan. 321, 89 Pac. 655; Nicholson v. Nicholson, 83 Kan. 223, 109 Pac. 1086.)
The judgment will be reversed with directions to overrule the demurrer to the evidence.
Johnston, C. J., not sitting. | [
-16,
108,
-4,
28,
58,
96,
74,
25,
64,
-93,
-9,
83,
-21,
-62,
0,
45,
-18,
61,
-32,
106,
-62,
-77,
23,
-94,
-101,
-77,
-37,
-43,
-79,
76,
-9,
87,
72,
32,
10,
21,
-58,
66,
-63,
84,
-114,
3,
-85,
-51,
-39,
64,
48,
59,
18,
75,
17,
-113,
-5,
46,
61,
114,
105,
44,
-39,
-72,
-47,
-112,
-114,
-115,
-33,
18,
-112,
50,
-102,
-125,
72,
10,
-112,
121,
64,
-28,
115,
-74,
-106,
116,
65,
-103,
9,
-14,
103,
17,
69,
-17,
-8,
-88,
14,
-5,
-113,
-89,
-124,
88,
10,
1,
-66,
-97,
121,
16,
39,
118,
-28,
21,
93,
108,
3,
-117,
-74,
-109,
-117,
-72,
24,
1,
-53,
-117,
50,
97,
-52,
-22,
92,
69,
118,
27,
-114,
-112
] |
Spencer, J.:
Defendant has appealed his conviction of driving his motor vehicle at a speed of seventy-seven miles per hour in a fifty-five miles per hour zone in violation of K.S.A. 1976 Supp. 8-1336(a)(3).
Agreed upon facts are that prior to the trial of this matter to the court, the state moved to suppress evidence offered by the defendant that:
1. Defendant’s cruise control stuck in the “accelerate” position causing the car to accelerate beyond the posted speed limit.
2. The defendant attempted to deactivate the cruise control by hitting the off button and the coast button and tapping the brakes.
3. These actions were not immediately successful in deactivating the cruise control.
4. Subsequent to the date of this incident, the defendant had the defective cruise control repaired.
The trial court sustained the motion, thus precluding the defendant from presenting the proffered evidence as a defense. Because of this ruling, defendant presented no defense and the plaintiff’s evidence was uncontradicted and unimpeached. The result was that the defendant was found guilty of driving in excess of the posted speed limit, and, also, that defendant was the “driver” of the car as defined by K.S.A. 8-1416. The sentence of $10 and costs was suspended pending this appeal.
With some eloquence, the defendant states:
“Of all of the beacon principles of criminal liability which have shone bright during the development of Anglo-American Jurisprudence, the necessity of proving two basic elements of a crime have shone brightest. These two elements are: a voluntary act and an evil intention. To constitute a crime, the act must, except as otherwise provided by statute, be accompanied by a criminal intent. . . .”
Defendant cites 22 C.J.S., Criminal Law § 29 at 96-97, and 21 Am.Jur.2d, Criminal Law § 81 at 162-163. But, defendant readily concedes that a violation of the speeding statute (K.S.A. 1976 Supp. 8-1336) is an absolute liability offense when read in light of the absolute liability statute (K.S.A. 21-3204), which provides:
“A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. . . .”
Defendant admits that this statute does away with the necessity of proving intent to commit the misdemeanor and, further, that any evidence of the defective cruise control would be inadmissible if introduced merely to negate an intent or culpable state of mind on the part of the motorist. His contention is that the evidence was offered to show that his speeding was not a voluntary act and, therefore, there was no criminal liability. He suggests that the evidence of a defective cruise control goes specifically to whether his speeding was a voluntary act on his part and has nothing to do “with the intent, or state of mind, of the defendant to do the crime to which his act amounted.” In sum, the defendant suggests that even though the charge against him was an absolute liability offense per K.S.A. 21-3204, the state must prove that he acted voluntarily.
Defendant directs attention to the Judicial Council comment to K.S.A. 21-3204 which cites Morissette v. United States, 342 U.S. 246, 96 L.Ed. 288, 72 S.Ct. 240 (1952), and argues that absolute liability would apply only where the injury does not occur as a result of “fortuity.” He says that his act of speeding in this instance was due to fortuity, or chance, and, therefore, he should be allowed to present evidence showing the circumstances of the defective cruise control and that he could not prevent the act which resulted in the charge against him.
On the other hand, the state argues that one should not be allowed to rely on a malfunction of an instrument to which he entrusts control of his automobile, offering as an excuse “fortuitous” circumstances to relieve himself of liability for his acts. It is suggested that “fortuitous” implies circumstances which arise from outside the defendant’s vehicle. It is argued that our absolute liability statute (K.S.A. 21-3204) clearly indicates that the state need not prove the defendant acted voluntarily, but rather the defendant must prove that his offense is not within the scope of that statute because he acted involuntarily upon the compulsion of fortuitous circumstances.
Referring again to the Judicial Council comment to K.S.A. 21-3204 and the case of Morissette v. United States, supra, we note the following:
“. . . The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. . . .” (242 U.S. at 256.)
We have no doubt but that if defendant were able to establish that his act of speeding was the result of an unforeseen occurrence or circumstance, which was not caused by him and which he could not prevent, that such would constitute a valid defense to the charge. But, the evidence proffered suggests a malfunction of a device attached to the motor vehicle operated by the defendant over which he had or should have had absolute control. Defendant does not suggest that the operation of the motor vehicle on the day of his arrest was anything but a voluntary act on his part, nor that anyone other than himself activated the cruise control, which may have caused his excessive speed. Nor does he suggest that any occurrence or circumstance existed which required of him more care than society might reasonably expect. Furthermore, as suggested by the state, it appears that defendant was able to bring his vehicle under control and to a stop when directed to do so by the police.
In the New York case of People v. Shaughnessy, 66 Misc.2d 19, 319 N.Y.S.2d 626 (1971), it was held that a defendant could not be found guilty of violating an ordinance prohibiting entry upon private property because the defendant was merely a passenger in the trespassing car and the state’s evidence failed to show an overt voluntary act of omission by the defendant. In the case of State v. Kremer, 262 Minn. 190, 114 N.W.2d 88 (1962), the Minnesota Supreme Court held that a defendant could not be guilty of violating a city ordinance requiring all traffic to stop at a flashing red light when the evidence showed that defendant’s brakes failed with no prior warning to the defendant. Again, the court found no overt voluntary act on the part of the defendant.
Among other cases cited by the defendant are State v. Binders, 24 Conn. Supp. 214, 189 A.2d 408 (1962), and State v. Weller, 4 Conn. Cir. 267, 230 A.2d 242 (1967). In Binders, the court on appeal reversed the trial court’s conviction of the defendant for failing to drive to the right of a curve. The court stated that the evidence failed to show that the defendant intended to drive on the left side and that all inferences would lead one to believe that the defendant skidded on the ice. The court explained that even if the crime is malum prohibitum, in which no specific criminal intent need be proven for conviction, “the only intent requisite to a conviction is the intent or purpose to do the prohibited act.” In Weller, the Connecticut court stated that the defendant had a valid defense to the speeding charge because the spring which closes the throttle plate broke due to no fault of the defendant. The court reasoned that because “[t]here is not one scintilla of evidence of any intent on the part of the defendant to do the prohibited act . . .,” the defendant’s conviction should be overturned.
It is interesting to note that apparently Connecticut does not have an absolute liability statute similar to K.S.A. 21-3204. Research also reveals that the same Connecticut court was willing to distinguish both Wellers and Binders in the speeding case of State v. Zullo, 4 Conn. Cir. 573, 236 A.2d 718 (1967). In Zullo, although the court upheld the previous “intent to do the prohibited act” language, it further stated that there is no need to prove that intent because there is a permissible inference that the driver was the agent responsible in causing the act to be done.
In Kettering v. Greene, 9 Ohio St.2d 26, 222 N.E.2d 638 (1966), the Ohio Supreme Court reversed the court of appeals in a per curiam opinion by reinstating the defendant’s conviction on a violation of the city ordinance for failing to stop at a stop sign. The court of appeals had previously ruled that the defendant had established a legal excuse for failing to stop because he had no prior warning of any defect in the brakes and because he was, as a city bus driver, not the party responsible for the maintenance of the brakes. The supreme court simply stated that the statutory requirement to stop at a stop sign is mandatory and that brake failure is not a legal excuse.
In support of its position, the state offers the case of State v. Packin, 107 N.J. Super. 93, 257 A.2d 120 (1969), wherein the court affirmed the defendant’s conviction of speeding and stated that the conviction was not contingent upon a showing that he intended to go sixty-nine miles per hour in a fifty miles per hour zone. This is a case very similar to the case at bar. Packin argued that because he had set his cruise control at fifty miles per hour earlier in the day, he could not have had the intent to do the prohibited act. The court stated:
“. . . Here defendant was required to drive in conformity with the statutory speed limit and if he was unable to achieve that objective through use of the cruise control, he had but to touch the brake to disengage it and slow the car down.” (107 N.J. Super, at 96.)
The New Jersey court was therefore unwilling to allow the defendant to assert the defense that he did not have the requisite intent to do the prohibited act because he had set his cruise control at fifty miles per hour, but the cruise control malfunctioned. In that case if was stated:
. . A motorist who entrusts his car to the control of an automatic device is ‘driving’ the vehicle and is no less responsible for its operation if the device fails to perform a function which under the law he is required to perform.’’ (107 N.J. Super, at 95.)
In the case of State v. Merrifield, 180 Kan. 267, 303 P.2d 155, our supreme court, in considering the predecessor statute to K.S.A. 8-262 and the defendant’s contention that he drove his automobile at the time and place in question at the request of the sheriff and therefore was not guilty of the charge, stated:
“It is clear that the statute makes it unlawful to drive a vehicle on the highways when the license to so drive has been suspended. The legislature made no exceptions, and the question of intent is not involved, and the motive or the circumstances under which the driving took place are immaterial. The legislature may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and where the legislative intention appears, it is incumbent upon the courts to give it effect, although the intent of the doer may have been innocent. The doing of an inhibited act constitutes the crime, and the moral turpitude or purity of motive by which it is prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt. . . .” (180 Kan. at 269.)
In our view, unexpected brake failure and unexpected malfunction of the throttle on an automobile, both being essential components to the operation of the vehicle, differ significantly from the malfunction of a cruise control device to which the driver has voluntarily delegated partial control of that automobile. We believe it must be said that defendant assumed the full operation of his motor vehicle and when he did so and activated the cruise control attached to that automobile, he clearly was the agent in causing the act of speeding. The safety and welfare of the public require that the motorist operate his vehicle in accordance with the maximum speed limits as set forth in K.S.A. 8-1336, and other rules of the road, and such obligations may not be avoided by delegating a task which he normally would perform to a mechanical device such as a cruise control.
Defendant contends that because of the malfunction of his cruise control he was not then the “driver” of the vehicle in the technical sense because he was not then in “actual physical control” of his vehicle as provided by K.S.A. 8-1416. On the basis of what has previously been said, we consider this argument to be entirely without merit.
Although the proffered evidence might well have been received by the trial court in explanation and mitigation of the offense charged, it was not a defense to that charge and would not have changed the ultimate result of the case. (State v. Miller, 131 Kan. 36, 289 Pac. 483.) Moreover, in noting the sentence imposed upon the finding of guilt, we must conclude that if any error was committed in sustaining the motion in limine, it was harmless error. (State v. Winston, 214 Kan. 525, 520 P.2d 1204.)
Judgment affirmed. | [
-16,
-30,
-40,
-66,
30,
96,
51,
26,
-47,
-41,
-9,
51,
-87,
-61,
4,
49,
-38,
-25,
116,
41,
-59,
-94,
23,
-125,
-74,
-77,
-7,
-50,
-105,
-53,
100,
-75,
8,
-16,
-62,
53,
38,
72,
21,
-40,
-50,
6,
-72,
-16,
-103,
22,
-92,
106,
36,
14,
-95,
31,
-93,
42,
26,
-57,
-87,
104,
11,
-84,
-55,
112,
-45,
29,
110,
16,
-96,
4,
-68,
5,
84,
45,
-100,
-71,
40,
-8,
51,
-90,
-128,
-44,
111,
-101,
-120,
38,
98,
35,
29,
-49,
-20,
-104,
46,
58,
63,
-90,
-112,
81,
9,
8,
-105,
93,
102,
50,
12,
124,
-22,
-108,
31,
104,
3,
-53,
-80,
-127,
-51,
119,
-106,
-103,
-17,
-95,
16,
113,
-114,
-26,
94,
117,
24,
-69,
-42,
-74
] |
Rees, J.:
This is an appeal by defendant husband from a divorce decree entered upon a finding of incompatibility.
The parties were married in 1955. They are the parents of eight children, seven of whom were minors at the time of trial. The family residence was in Kansas City, Missouri. The wife left the family home in July, 1974, when she moved to the home of a friend, also in Kansas City. The husband and the children at all times have continued to reside in the family home. On August 8, 1974, the wife commenced a divorce action in Missouri under Mo. Ann. Stat. Sec. 452.305 (Vernon), which provides for the dissolution of marriage where “the marriage is irretrievably broken.” The wife moved to and established residence in Johnson County in October, 1974. The Missouri action was tried on January 7, 1975. Dissolution of the marriage was denied and the action was dismissed. The court order recited neither that the dismissal was with prejudice nor that it was without prejudice. A motion for new trial filed by the wife was overruled by the court on February 5, 1975.
On February 18, 1975, the wife commenced this action in Johnson County. Her petition and amended petition rely upon incompatibility as the ground for divorce. Service of process upon the husband in Missouri was made by mail under K.S.A. 60-307. The husband entered his appearance and filed a request for bill of particulars and an answer. Trial on July 1, 1975, resulted in a divorce decree, but no other relief was then granted. The husband did not counterclaim for divorce in either action. He denied in the Missouri action that the marriage was irretrievably broken and in this action he denied that the parties were incompatible. The husband’s answer in this action contains denials of both subject matter jurisdiction and personal jurisdiction. These defenses were reasserted by the husband at every stage of the proceedings. He personally appeared and testified at trial. After filing the notice of this appeal and upon motion of the wife, the trial court entered orders directing the husband to make the parties’ children available for visitation with the wife at specified times in Missouri and requiring the husband to pay $2,000 to plaintiff for her expenses for the defense of this appeal.
A recital of the partially conflicting testimony of the parties concerning their differences would serve no useful purpose. It is sufficient to say that the wife’s position at both trials was that the husband’s religious convictions and practices were disruptive of the marital relationship.
The wife having been a Kansas resident for the requisite time and prescribed service of process having been made, there was compliance with K.S.A. 60-1603(a) and K.S.A. 60-307. The trial court had jurisdiction which the parties, the trial court, and we will describe as in rem jurisdiction. However, the trial court held that it also had personal jurisdiction of the husband. It stated that:
“. . . any technical objections which the defendant has had to the exercise by the Court of in personam jurisdiction over him have been waived by conduct inconsistent with his position, specifically that conduct is the request for a bill of particulars, the filing of an answer and the personal presence in the courtroom at the trial of the matter and upon prior hearings.”
The trial court erred in its ruling that it had personal jurisdiction of the husband. The husband did not waive this defense by his appearances. (Haley v. Hershberger, 207 Kan. 459, 485 P. 2d 1321.)
Absent personal jurisdiction, service upon the husband under K.S.A. 60-307 conferred upon the court jurisdiction limited to the power to render judgment affecting the status of the parties within the court’s jurisdiction. K.S.A. 60-307(b). In this action, that status of the parties is their marital status. This in rem jurisdiction is the extent of jurisdiction in this action.
By her amended petition the wife asked that:
. the Court grant to her a decree of divorce from the defendant on the grounds of incompatibility, custody of the minor children, both temporary and permanent, child support and alimony, both temporary and permanent, and equitable division of the property, attorneys’ fees, costs of this action, and such other relief as to the Court may seem just.”
In line with what we have held, the court was without jurisdiction to afford any relief beyond the granting of a decree of divorce.
The trial court’s order directing the husband to make the parties’ children available for visitation with the wife was beyond its jurisdiction for an additional reason. In Donaldson v. Donaldson, 198 Kan. 111, 422 P. 2d 871, after setting forth the pertinent language of K.S.A. 60-1610(a), it is stated:
“The broad authorization given to the court by the statute to make any order to advance the welfare of a minor child certainly entails, within discretion, the authority to limit or deny visitation privileges where the child’s welfare is concerned.” (p. 113)
The foregoing holding implicitly determines that the power to order and provide for visitation arises out of the authorization to make orders to advance the welfare of minor children given by K.S.A. 60-1610(a). Thus, jurisdiction to grant to and withhold from a non-custodial parent visitation rights as to his or her minor children is bottomed upon jurisdiction to provide for custody, support and education under K.S.A. 60-1610(o). The trial court did not have jurisdiction to provide for the custody, support and education of the minor children for the reason that they were neither physically present in Johnson County nor domiciled in Kansas, and they had not been the subject of previous exercise by the court of its jurisdiction to determine their custody or care when domiciled in Kansas.
The trial court’s order directing the husband to pay $2,000 to the wife for her appeal expenses likewise was beyond its jurisdiction. That order is a personal judgment against the husband that is not to be satisfied by distribution of property, a res, situated in Kansas and subject to the court’s jurisdiction. The order is not within the in rem jurisdiction existent in this action.
The husband asserts that the order entered by the Missouri court in the prior action was an adjudication on the merits as to all factual matters existing prior to February 5, 1975. The wife argues that the Missouri action was disposed of by dismissal and did not result in an adjudication upon the merits.
It is clear from an examination of the Missouri journal entry that if it does not clearly recite an adjudication on the merits, the order of that court at least is one of involuntary dismissal. An involuntary dismissal that is not stated to be without prejudice and that is other than for lack of jurisdiction or improper venue operates as an adjudication upon the merits under Missouri law. [Mo. Ann. Stat. Sec. 510.150 (Vernon).] It is also the law of Missouri that when a motion for new trial is filed, the judgment becomes final at the time of disposition of the motion. [Mo. Ann. Stat. Sec. 510.340 (Vernon).] Thus, the Missouri action resulted in an adjudication upon the merits effective February 5, 1975.
The principal remaining issue is the sufficiency of evidence to support the trial court’s divorce decree. The husband’s continued argument is that the wife’s cause of action is barred by res judicata. His contention is that the Missouri judgment is entitled to full faith and credit and that it, being an adjudication on the merits, denies the wife the ability to rely upon any facts existing prior to February 5, 1975, to prove incompatibility. He argues that the parties had no contact between February 5 and February 18, 1975, the date of commencement of this action, and therefore no factual basis exists for the trial court finding of incompatibility. The premise of the husband’s argument is that the statutory grounds alleged by the wife in her two actions are at least substantially identical.
In arriving at our decision, we afford the Missouri judgment full faith and credit for the purpose of applying the doctrine of res judicata, and we will assume for the sake of argument that there is no distinction between an irretrievably broken marriage under the Missouri statute and incompatibility under our statute.
We note two matters with regard to the case before us. First, K.S.A. 60-1601 prescribes the eight grounds upon which divorces may be granted. Each of the first five grounds (abandonment, adultery, extreme cruelty, habitual drunkenness, and gross neglect of duty) is particular overt conduct. The sixth ground (felony conviction and imprisonment) is the result of overt conduct. The seventh ground (mental illness or mental incapacity) is a special matter. In contrast, incompatibility, the eighth ground, is not overt conduct. Instead, and as will be shown, incompatibility involves the personalities or temperaments of the parties. Secondly, application of res judicata as sought by the husband does not preclude the wife’s ability to rely upon '■acts and circumstances existing after February 5, 1975.
It appears that incompatibility has been the subject of five decisions of our Supreme Court. Berry v. Berry, 215 Kan. 47, 523 P. 2d 342; LaRue v. LaRue, 216 Kan. 242, 531 P. 2d 84; North v. North, 217 Kan. 213, 535 P. 2d 914; Gordon v. Gordon, 218 Kan. 686, 545 P. 2d 328; Williams v. Williams, 219 Kan. 303, 548 P. 2d 794. The Berry definition of incompatibility was followed in the other four cases. In North it is stated:
“Incompatibility as a ground for divorce was authorized by the 1971 Kansas legislature. Since the time of its enactment we have had two cases before this court contesting a decree of divorce granted solely for incompatibility. (See Berry v. Berry, 215 Kan. 47, 523 P. 2d 342; and LaRue v. LaRue, 216 Kan. 242, 531 P. 2d 84.) Despite the infancy of this provision, certain guiding principles have developed. In Berry, we said incompatibility may be broadly defined as such a deep and irreconcilable conflict in the personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable. Petty quarrels and minor bickerings are clearly not sufficient to meet this standard. The legislature, in supplying the additional ground of incompatibility, must have intended to liberalize our divorce laws by broadening the bases upon which divorces may be granted. This does not mean a divorce should be granted perfunctorily or merely upon a party’s charge of incompatibility without real proof of the fact. It is the duty of the trial court to weigh the testimony before it, and our function on review is limited to an examination of the record to ascertain whether the findings of the trial court are supported by substantial, competent evidence.
“In LaRue, we reasserted our approval of the foregoing definitions of incompatibility, and further stated it was difficult to imagine a situation in which a husband’s temperament could be compatible with that of his wife if her temperament was incompatible with his.” (p. 214)
The wife’s evidence at trial consisted of the testimony of a psychiatrist, the wife and the husband. The husband’s only evidence was two exhibits. One was copies of the pleadings and journal entry in the Missouri action, and the other was a partial transcript of the Missouri trial proceedings.
The psychiatrist testified that he.had consulted with, tested and treated the wife. He had seen her on six occasions in October and November, 1974, and twice in 1975, once in February or March, and once three or four weeks before trial. The husband objected to any testimony of the psychiatrist “pertaining to any of the matters that were or could have been litigated” in the Missouri action. There was no objection made to testimony concerning the time subsequent to February 5, 1975.
It is not possible to segregate the husband’s testimony as to facts and circumstances existing prior to February 5, 1975, between February 5 and February 18, 1975, between February 18, 1975 and trial, and as of the date of trial. It is clear that part of his testimony dealt with all of these times and part dealt with some of them. Other parts simply can be afforded no time frame. No objection was made to any of his testimony. In at least partial conflict with his argument that the parties had no contact between February 5 and February 18, 1975, the husband testified:
“During the course of our marriage, specifically the period of time from the 5th of February to the present, I have had some contact with Mrs. Lillis, the contacts were in our home, in my mother’s home, and hospitals.”
The wife’s testimony on direct examination was limited to the period from February 5, 1975, to and including the date of trial. There was no objection by the husband. On cross, redirect and recross examination, she testified concerning matters pre-dating February 5, 1975.
There having been no objection made to testimony regarding the period from the date of commencement of this action to and including the date of trial and having reviewed the record in detail, we can arrive at no conclusion other than as stated in Berry:
. . The trial court had both parties before it and heard their stories. It could have required them to seek marriage counseling service available within the locale (K.S.A. 1973 Supp. 60-1608) but did not. It seemed satisfied the parties could no longer live together. . . .” (215 Kan. at 51.)
Upon review of the evidence concerning facts and circumstances existing after February 5, 1975, we hold that there was substantial competent evidence to support the trial court’s finding of incompatibility.
We have considered the husband’s contention that the trial court erred in overruling his objection to the sufficiency of the wife’s bill of particulars and hold that the husband has failed to show prejudicial error.
The order of the trial court granting a decree of divorce ito the wife is affirmed. The orders of the trial court directing the husband to make the parties’ children available for visitation with the wife and requiring the husband to pay to the wife $2,000 for her expenses for the defense of this appeal are vacated and set aside. | [
-80,
-56,
-11,
124,
-120,
-64,
-86,
-51,
114,
-109,
103,
-45,
-17,
-38,
80,
121,
58,
11,
112,
121,
-63,
-89,
87,
64,
-14,
-77,
-40,
-35,
-75,
-35,
-27,
-9,
76,
32,
78,
-11,
70,
-54,
-59,
20,
-114,
16,
-119,
-52,
80,
-62,
62,
107,
82,
31,
21,
-82,
-13,
42,
61,
-57,
72,
46,
91,
-28,
-48,
-48,
-118,
23,
94,
6,
-79,
36,
-108,
37,
80,
110,
-112,
57,
33,
-84,
49,
-76,
-90,
116,
67,
-101,
8,
96,
98,
2,
-119,
-49,
-20,
-88,
6,
114,
29,
39,
-112,
8,
73,
13,
-66,
-67,
125,
84,
9,
-4,
-23,
13,
31,
108,
-122,
-114,
-106,
-111,
13,
59,
24,
9,
-29,
-27,
32,
113,
-53,
-32,
92,
-106,
59,
-101,
-114,
-72
] |
Swinehart, J.:
This is an action based on breach of a contract to purchase producing oil and gas leases. The case went to a jury on special questions, upon which judgment was entered for the plaintiff in the entire amount of plaintiff’s prayer, together with interest.
Plaintiff Barbara Oil Company (hereinafter referred to as Barbara or appellee) is a family-owned oil and gas company with its main office in Chicago and with a two-man district office in Wichita. In 1972, Barbara decided to close its Wichita office, commenced plans for selling all of its producing properties in Kansas, and circulated among some 150 prospective purchasers a brochure announcing its desire to sell various oil and gas properties in Kansas. This brochure solicited bid-offers on seven different “packages” of producing oil and gas properties. The largest and most valuable “package” was Package 4, which consisted of gas-producing leases near Medicine Lodge. Bárbara received numerous bids on Package 4. When all of the bids were opened and examined, Patrick Petroleum Company of Jackson, Michigan (hereinafter referred to as Patrick or appellant), was the high bidder on the Package 4 property. That bid was in the amount of $2,049,000 and contained the following comment:
“Offer is subject to acceptable title for all properties, included in Package 4, by Patrick Petroleum.”
On April 24,1973, Barbara’s vice-president (Mr. William Ziska) advised Patrick by telephone that its offer was accepted. This telephonic acceptance was confirmed by letter of April 25, 1973. Pursuant to the terms of the parties’ agreement, a 10% deposit was to be paid May 7, 1973.
Patrick immediately began a flurry of activities relating to the Package 4 property. First of all, Patrick employed William Schell, a Wichita attorney, to prepare a title opinion on Package 4 property. Mr. Schell completed his work on or about April 30, 1973, and at that time advised Patrick that, in his opinion, there were potential problems relating to the validity of existing leases on Package 4 property. Consequently, Mr. Schell recommended that appellant obtain “a broad strong indemnification against anything that . . . might cause a loss to Patrick.”
Simultaneously, Patrick was scurrying around trying to obtain necessary financing and attempting to locate a buyer for one-half interest in the Package 4 property.
When May 7, 1973, arrived (the day Patrick’s 10% deposit was due) Patrick refused to pay the 10% unless Barbara would agree to an indemnification clause. Barbara declined to do so at that time. However, the next day Mr. Ziska, on behalf of Barbara, contacted Patrick and offered indemnification from the date of first production under the leases to the date of closing. Patrick responded that such an offer would help, and it was then agreed that the 10% deposit would be paid on May 14, 1973. However, on May 14th Mr. Ziska received a phone call from Patrick’s representative who was apologetic, but who, nonetheless, advised Mr. Ziska that Patrick would have to “withdraw their bid . . . because they couldn’t get the financing.” The withdrawal of Patrick’s bid was confirmed by telegram dated May 14, 1973, which provided:
“As per our telephone conversation of this date we hereby notify you that due to our inability to formally secure adequate financing which had previously been tentatively agreed upon, we hereby withdraw our bid as previously submitted to you for Package Number Four covering the Medicine Lodge Gas Field Properties.”
This telegram was followed up by letter dated May 15, 1973, which again stated the reason for withdrawal was “our failure to obtain the appropriate financing for this purchase. . . .”
Thereafter, Barbara was able to sell Package 4 to Kewanee Oil Company for $1,650,000. Barbara then commenced this action for breach of contract, seeking as damages the difference between the original contract price ($2,049,000, eventually modified to $2,029,000) and the resale price to Kewanee ($1,650,000). Judgment was rendered for Barbara after the jury responded to special questions in favor of Barbara for the entire amount prayed for, plus interest.
We first turn our attention to appellant’s contention that it was entitled to forego performance under the contract as a matter of law, pursuant to the condition that the offer was “subject to acceptable title for all properties.”
The legal questions involved revolve around Patrick’s “conditional offer.” Generally speaking, a contracting party may impose such conditions to the contract as he desires, assuming they are not illegal conditions. A proviso in a contract creates a condition, and the usage of the words “subject to” usually indicates that a promise is not to be performed unless the condition is satisfied. 17 Am.Jur.2d, Contracts § 320, p. 749.)
In Wallerius v. Hare, 194 Kan. 408, 399 P.2d 543, the Kansas Supreme Court discussed condition precedent. The Court said:
“A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect. [Citations omitted.]” (p. 412.)
Without doubt, had Patrick been able to show that it withdrew from the contract because title was not acceptable, it would have been justified in not performing pursuant to the contract, as a matter of law. However, the fact that an offer is conditioned in and of itself does not justify withdrawal from the contract. Instead, the offerer must affirmatively show that the withdrawal from the contract occurred because of the condition’s failure. Here, whether or not Patrick withdrew from the contract because of inadequate title was a question to be decided by the jury. The jury concluded that Patrick did not withdraw from the contractual obligations because of dissatisfaction with title. That conclusion on the jury’s part is supported by substantial competent evidence. For example, none of the written material surrounding Patrick’s withdrawal from the contract (the telegram and the letter) mentioned inadequacy of the title as a reason for withdrawal. Instead, inadequate financing was the reason given. Inasmuch as the jury’s decision was supported by substantial and competent evidence, that decision must prevail on appeal. (Clardy, Administrator v. National Life & Accident Ins. Co., 1 Kan. App.2d 1, 561 P.2d 892.)
We simply hold that although parties can place conditions precedent on their contracts, they cannot escape liability under the contracts merely by claiming the conditions have not been met. The balking party must affirmatively show that (1) the condition precedent actually failed and (2) because of such failure, the contract will not be performed. Whether or not a contracting party’s refusal to perform was because of a genuine and good faith claim that a condition precedent failed is a question for the jury. Specifically, whether Patrick backed down because of faulty title or because of inadequate financing was a question of fact, and thus properly within the province of the jury. (47 Am.Jur.2d, Jury §§ 3, 14, pp. 628, 637.)
Next, a brief look at Patrick’s contention that the trial court erred in refusing to allow the expert testimony of one Ferd Evans. Mr. Evans’ proffered testimony had to do with oil and gas lease title problems. Inasmuch as we have affirmed the jury’s conclusion that Patrick’s breach of contract was because of inadequate financing and not faulty title, we consider this “expert testimony” issue to be moot. We parenthetically note that the trial judge allowed similar testimony from another witness, and Evans’ testimony would have been cumulative. A trial judge has wide discretion in determining the admissibility of expert testimony. (Borth v. Borth, 221 Kan. 494, 561 P.2d 408.) Patrick has fallen far short of indicating an abuse of such discretion.
Appellant has next asserted that in the event this court approves the lower court’s finding that an unjustified breach occurred, then the total amount of recovery should be reduced because of Barbara’s failure to mitigate. As we have previously indicated, upon Patrick’s withdrawal from the contractual agreement, Barbara sold Package 4 to Kewanee Oil Company for $1,650,000. This Barbara did, even though at least two other companies had submitted bids which were slightly higher than the $1,650,000 figure.
The law is clear that a plaintiff cannot recover for damages which could have been reasonably avoided. As stated at Restatement of the Law, Contracts, § 336 (1), p. 535:
“Damages are not recoverable for harm that the plaintiff should have foreseen and could have avoided by reasonable effort without undue risk, expense, or humiliation.”
This section of the Restatement is further expounded in Comment (a), p. 536, as follows:
“After the plaintiff has reason to know that a breach has occurred, ... he is expected to take such steps to avoid harm as a prudent person would take. He cannot get damages for harm that could thus be avoided. . .. It is not reasonable to expect the plaintiff to avoid harm if at the time for action it appears that the attempt may cause other serious harm. He need not enter into other risky contracts, incur unreasonable inconvenience or expense, disorganize his business, or put himself in a humiliating position or in one involving loss of honor and respect.”
These sentiments have been recognized in Kansas. See Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 457 P.2d 691; Cain v. Grosshans & Petersen, Inc., 196 Kan. 497, 413 P.2d 98.
The jury below concluded that Barbara acted “as required by the law ... in reselling the properties in question.” We again feel that the jury’s finding was supported by substantial and competent evidence (Clardy, Administrator v. National Life & Accident Ins. Co., supra) and therefore affirm the finding. The evidence before the jury indicated that upon Patrick’s breach of the purchase contract, havoc reigned in Barbara’s ranks. Package 4 was one of Barbara’s major assets, worth over a million dollars, and with Barbara’s plans on closing its Wichita office, Package 4 had to be sold quickly. Furthermore, several weeks had elapsed since the final bids had been submitted, and Barbara’s communications and negotiations with other bidders had all but ceased.
While Barbara was in this dark hour, Kewanee’s bright light appeared. Kewanee was immediately available and had successfully bid on several of the smaller packages which Barbara had sold. Kewanee was further in a position to make a quick decision and close the deal on Package 4 on the spot. While Kewanee had originally offered only $1,450,000, Barbara was eventually able to obtain $1,650,000. In sharp contrast with Kewanee’s good business reputation, and Barbara’s confidence in Kewanee, Barbara feared possible trouble areas with those companies which had submitted slightly higher bids.
With this evidence in mind, we feel that Barbara acted prudently and reasonably. For us to tell Barbara that it had to face possible risky contracts, disorganization, inconvenience and expense merely to attempt to gain a few extra thousand dollars would be flying in the face of the clear law in this area. We agree with the jury’s determination that Barbara Oil acted “as required by the law.”
Appellant next complains that it was denied adequate discovery. The record indicates that although appellant filed requests for production of documents, seeking combination bids regarding Package 4 property, the lower court disallowed such requests. We think the lower court’s ruling was contrary to K.S.A. 60-234 and the overall purpose of discovery.
K.S.A. 60-234 provides, in pertinent part:
. . . (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents . . . which are in the possession, custody or control of the party upon whom the request is served; . . .”
This provision is an integral part of our discovery process.
“. . . Discovery has a vital role in our code of civil procedure with its notice type pleading and its basic philosophy that mutual knowledge of all relevant facts is essential to the proper disposal of litigation and that prior to trial every party to a civil action is entitled to the disclosure of all such information in the possession of any person, unless the information is privileged. . . .” (Alseike v. Miller, 196 Kan. 547, 554, 412 P.2d 1007.)
The purpose of K.S.A. 60-234 “is to make relevant and nonprivileged documents and objects in the possession of one party available to the other, thus eliminating strategic surprise and permitting the issues to be simplified and the trial to be expedited. The rule is to be liberally, rather than narrowly, construed. . . .” (8 Wright & Miller, Federal Practice and Procedure, Civil § 2202, p. 585-586.)
Those records in Barbara’s possession relating to the Package 4 property, including all combination bids, were not privileged. However, Barbara claims such records were irrelevant. We do not agree. One of the major issues involved in this suit was mitigation. Thus, the amount offered by other bids which Barbara could have accepted following Patrick’s breach was highly relevant. Patrick should have been granted broad access to those documents sought.
The problem then on this appeal is: What is a party’s remedy when that party has been disallowed proper discovery? This is a true dilemma. If the judge disallows proper discovery, the aggrieved party is forced to continue the litigation on through trial and then, if appeal is eventually taken, must attempt to show some type of prejudice resulting from the denial of discovery. Such prejudice is difficult to show on appeal. Trial judges should recognize this dilemma, and should, accordingly, adhere to the mandate that discovery rules be “liberally construed.”
Although we feel Patrick’s requested discovery should have been allowed, the disallowance, under the circumstances of this case, was not reversible error. This action eventually went to jury trial and Patrick was then able to obtain most of the information regarding the mitigation issue. In fact, such material was avail-, able and offered during the course of the trial. Therefore, we find that the appellant has failed to show that it was in any way prejudiced by the court’s failure to allow use of this discovery tool.
Finally, we turn to appellant’s contention that 6% prejudgment interest should not have been allowed. The trial court found that “the amount of the difference between the contract price and the resale price was readily ascertainable on June 1, 1973, and in view of the rather transparent excuse for non-performance advanced by the defendant, justice requires that interest be allowed on the difference.” (The reader will recall that June 1, 1973, was shortly after Patrick had breached the contract and Barbara had resold Package 4 to Kewanee.)
The only question to be resolved is whether or not a liquidated debt existed on and after June 1, 1973. (See K.S.A. 16-201.) A claim is liquidated when it “becomes definitely ascertainable by mathematical computation.” (Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 520 P.2d 1262; First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 562 P.2d 32.)
Once Patrick breached the contract, and Barbara had resold to Kewanee, the difference between the contract price and the resale price was capable of mathematical computation. This being so, we feel that a liquidated debt did exist and the court acted properly in allowing 6% interest on that debt.
Judgment of the trial court is affirmed in all respects. | [
48,
108,
-40,
12,
8,
96,
56,
-102,
121,
-79,
103,
83,
-59,
-24,
5,
105,
-57,
125,
100,
104,
-109,
-77,
7,
114,
-42,
-77,
49,
-31,
36,
95,
100,
87,
92,
32,
-54,
85,
-126,
-126,
-3,
92,
14,
1,
-104,
100,
-51,
-120,
52,
59,
52,
79,
113,
-116,
-13,
45,
24,
78,
-87,
46,
-17,
45,
-64,
-16,
107,
-123,
-1,
18,
-128,
68,
-104,
113,
-56,
78,
-112,
-80,
40,
-24,
83,
-90,
-58,
116,
9,
57,
-116,
38,
115,
35,
4,
-83,
-20,
-72,
39,
-1,
-115,
-90,
-13,
88,
-128,
104,
-65,
-98,
28,
18,
5,
-2,
-18,
5,
31,
-19,
-105,
-22,
-42,
-79,
15,
-26,
28,
29,
-18,
-105,
4,
100,
-55,
-74,
92,
71,
122,
31,
15,
-77
] |
Abbott, J.:
This is an action for fraud brought by the appellants, James E. Goff and Janice Sue Goff, homeowners, against appellee, American Savings Association of Kansas, holder of the first mortgage, and Clarence H. Lyden, contractor.
The trial court granted summary judgment against the Goffs and in favor of American Savings Association, and the Goffs appealed. The action against Clarence H. Lyden is pending in the district court and Lyden is not a party to this appeal.
In the latter part of 1973, the appellants signed a construction loan agreement whereby Lyden would build a home for appellants and American Savings Association would loan money to the appellants to pay for the construction as it progressed.
On April 14, 1974, Lyden, while attempting to backfill around the basement walls, caused a wall to “bow” and crack in three places. James E. Goff was present and helped in an effort to straighten the wall. Goff observed three cracks about the size of a pen or pencil tip in the basement wall that went all the way through. Mr. Goff immediately became concerned that the basement might not be watertight and asked the contractor to guarantee the basement “not to leak.” Lyden replied, “No, I can’t guarantee it not to leak.”
The following day, the Goffs requested Mrs. Goff’s father and Lee Likes, a family friend, to inspect the basement for the sole purpose of ascertaining if it would be watertight. Lee Likes was a building contractor. Likes and Mrs. Goff’s father told the Goffs that the basement would leak and it should be torn out. Likes, in particular, was very adamant, saying, “. . . it will never work”; “the cracks would not seal out water”; and, “. . . no contractor in his right mind would build a frame on top of a wall like that.”
Approximately one month later, Mr. Goff talked to Benny Benge and Dale Casto, the cement contractors who were pouring the basement and garage floor, and they told Goff that the basement would never hold water.
Appellants’ cause of action for fraud is based on a conversation with Delores Green, a contracting officer for American Savings Association, and a single five- to ten-minute phone conversation with Bill Light, an appraiser for American Savings Association. The conversation with Delores Green took place at the time of the signing of the construction loan agreement. The phone conversation with Bill Light took place on April 19. Appellants testified Delores Green assured them American Savings Association’s inspector would see that the construction “was being handled properly and so on and so forth.” Delores Green did not state American Savings Association would guarantee the workmanship. Mr. Goff testified Delores Green told them “that American Savings would have to send out an inspector quite periodically to inspect the job site, to make sure that the material and the workmanship was 100 percent satisfactory.”
On April 15 or 16, 1974, Mrs. Goff called American Savings Association and requested that Bill Light inspect the basement walls. On April 19, 1974, Mrs. Goff talked to Bill Light on the phone. Taking Mrs. Goff’s testimony in its most favorable con text, as we are required to do on a motion for summary judgment, Bill Light told Mrs. Goff she had a good contractor and not to worry about it; that the drain tile would handle the water around the basement and that the basement would not leak. Bill Light did not guarantee the basement would not leak, and he was not asked to do so.
The basement leaked and appellants filed suit. The trial court held that a lending institution may insist on the right to supervise construction and to inspect as construction proceeds in order to protect its mortgage, and in this case had protected itself by providing:
“The Owner Agrees. ... To grant American’s inspector access to the building and premises during construction to inspect said construction, and to grant American, or its agents, the right to reject and to require replacement of any materials or work that does not in American’s opinion comply with the plans and specifications; provided however, American shall be under no obligation to so inspect or to accept or reject materials or work, and it is agreed that,the right granted in this paragraph shall be solely for the benefit of American.”
The trial court then concluded, as a matter of law, that (1) there was no confidential relationship between the plaintiffs and American Savings Association; (2) according to the terms of their contract, the plaintiffs were not entitled to rely on American’s evaluation of the quality of construction; (3) American could not have intentionally defrauded the plaintiffs without damaging their own interest in the property, something which it would not do intentionally. The trial court later added a fourth finding that “fraud cannot be predicated upon the expression of an opinion and that Mr. Light’s statements relied upon by plaintiff clearly fall within that rule,” and then granted summary judgment against the appellants as to their claim against American Savings Association.
Appellants rely on five points. Basically, appellants contend that the trial court erred in making the above findings as a matter of law as to four points.
The fifth point on which appellants rely is that a question remains whether the written document referred to by the court as being determinative on the question of reliance was modified by subsequent parol. Appellants concede that this issue was not raised in the trial court. We note that appellants filed a motion, or motions, after summary judgment was entered, requesting the court to interpret or amend the journal entry of summary judgment and in the alternative for a rehearing of American Savings’ motion for summary judgment. Appellants did not raise the oral modification of a written contract issue on their post judgment motion. Having failed to present the issue to the trial court, it cannot be a subject for appellate review. (Nelson v. Hy-Grade Construction Sr Materials, Inc., 215 Kan. 631, 527 P. 2d 1059; State v. Osbey, 213 Kan. 564, 517 P. 2d 141.)
“A litigant may not for the first time on appeal change the theory of his case from that on which it was presented to the trial court, nor may he present matters or issues which he did not bring to the attention of that court. (In re Bowlus, 197 Kan. 351, 416 P. 2d 711; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122; Potwin State Bank v. Ward, 183 Kan. 475,327 P. 2d 1091, 80 A. L. R. 2d 166.)” Evangelist v. Bellem Research Corporation, 199 Kan. 638, 641, 433 P. 2d 380.
Each case alleging fraud must be dealt with on its own particular set of facts and circumstances, and unless one finds an identical set of facts the case will usually be distinguishable in many particulars.
Good faith is required in every business transaction and the law will not permit a business person to intentionally or recklessly make false representations. If the business person does so, he may be called upon to respond in damages if damages are, in fact, incurred. This does not mean, however, that a business person is responsible in damages for every erroneous, reckless, or false representation made to a person, even though it may cause the other person damage. On the undisputed facts of this case, certain elements must be present in order for plaintiffs to recover on a fraud theory. If any one element is absent, then plaintiffs may not recover. The essential elements are that a representation was made as a statement of a material fact, which was untrue and known to be untrue by Bill Light at the time he made the statement, or else recklessly made, which was of such a character that the Goffs had a right to reasonably rely on it, and did rely on it to their damage. The statement must have been of such a nature that it was reasonably calculated to deceive the Goffs and to induce them to do what they otherwise would not have done. It must have been a statement of fact, which existed at the time it was made or had existed in the past, as opposed to an opinion. 37 Am. Jur. 2d, Fraud & Deceit § 12, pp. 33-4, Atlas Acceptance Corp. v. Weber, 138 Kan. 89, 23 P. 2d 479.
Many factors must be considered in determining whether a statement is a matter of fact or matter of opinion and whether or not a plaintiff has a right to rely on the statement. Among the facts the court will take into consideration are the intelligence, education, business experience and relative situation of the parties; the general information and experience of the persons involved as to the nature and use of the property; the habits and methods of those in the industry or profession involved; the opportunity for both parties to make an independent investigation as well as the nature, extent and result of any investigation so made; and any contract the parties knowingly and understandingly entered into.
With that general background, we now look to the facts of this case to ascertain whether the trial court was correct in granting summary judgment based on the pleadings, uncontroverted facts, answers to interrogatories, and depositions on file. Plaintiffs do not dispute the evidence or make claim of other favorable evidence that is not in the record. The general rules for summary judgment were recently summarized by Chief Judge Harman, then Commissioner Harman, in Timi v. Prescott State Bank, 220 Kan. 377, 385-6, 553 P. 2d 315, as follows:
“ ‘Generally before a summary [judgment] may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case . . . The manifest purpose of a summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine' the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reas onable doubt as to their existence, a motion for summary judgment will not lié. ... A court, in making its determination, must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration’ (Lawrence v. Deemy, 204 Kan. 299, 301-302, 461 P. 2d 770). ‘. . . A popular formula is that summary judgment should be granted on the same kind of showing as would permit direction of a verdict were the case to be tried. ... If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied.’ (Hastain v. Greenbaum, 205 Kan. 475, 481, 470 P. 2d 741.)”
The existence of fraud is ordinarily a question of fact to be heard by the trier of facts. The actionable nature of a representation, however, involves a question of law. Where the facts are undisputed and only one.reasonable conclusion can be reached, or where there is an entire failure of proof, the trial court may apply the principles of law to the facts and grant summary judgment. 37 Am. Jur. 2d, Fraud and Deceit § 19, p. 43.
The question also “. . . may be entirely one of law, as where it appears without dispute in the evidence that the representation was only a statement of the opinion or belief of the person making it, not to be relied upon as a statement of fact.” 37 Am. Jur. 2d, Fraud and Deceit § 44, p. 69.
“While as a general rule the question as to whether a particular statement is one of fact or opinion is for the jury, this is not always so, for cases frequently arise which are so plainly of one class or the other that they can be disposed of by the court without the aid of the jury. Thus, a statement may be so clearly an expression merely of the opinion of the person making it, and not to be relied upon as a representation of fact, that it may be held, as a matter of law, not actionable as a false representation constituting a fraud.” 37 Am. Jur. 2d, Fraud and Deceit § 48, pp.77-8.
James E. Goff had completed high school and some college. He was 29 years old and employed in credit and collection work for Goodyear Tire & Rubber Company. The age and educational level of Mrs. Goff are not shown. The Goffs had previously owned a home in Topeka, Kansas. When the construction loan agreement was executed, the Goffs knew, or were bound to have known, that American Savings Association’s inspection was “solely for the benefit of American” and that American Savings Association was not bound to inspect or to accept or reject materials or work. It is not customary in the business of making loans to provide inspections for the benefit of the mortgagor-purchaser. It is customary for the purchasers to inspect the premises as construction progresses and to satisfy themselves as to material and workmanship prior to final closing. While this is a case of first impression in Kansas, other jurisdictions have interpreted similar loan agreements and held that the providing of periodic inspection was normal procedure for a lending institution and would not impose liability. Bradler v. Craig, 274 Cal. App. 2d 466, 79 Cal. Rptr. 401 (1969); Schenectady Savings Bank v. Bartosik, 353 N.Y.S. 2d 706, 77 Misc. 2d 837 (1974); Callaizakis v. Astor Development Co., 4 Ill. App. 3d 163, 280 N.E. 2d 512 (1972).
It is not necessary, however, for us to decide whether a confidential relationship did or did not exist. Assuming arguendo that the specific contract provision did not bar recovery and that the statements of Bill Light (which he denied), taken in a light most favorable to plaintiffs, were reckless statements, and assuming still further that a confidential relationship did exist, the plaintiffs still could not recover.
First, fraud cannot be predicated upon what as a matter of law amounts to an expression of an opinion and which cannot reasonably be understood to be anything else.
Second, Light obviously was attempting to predict some future event, i.e., would the basement be waterproof in the future. The basement was not leaking at the time and, in fact, did not leak for nearly two months thereafter. Light merely expressed an opinion and confidence in the contractor. Plaintiffs picked the contractor and, other than the basement wall, were happy with his work. A number of authorities and cases are available to anyone interested. See: Timi v. Prescott State Bank, supra; Finch v. McKee, 18 Cal. App. 2d 90, 62 P. 2d 1380 (1936); Railway Co. v. Bennett, 63 Kan. 781, 66 Pac. 1018 (1901); 37 Am. Jur. 2d, Fraud and Deceit § 45; 37 C.J.S., Fraud § 10a.
Plaintiffs could not reasonably rely on Light’s statement in view of the facts of this case. Plaintiffs had actual knowledge of the cracks in the basement wall. Plaintiffs knew that prior to jacking the wall back in place the cracks went all the way through the basement wall and were as wide as a pencil or bail-point pen point. They also knew the basement wall did not return to its original position. Plaintiffs had requested the contractor to guarantee the basement to be watertight and the contractor refused. That, in itself, should have put any reasonable person on notice that the basement wall might leak. When coupled with plaintiffs’ own observation of the size of the cracks alf'the way through the wall, it is devastating to plaintiffs’ case. But, there is more. Plaintiffs also made an investigation on their own. The investigation was unhampered by American Savings Association. The investigation certainly disclosed to plaintiffs that Light’s opinion was just that, an opinion, and a controversial one at that. Plaintiffs requested Mrs. Goff’s father and Lee Likes, a family friend, to inspect the premises, and they did so. The family friend was a building contractor. Both, Mrs. Goff’s father and Lee Likes, told the Goffs the basement would leak. Likes suggested that fact in rather harsh language. Still later, two cement contractors who were pouring the basement and garage floors informed Goffs the basement would never hold water out.
“Restatement (Second), Torts § 540, p. 10 (Tent. Draft No. 11, 1965) sets forth very clearly one of plaintiff’s problems in this case: “A recipient of a fraudulent misrepresentation is justified in relying upon its truth without investigation, unless he knows or has reason to know of facts which make his reliance unreasonable.” The comments to § 540, at p. 12, go on to point out that the question is not one of contributory negligence, which is not a defense to fraud. Rather, the test is whether the recipient has “information which would serve as a danger signal and a red light to any normal person of his intelligence and experience.” See also Reeder v. Guaranteed Food, Inc., 194 Kan. 386, 399 P. 2d 822; Jenkins v. McCormick, 184 Kan. 842, 339 P. 2d 8; Kansas Wheat Growers Ass’n v. Windhorst, 131 Kan. 423, 292 Pac. 777; Harvester Co. v. Hardward Co., 101 Kan. 488, 167 Pac. 1057; Disney v. Lang, 90 Kan. 309,133 Pac. 572; Graffenstein v. Epstein & Co., 23 Kan. 443 [2d 314] (1880); Ahrens, Some Observations on the Law of Misrepresentation in Kansas , 9 Wash. L.J. 315, 333 (1970); 37 Am. Jur. 2d, Fraud and Deceit § 256, p. 343; 37 C.J.S., Fraud § 34a.
Considering all the facts of this case, no reasonable person in the Goffs’ position and circumstances could have reasonably relied on the statements of Bill Light, and the trial court was correct in granting summary judgment as a matter of law.
The trial court’s finding, “American could not have intentionally defrauded the plaintiff without damaging their own interest in the property, something it would not do intentionally,” is immaterial to our decision. Whether or not American Savings Association would benefit' or conversely be damaged is immaterial, as the plaintiff is neither required to plead nor prove that the defrauder benefits from or has an interest in the transaction. 37 Am. Jur. 2d, Fraud and Deceit § 18, p. 43; Hewey v. Fouts, 92 Kan. 268, 140 Pac. 894. Whether or not American Savings Association would benefit or be damaged by its alleged fraudulent statements was germane, and the trial court was correct in considering the manner in which American Savings Association would benefit or be damaged as one element the court could consider in deciding if American Savings was expressing an opinion or a fact and as to whether or not fraud was committed.
All of the facts necessary for determination of the controlling questions of law in this case are in the record, and the trial court was correct in sustaining American Savings Assocation’s motion for summary judgment.
Affirmed. | [
-15,
104,
-3,
-20,
8,
-32,
56,
-102,
93,
-96,
-31,
87,
-23,
64,
12,
110,
-12,
45,
-12,
113,
-112,
-77,
23,
-118,
-42,
-77,
115,
-59,
-16,
125,
-12,
-97,
72,
32,
-62,
-99,
-58,
-128,
-57,
88,
2,
-124,
-118,
-32,
-35,
64,
48,
-17,
20,
15,
37,
-76,
-13,
43,
61,
99,
104,
46,
-5,
45,
64,
-15,
-113,
5,
-51,
21,
-95,
101,
-112,
-57,
-24,
14,
-104,
-79,
33,
-8,
114,
-90,
-42,
100,
67,
-115,
8,
100,
98,
10,
-91,
-21,
-28,
-120,
23,
-121,
-115,
-89,
-77,
41,
27,
46,
-66,
-99,
112,
16,
5,
-4,
101,
-59,
27,
108,
-125,
-85,
-42,
-45,
13,
52,
29,
11,
-17,
-93,
34,
113,
-53,
-96,
76,
55,
112,
31,
14,
-23
] |
Swinehart, J.:
This was an Action for breach of contract, conversion, and damages for violation of the Kansas Consumer Protection Act. The defendant counterclaimed for monies allegedly due for services rendered pursuant to that contract which plaintiff alleged was breached by defendant.
The trial court found for plaintiff, awarding out-of-pocket ex penses caused by the breach of the contract by defendant, but denied damages for conversion. The trial court also found there had been no violation of the Kansas Consumer Protection Act, and accordingly denied a civil penalty and attorney fees. Plaintiff appealed claiming an inadequate award. Defendant cross-appealed claiming the lower court’s award was excessive.
Plaintiff Marinus Meyer is the owner of a Kenworth diesel truck. Plaintiff makes his living by contract driving his truck for M. Bruenger Company out of Wichita. Defendant Diesel Equipment Company, Inc., is an authorized distributor of Detroit Diesel-Allison Transmission Division of Genéral Motors. Defendant does business in Wichita.
In February of 1975 plaintiff asked that defendant install an automatic transmission in plaintiff’s truck and defendant agreed to do so. The agreed price was $5,000 for parts and not to exceed $2,000 for installation. This type of transmission required a special cooling or piping system, and the agreement called for the installation of a factory piping system. Defendant did not have the necessary parts for the factory piping system, so they were placed on order.
In mid-May of 1975 plaintiff received word from defendant that the necessary parts were in and that defendant was ready to install the transmission. Plaintiff took his truck to defendant’s service shop for the installation and defendant installed the automatic transmission. At that point, plaintiff was advised that defendant had not received all the factory piping system parts. Since defendant did not have the necessary parts, defendant presented plaintiff with the alternative options of either taking out the just-installed new transmission and replacing it with the old transmission or having the defendant build a custom piping system from scratch. Defendant represented to plaintiff that a custom piping system would be just as good as, if not better than, a factory system. Plaintiff, anxious to have the job completed, opted to have defendant install the custom piping system. However, plaintiff still expected defendant to install a factory piping system when the necessary parts arrived.
Defendant completed the work and plaintiff picked the truck up. Within hours the custom piping system broke, causing damage to the truck’s engine. In addition to this breakage plaintiff was required to pay for several minor repair jobs on the custom unit during the summer of 1975. Plaintiff eventually had to employ another company to install a factory piping system, after which he had no more trouble with the transmission.
Defendant billed plaintiff for $9,251 on the original work, but after plaintiff complained the bill was adjusted to $7,000. In October of 1975 plaintiff paid defendant $5,000 but refused to pay the remaining $2,000 because defendant had not installed a factory piping system.
In January of 1976 plaintiff took his truck to the defendant’s place of business for a transmission oil change. When plaintiff called to see if the truck was ready, defendant advised plaintiff that the truck was ready, but that plaintiff would have to bring an additional $2,000 to get the truck back. That $2,000 was the amount defendant felt was yet due on the original contract.
After defendant had retained the truck for some two and one-half weeks, plaintiff brought this action. The trial court immediately arranged for plaintiff, to pay $2,000 into the clerk of the court’s office so that plaintiff could regain possession of his truck.
After trial the trial court found that the February 1975 agreement was a binding contract; that that contract had not been modified by the parties; and that defendant had breached the contract. The court found damages to be plaintiff’s out-of-pocket expenses totaling $1,062.19 ($960.36 for factory piping system; $101.83 for on-the-road repairs) and, accordingly, ordered that $1,062.19 of the $2,000 which plaintiff had deposited with the clerk be returned to plaintiff, while the remainder of that $2,000 went to defendant for services performed under the original contract. The lower court also found that defendant’s retention of plaintiff’s truck for the purpose of forcing plaintiff to pay the disputed $2,000 was not an unconscionable act in connection with a consumer transaction. Finally, the court found the Kansas Consumer Protection Act was not applicable.
The issues raised on this appeal will be dealt with separately.
The first deals with defendant’s contention that the original contract was modified and that the trial judge erred in not so finding. It is defendant’s position that when plaintiff allowed defendant to install a custom piping system, he modified the original agreement which called for a factory piping system.
If the original contract was so modified, defendant is not guilty of breach of contract because defendant did install a custom piping system.
Modification of a contract, like the creation of an original contract, requires mutual assent or a meeting of the minds. As stated in Fast v. Kahan, 206 Kan. 682, 481 P.2d 958:
“. . . One party to a contract cannot unilaterally change the terms thereof. Modification requires the assent of all the parties to the contract. Their mutual assent is as much a requisite in effecting a modification as it is in the initial creation of a contract. Mutual assent may not only be shown by an express agreement, but also may be implied from the circumstances and conduct of the parties. In either case, however, there must be a meeting of the minds with respect to the proposed modification. . . .” (Emphasis supplied.) (pp. 684-685.)
The trial court found there was no meeting of the minds as to any modification. The only question, now, is whether that finding was supported by substantial, competent evidence. City of Council Grove v. Ossmann, 219 Kan. 120, Syl. 1, 546 P.2d 1399; Clardy, Administrator v. National Life & Accident Ins. Co., 1 Kan.App.2d 1, 5, 561 P.2d 892. Our search of the record indicates that evidence existed showing that plaintiff had at all times believed that defendant would eventually install a factory piping system and that the custom system was only temporary, pending receipt by defendant of the necessary factory system parts. This evidence clearly shows that plaintiff never thought the original contract was modified and that, as far as plaintiff was concerned, defendant was still obliged to install a factory piping system. Thus, substantial and competent evidence exists indicating that there was no meeting of the minds between these parties as to any modification of the original contract. We therefore must affirm the trial court’s finding in this regard.
We next examine defendant’s assertion that no breach of the contract occurred. There is no dispute but that the original contract called for a factory piping system and that defendant never installed such a system. However, defendant pleads impossibility of performance as excusing the breach. Defendant insists that no damages should be imposed because it was impossible to install the factory piping system without the necessary parts.
Defendant’s position lacks merit. Impossibility of performance, recognized in the law as a basis for relief from contractual obligations, is not of the nature contended by defendant. “When one agrees to perform an act possible in itself he will be liable for a breach thereof although contingencies not foreseen by him arise which make it difficult, or even beyond his power, to perform and which might have been foreseen and provided against in the contract.” White Lakes Shopping Center, Inc., v. Jefferson Standard Life Ins. Co., 208 Kan. 121, Syl. 2, 490 P.2d 609.
Defendant contracted to install a factory piping system — an act possible of performance in and of itself. The fact that parts were not available, which made it difficult or even beyond defendant’s power to perform the agreement, does not allow defendant to escape liability for the breach. The trial court properly found that defendant had breached the original contract.
We next consider plaintiff’s contention that the Kansas Consumer Protection Act (C.P.A.) applied to the facts of this case, and that defendant’s conduct in wrongfully retaining plaintiff’s truck constituted an unconscionable act as defined by the C.P.A.
The trial court rendered two findings: (1) that defendant’s retention of plaintiff’s truck was not an unconscionable act; and (2) that the C.P.A. did not apply to the facts of this case.
We cannot agree with the latter finding. The provisions of the C.P.A. apply to “consumer transactions” which are defined as “a sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer ... by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). By definition, a “consumer transaction” includes the sale of services by a supplier. “Services” are defined in 50-624(/i) as “[w]ork, labor and other personal services. . . any other act performed for a consumer by a supplier.” A “supplier” means a manufacturer, distributor, dealer, seller, lessor, assignor or other person who, in the ordinary course of business, solicits, engages in, or enforces consumer transactions. K.S.A. 50-624(i). There is no doubt but that defendant was a “supplier” and that the sale and installation of the transmission and piping system constituted a “service.” In addition, there was a sale for value in the state of Kansas to a consumer. Thus, a “consumer transaction” as defined at K.S.A. 50-624(c) occurred, and therefore the provisions of the C.P.A. apply.
Looking, then, to the C.P.A.’s provisions on unconscionable acts, the C.P.A. outlaws unconscionable acts or practices on the part of suppliers in connection with consumer transactions. Unconscionable acts violate the C.P.A. whether they occur before, during, or after the consumer transaction. Further, the C.P.A. has left the “unconscionability” question to be decided by the court. See K.S.A. 50-627.
The trial court concluded that defendant’s conduct was not unconscionable. We are not of a mind to now hold that defendant’s complained-of conduct was unconscionable as a matter of law. With a concept so nebulous as “unconscionability” involved, it is necessary that a certain amount of leeway be granted trial courts when deciding the unconscionability of acts. Our legislature recognized this and, accordingly, left the unconscionability question to be decided by the court under the peculiar circumstances of each case. Here, there was a bona fide dispute between the parties over what amount, if any, plaintiff yet owed defendant for the transmission installation. Further, though plaintiff may have been injured by such conduct, the evidence indicates the injury to have been minimal and short-lived. Under the facts and circumstances unique to this suit, the lower court was justified in concluding that defendant’s conduct was not unconscionable.
This is not to say, however, that we will never determine unconscionability as a matter of law. Instances conceivably may arise where a defendant’s conduct is so outrageous and shocking to the conscience as to dictate a finding of unconscionability, regardless of the lower court’s finding. However, such a situation does not exist here.
A final point on plaintiff’s appeal has to do with the trial court’s denial of damages. Plaintiff complains that he was not awarded his damages caused by defendant’s two-week retention of his truck. We have examined the only testimony on such damages and conclude that that testimony was too vague and speculative to support any award of damages. At best, the evidence indicated that plaintiff received $650.00 per week gross; but there was no evidence from which plaintiff’s actual income could be computed. We find no error on this point.
Defendant has cross-appealed on the monetary damages awarded to plaintiff. The trial court awarded $960.36 which, the trial court found, was plaintiff’s expense incurred for having a factory piping system installed by another company. Plaintiff testified the installation cost him $960.36 and then offered into evidence a copy of his bill (Exhibit 1) from Wichita Kenworth, Inc. (the company that installed the factory system) indicating a total charge of $960.36. The trial court admitted the exhibit into evidence and awarded $960.36 as damages. Defendant maintains this was error because no sufficient foundation existed for the exhibit. We do not agree.
First of all, there was evidence aside from Exhibit 1 indicating what plaintiff had to pay for the installation. Even assuming Exhibit 1 was improperly admitted, the trial court’s decision was justified because of that extra-exhibit evidence which supported the judgment.
Second, although Exhibit 1 may have been improperly admitted, we feel that no prejudice resulted to defendant. The admission of the exhibit was harmless error. There is nothing in the record to indicate the $960.36 figure was unreasonable. In fact, that figure seems highly reasonable when contrasted with the $2,000 installation fee defendant wanted to charge plaintiff for the entire transmission system. Defendant failed to offer evidence which would indicate whether Wichita Kenworth’s charges were reasonable or not, though defendant could easily have done so.
We have concluded that when the evidence presented below is considered in its entirety, there is sufficient evidence aside from Exhibit 1 to support the court’s award. Further, to the extent the trial judge relied upon Exhibit 1 in reaching the award, it was harmless error because there is nothing to indicate the figure of $960.36 was unreasonable.
The judgment is affirmed. | [
-48,
122,
-40,
-52,
8,
32,
48,
26,
117,
-73,
103,
87,
-19,
-58,
5,
121,
-26,
85,
96,
104,
-9,
-77,
11,
18,
-46,
19,
-7,
65,
-72,
79,
112,
-36,
76,
32,
66,
-99,
-94,
-126,
5,
92,
-50,
6,
-23,
-24,
-3,
66,
-76,
120,
6,
15,
113,
-84,
115,
46,
25,
-49,
47,
48,
-67,
108,
-63,
-15,
-14,
5,
111,
23,
-94,
4,
-100,
11,
-48,
10,
-110,
-72,
40,
-24,
114,
-74,
-62,
-12,
39,
-119,
-119,
38,
99,
34,
21,
-51,
-4,
-72,
47,
-33,
-113,
-91,
-13,
88,
11,
8,
-73,
-98,
116,
18,
5,
-8,
-8,
21,
31,
109,
2,
-49,
-76,
-127,
109,
118,
-98,
11,
-18,
-126,
-94,
65,
-57,
-78,
93,
7,
122,
-97,
-41,
-66
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.