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Abbott, J.:
This is an appeal from an order of the district court of Saline County granting an injunction enjoining the defendant-appellant from violating restrictive covenants in the eastern section of Shalimar Plaza Addition to Salina, Kansas.
The case was submitted to the district court on a written stipulation of facts. No other evidence was taken or considered by the district court.
Shalimar Plaza Addition was platted as one unit consisting of fourteen blocks. It is comprised of a western section consisting of blocks one through six and an eastern section consisting of blocks seven through fourteen. The two sections are divided by a four-lane traffic artery (Ohio Street) running north and south. Restrictive covenants were imposed on the western section in 1959 and on the eastern section in 1962. Both sections have land allocated for commercial, business, and residential use. The majority of each section is reserved for single-family dwellings. All of the lots involved in this litigation are in the eastern portion of Shalimar Plaza Addition and are numbered lots one through six in block nine, and lots one and two in block thirteen. The lots involved are located adjacent to each other. Lot one is the northeast corner of the subdivision. The remainder of the lots lie south of lot one along the east side of the subdivision.
All of the parties to this action acquired title to their respective properties after the restrictive covenants were filed of record.
Appellant-defendant was desirous of constructing multifamily housing on the lots. On June 27, 1973, appellant filed an amendment to the 1962 restrictions which specifically permitted construction of multifamily housing on the lots. It was necessary to obtain the written consent of persons holding record tide to over one half the land area to amend the restrictive covenants. The attempted amendment to the 1962 restrictions did not have the consent of over half the total land area owners in the eastern portion of Shalimar Plaza Addition. The amendment did have over half the total area owners of the combined eastern and western sections. The trial court held the amendment to be invalid. Prior to the trial court’s decision, the appellant requested the Salina City Commission to rezone the lots. The Salina City Commission rezoned the lots, over the objection of residents in the area, from zone “A second dwelling house district” to zone “C apartment house district.”
Before construction began, counsel for appellees notified appellant in writing that the restrictive covenants permitted only single-family homes. Appellant started construction, this action was commenced, and a pretrial conference was held. The parties stipulated to the facts and specified the following issues of law to be resolved by the court:
“1. Is the real estate described in Exhibit ‘A’ two additions, one of which is comprised of Lots 1-6 and the other of which is comprised of Blocks 7-14 as shown on the said exhibit or is the said real estate one addition comprised of the said Blocks 1-14?
“2. Are the facts set forth in paragraphs 16 and 19 of the above stipulation of facts relevant and admissible evidence?
“3. Are the facts set forth in subparagraphs (c), (g) and (h), of paragraph 18 of the stipulation of facts violations of the restrictions set forth in Exhibit ‘C’?
“4. Have the violations of the restrictions set forth in Exhibit ‘B’ or Exhibit ‘C’ been so extensive so as to cause the said restrictions to be null and void, thereby permitting the construction of apartments, duplexes, and other buildings by the defendant in Shalimar Plaza Addition in contravention of the terms of the said exhibits?”
Paragraphs 16, 19, and 18 (c), (g) and (h) of the stipulation of facts read:
“16. The plaintiffs A. J. Holmquist and Martha J. Holmquist own a residence and operate and conduct a commercial business immediately adjacent to that property on which defendant plans to construct duplexes and use the road ways of Shalimar Plaza Addition for such commercial business purposes. Such commercial business is in the nature of a sand mining operation and the roadways are used for hauling gravel and dirt and other material and machines used in such business.
“19. Multi-family condominiums, townhouses, and apartment buildings have been built and are being constructed on the real estate immediately north of and adjacent to the defendant’s proposed construction site.
“18. The following is a listing of other or possible minor violations of the restrictions set forth in Exhibit ‘C’:
(c) Block 11, Lot 4. The owner conducts a sign business in the residence.
(g) Block 14, Lot 2, and Lot 6. Each residence has a carport attached.
(h) Block 14, Lot 3. The residence has a flat sunshade over the driveway and is attached to the residence.”
The trial judge found for the plaintiffs and against defendant on all issues of law and issued the injunction from which defendant appeals. Defendant did not appeal from that part of the judgment holding the restrictive covenants filed in 1962 applied only to the eastern portion of Shalimar Plaza Addition.
This court is not bound by the trial court’s findings since all of the evidence was presented by a written stipulation of facts and documentary in nature. The trial court had no better opportunity to weigh the evidence than this court. What the facts establish may be decided substantially as if the case were originally in this court. (In re Estate of Miller, 186 Kan. 87, 348 P.2d 1033; Goldberg v. Central Surety & Ins. Corp., 145 Kan. 412, 65 P.2d 302.)
All parties concede, and the court found, that an owner could not conduct a sign business from lot four, block eleven, of Shalimar Plaza Addition. We are informed that the owner of said lot was conducting a magnetic sign business from his personal residence and that said business was terminated. Appellant, however, questions the determination that carports attached to the residences on lots two and six in block fourteen, and a flat sunshade over a driveway and attached to the residence on lot three in block fourteen, are not in violation of paragraph five of the 1962 restrictive covenants. Paragraph five reads in pertinent part, “No building shall be erected, altered, placed or permitted to remain on any ‘A’ residential lot other than one detached single family dwelling not to exceed one and one-half stories in height and private garage for not more than two cars.” Appellant contends a garage is a “building” and that Webster’s Third New International Dictionary of the English Language Unabridged, p. 292, defines a building as “usually covered by a roof and more or less completely enclosed by walls . . .” and therefore a carport or sunshade cannot be a garage since it does not have walls.
Appellant’s definition is too narrow. A garage has been defined as a “covered structure” (Mascolino v. Noland & Cowden Enterprises, 391 S.W.2d 710 [Ky. 1965]; “a place for the care and storage of motor vehicles” (Wyatt v. State Farm Fire & Cas. Co., 78 Wyo. 228, 322 P.2d 137 [1958]); a place where motor vehicles can be sheltered and stored (Woods v. Kiersky, 14 S.W.2d 825 [Tex. Comm’n. App. 1929]); “a garage is a place, structure, or building where motor vehicles are stored and cared for” (38 Am.Jur.2d, Garages, and Filling and Parking Stations, Sec. 1); “a private garage is a structure or building” (61A C.J.S., Motor Vehicles Sec. 715). Had the drafter of the restrictive covenants desired to exclude carports and sunshades from the subdivision, it would have been a simple matter to have done so either by specifically excluding them or by defining garage in such a manner as to exclude them.
In the absence of a specific exclusion or a definition of garage that is clearly exclusionary in restrictive covenants, a carport or sunshade over a driveway and attached to a single-family residence is held to be a garage and permitted by the restrictive covenants.
It is next urged that the trial court erred in not considering evidence related to the operation of commercial businesses, multifamily condominiums, townhouses, and apartment buildings on real estate adjacent to but not located in Shalimar Plaza Addition. Appellant relies on Hecht v. Stephens, 204 Kan. 559, 464 P.2d 258, for authority to introduce the excluded evidence. The Hecht case does not hold that it is mandatory for the court to consider changes occurring nearby and outside the area; Hecht merely does not preclude the court, in its sound discretion, from so doing. The court may consider the evidence of change outside the restricted area when enforcement of the particular restriction would be inequitable and without appreciable benefit to property in the restricted area (Hecht v. Stephens, supra). Generally, changed conditions outside the restricted area should not be permitted to terminate the restrictions where by doing so it would cause property owners in the restricted area to suffer damage. Sound reasoning and authority for such a rule exist:
“Where no radical change in a restricted residential tract has been shown, the fact that apart from and surrounding the tract some business has grown up, and that the land has become more valuable in consequence, does not relieve the lots in the restricted district from the restrictions. The fact that adjoining or surrounding property outside a subdivision restricted for residential purposes is used for business and professional purposes on a large scale does not alter the character of the subdivision itself, and, generally, the encroachment of business and the changes due thereto, in order to undo the force and vitality of the restrictions, must take place within the restricted area.
“It has been said that where changes of conditions result through violations of restrictions within a subdivision, it is a problem of abandonment, whereas if changes of conditions outside the subdivision occur, it becomes a problem of whether or not these conditions affect the entire subdivision so as to defeat its restrictive purposes, but that in both cases the factual situation largely governs as to whether or not equity will refuse to enforce the restrictions for the reason that by doing so the result would be oppressive and inequitable without appreciable value to other property in the restricted area. Where the whole neighborhood has come to be used for business and the residential purpose can no longer be accomplished, and where, if all the restrictions imposed should be rigidly enforced, it would not restore to the locality its residential character, equity will not enforce the restriction.
“Some courts have alluded to the problem presented by the fact that in a growing municipality the outer or front tier of lots in a residentially restricted area must bear the brunt of the onslaught of business and commerce from outside the area. Generally, the fact that a small portion of a restricted district, lying along the edge or at the threshold thereof, is thus forced to bear the brunt of attack from changed conditions outside the district, with resultant impairment in value for the use prescribed by the restrictions, does not justify abatement of the restrictions as to the part affected because of the hardship visited upon that ^articular land as compared with the sheltered or interior portion of the district, the view being that one of the best places to hold the line against encroachment of business and commerce upon the restricted area is at a highway or street, since otherwise there would be started a system of gradual encroachment which might swallow up the entire residential area, with the interior tiers of lots ‘falling like ten pins’ once such encroachment began.” (20 Am.Jur.2d, Covenants, Conditions, and Restrictions, Sec. 284, pp. 849-50.)
“A ruling on the relevancy of evidence, based upon remoteness, ordinarily rests in the discretion of the trial court and will not be reversed unless it clearly appears the ruling constituted an abuse of sound judicial discretion.” (Tucker v. Lower; 200 Kan. 1, 6, 434 P.2d 320.)
On the stipulated facts, we cannot say the trial judge abused his discretion as a matter of law in not considering paragraphs sixteen and nineteen of the stipulations of fact.
Violations of restrictive covenants within the restricted area are relevant, however, and when they are so great or radical as to neutralize the benefits of the restriction and destroy its purpose, a court of equity will refuse to enforce them (Hecht v. Stephens, supra).
The granting of an injunction is equitable in nature and involves the exercise of judicial discretion. “Whether injunctive relief will be granted to restrain the violation of a restrictive covenant is a matter within the sound discretion of the trial court to be determined in light of all the facts and circumstances. Absent manifest abuse of that discretion, an appellate court will not interfere. (Hecht v. Stephens, supra.)” (South Shore Homes Assn v. Holland Holiday’s, 219 Kan. 744, 751, 549 P.2d 1035.)
No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, and each case must be decided on the equities of the situation presented. A number of factors may be considered including, but not limited to, the purpose for which the restrictions were imposed, the location of the restriction violations, the type of violations which have occurred, and the unexpired term of the restrictions (4 A.L.R.2d 1111; 54 A.L.R. 812; and 53 A.L.R.3d 492).
In comparing the restrictive covenants filed in 1959 to those filed in 1962, it is apparent a larger percentage of the lots in the west half was to be used for commercial use than in the east half, which is mainly restricted to “A” residential use. It then follows that the purpose for which the restrictions were imposed was to insure that the east half of Shalimar Plaza Addition was developed as single-family homes.
It is important to analyze what type of violations have occurred, and where. The eastern portion of Shalimar Plaza Addition consists of 108 lots. All lots on the west side (fronting on Ohio Street) and five lots on the southwest corner of Shalimar Plaza Addition are reserved for commercial development. Six of the seven lots with major violations of the restrictive covenants abut the commercial area. One violation is a lot used for a commercial business operation. Three lots abutting the commercial zone and immediately south of the commercial business violation have multifamily dwellings with parking lots. The other three violations consist of lots being used for parking adjacent to authorized commercial or business activities. The so-called minor violations of the restrictive covenants consist of (1) two lots having storage sheds too close to the back property line, (2) two houses having ground floors containing less than the minimum square feet required (one is short 80 square feet; the other, built and owned by the appellant, is short 128 square feet), (3) one lot has a house that is closer than allowed to the interior lot line, and (4) two businesses covering seven lots are in violation in that they are built across interior lot lines and thus violate the interior lot line setback requirements of the restrictive covenants, although the commercial use of the lots is not in violation.
In the 108-lot subdivision, there are only four lots (three multifamily and one commercial) having violations which are totally incompatible with single-family dwellings. All four violations are adjacent to each other and abut the rear of a permissible commercial zone on the west side of the east portion of Shalimar Plaza Addition in the northwest corner. None of the other violations, either major or minor, appreciably affect the desirability of the subdivision for residential purposes.
The trial court found that the evidence does not sustain appellant’s contention that there have been violations so extensive as to cause the restrictions to be abandoned. On the stipulated facts we cannot say as a matter of law there has been a change in the character and conditions of the subdivision to such an extent as to neutralize the benefits of the restrictive covenant and to destroy its purpose.
Appellant says it would be inequitable or unduly burdensome on it to restrict its use to single-family dwellings. The restrictive covenants were of record when appellant acquired the lots, and thus appellant is subject to the rule in South Shore Homes Assn, supra, that “[a] person who takes land with notice of restrictions upon it will not in equity and good conscience be permitted to act in violation thereof. . . .” (p. 751.) 5 Powell, Real Property Sec. 685, as well as Ferraro v. Kozlowski, 101 N.J. Eq. 532, 138 A. 197; Goodhue v. Cameron, 142 App. Div. 470,127 N.Y.S. 120; Johnson v. Poteet, 279 S.W. 902 (Tex. Civ. App. 1925), are cited as examples of restrictive covenants that were not enforced as being inequitable or unduly burdensome.
A careful review of the cited cases reveals substantially different situations than the one with which we are here confronted. Nor is Powell, Real Property, supra, of any comfort to appellant. Powell points out that the doctrine of relative hardship has frequently been challenged because it cannot be a “hardship” to enforce a restrictive covenant of which a party had notice. In addition, Powell points out the general rule that when some benefit will result to the party seeking to enforce the restriction, an injunction will issue notwithstanding the disproportionate harm which will accrue to the other party (see, also, 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, Sec. 313, p. 876). The courts have not adopted the position appellant urges except when the party seeking to enforce the restrictions has engaged in inequitable conduct. The appellees have not acted in an inequitable manner, and the trial court did not err in determining that it would not be inequitable or unduly burdensome to enforce the restrictive covenants.
Appellant raises additional points on appeal which were not stipulated to or argued to the trial court, and one point was raised on oral argument which not only was not argued to the trial court, but it was not listed as a point on appeal and was not briefed. Generally an appellate court will not consider issues other than those upon which the parties have tried their case (Oliver v. Nugen, 180 Kan. 823, 308 P.2d 132). Appellant relies on Reznik v. McKee, Trustee, 216 Kan. 659, 534 P.2d 243, as authority for this court to consider the additional issues. The Reznik case did not consider points not raised on appeal. In Reznik, the Supreme Court reviewed the trial court’s finding that a revocable trust was contractual and stated that where the evidence before the trial court is wholly written and documentary in form, the reviewing court must decide for itself what the facts establish substantially as it would if the case were originally in this court.
There is authority under exceptional circumstances to review issues not considered by the trial court. If a “newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or where consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights,” the court may consider the issues. (Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. 3, 434 P.2d 858.)
In Pierce, the Supreme Court reaffirmed the view that the court would consider an additional issue on appeal when necessary to affirm a trial court whose judgment was correct but who had relied on a wrong ground or assigned a wrong reason for his decision. All three exceptions were found to exist in the Pierce case. The issue considered involved due process of law. The trial court had set aside a tax foreclosure deed on equitable grounds. The county had obtained jurisdiction by publication service after the sheriff returned service showing appellants could not be located in the county.
The Supreme Court has considered the applicability of Pierce in a case where a respondent and respondent insurance carrier appealed from the district court order awarding a lump sum judgment for failure of the respondent and its insurance carrier to pay compensation on written demand. Appellant attempted to add an additional issue that written demand was premature and that the parties had agreed on the record, and the record clearly disclosed demand was premature.
The court said in Shinkle v. State Highway Commission, 202 Kan. 311, 318, 448 P.2d 12:
“It has been consistently held that this court will not for the first time consider an issue on appeal that has not been presented to the trial court. (State v. Arlis Blair, 197 Kan. 691, 421 P.2d 22, and authorities cited therein.)
“It has also been held that no issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, will be considered on appeal unless included in the statement of points in the record on appeal, in accordance with Rule No. 6 (d) of this court relating to appellate practice. (197 Kan. LXI.) (Crowther, Administrator v. Baird, 195 Kan. 134, 402 P.2d 753, Syl. 2.)
“The appellants claim their motion comes within an exception to the general rule, citing Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858, Syl. 3. In the Pierce case a matter of due process was considered in this court as a ground for reversal of the judgment which had not been presented as an issue to the court.
“We must conclude on the facts in the instant case that the point the appellants attempt to raise for the first time on appeal falls within the general rule and not within the exception considered in the Pierce case. It follows the motion to amend the statement of points must be denied.”
As in Shinkle, on the facts of this case, the points appellant attempts to raise for the first time on appeal fall within the general rule and not within the exception considered in the Pierce case.
The judgment of the district court granting injunctive relief is supported by the evidence, and no abuse of discretion has been shown.
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Swinehart, J.:
The appellants appeal an adverse ruling at the trial level. They had sued for damages for breach of a real estate contract. They had also asked that the broker be denied recovery of his fee.
The matter was tried in the district court on November 8, 1976. The journal entry of judgment was filed on December 30, 1976. Two days before the journal entry was filed, on December 28, the appellants filed a motion for a new trial. That motion was denied by the trial court in a journal entry dated January 5, 1977. The notice of appeal was received and filed by the clerk of the district court on February 7,1977, thirty-three days after the journal entry denying appellants’ motion for a new trial was filed.
When an appeal is not filed in strict compliance with the procedure established by statute, this court has no jurisdiction and the appeal must be dismissed. K.S.A. 1976 Supp. 20-3001. The statute creating the court of appeals provides in pertinent part: “[t]he court of appeals shall have such jurisdiction over appeals in civil and criminal cases and from administrative bodies and officers of the state as may be prescribed by law. . . .”
K.S.A. 60-2103(a) directs that notice of appeal must be filed with the clerk of the district court within thirty days from the entry of judgment, as provided by K.S.A. 60-258. K.S.A. 60-258 provides that the date the journal entry of judgment or judgment form is filed is the effective date of that judgment. The order denying the appellants’ motion for a new trial was filed January 5, 1977. The statutory period for filing the notice of appeal was thirty days from that date. K.S.A. 60-206(a), made applicable to appellate procedure by Supreme Court Rule 1.05, K.S.A. 60-2701a, provides that the computation of time periods shall begin with the day following the act or event marking the beginning of the time period. Counting from and including January 6, the thirtieth day fell on February 4. The notice of appeal, filed on February 7, was filed out of time. Therefore, this court has no jurisdiction and the appeal must be dismissed.
There are two exceptions to the rule that the notice of appeal must have been filed with the clerk of the district court within thirty days of entry of judgment. K.S.A. 60-205(e) permits the judge of the district court to accept pleadings and other papers, note the filing date on them, and then promptly transmit them to the clerk. The second exception is that when the final day of a time period falls on a Saturday, a Sunday or a legal holiday, the period is automatically extended to the next working day (K.S.A. 60-206[a]).
The appellants are not within either exception. Their notice of appeal was placed in the United States mail on February 4, the final day for filing. Neither the judge nor the clerk was in receipt of the notice on that day. February 4 was a Friday and was not a legal holiday, so the appellants are not entitled to an extension pursuant to K.S.A. 60-206. The appellants argue that mailing the document on the final day satisfies the statute. K.S.A. 60-206(c) is enlightening because of its negative implication. It provides an automatic three day extension to any party who receives a notice or paper by mail. Since the legislature specifically provided an extension for the recipient of mail but made no similar provisions for the sender of mail, the implication is clear: it intended none.
The appeal is dismissed. | [
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Spencer, J.:
This is an action for damages for injuries sustained by plaintiff while working with defendant’s cattle. At the close of plaintiff’s case in chief, the trial court sustained defendant’s motion for a directed verdict on the theory of assumption of risk, and plaintiff has appealed.
The accident occurred on October 29, 1974. On that date the plaintiff was employed by the defendant as a general farm laborer on defendant’s farm in Neosho County, and had been so employed since about the middle of the previous March. The plaintiff, together with the defendant and the defendant’s son, was engaged in the process of treating a herd of approximately forty calves (approximately 200 to 250 pounds in size) by vaccination, castration and spraying for pink eye. The method employed was first to enclose the entire herd into one pen from which the cows and calves were sorted into separate pens. The calves were then put through a “squeeze chute” where their heads were held by a “V” shaped board. The calves were then given the indicated treatment and released one at a time into the then empty first pen. After all of the calves had been through the squeeze chute, it was noticed that one of them had not been treated for pink eye. This calf was blinded by the condition of its eyes. When noticed, it was in the pen with thirty-nine or forty other calves. There was some discussion as to what should be done, not related in detail, when the defendant said “catch the calf.” The plaintiff then asked the defendant if he had a rope and “he said he didn’t.” The plaintiff then testified as follows:
“So then we — I just went out and caught the calf. ... I just walked right up to him and put my arm under his neck and grabbed hold of his tail and was holding on to him. I was kind of bent over. . . . The next thing I know I was on the ground. I don’t know what happened.”
The record reveals that the plaintiff was bent over, holding the calf, with his back to the remainder of the herd, which stampeded over him, causing his injuries.
At the time of the trial, plaintiff was twenty-six years of age, which would make him approximately twenty-four years of age on the date of the accident. He testified that although he had been reared in town, his father had purchased eighty acres of land and ten or fifteen cattle while he (the plaintiff) was still in high school, and that he had assisted his father on that farm whenever he was needed. This assistance included working with his father’s cattle and the use of a squeeze chute when vaccinating and castrating the animals. The plaintiff testified that he had worked for other farmers who had livestock operations, and that, following his graduation from college, he had worked for still another farmer for a period of about two years before going to work for the defendant, with duties essentially the same as for the defendant. He also testified that for some time he had owned a few head of cattle himself and was aware from his experience with livestock that some animals can be easily frightened and can be unpredictable. Plaintiff also testified that, when they noticed the untreated calf, there had been some sort of “round-table” discussion as to what was to be done about the calf. When he was asked whether he had any voice on how the calf was going to be worked, he replied, “I could have I suppose if I had spoke up.” Plaintiff testified that he had gone into a pen to catch baby calves in this manner before and “they’re a little skittish of you” if they have to be worked a second time. On cross-examination, the plaintiff testified that they had discussed running the calf back through the herd at first; that none of them had really thought much about it; that he had been in cattle pens with calves before; and that he had worked with cattle long enough to realize the risk that might exist by doing so.
The defendant did not recall in detail what was said on the day of the accident but stated that he had no reason to doubt the plaintiff’s word. He stated also that with hindsight it would have been better to use the chute for this one calf. His son confirmed that his father had said “catch the calf” but stated also that the directive was “to us, not one in particular I wouldn’t say, just to us” and that the plaintiff had gone into the pen because he was closer to the cattle at that time, while he (the son) had gone back to the refrigerator to get the medicine for the calf’s eyes. He also acknowledged that his father’s statement was emphatic and that there was no warning given the plaintiff when the cattle started to stampede as there was not time to do so.
Plaintiff contends error on the part of the trial court in applying the doctrine of assumption of risk for reasons as follows:
1. In ruling as a matter of law that risks and danger of the act done in the employment were as well known to the employee as to the employer when the evidence showed the employer had a great deal more experience than the employee.
2. Because the risk was unusual and not apparent to either of the parties.
3. When the evidence showed that the employer was negligent in the manner of his operation and in ordering the employee into a position of danger which caused his injury.
Plaintiff also argues that, because of the comparative negligence statute, assumption of risk should no longer be considered a complete bar to recovery. He suggests that assumption of risk is an outmoded and unfair doctrine, especially so when contributory negligence is no longer an absolute bar to recovery.
The doctrine of assumption of risk was considered and applied by our supreme court as recently as March 5, 1977, in the case of Borth v. Borth, 221 Kan. 494, 561 P. 2d 408, wherein it was stated:
“The doctrine of assumption of risk is still viable in Kansas though its application is limited to cases such as this where a master-servant relationship is involved. . . .” (p. 499.)
We note that the Borth case dealt with the circumstances of an accident which occurred in 1971, prior to the enactment of our comparative negligence statute, K.S.A. 60-258a, which provides that the contributory negligence of a party in a civil action is not a complete bar to recovery for damages for negligence resulting in personal injuries. However, our court has consistently drawn a distinction between the doctrine of assumption of risk and contributory negligence, the latter not necessarily being an element in injuries sustained in employment where the assumption of risk doctrine is applicable. (See Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227; Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062.) Assumption of risk and contributory negligence being separate and distinct concepts in this state, the former remains a complete bar to recovery in cases such as here involved.
In ruling on the motion for a directed verdict, the trial court stated:
“The ruling is based on the doctrine of the assumption of risk. Neither party foresaw that what happened would happen, but I am compelled to the conclusion that the risk and the danger of what did happen was as apparent to the plaintiff as it was to the defendant. And, therefore, the doctrine of assumption of risk applies, that the employee assumed the ordinary risk of his employment.”
Plaintiff argues that this finding of the trial court “flies in the face of the evidence itself” and cites the case of Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321, in support of one of the rules deemed applicable to the facts of that case:
“There can be no liability on the part of the employer where it appears that the employee’s knowledge of the danger was equal to or surpassed that of the employer. . . .” (194 Kan. at 72.)
Plaintiff states that although he had performed this particular operation once or twice before, he had never gone into a pen to catch such a large calf, and he had no idea of the danger in what he was doing. He said, on the other hand, that the defendant had been farming for twenty-seven years and often had to tell the plaintiff what to do and how to do it. Our supreme court in Uhlrig also stated:
“The doctrine of assumption of risk rests for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for injuries resulting from his employment. This court has stated that to raise an implied agreement the risk assumed must be known to the employee, or it must be of such a nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. One, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, who freely and voluntarily continues therein, cannot recover damages for injuries he may suffer. . . (194 Kan. at 73.)
It does not necessarily follow that greater experience means greater knowledge, nor does it follow that the doctrine of as sumption of risk is applicable only in those cases where the employee’s knowledge of the danger is equal to or surpasses that of the employer, as may have been the case in Uhlrig. We are concerned here only with the plaintiff’s knowledge of the duties he was to perform in his employment for the defendant and his awareness of the danger to which he was exposed in assuming the obligations of that employment. There is evidence that plaintiff had worked with cattle since his high school days; that he knew cattle sometimes become “skittish” when they are being treated as they were that day; and that he knew the danger of working with cattle.
Plaintiff correctly states that the doctrine is based on either an express or implied term of the contract that the employee will assume the risk involved. He argues that the portion of the trial court’s finding that “neither party foresaw that what happened would happen,” demonstrates that the plaintiff could not have assumed the risk in that he was not aware of the danger involved and had never been in the exact situation before. It is highly unlikely that the “exact” situation has ever occurred before or will ever occur again, but as plaintiff testified, he had been in cattle pens with calves before and had worked with cattle long enough to realize the risk that might exist in doing so. As stated in Borth v. Borth, supra, “ . . . [t]he risk of injury by the cattle is clearly one that arises out of the activity being carried on, and one that is open and apparent. . . .” (221 Kan. at 503.)
Plaintiff argues that the doctrine should not be applied when the evidence was that the defendant ordered the plaintiff into a position of danger which caused his injuries. (Railroad Co. v. Morris, 76 Kan. 836, 93 Pac. 153.)
There is nothing in this record to justify a conclusion that the facilities provided at the defendant’s farm were out of the ordinary or that the procedures followed in treating the calves were in any way unusual. On the contrary, the plaintiff’s testimony indicates that he had been involved in similar procedures with similar facilities even while in high school. Neither-Is there anything in the record which would indicate an emergency situation into which the plaintiff was ordered without time to deliberate as to a better course to pursue. There was time to deliberate and there was some discussion as to how best to handle the situation. As a matter of fact, the plaintiff testified “we discussed running the calf back through the herd first.” (Schoof v. Byrd, 197 Kan. 38, 415 P.2d 384.) As it developed, the situation to which the plaintiff responded was one of danger, which was apparent, and of which the plaintiff was or should have been aware.
The facts and circumstances of this case are almost “foursquare” with those set forth in Borth v. Borth, supra, and the reader is referred to that opinion for a more comprehensive treatment of the subject matter.
Judgment affirmed. | [
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Abbott, J.:
This appeal involves a construction of the residuary clause of the last will and testament of Nita Jackson, deceased. The residuary clause of decedent’s will reads: “All the rest and residue of my estate I give, devise and bequeath unto Mattie Grubb of Esbone, Kansas, and to my lawful heirs.”
The trial court concluded the residuary clause passed one-half of the residue of the estate of Nita Jackson to Mattie Grubb and the remaining one-half to the testatrix’s lawful heirs per stirpes. The executor argues that the testatrix intended a gift to a class composed of Mattie Grubb and the heirs of the testatrix and that a per capita distribution was intended.
If the decision of the trial court is affirmed, Mattie Grubb will receive one-half of the $136,468.29-available for distribution under the residuary clause and the appellee, Helen Zoe Bradley, will take $34,117.07. If the appellant succeeds, Mattie Grubb’s distributive share will be $6,498.49 and the appellee, Helen Zoe Bradley, will likewise take $6,498.49 in the per capita distribution instead of $34,117.07.
The lawful heirs of Nita Jackson, deceased, consist of the children and grandchildren of Nita Jackson’s uncles. Helen Zóe Bradley is the sole surviving heir of a brother of Nita Jackson’s father. The remaining nineteen heirs are the surviving heirs of two brothers of Nita Jackson’s mother who would receive shares ranging from less than $5,000 to less than $2,000 per person under the trial court’s judgment.
By agreement of the parties, the case was submitted to the trial court without any evidence being offered. This court’s scope of review is broad. Where the only evidence before the trial court was documentary in nature, this court can interpret the document as well as the trial court. (Wallace v. Magie, 214 Kan. 481, 522 P.2d 989; Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P.2d 368.)
The first task of this court in interpreting a will is to ascertain if there is an ambiguity or conflict requiring the use of the rules of judicial construction. (In re Estate of Graves, 203 Kan. 762, 457 P.2d 71.) The intention of the testator is the controlling factor in interpreting testamentary provisions. (In re Estate of Hannah, 215 Kan. 892, 529 P.2d 154.)
The parties agree that the will is not ambiguous. As a result, no attempt was made to introduce extrinsic evidence to show the testatrix’s intent. The trial court found that the will was neither ambiguous nor conflicting. We are thus called upon to determine the intention of the testatrix in interpreting the residuary clause of the will.
A bequest or devise “to my lawful heirs” has a well-defined meaning in Kansas. In Jackson v. Lee, 193 Kan. 40, 392 P.2d 92, it was determined the word “heirs” has a commonly understood meaning in this state. An heir is commonly understood to be a person who takes under the Kansas statutes on intestate succession. Where there are no words in the will to qualify the commonly understood meaning, it will be conclusively presumed that the testator intended the word to convey its commonly understood meaning.
As pointed out in Campbell v. McBurney, 201 Kan. 26, 31, 439 P.2d 133, the use of the phrase “legal heirs” is an even stronger indication than the use of the word “heirs” that the testator intended the persons entitled to take to do so in the portions designated by the statutes of intestate succession. In Campbell, it was determined that in the absence of language indicating an intention that the bequest or devise be per capita, the distribution will be per stirpes according to the law of descent and distribution.
The testatrix is presumed to have known the law at the time she made her will (In re Estate of Ricklefs, 211 Kan. 713, 508 P.2d 866). She therefore is presumed to have known that a per stirpes distribution would be made to “my lawful heirs” under the law of descent and distribution and that a per stirpes distribution would not be possible if Mattie Grubb were to participate as one of the heirs.
If a meaning contrary to the common legal meaning of “my lawful heirs” had been intended by the testatrix, it could have been indicated simply by adding the words “share and share alike” or “to take per capita and not per stirpes” or other language of like import.
The trial judge correctly concluded that the heirs of the testatrix take per stirpes. Next we turn to the question of what share of the residuum is to be set aside for Mattie Grubb. Appellant urges that we find the testatrix intended to create a single unit whereby all would take per capita.
The general rule and that adopted by Kansas is that where the testator has expressed an intention for equal distribution by using phrases such as “share and share alike,” or “to be divided equally,” in a bequest to a named individual and to a class, the named individual would take equally per capita with those in the class. (Tomb v. Bardo, 153 Kan. 766, 114 P.2d 320; Neil v. Stuart, 102 Kan. 242, 169 Pac. 1138.) Unless the word “and” can be interpreted as an intention to join or unite the heirs and Mattie Grubb into one unit, there is no other language that would indicate an intention on the part of the testatrix that she intended Mattie Grubb be a member of the group of “my lawful heirs.”
Appellant argues that the use of the conjunction “and” shows an intention on the part of the testatrix to unite Mattie Grubb and the testatrix’s “lawful heirs” into one group or one class so that all share equally per capita. We cannot agree. It would appear to us the testatrix merely intended to use “and” to join together two prepositional phrases, to-wit: “[U]nto Mattie Grubb of Esbone, Kansas” and “to my lawful heirs.”
The comments to 13 A.L.R.2d 1023, §13, state that “the use of the word ‘and,’ in enumerating the beneficiaries has a tendency to show that the testator had them in mind as different groups, rather than as a single group.” (See, also, cases cited in 16 A.L.R. 15, 28; 78 A.L.R. 1385, 1391; and 126 A.L.R. 157, 164.)
The fact the testatrix designated Mattie Grubb by name, while not conclusive, is persuasive not to find a class gift. (Corbett v. Skaggs, 111 Kan. 380, 207 Pac. 819.) Also persuasive is In re Estate of Lester, 191 Kan. 83, 87-88, 379 P.2d 275, in which the court stated it was not “inclined to extend the meaning of members of a class to a group which a testator may consider as friends, neighbors, or even those to whom he may feel ‘much closer/ ” Even more persuasive is the fact that a per stirpes distribution pursuant to the Kansas descent and distribution statutes would not be feasible if Mattie Grubb, an unrelated acquaintance, were to participate with the heirs of the testatrix.
In view of the foregoing and in the absence of clear intention on the part of the testatrix to include Mattie Grubb in a class with the testatrix’s lawful heirs to take per capita, we interpret the residuary clause to pass one-half of the residue to Mattie Grubb and the remaining one-half of the residue to the testatrix’s lawful heirs under the laws of descent and distribution per stirpes.
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Swinehart, J.:
This appeal is taken from a garnishment proceeding wherein judgment was rendered against the garnishee insurance company for $50,000 and costs. The garnishee appeals. The principal characters of this case are:
(a) Allis M. Jones, appellee, plaintiff, injured party;
(b) David J. Smith, defendant, tortfeasor;
(c) Western Casualty and Surety Company (Western), garnishee, appellant, insurer;
(d) Sandra Sue Keller, girl friend of Smith, daughter of V. E. Keller, co-title owner of vehicle; and
(e) V. E. Keller, father of Sandra, co-title owner of vehicle, the insured.
Suit was originally commenced by Allis M. Jones against David J. Smith, driver of an automobile which struck Jones. A default judgment was entered against the defendant, Smith, for actual damages in the amount of $50,000. (This default judgment was rendered one day after settlement of plaintiff’s uninsured motor ist claim against her own insurance company.) Eventually, and after plaintiff was unable to obtain satisfaction on the judgment from Smith, garnishment proceedings were instituted against Western.
Plaintiff contends that the defendant Smith was entitled to the coverage of a policy of automobile liability insurance issued by Western to V. E. Keller as named insured. Western denied coverage on the basis that Smith did not have permission of the named insured to use the automobile in question at the time of the accident. The trial court found that Smith had the implied permission of the named insured to use the automobile, and, accordingly, entered judgment against Western.
Western appeals on two grounds: (1) that the evidence is insufficient to support a finding that the defendant Smith had implied permission of the named insured to use the automobile, and (2) that the doctrine of election of remedies barred the appellee from basing this action on the theory that Smith was insured when appellee had previously accepted uninsured motorist benefits from her own insurer.
The accident which injured appellee occurred on April 15, 1972, at the intersection of First and Main Streets in Hutchinson, Kansas. The defendant Smith was driving a 1971 Chevelle automobile which was titled in the name of Sandra Keller and V. E. Keller, her father. Western had issued a policy of automobile liability insurance on the subject car to V. E. Keller on January 29, 1969.
The evidence indicated that Sandra Keller, 20 years of age at the time of the accident, was dating the defendant Smith, and had dated him for several months prior to the date of the accident. Her father, V. E. Keller, was aware that Sandra was dating defendant Smith, but was not aware that Sandra was permitting Smith to use the automobile, except for two prior occasions. The evidence also indicated that Mr. Keller had told Sandra not to let anyone else drive the car, and after discovering that Sandra had permitted Smith to use the vehicle on two prior occasions, had particularly instructed Sandra not to permit the defendant Smith to drive the car. The facts further indicated that Sandra had the exclusive use of the subject automobile; that she paid for the automobile; that she paid for the insurance on the automobile; and that, though she lived at home with her parents, she basically exercised the rights of majority.
Testimony from Mr. Keller indicated that he had discussed with Reuben Miller, his insurance agent, how the insurance on said automobile should be obtained, and it was decided between them that it would be less expensive to carry said automobile on the policy of V. E. Keller than to have Sandra purchase an individual insurance policy on said automobile in her own name.
As previously indicated, this accident occurred April 15, 1972. On the 9th day of December, 1973, appellee made a proof of claim to the Farm Bureau Insurance Company, Inc., her insurance company, for recovery of her losses under the uninsured motorist endorsement coverage of her policy of insurance. Under the provisions of that policy, she recovered the sum of approximately $2,000.
On May 10, 1973, appellee filed suit against the defendant Smith, and a default judgment was obtained against him on December 10, 1973, in the amount of $50,000. Garnishment proceedings were commenced in February of 1974 against Western and Western answered the same month. Evidence was presented and judgment entered in favor of appellee against Western on October 13, 1975, “for the amount of its indebtedness under policy No. H-3464052 and costs.”
We will first consider Western’s contention that appellee is barred in her garnishment action against Western by reason of the doctrine of election of remedies.
It is appellant’s contention that the two methods of recovery by appellee are inconsistent, and therefore, by reason of the fact that she recovered through her own policy of insurance under the uninsured motorist provision, that she is now barred from proceeding to recover from appellant on a theory that Smith was insured.
Appellant has cited several Kansas cases dealing with the doctrine of election of remedies: Ondrasek v. Ondrasek, 172 Kan. 100, 238 P. 2d 535; Taylor v. Robertson Petroleum Co., 156 Kan. 822,137 P. 2d 150; and Lehigh, Inc. v. Stevens, 205 Kan. 103, 468 P. 2d 177. We have reviewed these cases and are in complete accord with the rulings of law set forth therein. However, said cases do not have an application to the case at hand. The actions taken by appellee are not inconsistent, and therefore, are not subject to the doctrine of election of remedies. Appellee made a claim on her insurance carrier under the contractual provisions of said policy for uninsured motorist coverage. She gave subrogation rights to said insurer for the monies she received under the provisions of her policy. Also, at the time she filed her uninsured motorist claim, appellee was without absolute knowledge as to whether defendant Smith was in fact an insured or an uninsured motorist.
The Supreme Court of Kansas has previously addressed itself to the present situation in the case of Southard v. Lira, 212 Kan. 763, 512 P. 2d 409, where the court laid down the following rule:
“The fact that an insured, for a stated consideration, executes to his insurance carrier a release of liability for bodily injury under the terms of the uninsured motorist provision of his policy does not preclude the insured from maintaining an action against the party negligently causing his injuries. Nor are payments made by an insurance carrier under uninsured motorist coverage, payments which a tort-feasor can utilize to diminish the amount of his liability to the injured party.” (Syl. 6)
We find this language controlling. The mere fact that appellee obtained uninsured benefits from her own insurance company does not prevent her from maintaining a cause of action against the tortfeasor. The doctrine of election of remedies has absolutely no application in such a situation. The only drawback is that, in the event appellee recovers from the lawsuit, she must subrogate her insurance company from the proceeds.
We therefore conclude that Western’s argument based on the doctrine of election of remedies lacks merit.
Western also maintains that the trial court erred in finding that the defendant Smith was a permissive user of the automobile that he was driving at the time of the accident, within the meaning of the insurance policy issued by Western. The lower court, in its memorandum decision, found that defendant had V. E. Keller’s implied permission to use the 1971 Chevelle at the time of the accident. Based on this finding, the court concluded that defendant was a “permissive user” of said automobile, within the meaning of the omnibus clause of Western’s policy.
At the time of this particular accident, V. E. Keller was the co-title owner of the 1971 Chevelle and was also the named insured on appellant’s policy covering said vehicle. Said policy of insurance contained a clause defining an insured, the so-called “omnibus clause,” which provided:
“With respect to the insurance under coverages A and B, the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or spouse or with the permission of either.”
The testimony in this case indicates that the insured’s daughter actually bought the car, was responsible for its maintenance and had exclusive control and use thereof. She was self-supporting in most respects. When the car was originally purchased, her father advised her not to permit other persons to drive her car, and had specifically on at least one occasion advised her not to permit the defendant Smith to drive the car. When the insurance was originally procured by Mr. Keller, in his discussion with the appellant’s insurance agent, the matter of the economics of carrying the car on his policy was discussed, and after such discussion, it was decided that, economically speaking, it would be better for the car to be listed as the car of V. E. Keller on his own insurance policy. The evidence further disclosed that the defendant Smith, prior to the admonition of Mr. Keller to his daughter, had driven the car at various times for several months, and he continued to drive the car on a regular basis and with the daughter’s permission subsequent to Mr. Keller’s said admonition. The evidence also indicates that the father, at the time of the accident, had no actual knowledge that the defendant Smith was driving the car.
In Alliance Mutual Cas. Co. v. Hartford Accident & Indemnity Co., 210 Kan. 769,504 P. 2d 161, the supreme court commented at page 773:
“. . . This court follows the general rule that the permission referred to in the omnibus clause may be express or implied. It may be established by a showing of a course of conduct or relationship between the parties, which signifies acquiescence or consent of the insured. In addition, this court starts with the premise that an ‘omnibus clause’ for reasons of public policy, is to be liberally construed. (Gibbs v. Central Surety &Ins. Corp., 163 Kan. 252, 260, 181 P. 2d 498; National Farmers Union Property & Cas. Co. v. Farm Bureau Mutual Ins. Co., 194 Kan. 93, 397 P. 2d 81; Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P. 2d 931.)”
However, when the situation exists, such as here, where the named insured expressly prohibited the initial permittee from letting other persons use the car, the rule tightens up. Such a situation existed in Gangel v. Benson, 215 Kan. 118, 523 P. 2d 330, and the court announced the general rule:
“ ‘It has generally been held or recognized that a second permittee using the automobile solely for his own purposes is not entitled to protection under the omnibus clause where the named insured expressly prohibited the initial permit-tee from allowing other persons to use or operate the car.’ ” (p. 123-124.)
This general rule, however, has an exception when permission is implied. In this respect, Gangel continues, quoting from Gillen v. Globe Indemnity Company, 377 F. 2d 328:
“ ‘Perhaps as a consequence of the harshness of this approach, many courts, when given the opportunity, have been able to discover an implied consent from the named insured even in the face of express prohibitions against the loaning of the insured automobile. If the first permittee is actually in the car, or the car is being used for the benefit of the first permittee or of the named insured, or if the first permittee has an equivalent of equitable title and has unfettered control over the daily use of the car outside of the surveillance of the named insured, or if the named insured is aware of past violations of instructions but allows the permittee to retain possession, or when an emergency arises, regardless of the express prohibitions against third party use, many courts will imply a consent on the part of the named insured for the third party’s use. See, State Farm Mutual Automobile Insurance Company v. Williamson, 331 F. 2d 517 (9 Cir. 1964); Allstate Insurance Company v. Fidelity & Casualty Company, 73 N. J. Super. 407, 180 A. 2d 168 (1962); Pollard v. Safeco Insurance Company, 52 Tenn. App. 583, 376 S. W. 2d 730 (1963); Brooks v. Delta Fire & Casualty Company, 82 So. 2d 55 (La. App., 1955).’ ” (p. 124-125.) (Emphasis supplied.)
In this case it appears that the first permittee, Sandra Keller, was exercising unfettered control over the daily use of the car outside of the surveillance of the named insured; that the named insured was aware of the past violations of his instructions, yet had permitted the permittee to retain possession; that Sandra was co-owner of the vehicle; and there was evidence indicating that the defendant Smith was using the car for the benefit of Sandra when the accident occurred.
Upon hearing this type of evidence, the court below found that the defendant Smith was driving the automobile with the implied consent and permission of Mr. Keller, the insured. On appellate review, this court accepts as true the evidence and all inferences to be drawn therefrom which supports or tends to support the findings of the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Here, Western is attacking the findings of the trial court for insufficiency of evidence or as being contrary to the evidence. Our function as an appellate court begins and ends with a determina tion of whether there is evidence to support such findings, and if such is present, then the trial court’s decision will not be disturbed on appeal. (Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. 1, 524 P. 2d 690; Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P. 2d 719.) The trial court’s findings of fact and conclusions of law that there existed implied consent by the insured are supported by substantial, competent evidence, and we therefore affirm that decision.
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Parks, J.:
This is an appeal from a conviction of indirect criminal contempt for violation of an order of permanent injunction issued by the district court of Sedgwick County, Kansas. The injunction, filed June 12, 1959, prohibited the defendant from violating the provisions of the Kansas Dental Act (K.S.A. 65-1421 et seq. [then G.S. 1949 65-1421]) and in particular enjoined the defendant, David A. Madrigal, Sr., from:
“. . . the direct or indirect, by any means or method, taking of impressions of the human tooth, teeth, jaws . . .; or the supplying of artificial substitutes for the natural teeth, or furnishing, supplying, constructing, reproducing or repairing any prosthetic denture, bridge, appliance or any other structure to be worn in the human mouth, EXCEPT ON THE WRITTEN PRESCRIPTION OF A DULY LICENSED AND REGISTERED DENTIST; the placing of such appliance or structure in the human mouth, or adjustment or attempts to adjust the same; THE DELIVERY OF THE SAME TO ANY PERSON OTHER THAN THE DENTIST UPON WHOSE PRESCRIPTION THE WORK WAS PERFORMED. . . .” (Emphasis by the Court)
It is uncontroverted that the defendant was served with a copy of the order of permanent injunction and that he understood that he was prohibited from making dentures, fitting teeth, or related activities except on the written prescription of a licensed and registered dentist. No appeal was taken from the order of permanent injunction or from Madrigal’s three previous convictions of indirect contempt of court for violation of such order. The order of the court had not been reversed, modified or set aside and was in full force and effect at the time of filing the motion for contempt and accusation in this case.
The proceedings leading to this appeal were commenced on September 12,1974, when defendant was accused of violating the order of permanent injunction and ordered to show cause why he should not be found in contempt. The affidavit of John D. Dickey, an investigator with the Consumer Protection Division of the district attorney’s office for Sedgwick County, Kansas, was attached to the accusation in contempt. The affidavit recited that defendant had repaired dentures for Dickey without a dentist’s prescription and that Dickey had talked to other persons for whom Madrigal had made dentures without a prescription.
Defendant filed an answer to the motion for contempt citation. He admitted the entry of the order of permanent injunction but raised various issues concerning the validity of the order.
The trial court found that the defendant had violated the order of permanent injunction and that he should be confined in the Sedgwick County jail for a period of 18 months and fined the. sum of $10,000. Execution of the sentence was stayed pending appeal upon posting a $2,500 appeal bond, subject to certain conditions imposed by the court. During oral argument before this court, it was disclosed that the defendant had violated the conditions of his bond, and after serving 100 days in jail, he was paroled from the balance of the 18 months’ sentence.
The first point raised is whether an order of permanent injunction is subject to collateral attack during indirect contempt proceedings.
Whether the court had authority to issue its order of permanent injunction is not an issue in this case. Such a decision is not necessary to vest jurisdiction in the trial court over its own order, which is in full force and effect, and is being "iolated. The violation need only be brought to the attention of the court.
In Horn v. Seeger, 174 Kan. 194, 198, 255 P. 2d 997, the court approvingly cited City of Wichita v. Wright, 169 Kan. 268, 219 P. 2d 350, where the court said:
“ ‘We have repeatedly held that once parties accused of contempt are properly before the court, the merits of the original suit are not involved, and the sole question for determination is whether the permanent injunction order and judgment has been violated by them.’ ”
Here we have the testimony of Mr. Dickey, and of witnesses called on behalf of Mr. Madrigal, which establishes that Mr. Madrigal had taken impressions of their teeth or jaws and had made or repaired dentures without prescriptions from dentists. Such activities are clear violations of the order.
We hold that the evidence adduced at the trial was sufficient to justify the finding of the court that the defendant had knowingly violated its order and was guilty of indirect contempt.
Defendant argues that the Kansas Dental Act constitutes unreasonable, discriminatory and oppressive interference with his right to earn a living and is violative of the anti-trust laws of the United States.
Defendant concedes in his brief that the practice of dentistry is a proper subject for state regulation. But then he proceeds to argue that denturism is not a profession but a trade, and involves working in inert material which has no more relation to health than fitting a shoe to a foot. We cannot uphold this argument.
In Thrasher v. Board of Governors, 359 P. 2d 717, 722 (Okla. 1961), the court said:
“We know, as a matter of rather common knowledge, that mastication of food by chewing with the teeth is an integral part of, or related to, the human body’s digestive process. We also know that the malformation, maladjustment and ill-fitting of false teeth may not only result in poor digestion but may cause physical discomfort, nervousness, and mental anguish, or even disturbance, generally, and specifically cause lesions in the mouth and gums that may lead to infection and serious bodily illness. . . .”
We are convinced that there is sufficient relation between the work of a dental technician and the public health and welfare that the legislature can prohibit the repair of dentures to be worn in the mouth except on the written prescription of a duly licensed and registered dentist.
Defendant contends that the information which he was compelled to give concerning the prescription files was erroneously received by the court and was privileged testimony under K.S.A. 65-1454. K.S.A. 65-1438 (Q (2) requires unlicensed persons to retain the original prescription for two years.
The privilege against self-incrimination does not extend to records required by statute which are pertinent to appropriate subjects of governmental regulations. (State v. Braun, 209 Kan. 181, 495 P. 2d 1000, cert. denied, 409 U. S. 991, 34 L. Ed. 2d 258, 93 S. Ct. 334; Shapiro v. United States, 335 U. S. 1, 92 L. Ed. 1787, 68 S. Ct. 1375 [1948].)
Defendant further contends that it was error for the plaintiffs to allege transactions with 63 persons whose identities were never discovered, and end up proving their case relative to transactions with a dozen other persons never included in the accusation.
It appears that it was Madrigal who instituted and was permitted to pursue discovery proceedings; he submitted interrogatories to the plaintiffs; he moved for production of documents; he deposed witnesses who were to testify for the plaintiffs; and he participated in the preparation of the pretrial order in this case.
We find that it was not necessary to amend the accusation in this instance when the names of the proposed witnesses were available to defendant by means of the discovery procedure employed by him.
Defendant also complains that he was entrapped by investigator John Dickey. K.S.A. 21-3210 provides two exceptions to entrapment: (a) if the public officer merely afforded an opportunity or facility for committing the crime, and (b) the crime was of a type which is likely to occur and recur in the course of such person’s business. The matter here need not be labored. There was direct evidence that defendant was previously involved in the repair of dentures without a prescription. His three previous convictions clearly demonstrated this fact. Defendant’s argument fails because the activities fall within the exceptions of K.S.A. 21-3210.
The defendant argues that the sentence imposed upon him exceeded the penalties prescribed by K.S.A. 65-1460 for a mis demeanor prosecution. We would point out that in 1959 the dental board initiated these proceedings under the injunction procedure authorized by K.S.A. 65-1451 instead of instituting a criminal action under K.S.A. 65-1460. Therefore, the court was not limited to the penalties prescribed for a misdemeanor.
Defendant next argues that the trial court abused its discretion when it imposed penalties of 18 months’ confinement and a $10,000 fine. We note that the defendant in this case has been convicted on four separate occasions of indirect contempt for violating the order of permanent injunction, and was “taking in” approximately $4,000 a month by continuing to make dentures in violation of the injunction.
Where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court, the application of a stringent sanction is fully justified and should not be disturbed. (Williams v. Consolidated Investors, Inc., 205 Kan. 728, 733, 472 P. 2d 248; Ronnau v. Caravan International Corporation, 205 Kan. 154, 468 P. 2d 118.)
We find nothing to justify a conclusion that the trial court abused its judicial discretion in imposing its sentence and fine on the defendant.
Other points raised by the defendant have been examined and found to be without merit.
Under all the facts and circumstances of this case, there was sufficient evidence to warrant a finding that the defendant violated the order of permanent injunction.
Judgment is affirmed. | [
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Parks, J.:
This is an appeal from a jury verdict which found Gary D. Hall (hereafter defendant or Hall) guilty of driving while under the influence of intoxicating liquor (K.S.A. 8-1567). The charge of transporting an open container (K.S.A. 41-804) is not a subject of this appeal.
On the evening of February 12, 1977, defendant Hall and a number of other derrick hands returned to Liberal, Kansas, from Elkhart, Kansas, where they had been working on an oil rig. The vehicle in which they were riding was owned and driven by the defendant. En route to Liberal they stopped and drank a couple of beers.
Later in Liberal, defendant and a friend, Jim Headrick, consumed two to three beers at one bar, and then went to another for two more beers. When that bar closed, the defendant and Head-rick joined friends in the parking lot where they shared drinks from a bottle of whiskey. As this group dispersed, the partially-consumed bottle of whiskey was placed on the front seat of Hall’s car. Hall then drove down Highway 54 where he was stopped by Trooper Roger McCullough of the Kansas Highway Patrol.
Trooper McCullough testified that he observed the defendant’s automobile weave as it proceeded down the highway. There was a strong odor of an intoxicant on the defendant’s breath when he got out of his car. He was unsteady on his feet, his eyes were watery and bloodshot, and his pupils responded poorly to light. McCullough also testified that a number of coordination tests performed by the defendant revealed his general uncertainty and lack of coordination.
The defendant raised in his motions for judgment of acquittal and for new trial a question as to the sufficiency of the evidence which supports the verdict. We have carefully reviewed this contention and find it to be without merit. On appellate review, the sufficiency of the evidence is determined not by questioning whether the evidence established guilt beyond a reasonable doubt, but by questioning whether the evidence was sufficient to form the basis for a reasonable inference of guilt. In making this determination, the evidence is viewed in the light most favorable to the state. (State v. Ames, 222 Kan. 88, 563 P.2d 1034, Syl. 5.)
Defendant also urges that the trial court erred in failing to instruct the jury as to the lesser included crime of public intoxication (K.S.A. 21-4109, repealed Laws 1977, Ch. 115, §§1, 2).
Under K.S.A. 8-1567, three things must be established: (1) that the defendant operated a vehicle; (2) that the defendant was under the influence of intoxicating liquor while operating the vehicle; and (3) that the operation took place within the jurisdiction of the court.
The duty to instruct on lesser crimes is mandatory but it arises only when there is evidence upon which the accused might reasonably and properly be convicted of the lesser offense. (K.S.A. 21-3107(3); State v. Seelke, 221 Kan. 672, 561 P.2d 869.)
The undisputed evidence in this case, including the testimony of the defendant, is that Hall was driving the vehicle when stopped by the trooper. Hence, the only issue left for the consideration of the jury was whether the defendant was under the influence of intoxicating liquor while operating the vehicle. The jury would not have been warranted in finding defendant guilty of any other offense. (State v. Huff, 220 Kan. 162, 167, 551 P.2d 880.) We conclude the trial court properly ruled that the lesser instruction was not required.
Judgment affirmed. | [
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Caplinger, J.:
Jason Branstetter appeals his convictions of one count of possession of methamphetamine, K.S.A. 2007 Supp. 65-4160(a), and one count of possession of a controlled substance without a tax stamp affixed, K.S.A. 79-5204. Branstetter argues that law enforcement officers lacked statutory authority or other reasonable grounds to impound his vehicle following his arrest and the district court therefore erred in denying his motion to suppress evidence discovered during the inventory search which followed impoundment.
Because the vehicle operated by the defendant was not unattended, illegally parked, or obstructing traffic, and the officers failed to consult the defendant or attempt to contact the registered owner regarding disposition, we conclude the impoundment of the vehicle was not based on reasonable grounds under the totality of the circumstances and the subsequent inventory search was unlawful.
Factual and procedural background
Around 1.10 a.m. on December 15, 2005, Sedgwick County Sheriff s Deputy Tracy Spreier spotted Branstetter walking out of a Wichita convenience store at 47th Street South and Seneca and saw Branstetter s vehicle in the store’s parking lot. Deputy Spreier recognized Branstetter based upon multiple prior contacts and knew Branstetter had several outstanding warrants. Spreier drove through the convenience store parking lot to confirm his identification and noticed a woman, who he later identified as Robin Dodd, in the passenger seat of Branstetter’s vehicle.
Spreier drove his patrol vehicle to a nearby intersection where he waited until Branstetter’s vehicle left the parking lot. Spreier then initiated a traffic stop based solely on the outstanding warrants, pulling Branstetter over “roughly” in the 5000 block of South Seneca in Wichita.
Spreier obtained Branstetter’s identification and registration papers, which showed the vehicle was registered to Kenneth Robertson. After confirming Branstetter’s outstanding warrants, Spreier ordered him out of the vehicle. Spreier also checked Dodd’s identification and found no evidence of outstanding war rants. After a second officer arrived, Spreier placed Branstetter into custody. Because the vehicle’s registered owner was not present, Spreier impounded the vehicle without consulting Branstetter regarding its disposition, pursuant to sheriff s department policy.
A short time later, the deputies conducted an inventory search of the vehicle along with the police K-9 unit, which Spreier requested based upon his “belief that there was a good possibility that narcotics were in that vehicle, as well.” Officers discovered methamphetamine in the center console cupholder and behind the driver’s seat.
Around 1:40 a.m., Spreier read Branstetter his Miranda rights, and Branstetter indicated he wished to terminate his conversation with Spreier. At approximately 2:05 a.m., Branstetter asked the officers to adjust his handcuffs. When Spreier removed Branstetter from the patrol vehicle to adjust the cuffs, Branstetter asked why Dodd had been taken into custody. Deputy Spreier explained that Branstetter’s invocation of his Miranda rights prohibited police from discussing ownership of the narcotics and required that both of the vehicle’s occupants be taken into custody. Branstetter then said he had a drug problem and admitted possession of the methamphetamine.
Branstetter was charged with one count of possession of methamphetamine under K.S.A. 2007 Supp. 65-4160(a) and one count of possession of a controlled substance without a tax stamp affixed under K.S.A. 79-5204.
At Branstetter’s bench trial, he moved to suppress evidence found in the search and the statements he made admitting ownership of the methamphetamine. The trial court denied both motions and found Branstetter guilty on both counts.
Discussion
On appeal, Branstetter argues the district court erred in denying his motion to suppress evidence because the deputies lacked statutory authority or other reasonable grounds to impound the vehicle. Additionally, Branstetter argues the deputies exceeded the scope of the exception permitting searches incident to lawful arrest.
We apply a bifurcated standard of review to the district court’s decision on a motion to suppress evidence. Without reweighing the evidence, we review the district court’s findings to determine whether they are supported by substantial competent evidence. We review the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). When the material facts are undisputed, the question of whether to suppress is a question of law over which we have unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
Impoundment and Inventory Search
Branstetter first argues his vehicle was improperly impounded because the deputies lacked explicit authority or otherwise reasonable grounds to impound the vehicle. And, because an inventory search is permitted only when officers have gained lawful custody of the vehicle, Branstetter contends the inventory search was unlawful and district court erred in refusing to suppress evidence found in the search.
Generally, a search and seizure of evidence obtained without a warrant is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Shelton, 278 Kan. 287, 294, 93 P.3d 1200 (2004). Inventory searches of lawfully impounded vehicles, conducted pursuant to standardized policy procedures, have long been recognized as one of these exceptions. 278 Kan. at 294; see South Dakota v. Opperman, 428 U.S. 364, 372, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Inventory searches serve three purposes: “ ‘the protection of idle owner’s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger. [Citation omitted.]’ ” Shelton, 278 Kan. at 294; see Opperman, 428 U.S. at 369. An officer searching a car after a lawful impoundment may conduct a “warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when die same may be accomplished without damage to the vehicle or its contents.” State v. Fortune, 236 Kan. 248, 257, 689 P. 2d 1196 (1984); see State v. Canaan, 265 Kan. 835, 843-44, 964 P.2d 681 (1998).
In order to impound a vehicle, the police must have authority by statute or ordinance, and if no such authority exists, impoundment is appropriate only if the State establishes “reasonable grounds” for the impoundment. State v. Teeter, 249 Kan. 548, 550-51, 819 P.2d 651 (1991).
Here, although the State argues that Deputy Spreier relied upon sheriff s policy when impounding the vehicle, the State does not suggest the impoundment was authorized by statute or ordinance. Instead, the State argues that reasonable grounds existed for the impoundment, making the subsequent inventory search lawful.
The prosecution has the burden of proving an impoundment is reasonable under the totality of the circumstances. Shelton, 278 Kan. at 293. Although no bright-line rule specifies or limits the “reasonable grounds” for impoundment, our Supreme Court has identified six situations giving rise to reasonable grounds:
“ ‘ “[T]he necessity for removing (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture.” ’ ” Teeter, 249 Kan. at 552 (citing State v. Boster, 217 Kan. 618, 624, 539 P.2d 294 [1975]).
The State does not argue that any one of these factual scenarios apply here, but instead suggests the impoundment was reasonable because (1) Branstetter was “pulled over on a city street;” (2) Branstetter s arrest on outstanding warrants left the vehicle “unattended”; and (3) pursuant to “Sheriff s Department policy,” Deputy Spreier could not release the vehicle to anyone other than the registered owner.
There are several flaws in the State’s analysis. First, the State fails to explain the significance of its assertion that the vehicle was “pulled over on a city street.” Moreover, the record is contradictory on this point. While Deputy Spreier testified he pulled Branstetter over “in the 5000 block of South Seneca,” he also indicated under cross-examination that Branstetter’s vehicle was on “private property.” In any event, the record contains no evidence indicating exactly where or how the vehicle was parked. The State failed to establish that the vehicle was illegally parked, was obstructing traffic, had mechanical difficulties, or any of the reasons identified by Teeter as providing reasonable grounds for impoundment when the vehicle also was “unattended.”
The State has the burden to prove an impoundment is “reasonable” under the totality of the circumstances. The simple fact that the vehicle Branstetter was operating was pulled over on a city street or even on private property does not provide a reasonable ground for impoundment.
Moreover, even if the record supported the State’s implication that the location of the vehicle presented safety or traffic concerns, the record does not support the State’s assertion that the vehicle was “unattended.” Rather, the vehicle’s passenger, Robin Dodd, was not arrested and eventually was driven home by an officer. Further, the record reveals that the officers intentionally did not consult Branstetter or attempt to reach the vehicle’s registered owner to attend to the vehicle.
The State implies that the vehicle was unattended and impoundment was reasonable, because of the sheriff s “policy” of refusing to allow anyone other than a registered owner to drive an unattended vehicle.
Again, the State’s argument is flawed. First, we note that although the “policy” was generally testified to by Deputy Spreier, it was never produced. Further, while the department’s “policy” is one factor to consider, it cannot simply nullify other relevant factors in the reasonableness inquiry, including the location of the vehicle, whether the vehicle is unattended, or whether the operator of the vehicle was consulted regarding disposition of the vehicle.
Branstetter points out that our Supreme Court in State v. Fortune, 236 Kan. 248, held that the operator of a vehicle should be given an opportunity to determine die disposition of the-vehicle:
“If the owner, operator, or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so. If the person responsible for the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned over to some other person’s custody, then, absent some other lawful reason for impounding the vehicle, his or her wishes must be followed. Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable ... or unwilling to instruct the arresting officers as to the vehicle’s disposition or some other legal reasonable justifying impoundment exists should the officers assume control over the vehicle.” (Emphasis added.) Fortune, 236 Kan. at 257.
Clearly, under the Fortune test, the fact that Branstetter was not the owner of the vehicle is not controlling, or even significant. Rather, Fortune suggested that the “owner, operator, or person in charge” of the vehicle should be given an opportunity to determine the disposition of the vehicle. The State concedes that Branstetter was not consulted regarding his wishes concerning disposition of the vehicle and does not suggest that Branstetter was unable to do so.
The State correctly points out, however, that in State v. Shelton, 278 Kan. at 293, the court distinguished Teeter and clarified that a competent driver need not be given an opportunity to arrange for the disposal or removal of a vehicle to avoid impoundment. Shelton, 278 Kan. at 293. Rather, the court held that all that is required under the Fourth Amendment to the United States Constitution “is that the impoundment be reasonable under the totality of the circumstances.” Further, the court reasoned that the officer’s inquiry of the driver regarding disposition is but one of the circumstances that is considered in the court’s determination of whether the impoundment is reasonable. 278 Kan. at 293.
Significantly, in Shelton, the defendant was not the owner of the van in which he was found asleep. Further, the van was parked in “the middle to right hand side” of a rural road near a stop sign. The vehicle was impounded because following Shelton’s arrest for a revoked license in a rural area, there was no one “immediately available” to retrieve the vehicle, and it was also obstructing traffic. 278 Kan. at 288-89.
Here, the State interprets Shelton, when considered in conjunction with the Sheriff s department policy, to reheve Deputy Spreier of any obligation to consult Branstetter or the registered owner about the disposition of the vehicle.
While Shelton made clear that there is no Fourth Amendment right to police consultation regarding the disposition of the vehicle before impoundment, the court in Shelton also clearly stated: “Consultation is but one factor, although an important factor to be considered among the totality of the circumstances in the determination of whether impoundment is reasonable.” (Emphasis added.) 278 Kan. at 296.
Nor are we bound by Shelton’s conclusion that reasonable grounds for impoundment existed even though the defendant was "readily available’ ” and may have been able to suggest an alternative disposition.” 278 Kan. at 296-97. Again, the Shelton court considered this factor in light of the totality of the circumstances, including that the defendant’s arrest left his vehicle unattended, illegally parked, obstructing traffic, and not readily accessible in a rural area. 278 Kan. at 296.
The totality of the circumstances here — i.e., the vehicle was not “unattended,” illegally parked, or obstructing traffic — does not permit us to disregard the officer’s failure to consider permitting the passenger to drive, to consult Branstetter, or to attempt to contact the registered owner regarding disposition.
Essentially, the State seeks to rely upon an unwritten and unproduced “policy” as carte blanche authority permitting the State to impound a vehicle when the registered owner is not present and the operator is arrested. The State would implement this policy without regard to (1) the wishes of the operator or the owner; (2) whether a passenger may be present to attend to the vehicle; and (3) whether the vehicle presents a safety or traffic hazard. The State’s rationale would eviscerate the “reasonable grounds” test established in Fortune and the “totality of the circumstances” analysis espoused by Teeter. See Shelton, 278 Kan. at 301 (Beier, J., concurring) (questioning whether a “highly malleable reasonableness test adequately safeguards” expectations of privacy).
Because none of the three “reasons” offered by the State for impoundment, whether considered separately or in their totality, provided reasonable grounds for impoundment of the vehicle, the impoundment was unlawful and the subsequent inventory search was invalid. See Fortune, 236 Kan. at 257.
The Inventory Search
Finally, we note that before the trial court, the defendant questioned the lawfulness of the inventory search and suggested the purpose of the search was to investigate for other incriminating evidence. While the trial court did not specifically rule on this suggestion, we note that the facts support this argument and bolster our conclusion concerning the unlawful impoundment.
As the court noted in Shelton:
“ ‘[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into “a purposeful and general means of discovering evidence of crime.” ’ ” 278 Kan. at 299 (quoting Florida v. Wells, 495 U.S. 1, 4, 109 L. Ed 2d 1, 110 S. Ct. 1632 [1990]).
Significantly, the defendant in Shelton also argued the inventory search was a pretext to conduct an investigatory search. The court rejected this argument, concluding:
“[T]here is no evidence in the record suggesting that the officers had a hidden agenda as to the search. The officers had never come into contact with the defendant, did not recognize the van, and had no reason to suspect the defendant of hiding contraband in the van.” 278 Kan. at 299-300.
In contrast, in this case, Deputy Spreier had several prior contacts with the defendant, and Spreier admitted he suspected Branstetter of having narcotics in his vehicle based on these prior contacts. In fact, Deputy Spreier called in a K-9 unit to conduct a search for narcotics at the same time the officers were conducting an inventory search. Thus, the search of Branstetter’s vehicle was clearly not limited to producing an inventory of the vehicle’s contents and was undertaken with an investigatory goal.
While we need not consider the lawfulness of the inventory search based on our conclusion that the impoundment was not based on reasonable grounds, the motive for and nature of the eventual search buttresses our conclusion that the impoundment was not reasonable under the circumstances.
Search Incident to Lawful Arrest
Branstetter also argues the search was not a valid search incident to arrest because it was not aimed at “[discovering the fruits, instrumentalities, or evidence of the crime.” (Emphasis added.) K.S.A. 22-2501 (Furse 1995). However, we need not consider this issue as the State does not argue on appeal that the search was justified as a search incident to a lawful arrest, but only that the search was a lawful inventory search.
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Caplinger, J.:
John and Donna Wellhausen (the Wellhausens) appeal the district court’s order granting summary judgment in favor of the University of Kansas (University). The Wellhausens claim the district court erred in finding their wrongful death claim was barred by the discretionary function and design immunity ex ceptions to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6104(e) and K.S.A. 75-6104(m), respectively.
We hold the district court properly granted summary judgment in favor of the University based upon the application of the discretionary function exception, K.S.A. 75-6104(e). The University owed no duty to warn the Wellhausens’ son, who was a tenant in a University dormitory, of the open and obvious danger that would result from crawling out of the narrow window opening of his seventh-floor dormitory room, and attempting to drop down to a 2-foot-wide concrete ledge several feet below the window, 45 to 50 feet above the ground. Further, we can find no obligation on the part of the University to protect students from their own reckless and negligent acts.
Additionally, the district court did not err in granting summary judgment on any claims relating to the design of the dormitory building, as such claims are barred by the design immunity exception, K.S.A. 75-6104(m).
Factual and procedural background
In September 2003, the Wellhausens’ son, Eric WeUhausen, was a freshman at the University. Eric resided in a seventh-floor room at Oliver Hall, a dormitory on the University’s campus. Each dormitory room has a casement window located 4 feet 10 inches above a 2-foot-wide concrete “eyebrow ledge” that runs along the exterior of each floor of Oliver Hall. The casement windows open only 15.75 inches toward the eyebrow ledge; further, each window has an interior screen fastened with clips screwed into the aluminum window frame.
Pursuant to University policy, Eric and his mother signed a student-housing contract under which Eric agreed to abide by the policies and regulations printed in the University’s student-housing handbook. The handbook prohibited students “at all times” from removing casement window screens, exiting the building through windows, or being on window ledges. Eric also agreed to follow the terms of a “Safe and Secure” poster mounted in each dorm room that directed students not to remove the window screens and never to exit tire room through the window.
On September 12, 2003, Eric climbed through the casement window of his seventh-floor room, approximately 50 feet, 9 inches above ground, and stepped onto the eyebrow ledge to smoke a cigarette. He fell off the ledge, resulting in his death. A medical examiner determined Eric’s blood-alcohol level at the time of his death was .16, significantly impairing his motor coordination and judgment.
Eric’s parents, the Wellhausens, commenced a wrongful death suit against the University, alleging the eyebrow ledge presented a dangerous condition and the University was negligent for fading to correct tire condition or adequately warn Eric of the danger.
The district court granted summary judgment for the University, finding the Wellhausens’ claims were barred by two exceptions to the general rule of liability under the KTCA — the design immunity exception, K.S.A. 75-6104(m), and the discretionary function exception, K.S.A. 75-6104(e). The court further found the Wellhausens faded to establish that the alleged negligence by the University was the proximate cause of Eric’s death. Finally, the district court concluded no reasonable jury could find that the University’s negligence exceeded 50 percent.
On appeal, the Wellhausens argue the district court erred in granting summary judgment because neither the discretionaiy function exception nor the design immunity exception bars their claims. Further, they claim genuine issues of material fact preclude summary judgment.
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entided 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 dre evidence, summary judgment must be denied.’ ” ’ [Citations omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
To establish a claim for wrongful death based on negligence, the Wellhausens must prove the existence of a duty, a breach of that duty, injury, and a causal connection between the breach of the duty and the injury suffered. Whether a duty exists is a question of law, but whether the duty has been breached is a question of fact. Appellate courts apply a de novo standard when reviewing whether a duty exists. Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007).
As is often stated, under the KTCA, liability is the rule and immunity the exception. See K.S.A. 75-6103; K.S.A. 75-6104. Further, it is the obligation of the governmental entity to prove it is entitled to application of any of the exceptions in K.S.A. 75-6104. Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993).
Application of KS.A. 75-6104(e)
The district court found the Wellhausens’ wrongful death claim to be barred by the discretionary function exception to the KTCA, K.S.A. 75-6104(e), which bars claims against a government entity or employee “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
The Wellhausens point out that K.S.A. 75-6104(e) does not apply when “there is a clearly defined mandatory duty or guideline.” Nero, 253 Kan. at 585. In Nero, our Supreme Court held that a university-landlord has a legal duty to use reasonable care to protect its student-tenants. 253 Kan. at 584. Because the University was obligated to use reasonable care to protect its student, the Wellhausens contend the discretionary function exception does not apply here.
1) Knoion and obvious danger
The University concedes that as a landlord, it owes a duty of reasonable care to its student-tenants. However, it points out that this duty does not require it to warn of known and obvious dangers such as the danger presented by Eric’s actions here. See Tillotson v. Abbott, 205 Kan. 706, 711, 472 P.2d 240 (1970) (landlord does not owe duty to warn of obvious danger of open-flame heater).
Citing Restatement (Second) of Torts § 343A, comment b (1964), the Wellhausens counter that the University failed to demonstrate that the danger of stepping out onto the ledge was known or obvious because the University did not show that Eric appreciated the danger. However, the Restatement advocates an objective test to determine whether a danger is known and obvious. See Restatement (Second) of Torts § 343A, comment b (no obligation to protect against dangers of which the invitee/reasonable person knows or has reason to know). Clearly, even if Eric lacked actual knowledge of the danger, he had reason to know of the open and obvious danger which might result from climbing out of a seventh-floor dormitory room window in order to stand upon a 2-foot-wide ledge several feet below the window.
Because the danger facing Eric was known and obvious, we find the University was not obligated to warn him of the danger.
2) Affirmative duty to minimize risk
Alternatively, the Wellhausens argue that even if the danger was known and obvious, the University nevertheless had an affirmative duty to warn or protect against the danger because it was foreseeable that Eric’s accident might occur. They point to evidence the University knew students accessed the dormitory ledges, including reported violations of the University’s policy against removing the window screens and prior accidents involving students falling from dormitory ledges or roofs.
In Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991), our Supreme Court held that a possessor of land has an affirmative duty to “minimize the risk [of an obvious danger] if there is reason to expect an invitee will be distracted, so that he or she will not discover what is obvious, will forget what has been discovered, or will fail to protect against the danger. [Citations omitted.]” However, this exception has been applied only in very limited circumstances. See 249 Kan. at 43; Crowe v. True’s IGA, 32 Kan. App. 2d 602, 607, 85 P.3d 1261, rev. denied 278 Kan. 844 (2004); Scales v. St. Louis-San Francisco Ry. Co., 2 Kan. App. 2d 491, 498, 582 P.2d 300, rev. denied 225 Kan. 845 (1978).
For instance, in Miller, the plaintiff was injured when he inadvertently walked into a concrete pit while sealing the floors of an industrial building. Although the plaintiff was aware of the danger, the court applied the stricter duty because the employer had reason to suspect the plaintiff “would be distracted and forget to protect himself from the dangerous condition of the open pit.” 249 .Kan. at 45.
The court in Miller relied upon Scales, 2 Kan. App. 2d 491. Scales was a grain elevator technician who worked under conditions where even the “slightest slip” could bring injury. He eventually lost part of his leg when he fell into an auger pit as he swept grain into a nearby pit. The Scales court found a stricter duty may apply “where the owner has ‘reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.’ ” 2 Kan. App. 2d at 498 (citing Restatement [Second] of Torts § 343A, comment f, p. 220).
Further, in Crowe, 32 Kan. App. 2d at 607, this court found a business owner owed a duty to a customer who slipped and fell while walking to her vehicle located in the middle of a gasoline spill. The plaintiff admitted she was aware of the gasoline spill and the dangers of walking through tire spill. Nevertheless, this court held that because the plaintiff could not have avoided walking through the gas spill to retrieve her vehicle, the gas station had reason to believe the plaintiff would fail to protect herself against the danger of walking through the spill and had a duty to minimize the risk of the obvious danger. 32 Kan. App. 2d at 607-08.
In contrast to Miller and Scales, the evidence here does not indicate that Eric was distracted or inadvertently failed to appreciate the danger of his actions. While the University may have known of other incidents involving students taking similar risks in the past, the evidence does not indicate that any of these other incidents involved inadvertent or distracted actions by students. Further, unlike the plaintiff in Crowe, Eric undoubtedly could have avoided the risk he affirmatively undertook here.
The evidence established that Eric was intoxicated and decided to smoke a cigarette by crawling out of the narrow opening of his seventh-floor dorm room window, and then dropping down approximately five feet to a 2-foot-wide ledge, some 45 to 50 feet above the ground. Under these circumstances, we conclude the University, as a landlord, did not owe its student-tenants any higher duty than that of reasonable care, and was not required to take further steps to further minimize the risk of this obvious danger.
Moreover, as the University points out, the Wellhausens’ argument implies that the University has an obligation to protect students from themselves. However, we can no longer base a University’s liability on the doctrine of in loco parentis. In Nero, our Supreme Court rejected that doctrine as “outmoded and inconsistent with the reality of contemporary collegiate life.” 253 Kan. at 580. While Nero concerned a university’s obligation to protect students from the actions of fellow students or third parties, Nero may be extended to reject any obligation on the part of a university to protect its students from their own reckless and negligent acts. As the University points out, to conclude otherwise would contradict Nero’s admonition that “a university is not an insurer of the safety of its students.” 253 Kan. at 584.
Under the facts of this case, we conclude that while the University, like any landlord, had a duty to act reasonably to protect the safety of its student-tenants, it did not have an affirmative duty to prevent Eric Wellhausen from acting irresponsibly. Eric knew or should have known of the danger presented by his actions. Accordingly, the district court did not err in finding the Wellhausens’ claim was barred by the discretionaiy function exception, K.S.A. 75-6104(e).
Application of KS.A. 75-6104(m)
The Wellhausens also claimed the district court erred in concluding the design immunity exception, K.S.A. 75-6104(m), precluded their claim that the University “created the dangerous condition . . . permitted the dangerous condition to exist and failed to correct the dangerous condition.” K.S.A. 75-6104(m) provides governmental immunity for claims regarding:
“the plan or design for the construction of or an improvement to public property ... if the plan or design is approved in advance of the construction or improvement by the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such approval and if the plan or design was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.”
The Wellhausens do not suggest that Oliver Hall was not constructed in conformity with the recognized standards of the time. Instead, they argue the statute does not apply because they presented claims independent of the design of the building. See, e.g., Dunn v. U.S.D. No. 367, 30 Kan. App. 2d 215, 229, 40 P.3d 315, rev. denied 274 Kan. 1111 (2002) (“governmental entity is not immune from liability caused by negligence independent of design, where that independent negligence is a concurring, proximate cause of the injury”).
Thus, while the district court correctly found that the design immunity exception precludes any claim made by the Wellhausens regarding the design of the dormitory building, that exception does not preclude any independent claims regarding a failure to warn or to minimize the risk of a defective design. However, as discussed above, the University had no affirmative duty to warn in this case, and even if the district court erred in applying the design immunity exception, summary judgment was appropriate under the discretionary function exception.
The district court did not err in granting summary judgment in favor of the University on the Wellhausens wrongful death claim.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Gary M. Miller, appeals from a conviction by a jury of murder in the second degree. Defendant was charged with first degree murder of his wife, Mary, and convicted of the charge. A motion for a new trial was sustained following defendant’s conviction. Defendant was again tried on a charge of murder in the first degree, but was convicted of second degree murder and this appeal followed.
Around 4:30 a.m. October 21, 1974, the fire department of Overland Park was notified of a fire at the Miller residence. Shortly thereafter units of the fire and police departments of Overland Park arrived and the fire, was extinguished. The burned body of Mary Miller, defendant’s wife, was found lying on its back in the northeast bedroom of the residence. In a conversation with police and fire officials at the scene, defendant stated that he and his wife and daughter were in the home during the evening of October 20,1974. Defendant stated that because his daughter was not feeling well, he went into her bedroom to be with her where he fell asleep. At 4:00 a.m. defendant heard the radio playing in the northeast bedroom where his wife was sleeping. He stated that he again fell asleep in his daughter’s bedroom and later was awakened by the smell of smoke. He heard his wife moving about the bedroom and yelled to her to leave the house. He took his daughter from the house and said that he tried to return for his wife, but the smoke was too thick. He took his daughter next door to the residence of Mr. and Mrs. Jerald Jones and Mrs. Jones reported the fire. Defendant and Mr. Jones returned to the Miller residence, but the fire was so far advanced they were unable to enter the house.
The body of Mrs. Miller was removed from the Miller residence and taken to a funeral home where an autopsy was performed by Dr. James Bridgens. Dr. Bridgens testified at trial that Mrs. Miller died as a result of strangulation and that her body was burned after her death. Dr. Bridgens further testified that the time of death was between 9:00 and 11:00 p.m., October 20, 1974. Dr. Bridgens’ opinion as to time of death was based on the type and quantity of the contents of the deceased’s stomach and on information that she had last eaten at 6:00 p.m.
The day after the fire, defendant signed a consent waiver authorizing the search of his residence. At this time defendant was informed by the police that his wife had died under suspicious circumstances and they wanted to investigate the fire. Defendant was also informed of his Miranda rights and signed a waiver thereof. When questioned about his activities on October 20-21, and the fire, defendant repeated his previous statements made at the scene of the fire. He also stated that the family had eaten a meal of steak and carrots at 6:00 p.m., the previous evening, and then v ■ .died television until 1:15 or 1:30 a.m., during which time his wife had a beer and he had a drink.
On October 22, 1974, defendant was again interviewed by police officers. During this conversation defendant asked if the autopsy report had been completed and if the cause of death had been determined. A police officer replied that the matter had not been completed and that the police still had quite a bit of testing to do, but that stab wounds and any type of shooting wounds had been ruled out. After the officer’s reply defendant then asked if strangulation had been ruled out. The police had not mentioned to defendant, as yet, that the autopsy indicated strangulation.
Defendant’s testimony at trial was generally consistent with the previous statements given to police officers except that he added that his wife had eaten stew containing carrots at 11:00 p.m. on October 20. Defendant also changed his statement that he had been at home the afternoon of October 20 and testified that he had spent the afternoon in the park with his daughter and his mistress. The woman identified as defendant’s mistress testified at trial that she was with the defendant and his daughter in the park; that she was haying an affair with defendant; and that he had promised to marry her after his divorce became final on October 23,1974. The evidence at trial disclosed that defendant had never filed for a divorce.
The evidence at trial indicated that the fire originated in the bedroom where Mrs. Miller’s body was found. However, the origin of the fire was never definitely determined.
In his first point on appeal defendant contends that Judge Swinehart, who presided at his second trial, committed reversible error in adopting the findings and decision of Judge Musser, who had presided at the first trial, with respect to certain motions which defendant had filed prior to the first trial and then renewed before the second trial. Defendant also contends he was not afforded an opportunity to reargue the motions when they were presented a second time.
The record does not support defendant in his position on this point. The journal entry, filed following the second trial, reflects that, prior to trial, Judge Swinehart was presented with seven motions by defendant. Pertaining to presentation of the motions, the journal entry reads:
“. . . The Court, after listening to statements of counsel and being well and duly advised in the premises, makes the following findings: . . .”
Thereafter the court’s findings as to each motion were listed in the journal entry. Some motions were sustained and others overruled. On the record presented we cannot go behind the language of the journal entry with respect to whether argument of counsel was permitted. In this connection in State v. Hess, 178 Kan. 452, 289 P. 2d 759, we held:
“An appellate court will not determine the terms of a judgment on controverted and unsupported claims of the parties to the action and must assume the journal entry of judgment correctly reflects the judgment rendered and the facts therein recited notwithstanding a claim by one of the parties to the contrary.
“Upon appeal in a criminal action: (1) Error is never presumed but must be established. (2) If susceptible of a reasonable interpretation to the contrary the record of the proceedings of the trial court will not be interpreted to show error.” (Syl. 1 and 2.)
See, also, City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849; and State v. Smith, 171 Kan. 722, 237 P. 2d 388. In any event we take note that no written request for oral argument appears in the record. (Supreme Court Rule No. 133, 220 Kan. LX, formerly Rule No. 114.)
The two matters involved in the motions to which defendant directs our particular attention concern his motion to suppress a statement made by defendant to Detective Grove and his motion to suppress any evidence of the autopsy.
In his point two on appeal, defendant states his position with respect to defendant’s statement in these words:
“The court erred in rulings made before and during trial and in particular with reference to a statement made by the appellant to Detective Grove on October 21, 1974, when said statement was ndt based on an informed consent.”
The statement in question, concerning when defendant and his wife had their last meal, was made by defendant during the afternoon of October 21, at the police station where he had gone at the request of the police.
At the time the statement was made, the interrogating officers were aware of the pathologist’s opinion that strangulation, and not fire, was the cause of death. We are informed by the state’s brief that in a prior conversation with the police, defendant was told that his wife had died under suspicious circumstances and the police wanted to investigate the fire. Prior to making the admission defendant was advised of his rights. (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S.Ct. 1602.) During this conversation the police were apparently attempting to determine the time of death. In furtherance of that purpose, defendant’s statement was elicited, which established that the last meal eaten by the deceased, consisting of steak and carrots, was consumed at 6:00 p.m. on the day prior to the fire. From this fact, the coroner’s pathologist concluded the time of death was between 9:00 and 11:00 p.m., October 20,1974. On October 22, defendant had another conversation with the police in which he inquired if they had determined whether his wife had died of strangulation.
In support of the suppression of these admissions, defendant argues that the investigation had focussed on him at the time these statements were elicited. Since the police failed to make a complete disclosure to him of the information in their possession, defendant argues he made no knowing and intelligent waiver of his Miranda rights.
The state first responds to his contention by arguing that the inculpatory statements were made during an investigatory rather than a custodial interrogation. It is true that general on the scene questioning as to facts surrounding a crime or general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring the giving of the Miranda rights. (State v. Carson, 216 Kan. 711, 533 P. 2d 1342.) Some of the distinguishing characteristics of custodial interrogations, as distinguished from investigatory interrogations, are set out in State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, wherein we held:
“By custodial interrogation is meant the questioning of persons by law enforcement officers which is initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way.
“By investigatory interrogation is meant the questioning of persons by law enforcement officers in a routine manner in an' investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.” (Syl. 1 and 2.)
See, also, State v. Wasinger, 220 Kan. 599, 556 P. 2d 189; and State v. Hinkle, 206 Kan. 472, 479 P. 2d 841.
In support of the state’s argument on this point, it is to be observed defendant voluntarily came to the police station upon the request of the police, and even after making the inculpatory statement which helped establish the critical time of death, he was allowed to leave. When defendant inquired the following day as to whether the police had determined that his wife had died of strangulation, defendant was apparently subjected to no legal restraints as he was being driven in a police car to the place where he and his brother were staying. Defendant was not arrested until several days after these interviews. In his brief defendant concedes the arrest took place in South Dakota, where he was attending his wife’s funeral.
In discussing the impact of Miranda and Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S.Ct. 1758, in State v. Brunner, 211 Kan. 596, 507 P. 2d 233, we stated that a person who has not been arrested is not in custody unless there are significant restraints on his freedom. However, we also recognized the “focus” test of Escobedo in that where the investigation has become focussed on a particular suspect the investigatory may become accusatory.
In the case at bar, the police would have been deemed derelict in their duties not to have considered defendant the prime suspect at the time of the challenged interviews. They had previously learned the cause of death was not the fire, but rather strangulation. During their initial conversation with defendant, at the scene of the fire, he stated he was awakened by the smell of smoke; at this time he heard his wife moving about the bedroom and yelled at her to leave the house. The police investigation having reached the stage described, the instant case is more analogous to State v. Carson, supra, wherein a Miranda warning was required than to State v. Frizzell, supra, and those cases which involved mere investigatory, noncustodial inquiries. In Carson we observed that the fact an investigation has focussed on a suspect, standing alone, does not necessitate a Miranda warning, but it may be one of the determinative factors in deciding whether such a warning is needed. In our holding in Carson we enumerated factors to be considered:
“Circumstances bearing on whether a person questioned was subjected to ‘custodial interrogation’ requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the investigation at the time of interrogation.” (Syl. 5.)
In the recent case of State v. Bohanan, 220 Kan. 121, 551 P. 2d 828, we observed:
“. . . Because of the difficulty of formulating a precise definition of ‘custodial interrogation’ the courts have taken a ‘case-by-case’ approach to resolving questions of custodial interrogation. (United States v. Akin, [C.A. 5th, 1970] 435 F. 2d 1011.) The particular factural circumstances in each case are therefore of the upmost importance.” (p. 127.)
Under the facts of this particular case the investigation had reached a point at the time of the challenged utterance so as to require the giving of the Miranda warnings to the defendant. However, as the state aptly points out in the second prong of its argument on this contention, the Miranda warnings were given to defendant and he signed a written waiver thereof. Defendant, a twenty-seven year old college graduate, testified at the trial that he voluntarily signed the waiver of his own free will, without any coercion, and that he understood everything on the form.
In the recent case of State v. Barnes, 220 Kan. 25, 551 P. 2d 815, we held:
“In determining the admissibility of a statement of the defendant obtained during custodial interrogation the trial court must weigh any conflicting evidence and make findings that the defendant voluntarily, knowingly and intelligently waived his Fifth and Sixth Amendment rights. When this is done the court’s findings will not be disturbed on appellate review.” (Syl. 6.)
In the case at bar the trial court found that a sufficient Miranda warning had been given and that a voluntary waiver of rights thereunder had been made by the defendant before defendant’s statements were admitted. There being ample evidentiary support for the court’s ruling, it cannot be disturbed on appeal.
On this point defendant further contends that his otherwise valid consent was somehow vitiated by the fact that the officers did not disclose all of the information in their hands prior to the interview. When defendant made the statements he was aware the police were investigating the suspicious death of his wife and the suspicious fire at his home. A somewhat similar contention was rejected by this court under analogous circumstances in State v. Riedel, 211 Kan. 872, 508 P. 2d 878. We held the fact that a defendant was not specifically advised of the offense he was suspected of committing prior to the interview did not vitiate a knowing and intelligent waiver. Defendant cites no authority holding that all of the cards of the investigating officers must be laid face up on the table before statements of the accused, otherwise admissible, may be admitted into evidence.
For his third point on appeal defendant contends the trial court erred in admitting any evidence obtained as a result of the autopsy on the body of Mrs. Miller. Defendant argues (a) that he had a property interest in the corpse of his wife, and, therefore, a search warrant was required before the body could lawfully be removed from the premises; (b) that Dr. J. Michael Boles was not the duly appointed coroner in 1973, based on the facts that his four-year appointment beginning in 1969 had expired and he had not taken an oath for that office since 1967; and (c) that Dr. Boles, as a de facto coroner, was without authority to order an autopsy on the body of the deceased.
With respect to (a), defendant relies on Alderman v. Ford, 146 Kan. 698, 72 P. 2d 981, in support of his argument that the taking of the body of Mrs. Miller and performing an autopsy thereon was an unlawful invasion of defendant’s rights. Defendant overlooks the point in Alderman where in the court, in delineating the rights of a widow with respect to the body of her dead husband, expressly excepted the right of a coroner to take the body in a proper case. The Alderman court said:
“. . . So in this case, the plaintiff had a right to the body of her dead husband in the condition in which it was when he died. She alone could give authority for an autopsy on that body, except in case where death might occur under such circumstances as to warrant the coroner in conducting an autopsy, a circumstance we do not have here. . . .” (pp. 702-03.) (Emphasis supplied.)
The rights of the immediate family or the next of kin to the body of a deceased person for the purpose of burial are set forth in K.S.A. 19-1015 [now 1976 Supp.]. However, these rights are qualified by following sections concerning the office of district coroner.
K.S.A. 19-1031 provides for the notification of the district coroner or deputy coroner whenever a death occurs in a suspicious or unusual manner or where the determination of the cause of death is held to be in the public interest. The duty of the officers in this case to notify the coroner is not challenged by defendant.
K.S.A. 19-1029 authorizes the coroner to take possession and retain as long as necessary any property important in determining the cause of death in any case in which notification of the coroner is required.
K.S.A. 19-1032 [now 1976 Supp.] directs the coroner to take charge of the dead body upon receipt of notification under 19-1031.
K.S.A. 19-1033 [now 1976 Supp.] authorizes the coroner to order an autopsy if in his opinion it is advisable and in the public interest.
K.S.A. 19-1030 [now 1976 Supp.] provides the coroner shall hold an inquest upon the dead bodies of such persons when those deaths have been caused by unlawful means or the cause of those deaths are unknown.
Under the foregoing statutes defendant’s argument with respect to (b), concerning the necessity of a search warrant for the removal of the corpse, must be rejected. By directing his neighbor to call the police and fire departments, defendant consented to their presence in his residence. Even had defendant objected to their entry, authorized firemen have authority to enter a house and investigate if there is any reason to believe that the fire was of an incendiary origin. (K.S.A. 31-137.) The officers were lawfully within the premises when they became suspicious about the death and the fire. Therefore, evidence, including the dead body, which was in plain view of the officers, was subject to seizure without a warrant. (State v. Huff, 220 Kan. 162, 551 P.2d 880; and State v. Frizzell, supra.)
Defendant contends there was no legal coroner for the Tenth Judicial District on October 21, 1974, since Dr. Boles had not taken an oath since his original appointment and the term for which he was last appointed had expired. Defendant’s technical objections to the legal status of Dr. Boles, as district coroner, cannot serve as a basis for the exclusion of the autopsy evidence as contended by defendant. Dr. Boles was at least a de facto district coroner when he ordered the autopsy performed. Dr. Boles was apparently appointed to the office in 1967 and took an oath at that time. His last appointment was January 13,1969, for a term of four years. He had a color of right or title to the office by reason of his original appointment, although his term had expired. He had acted as coroner since 1967. He had the qualifications for coroner; he was in possession of the office and exercising the duties thereof. The general public and public authorities believed Dr. Boles to be the coroner and relied on him as such even though his term had expired. These are the classic characteristics of a defacto officer. (Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P. 2d 1; Will v. City of Herington, 201 Kan. 627, 443 P. 2d 667; State v. Roberts, 130 Kan. 754, 288 Pac. 761; and Parvin v. Johnson, 110 Kan. 356, 203 Pac. 721.) As a de facto officer his acts were valid insofar as they involved the interest of the public and a third person.
In Olathe Hospital Foundation, Inc. v. Extendicare, Inc. supra, the legal status of two members of an appeal panel, established under the provisions of Regional Health Programs Act, was challenged on the grounds that their terms had expired and they had not taken oaths of office prior to the hearing in question. Concerning the characteristics of a de facto officer we held:
“A person who assumes and performs the duties of a public office under color of authority and is recognized and accepted as the rightful holder of the office by all who deal with him is a de facto officer, even though there may be defects in the manner of his appointment, or he was not eligible for the office, or he failed to conform to some condition precedent to assuming the office.” (Syl. 5.)
This court has consistently held that a challenge to the authority of a de facto officer must be made at the time he acts and that his actions are not subject to collateral attack. His authority may only be challenged in a direct proceeding brought by the state or one claiming the office. (Olathe Hospital Foundation, Inc. v. Extendicare, Inc., supra; Parvin v. Johnson, supra; and Briggs v. Voss, 73 Kan. 418, 85 Pac. 571.)
Defendant further complains that no inquest was held by the coroner pursuant to the provisions of K.S.A. 19-1030 [now 1976 Supp.]. In Uhock v. Hand, 182 Kan. 419, 320 P. 2d 794, it was held that although an inquest should have been held where the cause of death is unknown, the duty to do so is not jurisdictional to a final judgment in a murder case. We find no error in the admission of evidence obtained from the autopsy.
Finally, defendant contends the trial court erred in failing to submit his requested instructions. In particular, defendant argues the court should have instructed the jury that in order to convict it must find “that the killing was due to strangulation.” Included in the instructions given were PIK [Criminal] 56.01, 56.03, 56.04 and 56.05 covering first degree [premeditated] murder, second degree murder, voluntary manslaughter and homicide definí tions. They adequately stated the law with respect to the offense charged and offenses included therein. Generally speaking, it is the duty of the trial judge, under K.S.A. 22-3414, to define the offense charged and state to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of his own. (State v. Bandt, 219 Kan. 816, 549 P. 2d 936; State v. Schriner, 215 Kan. 86, 523 P. 2d 703; and State v. Finley, 208 Kan. 49, 490 P. 2d 630.) In the instant case the only evidence presented at trial as to the cause of death was strangulation. The jury was instructed to decide the case on the evidence presented. It is inconceivable the jury would consider any other cause of death when there was no other evidence on the point. The question for the jury was who or what caused the strangulation. We find no error shown with respect to the instructions given.
We have carefully examined all points raised on appeal and find no error shown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The defendants below appeal from a judgment foreclosing an equitable mortgage which was evidenced by a quitclaim deed. The real property involved is an apartment complex located on the north 160 feet of Lot 12, Marty Place, a subdivision in the City of Overland Park, Johnson County, Kansas. The circumstances on which the court decreed foreclosure of the equitable mortgage arose in the following manner.
The defendant-appellants, Lyle R. Hanson and Jorene J. Hanson, owned the apartment complex subject to first and second mortgages. The second mortgage had been foreclosed and the redemption period was about to expire. The Hansons were in need of $60,000.00 to redeem the property. They traveled to Scottsdale, Arizona, to visit an aunt who had substantial financial holdings. The aunt, Marjorie Fuqua, loaned the Hansons certain municipal bonds which were pledged by the Hansons to secure a $60,000.00 loan from a bank in Kansas City. The apartment complex was redeemed from the foreclosure action. To secure the parties in event of an untimely death the Hansons mailed a quitclaim deed conveying the property to the aunt. Accompanying the deed was a written agreement setting forth the facts regarding the loan of the bonds and the execution and delivery of the deed. The agreement obligated the Hansons to satisfy the loan obtained from the Kansas City bank within six months from November 18, 1973, and to have the bonds returned to Mrs. Fuqua. The agreement further provided that Mrs. Fuqua was to transfer and reconvey the property to the Hansons when her bonds were returned.
The bank loan was not satisfied by the Hansons within the six months and the friendship which had previously existed between the aunt and the nephew deteriorated. Negotiations for a sale of the property to satisfy the agreement came to naught and one year after the bonds were loaned the aunt initiated a program of self-help to obtain possession of the apartment complex. She also filed an action to quiet her title to the property.
The action was vigorously contested and the nephew obtained a court order restoring the premises to him. Claims of fraud and estoppel were lodged against the aunt and the cause of action which began as a quiet title action was tried to the court. The court determined the amounts required to pay the bank loan and obtain return of the municipal bonds. Judgment was entered against the Hansons in that amount and it was decreed that Mrs. Fuqua had an equitable mortgage on the apartment complex for the amount of said judgment. The property was ordered sold, the sale was held and confirmed, a certificate of purchase was issued to the purchaser and the Hansons were given a right to redeem the property within six months from the date of sale. The Hansons filed this appeal but did not redeem the property from the sheriff’s sale.
The appellants set forth nineteen points on appeal. These nineteen points are totally obscured in appellant’s brief where five “questions to be determined” are first listed and then only one of the four arguments contained in the brief refers to these five questions. None of these questions can be identified in the nineteen points on appeal.
This appeal was filed under the appellate rules effective prior to January 10, 1977. Rule No. 6 (d) required the appellant to “serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal.” (Rules of the Supreme Court, 214 Kan. xxiii.) This court would be entirely justified in dismissing this appeal on its own motion for failure to comply with such rule but we will attempt to examine the main arguments of the appellants as best they may be discerned.
One thread of argument which runs through appellants’ fifty page brief is the contention that the transaction by which the Hansons obtained the aunt’s municipal bonds should not be held to give rise to an equitable mortgage on the apartment complex.
At the trial the quitclaim deed and the agreement from the appellants to Mrs. Fuqua were stipulated into evidence. The deed had been recorded by appellants and sent to Mrs. Fuqua accompanied by the agreement to return the bonds within six months. It was further stipulated at the trial:
“That on or about the 18th day of November, 1973, plaintiff provided defendants Hanson with certain municipal bonds, and plaintiff agreed that defendants Hanson could use said bonds as security and collateral for a bank loan. That defendants Hanson have never returned said municipal bonds to plaintiff.”
The form of an agreement by which security is given for a debt is unimportant. If the purpose and intention behind a transaction is to secure a debt, equity will consider the substance of the transaction and give effect to that purpose and intention. A court sitting in equity is not governed by the strict rules of law in determining whether a mortgage has been created. The lien follows if the evidence discloses an intent to charge real property as a security for an obligation. (Hill v. Hill, 185 Kan. 389, Syl. 4, 345 P.2d 1015.) Cases in which this court has considered circumstances giving rise to equitable mortgages may be found in Rex v. Warner, 183 Kan. 763, 767, 332 P.2d 572; Hill v. Hill, supra, p. 400; and Benton v. Benton, 215 Kan. 875, 878, 528 P.2d 1244. There can be no doubt that the transaction in the present case is one of those where a court exercising its equity powers should and did decree foreclosure of an equitable mortgage given to secure payment of a debt.
The second thread of argument which may be discerned by looking closely at the fabric of appellants’ brief is that the plaintiff elected to sue in a quiet title action and, having elected the remedy of quiet title, she cannot obtain foreclosure of an equitable mortgage.
This argument was considered and rejected in Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691, and in Benton v. Benton, supra. The fact that a party requests one form of equitable relief does not bar the trial court from rendering such other different and equitable relief as may be justified by the evidence.
As a heading for the argument in the first section of their brief, appellants state: “Appellee [Mrs. Fuqua], by her actions and conduct prior to and during the course of this litigation, including this appeal, has transcended all rules of conscience and equity, such as to bar her recovery herein.”
In the argument which follows the appellants charge that Mrs. Fuqua wrongfully took over possession of the apartment complex, that her agents violated appellants’ rights in forceably ejecting Lyle R. Hanson from the property, that Mrs. Fuqua, through her counsel, wrongfully caused appellants to defend against other actions filed under city ordinances and that she was guilty of unfair tactics in obtaining the property and had unclean hands. They argue that such inequitable conduct prior to and during the course of this action justifies and requires a judgment in appellants’ favor.
The clean hands doctrine is based upon the maxim of equity that he who comes into equity must come with clean hands. It provides in substance that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct. (Green v. Higgins, 217 Kan. 217, Syl. 1, 535 P.2d 446.)
The transaction which gave rise to the present action was the loan of the bonds, the pledge of the bonds as security for a bank loan, and the giving of the quitclaim deed to secure the return of the bonds in six months. There is no hint of inequitable conduct by Mrs. Fuqua with respect to this transaction. The charges against Mrs. Fuqua in collateral matters will not preclude her from obtaining equitable relief. See Benton v. Benton, supra, Syl. 3. Such collateral matters are the subject of the counterclaim filed by the Hansons and are the basis for their claim of damages which was separated for later trial.
The clean hands maxim is not a binding rule, but is to be applied in the sound discretion of the court. When the record wholly fails to support a claim that plaintiff has been guilty of inequitable conduct the doctrine should not be applied. (Green v. Higgins, supra, Syl. 2.) If this matter was raised in the trial court that court did not see fit to apply the clean hands doctrine. The clean hands doctrine is not a hard and fast rule and should be applied in the trial court’s discretion so as to accomplish its purpose of promoting public policy and the integrity of the courts. We see no such public policy question in the record before us and no abuse of discretion on the part of the trial court.
Appellants make an additional argument which overlaps the charge of unclean hands. They assert that Mrs. Fuqua’s conduct amounts to fraud upon the court and a fraud upon the appellants, which fraud estops Mrs. Fuqua from recovering anything in the action. The doctrine of estoppel is not applicable here. An estoppel may be recognized by a court when a party takes inconsistent positions as to factual matters; this does not relate to a later position resulting from a pronouncement of a proposition of law. Mrs. Fuqua consistently maintained she had absolute title and not an equitable mortgage. It was the court that decreed an equitable mortgage as it had the right and duty to do under the cases previously cited herein. The doctrine of estoppel does not prevent one from seeking inconsistent and alternative remedies in the same action for claims in the alternative are permitted by our code of civil procedure. (See K.S.A. 60-208[e] [2].)
We find nothing in the arguments or in the brief of appellants which would justify refusal to enforce an equitable mortgage in favor of the plaintiff, Mrs. Fuqua. The fact that plaintiff brings an action requesting equitable relief to clear the title to real property based upon a quitclaim deed from the defendants will not prevent the trial court from determining that the transaction out of which the deed emanated created an equitable mortgage. In such case it is proper for the court to decree foreclosure for nonpayment of the debt, subject to a right of redemption, and it was not error for the trial court to proceed to have the property sold and the proceeds applied to the payment of the debt which gave rise to the equitable mortgage.
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal under the Workmen’s Compensation Act from an award for disability from a myocardial infarction found to be a direct and natural result of an intimal hemorrhage suffered at work on February 21, 1974. The claimant, Lawrence Makalous, received an award based upon 50% permanent partial disability, together with medical benefits. No serious question is presented on appeal as to the percentage of the workman’s present disability. The appellants’ attack on the award is based upon facts surrounding the injury and the refusal of the district court to apply the so-called heart amendment. There was evidence that the extremely cold weather in which claimant was working was a precipitating cause of the intimal hemorrhage suffered by the workman.
The facts contained in the next six paragraphs, concerning claimant’s work and resulting disability, are taken from the trial court’s findings.
Claimant was a 58 year old male worker employed by the Kansas State Highway Commission at Belleville, Kansas. Prior to February 21, 1974, claimant had suffered no heart disease or coronary artery disease and considered himself to be in good health.
On February 21,1974, the claimant was employed with another workman pulling posts out of asphalt pavement in the usual course of his employment. About quitting time claimant undertook to help two other workmen who were haying trouble pulling a post. The ground was unusually hard because of the extreme cold. Claimant wrapped a chain around the bottom of the post, and while he was bending over to hold the chain down another worker suddenly jerked the post out of the ground. Claimant immediately suffered a pain under his left rib cage.
The weather on February 21, 1974, was cloudy, cold and windy. The temperature was 18 degrees and the chill factor was below zero. Claimant worked the following day, which was a Friday, and did not report the pain to his foreman. A co-worker, Alvie Jeardoe, reported to the foreman that the claimant had suffered an injury to his chest in pulling the post. Claimant worked at his usual employment on Monday and Tuesday, although he was unable to keep up with the other workers. The pain in his chest, which occurred on February 21, eased up at times and became more severe at times but it never went away entirely.
On Wednesday, February 27, the pain became unbearable and claimant asked his foreman for sick leave to get a physical checkup. Claimant went to the Belleville Clinic and was seen by Duane L. Scott, M.D.,who admitted claimant to the Belleville Hospital. Dr. Scott ordered an electrocardiogram to be taken and told claimant that he had had a heart attack. Claimant remained in the hospital for three weeks. Subsequent electrocardiograms and enzyme tests failed to reveal infarction and claimant’s cardiograms reverted to a near normal picture.
He was readmitted to the Belleville Hospital about 5:00 a.m. on May 13, 1974, with an acute extensive anterior wall myocardial infarction and was hospitalized through June 3, 1974. Claimant has not worked since February 27, 1974. He was released only to do light work. He was not to return to his usual highway work.
The court specifically found:
“An external force, extreme cold, precipitated the claimant’s heart attack which resulted in his disability.”
The court concluded the claim was not precluded under the “heart amendment” (K.S.A. 44-501) and approved and adopted the award previously entered by the examiner and director.
Now let us turn to some of the evidence bearing upon the question of whether the extreme cold, an external force, precipitated the intimal hemorrhage which led directly and naturally to the myocardial infarction.
Alvie Jeardoe, a co-worker, testified he was working with claimant on February 21, 1974. Weather conditions were extremely cold, windy and blustery. Asked if claimant’s foreman knew about claimant’s injury, Jeardoe stated that the foreman knew about it that evening because he told him about it. “I told him that he got hurt that day and how he got hurt.” Jeardoe worked with the claimant on the Monday following February 21st. He observed that claimant was not able to keep up with the rest of the men.
Osmond Smith, a co-worker, testified that he worked for the Highway Commission some thirty years and that he never worked on a more miserable day than February 21, 1974.
The claimant introduced the testimony of a Frieda Ahrens of Belleville, Kansas, to establish the weather conditions on the day in question. She habitually wrote in her diary the daily temperatures and weather conditions as they were observed by her and reported over the radio. According to her notes the temperature was 18 degrees, it was cloudy, windy and snowy.
Claimant’s medical testimony came from Dr. Scott, his treating physician, and Dr. Bratrud, a heart research specialist from California. Sharply conflicting medical testimony was given by Dr. Sifford, who was called by the appellants. Since the trial court found in favor of claimant we will summarize only the evidence tending to support the claimant. See Suhm v. Volks Homes, Inc., 219 Kan. 800, 549 P.2d 944.
Dr. Duane L. Scott, a physician and surgeon, testified that he first examined the claimant on February 27, 1974. At that time he believed that claimant had suffered an acute myocardial infarction. However, subsequent electrocardiograms and enzyme tests failed to confirm the presence of a heart attack. Claimant was treated with medication, including anticoagulants, and then released. On May 13, 1974, claimant was readmitted with a definite myocardial infarction and remained in the hospital from May 13, 1974, until June 3, 1974. Dr. Scott advised claimant to limit his activities to a marked extent. In Dr. Scott’s opinion, the episode of chest pain and the later heart attack were related. “In my opinion,” he stated, “the extreme cold coupled with the physical exertion on that February day set the stage of Mr. Makalous’ heart attack, which rapidly followed his exposure to these elements. His symptomatology is too closely related to believe otherwise.” Dr. Scott advised claimant that he could return to work for the respondent in warm weather but he should not work in the wintertime, since that would lead to more heart problems. Claimant could operate a truck or a motor grader in the wintertime if it was heated, provided he did not exert himself too much.
Dr. Bratrud, who had a professional background in surgery and pathology, testified at the hearing after having read the testimony of the claimant and the medical records. His research in performing autopsies on people who had died with coronary thrombosis indicated there was a 98% incidence of intimal hemorrhages in the coronary arteries when those deaths occurred. He testified that an intimal hemorrhage is the first thing that occurs, that the hemorrhage progresses and develops into a blood clot which in turn progresses in size until a myocardial infarction results. He was of the opinion that the claimant suffered an intimal hemorrhage on that cold day in February when it was 18 degrees with a wind chill factor of below zero. This was evidenced by the chest pain. He was of the further opinion that claimant suffered at least a half dozen intimal hemorrhages thereafter over a period of six or eight weeks which were causally connected and culminated in a severe anterior myocardial infarction. The infarction was established by the enzyme tests and electrocardiograms in May. He testified that exertion coupled with severe cold increases the incidence of heart attacks and that the severe cold on February 21 was a precipitating external cause of claimant’s present disability.
Now we turn to the heart amendment, K.S.A. 44-501, which was adopted in 1967. This portion of 44-501 was not changed by later amendments. The heart amendment reads:
“. . . Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.”
Ever since the heart amendment was adopted this court has had to struggle with the “usual vs. unusual” wording of the amendment. In Nichols v. State Highway Commission, 211 Kan. 919, 508 P.2d 856, we said: See also Lentz v. City of Marion, 222 Kan. 169, 563 P.2d 456.
“The legislative intent in enacting the so-called heart amendment to K.S.A. 44-501 (now K.S.A. 1972 Supp. 44-501) was to limit and restrict the application of that statute so far as ‘heart cases’ were concerned.
What is usual exertion, usual work, and regular employment as those terms are used in the 1967 amendment to K.S.A. (now 1972 Supp.) 44-501 will generally depend on a number of surrounding facts and circumstances, among which the daily activities of the workman may be one, but only one, among many factors.
Whether the exertion of the work necessary to precipitate a disability was more than the workman’s usual work in the course of his regular employment presents a question of fact to be determined by the trial court.” (Syl. 1, 3, and 4.)
A new approach to the heart amendment surfaced in Dial v. C. V. Dome Co., 213 Kan. 262, 515 P.2d 1046. In Dial the claimant suffered a cerebral vascular accident (heatstroke) which was precipitated by an environmental hazard, oppressive heat.
Although a cerebral vascular accident caused by the exertion of a workman’s usual work was made a non-compensable injury by the heart amendment, it was established in Dial that an external force other than exertion was the factor which precipitated the cerebral vascular accident. Medical testimony established the cause to be heat in the working environment, an external force. Even prior to the heart amendment this court had approved an award for disabilities resulting from heatstroke. See Taber v. Tole Landscape Co., 181 Kan. 616, 313 P.2d 290. So — there was no doubt in Dial that the cerebral vascular accident suffered by the claimant was compensable, unless it was precluded by the heart amendment.
In Dial we held:
“The ‘heart cases’ to which the amendment applies are those where the exertion of the claimant’s work is the agency ‘necessary to precipitate the disability.’
“Where the claimant’s disability is the product of some external force or agency, and nOt of the exertion of the claimant’s work, the heart amendment has no applicability. This is true even though a coronary or cerebrovascular injury may be one manifestation of the injury.
“Where exertion is not the agency which produces the workman’s disability, the usual vs. unusual exertion test of the heart amendment is irrelevant.” (213 Kan. 262, syl. 2, 3, and 4.)
After Dial it was urged in Suhm v. Volks Homes, Inc., supra, that emotional stress connected with the claimant’s usual work supplied the unusual exertion necessary to overcome the thrust of the heart amendment. In Suhm we recognized the external force exception which had surfaced in Dial. We reaffirmed the rule that the heart amendment applies only to those cases where the exertion of claimant’s work is the agency which precipitates the injury. Suhm was an exertion case for there was no clear medical testimony that emotional stress was an external force which precipitated claimant’s heart attack. The case was decided by applying the usual vs. unusual exertion guidelines.
After Dial and Suhm the case of Woods v. Peerless Plastics, Inc., 220 Kan. 786, 556 P.2d 455, appeared before this court. In Peerless Plastics the claimant suffered a heart attack while carry ing heavy pipe outdoors in the cold January air. On appeal it was unsuccessfully argued that the cold was an external force which produced the injury rather than the exertion of the work. We denied the claim saying:
“. . . In Dial the heat was an external force, wholly independent of the workman’s exertion, which precipitated the vascular activity. We distinguish Dial from the case at bar because here the record does not disclose a causal connection between cold weather and heart failure.” (p. 790.)
On reading our previous cases it is clear that heat and cold in the working environment are recognized as external forces which can cause injury. Heat can cause heatstroke. Cold can cause frostbite and, after examining the record in the present case, there is expert medical evidence available that extreme cold coupled with outdoor exertion can cause a heart attack. Here the trial court held that extreme cold was the cause which precipitated the heart attack.
Appellants, after reviewing our heart cases, argue that to render the heart amendment irrelevant an external force present in the working environment must be the sole cause of the heart attack. In support of this argument they quote from the Dial and Suhm cases. We acknowledge that standing alone the excerpts from those cases tend to indicate the conclusion they urge in this case; however, we cannot agree with that conclusion.
According to the findings of fact the exertion of the work had little if any appreciable effect in producing the heatstroke in Dial. The analogies used in arriving at our conclusion in Dial present factual situations in which the exertion of the work does not contribute to the possible cause of injuries and we conclude by saying:
“. • • [I]t was not the legislative intent that the amendment apply to this sort of case. Where the disability is the product of some external force or agency, and not of the exertion of the claimant’s work, the heart amendment has no applicability. In such a case, where exertion is not the agency ‘necessary to precipitate the disability,’ the usual vs. unusual exertion test applied in our previous heart amendment cases is irrelevant. Instead, the customary standards are to be applied in determining whether the injury was accidental, and whether it arose out of and in the course of the workman’s employment.” (Dial v. C. V. Dome Co., supra, p. 268.)
It is understandable that the appellants in the present case argue that Dial can be distinguished since here it is admitted the intimal hemorrhage was a product of both the usual exertion of the work and the extreme environmental conditions present on February 21. The claimant stipulated below that he was doing the usual work in the course of his regular employment. He further testified that the exertion of the work was no more than usual when he suffered injury.
However, we do not believe Dial can be distinguished on the facts from the present case even though the findings did focus on the external force (heat) as the causative factor which precipitated the accident (heatstroke). Under the evidence in Dial claimant was working in close quarters as a carpenter when he was overcome by heatstroke. Heatstroke results from a cerebral vascular hemorrhage. The usual physical exertion of the work was present even though “no mention is made in the testimony of exertion as a causative factor.” If we should hold that an external force cannot produce a cardiac or vascular injury under the heart amendment when a claimant is engaged in his usual work, we would practically eliminate external forces as possible producing causes of these injuries. Every injury to be compensable must be by accident arising out of and in the course of employment. This presupposes the workman will be working and subjecting himself to the usual exertion of the job, whether it be pounding nails as a carpenter or pulling posts as a highway worker. The external force rule in heart cases as declared in Dial should not be construed to preclude recovery merely because the usual exertion of the claimant’s work may have contributed in some degree to producing the injury which resulted in disability.
Most accidents can be traced to several contributing factors. Heart cases are no exception. Working conditions requiring either unusual exertion or exposure to an oppressive environment may precipitate coronary or cerebrovascular activity. In cases of coronary or coronary artery disease or cerebrovascular injury if no unusual exertion from the work is present there can be no compensation paid under the heart amendment when exertion precipitates the injury; but when it is established that the injury and the resulting disability are the product of some extreme external force in the working environment then compensation may be payable. To support a finding that claimant’s cardiac or vascular injury is the product of some extreme external force the presence of a substantial external force in the working environment must be established and there must be expert medical testimony that the external force was a substantial causative factor in producing the injury and resulting disability.
In Suhm we held:
“Whether the exertion of the work necessary to precipitate a disability was more than the workman’s usual work in the course of his employment and whether an external force or agency produced a workman’s disability are questions of fact to be determined by the trial court.” (219 Kan. 800, syl. 4.)
In our present case an extreme external force in the working environment was established (freezing cold and windy weather). Expert medical testimony in the record indicates that these external forces precipitated and produced the claimant’s injury (intimal hemorrhage and myocardial infarction). So the heart amendment is irrelevant and we must be guided by the usual rules and requirements in workmen’s compensation cases.
In this appeal appellants argue that no disability resulted from the intimal hemorrhage occurring on February 21, because there was evidence after February 27 that the enzyme tests and electrocardiograms presented a near normal picture. They further contend the lapse of two and a half months between the chest pains on February 21, and the myocardial infarction on May 13, renders the causal connection between the extreme cold and the ultimate injury resulting in disability highly questionable.
When an actual heart attack occurs outside of working hours at some period of time after the extreme environmental hazard has ended the burden of proving a causal connection is in the nature of things heavier. The connection between the external force and the injury in such cases is more tenuous and the possibility of separate intervening causes is enhanced. The same is true of the ultimate consequences that flow from other types of injuries.
However, when an injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a distinct disability in another part of the body, is compensable if it is a direct and natural result of the injury. See Reese v. Gas Engineering & Construction Co., 219 Kan. 536, Syl. 3, 548 P.2d 746. In Reese the initial injury was limited to claimant’s left leg but some months later a new and distinct disability surfaced, a back disability. The back disability was held'to be compensable since it was shown to be a direct and natural consequence flowing from the initial injury to the leg. The time lapse in such cases may be only a few months or it may cover a period of over a year. See Gillig v. Cities Service Gas Co., 222 Kan. 369, 564 P.2d 548.
In the present case the claimant had no history of heart disease. The intimal hemorrhage which was the initial injury occurred while claimant was working. This occurrence was evidenced by immediate chest pain which limited his physical activities and was progressive in intensity until he went to a doctor six days later. Thereafter he suffered a myocardial infarction. There was medical testimony to support the finding that the myocardial infarction suffered in May was a direct and natural consequence flowing from the intimal hemorrhage which occurred February 21. Sufficient causal connection was established.
Appellants attack many additional findings of the district court which findings need not be discussed individually in this opinion. We have examined all eighteen points specified and there is substantial evidence to support the necessary findings.
The appellate jurisdiction of this court in workmen’s compensation cases is limited to reviewing questions of law. (K.S.A. 1976 Supp. 44-556.) Whether the district court’s judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d 1274.) In reviewing the record to determine whether it contains substantial evidence to support the district court’s factual findings, this court is required to review all the evidence in the light most favorable to the prevailing party below; when the findings of fact made by the district court are based on substantial evidence they are conclusive. See decisions collected in 5 Hatcher’s Kansas Digest (Rev. Ed.), Workmen’s Compensation, Sec. 153.
The findings are conclusive in this case and the judgment is affirmed. | [
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Owsley, J.
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The opinion of the court was delivered by
Miller, J.:
Robert L. Burnett appeals from convictions of burglary and felony theft under K.S.A. 21-3715 and K.S.A. 21-3701 (a). Two points are before us: whether the trial court erred in denying Burnett a psychiatric examination at public expense by a physician of his own choosing; and whether K.S.A. 22-3603 (now K.S.A. 1976 Supp.), providing for interlocutory appeals by the state and not by the accused, constitutes invidious discrimination and is a denial of due process and the equal protection of the laws to this defendant.
The facts of the occurrence out of which the crime arose have no bearing on the issues raised and need not be detailed here. Burnett does not challenge the sufficiency of the state’s evidence.
Defendant was found to be indigent, and counsel was ap pointed for him. At arraignment he pled not guilty, and not guilty by reason of insanity, and the court on motion authorized his counsel to incur the costs of procuring the services of a qualified psychiatrist, such costs to be defrayed by the state indigent defendant fund pursuant to K.S.A. 22-4508.
Some 60 days thereafter, counsel applied for specific authority to procure the services of Dr. Charles Wellshear and the Wesley Medical Center in Wichita for a psychiatric examination. Counsel was unable to estimate the cost of the requested services. After hearing argument, the trial court found that the request was not reasonable and denied the motion; but the court did provide for an examination, at public expense, at either of three state facilities.
Burnett then moved this court for leave to take an interlocutory appeal. The motion was denied for lack of jurisdiction on June 6, 1975.
Thereafter, defendant selected the Topeka State Hospital and counsel made an appointment for his client to be examined by Dr. Tarnoff on August 20. Defendant arrived at the appointed time but Dr. Tarnoff was not there. However, defendant was examined by Dr. Charles E. Staunton, a staff psychiatrist at the Topeka State Hospital, and a lengthy report, signed by Dr. Staunton and four other staff physicians, including Dr. W. Walter Menninger, was prepared on August 25 and forwarded to court and counsel. While the report was not couched in the language of M’Naghten (see State v. Andrews, 187 Kan. 458, 466, 357 P. 2d 739, and State v. Pyle, 216 Kan. 423, 440, 532 P. 2d 1309), it clearly and unmistakably expresses the opinion that Burnett was not psychotic, was not suffering from any thought disorder, and was legally sane.
The report was received less than a week prior to trial. On the morning of trial, defendant moved for a continuance in order that he might secure an examination by a psychiatrist of his own choosing, and requested that the court grant counsel authority to engage such an expert, the cost to be paid by the Aid to Indigent Defendants Fund. The motion was denied and trial proceeded; defendant was convicted, and appeals.
Defendant first contends that under K.S.A. 22-3219 (2) he had an absolute right to an examination by a physician of his own choosing at public expense. The statute reads:
“A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring an examination by a physician of his own choosing. A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.”
This statute must, of course, be read in conjunction with K.S.A. 22-4508, which provides:
“Counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in his case may request them in an ex parte application addressed to the magistrate or court where the action is pending. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the magistrate or court shall authorize counsel to obtain the services on behalf of the defendant. . . . The court shall determine reasonable compensation for the services and approve payment to the organization or person who rendered them . . .”
K.S.A. 22-3219, as we read it, merely provides that when an insanity defense is raised, the defendant is deemed to consent to orders of the court requiring mental examinations, and such orders as the court may make do not prevent the defendant from securing examinations by physicians other than those designated by the court. We do not read the statute as does the defendant. We hold that the statute does not make it mandatory upon the trial court to authorize the retention at public expense of any psychiatrist an indigent defendant may select simply because notice of an insanity defense has been given.
The authorization of supporting services, whether they be investigative, expert or otherwise, is a matter within the sound discretion of the trial court.
Chief Justice Price, speaking for a unanimous court in the last opinion he wrote, State v. Frideaux, 207 Kan. 790, 487 P. 2d 541, said:
“K.S.A. 1970 Supp. 22-4508, being a section of the act relating to ‘Aid to Indigent Defendants,’ and which provides for the furnishing of investigative services to an indigent defendant under circumstances set forth in the statute, does not give to a defendant an absolute right to such services merely upon application being made therefor. Such services are to be provided only upon a finding by the court, after appropriate inquiry, that they are necessary to an adequate defense. A finding necessarily involves the exercise of the sound discretion of the court — and a denial of an application will not be disturbed in the absence of a showing that such discretion has been abused to the extent that a defendant’s substantial rights have been prejudiced thereby.” (Syl. 1.)
Later, in State v. Campbell, 210 Kan. 265, 273, 274, 275, 500 P. 2d 21, we said:
“. . . [T]he appellant moved the trial court to provide . . . funds for an examination ... by Dr. Ralph L. Drake and by the Wichita Psychiatric Center regarding his mental state, before, during and after the crimes with which he was charged . . . The request for funds was denied . . .
“This court has held that the granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that the exercise of such discretion has been abused to the extent of prejudicing the substantial rights of the defendant. (State v. Taylor, 202 Kan. 202, 447 P. 2d 806; State v. Young, 203 Kan. 296, 454 P. 2d 724; and State v. Frideaux, 207 Kan. 790, 487 P. 2d 541.)
“K.S.A. 1971 Supp. 22-4508 now provides for investigative services for indigent defendants, but the trial court must determine such services are ‘necessary,’ which is in accordance with prior case law.
“In July, 1969, when this case came on for trial the appellant renewed his request for funds and K.S.A. 1971 Supp. 22-4508 authorizing such expenditures, had become operative. (L. 1969, ch. 291, sec. 8, effective July 1, 1969.)
“Both before and after the effective date of 22-4508, supra, the burden was upon the appellant to show that the request for services was necessary, and on appeal that the denial of such request by the trial court prejudiced his substantial rights.
“The mere hope or desire to discover some shred of evidence when not coupled with a showing that the same is reasonably available and necessary for a proper defense does not support a claim of prejudicial error. (State v. Taylor, supra.)
“When a similar issue was raised before the Tenth Circuit Court of Appeals in Watson v. Patterson, 358 F. 2d 297 (10th Cir. 1966), the Court of Appeals noted that it was unable to find any cases holding that the appointment of experts was a constitutional requirement; rather, the court held that requests for supporting services were to be measured by the requirements of due process, and the test of due process was ‘fundamental fairness.’ ”
Our recent cases state and apply the same rules. State v. Bradford, 219 Kan. 336, 339, 548 P. 2d 812; and State v. Lee, 221 Kan. 109, 115, 558 P. 2d 1096.
Here the defendant requested private psychiatric services, and no estimate of the probable cost was furnished the trial court. The only showing of the need for such services was the statement by counsel that according to witnesses, Burnett “was not himself” on the night of the occurrence, and that his acts were “completely out of character.” The report from the staff at the Topeka State Hospital did not indicate any need for further examination and evaluation. During the trial, Burnett described the events of the occurrence in great detail, more than 40 pages in the record being devoted to his testimony. Certainly no mental infirmity or aberration is indicated in the record before us.
Had the court authorized the services of Dr. Wellshear as requested, and had he found the defendant sane, then conceivably the defendant could have sought the services of one psychiatrist after another in the search for expert testimony supportive of an insanity defense. This is not required under our statutes.
We hold that under the showing made, the trial court did not abuse its discretion in denying defendant’s motion for an examination by a physician of his choice, at an unknown and unestimated cost, when highly competent psychiatrists were available for the purpose through state facilities.
We next turn to defendant’s claim that the failure of the statutes, and the earlier ruling of this court, to permit him to take an interlocutory appeal, while such an appeal is permitted the state under some circumstances, constitutes invidious discrimination and a denial of due process and equal protection of the laws.
K.S.A. 22-3603 provides for interlocutory appeals by the state in certain limited circumstances: where, prior to the commencement of a criminal trial, a warrant or search warrant is quashed, or where evidence, a confession or an admission is suppressed. As the note of the Judicial Council appended to this statute observes, the purpose of this section is to permit appellate review of pretrial rulings which may be determinative of the case. If the trial court suppresses essential evidence, an appeal by the state after trial and acquittal would resolve the legal questions — but the double jeopardy clause would bar retrial.
As Justice Fontron stated in a recent opinion:
“The right to an appeal is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or class of cases, or in any manner, or it may be withdrawn completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken. . . In re Waterman, 212 Kan. 826, 830, 512 P. 2d 466.
Defendant concedes that the state is not required to establish avenues of appellate review, but argues — and we agree — that:
", . . [Ojnce established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. . . .” Williams v. Oklahoma City, 395 U.S. 458, 459, 23 L. Ed. 2d 440, 89 S. Ct. 1818; accord, Hamrick v. Norton, 322 F. Supp. 424, 425 (D. Kan. 1970), aff’d 436 F. 2d 940 (10th Cir. 1971).
The distinction between the state and the accused is not unreasoned. It serves a valid and legitimate public purpose to permit the state access to appellate review when matters essential to a prosecution are quashed or suppressed prior to trial. An individual defendant, unlike the state, may secure complete appellate review of all adverse rulings, and may secure effective relief, through a single appeal after trial, without constitutional impediment.
Neither the equal protection clause nor the due process clause compels a contrary conclusion. In discussing contentions not dissimilar from those here advanced, we said in State v. Lee, 221 Kan. 109, 558 P. 2d 1096:
“The equal protection and due process clauses ‘emphasize the central aim of our entire judicial system — all people charged with crime must, so far as the law is concerned, “stand on an equality before the bar of justice in every American court.” ’ Griffin v. Illinois, 351 U.S. 12, 17, 100 L. ed. 891, 76 S. Ct. 585. We have found no cases, and counsel cite none, which require the state to furnish the defendant with an equal amount of funds and services as are within the reach of the state. . . . The thrust of the equal protection clause, in the area in which we are here interested, is to require that all persons be treated alike under like circumstances and conditions. . . .” (pp. 113, 114.)
As Chief Judge Murrah puts it, the requirements of the due process clause are satisfied “. . . when one charged with a state offense is tried in a state court of competent jurisdiction ‘in accordance with constitutional procedural safeguards,’ i.e., established modes of procedure. . . .” Devine v. Hand, 287 F. 2d 687 (10th Cir. 1961). Here there was no deprivation of due process.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Wilfred Mantz, appeals from a conviction by a jury of murder in the first degree. (K.S.A. 21-3401.) The weapon employed in the killing was a high-powered rifle owned by defendant. Defendant admits the shooting of the deceased, John Sharp, but claims the evidence was insufficient to establish premeditation. Defendant specifies eighteen separate points, four of which were emphasized in his oral argument on appeal.
Defendant grew up in Larned where he was a childhood friend of the deceased. Defendant was forty-one years of age at the time of the killing on August 15,1974, and had left Larned in 1948. He served two enlistments in the United States Army, after which he established a residence in California. During his residency in California defendant became acquainted with Joann Boyer whose affections later became the issue between defendant and John Sharp which culminated in the homicide. Defendant’s first marriage had ended in a divorce when he met Joann Boyer in Oakland, California, where they set up housekeeping without the benefit of marriage.
In 1974 defendant decided to return to Kansas and Joann agreed to accompany him. They again set up housekeeping in Larned in April of 1974. Joann held herself out as defendant’s wife and was introduced by him as “Joann Mantz” to friends and relatives. Defendant obtained a job at the Larned power plant and Joann obtained employment as a waitress in a local restaurant.
During his military service defendant became an expert rifleman and later acted as an instructor in the use of military rifles. He maintained his interest in rifles after his discharge from the army. Several weeks after the couple returned to Larned, Joann purchased a Ruger .44 magnum semiautomatic rifle, which she gave to defendant as a present. This rifle was the weapon used in the killing of John Sharp.
In June 1974 the deceased, John Sharp, also returned to Larned after serving in the army. Shortly after his return, Sharp was introduced to Joann by the defendant. This acquaintanceship shortly developed into more than a friendship. Sharp and Joann spent considerable time together in a local tavern, while defendant was working at the power plant, sometimes on the night shift. Early in July of 1974 defendant was informed that Sharp’s car had been parked in front of his house while he was at work.
Robert Sharp, the deceased’s brother, testified that on July 12 or 14, 1974, defendant called wanting to talk with him. Robert testified that defendant said he thought John was going with Joann; that Robert replied that he knew nothing about it, but that defendant wanted to talk about it and stated:
" ‘. . . I think John is going out with Joan.’ I told him I knew nothing about it. He told me that he wanted to talk to me about it and he stated ‘I think John is going with Joan, I’m going to kill the son of a bitch for it’. ‘I thought I would come out and tell you what he was doing’. ‘I thought I would just come out and tell you about it, if I kill him, you are going to be after me.’ He said he was going to shoot John.”
During the latter part of July and the early part of August the relationship between John and Joann intensified. There was evidence that Joann spent several nights away from defendant’s home, apparently with John. Joann eventually moved into an apartment of her own. In three conversations during this time period, according to her testimony, defendant told Joann that John had denied any involvement with her and further stated: “ ‘. . . I promised Johnny if he had been lying to me I’ll kill him.’ . . .”
On August 13, 1974, Joann spent the night with the deceased. The following day, August 14, Joann met defendant, went out drinking with him and went home with him that night. She testified:
. . We wanted to try to get back together, I was afraid because I didn’t like the arguments that we had been having. . . .”
They also spent a part of the morning of August 15 together at the Blue Lounge. They made arrangements to meet that evening at the V.F.W. Club. Instead of meeting defendant, Joann remained at the Blue Lounge with the deceased and his brother, Robert, and several other friends. She testified that during the course of the evening she received several telephone calls from Joyce Mead, a friend of defendant’s, who told her that she was at the V.F.W. Club with defendant and said: “ ‘Why don’t you leave John alone and just come up here?’ ”
The defendant and Joyce Mead, who was with him at the V.F.W. Club, both testified as to the conduct of defendant during the evening of August 15. Joyce Mead described defendant’s appearance in these words:
“ ‘Well, he didn’t act violent or nothing; in fact, he was kind of calm. He wasn’t drunk, I don’t think. He might have had a few drinks but he wasn’t drunk, and I didn’t really take him serious, either.’ ”
The testimony of several witnesses disclosed that defendant left the V.F.W. Club about 11 p.m., drove to the Blue Lounge and parked nearby where he could observe the entrance of the lounge. Shortly thereafter, Joann, the deceased, and a mutual friend, Calvin Foss, emerged from the tavern and walked across the street to the deceased’s automobile. As they were approaching the deceased’s automobile defendant backed his automobile out of the parking stall and continued in reverse until he was almost directly opposite the deceased’s automobile. Thereupon, according to the testimony of Foss, Robert Sharp and a bystander, Danny Elmore, defendant yelled: “ . Johnnie, you mother . . . I’m going to shoot you,’ and that was when he started pulling the trigger. . . .’ ” The deceased was struck in the chest, the thigh and foot. Other shots fired by defendant struck the deceased’s automobile and a nearby parking meter. John Sharp died almost immediately.
After the shooting defendant drove directly to the police station and on arrival was described by several witnesses as throwing his arms in the air, hitting the radio, yelling that he had just shot a man and that he was sorry. Two police officers handcuffed defendant, read him the Miranda warning and took him to the county jail.
At trial the shooting scene was described by several witnesses, including the defendant who took the witness stand in his own defense. He described his life with Joann Boyer, both in California and at Larned, and admitted that he had talked to several people about shooting the deceased. He testified that when he went to the Blue Lounge, just prior to the shooting, he was upset and when he saw John Sharp, Calvin Foss and Joann leaving the Blue Lounge and cross the street together:
“I don’t know what happened — I just felt this sudden anger or heat or whatever you want to call it, coming up from inside of me and I hollered and I said, ‘Johnny, you son-of-a-bitch,’ and the next thing I remember was the gun coming across in front of me like this and then everything just went black. I don’t remember squeezing the trigger or anything, and then when I came around I seen the hole in the back door and I seen Johnny slouched against the front seat and he looked hurt, although I couldn’t see any blood; and because of the hole in the back door I assumed that I had shot, and the only thing I could think of was I had to get him an ambulance — you know, and get help to him, and so I hollered and said that I was going to get an ambulance, and I drove — I just took off as fast as I could and I drove immediately to the police station or the power plant, and I didn’t realize how late it was, and I started to go upstairs, then I realized that the police station was open, and I turned and dashed in there, and well — well, you know the testimony of the witnesses.”
In his first point on appeal defendant contends the trial court erred in failing to grant his motion for a new trial on the grounds the verdict was contrary to the evidence and that there was no substantial evidence to support a finding of premeditation. The quantum of evidence to establish the element of premeditation in first degree murder was considered in the recent case of State v. Henson, 221 Kan. 635, 562 P. 2d 51, wherein we quoted with approval from 1 Wharton’s Criminal Evidence (13th Ed.), p. 227:
“ ‘Premeditation and deliberation can be found from various circumstances, such as the nature of the weapon used, the lack of provocation, the defendant’s conduct before and after the killing, threats and declarations of defendant before and during the occurrence, or the dealing of lethal blows after the deceased was felled and rendered helpless.’ ” (p. 639.)
The weapon in the instant case was a high-powered, large-bore rifle, obviously a deadly weapon. Defendant admits that five shots were fired, three of which penetrated the victim’s body. The record discloses that more than a month before the killing, defendant stated to the deceased’s brother Robert that he was going to kill John because of his associations with Joann Boyer. The same threat was repeated on at least four or five occasions to other witnesses, including a statement to Joyce Mead, during the evening of August 15, that he was going to kill both Joann and John. Finally, immediately prior to the shooting, defendant swore at the deceased and yelled, “I’m going to shoot you.” Defendant’s conduct here closely parallels that of the defendant in the first degree murder case of State v. Greenwood, 197 Kan. 676, 421 P. 2d 24, wherein defendant stated:
“ ‘I was mad and drunk, and I just walked up to the car and pulled the trigger of the gun I had. I think I shot Lucille first, and then shcit Johnny second. Have no idea how many times I fired the gun.’ ” (p. 686.)
In considering the evidence in Greenwood, we noted the presumption that a man is presumed to do that which he actually does and to intend the consequences which naturally and probably flow from his voluntary act. (citing State v. Donahue, 197 Kan. 317, 416 P. 2d 287.) We also observed that malice in law may be inferred from the use of a deadly weapon.
A reading of the record in the instant case discloses an abundance of evidence for the jury to draw an inference of premeditation and malice aforethought, as well as intent to kill the deceased. There was substantial evidence presented to establish all elements of first degree murder.
Defendant next asserts he should be awarded a new trial on the ground that his court-appointed attorneys were incompetent. We first take note that, apparently because of the seriousness of the charge, two attorneys were appointed by the trial judge to represent defendant. In general, defendant claims that one of his attorneys was newly arrived in Kansas and inexperienced in our jury trial procedure, and that the other attorney was appointed eighteen days prior to trial, which lessened the opportunity to thoroughly familiarize himself with the case. We find no request for a continuance in the record. Neither do we find any complaint by trial counsel as to the need for more time for preparation. Our examination of the record discloses that counsel did an adequate job of representing the defendant against an inherently strong case presented by the prosecution. Both attorneys were members of the Kansas Bar in good standing and may be presumed to be competent. In the recent case of Lee v. State, 220 Kan. 221, 552 P. 2d 626, the applicable rule was stated in these words:
“Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. To constitute a denial of an accused’s constitutional rights it must clearly appear that the representation of accused was wholly ineffective and inadequate. The burden is on the petitioner to show representation by his attorney was so incompetent that the total effect was that of complete absence of counsel. . . .” (p. 222.)
See, also, State v. Henry, 219 Kan. 310, 548 P. 2d 808; and Schoonover v. State, 218 Kan. 377, 543 P. 2d 881.
Defendant next complains concerning endorsement by the state of additional witnesses on the day of trial. The record discloses the state filed a request, six days before the date of trial, in which three witnesses were named. Notice of the request was served on defendant, but no objection was made as to these three witnesses. Immediately prior to trial, the state sought and added a fourth witness to which an objection was lodged by defendant and sustained by the trial court. We find no abuse of discretion shown. (State v. Rogers, 217 Kan. 462, 537 P. 2d 222; and State v. Blocker, 211 Kan. 185, 505 P. 2d 1099.)
For his fourth point defendant contends he was prejudiced by the warrantless search of his automobile. This concerns the taking by a police officer of defendant’s rifle from the seat of the automobile and five spent shell casings, one of which was on the ground beside the automobile as it was parked in front of the police station. There was testimony that the objects in question were in the plain view of the officer who removed the same and were also observed by other witnesses prior to removal. Since the objects were in plain view there was no search. (State v. Boone, 220 Kan. 758, 556 P. 2d 864; and State v. Huff, 220 Kan. 162, 551 P.2d 880.)
Defendant next complains that Officer Slack was permitted to testify as to technical evaluations of the trajectories of the bullets when he was not qualified as an expert. There was no objection to Officer Slack’s testimony at trial. Moreover, his testimony was that he had received special training at the Police Academy in sudden death seminars, as well as knowledge gained from his experience with the Larned Police Department. His testimony was mainly directed toward establishing the parallel paths of the bullets fired by defendant which was relative to the issue of intent. He gave no testimony concerning ballistics identification. Defendant also complains that Dr. W. R. Brenner, a pathologist who performed the autopsy, was permitted to testify as an expert without being so qualified. Dr. Brenner testified that he was district coroner. Again no objection was made as to Dr. Brenner’s qualifications. We find no merit in defendant’s contentions concerning the testimony of either Dr. Brenner or Officer Slack.
Defendant next complains of error in the admission of testimony concerning bullet wounds of the deceased and a reference to pools of blood at the crime scene and photographs depicting the same. Defendant says the evidence was unduly inflammatory. We do not agree. Officer Leon Schearer described a bullet wound as being large enough to have permitted the insertion of his thumb. The court overruled defendant’s objection, but cautioned the witness that his testimony was approaching an inflammatory level. The testimony in question came as a part of Shearer’s overall description of the scene of the crime and was explanatory as to whether the wound in question was an entrance wound or an exit wound which was relative to the manner of the shooting and bore on the issue of intent.
There were several photographs of the deceased’s automobile depicting shattered glass and bullet holes. In two of the photographs what appears to be small pools or puddles of blood were shown upon the pavement near the automobile of decedent. Neither of the photographs could be described as gory nor gruesome. (State v. Childers, 222 Kan. 32, 563 P. 2d 999; and State v. Steward, 219 Kan. 256, 547 P. 2d 773.)
Defendant’s point eight is directed at hearsay testimony by the witness Joyce Mead concerning a statement made to her by Joann Boyer, that the defendant was going to kill the victim, John Sharp. The testimony was cumulative of properly admitted evidence through the testimony of other witnesses, including the defendant himself. Under the circumstances the admission of the evidence does not rise to the level of reversible error. (K.S.A. 60-261.)
Defendant next contends the trial court improperly rejected his proposed “do what you think is fair” instruction as embodied in PIK[Criminal] 51.03, p. 36. The trial court correctly deleted the proposed instruction on the objection of the state. The proposed instruction was disapproved for use in Kansas in State v. McClanahan, 212 Kan. 208, 510 P. 2d 153; and this holding was followed in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290. What was said in McClanahan is dispositive of the contention herein raised:
“The so-called ‘do what you think is fair’ instruction set forth in PIK Criminal 51.03 is disapproved for use in Kansas. The administration of criminal justice in this state would nót be served by approving either the theory or form of such an instruction. The tenor of the instruction militates against our generally accepted law as to the diverse functions of court and jury. . . (p. 215.)
In point ten defendant contends:
“The court erred in denying a new trial for the defendant on the grounds that the prosecution had failed to make a bona fide effort to restrain or to locate the missing witness, Joan Mantz (Boyer).”
In the instant case a subpoena was issued by the prosecution for the attendance of Joann Boyer. Copies of this subpoena were forwarded to the sheriffs of two California counties. A “Followup Report” detailing efforts of one California sheriff to locate the witness appears in the record. Apparently, the other sheriff’s department was also unable to locate the witness. The trial court expressly found that diligent efforts were made by the state to try to locate the witness. Under these circumstances any attempt to obtain compulsory process via the Uniform Act to Secure Attendance of Witnesses From Without State (K.S.A. 22-4201, et seq.)’ would have been a useless act. (State v. Bey, 217 Kan. 251, 535 P. 2d 881.) No abuse of discretion is shown in the ruling complained of by defendant.
Defendant’s next two points concern testimony relating to a prior conviction of defendant in California. The subject of the prior conviction was first brought out by defendant in his own testimony on direct examination. Defendant testified:
“I was convicted of disturbing the peace in California, and that’s the only crime I have ever been convicted of in any state.”
On cross-examination of defendant it was brought out that the original complaint in the California case charged assault with a deadly weapon and that the complaint was filed by his ex-wife. After defendant had testified to matters surrounding the California conviction, an objection to a further question was lodged, apparently on the grounds of repetition. This objection was sustained. The matter was again brought up on cross-examination of Jack Stittsworth, who had been called as a character witness by defendant. Mr. Stittsworth was asked by the prosecutor if he had heard of defendant’s prior conviction in California. An objection was made. The trial court found that defendant had put his character into the trial, but nevertheless sustained the objection. We find no prejudicial error shown in either of the two points raised by defendant.
The defendant next complains because the trial court refused to permit the jury to view the scene of the crime. After discussing the matter with counsel, the court denied the request. Allowing the jury to view the scene of a crime is at the discretion of the trial court. (State v. Morton, 217 Kan. 642, 538 P. 2d 675; State v. Winston, 214 Kan. 525, 520 P. 2d 1204; and State v. Beasley, 205 Kan. 253, 469 P. 2d 453, cert. denied, 401 U. S. 919, 27 L. Ed. 2d 821, 91 S. Ct. 903.) Exercise of that discretion will not be overturned on appeal unless its abuse is apparent.
Defendant relied heavily upon his point fourteen at oral argument and in his brief. This concerns an in-chambers conference among court and counsel in the absence of defendant concerning instructions. After a recess for the night, at a day late in the course of the trial, the trial court met with counsel and a brief discussion was had concerning instructions. The following morning the court held a final conference on instructions with the defendant present. At this time the court observed that the conference of the previous evening was in the absence of defendant. In response to the court’s comment concerning defendant’s absence at the previous conference, defendant’s counsel consulted defendant about the matter and asked defendant, “Is it all right with you that we did this; that we’re going to go over them again today.” The defendant replied, “Yes, fine.” The court then proceeded to go oyer all the instructions with counsel. Defendant now contends that his absence at the first conference on instructions amounted to reversible error requiring a new trial. Our statute concerning the presence of a defendant in a felony case is K.S.A. 22-3405(1), which reads:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall nclt prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes.”
Defendant cites State v. Cade, 210 Kan. 544, 502 P. 2d 782, which involved the dismissal of an appeal by the defendant in a misdemeanor case because of defendant’s absence when the case was called for trial. The Cade case has no bearing on the issue here. The Judicial Council comment, following the statute, reflects that it incorporates parts of F. R. Cr. P. 43 (3 Wright, Federal Practice and Procedure [Criminal], Rule 43) and 8 Revised Code of Montana [1947], Criminal Procedure, Sec. 95-1904. An examination of Federal Rule 43, reveals that the first paragraph thereof is substantially the same as the first paragraph of the Kansas statute. In federal cases involving the rule, courts have ordinarily allowed convictions to stand despite defendant’s absence from in-chambers conferences, reasoning that this kind of conference is not a stage of the trial within the meaning of the rule or that defendant was not prejudiced since only legal matters were discussed and his counsel was there to speak for him. (3 Wright, Federal Practice and Procedure [Criminal], 1976 Pocket Part, Rule 43, Sec. 721, p. 195. See, also, Deschenes v. United States, 224 F. 2d 688 [10th Cir. 1955].)
With reference to the Montana statute the Montana Revision Commission comments:
“The settlement of instructions being no part of the ‘trial,’ within the meaning of former section, the absence of one charged with felony during such settlement does nclt constitute reversible error. .■ . .” (Sec. 95-1904, pp. 555-556.)
In State v. Hall, 55 Mont. 182, 175 Pac. 267, it was held the settlement of instructions being no part of a trial within the meaning of the statute, the absence of a felony defendant did not constitute reversible error. The Hall case was decided under a forerunner of the present Montana statute, but it is relied upon by the Commission as to what constitutes a part of the trial under the present statute.
The general rule clearly appears to be that a defendant’s constitutional and statutory rights to be present at his trial do not encompass proceedings before the court involving matters of law. Such rights are violated only if the defendant is absent when the jury is hearing the case or where he is prevented from such other proceedings where his presence is essential to a fair and just determination of a substantial issue. (21 Am. Jur. 2d, Criminal Law, Secs. 289-290, pp. 318-320; 85 A. L. R. 2d, Anno., p. 1111.)
Except for State v. Cade, supra, this court has not considered K.S.A. 22-3405 and its predecessors for many years. The statute specifically requires defendant’s presence, “. . . at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, . . .” We believe this to mean that defendant must be present at all times when the jury is present in the courtroom, except where the defendant is voluntarily absent, as set forth in the statute.
In State v. Myrick, 38 Kan. 238, 16 Pac. 330, the jury during its deliberation requested further instructions from the court. The request was submitted to defendant’s counsel, who stated they had no objections to the granting of the request providing the court submitted a further instruction in addition to that requested. The court complied with the request of counsel, the jury was recalled to the courtroom and instructed accordingly, all of which took place in the absence of defendant. On appeal this court reversed the conviction holding:
“Section 207 of the criminal code prohibits the trial of any person accused of felony unless he is personally present throughout the trial; and it is therefore error for the court, in a prosecution for felony, to recall the jury and give further instructions while the defendant is absent and under confinement in jail.” (Syl. 1.)
The Myrick case was cited with approval in State v. Clifton, 57 Kan. 448, 46 Pac. 715, wherein the hearing on a motion to quash the information in a felony prosecution was held to be a part of the trial requiring the defendant’s personal presence.
In the case at bar we are only concerned with defendant’s absence at an in-chambers conference concerning instructions. No instructions were submitted to the jury in the absence of defendant, as was the case in Myrick. While we believe it to be the better practice to require a defendant’s presence at all times during the course of his trial, we find no constitutional rights or rights under the statute violated. K.S.A. 22-3405 is mandatory and must be carefully complied with. However, the in-chambers conference in the instant case, in which no final decision as to instructions was made, cannot be said to be a part of or a stage of the trial within the meaning of the statute. Our holding here does not overrule Myrick to the effect that a defendant must be present whenever instructions are submitted to the jury. Our holding is only applicable to in-chambers conferences or off the record discussions between court and counsel at the bench involving only matters of law where a defendant’s presence is not essential to a fair and just determination of some substantial issue.
Points fifteen and sixteen are directed to statements made by the prosecutor in his closing argument. We have examined the argument, reproduced in the record, with respect to the points made by defendant and find his contention to be entirely without merit. Defendant also complains that the prosecutor made a deliberate misstatement in his opening statement concerning the time at which the murder weapon was purchased. The court gave the usual instruction to the effect that statements of counsel are not evidence. Defendant failed to object to the statement at trial and we find no basis for reversal in this regard. (State v. Campbell, 210 Kan. 265, 500 P. 2d 21.)
Finally, defendant contends that the testimony of Officer Slack in his redirect examination, in the form of an opinion, that defendant was not drunk was erroneous in that no foundation had been laid for such opinion testimony. Officer Slack was questioned at length on direct and cross-examination concerning defendant’s appearance and conduct upon his arrival at the police station after the shooting. These matters were again gone over on his redirect examination during which he expressed the opinion complained of. Officer Slack testified as to his years of experience with the police department, his training at seminars and the police academy. His testimony, about which the complaint is lodged, was merely a comparison of the appearance of defendant with that of other drunk persons that he had dealt with. We find no error in this regard.
We have carefully examined all of the points raised by defendant’s industrious counsel and find no reversible error shown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Jerry E. Cunningham, appeals from convictions by a jury of aggravated robbery (K.S.A. 21-3427) and aggravated assault (K.S.A. 21-3410). The charges stemmed from a robbery of a cashier of the Jayhawk Theater in Topeka on April 23, 1975.
The cashier, Mrs. Helen Tucker, testified that sometime around 9 p.m. a person, who was later identified by her as defendant, came to the cashier’s window, produced a revolver, pointed it through the window at her and demanded money. Mrs. Tucker gave the defendant $70.00 or $80.00 in bills, after which defendant ran from the theater. Defendant was observed by two other witnesses who were on the sidewalk at the time. One of these witnesses, Roger Pickering, saw defendant enter a pickup truck, leave it quickly and then run to a taxicab which he entered. At this point Mr. Pickering observed the police arrive and remove defendant from the taxicab. Another state’s witness, Mr. Epefanio Rocha, testified that he was in his pickup truck waiting for his wife to get off work at about 9:30 p.m., when defendant got into the pickup, pointed a gun at Rocha, and demanded that he drive off. Rocha refused and defendant exited the pickup. Police officers testified that defendant had $105.00 in bills wadded up in his pants pocket and a loaded .38 special caliber revolver. The officers further testified that at the time of his arrest defendant did not appear to be under the influence of either narcotics or alcohol.
The Shawnee County Public Defender’s Office was appointed to represent defendant. The public defender appeared for defendant in various preliminary matters until January 1976, when defendant decided to represent himself and requested that the public defender withdraw as counsel.
The record indicates that defendant was interrogated by the trial court at the time of his initial request to have the public defender withdraw. Immediately before trial, the court held a much more extensive hearing in chambers concerning defendant’s pro se representation and, after extensive interrogation of defendant and a careful admonition as to his responsibilities in undertaking self-representation, the trial judge granted defendant the right to represent himself. However, the court informed defendant that counsel from the public defender’s office would be appointed to sit beside him at trial and would be available for any advice that might be sought by defendant on matters arising at trial.
At this second hearing, the court outlined the order of trial for defendant’s benefit and explained each phase of the trial from voir dire examination through the opening statements, presentation of evidence, preparation and giving of instructions, to the closing arguments. The court also informed defendant he could testify in his own behalf or refuse to do so and that he did not have to present evidence because the state always has the burden of proof. The record discloses that at each step in the court’s explanation to defendant he was asked by the court if he understood the matters explained and defendant answered in the affirmative in each instance.
Notwithstanding the trial court’s careful explanation of procedures, defendant, in his first point on appeal, contends the trial court erred in failing to make a determination of defendant’s legal knowledge before allowing him to proceed as his own counsel. Defendant concedes the trial court went to great length to insure fairness, but now argues this inquiry did not go far enough. He asserts that the only means by which a criminal defendant can be made aware of his disabilities in self-representation is through action by the trial court in giving him:
“. . . [As] to the rule of evidence, the rules regarding foundation which must be laid before evidence may be produced, the hearsay rule, some of the more common evidentiary questions which arise in criminal trials, and the proper form for making objections. . . .”
Defendant offers no suggestion as to what course the court should pursue in case an accused should “flunk” this suggested “mini bar examination.”
Section 10 of the Bill of Rights of the Constitution of the State of Kansas specifically provides:
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; . . .”
This constitutional right of self-representation was recognized in the recent case of State v. Ames, 222 Kan. 88, 563 P.2d 1034, wherein we held the right to self-representation to be absolute. We qualified our holding, however, by pointing out that in relinquishing his right to counsel an accused must knowingly and intelligently forego the relinquished benefits associated with the right to counsel. Our holding in Ames fully accords with the recent decision in Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525. In Faretta it was held that an accused had an absolute constitutional right to defend himself, but that his decision in this regard must be “knowingly and intelligently made.”
In addressing itself to the matter of the technical legal knowledge of an accused in Faretta the court said:
“. . . We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” (p. 836.)
Thus, the critical question does not pertain to the extent of defendant’s legal knowledge, but whether he has properly been made aware of the dangers and disadvantages of self-representation — so that the record will establish that he understands what he is doing and has made his choice with his eyes open.
In the instant case the trial judge was fully aware of the Faretta decision and, in fact, read from that opinion in informing defendant of the responsibility he was undertaking. The court said:
“. . . In connection with this matter, then, I want to go over certain aspects of this Faretta case so that I am sure you are knowledgeable of your situation. The Supreme Court of the United States in this case said, ‘The right of self representation is neither a license to abuse the dignity of the courtroom, nor is it a license not to comply with relevant rules of procedural and substantive law.’ In other words, what they are saying there, Mr. Cunningham, is that I have to judge this by the same rules as if a lawyer were representing you. The fact you don’t know the technicalities in the law I cannot overlook those technicalities. If the State raises proper objections on matters of procedure and subject, do you understand that?
“DEFENDANT CUNNINGHAM: Yes, sir.”
As previously indicated, the trial court then proceeded to carefully explain the order of trial and various procedures. The colloquy between court and defendant concerning these matters consumed more than fourteen pages of the trial transcript. We believe the record fully establishes that defendant’s choice of self-representation was knowingly and intelligently made. Under the circumstances the trial court would have committed reversible error in depriving defendant of his constitutional right to self-representation.
For his second point on appeal defendant contends his right to a fair trial was denied by a statement made by the prosecutor in closing argument. The statement was:
“. . . If we are going to allow people to come in when they are charged with a crime and say, T did not know what I was doing, please turn me loose’, then what kind of a state is this going to turn into? . . .”
The record discloses that no objection was lodged at trial. Thus, the question was not preserved for our review. We have repeatedly held that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument, where no objection was lodged. (State v. Watkins, 219 Kan. 81, 547 P.2d 810; State v. Ralls, 213 Kan. 249, 515 P.2d 1205; and State v. Johnson, 210 Kan. 288, 502 P.2d 802.)
Moreover, even if the point had been properly preserved and the remarks improper, the alleged misconduct falls short of reversible error in the instant case. The sole defense was that defendant was so high on drugs that he was incapable of forming the requisite intent required. Aggravated robbery does not require a specific intent. (State v. Rueckert, 221 Kan. 727, 561 P.2d 850.) Likewise, we have held that specific intent is not an essential element in the crime of aggravated assault as defined in K.S.A. 21-3410(a). (State v. Farris, 218 Kan. 136, 542 P.2d 725.) Thus, defendant’s purported defense of drug intoxication amounted to no defense at all, and his case could not have been prejudiced by the prosecutor’s remarks. (See K.S.A. 21-3208[2].) It has long been the rule that before an objectionable statement made by a prosecutor will entitle an accused to a reversal of his conviction, it must first be made to appear that it was injurious to the accused and was likely to affect the jurors to his prejudice. (State v. King, 219 Kan. 508, 548 P.2d 803; and State v. Murrell, 215 Kan. 10, 523 P.2d 348.)
We find no error shown with respect to either of the points raised by defendant on appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an interlocutory appeal by the state following an order of the district court suppressing testimony concerning any pretrial or out-of-court identification of the defendant.
The case arose from a hit-and-run accident which occurred on June 18, 1976. Catherine Gerhardt, Donald Gerhardt, Connie Sullivan and David Sullivan were riding in an automobile when it was struck in the rear by another vehicle. The vehicle then attempted to pass their automobile and collided with it a second time. It then pulled away at a high rate of speed. The victims gave chase and eventually overtook the fleeing vehicle. As they pulled alongside the car, the errant driver pointed what appeared to be a pistol at the Gerhardts and Sullivans. Desiring to avoid further contact, they left to call the police.
During the course of the chase the victims obtained a description of the car and driver, as well as the license tag number. The tag and vehicle description corresponded to defendant’s automobile.
Police obtained a photograph of defendant. It was placed in a book along with fifteen other pictures and was shown to the victims. All the victims picked two photographs as resembling their assailant, one being defendant’s photograph. Ultimately, Connie Sullivan and Catherine Gerhardt chose defendant’s photograph as their assailant. Donald Gerhardt chose a photograph which was not that of defendant. David Sullivan stated he could not make positive identification from the photographs.
The photographic line-up was conducted by placing each witness alone in a room with the book of photographs, with the remaining witnesses sequestered. No one suggested the witness choose one photograph over any other, or that the suspect was in the group of pictures. No attention was drawn to data on the front of the pictures, nor was the witness told when the pictures were taken.
At the preliminary hearing both the Sullivans identified defendant as the driver of the vehicle. The Gerhardts were not called to testify.
On the day before trial defendant moved to suppress the photographic line-up and any identification testimony. On the morning trial was scheduled to commence the district court suppressed all pretrial and out-of-court identification testimony. It reserved ruling on any in-court identification until trial. The state moved the court to reopen the suppression hearing to rule on the reserved matter. When the court denied that motion, the state moved the court to hold a suppression hearing on the in-court identification prior to trial. This motion was also denied.
The state then made motion to this court for permission to proceed with an interlocutory appeal. (K.S.A. 1976 Supp. 22-3603.) Permission was granted on November 9, 1976. The appeal presents two issues: (l) Whether the district court erred in suppressing the pretrial and out-of-court identification, and (2) whether the district court erred in refusing to rule on the motion to suppress in-court identification prior to the time of trial.
The district court suppressed the photographic identification and subsequent preliminary hearing identification on the basis that the photographic identification procedure was such as to “direct the witnesses’ identification only to the defendant, and not to any of the other persons pictured.” This conclusion was based on the dates which appeared on the face of the photo graphs. Of the sixteen photographs one was taken in each of the years 1959, 1963, 1966, 1967, 1968, 1971, and 1976; two were taken in 1973; and seven were taken in 1972. Defendant’s picture was the 1976 photograph.
A photographic identification procedure which is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification becomes a violation of due process and will be set aside. (State v. Nesmith, 220 Kan. 146, 551 P. 2d 896; State v. Estes, 216 Kan. 382, 532 P. 2d 1283; Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.) Nothing in the record supports the district court’s conclusion that the photographs suggested to the witnesses which person was to be chosen. No one suggested which photograph was the driver, or that his picture was even in the group. The fact two witnesses thought another photograph resembled the driver indicates the procedure was not so suggestive as to point only to defendant.
A disparity in dates on photographs is not as a matter of law sufficient to invalidate a photographic line-up. This issue was recently raised and answered in State v. Mitchell, 220 Kan. 700, 556 P. 2d 874. There Mr. Justice Schroeder stated:
“Furthermore, the front of the photographs show the dates they were taken. The appellant’s photograph was taken shortly after his June 29, 1974, arrest. The other phdtographs were taken in December 1972, May 1969, April 1967 and July 1969. Because the appellant’s photograph was the most recently taken, he argues this suggested he was the robber. No basis exists for such a conclusion. As the state argues, the police could very well have recently discovered that a likely suspect was an individual who had been arrested for another offense and had been photographed several years ago. In other cases involving dates on the front of phdtographs, witnesses have ndt connected the dates on the photographs with a particular defendant. (Reed v. State, 281 A. 2d 142 [Del. Sup. 1971]; People v. Hart, 10 Ill. App. 3d 857, 295 N.E. 2d 63 [1973]; United States v. Counts, 471 F.2d 422 [2d Cir. 1973], cert. denied, 411 U.S. 935, 36 L. Ed. 2d 395, 93 S. Ct. 1909; United States ex rel. Reed v. Anderson, 343 F. Supp. 116 [D. Del. 1972]; and Frederick v. Reshetylo, 363 F. Supp. 956 [N.D. Ohio 1973].)” (pp. 705-06.)
See also, 39 A.L.R. 3d Anno., Photographic Identification — Suggestiveness, p. 1000.
We have examined the photographs. With a few exceptions the photographs portray white males with dark wavy or curly hair and long sideburns. Because the photographs were “mug shots” the height and build of the individuals were virtually obscured. We cannot say the photographic display was so improper as to be impermissibly suggestive.
By way of a caveat it should be pointed out that under certain circumstances not shown here the dates on the photographs may influence a witness in his selection of the offender. In such a situation the presence of the dates might cause the photographic identification to be impermissibly suggestive. The better practice is to block out the dates so as to eliminate any question in the matter.
It was proper for the district court to refuse to rule whether it would allow the witnesses to make an in-court identification. In order to make a determination the court must evaluate the testimony of the witnesses and determine whether there is a possibility of misidentification. (See, State v. Nesmith, supra; State v. Hill, 209 Kan. 688, 498 P. 2d 92; Neil v. Biggers, supra; Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) The court was not in a position to make a ruling until the witnesses were presented and examined. The court was correct in reserving its ruling.
The judgment of the district court is affirmed in part and reversed in part and remanded with directions to proceed in conformity with the opinion. | [
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The opinion of the court was delivered by
Wedell, J.;
This was an action to foreclose a real-estate mortgage. Plaintiff prevailed, and the defendant, Merrill, appeals.
Defendant admits the debt has not been paid, but contends the judgment must be reversed on the grounds of res judicata, the stat ute of limitations and the granting of a new trial. The first and second contentions involve a previous action to foreclose the same mortgage, the vacating of the former judgment during the same term in which it was rendered, and a later dismissal of the first action during a subsequent term of court without prejudice to a future action. The first action was brought in the name of the Fraternal Aid Union. Subsequently that company became the Standard Life Association, the present plaintiff. The first judgment of March 2, 1934, had inadvertently been taken in the name of the first plaintiff. On motion of plaintiff that judgment was set aside on May 12,1934, and plaintiff was permitted to. continue the action in the name of the present plaintiff and to make a second mortgagee an additional party defendant. The plaintiff did not insist upon immediately taking judgment against the mortgagor and the first action remained on file until April 30, 1936, when it was dismissed without prejudice on motion of plaintiff and at the costs of plaintiff. On the same day the former action was dismissed the present action was filed in the name of the present plaintiff and the second mortgagee was made a party defendant.
The note and mortgage were executed in the sum of $2,000 on September 3, 1927, and the principal note matured at the end of five years. The interest notes, five in number, were made payable annually, beginning September 3, 1928. The first petition alleged a default in interest payments on September 3, 1929. In the second action a default was alleged in interest payments on September 3, 1932, and judgment was rendered accordingly. Defendant testified in the instant case he had paid no interest after September 3, 1929.
In support of the contention of res judicata defendant directs our attention to Hyatt v. Challiss, 59 Kan. 422, 53 Pac. 467; Deming v. Douglass, 60 Kan. 738, 57 Pac. 954; Dumont v. Taylor, 67 Kan. 727, 74 Pac. 234; Bank v. Sadler, 89 Kan. 321, 131 Pac. 585; Rost v. Heyka, 133 Kan. 292, 299 Pac. 969; Shelley v. Sentinel Life Ins. Co., 146 Kan. 227, 69 P. 2d 737. The first, third and fourth cases cited are based on an early statute involving actions in ejectment. That statute was repealed many years ago and the decisions are not in point. The other cases pertain to existing judgments and hence are neither controlling nor helpful in this case.
Defendant urges the action had been previously tried on its merits and hence the claim was merged in judgment and cannot become the basis of another action. Undoubtedly that is the rule where such former judgment continues to exist. Here it no longer existed. It had been vacated and set aside. What thing then remained adjudicated? Obviously nothing. The action stood as though no judgment had ever been rendered. In 1 Freeman on Judgments (5th ed.), Vacating Judgments, § 302, the rule is stated thus:
“The general rule is that when an order or judgment is vacated the previously existing status is restored and the situation is the same as though the order or judgment had never been made. The matters in controversy are left open for future determination.”
In 34 C. J., Judgments, § 595, it is said:
“Where a judgment is vacated or set aside by a valid order or judgment, it is entirely destroyed and the rights of the parties are left as if no such judgment had ever been entered. No further steps can be legally taken to enforce the vacated judgment. But the action is left still pending and undetermined, and further proceeding may be had and taken therein. The case stands again for trial or for such other disposition as may be appropriate to the situation. A vacated judgment affords no justification for acts done before the order of vacation, except to mere ministerial officers, and affords no bar to a new action.”
■In Martin v. Baugh, 1 Ind. App. 20, 27 N. E. 110, it was held:
“Where a judgment is rendered on a joint promissory note against one of two joint obligors, the other is thereby absolutely discharged, unless the plaintiff, in some legal way, saves his right to pursue the other also.
“But if such judgment is afterward set aside and vacated, the liability of both obligors is revived.
“Whether or not a cause of action is merged in a judgment depends on the question whether there is or is not a valid judgment. If the judgment is ineffective, or coram non judice, or is reversed, or set aside, there can be no merger.” (Syl. flf 1, 2, 3.)
That a district court has full control over its orders or judgments during the term at which they are made, and may, upon sufficient cause shown, in the exercise of sound discretion, vacate its judgments, cannot be doubted. (G. S. 1935, 60-3007; Schubach v. Hammer, 117 Kan. 615, 232 Pac. 1041; Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988.) • In the instant case there was sufficient cause to vacate the judgment and no abuse of discretion in vacating it is shown. Certainly the second action was properly brought in the name of the present plaintiff. The importance of joining a second mortgagee as a party defendant has received the serious consideration of this court on several occasions and was again stressed in the recent case of Motor Equipment Co. v. Winters, 146 Kan. 127, 69 P. 2d 23. Since no prejudicial error appears, in the order vacating the former judg ment, it is obvious the vacated judgment cannot constitute an existing judgment or bar to the present action.
Was the present action barred by the statute of limitations? It is conceded the five-year statute is applicable. (G. S. 1935, 60-306, First.) The principal note was dated September 3, 1927, and was due September 3, 1932. The first action was filed April 21, 1932, and was dismissed April 30, 1936. On $he date of its dismissal the present action was commenced. Defendant contends plaintiff accelerated the maturity of the principal and remaining interest notes in its first action and that the judgment rendered therein fixed the maturity thereof as of September 3, 1929, and hence the second action filed on April 30,1936, was barred. That judgment, as heretofore stated, was vacated and hence the due date was not adjudicated thereby. The matters in controversy were therefore left open for future determination. Assuming, however, the defendant defaulted in the payment of interest on September 3, 1929, and that the due date of the debt was accelerated so as to mature it on September 3, 1929, the first action was nevertheless brought in time and remained pending until April 30, 1936. Under these circumstances, plaintiff, by virtue of G. S. 1935, 60-311, had one year after the dismissal of the first action within which to institute the second action. That statute provides:
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.” (Italics inserted.)
It has been held a dismissal without prejudice, where the new action is substantially the same as the first one, must be regarded as a failure otherwise than upon the merits. (Meyer v. Wilson, 131 Kan. 717, 293 Pac. 738.) That the second action was substantially the same as the first is clear. Moreover, the dismissal of the first action is in no wise shown to have prejudiced the rights of the defendant.
Defendant, however, urges a second action cannot be filed by virtue of G. S. 1935, 60-311, where the action has been reduced to judgment. In that contention he is in error. In support of that position he relies on what was said in the old ejectment cases, which are not in point. While he does not cite G. S. 1935, 60-3105, it is well to note its provisions. The pertinent portion thereof reads:
• “An action may be dismissed without prejudice to a future action:
“First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.
“Third. By the court for want of necessary parties.”
This particular statute was involved in the dismissal of an injunction suit, without prejudice, after judgment and a reversal by this court in the case of Schrag v. Blaze Fork Drainage District, 123 Kan. 739, 256 Pac. 979. Concerning the right to dismiss an action after judgment this court said:
“The learned counsel for appellant has cited numerous cases holding that it was error for the trial court to permit the plaintiff, after reversal, to dismiss his case without prejudice, but in nearly all of them the court had directed or indicated a more or less specific judgment. In some of them affirmative relief had been asked; in some, third parties were interested or had intervened ; in others, the rights of the successful party would possibly be lost, or the benefit of the judgment indicated would not accomplish the purpose desired or intended. We feel that this case is not one of that kind, and all the difference between the judgment rendered and the one appellant says should have been rendered is the possible expense and inconvenience of another suit or double litigation.
“ ‘Plaintiff may dismiss any claim where such dismissal will not prejudicially affect the interests of defendant, but he will not be permitted to dismiss, to discontinue, or to take a nonsuit, when by so doing defendant’s rights will be prejudiced, or he will be deprived of any just defense. Nevertheless the injury which would thus be occasioned to defendant must be of a character that deprives him of some substantive rights concerning his defenses not available in a second suit or that may be endangered by the dismissal, and not the mere ordinary inconveniences of double litigation which in the eye of the law would be compensated by costs.’ (18 C. J. 1158.)” (p. 741.)
In the instant case the costs on dismissal were taxed against the plaintiffs and defendant was deprived of no substantive right in his defense to the note or mortgage. After judgment a party is not entitled to a dismissal without prejudice as a matter of right. Whether, however, an action should be dismissed, without prejudice after judgment, is a matter which rests in the sound discretion of the trial court and in the absence of a showing of an abuse of such discretion, this court will not reverse the ruling. (Railway Co. v. Berry, 79 Kan. 19, 98 Pac. 204; Tucker v. Immanuel Baptist Church, 119 Kan. 30, 34, 237 Pac. 654.) It must, of course, be remembered the judgment in the instant case was vacated during the term in which it was rendered and while the court retained control over its judgments. The present action was not barred by the statute of limitations.
Defendant finally urges the trial court erred in setting aside its judgment in the second action after the term of court in which that judgment was rendered. A few facts will disclose the correctness of the court’s ruling. That judgment was a dismissal of plaintiff’s second action against this defendant, and was rendered on a motion for judgment on the pleadings. The judgment was rendered November 27, 1936. A motion fop a new trial was filed in time and during the same term in which that judgment of dismissal was rendered. The motion of plaintiff for a new trial was heard and overruled during the following 1937 January term of court. During the same January term plaintiff filed a motion to set aside the judgment of November 27, 1936, and to vacate the order overruling its motion for a new trial. The basis of that motion was that the trial court erred in its judgment'dismissing the second action and in its order overruling plaintiff’s motion for a new trial and that it did both on the same erroneous theory, namely, that the former judgment had been vacated after the term in which it was rendered. The order vacating the former judgment was rendered during the 1934 January term and on May 12, 1934. The trial court reexamined the court files and found it had rendered the judgment dismissing the second action and had overruled the motion for a new trial in the second action under a misapprehension of the fact that the 1934 January term had ended on May 12, 1934-, when in fact it did not end until May 14, 1934. The motion to set aside the order overruling the motion for a new trial was therefore in reality a request that the trial court reconsider its order overruling the motion for a new trial. When it reconsidered the motion for a new trial and reversed its ruling thereon, for the reason stated, the judgment of dismissal was of necessity set aside. The trial court had full power, during the term in which it ruled on the motion for a new trial, to reconsider and correct its obvious erroneous ruling on that motion. When it did correct its ruling a trial was had which resulted in a judgment for plaintiff in an amount which it is conceded had never been paid and which was long past due.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is the second appearance of this case in this court. (Gibbs v. Turner, 140 Kan. 53, 34 P. 2d 564.)
In the earlier appeal certain provisions of the will of Anderson M. Morton, of Kentucky, who died in 1883, were subjected to judicial scrutiny; and it was held, among other matters, that under the third clause of his will three nieces of the testator, Helen, Elizabeth and Mary, spinster daughters of his sister Selina Canfield, took only the income of a certain town lot in Parsons for the terms of their natural lives, and that no interest in that town lot devolved on Helen Gladys Canfield Smith, adopted daughter and heir of Elizabeth, and residuary legatee of Elizabeth’s sister Mary.
That decision was made by this court on July 7, 1934, and the cause was remanded to the district court for the purpose of ascertaining who among other claimants were entitled to the Parsons town lot under the 17th paragraph of the will.
The subsequent proceedings which are chiefly of present concern were chronicled in the district court thus:
“Now, on this 16tb day of January, 1935, the same being a regular judicial day of the November, a. d., 1934, term of said court, this cause came regularly on for trial, pursuant to assignment. Counsel for the respective parties represented herein by counsel present in court. Hon. T. R. Evans, attorney of record for defendant Helen Gladys Canfield Smith, appeared in court and stated to the court that he was satisfied his client by judgment of the supreme court of Kansas in case of Gibbs et al. v. Turner et al. (140 Kan. 53) was by the judgment of said court excluded and barred from claiming any right, title or interest in lot twenty-one (21), block twenty-six (26), in the city of Parsons, Labette county, Kansas, and withdrew from the case. It is therefore by the court considered, ordered, and adjudged that the defendant, Helen Gladys Canfield Smith, be, and she is hereby and by the court excluded and forever barred of any right, title, claim or interest in and to said described premises, and every part and portion thereof. The further trial of this case is hereby continued to February 4, 1935, at the hour of 9 o’clock a.m. of said day. W. D. Atkinson, Judge Pro Tem.”
Later proceedings were had in the district court to ascertain who were entitled to interests in the property, and final judgment thereon was not entered until March 10, 1937.
From this latter judgment Helen Gladys Canfield Smith seeks to prosecute this appeal. This she cannot do. The final judgment of (the district court which bound her was rendered on January 16, 1935; and since she did not appeal from that judgment within the time allowed by law (G. S. 1935, 60-3309, since amended, Laws 1937, ch. 268, § 2) there is nothing this court can do about it. In Clark v. Spruens, 103 Kan. 218, 220, 173 Pac. 275, it was said:
“In this state, not only may judgments, intermediate or final, be brought up for review while certain features of the cause are undisposed of below (Civ. Code, §565), but they must be so brought within six months, or the right of review may be lost entirely. (Citations.)”
In Cross v. Hodges, 124 Kan. 672, 261 Pac. 585, it was said:
“Where the interpretation of a will was properly drawn in question, the judgment of a district court of competent jurisdiction, whether correct or not, is a finality — where all parties concerned in the will and in the judgment were properly impleaded, and where no appeal was taken from that judgment within the time allowed therefor by the code of civil procedure.” (Syl. ¶ 2.)
We note, of course, that on October 5, 1936, which was 1 year, 8 months and 20 days after final judgment had been pronounced against her, appellant employed other counsel, who filed pleadings in the cause, but the record shows that the trial court correctly gave those pleadings no consideration.
No error open to our review is made to appear, and the appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
The city of Kanopolis brought this action to recover or cancel a refunding bond of the city which it had entrusted to the custody of one R. E. Booth, Jr., a bond broker, who breached his trust and without right thereto delivered the bond to the defendant, Helen F. Mountain, as security for a debt he owed to her.
In 1933 the city of Kanopolis had an outstanding bond debt of some $25,000, which it determined to refund. There was no attorney resident in Kanopolis and it had no regularly employed city attorney. To procure the services of an attorney, the city council adopted a resolution—
“That the city clerk be authorized to employ an attorney at as reasonable a figure as possible to take care of any and all legal matters pertaining to issuance of sucb bonds.”
Pursuant thereto, Y. E. Danner, of the law firm of Danner and Dulaney, of the near-by city of Ellsworth, was employed as attorney, and he set about the drafting of appropriate resolutions, ordinances, and publication notices pertinent to the refunding of the city’s indebtedness. Shortly thereafter one R. E. Booth, Jr., representing himself as a bond broker, came on the scene, and entered into a written agreement with the city to handle the bond issue, to negotiate with the holders of the outstanding bonds for their exchange for bonds of the refunding, issue, and to provide for the printing, registration, and to pay all legal expenses pertaining thereto, and to provide a transcript of the proceedings and any other requisite details— the agreed compensation for these services to be four percent of the total proposed refunding bond issue of $25,625. In making this agreement Booth had associated himself with Dinner and Dulaney; but whether this agreement was intended to supersede the contract of employment of Danner as city attorney is not clear. Neither is the question raised whether Danner’s participation in the city’s contract with Booth had the effect of terminating his special employment as city attorney for the city.
Be that as it may, the proper proceedings leading up to the point where the refunding bonds were ready for registration by the state auditor had all been transacted in due form. The new bonds were dated and serially numbered; some of them, including No. 25, were in denominations of $1,000 each, and all were signed by the mayor and city clerk; and the city clerk certified on each bond that it had been duly registered in his office.
At this stage of the proceedings the city clerk delivered the bonds to R. E. Booth, Jr., who took them to Topeka, presented them and the pertinent transcript to the state • auditor, and that officer registered them, and on each bond he placed his official certificate reciting:
“Office of the Auditor of the State of Kansas :
“I, Will J. French, auditor of the state of Kansas, do hereby certify that a transcript of the proceedings leading up to the issuance of this bond has been filed in my office and that this bond was registered in my office according to law; this October 31, 1933.
“Witness my hand and official seal.
(Seal) Will J. French, Auditor of the State of Kansas.”
After such certification by the state auditor, Booth delivered one of the bonds, No. 25, for $1,000, to Helen F. Mountain, as partial security for a debt of $1,500 he owed her, which indebtedness had arisen because of Booth’s conversion to his own use of some securities she had previously entrusted to him.
In this action plaintiff’s petition alleged certain pertinent facts, and further alleged that when the bonds were delivered to Booth it was with instructions to deliver them to Attorney Danner at Ells-worth, so that Danner could take them to Topeka, together with a transcript of the proceedings, for presentation to the state auditor, and so that upon proper scrutiny and approval thereof that officer would register the bonds and certify thereto as the statute provides. Plaintiff further alleged that defendant knew or should have known that Booth did not own the bond in controversy and that he had no right to its possession; that defendant paid no consideration for it; that the bond was negotiable and that she was threatening to transfer it to persons who might claim to be innocent purchasers for the value without notice. Plaintiff’s prayer was for the return of the bond or for its cancellation, or in the alternative for its value, and for an order restraining defendant from transferring or disposing of it.
The answer of the defendant admitted her possession of the bond and that it was negotiable, and that she had delivered to Booth certain securities of the value of $1,500 for the purpose of selling or exchanging them for others; that Booth had converted those securities to his own use, and had thereby become indebted to her for their value; and that Booth had sent his agent, one Dobbin, to her for the purpose of settling that indebtedness, and that Dobbin delivered to her the bond in controversy as collateral security, and that she accepted it as such.
Defendant further alleged that the bond was valid on its face, signed by the mayor and clerk of the plaintiff city, and bore the seal of the city and bore the certificate and seal of the state auditor, and that she had no information that Booth did not have good title to the bond at the time Dobbin, his agent, delivered it to her.
Plaintiff’s verified reply denied that Dobbin was the agent of Booth and denied that Booth was the agent of plaintiff.
The cause was tried before a jury. The evidence took a wide range, and developed a controversy touching the purpose for which the bonds were entrusted to Booth, and revealed some inconsistency between the city’s evidence in this case and its verified pleadings filed in a prior inconclusive lawsuit in replevin for the possession of the bonds of this same refunding issue, but it may not now be necessary to critically examine those incidents.
The jury returned a general verdict for defendant, and answered special questions thus:
“1. Were the bond forms, after having been signed by the mayor and attested by the eity clerk with the seal of the city, turned over to R. E. Booth, Jr., with instruction to deliver the same to Y. E. Danner, of Ellsworth, Kan.? A. No.
“2. Did R. E. Booth, Jr., obtain the registration of said bonds by the state auditor without the consent of the city of Kanopolis? A. No.
“3. Did the defendant, at the time bond No. 25 was delivered to her, have actual knowledge that the title of R. E. Booth,-Jr., was defective, if you find that it was defective? A. No.
“5. Do you find that defendant obtained the bond in question from R. E. Booth, Jr., or his agent or representative, in bad faith? A. No.”
Judgment was entered accordingly, and plaintiff appeals, making various contentions, the first of which is that the bond which defendant now holds was not a complete and valid instrument when it was entrusted to Booth, and in consequence defendant is not entitled to the privileges of an innocent holder.
This contention is essentially a challenge of the long-established rule of “estoppel by recitals” which has given credit and marketability to Kansas municipal bonds, and to those of the country in general for the last sixty years, at least. A few of the early decisions of the United States supreme court on this subject are cited in Board of County Commissioners of Day County v. State of Kansas, 19 Okla. 375, 91 Pac. 699. In that case, among other defenses to plaintiff’s action to recover on a series of judgment refunding bonds issued by the county, it was pleaded that the bonds were not issued pursuant to any law of Oklahoma Territory; that there was no session of court on the date of the judgment authorizing the refunding bond issue; that the county had no valid indebtedness to be refunded; that no notice was given of any intended action of the board of county commissioners to issue the bonds; that the bonds were issued in excess of the amount of indebtedness the county was authorized by statute to incur; and other objections of a like nature. The bonds themselves, however, contained a recital that they were issued under authority of a specified territorial statute. Another recital read:
“And it is hereby recited, certified and warranted, that all acts, conditions and things required to be done precedent to and in the issuing of this bond have been properly done and performed in regular and due form required by law.” (p. 383.)
The bonds were signed by the chairman of the board of county commissioners, and attested with the signature and seal of the county clerk; and appended thereto was a certificate of their registration bearing the signature and seal of the auditor of Oklahoma Territory.
The court made short work of these pleaded defenses, thus:
“As to the effect of such recitals, and the fact that the plaintiff in error is bound thereby, see 62 U. S. 539, Knox v. Aspinwall; 99 U. S. 86, Hackett v. Ottawa; 105 U. S. 342, Ottawa v. National Bk.; 103 U. S. 683, Walnut v. Wade; 89 Fed. 619, Waite v. Santa Cruz; 65 U. S. 287, Bissell v. Jeffersonville.” (p. 406.)
Looking into some of the cases just cited, in Commissioners of Knox County, Indiana, v. Aspinwall et al., 62 U. S. 539, 16 L. Ed. 208, the suit was to recover on certain interest coupons of a county bond issue.- Various defenses were urged and disposed of, including the legal question whether the county had statutory authority to issue the bonds, and having answered that question in the affirmative, the opinion of the court continued:
“The bonds on their face import a compliance with the law under which they were issued . . . The purchaser was not bound to look further for evidence of a compliance with the conditions to the grant of the power.” (p. 545.)
In Walnut v. Wade, 103 U. S. 683, 26 L. Ed. 526, which was a suit to recover on the interest coupons of an issue of township bonds in Illinois, the supreme court noted the fact that the bonds contained recitals averring that they were issued by authority of a specified statute and said:
“The plaintiff, therefore, being a bona fide holder, was not bound to look beyond the legislative act and the recitals in the bonds.” (p. 695.)
In Rose’s elaborate notes to the supreme court cases just cited, in 16 L. Ed. and 26 L. Ed., there is a wealth of later cases to the same effect, with no intimation that the potency of their ruling has been weakened with the lapse of time.
Our own cases are to the same effect. In Finnup v. School District, 94 Kan. 695, 146 Pac. 349, 148 Pac. 245, the action was to recover on certain bonds and their related coupons issued by a school district. The defense interposed was that they were issued without authority, and were not issued in conformity with the statute cited in the text of the instruments. But this court said:
“A school district is liable to an innocent holder on its refunding bonds issued under chapter 50 of the Laws of 1879, where the bonds recite that all acts, conditions, and things required to be done precedent to and in the issuing of the bonds have been properly done, happened and performed in regular and due form as required by law, although there is a certificate of the district board accompanying the bonds, purporting to recite some, but not all, of the steps taken preceding the issuance of the bonds, the certificate not contradicting the recitals in the bonds.” (Syl.)
In our recent case, Board of Education v. Powers, 142 Kan. 664, 669, 51 P. 2d 421, this court recognized that the rule still exists in all its potency although not applicable in that particular case, since the bonds had not yet gotten into the hands of an innocent holder. We said:
“We do not have before us a situation where by reason of delay in instituting action rights of third parties may have intervened. As was said in State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618:
“ ‘Technical questions as to the validity of a bond issue should be raised early or waived — for the good of the municipality itself as well as for the protection of those who invest in the bonds. (Finnup v. School District, 94 Kan. 695, 146 Pac. 349, 148 Pac. 245.)’ (p. 842.)
“See, also: The State, ex rel., v. Comm’rs of Kiowa County, 39 Kan. 657, 19 Pac. 925; The State v. Wichita County, 62 Kan. 494, 64 Pac. 45; South Hutchinson v. Barnum, 63 Kan. 872, 66 Pac. 1035; Ritchie v. City of Wichita, 99 Kan. 663, 666, 163 Pac. 176, and Note 86 A.L.R. 1057, 1096.” (p. 669.)
In South Hutchinson v. Barnum, 63 Kan. 872, 66 Pac. 1035, the city sought to resist a suit on certain matured interest coupons pertaining to an issue of its municipal bonds which had been acquired by an innocent holder, but this court said:
“The city council of a city of the third class is the authority designated by law to determine whether all acts precedent to its right to issue funding bonds have been performed, and a recital in a funding bond that all such precedent acts have been performed, certified to by its mayor and clerk, concludes the city in an action by an innocent purchaser of such bonds or the coupons detached therefrom. (Citations.)” (p. 875.)
To avoid the force of this array of precedents (which might be indefinitely multiplied) it is suggested that most, if not all, of the cases we have just cited were decided before the negotiable-instruments act became the law of this state. (Laws 1905, ch. 310; G. S. 1935, 52-101 et seq.) And counsel for the city direct our attention to section 22 of the act, which reads:
“Where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.” (G. 8. 1935, 52-215.)
It was argued, that the bond was negotiated to defendant by-Booth before it was a completed instrument, and likewise without authority, consequently it was not a valid instrument in the hands of this defendant. But that argument would cast on defendant the responsibility of inquiring whether the recitals in the text of the instrument and in the certificates of the city clerk and the state auditor were true. That duty cannot be required of one who accepts the bond for a lawful consideration without notice of infirmities — • if indeed there had been any infirmities. Hfe may implicitly rely on its recitals. Moreover, the jury’s findings, which were justified by the terms of Booth’s contract with the city, as well as by the evidence inherent in the circumstances to which the jury gave credence, were to the effect that the bonds were not entrusted to Booth for delivery to Danner, who was to take them to Topeka for registration by the state auditor (finding No. 1), and that Booth did have the consent of the city to have that detail attended to himself (finding No. 2); so that the argument that the bond was incomplete when acquired by defendant cannot be sustained. Broadly speaking, municipal bonds are negotiable, as both parties to this action concede. (State, ex rel., v. Comm’rs of Kiowa Co., 39 Kan. 657, 19 Pac. 925, and citations; 1 Jones on Bonds and Bond Securities, 4th ed., sec. 285 et seq.) But whether they are governed in all respects by the negotiable-instruments act, in view of the possibility that although fair on their face the municipality may have lacked statutory authority to issue them, is debatable. (See Coquard v. Village of Oquawka, 91 Ill. App. 648, 192 Ill. 355, 61 N. E. 660; Phoenix Mut. Life Ins. Co. v. City of McAllen, Tex., 82 F. 2d 581.)
And in view of the-terms of Booth’s contract with the city and the jury’s findings Nos. 3 and 5, the contention that the bonds were negotiated without authority is not maintainable against this defendant. Indeed, if Booth had faithfully carried out his contract with the city and had gotten hold of the older outstanding bonds in exchange for the new refunding issue, as he had agreed to do, and as the city had agreed to permit him to do, no one would have the hardihood to contend that he had negotiated them without authority.
And the foregoing conclusions render it quite superfluous to consider the power of the city clerk to delegate his duties to a subagent, or whether the contract between the city and Booth was legal, or any other questions which assiduous counsel have urged in behalf of the city.
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The opinion of the court was delivered by
HutohisoN, J.:
This was an action by the Champlin Refining Company, a corporation of New Mexico, against the secretary'of state of Kansas, to recover under G. S. 1935, 17-709, $375, being a part of the franchise fee of $500 paid by the refining company under protest, claiming that the method used by the secretary of state in computing such fee was unlawful, arbitrary and discriminatory and denied the plaintiff due process and equal protection of the laws as guaranteed by the fourteenth amendment to the constitution of the United States.
The defendant answered, denying that any arbitrary or discriminatory method in making the calculation of the amount of tax was used, and named the various statutes authorizing the method and plan followed by the secretary of state, which had been followed uniformly since the enactment of the laws on this subject.
The case was tried upon an agreed statement of facts of which the fifth, sixth, seventh and eighth are especially involved in the controversy as to the method being discriminatory. They are as follows:
“5. It is admitted that in arriving at the amount of the fee due to the state of Kansas from the plaintiff foreign corporation, computation was made in the manner alleged in paragraph 3 of the petition, to wit: that plaintiff’s report showed that the issued capital stock of the plaintiff for the period covered thereby, consisted of 1,098 shares of preferred stock having a par value of $100 each, and 159,812 shares of common stock of no par value, and that the actual aggregate value of the aforesaid capital stock was $2,413,730. That the surplus of the plaintiff as shown by the report was $5,324,429.42; and the aggregate capital, plus surplus, was $7,738,159.78.
“That the report further showed that the total value of the property owned and business done by the plaintiff in 1935 was $17,833,574.15¡ — of which $1,524,-821.78 represented the property owned and business done in the state of Kansas; and further that the property owned and business done by the plaintiff in the state of Kansas represented 8.55 percent of the total of its business.
“That in computing plaintiff’s fee under the terms of section 17-702, the defendant ascertained the proportion of its capital stock allocable to the state of Kansas, by multiplying plaintiff’s capital plus surplus ($7,738,159.78) by the aforesaid percentage, 8.55 percent. From this method, it appeared that the capital stock of plaintiff allocable to the state of Kansas was $661,612.67, upon which amount the annual fee would be $500.
“6. It is further stipulated and agreed that it is the uniform practice of the secretary of state of the state of Kansas, in computing a corporation’s annual fee under the provisions above set forth, insofar as all stock having a fixed par value is concerned, to compute the fee upon the basis of the par value of the stock without reference to surplus or undivided profits, or any other factor than the face or par value of the stock.
“7. It is further agreed that since the enactment of chapter 150, Laws of 1921, section 12 (G. S. 17-312), the secretary of state of Kansas has computed fees due to the state „of Kansas from all corporations, both domestic and foreign, having nonpar stock in the following manner:
“If the total sum of capital, plus surplus, is equal to or exceeds $100 for each share of nonpar stock, then such stock is considered the equivalent to a share of stock having a nominal or par value of $100, and fees are assessed by the secretary of state upon that basis.
“If, however, the total sum of capital plus surplus is a sum less than $100 for each share of nonpar stock, then the secretary of state, for the purpose of determining the actual value of the stock, pursuant to G. S. 17-312, computes the tax by the method outlined in paragraph 5 hereof.
“8. The Champlin Refining Company has been at all times mentioned herein and is now engaged in both interstate commerce and local business within the state of Kansas.”
The trial court found “that the action of the secretary of state in assessing the tax against the plaintiff corporation was not arbitrary and was not discriminatory.” From this finding and judgment thereon in favor of defendant the plaintiff appeals.
The secretary of state raises a preliminary question as to the jurisdiction of this court to hear and determine a case of this character, insisting that the matter of computing the amount of such franchise tax is purely administrative and not judicial, and citing the statute under which the hearing was had in the district court which made no provision for an appeal; also citing the recent inheritance tax decision (National Bank of Topeka v. State, 146 Kan. 97, 68 P. 2d 1076) and other Kansas cases along the same or similar lines.
G. S. 1935, 17-708, gives a corporation the right to -be heard by the secretary of state upon the matter of determining the amount of fees due under the provisions of this act, and further states that—
“Any corporation aggrieved by the decision of the secretary of state may, within ten days, appeal to the governor, the attorney general and the state bank commissioner, whose decision in the matter shall be final.”
The following section, 17-709, is in part as follows:
“If any corporation is aggrieved at the amount of the fee exacted of it under this act it may pay the same under protest, and such fee shall be kept by the secretary of state in a special fund, and the corporation may bring suit in the district court of Shawnee county, Kansas, to recover said fee or such part of it as may be just and equitable. . .
It will be observed from these two sections that the matter before the district court, and now before this court, was not an appeal from or a review of the determination of the governor, attorney-general and state bank commissioner, for their decision was made final by statute, but this is an original action authorized by the second statute above quoted. It has been brought by the aggrieved corporation to recover such part of the fee assessed as may be equitable, after having paid the entire fee under protest. The duty of the trial court was limited to a determination of the method used in arriving at the amount of the fee being equitable or arbitrary and discriminatory. If an appeal is proper, it would necessarily be along the same line and would be only to determine whether or not the method of computation was arbitrary and discriminatory.
The decision in the inheritance tax case, swpra, is based upon a different plan of procedure. The case in the district court concerning the same was not an original action, but only for a review of the order made by the tax commission on the petition of the aggrieved party for an abatement of the tax or part thereof. The closing part of G. S. 1935, 79-1517, is as follows:
“Provided, however, That any such executor, administrator, trustee or grantee may apply to any district court of competent jurisdiction for a review of any such order, and until final decision shall be entered by any such court such money shall not be refunded by said county treasurer.”
In the opinion in the inheritance tax case, on page 101, it was said:
“The executor aggrieved by the order of the commission was not authorized by G. S. 1935, 79-1517, to institute an independent action against the state of Kansas, the inheritance tax commission, or the county treasurer, to recover money claimed to have been wrongfully exacted. A remedy was, however, provided. The. remedy, was limited by the statute which created it. That remedy was restricted to a review of the order of the commission. The statute does not provide for an appeal to the district court nor for further procedure there as in an original action.”
In an earlier paragraph of the opinion a distinction was clearly drawn between proceedings under this section and under the section of the chapter concerning income tax.
No provision was made in the statute for appeal to this court in the inheritance-tax statute nor in the statute in the case at bar.
In the case of Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, it was held that the supreme court had no authority to entertain an appeal under the workmen’s compensation law of 1927, and in the opinion it was said:
“In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. . . . The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself. . . .
“It is argued that the right to appeal to this court has been recognized in condemnation and drainage cases as well as some others, but in none of those acts did the statutes substitute new and distinct remedies with a procedure of their own as in the act under consideration.” (pp. 649, 650.)
The income-tax case of Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1, is cited to show that the duty cast upon the tax commission was administrative and that the function of the trial court upon appeal was to see that the action of the commission was not fraudulent, unreasonable, arbitrary, oppressive or discriminatory, and not to substitute its judgment for that of the commission. In that case there was no question about the right of appeal to the supreme court, that being specifically mentioned in the same section which granted an appeal to the district court.
The supreme court has general appellate jurisdiction even if a distinct mention of it in some particular line of procedure should be omitted. Section 3 of article 3 of the constitution of Kansas is as follows:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law. . . .”
G. S. 1935, 20-101, is as follows:
“The supreme court shall be a court of record, and in addition to the original jurisdiction conferred by the constitution, shall have jurisdiction in all cases of appeal and proceedings in error from the district and other courts in such manner as may be provided by law. . .”
G. S. 1935, 60-3302, says the supreme court may reverse, vacate or modify any of the following orders of .the district court, naming four such, and the next section defines a final order as follows:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment.” (G. S. 1935, 60-3303.)
The following sections of the same chapter are pertinent as to the application of the code to actions in general, viz., 60-3822, 60-3823 and 60-3824. The concluding sentence of the last-named section is as follows:
“Where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly.”
In the case of Pritchard v. Comm’rs of Greenwood Co., 26 Kan. 584, it was said:
“Of course where a remedy is given by statute, and the whole procedure for such remedy is also given in the statute or in some other statute, the civil code cannot apply; and where the remedy is such that in the nature of things the civil code cannot apply, of course it has no application; but where the procedure for the enforcement of the remedy is not given by statute, or where only a portion of the procedure is given by statute, then the civil code must govern so far as it can have any application thereto.” (p. 588.)
In the case of Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617, it was said:
“No procedure is prescribed for the enforcement of the right, and whenever the legislature gives an action but does not designate the kind of ■ action or prescribe the mode of procedure therein such action shall be held to be the civil action of the code of civil procedure and shall be proceeded in accordingly.” (p. 254.)
This doctrine was approved in .'the case of Harwood v. Railway Co., 101 Kan. 215, 171 Pac. 354.
We conclude, in line with these decisions based upon the general provisions of the code, that whenever the legislature gives an action but does not designate the mode or extent of procedure therein, such action should be held to be the civil action of the code of civil procedure, including the general right thereunder to appeal to this court.
The plaintiff corporation insists that the method pursued by the secretary of state in arriving at the amount of its annual franchise fee for the privilege of doing business in Kansas is contrary to the provisions of the statute directing the manner of determining such fee and is arbitrary and discriminatory and in violation of the fourteenth amendment to the constitution of the United States.
G. S. 1935,17-702, is in part as follows:
“Every foreign corporation, for profit, now or hereafter doing business in this state, and owning or using a part or all of its capital in this state, and subject to compliance with the laws relating to the admission of foreign corporations to do business in Kansas, shall make a report in writing to the secretary of state, annually, on or before March 31, showing, in such form as the secretary of state may prescribe, the following facts as of the 31st day of December next preceding the date of filing.
“. . . Upon the filing of such report the secretary of state, from the facts thus reported and any other facts coming to his knowledge bearing upon the question, shall determine the proportion of the issued capital stock of the company represented by its property and business in Kansas, and shall charge and collect from such company, in addition to the initial fees, for the privilege of exercising its franchise in Kansas, an annual fee upon that proportion of such foreign corporation’s issued capital stock as is devoted to its Kansas business.
The same statute then enumerates the classifications as to amounts of such fees, among others, when the issued capital stock used in Kansas exceeds $100,000, but does not exceed $250,000, the annual fee shall be $125. When the issued capital stock used in Kansas exceeds $500,000, but does not exceed $1,000,000, the annual fee shall be $500, and in the same manner the statute designates the fees in other classes both smaller and larger. It may be observed that under this statutory classification there is a recognized wide difference. In the last one above designated the fee is the same for two companies whére one is twice as large as the other. We do not think it was the intention for it to be exactly proportional, but only within reasonable limitations or classes.
Appellant calls our special attention to the language of the above statute that the fee is to be based upon the proportion of the issued capital stock of the company and insists that the surplus should therefore not be included in the calculation. Of course, appellant has in mind the value of the issued capital stock, but nowhere in this long section is the word "value” used in connection with this phrase “issued capital stock.” We are inclined to think these words are so used to distinguish the issued capital stock from, and to avoid the calculation being based upon, the authorized capital stock. Even if we would consider those words in connection with the value thereof, that would not be in harmony with the ninth paragraph of the same section which designates one of the items the corporation is required to set out in its annual report to the secretary of state:
“The value of the property owned and used by the company in Kansas, where situated, and the value of the property owned and used outside of Kansas and where situated.” (G. S. 1935, 17-702 [9].)
Since 1921 we have had a law in this state defining nonpar stock and prescribing ways and methods of handling and taxing companies carrying its property in this way. G. S. 1935, 17-311, is as follows:
“Except as to any preferences, rights, limitations, privileges and restrictions, lawfully granted or imposed with respect to any stock or class thereof, shares of stock without nominal or par value shall be deemed to be an aliquot part of the aggregate capital of the corporation issuing the same and equal to every other share of stock of the same class.”
Two portions of the next section (17-312) are as follows:
“For the purpose of computing any capitalization or other statutory fee; or, any tax or taxes, the determination of which is based on the par value of shares of stock, and for the purpose of any statutory provision limiting the relation between indebtedness and capital stock, each share of stock without nominal or par value issued under the provisions of this act may be considered the equivalent to a share having a nominal or par value of one hundred dollars; or, the actual value of such stock or any other basis may be adopted which will justly carry out the provisions of the statutes of this state . . . In any investigation or proceeding to determine the value of the property, assets, or capital stock of a corporation having shares without nominal or par value under the provisions of this act, neither the stated capital of such corporation nor the number of shares of its outstanding stock without nominal or par value shall be controlling, but the same may be disregarded, or considered only to such extent as shall be necessary or proper for the purpose of such investigation or proceeding.”
These sections contain the rules which the agreed statement of facts states were followed by the secretary of state in reaching a determination of franchise fee in this case. It will be observed there are three ways in which each share of stock without nominal or par value may be considered, (1) the equivalent to a share having a nominal or par value of $100, (2) the actual value of such stock, or (3) any other basis which will justly carry out the provisions of the statute. Since the actual value of the stock and surplus in this company is shown to have been much below $100, the first of the three methods would have made the franchise tax very much larger than what it was determined to be under the second method, which was used by the secretary of state. Appellant insists that this section and the three prescribed methods apply to domestic nonpar stock.' Without discussing whether they do so or not, we refer to G. S. 1935, 17-505, which says foreign corporations doing business in this state shall be subject to the same rules and provisions as domestic corporations, using the following language:
“Any corporation organized under the laws of another state, territory, or foreign countiy, and authorized to do business in this state, shall be subject to the same provisions, judicial control, restrictions, and penalties, except as herein provided, as corporations organized under the laws of this state.”
Section 17-311, above quoted, by the use of the words, “aggregate capital,” necessarily adds something to the meaning of the words “issued capital stock,” many times repeated in section 17-702, above quoted, and helps to confirm the view that more than the value of the “issued capital stock” was intended to be included in the calculation.
Reference is made to G. S. 1935, 17-303, for the purpose of showing that the term “capital” does not include surplus, and that section •does provide that “stated capital,” issued without nominal or par value, shall be the capital with which the corporation will begin business, increased by any net additions thereto or diminished by any net deductions therefrom, and shall not include any net profits or surplus earnings until they are transferred to capital. This makes a slight distinction, as the section specifically defines “stated capital,” which may possibly under such definition be different from “issued capital stock,” but the section merely excludes net profits or surplus earnings from being added to the capital until it is so shown on the books of the corporation over and above its liabilities.
A copy of the report filed with the secretary of state shows the value of the property owned and used by the company, but. does not show the liabilities that were deducted. However, the agreed statement of facts shows the surplus above and beyond the naked value of the stock, which surplus is several million less than the report shows the value of the property to be, which doubtless covers the items of liability which are omitted from the report. The report and the agreed statement of facts are sufficient, we think, to come within the requirements of the section last above cited.
The case of Air-Way Corp. v. Day, 266 U. S. 71, 45 S. Ct. 12, 69 L. Ed. 169, is cited where the United States supreme court held a tax based on the authorized nonpar shares was not reasonable and was in violation of the fourteenth amendment of the United States constitution. A large number of shares of the company had never been issued, but they were included in the determination of the amount of franchise tax. We have 250,000 authorized shares in the case at bar, but only the issued shares (159,812) were taxed.
The case of O’Gara Coal Co. v. Emmerson, 326 Ill. 18, 156 N. E. 814, also involved the feature of authorized capital stock being counted in estimating the franchise tax of a foreign corporation, but it also concerned the method of. computing nonpar stock of foreign corporations at $100 a share in imposing a license tax which the supreme court of Illinois held was a denial of equal protection and, due process and was arbitrary. The agreed statement of facts in the case at bar completely takes this case out of the rule stated in the O’Gara case, supra, because the second paragraph of agreed statement of facts, section 7, shows the practice to be that the value of nonpar stock is never regarded as $100 per share unless and until the capital and surplus equals or exceeds $100 per share.
The case of Southwestern Bell Telephone Co. v. Middlekamp, 1 F. 2d 563, was cited and held the imposition of $25 franchise tax on corporations with no par value stock, but requiring other corporations to pay tax based on outstanding capital stock and surplus, was in violation of the equal-protection clause. It also held that classifications must be reasonable and not arbitrary and must rest on some ground of difference having fair and substantial relation to the object of legislation so that persons similarly circumstanced should be treated alike.
Another Missouri case cited is St. Louis-San Francisco Ry. v. Middlekamp, 256 U. S. 226, 41 S. Ct. 489, 65 L. Ed. 905, which involves the question of double taxation because the company being taxed was a corporation of the state of Missouri but did an interstate business, and although the taxation for franchise purposes was on a percentage basis, it was upheld.
In the case of Quaker City Cab Co. v. Penna., 277 U. S. 389, 48 S. Ct. 553, 72 L. Ed. 1927, the court held that the imposing of a tax on gross receipts of a corporation operating taxicabs, when no such tax was imposed upon individuals or partnerships engaged in the same business, deprived the corporation of the equal protection of the law. This* can be recognized as a strong decision in favor of the equal-protection principle, but the facts are far afield from those in the case at bar. It is not claimed in our case that any outfit under like circumstances was exempt or free from the payment of franchise tax. It is only claimed that in the method of computing the amount of tax there is an inequality. The opinion last cited states that the equal-protection clause does not “forbid classification in that connection, 'but it does require that the classification be not arbitrary but based on a real and substantial difference having a reasonable relation to the subject of the particular legislation.’ ” (p. 400.)
The agreed statement of facts in this case shows that the secretary of state used the par value of the stock as a basis of value in all cases where the stock had a par value. If the capital and surplus of a corporation with nonpar stock equalled or exceeded $100, then it was estimated on the basis of $100 per share, and if the capital and surplus of a nonpar stock was less than $100 for each share, the proportion of capital and surplus allocated to the state of Kansas was the basis for determining the franchise fee. Under this plan the par and the nonpar companies were treated exactly alike as far as it was reasonably possible to do so, and it would be unreasonable to put nonpar companies with stock of less value than $100 in the $100 class. Of course, the excess above $100 per share, both par and nonpar, would apparently escape taxation, but to avoid this it would require something more accurate than classification. It would require actual and definite figures for each case without any classification.
It seems to us this distinction and classification is fair and reasonable and is based on a real and substantial difference. The very fact that the work being done in this matter is a classification recognizes there is a difference and therefore a necessity for classes as nearly alike as reasonably possible, as they seemed to be in this case. (See, also, 36 A. L. R. 795.)
We think the equal-protection clause was in no way violated in determining this franchise tax and that the method of determination and the assessment of the tax in this case was neither arbitrary nor discriminatory.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover benefits claimed to be due under a policy of health insurance, and from a judgment for plaintiff the defendant appeals.
For convenience we shall refer to the appellant as the company, and to the appellee as the insured. In December, 1921, the company issued to the insured what was called a special commercial disability policy, provisions of which are quoted below. In September, 1922, the insured suffered an illness, and upon presentation of his claim the company commenced to pay him weekly payments of fifteen dollars, and continued to do so until May, 1936, when it ceased, claiming it was no longer liable under the policy. There is no dispute that insured has been and is suffering from diabetes in some form. One of his medical witnesses testified that diabetes is not now curable; that insured could not perform any acts of his business as an oil-well caser; that he takes large doses of insulin three or four times a day, and that his condition will continue for the rest of his life. Other witnesses testified concerning his ability to work, and that his condition varied — he would become somewhat worse, and then make some improvement. The company’s medical witnesses also testified at length about insured’s condition, and that he had diabetes. Without stating definitely what was meant by the word “convalescent,” all the doctors agreed that insured was not convalescent, for he was not making recovery.
So far as we need now notice, the company defended on the ground that the insured was not convalescent within the meaning of paragraph (i) of the policy. A clear understanding of that paragraph is more easily arrived at by considering it in connection with paragraph (h). The two read:
“Schedule of Illness Indemnities
“(h) In the event that the insured shall suffer from, and continuously and necessarily be confined within the house by any bodily illness, not hereinafter excepted, which begins not less than fifteen days from the date of this policy, and while it is in force, the company will pay, for one day or more during'the first week, after the first visit of a legally qualified physician or surgeon other than the insured, at the rate of fifteen dollars per week, and at the rate of fifteen dollars per week thereafter as long as the insured lives and is by reason of such illness continuously and necessarily confined within the house and therein be regularly visited by a legally qualified physician or surgeon other than the insured.”
“While Convalescent
“(i) While convalescent, and if following a confining period of total disability, and confinement within the house, as specified in paragraph (h) he shall be continuously wholly disabled and prevented from performing any act pertaining to his occupation and continues under the care of a legally qualified physician or surgeon, other than the insured, but shall not be necessarily confined within the house, the company will pay weekly indemnity of fifteen dollars so long as the insured lives and said nonconfining illness and total disability continues.”
The company directs our attention to various definitions of the word “convalescent” and argues therefrom that insured, being no longer convalescent, is not entitled to recover further under the policy.
Reference to Webster’s International Dictionary, second edition, shows the following definitions:
“Convalesce, v, to gather strength; to recover health and strength, esp. gradually after sickness or weakness; to get better.”
“Convalescent, adj., recovering from sickness or debility; partially restored to health or strength.”
Other dictionaries give similar definitions. The company also directs our attention to Heymann v. Continental Casualty Co., 147 La. 1078, 86 So. 550, where it was held that
“Convalescence ... is the gradual recovery of health or physical strength after illness.” (p. 1079.)
Acceptance of the definition, however, does not determine the force and effect to be given paragraph .(i) quoted above.
The paragraph! and all its parts must be read together. In Sheets v. Life Insurance Co., 116 Kan. 356, 225 Pac. 929, where there was dispute as to which of two clauses of a health insurance policy was applicable, it was said:
“It was competent for the parties to stipulate that insurance should be paid according to the degrees of sickness which incapacitated the insured for work or business. They agreed that it should be measured by confinement to the house, and the court is not warranted in ignoring or eliminating an unambiguous provision included by the parties in their contract. The entire contract should be considered together and effect given to every part of it, and the clause relating to nonconfining sickness can no more be ignored than those limiting the time for which insurance shall be paid. To do so would be to make a different contract than the parties had made for themselves.” (p. 358.) ■
And see, also, Richardson v. Interstate Business Men’s Accident Ass’n, 124 Kan. 685, 261 Pac. 565, where a similar contention was decided.
A somewhat analogous situation to that in the case at bar is disclosed in Wenstrom v. Aetna L. Ins. Co., 55 N. D. 647, 215 N. W. 93, 55 A. L. R. 289, wherein it was contended the insured was not entitled to benefits under a clause in the policy reciting:
“ ‘And if such disability was sustained before the insured attained the age of sixty years, the company will pay to the life beneficiary the sum of ten dollars for each thousand of the sum insured and will pay the same sum on the same day of every month thereafter during the lifetime and during such disability of the insured.’ ” (p. 652.)
In discussing the meaning of the last phrase of the above clause it was said:
“What is the meaning of this phrase, ‘during the lifetime, and during such disability of the insured’? If the disability must be incurable and continue during the life of the insured, it would be sufficient to say that the same sum would be paid on the same day of every month during the lifetime of the insured. Is not this provision in the policy the same as if the contract said, will pay the same sum on the same day of every month during the lifetime of the insured, and as long as he is disabled? We must assume that the phrase ‘or during such disability of insured,’ means something, and if it means anything it means that the amount will be paid during such disability, whether it be for life, for years, or for months, and it would seem that it is placed there to cut off the indemnity in case the insured recovers. It is settled law that, in construing insurance policies, the language of the entire policy must be considered, and when capable of two constructions the most favorable to the insured must be given. Under this rule we are of the opinion that the words, ‘and during such disability of the insured,’ qualifies the preceding language in that paragraph so as to permit a recovery when the disability is curable, but the indemnity ceases if the insured recovers. From this construction it follows that the insured is entitled to the indemnity during the entire period of his disability.” (p. 652.)
It is true the first words used are “while convalescent,” but the obligation is not so limited; it does not say merely the company will pay weekly indemnity so long as the insured is convalescent and his nonconfining illness and total disability continues. It does say unmistakably that it will pay weekly indemnity “so long as the insured lives and said nonconfining illness and total disability continues.” (Italics ours.) If the company’s contention is to be sustained, the words “insured lives and” must be expunged and treated as not appearing in the paragraph. We are not at liberty to so treat the matter.
It is apparent that the definition of “convalescent,” as above noted, must be reconciled with the clause “so long as the insured lives and said nonconfining illness and total disability continues,” if that be possible, or if they cannot be reconciled, then the whole paragraph may be said to be ambiguous. If the latter be true, then the paragraph should be construed against the appellant and favorably to the appellee. (See Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 429, 7 P. 2d 65, and cases cited.) We are of the opinion, however, that as used in the paragraph it was not intended to limit the word “convalescent” to its strict meaning of recovery of health in its fullest sense. As used, it meant that period of time between the confining period of total disability, as defined in paragraph (h), and the time the insured either died or so far recovered from his nonconfining illness that he was no longer totally disabled. To hold otherwise is to ignore entirely that part of the contract whereby, other conditions assumed, the company agrees to pay insured so long as he lives.
The various specifications of error all grow out of the above question and need not be separately mentioned. None of them can be sustained.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original action in disbarment in this court commenced on January 4, 1934, by the state board of law examiners and the attorney general of the state of Kansas against H. F. Gorsuch, a member of the bar of this state, residing at that time in Kansas City, Wyandotte county, Kansas, charging him with violating his oath of office as an attorney at law and with conduct-unbecoming a member of the legal profession, in eight accusations.
The accused first filed objections to the sufficiency of the accusations, which objections were overruled by this court. After that, and on the 19th of March, 1934, the accused filed a verified answer in the form of a general denial. The Hon. John L. Hunt was by this court appointed commissioner in the case to hear the evidence and make findings of fact and recommendations to this court in the premises. He heard the evidence and made findings of fact and recommendations supporting the findings in an able manner and with many authorities. The recommendations of the commissioner, which are advisory to this court, were that accusations one -and three be sustained and the others be not sustained. The evidence heard by the commissioner has been abstracted and submitted to this court, together with briefs by the state board of law examiners and the attorney general in support of the accusations and by counsel for the accused in his defense.
The evidence shows that prior to the filing of these accusations a grievance committee of the bar of Wyandotte county had a hearing as to the professional conduct of the accused, and evidence was introduced as to some of the same matters involved in these accusations, the local bar being represented by counsel and the accused being present in person and also being represented by counsel. The accused on that hearing testified at great length concerning several of the matters involved in these accusations. The secretary of the grievance committee and the stenographer who took the testimony and the oral proceedings in the hearing before the grievance committee testified before the commissioner as to the taking of the oral testimony and proceedings in shorthand and its being transcribed in typewriting, and the stenographer testified as to the correctness of the typewritten copy, after which the accusers offered it in evidence.
Serious questions are raised as to the competency of such evidence because it is not shown that the witnesses so testifying before the grievance committee were regularly sworn as witnesses or that such committee had power and authority to administer the oath or to direct the administering thereof. But the accused was present and made numerous admissions and explanations of the matters then and now under consideration, and there can be no question as to the competency of admissions then and there made by the accused or his failure to deny or modify statements made against him. (2 Wigmore on Evidence, 2d ed., §§ 1058, 1059.)
This matter is of particular importance because the accused did not appear in person nor testify in the hearing before the commissioner, although he was ably represented by counsel throughout that hearing and by brief before this court.
A further objection to the competency of the testimony taken by the grievance committee is because parts of it are apparently hearsay. However, any such parts can easily be eliminated and disregarded.
The first five accusations concern different phases of the same subject matter, namely, the collection and disposition of $1,250 from the Chicago, Milwaukee and St. Paul Railway Company on account of the death of Francisco Calderon, an employee of that road, on August 1, 1928. The sixth, seventh and eighth accusations are concerning three other separate matters.
The first accusation charged the accused with having on or about October 17, 1928', been guilty of moral turpitude and with having violated his oath of office and the duties imposed upon him as an attorney at law by representing to the public administrator of Wyandotte county and leading him to believe that Francisco Calderon was at the time of his death, about August 1, 1928, a resident of Wyandotte county, Kansas, and had left personal property in that county at the time of his death of the value of about $10, requiring immediate care and attention by an administrator, which false representations led the public administrator to make application to the probate court of said county for appointment as administrator of the estate of the deceased, whereas such representations were false and untrue in that Francisco Calderon was killed in Wisconsin and was not at the time of his death a resident of Wyandotte county and had no personal property whatever in Wyandotte county. There is an abundance of testimony showing the deceased was not a resident of Wyandotte county and had no personal property therein, and not a word of evidence to the contrary. In the brief of the accused the misrepresentations are attempted to be excused because the procedure brought about was the most effective and the least expensive. We know of no excuse that would justify a member of the bar in representing to a public officer that a deceased person was a resident of a certain county and had personal property therein at the time of his death when the attorney knew such statements were untrue.
The second accusation charged the accused with having caused and procured the appointment and qualification of the public administrator as administrator of the estate of Francisco Calderon so that the accused might bring about and effectuate a compromise of a damage claim for the alleged wrongful death of the deceased by the railway company while the deceased was in the employ of such company and thereby procure from the railway company, through such appointment by the probate court, the sum of $1;250, to the end that the accused might appropriate approximately one half thereof to his own use and benefit under the pretext that it was an attorney fee and that the accused did come into possession of the $1,250, less the fees of the court and public administrator, and that he at no time was the attorney of the public administrator. Whereby he embezzled and appropriated to his own use and benefit the sum of $577.80. We have difficulty in agreeing with the conclusion of the commissioner that the only part of this accusation which tends to show improper action on the part of the accused was covered by the first accusation.
The first accusation contained nothing as to the purpose and design of the accused in making the false representations therein enumerated, nor did it contain any charge of his having obtained from and through such public administrator $1,250 to the end that he might appropriate nearly one half of it to his own use and benefit under the claim and pretext that it was an attorney fee. It is argued that because he was not the attorney employed by the public administrator, but was employed by the widow under a contract, he had a right to an attorney fee as from her. But he claimed employment by the public administrator in his testimony before the grievance committee, as the following questions and answers will indicate:
“Q. Did you hear Mr. Peterson [public administrator] just testify that he never hired you? A. I did.
“Q. Do you recall yourself testifying that he did hire you? A. Well, I know this, that I presented the matter to him and told him I could get this and wanted to know if it would be all right to go ahead, and he said yes, we would have to go before the court and get permission of the court, and in that way he did hire me. He never signed any written contract, but we had an oral agreement that I should go ahead and handle the .case for him as public administrator.”
He unquestionably never was the attorney of the public administrator, but he claimed to be such, and continued to claim such authority at the time of the hearing before the grievance committee, which was long after he had acquired for his own use and benefit nearly one half of the $1,250 collected. That is the wrong with which he was charged in the second accusation, and he was not exonerated therefrom by later showing he had a contract for attorney fee with the widow.
The accusation is established by the admissions of the accused. No attorney can honorably pursue a course to his own advantage on the theory that he is representing one client, especially an officer, and later attempt to relieve himself from censure for such misconduct by showing that he represented another party. False colors in court, when made by a member of the bar under oath as an attorney and under the code of ethics, cannot be tolerated, especially when made for personal gain. We conclude that the second accusation includes charges in addition to those contained in the first, and those charges are sustained by the evidence and largely by the admissions of the accused.
The third accusation involved misrepresentations and untrue statements similar to those contained in the first, except that they were made later and concerned the children of the deceased. It charged that under the date of October 7, 1930, the accused filed and presented in and to the probate court his verified petition for appointment as guardian of the persons and estates of the three minor children of Francisco Calderon, deceased, they being of the ages of seven, five and two years. The petition stated that these children were residents of Wyandotte county, Kansas, on October 7, 1930, while he well knew that said children were citizens and residents of the Republic of Mexico; that such false representations to the probate judge were made to the end that the probate court would rely thereon °and appoint him as the guardian of the children, and that the probate court did rely on such statements and did appoint him as guardian; that he took the oath of office and gave bond and continued to be such guardian, and that he did so to the end that he might obtain possession of some of the property belonging to said children and appropriate a portion thereof to his own use and benefit. There is no question about the statement that was made as to the residence of the children being untrue and that it was made by the accused to accomplish a purpose to his benefit. We concur in the recommendation of the commissioner in sustaining this charge.
The fourth accusation is too much like the second to justify a separate accusation. It outlined and charged the same financial matters, but in different language, and concluded with a charge that is substantially different from that in the second accusation, substituting for the charge of embezzling and appropriating to his own use and benefit the charge that the taking and applying such sum of 1577.80 to his own use and purposes was unconscionable and wrong in that it constituted a grossly excessive charge and compensation for any services rendered. The charges are inconsistent and cannot both stand. We have sustained the second and therefore cannot sustain this one.
The fifth accusation charged the accused with representing to the court in applying for appointment as guardian for the three children that the value of their property was $300, whereas the value was $577.80, and that said misrepresentation was made by the accused so that he might embezzle and appropriate the difference to his own use and benefit; that very soon thereafter the sum of $577.80 came into his hands as such guardian, having been paid to him by the administrator of the estate of Francisco Calderon, deceased, and immediately upon receipt of said sum the accused embezzled and converted to his own use approximately one half thereof. Along the same line of reasoning as we followed in sustaining the second accusation, we think this fifth accusation was supported not only by sufficient evidence but it must be sustained also as a charge of misappropriating money belonging to the children to the use of their guardian without any order of the probate court. It is urged, on the contrary, that through the power of attorney issued to Saturnino Calderon, who employed the accused as attorney for the widow and children to collect such damages from the railway company on the basis of a fifty percent attorney fee, the mother of the children authorized and gave the guardian the right to deduct such fee from the amount he received as guardian from the administrator. The widowed mother of the minor children may have had such authority to arrange by power of attorney for the employment of an attorney for her children and to agree upon the amount of compensation to be allowed, but when such attorney goes into court and is appointed guardian, he only pays out such sums as he is directed to pay by the probate court. No application of any kind was made to the probate court and no order of any kind was made by the probate court after the appointment of the guardian. It was a misappropriation of guardian funds to the use of the accused, and no claim of its being an attorney fee will help it without the approval and order of the probate court.
A few facts, and particularly dates, as shown by the abstract, will be informative as to the matters covered by.these five accusations:
The petition for appointment of administrator of the deceased was made and filed on October 17,1928.
On March 15, 1929, the administrator asked the court to amend the original petition by showing there were other heirs of the deceased besides the widow, namely, three children. This amendment was allowed and it showed that the widow resided in Mexico.
On March 25, 1929, the administrator received from the railway company $1,250.
The petition of the accused for appointment as guardian for the children was filed October 7,1930.
On October 11, 1930, the administrator issued one check to the accused for $577.80, the other for the same amount, possibly earlier.
The accused testified that he paid one half of the money he re ceived as guardian to Saturnino Calderon, holding a power of attorney from the mother of the children, and has nothing left in the guardian fund. There was other testimony to the effect that the guardian had paid only $54 to the one having the power of attorney from the mother.
The sixth accusation charged the accused with failure to perform and discharge his duty as an attorney at law in a voluntary bankruptcy case where an adjudication in bankruptcy was declared, but the final discharge was delayed because of the failure of the accused to pay the necessary costs out of the funds paid him for that purpose and for his fee of $50. The referee in bankruptcy and his office clerk testified before the commissioner as to what the records showed and the conversations had with the .accused and the notices sent about the necessity of the payment of the balance of the costs. . A part of the evidence taken by the grievance committee was that of the wife of the petitioner in bankruptcy and evidence of accused. But the wife of the debtor in bankruptcy later made an affidavit modifying, almost to the extent of contradicting, some of the most important statements formerly made by her, which, together with the evidence given on the subject by the accused, weakens the proof as to the charge of neglect of duty on the part of the accused so that we concur in the recommendation of the commissioner that the accusation is not sustained by the evidence.
The seventh accusation charged the accused with having offered a party $50 as a commission if he would induce a certain other party, a relative, to employ the accused as his attorney in certain litigation. The only evidence in support of the charge was by the wife of the party offered the commission, and she later made an affidavit to the effect that all she knew about the matter was hearsay and that was not from her husband. The accused positively denied making any-such offer. Under these circumstances the accusation was not sustained.
The eighth accusation was a charge of neglect of duty as an attorney at law in a replevin action. Only one witness, the client himself, testified on this subject, and such testimony was given before the commissioner. His evidence showed some points accomplished by his attorney, the accused, and some lost, and a final losing of the case. No serious failure or neglect of duty of the attorney in handling the case was established.
We conclude by holding that the charges made in'the first, second, third and fifth accusations are sustained and that they justify the disbarment of the accused, H. F. Gorsuch, from the practice of law in this state because of his moral turpitude, misappropriation of funds to his own use and benefit, breach of his oath as an attorney at law and violation of the code of ethics. He is therefore disbarred and his license to practice law in the state of Kansas is canceled. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action wherein plaintiff asked that he be installed as one of the directors of a corporation, for the reason that he should have been declared elected for the years 1936 and 1937, rather than the defendants, who were declared elected. The judgment was for defendants. Plaintiff appeals.
The petition alleged that the corporation was organized with an authorized stock of 40,000 shares; that soon thereafter, at a stockholders’ meeting, the board of directors was authorized to issue capital stock of the corporation for 30,000 shares; that on the same date the officers were authorized by the directors to issue the same number of shares; that the number of directors of the corporation was five; that no rules, minutes or bylaws ever were made to authorize, nor did the board of directors or stockholders in any meeting ever authorize the issuance of more than 30,000 shares of stock. The petition then alleged that the plaintiff on the 12th day of November, 1935, was the owner of 1,000 shares of the capital stock of the corporation and it was registered on the books of the corporation in his name; that at the annual stockholders’ meeting of the corporation on the 7th day of January, 1936, when the name of stockholder Malloy was called, stockholder Lugenbeal informed the officers that he had a written proxy from Malloy; that notwithstanding this, Malloy responded as present in person and insisted on voting his stock; that Lugenbeal then and there exhibited a written proxy showing that Malloy had executed this proxy for a consideration of $7.50 and that it was still in force; that notwithstanding this the president of the company ruled that Malloy should have the right to vote his own stock notwithstanding the Lugenbeal proxy. The petition further alleged that at the same meeting it appeared that Bredehoft, the secretary of the company, and James, the president, had in December, 1935, issued a certificate of stock •for 500 shares to James; that this 500 shares was over and above the 30,000 shares legally issued by the company; that the right of James to vote this 500 shares was challenged; that notwithstanding this, James was permitted to and did vote his 500 shares of stock; that'the Malloy 300 shares and the James 500 shares were voted for Harris and Bredehoft for directors; that these two received the same number of votes each and a less number of votes than James; that Lugenbeal received the next highest number of votes and P. L. Courtright the next highest; that James thereupon declared himself, Bredehoft, Harris, Lugenbeal and Courtright duly elected directors; that had the 500 James shares not been voted for Bredehoft and Harris the plaintiff Klein would have received a higher number of votes than either Bredehoft or Harris and would have been declared elected by the president; and that had the 300 shares of Malloy stock not been voted for defendants Bredehoft and Harris, Klein would have been declared elected. The petition prayed that the district court render a declaratory judgment finding that the 500 shares of James stock were illegally issued at this election and that Malloy had no right to vote his 300 shares and that instead of Bredehoft and Harris being elected C. P. Klein be declared duly elected.
This petition was filed April 21,1936. Some time after the annual election for 1937 plaintiff filed a supplemental petition in which he alleged about the same facts for the 1937 election as were alleged about the January, 1936, election, except that no reference was made to the Malloy stock. The same relief was asked for 1937.
A demurrer was filed to this petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants; that the cause of action sought to be alleged in the amended petition no longer existed and that the amended petition and supplemental petition improperly joined several pretended causes of action. This demurrer was sustained by the trial court. The appeal is from that judgment.
It will be noted that the appeal reached this court at the December session for hearing arguments. Even should summary action be taken and judgment be ordered for plaintiff on the petition and the relief sought here be granted the plaintiff, it would be too late for benefit to be had by the plaintiff for 1937. It should be noted furthermore that this case comes here upon a demurrer to the petition of plaintiff, and should the judgment sustaining a demurrer to the petition be reversed time to answer would be given defendants and trial would be necessary and the better part of 1938 would have passed before a final disposition could be had of the case. It would thus appear that the question is moot as far as the relief sought by plaintiff is concerned. This court will not give judgments which cannot be made effective. (See Stebbins et al. v. Western Union Telegraph Co., 69 Kan. 845, 76 Pac. 1130.) See, also, Hurd v. Beck, 88 Kan. 11, 45 Pac. 92. This case was an action in quo warranto to determine the right to a public office. This court held:
“In quo warranto proceedings to determine the right to a public office where the term of such office expires before a decision in the case is reached the proceedings, will be dismissed.”
Plaintiff argues that this case is a declaratory-judgment action as defined in G. S. 1935, 60-3127 and 60-3132. We have examined the above statutes and the pleadings in this case. We conclude that this is not the sort of a case in which this court will enter a declaratory judgment. In other words, there is no actual controversy. In Kittredge v. Boyd, 137 Kan. 241, 20 P. 2d 811, this court said:
“Even in a case where a mere declaratory judgment is sought, an actual controversy must exist before this court or the district court would have jurisdiction to make a binding adjudication concerning it.” (p. 242.)
See, also, Garden City News v. Hurst, 129 Kan. 365, 282 Pac. 720.
Furthermore, we do not have before us in this record any pleadings as to what is apt to happen at the January, 1938, meeting. For aught that appears in this record the defendants will not do any wrong at that meeting. This court cannot reverse a judgment of a trial court on what counsel say may happen or, indeed, is pretty sure to happen at some time in the future when no pleading of anything of that sort was before the trial court. Plaintiff asks us to look ahead to what defendants are pretty likely to do in January, 1938, and to say such conduct would not be legal. We cannot do that.
In view of what has been said we have concluded there is nothing upon which a judgment of this court could operate, even should we agree with appellant as to the law, or any way in which a judgment could be made effective at this time, and the appeal is therefore dismissed. | [
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The opinion of the court was delivered by
HutchisoN, J.:
One Myron M. Henderson, on November 22, 1935, filed with the board of county commissioners of Montgomery county a verified claim for refund of taxes paid under protest, which, after due consideration, was rejected. From that ruling the claimant appealed to the district court, and in response to a motion a bill of particulars was filed in that court. It set out the amount of taxes paid under protest by him and others whose claims for excess taxes paid were assigned to him for the years 1933 and 1934, that they were based upon illegal and incomplete budgets, having been made and published by the city of Coffeyville and school district No. 3 of Montgomery county, for the purpose of determining the proper amount of taxes to be assessed for the years 1933 and 1934, and alleged that said city and school district omitted from the budgets cash balances on hand and anticipated revenue and included in the budgets items that should have been charged against individual property owners and also certain excessive items, enumerating them in detail. Attached to the bill of particulars as exhibits were copies of the protests filed with the county treasurer for the two years "when the excess taxes were paid, and the bill of particulars concluded with a prayer for the recovery of such excess tax from the board of county commissioners of Montgomery county.
The county filed an answer, which was in effect a general denial of the allegations contained in the bill of particulars.
The case was tried by the court under a request for findings of fact and conclusions of law. At the close of the evidence offered by the claimant the court sustained the. demurrer of the county board to the evidence of the claimant as to his right to recover the 1933 excess taxes paid and overruled the demurrer as ,to the taxes of 1934, and at the close of the evidence the court made findings of fact and conclusions of law as to the budgets, protests and taxes of both years. The conclusion of law was “that the protests were not sufficient and the application for refund should be denied.” Judgment was rendered for the defendant board disallowing the claims of the claimant and overruling claimant’s motions for judgment on the findings and for a new trial, and claimant appeals.
The court went into great detail in its findings as to the excess of items contained in the budgets of the city and school district for both years and found certain items were excessive and other items were omitted entirely. It also found that claimant had appeared at the hearing on the proposed budget of the city and also of the school district and protested against the same and the levy therefor in the year 1933, but did not appear at the hearings as to the budgets for the taxes of the year 1934, nor protest against the same, but did protest to the state tax commission against the levies made for the taxes of that year, which protest was denied by the state tax commission. The findings included full copies of the two protests made when the taxes were paid. The one made on June 20,1934, when the taxes of 1933 were paid, was a protest against the levy of the city tax because it was excessive and illegal to the extent of 14.702 mills in violation of chapters 316, 309 and 319 of the Laws of 1933, and against the school levy because it was excessive and illegal to the extent of general levy .25 mills and bond and interest levy of .527 mills in violation of chapters 316, 309 and 319 of the Laws of 1933, giving the figures in detail showing the excessive and omitted features of the budget from which figures the excessive levy might be calculated.
The protest as to the payment of excessive and illegal levy of the taxes of 1934 was much shorter than that made for the taxes of 1933. It cited the same laws as being violated, and stated that the city levy for the taxes of 1934 was “excessive and illegal to the extent of 9.219 mills, in violation of chapters 309, 316 and 319 of the Laws of 1933,” without setting out any of the excessive or illegal items or figures from which such, a conclusion could be reached.
The trial court, in its findings, stated items which it found to be excessive or omitted in the budgets of both years, but made no conclusion of law thereon. The first year was disposed of by the sustaining of the demurrer to claimant’s testimony because, as is argued in the briefs, the protest was insufficient in reference to the laws that had been violated in the making of the budgets for the taxes of 1933 as they referred to the Session Laws of 1933 instead of those of 1931. The conclusion of law as to the taxes of 1934 was also on account of the insufficiency of the protest made when those taxes were paid.
In this second year’s protest there is no contention that the reference to the laws being violated is wrong or insufficient, but that the protest filed failed to comply with the requirements of G. S. 1935, 79-2005, which was in force at that time, and required that a written statement be filed with the county treasurer at the time of paying the taxes “clearly stating the grounds on which the whole or any part of said taxes are protested, and shall further cite any law, statute, or facts on which such taxpayer relies in protesting the whole or any part of such taxes, and shall further state the exact portion of said tax which is being protested.”
In the case of Kansas Gas & Elec. Co. v. Dalton, 142 Kan. 59, 46 P. 2d 27, which was one to recover alleged excessive and illegal taxes paid under protest, it was held that—
“The written protest required by R. S. 1933 Supp. 79-2005 to be filed with the county treasurer by a taxpayer who protests the payment of his taxes should state clearly the grounds of protest and cite any law, statute, or facts on which the taxpayer relies. The statute contemplates that this statement shall contain all of the grounds upon which the taxpayer protests the payment of the taxes. The fact that it is sufficient as a protest on one ground does not authorize the taxpayer to seek upon other grounds the recovery of the taxes paid.” (Syl. If 2.)
Under these requirements as to the contents of the protest we agree with the trial court that neither of these protests was sufficient.
In the case of Chicago, R. I. & P. Rly. Co. v. Paul, 139 Kan. 795, 33 P. 2d 304, it was held:
“The action of a board of county commissioners in making higher levies of taxes for the general fund and for the road and bridge funds of the county than the published budgetary estimates would appear to justify was not a sufficient basis for the recovery of any portion of such taxes paid by plaintiff under protest.
“The remedy of a taxpayer aggrieved by the exeessiveness of a proposed tax levy above the budgetary requirements was primarily by protest and objection at the time and place designated for that purpose in the publication notices prescribed in chapter 310 of the Laws of 1931, and not by payment of taxes under protest and by subsequent action to recover the alleged excess.” (Syl. flit 1, 2.)
In the body of the opinion it was said:
“While the act of 1931 required more formality than theretofore in the matter of estimating fiscal requirements, and gave the taxpaying public an opportunity to protest and object to the budgetary estimates of taxing officials, it made no such-fundamental difference in the pertinent law as to warrant such an action as the one instituted by plaintiff. The remedy for excessive levies was by protest and objection at the time and place prescribed in the published notice, and to be made before the excessive levies were actually made and certified to the county clerk. Unless the levies were grossly excessive, and on that point we express no opinion, plaintiff’s statutory redress of timely protest and objection to the taxing officials, however inadequate, was its exclusive one.” (p. 797.)
In chapter 319 of the Laws of 1933, section 19a, a provision was added, which was not contained in the enactments of 1931, with reference to the rights of the taxpayer to protest. That section, compiled as G. S. 1935, 10-1120, is as follows:
“The levying of a tax by any municipality which raises more money than is used or needed for the tax year shall not be the basis of a protest by any taxpayer and all such protests shall be of no force or effect.”
In the case of Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936, this section was under consideration with reference to the power of the tax commission, which power was vested by other statutes, and it was held that it—
“. . . . is a distinctive feature of the cash-basis law; and it does not supersede nor limit the powers vested by other statutes in the state tax commission for its proper administration of the state’s system of taxation.” (Syl.)
In the opinion it was said:
“The statute does not say — and no reasonable application of the rules of statutory construction would justify its interpretation to mean — that the general provisions of the taxation statute are to be superseded and that an excessive levy of taxes is hereafter to be remediless to an aggrieved taxpayer. The apparent purpose of this statute of 1933 was that in its endeavors to get its fiscal affairs on a cash basis the taxing district was not to be harassed with litigation because its official board and one or more of its taxpayers might disagree as to the amount of money the budgetary needs of the district would require; and that neither the judgment of the district court nor of this court should be invoked to interfere with the discretion of the taxing officials as to the amount of money required to conform to the purpose of the cash-basis act.” (p. 624.)
This holding and expression of opinion was a matter where the tax commission held that the levy was excessive and the ruling of the court was in sustaining the order of the tax commission.
In the second count of the case at bar the tax commission held that the levy was not excessive and denied the relief sought by the claimant in this case. However, there was no appeal taken from the ruling of the tax commission, and this action is based entirely upon the protest filed with the county treasurer at the time of paying the taxes.
The claimant cites many items contained in the budget or 'shown by the evidence to have been improperly omitted from the budget, which would tend to make the levy excessive and illegal, and cites several paragraphs of the budget and tax-levy laws concerning the same. Applying this argument to the second count of the bill of particulars, which is all that could properly be done inasmuch as the first count was disposed of by demurrer to the evidence, we have the facts and-figures which would tend to make the levy for the taxes for the year 1934 excessive and illegal, but none of those facts, except the naked conclusion of excessive levy in a certain amount, were stated in the protest. Even if they were excessive, they were not shown to have been in excess of the statutory limitation and were therefore not void, and there is contained nowhere in the bill of particulars an allegation of the levy being fraudulent or made for a fraudulent purpose. It was held under similar circumstances in the case of State, ex rel., v. Peal, 136 Kan. 136, 13 P. 2d 302, that—
“A tax levy, within the limits of the statute, is not void because a larger amount is levied than actually required, unless the amount is so grossly excessive as to show a fraudulent purpose in making the levy.” (Syl. IT 2.)
Claimant cites the case of Baker v. Consolidated Rural H. S. Dist., 143 Kan. 695, 56 P. 2d 109, in support of his contention that the court should permit the recovery of taxes paid under the circumstances above set out, whether any protest was made or not. That case was brought by taxpayers against a consolidated school district and the two districts which had gone together to make the consolidated district, for relief against misappropriation of taxes paid under a void levy. Some of the teachers of the consolidated district had already procured judgments for their salaries against the consolidated district, although they had been employed by one of the two districts that had gone together and not by the consolidated district. One of the two districts levied a tax to pay such salaries and the first half of such taxes had been paid. It was alleged in the petition that there was actual collusion and connivance on the part of the members of the consolidated district to defraud the taxpayers, and it was held under such circumstances and proof that—
“The proceedings considered in an action by taxpayers to prevent misappropriation of a fund in the hands of the county treasurer, consisting of taxes paid under a void levy, made under circumstances constituting fraud at law, and held, the taxpayers were entitled to the relief prayed for, although the taxes had been paid without protest.” (Syl.)
Claimant cites the Zimmer case, supra, and the case of City of Iola v. Hobart, 141 Kan. 709, 42 P. 2d 977, in support of his view of the law that the claimant shouhbrecover where the cash-basis law has not been strictly followed by the officers of a taxing district. The first case was one for an injunction to prevent the county treasurer from paying back to certain taxpayers the excessive taxes paid by them under protest in compliance with the requirements of the statute, and after the making of an order to that effect by the state tax commission this court affirmed the ruling of the district court in refusing to grant such an injunction. The second case above cited was an original mandamus action in this court, brought by a city against its mayor, to compel him to sign a contract for the construction of a swimming pool, and this court refused to issue the writ because no attention had been given to the requirements of the cash-basis law then in effect, but the city had proceeded independently thereof to pass an ordinance and had procured an affirmative vote thereon.
We are not convinced that either of these cases requires a modification or change of the conclusion above expressed, to the effect that the case at bar is one requiring the filing of protests that were sufficient under the statutes, the attempted compliance not being sufficient.
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The opinion of the court was delivered by
Smith, J.:
In this case the defendant was convicted of murder in the first degree, and appeals.
The affair grew out of the attempt of some young men to steal a slot machine. The deceased was a man by the name of Ho.ag, who operated a filling station and a small store on the outskirts. of Osawatomie. The dwelling house in which' he lived with his sister was close by the filling station and store.- Jack Brunts, Edward Higgins, Don Bundy and Alvie Baffrey were all young men who-lived in Osawatomie. There is no dispute in the record but that. Brunts and Higgins entered the residence of Hoag on the night in question and at the point of a gun stole a small amount of money, and started to steal a slot machine. Hoag entered the house while they were carrying the machine out. Brunts shot Hoag with a pistol. He died later that night. Brunts was convicted of murder in the first degree. He was under sentence at the time of this trial but was held in jail at Paola so that he could testify for the state. ■ Higgins pleaded guilty to murder in the second degree. He, too, was held in jail so that he could testify for the state. As far as this record discloses the prosecution of Baffrey had not been disposed of when this case was tried.
The theory upon which the prosecution of Bundy was conducted was that Higgins, Brunts, Baffrey and Bundy all counseled, aided and abetted in the commission of a felony, and in the course of the attempt to perpetrate this felony Hoag was murdered. The determining element in this prosecution, then, was the part played by Bundy in planning the stealing of the slot machine and his part in the actual perpetration of this felony.
We shall discuss the points argued by defendant in the order in which they are discussed in his brief. He argues first that it was error for the trial court to overrule his plea in abatement. This plea was based on the fact that an amended information was filed and that defendant did not have any preliminary hearing on the charge set out in that amended information. The argument is that there was no allegation in the warrant upon which the preliminary was had of any “malice aforethought” nor that the killing of Hoag was done with steel bullets or that there was a conspiracy to rob at the dwelling house of Hoag, but instead it was alleged in the warrant that the conspiracy was to rob at the filling station.
The objections to the amended information are not good. The amendments were made before the defendant was required to plead. Under such circumstances it was the right of the state to make the amendments referred to. (See G. S. 1935, 62-808; also, State v. Morris, 131 Kan. 282, 291 Pac. 742.) Furthermore, courts of our state have been commanded by the statutes not to quash or set aside informations for defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits. (G. S. 1935, 62-1011.) The matters pointed out in this information fall far short of prejudicing the substantial rights of the defendant.
Defendant next argues that the court committed error in admitting the testimony of one Martin. This man lived in Osawatomie and knew all the parties. He was first permitted to testify that as he was going downtown one night Bundy asked him if he wanted to go with him to get a slot machine, and he asked him “Where?” and he saidj “Down to Walter Hoag’s,” and Bundy'told him “he had a car and a gun,” and he said “when he went after them he hysted them and told them he would take it.” He also was permitted to testify that Bundy told him the evening of the shooting of Hoag that he had a gun and a car.
The objection of the defendant to the admission of this testimony is that it apparently makes Martin one of the conspirators, and no information had been filed against him. In the first place this testimony alone does not make Martin one of the conspirators, and if it did do so the'defendant could not tell the prosecuting officers whether or not he should be tried.' The fact that he might have been informed against in this prosecution and the prosecuting officer saw fit for sóme reason not to proceed against him does not affect the admissibility of incriminating statements made to him by defendant. Such statements are admissible the same as a statement made by him to any other individual.
Martin was next permitted to testify as to a conversation he had with Jack Brunts the evening of the killing. He testified that Brunts said “he was going after a slot'machine”; that he, Martin; said he did not care anything about it, and that Brunts said he was going down to Hoag’s, and he had seen Don (meaning Bundy)': This witness was also permitted to testify about a conversation that evening between himself and Higgins and Brunts. This testimony was that Higgins came across the "street and Brunts asked Martin if it would be all right to put Higgins in and Martin said he did not care what he did; that they wanted him to watch the front end and that he told them he would because he was afraid of Higgins. Defendant objected to this testimony on the ground that it was about statements of a coconspirator to a third person not in the presence of defendant and was therefore hearsay. This objection is not good. At this stage of the trial there had already been enough evidence introduced to prove a prima facie case of conspiracy to rob. In that case any statement of a coconspirator otherwise competent was proper whether made in the presence of the defendant or not. (See State v. Pyle, 143 Kan. 772, 57 P. 2d 93; State v. Mullins, 95 Kan. 280, 147 Pac. 828; State v. Harding, 142 Kan. 347, 46 P. 2d 617; State v. Emory, 116 Kan. 381, 226 Pac. 803, and State v. Richmond, 96 Kan. 6Ó0, 152 Pac. 644.)
What has been said with reference to the testimony of Martin as to conversations had by him with Brunts applies with equal force to testimony of several officers of the law as to what was said to them by different members of the conspiracy. These conversations, all taken together, tended to establish a prima facie case against defendant.
Defendant next argues that the evidence of Eva M. Davis was incompetent and hearsay. This witness was the sister of Hoag. She testified about Brunts and Higgins coming to the house, forcing her to open the door and let them in, starting to carry out the slot machine and when Hoag came in the room, opening fire on him with a pistol. We are unable to find any reason why it should not have been admitted.
The evidence of the state, taken as a whole, established a prima facie case that these four young men made up a plan whereby Brunts and Higgins were to go down to the residence of Hoag to steal a slot machine and Bundy and Baffrey were to wait near by with a car ready to haul the machine away and were to open it so as to get the money it was supposed to contain; that Brunts and Higgins did go to the house; and Bundy and Baffrey did wait; that in the perpetration of the robbery of Hoag’s house he wás murdered by Brunts. Under such circumstances this established a prima facie case of murder in the first degree against Bundy. Defendant argues this appeal as though it were necessary for the state to establish that' Bundy and Baffrey conspired with Brunts and Higgins to murder Hoag. Such is not the case. If they all four conspired to commit the felony of robbery, and in the attempt to perpetrate the felony Hoag was murdered, then all four are guilty of murder in the first degree. (See State v. Jella, 132 Kan. 509, 296 Pac. 350, and cases cited; also, State v. Loar, 116 Kan. 485; also, State v. Roselli, 109 Kan. 33, 198 Pac. 195.)
The defendant has but very little to complain of as to the application of this rule here, in view of the fact that the evidence showed that a few minutes before the murder he furnished Brunts the gun with which the murder was committed.
Defendant makes various complaints about the instructions. We have examined these instructions and have concluded that they correctly stated the law according to the theory of the state, which was a proper one.
Other errors urged by defendant have been considered and are held to be without merit.
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The opinion of the court was delivered by
HutCHison, J.:
This action was brought by a landowner against his grantor and subsequent grantees of the grantor to quiet plaintiff’s title to the oil and gas under his land.
The plaintiff, John Roth, purchased a half section of land in Ellis county, Kansas, from John T. Clarke, receiving a deed therefor dated March 9, 1904, which contained the following reservation, “reserving the mineral deposits thereon and therein, if any.” The deed was regularly recorded by the plaintiff with the register of deeds of the county on April 6, 1904. On June 5, 1929, the grantor, John T. Clarke, executed and delivered to his brother, Maurice G. Clarke, a deed to “the mineral deposits and rights in and on” the land in question. This deed was recorded on June 20, 1929.
It is alleged in the petition that Harvey Penny, the agent of John T. Clarke, when he delivered the deed to plaintiff in March, 1904, orally and verbally stated to the plaintiff that the reservation clause in the deed referred only to gold or coal for which exploration was being made at that time in that county, and that it did not refer to or include any other mineral, and relying upon said statements, agreements, understanding and construction of said clause, as represented by the agent of said John T. Clarke, he paid the consideration named in the deed and has been in adverse and exclusive possession of the land since that date, and is the absolute owner of all the mineral rights in and to the land except the gold and coal.
The defendant, John T. Clarke, filed a disclaimer, and Maurice G. Clarke filed an answer alleging his ownership of all the mineral deposits of every kind in and on said land by virtue of the deed to him from John T. Clarke, dated June 5,1929, attaching a copy. The reply was a general denial and special denial of any rights under the conveyance of mineral deposits, alleging it to be without consideration, and further alleging that at the time the conveyance was made to plaintiff in 1904 there was no oil or gas known to be in the western part of Kansas or in any part of Kansas except the extreme eastern part of the state, and oil and gas were not at that time known or considered to be minerals or mineral deposits. That neither the plaintiff nor the grantor intended the reservation to apply to oil or gas, but only to gold and coal, as there had been a gold scare in that county just prior to the delivery of the deed to plaintiff.
Evidence was introduced. Findings of fact and conclusions of law were made and judgment was rendered in favor of the defendant quieting his title to the mineral deposits in and under said land, from which judgment the plaintiff appeals.
The appellant states the following five questions as being involved:
“First: Are the words ‘mineral deposits’ used in a deed executed in Ellis .county, Kansas, on March 9, 1904, sufficiently ambiguous to permit of the introduction of parol evidence to show the intention of the parties thereto?
“Second: If not, do they become so, within the latent ambiguity rule, when proof of the surrounding circumstances shows that oil and gas were then unknown in Ellis county but that considerable gold and coal excitement was then prevalent?
“Third: If parol evidence be admissible, did the agent of plaintiff’s grantor have implied or apparent authority to explain to plaintiff the meaning of those words in the deed which plaintiff did not understand?
“Fourth: If not, did the grantor ratify his agent’s acts by his conduct subsequent to the delivery of the deed, or did his subsequent conduct disclose that he had not intended to reserve any oil and gas rights?
“Fifth: Is the defendant, brother and immediate grantee of plaintiff’s original grantor, a bona fide purchaser for value of the oil and gas in question?”
The question of the use of parol evidence to alter or vary the terms of a written instrument is back of most of these questions because of the universal caution with which such is used. (Radebaugh v. Dillon, 119 Kan. 492, 240 Pac. 406, and Gustason v. Dean, 143 Kan. 845, 57 P. 2d 69.) In this case, however, the evidence was introduced over the objection of the defendant, the court expressing a doubt when overruling the objection. Such evidence being introduced, whether properly or not, the questions go more nearly to the sufficiency thereof than to the legality, the defendant raising no question as to its legality by cross-appeal. Appellant suggests that the case is before this court upon what amounts, for all practical purposes, to an agreed statement of facts. The appellant’s view of the facts in the case was expressed in sixteen requested findings of fact, of which the court used and approved four, modified and changed three and rejected nine. The four that the court adopted are as follows:
“1. In March, 1904, or prior thereto, there were no producing oil wells within 225 miles of Hays, Ellis county, Kansas, the nearest oil fields then in existence being Eastern Kansas shallow fields in Chautauqua county.
“3. In March, 1904, or prior thereto, the existence of oil or/and gas as a commercial product was unknown in Ellis county.
“7. When John Roth purchased the land in question, he dealt entirely with Harvey Penney. Mr. Penney, acting as the agent of John T. Clarke, made all of the preliminary negotiations with John Roth, drew up the contract of sale, accepted the purchase price and delivered the deed to John Roth.
“14. Neither John T. Clarke nor Maurice G. Clarke had ever, prior to the date of the filing of this action, made any inquiry of John Roth concerning the oil and gas in and under his land nor made any claim to him that they possessed any right in and to such oil and gas.”
Aside from requests the court made findings to the effect that prior to 1904 there had been some little exploration for oil, gold and coal within twenty miles of the land in question, but no oil, gold or coal had been discovered in commercial quantities. The court further found that in March, 1904, oil was being produced in commercial quantities in Kansas about 225 miles from the land in question; that an oil well was being drilled between August and October, 1903, in Ellis county, and reached the depth of 1,200 feet. Several mentions of it were made in the newspaper published in the city of Hays during September and October, 1903, and that two test wells were drilled in Rush county in 1903, but no oil or gas has been taken from the land in question and no drilling for either has taken place thereon, but plaintiff has taken stone from the surface of the ground for posts and building. That a conversation as to the meaning of the reservation of mineral deposits in the deed was had between plaintiff and Harvey Penney when the deed to this land was delivered, at which time they discussed the possibility of gold and coal, but no mention was made by either of them as to the possibility of finding oil or gas upon the land. That prior to the filing of this action neither John T. Clarke nor Maurice G. Clarke had ever made, any inquiry of plaintiff concerning oil and gas under this land nor made any claim that they possessed any right in and to such oil and gas.
That in addition to the four requested findings of the plaintiff, adopted by the court, there are the following findings about the agent, Harvey Penney:
“6. Harvey Penney was the agent of John T. Clarke for the purpose of negotiating for and carrying out the sale of the land in question to John Roth.
“4. At the time the deed in controversy was delivered to John Roth the plaintiff, by one Harvey Penney, who delivered said deed and collected the balance of the sale price of the land as the agent of John T. Clarke, the grantor in said deed — at the time said deed was delivered there was some discussion between said Harvey Penney and the plaintiff John Roth as to the meaning of the reservation of 'mineral deposits’ in said deed. At that time the parties discussed the possibility of gold and coal, but no mention was made by either of the parties of the possibility of finding oil or gas upon the said land.
“8. There was no competent evidence that Harvey Penney was a general agent of John T. Clarke, or that he had any authority from John T. Clarke to contradict, vary or restrict the words included in the deed when John T. Clarke signed it and sent it to him for delivery to the plaintiff. The evidence showed nothing more than that Harvey Penney was an agent for the purpose of finding a purchaser for the land, collecting the purchase price and delivering the deed sent to him by John T. Clarke.”
There are also the following findings as to evidence along other lines:
“10. There was evidence that F. S. Wassinger, about 1924, in connection with making up an abstract of title to this land, wrote a letter to John T. Clarke sending him a quitclaim deed covering this land, requesting that John T. Clarke sign the quitclaim deed and return it; that F. S. Wassinger received a letter back from John T. Clarke returning the deed unsigned; that he gave the letter to some banker in Victoria, whose name he does not recall; that he has no recollection as to the contents of the letter received from John T. Clarke. Mr. Martin Basgall testified that he saw a letter purporting to have been written to Mr. F. S. Wassinger by Mr. John T. Clarke, but that he has no recollection of what was in the letter. Mr. Joseph A. Mermis testified that he saw a letter purporting to be written from John T. Clarke to F. S. Wassinger, and that in the letter which he saw Mr. Clarke asked Mr. Was-singer to send him a quitclaim deed and he would make further investigations. The deed was a release of that particular reservation in Mr. Roth’s deed. Mr. John Roth, Jr., testified that he saw a letter pin-porting to have been written by John T. Clarke to Mr. Joseph A. Mermis and F. S. Wassinger and that his recollection of the contents of it was as follows:
“ ‘It kind of read that it would be necessary for him to sign an instrument or quitclaim deed as long as it was only a coal and gold right.’
“None of these witnesses identified any letter as having been written by John T. Clarke or identified the letter which F. S. Wassinger received and gave to a banker at Victoria as the same letter seen by Mr. Basgall or the same letter as that seen by Mr. Mermis, or the same as the letter seen by John Roth, Jr., and no two of the witnesses testified alike as to their recollection of the contents of the letters they saw. None testified that there was any mention of oil or gas in the letter or letters, or any statement to the effect that John T. Clarke did not intend to reserve and did not claim to own the oil and gas rights. He did refuse to-sign a quitclaim deed to enable the plaintiff to make a valid oil and gas lease. •
“11. The defendant Maurice G. Clarke received the conveyance of the mineral rights in question from his brother John T. Clarke in satisfaction of a debt of seven hundred ($700) dollars, representing money that he had previously advanced to his brother.
“12. The conveyance of mineral rights from John T. Clarke to Maurice G. Clarke was not by quitclaim deed, but was by a direct grant and conveyance, the granting clause reading as follows:
“ ‘Grants and conveys to Maurice G. Clarke, state of Oklahoma, the mineral deposits and rights in and on the following described real estate.’
“13. Maurice G. Clarke has not received and cannot obtain anything from John T. Clarke for the seven hundred ($700) dollars except the mineral rights in question.”
The trial court made the following conclusions of law:
“1. The deed in question was unambiguous on its face, and there being no words in the instrument indicating any intention to limit or restrict the meaning of the term ‘mineral deposits,’ parol evidence was not admissible to contradict, vary, limit or restrict the terms of the deed.
“2. The term ‘mineral deposits’ as used in said deed included oil and gas.
“3. The burden of proving the extent of the authority of Harvey Penney as an alleged agent of John T. Clarke was upon the plaintiff, and the plaintiff failed to prove that the said Harvey Penney was a general agent of John T. Clarke or had any authority to contradict, vary, limit or restrict the meaning of the words appearing in the deed at the time it was signed by John T. Clarke and sent to Penney for delivery to Roth.
“4. There was no competent evidence to prove any ratification by John T. Clarke of the claimed understanding of the plaintiff that oil and gas were not excepted in the deed. The only person who identified any letter as having been received from John T. Clarke, Mr. Wassinger, had no recollection of the contents of the letter; and the letter was not identified by any of the other witnesses who claimed to have seen it, and at best their identification of it would necessarily be hearsay — second, third or fourth hand.
“5. The conveyance of the mineral rights by John T. Clarke to the defendant Maurice G. Clarke was based on a valid consideration, to wit: the release of an indebtedness of seven hundred ($700) dollars; and, since the testimony showed that this mineral right was all that Maurice G. Clarke can ever get for his $700 and the statute of limitations has now run on his claim against John T. Clarke, the said Maurice G. Clarke is an innocent holder for value of the mineral rights in question and had a right to rely upon the record as it appeared in the office of the register of deeds of Ellis county, Kansas, when he took the conveyance of these mineral rights and released his claim of seven hundred .($700) dollars.
“6. The issues generally are found in favor of the defendant Maurice G. Clarke and ■ against the plaintiff John Roth, and the said defendant Maurice G. Clarke is entitled to judgment quieting his title to the mineral deposits in the land in question, including the oil and gas.”
The appellant makes six assignments of error: (1) overruling motion for new trial, (2) overruling motion to modify findings of fact, (3) overruling motion to modify conclusions of law, (4) adopting findings of fact requested by defendant, (5) adopting conclusions of law requested by defendant, and (6) refusing to adopt findings and conclusions requested by plaintiff.
Since the trial court, overruled the objection of the defendant to the introduction of evidence tending to alter or vary the terms of the written instrument and to show the intention of the parties thereto, the case becomes one of fact rather than law, and if there was sufficient evidence to sustain the findings and the conclusions are supported by the findings, the judgment must be affirmed. There was very little conflicting testimony, but it hardly went far enough to sustain the allegations of the plaintiff.
The appellant in his very able and comprehensive brief shows instructively by numerous decisions from this and other states the change in the meaning of the word “minerals” until even by a reversal .of position in some states it has come to be generally held to include oil and gas. and it has been so held in Kansas since March T2, 1904, when in the case of Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, it was held that petroleum and gas are minerals, and as long as they remain in the ground they are a part of the realty.
The first proposition discussed in the appellant’s brief is that extrinsic evidence was admissible to ascertain the meaning of the phrase “mineral deposits.” Patent atad latent ambiguities are carefully distinguished and numerous cases and texts are cited by both parties on the subject of the right to use parol evidence under such circumstances, and it must be admitted that it is proper when either a patent or latent ambiguity actually exists. The trial court has covered the matter here in the conclusions of law as well as in the findings of fact. Had the same legal decision been made as to there being no ambiguity, when the objection was made to the introduction of certain evidence, the legal question would have been of vital importance. It is different when the evidence has been introduced and findings have been made against the claim of the appellant.
It is called to our attention that the many decisions and texts cited by both parties, dealing with the meaning of the word “minerals,” as does the Freeman case, supra, do not treat the phrase, “mineral deposits,” which is the language used in the deed in this case. It is suggested that while oil or gas may be “minerals,” they are not “deposits” or even capable of being deposits, in the usual and practical meaning of that word. In 1897, which was seven years before this deed was executed, the legislature of this state passed an act, chapter 244, requiring separate assessments to be made where one owned the land and another owned the “minerals therein.” In applying this term in the case of Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. 1002, it was said:
“It is argued that the act was only intended to apply to solid minerals, such as coal, lead and zinc, and that because of their peculiar attributes oil and gas are not capable of ownership in place and cannot have been within the legislative purpose. The terms of the act are broad enough to embrace minerals of every kind, and it is well settled that oil and gas, although fugitive fluids, are minerals. (Zinc Co. v. Freeman, 68 Kan. 691; Murray v. Allred, 100 Tenn. 100.) It has also been determined that although oil and gas in place are a part of the realty, the stratum in which they are found is capable of severance, and by an appropriate writing the owner of the land may transfer the stratum containing oil and gas to another. Such party acquires an estate in and title to the stratum of oil and gas, and thereafter it becomes the subject of taxation, encumbrance or conveyance.” (p. 139.)
■ We approve and adhere to this ruling. (See, also, 18 R. C. L. 1094.)
The appellant treats at length two other subjects entitled, “The original parties to this deed did not intend that the words, ‘mineral deposits,’ should include oil and gas” and “Maurice G. Clarke has no greater right in and to plaintiff’s land than did his grantor, John T. Clarke.” The first was covered in general in what has been said as to ambiguities and the findings of fact, and the second is fully answered when it has been found that the reservation in the grantor, John T. Clarke, was good.
Technically speaking, the interest in the land retained by the grantor in his deed to the plaintiff was an 'exception, rather' than a reservation, but the two terms are often used interchangeably and the technical meaning will give way to the manifest intent.
We find no error in the rulings under the assignments made.
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The opinion of the court was delivered by
Hopkins, J.:
These cases are submitted together. They were actions to recover on insurance policies for loss of growing wheat by hail. Demurrers by the defendant to the petitions were overruled, and defendant appeals.
The questions presented are whether the petitions stated causes of action when they showed that the provisions of the policies with reference to furnishing notice of the loss were not complied with, and whether they sufficiently alleged the furnishing of proof of loss. The petitions alleged substantially that on May 13, 1919, on plaintiff’s application, the defendant issued two policies of insurance, insuring plaintiff against loss by hail on two fields of wheat. Copies of the policies were attached to the petitions. Among other things, the policies provided that the insured should within forty-eight hours after the happening of damage or loss by hail send a report thereof to the general agent at McPherson, Kan.; that the defendant company should not be liable for any loss or damage unless the notice was furnished within the time prescribed. They also provided for the furnishing of proofs of loss within sixty days aftér the loss; that the loss should be payable when the proofs thereof had been furnished, and that no suit should be maintainable until after full compliance by the assured with such requirements. The petitions then alleged that on or about June 13, 1919, the plaintiff suffered a loss by reason of a hailstorm and was damaged in the sum of $600; that on or about a week after such damage occurred, and as soon as plaintiff became aware of such loss, he caused a notice in writing of such loss to be served upon the defendant by its agent at Ashland, Kan.; and that, in response to such notice, the defendant sent to the premises its agent and adjuster, who inspected and examined such loss on behalf of the defendant. The petitions also contained a general allegation that “plaintiff has duly performed all conditions precedent to recovery of defendant this loss.”
The defendant relies on a provision of the policy which reads:
■ “Within forty-eight hours after the happening of any loss or damage by hail to the crops herein described, . . . the assured shall send by registered mail to A. J. Shaw, general agent, McPherson, Kan., a written notice stating the number of this policy, the day and hour of the hailstorm, the amounts of other insurance against hail, if any, and the probable percentage of damage to the crops on each parcel of land herein described; and this company shall not be liable for any loss or damage unless such notice thereof is so furnished to this company within said time, and no other form of service or notice shall be deemed proper notice within the provisions and meaning of this policy.”
It is contended by the defendant that this provision embodied in the policy is required to meet a situation peculiar to the hail insurance business; that it is conceded by insurance adjusters that it is practically impossible to distinguish between loss of wheat from hail damage and grasshopper damage unless the injured crop is examined almost immediately thereafter. It is argued, we think with sound reason, that inasmuch as the defendants’ liability under the policies was restricted to loss from hail damage and from no other cause, it had a right to know the cause of the damage, and that it was, therefore, necessary that the insurer make investigation of the loss immediately after such loss occurred. With this in mind the contract fixed the time within which notice should be given to the insurer at forty-eight hours. This limit gave the plaintiff a reasonable time to report his loss and also gave the defendant an opportunity to investigate the loss at a time when the investigation would show the cause and amount of the loss. Under the circumstances we cannot say that the condition was unreasonable. The plaintiff relies on Hawthorne v. Protective Association, 112 Kan. 356, 359, 210 Pac. 1086, where it was said:
“ ‘The time allowed by the policy for giving notice begins to run when the particulars or results of an accident are ascertained, where these are not immediately apparent’ (1 C. J. 475), and that ‘if the insured or the beneficiary under the policy does not know that the accident was the cause of the injury, the giving of the notice within the prescribed time after he learns that the accident was the cause of the injury is a sufficient compliance with the provisions for such notice’ (14 R. C. L. 1334).”
Hawthorne had swallowed a staple. He first thought that it had gone down his throat. He was advised that such was not the case, and nearly two years later an X-ray examination disclosed that the staple was imbedded in his bronchial tube. He had it removed by operation and immediately made claim on account of his disability. The facts in the Hawthorne case and the principle applied thereto are not applicable to the facts in the instant case. In the Hawthorne case the results were not immediately apparent. Here they were. The ordinary rule is that notice of the injury or loss is for the benefit and protection of the insurer. (Republic County v. Guaranty Co., 96 Kan. 255, 150 Pac. 590.) In the Hawthorne case the failure to give notice within the time specified in the contract did not in any wise change the situation of the parties. The injury- and damage from the accident remained ascertainable until the time of giving notice. In case the loss or damage is by hail the fact must be ascertained almost immediately thereafter.
The plaintiff ably contends that the matters concerning lack of notice of loss or lack of proof of loss are properly put in issue only by answer, after which the plaintiff in reply may allege matters constituting a waiver or estoppel on the part of the defendant. Also, that the general allegation of performance of conditions precedent was sufficient for the purposes of pleading to put such matters in issue.
We cannot concur in that view. The provision in the contract for forty-eight hours’ notice was, under the circumstances stated, a reasonable one. Failure to give such notice was a defense to plaintiff’s claim. The petition stated that defense and it thereby became demurrable. The case is analogous to one where a petition shows on its face that the action is barred by the statute of limitations. While the ordinary rule is that the defendant must plead the bar of the statute of limitations, yet if the petition shows on its face that the cause of action is barred a demurrer thereto will lie. (City of Leavenworth v. Douglas, 59 Kan. 416, 53 Pac. 123; Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048.)
The judgment is reversed and the cause remanded with directions to sustain the demurrer.
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The opinion of the court was delivered by
Johnston, C. J.:
Harry J. Harwi was charged with eight violations of the prohibitory liquor law and was convicted on the eighth count of the information, which charged the keeping and having in possession intoxicating liquor.
In his appeal he contends that his motion to quash the eighth count should have been sustained. The information, among, other things, charged that defendant “did then and there unlawfully have and keep in his possession malt, vinous, spirituous, fermented and other intoxicating liquors,” etc. He insists that two distinct of fenses were charged in a count and therefore should have been quashed for duplicity.
Attention is called to the statute which in part declares that “it shall be unlawful for any pel-son to directly or indirectly manufacture, sell, barter or give away, furnish or keep or have in his possession for personal use or otherwise any spirituous, malt, vinous, fermented or other intoxicating liquors,” etc. (R. S. 21-2101.)
It is contended that the disjunctive “or” which separates “keep” and “have” makes the keeping in his possession one offense and the having in possession another offense. As is well known the words “and” and “or” arp frequently used interchangeably, and it is quite clear that the phrase as used in this statute should not be given a disjunctive signification. (Kennedy v. Haskell, 67 Kan. 612, 73 Pac. 913.) The phrase “keeping in possession” in its ordinary acceptation is the equivalent of “having in possession.” Primarily, the term “keep” as applied to the possession of an article means to hold or retain, and the term “have” employed in the same connection imports a holding in possession. It is the unlawful possession that is condemned by the law, and in an effort to emphasize and make the definition of unlawful possession all-inclusive the legislature used both terms. The terms might have a somewhat different meaning used in differing connections, but as employed in this statute they are substantially synonymous, and the keeping and having in possession at a particular time and place is no more than a single breach of the law. The conviction of the defendant upon the charge is an effective bar against another prosecution for the unlawful possession of intoxicating liquors on the occasion mentioned.
Complaint is made that the information was defective because it was not verified by the county attorney, and further that he had not filed with the information the evidence taken on an inquisition. Whether evidence had been taken on an inquisition by the county attorney when the information was filed does not appear. Where there has been an inquisition which discloses the commission of an offense the prosecuting officer may file the evidence taken with the information, and where this is done a verification by him on information and belief is sufficient. (R. S. 62-301.) Where the information is positively verified either by the prosecuting attorney or a third party there is no necessity for the filing of evidence obtained at an inquisition. In this case the charge rests on the positive verification of the complaining witness, and being so verified by him it was unnecessary that it should be verified by the county attorney or supplemented by any evidence that may have been taken by the county attorney at an inquisition. (The State v. Brooks, 33 Kan. 708, 7 Pac. 591; The State v. Huffman, 51 Kan. 541, 33 Pac. 377.)
The information is said to be defective because the day and month of the year when the offense was committed was not definitely stated. The offense was alleged to have been committed “on or about the-- day of —=-, 1922, in the county of Graham, and within two years prior to the date of filing the information,” etc. There is no merit in the objection. (The State v. Brooks, 33 Kan. 708, 7 Pac. 591; The State v. Bowman, 106 Kan. 430, 188 Pac. 242.)
There is an objection to the instructions, but we do not regard it to be material. An examination of the evidence alleged to be insufficient leads us to the conclusion that it is adequate to uphold a conviction.
Some other objections are made by defendant which are not deemed to be sufficiently material to require-special, comment.
Judgment affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover the possession of real property, to recover rents for wrongfully withholding the real property, and to recover damages. Judgment was rendered against Susan H. Seaverns in favor of the plaintiff for the recovery of the real property and for rent for its use. Susan H. Seaverns appeals.
On August 1, 1905, Susan H. Seaverns contracted with the Marysville Land Company for the purchase of the real property in controversy, and in part payment then conveyed to defendant E. R. Fulton other real property valued at $1,600, and agreed to pay the remainder of the purchase price, $1,790.70, in five equal annual installments of $358.14 each, together with interest at the rate of six per cent, and agreed to pay all taxes assessed against the land. The contract, which was in writing, made time the es sence thereof and provided that if payments were not promptly made the contract and all rights thereunder acquired by the purchaser should be forfeited. The first installment with the interest was not paid when due, but was paid in the fall of the following year, 1907. No other payment has been made under the contract. Susan H. Seaverns paid taxes on the land amounting to $283.36. The Marysville Land Company paid other taxes amounting to $290.22. Years afterward, in 1917 and later, in efforts to obtain payment of the balance of the purchase price, different members of the Marysville Land Company had correspondence and negotiations with Susan H. Seaverns. In those efforts she attempted to obtain a settlement by paying $2,000, which the Marysville Land Company declined to accept, there being much more than that amount due at that time.
The petition alleged that the Marysville Land Company was a partnership composed of defendants E. R. Fulton, F. G. Powell, and other persons whose names were unknown to the plaintiff. From the evidence it appeared that E. R. Fulton was interested in the Marysville Land Company; that at the time the contract for the sale of the land was made, E. R. Fulton held the legal, recorded title thereto; that Susan H. Seaverns, as lessee, was in possession of the land at the time she contracted to purchase it and remained continuously in possession thereafter; that some of the correspondence and negotiations between those representing the Marysville Land Company and Susan H. Seaverns were had between E. R. Fulton and Susan H. Seaverns; and that the plaintiff derived his title through W. E. Ward by a deed executed by E. R. Fulton and wife.
The answer of Susan H. Seaverns to the petition consisted of a general denial, but admitted that she was in possession of the land. The court, at the conclusion of the evidence, instructed the jury to find for the plaintiff. By stipulation it had been agreed that if the plaintiff recovered possession of the land he should have judgment for $97.60. Judgment was rendered for the plaintiff for that amount.
1. Susan H. Seaverns argues that it would be inequitable to permit a forfeiture of her rights to the land under the contract, because she has paid more than $2,000 under the contract. More than fourteen years intervened between the last payment under the contract and the commencement of this action on March 14, 1921. After more, than ten years from the making of the contract, she desired a settlement by making a payment of $2,000, which was much less than the- amount due at that time, including interest and taxes. Since 1907 she has not attempted to comply with the terms of her contract. She did not tender into court the amount due under the contract and does not now say she will pay it. If she desires to retain the land she should comply with her contract. Instead of offering to pay what is due under the contract, she claims that she has possession of the land adverse to the plaintiff, and that the plaintiff cannot maintain this action because' it is barred by the fifteen-year statute of limitations. She thus attempts to repudiate her contract and hold adversely to it. If she had so desired she might have been permitted to comply with her contract and keep the land, but she has attempted to repudiate the contract and hold the land. She thus compels a forfeiture of her rights under the contract.
2. Susan H. Seaverns urges that her possession of the land is adverse to E. R. Fulton and the plaintiff; that at the time of the commencement of the action she had been in such adverse possession for more than fifteen years, and that the action was for that reason barred by the statute of limitations. Can she set up a claim of possession adverse to that of the plaintiff, who holds under E. R. Fulton, subordinate, however, to her rights, if her rights have not been forfeited?
In 1 A. L. R. 1329 is a note on “Adverse possession as against vendor by one who enters under executory contract.” In that note is found the following:
“The vendee under an executory contract of sale enters into possessiqn under, and without hostility to, his vendor. Hostility being one of the elements necessary to adverse possession, it follows that the vendee’s possession is not adverse. Accordingly, it is the general rule — which, however, as subsequently shown, frequently yields when additional circumstances appear — that the possession taken by a vendee under an executory written contract for the purchase of land is not adverse as to his vendor.”
See, also, 1 R. C. L. 750; 2 C. J. 151; 1 Warvelle on Vendors, 2d ed., 231; 2 Tiffany on Real Property, 2d ed., 2010; 3 Washburn on Real Property, 6th ed., § 1908.
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Spencer, J.:
In an action against a title insurance company for damages resulting from an alleged defect in title to real estate, judgment was rendered for defendant and plaintiff appeals.
This case was submitted to the trial court upon stipulated facts in substance as follows:
Prior to January 18, 1964, Joseph W. McMurray and Marie McMurray, husband and wife, were the fee owners of the following described tract of land:
Lots 1 to 6 inclusive, and Lots 8 to 11 inclusive, resurvey of Lots 3 and 15, Sunset Hill, a subdivision in the City of Overland Park, Johnson County, Kansas.
On January 18, 1964, the McMurrays conveyed this real estate to Frank R. Johnston and Fern Johnston by warranty deed which contained the following reservation:
“The grantors herein do expressly reserve unto themselves, their heirs, successors and assigns, all right, title and interest of the grantors in and to the right-of-way of the Strang Line and the right-of-way of Locust Street as platted, if any. It is the intent of the within Warranty Deed to convey only the property within the platted boundaries of the lots above described and to reserve to the grantors any present title and interest in, or rights of reversion to any property not within the boundaries of said lots.”
This deed was duly recorded on February 27, 1964.
On March 31, 1965, Frank R. and Fern Johnston, with others, conveyed the real estate to the plaintiff. The legal description of the tract so conveyed is identical to the description of the tract owned by the McMurrays prior to January 18, 1964. This deed did not set forth any exception for the interests purported to have been reserved in the deed of January 18, 1964, from the McMurrays to the Johnstons.
Under date of April 21, 1965, the defendant issued its title insurance policy whereby it undertook to insure the plaintiff as follows:
“. . . [A]gainst all loss or damage which the party guaranteed shall sustain by reason of defects in the title of the party or parties as set forth in Schedule A below to the real estate or interest therein described, or by reason of liens or incumbrances affecting the title, at the date hereof, excepting only such defects, liens, incumbrances and other matters as are set forth in Schedule B below.
“This Company agrees to defend, at its own cost and expense, the title, estate or interest hereby guaranteed in all actions or other proceedings which are founded upon, or in which is asserted by way of defense, a defect, claim, lien or incumbrance against which this policy guarantees.”
Schedule A sets forth the title guaranteed by the policy as “FEE SIMPLE TITLE vested in J & S Building Company, Inc.,” and describes the real estate as hereinbefore set forth. Schedule B makes reference to special exceptions, none of which relate to the McMurray reservation.
On the date the title insurance policy was issued and at all other times relevant to this cause, there existed a recorded plat of the tract of land in question showing the lots as described in the conveyances mentioned as well as in the insurance policy and the two streets here involved which had been dedicated for public use. A copy of that plat is a part of the record on appeal.
Under date of January 16, 1967, the city of Overland Park, Kansas, enacted ordinances vacating the two streets adjoining the subject real estate pursuant to the authority of K.S.A. 13-443.
The record reveals that under date of March 16,1972, plaintiff sold the tract in question to the Gas Service Company. In connection with this sale plaintiff was required to furnish a title insurance policy. Pursuant to this requirement and in anticipation of the sale, on November 8, 1972, plaintiff secured a commitment for title insurance from Chicago Title Insurance Company on the real estate above described, except:
“. . . [T]hat part of Lots 6 and 10 conveyed to Overland Park by deed recorded as File No. 906333, in Volume 821, at page 522, together with the Northerly V2 of vacated Locust Street lying Southerly of and adjacent to Lots 1 thru 5, and the East V2 of vacated King Street (Howard Avenue) lying West of and adjacent to Lot 3 and vacated King Street (Howard Avenue) lying between that part of the premises in question in Lots 4, 6, 8, 9 and 10.”
This commitment referred specifically to the conveyance by the McMurrays to the Johnstons recorded February 27, 1964, and required that a conveyance from the McMurrays be secured as to that part of the vacated streets included in the land description.
Contending that the interest reserved by the McMurrays (ad mittedly not referred to in defendant’s policy on the tract) constituted a defect under that policy, plaintiff made claim against the defendant, which claim was subsequently denied.
Thereafter, plaintiff paid the sum of $5,000 to the McMurrays for a quitclaim deed to whatever interest in the vacated streets may have been reserved, retained or attempted to be reserved or retained by the January 18, 1964, deed from the McMurrays to the Johnstons hereinbefore referred to.
The trial court entered its final conclusions of law as follows:
“1. Fee simple title to real estate adjoining streets which have been dedicated pursuant to K.S.A., Section 12-406 includes a reversionary interest in such streets to the center line thereof in proportion to the frontage of such land, except where such streets may have been taken for public use in a different proportion, in which case such title includes a reversionary interest in the same proportion as such streets were taken from such adjoining land.
“2. The fee simple owners of such land may effectively reserve or retain such reversionary interest in a conveyance of such land by deed.
“3. A conveyance by deed in the chain of title in which the grantors have reserved or retained such reversionary interest does not constitute a defect affecting the title to such land within the terms of the title insurance policy issued to plaintiff by defendant The Columbia Title & Trust Company.
“4. The reservation in the deed from Joseph and Marie McMurray to Frank R. and Fern Johnston, a copy of which is attached to the stipulation of facts filed herein, was not a title defect on the date of the issuance of said title insurance policy and was not the basis of a bona fide claim against the title to the plaintiff to said tract.
• “5. It is hereby determined and ordered that plaintiff take naught by its petition and its prayer for relief is denied.”
The principal issue here involved is whether at the time the McMurrays attempted to reserve an interest in the streets adjoining their lots, they owned any interest in the streets which they could reserve. In 26 C.J.S., Deeds Sec. 139a, p. 1003, it is stated:
“To be valid a reservation or exception must have something to operate on; it must refer to something conveyed.
“An exception or reservation is void . . . where the grantor had no interest or estate in the thing excepted.”
Thus, the question becomes whether under Kansas law the owner of a city lot, described only by lot number and subdivision, has any interest in an adjoining statutorily dedicated street which may effectively be reserved so as to pass to him when the street is vacated after he has conveyed his interest in the lot itself.
The governing statutes are as follows:
K.S.A. 12-406. “Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses in the county in which such city or town or addition is situated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose, and the recording of such map or plat shall not constitute a conveyance of any interest in the oil, gas and other minerals underlying the avenues, streets, lanes, alleys and other parcels therein named or intended for public uses. The provisions of this act shall apply to all maps or plats, heretofore or hereafter made, acknowledged, certified, filed and recorded with any such register: Provided, however, That nothing herein contained shall be construed as granting any right to enter upon the surface of such parcels of land for purposes of exploring for or the extraction of such minerals, or in any other manner to interfere with the public uses named in such maps, plats and additions.”
K.S.A. 13-443. . . .
“When any street, avenue, alley or lane is vacated it shall revert to the owners of land thereto adjoining on each side, in proportion to the frontage of such land, except in cases where such street, avenue, alley or lane may have been taken for public use in different proportion, in which case it shall revert to the adjoining land in the same proportion as it was taken from it: Provided, That when in the opinion of the governing body it is necessary to reopen such street, avenue, alley or lane, it shall be reopened without expense to the city. . . .”
(See also K.S.A. 14-423 for a similar provision relating to cities of the second class; K.S.A. 15-427 as to cities of the third class; and K.S.A. 12-506 as to vacation of streets by the board of county commissioners. It is noted that the latter two statutes do not contain the proviso as to reopening of vacated streets without expense.) It must be kept in mind that the streets in this case were vacated after the McMurrays had conveyed their interest in the lots and at a time when plaintiff was the undisputed owner of the lots. Thus, if the McMurray reservation is ineffective, it is clear that a portion of the vacated streets would “revert to the owners of land thereto adjoining on each side,” in this instance the plaintiff, under the provisions of K.S.A. 13-443.
The entire tract involved in this case was part of a development platted in 1925. The trial court found that the streets in question were dedicated as a part of this plat pursuant to K.S.A. 12-406, supra. What interests then existed in the county and the adjoining landowners following this dedication?
At common law the dedication of a street or highway for public use does not operate to divest the owner of the adjoining land from which the roadway was taken of the fee title. The public acquires only an easement. (23 Am. Jur. 2d, Dedication Sec. 57, p. 50; 26 C.J.S., Dedication Sec. 50, p. 522.) Upon vacation of the street or highway, the burden of the easement is lifted and the full enjoyment of the fee is restored to the owner. Ownership of a tract adjoining a street or highway is presumed to extend to the center of the roadway and such ownership passes with the conveyance of the adjoining tract, absent a clear intent to the contrary. These common law rules were recognized and applied in Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913.
Bowers noted the existence of statutory law vesting the fee title in city streets in the county and that such modified the common law, but as such streets were not there involved the modified rules were not applied (119 Kan. at 205). Plaintiff argues and the district court agreed that the Missouri case of Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363 (1927), was applicable. It is argued that the Kansas statute on dedication (K.S.A. 12-406, supra) was “borrowed” from Missouri and that “when one state adopts a law from another, the judicial construction given to the statute in the state where it originated, follows it to the state of its adoption,” citing Comm’rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620, 636, 1 Pac. 109. The Neil case interpreting the Missouri statute is then presented as authority that the county does not receive a fee simple title but only an easement which is really no stronger than what was received at common law. Thus, upon vacation of the street the county’s easement is removed and the title reverts in full to the original owner or his assigns.
There are two reasons why Neil is not applicable to the present situation. The first is that it was decided in 1927, after Kansas “borrowed” the statute from Missouri (1868, see G.S. 1868, ch. 78 sec. 6). In this regard, it was said in State, ex rel., v. Schutts, 217 Kan. 175, 535 P. 2d 982, Syl. 1, that:
“A statute adopted from another state carries with it the construction placed upon it by the courts of that state, but an exception to the rule is that the construction of a statute by the highest court of the original state after it is adopted by another has no controlling effect on the adopting state.”
The second reason is that the Kansas court has consistently held to the contrary. We are not aware of any decision of our court to the effect that a dedication for public use under K.S.A. 12-406, supra, creates only an easement on the property so dedicated, or that the statute does nothing more than restate the common law.
The distinction to be drawn between common law dedication on the one hand and statutory dedication on the other was recognized early in the law of this state as illustrated in two cases decided in 1873. In Comm’rs of Shawnee County v. Beckwith, 10 Kan. 603, a non-platted, non-city highway was held to be owned in fee by the adjoining landowners, but in Atchison & N.R. Co. v. Garside, 10 Kan. 552, the fee of a street dedicated under what is now K.S.A. 12-406 was said to vest “absolutely” in the county. It has long been established that the fee of a statutorily dedicated street vests in the county in trust, while control of the street rests in the city. (Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610.)
The rule that upon dedication of a street for public use the fee title to the street passes completely from the dedicator is pervasive in the Kansas cases. In Tousley v. Galena Min. & Smelting Co., 24 Kan. 328, the original dedicator of the city of Galena in filing the plat of the city reserved to itself all minerals under the dedicated streets and alleys. It then conveyed some of the platted lots to the defendant who began mining the minerals under the street adjoining the lots. The dedicator sought to enjoin this activity. It was there noted that the rule of the common law as to the effect of a conveyance of a lot bounded upon a highway remains in force in Kansas except as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people; and that the only modification is in the statute concerning dedications which says that the dedicator has parted with the fee in the street and has nothing but the lot to convey. We again take note of the decision in Bowers v. Atchison, T. & S.F. Rly. Co., supra, on which the trial court relied, to observe that the issue there involved dealt with a public easement established under the common law rule and not to a dedication under the statute.
The opinion in Wood v. National Water Works Co., 33 Kan. 590, 7 Pac. 233, dealt with a situation where the dedicators attempted to reserve unto themselves all rights under the public streets allowing only the simple easement or right of travel over those streets. It was there held that the fee of the streets and alleys dedicated to public use vests absolutely in the county and the county forever afterward holds the property in trust for such use; and that the reservation contained in the deed of dedication was inoperative and void as against the public as not being in accordance with the terms of the statute. (See also City of Russell v. Russell County B. & L. Assn., 154 Kan. 154, 118 P. 2d 121, wherein it was stated that the effect of the filing of the plat was to vest in the county the title and in the city the control of the street; and in which the court made reference to the well-settled rule that an attempted reservation by the dedicator of private rights in the street is void and the dedication stands unimpaired by the attempted reservation, [pp. 159-160.])
In Gadarl v. City of Humboldt, 87 Kan. 41, 123 Pac. 764, the owner of a lot adjoining a street, who had built improvements on the unopened street, attempted to enjoin the opening of the street by the city. It was said that he could not prevail, and further stated:
“The filing and recording of the plat operated to convey the fee of the street to the county for the public purpose for which it was intended. . . . The fee passes from the owner beyond power of resumption and vests absolutely in the county, forever, in trust for public use.” (87 Kan. at 42.)
(See also City of Hutchinson v. Danley, 88 Kan. 437, 129 Pac. 163; Devine v. City of Seward, 174 Kan. 734, 258 P. 2d 302.)
In Luttgen v. Ergenbright, 161 Kan. 183, 166 P. 2d 712, it was said:
“Where lands are platted into lots and blocks, and streets and alleys are dedicated to public use, the fee to the streets and alleys is in the county . . . and a purchaser of a particular lot obtains no interest in the street in front or the alley in the rear of his lot. . . .” (161 Kan. at 190.)
In Bradford v. Smith, 177 Kan. 120, 276 P.2d 366, the question was whether the boundary of a platted lot began at the side or in the center of the street. The court held that the side of the street was correct, quoting from the Luttgen case as to a purchaser acquiring no interest in the street and adding that “such is a clear provision that the streets and their boundaries were one thing and the lots another.” (177 Kan. at 123.)
Finally, in City of Council Grove v. Ossmann, 219 Kan. 120, 546 P. 2d 1399, it was said:
“. . . The fee title to all property intended for public use vests in the county in trust for the public by virtue of K.S.A. 12-406. The authority to control, use and improve the streets is vested in the city. State, ex rel., v. City of Garnett, 177 Kan. 709, 281 P. 2d 1085; City of Emporia v. Humphrey, 132 Kan. 682, 297 Pac. 712. The dedicators no longer have title to property dedicated for public use once a plat has been approved, filed and recorded. 23 Am. Jur. 2d 55, Dedication, Sec. 64. The fee title vests in the county forever. Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610.” (219 Kan. at 127.)
It is clear that the statute means exactly what it says: The fee of the dedicated streets vests in the county. Accordingly, when in 1925 the property here involved was platted into lots and the streets shown thereon dedicated to public use and such plat was duly filed and recorded pursuant to the statute, the dedicators and their successors in title had nothing but the lots to convey. The common law has thus been modified by the statute, and if the adjoining lot owner has no interest in the fee of the street, there can be no “reversion” in a technical sense when that street is later vacated.
What then is the meaning of “reversion” as used in K.S.A. 13-443 and similar statutes as above set forth; and if an adjoining owner does not have an interest in the fee of the street, does he have any other interest? The nature of “reversion” under what is now K.S.A. 13-443 was first considered in A.T. & S.F. Rld. Co. v. Patch, 28 Kan. 470. The court, in an opinion by Justice Brewer, first set out the statute which contained, as now, both the statement that upon vacation the streets “revert” to adjoining lots and the proviso that the city may reopen the vacated streets at any time without expense. It was there stated:
“. . . [I]t would seem from the proviso to the section we have quoted that there was no absolute cession of the property to such adjacent lot-owner, but only a provisional and temporary giving-up of the public use; for the lot-owner takes it subject to the right of the city to reopen it without expense. In other words, the city permits the lot-owner provisionally and temporarily to hold and occupy the portion of the vacated street in front of his lot. Under those circumstances, we think it fair to consider that it becomes, as it were, a part of the lot — something in the nature of an accretion to it; and, if so, then any conveyance of the lot takes with it this attached portion of the vacated street.” (28 Kan. at 473.)
(The provision allowing the city to reopen a vacated street or alley was given effect in Myers v. Strauss, 171 Kan. 91, 229 P. 2d 774.) The Patch case involved the situation where a street was vacated followed by condemnation of adjoining lots. Ownership of the vacated street was then contested by the owner of the lots. In such situation, it has been uniformly held that when vacated the street “reverts” or “attaches” within the meaning of Patch to the adjacent property and passes with that property when it is subsequently conveyed or condemned. See Challiss v. Depot and Rld. Co., 45 Kan. 398,25 Pac. 894; Haseltine v. Nuss, 97 Kan. 228, 155 Pac. 55; Rowe v. Bowen, 113 Kan. 641, 215 Pac. 1022; Rothwell v. Veail, 129 Kan. 679, 284 Pac. 359. None of these cases deal with the situation where the owner of property to which a vacated street has already attached reserves the street area from a subsequent conveyance, although such presumably would be possible because the then possessory interest in the street would have reverted to the owners of (or attached to) land thereto adjoining on each side. It must be borne in mind that in the present case the streets had not been vacated so as to “attach” to the lots when the McMurrays made their reservation. In Rowe v. Bowen, supra, the owner of lots assumed she was reserving the adjacent portion of a street which had previously been vacated but there was no such indication in the conveyance. The court applied the general rule that the vacated street area shall revert to the owners of the lots adjoining on each side in proportion to the frontage and becomes an appurtenance and a part of such adjoining lot which passes under a conveyance by the mere description of the lot as originally platted.
Challiss v. Depot and Rid. Co., supra, also discusses the nature of “reversion” under the statute in that:
“. . . The fee of the street was never in him, and hence, in a strict sense of the term, there was no reversion. The fee of the streets is in the county for the use of the public, and the control of the same has been placed by the legislature in the city. Aside from the accommodation of the general public, the streets afford access and frontage to the property which abuts thereon; and these rights are incidental and appurtenant to such property, and pass by any conveyance or by condemnation of the same. . . . Through the appropriation of the lot, the company acquired the incidental and appurtenant rights in the street, and upon the legal vacation of the street, that portion situated in front of lot 1 temporarily became, as it were, a part of the lot, and passed to the company. . . .” (45 Kan. at 403.)
In Rothwell v. Veail, supra, Justice Burch summarized as follows:
“Because of the provision for reopening without expense, the court held the reverter was not an absolute cession; but the court held the portion of the vacated street in front of a lot becomes in the nature of an accretion to it, and any conveyance of the lot takes with it the attached portion of the vacated street.
“In seeking for a word to describe extension of the lot owners’ interest to include the vacated street, the court in the Challiss case used the term ‘appurtenant.’ . . .
“In the case of Haseltine v. Nuss, 97 Kan. 228, 155 Pac. 55, it was explained that extension of a lot owner’s interest to include a vacated street is not an accretion in any riparian sense, and plaintiffs say, properly enough, the fee of the county in the street before vacation could not become appurtenant to the fee of the lot owners, because land owned in fee simple cannot be appurtenant to land owned in fee simple. This, however, is merely to play with words. Whatever the correct expression may be, the Patch decision established the principle that when a street is vacated the interest of an abutting lot owner is extended to include the vacated street in front of his lot, and will pass by conveyance of the lot.” (129 Kan. at 681-682.)
Thus, cases dealing with the “reversion” statute (and reversion is not a good word — see Rothwell v. Veail, supra, p. 682) do not alter the conclusion that before vacation of the street an adjoining lot owner has no interest in the fee of the street. In fact after vacation there is no technical reversion but only a “temporary attachment” of the possessory interest. Under the statutes, the fee vests in the county forever but the control is in the city. It is the city which by ordinance vacates the street, thus giving up its right of control (the possessory interest) which in turn “attaches” to the adjoining lot. However, the city may reassert its right of control at any time and dispossess an adjoining landowner who may have appropriated a portion of the vacated street.
Prior to vacation, a lot owner is not completely disinterested in a statutorily dedicated street adjoining his land. As Challiss points out, he has appurtenant rights of access and frontage. (After vacation, the possessory interest of the street also becomes an “appurtenant” right.) Also, since the county holds its fee interest in trust, an adjacent property owner has some interest in that trust. In Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453, a tract of land had been statutorily dedicated as a “court-house square.” The county sought to sell a part of the tract and use the funds to erect the desired courthouse. Adjoining lot owners brought an action to restrain the sale and the court held that when an adjoining owner had purchased his lot after the dedication and made improvements, and when a change from public to private use would lessen the value of the adjoining lot, such adjoining owner had a vested right in a trust thereby created and could enforce the public purpose for which the county held its title so as to restrain the sale. Be this as it may, it would seem that neither such an interest, nor the appurtenant right of access and frontage can be construed to cover possessory rights in the street itself prior to vacation.
In this case, the McMurrays owned lots in a city subdivision which adjoined streets which had been dedicated to public use under the provisions of K.S.A. 12-406 and attempted to reserve “all right, title and interest of the grantors in and to the right-of-way of [the streets] as platted, if any.” The expressed intention of the McMurrays was to “reserve to the grantors any present title and interest in, or rights of reversion to any property not within the boundaries of said lots.” Clearly, the McMurrays had no “present title and interest in” the streets in question, and lacking such there was nothing for them to reserve. They had only their platted lots to convey and when those streets were vacated the possessory interest therein passed to the owners of land adjoining on each side, subject to being repossessed and the streets reopened without expense to the city, when in the opinion of the governing body it is necessary to do so, all as provided by K.S.A. 13-443, supra.
We hold that the trial court erred in concluding that the reservation contained in the deed from McMurrays to Johnstons was valid and effective; however, this does not require reversal unless it also appears that the trial court erred in its conclusion that the purported reservation was not a defect in title.
In Murray v. Title Ins. & Trust Co., 250 Cal. App. 2d 248, 58 Cal. Rptr. 273 (1967), it was said:
“. . . When a title company insures an owner’s title to property, by implication it likewise insures the presumed ancillary titles and privileges attached to the property and assumes liability for defects in those titles and privileges. In the present case, for example, if plaintiffs were entitled to presume ownership in fee to the center of the streets adjoining their lot, they were likewise entitled to presume title insurance coverage against defects in title coextensive with their presumed ownership.” (250 Cal. App. 2d at 252.)
By statute, California holds that the fee of statutorily dedicated streets is in the owners of adjoining lots. If the Kansas rule were the same, as was found by the district court, the rule as to coverage announced in Murray would seem to be correct and the trial court would have erred in holding that the reservation was not a defect. However, we have concluded that in Kansas the owners of property adjacent to streets dedicated to public use under the provisions of K.S.A. 12-406, supra, have no presumption of ownership in those streets. Thus, the situation is similar to the situation described in Murray where a California buyer acquired a lot adjacent to an abandoned street:
“. . . On the other hand, when the record shows that the insured property is adjacent to an abandoned street, we do not think a policy of title insurance to a specific lot insures title by implication to the adjoining strip created by the abandonment of the street. Under these circumstances a grantee has no right to expect that ownership of a lot will presumptively comprehend ownership in an abandoned street. . . . Coverage of title insurance extends to reasonably anticipated implications of ownership which attach to the insured property by reason of the record, but does not extend beyond that point.” (250 Cal. App. 2d at 256-257.)
Lacking any presumption of ownership in the adjacent streets, it cannot be said that title insurance coverage extends to any portion of those streets prior to vacation.
Plaintiff directs attention to Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, where it is said:
“A title need not in fact be bad in order to make it unmarketable or non-merchantable. ... If there be doubt or uncertainty sufficient to form the basis of litigation, the title is unmarketable.” (Syl. 1.)
“ ‘. . . A marketable title in equity is one in which there is no doubt involved, either as to matter of law or fact.’ ” (83 Kan. at 55.)
We have no argument with that authority. However, it is to be noted that marketable title is not insured under the policy in question here. What was insured was the nature of title: fee simple, free of defects. By determining that the reservation was ineffective and of no regard at the time plaintiff acquired the policy from defendant, it is also determined that no defect in plaintiff’s title to the lots existed. The fact that the purported reservation might render the title unmarketable prior to judicial determination that it is ineffective is of no concern here because such was not part of the coverage.
In Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P. 2d 254, it was said:
“Where a title insurer presents a buyer with both a preliminary title report and a policy of title insurance two distinct responsibilities are assumed; in rendering the first service, the insurer serves as an abstractor of title and must list all matters of public record regarding the subject property in its preliminary report. When a title insurer breaches its duty to abstract title accurately it may be liable in tort for all the damages proximately caused by such breach. ...” (220 Kan. at 258.)
The present case was not brought in tort for errors in abstracting, but on the policy. Accordingly, it need not be determined whether the purported reservation, even though not effective and thus not a defect, should have been disclosed in the policy issued by the defendant.
We hold that the district court correctly concluded that the purported reservation by the McMurrays was not a defect affecting the title to the real estate described in the title insurance policy and, accordingly, not within the coverage of that policy. The correct result having been reached by the trial court, reversible error is not shown. (Highland Lumber Co. v. Knudson, 219 Kan. 366, 548 P. 2d 719, Syl. 6.)
Having so determined, there is no issue before us with respect to plaintiff’s damages or attorneys’ fees.
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Green, J.:
Westboro Baptist Church (WBC) appeals from an order of the State Board of Tax Appeals (BOTA) denying its application for exemption from ad valorem taxes for its 2002 Ford F-150 truck. WBC argues that BOTA erroneously interpreted and applied the law pertaining to its application when it determined that WBC was not entitled to a personal property exemption under K.S.A. 79-201 Second. In particular, WBC maintains that because it used the truck in its religious activities, B OTA’s decision was erroneous. Moreover, WBC maintains that BOTA improperly labeled as nonreligious many of its signs in violation of the Establishment Clause of the First Amendment to the United States Constitution. We agree. Nevertheless, we determine that BOTA’s decision, even though improper, may be upheld for another reason. We further determine that WBC’s political activities and secular philosophy, which constitute a significant part of its picketing activities, preclude a tax exemption for its truck. Accordingly, we affirm.
WBC is an independent church based in Topeka, Kansas. Nearly all of the approximately 70 WBC members participate in an activity alternatively referred to by WBC members as “picketing” and “street ministry.” This activity consists of transporting handmade signs to various locations around the country, including churches, military funerals, government offices, political conventions, and other locations. The signs generally express in acrimonious language the WBC’s religious message regarding “whether and who God loves or hates.” WBC members believe that they are God’s messengers on earth, and it is their duty to publish the message that God has punished and will continue to punish the United States because of the country’s willingness to condone homosexuality.
WBC filed an application for a tax exemption before BOTA in 2002 for a 2002 Ford F-150 truck purchased August 31, 2002. According to the application, the truck was to be used exclusively for WBC’s street ministry and qualified for exemption under the religious use exemption set forth in the Kansas Constitution and K.S.A. 79-201 Second.
Prior Appeals
WBC has had two previous appeals before this court relating to religious use personal property exemptions for the 1995 Ford F-150 pickup truck it formerly used to transport signs. In WBC’s first application, WBC requested a religious use exemption for a 1995 Ford F-150 pickup truck used to transport signs for its street ministry picketing activities. In denying the exemption, BOTA determined that the truck had not been used exclusively for religious purposes because it had regularly carried signs containing nonreligious messages. WBC appealed BOTA’s ruling, arguing that BOTA had erred in determining that the nonreligious use of the vehicle had not been minimal in scope and insubstantial in nature. WBC also challenged the constitutionality of BOTA’s decision. This court determined that WBC had failed to meet its burden to show how the signs transported in the truck clearly fell within the religious use exemption. Because WBC failed to meet its burden of proof, this court declined to address its constitutional arguments. Westboro Baptist Church, Inc. v. Hixon, case No. 81,993, unpublished opinion, filed February 18, 2000, slip op. 4-5.
In 2001, WBC’s request for tax exempt status for their 1995 Ford pickup truck again came before BOTA. Before BOTA ruled on the application, however, WBC moved to voir dire all BOTA members about whether the members had ever made any statements, signed any written documents, or read any information about WBC’s picketing activities. BOTA denied the motion, and WBC moved to reconsider and to stay the tax proceeding until it could pursue an interlocutory appeal. BOTA denied reconsideration but stayed the tax proceeding pending the interlocutory appeal. WBC filed a petition for mandamus or, alternatively, for declaratory or injunctive relief, in the district court against four members of BOTA. In the action, WBC asked for an order requiring the four members to answer the proffered voir dire questions. Moreover, WBC’s petition alleged a cause of action under 42 U.S.C. § 1983 (2000). BOTA moved to dismiss for lack of jurisdiction. BOTA argued that WBC had failed to exhaust its administrative remedies, specifically K.S.A. 2003 Supp. 77-514, which governs disqualification of a BOTA member. The district court dismissed WBC’s claim for lack of subject matter jurisdiction due to WBC’s failure to exhaust administrative remedies, and this court affirmed on appeal. Westboro Baptist Church, Inc. v. Patton, 32 Kan. App. 2d 941, 93 P.3d 718, rev. denied 278 Kan. 852 (2004).
Present Appeal
In WBC’s present application for tax exemption, WBC requested exemption for its newly purchased 2002 truck. Before the hearing on the application, WBC moved to clarify the issue to be argued at the hearing. In response, BOTA issued an order stating that the issue to be argued at the hearing was “ whether the subject properties are used exclusively for religious purposes’ ” and that “[w]hat constitutes a 'religious purpose’ is a legal and factual issue for the Board’s determination.”
WBC submitted exhibits with all of the slogans they have used over the years in their street ministry and an exhibit enumerating several examples of biblical prophets preaching to government officials. WBC member Katherine Hockenbarger explained she had created the exhibit by organizing all of the signs alphabetically and by subject matter into the following categories: “America,” “Churches,” “General Doctrinal,” “God’s Punishment,” “Homosexuals,” “Institutions,” “Other Countries,” and “Public Figures.” Hockenbarger and fellow WBC member Shirley Phelps-Roper described the process for creating a sign and selecting a picketing target. According to Hockenbarger, any member of WBC could suggest a message to put on a picketing sign. She described it as a collaborative process that did not require any type of centralized approval. According to Phelps-Roper, WBC members communicated either orally or in written e-mails when something would come up in the newspaper. Anyone could suggest a place to picket although the members did not always discuss the targets or act on a recommendation. Hockenbarger said WBC published its message anywhere there were people to hear it, such as political, entertainment, or religious events.
Hockenbarger testified that she had been a member of the church for 8 years, picketed nearly eveiy day, and had participated in the WBC’s picketing since WBC began picketing 15 years ago. Hockenbarger stated that she did not believe the signs expressed a political viewpoint and that she did not carry them for a political purpose. Instead, her “goal [was] simply to tell the people how things [were] and how they should be properly living their lives.” For an example of where WBC would picket, Hockenbarger stated that WBC had picketed the Democratic and the Republican conventions . She denied that the purpose of the picketing was political. Hockenbarger explained: “The purpose was to publish a message, particularly about the candidates that were to be nominated, to make sure that people understood the ramifications of putting a person into a place of power that doesn’t serve the Lord their God.” In reference to a sign about a local political figure, Hockenbarger explained why she believed the sign about the political figure was not political in nature:
“[T]he reason that we hold it isn’t because we are — we care about the politics of it. We care about the mores of our society. We care about the moral issues of when you select a person to hold a position of power that is an open, out of the closet lesbian and what that teaches our children and that teaches them that that is a perfectly acceptable life-style and God Almighty said it’s not.”
Hockenbarger denied she expected to have any influence on the political outcome; in fact, she fully expected the person would still be put into office. Hockenbarger stated that she believed 99% of the time, the picketing had no influence on whether a community continued to support the targeted individual or organization.
Elizabeth Phelps, a member of the church, also testified that WBC’s picketing activities were not done to influence government officials or change their behavior. Phelps testified that her decision to picket was based on Bible scriptures of prophets, apostles, and Christ. She maintained that the scriptures showed that Christ, aposdes, and prophets spoke directly to the leaders of their day. Phelps testified that she sincerely held to her beliefs and that the passages helped form her decisions on whom to picket.
While Phelps testified drat she voted and participated in politics, she maintained that those activities were unrelated to the picketing and did not involve use of WBC’s truck. Phelps denied engaging in politics on behalf of WBC and stated that when she does engage in political activity she uses her own resources.
Based on the evidence presented at the hearing, BOTA found it was undisputed that WBC had used the truck exclusively, actually, and regularly to facilitate WBC’s picketing activities by transporting church members and signs. Nevertheless, BOTA noted it was less clear whether the picketing activities served an exclusively religious purpose within the meaning of K.S.A. 79-201 Second. BOTA acknowledged that WBC members sincerely believed that all of their signs conveyed their religious beliefs, even though a large number of the signs made no reference to their doctrine or anything remotely religious. BOTA stated that of the 602 examples of WBC’s picket signs listed in the exhibits, at least 260 simply labeled public figures and institutions with terms such as “fag,” “dyke,” “whore,” “pervert,” or “Nazi.”
In its analysis, BOTA relied on our Supreme Court’s definition of religion as stated in Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 852, 473 P.2d 1 (1970). In Cogswell, citing Davis v. Beason, 133 U.S. 333, 33 L. Ed. 637, 10 S. Ct. 299 (1890), our Supreme Court defined religion as “being an apprehension, awareness or conviction of the existence of a supreme being controlling one’s destiny.” “ ‘The term “religion” has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.’ [Citation omitted.]” 205 Kan. at 852.
BOTA analyzed whether the signs fell within the definition of religion and stated:
“On their face, these labeling signs convey no message, doctrine, position or opinion falling within Cogswell's broad definition of ‘religion.’ Merely stating that an individual or institution is a ‘fag’ or ‘dyke’ or supporter thereof, while potentially inflammatory, does not reflect ‘one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.’ 205 Kan. at 852. While accepting that the applicant believes the signs convey their sincerely-held religious message, the Board finds that these signs in fact convey no religious message and thus serve no religious purpose.”
Because BOTA found that WBC had failed to show that the truck was used to transport only signs conveying a religious message to street-side display locations, BOTA held that the truck did not qualify for the exclusively religious use property tax exemption. BOTA further found that because the nonreligious signs represented over 40 percent of WBC’s signs, the truck did not qualify for the exception found in K.S.A. 79-201 Second which extends the exemption to properties used for a nonexempt purpose when the use was minimal in scope and insubstantial in nature.
WBC moved for reconsideration. In the motion, WBC contested BOTA’s conclusion that some of the signs conveyed nonreligious messages. WBC maintained that it had satisfied its burden to show the religious nature of its picketing activity. WBC asked BOTA to explain its reasoning for asserting no First Amendment to the United States Constitution issue was involved, and WBC further asserted that BOTA had violated the Free Exercise Clause of the First Amendment by attempting to determine whether the words from WBC’s picketing signs were religious. WBC cited biblical passages employing the words singled out by BOTA as nonreligious and explained the religious meaning and etymology of the words. WBC challenged BOTA to specifically identify the 40 percent of the signs which had no religious meaning and requested the opportunity to explain the religious meaning behind the words used in those signs.-
Finding WBC had failed to raise any persuasive argument in its motion to reconsider, BOTA denied the motion.
Did BOTA Err as a Matter of Law by Denying the ExemptionP
On appeal, WBC argues that BOTA erroneously characterized WBC’s picketing activity as nonreligious. WBC maintains that BOTA should have deferred to WBC’s subjective interpretation of what constitutes a religious purpose, focusing on the sincerity of WBC’s members’ beliefs that the content of their picketing signs fulfill the religious purpose of their street ministry.
The standard of judicial review of an 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. National Council on Compensation Ins. v. Todd, 258 Kan. 535, 538, 905 P.2d 114 (1995). The applicable standard of reviewfor a BOTA order is governed by K.S.A. 77-621(c), which provides that this court may grant relief 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 inteipreted 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) the agency action is otherwise unreasonable, arbitrary or capricious.”
In its first issue, WBC argues that BOTA erroneously interpreted or applied the law under subsection (4). Whether certain property is exempt from ad valorem taxation is a question of law if the facts axe agreed upon, but it is a mixed question of law and fact if the facts are controverted. In re Tax Exemption Application of Via Christi Regional Med. Ctr., 27 Kan. App. 2d 446, 447, 6 P.3d 896 (2000) (citing T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645, 693 P.2d 1187 [1985]). Here, the underlying facts are not disputed. Instead, WBC disputes BOTA’s interpretation of the facts. Therefore, this appeal presents a question of law.
The determination of whether WBC’s use of the truck fulfills a religious purpose as a matter of law implicates both the rules of statutory interpretation and an analysis of the First Amendment to the United States Constitution. To the extent this appeal requires construction and application of a tax exemption statute, the general rules for statutory construction are applicable. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
In exemption cases, taxation is the rule, and exemption is the exception. Constitutional and statutory provisions exempting property from taxation are to be strictly construed against the party claiming exemption, and all doubts are to be resolved against exemption. In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 904-05, 47 P.3d 1275 (2002); Tri-County Public Airport Auth. v. Board of Morris County Comm’rs, 245 Kan. 301, 304-05, 777 P.2d 843 (1989). BOTA is a specialized agency that exists to decide taxation issues and is considered the paramount taxing authority in Kansas. Appellate courts grant BOTA’s decisions great weight and deference when it is acting in its area of expertise. The party challenging BOTA’s decision has the burden to prove that the action taken was erroneous. Nevertheless, if BOTA’s interpretation of law is erroneous as a matter of law, appellate courts will take corrective steps. In re Tax Appeal of Sprint Communications Co., 278 Kan. 690, 694-95, 101 P.3d 1239 (2004).
All property in Kansas, real and personal, that is not expressly exempt by statute is subject to taxation. K.S.A. 79-101. Under both the Kansas Constitution and K.S.A. 79-201 Second, property used exclusively for religious purposes is exempt from property taxation. Our Constitution states:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchants’ and manufacturers’ inventories, other than public utility inventories included in subclass (3) of class 2, livestock, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.” Kan. Const. Art. 11, § 1(b) (2007 Supp.).
While the legislature can broaden the exemption permitted by the constitution, it cannot limit or curtail the constitutional provisions. Cogswell, 205 Kan. at 853. Consequently, K.S.A. 79-201 Second also exempts property used exclusively for religious purposes. Moreover, in 1986 the legislature permissibly extended the exemption to properties used for a nonexempt purpose when the use was minimal in scope and insubstantial in nature, but only if the use was incidental to religious purposes. L. 1986, ch. 369, § 1. K.S.A. 79-201 Second States in part:
“All real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes, including property used exclusively for such purposes by more than one agency or organization for one or more of such exempt purposes. Except with regard to real property which is owned by a religious organization, is to be used exclusively for religious purposes and is not used for a nonexempt purpose prior to its exclusive use for religious purposes which property shall be deemed to be actually and regularly used exclusively for religious purposes for the purposes of this paragraph, this exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes. . . . This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization: . . . (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental to the exempt purposes of this paragraph.”
See Womans Club of Topeka v. Shawnee County, 253 Kan. 175, 187, 853 P.2d 1157 (1993) (noting that prior to the legislature’s modification of the statute in 1986, the exemption statute mirrored the Kansas constitutional provision and provided exemption only when the subject property was used exclusively for the exempt purpose); Midwest Presbytery v. Jefferson County Appraiser, 17 Kan. App. 2d 676, 677-79, 843 P.2d 277 (1992) (addressing the 1986 amendment to 79-201 Second as an issue of first impression and holding use of religious property as a residence did not defeat the exclusive use requirement as a matter of law).
In Cogswell, 205 Kan. 847, which BOTA cited in its order denying the exemption, the court defined a religious purpose in the context of the tax exemption statute. In that case, the court had to determine whether the United Methodist Church’s administration offices satisfied the religious purpose language of the exemption statute. In Cogswell, the court defined the term “religious” as follows:
“[T]he adjective form of the word ‘religion [is] defined as being an apprehension, awareness or conviction of the existence of a supreme being controlling one’s destiny. [Citation omitted.] . . .
‘It has been held that “religion” has reference to man’s relation to Divinity; to reverence, worship, obedience, and submission to the mandates and precepts of supernatural or superior beings. In its broadest sense it includes all forms of belief in the existence of superior beings, exercising power over human beings by volition, imposing rules of conduct with future rewards and punishments. [Citations omitted.]’
‘The term “religion” has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for Iris being and character, and of obedience to his will.’ . . . [Citation omitted.]” 205 Kan. at 852.
The court noted it had always employed the term “religious” broadly and in light of the foregoing definitions. 205 Kan. at 852. Nevertheless, in determining that the administration building satisfied the exemption statute, the court examined the underlying activities conducted in the administration building:
“[T]here is nothing to show that any part of the use of the building in the administration of the Conference activities embraced political action or activities which would remove the property from its tax exempt status. But if it can be said educational, benevolent and charitable purposes are embraced within the administrative activities of the Conference in using the property for religious purposes, the use of the property for such purposes, on the facts here presented, is likewise exempt from taxation under the constitution.” 205 Kan. at 861.
Thus, the court emphasized that all of the activities occurring in the administration building satisfied benevolent, charitable, and educational purposes, which were exempt from taxation under the constitution, in using the property for religious purposes and that none of the church’s activities in the administration building were political. 205 Kan. at 861
Similarly, Kansas courts have seemed to focus on the activities of an organization in determining whether the organization qualifies for exemption from payment of property taxes. For example, in National Collegiate Realty Corp. v. Board of Johnson County Comm'rs, 236 Kan. 394, 400, 690 P.2d 1366 (1984), the court declined to define the term “educational” and instead focused “on whether any activities in the use of the property were not exclusively for educational or other exempt purposes.” In finding that the regulation of extracurricular intercollegiate athletic events was equivalent to teaching physical education, our Supreme Court determined that the purpose of the National Collegiate Athletic Association was educational. 236 Kan. at 404.
Likewise, in In re Tax Exemption Application of Fire Baptized Holiness Church, 28 Kan. App. 2d 598, 18 P.3d 308 (2001), the court evaluated the function of the property. The church sought a religious use tax exemption for a dormitory building which housed high school students, “dorm parents,” and a cafeteria for elementary and high school students. BOTA denied the exemption, finding the dormitory’s primary use was as a dormitoiy, a noneducational use. On appeal, the court noted that Kansas courts have endorsed a broad definition of education and cited several exam- pies. Although the court held the occupancy of a residence did not by itself constitute an educational or religious use, the underlying purpose of the dormitory was for education because the dormitory building housed only students who attended the school and dorm parents whose duty it was to monitor the students. Students used the building every day for lunch and occasionally for physical education and music classes. Therefore, the court reversed BOTA’s denial of the exemption. 28 Kan. App. 2d at 602; see also Sigma Alpha Epsilon Fraternal Ass’n v. Board of County Comm’rs, 207 Kan. 514, 519, 485 P.2d 1297 (1971) (holding that a college fraternity was not used exclusively for educational purposes because the property was used for many fraternal purposes, which included initiations, parties, and other social activities); Kansas Wesleyan Univ. v. Saline County Comm’rs, 120 Kan. 496, 497, 243 Pac. 1055 (1926) (granting an exemption for a university president’s residence because official meetings and school gatherings held at the president’s residence were part of the process by which the affairs of the institution were administered).
The County points to the general definition for religious activity suggested by this court in Salvation Army v. Board of Johnson County Comm’rs, No. 62,948, unpublished opinion filed August 11, 1989. Acknowledging the tax exemption statute did not specifically define religious purposes, this court suggested the following activities would fall within the scope of the statute:
“ ‘Typical activities of an organization operated for religious purposes would include (a) corporate worship services, including due administration of sacraments and observance of liturgical rituals, as well as a preaching ministry and evangelical outreach to the unchurched and missionary activity in partibus infidelium; (b) pastoral counseling and comfort to members facing grief, illness, adversity, or spiritual problems; (c) performance by the clergy of customary church ceremonies affecting the lives of individuals, such as baptism, marriage, burial, and the like; (d) a system of nurture of the young and education in the doctrine and discipline of the church, as well as . . . theological seminaries for the advanced study and the training of ministers.’ [Citation omitted.]” Slip op. at 5.
Although this court accepted the Salvation Army’s contention that the Weight Watchers program operated on the Salvation Army’s property conformed to the religious mission of the Salvation Army, this court held that Weight Watchers’ profit-making status precluded tax exemption. Slip op. at 5-7. Thus, the Salvation Army failed to meet the exclusive use for religious purposes requirement.
Several other decisions have considered whether any activities in use of the property were not exclusively for religious purposes. Although none deals with our specific question — -whether any uses of WBC’s truck breached the exclusive use principle — these decisions give general guidance. Defenders of the Christian Faith v. Board of County Commissioners, 219 Kan. 181, 189, 547 P.2d 706 (1976) (finding commercial use of a portion of the building for which the exemption was sought rendered the entire building taxable when it was owned by the same entity even though the remainder of the building served exempt uses); Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 694, 508 P.2d 911 (1973) (denying religious use exemption for teachers’ residences because no educational purposes occurred at the residences and denying religious use exemption for commercial ventures employing students of the religious school); Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1, 7-8, 293 P.2d 234 (1956) (denying exemption to a church-owned publisher of religious material, holding that selling religious publications for more than actual cost was not a for religious purposes); Kansas City Dist. Advisory Bd. v. Board of Johnson County Comm'rs, 5 Kan. App. 2d 538, 542, 620 P.2d 344 (1980) (where outside groups were permitted to use church camp for nominal fee — camp not used exclusively for religious purposes).
As the abundant precedents previously cited have shown, not every activity in use of property of a religious or educational organization has been determined to be solely for religious or educational purposes. See Feldstein v. Christian Science Monitor, 555 F. Supp. 974, 978 (D. Mass. 1983) (“not eveiy endeavor that is affiliated, however tenuously, with a recognized religious body may qualify as a religious activity of that body”).
Although a party seeking free exercise protection under the First Amendment to the United States Constitution must assert a sincerely held belief, sincerity alone is not enough. In addition, the belief must also be religious. See Benning v. Georgia, 391 F.3d 1299, 1313 (11th Cir. 2004) (“[T]he First Amendment . . . requires [a court] to determine whether the asserted belief ... is religious and sincerely held.”); see also Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981) (“A court’s task is to decide whether the beliefs avowed are: [1] sincerely held, and [2] religious in nature, in the claimant’s scheme of things.”). As a result, a sincerely held religious belief alone is inadequate to establish a free exercise claim. If that were not the case, any sincere act would be sacrosanct and potentially protected by the First Amendment.
For example, as one Illinois appellate court has pointed out, everything a deeply devout person does has a religious purpose:
“In a sense, everything a deeply devout person does has a religious purpose. But if that formulation determined the exemption from property taxes, religious identity would effectively be the sole criterion. A church could open a restaurant, for instance, and because waiters attempted to evangelize customers while taking their orders, the restaurant would be exempt. But the operation of a restaurant is not necessary for evangelism and religious instruction, although, like any other social activity, it can provide the occasion for those religious purposes.” Faith Builders Church, Inc. v. Department of Revenue, 378 Ill. App. 3d 1037, 1046, 882 N.E.2d 1256 (2008).
First Amendment
Nevertheless, in determining whether WBC’s operation of the truck was a religious activity, we must be wary of excessive government interference. The First Amendment to the United States Constitution declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The basic purpose of the two First Amendment provisions is to “insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Commission, 397 U.S. 664, 669, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). The First Amendment will not tolerate either govemmentally established religion or governmental interference with religion. Nevertheless, “short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” 397 U.S. at 669.
Free Exercise Clause
The purpose of the Free Exercise Clause of the First Amendment is to secure religious liberty to the individual by prohibiting any invasions thereof by the state and federal legislative powers. Even a regulation that is neutral on its face may in application offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. The United States Supreme Court has established a two-part analysis for determining whether legislation violates the Free Exercise Clause: Has the government placed a substantial burden on the observation of a central religious belief or practice, and, if so, does a compelling governmental interest justify the burden? Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 384-85, 107 L. Ed. 2d 796, 110 S. Ct. 688 (1990).
The United States Supreme Court has held that the Free Exercise Clause does not require the State to grant exemptions to religious organizations from generally applicable taxes. Swaggart Ministries, 493 U.S. at 392. Tax exemptions are a matter of grace that state and federal legislatures may disallow as they choose. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549, 76 L. Ed. 2d 129, 103 S. Ct. 1997 (1983). The legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right because although the government may not place obstacles in the path of a person’s exercise of the freedom, it need not remove those not of its own creation. 461 U.S. at 549-50. To the extent imposition of a generally applicable tax merely decreases the amount of money a person or religious organization has to spend on religious activities, any such burden is not constitutionally significant. Hernandez v. Commissioner, 490 U.S. 680, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1989). The economic cost associated with complying with generally applicable taxes is no different from other generally applicable laws and regulations, such as health and safety regulations, to which religious organizations must adhere. Swaggart Ministries, 493 U.S. at 392. Therefore, the collection and pay- meat of a generally applicable tax imposes no constitutionally significant burden on religious practices or beliefs. 493 U.S. at 393.
For example, in Swaggert Ministries, California’s sales tax law treated the sale of a Bible by a religious organization just as it would treat the sale of a Bible by a bookstore because both are retail sales of tangible personal property. The Court declined to find the appellant’s religious activity, which consisted of selling Bibles for religious purposes, was singled out for special and burdensome treatment because the appellant had to pay the same sales tax that nonreligiously motivated book sellers must pay. 493 U.S. at 389-90. The Court also rejected the appellant’s argument that it received an increased tax burden from the imposition of the sales tax. The Court held that the tax did not constitute a constitutionally significant burden on the organization’s religious practices or beliefs. 493 U.S. at 392.
Establishment Clause
The First Amendment does not require total separation between church and state, and total separation is not possible in an absolute sense. Walz, 397 U.S. at 670. Some relationship between government and religious organizations is inevitable. There are three tests that a government regulation or law must pass if it is challenged under the Establishment Clause: (1) the statute must have a secular legislative purpose; (2) the statute’s primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not produce an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971).
First, state property tax exemptions that benefit religious organizations do not violate the Establishment Clause. Walz, 397 U.S. at 666-67, 674 (holding that a tax exemption for “religious organizations for religious properties used solely for religious worship,’’ as part of a general exemption for nonprofit institutions, did not violate the Establishment Clause). The purpose of property tax exemptions is neither the advancement nor tire inhibition of religion.
Second, because the legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion, idle United States Supreme Court has held property tax exemptions serve a secular purpose:
“[I]t is undeniable that a generally applicable tax has a secular purpose and neither advances nor inhibits religion, for the very essence of such a tax is that it is neutral and nondiscriminatory on questions of religious belief. Thus, . . . [the Establishment Clause’s] undisputed core values are not even remotely called into question by the generally applicable tax in this case.” Swaggart Ministries, 493 U.S. at 394.
Legislative property tax exemptions for certain entities, including religious organizations, hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups, serve to recognize that those entities exist in a “harmonious relationship to the community at large.” These groups provide beneficial and stabilizing influences in community life, and States find this classification useful, desirable, and in the public interest. Walz, 397 U.S. at 672-73. As a result, the benefit conferred by property tax exemptions applies equally to all charitable organizations, religious and nonreligious alike.
Third, entanglement must be “excessive” before it runs afoul of the Establishment Clause. Agostini v. Felton, 521 U.S. 203, 233, 138 L. Ed. 2d 391, 117 S. Ct. 1997 (1997). “Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon, 403 U.S. at 614. The factors used to assess whether an entanglement is “excessive” are “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.” Agostini, 521 U.S. at 232.
Typically, a tax “exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.” Walz, 397 U.S. at 676. Historically, tax exemptions for religious organizations have not re- suited in an entanglement problem. See 397 U.S. at 676-77 (“Few concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.”). Routine regulatory interaction, such as the application of neutral -tax laws, that does not involve inquiries into religious doctrine, delegation of state power to a religious body, or detailed monitoring and close administrative contact between secular and religious bodies, does not of itself constitute entanglement. Hernandez, 490 U.S. 680, 696-697, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1982).
Nevertheless, unlike mere regulatory interaction, state action that involves interpreting and weighing church doctrine violates the entanglement clause of the Establishment Clause. Presbyterian Church v. Hull Church, 393 U.S. 440, 451-52, 21 L. Ed. 2d 658, 89 S. Ct. 601 (1969) (civil courts must not engage in the forbidden process of interpreting and weighing church doctrine). The United States Supreme Court has repeatedly stated that government action that involves inquiry into religious doctrine poses an entanglement problem of constitutional proportions. See Lemon, 403 U.S. at 621-22 (statute authorizing government inspection of parochial school records created impermissible “intimate and continuing relationship between church and state” because it required State “to determine which éxpenditures are religious and which are secular”).
Here, WBC has not shown that the Kansas tax exemption statute singled it out for special and burdensome treatment. BOTA’s denial of the property tax exemption would admittedly result in a higher tax burden for WBC, but under United States Supreme Court precedents, a higher tax burden is not a constitutionally significant burden in most circumstances. WBC provides no evidence BOTA’s decision to deny the personal.property exemption would render its street ministiy “ ‘crushed and closed out by the sheer weight of the toll or tribute which is exacted town by town.’ [Citation omitted.” Swaggart Ministries, 493 U.S. at 392. Moreover, in stating that the duty to pay taxes is so vital that it overrides the right of free exercise, it was stated: “The necessities of revenue collection through a sound tax system raise governmental interests sufficiently compelling to outweigh the free exercise rights of those who find the tax objectionable on bona fide religious grounds.” Wall v. U.S., 756 F.2d 52, 56 (8th Cir. 1985). See United States v. Lee, 455 U.S. 252, 260, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982).
WBC has not shown that without the exemption its ability to observe a central religious practice will be foreclosed. In light of United States Supreme Court precedents, WBC’s claim does not satisfy the first prong of the free exercise inquiry. Therefore, WBC does not articulate a sustainable free exercise claim.
Defining Religious Use
Because K.S.A. 79-201 Second does not define religious use, Kansas case law has attempted to define the statutory term. Cogswell, 205 Kan. at 852. Kansas case law definitions have not discussed the content of a religious organization’s doctrinal beliefs. See Defenders of Christian Faith, 219 Kan. at 189; Seventh Day Adventist, 211 Kan. at 693-94; In re Tax Exemption Application of Fire Baptized Holiness Church, 28 Kan. App. 2d at 601; Kansas City Dist. Advisory Bd., 5 Kan. App. 2d at 542. Kansas case law has recognized preaching ministry and evangelical outreach as religious uses within the meaning of the tax exemption statute. Salvation Army, slip op. at 5. Kansas has rejected characterization of a use as religious if it involves commercial activity. Defenders of Christian Faith, 219 Kan. at 181; Kansas City Dist. Advisory Bd., 5 Kan. App. 2d at 542; Salvation Army, slip op. at 5-7. Moreover, Kansas has not sanctioned political action or activities as a religious activity. Cogswell, 205 Kan. at 861.
Did BOTA’s Decision Violate the Establishment Clause by Excessive Government Entanglement?
The United States Supreme Court has often held that “ ‘[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.’ ” Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 887, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) (quoting Hernandez, 490 U.S. at 699).
Here, BOTA in its holding stated:
“The facts of this case show that although the Applicant’s church members sincerely believe all of their signs convey their religious beliefs, a large number of the signs make no reference to their doctrine or anything remotely religious. Of 602 examples of WBC’s picket signs in the record, at least 260 simply label non-religious public figures and institutions with terms such as ‘fag,’ ‘dyke,’ ‘whore,’ ‘pervert,’ or ‘Nazi.’
“On their face, these labeling signs convey no message, doctrine, position or opinion falling within Cogswell’s broad definition of‘religion.’ Merely stating that an individual or institution is a ‘fag’ or ‘dyke’ or supporter thereof, while potentially inflammatoiy, does not reflect ‘one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.’ 205 Kan. at 852. While accepting that the applicant believes the signs convey their sincerely-held religious message, the Board finds that these signs in fact convey no religious message and thus serve no religious purpose.
“Because the applicant has failed to show that the subject property is used to transport only signs conveying a religious message to streetside display locations, it does not meet the exclusive use requirement. Further, the signs which serve no religious purpose represent over 40 percent of the signs on the applicant’s list. The Board finds the non-religious purpose of a significant portion of the applicant’s use of the subject property is more than insubstantial in nature and minimal in scope, and the subject property thus does not qualify for the exception found in subsection (c) of K.S.A. 79-201 Second.”
BOTA interpreted and weighed WBC’s religious doctrine in determining whether WBC was entitled to the property exemption for its truck. Although stating that WBC’s members sincerely believed their signs conveyed a religious message, BOTA labeled at least 260 signs as nonreligious. Moreover, BOTA determined that those signs served no religious purpose.
The United States Supreme Court has repeatedly held that government entanglement in religion becomes unconstitutionally excessive when state action involves interpreting and weighing church doctrine. Swaggart Ministries, 493 U.S. at 396; Hernandez, 490 U.S. at 696-97; Presbyterian Church, 393 U.S. at 451-52.
In Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707, 716, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981), the United States Supreme Court clearly indicated that a court should not normally, over the objection of a party, label as nonreligious the statement or actions of that party. In Thomas, a Jehovah’s Witness quit his job because of his convictions against war when he was transferred to a plant which manufactured tanks. He maintained that he had quit for religious reasons, although he admitted that a fellow worker, who also was a Jehovah’s Witness, did not share the same beliefs. In his later appeal over unemployment benefits, the Indiana Supreme Court determined that he had acted out of personal philosophical motives rather than for religious reasons. Nevertheless, the United States Supreme Court reversed, holding that it was not for a court to indulge in such refined analysis over the protest of one having honest religious convictions.
Because BOTA labeled as nonreligious many of WBC’s signs, it violated the Establishment Clause. As a result, BOTA’s decision was improper. Nevertheless, when an agency tribunal reaches the right result, its decision will be upheld even though the tribunal relied upon the wrong ground or assigned erroneous reasons for its decision. In re Tax Appeal of Colorado Interstate Gas Co., 258 Kan. 310, 317, 903 P.2d 154 (1995).
The County argued that WBC’s activities had a significant political component, which made it ineligible for the property exemption. On the other hand, WBC contended that all its signs were based upon its members’ religious beliefs drawn from the Bible. Moreover, WBC maintained that its members’ beliefs were apolitical. In its brief, WBC makes the following argument:
“Church members draw their beliefs from the Bible.
“All of the evidence in this record says that every word on every sign carried by Westboro in the truck at issue is Westboro’s religious viewpoint. Scores of Bible verses were provided, in the exhibits, by the witnesses, and in the Petition for Reconsideration, which supported what Westboro members believe. . . . [e]ach citizen of this nation has the absolute right to reach his or her own conclusions about what is and is not Bible sentiment.”
The obvious circularity of WBC’s argument can be shown by its reconstruction:
The premises (1) that “[s]cores of Bible verses were provided . . . [which] WBC members believe” and (2) that every “citizen of this nation has the absolute right” to determine his or her own “Bible sentiment” means the same thing as the claim: that the truck was used exclusively for religious purposes, because every sign carried in the truck was based on WBC’s viewpoint drawn from the Bible.
Hence, the Bible is given as a reason for the religious belief of WBC’s members and the basis for the members’ religious belief is drawn from their interpretation of the Bible. The premises prove the claim, and the claim proves the premises. The premises and the claim actually make the same claim. Based on this argument, WBC maintains that only it may define whether its activities are exclusively religious. It, however, cannot be the case that WBC may establish a free exercise claim merely by pronouncing that its members possessed a sincere and religious belief related to its picketing activities.
Indeed, in stating that although “a church in this free country can adopt any belief it desires,” the Commonwealth Court of Pennsylvania stated that this religious freedom had limits:
“Nowhere has it yet been held that one may, solely by virtue of his religious beliefs, exonerate himself from the payment of taxes. Neither has it been held that a church may proclaim that property it owns is exempt from taxation solely because the payment of such taxes would be offensive to its religious doctrines. Again, the reason why such exemptions have been narrowly proscribed by taxing authorities is quite sound. Governments depend upon tax revenues to furnish services essential for the welfare of all people. If churches or individuals could, by self-proclamation avoid the payment of taxes, good order in this country would be in jeopardy.” Appeal of Open Door Baptist Church, 63 Pa. Cmwlth. 292, 296-97, 437 A.2d 1291 (1981).
Likewise, Kansas historically has followed the majority rule that property tax exemptions are strictly construed, and that taxation is the rule and exemption is the exception. See Buchele, Justifying Real Property Tax Exemptions in Kansas, 27 Washburn L.J. 252, 253 (1988).
“There is no doubt that ‘[ojnly beliefs rooted in religion are protected by the Free Exercise Clause.’ ” Frazee v. Illinois of Employment Security Dept., 489 U.S. 829, 833, 103 L. Ed. 2d 914, 109 S. Ct. 1514 (1989). Moreover, purely secular views do not meet this requirement. Wisconsin v. Yoder, 406 U.S. 205, 215-16, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). “Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause.” Frazee, 489 U.S. at 833. Here, we do not have to concern ourselves about the sincerity or about the religious nature of WBC’s members’ convictions. BOTA did not question their sincerity, and the County concedes it.
In Yoder, the United States Supreme Court, in balancing the state’s interest in compulsory education with the free exercise of the tenets of the Amish religion, distinguished a secular belief from a sincerely held religious belief and stated:
“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.” 406 U.S. at 215-16.
Although WBC maintains that its picket activities were exclusively for religious purposes, there is an obvious political component to its activities. WBC, for example, states in its briefs the following:
“Picket signs name individual elected leaders and other government and political officials and figures, so as to publish the fact that these officials do not five a proper life. An example given by one picketer is President Bush, who the picketer believes claims to be conservative, but nominates and selects for Cabinet positions or other important government positions, such as ambassador, people who are practicing homosexuals.
“The church members picket political events if the event is going to draw a large crowd for them to publish their message to, just like they would an entertainment event, a religious event, or any other land of event. For instance, church members have picketed Democrat and Republican national conventions, with a purpose of publishing a message, not a political purpose. The purpose was to make sure people understood the ramifications of putting a person in a place of power who doesn’t serve God.”
These examples show that WBC believes that public and government officials, whom it believes to be ungodly, are being placed in positions of authority within the government. As a result, WBC seems to argue that it is promoting godly government with its message about public and government officials whom it believes to be ungodly. In essence, WBC is advocating a reform of government whenever it pickets a public or elected official.
Although stating that WBC’s members did not care about the politics of picketing, Katherine Hockenbarger testified that the members cared about the moral attitudes of society:
“We care about the mores of our society. We care about the moral issues of when you select a person to hold a position of power that is an open, out of the closet lesbian and what that teaches our children and that teaches them that that is a perfectly acceptable life-style and God Almighty said it’s not.”
Moreover, Hockenbarger expressly admitted that her belief was in part a political point of view, stating: “I’m sure you could categorize that as political, but it is still mixed with my religious beliefs.” Obviously, Hockenbarger’s statement that we “select a person ... of power” refers to the voting process. Moreover, her message can be tersely summed up in the following way: we need to support only candidates who will obey divine laws, not man’s laws. Hockenbarger’s statement underscores the fact that WBC has incorporated politics into its religious áctivities.
Although WBC’s members steadfastly maintain that their message about public and elected officials is apolitical, a story about Abraham Lincoln during his trial attorney days may be helpful in understanding the members’ assertion. Lincoln is said to have cross-examined a witness as follows:.
“ ‘How many legs does a horse have?’
‘Four,’ said the witness.
‘Right,’ said Abe.
‘Now, if you call the tail a leg, how may legs does a horse have?’
‘Five,’ answered the witness.
‘Nope,’ said Abe, ‘callin’ a tail a leg don’t make it a leg.’ ” Lamon v. McDonnell Douglas Corp., 19 Wash. App. 515, 534-35, 576 P.2d 426 (1978) (Andersen, J., dissenting).
So merely saying a message is apolitical does not make it so.
In balancing the government’s interest in collecting taxes, the government has a right to make a limited inquiry as to whether WBC’s activities in the use of tire truck were exclusively for religious purposes. See International Society for Krishna Consciousness v. Barber, 650 F.2d 430, 433 (2d Cir. 1981) (“threshold inquiry into 'religious’ aspect of particular beliefs and practices cannot be avoided”). The difficult problem we are confronted with relates to the definition of “religious” and “secular” activities and the interrelationship of these terms with each other. Affairs of government and politics, for example, are activities which historically have been considered secular. In particular, this country was founded as a secular state. The founders “created the first wholly secular state. ... By insisting on the complete separation of church and state, the founders successfully overturned” the “long-standing presumption . . . that shared religious convictions were the primary basis for the common values that linked together the people of any political community.” Joseph J. Ellis, American Creation, p. 8 (2007).
A problem, however, arises when one attempts to draw a distinction between those activities characteristic of secular life that are also pursued by religious organizations and those activities characteristic of religious life. The problem is vividly illustrated by Hockenbarger’s statement that while her picketing activities involving public and elected officials could be categorized as political, these activities were mixed with her religious beliefs. Hockenbarger’s statement indicates that she as well as the other WBC’s members believe that they have a moral responsibility to make the state better.
The WBC’s members, however, have chosen to do this politically by warning the public about allegedly ungodly public and elected officials and advocating the election of godly officials to office. In advocating the reform of local, state, and national government by their message, the WBC’s members are engaged in a secular activity. As stated earlier, affairs of government and politics are secular activities.
When a party asserts a belief that seems to be “far more the product of a secular philosophy than of a religious orientation,” a free exercise claim can not be maintained. Africa, 662 F.2d 1025, 1033-34 (C.A. Pa. 1981) (contending that if the plaintiff s concern that he be given a raw food diet was considered “religious,” the First Amendment might need to protect a “host of individuals and organizations who espouse personal and secular ideologies”). As a result, the attachment of a religious belief onto an otherwise secular activity, such as politics, does not establish a free exercise claim. For example, if a religious organization could latch onto a secular activity and incorporate that activity into its religious activities based simply upon its members’ sincerely held religious beliefs, the scope of free exercise claims would be stretched to an untenable degree. See Faith Builders Church, Inc. v. Department of Revenue, 378 Ill. App. 3d 1037, 1046, 882 N.E.2d 1256 (2008). (“In a sense, everything a deeply devout person does has a religious purpose. But if that formulation determined the exemption from property taxes, religious identity would effectively be the sole criterion. A church could open a restaurant, for instance, and because waiters attempted to evangelize customers while taking their orders, the restaurant would be exempt.”).
In holding that a building had been used solely and exclusively for religious activities, our Supreme Court in Cogswell pointed out that the building had not been used for any “political action” or activities which would have caused it to lose its tax exempt status: “We hasten to add, on the record here presented, there is nothing to show that any part of the use of the building in the administration of the Conference activities embraced political action or activities which would remove the property from its tax exempt status.” Cogswell, 205 Kan. at 861. As a result, our Supreme Court has determined that political action or activities are not considered a religious activity.
Although we accept WBC’s contention that its picketing activities represent its sincerely held religious beliefs, we determine that its political activities and secular philosophy, which constitute a significant part of its picketing activities, preclude a tax exemption for its 2002 Ford F-150 truck. In short, we determine that the picketing activities in use of the truck do not fit within the exemption for exclusively religious purposes under K.S.A. 79-201 Second. Moreover, we determine that the picketing activities in use of the truck do not fit within the exemption for use of property for a nonexempt purpose when the use is minimal in scope and insubstantial in nature under subsection (c) of K.S.A. 79-201 Second. As a result, we determine that BOTA properly denied the tax exemption for the truck.
We have considered the other issues presented by WBC and determine that they lack merit.
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Per Curiam:
Leona R. Hair appeals the district court’s decree of divorce which awarded certain property to Terry M. Hair and denied Leona’s request for spousal maintenance. Leona claims: (1) The district court erred in setting aside certain property to Terry and (2) the district court abused its discretion in denying Leona spousal maintenance. We affirm.
Leona filed for divorce from Terry on September 6, 2005. The district court entered temporal*)? orders requiring Terry to pay spousal maintenance in the amount of $841 per month and child support in the amount of $770 per month. However, by the time the parties reached trial, the children were emancipated and the only contested issues involved the property division and whether to award spousal maintenance to Leona.
Facts regarding property division
The parties owned three homes in Kansas — their marital home, a duplex in Olathe, and a home in Lawrence. Their marital home appraised for $157,500 and was encumbered by a mortgage in the amount of $85,700. Further, the marital home needed approximately $30,000 in repairs. The duplex appraised for $117,500 and was encumbered by a mortgage in the amount of $101,000. Finally, the home in Lawrence, which was purchased because one of the parties’ daughters attended college in Lawrence, appraised for $158,000, but that amount did not include improvements that were made on the home since the appraisal. Further, at the time of the trial, there were two mortgages on the home in Lawrence, one for $92,000 and the other for $11,000.
At trial, Terry testified that the parties spent nearly $40,000 repairing the Lawrence home throughout their marriage. To upgrade and renovate the Lawrence property, the parties took out the loan for $85,700 on the marital residence. Further, after the parties separated, Terry spent $4,000 on replacing the heating and cooling systems in the duplex. During the divorce proceedings, Leona was living in the marital home, while Terry testified that he was living in his deceased father’s home, where he had lived since May 2006 rent free. Teny’s father’s estate was not finalized at the time of the divorce.
The parties also owned three savings and retirement accounts, including Terry’s Kansas Public Employees Retirement System (KPERS) account of $100,000, an AXA Enterprise retirement account of $32,000, which was funded with direct withdrawals from Terry’s paycheck, and an ING account of $15,000. The parties both requested that these accounts be equally divided, although Terry requested that the AXA Enterprise account only be equally divided so long as the district court restored his inheritance.
Finally, the parties owned World Savings bank accounts, which included a certificate of deposit (CD) in the amount of $53,631. Terry testified that a significant portion of the money in the World Savings accounts came from his father’s inheritance. Terry’s father passed away in March 2005, and Terry testified that throughout his father’s lifetime Terry received approximately $162,500 in inheritance and gifts from his father in various CDs, including the World Savings CD worth $53,631. While the CD had remained in the same form since it passed from Terry’s father, the remaining inheritance was commingled into the World Savings bank accounts and mixed with the rest of the parties’ money.
Leona testified that she did not recall the source of the money in the World Savings accounts. She testified that Teriy’s father had provided the couple with various CDs, which she maintained they received in the late 1970’s and paid taxes on the interest every year since. However, Leona also testified that the parties had three or four CDs of their own.
Regarding the CD for $53,631, Leona testified that her name was on the CD and the tax returns showed that the parties filed jointly and paid taxes on the interest from the CD. Both parties agreed that all the income generated by the CD went to Terry’s father. However, while Teriy testified that his father would give them money back at Christmas to offset the amount they were taxed on the CD, Leona testified that Terry’s father never paid them back.
At trial, Leona asked the district court to equally divide the World Savings accounts. Leona maintained that the CD was a gift from Terry’s father to both of them, which they possessed since the late 1970’s. Terry, while agreeing that the World Savings ac counts were joint accounts, asked the district court to set aside to him the CD and to restore to him $51,000 of inheritance money that was used to pay off Leona’s minivan and to renovate the Lawrence home.
Facts regarding maintenance
At trial, Leona asked the district court to award her spousal maintenance in the amount of $1,499 per month for 10 years and 9 months. Leona testified that she worked as a nurse at Kaw Valley Center, earning $25,582 per year, and that she had worked there since 2005. Leona had worked part-time in the nursing industry for the past 20 years. Leona testified that she had applied for full-time work prior to June 2006, but had not received any offers. Leona testified that she was having a difficult time securing full-time employment because she did not have a bachelors degree. Leona also testified that Terry never had an objection to her working part-time.
Terry testified.that he had worked for the Olathe School District since 1981 and earned $63,189 from that position in the 2006-2007 school year. Terry testified that he also received bonuses for coaching soccer, usually providing an additional $3,393 annual income. Terry stated he would be eligible to retire at age 57, and he was 54 years old at the time of trial. However, he stated he would likely stay with the school district another 6 years.
In addition to teaching, Terry owned a painting company that employed from three to nine people during the summer season. Teriy estimated that his painting company earned $20,000 gross income for the summer painting season and that his estimated net profit was $10,000. Terry stated that he would continue painting 3 to 5 years because he had many bills, even though he would like to cut back on painting. Terry also testified that he has hung Christmas lights and cleaned gutters to malee ends meet.
Regarding the decision for Leona to work part-time, Terry testified, “We always had an understanding that it was good for the kids to have their mom at home when they were young. That was not a question or a debate. I have no problem with that.” However, he testified that once the children reached teenage years, Leona could have maintained full-time employment. Terry requested that if the district court ordered maintenance, the district court should input additional income on Leona and make the maintenance requirement for a limited period of time because he would struggle to malee the requested payments.
District Court's decision
The district court entered a decree of divorce on Januaiy 31, 2007. In the divorce decree, the district court ordered Leona and Terry to sell their marital residence and equally divide the proceeds after satisfying all debts. Leona was required to pay any mortgage payments so long as she continued to live in the property and to hold Terry harmless for any payments due while she resided there. Further, the district court ordered Leona and Terry to sell the duplex, and the district court ordered that Terry receive $4,000 from the sale of the property to reimburse him for the money used for repairs on the property. The district court then ordered that the parties equally divide the proceeds after satisfying all debts. The district court also ordered the parties to sell their home in Lawrence and equally divide the proceeds after satisfying all debts.
The district court further ordered that the parties equally divide the AXA Enterprise account, the ING account, and Terry’s KPERS retirement account. The district court also set aside the World Savings accounts, including the CD, to Terry as his separate property. Further, each party received a vehicle as separate property, with Leona receiving the minivan.
Finally, the district court denied Leona’s request for spousal maintenance and stated: “The Court acknowledges that [Leona] may have a need for spousal maintenance but also acknowledges that needs of parties change as lifestyles change as a result of a divorce, which requires the parties to live two separate lifestyles.” The district judge further stated: “Considering how I’ve dealt with the claim of nonmarital property, how I’ve dealt with the sweat equity claims and the division of other assets, I think this is not an appropriate case for maintenance. And so I’m not going to award any maintenance.” Leona timely appeals.
Property division
Leona claims the district court erred in setting aside the World Savings accounts to Terry. Leona argues that Terry’s inheritance had been commingled and largely spent and the CD was originally made as a gift from Terry’s father to both Leona and Terry. Leona argues that the district court’s decision was erroneous because the district court’s designation of the World Savings accounts as Terry’s separate property, when the accounts were held as joint accounts, violated K.S.A. 23-201(b) and K.S.A. 2007 Supp. 60-1610(b).
Terry argues that the district court did not abuse its discretion in setting aside the World Savings accounts to him and maintains that the division was fair and equitable. Teriy notes that the district court ordered the equal division of proceeds from the sale of the parties’ three properties, tire equal division of Terry’s retirement accounts, and awarded the minivan, which was paid off, to Leona. Terry further argues that there was no evidence that Terry’s father gifted the CD to both parties and that Terry’s relationship to his father was the most important factor to determine whether the CD was properly awarded to him.
The district court has broad discretion in adjusting the property rights of parties involved in a divorce action, and its exercise of that discretion will not be disturbed by an appellate court absent a clear showing of abuse. In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 (2002). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). The party asserting drat the district court abused its discretion bears the burden of showing such abuse. In re Marriage of Larson, 257 Kan. 456, 463-64, 894 P.2d 809 (1995).
Under K.S.A. 2007 Supp. 60-1610(b)(1), the district court “shall divide the real and personal property of the parties, . . . whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses’ joint efforts.” The district court is not required to award to each the property inherited by each during the marriage, but is required to malee a fair and equitable division of the property. McCain v. McCain, 219 Kan. 780, 787, 549 P.2d 896 (1976). When a district court divides property pursuant to a divorce, the court shall consider:
“the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; the tax consequences of the property division upon the respective economic circumstances of the parties; and such other factors as the court considers necessary to malee a just and reasonable division of property.” K.S.A. 2007 Supp. 60-1610(b)(1).
Leona argues the district court contradicted itself by finding that Terry’s inheritance was commingled and then awarding the World Savings accounts to Terry as his separate property. At trial, the district court stated that it was clear that there was a large amount of money that came into the marriage by virtue of Terry’s inheritance. Relying on the Johnson County Family Court Guidelines (guidelines), the district court noted that when gifts come from the family of one of the parties, the gifts should revert to that party upon divorce. The district court instructed Terry’s counsel that he would need to show that there were identifiable assets that came from the inheritance. However, it was subsequently pointed out to the district court that the World Savings CD had not been spent by the parties and that this asset was directly traceable to Terry’s father.
The district court did not contradict itself, therefore, by finding that some of Terry’s inheritance was commingled and spent, while also finding that the World Savings CD was a traceable individual asset comprised of Terry’s inheritance. It appears the district court relied heavily on the guidelines in reaching its decision. The guidelines were created by the Family Law Bench-Bar Committee of the Johnson County Bar Association and have not been adopted by any court. Nonetheless, because the district court mentioned the guidelines and used them to arrive at its decision, a review of the pertinent provisions is necessary.
The guidelines define individual property as “[t]he entry value of property received during the marriage by will or inheritance from the party’s family member.” 2005 Johnson County Family Law Guidelines 37-38. The guidelines indicate that the relationship of the donor(s) to the party in the marriage will be the guiding force in determining the status of the property, not the designated donee or intent at the time of the gift. The guidelines further state that individual property should be restored to the party “for or by whom it was acquired before consideration of the division of mutual property.” 2005 Johnson County Family Law Guidelines 38.
Here, the district court did not abuse its discretion when, after considering the guidelines, the district court set aside the World Savings accounts to Teriy. Clearly the World Savings accounts, especially the CD, were individual assets given by Terry’s father to Terry as inheritance. There was significant testimony, even from Leona, that Terry’s father had provided the couple with a CD that now totaled $53,631, which remained a present asset traceable to Terry’s father.
This court has previously held that it is not an abuse of discretion for the district court to refuse to follow the recommendations of the guidelines. In re Marriage of Schwien, 17 Kan. App. 2d 498, 505, 839 P.2d 541 (1992). Likewise, this court should not find that it is an abuse of discretion for the district court to follow the guidelines and set aside inheritance received by one spouse during the marriage when the inheritance is able to be located and traced. So long as neither action is arbitrary, fanciful, or unreasonable, a district court does not abuse its discretion. Bradley, 282 Kan. at 7.
Finally, Leona misunderstands the commands of K.S.A. 23-201(b) and K.S.A. 2007 Supp. 60-1610(b) concerning the division of assets held in joint tenancy. These statutes do not prohibit the district court from setting aside joint accounts to one spouse where the district court can trace the funds to that party’s inheritance. K.S.A. 23-201(b) states that all property owned by spouses, whether held individually or by the spouses in some form of coownership, becomes marital property at the time when one spouse commences an action for divorce. “Each spouse has a common ownership in marital property which vests at the time of com mencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. [2007 Supp.] 60-1610 and amendments thereto.” K.S.A. 23-201(b); Nicholas v. Nicholas, 277 Kan. 171, 178, 83 P.3d 214 (2004).
K.S.A. 23-201(b) gives ownership interests to each spouse in joint property and individually held property once an action for divorce is filed pending the resolution of the divorce. While K.S.A. 23-201(b) deals with the parties’ property at the time one spouse commences an action for divorce, K.S.A. 2007 Supp. 60-1610(b) deals with the district court’s adjudication of property in a divorce action. Nowhere in K.S.A. 23-201(b) or K.S.A. 2007 Supp. 60-1610(b) does it say what Leona argues — that a district court cannot set aside Terry’s inheritance as Terry’s separate property. Here, the parties’ joint accounts at World Savings constituted marital property, but the district court was free to set aside the accounts to Terry based on the evidence that a significant portion of the accounts was part of his inheritance. Because district courts are granted wide discretion in dividing property in a divorce action and Leona has failed to show that the district court’s division was fanciful, arbitrary, or unreasonable, we conclude that the district court did not abuse its discretion in setting aside the World Savings accounts, including the CD, to Terry.
Spousal maintenance
Next, Leona claims the district court abused its discretion in failing to award her spousal maintenance. Leona specifically argues that the district court failed to consider the requisite factors before denying her maintenance. Terry argues that the district court considered all the necessary factors, including the nature of the court’s division of the property, in deciding not to award maintenance to Leona.
The district court has wide discretion regarding spousal maintenance, and an appellate court will only disturb a judgment regarding maintenance if there was a clear abuse of discretion. In re Marriage of Day, 31 Kan. App. 2d 746, 758, 74 P.3d 46 (2003). Judicial discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to tie propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. Bradley, 282 Kan. at 7. The party asserting that the district court abused its discretion bears the burden of showing such abuse. Larson, 257 Kan. at 463-64. However, the district court is required to comply with the statutes authorizing payment of support and maintenance, and failure to do so is reversible error. In re Marriage of Cline, 17 Kan. App. 2d 230, 234, 840 P.2d 1198 (1992).
A maintenance award must be fair, just, and equitable under all the circumstances. K.S.A. 2007 Supp. 60-1610(b)(2). The purpose of spousal maintenance is to provide for the future support of the divorced spouse, and the amount of maintenance is based on the needs of one of the parties and the ability of the other party to pay. Carlton v. Carlton, 217 Kan. 681, 681, 538 P.2d 727 (1975).
In Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976), the court set forth elements that a district court may consider in determining whether to award maintenance, including: (1) the age of the parties; (2) the parties’ present and prospective earning capabilities; (3) the length of the marriage; (4) the property owned by the parties; (5) the parties’ needs; (6) the time, source, and manner of acquisition of property; (7) family ties and obligations; and (8) the parties’ overall financial situation. There factors are nearly identical to the factors set forth in In re Marriage of Sommers, 246 Kan. 652, 654-55, 792 P.2d 1005 (1990), which the district court stated it considered when discussing Leona’s request for spousal maintenance.
Leona argues that the district court failed to properly consider the necessary factors in determining whether to grant spousal maintenance and that such failure constitutes reversible error. Specifically, Leona argues that while the age, property acquisition, and family ties factors may be equal between the parties, the remaining factors should have required that the district court order maintenance.
The length of the marriage was not a contested issue at trial, as both parties agreed that the parties were married in 1974. By the time the district court finalized its journal entry in this case, the parties were married 32 years. However, the district court should not award maintenance on one single factor without considering all other factors, such as the parties’ circumstances, future income, and need. In re Marriage of Sedbrook, 16 Kan. App. 2d 668, 672, 827 P.2d 1222, rev. denied 251 Kan. 938 (1992) (district court abused its discretion when it resolved the issue of maintenance based solely on the party’s cohabitation and failed to evaluate other factors).
Regarding the parties’ present and prospective earning capabilities, it is clear there was income disparity. Leona’s domestic relations affidavit showed that she received a monthly gross income of $1,629.33 and Terry’s domestic relations affidavit showed his monthly gross income of $6,019.54, based only on his employment at the Olathe School District. However, there was less disparity in the parties’ net incomes. Leona’s net monthly income was $1,269.50, while Terry’s net monthly income was $3,298.08.
The parties’ overall financial condition was clearly an issue the district court considered when denying Leona maintenance. There was evidence that Terry worked three or more jobs each year, that he would like to cut back on the amount of jobs he worked but could not do so because of the bills, and that the reason for Leona to work part-time — because she wanted to be home with her children — -was no longer a factor. Terry testified at trial that if the district court ordered maintenance, hé would struggle to make the payments. Further, there was no evidence that Leona could not obtain full-time employment in the future, only that she was having difficulty finding a position at the time of trial.
The district court specifically stated that it considered the nature of the court’s division of property in deciding not to award maintenance to Leona. In the property division, the district court rejected Terry’s request to award him $30,000 from the Lawrence home as reimbursement for inheritance money. The district court also refused to reimburse Terry $21,000 of inheritance money used to pay off Leona’s minivan and instead awarded the minivan to Leona free from any incumbrance. Presumably the division of these assets would have been different if the district court had decided to award maintenance to Leona. The district court also adequately provided for Leona’s retirement by awarding her one- half of Terry’s KPERS retirement account, one-half of the AXA Enterprise retirement account, and one-half of the ING account even though these assets were funded entirely through Terry’s earnings.
It is also significant to note that the district court awarded temporary maintenance to Leona pending the outcome of the divorce. The district court entered a temporary order requiring Terry to pay spousal maintenance in the amount of $841 per month, which amounted to over $12,000 in maintenance during the 15 months that the divorce action was pending. This was a significant amount of support which helped Leona to make the transition from being married to living as a single person.
When the district court’s findings supporting maintenance are supported by die evidence, this court will not second guess the district court’s decision. Although the record contains evidence which may have supported a different disposition in this case, the record also contains substantial competent evidence supporting the district court’s decision to deny Leona’s request for maintenance. We are unwilling to conclude that no reasonable person would have adopted the position taken by the district court. Accordingly, we conclude the district court did not abuse its discretion in denying Leona’s request for maintenance.
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Malone, J.:
Dorian Richardson appeals his convictions of fleeing or attempting to elude a police officer, reckless driving, and driving while suspended. Richardson claims; (1) the district court erroneously instructed the juiy on fleeing or attempting to elude a police officer; (2) his convictions of reckless driving and driving while suspended were multiplicitous with his conviction of fleeing or attempting to elude a police officer; (3) his conviction of fleeing or attempting to elude a police officer was based on acts not alleged in the charging document; (4) the district court erred in denying his request for new counsel; (5) the district court erred by imposing the aggravated sentence in the gridbox; and (6) tire district court erred in assessing the Board of Indigents’ Defense Services (BIDS) attorney fees.
On July 25, 2005, at 1 a.m., Sergeant Matt Cross of the Kansas City Police Department was in uniform and driving a marked police car when he attempted to stop a vehicle registered to Richardson for failing to use a turn signal. Instead of stopping, however, Richardson sped off. Cross activated his in-car DVD recording system, which recorded the chase that ensued. Cross pursued Richardson as he turned off his headlights and drove at speeds of up to 70 m.p.h. through a residential neighborhood. During the chase, Richardson failed to stop at five stop signs or traffic lights, failed to use a turn signal five times, and twice drove left of center. Richardson only stopped after running over two sets of stop sticks set out by Officer Jeff Gardner. As Richardson was approaching the second set of stop sticks, Gardner observed Richardson’s face, which was illuminated from the streetlights and Cross’ spotlight. Gardner later identified Richardson as the driver.
After Richardson finally stopped, he jumped out of the vehicle and fled on foot. Cross continued to pursue Richardson on foot. Although Cross could not see Richardson’s face during the pursuit, Cross observed that the driver was a black male about 6 feet tall and weighing about 180 pounds, wearing a white shirt and blue jeans.
Officer Tiffany Burgtorf arrived at the scene to assist Cross. Burgtorf was approximately IVz blocks behind the pursuit when Richardson bailed out of his vehicle. Burgtorf attempted to cut off Richardson’s path with her vehicle. As she was driving, Richardson ran directly in front of her car and fell to the ground. Burgtorf yelled at him to stay down, but Richardson jumped up, looked directly at Burgtorf, and ran away. Burgtorf chased Richardson on foot and observed him remove his white t-shirt while he was running. Burgtorf ultimately lost sight of Richardson when he neared a house surrounded by bushes.
Cross also lost sight of Richardson during the foot chase. Cross and the other officers set up a perimeter where Cross had last seen Richardson. Shortly thereafter, Burgtorf observed movement in the bushes surrounding a house. Upon investigation the officers found Richardson shirtless and hiding in the bushes. Burgtorf later identified Richardson as the man she had chased.
The State charged Richardson with one count of fleeing or attempting to elude a police officer in violation of K.S.A. 8-1568(b)(1)(E), based on his commission of five or more moving violations during the police pursuit. The information identified Richardson’s moving violations as failing to stop for stop signs and traffic lights. The State also charged Richardson with one count of recldess driving and one count of driving while suspended.
Richardson’s first trial resulted in a mistrial after the jury was unable to reach a verdict. Richardson was retried. Although he did not testify, Richardson’s defense was mistaken identity and that he was not the driver of the vehicle pursued by the police. After hearing the evidence, the jury found Richardson guilty as charged. At sentencing, the district court imposed the aggravated presumptive gridbox sentence of 15 months’ imprisonment for the conviction of fleeing or attempting to elude a police officer. The district court also ordered Richardson to reimburse RIDS $100 in attorney fees. Richardson timely appeals.
Jury instructions
On appeal, Richardson claims the district court erred in failing to instruct the jury on the specific moving violations that formed the basis for his conviction of fleeing or attempting to elude a police officer. He also claims the district court erred by failing to instruct tire jury that reckless driving and driving while suspended could not be used as two of the five moving violations required to prove the offense of fleeing or attempting to elude a police officer. Finally, Richardson claims the district court erred by failing to instruct the jury that each of the moving violations constituted a lesser included offense of fleeing or attempting to elude a police officer. At trial, Richardson did not object to any of the district court’s instructions or request any additional instructions he now claims should have been given to the jury.
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict.” K.S.A. 22-3414(3). An appellate court reviewing a district court’s failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. K.S.A. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]’ ” State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006).
Richardson argues that the district court erred in failing to instruct the jury on the specific moving violations that formed the basis for his conviction of fleeing or attempting to elude a police officer. Fleeing and attempting to elude a police officer consists of a “driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop.” K.S.A. 8-1568(a). A violation of K.S.A. 8-1568(a) is a misdemeanor. However, a charge of fleeing or attempting to elude a police officer can be elevated to a felony in one of several ways, including if the defendant “commits five or more moving violations” during a police pursuit. K.S.A. 8-1568(b) and (c)(4).
Here, the district court instructed the jury on the crime of fleeing or attempting to elude a police officer as follows:
“To establish [the charge of fleeing or attempting to elude a police officer], each of the following claims must be proved:
“1. That the defendant was driving a motor vehicle; and
“2. That die defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop; and
“3. That the defendant intentionally failed or refused to bring the motor vehicle to a stop, or otherwise fled or attempted to elude a pursuing police vehicle; and
“4. That the police officer giving such a signal was in uniform, prominendy displaying such officer s badge of office; and
“5. That the police officer’s vehicle was appropriately marked showing it to be an official police vehicle;
“6. That the defendant committed five or more moving violations;
“7. That this act occurred on or about die 25th day of July, 2005, in Wyandotte County, Kansas.” (Emphasis added.)
This instruction is identical to PIK Crim. 3d 70.09. The district court did not attempt to identify or define in the instruction what constituted the five or more moving violations that Richardson allegedly committed. Richardson claims this prevented the jury from rendering a lawful verdict.
Richardson relies on State v. Linn, 251 Kan. 797, 840 P.2d 1133 (1992), superseded by statute on other grounds by State v. Hedges, 269 Kan. 895, 901, 8 P.3d 1259 (2000). In Linn, the defendant was charged with felony murder, aggravated battery, and aggravated burglary. On the aggravated burglary charge, there was evidence at trial that the defendant entered the residence with the intent to commit robbery, aggravated battery, or theft. Over the defendant’s objection, the district court instructed the jury that in order to find the defendant guilty of aggravated burglary, it must find that the defendant entered or remained in the residence “ ‘with the intent to commit a felony or theft therein.’ ” 251 Kan. at 800. However, the district court did not set forth the elements of any of the underlying felonies in the jury instructions. The jury found the defendant guilty as charged.
On appeal, the Kansas Supreme Court reversed. The court stated that the district court had a duty to enumerate the statutory elements of aggravated burglary. One of the elements of aggravated burglary is that the defendant entered a residence with the intent to commit a felony or theft therein. The court held that an instruction on aggravated burglary is defective unless it specifies and sets forth the statutory elements of the offense intended by the defendant in making the unauthorized entry. 251 Kan. at 802.
The State attempts to distinguish Linn by pointing out there is no underlying felony for the crime of fleeing or attempting to elude a police officer. The State argues that the finding of five or more moving violations merely enhances the crime from a misdemeanor to a felony, and the finding is not a necessary element of the offense. This argument misses the point. Here, the jury was instructed that to establish the crime of fleeing or attempting to elude a police officer, the jury must find beyond a reasonable doubt that Richardson committed five or more moving violations. From the jury’s perspective, this was certainly an element of the offense. Even if the finding that Richardson committed five or more moving violations was merely a sentencing enhancement rather than an element of the offense, it would constitute a sentencing enhancement other than a prior conviction. Under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), such a fact must be proven to a jury beyond a reasonable doubt to avoid violating Richardson’s constitutional rights.
There is no question that tire traffic infractions Richardson allegedly committed during the police pursuit constitute moving violations. K.A.R. 92-52-9 lists the traffic violations that are considered moving violations. See K.S.A. 2007 Supp. 8-249(b). Among the moving violations enumerated are K.S.A. 8-1514 (driving left of center), K.S.A. 8-1528 (failing to stop at a stop sign), K.S.A. 8-1548 (turning movements and required signals), K.S.A. 2007 Supp. 8-1558 (speeding), and K.S.A. 2007 Supp. 8-1703 (driving without headlights). K.A.R. 92-52-9(a)(1)(J), (K), (P), (Q), and (AA). However, the issue here is whether the district court erred in failing to define the moving violations for the jury.
PIK Crim. 3d 70.09 is silent as to whether the district court should define the moving violations for the jury when the defendant is charged with fleeing or attempting to elude a police officer under K.S.A. 8-1568(b)(1)(E). Nor are there any published decisions directly on point. However, there are several unpublished decisions from this court analyzing the issue. Most recently, in State v. Blazier, No. 94,677, unpublished opinion filed February 23, 2007, rev. denied 284 Kan. 947 (2007), this court found no clear error where the district court failed to define moving violations in the jury instructions on felony fleeing and eluding charges. In Blazier, the pursuing officer testified that the defendant committed more than five traffic violations during the chase, including six instances of failing to signal a turn, three instances of disobeying a stop sign, two instances of driving down the middle of the road, and two instances of reckless driving. The jury also watched a videotape of the pursuit. Slip op. at 16-19.
In State v. Fuller, No. 92,895, unpublished opinion filed January 6, 2006, the district court’s jury instruction on fleeing or attempting to elude a police officer identified five traffic offenses as examples of moving violations, but the instruction did not define the moving violations. On appeal, this court found no clear error where the jury instruction listed all the statutory elements of the offense and the jury had heard testimony from the pursuing officers concerning the defendant’s moving violations. Even though the juiy instruc tions did not define moving violations, this court stated that the district court need not define words or phrases that are commonly understood, and, therefore, the district court did not commit clear error. See slip. op at 4-6 (citing State v. Phelps, 28 Kan. App. 2d 690, 695, 20 P.3d 731, rev. denied 271 Kan. 1041 [2001]).
However, in another fleeing or eluding a police officer case, State v. Watkins, No. 90,245, unpublished opinion filed July 2, 2004, this court found merit in the defendant’s argument that the district court erred by not defining the moving violations in the jury instructions. Reasoning that the jury should not have to speculate on what the elements are for a moving violation, this court found that the district court should have instructed the jury on the elements of the five moving violations. Nevertheless, the court ultimately reversed the defendant’s fleeing or attempting to elude conviction on other grounds, rendering the jury instruction issue moot. Slip op. at 11.
Like the court in Watkins, we agree that when a defendant is charged with felony fleeing or attempting to elude a police officer based on the commission of five or more moving violations, the district court should identify and define in tire jury instructions the moving violations relied on by tire State and supported by the evidence at trial. Although the definition of some moving violations may be commonly understood by a jury without a specific definition from the court, there are certain moving violations whose definition may be beyond the common knowledge of the average juror.
Given our standard of review, the only question is whether a real possibility exists that the jury would have rendered a different verdict if the district court had defined for the juiy the moving violations allegedly committed by Richardson. At trial, Cross recounted the traffic violations he witnessed while chasing Richardson, including driving without headlights at night, driving at speeds of up to 70 m.p.h. through a residential neighborhood with a 30 m.p.h. speed limit, failing to stop at five stop signs or traffic lights, failing to use a turn signal five times, and driving left of center twice. This constitutes a total of 14 moving violations without including the separate charges of reckless driving and driv ing while suspended. More importantly, the jury also watched a videotape of the pursuit that fairly and accurately represented what happened during the chase.
Richardson did not dispute any of the alleged moving violations at trial. His defense was that he was not the driver of the vehicle pursued by the police. The moving violations involved in Richardson s case are the type of moving violations that would be commonly understood by a juiy without a specific definition from the court. Given the undisputed testimony from Cross regarding the number of moving violations committed by Richardson during the police pursuit and the fact that the jury viewed the pursuit on videotape, we conclude there is no real likelihood that the juiy could have returned a different verdict had the district court properly defined the moving violations.
Next, Richardson argues that the district court committed clear error by failing to instruct the juiy that if it found Richardson guilty of reckless driving and driving while suspended, those offenses could not be used as two of the five moving violations necessary to find him guilty of felony fleeing or attempting to elude a police officer. To prevail on this argument, Richardson must show that there is a real possibility the jury would have rendered a different verdict if the jury had been so instructed. See Trotter, 280 Kan. at 805. Richardson cannot do so. The undisputed evidence shows that Richardson committed at least five moving violations by failing to stop for stop signs or traffic lights. These moving violations alone are enough to support Richardson’s conviction of felony fleeing or attempting to elude a police officer. Even if the jury had been instructed not to consider reckless driving or driving while suspended as moving violations, Richardson cannot show that the jury would have returned a different verdict.
Richardson further argues that the district court committed clear error when it failed to instruct the jury on the moving violations as lesser included offenses of the crime of fleeing or attempting to elude a police officer. Pursuant to K.S.A. 21-3107(2), upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. Determination of whether a crime is a lesser included offense is a question of law, over which an appellate court has unlimited review. State v. Alderete, 285 Kan. 359, 361-62, 172 P.3d 27 (2007).
According to Richardson, the commission of five or more moving violations is included as an element of fleeing or attempting to elude a police officer under K.S.A. 8-1568(b)(1)(E). Richardson argues: “To establish all elements of fleeing or attempting to elude a police officer, the State necessarily had to prove five or more moving violations. Therefore, the five or more moving violations are lesser included crimes of fleeing or attempting to elude a police officer.”
Richardson’s argument is reminiscent of the second prong of the former Fike standard for lesser included offenses. See State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). This standard was based on a previous version of K.S.A. 21-3107(2) that defined an included crime as “a crime necessarily proved if the crime charged were proved.” See K.S.A. 21-3107(2)(d) (1995 Furse). However, that subsection has been deleted from the statute. See L. 1998, ch. 185, sec. 1.
Under tire current test, a lesser included crime is “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 21-3107(2)(b). The court performs a strict statutory elements test to determine if an offense is a lesser included offense of the crime charged. “The current test no longer takes into account the factual nuances of a specific case as they may bear on satisfaction of the statutory elements of both crimes under examination.” Alderete, 285 Kan. at 362.
The moving violations necessary to satisfy K.S.A. 8-1568(b)(1)(E) may consist of any combination of possible traffic violations given the particular facts of a case. Our Supreme Court has made it clear that all the elements of a proposed lesser included offense must be identical to some of the elements of the crime charged to be a lesser included offense of that crime. Under the strict statutory elements test, without applying the facts, the five individual moving violations in Richardson’s case are not lesser included offenses of the crime of fleeing or attempting to elude a police officer. The district court did not err by failing to instruct on the moving violations as lesser included offenses.
Were the convictions multiplicitous?
Next, Richardson claims that his convictions of reckless driving and driving while suspended were multiplicitous with his conviction of fleeing or attempting to elude a police officer. Richardson did not raise this issue in district court. However, multiplicity may be raised for the first time on appeal in order to serve the ends of justice or prevent the denial of fundamental rights. State v. Nguyen, 285 Kan. 418, 433, 172 P.3d 1165 (2007). Richardsons claim of multiplicitous convictions implicates his fundamental constitutional right not to be placed in double jeopardy for the same offense. See State v. Gomez, 36 Kan. App. 2d 664, 668, 143 P.3d 92 (2006). Therefore, we will consider Richardsons multiplicity claim for the first time on appeal.
Multiplicity is the charging of a single offense in several counts of a complaint or information. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. 276 Kan. at 205. Whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Stevens, 278 Kan. 441, Syl. ¶ 1, 101 P.3d 1190 (2004).
In State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), the Supreme Court developed a two-part analysis to determine whether convictions are multiplicitous. First, a court must consider whether the convictions are based upon the same conduct. If not, the multiplicity analysis ends. 281 Kan. at 496. Some of the factors to consider are whether the acts occur at or near the same time and location, whether there is a causal relationship between the acts, and whether there is a fresh impulse motivating some of the conduct. 281 Kan. 453, Syl. ¶ 16. Here, Richardson s convictions of reckless driving and driving while suspended were based upon the same incident supporting his conviction of fleeing or attempting to elude a police officer. All three convictions arose out of the high-speed chase when Richardson attempted to elude Cross and the other police officers. Applying the Schoonover factors, the convictions were based upon the same conduct.
If based upon the same conduct, the court must then consider whether the convictions are based upon a single statute or multiple statutes. If the convictions are based upon different statutes, such as in the present case, the convictions are multiplicitous only when the statutes upon which the convictions are based contain an identity of elements. The court clarified that the same-elements test is the only test to determine multiplicity arising from convictions of separate statutes. 281 Kan. at 497-98.
Fleeing or attempting to elude a police officer consists of a “driver of a motor vehicle who willfully fails or refuses to bring such driver s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop” and who during a police pursuit “commits five or more moving violations.” K.S.A. 8-1568(a) and (b)(1)(E). Reckless driving occurs when a person “drives any vehicle in willful or wanton disregard for the safety of persons or property.” K.S.A. 8-1566(a). Driving while suspended occurs when “[a]ny person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked.” K.S.A. 2007 Supp. 8-262(a)(1).
Fleeing or attempting to elude a police officer requires proof that the defendant was signaled to stop by an officer, but did not do so. Neither reckless driving nor driving while suspended contains this element. Moreover, recldess driving requires proof that the offender drove with recldess disregard for the safety of persons or property. Even though fleeing or attempting to elude a police officer under 8-1568(b)(1)(E) requires proof that the offender committed five or more moving violations, it does not contain the element that the offender drove with reckless disregard for the safety of persons or property. Driving while suspended requires that the offender’s license be suspended. Neither reckless driving nor fleeing or attempting to elude a police officer contains this element. Under the Schoonover analysis, Richardson’s convictions were not multiplicitous because the statutes upon which the convictions are based do not contain an identity of elements.
Was Richardson’s conviction based on acts not alleged in the charging document?
Next, Richardson claims the State relied upon moving violations not alleged in the charging document to prove that he committed the crime of fleeing or attempting to elude a police officer. Here, the charging document stated that Richardson committed five or more moving violations, identified as failing to stop for stop signs and traffic lights. At trial, however, the State presented evidence that Richardson committed additional moving violations, including driving without headlights, speeding, failure to use turn signals, and driving left of center. Without citing any legal authority for support, Richardson contends this violated his constitutional due process rights.
Richardson did not raise this issue in district court. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). An exception exists if consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). Whether an individual’s constitutional rights have been violated is a question of law, and an appellate court’s review is unlimited. McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715 (2004).
Here, the charging document alleged:
“Dorian W. Richardson did unlawfully and willfully fail or refuse, while operating a motor vehicle, to bring the vehicle to a stop, or did otherwise flee or attempt to elude a pursuing police vehicle, having been given visual or audible signals to do so by a uniformed police officer, and in the course of such police pursuit: did commit five or more moving violations, to-wit: did fail to stop for stop signs and traffic lights, in violation of K.S.A. 8-1568 (Eluding a Police Officer, Severity Level 9, Person Felony).”
We begin by noting that, in terms of the sufficiency of the language of the charging document, the State was not required to specify any of the moving violations Richardson allegedly committed. In State v. Akins, No. 93,767, unpublished opinion filed April 21, 2006, rev. denied 282 Kan. 791 (2006), the defendant was charged with fleeing or attempting to elude a police officer. The charging document alleged that the defendant committed five or more moving violations but did not specify amj of the moving violations the defendant allegedly committed. This court rejected the defendant’s argument that the charging document was defective. The court found that the charging document was drawn from the language of the statute and was sufficient to inform the defendant of the charge against him. Slip op. at 5-6; see also State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985) (although accused has the right to know the nature of the charge against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge).
Here, the charging document alleged that Richardson committed five or more moving violations. The charging document informed Richardson of the charge against him, and the evidence at trial conformed with the charging document. The uncontested evidence showed that Richardson failed to stop at five stop signs or traffic lights. The fact that there was evidence of additional moving violations Richardson committed in the course of the police pursuit did not violate Richardson’s constitutional due process rights. Richardson has not explained how his ability to defend himself was prejudiced or how his substantial rights to a fair trial were impaired by the evidence of the additional moving violations. We conclude that Richardson’s constitutional argument is without merit.
Request for new counsel
Richardson claims the district court erred when it denied his request for new counsel before the commencement of his second jury trial. Richardson contends there was a conflict of interest and a complete breakdown in communication between him and his court-appointed attorney.
An appellate court reviews the district court’s refusal to appoint new counsel for abuse of discretion. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The district court abuses its discretion when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
A defendant must show justifiable dissatisfaction with his or her appointed counsel to justify the appointment of new counsel. Justifiable dissatisfaction occurs when there is a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. McGee, 280 Kan. at 894. When the district court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further to insure that the defendant’s Sixth Amendment right to counsel is not violated. State v. Vann, 280 Kan. 782, Syl. ¶ 1, 127 P.3d 307 (2006).
Richardson’s complaint about his court-appointed attorney is somewhat difficult to follow. After the district court ruled on pretrial motions, the district court asked if there were any further matters. The prosecutor and defense counsel indicated that they did not have any other issues to address when Richardson stated that he objected to his appointed counsel, W. Frederick Zimmerman, based on a conflict of interest. Richardson’s primary objection hinged on a single telephone conversation that Zimmerman had with Richardson’s girlfriend and possible alibi witness, Vicki Kochsmeier. In this conversation, Zimmerman allegedly informed Kochsmeier that Richardson’s prior attorney had withdrawn “because of an incident she perceived to be inappropriate.” Richardson interpreted this as a breach of the attorney-client privilege and claimed that Zimmerman sabotaged Kochsmeier as a witness.
The district court inquired further into the situation, asking both parties to explain. Richardson indicated that he did not want Zimmerman to have any further contact with Kochsmeier. The district court stated that it would allow Richardson to contact Kochsmeier directly and that the court would consider continuing the trial if Richardson was unable to locate Kochsmeier. The district court held a recess so that Richardson could call Kochsmeier. Richardson was unable to contact Kochsmeier during the recess, but Richardson agreed to proceed to trial as scheduled to avoid another delay. Ultimately, the district court found that the conversation between Zimmerman and Kochsmeier was not a breach of attorney-client privilege and did not warrant Zimmerman’s discharge. In support of its ruling, the district court observed that Zimmerman was Richardson’s fourth attorney, Zimmerman was an experienced attorney, the defense was relatively straightforward, and Zimmerman would protect Richardson’s interests.
On appeal, Richardson argues Zimmerman violated Kansas Rule of Professional Conduct (KRPC) 1.6, which governs the confidentiality of information. KRPC 1.6 provides that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.” (2007 Kan. Ct. R. Annot. 436.)
We disagree that Richardson showed a justifiable dissatisfaction with Zimmerman to justify the appointment of new counsel. Richardson failed to establish a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between Richardson and Zimmerman. McGee, 280 Kan. at 894. The district court provided a meaningful opportunity for Richardson to express his allegations to the court, and the court adequately addressed his complaints. Regarding Richardson’s reluctance to allow Zimmerman to contact Kochsmeier as a possible alibi witness, the district court held a recess and arranged for Richardson to personally contact Kochsmeier via telephone. When Richardson’s attempt to contact her was unsuccessful, Richardson agreed to proceed to trial to avoid another delay. The district court attempted to accommodate Richardson to the extent possible and to facilitate communication between Richardson and Zimmerman, and the district court cited persuasive reasons supporting its decision not to appoint new counsel. We conclude the district court did not abuse its discretion in denying Richardson’s request for new counsel.
Sentencing issues
Richardson raises two sentencing issues. First, Richardson argues his Sixth and Fourteenth Amendment rights were violated when die district court imposed the aggravated presumptive grid-box sentence of 15 months’ imprisonment for the conviction of fleeing or attempting to elude a police officer, without citing factors justifying the aggravated sentence and proving them to a jury beyond a reasonable doubt. Richardson cites Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 476, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), for support.
Our Supreme Court recently addressed this issue in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). In Johnson, the court held that a sentence to any term within the range stated in a Kansas sentencing guidelines presumptive gridbox does not violate either Cunningham or Apprendi and that “K.S.A. 21-4720(e)(1) does not require a sentencing judge to cite to an aggravating or mitigating fact when determining which presumptive sentence to impose.” Johnson, 286 Kan. at 849. The court also held that in a direct appeal, an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block. Johnson, 286 Kan. at 851-52.
Here, Richardson’s sentence for fleeing or attempting to elude a police officer is a presumptive sentence, even though the district court imposed the highest term in the presumptive gridbox. Therefore, this court lacks jurisdiction to consider this issue on direct appeal.
Finally, Richardson maintains that the district court ordered him to reimburse BIDS for attorney fees without considering his ability to pay the fees or the financial burden that payment would impose, as mandated by K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). The State concedes that the district court did not comply with Robinson and agrees that the case should be remanded to the district court to consider the appropriate findings. The record reflects that the district court did not make any inquiries regarding Richardson’s financial circumstances before ordering reimbursement of BIDS attorney fees. Thus, we remand the case to the district court for compliance with K.S.A. 22-4513 and Robinson.
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Leben, J.:
T.W. Frank obtained a permit from the chief engineer of the Kansas Division of Water Resources to build a groundwater pit on his land. As a condition of the permit, he built an embankment to prevent surface water from entering the pit. But the chief engineer later concluded that Frank had done something that Kansas law prohibited and his permit didn’t authorize: obstructing a stream. Since 1929, a Kansas statute has prohibited stream obstructions without a permit from the Division of Water Resources’ chief engineer. See K.S.A. 2007 Supp. 82a-301.
The chief engineer has adopted a regulation that applies to properties like Frank’s where a site within a watershed area has been altered so that a determination is no longer possible on visual inspection of whether a stream with well-defined bed and banks once existed there. In such cases, under the regulation, “it shall be presumed that [the stream] did exist . . . unless the owner . . . can conclusively demonstrate that the well-defined bed and banks did not exist before the construction of the project.” K.A.R. 5-40-1(k)(3). The chief engineer interprets this regulation to mean that it is presumed in certain watershed areas that a stream existed in any location unless the owner can prove that no such stream existed there from 1929, when Kansas adopted the stream-obstruction law, to the present.
Whether this is a reasonable interpretation of the statute is at the core of Frank’s appeal. Courts usually grant some degree of deference to an agency’s interpretation of a statute that the agency is responsible for administering. We conclude that this is an appropriate case in which to grant such deference, and we find that the chief engineer’s interpretation is reasonable. If, as Frank suggests, a stream must be in existence immediately before the obstruction is built, a person might avoid the statute’s reach by first modifying the stream’s bed and banks before later building the obstruction. We also conclude that sufficient evidence in the record before the chief engineer supported his conclusion, based in part on the presumption, that Frank had obstructed a stream. We therefore affirm the chief engineer’s decision.
The Chief Engineer Concluded that Frank Obstructed a Stream.
Frank asked for a permit to appropriate water for recreational purposes by collecting it in a groundwater pit in rural Sumner County. The permit was approved, and Frank built the pit. The permit required him to construct and maintain the pit so untreated surface-water drainage wouldn’t flow into it; Frank built a berm around the pit to comply with that condition.
After construction of the pit, Frank’s neighbor complained about water backing up onto the neighbor’s property. The chief engineer concluded that Frank had obstructed a stream, which caused the change in water flow. Frank’s permit had specifically said that it gave no authority to obstruct a stream, so the chief engineer told Frank that he must file a separate application for a permit to construct a stream obstruction. Frank contested this view, and the chief engineer heard testimony from Frank and die Division of Water Resources. The chief engineer concluded that a stream had been obstructed and that Frank had to apply for a permit to do that. The chief engineer also ordered that staff of the Division of Water Resources work with Frank in an attempt to find a solution that would allow Frank to comply with the law but still proceed with the project. The chief engineer said that “the solution should find a way to stop water from backing up” on the right-of-way to Highway K-53 and on the property of neighboring landowners. Frank appealed the chief engineer’s order.
Standard of Review on Appeal
Frank has appealed the order under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. As applicable to Frank’s appeal, we can reverse the agency if it has erroneously interpreted the statute, K.S.A. 77-621(c)(4), if the agency’s procedures were improper, K.S.A. 77-621(c)(5), if its decision was not supported by substantial evidence, K.S.A. 77-621(c)(7), or if its decision was “otherwise unreasonable, arbitraiy or capricious.” K.S.A. 77-621(c)(8).
Kansas courts generally give substantial deference to an administrative agency’s interpretation of a statute that the agency administers, and we have done so with respect to the Division of Water Resources’ interpretation of the state’s water laws. See Frick Farm Properties v. Kansas Dept. of Agriculture, 40 Kan. App. 2d 132, 138-39, 190 P.3d 983 (2008), aff'd 289 Kan. 690, 216 P.3d 170 (2009). But the Kansas Supreme Court has suggested in a recent case that deference may not be called for when an agency applies a statute on undisputed facts:
“Although this court has previously stated that ‘interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute’ and that ‘the legal interpretation of a statute by an administrative agency that is charged by the legislature with the authority to enforce the statute is entitled to great judicial deference,’ [citation omitted] we have recently been reluctant to apply the doctrine . . . when faced with questions of law on undisputed facts. [Citation omitted.] An agency’s interpretation of a statute is not conclusive; final construction of a statute always rests within the courts. [Citations omitted.]” Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008).
Frank’s case presents an interesting one in which to consider the limitation on agency deference suggested in Denning, for the facts are in dispute in part because of the presumption the Division applies, which is based on its statutory interpretation. In balancing the general rule of deference with the limitation suggested in Denning, we must factor in the expertise required from the agency in administering the statute. That need for agency expertise is the justification for deference to the agency in statutory interpretation, which is otherwise a matter well suited for the court to resolve.
We consider the stream-obstruction statute and the chief engineer’s regulations under it as both existed at the time of Frank’s 2005 hearing before the chief engineer. The chief engineer has made changes since then to the regulations, but those changes do not modify the rights of the parties in this dispute.
The District Court Ruled that Frank had Failed to Meet his Burden to Show Error by the Chief Engineer.
The district court affirmed the chief engineer’s order and applied the same standards we have noted under K.S.A. 77-621. In a detailed opinion, the district court found that the chief engineer had cited sound policy reasons in support of his interpretation of the statute: “[T]he jurisdiction of the Chief Engineer should not be reduced by the activity of land owners obliterating the bed and banks of streams.” The district court found that Frank had the burden of showing that no stream existed at the location where he built his groundwater pit at any time since 1929 and that Frank had failed to do so. The district court also noted that substantial evidence supported the presumption that a stream had at some point been located there.
Our court’s review of the agency’s decision is, like the district court’s, governed by K.S.A. 77-621. Though we certainly give consideration to the district court’s reasoning, we apply the standards set out in K.S.A. 77-621 without any required deference to the district court’s conclusion. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 611, 132 P.3d 870 (2006). As the party asserting error by the agency, Frank has the burden to show its error. K.S.A. 77-621(a)(l); Hawley, 281 Kan. at 611.
The Chief Engineer and the District Court Correctly Determined that Frank Obstructed a Stream.
To interpret a statute, we begin with its words. K.S.A. 2007 Supp. 82a-301(a) contains a broadly worded prohibition against doing anything that might obstruct or modify “any stream” in Kansas without a permit from the chief engineer:
“Without the prior written consent or permit of the chief engineer of the division of water resources of tire Kansas department of agriculture, it shall be unlawful for any person, partnership, association, corporation or agency or political subdivision of the state government to: (1) Construct any dam or other water obstruction; (2) make, construct or permit to be made or constructed any change in any dam or other water obstruction; (3) malee or permit to be made any change in or addition to any existing water obstruction; or (4) change or dimmish the course, current, or cross section of any stream within this state. Any application for any permit or consent shall be made in writing in such form as specified by the chief engineer. Jetties or revetments for the purpose of stabilizing a caving bank which are properly placed shall not be construed as obstructions for the purposes of this section.”
The statute thus prohibits building any obstruction, changing any existing obstruction, or changing the course of any stream in Kansas. But the statute does not define what constitutes a stream.
Questions not addressed directly by a statute often are covered in a regulation. And the legislature has given the chief engineer explicit authority to adopt regulations “to establish standards for the construction, modification, operation and maintenance” of stream obstructions and “to administer and enforce” K.S.A. 82a-301 and related statutes. K.S.A. 82a-303a. So the chief engineer has stepped in with a regulation defining what constitutes a stream. K.A.R. 5-40-1(k) defines a stream as “any watercourse that has a well-defined bed and banks” so long as it “has a watershed above the geographic point in question that exceeds” certain acreage requirements. There is no dispute in Frank’s case that the location of his pit is within a watershed area of substantial acreage.
The regulation has one more provision in its definition of a stream. The regulation provides a presumption that a stream existed at any location within a watershed of the required acreage if well-defined bed and banks can no longer be found. But this presumption may be overcome by evidence to the contrary:
“The stream need not flow continuously and may flow only briefly after a rain in the watershed. If the site of the project has been altered so that a determination of whether the well-defined bed and banks exist is not possible, it shall be presumed that they did exist if the watershed acreage criteria have been met, unless the owner of the project can conclusively demonstrate that the well-defined bed and banks did not exist before the construction of the project.” K.A.R. 5-40-1(k)(3).
In sum, then, the statute broadly prohibits blocking or modifying any stream, but it doesn’t define what a stream is. The chief engineer’s regulation defines a stream as any waterway with well-defined bed and banks, even if water does not flow continuously. And if the location is in a watershed area, the chief engineer may presume that a stream was once located in any particular place unless the landowner can prove otherwise. One further caveat to this presumption was added at Frank’s hearing. Matt Scherer, a Division official, testified that the Division does not require proof of the absence of a stream before 1929, when the stream-obstruction statute was passed.
Frank claims that the caveat that the landowner must prove there had been no stream “all the way back to 1929” is a “phantom requirement” not tied in any way to the statute. He argues generally that the statute does not authorize the presumption that a stream once existed in a particular location.
Frank’s complaint is misplaced about die chief engineer’s use of 1929 as a cutoff. The chief engineer has relieved the landowner of any requirement to prove the absence of a stream before Kansas law specifically prohibited stream obstructions. Thus, the insertion of a temporal limitation on the presumption to 1929 benefits landowners hke Frank; it certainly is not to their detriment.
What’s really at issue is whether the chief engineer has exceeded the authority given to him under the statute by creating the presumption that a stream exists. Can a person obstruct a stream — in violation of the statute — where no stream is now apparent?
Let’s take a closer look at the facts of our case as they were determined by the chief engineer. He concluded that an unnamed tributary to Cowsldn Creek flows from north to south, going under Highway K-53 and onto Frank’s property. He noted that in 1950 the Kansas Department of Transportation had built a bridge on that highway with a large concrete-box culvert under it to allow water to pass, and he also noted that the plans for the bridge were designed for a drainage area of 4,207 acres, which is roughly the same as the 4,165 acres of watershed above Frank’s property. The chief engineer calculated the water flow through the area based on KDOT’s culvert’s design; he concluded that there was a 50% chance in any given year of a storm that would produce a flow greater than 300 cubic-feet-per-second. In his engineering judgment, such a flow “would cut a defined channel if the area remained in a natural condition.” He concluded that peak flow in a 100-year storm would be about 1,600 cubic-feet-per-second, which was consistent with the design capacity of the bridge culvert. The chief engineer noted that a variety of human endeavors had altered the natural flow of the stream, including farming, roads, highways, railroads, a levee, a housing development, and a horse pen.
Because of these human activities, the chief engineer found that no distinct stream channel was visible a mile north of Frank’s property. The land just north of the highway had been farmed with irrigation since at least 1991. But aerial photos showed past channels or depressions for water drainage in a crescent-shaped arc north of the highway. That water flowed through the highway culvert from 1950 forward. Even below Frank’s property, though, the chief engineer noted that an aerial photo showed “a channel or depression” that had been “somewhat degraded by the feet of horses penned in the area.” Downstream from that horse pen, the chief engineer concluded that the unnamed tributary continued through a housing development, a pond, and south through an alfalfa field but that there was no longer a “distinct channel or depression” through the housing development or the alfalfa field. He also noted a levee before the water would reach Cowskin Creek but said that pipes with “flapgate valves” going through the levee allowed water to flow into the creek.
The chief engineer made another finding of note: that a 1955 United States Geological Survey map showed an “intermittent stream” that began “almost one mile north of [Frank’s] property and continu[ed] down through [Frank’s] property towards Cowskin Creek,” though it did not reach the creek. The chief engineer said that the USGS designation for an intermittent stream meant one that contains water for only part of the year.
We now return to the legal issues before us: Did the chief engineer exceed statutory authority in (a) defining what is a stream or (b) applying a presumption that a stream has previously existed within that watershed area? But our answer to those questions may depend upon our answer to one other preliminary question: What level of deference should we give to die chief engineer in answering these questions?
Deference to an administrative agency is of course greatest when the agency must apply special training or expertise in administering a statute. See Hawley, 281 Kan. at 612. This is such a case. The chief engineer is appointed by the Kansas Secretary of Agriculture, and the legislature has provided that the chief engineer have “such expert assistants” as “may be necessary.” K.S.A. 74-506d. In his ruling in Frank’s case, the chief engineer applied his professional training to calculate water flows from 2-year and 100-year storms, to apply those general calculations to a specific watershed acreage and to the specific size of the K-53 bridge culvert, and to read USGS quadrangle maps. He observed directly that he applied both engineering and hydrologic judgment in making his calculations; presumably the Secretary of Agriculture routinely appoints some one with substantial professional training and experience in both areas as chief engineer of the Division of Water Resources.
We have noted that the Denning caveat to deference to an agency’s statutory interpretation applies only when the court faces “questions of law on undisputed facts.” 285 Kan. at 1048. The facts are undisputed in this case only if we first rely upon the expertise of the chief engineer, who has determined many of the facts based on that expertise. Frank has argued that the USGS map actually shows a narrow wash, not an intermittent stream. Frank also notes that another map, a 1986 map prepared by Sedgwick County, shows a slough that doesn’t reach Cowskin Creek, not an intermittent stream. But the chief engineer didn’t find Frank’s arguments convincing, and the chief engineer’s conclusions are supported by substantial evidence (which includes his own calculations) and therefore must be accepted on appeal.
In a case like this one, in which the factual disputes are decided through application of the agency’s expertise and the agency administers a statute that requires expert administration, substantial deference to the agency’s interpretation of that statute is appropriate. When deference is owed to the agency’s interpretation, the Kansas Supreme Court has said that the agency’s interpretation should be upheld if there is a rational basis for it even when other interpretations of the statute might also be possible. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 238-39, 260-61, 75 P.3d 226 (2003) (approving agency’s interpretation of statute designed to protect public; court granted great deference and found that agency’s interpretation should be upheld because it had a rational basis).
Under this standard, we conclude that the chief engineer’s interpretation of K.S.A. 2007 Supp. 82a-301 has a rational basis and should be upheld. First, the chief engineer’s definition of stream as any watercourse with well-defined bed and banks essentially tracked preexisting Kansas caselaw. See Wood v. Brown, 98 Kan. 597, 599, 159 P. 396 (1916) (finding a watercourse to require “an eroded channel with clearly distinguishable bed and banks”). Second, the chief engineer’s view that the well-defined bed and banks need not still be discernible immediately before construction oc curs is consistent with the statutory purpose and not contrary to any language in the statute. The legislature gave the chief engineer exclusive jurisdiction over stream obstructions “to the extent required for the protection of public safety.” K.S.A. 2007 Supp. 82a-301a. That objective could not be met if landowners could take away the chief engineer’s authority to regulate stream obstructions merely by first efiminating the well-defined bed and banks of part of a stream. Water may still flow through the area, and interpreting the statute to give the chief engineer authority to regulate obstructions of that water flow would still serve to protect the public.
Last, the chief engineer’s presumption that a stream existed at any location within a watershed is a rational interpretation of the statute, at least as applied to Frank’s case. The legislature prohibited stream obstructions from 1929 forward, and the statute is violated by any modification to a stream after 1929 that the chief engineer hasn’t approved. While Frank did not own his property from 1929 to the present (he bought it in 1980), he acquired no greater rights when he bought it than the prior owner had — and he certainly didn’t acquire a preexisting right to violate the Kansas stream-obstruction law. The chief engineer’s presumption is applied only to watersheds of substantial acreage, which are by definition areas of significant waterflow. When the construction of a barrier to waterflow causes changes to the amount of water flowing onto other properties, application of the chief engineer’s presumption is quite rational.
Kansas law allows a court to overturn an agency’s order not only when the agency has misinterpreted a law, but also when its order is “otherwise unreasonable.” K.S.A. 77-621(c)(8). Perhaps a case may occur in which applying the chief engineer’s presumption would be so unreasonable that a court would reverse the administrative decision. We need not decide that abstract question, however, because sufficient evidence in this case justifies application of the presumption that a stream with identifiable bed and banks once existed at the location of Frank’s groundwater pit. The stream was shown on a 1955 USGS map, and KDOT built a large culvert under a highway bridge just to the north of Frank’s pit to let water from that stream pass under the highway. In addition, the com plaints by neighbors of change in the waterflow after Frank built his impoundment supports the presumption. On these facts, the chief engineer’s decision to presume that a stream once ran where Frank put his water impoundment was not unreasonable.
Frank raises some other arguments against the chief engineer’s decision. We do not find any of them persuasive:
• Frank argues that tire presumption in K.A.R. 5-40-1(k)(3) required only that he show “that the well-defined bed and banks did not exist before the construction of the project.” He urges that this regulation be interpreted to mean “immediately before” the project; the evidence certainly suggests that there were no well-defined bed and banks immediately before he built his groundwater pit. But the regulation does not say “immediately before,” it just says “before.” And there is a rational basis for the chief engineer’s interpretation that the statute gives him jurisdiction over any modification or obstruction made to a stream from the statute’s enactment in 1929 to the present.
• Frank argues that the chief engineer doesn’t have jurisdiction over Frank’s property because the chief engineer failed to prove that a stream existed there. But Frank’s argument assumes that the chief engineer’s presumption that a stream previously existed in a watershed area is improper; we have disagreed. In addition, as we have noted, the USGS map and the bridge culvert both support the application of that presumption to Frank’s property.
• Frank argues that the chief engineer misinterpreted the USGS map, mistaking the symbol for a narrow wash for the symbol for an intermittent stream. Frank cites to a printout from a USGS website. But the chief engineer certainly has expertise in reading these maps, and he found that it indicated an intermittent stream. In addition, one witness, Lief Holliday, testified that an intermittent blue line on a quadrangle map showed an intermittent stream. When there is evidence in the record supporting an agency’s decision, we are required to uphold it. Blue Cross & Blue Shield of Kansas, Inc., 276 Kan. at 263.
• Frank notes that the chief engineer found that Frank had not built the pit where it had been shown on his application and that had he done so, probably no permit would have been required. On appeal, both the Division of Water Resources and Frank agree that the chief engineer was mistaken when he concluded that Frank hadn’t built the pit where it had been shown on the permit application. But this finding had no impact on the other conclusions made by the chief engineer, and when courts review agency decisions, we apply the harmless-error rule. K.S.A. 77-621(d). Because this factual error by the chief engineer had no impact on the rest of his decision, it was harmless error.
• Frank also complains that the chief engineer took judicial notice of some engineering manuals. But Frank does not suggest that any of the information taken into account by the chief engineer was wrong. The district court concluded that the only real error that the chief engineer made was his failure to provide advance notice that he would be taking judicial notice of these manuals. We agree. Frank has had ample time since to find any error that may have occurred through taking judicial notice, but he has not cited any. We therefore conclude that any error in the chief engineer’s failure to provide advance notice that he would be taking judicial notice of these materials was harmless.
In sum, the chief engineer’s valid regulation contains a presumption that a stream previously existed within a watershed area of sufficient size. That regulation was applicable to Frank’s property, which was part of a substantial watershed area. Under the regulation, Frank had the burden to show that there had not previously been a stream located where he placed his obstruction. Frank failed to do so. The agency’s application of this presumption was not unreasonable in Frank’s case based upon the evidence that a stream had once existed there.
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Buser, J.:
The Kansas East Conference of the United Methodist Church, Inc. (Conference), appeals the district court’s ruling that it is not entitled to the remainder interest of the dissolved Central Avenue United Methodist Church of Kansas City, Kansas (Church), under the terms of a testamentary trust (Trust) established as a result of the philanthropy of Rosebud E. Keys, deceased.
We hold that because the Church was a remainder beneficiary of the Trust and the Church was in existence when the Trust ter minated (although not at the time the Trust’s proceeds were being distributed), the remainder interest vested in the Church. Moreover, because the Conference as a parent entity took the Church’s assets upon its dissolution, we find the Conference also took the Church’s remainder interest in the Trust proceeds. Accordingly, we reverse the district court’s order that the Conference may not be paid the Church’s remainder interest from the Trust and remand for further proceedings.
Factual and Procedural Background
The record on appeal is primarily comprised of facts set forth in a petition for consent decree to distribute the Trust property filed by UMB Bank, N.A. (Bank), in its capacity as trustee. The Bank attached numerous documents to the petition. There were no dis-positive motions filed or hearings below.
Rosebud’s last will and testament (Will) was executed on February 24, 1983. She directed that, after payment of expenses and specific bequests, the “rest, residue and remainder of my property, whether real, personal, or mixed” would fund a Trust for the benefit of her niece, Eleanor Rosebud Rebeck.
The Will set out the following provisions concerning the termination of the Trust and distribution of any remainder:
“This Trust shall terminate upon the expenditure of all of the Trust principal and the increment and interest therefrom, or the death of said ELEANOR ROSE REBECK. Upon her death, any principal increment or undistributed income remaining from the funds held in this Trust for her shall be paid in equal shares to WALTER REBECK, if he is living at the death of said ELEANOR ROSE REBECK, the [Church], the YOUTHVILLE METHODIST HOME FOR BOYS of Newton, Kansas, the BETHANY MEDICAL CENTER of Kansas City, Kansas for the education and training of nurses, the KAW VALLEY HEART ASSOCIATION of Kansas City, Kansas for research, and the WYANDOTTE COUNTY CANCER SOCIETY of Kansas City, Kansas for research. In the event none of the above organizations are in existence upon the termination of this Trust, the Trustee, in its sole discretion, shall pay said principal, increment or undistributed income to similar charitable organizations.”
The date of Rosebud’s death is unknown, but her Will was probated in 1991. Walter Rebeck predeceased Eleanor. Eleanor died on July 29, 2004. The record does not show whether the remainder beneficiaries were notified of Eleanor s death or their status under tire Trust. On December 8, 2006, almost 2Vz years after Eleanor s death, the Bank filed its petition to distribute the Trust’s assets which consisted of about $774,000 in cash and equities.
In 2005, after Eleanor’s death — but before the Bank began distributing the Trust assets — the Church was dissolved. The dissolution was approved by Church members, with final action taken by the Conference. The Church’s assets, including the building, were distributed to the Conference in accordance with the policies of the United Methodist Church.
In its petition, the Bank alleged “there is currendy neither an organization operating under the name of [Church] nor was [Church] merged into another organization that is currently operating a United Methodist Church as the legal successor to the [Church.]” The Bank concluded: “It is unclear whether the share of the . . . Trust intended for [the Church] should be paid to the . . . Conference, or whether that bequest should lapse and be redistributed proportionally” among the remainder beneficiaries other than Conference. The other remainder beneficiaries are either the same entities as those identified in the Will or dreir successors.
In spite of its uncertainty regarding tire Conference, the Bank prayed that all of the remainder beneficiaries would “share in the remaining assets ... [of the Trust] in equal shares.” Simultaneously with the Bank’s petition, all of the remainder beneficiaries filed identical documents captioned “Entry of Appearance, Waiver of Notice and Consent to Judgment.” Each remainder beneficiary waived service of process, stated it did not deny any of the allegations contained in the petition, and agreed “to the entiy of an order consistent with the grant of requested relief.”
On December 20, 2006, the district court notified the Bank by letter that while it could approve immediate distribution to the remainder beneficiaries other than the Conference, it could not “conclude that [the Conference] is entitled to a one-fiftii (Vs) distribution, as being the same as [the Church].” According to the district court, “all would agree [the Church] no longer exists, nor was it absorbed into another Methodist Church here in Kansas City, Kansas.” The district court allowed any party 30 days to file a memorandum “as to why the . . . Conference should or should not receive said one-fifth (1/5) share.”
The Conference filed a memorandum citing Shannep v. Strong, 160 Kan. 206, 160 P.2d 683 (1945), and arguing that “the intent of the testator is the only concern of the Court.” The Conference maintained it was “the intent of Rosebud . . . that, if . . . Church was in existence at the death of Eleanor . . . , the Church would receive one-fifth of her residual estate.” The Conference asserted that as of the date of Eleanor’s death, July 29, 2004, the Church was clearly “ ‘in existence.’ ” With regard to the Church’s subsequent dissolution, the Conference relied on the Book of Discipline of the United Methodist Church which provided:
“ ‘Any gift, legacy, devise, annuity, or other benefit to a pastoral charge of local church that accrues or becomes available after said charge or church has been discontinued or abandoned shall become the property of the trustees of the annual conference within whose jurisdiction the said discontinued or abandoned church was located or shall pass as directed by vote of the annual conference.’ ”
The Conference attached an affidavit from Russell L. Hinshaw, its treasurer, stating the Book of Discipline “is the primary source document for conducting the affairs of the United Methodist denomination, including the administration of the Conference and its local churches.” Hinshaw also swore that the provision regarding discontinued or abandoned property was in effect on the date of the Will’s execution and on the date of Eleanor’s death. As a result, the Conference contended that it should take the Church’s remainder interest in the Trust.
The only response to the Conference’s memorandum was made by appellee Wyandotte Health Foundation, Inc. (Foundation), the successor in interest to Bethany Medical Center. Citing In re Estate of Coleman, 2 Kan. App. 2d 567, 584 P.2d 1255, rev. denied 225 Kan. 844 (1978), the Foundation argued a distribution to the Conference would defeat Rosebud’s intent: “Rosebud . . . intended to bequeath a residual interest to the . . . Church,” but “the doors were closed and the [C]hurch is no more.”
On April 27, 2007, the district court issued a memorandum opinion affirming its earlier conclusion. The district court found the facts were undisputed. Relying on Shannep and Coleman, the district court focused on the date of distribution:
“As the [Church] is not in existence at the time of the final distribution it is impossible for the [Bank] to make distribution to a non-existent party.
“. . . This ruling satisfies Rosebud’s . . . intent. There was no provision in her will which required the [Bank] to distribute assets on the day of [Eleanor’s] death, or any time thereafter. The [Bank] chose to commence distribution by the filing of a Petition on December 8, 2006. Therefore, the request of the [Bank] to include the . . . Conference as the recipient of the [Church’s] bequest must be denied as being contrary to Kansas law and prior Kansas case law, in particular, Shannep and Coleman."
The Conference appeals.
Did the Church’s Remainder Interest VestP
The primary function of a court in a case turning on the interpretation of a testamentary trust “is to ascertain the testator s intent as derived from the four corners of the will and, once ascertained, the intent will be executed unless contrary to law or public policy. [Citation omitted.]” In re Estate of Berryman, 226 Kan. 116, 118, 595 P.2d 1120 (1979). “ ‘[W]here from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ the rules of judicial construction and the will must be enforced in accordance with its terms and provisions.’ ” 226 Kan. at 119 (quoting Johnston v. Gibson, 184 Kan. 109, Syl. ¶ 3, 334 P.2d 348 [1959]). Both the interpretation of a testamentary trust and the question of whether its terms are ambiguous are issues of law subject to unlimited review. Godfrey v. Chandley, 248 Kan. 975, 977, 811 P.2d 1248 (1991).
On appeal, neither the Conference nor the Foundation contend the Will’s terms are ambiguous. The parties only dispute the legal effect of those terms given the undisputed facts of this case.
The Conference correctly states that the Will made the Church a “remainder beneficiary” of the Trust. See In re Estate of Sanders, 261 Kan. 176, 186, 929 P.2d 153 (1996) (identifying individuals as remainder beneficiaries of a trust); Barnhart v. Bowers, 143 Kan. 866, 872, 57 P.2d 60 (1936) (holding a church organization “can be the beneficiary of a charitable trust”). The Kansas Uniform Trust Code (KUTC), K.S.A. 58a-101 et seq., defines “beneficiary” in part as a person that “[h]as a present or future beneficial interest in a trust, vested or contingent.” K.S.A. 2007 Supp. 58a-103(2)(A).
As applied here, interest means “[a] legal share in something; all or part of a legal or equitable claim to or right in property.” Black’s Law Dictionary 828 (8th ed. 2004). A future interest occurs when “the privilege of possession or of other enjoyment is future and not present.” Black’s Law Dictionary 699 (8th ed. 2004). A contingent interest is “[a]n interest that the holder may enjoy upon the occurrence of a condition precedent.” Black’s Law Dictionary 828 (8th ed. 2004).
The Church, therefore, held a contingent future interest in any remainder of the Trust. It was contingent on the existence of the Trust when Eleanor died. If the principal had been exhausted before Eleanor died, the Trust would have terminated at that point, without a remainder. In short, the condition precedent would not have occurred.
In the present case, however, the condition precedent did occur. Eleanor died with a remainder in place. A vested interest is “[a]n interest the right to the enjoyment of which, either present or future, is not subject to the happening of a condition precedent.” Black’s Law Dictionaiy 829 (8th ed. 2004). Under terms of the Will, upon Eleanor’s death with a remainder in place, the sole condition precedent had occurred. The filing of the Bank’s petition, nearly 2Vz years later, was not a further condition precedent to the vesting of the remainder beneficiaries’ interests.
The Will was explicit: “This Trust shall terminate upon . . . the death of said [Eleanor].” Contrary to the district court’s statement, the Trust specified that the remainder “shall” be paid “upon [Eleanor’s] death.” According to one authority, this is “[t]he most common situation,” that a trust will “pay the income to one beneficiary for life and on his death . . . make distribution of the principal. In such a case, the trust will be terminated on the death of the life beneficiary.” 4 Scott on Trusts § 334, p. 409 (4th ed. 1989).
We also note that Rosebud gave the Bank discretion to pay the remainder to “similar charitable organizations” if none of the identified remainder beneficiaries were “in existence upon the termination of this Trust.” This language further underscores that the identity of the remainder beneficiaries was to be determined upon the termination of the Trust.
This reading of the Will is not contrary to the KUTC. Although a trust may terminate in more than one way, the KUTC recognizes that a trust “terminates to the extent the trust . . . expires pursuant to its terms.” K.S.A. 58a-410(a). “[O]n termination of the trust,” a trustee’s duty under the KUTC is to “exercise the powers appropriate to wind up the administration of the trust and distribute tire property to the persons entitled to it.” K.S.A. 58a-816(26). This suggests that the “persons entitled to” the trust property may be determined at termination.
Focusing on tire date a trust terminates is also preferable under general legal principles. “No remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested.” In re Estate of Woods, 181 Kan. 271, Syl. ¶ 9, 311 P.2d 359 (1957). Following the “the well-settled rule that the law favors the early vesting of estates,” Watts v. McKay, 160 Kan. 377, 385, 162 P.2d 82 (1945), we will not read the Will to make the Church’s remainder interest contingent even after the termination of the Trust.
In Harvey v. Harvey, 215 Kan. 472, 524 P.2d 1187 (1974), for example, a will devised a remainder interest to the children of individuals who had received a life tenancy. Our Supreme Court pointed out that “[o]f necessity the class [of remaindermen] would be finally determined immediately upon the death of the life tenant and therefore the remainder interest of each of the members of the class must vest not later than that time.” 215 Kan. at 478-79. A similar conclusion was reached in In re Hilgers, 352 B.R. 298, 306 (Bankr. D. Kan. 2006), which held under Kansas law that a future remainder interest vested at the death of a trust’s life beneficiary.
Had the Bank filed its petition for distribution while the Church was still in existence, there would have been no question that the Church should be paid. Under the terms of the Will and Kansas law, the interests of the remainder beneficiaries including the Church vested on Eleanor s death. We next address whether the Conference took the Church’s remainder interest.
Did the Conference Take the Church’s Remainder InterestP
Given the Church held a vested remainder interest, and given the Conference took the Church’s assets, the Conference took the Church’s remainder interest. Even a contingent remainder interest is an alienable property right. See Woolums v. Simonsen, 214 Kan. 722, Syl. ¶ 6, 522 P.2d 1321 (1974). The Trust did not forbid alienation of the remainder interests, and “[i]n the absence of provisions in the trust instrument or a statute to the contrary, the beneficiary may alienate his interest as freely as he might a legal estate or interest.” Bogert, Trusts & Trustees § 188, p. 456 (2d ed. rev. 1979).
The district court mistakenly concluded from the language of the Will that Rosebud had a contrary intent. While it is true that “a vested remainder may be subject to complete defeasance,” Ghromley v. Kleeden, 155 Kan. 319, 321-22, 124 P.2d 467 (1942), nothing in the Will suggests that the interests of the remainder beneficiaries were defeasible after termination of the Trust. An interest is defeasible if it is subject to a condition subsequent, Harvey, 215 Kan. at 478, but a condition subsequent is not mentioned in the Will. Cf. In re Estate of Thompson, 161 Kan. 641, Syl. ¶ 4, 171 P.2d 294 (1946) (will devised land “to be returned to my estate in the case of death” of the devisees). Imposing a condition subsequent by judicial order would read into the Will something not found in its four comers.
Defeasance by judicial order could also result in untoward consequences as suggested by In Re Boston Regional Medical Center, Inc., 410 F.3d 100 (1st Cir. 2005). In that case, a hospital was a remainder beneficiary, and when the life beneficiary died, “[t]he trastees neither initiated any contact with the named beneficiaries .. . nor made any immediate distribution of the corpus.” 410 F.3d at 103. Some 11 months later, the hospital “closed its doors, halted hospital operations, and filed for bankruptcy protection.” 410 F.3d at 104. Although the hospital filed under Chapter 11 and reorganized, the plan was strictly “a liquidating plan,” and the sole purpose of the reorganized entity was “to liquidate the marshaled assets and distribute the net proceeds to [its] creditors in accordance with the provisions of the Plan.” 410 F.3d at 104.
The question before the First Circuit Court of Appeals was whether the bequest should go to this reorganized entity for the benefit of the hospital’s creditors or to churches which comprised the other remainder beneficiaries. Although the hospital continued to exist after a fashion, it is important to note that the reorganized entity could not take as a charitable institution under the applicable Massachusetts trust law. 410 F.3d at 111. The question before the First Circuit was whether the hospital’s remainder interest should be paid to this reorganized entity in spite of its lack of charitable purpose.
The First Circuit began by noting that the hospital “was running . . . and was actively engaged in performing its charitable mission” when the life beneficiary died, and this meant that its remainder interest vested under Massachusetts law. 410 F.3d at 111. The other remainder beneficiaries nevertheless maintained that vesting was “irrelevant” because the hospital was “bankrupt now and no money it receives will be used for charitable purposes on a going-forward basis.” 410 F.3d at 111.
The First Circuit disagreed, pointing out that focusing on the date of distribution rather than vesting “would have the potential to work serious mischief.” 410 F.3d at 111. “[T]hose in charge of the distribution of funds” would have the “power, through action or inaction, to affect the identity of those who receive the funds.” 410 F.3d at 111. It would also “raise die boggart of unnecessary litigation aimed at influencing the timing of distributions.” 410 F.3d at 111. In light of these considerations, the First Circuit decided on “the date of vesting as the vantage point from which to determine a charitable organization’s eligibility to receive a bequest.” 410 F.3d at 112.
Although In Re Boston Regional Medical Center applied Massachusetts law and the remainder beneficiary in question had a successor, the case provides some guidance. As discussed above, under Kansas law the Church’s remainder interest similarly vested at the death of the life beneficiary. And although the Conference is not the Church’s successor, it is the Church’s parent and much closer in character to it than was the reorganized entity to the predecessor hospital in In Re Boston Regional Medical Center. Most importantly, the First Circuit gave effect to the date of vesting, rather than distribution, even though no charitable purpose would be served by the bequest. This highlights the strength of the argument in the present case against focusing on the date of distribution contrary to the terms of the Will.
We next consider the two Kansas cases, Shannep and Coleman, relied on by the district court.
In Shannep, a former wife brought an accounting action against the trustee of a testamentaiy trust established by the will of her former husband. The trust benefitted a specific church, which had since dissolved. The former wife was the residuary devisee under the will.
Our Supreme Court affirmed the district court’s holding that the trust property should be paid to the former wife under the residuary clause, not to the Church’s denomination. Shannep, 160 Kan. at 210, 216. The court found “the express trust lapsed,” and the only question was “what disposition shall be made of the trust?” 160 Kan. at 212. Given the former wife was the only residuary devisee under the will, the trust property went to her with “no occasion for the application of any rule in aid of construction.” 160 Kan. at 213.
Shannep supports the payment of the vested remainder interest to the Conference. In Shannep, our Supreme Court simply applied the will, which gave the residuary to the former wife. In the present case, the Will provisions gave the remainder to the Church, among others.
The Foundation’s contention that the Conference should not take because the denomination in Shannep did not take is unpersuasive. The church in Shannep was the life beneficiary, not the residuary beneficiary. The trust in Shannep lapsed with the dissolution of the church. In this case, the Trust did not lapse but terminated by its own provisions, and the Church, which was in existence at the time, received a vested remainder interest. Shannep does not stand for the proposition that a parent religious organization may not take a vested remainder interest of a church (along with its other assets) if that church dissolves.
In Coleman, the issue was again the residuary clause of a will. There were three residuaries, and one of them, the College of Emporia, had closed more than a lYz years before the testator s death. The college’s assets and corporate charter were purchased by The Way College of Emporia, which then claimed under the residuary clause.
Our court affirmed the district court’s holding that The Way College of Emporia was not a residuary. Coleman, 2 Kan. App. 2d at 570, 579. The testator had specified that the College of Emporia was “a Presbyterian educational institution,” while The Way College of Emporia was not accredited, taught only Bible classes, and was associated with a “fundamentalist sect.” 2 Kan. App. 2d at 570, 572. The two colleges were simply not “the same legal entity.” 2 Kan. App. 2d at 572.
Coleman is inapplicable to the present case. The bequest to the College of Emporia lapsed because that college ceased to exist before the death of the testator. See In re Estate of Haneberg, 270 Kan. 365, Syl. ¶ 3, 14 P.3d 1088 (2000) (bequests lapse by death of beneficiary prior to testator’s death). Here, the Church was still in existence at the time of Eleanor’s death.
“Where a bequest is made to a corporation that was in existence at the time of the testator’s death but that ceased to exist before the legacy was paid to it, it has been held that the bequest does not fail even though it would have failed if the corporation had ceased to exist at the testator’s death.” 4A Scott on Trusts § 397.3, pp. 429-30 (4th ed. 1989).
Finally, the Foundation contends that although Kansas statutes recognize “the right of certain denominations to claim an interest in the property ... of a local church,” the legislature has made no such provision for the United Methodist Church. The Foundation’s argument assumes that tire ownership and transfer of church property depends on particular legislation. To the contrary, churches may become “bodies corporate” with “the same power to make bylaws for the regulation of their affairs as other corporations.” K.S.A. 17-1701. The manner in which churches exercise authority over their financial affairs then depends upon their bylaws, meaning “different religious societies exercise authority over their financial and property affairs in different ways. [Citation omitted.]” Gospel Tabernacle Body of Christ Church v. Peach Publishers & Co., 211 Kan. 420, 423, 506 P.2d 1135, reh. denied 211 Kan. 927 (1973).
A review of the statutes cited by the Foundation, K.S.A. 17-1712 to K.S.A. 17-1752, shows a variety of statutes enacted over the decades to deal with abandoned property of certain churches. At least some of the specified churches, such as Baptist and Congregational, appear to lack a hierarchical structure. See 4A Scott on Trusts § 397.3, p. 442 (identifying Baptist and Congregational churches as those with “a congregational government”). It is understandable that in such cases the legislature would step in to provide a remedy for abandoned property where none existed through a “parent hierarchical church.” Church of God in Christ v. Board of Trustees, 26 Kan. App. 2d 569, 580, 992 P.2d 812 (1999), rev. denied 268 Kan. 885 (2000). Courts have recognized, in contrast, that the United Methodist Church has a hierarchical structure. See 4A Scott on Trusts § 397.3 pp. 441-42; Emberry Community Church v. Bloomington Dist., 482 N.E.2d 288, 293 (Ind. App. 1985).
It is uncontroverted that the Conference took the Church’s assets.
“Where a local religious group of church members have affiliated . . . with similar religious groups in a general conference in conformity with the rules and ordinances constituting the ecclesiastical law of that denomination, the right of dominion, control and disposal of church property no longer used or useful for local church purposes is governed by church law.” United Brethren, Etc. v. Mount Carmel Community Cemetery Ass'n, 152 Kan. 243, Syl. ¶ 1, 103 P.2d 877 (1940).
In such a case, civil courts will take jurisdiction only “to assure the regularity of business practices and the right of private use and ownership of property.” Church of God in Christ, 26 Kan. App. 2d 569, Syl. ¶ 2.
We see no legal impediment to the Conference talcing the Church’s assets. The Church’s remainder interest in the Trust was among those assets. The Conference therefore holds the Church’s remainder interest.
Reversed and remanded with directions to the district court to order distribution of the Church’s share of the Trust proceeds to the Conference. | [
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Hill, J.:
Because a crack formed in the side wall of their new motor home, Robert and Kathleen Knowles sued Fleetwood Motorhomes of California, Inc. But, because the Knowles had previously sued Fleetwood about that motor home, the district court by summary judgment swept away the Knowles’ lawsuit by broadly ruling the doctrine of res judicata barred their warranty and consumer claims. This doctrine is sometimes called claim preclusion, a precept based on the need for final judgments, especially after a party has had an opportunity to litigate a matter in a prior action in a court of competent jurisdiction. We hold the doctrine of claim preclusion does not apply in this case because Fleetwood’s actions in the prior lawsuit, preventing litigation of these claims arising from the crack in the side wall, amount to a waiver of the defense of res judicata. We reverse and remand for trial.
We discuss the details of the first lawsuit.
On January 17, 2003, Robert and Kathleen Knowles bought a 2003 Fleetwood “Bounder” motor home for $88,363.63. The Knowles experienced many problems with their Bounder; the most serious problem was a persistent leak in the bedroom slide-out area. The manufacturer s warranty for the Bounder expired on July 17, 2004, and its structural warranty expired on January 17, 2006.
Because these problems had not been repaired to their satisfaction under the warranty, the Knowles filed a lawsuit in May 2004 against Fleetwood. They made a claim of breach of warranty and a claim for deceptive acts and practices under the Kansas Consumer Protection Act, K.S.A. 50-623 et. seq.
The side-wall crack appeared after the Knowles filed their first lawsuit.
In July or August 2004, the Knowles noticed that a crack had developed in the Bounder s side wall. Knowledge of this problem came up first in the Knowles’ September 2004 depositions. Robert Knowles thought tire crack “looked like a stress crack” from the leak’s water damages. But, the Knowles did not seek to amend their petition to include the cost of repairs for the crack. Instead, the Knowles raised this issue during settlement negotiations, in the pretrial order, and at the jury trial.
• Settlement Talks
During settlement negotiations, the parties reached a tentative agreement about the side-wall crack in November 2004. Fleetwood agreed to transport the Bounder to its Indiana plant for repairs, while the parties continued to negotiate the Knowles’ other requests, such as attorney fees. Fleetwood later said it could not bring back the Bounder until January 2005. The Knowles agreed to the new date.
In January 2005, however, Fleetwood changed its position and did not bring back the Bounder. Instead, Fleetwood flew its dispute resolution coordinator to the Bounder’s location for inspection. Fleetwood decided the crack could be repaired by any body shop that does fiberglass repairs. This was unacceptable to the Knowles because their expert had thought the proper repairs required replacement of the entire side wall, not just a patch on the outside.
• Pretrial Order
The Knowles made this claim in the pretrial order:
“The leak into the plaintiffs Bounder caused the wood paneling, which is part of the side wall of the Bounder, to deteriorate, thereby decreasing the strength of the side •wall.'This resulted in a crack developing in the exterior side wall of the Bounder at the front comer of the bedroom slide-out.” (Emphasis added.)
In response, Fleetwood filed a motion in limine asking the district court to exclude evidence about the side-wall crack. Fleet-wood argued tire Knowles failed to assert properly the damages claim for the crack because they had made no request to Fleetwood for repairs of the crack under their warranty:
“For purposes here today, Your Honor, we’re entitled under all the warranty laws, we’re entitled to have the opportunity to repair or fix anything they contend is a workmanship defect or something to that nature. And none of this was ever presented to the dealer or to Fleetwood for any purposeful repair or replacement in any way.
“So this particular item, which is one of some other items, is nothing that was ever presented to us, nothing that we’ve ever been given an opportunity to repair and correct, if it was in fact something that we did or caused. I don’t see how it gets to part of the lawsuit that they’re complaining that we failed to meet some warranty requirement or we failed, we did something deceptively or performed some unconscionable act, if you will, when we’ve never had any opportunity to work on it.”
The court ruled it would allow evidence of the crack but only because of water infiltration.
• Jury Trial
Later, at the jury trial, the court elaborated on its ruling on the motion in limine.
“Fixing the crack is irrelevant because you never asked for it to be fixed in the past.” (Emphasis added.)
Because of this ruling, the Knowles did not further question their expert about die crack or the costs to repair the crack. During cross-examination, however, Fleetwood challenged the expert’s value assessment of the Bounder, which led to further discussion of the district court’s ruling.
“[Fleetwood:] Isn’t it true that you are considering some repair issue concerning the crack to get that twenty to $25,000 number. Is that a fact?
“[Knowles’ expert:] Yes. That would be.
“[Fleetwood:] So, I would move to strike his previous answer, Your Honor, on the basis of the Court’s previous rulings about the issue of the crack because he has contemplated that and considered that in his testimony.”
The district court sustained Fleetwood’s objection.
In this lawsuit, the parties agreed in the claims of uncontroverted facts that the district court’s ruling was:
“14. The judge in the previous litigation ruled in a motion in limine that the plaintiffs could not discuss the existence of the crack at trial because they had never presented the crack to Fleetwood to be repaired. The judge did rule that the plaintiffs could mention the crack as an element of damages but could not ask for damages for the crack itself.” (Emphasis added.)
We find this ruling contradictory and confusing.
After the district court excluded the cost to repair the side-wall crack, the Knowles’ expert assessed the value of the Bounder with the remaining problems at $68,000, rather than his prior assessment of $60,000. Based on this evidence, the juiy returned a verdict in favor for the Knowles only for their breach of warranty claim. For that claim, the jury awarded damages of $20,363.63. The Knowles did not appeal this decision.
We turn to the second lawsuit.
Fleetwood’s warranty on the motor home states that “[wjritten notice of defects must be given to the selling dealer or manufacturer not later than ten (10) days after the expiration of the warranty period.” Within that 10 days (the warranty expired on January 17, 2006) on January 23, 2006, the Knowles made a written request to Fleetwood to repair the crack in the side-wall under the Bounder’s 3-year structural warranty. Fleetwood denied their request on May 10, 2006. This lawsuit followed. Fleetwood filed for summary judgment, which the court granted based on res judicata.
In this appeal, the Knowles contend res judicata does not bar their breach of warranty claim for three reasons. First, they agree their claim did not exist when they filed their first lawsuit against Fleetwood. Second, they contend Fleetwood waived the defense of res judicata by arguing this claim should be excluded in the prior action. Finally, it is the Knowles’ belief that this is a separate claim distinct from their prior breach of warranty claim.
On their Kansas Consumer Protection Act claim, the Knowles make two similar arguments. First, the side-wall crack was not in existence when the first claim was made, so res judicata cannot apply; and second, this is a separate and distinct claim from the first, and res judicata cannot bar its presentation.
We give our standard of review and set out some principles of law on res judicata.
Where there is no factual dispute, appellate review of an order granting summary judgment is de novo. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008). Also, whether res judicata applies is a question of law; thus, this court’s review over this issue is also de novo. O’Keefe v. Merrill Lynch & Co., 32 Kan. App. 2d 474, 479, 84 P.3d 613, rev. denied 278 Kan. 846 (2004).
“Res judicata encompasses both issue preclusion and claim preclusion. Issue preclusion (collateral estoppel) precludes relitigation of issues previously determined. Claim preclusion precludes relitigation of a claim that has been finally adjudicated in a court of competent jurisdiction. [Citation omitted.]” In re Marriage of Ormsbee, 39 Kan. App. 2d 715, 718, 186 P.3d 806 (2008).
Here, the district court does not distinguish between issue and claim preclusion in its res judicata ruling. But it is clear from the facts the district court intended claim preclusion to apply. See Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 77 n.1, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984) (explaining that the preclusive effects of former adjudication are collectively referred to as the doctrine of res judicata, but when the term res judicata is used in a narrow sense, it has become almost synonymous with “claim preclusion”).
Claim preclusion is based on the need for finality in judgments. “It is founded on the principle that the party, or some other party in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. [Citations omitted.]” (Emphasis added.) Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
Claim preclusion exists when there are four identities. First, there must be identity in the things sued for. Second, there must be an identity of the cause of action. Third, the case must have an identity of persons and parties to the action. And, fourth, there must be an identity in the quality of the persons for or against whom the claim is made. 242 Kan. at 690.
There is no doubt the Knowles raised the claim about the crack in the first lawsuit.
Besides the express provision in the pretrial order, the Knowles further asserted the crack was the result of the original defect when they contended: “There was a leak, the leak caused this crack, they could not fix the leak. That was the problem.”
Under K.S.A. 60-216(e), the pretrial order controls the following course of the action unless the order is changed by agreement of the parties or by the court to prevent obvious injustice. Our Supreme Court has held the pretrial order supersedes the pleadings and effectively amends the pleadings to conform to it. See Bob Eldridge Constr. Co. v. Pioneer Materials, Inc., 235 Kan. 599, Syl. ¶ 8, 684 P.2d 355 (1984).
Here, it is evident the pretrial order in the first lawsuit contained, among others, the same claims as those raised in the second lawsuit. Therefore, because these claims were raised in the first lawsuit, they are now subject to claim preclusion.
Two cases guide us in resolving this matter.
Because Fleetwood undertook actions which prevented the Knowles from presenting evidence of damages about the crack in the first lawsuit, we hold Fleetwood is not in a position to invoke the defense of claim preclusion in the second lawsuit. Two cases, one federal and one old Kansas case lead us to this conclusion.
The federal case is Craig v. County of Maui, 157 F. Supp. 2d 1137 (D. Hawaii 2001). In Craig, the plaintiff filed a lawsuit in state court asserting employment discrimination and retaliation because of his disability. The state court issued summary judgment in favor of the defendants. Following that ruling, the plaintiff filed a second lawsuit in federal court challenging his termination from his employment. In the second lawsuit, the defendants moved for summary judgment on grounds of res judicata, specifically claim preclusion, alleging that plaintiff s claim should have been brought in the first lawsuit and, thus, the plaintiffs failure to amend that complaint to include this claim barred him from filing a second lawsuit.
The United States District Court of Hawaii disagreed with the defendants. Under federal law, claim preclusion consists of three requirements: “(1) the present claim could have been or was asserted in an earlier action; (2) the parties are the same as, of are in the privity to, the parties in the earlier action; and (3) final judgment was entered in the first action.” 157 F. Supp. 2d at 1140-41; see Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 396, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998) (recognizing that Kansas law does not differ significantly from federal law on the preclusion doctrines); see also MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005), cert. denied 547 U.S. 1040 (2006) (“If requirements are met, res judicata is appropriate unless the party seeking to avoid preclusion did not have a full and fair opportunity’ to litigate the claim in the prior suit.” [Emphasis added.]). In addition, under Hawaii state law, “the defense of res judicata is deemed to have been waived by the defendant where the first suit did not include the subject matter of the second at the insistence of the defendant. [Citation omitted.]” 157 F. Supp. 2d at 1141.
The court in Craig reviewed the facts that showed the plaintiff tried to bring his termination claim into the first lawsuit by filing a motion for continuance for that purpose. But,:,the defendants objected to the plaintiffs motion, arguing the termination claim was not related enough to the claim pending before the state court. The state court then agreed with the defendants. ‘
From the facts, the court in Craig decided the defendants’ actions precluded the plaintiff from amending his complaint to include his employment termination claim. Therefore, the court concluded that the defendants had waived their defense of res judicata in tire second lawsuit, reasoning: “It would be, after all, inequitable to preclude Plaintiff from ever bringing this claim to resolution in court when he attempted to do so and was disallowed.” 157 F. Supp. 2d at 1142.
The Kansas case is Harnish v. Barzen, 103 Kan. 61, Syl. ¶ 2, 173 Pac. 4 (1918). In Harnish, the Kansas Supreme Court yeax-s earlier applied the same reasoning later used in Craig. In Harnish, Theodor Peltzer fraudulently traded an apartment house for the plaintiffs farm. Peltzer then sold forged real estate securities to the defendant. The defendant challenged Peltzer’s actions, and Peltzer admitted his guilt. Because of his guilt, Peltzer deeded to the defendant several farms, which included the plaintiff s farm, and then later committed suicide.
In a federal action, the United States District Court for the Western District of Missouri then declared the defendant to be the absolute owner in fee simple of the plaintiff s farm. Because the plaintiff was not a party in that suit, after the decree was entered, the plaintiff moved the decree be eliminated. In response, the defendant moved the plaintiff s motion be stricken from the files on the grounds that
“the plaintiff was not a party to the suit, and that because he was not a party his rights were not affected, and he was in no manner barred, denied, or estopped from pursuing any legal right or remedy he might claim in an independent suit against the defendant concerning the property.” 103 Kan. at 64.
The federal court agreed with the defendant and struck the plaintiffs motion from the files.
The plaintiff then filed a lawsuit in Kansas in state court to recover the farm, claiming the defendant took title with notice of Peltzer’s fraud and the defendant did not qualify as a purchaser for value. In response, the defendant claimed he was a purchaser for value, without notice of Peltzer’s fraud, and pleaded res judicata as a defense. Based on the evidence presented, the court found in favor for the plaintiff.
On appeal, the court in Hamish affirmed the lower court’s factual findings and held the defendant had failed to prove the defense of res judicata. Reviewing the facts of the federal action, the court ruled that “[o]ne who succeeded in having stricken from the files a motion to modify a decree made by one not a party to the suit, on the ground that the decree did not bind the mover, cannot afterwards assert that the decree is res judicata against the mover.” 103 Kan. 61, Syl. ¶ 2. The court reasoned:
“It seems the defendant regarded it as important to keep the plaintiff out of the federal court case, and, having prevented the plaintiff from obtaining an adjudication of his motion on the very ground that the decree did not adjudicate anything against the plaintiff, the defendant cannot now be heard to say otherwise.” 103 Kan. at 64.
We must emphasize the fundamental principle on which claim preclusion is founded is that the party had the opportunity to litigate the claim in the former action. Here, the Knowles never had that opportunity because of Fleetwood’s actions. The facts show that in the first lawsuit, Fleetwood argued to the district court that Knowles could not make a complaint about the crack until it presented Fleetwood tire opportunity to repair or fix the crack. The district court agreed with Fleetwood and excluded these claims from consideration by the jury. But after the Knowles presented their request for repairs of the crack in compliance with the 3-year structural warranty, Fleetwood refused to comply, alleging the Knowles had waived any repairs to the crack because of what had occurred in the first lawsuit. This shift in position by Fleetwood essentially denied the Knowles’ ability to have this claim litigated.
Both Craig and Harnish would dictate that Fleetwood’s success in having these claims stricken from the first lawsuit would not preclude the Knowles from raising these claims in the present action. The Knowles did not litigate their claims for breach of warranty and their Kansas Consumer Protection Act claims for the crack until they made a request for repairs of the crack, at the insistence of Fleetwood. Fleetwood’s actions in the prior lawsuit, preventing litigation of these claims arising from the crack in the side wall, amount to a waiver of the defense of res judicata.
This case is unaffected by the Knowles’ failure to appeal the prior action.
Fleetwood maintains the Knowles should have appealed the district court’s ruling to save their claims from claim preclusion, citing Ellis v. State Farm Mut. Auto. Ins. Co., 249 Kan. 599, 822 P.2d 35 (1991). In Ellis, Jack R. Ellis was injured in an automobile-pedestrian accident. State Farm Mutual Automobile Insurance Company insured both Elhs, the pedestrian, and Horace Whittaker, the driver of the automobile that struck Ellis. Under Ellis’ insurance pohcy, State Farm paid Ellis $61,151.21 in personal injury protection (PIP) benefits. Elhs also sued Whittaker. In that suit, State Farm intervened to assert a hen against the PIP benefits it paid to Elhs. The case settled for $175,000. Thus, State Farm mailed Whit-taker’s automobile insurance’s pohcy hmit of $25,000 to the court, which was then ordered to be reimbursed to State Farm under its PIP hen. Ellis did not appeal the court’s order of reimbursement.
Less than a year later, the Kansas Supreme Court issued an opinion, deciding that “a PIP insurer is not entitled to reimbursement for prior PIP payments out of payments made on behalf of a tortfeasor on a settlement or on a judgment when such payments are not duplicative of the PIP benefits” in State Farm Mut. Auto. Ins. Co. v. Kroeker, 234 Kan. 636, 676 P.2d 66 (1984). Relying on that ruling, Ellis moved to change the district court’s judgment payment of the $25,000 to State Farm. But the district court refused to change the judgment because Ellis had failed to appeal tire decision. The Court of Appeals affirmed the decision in Ellis v. Whittaker, 10 Kan. App. 2d 676, 709 P.2d 991 (1985). See Ellis, 249 Kan. at 600-01.
Subsequently, Ellis filed a petition asking for judgment in the amount of $107,374.61 for interest due to Ellis for the district court’s pay-out judgment based on a provision in Whittaker’s insurance pohcy. After the lawsuit was transferred to the county which had dealt with the original case, the district court determined that State Farm was required to pay postjudgment interest on plaintiff s entire $175,000 judgment from the date of the settlement through the date the settlement draft was received from the court. State Farm paid the interest. Ellis appealed. State Farm did not cross-appeal.
On appeal, the majority of the Court of Appeals held the doctrine of res judicata barred Ellis’ interest claim in Ellis v. State Farm Mut. Auto. Ins. Co., No. 64, 751, unpublished opinion filed February 15, 1991; See Ellis, 249 Kan. 601-02. Ellis petitioned for review of the Court of Appeals decision, which the Supreme Court granted. In affirming the Court of Appeals decision, the Supreme Court held that Ellis’ failure in directly attacking the district court’s reimbursement ruling did not subsequendy allow splitting the cause of action by filing a second lawsuit to obtain interest claimed on the original judgment. 249 Kan. at 603-05. The Supreme Court ruled that “[n]o principle of law exempts a person from the application of the doctrine of res judicata because the effort to break a single cause of action into two or more parts was due to neglect, accident, mistake, ignorance, or a subsequent change in the law.” 249 Kan. at 604.
Contraiy to Fleetwood’s argument, this case is distinguishable from Ellis. The Knowles’ effort to claim damages for the crack in this action did not arise from “neglect, accident, mistake, ignorance, or a subsequent change in the law,” as in Ellis. But it arose from Fleetwood’s actions precluding these claims from the first lawsuit. Rather, the Knowles’ actions are similar to the plaintiff s actions in Famish where the plaintiff filed a separate lawsuit after the defendant prevented the plaintiff “from obtaining an adjudication of his motion on the very ground that the decree did not adjudicate anything against the plaintiff’ instead of trying an appeal of the federal district court’s ruling. 103 Kan. at 64.
Simply put, Fleetwood’s shifting arguments for excluding claims surrounding the crack convince us of the following. First, Fleet-wood asserted the Knowles’ right to recover damages for the crack did not exist until after they gave Fleetwood an opportunity to repair the crack; it argued, “[Fleetwood doesn’t] see how it gets to part of the lawsuit that they’re complaining [of] . . . when [Fleet-wood has] never had any opportunity to work on it.” Second, by taking tins position, Fleetwood did not consider the Knowles’ settlement negotiations request for repairs of the crack enough notice. Third, the Knowles were unaware that they had lost the opportunity to present their claim for damages associated with the crack until the jury trial occurred, where the district court issued its final and confusing ruling over the matter.
Our review of the transcript discloses the Knowles’ misunderstanding of the district court’s ruling at the motion in limine hearing was not done in bad faith. So, because the Knowles followed Fleetwood’s requirements by issuing a written request for repairs of the crack, which Fleetwood then denied, the Knowles acted properly in filing their claims in a second lawsuit. Had the Knowles instead appealed the district court’s ruling in the first lawsuit, it would have been ineffectual since the Knowles had not formally requested Fleetwood to repair the crack until after the first lawsuit had been completed.
Finally, we also must point out the Knowles’ Kansas Consumer Protection Act claim in this lawsuit centers on Fleetwood’s failure to pick up the Bounder in January 2005 as it had agreed. This conduct all occurred after the first lawsuit was under way. Yet the trial court, finding res judicata, broadly swept away the consumer claim with the same broad ruling as the warranty claim. Neither were barred by res judicata.
Reversed and remanded for trial. | [
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Malone, J.:
Donnie E. Reed appeals his convictions and sentences for two counts of rape and two counts of aggravated indecent liberties with a child. Reed claims; (1) the district court erred in allowing an expert witness to testify about why children may recant allegations of sexual abuse; (2) the prosecutor committed misconduct during her opening statement by commenting on Reed’s failure to give a formal statement to the police; (3) K.S.A. 21-3502(a)(2) and K.S.A. 21-3504(a)(1) are unconstitutional under the Due Process Clause of the Fourteenth Amendment to the United States Constitution; (4) Reed was denied a fair trial based on cumulative error; and (5) Reed’s constitutional rights were violated when the district court used his criminal history to enhance his sentence. Finding no error, we affirm.
In the summer of 2004, L.R., d/o/b 10/22/89, lived in Kansas City, Kansas, with her father, Reed, and her three brothers. Sometime that summer, L.R. began worrying that she might be pregnant and she relayed these worries to her grandmother. When Reed learned that his daughter could be pregnant, he asked his older daughter, Angela Reed, to take L.R. to the University of Kansas (KU) Medical Center for a pregnancy test.
On June 21, 2004, Angela took L.R. to the KU Medical Center for an examination, and L.R. learned that she was pregnant. When Angela asked L.R. who the father was, L.R. told her it was Reed. Angela drove L.R. back to Reed’s house and they both told him the news.
Later that evening, Angela called the police and reported what L.R. had told her earlier that day. Angela met with the police at a location near Reed’s house, and then she led the police to Reed’s residence. Inside the house, the officers found L.R. and Reed sleeping together on a sofa bed. The officers woke them up and arrested Reed. After Reed was taken away, L.R. told the officers that she had found out earlier that day that she was pregnant and that Reed was the father of the child.
The next day, Detective Ken Cantwell made an appointment for L.R. to be examined at Sunflower House, a child advocacy center. Angela took L.R. to Sunflower House later that day. At Sunflower House, Sara Bile, a forensic interviewer, interviewed L.R. while Cantwell watched the interview in another room on a closed-circuit television. During the interview, L.R. told Bile that Reed started sexually abusing her in December 2002 by inserting his finger into her vagina. Soon thereafter, Reed began having sexual intercourse with L.R. According to L.R., from December 2002 to June 2004, Reed had sexual intercourse with her about three times a week. L.R. stated that if she refused to sleep with Reed, he would spank her with a belt or an extension cord. Finally, L.R. stated that she was pregnant with Reed’s child.
After the interview, Angela Van Dong, a nurse practitioner at Sunflower House, examined L.R. Van Dong did not find any markings or injuries to L.R.’s genitalia, but she did notice two scars on L.R.’s back. According to Van Dong, L.R. stated that the scars were the result of “whoopings” her father had given her with a belt or an electrical cord. Van Dong stated that one of the scars was raised, circular, and corresponded with a whipping injury caused by an electrical cord.
On June 23, 2004, Cantwell went to the Wyandotte County jail to interview Reed. Cantwell informed Reed of his rights and then told him that he was accused of raping his daughter. According to Cantwell, Reed responded by saying, “I ain’t never raped my daughter.” Cantwell then told Reed that L.R. had stated that the sex was not consensual and that she was pregnant as a result of having sex with Reed. According to Cantwell, Reed replied, “Anything that happened between us was consensual.” Reed then declined to give a formal statement to Cantwell.
On July 15, 2004, L.R. had an abortion. The medical staff at the clinic where the abortion was preformed provided Cantwell with tissue samples taken from the aborted fetus. These samples, along with oral swabs taken from L.R. and Reed were sent to a DNA lab in New Orleans, Louisiana. DNA testing performed at the lab determined that there was 99.99% probability that Reed was the father of the child. The test results also indicated that the fetus was tire result of an incestuous relationship.
The State charged Reed with two counts of rape, two counts of aggravated indecent liberties with a child, and two counts of abuse of a child. At the preliminary hearing, L.R. recanted her allegations that Reed had sexually abused her. As a result, the State introduced the videotaped interview between L.R. and Bile at the Sunflower House. The district court bound Reed over for trial.
At Reed’s trial, L.R. again denied that she and Reed had engaged in sexual relations and stated that a former boyfriend had gotten her pregnant. When asked why she told people that she was pregnant with Reed’s baby, L.R. stated that she wanted to have an abortion and believed others would pay for the abortion if they thought she was pregnant with Reed’s child. L.R. also stated that she was mad at Reed for being such a strict father and wanted to get back at him by telling people that she was pregnant with his baby. Regarding the alleged physical abuse, L.R. stated that Reed gave her “whoopings” with a belt because she would act bad and hardheaded. In addition to L.R., Angela Reed, Van Dong, and Cantwell testified for the State. The videotaped interview between L.R. and Bile was also played for the jury. Reed did not testify at trial.
The jury found Reed guilty of two counts of statutory rape and two counts of indecent liberties with a child, but the jury acquitted Reed of tire abuse of a child charges. The district court sentenced Reed to a controlling term of 419 months in prison. Reed timely appeals.
Child-victim, recantation
Reed claims tire district court erred when it allowed Bile, the forensic interviewer who interviewed L.R. at Sunflower House, to opine about why a child might recant an allegation of sexual abuse. Reed argues that Bile’s opinion invaded the province of the jury to determine L.R.’s credibility at trial. Whether the district court improperly allowed one witness to express an opinion on the credibility of another witness is a question of law subject to de novo review. State v. Drayton, 285 Kan. 689, 701-02, 175 P.3d 861 (2008); State v. Oliver, 280 Kan. 681, 695, 124 P.3d 493 (2005); State v. Elnicki, 279 Kan. 47, 50-51, 53-54, 105 P.3d 1222 (2005).
During Bile’s direct examination by the prosecutor, the following exchange took place:
“Q. All right. Also based on your experience, your education, your training, have you — are you familiar with the phrase of recanting or recantation when a child takes back what they said?
“A. Yes, I am.
"Q. Okay. And is that a common phenomenon or uncommon?
“A. It’s — when we went to our forensic interview training, one of the things they told us to be especially mindful of, and we’re told the relationship between the alleged perpetrator and the victim, to pay attention to a relationship where a child who doesn’t have a strong foundation with this person or an emotional connection, they might not have as hard of a time talking about what happened, or, you know, saying yes, this actually did happen; where a child who does have a strong bond, a strong connection with this person might even possibly live in the same home as this person, might have a hard time coming forward and saying something happened, and then might have some immediate impact on their statements, on their family environment or the environment they live in. They might receive a pressure to take back what they said and might want to go back to what they know and what’s familiar to them.
“Q. Besides the impact on the family overall, what other — what other factors are there to consider when trying to explain the recantation? Is there anything else besides the impact of the family overall?
“A. There’s an impact to the child. There’s a chance that the child might be taken from the home. There’s a chance their siblings might be also taken from the home and the family broken up. There’s a chance that someone they care very much about might be very angry with them. There’s a chance that extended family might be putting pressure on them, or the alleged perpetrator might be the bread winner in the family and the family looses [sic] their home. There’s all kinds of factors where a child makes a disclosure about someone in their immediate environment that they live in.
“Q. All right. Is there any research on what age groups specifically recant more than other age groups, or is it just land of across the board for a minor child?
“A. There’s actually a lot of research out there. It shows the older the child is, the greater understanding they have of the impact on the because and effect of their statement, causing these outcomes. And so, the older the children are, the more likely they are to have a recantation.”
Reed did not object to this testimony at trial. Generally, issues not raised before the district court cannot be raised on appeal. K.S.A. 60-404; State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). However, we will consider Reed’s claim on appeal because the issue involves only a question of law arising from admitted facts, and consideration of the issue is necessary to serve the ends of justice. See 283 Kan. at 339.
In State v. McIntosh, 274 Kan. 939, 58 P.3d 716 (2002), the State called an expert witness to testify about common patterns of behavior in children who are sexually abused. The expert also testified that the alleged victim displayed behaviors consistent with a sexually abused child. The Kansas Supreme Court allowed the testimony. The court indicated that as long as the expert does not testify that he or she believes the victim, i.e., opines on the credibility of the alleged victim, an expert witness is permitted to testify about common behaviors among sexually abused children. 274 Kan. at 959-60.
Here, Bile only gave her expert opinion as to why a hypothetical child might recant an initial allegation of sexual abuse. Bile did not render an opinion about L.R.’s credibility. Furthermore, Bile did not even render an opinion as to whether L.R. shared similar characteristics with a child who would be prone to recant. Based on McIntosh, Bile’s testimony did not invade the province of the juiy.
Reed cites State v. Cobb, 30 Kan. App. 2d 544, 43 P.3d 855, rev. denied 274 Kan. 1115 (2002). In Cobb, a defense expert testified that the interrogation techniques used by the officers when questioning the defendant have been known to contribute to false confessions. Judge Carol A. Beier, writing for the panel, held that the expert’s testimony about the interrogation techniques “invades the province of the jury and should not be admitted. Cross-examination and argument are sufficient to malee the same points and protect the defendant.” 30 Kan. App. 2d at 567.
The breadth of Cobb’s holding was drastically limited by Oliver, where Justice Beier, writing for the Supreme Court, held:
“[A] criminal defendant against whom a confession will be admitted may be permitted to introduce expert psychological or psychiatric testimony bearing on his or her ability to respond reliably to interrogation. It is essential, however, that the testimony actually tell jurors something they would not otherwise know from their usual human experience and that it remain hypothetical or theoretical. It must stop short of expressing the expert’s judgment on the defendant’s reliability in the specific instance of the confession submitted for the jury’s consideration.” 280 Kan. at 702.
In reaching this result, the Supreme Court distinguished Cobb, finding that its holding only applied to expert testimony concerned solely with interrogation techniques, and not “with the particular psychological makeup of the defendant or with the potential for interaction between that makeup and interrogation techniques used by law enforcement.” 280 Kan. at 698-99.
Based on McIntosh and Oliver, Bile’s testimony about why children may recant allegations of sexual abuse was admissible. Bile did not render an opinion about L.R.’s credibility, and her testimony did not invade the province of the jury. See also State v. Huntley, 39 Kan. App. 2d 180, 187-89, 177 P.3d 1001 (2008) (finding the district court abused its discretion in denying defendant’s continuance request to retain expert on child-witness interview techniques); Mullins v. State, 30 Kan. App. 2d 711, 717-18, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002) (finding defense attorney rendered ineffective assistance when he did not consult with expert concerning interviewing techniqués used in child sex abuse cases).
Prosecutorial misconduct
Next, Reed claims that the prosecutor committed misconduct during her opening statement when she stated that Reed refused to give a formal statement to the police. Reed argues that this statement constituted an impermissible comment about exercising his Fifth Amendment right to remain silent.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling.” 283 Kan. at 428.
During her opening statement, the prosecutor stated: “On June 23rd, 2004, the police went to the Wyandotte County jail to speak with the defendant. Detective Cantwell walked into the jail and introduced himself. The defendant refused to give Detective Cantwell a formal statement, but said, he responded . . . .” At that point, defense counsel objected and the parties approached the bench. The following exchange then took place between the attorneys and the district court:
“Mr. Cahill [defense counsel]: The prosecutor has just commented on my client’s exertion of his Fifth Amendment rights. That’s clearly improper, and I’d ask for a mistrial at this time. He can’t get a fair trial at this point.
“The Court: Overruled at this point.
“Ms. Lidtke [the prosecutor]: Okay. Judge, let me explain what happened. There was a ruling while you were out of town or at a doctor’s appointment regarding statements he made at the jail, and at that time he refused to talk to the detective. However, he made statements to the detective about what had happened, and that’s what I was trying to lead into. I wasn’t commenting on the fact that he gave — he didn’t give a formal statement about what happened, because I’m going to talk about the statement that he did give.
“The Court: He gave statements, and those have been held to be voluntarily given.
“Mr. Cahill: I need to make a record on this. Yes, those — those are admissible, and my client stipulated to the voluntariness of those statements, but that has nothing to do with him refusing to give a formal statement. She can say he said this, but she cannot — clearly cannot say that he refused to give a formal statement, and I think that is—
“Ms. Lidtke: Judge, I would ask you to give the jury an instruction to disregard the statement that I made about him refusing to give a statement. I would ask that it not be a mistrial at this point. Mr. Cahill’s correct that I cannot comment on his right to remain silent, and I didn’t take it that I was taking that as a comment that he actually gave a statement, but not a tape-recorded statement is what I was getting at, and I think I probably used the wrong words.
“Mr. Cahill: That’s not sufficient. That’s not sufficient. I mean, there’s nothing more clear under the law than the prosecutor not being able to comment on a person refusing to give a statement.
“The Court: I’m not going to start over, Mr. Cahill.”
As a general rule, it is unconstitutional for the State to elicit evidence at trial of a defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998), our Supreme Court stated:
"A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.”
Here, the prosecutor’s comment, when viewed in isolation, comes close to being a Doyle violation. However, the prosecutor did not make the statement for the purpose of impeaching Reed’s credibility, but only to inform the jury of the context in which Reed made a brief statement to Cantwell. The prosecutor did not argue that Reed’s refusal to give a formal statement was an indication of his guilt. Based on Edwards, the prosecutor’s brief remark during the opening statement did not constitute a Doyle violation.
Even if the prosecutor’s statement was improper, the prosecutor’s conduct was not gross and flagrant and did not show ill will toward Reed. Based on the overwhelming evidence against Reed, especially the DNA evidence, the prosecutor’s comment likely had little weight in the minds of the jurors. Under these circumstances, the prosecutor’s comment did not amount to reversible error. See Albright, 283 Kan. at 428.
Constitutionality of K.S.A. 21-3502(a)(2) and K.S.A. 21-3504(a)(1)
K.S.A. 21-3502(a)(2) defines rape as sexual intercourse with a child who is under 14 years of age. K.S.A. 21-3504(a)(1) defines aggravated indecent liberties with a child as sexual intercourse with a child who is 14 or 15 years old. It is an absolute defense to both crimes if the alleged perpetrator is married to the victim. See K.S.A. 21-3502(b); K.S.A. 21-3504(b).
On appeal, Reed argues that Kansas’ statutory rape and aggravated indecent liberties statutes violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution because both statutes absolutely prohibit all unmarried adolescents from engaging in consensual intimate activity without regard to their maturity level. Whether a statute is unconstitutional is a question of law subject to an appellate court’s unlimited review. State v. Voyles, 284 Kan. 239, 256, 160 P.3d 794 (2007).
Reed did not raise this argument before the district court. Where constitutional grounds are asserted for the first time on appeal, they are not properly before an appellate court for review. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006). However, when it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, the constitutionality of a statute should be decided, even if the parties failed to raise the constitutional questions, failed to plead the questions, or failed to present the questions to the district court. State v. Sedillos, 279 Kan. 777, 785, 112 P.3d 854 (2005). Thus, we will review Reed’s claim.
In Voyles, the Supreme Court had to determine whether Kansas’ aggravated criminal sodomy statute, K.S.A. 21-3506(a)(1), violated the Due Process Clause because it proscribed consensual, intimate activities of all unmarried persons under 14 years of age without regard to their maturity. Because the statute did not place restrictions on a fundamental right or treat suspect classes or genders differently, the court applied a rational basis test to determine whether the statue was constitutional. The court determined that because the legislature has a legitimate goal of protecting children from adult sexual predators and the sodomy statute was rationally related to that goal, the statute passed the rational basis test and therefore was constitutional. 284 Kan. at 258-59; see also State v. Taylor, 33 Kan. App. 2d 284, 286-87, 101 P.3d 1283 (2004), rev. denied 279 Kan. 1010 (2005) (applying a rational basis test and finding that K.S.A. 21-3504[a][1] does not violate either the Due Process or Equal Protection Clauses).
Based on reasoning found in Voyles and Taylor, we conclude that K.S.A. 21-3502(a)(2) and K.S.A. 21-3504(a)(1) do not violate the Due Process Clause. The legislature has a legitimate goal of protecting children from adult sexual predators, and both statutes are rationally related to carrying out that goal. Reed’s constitutional argument is without merit.
Cumulative error
Next, Reed argues that his convictions should be reversed because of cumulative error.
“ ‘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 a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. [Citation omitted.]’ ” State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007) (quoting State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 [2006]).
Cumulative error will not be found when the record fails to support any error raised on appeal by the defendant. Davis, 283 Kan. 569, Syl. ¶ 8. At best, the record reflects a brief comment during the prosecutor’s opening statement, which, viewed in isolation, may have constituted a Doyle violation. This is insufficient to support Reed’s request for reversal of his convictions based on cumulative error.
Apprendi issue
Finally, Reed claims the district court violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when the district court used Reed’s criminal history to enhance his sentence. Reed acknowledges that the Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). The Kansas Supreme Court does not appear to be departing from its decision in Ivory. See State v. Gonzalez, 282 Kan. 73, 117-18, 145 P.3d 18 (2006). Therefore, Reed’s sentencing claim is without merit.
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Green, J.:
Kirk T. Wilson appeals from a judgment of the trial court dismissing his K.S.A. 60-1507 motion as untimely. We hold that Wilson s initial 60-1507 motion was timely. Nevertheless, we determine that Wilson’s amended 60-1507 motion was untimely. Finally, we determine that the trial court properly concluded that no manifest injustice would occur in failing to accept Wilson’s amended 60-1507 motion. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
On April 24, 2001, Wilson was convicted by a jury of first-degree murder in violation of K.S.A. 1993 Supp. 21-3401. Wilson was sentenced to life without the possibility of parole for 25 years. Wilson filed a direct appeal of his conviction and sentence. Moreover, in pro se letters to the district court judge, Wilson explained that his appeal primarily involved the fact that he believed his trial attorney did not properly represent him at trial. After an attorney was appointed, our Supreme Court affirmed Wilson’s conviction and sentence, finding sufficient evidence to support the conviction, finding that the prosecutor’s closing argument did not improperly bolster the credibility of a witness or misstate the definition of reasonable doubt, and finding that Wilson invited any error regarding testimony suggesting a prosecution witness passed a polygraph examination. State v. Wilson, 281 Kan. 277, Syl. ¶¶ 1-4, 130 P.3d 48 (2006). The opinion was filed on March 17, 2006, and the mandate was issued on April 10, 2006.
In a letter dated March 5, 2007, Wilson wrote to the Atchison County District Court Clerk and requested to proceed in forma pauperis on a “petition for a writ of habeas corpus” under K.S.A. 60-1507. Wilson included his motion with the letter, and the dis trict court clerk filed only the letter with the court on March 19, 2007. That same day, the district court clerk wrote Wilson to explain that under K.S.A. 60-2001(b), Wilson was required to submit a statement of his prison account if he wanted to have the filing fee waived. The clerk notified Wilson that until the court had set the fee and there had been compliance, the motion could not be filed. The clerk further informed Wilson that she would hold the motion for no more than 30 days.
In a letter dated April 10, 2007, Wilson wrote to the district court clerk and included an in forma pauperis affidavit under K.S.A. 60-2001(b). Wilson also included a new K.S.A. 60-1507 motion that raised additional issues, and he asked the clerk to destroy the first motion. The district court clerk filed tire letter with the court on April 12, 2007.
On April 17, 2007, the district court denied Wilson s motion to proceed in forma pauperis and set the filing fee for $147. The district court received Wilson’s docket fee on May 7, 2007. That same day, the district court clerk wrote to Wilson and explained that, under Supreme Court Rule 123 (2007 Kan. Ct. R. Annot. 210), he was required to submit a civil information sheet before his motion could be filed. Later, when the district court clerk had received all the necessary paperwork, the clerk file-stamped the documents on May 14, 2007. Yet, it is not clear from the record whether the file-stamped motion was the original motion sent on March 5, 2007, or the amended motion sent on April 10, 2007.
On May 24, 2007, the State moved to dismiss, arguing that Wilson had failed to file his K.S.A. 60-1507 motion within 1 year, as required by statute, and that Wilson had failed to demonstrate manifest injustice. Wilson responded by arguing that no case had defined what constitutes “manifest injustice” for K.S.A. 60-1507 purposes. Moreover, he maintained that manifest injustice must be defined as extreme unfairness. As a result, Wilson argued that it was unfair to require him to file a motion based on knowledge he did not obtain until after the 1-year filing date had passed: that his trial counsel had been suspended from the practice of law on March 16, 2007. Wilson argued that this knowledge led him to believe his attorney had been ineffective in representing him.
After holding a hearing on the State’s motion to dismiss, the district court dismissed the 60-1507 motion on August 15, 2007, finding that Wilson’s motion had been filed past the 1-year time limitation and that Wilson had failed to show manifest injustice in the dismissal of his motion.
Did the District Court Err hy Dismissing Wilsons K.S.A. 60-1507 Motion as Untimely ?
When a district court is presented with a K.S.A. 60-1507 motion, it may determine the following: (1) that the record conclusively demonstrates that none of the movant’s claims entitle the movant to relief and then deny the motion without appointing counsel or holding a hearing; (2) fhat the motion raises potentially valid claims, requiring a full evidentiary hearing in the presence of the movant; or (3) that the motion presents substantial fact issues and appoint counsel for a prehminary hearing to determine whether in fact the issues in the motion are substantial. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).
Here, the district court denied Wilson’s motion after it had appointed counsel but before an evidentiary hearing. As a result, this court has unlimited review of the evidence presented to the district court. 285 Kan. at 354.
Was Wilsons K.S.A. 60-1507 Motion Timely Filed?
The district court granted the State’s motion to dismiss Wilson’s motion because it was filed beyond the 1-year limitation period under K.S.A. 60-1507(f), which states:
“(1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) The denial of a petition for writ of certiorari to the United States supreme court or issuance of such court’s final order following granting such petition.
“(2) The time limitation herein may be extended by the court only to prevent manifest injustice.”
Wilson first argues that the district court incorrectly determined that our Supreme Court’s decision on March 17, 2006, was the deadline for Wilson to file his K.S.A. 60-1507 motion. Wilson argues that the district court should have found the deadline contin ued until 1 year after our Supreme Court had issued its mandate, which would have been April 10, 2007. Wilson further argues that the last date to file should have been April 11, 2007, because the mandate was not filed in Atchison County until April 11, 2007. In addition, Wilson argues that he should have been allowed to file his motion without paying a docket fee and that the filing date of his motion should have been- considered timely. Wilson, however, provides no cases to support his arguments.
In response, the State argues that whether the district court had used the date when our Supreme Court affirmed Wilson’s conviction or tire date when our Supreme Court’s mandate was issued is irrelevant. The State contends that Wilson’s motion was not filed until May 14, 2007, when Wilson submitted the docket fee and civil cover sheet. Further, the State argues that just because Wilson filed pro se, it should not excuse his noncompliance with paying the dpcketing fee and submitting the civil cover sheet. ,
From the outset, we note that. Wilson has failed to preserve for appeal any argument that the district court had improperly calculated his 1-year time requirement based on the date of the Supreme Court’s opinion. For example', in his memorandum in opposition to the State’s motion to dismiss, Wilson conceded that the “one year in which to bring this action expired on March 17, 2007.” Further, at the dismissal hearing, Wilson made no mention of the requirement to calculate his 1-year deadline from the date the mandate had been issüed. Generally, issues not raised before the trial court cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007); but see Poulton v. State, 286 Kan. 1, 5, 179 P.3d 1145 (2008) (failure to raise an issue in the trial court and failure to argue that any exceptional circumstances applied did not preclude appellant from raising the issue on appeal).
Was Wilsons Original Motion Timely Filed?
Wilson’s original K.S.A. 60-1507 motion was timely filed because Wilson mailed his motion on March 5, 2007. After Wilson appealed his conviction and sentence, our Supreme Court filed its opinion affirming Wilson’s conviction and sentence on March. 17, 2006, Wilson, 281 Kan. 277. In a letter dated March 5, 2007, Wilson wrote to the Atchison County District Court Clerk and requested to proceed in forma pauperis on a “petition for a writ of habeas corpus” under K.S.A. 60-1507. The district court clerk filed the letter with the court on March 19, 2007.
By timely filing his motion under K.S.A. 60-206(d), Wilson gained the benefit of the “three-day mail rule” because the appellate clerk would have mailed our Supreme Court’s decision to Wilson. Thus, Wilson would have had until March 20, 2007 to file his K.S.A. 60-1507 motion. Furthermore, Kansas courts have held that habeas petitions delivered to prison authorities for mailing constitute a filing if done under the time hmitations outlined in relevant statutes. See, e.g., Taylor v. McKune, 25 Kan. App. 2d 283, 286-88, 962 P.2d 566 (1998). The rationale to allow pro se prisoners leeway in mailing their habeas petitions under K.S.A. 60-1501 applies equally to motions filed under K.S.A. 60-1507:
“ ‘Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation . . . Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.’ ” Taylor, 25 Kan. App. 2d at 286-87 (quoting Houston v. Lack, 487 U.S. 266, 271, 101 L. Ed. 2d 245, 108 S. Ct. 2379 [1988].)
Because Wilson timely filed his first motion, we must determine if Wilson’s failure to provide a docket fee or an appropriate affidavit under K.S.A. 60-2001(b) required the district court clerk to refuse to file his motion. Under K.S.A. 60-2001(a), no case may be filed or docketed without payment of a docket fee. Although K.S.A. 60-2001(b) provides an exception for individuals who are unable to pay a docket fee, the statute contains clear and direct requirements:
“In any case where a plaintiff by reason of poverty is unable to pay a docket fee, and an affidavit so stating is filed, no fee will be required. An inmate in the custody of the secretary of corrections may file a poverty affidavit only if the inmate attaches a statement disclosing the average account balance, or the total deposits, whichever is less, in the inmate’s trust fund for each month in (A) the six-month period preceding the filing of the action; or (B) the current period of incarceration, whichever is shorter.”
On March 5, 2007, Wilson mailed only a K.S.A. 60-1507 motion with no fee and no affidavit. Nevertheless, Wilson specifically stated in his letter that he was enclosing a request to proceed in forma pauperis.
Although Wilson did not meet the requirements of K.S.A. 60-2001(b), he substantially complied with K.S.A. 60-2001(b) when he indicated in his letter that he wished to proceed in forma pauperis. Kansas courts have drawn distinctions between the failure to comply with technical procedural steps and substantive requirements when parties attempt to appeal. See, e.g., In re K-Mart Corp., 232 Kan. 387, 391-92, 654 P.2d 470 (1982); Walnut Valley State Bank v. Stovall, 223 Kan. 459, 574 P.2d 1382 (1978); Avco Financial Services v. Caldwell, 219 Kan. 59, 61, 547 P.2d 756 (1976).
Our Supreme Court has held in multiple cases that “procedural deficiencies were not jurisdictional as long as the substantive statutory requirements to perfect an appeal were met.” K-Mart Corp., 232 Kan. at 391. Further, in Avco Financial Services, our Supreme Court held that the payment of a docket fee is not jurisdictional and should not affect the filing of a timely notice of appeal. 219 Kan. at 61-63. The court noted that the appellee had failed to show prejudice by the appellant’s failure to pay a docket fee when the appellant sent the papers to the district court. Moreover, the court held that because the payment of the docket fee only affected the clerk and not an adverse party, it should not be regarded as jurisdictional and the appeal should be docketed when the notice of appeal was filed. 219 Kan. at 62-63.
Similarly, Wilson’s payment of a docket fee or his compliance with K.S.A. 60-2001(b) is separate from the substantive statutory requirements for seeking habeas relief under K.S.A. 60-1507. Payment of a docket fee does not affect the State, and the State has not shown prejudice by Wilson’s failure to pay a docket fee when he mailed his initial K.S.A. 60-1507 motion. Although K.S.A. 60-2001 contains mandatory language, the payment of a docket fee has been held to affect only the district court clerk and not the adverse party. Thus, a movant’s failure to pay the docket fee is not jurisdictional, nor does the movant’s failure to pay the docket fee require a district court clerk to reject filing the movant’s K.S.A. 60-1507 motion. Besides, rather than holding a movant’s motion until he or she has paid the docket fee, a district court clerk should file the motion. This would allow the district court judge to dismiss the action if the movant later fails to pay the docket fee or fails to file a poverty affidavit in compliance with K.S.A. 60-2001(b).
Does Compliance with Supreme Court Rule 123 Affect Timeliness?
Next, we must determine if the district court clerk was correct to hold Wilson’s documents until he submitted a cover sheet under Supreme Court Rule 123 (2007 Kan. Ct. R. Annot. 210), which states that “[ejffective July 1, 2005, for the filing of all new cases, the clerks of the district courts shall require the submission of a cover sheet.” When a district court’s ruling hinges on an interpretation or application of Supreme Court Rules, appellate courts exercise independent appellate review. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).
Our research has revealed no Kansas case in which a court has held that a district court clerk may hold a motion until a movant has complied with Supreme Court Rule 123. With this understanding, we draw comparisons to the earlier cases dealing with a movant’s failure to pay a docket fee with a notice of appeal. Because Kansas courts have found that an appellant’s failure to pay a docket fee was not jurisdictional and should not have prevented the appellant from docketing an appeal, we determine that the failure to include a cover sheet was not a substantive statutory requirement. Instead, it was a procedural deficiency that did not prejudice the State in anyway. See, e.g., K-Mart Corp., 232 Kan. at 391; Walnut Valley State Bank, 223 Kan. 459; Avco Financial Services, 219 Kan. at 61-63.
Clearly, like the duty to pay a docket fee, the cover sheet requirement affects only the district court clerk, not an adverse party, and does not prejudice the adverse party. In fact, the Office of Judicial Administration explained that the rule was enacted to provide consistency and to ease the path toward electronic filing. New Supreme Court Rule Mandates Use of New Cover Sheets, 74 J.K.B.A. 40 (2005). Like the docket fee requirement, Wilson’s filing of a cover sheet under Supreme Court Rule 123 is separate from the substantive statutory requirements for seeking habeas relief under K.S.A. 60-1507. Finally, while the State is correct that pro se civil litigants are held to the same procedural standards as represented parties, the State ignores Kansas cases that distinguish mere procedural deficiencies from substantive statutory requirements. Consequently, we determine that Wilson’s failure to submit a civil cover sheet did not require the district court clerk to reject the filing of Wilson’s 60-1507 motion.
Did Wilson Timely File His Amended K.S.A. 60-1507 Motion?
Next, we must consider what date should have been used to calculate the 1-year limitation period based on Wilson’s amended motion. If the 1-year limitation period commenced when our Supreme Court filed its opinion, Wilson cannot amend his original motion. Under Ludlow v. State, 37 Kan. App. 2d 676, 683-84, 157 P.3d 631 (2007), Wilson would not have been allowed to amend his K.S.A. 60-1507 motion to include new grounds for relief because the Ludlow court stated that the “relation back” doctrine in K.S.A. 60-215(c) did not apply in K.S.A. 60-1507 actions. Although it is not clear if Wilson raised new grounds for relief in his amended motion, Wilson stated that the amended motion “raises more issues.” If, however, the 1-year limitation period commenced when our Supreme Court issued its mandate, Wilson’s amended motion would have been timely filed.
In Koch, Administratrix, v. Prudential Ins. Co., 205 Kan. 561, 562, 470 P.2d 756 (1970), our Supreme Court found that the judgment in a case of liability under an insurance contract was final “when the mandate of this court was spread of record in the district court.” Furthermore, in State v. Bloomer, 197 Kan. 668, 674, 421 P.2d 58 (1996), our Supreme Court held that when the mandate was issued it “became a part of the judgment controlling in the conduct of any further proceedings in the case.” Finally, in State v. Prater, 31 Kan. App. 2d 388, 393-94, 65 P.3d 1048 (2003), this court held that a defendant’s previous conviction was final once the mandate became part of the judgment of the district court. Under this reasoning, the 1-year time requirement under K.S.A. 60-1507(f) would have started running when the mandate was issued.
Nevertheless, K.S.A. 60-2107 and Rule 8.03(f) and (i) (2007 Kan. Ct. R. Annot. 63) state that any decision of the Court of Appeals or Supreme. Court denying review shall be final as of the date of the decision denying review and that the mandate shall be issued by the appellate clerk forthwith. Further, in Tolen v. State, 285 Kan. 672, 673, 675, 176 P.3d 170 (2008), our Supreme Court, in a K.S.A. 60-1507 appeal, found that the 1-year time limitation began when the judgment was finalized by the court’s denial of the prisoner’s petition for review, not from the date the mandate was issued. Finally, the 10th Circuit Court of Appeals follows this same reasoning and finds the 1-year limitation period to commence once there is a decision rejecting the appeal. See, e.g., Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006).
Wilson did not file a petition for review or any postdecision motions. As a result, the judgment was finalized by our Supreme Court’s decision on March 17, 2006. The substantive aspects of the case had been fully determined. Under this reasoning, Wilson’s time limitation period would have commenced when our Supreme Court filed its opinion. As a result, Wilson’s amended motion was untimely filed.
Should the Untimeliness of Wilson’s Amended K.S.A. 60-1507 Motion Be Excused Because of Manifest Injustice?
Wilson made no mention of manifest injustice when he filed his motion. Rather, the first time Wilson argued manifest injustice was in response to the State’s motion to dismiss. In Wilson’s memorandum in opposition to the State’s motion to dismiss, Wilson argued that it would be manifestly unjust to require him to file his motion before the 1-year limitation period expired because he did not know until after the deadline that his trial counsel had been suspended from practicing law. Further, Wilson argues on appeal that his claim of manifest injustice is preserved for appeal because he raised the issue at the dismissal hearing. Wilson provides no more supporting arguments or cases on appeal.
At the dismissal hearing, the State argued that Wilson’s motion failed to mention any specific act of his trial attorney which demonstrated inefficient representation. On appeal, the State argues that the district court was correct in finding that Wilson had failed to show manifest injustice because Wilson had not shown that rejecting his untimely appeal would result in obvious unfairness.
Our court has recognized, as have the parties, that “manifest injustice” has not been defined in the context of K.S.A. 60-1507(f)(2). Nevertheless, this court has applied the interpretation given to “manifest injustice” to mean “obviously unfair” or “shocking to the conscience” from other contexts to K.S.A. 60-1507 situations. See Clemons v. State, 39 Kan. App. 2d 561, 182 P.3d 730 (2008), slip op. at 9; Cranford v. State, 39 Kan. App. 2d 12, 15, 176 P.3d 972 (2008); Ludlow, 37 Kan. App. 2d at 686.
Wilson seems to argue that he received ineffective assistance of counsel because his trial attorney was suspended from practicing law approximately 6 years after he represented Wilson. In In re Waite, 283 Kan. 497, 153 P.3d 517 (2007), Michael Waite, Wilson’s trial counsel, was disciplined for his violation of the Kansas Rules of Professional Conduct (KRPC) 1.5 (2006 Kan. Ct. R. Annot. 401) (fees), KRPC 1.15 (2006 Kan. Ct. R. Annot. 435) (safekeeping property), KRPC 1.16 (2006 Kan. Ct. R. Annot. 435) (terminating representation), and Kansas Supreme Court Rule 211(b) (2006 Kan. Ct. R. Annot. 284) (failure to answer to the formal complaint). The complaint involved a contract between Waite and a client from 2003. Although the opinion recognized that additional complaints had been filed against Waite, it specified that the parties acknowledged that none of the additional complaints involved “ ‘dishonesty or misuse of client money.’ ” Consequently, the parties resolved the cases in an informal manner. 283 Kan. at 499. Finally, although the disciplinary panel recommended a 1-year suspension, Waite admitted to having significant health problems that required more than 1 year to address and requested an indefinite suspension, which the Supreme Court imposed. 283 Kan. at 499-500.
Our Supreme Court has previously held that suspension itself does not constitute ineffective assistance:
“[U]nprofessionaI conduct by defense counsel which violates a disciplinary rule contained in the Code of Professional Responsibility [now Kansas Rules of Professional Conduct] does not constitute ineffective and inadequate counsel as a matter of law. It is simply one factor to be considered as a part of the totality of the circumstances in making a judicial determination as to whether an accused has been provided representation by effective counsel.” State v. Wallace, 258 Kan. 639, 646, 908 P.2d 1267 (1995).
In Wilsons pro se K.S.A. 60-1507 motion, he maintains that Waite provided ineffective assistance by failing to submit police reports, newspaper articles, and letters written by the State’s witnesses into evidence and by failing to use police reports to cross-examine the State’s witnesses. It is not clear why knowledge of Waite’s later suspension would be needed before Wilson could file his K.S.A. 60-1507 motion. Wilson wrote letters to the district court judge while directly appealing his conviction and sentence in which he discussed his concerns with his attorney’s representation. Wilson fails to explain why he had to wait until Waite faced disciplinary action to file his K.S.A. 60-1507 motion.
Furthermore, Wilson does not make any allegations that Waite set inappropriate fees, mishandled his property, or failed to be clear about the termination of his representation, which is the conduct discussed in the later disciplinary action. Therefore, the fact that Waite was later suspended from the practice of law was not information Wilson needed to have to make allegations that his trial attorney had been ineffective in his representation of him.
Indeed, Wilson’s explanation for filing his 60-1507 motion after the 1-year limitation period is a non sequitur, which means it does not follow. There is no logical connection between Wilson’s claim (he received ineffective assistance) and the premise (his trial attorney was suspended from practicing law approximately 6 years after he represented Wilson). The fact that Wilson’s trial attorney was later suspended from practicing law based on disputes with former clients does not mean that his representation of Wilson was ineffective. Such a conclusion is completely unjustified by the premise.
Given these facts, the later violation of KRPC by Wilson’s trial attorney did not constitute ineffective assistance of counsel as a matter of law. As a result, the district court properly determined that no manifest injustice had occurred.
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Greene, J.;
Deann Bussart-Savaloja appeals her conviction of operating a vehicle while under the influence of alcohol (DUI), arguing (i) a delay in the appeal process violated her due process rights; (ii) K.S.A. 8-1001(i), allowing admission into evidence of a refusal to submit to a blood test, is unconstitutional under the Fourth Amendment to the United States Constitution; and (in) the enhancement of her sentence by reason of a prior conviction violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We conclude that the delay in the appeal process may have been inordinate, but Bussart-Savaloja has not demonstrated sufficient assertion of her rights or actual prejudice to establish a constitutional violation. We also reject Bussart-Savaloja’s challenge to the constitutionality of K.S.A. 8-1001(i) because there can be no derivative constitutional right to bar evidence of an invocation of something that itself is not a constitutional right. Finally, we conclude that Bussart-Savaloja’s sentencing challenge is controlled by precedent from our Supreme Court. For these reasons, we affirm Bussart-Savaloja’s conviction.
Factual and Procedural Background
During a DUI checldane operated by the Pottawatomie County Sheriffs Department in April 2004, Kansas Highway Patrol Trooper Joseph Bullock observed Bussart-Savaloja’s vehicle turn off the roadway onto a frontage road, park with its lights off, roll through a stop sign, and return the way it had come. Bullock began following the car and observed that it was traveling more than 10 miles under the speed limit. When Bussart-Savaloja did not adjust her speed when changing from a 40-mile an hour zone to a 30-mile an hour zone, Bullock initiated a traffic stop.
Trooper Bullock testified that Bussart-Savaloja exhibited several signs of impairment, including bloodshot and watery eyes, fumbling through the same section of her pocket book over and over, and stating a confused travel plan (Bussart-Savaloja said she was traveling home when she was actually traveling toward Manhattan and away from her home in Wamego, Kansas). Bullock also detected a strong odor of alcohol and observed that Bussart-Savaloja was unsteady when she exited the car, mispronounced “alphabet” twice, and performed poorly on two field sobriety tests.
Bullock concluded that Bussart-Savaloja was impaired and placed her under arrest. After being informed of the implied consent advisories, Bussart-Savaloja agreed to submit to a breath test. Bullock began a 20-minute deprivation period but was unable to complete it when Bussart-Savaloja said she was going to vomit. Believing that Bussart-Savaloja had vomited, Bullock decided to change the test from a breath test to a blood test. Bullock again explained the implied consent advisories and explained the ramifications of refusing the test. Bussart-Savaloja refused the blood test because she worked at Mercy Hospital where the blood test was to be taken. According to Bullock’s report, Bussart-Savaloja also refused because she said she was going to jail anyway and that she would be sober by the time everything was done. Bullock then transported Bussart-Savaloja to the Pottawatomie County jail for processing.
Bussart-Savaloja was charged with a DUI, third offense, and speeding. A 1-day jury trial was held on April 1, 2005. Bussart-Savaloja was found guilty and was sentenced to the custody of the Pottawatomie County jail for a period of 12 months on July 7, 2005.
Bussart-Savaloja filed a timely pro se notice of appeal on July 8, 2005. The district court stayed Bussart-Savaloja’s sentence pending appeal. For reasons not apparent in the record on appeal, appellate counsel did not receive notice of appointment to this appeal until January 11, 2007. Each party to the appeal received three exten sions on its brief, and the appeal was not deemed ready for argument until June 2008. We heard oral argument in October 2008.
Did the Delay in the Appeal Process Violate Bussart-Savaloja’s Due Process Rights?
Bussart-Savaloja argues that the unexplained delay in processing her appeal violated her due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.
Although the United States Constitution does not require the State to afford a criminal defendant a direct appeal to challenge alleged trial court errors, the United States Supreme Court has held that if a State has created appellate courts as an integral part of its system for finally adjudicating the guilt or innocence of a defendant, the procedures employed in the appeal process must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution. Evitts v. Lucey, 469 U.S. 387, 393, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985); McKane v. Durston, 153 U.S. 684, 687, 38 L. Ed. 867, 14 S. Ct. 913 (1894).
Insofar as we can determine, this appeal appears to be the first to challenge timeliness in the appeal process in Kansas appellate courts. Because the reasons for constraining unreasonable appellate delay are analogous to the motives underpinning the right to speedy trial under the Sixth Amendment to the United States Constitution, we examine case law construing and applying speedy trial rights in assessing delays in the state appeal process. See Harris v. Champion, 15 F.3d 1538-1558-65 (10th Cir. 1994). We also note that in Harris, the Tenth Circuit Court of Appeals provided a suggested roadmap by which a state appeal process may be determined to be constitutionally ineffective because of unreasonable delay. See 15 F.3d at 1559.
In Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the United States Supreme Court established a “balancing test” to determine whether a specific delay violates a defendant’s right to a speedy trial. Barker identified four factors balanced to determine if a defendant’s rights have been violated: (1) the length of delay, (2) the reason for the delay, (3) the de fendant’s assertion of his or her right, and (4) prejudice to the defendant.
Although Barker addressed a defendant’s right to a speedy trial, the Tenth Circuit subsequently adopted the Barker analysis in determining whether a defendant’s due process right to a timely direct criminal appeal had been violated. Harris, 15 F.3d at 1559. The Tenth Circuit’s analysis also expanded the prejudice element to include whether delay (i) caused the defendant to suffer oppressive incarceration pending appeal; (ii) caused the defendant to suffer constitutionally cognizable anxiety and concern awaiting the outcome of his or her appeal; or (in) impaired the defendant’s grounds for appeal or his or her defenses in the event of a reversal and retrial. 15 F. 3d at 1559. We apply the Barker factors as modified by Harris to determine whether delays in Bussart-Savaloja’s appeal violated her due process.
Length of delay
The first factor in the balancing test is the length of the appellate delay, and only the passage of an inordinate amount of time triggers due process concerns. If inordinate delay cannot be shown, we need not inquire into the other factors. And there is no inflexible length of time that will constitute inordinate delay in every case. For purposes of evaluating length of delay in state courts based on due process precedent from the Tenth Circuit, however, a 2-year delay in finally adjudicating a direct criminal appeal ordinarily will give rise to a presumption of inordinate delay that will satisfy this first balancing factor and compel examination of the other factors. Harris, 15 F.3d at 1559-60.
Although we have relied principally upon Tenth Circuit authority in applying this factor, we note that there is no inconsistency between federal authority and that of our own Supreme Court in examining delay for purposes of speedy trial. See, e.g., State v. Mathenia, 262 Kan. 890, 894-97, 942 P.2d 624 (1997); State v. Fitch, 249 Kan. 562, 819 P.2d 1225 (1991); State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989).
Here, Bussart-Savaloja’s notice of appeal was filed July 8, 2005, and we have not adjudicated her appeal until now. Moreover, the State has not argued and we do not conclude that there were special circumstances present here that mitigate the length of delay. Accordingly, we must conclude that the delay in processing Buss-art-Savaloja s appeal was presumptively inordinate, thus weighing in favor of a due process deprivation.
Reason for delay
The second factor in the balancing test is the reason for the delay. When addressing this factor, purposeful delay weighs heavily against the government. A neutral reason, such as negligence or overcrowded courts, weighs less heavily but should be considered. The ultimate responsibility rests with the government rather than with the defendant. Barker, 407 U.S. at 531. And reasons such as lack of funding, briefing delay by court-appointed attorneys, and mismanagement of resources by public defender offices are not considered acceptable excuses for inordinate delay. Harris, 15 F.3d at 1562.
Analysis of the reasons for delay in this case is difficult because the record on appeal does not permit an exhaustive examination of what occurred. It appears the district court promptly appointed the Kansas Appellate Defender Office as appellate counsel for Bussart-Savaloja on July 14, 2005. This order was filed July 20, 2005, by facsimile to the district court clerk from prior counsel for Bussart-Savaloja, the cover sheet of which stated: “Please advise our office if you will notify the Appellate Defender’s Office or if we need to do so.” The record fails to reflect any activity thereafter until January 11, 2007, when a different district court judge again appointed “Jessica Kunen, Chief Appellate Defender” as counsel for the appeal. Obviously, 18 months of delay was incurred as a result of some issue in advising appellate counsel of appointment.
Thereafter, transcription delays were incurred between April 24, 2007, and October 9, 2007 (nearly 6 months), appellant briefing required until February 19, 2008 (over 4 months), and briefing by the State required until June 8, 2008 (nearly 4 months). After briefing was completed, this court set the matter on an argued docket for October 2008, and our decision is now being filed in early December 2008, within 6 months after case “ready”. Of interest is that these later delays totalling 19 months would not have pushed this appeal past the 2-year benchmark for presumptive delay had the initial 18-month unexplained delay not occurred.
Problems in the prompt appointment of appellate counsel and notification of the appointment have been a persistent problem to our court and are most often reflected in motions to docket appeals out of time. We note that such problems could be avoided by enforcement of K.A.R. 105-3-9, which provides:
“Duties of trial counsel following sentencing, (a) In order to protect a convicted defendant’s right to appeal, it shall be the duty of each trial counsel to prepare, file, or both, the following documents:
(1) file a motion for modification of sentence pursuant to K.S.A. 21-4603(2), when appropriate;
(2) file a motion for release on appeal bond pursuant to K.S.A. 22-2804, when appropriate;
(3) file a notice of appeal in a timely manner, unless a waiver of the right to appeal has been signed by the defendant;
(4) upon filing the notice of appeal, obtain a court order for the trial transcript, and a transcript of any pretrial or posttrial proceedings from which a claim of error may arise;
(5) upon filing the notice of appeal, obtain an order from the district court appointing the state appellate defender as counsel for the appeal and file the order of appointment with the clerk of the district court withing five days of the filing of the notice of appeal;
(6) submit a draft of the docketing statement and all documents necessary to docket the appeal required by supreme court rule 2.041 to the appellate defender within 10 days of the filing of the notice of appeal; and
(7) submit a listing of all hearings in which a record was taken to the appellate defender, including dates, within 10 days of the filing of the notice of appeal.
“(b) Requests for compensation for services set forth in subsection (a) shall be included in the claim filed with the board.”
This court has a constitutional duty to assure that our appeal process is not delayed in a manner that may implicate constitutional rights of appellants to due process. In order to avoid such delays in our appeal process in Kansas, we urge the Board of Indigents’ Defense Services to take any and all steps to assure compliance with K.A.R. 105-3-9, including requiring a certification of compliance with this regulation as a prerequisite to compensation of trial counsel. We also urge appointed trial counsel throughout our state to comply with this regulation. Finally, we urge our district courts to implement procedures within their districts to assure compliance with the regulation or otherwise assure prompt appointment of appellate counsel and notification of same.
The State has offered no constitutionally sufficient justification for the delays experienced in Bussart-Savaloja’s appeal, and we must conclude that the reasons for delay cannot be attributed to the appellant and must be considered to have due process implications.
Appellant’s assertion of right to a timely appeal
The third factor we must balance in determining whether a due process violation has occurred is the appellant’s assertion of her right to a timely appeal. Whether and how strongly an appellant asserts his or her right to a speedy appeal should be balanced with other factors. Barker, 407 U.S. at 528. “The more serious the deprivation, the more likely the defendant is to complain.” 407 U.S. at 531.
Bussart-Savaloja argues that she asserted her rights by filing a notice of appeal 24 hours after sentencing. Subsequent to this notice of appeal, however, tire record does not indicate, and Bussart-Savaloja does not point to, any assertions of her rights between July 8, 2005, and January 11, 2007. Bussart-Savaloja could have continued to move the court to hear her appeal, and the fact that she filed her notice of appeal pro se indicates an ability to do so. Also, working against Bussart-Savaloja’s favor, when the docketing statement was first submitted to the court on April 24, 2007, the only issue proposed to be raised was a sufficiency of the evidence argument and it did not include an assertion that Bussart-Savaloja’s due process rights had been violated by the delay in appointing counsel.
We are cognizant of the Tenth Circuit’s refusal to require appellants to have made an affirmative assertion of their right to a timely appeal in order for this factor to weigh in their favor. Harris, 15 F.3d at 1563. The facts in Harris, however, were markedly different as to this factor. There, the petitioners were incarcerated and brought their claims through the vehicle of habeas coipus; here, Bussart-Savaloja received a suspension of her sentence pend ing appeal. Whereas the Harris petitioners had plenty of reason to assert their rights but may have been hampered by their circumstances (see Harris, 15 F.3d at 1563), Bussart-Savaloja had little or no reason to complain and perhaps some reason to remain quiet and hope her appeal died a quiet death on the desk of some court reporter or appellate defender.
The Tenth Circuit has recently held that where the defendant has not complained of the delay until after an unreasonable delay has occurred, this may be considered a failure to assert the right and should be held against the defendant. United States v. Yehling, 456 F.3d 1236, 1244 (10th Cir. 2006). This is consistent with other authorities holding that there should be no presumption a timely appeal is desired by defendants who are not in custody. See, e.g., United States v. Smith, 94 F.3d 204, 210-11 (6th Cir. 1996) (a temporary release should provide strong evidence that a defendant has benefitted from delay, rather than been burdened by it). Under these circumstances, we conclude that Bussart-Savaloja’s apparent silence throughout the first 18 months after the filing of her notice of appeal must be weighed against any due process violation.
Prejudice as a result of delay
The fourth and final factor to be considered is whether the appellant has suffered any prejudice due to delay. Prejudice may result from any of the following: (i) oppressive incarceration pending appeal; (ii) constitutionally cognizable anxiety awaiting resolution of the appeal; or (iii) impairment of a defendant’s grounds for appeal or a defendant’s defenses in the event of a retrial. Harris, 15 F.3d at 1563-65.
Bussart-Savaloja argues that she has experienced considerable anxiety as a result of the length of time it has taken to adjudicate her appeal. She also argues that because she has not yet served her sentence, she has not had the opportunity to complete the inpatient treatment needed to combat her alcohol abuse. To establish prejudice as a result of anxiety, however, a defendant must make a particularized and substantial showing of anxiety distinguishable from anxiety suffered by other similarly situated defendants. Harris, 15 F.3d at 1565.
Bussart-Savaloja does not set forth any reasons why her anxiety has been particularly acute and offers no support for the fact that delay in sentencing prohibited her from receiving alcohol abuse treatment. She does not state why her grounds for appeal have been impaired by the delay. Finally, and importantly, Bussart-Savaloja’s sentence was stayed pending the appeal and so she has not suffered the impairment of liberty that comes with incarceration pending appeal. The fourth and final factor weighs against Bussart-Savaloja.
Balancing the factors
Having considered the four factors of the balancing test, we have concluded that two factors Weigh in favor of Bussart-Savaloja and two factors weigh against her in determining whether she has suffered cognizable constitutional delay. Where the appellant has received a suspension of sentence pending appeal, her liberty was not impacted by the delay. This consideration, coupled with her failure to assert the right and her inability to make a particularized and substantial showing of anxiety, weigh heavily against Bussart-Savaloja. As noted by the Tenth Circuit, the necessity of showing substantial prejudice dominates the Barker test once a defendant has been convicted, and the first and second Barker factors do not compensate for a failure to timely assert the right or allege substantial prejudice. Yehling, 456 F.3d at 1245-46. For these reasons, we conclude that Bussart-Savaloja has failed to establish the delay in the appeal process has deprived her of due process.
Does the Admission of a Refusal to Consent to a Blood Test Violate the Fourth Amendment, Rendering K.S.A. 8-1001(i) Unconstitutional?
Bussart-Savaloja next challenges the admission into evidence of her refusal to submit to blood testing, arguing that admission is prohibited by the Fourth Amendment thus rendering K.S.A. 8-1001(i) unconstitutional. Although there was no objection to the admission of this evidence at trial and no constitutional challenge to the statute, we elect to address the challenge for the first time on appeal because it involves only a question of law arising on proved or admitted facts and may be finally determinative of the case. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
A statute is presumed constitutional, and if there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the Constitution before it may be struck down. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
The statute at issue, K.S.A. 8-1001(a), provides in material part:
“Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.”
K.S.A. 8-1001(i) provides:
“The person’s refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.”
It has been established that a defendant’s right to refuse consent in the context of driving under the influence is different from other areas. This court has described K.S.A. 8-1001 as a “remedial law” and stated that it “should be liberally construed to promote the health, safety and welfare of the public.” Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 323, 916 P.2d 47, rev. denied 260 Kan. 994 (1996). The statute’s purpose is to coerce submission to chemical testing through the threat of statutory penalties such as license revocation and the admission into evidence in a DUI proceeding of the fact of a test refusal. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995); see State v. Felder, No. 96,538, unpublished opinion filed May 25, 2007, rev. denied 284 Kan. 984 (2007).
Kansas cases have rejected the contention that the admissibility of a refusal to take a breath or blood test under K.S.A. 8-1001 (i) violates the Fifth Amendment to the United States Constitution. In State v. Compton, 233 Kan. 690, 694, 664 P.2d 1370 (1983), the Kansas Supreme Court upheld the admission into evidence of the taking or refusing to take a blood-alcohol test and found that the admission of such evidence does not violate the Fifth Amendment privilege against self-incrimination. See State v. Wahweotten, 36 Kan. App. 2d 568, 583, 143 P.3d 58 (2006), rev. denied 283 Kan. App. 2d 933 (2007) (defendant was not faced with a decision to choose between a Fifth Amendment right against self-incrimination and a Fourth Amendment right against unreasonable searches and seizures because defendant’s Fifth Amendment right was never implicated); State v. Henderson, No. 97,480, unpublished opinion filed September 26, 2008; State v. Ramirez, No. 95,699, unpublished opinion filed November 9, 2007.
The United States Supreme Court has also rejected constitutional challenges to the admission of a defendant’s refusal to submit to a blood-alcohol test. See South Dakota v. Neville, 459 U.S. 553, 563, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), where the Court upheld a statute against Fifth Amendment self-incrimination challenges and due process challenges. The Court’s reasoning, however, is applicable to a Fourth Amendment challenge as well. The Court distinguished the case from a previous case in which the Court heard a Fifth Amendment challenge to the practice permitting prosecutors to comment on a criminal defendant’s election not the testify. See Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965). The Court reasoned that “[u]nlike the defendant’s situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.” Neville, 459 U.S. at 560 n.10; see K.S.A. 8-1001(f)(B).
Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. See Melilli, The Consequences of Refusing to Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 922 (2002), arguing “[t]he end result is that, without a constitutionally effective right to block a search or seizure by refusing consent, the refusal of consent is constitutionally irrelevant. There can be no derivative constitutional right to bar evidence of an invocation of something that itself is not a constitutional right.”
We apply this commentator’s analysis in evaluating Bussart-Savaloja’s claim. The Fourth Amendment protects only against un reasonable searches and seizures. There simply is no constitutional right to avoid a search conducted upon probable cause. “Therefore, refusal to consent to such a search has absolutely no constitutional significance regarding the reasonableness of the subsequent search, and is not an invocation of any right whatsoever.” 75 S. Cal L. Rev. at 920. For these reasons, we reject Bussart-Savaloja’s constitutional challenge to K.S.A. 8-1001(i).
Did the District Court Violate Sixth and Fourteenth Amendment Rights when it Enhanced Bussart-Savaloja’s Sentence Based on a Fact Not Proven to a Jury ?
Finally, Bussart-Savaloja argues that the district court should have been required to prove her prior conviction to a jury beyond a reasonable doubt. Bussart-Savaloja relies on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), which held that any fact which increases a maximum penalty must be included in the complaint, presented to a jury, and proven beyond a reasonable doubt.
Bussart-Savaloja acknowledges that adverse Kansas Supreme Court precedent controls this issue but includes it to preserve the issue for federal review. In Kansas, this issue is controlled by State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court is duty bound to follow this precedent absent some indication that the Supreme Court is departing from its position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). The Supreme Court has reaffirmed Ivory. See State v. Gonzalez, 282 Kan. 73, 116-18, 145 P.3d 18 (2006). Therefore, enhancement of a sentence by reason of a prior conviction does not violate a defendant’s constitutional rights under the Sixth and Fourteenth Amendments.
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Standridge, J.:
In this jail suicide negligence action, the plaintiffs appeal the district court’s decision to grant summary judgment in favor of the defendants. We affirm in part, reverse in part, and remand with directions.
Facts
On October 22, 2002, Anthony D. Stapleton was taken into custody at the Shawnee County Department of Corrections Adult Detention Center (DOC). Stapleton was placed on suicide watch after he told jail staff that he had attempted suicide a few months prior to being incarcerated, that he felt he had “lost everyone,” and that he wanted to die. Inmates in the suicide watch unit were considered an imminent risk for suicide and were required to be observed on a nearly continuous basis.
Jail staff moved Stapleton from suicide watch to the close observation unit after Stapleton reported that he was feeling much better and denied having any current suicidal ideation or plans. The close observation unit was intended for those inmates who were not imminently suicidal, but who possessed one or more suicide risk factors. DOC policy required officers in the close observation unit to conduct health and well-being checks eveiy 15 minutes. Although close observation guards were not required to know whether an inmate had been suicidal in the past, guards were trained to treat all inmates in the close observation unit as if they possessed risk factors for suicide. Officers were also told that placement in the close observation unit represented that “someone possesses a risk factor, one or more risk factors, for suicide, but are not considered imminently suicidal.”
After being placed in close observation, Stapleton was evaluated three times for risk of suicide, with the last evaluation occurring November 25, 2002. Each time he was evaluated, jail staff recommended that Stapleton remain in the close observation unit.
David Tipton was the guard on duty in the close observation unit on November 29, 2002. At approximately 9:05 a.m., Stapleton started an argument with another guard, Curtis Jones, over the size of Stapleton s jumpsuit. Jones called Matthew Biltoft, Tipton and Jones’ supervisor, and stated that he thought Stapleton should be moved to suicide watch because Stapleton was a disciplinary problem. Jones’ recommendation was consistent with the suicide prevention policy, which provided that a close observation inmate should be transferred to suicide watch if the inmate becomes seriously insubordinate or violent.
In addition to Jones, Tipton also told Biltoft that Stapleton should be transferred out of the close observation unit. In an affidavit filed after Stapleton’s death, Tipton maintained that he— like Jones — thought Stapleton should have been moved to suicide watch because Stapleton was a disciplinary problem. Tipton’s stated reason for the transfer was disputed by Father Joseph Chontas, who spoke with Tipton after the suicide occurred. According to Chontas, Tipton thought the move to suicide watch was necessary not because Stapleton was a disciplinary problem, but because Stapleton was a threat to himself.
After speaking with Tipton and Jones, Biltoft arrived at the close observation unit and talked with Stapleton about the incident. Although Stapleton appeared to almost begin crying during the conversation, Stapleton later seemed to calm down and relax. Without conducting a formal suicide screening, Biltoft determined that Sta pleton did not need to be transferred to suicide watch. Biltoft left the close observation unit.
At 10 a.m., Tipton saw that Stapleton had completed a shower and was proceeding to his room. According to Darrell Myrick, another inmate in the close observation unit, Stapleton was walking towards his room from the shower and, when he was about 15 feet from Tipton, Stapleton stated out loud that he was going to kill himself. Tipton stated he did not hear Stapleton’s statement. Myrick claimed that Tipton was watching television and was not paying attention to the inmates at the time.
Once inside his cell, Stapleton obstructed his cell window with an artificial screen, which violated DOC policy. Tipton stated that every module at the DOC in which Tipton worked had permitted the inmates to briefly cover their cell windows when the inmates were using the restroom; thus, Tipton took no action to remove the screen from Stapleton’s window.
Between 10:16 a.m. and 10:20 a.m., Stapleton’s roommate reported that he was unable to open the door to his room. Tipton checked the door and found that Stapleton had hanged himself with a sheet. Tipton notified emergency personnel and immediately administered first aid to Stapleton. Stapleton ultimately was pronounced dead.
After Stapleton’s death, three suicide letters were found in Stapleton’s cell. The earliest was dated November 3, 2002. According to the suicide prevention policy, frequent shakedowns of each cell, at least one time per shift on the first and second shifts, were required in the close observation unit. There was no record that a shakedown of Stapleton’s cell was ever completed.
Following the suicide, Cathy Thomas, the administratrix of Stapleton’s estate, and Jennifer Mendez, next of kin and guardian of Stapleton’s son (collectively “Thomas”), filed a lawsuit grounded in negligence against Biltoft, Tipton, and Betsy Gillespie (Director of the DOC), as well as County Commissioners Ted Ensley, Marice Kane, and Victor Miller individually and the Board of Shawnee County Commissioners as an entity (“Shawnee County”) (collectively “Defendants”). Defendants ultimately filed a motion for summary judgment, which the district court granted. Thomas ap peals, arguing the district court erred in determining that each of the defendants were entitled to immunity from liability for any negligent acts.
Analysis
The parties are well acquainted with the standards for summary judgment, and we will not repeat them here. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002) (setting forth the standards for summary judgment). Where there is no factual dispute, appellate review of an order granting summary judgment is de novo. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008).
In order to establish liability for negligence against a defendant, including a governmental agency, the plaintiff must establish: (1) The defendant owed a duly to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiff s injury; and (4) the plaintiff sustained damages. Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 397, 931 P.2d 26 (1997). Whether a duty exists is a question of law, and our review is unlimited. See Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993). If a duty exists, breach and causation are questions for the factfinder. See Calwell v. Hassan, 260 Kan. 769, 776, 925 P.2d 422 (1996).
A. Defendants’ Duty To Stapleton
There is no affirmative duty to protect an individual unless one can establish a special duty is owed to the injured individual. See Potts v. Board of Leavenworth County Comm’rs, 39 Kan. App. 2d 71, 80-81, 176 P.3d 988 (2008) (governmental agency owes duty to public at large and not to individual unless special relationship exists); Restatement (Second) of Torts § 314A (1964) (an individual has no duty to act for the protection of others unless a special relationship exists). Numerous Kansas cases have recognized that a custodial relationship is a special relationship which imposes on the custodian a special duty of care. Relevant to the issue of duty here, many of these cases relied on various sections within the Restatement (Second) of Torts to support the existence of such a relationship. A brief review of these cases will be helpful to our determination regarding whether Defendants owed a special duty of care to Stapleton under the facts presented here.
In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), one of seven inmates who escaped from the penitentiary shot and severely wounded a police officer. The police officer sued the government, and the Kansas Supreme Court considered whether the government owed the officer a special duty to protect him from the escaped convicts. The court cited Restatement (Second) of Torts § 319 (1964), which provides that custodians who take control of a dangerous person owe a duty of reasonable care to prevent the dangerous person from harming others. Finding no Kansas decisions precisely on point, the court relied heavily on cases from outside jurisdictions to conclude that, pursuant to Restatement (Second) of Torts § 319, the State owed a duty of reasonable care to prevent the inmate from escaping and harming the officer. 234 Kan. at 559-64.
In Washington v. State, 17 Kan. App. 2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992), Washington was in custody at the Lansing Correctional Facility when he got into a fight with Vaughn, another inmate. Both men were placed in special confinement. Vaughn made several threats against Washington in the presence of the prison guards. Upon release from special confinement, both men were assigned to the same cell block four cells away from each other, even though other empty cells were available. On this same day, Vaughn stabbed Washington in the eye, causing irreparable damage.
Washington sued the State for negligence, alleging that as agents of the State, the prison guards knew Vaughn would tiy to harm Washington, yet they assigned the two to the same cell block without warning and did not try to protect Washington. On appeal, a panel of our court concluded the State was under a special duty to prevent inmates from harming other inmates. In so concluding, the court applied Restatement (Second) of Torts § 320 (1964), which recognizes that, under certain circumstances, a person who has custody of another “is under a duty to exercise reasonable care so as to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm.” Like Cansler, Washington did not cite any Kansas cases directly on point but observed that nearly all extra-jurisdictional courts to have considered the matter held prison officials to a duty of care to safeguard a prisoner in their custody or control from attack by other prisoners. 17 Kan. App. 2d at 523.
In C.J.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993), the plaintiff, a 12-year-old boy, was confined in a juvenile detention center when he was assaulted, raped, and sexually molested by another older youth named Randy, who also was confined at the juvenile detention center. SRS had a well-documented history of Randy’s abuse towards younger boys, including a label as “rapist” by one youth facility. C.J.W. sued the State for negligence. The trial court granted summary judgment in favor of tire State, finding no legal duty existed on the part of the State to protect C.J.W. from Randy.
On appeal, the Kansas Supreme Court reversed: “We have no hesitancy in concluding that § § 315, 319, and 320 of the Restatement (Second) of Torts apply to this case and that the State not only had a duty to warn [regarding] Randy’s propensities to commit violence but also to take reasonable steps to protect plaintiff from Randy.” 253 Kan. at 12.
In Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997), officers arrested and handcuffed the plaintiff at the scene of a domestic incident but failed to protect him from his girlfriend, who slit his throat as he sat on the curb while the officers completed reports. The Kansas Supreme Court held that the officers owed a duty to the plaintiff to protect him from his girlfriend while he was handcuffed and unable to defend himself. 263 Kan. at 158-63. In so holding, the court relied on the Restatement (Second) of Torts § 320.
In finding that a custodial relationship imposes upon the custodian a special duty of care, each of the Kansas cases referenced above relied on various exceptions to the general rule set forth in the Restatement (Second) of Torts § 315 (1964) that, absent a special relationship, there is no affirmative duty to control the conduct of a third person to prevent such third person from causing physical harm to another. More specifically, the cases above relied on the special relationship exceptions set forth in Restatement (Second) of Torts § 319 (those in charge of a third person having dangerous propensities have duty to control conduct of such dangerous third person toward another), and Restatement (Second) of Torts § 320 (those having custody of another have duty to control conduct of third person toward the one in custody). Notwithstanding the fact that, like the Kansas cases described above, Defendants had custody and control of Stapleton in this case, we find application of an alternate section of the Restatement is better suited to the unique facts presented here.
Like the general rule set forth in Restatement (Second) of Torts § 315 that there is no affirmative duty to control the conduct of a third person toward another, Restatement (Second) of Torts § 314 (1964), stands for the even broader proposition that, as a general rule, there is no duty to act for the protection of others, regardless of whether a third person is involved (“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”). Restatement (Second) of Torts § 314A, however, goes on to identify special relationships that are excepted from this general rule and give rise to an affirmative duty to aid or protect:
“(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
“(2) An innkeeper is under a similar duty to his guests.
“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
“(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”
To a certain extent, subsection (4) of § 314A of the Restatement (duty to protect one in custody from unreasonable risk of physical harm) appears to overlap with § 320 (controlling conduct of third person toward one in custody). Given the facts presented here, however, only Restatement (Second) of Torts § 314A(4) appears applicable. This is because, in this case, the risk of harm to the one in custody did not come from a third person, but instead it came from the one in custody himself. The comments to § 314A(4) specifically explain that a duty exists under these unique circumstances: “The duty to protect the other against unreasonable risk of harm extends to risks arising out of the [other s] own conduct . . . [or] from the negligence of the [other] himself.” Restatement (Second) Torts § 314A, comment d.
No Kansas case has acknowledged the duty of a custodian to protect one in custody from physical harm as set forth in subsection (4) of the Restatement (Second) of Torts § 314A. With that said, numerous Kansas cases have acknowledged, pursuant to subsection (3) of the Restatement (Second) of Torts § 314A, the duty of one in possession of land to aid or protect members of the public invited onto the land. See D.W. v. Bliss, 279 Kan. 726, 732, 112 P.3d 232 (2005) (recognizing Restatement [Second] of Torts § 314A[3] imposes a duty upon one in possession of land); Gragg v. Wichita State Univ., 261 Kan. 1037, 1045-46, 934 P.2d 121 (1997) (same); Gardin v. Emporia Hotels, Inc., 31 Kan. App. 2d 168, 171-72, 61 P.3d 732, rev. denied 275 Kan. 963 (2003) (same). Thus, although not in the same context, Kansas has recognized and implemented § 314A of the Restatement (Second) of Torts.
Moreover, and in a factual scenario very similar to the one presented here, two cases from the United States District Court for the District of Kansas have specifically applied Restatement (Second) of Torts § 314A(4) to hold that prison officials owed inmates the duty to prevent self-harm. Estate of Sisk v. Manzanares, 262 F. Supp. 2d 1162, 1185-87 (D. Kan. 2002) (holding DOC and its personnel had independent legal duty to prevent prisoner from committing suicide); Griffin v. United States, 2000 WL 33200259 (D. Kan. 2000) (unpublished opinion) (holding United States Marshal Service had legal duty of care with respect to suicidal prisoner who escaped from custody and then committed suicide by jumping from the fourth floor atrium of United States courthouse). We note that in Griffin, Judge Vratil relied on the Kansas Supreme Court case of Cansler, 234 Kan. at 560-65, to conclude that Kansas would recognize Restatement (Second) of Torts § 314A(4) as applied to suicidal inmates. In support of this conclusion, Judge Vratil specifically noted that Kansas generally relied on the Restatement in cases involving tort duties arising out of special relationships. 2000 WL 33200259, at *5.
In light of the language used in the Restatement (Second) of Torts § 314A(4), as well as the cases referenced above that have favorably cited both this and other relevant sections of the Restatement (Second) of Torts, we find § 314A(4) applicable to the facts presented and conclude, as a matter of law, that Defendants had a duty to protect Stapleton. More specifically, we hold that Defendants, as Stapleton s custodian, had a legal duty to take reasonable action to protect Stapleton against the risk of self-inflicted physical harm. Finding the existence of a legal duty, we now move on to determine whether any of the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm, which necessarily triggered this legal duty to act.
B. Did Thomas Submit Sufficient Evidence To Establish A Material Dispute Of Fact As To Whether Defendants Knew Or Should Have Known That Stapleton Was Subject To An Unreasonable Risk Of Physical Harm, Which Necessarily Triggered The Duty To Act?
In granting summary judgment, the district court concluded as a matter of law that none of the individual defendants were required to affirmatively act to protect Stapleton. More specifically, the court concluded that Thomas failed in the summary judgment pleadings to allege material facts indicating any of the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm, which necessarily triggered the duty to act. Because an entity can only act through its employees and agents, the court then concluded Shawnee County did not have a duty to act either. On appeal, Thomas claims the district court erred in coming to these conclusions.
1. Whether Any Individual Defendants Knew Or Should Have Known Of Unreasonable Risk
Restatement (Second) of Torts § 314A, comment e, explains that “[t]he duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not liable where he neither knows nor should know of the unreasonable risk.” The question of whether any of the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm is a question of fact. See Turner v. Railway Co., 85 Kan. 6, Syl., 116 P. 482 (1911) (Where an employee inexperienced in placing a dead engine on a round table and is crushed between two engines, the question whether injured railroad employee knew or should have known of danger in moving dead engine on a round table is question of fact for the jury and not one of law for the court.). Although a question of fact, if Thomas failed in the summary judgment pleadings to allege any material facts indicating that the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm, then there simply was no factual dispute and summary judgment in favor of those individual defendants was warranted. See Sietz v. Lawrence Bank, 36 Kan. App. 2d 283, 288, 138 P.3d 388, rev. denied 282 Kan. 791 (2006).
a. David Tipton (In His Individual Capacity)
Thomas claims Tipton was negligent in guarding, supervising, and observing Stapleton immediately prior to Stapleton’s suicide. In order to survive summary judgment on this claim, Thomas must come forward with evidence Tipton knew or should have known that there was a risk Stapleton would commit suicide.
The record on summary judgment reflects Stapleton received an initial mental health screening when he was first incarcerated at the DOC on October 22, 2002. Because the screening revealed no signs of a risk for suicide, Stapleton was placed in the general population. On October 23, 2002, Stapleton was again evaluated. This time, Stapleton divulged that he had attempted suicide within the last year by cutting his throat. As this information was communicated, Stapleton was crying and told the interviewer that he was upset and scared. Although Stapleton indicated he was not currently thinking about killing himself, the decision was made to move Stapleton out of general population and place him in the close observation unit. Pursuant to the DOC suicide prevention policy, the close observation unit is intended for those inmates who — although not imminently suicidal — possess one or more suicide risk factors.
On October 24, 2002, Stapleton was again evaluated. Stapleton stated he had no family, he felt no one cared about him, and he felt like he wanted to die. After this evaluation, the decision was made to move Stapleton out of the close observation unit and place him in suicide watch. The DOC suicide prevention policy describes suicide watch as “[c]ontinuous supervision provided to an inmate who is considered to be at imminent risk for suicide.”
Four days later, on October 28, 2002, another suicide risk assessment was conducted. Stapletons mood was improved, he was not crying, and he was more upbeat. Stapleton stated he was feeling better and asked to be moved out of suicide watch. Based upon the recommendation of the social worker, Stapleton was moved out of suicide watch and back to the close observation unit.
Stapleton remained in the close observation unit up to the time of his death on November 29, 2002. During this approximately 30-day period, Stapleton received three more suicide screenings: November 7, November 23, and November 25, 2002. Based on the fact that Stapleton was not moved to general population after any of these screenings, it appears the DOC continued to view Staple-ton as an inmate who possessed one or more suicide risk factors.
To more closely monitor those inmates who have been recognized by the DOC as individuals who possess one or more suicide factors, the DOC suicide prevention policy required officers in the close observation unit to conduct health and well-being checks every 15 minutes. Although close observation guards were not required to know whether an inmate had ever been considered an imminent risk for suicide or had actually tried to commit suicide in the past, guards were trained to treat all inmates in the close observation unit as inmates who possessed one or more risk factors for suicide. Director Gillespie testified that although a mentally retarded inmate — who would be at greater risk of attracting predators — could be housed in the close observation unit, it would be rare that someone other than an inmate with suicidal issues would be placed there.
In the 7 days leading up to Stapleton’s death, Defendants evaluated Stapleton’s risk of suicide on two separate occasions and affirmatively decided to keep Stapleton housed in the close observation unit (designated by policy as the appropriate housing unit for inmates who possess one or more suicide risk factors) and not transfer him to the general population (the appropriate housing unit for inmates who do not possess suicide risk factors). We find the fact that Tipton knew Stapleton was housed in a unit designated by official policy as one for inmates who possess one or more suicide risk factors is sufficient, in and of itself to create a dispute of material fact regarding whether Tipton knew or should have known there was a risk Stapleton would commit suicide.
Although our finding that conspicuous placement in a housing unit for inmates who possess one or more suicide risk factors is sufficient, in and of itself, to survive summary judgment on this issue as to Tipton, we find further support of a disputed material fact regarding whether Tipton knew or should have known of the risk Stapleton would kill himself based on the following evidence.
On the morning of the suicide, Tipton told his supervisor, Biltoft, that Stapleton should be transferred out of the close observation unit into suicide watch. In an affidavit filed after Stapleton’s death, Tipton maintained that he — like Jones — thought Stapleton should have been moved to suicide watch because Stapleton was a disciplinary problem. This information, however, was disputed by Father Joseph Chontos, who spoke with Tipton after the suicide occurred. According to Chontos’ affidavit filed in conjunction with the summary judgment motion, Tipton thought the move to suicide watch was necessary, not because Stapleton was a disciplinary problem, but because Stapleton was a threat to himself. Further supporting Father Chontos’ assertion is Tipton’s emotional exclamation, blurted out as Tipton was trying to resuscitate Stapleton: “ T knew it, he should have went to [suicide watch].’ ” Viewed in a light most favorable to Thomas, we find this controverted testi mony creates a dispute of material fact regarding whether Tipton knew or should of known of the risk Stapleton would kill himself.
Moreover, the record demonstrates that prior to the 10 a.m. headcount, but after Tipton had told Biltoft that Stapleton should be transferred to suicide watch, Tipton saw that Stapleton had completed a shower and was proceeding to his room. According to Darrell Myrick, an inmate in the close observation unit, who also observed Stapleton walking from the shower to his room, Stapleton stated out loud that he was going to kill himself. Myrick testified Stapleton was only about 15 feet from Tipton at the time the statement was made but that Tipton was watching television and did not appear to be paying attention to the inmates at the time. Although Tipton denies hearing the statement, Myrick’s sworn testimony regarding the limited amount of physical space between Tipton and Stapleton when the statement was made leads us to find further support of a disputed material fact regarding whether Tipton knew or should of known of the risk Stapleton would kill himself.
b. Matthew Biltoft (In His Individual Capacity)
Thomas claims Biltoft was negligent in guarding, supervising, and observing Stapleton immediately prior to Stapleton’s suicide. There is no dispute that Biltoft, like Tipton, knew Stapleton was housed in a unit designated by official policy as one for inmates who possess one or more suicide risk factors. We find Biltoft’s knowledge of this fact, in and of itself, is sufficient to create a dispute of material fact regarding whether Biltoft knew or should have known there was a risk Stapleton would commit suicide.
In addition to claims of negligence in dealing with Stapleton, Thomas also claims Biltoft breached his duty of care to Stapleton in that he was negligent in the supervision of jail employees. More specifically, Thomas claims Biltoft failed to properly supervise Tip-ton and failed to ensure that jail employees were conducting required daily shakedowns of cells in the close observation unit.
Kansas recognizes claims of negligent supervision. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 331, 961 P.2d 1213 (1998). Marquis declared that “[njegligent supervision includes not only the failure to supervise but also the failure to control persons with whom the defendant has a special relationship, including the defendant’s employees or persons with dangerous propensities. [Citations omitted.]” 265 Kan. at 331. Our Supreme Court has also noted that the defendant must have reason to believe the employee’s conduct would cause injury:
“When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm.” Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991).
Here, Thomas has failed to submit any evidence to establish that Biltoft knew or had reason to know that (a) jail employees failed to conduct required daily shakedowns; (b) Tipton conducted only partial health and well-being checks every 15 minutes; or (c) Tipton permitted inmates to cover the windows of their cells. Thus, Biltoft had no reason to believe that Tipton’s employment, or the employment of any other employee in the jail over which Biltoft had supervisory authority, posed an undue risk of physical harm to Stapleton. Therefore, the district court correctly granted summary judgment in favor of Biltoft with respect to Thomas’ claim of negligent supervision.
c. Betsy Gillespie (In Her Individual Capacity)
Thomas claims Gillespie breached the duty of care owed to Stapleton in negligently training, monitoring, and supervising her employees. More specifically, Thomas asserts Gillespie inadequately trained supervisors and guards regarding suicide prevention rules and inadequately monitored supervisors and guards with regard to enforcement of the suicide prevention rules. Fatal to these claims for negligent supervision and training on summary judgment, however, is the fact that again, Thomas has failed to submit any facts to support the allegation that Gillespie had any reason to believe the jail supervisors and guards were not properly trained and/or implementing suicide prevention rules. Thus, Gillespie had no reason to believe that jail supervisors and guards posed an undue risk of physical harm to Stapleton, and summary judgment in her favor on the negligent supervision and negligent training claims was appropriate.
d. Ted Ensley, Marice Kane, and Victor Miller (In Their Individual Capacities)
Thomas asserts Commissioners Ted Ensley, Marice Kane, and Victor Miller breached their duty of care to Stapleton in negligently hiring and retaining Gillespie as director of the DOC.
Kansas imposes tort liability for damages caused by the negligent hiring and retention of an employee whom the employer knew or should have known to be unfit or incompetent. Plains Resources, Inc. v. Gable, 235 Kan. 580, 590-91, 682 P.2d 653 (1984).
“[T]he employer must, by virtue of knowledge of his employee’s particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable.” Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 307, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978).
Thomas alleges the individual commissioners were negligent in hiring Gillespie because Gillespie did not have a formal education or background in suicide prevention. However, prior to being hired at the DOC, Gillespie worked for several years in corrections and served as the warden of the Lamed Correctional Mental Health Facility. At Larned, Gillespie worked with mental health staff and became very involved with the management of mentally ill inmates, some of which had suicidal tendencies. Even if Gillespie had not had these experiences, Thomas fails to suggest how a lack of formal education or background in suicide prevention rendered Gillespie incompetent to be the director of the DOC. Simply put, we find Thomas has submitted no evidence to support the assertion that Commissioners Ensley, Kane, or Miller would have had any reason to believe when, they hired her that Gillespie was not qualified to run the DOC.
Next, Thomas claims the individual commissioners were negligent in retaining Gillespie. In support of this claim, Thomas states that prior to Stapleton’s death, the DOC experienced two inmate suicides during Gillespié’s tenure as director and that the individual commissioners failed to conduct a performance evaluation and/or required that Gillespie improve suicide prevention procedures. However, Gillespie testified that she maintained frequent contact with the commissioners following each suicide and discussed methods in which the suicide prevention policy could be enhanced. Moreover, Thomas has submitted no evidence to suggest that there were any deficiencies in the suicide prevention policy, only that the supervisors and guards failed to adequately adhere to the suicide prevention policies that were in place when Thomas died. Although the fact that there had already been two suicides in the DOC prior to Stapleton’s may lead to an inference that there was a problem with the supervision of inmates, that inference — standing on its own — is insufficient to create a material dispute of fact regarding whether Commissioners Ensley, Kane, or Miller had reason to believe that Gillespie was not qualified to run the DOC.
Based on the discussion above, we conclude as follows:
• Thomas submitted sufficient evidence to establish a dispute of material fact regarding whether Tipton knew or should have known of the risk Stapleton would kill himself.
• Thomas submitted sufficient evidence to establish a dispute of material fact regarding whether Biltoft knew or should have known of the risk Stapleton would kill himself.
• Thomas failed to present sufficient evidence to establish a dispute of material fact regarding whether Biltoft had reason • to believe that Tipton’s employment, or the employment of any other employee in the jail over which Biltoft had supervisory authority, posed an undue risk of physical harm to Stapleton.
• Thomas failed to present sufficient evidence to establish a dispute of material fact regarding whether Gillespie had reason to believe that jail supervisors and guards posed an undue risk of physical harm to Stapleton.
• Thomas failed to present sufficient evidence to establish a dispute of material fact regarding whether Commissioners Ensley, Kane, or Miller had any reason to believe, either when they hired her or thereafter, that Gillespie was not qualified to run the DOC.
Accordingly, we find the district court erred in granting summaiy judgment in favor of defendants Tipton and Biltoft (in their individual capacities) but appropriately granted summary judgment in favor of defendants Gillespie, Ensley, Kane, and Miller (in their individual capacities).
2. Shawnee County
In addition to suing each defendant personally in his or her individual capacity, Thomas also sued (a) Shawnee County as an entity; and (b) each individual defendant in his or her official capacity. Official-capacity suits against an employee, officer, or agent generally represent only another way of pleading an action against the entity for which the employee, officer, or agent works. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. [Citation omitted.]” Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Applying this principle to the case at hand, the court finds the suit against Tipton, Biltoft, Gillespie, Ensley, Kane, and Miller in their official capacities must be construed as a suit against Shawnee County.
Although common law dictates that a governmental entity cannot be sued without its consent, the Kansas Legislature provided this consent by enacting the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. Woodruff v. City of Ottawa, 263 Kan. 557, 561-62, 951 P.2d 953 (1997). Subject to certain limitations, the KTCA deems a governmental entity liable for the negligent acts of those employees acting within the scope of their employment. K.S.A. 2007 Supp. 75-6103(a). Here, we have determined that Thomas failed to establish a factual basis for finding that the duty to act had been triggered as to defendants Gillespie, Ensley, Kane, and Miller. Clearly, Shawnee County (as an entity) cannot be deemed hable for nonexistent negligent acts performed by these individuals.
On the other hand, we have determined that Thomas sufficiently established a factual basis for finding that the duty to act had been triggered as to defendants Tipton and Biltoft. Moreover, the facts demonstrate that both Tipton and Biltoft were acting within the scope of their employment. Thus, at least pursuant to the provisions of K.S.A. 2007 Supp. 75-6103(a), Shawnee County (as an entity) is liable for the negligent acts of Tipton and Biltoft.
Although liability is the general rule, the KTCA specifically sets forth exceptions to liability for negligent acts. See K.S.A. 2007 Supp. 75-6104. Shawnee County asserts two of these exceptions renders it immune from liability:
• K.S.A. 2007 Supp. 75-6104(d) (personnel policy exception), which provides immunity for government employees who fail to enforce a written personnel policy protecting a person’s health or safety unless a duty of care independent of such policy is owed to the specific individual injured; and
• K.S.A. 2007 Supp. 75-6104(e) (discretionary function exception), which bars claims against a government entity or employee “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
Significantly, and as explicitly set forth in the statute itself, the personnel policy exception is not applicable in those situations where the governmental defendant owes an independent legal duty to the injured party. Likewise, our Supreme Court has held that “the discretionary function exception [under K.S.A. 75-6104(e)] is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency must follow.” Barrett v. U.S.D. No. 259, 272 Kan. 250, 263, 32 P.3d 1156 (2001); see Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993) (“If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.”); see also Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984) (holding that discretionary immunity does not apply where plaintiff alleged facts that, if true, constituted a breach of State’s duty of reasonable care).
Notably, we already have determined that pursuant to the Restatement (Second) of Torts § 314A(4) (1964), Tipton, Biltoft, and Shawnee County (acting by and through its employees Tipton and Biltoft) owed an independent duty of reasonable care to prevent Stapleton from harming himself. Given this independent duty, we find Tipton, Biltoft, and Shawnee County’s claims of immunity based upon enforcement of a written personnel policy and upon exercise of a discretionary function to be without merit. As such, we further find the district court erred in concluding that Tipton, Biltoft, or Shawnee County (as an entity), were immune pursuant to the exceptions set forth in K.S.A. 2007 Supp. 75-6104(d) and (e). For these reasons, we remand for trial on the issues of breach, causation, and damages with regard to these three defendants.
Affirmed in part, reversed in part, and remanded with directions. | [
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Leben, J.;
A familiar rule tells us that ignorance of the law is no excuse. So when the legislature criminalizes something, we may be prosecuted for it even though we didn’t know it was illegal. But what happens if the legislature instructs someone to tell us about it? Can we be prosecuted if the person who was supposed to tell us slips up?
That’s the essential question in this case. The State charged Calvin Anderson with violating the Kansas Offender Registration Act because he failed to report to his local sheriff in January 2007, and the law required him to report to the sheriff during the month of his birthday. See K.S.A. 2006 Supp. 22-4904(d). The statute also required that the local sheriff explain the registration procedure and then have each registrant sign an acknowledgment form. But when Anderson registered with the Saline County Sheriff in July 2006, the sheriff did not have him sign the acknowledgment and allegedly did not explain that he had to report again in January.
After hearing evidence, the district court decided that the sheriff s office had not provided Anderson with appropriate information and dismissed the criminal charge against him for failing to report. On appeal, we must interpret the relevant statutes. Though we certainly consider the district court’s conclusions, we are required to review the statutes independently, without any required deference to the district court’s interpretation of them. See Edwards v. Anderson Engineering, Inc., 284 Kan. 892, Syl. ¶ 6, 166 P.3d 1047 (2007).
Under K.S.A. 2006 Supp. 22-4904(a)(5), a sheriff has a long list of duties that he or she “shall” do for those who are required to register. Among other responsibilities, a sheriff must “[e]xplain the duty to register and the procedure for registration” and require that the person sign a registration form stating that the sheriff had explained these requirements. But the statute does not even hint that a sheriff s duties to explain the registration process could be linked to the registrant’s potential criminal liability for violating the Act.
Anderson knew that he was required to register as a sex offender; he successfully registered and reported as required from October 1999 until January 2007. In January 2007, a sex offender was required to register with the local sheriff within 10 days of moving to the county, K.S.A. 2006 Supp. 22-4904(a)(1), and was required to report to the sheriff twice per year, once in the month of the person’s birthday and once 6 months later. K.S.A. 2006 Supp. 22-4904(d). (The statute has since been changed to require offenders to report three times per year, see K.S.A. 22-4904[c], but we are concerned with the Act as it existed in January 2007.) A person who is required to report who violates “any of the provisions” of the Kansas Offender Registration Act is guilty of a person felony. K.S.A. 2006 Supp. 22-4903.
The legislature established specific rules for offenders and penalties for those who did not follow them; it did not intend the existence of those criminal penalties to be conditional on a sheriffs performance of his or her own duties under that Act. K.S.A. 2006 Supp. 22-4903 certainly has no language that could even be read as conditional: “Any person who is required to register . . . who violates any of the provisions of [the Act] ... is guilty of a severity level 5, person felony.” Nor is K.S.A. 2006 Supp. 22-4904(d) conditional: “Any person who is required to register . . . shall report in person each year during the month of the person s birthday and during the sixth month following the person’s birthday to the sheriffs office in the county in which the person resides or is otherwise located.” Both of these provisions are quite straightforward: A person covered by the Act must report every 6 months and is guilty of a felony if he or she violates any provision of the Act.
These straightforward provisions are interpreted in light of a baseline rule that “[i]gnorance of the law is no excuse.” State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). The legislature and the public are well aware of this rule; Kansas law has applied it since 1882, at least. See School Dist. No. 25 v. State, 29 Kan. 57, 67 (1882) (recognizing the legal maxim that “ Ignorance of law excuses no one’ ”). A sex offender does not ever get a free pass because a sheriff failed to tell the offender about die Act’s provisions.
While ignorance is no excuse, the State also argued that the sheriff wasn’t obligated to tell Anderson of his duty to report during the month of his birthday. The State based this claim on two points. First, the duty to report is found in subsection (d) of K.S.A. 2006 Supp. 22-4904. But the sheriffs duty to tell offenders about the law is found in subsection (a)(5), which mentions registration duties and not reporting duties. In addition, the offender’s reporting requirements of subsection (d) are not part of the sheriff s mandated disclosure because subsection (a)(5) limits the sheriffs duty to explaining the “requirements provided in this subsection.” (Emphasis added.) Second, Anderson was reregistering in Saline County, since he had lived — and registered — there previously. The State also contends that the sheriff s disclosure duties only arise the first time an offender registers in the county.
But we find that it’s not necessary to parse the statute in the ways that the State suggested in order to resolve this case. Regardless of the sheriff s duty under this statute, a sheriff s slip-up in fulfilling those duties does not reheve a sex offender from the obligation to comply with the Act or from the penalties for failing to do so.
We note, too, that other features of the Act suggest this result and make it an equitable one. The legislature has also mandated that sex offenders must be told in detail about the Act’s requirements upon their release from prison or from probation. See K.S.A. 2006 Supp. 22-4905(a) and (b). If one were to read all of the provisions requiring that the sheriff, probation officers, the court, or prison officials notify offenders about the Act as conditions precedent to criminal liability, the failure of any of these notification methods would reheve an offender from the criminal penalties for violating the Act. Again, we don’t perceive any language in the Act intending that result.
In addition to the notices required by the Act, the Kansas Bureau of Investigation also periodically mails notices to registered sex offenders. When the statute was changed to require registered offenders to report to the sheriff each year during the month of their birth starting in 2006, the KBI notified Anderson of that change. Anderson admitted that he received the notice but said that he didn’t read it because he had to return it quickly and didn’t realize it contained new information. Anderson has not raised a due-process challenge, and he received actual notice of the 2006 statutory amendments. The State is not responsible for Anderson’s decision neither to stay apprised of changes to the legal requirements applicable to sex offenders nor to not read the notice sent to him by the KBI.
As a final matter, Anderson has challenged the State’s right to even bring this appeal. He claims that die district court’s ruling amounted to a judgment of acquittal. Thus, he contends that the State has no right of appeal under K.S.A. 22-3602(b)(1), which allows appeal only from “an order dismissing a complaint, information or indictment.” But a judgment of acquittal is only available under K.S.A. 22-3419(1) “after the evidence on either side is closed.” This case never went to trial so the evidence didn’t open, let alone close. While the Kansas Supreme Court has recognized in limited circumstances that a judgment of acquittal may be granted before the close of the State’s case, such as when the State’s opening statement reveals a fatal flaw, State v. Ruden, 245 Kan. 95, 98, 774 P.2d 972 (1989), that is not the case here. The district court made no finding that the State was unable to present evidence that Anderson violated the Act.
Anderson also cites K.S.A. 21-3108(1)(b), which bars trying the case “in a subsequent prosecution” if a first attempt “[w]as terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction.” But that statute plainly does not prevent the prosecution of Anderson. His criminal liability is not dependent upon the sheriffs acts; thus, the State is not required to present evidence that the sheriff told Anderson about his registration or reporting duties to obtain a conviction. Simply, no “fact or legal proposition necessary to a conviction” involves the sheriff s actions. The district court incorrectly dismissed the charge because of the sheriff s perceived failure to comply with the Act’s notice provisions, not because of any failure in the State’s case-in-chief. We have proper jurisdiction over the appeal from the district court’s dismissal of the complaint, and the State is not barred from continuing to prosecute Anderson in this case.
The judgment of the district court is reversed. The case is remanded for further proceedings consistent with this opinion. | [
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Leben, J.:
When Stacy Kuxhausen reported for work at an accounting firm on a Monday morning in Manhattan, Kansas, she smelled paint and began to feel ill within minutes of entering the building. She said that her eyes burned, that she started to get a sore throat, and that she had to take deep breaths to get enough air. She later learned that epoxy-based paints had been applied in the basement of the building on the preceding Friday and Saturday. Kuxhausen came back to the building twice more over the next few days but stayed for only a few hours each time. She estimated that she spent a total of 8 hours in the building after it had been painted.
Kuxhausen claims that she now has an ongoing sensitivity to a variety of chemicals she encounters in her daily life. She has sued the building owners, claiming that all of this is due to her exposure to paint fumes on either that Monday morning in 2004 or on the two later visits. She sought damages of about $2.5 million.
In support of her claim, Kuxhausen presented a medical doctor s testimony that she suffers from what that doctor and some others call multiple-chemical sensitivity. But most medical authorities say that multiple-chemical sensitivity is not a recognized diagnosis, and the district court ruled that the expert testimony Kuxhausen sought to present wasn’t sufficiently rehable to be admitted in a Kansas court. And without expert testimony, Kuxhausen has no claim because it’s certainly not self-evident to a layperson that a relatively brief exposure to paint fumes may lead to permanent sensitivity to a variety of chemicals.
The district court’s ruling that expert testimony was needed for Kuxhausen to proceed with her claim was not appealed. So Kuxhausen’s claim rests upon the admissibility of her expert’s testimony. Specifically, we must determine whether evidence about multiple-chemical sensitivity is admissible under Kansas law and whether, aside from that specific diagnosis, the district court properly excluded the doctor’s testimony that Kuxhausen’s ongoing problems were caused by her exposure to epoxy-paint fumes. Because Kansas law does not allow for expert opinions drawn from scientific principles drat have not earned general acceptance, the district court properly excluded expert testimony that Kuxhausen suffers from multiple-chemical sensitivity, a diagnosis that is not generally accepted. In addition, because Kansas law authorizes a district judge to exclude expert testimony that is based on unsupported assumptions or theoretical speculation, the district court properly excluded expert testimony that Kuxhausen’s ongoing problems with exposure to chemicals were caused by her brief exposure to epoxy-paint fumes.
I. The District Court Properly Excluded Expert Testimony About Multiple-Chemical Sensitivity.
In the Kansas Rules of Evidence, the legislature has given trial judges a role in determining when expert testimony may be admitted into evidence. K.S.A. 60-456(b) allows only expert opinions that “the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” Thus, by statute, an expert’s opinion must be based on facts or data and be within the expert’s field of training.
Kansas courts have applied a qualification to this statutory standard with respect to testimony about a new or experimental scientific technique: we condition the admissibility of expert testimony about new or experimental scientific techniques to ones generally accepted as rehable in the relevant scientific community. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, Syl. ¶¶ 2-3, 14 P.3d 1170 (2000). This limitation is based upon a 1923 case from the District of Columbia, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and is generally referred to as the Frye test.
As we will soon discuss in greater detail, multiple-chemical sensitivity is an emerging diagnosis that is accepted by only a limited number of medical doctors. Kansas has applied the Frye test when deciding whether to allow testimony about an emerging medical diagnosis. In State v. Marks, 231 Kan. 645, 654, 647 P.2d 1292 (1982), the court upheld the district court’s admission of expert testimony from a psychiatrist about rape-trauma syndrome because a review of medical literature showed that it was “generally accepted to be a common reaction to sexual assault.” Similarly, in State v Heath, 264 Kan. 557, 574-75, 577-78, 957 P.2d 449 (1998), the court held that battered-child syndrome was “an accepted medical diagnosis” such that — even though the testimony was subject to the Frye test — the district court didn’t need to hold a Frye hearing because courts had already broadly recognized that this was an accepted diagnosis.
The district court carefully reviewed Kuxhausen’s evidence and the arguments about whether multiple-chemical sensitivity was a generally accepted medical diagnosis. The court concluded that it was not: “The position papers of the American Academy of Allergy, Asthma, and Immunology and the American College of Occupational and Environmental Medicine demonstrate irrefutably tiiat [multiple-chemical sensitivity] ... is anything but an accepted medical diagnosis.”
We review the district court’s decision on the admissibility of evidence for abuse of discretion, though we independently review its understanding of legal principles. See State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008). We also may go beyond the record in reviewing relevant literature to determine whether a particular scientific principle or technique subject to Frye, like the medical diagnosis at issue here, has gained general acceptance. See Marks, 231 Kan. at 654; State v. Graham, 275 Kan. 176, 185, 61 P.3d 662 (2003); State v. Witte, 251 Kan. 313, 326-27, 836 P.2d 1110 (1992); Monahan & Walker, A Judge’s Guide to Using Social Science, 43 Ct. Rev. 156, 162 (2007). But whether we review here only for abuse of discretion or make an independent judgment — and whether we rely only upon the record or go beyond it — the district court’s conclusion is well-taken.
The district court and the parties discuss in detail the position statements of the American Academy of Allergy, Asthma, and Immunology (the Academy) and the American College of Occupational and Environmental Medicine (the College). The Academy’s paper discusses several other medical organizations’ position statements that point out the “shortcomings” of this diagnosis and “the lack of scientific support for and clinical evidence of the alleged toxic effects from environmental chemicals in these particular patients.” The Academy reported that several environmentally caused diseases, such as Legionnaires’ disease, have been documented. But for the documented diseases caused by environmental contaminants, “patients experience a limited range of symptoms,” not broad reactions to multiple chemicals. The Academy concluded that there was no proven causal connection between environmental exposure to chemicals and the broad-based symptoms being reported by some patients:
“[Idiopathic environmental intolerances] — also called environmental illness and multiple chemical sensitivities — has been postulated to be a disease unique to modem industrial society in which certain persons are said to acquire exquisite sensitivity to numerous chemically unrelated environmental substances. The patient experiences wide-ranging symptoms, but evidence of pathology or physiologic dysfunction in such patients has been lacking in studies to date. Because of the subjective nature of the illness, an objective case definition is not possible. Allergic, immunologic, neurotoxic, cytotoxic, pscyhologic, sociologic, and iatrogenic theories have been postulated for both etiology and production of symptoms, but there is an absence of scientific evidence to establish any of these mechanisms as definitive. Most studies to date, however, have found an excess of current and past psychopathology in patients with this diagnosis. The relationship of these findings to the patient’s symptoms is also not apparent. Rigorously controlled studies to verify the patient’s reported subjective sensitivity to specific environmental chemicals have yet to be done. Moreover, there is no evidence that these patients have any immunologic or neurologic abnormalities. In addition, no form of therapy has yet been shown to alter the patient’s illness in a favorable way. A causal connection between environmental chemicals, foods, and/or drugs and the patient’s symptoms continues to be speculative and cannot be based on the results of currently published scientific studies.” (Emphasis added.)
The Academy prefers the name “idiopathic environmental in-tolerances” to multiple-chemical sensitivity. Doctors use the term idiopathic to refer to something for which the cause is unknown. The Academy noted that the new name was suggested at a conference sponsored by the World Health Organization because the commonly used name, multiple-chemical sensitivity, makes “ ‘an unsupported judgment on causation ” and was not based either on “ ‘accepted theories of underlying mechanisms’ ” or on “validated clinical criteria for diagnosis.” The College agreed that even the name multiple-chemical sensitivity had no scientific basis: “[The College] concurs with many prominent medical organizations that evidence does not yet exist to define [multiple-chemical sensitivity] as a distinct entity.” The College concluded that “the relationship of [multiple-chemical sensitivity] to environmental contaminants remains unproven. No scientific basis currently exists for investigating, regulating or managing the environment with the goal of minimizing the incidence or severity of [multiple-chemical sensitivity].”
Kuxhausen’s expert, Dr. Henry Kanarek, is an allergist who has his own medical practice. He is a member of the Academy but has not gone through its testing process to obtain board certification. During the 13 years he has had his allergy practice, he has diagnosed more than 100 patients with multipie-chemical sensitivity.
Dr. Kanarek met Kuxhausen one time. All of the objective aspects of the medical examination — including mold and allergy tests — showed either normal or negative results. Based on a 15-minute physical examination and 45 minutes of discussion, Dr. Kanarek diagnosed Kuxhausen with multiple-chemical sensitivity.
Dr. Kanarek concluded that Kuxhausen had multiple-chemical sensitivity based upon her report of her symptoms and her statement that these symptoms — like shortness of breath, burning in her lungs, dry eyes, and loss of smell — started at about the time she was exposed to the paint smell. Other than what Kuxhausen told him, the only thing Dr. Kanarek relied upon for his diagnosis was a material safety data sheet for the paint that was used. That sheet is in our record; it listed various organic compounds found in the paint and noted potential effects, like eye and skin irritation or even harm to the central nervous system, that could result from overexposure. But neither Dr. Kanarek nor Kuxhausen has cited anything on the sheet that indicates exposure to the paint might lead to increased sensitivity to other chemicals. And although Dr. Kanarek is a member of tire Academy, he said he was not aware of any position statement from the Academy saying that multiple-chemical sensitivity is not a valid diagnosis.
So we turn to the key question: Should Dr. Kanarek’s opinion that Kuxhausen has multiple-chemical sensitivity be admitted under Kansas evidence law? The Frye test applies to the admissibility of an emerging medical diagnosis. Marks, 231 Kan. at 654; Heath, 264 Kan. at 577-78. The Frye test requires that the basis of an expert’s opinion “be shown to be generally accepted as reliable within the expert’s particular scientific field.” Graham, 275 Kan. 176, Syl. ¶ 4. But this diagnosis doesn’t meet that test. Several medical organizations, including the Academy and the College, have adopted formal statements declaring that the diagnosis of multiple-chemical sensitivity is speculative and unsupported by medical science. And we have not found any more recent position paper of the Academy or the College announcing a change in the acceptance of this diagnosis within the medical community.
Beyond these position statements, two other doctors testified about their examination and treatment of Kuxhausen, but their testimony does not supply a basis to admit Dr. Kanarek’s opinion that Kuxhausen suffers from multiple-chemical sensitivity. Dr. Maurice Van Strickland, an allergist, reported that Kuxhausen’s physical exam was normal even though she had complaints compatible with chemical exposure. But Dr. Strickland couldn’t say whether these symptoms were caused by the paint-smell exposure. Dr. Daniel Doombos, a pulmonologist, also reported essentially a normal physical exam. He too said that he could not offer any opinion about what had caused Kuxhausen’s symptoms; he said it was more a matter of toxicology than anything he was trained in.
Thus far, the district court’s decision seems a straightforward application of the Frye test as it has been applied in Kansas. Emerging medical diagnoses are subject to Frye. Multiple-chemical sensitivity is at best an emerging diagnosis, but it has not gained general acceptance. The lack of acceptance seems nearly beyond question, especially in the “expert’s particular scientific field” as an allergist; the very Academy of allergists that Dr. Kanarek belongs to is one of the many medical organizations that refuses to recognize multiple-chemical sensitivity as a valid medical diagnosis.
Kuxhausen tries to get around this problem by arguing that the Frye test does not apply. Her argument relies upon the Kansas Supreme Court’s opinion in Kuhn, which determined that when an expert provides testimony that is “pure opinion,” the Frye test does not apply. Kuhn, 270 Kan. 443, Syl. ¶ 5. Accordingly, we must determine whether Dr. Kanarek’s opinion that Kuxhausen suffers from multiple-chemical sensitivity constitutes pure opinion under Kuhn. If so, the opinion still may be admitted even though it otherwise would not pass the Frye test.
The Kuhn court defined pure opinion as an opinion “developed from inductive reasoning based on the expert’s own experience, observation, or research.” Inductive reasoning moves from the specific observations of the expert to that expert’s general conclusion about them. Such opinions aren’t subject to the Frye test. By contrast, when an expert reaches a conclusion based on deductive reasoning, that’s subject to Frye. 270 Kan. 443, Syl. ¶ 5. An expert using deductive reasoning would move from general principles down to the specific instance before him.
Dr. Kanarek testified that multiple-chemical sensitivity was a valid medical' diagnosis that was “considered now a catch-all for anybody who has had strong chemical exposures . . . when they have had adverse reactions to them.” When asked his basis for multiple-chemical sensitivity as a valid diagnosis, Dr. Kanarek cited “information that has appeared in various articles written in the publications that I’ve read as well as lectures or discussions.” Based on “[a]ll of those things,” he said that “multiple chemical sensitivity is a good catch basin.”
As he has expressed it, Dr. Kanarek’s opinion is based on deductive reasoning, not his own personal observations or research. He has relied upon articles and lectures by others as support for the validity of the diagnosis. Boiled to its essence, his testimony was that multiple-chemical sensitivity is a catch-all diagnosis rep resenting certain symptoms; because Kuxhausen has those symptoms, she has multiple-chemical sensitivity. This is a specific conclusion deduced from a general proposition: the classic definition of deductive reasoning. Opinions based on such reasoning must be based on science that has gained general acceptance in the relevant field, which is not the case here.
So far, we have applied the principles announced in Kuhn but have not discussed the specific factual situation found there. We have moved in that sequence because we find Kuhn factually distinguishable from Kuxhausen’s case. But because it is a Kansas Supreme Court decision and is of course binding upon us, we should explain why we do not find it controlling.
In Kuhn, Jennifer Bishop, a woman who had given birth to a baby, received a tablet of Parlodel to prevent lactation because she did not plan to breastfeed the baby. Within an hour, she was overcome by nausea, vomiting, fever, and high blood pressure. Hours later, she lapsed into a coma; she died the following day. An autopsy attributed Bishop’s death to eclampsia, which is the occurrence of seizures or convulsions in pregnant women, or possibly bacteremia, which is the presence of bacteria in the bloodstream. The plaintiff in Kuhn had three well-qualified experts who testified that the woman had preeclampsia, marked by high blood pressure, before Parlodel was given to her. The plaintiff s experts said that the Parlodel made her condition worsen quickly, resulting in cerebral edema and causing her death. The experts said that they relied on the traditional method doctors use in making a diagnosis — using a differential diagnosis where the doctor considers which of two or more diseases with similar symptoms is the one affecting the patient.
In Kuhn, a recognized medical diagnosis — eclampsia—was noted as the probable cause of death in the autopsy report. The court found that the experts’ use of differential-diagnosis analysis to determine the cause of the eclampsia was pure opinion. All of the experts in Kuhn were medical-school professors. In choosing between the potential diagnoses for Bishop’s condition, the doctors expressed opinions “developed from inductive reasoning based on the expert’s own experience, observation, or research.” 270 Kan. at 456-57. In sum, the doctors looked at the specific circumstances of Bishop’s death and used their expertise to make a general conclusion about the likely cause. That’s inductive reasoning, which Kuhn allows without regard to the Frye test.
But there was nothing questionable about the validity of eclampsia as a diagnosis. Unlike multiple-chemical sensitivity, eclampsia is a well-established medical diagnosis. In addition, although no medical studies clearly established that Parlodel could cause eclampsia, Bishop’s death came near the end of a 10-year debate between the Food and Drug Administration and Sandoz Pharmaceuticals over the safety of Parlodel for pregnant women. At the FDA’s urging, Sandoz withdrew its indication recommending the use of Parlodel to prevent lactation about a year after Bishop died. Thus, the medical and regulatory communities had certainly not rejected the suggestion that Parlodel might have caused eclampsia.
The Kuhn court cited two out-of-state cases as persuasive authority. Kuhn relied in large part on Florida Power & Light Co. v. Tursi, 729 So. 2d 995 (Fla. Dist. App. 1999). In Tursi, a man developed a cataract after an electrical transformer leaked a liquid into his eye. An ophthalmologist who treated the man said that several things can cause cataracts, but he eliminated most of them and said based on his experience that the cataract most likely was caused by the transformer liquid. His testimony was allowed as pure opinion. 729 So. 2d at 997. As in Kuhn, the diagnosis wasn’t debated — the man had a cataract. And as in Kuhn, the doctor worked through a standard differential-diagnosis technique starting from the individual case at hand.
Kuhn also relied somewhat on Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000). It’s arguably a closer fit for Kuxhausen’s case. The plaintiff in Logerquist said she had been molested as a child by her pediatrician; she said she had no recollection of the abuse for about 20 years after it occurred until her memory was triggered by a television commercial featuring a doctor. She presented the expert opinion of a psychiatrist who said that severe childhood trauma, such as sexual abuse, can cause a repression of memory, which may come back to the person and be accurately recounted years later. The expert based this opinion in part on “his experience and observations over many years,” as well as upon medical literature. 196 Ariz. at 472. The Arizona Supreme Court reviewed a number of opinions admitting expert opinion in “matters of behavioral science” and concluded that “[o]pinion testimony on human behavior is admissible when relevant . . . and when the witness is qualified.” 196 Ariz. at 478-80. The court held that “Frye is inapplicable when a qualified witness offers relevant testimony or conclusions based on experience and observation about human behavior for tire purpose of explaining that behavior.” 196 Ariz. at 480. The court found the expert’s opinions were sufficiently based on his own experience. The expert was the director of a trauma center specializing in treating the psychological effects of trauma. He had published seven articles based on his own research, mostly in prestigious and peer-reviewed journals. The court called him “one of the leading researchers and authorities in behavioral science” and remarked that “[i]t would be strange that a witness so well qualified and experienced would not be permitted to testify on an issue beyond the experience of the average juror.” 196 Ariz. at 475.
Logerquist is more like Kuxhausen’s case than Kuhn or Tursi; Logerquist involved a diagnosis that was itself questioned by an opposing expert witness. But the court emphasized that the expert had a vast basis of personal experience and research to draw upon. When relying upon his own experience and personal observation in treating particular patients to establish a more general conclusion about repressed memories, the Logerquist expert engaged in inductive reasoning, which Kuhn labels pure opinion. We consider Dr. Kanarek’s reasoning primarily deductive, not inductive.
Our judgment that Dr. Kanarek’s opinion about multiple-chemical sensitivity is inadmissible is consistent with tire view of the vast majority of courts in the United States that have addressed this issue. Courts have generally held testimony about the diagnosis of multiple-chemical sensitivity inadmissible, whether under the Frye test or the somewhat different test of Dauhert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), because tire diagnosis is not generally accepted in the relevant medical community. See, e.g., Summers v. Missouri Pacific R.R. System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D. Ore. 2002) (multiple-chemical sensitivity “has not attained general acceptance”); Coffey v. County of Hennepin, 23 F. Supp. 2d 1081, 1086 (D. Minn. 1998) (excluding expert testimony on multiple-chemical sensitivity because the court “has failed to find an article or a medical association which opines that the methodology of diagnosing [it] has progressed to a point that it is scientific knowledge capable of assisting a fact-finder”); Frank v. State of New York, 972 F. Supp. 130, 137 (N.D.N.Y. 1997) (“the testimony on [multiple-chemical sensitivity] proffered by plaintiffs’ experts [fails] to meet the standard of evidentiary reliability established in Daubert”); Sanderson v. IFF, 950 F. Supp. 981, 1002 (C.D. Cal. 1996) (the science of multiple-chemical sensitivity has not progressed beyond the hypothetical); Minner v. American Mortg. & Guar. Co., 791 A.2d 826, 849 (Del. Super. Ct. 2000) (multiple-chemical sensitivity “is not a scientifically valid diagnosis”); Bernardoni v. Industrial Comm'n, 362 Ill. App. 3d 582, 595, 840 N.E.2d 300 (2005) (finding no general acceptance of multiple-chemical sensitivity in the medical community and affirming the denial of the expert testimony pursuant to Frye); McNeel v. Union Pacific RR. Co., 276 Neb. 143, 153-54, 753 N.W.2d 321 (2008) (acknowledging that many courts have determined that multiple-chemical sensitivity is a “controversial diagnosis unsupported by sound scientific reasoning or methodology”); Collins v. Welch, 178 Misc. 2d 107, 109, 678 N.Y.S.2d 444 (1998) (concluding that multiple-chemical sensitivity had not gained general acceptance in the relevant scientific community and was thus inadmissible). But see Kennedy v. Eden Advanced Pest Technologies, 222 Ore. App. 431, 447-52, 193 P.3d 1030 (2008) (finding that there is a controversy in the medical community about whether multiple-chemical sensitivity is a valid diagnosis but that, after review of Daubert factors, the competing evidence should be presented to the jury); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997) (allowing testimony about toxic encephalopathy under a Daubert-lTke test).
In sum, Kansas applies the Frye test to testimony about an emerging medical diagnosis, and the validity of a diagnosis of multiple-chemical sensitivity is not generally accepted. It therefore fails the Frye test. Dr. Kanarek’s opinion is based primarily on deductive, not inductive, reasoning, so the Kuhn exception to applying the Frye test does not apply. The district court correctly held that Dr. Kanarek may not testify about multiple-chemical sensitivity.
II. The District Court Properly Excluded Expert Testimony that Exposure to Paint Fumes Had Caused Kuxhausen s Symptoms.
After it determined that evidence of a diagnosis of multiple-chemical sensitivity was inadmissible under Frye, the district court had to determine whether any expert had given an opinion that Kuxhausen’s exposure to paint fumes had caused her symptoms. K.S.A. 60-456(b) again guides the decision: the expert’s opinion must be based upon facts or data and within the expert’s field of training.
The district court carefully reviewed the evidence submitted by each side. Based upon that review, the district court determined that Dr. Kanarek had not provided a sufficient basis in facts or data upon which to express an opinion that the exposure to paint fumes had caused Kuxhausen’s symptoms:
“Dr. Kanarek gave Plaintiff a physical examination and reviewed the records of her prior objective examinations, determining in each case that the results were essentially normal. The Court’s review of the proposed uncontroverted facts from Plaintiff and Defendant, and the deposition references from each, has not disclosed an instance where either counsel asked Dr. Kanarek whether, based on reasonable medical probability, he is of the opinion that Plaintiff s exposure to the epoxy paint fumes caused die conditions for which she seeks compensation. Although magic words are not required, the standard is the same.
“Dr. Kanarek’s deposition testimony does indicate he had the Material Safety Data sheet (MSDS) for the epoxy paint. He stated, generally, that there were materials on the sheet that ‘most definitely can generate that type of illness’ and ‘many ingredients within this, can lead to very serious health problems.’ Although replete with opinions that there are apparently hazardous substances [listed] on the MSDS that can make people sick, the Court has no opinion from Dr. Kanarek, with a supporting basis, that some one or more substances did make Plaintiff sick, as she alleges.
“Dr. Kanarek testified that he had no information concerning which chemicals or other substances were present in the air when Plaintiff returned to work, no information whether the MSDS health concerns related to aerolized paint or off-gassing from the paint, no information indicating a level of exposure required to generate eye or skin irritation, and no information about the level of any particular chemical that remains in the air for a particular duration. . . .
“. . . As the court commented in State v. Papen, 274 Kan. 149, 159 (2002), ‘[a]n expert must have a factual basis for his or her opinions in order to separate them from mere speculation.’ A review of the record presented to the Court, even giving the required weight to Plaintiff s position, falls short of that standard. Broad generalizations about what can or could cause a range of possible illnesses are not a substitute for opinion founded on particular facts, related to the particular circumstances of the person before the court. Those may be opinions that are open to dispute by others duly qualified and also in possession of the relevant facts. The question then becomes the weight the jury chooses to give the competing opinions. Inadequately founded opinions do not assist the jury in fairly resolving the case. Opinion that only invites the jury to speculate on the speculation of the expert should not be admitted under the above standards.”
Based on these findings, the district court determined that no expert testimony had been submitted on causation that met the standard of K.S.A. 60-456(b). Without testimony in support of causation, a plaintiffs negligence claim fails. Therefore, the district court granted summary judgment to the defendant.
On her appeal of this ruling, Kuxhausen does not argue that Dr. Kanarek’s causation opinion was pure-opinion testimony under Kuhn. Rather, she argues that Dr. Kanarek gave a sufficiently clear causation opinion and that it was sufficiently supported by facts and data so that the district court should have admitted it. The district court correctly identified the appropriate legal standards under K.S.A. 60-456(b) for the admission of expert testimony. We therefore review for abuse of discretion its conclusion that no expert testimony on causation met the standard for admission under K.S.A. 60-456(b). See State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008); State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003); State v. Colbert, 257 Kan. 896, 910, 896 P.2d 1089 (1995). We reverse for abuse of discretion on the admissibility of evidence only when no reasonable person would agree with the decision of the district court. Miller v. Glacier Development Co., 284 Kan. 476, 505, 161 P.3d 730 (2007). This is not such a case.
Dr. Kanarek admitted in his testimony that he had no information regarding the amount of chemicals Kuxhausen was exposed to. He similarly admitted that he had no information about the level of chemical exposure required to cause irritation for the chemicals found in this paint. However, Kuxhausen is correct in her argument on appeal that the district court went too far in its conclusion that Dr. Kanarek had not expressed a causation opinion at all. Magic words are not required, and Dr. Kanarek did state his opinion that Kuxhausen’s problems were caused by the paint-fume exposure. But that caveat on the district court’s conclusions has no effect on its determination that Dr. Kanarek didn’t cite an adequate basis to reach that causation opinion.
It is precisely because the link between sensitivity to lots of chemicals and specific exposure to one chemical is so questionable that the diagnosis of multiple-chemical sensitivity has not gained acceptance in the medical community. The district court did not abuse its discretion in concluding that Dr. Kanarek had not provided a sufficient factual basis for a causation opinion in this case. See McNeel, 276 Neb. at 154 (when basis for causation opinion of multiple-chemical sensitivity is “reduced to nothing more than post hoc, ergo propter hoc,” which is relying on the false assumption that the second event to occur must have been caused by the first event, it is not helpful to a jury and therefore not admissible). As the Kansas Supreme Court has said, “[Ejxpert testimony must be based on reasonably accurate data and not simply based on unsupported assumption, theoretical speculation, or conclusory allegations.” Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 767, 915 P.2d 86 (1996) (affirming district court decision that expert testimony didn’t meet standard of K.S.A. 60-456[b]).
Conclusion
The district court properly determined that Kuxhausen had not presented admissible expert-opinion evidence that she suffered from multiple-chemical sensitivity or that her long-term symptoms were caused by exposure to paint fumes. In the absence of such evidence, Kuxhausen did not have a viable claim for negligence. Therefore the district court properly granted summary judgment to the defendant.
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McAnany, J.:
This appeal arises from the district court’s decision denying relief to Norman and James Becker, shareholders in the Finney County Water Users Association (FCWUA), on their claims against FCWUA President Harold Knoll for his breach of fiduciary duties by using FCWUA employee Leonard Morehouse for Knoll’s own purposes.
FCWUA is a corporation that maintains 40 to 50 miles of ditches used to draw water from the Arkansas River to irrigate land owned by FCWUA shareholders. Knoll was a shareholder of FCWUA, as well as a director and its president. Morehouse was employed as FCWUA’s full-time ditch superintendent or “ditch rider.” Knoll supervised Morehouse’s work. The Beckers claim that Knoll breached his fiduciary duties to FCWUA by engaging in improper self-dealings by using Morehouse to do work on Knoll’s farm at times when Morehouse should have been tending to FCWUA’s ditches. The Beckers sought damages and Knoll’s removal as a director and president of FCWUA.
The parties are well familiar with the trial testimony, and we need not recount it here. After taking the matter under advisement, die district court issued its extensive and detailed memorandum decision, finding that the Beckers failed to present a prima facie case requiring rebuttal by Knoll. The court further found:
“[T]he totality of the evidence presented has failed to show to the court that it is more probably true tiran not true that any damages were caused to the [plaintiffs] by the neglect, willful or otherwise, of the defendant in his duties owed to the Corporation in the supervision of the ditch [rider] or any private use of the ditch [rider] on Corporation time.”
In this appeal the Beckers claim their evidence at trial was sufficient to establish a prima facie case of self-dealing by Knoll. As a result, they contend the burden shifted to Knoll to prove the fairness of his transactions with Morehouse. Thus, according to the Beckers, the district court erred when it simply weighed the totality of the evidence without recognizing Knoll’s burden to show fairness.
Standard of Review
Before addressing the merits of the Beckers’ claims, we must determine our standard of review. To do that we must separately consider the steps required to resolve the liability issue in a case in which a fiduciary is charged with breach of the duty to refrain from self-dealing to the detriment of those to whom fiduciary duties are owed.
Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978), is a shareholder derivative action against corporate directors who, plaintiff claimed, engaged in self-dealings to the detriment of the corporation by charging excessive management fees and salaries, misappropriating corporate funds and assets, and misappropriating the corporation’s business opportunities. Our Supreme Court stated:
“Any unfair transaction induced by a fiduciary relationship between the parties gives rise to a liability with respect to unjust enrichment of the fiduciary. Where such transaction is attacked, the burden of proof is on the fiduciary to establish the fairness of the transaction, and to this end he must fully disclose the facts and circumstances, and affirmatively show his good faith.” 224 Kan. at 518.
The issue was later addressed by this court in Richards v. Bryan, 19 Kan. App. 2d 950, 965, 879 P.2d 638 (1994). Richards was an appeal following the district court’s entry of summary judgment against plaintiff. Plaintiff claimed that defendants breached their fiduciary duties, and thereby denied plaintiff the expected benefits of his investment in the company, by engaging in financial manipulations that made the company appear to be unprofitable in order to avoid paying dividends and bonuses.
Notwithstanding some rather broadly drawn pronouncements in Newton, the Richards court declared that “Newton requires a complaining party to offer more than a bald allegation of impropriety, while still assigning the ultimate burden of proof on the fiduciary.” Richards, 19 Kan. App. 2d at 965. In discussing the burden-shifting procedure, the court explained that the first step requires a plaintiff to establish a prima facie case of self-dealing. “After that was established, the burden then shifted to the defendant to prove that its actions were done in good faith. After the defendant presented its evidence, the plaintiff was then afforded the opportunity to counter with rebuttal arguments. [Citation omitted.]” 19 Kan. App. 2d at 965. This clarification of Newton by die Richards court was cited with approval in Welch v. Via Christi Health Partners, Inc., 281 Kan. 732, 757-58, 133 P.3d 122 (2006).
The Richards court applied the familiar de novo standard of review in determining that the district court erred in granting summary judgment because, “[w]hile falling far short of ultimately proving his allegation, Richards’ evidence did create a question of fact which was adequate to establish a prima facie showing.” 19 Kan. App. 2d at 966.
The familiar notion of prima facie evidence was defined in Van Brunt, Executrix v. Jackson, 212 Kan. 621, 623, 512 P.2d 517 (1973), as evidence which, if unexplained or uncontradicted, is sufficient to submit the case to the factfinder and to sustain a judgment in favor of the issue which it supports. Though it may support a judgment, prima facie evidence may be contradicted by other evidence.
This leads us back to the original issue of our standard of review. In a breach of fiduciary duties case involving self-dealing, the issue of whether plaintiff has established a prima facie case does not involve the weighing of evidence, just as summary judgment proceedings do not turn on the weight of the evidence. If the weight of the evidence were an issue, on appeal we would defer to the factfinder to make that determination. But here, as in summary judgment proceedings, where the weight of, and credit to be given, the evidence does not control, we are as capable as the trial court to determine if a prima facie showing has been made. Accordingly, our standard of review on the threshold issue of whether plaintiff has made a prima facie showing of breach of fiduciaxy duties by self-dealing, just as our standard of review in summary judgment proceedings, is de novo.
Once plaintiff makes that prima facie showing of a breach of fiduciary duties by self-dealing, the burden of proof shifts to the defendant. Since by definition prima facie evidence is always subject to being contradicted by other evidence, the defendant then has the opportunity to prove that the challenged transaction never took place or that the transaction was fair and undertaken in good faith. On these issues, the factfinder must weigh any conflicting evidence to determine which is more credible in order to arrive at a final judgment. Since this exercise is beyond an appellate court’s capability upon review of the cold record, we review the fact-finder’s factual determinations using the substantial evidence standard, viewing the evidence in the light most favoring the prevailing party at trial.
Prima Facie Case
Self-dealing is defined as “[participation in a transaction that benefits oneself instead of another who is owed a fiduciary duty. For example, a corporate director might engage in self-dealing by participating in a competing business to the corporation’s detriment.” Black’s Law Dictionary 1390 (8th ed. 2004). The duty of loyalty prohibits officers and directors from engaging in self-dealing and reqxiires that the corporation “receive the full benefit of transactions in which the officer engages on the corporation’s behalf, without thought to personal gain.” 18B Am. Jur. 2d, Corporations §1480, pp. 471-72. Thus, to demonstrate self-dealing, a plaintiff must show not only personal dealings by the fiduciary, but also that the personal dealings were at the expense of benefits the corporation should have enjoyed. This is consistent with the dec laration in Newton that the questioned transaction must be “unfair.” 224 Kan. at 518.
The district court’s pretrial order accurately described the burden-shifting process. It stated that the plaintiffs had the burden to establish a prima facie case that the challenged transactions occurred. Following that, the burden would shift to the defendant either to establish that these transactions did not occur or to establish the fairness of these transactions and that they were undertaken in good faith. After that, the plaintiffs would have the opportunity to rebut defendant’s evidence and contentions.
One would presume that if at the close of plaintiffs’ case the Beckers had failed to present a prima facie case of unfair transactions, the burden would not shift to Knoll and the case would simply end with the entry of judgment as a matter of law at the close of plaintiffs’ case pursuant to K.S.A. 60-250(a)(1). But Knoll made no such motion at the close of the Beckers’ case-in-chief, suggesting that Knoll conceded that the Beckers had made a prima facie case which he needed to rebut. Knoll proceeded to present his case-in-chief immediately after the Beckers rested their case. At the close of all the evidence, the court invited the parties to submit their summations in written form. In Knoll’s written summation he refers to the Beckers failing to “prove” a prima facie case, but he did not move for judgment as a matter of law at the close of all the evidence pursuant to K.S.A. 60-250.
Following its detailed analysis of the testimony, the district court stated in its memorandum decision and order:
“The plaintiffs in this matter have failed to present to the court a prima facie case sufficient to require the defendant to rebut tire allegation. Further, the totality of tire evidence presented has failed to show to the court that it is more probably true than not true that any damages were caused to the defendants by the neglect, willful or otherwise, of the defendant in his duties owed to the Corporation in the supervision of the ditch [rider] or any private use of the ditch [rider] on Corporation time.”
The Beckers argue that two witnesses testified at trial that Knoll told them that Morehouse worked on Knoll’s farm exclusively for a 30- to 45-day period in 2002 when Morehouse should have been tending to FCWUA’s ditches. They argue that this was corrobo rated by a contemporaneous letter that was introduced into evidence. While the Beckers acknowledge that there was conflicting evidence on this point, they assert that this testimony established a prima facie case of a fiduciary’s (Knoll’s) unfair transaction involving self-dealing to FCWUA’s detriment.
The district court made the following observations about this aspect of the testimony:
“It was testified that Knoll told several people that Morehouse had worked on Knoll’s farm for 30 to 45 days continuously at one point in time. Both Knoll and Morehouse denied that fact, and Knoll denied making the statement. It is noted that during this time Morehouse was supposedly working exclusively for Knoll there was water in the ditch which is a tremendously busy period for both More-house and Knoll in simply trying to get the water through die system. It is also noted that the detailed notes kept by one of the proponent of filis statement having been uttered made no note of this statement that, if true, would be apparent at the time of its making of a significant incident of misfeasance or malfeasance on the part of Morehouse and Knoll. The court will not accept this urged confession of misfeasance or malfeasance as established fact.”
The Beckers assert there was evidence of other instances when Morehouse was seen working at Knoll’s farm. While this additional evidence may establish a prima facie case of Knoll using FCWUA’s employee to do work personal to Knoll, it does not establish that the transaction was unfair. The prima facie case the Beckers must establish is one of unfair transactions, not merely transactions between Knoll and Morehouse.
Nevertheless, we agree with the Beckers that the evidence presented regarding Morehouse’s exclusive work for Knoll for a 30-to 45-day period established a prima facie case that shifted the burden to Knoll with respect to this particular transaction. However, even if we include the evidence of these other transactions as a prima facie case of Knoll’s wrongdoing, this does not end the analysis.
Since by its very nature prima facie evidence is subject to being explained or contradicted, Knoll could meet his burden by proving either that Morehouse did not work for him during the claimed periods or that the work Morehouse did was not at the expense of minding FCWUA’s ditches. If the district court would have found that the Beckers presented a prima facie case on these issues, its next task would have been to weigh the conflicting evidence and determine if Knoll met his burden to rebut the Beckers’ prima facie case. Thus, we must turn to the second step in our analysis to determine whether, viewed in the light most favoring Knoll, there is substantial evidence to support the district court’s findings supporting its judgment. That analysis leads us to conclude that any error by the district court in declaring that the Beckers failed to present a prima facie case ultimately was harmless.
Defendant’s Burden of Proof
In considering whether Knoll met his burden of rebutting the Beckers’ prima facie case, we examine all the evidence, both direct and circumstantial. See Yount v. Deibert, 282 Kan. 619, Syl. ¶ 1, 147 P.3d 1065 (2006). In examining all the evidence, we include evidence introduced by both the Beckers and by Knoll to determine if Knoll met his burden. See Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1052 (2007).
In entering judgment in favor of Knoll, the district court found that Morehouse worked his requisite hours at all times, that More-house worked on FCWUA’s equipment at Knoll’s farm, that More-house’s work on Knoll’s farm was primarily voluntary, and that there was always something to do on FCWUA’s 50 miles of ditches no matter how long Morehouse worked on them. The district court found Morehouse to be a credible witness and believed that he devoted the requisite time to FCWUA’s ditches.
The district court rejected the contention that photos introduced into evidence which showed ditches overgrown with weeds was evidence of neglect because the ditches in the photos had recently been filled with water and had not sufficiently dried out to allow the weeds to be cut. The court also found that the flooding of James Becker’s property did not establish neglect of the ditches and that observations of Morehouse worldng on Knoll’s farm did not establish that Morehouse should have been worldng for FCWUA at the time. The court believed the testimony of Knoll and Morehouse regarding tire time Morehouse spent at Knoll’s farm over testimony to the contrary.
The Beckers contend that in order to meet his burden of proof Knoll was required to prove not only that Morehouse never worked on Knoll’s farm while on the clock for FCWUA, but also to produce at trial records that showed when Morehouse was on company time, when he was off work, when he worked on the farm, what labor was exchanged for his farm work, when that occurred, and the exchange rate for Morehouse’s labor. The Beckers cite, and we find, no authority that defines the specific character of the evidence needed for Knoll to meet his burden.
Ultimately, the district court concluded that the Beckers failed to show that Knoll used Morehouse to work on his farm “to the detriment of the Corporation when Morehouse should have been working for the Corporation.” The district court found no credible evidence of wrongful self-dealing by Knoll. More importantly, the district court relied on evidence affirmatively presented by Knoll that established that he successfully rebutted the Beckers’ prima facie showing.
The Beckers presented evidence that Morehouse was on Knoll’s land doing work that was unlikely related to his work for FCWUA. However, none of the witnesses stated that the work was being done when Morehouse should have been working for FCWUA. Although Morehouse was required to work whenever something was needed on the ditches, the shareholders also told Morehouse he was free to get another job, and all agreed that he was free to spend his personal time as he wished.
We find substantial evidence in the record to support the district court’s findings.
Finally, the Beckers argue that the district court erred in improperly weighing the testimony of their witnesses. The weight and credibility of the evidence at trial is within the exclusive province of the trial court, not this court on appeal. See Newton, 224 Kan. at 519. The Beckers’ reliance on Richards for the proposition that the district court improperly weighed the evidence is misplaced. Richards was decided in the district court on a motion for summary judgment. At that stage of the proceedings, the plaintiff “was required to present facts which, when viewed in die fight most favorable to him, established a prima facie case of breach of fiduciary duty.” 19 Kan. App. 2d at 965-66. Unlike in Richards, the present case comes to us after trial on the merits and after the district court fulfilled its responsibility of weighing and resolving conflicts in the evidence at trial.
Accordingly, we conclude that there is substantial evidence to support the district court’s findings and its initial error in stating that the Beckers failed to present a prima facie case was harmless.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction by jury of the crime of indecent liberties with a child and aggravated sodomy, contrary to the provisions of K.S.A. 21-3503, as amended, and K.S.A. 21-3506, respectively.
The complainant, Carla Davis, is the stepdaughter of the defendant-appellant, Donald F. Fisher. At the time of the alleged offenses, she was 11 years old. The offenses for which the appellant was convicted are alleged to have occurred on July 12, 1975, and August 10, 1975. The information was filed on September 26, 1975. Trial was had to a jury on October 15, 1975; a verdict of guilty was returned, and the appellant was sentenced on October 31, 1975. This appeal followed.
On the evening of August 10,1975, Carla and her mother, Mrs. Adelie Fisher, came to the Saline County Sheriff’s Office about 9:30 p.m. Deputy James Preston talked with Carla for about an hour and a half. In the course of their conversation, Carla told of several instances in which her stepfather had sexually molested her. The appellant was arrested the following day and charged with two crimes based on what Carla told the deputy.
At trial, Carla was the state’s first witness. She testified that the story she told the deputy on August 10, 1975, was a lie — that the appellant did not do the things she said he did.
After some thirty minutes of direct examination, the court asked counsel to approach the bench. There followed a lengthy discussion, first out of the jury’s hearing at the bench, then in chambers. The court stated Carla was obviously a hostile witness, and it had expected to have been faced with a tender of exception to the hearsay rule. The parties had apparently anticipated the complaining witness might change her story on the stand because they had filed briefs on the hearsay question prior to trial.
After extended discussion, the court determined Carla Davis and Mrs. Fisher were turncoat witnesses and that, as such, it was proper to let other witnesses testify as to what Carla and Mrs. Fisher had told them, as an exception to the hearsay rule. In accordance with that ruling, Deputy Preston was permitted to testify as to the story Carla had related to him during the evening of August 10, 1975, as to the two offenses for which defendant was charged. Another deputy, Ron Lister, was later permitted to testify about an incident involving Carla and the appellant that Mrs. Fisher had related to him on August 10, 1975. Mrs. Fisher was present but did not testify at the trial.
The appellant contends the district court committed reversible error by permitting hearsay statements of Carla Davis and Mrs. Fisher to be admitted into evidence under K.S.A. 60-460(a) through the testimony of the two sheriff’s deputies. The first prong of the appellant’s argument is that the district court’s ruling was an abuse of discretion.
K.S.A. 60-460 provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness; . . .”
This exception to the hearsay rule, if literally interpreted, could largely circumvent the general principle that the testimony of witnesses at trial shall be taken orally in open court. K.S.A. 60-243; Fed. R. Crim. P. 26. If the exception were not applied discriminately, the state might, for example, be tempted to present its case at a preliminary hearing when the defense often is not well prepared to cross-examine effectively, and then simply introduce a transcript at trial rather than call the witnesses.
Exercise of judicial restraint in allowing admission of evidence under 60-460 (a) is implicit in this exception to the hearsay rule. This has not gone unnoticed by Judge Gard:
“. . . [This exception] could be subject to abuse if it were not for the discretionary power of the trial court to separate the grain from the chaff and control the admission of evidence of out-of-court statements admissible only under this exception, and reject it if better evidence is available and no good purpose is served by receiving it.” S. Gard, Kansas Code of Civil Procedure 465 (1963).
The exception has been criticized as increasing the pressures to secure out-of-court statements, facilitating the manufacture or shading of evidence, raising the possibility a criminal defendant may be convicted on the basis of an out-of-court statement, and because cross-examination is inadequate in such a situation. R. Fowkes and W. Harvey, 4 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, 416 (1965).
In the instant case, the district court carefully considered the question before making its ruling. It had the benefit of trial briefs and oral arguments on the point. The basis for the district court’s ruling is clear:
“I think in this case before you can use the hearsay rule, if you don’t have a turncoat witness the Court isn’t going to let you use the exception. If you have a turncoat witness I think it is appropriate for the Court to permit it. I think it boils down to that. . . .”
We have no dispute with the district court’s finding that Carla was a turncoat witness. The court observed some thirty minutes of Carla’s direct examination; Carla was evasive, hostile and denied the truthfulness of her prior statements which were the basis for the charge against the accused. The state’s tender of evidence in chambers was to the effect that Carla’s prior statements were in complete contradiction to her testimony at trial and at the preliminary hearing. This was the traditional turncoat witness situation, and the court did not err in ruling Carla’s prior hearsay statements were admissible as substantive evidence under 60-460(a). See, State v. Lott, 207 Kan. 602, 485 P.2d 1314; S. Gard, Kansas Code of Civil Procedure 466 (1963).
However, it was an abuse of discretion for the district court to allow hearsay statements of Mrs. Fisher to be admitted under 60-460 (a) based on a finding she was a turncoat witness. Mrs. Fisher was available to testify at trial, but was never called. The state’s tender of proof was that the testimony Mrs. Fisher would give at trial would be completely contradictory to her prior statements. This was an insufficient basis for permitting the use of the 60-460 (a) exception. It was an abuse of discretion for the district court to find Mrs. Fisher was a turncoat witness without her first testifying contrary to her prior statements.
The second prong of the appellant’s argument that the admission of the hearsay statements under K.S.A. 60-460 (a) was reversible error is that, under the circumstances of this case, his constitutional right of confrontation was violated.
The course of events at trial has been set out above. Briefly, after Carla testified, the court ruled prior hearsay statements of Carla and Mrs. Fisher would be admitted under K.S.A. 60-460 (a). Thereafter, the hearsay statements were admitted through the testimony of sheriff’s deputies. Carla was not recalled for cross-examination. Mrs. Fisher was available at the trial, but was not called to testify by either the state or the defendant.
The Sixth Amendment to the United States Constitution provides in pertinent part:
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .”
The Sixth Amendment’s guarantee of the right to confrontation was made applicable to the states through the Fourteenth Amendment in Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).
The Sixth and Fourteenth Amendments grant no greater protection to the accused in this respect than does Section 10 of the Bill of Rights of the Kansas Constitution, which provides in pertinent part:
“In all prosecutions, the accused shall be allowed to . . . meet the witness face to face. . . .”
See generally State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 ALR 2d 750.
The United States Supreme Court recently had occasion to consider an argument similar to that raised by the appellant. California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S.Ct. 1930. The Court in Green noted that confrontation has a three-fold purpose:
“. . . (1) insures that the witness will give his statements under oath- — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” Id. at 158.
The particular vice that gave impetus to the constitutional provision guaranteeing confrontation was:
“. . . the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact.” Id. at 156.
The Green Court concluded that the admission of a declarant’s out-of-court statements did not violate the Confrontation Clause:
. . as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” Id. at 158.
Our decisions have recognized the constitutional right of confronting witnesses means more than being allowed to confront a witness physically — it includes the right of effective cross-examination. State v. Deffenbaugh, 217 Kan. 469, 536 P.2d 1030; State v. Wilkins, 215 Kan. 145, 523 P.2d 728; State v. Montanez, 215 Kan. 67, 523 P.2d 410.
In the case at bar, Mrs. Fisher was available in the courtroom, but the state chose not to call her. Defendant could have called her as a defense witness. However, in our view, calling a declarant as a defense witness is no substitute for cross-examining that declarant as a state’s witness. Support for this position was aptly stated in Note, The Supreme Court 1970 Term, 85 Harv. L. Rev. 1, 195 (1971):
“On cross-examination, the defense has greater freedom in questioning the witness, including the ability to use leading questions. . . . [and] even a direct examination successful from the defendant’s perspective is less effective than cross-examination because (1) time will have elapsed since the State introduced the hearsay; (2) the damaging hearsay will have to be repeated during the examination, thereby increasing its impact; and (3) the impeachment will come from the defendant’s witness, rather than the State’s, so the jury will not be as impressed.”
Hoover v. Beto, 439 F.2d 913, 924 (5th Cir. 1971), forcefully illustrates the right to “effective cross-examination” is not satisfied by the declarant’s mere presence in the courtroom:
“The State did not call Sellars as a witness, and it has failed to meet the requirements for applying California v. Green, supra. The inference to be drawn is that the State was apprehensive that Sellars would recant his confession or refuse to testify. The State evidently did not want to be in the position of introducing the confession by way of impeaching or rebutting Sellars’ testimony. It preferred to introduce the confession in its case in chief and put the burden of rebuttal on the defense.
“That Sellars was available to be called as a witness does not mitigate the prosecution’s misconduct here. The State sought to shift to the defendant the risk of calling Sellars to the stand. To accept the State’s argument that the availability of Sellars is the equivalent of putting him on the stand and subjecting him to cross-examination would severely alter the presumption of innocence and the burdens of proof which protect the accused. Hoover’s undoubted right to call Sellars as a witness in his behalf cannot be substituted for his Sixth Amendment right to confront Sellars as a witness against him.”
As indicated, Carla testified before her hearsay statements were admitted through the testimony of Deputy Preston. The defense counsel could have requested Carla be recalled for further cross-examination after Preston’s testimony. The right to recall a witness for further cross-examination lies in the sound discretion of the trial court. See, State v. Arch, 98 Kan. 404, 157 Pac. 1198; 98 C.J.S. Witnesses, Sec. 371,(1957). The language of K.S.A. 60-460 (a), “available for cross-examination with respect to the statement and its subject matter,” clearly warrants recalling a witness for cross-examination on his hearsay statement admitted subsequent to his testifying. Whether a witness is actually cross-examined, the fact the defendant has an opportunity to carry out such an inquiry satisfies the confrontation clause. Pointer v. Texas, supra; People v. Green, 92 Cal. Rptr. 494, 3 Cal. 3rd 981, 479 P.2d 998. Hence, we conclude the admission of Carla’s hearsay statements did not amount to a denial of the appellant’s right to confrontation.
Our conclusion is different with respect to the hearsay statements of Mrs. Fisher. For the reasons set forth in the foregoing portions of the opinion, we hold that under the circumstances of this case, admission of Mrs. Fisher’s hearsay statements violated the appellant’s right to confrontation. In our view, for the declarant to be subject to full and effective cross-examination by the defendant, he must be called to testify by the state.
For reasons of policy and fairness, and to ensure the right of confrontation is not abridged, we hold that in a criminal proceeding the declarant must testify at trial before hearsay evidence may be admitted under K.S.A. 60-460 (a).
The appellant next contends it was reversible error for the court to permit the prosecutor to elicit, during the state’s case-in-chief and cross-examination of the appellant, evidence of the appellant’s silence at the time of his arrest after he had been advised of his right to remain silent.
Deputy Lister arrested the appellant on August 11, 1975. In describing the arrest, the following testimony occurred:
“Q. Did you ever question the defendant about what he was being arrested for?
“A. Yes. He asked me what he was being arrested for and I advised him of his rights and. asked him if he wanted to answer any questions. He said, ‘No, I understand my rights and I don’t want to talk to you without an attorney present. ’ I didn’t ask him any other questions.
“Q. Did you ask him why he had ran when he saw you?
“A. Yes, he advised me that he wasn’t running, that he was going over to the neighbor’s house.” (emphasis supplied)
The appellant testified in his own behalf. On cross-examination, the following transpired:
“Q. Did you ever say that you didn’t do them? [offenses charged]
“A. Yes, sir.
“Q. Did you tell Deputy Lister that when he arrested ijou?
“A. No, sir. He said anything that I said could be used against me.” (emphasis supplied)
The use for impeachment purposes of a defendant’s silence at the time of his arrest and after receiving the Miranda warnings is constitutionally impermissible. Doyle v. Ohio, 426 U. S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; State v. Mims, 220 Kan. 726, 556 P.2d 387. No valid distinction can be made with respect to testimony on direct or cross-examination concerning the accused’s silence at the time of his arrest because the potential for prejudice is present in both situations. United States v. Impson, 531 F.2d 274 (5th Cir. 1976). However, the appellant made no objection to this testimony at the trial. The state contends that appellant’s failure to comply with the contemporaneous objection rule (K.S.A. 60-404) precludes our reviewing this point on appeal.
The contemporaneous objection rule is codified in K.S.A. 60-404:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
In Baker v. State, 204 Kan. 607, 464 P.2d 212, it was said:
“The contemporaneous objection rule long adhered to in this state requires timely and specific objection to the admission of evidence in order for the question of admissibility to be considered on appeal. (K.S.A. 60-404.) The rule is a salutary procedural tool serving a legitimate state purpose. (See, Mize v. State, 199 Kan. 666, 433 P. 2d 397; 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.) By making use of the rule, counsel gives the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial. Furthermore, the rule is practically one of necessity if litigation is ever to be brought to an end.” (Id. 611)
Failure to comply with the contemporaneous objection rule or some other state procedural requirement may bar a challenge, even upon federal constitutional grounds, to a conviction in a state court. Henry v. Mississippi, 379 U. S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564. In State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255, we held that the accused had failed to preserve his claim of due process deprivation where no objection to the offending testimony was interposed at trial. Likewise, in State v. Shepherd, 213 Kan. 498, 516 P.2d 945, we said that the alleged error of eliciting testimony of the accused’s post-arrest silence was not properly before this court where no objection was interposed at trial.
The appellant argues no objection was necessary under the circumstances of this case. In support of this proposition, he points to State v. Lara, 88 N.M. 233, 539 P.2d 623; United States v. Nolan, 416 F.2d 588 (10th Cir. 1969); and Minor v. Black, 527 F.2d 1 (6th Cir. 1975). These decisions can be distinguished from the instant case. Minor v. Black, supra, was a federal habeas corpus case. It has long been the rule that even where state procedural grounds bar direct review by appeal to a state or federal appellate court, federal habeas corpus relief is still available to litigate the accused’s constitutional claims unless there has been a deliberate bypass of the state procedures. See Lefkowitz v. Newsome, 420 U.S. 283, 290 n. 6, 43 L. Ed. 2d 196, 202, 95 S. Ct. 886, 890; Henry v. Mississippi, supra; Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S.Ct. 822; Baker v. State, supra. State v. Lara, supra, and United States v. Nolan, supra, were direct criminal appeals from a state and federal conviction. Both the federal courts and New Mexico have a “plain error” rule. Fed. R. Crim. P. 52 (b); N. M. Stat. Ann. Sec. 20-4-103 (d) (1975 Supp.). Kansas has no such rule.
Because the appellant failed to make timely, specific objections to the testimony he now urges was erroneously admitted, the point is not properly before this court on appeal.
The appellant next contends the district court committed reversible error in permitting the state to introduce evidence of past crimes under K.S.A. 60-455.
In the state’s case-in-chief, after Deputy Preston had testified as to what Carla had told him concerning the two acts of the appellant for which he was charged, Deputy Preston was asked if Carla had told him about any other incidents involving her and the appellant. The defendant objected, and there followed a conference at the bench. The state informed the court it intended to offer evidence of other crimes under the provisions of K.S.A. 60-455, for the purpose of showing the appellant’s plan, design, knowledge and intent. The court overruled the defendant’s objection, and, before allowing the state to proceed with its evidence, gave the following preliminary instruction:
“Ladies and Gentlemen of the Jury, the testimony just now about to be introduced is to be introduced and to be considered by the jury for only a limited purpose. Now, at the close of trial you will be given complete instructions relative to the law that applies to this case and you will be instructed in detail as to this particular point. But this evidence has to do with other acts and occurrences of a nature which are to be considered by the jury to the extent that you find might be material and bearing on plan, design, knowledge or intent of the defendant and not for any purpose having to do with the guilt or innocence as to the particular acts claimed in the two charges against the defendant. So keep in mind that this will be covered fully in the Court’s instructions at the close of trial.”
Thereafter, Deputy Preston related three incidents Carla had told him involving herself and the appellant. On three occasions within a year prior to the charged offenses, Carla told of the appellant fondling her while masturbating and making her play with his penis.
While the district court’s preliminary instruction was over-broad (knowledge appears neither relevant nor material to the crimes charged), we think the other crimes evidence was properly admitted to show intent, plan and design.
A necessary element of proof of indecent liberties with a child is the specific intent to arouse or satisfy the sexual desires of either or both. The other crimes evidence was probative to show such intent. Further, the three like occurrences in the preceding year reflect an antecedent mental condition that evidentially points to the doing of the acts charged. The occurrences suggest a plan or design directed toward the doing of the crimes charged.
We believe the probative value of the evidence sufficiently outweighed its prejudicial effect so that its admission was proper within the limits of judicial discretion. See State v. Gonzales, 217 Kan. 159, 535 P.2d 988; State v. Hampton, 215 Kan. 907, 529 P.2d 127; State v. Masqua, 210 Kan. 419, 502 P.2d 728.
The appellant’s final contention is that the district court committed reversible error in denying his motion for judgment of acquittal at the close of the state’s case where the victim of the alleged crimes denied commission of said offenses and the state did not produce evidence independent of the victim’s prior statements to prove the offenses charged.
We do not agree with the contention. The testimony of the deputy as to what was told him by the complaining child was sufficient to sustain a verdict of guilty if believed by the jury. In reviewing the sufficiency of evidence, the function of an appellate court is limited to whether there was a basis in the evidence for a reasonable inference of guilt. E.g., State v. Helm, 200 Kan. 147, 151, 434 P.2d 796.
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Michael E. Boyd, was convicted of murder in the first degree (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427). This case was previously before this court in State v. Boyd, 216 Kan. 373, 532 P. 2d 1064. On the first appeal we reversed the case and a new trial was ordered because of errors in the admission of evidence and in the court’s instructions. Following the remand the defendant was retried and convicted, and now brings this appeal alleging trial errors at his second trial.
The evidence presented at the second trial was substantially the same as that introduced at the first trial. However, at the second trial the defendant presented the defense of insanity, which was not a defense at the first trial. Most of the factual circumstances were not in dispute and are essentially as follows: On September 25, 1972, at about 2:34 a.m. a call was received by the Best Cab Company in Wichita, requesting a cab be sent to the 904 Club. Cab No. 43 driven by Gordon Moore was dispatched to the club. According to the state’s evidence at about this same time the defendant Boyd was at the 904 Club having a conversation with an acquaintance, James Thomas. Thomas testified that Boyd told him he needed money and was going to rob a cab driver. Thomas thought he was joking. Defendant insisted he was not and said he was going to “hit him over the head.” Thomas suggested the driver would hit him back. Defendant insisted he was not joking and said: “I got something for him if he do that.” Thomas then observed a Best Cab pull up to the club. Defendant got into the cab which drove away.
At about 3:00 a.m. on September 25, Bobbie Parks heard a noise outside her home at 535 Ohio in Wichita. She heard a moan and then someone crying, “Help, oh please don’t, please don’t.” She awakened her mother and the two looked out the window. They saw a body lying in the street and a cab drive away. The body was that of Gordon Moore. Shortly thereafter defendant was observed parking cab No. 43 on the street. Boyd got out and walked to the corner and began talking with William Knox and another man. Knox testified defendant asked him to take him to the bus depot. They drove to the bus depot and then to a motel. They began drinking and continued to do so until daylight. Defendant Boyd then went to his girlfriend’s house where he was arrested later in the day. The state’s evidence established a number of highly incriminating circumstances which pointed the finger of guilt directly at the defendant Boyd. Gordon Moore’s billfold and a knife were found near his abandoned cab. On the billfold was a latent fingerprint which was identified as that of the defendant Boyd. Boyd’s blood type was Group O and Gordon Moore’s blood type was Group A. At the time defendant was arrested he had a cut on one of his hands and there was blood on his clothing. Group O and Group A human blood were found in the abandoned cab. At the time defendant was arrested Group A human bloodstains were found on his clothing. The medical testimony established 15 deep knife wounds in Moore’s body. No single wound was fatal and the cause of death was determined to be loss of blood.
The defendant took the stand in his own defense. He testified that he had been drinking and taking drugs throughout the day of September 24. He had been at the 904 Club that evening and had called a cab. He had a conversation with James Thomas at the 904 Club but denied making any statements as to robbing a cab driver. Defendant further stated that when he got into the cab there was another person present. The driver began to speak to him in a racially offensive manner. There was an unfriendly exchange of words, followed by the two slapping each other. The defendant then remembered a flash coming before him and throwing up his hand. He claimed to remember little else after that. Contrary to the testimony given at the first trial the defendant testified that the cut on his hand came from a knife in the cab driver’s control. The defendant denied having a knife with him in the cab and denied making any plans to rob or kill the cab driver.
The defendant also called witnesses to show that he was addicted to narcotics. The defense then called Dr. C. J. Kurth, a Wichita psychiatrist, in support of the defense of insanity. Dr. Kurth testified that he had examined defendant and diagnosed him as a psychopathic personality with schizoid features. He stated that the defendant had a personality which might become dependent upon drugs or alcohol or both and that such a personality is potentially explosive. Dr. Kurth was then asked a hypothetical question based on the defendant’s theory of the case. Assuming that the defendant had taken drugs and consumed alcohol during the day and evening preceding the incident and assuming that the cab driver struck the defendant first, Dr. Kurth was of the opinion that the circumstances could have triggered the defendant’s explosive personality so that he would not have been able to distinguish right from wrong at the time the homicide occurred.
On cross-examination Dr. Kurth was presented with another hypothetical question based on the state’s theory of the case. This version assumed as a matter of fact that defendant had been drinking, that he told an acquaintance he was going to hit a cab driver on the head and then take the cab driver’s money, and the cab driver was later found dead with his pockets pulled out. Dr. Kurth was of the opinion that under those circumstances the defendant would probably have known the nature and quality of his acts and would have probably known right from wrong. The question of insanity was submitted to the jury who rejected the defense and found the defendant guilty of murder and robbery. Following his conviction the defendant appealed again to this court.
One of the points of error raised is that the trial judge took on the role of prosecutor in posing a certain question to Dr. Kurth after counsel had completed their examinations. Counsel for the defendant in his examination of Dr. Kurth questioned the doctor as to the significance of the 15 knife wounds in Gordon Moore’s body. Dr. Kurth stated this would indicate that the defendant was not rational at the time and would support the defense that the defendant was insane. In response to a question from the prosecutor Dr. Kurth indicated that this large number of stab wounds was an indication of overkill since the victim was obviously dead before the completion of the stabbing. After both counsel had stated that they had no further questions, the trial judge posed a single question to Dr. Kurth which the defendant claims was highly improper and prejudicial. The question was as follows:
“Doctor, assuming that a pathologist has testified that those, that no single wound was a deadly wound, would that alter your opinion?”
Dr. Kurth answered that it would change his opinion and that defendant probably intended to “stay with the situation until he had no witness”, thus indicating that the defendant knew exactly what he was doing at the time the stabbing took place. Dr. Kurth also stated that the extreme depth of the particular wounds might lead to a contrary conclusion, that is, that the defendant was-irrational.
As noted above the defendant contends that the trial court committed reversible error in posing the question to Dr. Kurth. We have stated on a number of occasions that the purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant and it is a part of the business of the trial judge to see that this end is attained, even though in accomplishing the full development of the truth it sometimes becomes necessary for him to examine and cross-examine the witnesses. (State v. Blake, 209 Kan. 196, 495 P. 2d 905; State v. Jones, 204 Kan. 719, 466 P. 2d 283; State v. Winchester, 166 Kan. 512, 203 P. 2d 229; State v. Miller, 127 Kan. 487, 274 Pac. 245; and State v. Keehn, 85 Kan. 765, 118 Pac. 851.) In recognizing the right of a trial judge to cross-examine witnesses we have always coupled such recognition with words of warning. In State v. Winchester, supra, we stated that where the judge deems it necessary to cross-examine witnesses, he must exercise great care to prevent giving the jury the impression that he is biased against the defendant and he must not forget the function of a judge and assume that of an advocate. The same rule applies with respect to the credibility of a witness and a judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony. This admonition was recently repeated in State v. Jones, supra. These admonitions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. The judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice — in many cases without warrant in fact. (State v. Blake, supra.)
Since the cross-examination of a witness by a trial judge is fraught with such dangerous consequences, if a trial judge sincerely believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts, the better practice is for the trial judge to discuss the matter with'counsel outside the presence of the jury and request counsel to pose the questions to the witness. Such a procedure will accomplish the full development of the truth without a direct participation by the trial judge in the examination of the witness and hence any question as to the judge’s bias may be avoided.
We find nothing in the record in this case to sustain defendant’s contention that the judge sought to assume the role of an advocate, nor does it support a contention that the judge created prejudice by spoken words, expression of face, or tone of voice. By a single question the trial judge directed Dr. Kurth’s attention to the prior uncontradicted testimony of the pathologist who performed the autopsy that the victim did not die from any one single wound but rather from loss of blood after all the wounds had been inflicted. The judge exercised caution in asking the question. He allowed both counsel to inquire further following his question. In addition he gave an instruction to the jury that he did not intend, by any of his actions or remarks, to suggest how he would resolve the case. Although as noted above it would have been better procedure for the trial judge to suggest to counsel that the new matter be developed by their questions, we cannot say under the circumstances that the trial judge abused his discretion or that his question directed to Dr. Kurth was reversible error.
The defendant also complains that the trial court erred in giving instruction No. 12 which explained to the jury the effect of a finding of not guilty by reason of insanity in language which paraphrased K.S.A. 22-3428. This instruction was given in conjunction with an instruction defining the defense of insanity. The defendant’s objection to the instruction was directed only to the requirement of a 30-day notice to the sheriff, district attorney, and district court prior to release or transfer of a person committed to the state security hospital following acquittal by reason of insanity. The defendant did not object to the balance of the instruction and in fact requested a similar instruction leaving out reference to the 30-day notice provision. Defendant claims the instruction as given caused the jury to speculate that, if it found him insane, he could be released after 30 days. An instruction similar to the one given here was upheld in State v. Hamilton, 216 Kan. 559, 534 P. 2d 226. We cannot say that the instruction as given was clearly erroneous or that defendant has shown that he was prejudiced in any way by the submission of the instruction to the jury.
Defendant also maintains that he was prejudiced by the giving of an instruction covering the subject of “temporary insanity” produced by involuntary intoxication. An instruction on the subject of voluntary intoxication was also given. The instruction complained of served to limit the jury’s consideration of voluntary intoxication. It is a correct statement of the law and we find no error. (State v. Harden, 206 Kan. 365, 480 P. 2d 53.)
In another point the defendant contends that the trial court erred in not giving an instruction on self-defense. Such instruction was not requested by the defendant and in fact the court gave an instruction specifically excluding self-defense to which there was no objection by defendant. A review of the evidentiary record yields no evidence upon which a self-defense instruction could be based. The defendant did not testify that he killed the driver in self-defense. He claimed only that he was insane as a result of drugs and alcohol when he killed the cab driver. We find no error in the failure of the trial court to instruct on self-defense. We have considered the other points raised on the appeal and find them without merit.
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The opinion of the court was delivered by
Schroeder, J.;
This is a class action brought by William J. Sterling, Helena Sterling and Robert E. Sterling (plaintiffs-appellees and cross-appellants) individually and on behalf of some 246 gas royalty owners, including those who do not reside in Kansas or have leases covering lands in Kansas or both, against their producer, The Superior Oil Company (defendant-appellant and cross-appellee), for recovery of interest on “suspense royalties.” The total amount of the suspense royalties held from May of 1960 to May of 1973 was slightly over $100,000, which Superior commingled with its other funds and used in its business operations. Except for the smaller size of class membership, the starting of withholding in May of 1960, the payout by Superior in May of 1973, and the judgment of the trial court on January 7, 1976, this case is identical in legal issues and factual situations to those presented in Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (No. 47, 917, decided July 11, 1977.) The same FPC Hugoton-Anadarko area and FPC Opinion No. 586 are involved.
As held in Shutts, (1) this action was properly tried as a class action even though involving nonresident plaintiffs, (2) the producer was liable for interest on a theory of unjust enrichment and contractual principles, and (3) the class members had not waived any claim for interest. However, the computation of the award of interest by the trial court should be modified to conform to the Shutts case which held:
“We therefore hold on equitable principles Phillips is required to pay its royalty owners herein seven percent (7%) per annum simple interest on suspense royalties from the date of receipt of suspense royalties by Phillips until October 1,1970 (the effective date of FPC Opinion No. 586), and eight percent (8%) simple interest per annum thereafter until the payout to the royalty owners on or about December 7, 1972. Applying the ‘United States Rule’ on partial payments, after the payout there was still an unpaid principal sum due equal to the total principal due plus accrued interest, less the payout. Assuming proper calculations, this amount, although principal, would equal the accrued interest on the date of the payout. From December 7, 1972, on until the date of judgment (July 29, 1976) equitable principles and Phillips’ contractual undertaking require Phillips to pay its royalty owners herein eight percent (8%) per annum simple interest on the unpaid principal sum (accrued interest on date of payout) plus the unpaid principal sum; and thereafter our post-judgment interest statute, K.S.A. 16-204, requires payment of eight percent (8%) per annum simple interest for the benefit of the royalty owners on the total amount of the judgment until paid.”
The judgment of the lower court is affirmed in part and modified in part, and the case is remanded for further proceedings consistent with the foregoing opinion. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a jury verdict which found Charles Eugene Marquez (defendant-appellant) guilty of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701).
The points on appeal challenge testimonial evidence and authenticated copies of two journal entries showing prior convictions of the appellant admitted pursuant to K.S.A. 60-455.
At approximately 12:41 a.m. on October 17, 1975, the window to the Guenther Jewelry Store at 824 Massachusetts Street in Lawrence, Kansas, was broken and several display boxes containing jewelry valued at $120 were taken. Police Officer Donald Love discovered an iron pipe with an orange object on the pipe lying on the sidewalk beneath the broken window. Further investigation by Police Officer Kenneth Coultis revealed two jewelry boxes at the intersection of an alley and a nearby arcade. A search of the alley revealed other jewelry and jewelry boxes on top of a loading dock at a point where they found the appellant underneath the loading dock. The appellant had no jewelry in his possession, but a pair of gloves with glass embedded in them was found underneath the loading dock. Police Officers Fred D’Ercole and Gary Sampson testified the appellant took the gloves off while under the loading dock or while backing from underneath it. No hat or cap was found. The two officers testified Mr. Marquez did not appear to be intoxicated, although one officer detected what he believed to be an odor of alcohol.
When apprehended the appellant said he was hiding in the alley from several people because he had been involved in a disturbance earlier in the evening at the Depot Tavern.
Jeffrey Dover testified that while he drove down Massachusetts Street he observed a man carrying a pipe with an orange end on it for at least one minute. Mr. Dover said the man was wearing a stocking cap, a jacket and a pair of brown jersey gloves. He described the man as short and husky built, with a big, crooked nose. Mr. Dover returned to Massachusetts Street and reported what he had seen earlier to an officer. Mr. Dover remembered the nose and posture of the man he had observed carrying the pipe. Detective Schmille testified Dover had been arrested a month or six weeks earlier in a theft case.
Paul Medlock, a passenger in the Dover automobile, also identified the appellant as the man carrying the pipe with the “red thing on the end of it.” Mr. Medlock, who had previously been convicted of the crime of attempted theft twice and forgery once, testified he observed the individual from two and one-half minutes to four minutes and remembered the defendant’s nose and the way he combed his hair that night. On November 4, 1975, both Mr. Dover and Mr. Medlock identified the appellant at a lineup conducted at the Shawnee County Sheriff’s Office in Topeka, Kansas.
Detective Wayne Schmille testified he was investigating at the scene when officers said they found someone named Marquez hiding in the alley. Detective Schmille pulled out a picture of the appellant and said, “Hey, is it this guy?” Detective Schmille testified that he had half-a-dozen pictures that he was carrying in relation to other cases.
At trial the appellant testified he drank four to six beers at the Depot Tavern at 10th and Massachusetts, left and drank a half-pint of rum and then returned to the Depot Tavern for another beer where he spoke to two acquaintances. The appellant testified as he was drinking a black man and an Indian offered to sell him some marihuana. The appellant told them he had no use for marihuana and would not like to purchase any. The black man took offense and started coming toward the appellant. The appellant then went outside and started running. He glanced back and didn’t notice anybody following him. Nevertheless, he turned into the alley, spotted the loading dock and got underneath it. He said because he was intoxicated he passed out. The next thing the appellant remembered was a police officer waking him with a light.
The appellant testified he had used marihuana when he was younger and he had been “picked up” for possession of marihuana two weeks prior to October 17, 1975. He further said he lived approximately 100 yards from the loading dock where he was found.
The county attorney for Seward County, Tom Smith, testified concerning evidence which showed the appellant had pled guilty to charges in 1972 of night-time burglary and theft at a meat market, and to charges in 1973 of night-time burglary of a tavern, both committed in the downtown business area of Liberal, Kansas. In both cases a tire iron or some tool was used to break into the business premises, neither of which had a burglar alarm. The trial court found the preparation for the incidents was very similar; that having a weapon (tool) of some sort and forcing the door open or the roof open might be similar. The court did not think the evidence went to identity. The court thought the evidence went to intent, preparation, plan and probably absence of mistake, and if it were offered for those purposes the court would admit the evidence. The evidence was offered accordingly and admitted. The trial court instructed the jury that evidence of the prior crimes could be considered solely for the purpose of proving the defendant’s intent, preparation and plan.
On January 7,1976, the jury found the defendant guilty on both counts. A motion for a new trial was denied, and appeal has been duly perfected.
The appellant contends the testimony and authenticated copies of journal entries showing the prior crimes were inadmissible under K.S.A. 60-455. The appellant argues the evidence does not establish intent, preparation or plan.
Kansas policy on admitting evidence of prior crimes and civil wrongs is codified in K.S.A. 60-455 which reads:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
This rule limiting the admission of evidence of other crimes is to be strictly enforced. (State v. Donnelson, 219 Kan. 772, 549 P.2d 964; State v. Bly, 215 Kan. 168, 523 P.2d 397; and State v. Anderson, 202 Kan. 52, 57, 446 P.2d 844.)
Admission of evidence of other crimes under 60-455, supra, has been one of the most troublesome areas in the trial of a criminal case (State v. Cross, 216 Kan. 511, 517, 532 P.2d 1357) and has prompted much comment. (Comment, 12 Washburn L.J. Ill [1972]; M. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411 [1972]; and Comment, 14 Wash-burn L. J. 367 [1975].)
To justify a departure from the general rule of inadmissibility of other crimes evidence under 60-455, supra, the trial court should conduct a hearing in the absence of the jury to determine the probative value as to one or more of the eight elements set forth in the statute to which such evidence must be relevant. If a particular element, enumerated in the statute, is not an issue in the case, evidence of other crime to prove that particular element is irrelevant. (State v. Cross, supra, Syl. 6.)
Relevancy, although the primary test, is not the only test. The trial judge is under a duty to weigh the probative value of such evidence for the limited purpose for which it is offered against the risk of undue prejudice, in keeping with the philosophy expressed in this section of the statute and the fundamental rule of discretion. (State v. Cross, supra, Syl. 4.)
Here the trial court properly conducted a hearing outside the hearing of the jury to determine the admissibility of the prior convictions and properly considered the facts surrounding the prior convictions. The trial court concluded the evidence of other crimes was admissible to show intent, preparation and plan and so instructed the jury. The appellant challenges this finding. The state in its brief concedes that evidence of the accused’s prior convictions of burglary should not have been admitted in evidence to prove the elements of intent, preparation and plan because there was no substantial issue as to any of these elements.
We agree that these elements were not issues in the trial of the case.
The first exception under 60-455 mentioned by the trial court was intent. However, the felonious intent of the burglar is obvious from the breaking of the jewelry store window, from the theft of the jewelry and the flight of the burglar. Hence, evidence of other burglaries to prove intent should not have been admitted because this element was not really in dispute. (State v. Bly, supra at 176; State v. Watkins, 219 Kan. 81, 93, 547 P.2d 810; and State v. Howard, 220 Kan. 117, 120, 551 P.2d 835.) Cases where prior convictions have been properly admitted to prove intent include State v. Lohrbach, 217 Kan. 588, 538 P.2d 678; State v. Nading, 214 Kan. 249, 519 P.2d 714; State v. Myers, 215 Kan. 600, 527 P.2d 1053; and State v. Kress, 210 Kan. 522, 502 P.2d 827.
The second exception under 60-455, supra, mentioned by the trial court was preparation. Preparation for an offense consists in devising or arranging means or measures necessary for its commission. (Black’s Law Dictionary 1344 [4th ed. 1951].) Cases which have adopted this definition include State v. Judge, 81 S.D. 128, 131 N.W. 2d 573 (1964); State v. Gerald Davis, 108 N.H. 158, 229 A.2d 842 (1967); People v. Franquelin, 109 Cal. App. 2d 777, 241 P.2d 651 (1952); and State v. Quick, 199 S.C. 256, 19 S.E. 2d 101 (1942). Accordingly, a series of acts that very logically convinces the reasonable mind that the actor intended that prior activities culminate in the happening of the crime in issue may have strong probative value in showing preparation. (See M. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, supra at 422.)
The burglaries in Liberal, Kansas, cannot be said to be in preparation for the burglary and theft in Lawrence.
The third exception under 60-455 mentioned by the trial court was plan. It is easy to confuse the requirements underlying the plan and identity exceptions of 60-455. Plan refers to an antecedent mental condition that points to the doing of the offense or offenses planned. The purpose in showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it was committed. Strictly speaking, the exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan or scheme directed toward the doing of the offense charged.
Something more than doing similar acts is required to have probative value in showing plan, because the object is not merely to negative an innocent intent or show identical offenses, but to prove the existence of a definite project directed toward the doing of the offense charged. It is not necessary to prove that all transactions in question were precisely identical, since a well-knit scheme or plan might involve the commission of several distinct and dissimilar offenses and still have probative value to show the existence of a common scheme or plan. However, some offenses which are part of a common scheme or plan may exhibit identical or strikingly similar features. In admitting evidence of prior crimes or civil wrongs to show plan, the conclusion that the accused did the act in question is inferred basically from a structured design, not from the common features. (See M. Slough, Other Crimes, Other Vices: An Evidentiary Dilemma, supra at 419-420; and 22A C.J.S., Criminal Law, Sec. 688, p. 782.)
An example of the plan exception to 60-455 is found in State v. Fabian, 204 Kan. 237, 461 P.2d 799, where the appellant and two accomplices used a preconceived “creeping” plan to steal from four stores. Similarly in State v. Wasinger, 220 Kan. 599, 556 P.2d 189, in what appeared to be a preconceived plan, the defendant served as a lookout while his partner attempted to pry open a front door of a business building with a screwdriver as the defendant had done in the past.
Although the trial court did not instruct on absence of mistake, it initially relied on this exception to admit the evidence of prior crimes. Here there is no evidence the appellant committed the crime while operating under a mistake.
For the reasons stated the state’s admission of error is sound. Counsel for the state argues, however, the error admitting prior conviction evidence on the basis of intent, preparation and plan was merely technical error, since the prior convictions might have been admitted to prove identity.
In our opinion the trial court’s error is more than technical. Under the state’s theory it would be possible to give a “shotgun” 60-455 instruction, or pick any one of the statutory exceptions and argue on appeal that evidence of prior crimes and civil wrongs was admissible under another statutory exception. This we can not accept. (State v. Donnelson, supra; State v. Bly, supra at 176; State v. Seely, 212 Kan. 195, 205, 510 P.2d 115; and State v. Masqua, 210 Kan. 419, 423, 502 P.2d 728, cert. denied 411 U.S. 951, 36 L.Ed. 2d 413, 93 S. Ct. 1939.)
Subject to the discretion of the trial court, evidence of the prior convictions could have been received to prove identity. Identifying the appellant here with the burglary and theft committed was the only material issue at the trial. In State v. Howard, supra, evidence of the defendant’s prior convictions for burglary and theft was admitted to prove similarity of pattern as relevant to establish identity. There a factual similarity of the offenses was shown in five respects. First, both convictions were for burglary. Second, in both cases a television set was involved. Third, both burglaries were within five blocks of defendant’s house. Fourth, entry into the residences was gained by forcing open a door. Finally, in both cases no one was home during the burglaries. (See also State v. Carter, 220 Kan. 16, 551 P.2d 821; and State v. Wasinger, supra.)
Here the similarity in the two burglaries in the city of Liberal and the jewelry store burglary can be established in four respects. First, all three burglaries took place during the late-evening, early-morning hours. Second, all three burglaries were directed toward a business establishment as opposed to a residence. Third, in all three burglaries entry was forced by the use of a long metal tool. Finally, in all cases the burglary was directed at a business establishment after all personnel had vacated the building.
It must be admitted, as the appellant argues, the jewelry store burglary was not a leisurely burglary as were the Liberal burglaries. However, the burglar alarm which quickly drew witnesses and police to the scene of the Lawrence jewelry store burglary committed on the main street tends to explain that difference. The appellant also argues that burglaries at night directed toward business establishments using tools to force entry are common and cannot be used to identify the appellant as the guilty person. While these common features standing in isolation have limited probative value, they are but a few of the common features to be considered with all others in determining whether the prior offense or offenses are similar to the offense charged.
Since the trial court erred in admitting the evidence and instructing as it did, we must examine the record to see if this was harmless or prejudicial error. Error in the admission of evidence of prior crimes or civil wrongs is not reversible error unless it affects the substantial rights of the defendant. (State v. Bly, supra at 178; State v. Fennell, 218 Kan. 170, 542 P.2d 686; and State v. Yates, 220 Kan. 635, 556 P.2d 176.)
Here the circumstantial evidence alone, other than the evidence of prior crimes, pointed the finger of guilt directly to the appellant. Police officers found a trail of stolen jewelry leading to the loading dock where the appellant was hiding, but not beyond. Two officers observed the appellant wearing gloves with glass embedded in them which the appellant removed while under the loading dock or while backing out.
The “alibi” offered by the appellant does not exonerate him in any respect. The appellant, who had used marihuana when he was younger and had been picked up for possession of marihuana two weeks earlier, claimed he almost got into a fight when someone offered him marihuana. He ran from them, but didn’t notice anyone following him. Nevertheless, he turned into a dark alley, spotted the loading dock which was approximately 100 yards from the safety of his own home, and got underneath the loading dock where he claims he hid and fell asleep. Neither of the two acquaintances he claimed to have seen in the Depot Tavern was called to testify.
The appellant was identified by two witnesses who said he was carrying a pipe with a red object on the end of it similar to the pipe found in front of the broken window after the burglary at the jewelry store. Both witnesses remembered the appellant had a distinctive nose. Both witnesses identified the appellant at a lineup which is not challenged on appeal. With the exception of a hat, which was never found, the witnesses described clothing similar to that worn by the appellant at the time of his arrest. The fact that a hat was not found is not surprising, since the police were initially following the trail of jewelry boxes. It was later that they received a description of the appellant and what he was wearing. Although the credibility of these witnesses was attacked, the jury was aware of it. No evidence of ill will against the defendant by these witnesses appears in the record.
The ability of Detective Schmille to immediately produce a picture of the appellant when investigating the burglary and theft is unusual, but nothing more. He testified he usually had half-a- dozen pictures on him. Although there is some evidence Mr. Dover may have seen the appellant’s picture when Detective Schmille showed it to other police officers, no question concerning the subsequent identification of the appellant is raised on appeal.
The deliberation of the jury for two and one-half hours is not sufficient in our opinion to establish prejudicial error.
Taken as a whole, the erroneous admission of the prior burglary convictions from Liberal, Kansas, to show intent, preparation or plan did not prejudice the substantial rights of the appellant. State v. Donnelson, supra, upon which the appellant places heavy reliance, involves the admission of evidence of prior robberies without attempting to establish the facts, circumstances or nature of either of the prior robbery offenses, a practice condemned since State v. King, 111 Kan. 140, 206 Pac. 883, 22 A.L.R. 1006. Moreover, the record there disclosed the trial court submitted a shotgun type of 60-455 instruction, a practice repeatedly disapproved. The shadow cast on the victim’s identification at a lineup, alleged on appeal to be suggestive, further contributed to the court’s inability to find overwhelming evidence of guilt. Where the erroneous admission of prior convictions occurs and prejudices the substantial rights of a criminal defendant, this court has been quick to grant relief. (State v. Cross, supra; State v. Donnelson, supra; and State v. Clingerman, 213 Kan. 525, 516 P.2d 1022.) However, such is not the case here.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether real estate devised by the testator in his will was equitably converted in the testator’s lifetime and passed under the provisions of his will as personal property.
Wallace P. Hills, a resident of Morris County, Kansas, was married to Edna I. Hills. No children were born to this marriage or adopted. On the date of Mr. Hills’ marriage he owned, in his name alone, the following described real estate:
“The Northeast Quarter (NE %) of Section Fifteen (15), Township Sixteen (16) South, Range Four (4), East of the 6th P.M., Dickinson County, Kansas.”
This quarter section of land (hereafter referred to as the Dickinson County land) was all the real estate owned by Wallace P. Hills during his life which is material to this litigation.
On September 29, 1967, Mr. Hills executed his last will and testament to which Edna I. Hills consented. In addition to directing the payment of his just debts and the appointment of Marlin Brown as executor, the will provided:
“SECOND: I give and bequeath all of the rest and residue of any personal property owned by me as assets of my estate, unto my wife, Edna I. Hills, to her own absolutely.
“THIRD: I give and devise all of my real estate to my wife, Edna I. Hills, for and during her natural life, and if it shall become necessary for her support in the manner to which she is accustomed during my lifetime, she shall have full power to sell and convert the same or any part thereof into cash and to consume the proceeds of such sales. Upon the death of my said wife, what remains of said real estate or said proceeds, if she shall have exercised said power of conversion as aforesaid, shall vest in my nephew, Lawrence C. Veerhusen, in fee simply, absolutely, subject only and providing that he first pay the sum of $1000.00 to each of my three nieces, Ethel Mae, Dorothy, and Viola, all being a daughter of my deceased sister, Mae M. Veerhusen. Title to said real estate or said proceeds shall not pass to my said nephew until full payment is made to each niece as herein provided. Should my nephew fail and refuse to make such payment to each niece within ninety days from the date of my death, then and upon that event, I give, bequeath and devise said real estate or said proceeds according [to] the Kansas law of descent and distribution had I been single and not married at the date of my death.”
Briefly stated the decedent gave all his personal property to his wife by paragraph SECOND, and all his real estate to his wife for life with a power of disposition in paragraph THIRD.
Under Kansas law Wallace P. Hills’ heirs, had he been single and not married at the date of his death, would be his sister, Ethel P. Fritzler, and the children of his previously deceased sister, Mae M. Veerhusen. Those children are Lawrence C. Veerhusen, Ethel Mae Henning, Dorothy Ring and Viola Furman.
On September 26, 1969, almost two years after the will was executed, Wallace P. Hills and Edna I. Hills entered into a contract of sale for the Dickinson County land with Roy C. Diepenbrock and Emmy Diepenbrock. That agreement provided:
“AGREEMENT
“THIS AGREEMENT, made and entered into this 26th day of September, 1969, by and between WALLACE P. HILLS and EDNA TATLOW HILLS, his wife, hereinafter referred to as parties of the FIRST PART; and ROY C. DIEPENBROCK and EMMY DIEPENBROCK, husband and wife, hereinafter referred to as parties of the SECOND PART,
“WITNESSETH: That,
“IN CONSIDERATION of the stipulations herein contained and the payments to be made by the SECOND PARTIES as hereinafter specified, the FIRST PARTIES do by these presents agree to sell, and SECOND PARTIES do hereby agree to purchase, the following described real estate located in Dickinson County, Kansas, to wit:
“The Northeast Quarter (NE 14) of Section Fifteen (15), Township Sixteen (16S) South, Range Four (4E), East of the 6th P.M. together with all and singular the tenements, hereditaments and appurtenances hereto of said real estate, upon the following terms and conditions, to wit:
“1) The consideration of this agreement shall be the sum of $40,000.00, to be paid in the manner following: The sum of $10,000.00 to be paid in cash upon the execution of this agreement as earnest money to the First National Bank, Herington, Kansas, escrow agent, to be immediately delivered by said escrow agent to FIRST PARTIES, and the balance of the principal remaining in the sum of $30,000.00, with interest thereon at the rate of 7% per annum upon any remaining unpaid principal balance, said interest to be computed from December 1, 1969, and payable annually thereafter, said principal to be due and payable as follows: $1,000.00 to be due and payable on or before December 1st, 1970, and $1,000.00 thereof to be due and payable on or before December 1st of each of the years following, until all principal and interest thereon has been paid in full as hereinbefore provided. It is understood and agreed by and between the parties hereto that interest is to be charged only upon any unpaid principal balance. It is stipulated and agreed that SECOND PARTIES are hereby given the right and privilege of prepayment of any principal amount at the time of any principal payment date, and may at any principal payment date pay the full amount of said principal due and owed upon and by virtue of this agreement, together with any and all interest due thereon, and upon full payment thereof, this agreement shall be accelerated and completed in full.
“2) Possession of said premises is to be given to SECOND PARTIES as soon as the cropland is released by the present tenant thereof, reserving unto sellers possession and use of the house and garage until November 1, 1969.
“3) Parties of the first part are to pay the taxes for the year 1969, and prior years, and parties of the second part are to pay all assessments and taxes subsequent to the year 1969, and during the term of this agreement.
“4) Parties of the first part agree to furnish parties of the second part a good and merchantable abstract of title and good and sufficient warranty deed, conveying said property to them, free and clear of all encumbrances, subject to all easements, restrictions and leases of record, and will forthwith execute the warranty deed and place it, along with an executed copy of this agreement, in escrow with the First National Bank, Herington, Kansas, escrow agent. First parties will forthwith have the abstract of title brought up to date by a licensed and bonded abstractor and present the same to the attorney designated by the second parties. After the second partys’ attorney has examined, inspected, passed upon and approved the abstract of title and the deed conveying said real estate, said abstract of title shall be placed, along with the deed of conveyance and the contract, in escrow, as hereinbefore specified, to be held by said escrow agent until parties of the second part have made all payments as hereinbefore described, to the parties of the first part, and performed all of the conditions and covenants as hereinbefore set out and in the manner herein set forth, at which time and upon such full payment and compliance, said deed and abstract of title shall be delivered by the escrow agent to parties of the second part, their heirs, executors, administrators or assigns. It is agreed that all payments made hereunder shall be immediately paid by the escrow agent, to FIRST PARTIES.
“5) SECOND PARTIES agree as and for part of the consideration of this agreement that they will properly pay for all taxes and assessments assessed against the said property as hereinbefore
“Barn Garage, South barn & the (illegible) Covered Bldg.
(Change Okd by E. Hills, Emmy Diepenbrock, W. P. Hills,
Roy Diepenbrock)
specified, and will fully insure all buildings for fire, wind-storm and other related coverage and deposit the policy showing such coverage, with the escrow agent. Further, in the event that second parties shall fail to perform any or all of the conditions and obligations as set forth in the preceding sentence, FIRST PARTIES may, at their option, make such payments for taxes, assessments, repairs and insurance, and add the cost thereof to the balance of the principal due and owing upon this agreement.
“6) SECOND PARTIES further agree that they will maintain these premises in a serviceable and sightly condition, and to keep the same up to the present grade of condition and repair, and not to destroy any equipment or improvements upon said premises, and to keep the premises and equipment thereon as in fully as good condition as the same exists as of this date, reasonable wear and tear and the damages of the elements excepted.
“7) It is agreed by and between the parties hereto that this agreement is not to be assigned until written permission is first obtained, each from the other, consenting to such assignment, the assignee to be defined and designated therein.
“8) The destruction or partial destruction of any of the buildings which are insured shall not alter the terms or conditions of this agreement, but all insurance proceeds received shall be the property of SECOND PARTIES and shall be used solely for the replacement of the buildings and the destruction thereon or to be paid upon the principal owed FIRST PARTIES herein.
“9) Time is of the essence of this agreement and in the event that SECOND PARTIES shall fail to faithfully keep, fulfill and perform any of the terms, conditions, and obligations herein contained, FIRST PARTIES shall have the right, at their option, and after 90 days default thereof, to declare this agreement null and void and of no force and effect and shall further have the right to re-enter upon and take possession of the said premises without formal notice of any kind to SECOND PARTIES. In such event FIRST PARTIES shall further have the right to retain all moneys paid to them by SECOND PARTIES as liquidated damages, it being hereby agreed by the parties hereto that such amount shall equal the reasonable rental value of the premises, and considered as rent for the use and occupancy of the premises while in possession of SECOND PARTIES. Further, until such time as SECOND PARTIES have fully paid the consideration set out herein, upon the interest thereon, they shall be considered as a tenant in possession under a contract to purchase.
“10) It is mutually agreed by and between the parties hereto that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators, or assigns of the respective parties hereto.”
Following the execution of this agreement, an abstract of title was delivered to the Diepenbrocks and a warranty deed was delivered by the Hills to the escrow agent as required by the fourth paragraph of the agreement. However, the contract of sale and deed were not recorded in the courthouse. Mr. Hills paid the real estate taxes on the property in question for the year 1969, and he received all of the rentals for 1969, as provided by the third paragraph of the agreement. In short, Mr. Hills did everything required of him under the agreement.
The Diepenbrocks made the $10,000 earnest money payment to the escrow agent as required by the agreement. The Diepenbrocks’ attorney passed upon and approved the title and deed on November 11, 1969, as required by the fourth paragraph. An insurance policy was placed in escrow as required by the fifth paragraph. At no time material herein were the Diepenbrocks in default under the terms of the agreement.
Mr. Hills was 77 years old when he executed the purchase agreement. His apparent hopes for a long and fruitful life, as reflected by the provisions in the agreement calling for payments of $1,000 from the Diepenbrocks for 30 years, proved to be unfounded. On November 29, 1969, one month after executing the agreement on the Dickinson County land, Mr. Hills died. He was survived by his wife and the heirs heretofore named. On the date of his death, $30,000 of the purchase price under the agreement plus interest accruing over the life of the contract remained to be paid.
On petition of the executor, dated December 29, 1969, the will of Wallace P. Hills, after a hearing, was admitted to probate on January 6, 1970. The widow consented and letters testamentary were issued to Marlin Rrown, the named executor. The prepared inventory filed in the estate by the executor classified the balance due on the purchase agreement as an item of personal property in the estate of the decedent. It was described as “PROCEEDS FROM SALE OF REAL ESTATE (installment purchase agreement) $26,400.”
Evidence later introduced in the district court disclosed that Lawrence Veerhusen was informed of the executor’s decision to inventory the proceeds from the sale of the Dickinson County land as personalty 70 days after Mr. Hills’ death.
On October 5, 1970, more than ten months after Mr. Hills’ death, Lawrence C. Veerhusen filed a petition for the allowance of a demand, claiming the estate of Mr. Hills was indebted to him in the amount of $30,000. On February 9, 1971, by petition he first challenged the listing of the proceeds from the sale of the Dickinson County land as personal property in the inventory of the estate. The issue was also raised when the petition for final settlement was filed by the executor. The other heirs of Mr. Hills, heretofore named, intervened in the proceedings and argued, the same as Lawrence, that the unpaid balance upon the contract for sale of the Dickinson County land constituted real property.
On March 3, 1971, and again later, Lawrence C. Veerhusen tendered the sum of $3,000 in court to fulfill the condition stated in paragraph THIRD of the will of the decedent.
By reason of the foregoing, Lawrence C. Veerhusen claimed tender within 90 days of the filing of his petition was sufficient, and that the property in question should be designated as real property and fall within the purview of paragraph THIRD in the will of Wallace P. Hills, deceased.
The heirs of Wallace P. Hills, heretofore named, argued that the unpaid balance due on the contract constituted real estate, should be inventoried as such, and pass under paragraph THIRD of the decedent’s will. They argued Lawrence C. Veerhusen had failed to meet the conditions precedent to his obtaining the remainder, whereupon the heirs of the decedent, had the decedent been single at the time of his death, would take pursuant to a gift over in paragraph THIRD of the decedent’s will.
Edna I. Hills, the decedent’s widow, among other things, defended on the theory that the action of the executor in classifying the unpaid balance due under the contract for the sale of the Dickinson County land as personal property in the inventory of the estate was proper. If so, she as a residuary beneficiary would take the property as “her own absolutely” under paragraph SECOND of the will of the decedent.
After prior hearings in the probate court, the matter was eventually transferred to the district court of Morris County. A pretrial hearing was held and stipulations of fact were entered into by the parties. (These facts have heretofore been recited.)
On April 23,1975, the district court, after hearing the matter de novo, issued a memorandum decision making findings and conclusions which in pertinent part read:
“16. The court finds that legal title to said real estate was in Wallace P. Hills at the time of his death and at the time of the filing of his will for probate.
“17. The court finds that the contract of sale specifically provides that the purchasers would be tenants until the completion of said contract. See paragraph 15 above.
“18. The court finds that said property, the subject of the contract of sale of real estate, should be designated as real property, and would therefore fall within the purview of paragraph numbered third in the will of Wallace P. Hills.
“19. The court finds that Lawrence C. Veerhusen, within 90 days from the date of the filing of his petition shown in paragraph 7 above, tendered into court the $3,000 for payment as provided for in the third paragraph of the will of Wallace P. Hills.
“20. The court finds that said tender is sufficient under the law, since its required payment was contingent upon a judicial determination, and that said judicial determination was made by the Probate Court on the 30th day of March, 1971.
“21. The court, based upon these findings of fact and conclusions of law, orders Lawrence C. Veerhusen to pay into the District Court of Morris County, Kansas, the sum of $3,000, to be distributed under the third paragraph of the will of Wallace P. Hills.
“22. The court finds that the money held in escrow as payment under the contract of sale, the same being both principal and interest, should be paid to Mrs. Edna I. Hills upon a showing by Edna I. Hills that said monies are necessary for her support in a manner to which she was accustomed during her husband’s lifetime, all as provided for under the third paragraph of the will of Wallace P. Hills.”
Ethel P. Fritzler appealed from the decision of the trial court holding the $3,000 tender by Lawrence C. Veerhusen to be sufficient under law. (This appeal includes Viola Furman, Dorothy Ring and Ethel Mae Henning as parties to the appeal.)
Edna I. Hills cross-appealed from findings No. 17 and No. 18 in the trial court’s memorandum decision.
The numerous points asserted by the parties to this appeal, which are material to our disposition of the case, will be incorporated into the general discussion of the questions considered in the opinion.
The trial court considered two provisions in the agreement for the sale of the Dickinson County land material in distinguishing the purchase agreement from an ordinary contract for the sale of real estate, where a mortgage is given as security for the balance of the purchase price due. These provisions are: (a) “Time is of the essence of this agreement”; and (b) the buyers shall be considered as tenants in possession under a contract of purchase until such time as they have fully paid the consideration. The finding of the trial court that the deed was placed in escrow and not recorded, thus showing record title in the name of the decedent, is immaterial. In Gault v. Hurd, 103 Kan. 51, 172 Pac. 1011, this court said:
“. . . When the deed was delivered to the bank on [date] there was in legal effect a delivery of it to the grantee, subject only to the subsequent condition of final payment. . . .” (p. 53.)
For reasons hereafter assigned we find the Dickinson County land was equitably converted into personal property and passes to Edna I. Hills under paragraph SECOND of the will of Wallace P. Hills, deceased.
A general definition of equitable conversion is given in 27 Am. Jur. 2d, Equitable Conversion, Sec. 1, p. 483. It reads:
“Equitable conversion is that constructive alteration in the nature or character of property whereby, in equity, real estate is for certain purposes considered as personalty, or whereby personalty, for similar considerations, is regarded as real estate, and in either instance, it is deemed to be transmissible and descendible in its converted form. . . .”
The general rule here applicable is stated in 77 Am. Jur. 2d, Vendor and Purchaser, Sec. 320, pp. 481-482, as follows:
“The equitable principle that the interest of the vendor under an executory land contract is to be regarded as personalty has been frequently applied in the distribution of a deceased vendor’s estate; accordingly, it is held that the vendor’s interest in the land which he has contracted to sell passes to his personal representative as personalty, together with the right to the unpaid purchase money and securities therefor. . . .”
For discussions on equitable conversion in Kansas cases see In re Estate of Elliott, 174 Kan. 252, 255 P. 2d 645, and Schneider v. Schneider, 135 Kan. 734, 12 P. 2d 834.
Prior Kansas cases on the subject show a clear trend to follow the general rule of law and apply equitable conversion. In Gilmore v. Gilmore, 60 Kan. 606, 57 Pac. 505, an agreement to sell 160 acres of land for the sum of $5,250 was signed. The sellers executed a deed and the purchasers executed the notes and mortgages provided in the agreement. All were deposited in escrow. A $500 cash down payment was made, and the purchasers went into posession. Following the death of E. Gilmore, one of the sellers, the court announced the following general rule:
. . ‘A contract for the sale of real estate works an equitable conversion of the land into personalty from the time when it was made, and the purchase-money becomes, thereupon, a part of the vendor’s personal estate, and, as such, distributable, upon his death, to his widow and next-of-kin.’ . . (pp. 609-610.)
In Pickens v. Campbell, 98 Kan. 518, 159 Pac. 21, and 104 Kan. 425, 179 Pac. 343, the court noted the general rule above mentioned. There, however, title was withheld; performance by the vendee at the time stipulated was a condition precedent to the acquisition of title; default entailed forfeiture of payments already made, and right of possession; the vendor was then at liberty to reenter or to invoke the remedy of ejectment; and insertion of the provision, “Time is of the essence of this agreement,” would have been superfluous. Accordingly, the land covered by the contract was treated as real estate.
In re Estate of Taylor, 185 Kan. 523, 345 P. 2d 1028, followed the general rule of equitable conversion. There Margaret Taylor entered into what was titled an “option agreement.” The sale price under the option agreement was $4,065.45, approximately $1,500.00 of which had been paid at the time Mrs. Taylor died. The court held this option agreement was in fact an executory contract of sale and the seller’s interest in the land passed to the personal representative as personalty.
In re Estate of Snyder, 199 Kan. 487, 430 P. 2d 212, deals with an ademption of a specific devise of real estate sold under an agreement during the testator’s lifetime. Justice Kaul thoroughly examined the law on ademption of specific devises and similar cases in which real estate, under an executory contract of sale, was held to have been converted into personalty. The court found:
. . [A] consistent attitude in this jurisdiction from which the conclusion may be drawn that where a contract of sale provides for the execution and deposit of a deed in escrow, a transfer of possession, a substantial down payment, and where time is not made of essence, the interest of vendor is converted from realty to personalty, as of his death, and the proceeds distributed accordingly. While all of the elements are not to be found in all of the cases cited, we find those which we have mentioned to be of persuasive significance and the most frequently considered.” (pp. 498-499.)
In the Snyder case, more than $13,500 of a $63,000 purchase price had been paid prior to the seller’s death, the deed, notes and mortgages to the property were executed and deposited in escrow, the purchasers had long been in possession at the time of the seller’s death, and there was a substantial grace period of one year before forfeiture, thereby precluding any inference that time was of the essence.
Here, as previously mentioned, a 25% down payment had been made. This compares favorably to the approximately 21% down payment in Snyder, and is far greater than the down payments in Gilmore v. Gilmore, supra (10.5%), and In re Estate of Taylor, supra (13.55%).
Some of the parties herein contend the Snyder case is distinguishable because there the contract was drafted to extend a maximum of six and one-half years and here the contract could conceivably run for 30 years. We do not deem this to be significant in the instant case. The purchasers here are given “the right and privilege of prepayment of any principal amount at the time of any principal payment date.”
The parties stipulated the deed had been executed and deposited with the escrow agent prior to Mr. Hills’ death. A transfer of possession subject to the cropland rights of the prior tenant had been made prior to Mr. Hills’ death. Thus, three of the most important factors found in the Snyder case are found here. (See J. Logan, Survey of Kansas Law: Estate Planning and Future Interests, 17 Kan. L. Rev. 455, 490 [1969].)
Contrary to the facts in the Snyder case the purchase agreement here expressly stated, “Time is of the essence in this agreement.” This provision is consistent with normal installment land contracts. (N. Hines, Forfeiture of Installment Land Contracts, 12 Kan. L. Rev. 475, 476 [1964].) However, we regard this distinction on the facts here presented as insufficient to take the instant case out of the rules announced in the Snyder case. Here, the “time is of the essence” provision regarding forfeiture is watered down and made applicable only in the event of the purchaser’s non-payment after a 90 day grace period, and then only at the option of the sellers.
Although not expressly stated, the court found time was of the essence in a contract in Pickens v. Campbell, 104 Kan. 425, 179 Pac. 343. The court there gave considerable attention to the fact that the seller had not executed deeds to land sold and did not place them in escrow for delivery on payment of all of the purchase price. The contract provided for immediate forfeiture of all sums paid upon a single default in payment, with no grace period allowed. The court found time was of the essence of the contract because title was withheld by the seller and could be obtained only upon performance by the buyer at the exact time stipulated.
The sellers in Russell v. Ferrell, 181 Kan. 259, 311 P. 2d 347, were trying to assert that time was of the essence in a contract for the sale of land where the contract did not so state, but the court held time was not of the essence because the circumstances surrounding the sale did not warrant such an inference. It further noted that while the opinion in Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923, contains a .statement that forfeiture provisions in a contract make time of the essence, this is not necessarily so, particularly where the seller has the option of declaring a forfeiture.
Here the forfeiture provisions are inconsistent with the recital in the purchase contract that “time is of the essence.”
The appellant Fritzler and the appellee Veerhusen emphasize language in the purchase contract contemplated a future sale by the tense of the verb used, “to sell,” and the language which recites that the purchasers would be considered as tenants in possession under a contract to purchase until all of the purchase price was paid.
The interpretation of these provisions in isolation cannot be determinative of the interpretation of the purchase contract when it is considered as a whole under all of the facts and circumstances here presented. The question confronting the court on this point was answered in the case of In re Estate of Snyder, supra, where the court said:
. . [T]he issue to be resolved rests, not so much on whether or not the contract is to be classified as an option, one for sale in the future or one for present sale, but rather on the proposition whether the provisions of the contract and the performance had in connection therewith, prior to the vendor’s death, effect such an alteration or substantial change in vendor’s interest as to convert it from one of realty to personalty.” (p. 499.)
In fact, the purchasers were more than tenants. The first paragraph of the purchase agreement indicated the vendors agreed to sell the Dickinson County land. The purchasers had paid one- fourth (1A) of the agreed purchase price prior to taking any possession. They had possession of the land subject to the rights of the existing tenant. A deed had been executed and placed in escrow beyond the control of the sellers. In this respect the case may be compared to In re Estate of Taylor, supra, where the so-called “option agreement” was held in fact to be an executory contract of sale.
The record clearly shows that the only obligation stipulated in the purchase contract remaining to be performed by either party at the date of the death of Wallace P. Hills was the obligation of the purchasers to pay the balance of the purchase price, and the purchasers were not then, nor have they ever been, in default on that obligation.
The only interest of Wallace P. Hills on the date of his death in the Dickinson County land sold under the purchase contract was the right to receive payment of the balance of the purchase price when due. The interest of Wallace P. Hills in the Dickinson County land sold was so altered by the date of his death that it became a personal property interest in his estate. Any rights in the real estate retained by him were in the nature of security interests only, and not real property rights.
Overall the factors asserted to uphold the decision of the trial court do not change the rule announced in the Snyder case.
Because we hold the proceeds from the sale of the Dickinson County land under the purchase agreement passed as personalty under the SECOND paragraph of the decedent’s will, it is unnecessary to examine the many arguments involving the passing of real estate under the THIRD paragraph of the decedent’s will. Our recitation of the facts herein should not be construed as deciding any issues regarding paragraph THIRD of the decedent’s will.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a remainderman against the administratrix of a life tenant to recover the proceeds from the sale of wheat which were payable as crop rent on certain farmland. The plaintiff-appellant is Laurence Finley. The defendant-appellee is Ethel McClure, administratrix of the estate of D. Jessie F. Riley, deceased.
The case was submitted to the district court on an agreed statement of facts which essentially is as follows: Prior to her death on September 24, 1973, Jessie Riley was the owner of a life estate in certain farmland located in Wichita county, Kansas. The plaintiff Laurence Finley owned the remainder interest in this farmland. In 1973 the life tenant Riley leased the farmland for agricultural purposes to Wayne Marcy and Arthur McCowan. Under the terms of the lease the lessees, Marcy and McCowan, were required to pay to Jessie Riley as rent one-third of the grain harvested by the lessees. Two weeks before Riley’s death the lessees planted wheat on the property. After the death of Riley the crop was harvested by the tenants and deposited in an elevator under the names of Marcy and McCowan and the plaintiff Finley. Later by order of the probate court and without notice to the remainderman Finley, the wheat was sold and the proceeds of one-third of the wheat were paid to the defendant McClure as administratrix of the estate of the life tenant Jessie Riley. Finley objected to the final settlement of the Riley estate, claiming that he was entitled to the proceeds from the sale of the wheat then in the hands of the administratrix. By agreement the controversy was certified to the district court. There the issue to be determined was stated to be as follows: Whether the rent share of the wheat was owned by the life tenant Jessie Riley and now by her estate, or is owned by the remainderman, Laurence C. Finley, or should be apportioned between the life tenant’s estate and the remainderman. The district court awarded the entire proceeds from the rent share of the wheat to Ethel McClure, as administratrix of the estate of the life tenant Riley. The remainderman Finley filed a timely appeal to this court.
We have considered the points raised by the defendant-appellee challenging the jurisdiction of the court and find them to be without merit. Hence we will proceed directly to the basic issue presented on appeal: “Did the trial court err in granting to the life tenant’s estate the entire proceeds from the sale of the one-third rent share of the wheat and in failing to apportion the proceeds between the estate of the life tenant and the remainderman?” The controversy must be determined on the basis of the doctrine of emblements which comes into play when a life tenant of farmland dies before certain annual crops have been harvested. “Emblements” are corn, wheat, rye, potatoes, garden vegetables, and other crops which are produced annually, not spontaneously, but by labor and industry. The doctrine of emblements is of common law origin and was developed in reference to the ownership of such crops in the event of termination of the estate or tenancy of the person who planted them. Under the common law, if the life tenant sows a crop and dies before its maturity, the crop goes to his personal representative under the doctrine of emblements. The doctrine or right of emblements entitles one who holds land for a period subject to termination at a time which he cannot ascertain beforehand to remove from the land, after the termination of his tenancy, the annual crops or emblements which he has planted thereon prior to termination, provided termination is brought about without any fault on his part or without any act of his intended to bring about such a result. The basis of the doctrine is the justice of assuring to the tenant compensation for his labor, and the desirability of encouraging husbandry as a matter of public policy. (Sprick v. Beach, 188 Kan. 296, 362 P.2d 24.)
The doctrine is applied in controversies between the estate of a life tenant and remainderman. If the life tenant himself sows the crop and dies before it is mature, it goes to his personal representative under the doctrine of emblements. If the life tenant sells the crop during his lifetime and the life tenant dies before the crop is harvested, the grantee is entitled to the crop under the doctrine of emblements. (Sprick v. Beach, supra.) The lessee of a life tenant is also protected by the doctrine and is entitled to the crops or his share thereof in the event his estate is terminated by the death of the life tenant during the term of the lease. If the life tenant dies between seedtime and harvest after having procured a “cropper” to operate the farm for a share of the crop, the life tenant is regarded as having had possession of the land and as having owned the growing crop or having an interest therein, and the crop passes to his estate, perhaps in conjunction with the cropper, the remainderman taking nothing. (Wyandt v. Merrill, 107 Kan. 661, 193 Pac. 366, reh. den. 108 Kan. 204, 194 Pac. 634, citing Vawter v. Frame, 48 Ind. App. 481.) In each of the above instances the estate of the life tenant is entitled to his share of the matured crop on the theory that the life tenant at the time of his death was the owner, or at least part owner, of the growing crop.
A difference of opinion arises in this area where the life tenant leases land, with the rent payable with a share of the crop to be raised on the land by the lessees, and the life tenant dies before the crop is harvested. In this situation there is a decided split of authority among the various jurisdictions as to whether the estate of the life tenant or the remainderman is entitled to the crop share rent. Some courts take the view that the life tenant’s estate is not entitled to the crop share rent but that it belongs to the remainderman, principally on the grounds that title to crops growing on leased land is in the lessee, not in the life tenant, that share rent is not due until the crop is harvested, and that the rent belongs to the owner of the fee at the time it becomes due. Other courts take the position that the life tenant, with respect to the landlord’s share of the growing crop, was the owner of an undivided interest in the crop growing on the land at the time of his death and that such interest was personal property, title to which passes to his estate and not the remainderman, and similarity, that the life tenant’s estate is entitled to the share rent, since such interest in the crop attaches after the crop commences to grow and is an inchoate interest which the life tenant may sell before maturity of the crop and which ripens into full ownership with such maturity. In a number of states the legislature by statute has settled the issue by providing for the apportionment of the crop rent or by creating in the life tenant a property right in the immature crop which entitles his estate to the crop rent share. A discussion of the problem, with cases cited from many jurisdictions, may be found in 21 Am. Jur.2d, Crops, § 27, and annotations at 76 A.L.R.2d 162, and 47 A.L.R.3d 784. In all of the cases the deciding factors seem to be whether at the time of the death of the life tenant the growing crops are to be considered as real or personal property and whether the life tenant owns an existing property interest in the crops.
Like a number of other jurisdictions this court has struggled with the problem and encountered difficulty. The rule in Kansas has not been made clear, because it developed through a series of four cases, three of which disapproved of or overruled preceding cases in the series. In order to arrive at an understandable rule these cases should be discussed and analyzed. The first case was Wyandt v. Merrill, supra, which was an action brought by the estate of a life tenant against a lessee to recover the crop rental under a sharecrop arrangement. It was held that since the life tenant died before the crops had matured, his estate was not entitled to the crop share reserved, and this was said to be so notwithstanding a statute declaring that a lessor whose rent is to be paid in a share of the crop should be deemed to be the owner of such share, since, the court ruled, such ownership does not attach until the maturity of the crop. The court explained that under the common law, if a life tenant sows a crop and dies before its maturity, it goes to his personal representative under the doctrine of emblements, and that if he procures a “cropper” to operate the farm for a share of the crop and dies between seedtime and harvest, the life tenant is regarded as having had possession of the land and as having owned the growing crop or an interest therein, and the title passes to his estate, the remainderman taking nothing. But, the court stated, if the life tenant leases the land for a cash rent payable at a date subsequent to the harvest and dies before the maturity of the crop, the lease comes at once to an end, the remainderman becoming entitled to possession of the land, and the lessee has the right of ingress and egress for the purpose of caring for and harvesting the crops. After examining the facts of the case the court concluded that the relationship between the life tenant and the share-cropper was that of landlord and tenant, not landowner and cropper, and thus his estate had no right to the share reserved as rent. The court gave no indication whether the remainderman would be entitled to that share.
The second case, Snodgrass v. Carlson et al., 117 Kan. 80, 230 Pac. 83, disapproved that portion of Wyandt in which it was held that under the statute, the lessor’s ownership of the crop where the rent was to be paid in a share of the crop did not attach until the maturity of the crop. The court in Snodgrass took the view that the statutory lien of a landlord for rent attaches at the beginning of the tenancy and, in the case of crops, from the commencement of their growth, whether or not the rent is then due. Next, in Cooper v. Cyr, 141 Kan. 236, 40 P.2d 375, the court stated that it appeared that Wyandt was expressly overruled by Snodgrass. The court in Cooper then held that there should be an apportionment in accordance with the laws of the state and the growth of the crop where the life tenant entered into a lease by which the lessee was to pay one-third of the crop as rent, and then died during the existence of the lease. In Cooper the court stated unequivocally that the life tenant has an interest in the crop after it has commenced to grow which he might sell or mortgage and that his contract would be protected. It was a share that would descend or pass to the real owner whoever he might be. Cooper is important because it definitely establishes that the life tenant, as landlord, has an existing property right in a growing crop to the extent of the one-third crop share rent.
Finally, in Sprick v. Beach, supra, this court, in deciding the right to crops in a dispute between the grantee of a life tenant and a remainderman, held that the grantee was entitled to a crop which he had previously planted on the land before the death of the life tenant. The court refused to apportion the proceeds from the sale of the crop rent, stating that a more definite rule than a theory of apportionment should be established for deciding these cases and that anything stated in Cooper contrary to the views expressed in the opinion is disapproved. The court did, however, state that the cases defendant cites are different because they involved leases and not outright sales. In the case now before us the district court, on the basis of Sprick, held that the entire proceeds from the one-third crop share rent were the property of the estate of the life tenant and that the remainderman had no interest therein.
We have concluded that the correct rule to be applied where a life tenant leases land for a share of the crop and dies before the crop is harvested is that the life tenant’s estate is entitled to the entire crop share rent since under existing Kansas law his ownership in the landlord’s share of the crop attaches after the crop is planted and his inchoate interest is one which he may sell before maturity of the crop and which ripens into full ownership with such maturity. In reaching this conclusion we have noted two Kansas statutes which recognize that a growing crop is to be considered on the death of the life tenant as personal property, not a part of the real estate, and that a landlord who leases his land for rent payable in a share of the crop is deemed to be the owner of such share and thus has an existing property interest therein. These statutes are as follows:
“K.S.A. 58-2525. Same; lessor’s remedies when rent payable in share of crop. 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 the lessor such share or proportion, enter upon the land and take possession of the same, or obtain possession thereof by action of replevin.”
“59-1206. Annual crops to be included. Annual crops, whether severed or not from the land of the decedent at the time of death, shall be deemed personal assets in the custody of the executor or administrator and shall be inventoried and administered as such.”
In Pederson v. Russell State Bank, Executor, 206 Kan. 718, 481 P.2d 986, this court stated that the disposition of growing crops in a decedent’s estate cannot be made dependent upon whether the decedent had leased the land which she owned or was farming it herself, and that the provisions of 59-1206 make no such distinction. In Pederson the court further approved the rule stated in Cooper that under K.S.A. 58-2525 the landlord’s interest in growing crops is inchoate with the sowing of the seed in his ground and attaches to the growing grain. As such it is an asset of the landlord’s estate.
So that there will be no question about the matter, that portion of Wyandt v. Merrill, supra, which holds that a lessor’s ownership of a growing crop where the rent is to be paid in a share of the crop does not attach until the maturity of the crop is hereby overruled. Such a conclusion is contrary to the express provisions of K.S.A. 58-2525 and the later cases cited above. Furthermore, that portion of Cooper v. Cyr, supra, which holds that there should be an apportionment between the estate of the life tenant and the remainderman of the proceeds of crop share rent is overruled. The rule of Sprick v. Beach, supra, is to be applied in cases involving leases with rent based on crop shares as well as in cases involving outright sales.
The judgment of the district court is affirmed. | [
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Per Curiam:
Affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Plaintiffs, Joseph W. and Sue Ellen Manley, appeal from a defendant’s verdict in a negligence action arising out of a collision at a controlled intersection in the city of Mission, Johnson County, Kansas.
The collision occurred where U.S. 50 Highway intersects Nall Avenue. At this location both the highway and the avenue are four lane trafficways. Each four lane trafficway is divided by a median strip. As these trafficways approach the intersection they widen to provide extra inside turn lanes. Protected left turns are permitted and controlled by separate traffic lights. Through traffic on both trafficways is controlled by additional lights. The sequence for lights on U.S. 50 Highway is as follows: Red lights stop all traffic. When the protected left turn green lights come on vehicles in the turn lanes proceed to make left turns in the intersection in front of the through traffic lanes. Next, the protected left turn green lights change to yellow and then to red. This stops traffic from making additional left turns at this intersection. The red lights holding back through traffic on U.S. 50 Highway then change to green, allowing through traffic to proceed.
There are two turn lanes for traffic heading west on U.S. 50 Highway intending to turn south on Nall Avenue. Traffic in the outside turn lane swings wide in front of the through traffic vehicles waiting to proceed east on U.S. 50 Highway. The traffic from this outside turn lane then enters the outside traffic lane on Nall Avenue and proceeds south. Traffic in the inside turn lane makes a shorter circle in front of through traffic vehicles and enters the inside traffic lane on Nall Avenue and proceeds south. Generally there is heavy traffic at this intersection.
Prior to the collision the defendant, Charles A. Rings, was heading west on U.S. 50 Highway and desired to turn south on Nall Avenue. He stopped in the outside turn lane on U.S. 50 Highway facing a red light. He testified he adjusted the air conditioner on his car and when he looked up the protected left turn light was green so he proceeded into the intersection, made a wide turn, and was going south in the outside lane of Nall Avenue when his car was hit broadside by plaintiffs’ car.
The plaintiffs testified they were traveling east on U.S. 50 Highway in the outside through traffic lane at a speed of 30 to 35 miles per hour. As they approached the intersection the red light which controlled their lane turned to green and they proceeded into the intersection without stopping. Their car collided with defendant’s car a few feet after they entered the intersection. There were two other cars to plaintiffs’ left that had stopped for red lights. One was waiting to make a left turn intending to go north on Nall Avenue and the other was in the inside through lane waiting to proceed straight east. The driver in the latter car started up but saw the defendant’s car in time to stop and allow the defendant to proceed ahead of him. The plaintiffs’ visions were blocked by this other car and they did not see defendant’s car until shortly before impact. Serious injuries resulted.
Plaintiffs contend that a new trial should be ordered because of two alleged trial errors. The first concerns the limitation on examination of the defendant when called as a witness by the plaintiffs.
Plaintiffs’ examination of the defendant, according to defendant’s counsel, covers 26 pages of the trial transcript. Under examination by counsel for plaintiffs defendant testified in detail concerning the route he had taken, the lights at this intersection, the time taken in adjusting his air conditioner, the number and location of other vehicles at the intersection, the color of the protected left turn light when he proceeded into the intersection, the speed of his vehicle and the point where he saw plaintiffs’ vehicle for the first time.
The limitation on examination complained of by plaintiffs, with Mr. Covell inquiring for plaintiffs, appears as follows:
“Question: [By Mr. Covell] And you .were, I believe you said something about being more concerned with the other traffic that was approaching rather than watching your speed? Was that your statement?
“Mb Mueller: If the Court please, that isn’t as I recall his testimony. I think he said normally when he made his turn, he didn’t watch his speedometer because he was more concerned about traffic conditions.
“The Court: Objection sustained. I think that that point — that comes under the heading of cross-examination of a witness, whom you called to examine directly, counselor.
“Mr Covell: I understand, Your Honor, and I am just trying to reconstruct there what I thought I understood the testimony to be.
“Question: (By Mr. Covell) Now, just trying to clarify this point. I am trying to determine whether or not you stated that you were concerned with the traffic in the intersection, which is why you didn’t notice the speed. Is that—
“Mr. Mueller: If the Court please, his testimony has been given. The jury has had an opportunity to hear it. I think counsel is simply trying to get an answer he wants and is, in effect, cross-examining the witness.
“The Court: Sustained.
“Question: (By Mr. Covell) Why was it you didn’t see the other car or other traffic in the intersection immediately prior to the collision?
“Mr Mueller: What other car? I object to the form of this question. There has been no testimony — ■
“Mr. Covell: The other car, the collision.
“The Court: Objection sustained. You have examined him in some detail on what he did or did not see in the way of other traffic on the other side of the intersection. Now, you are trying to cross-examine him, counsel, and you can’t do that at this point.
“Question: (By Mr. Covell) All right. One last question. You explained to Officer Birmingham what happened, as I understood you to say.
“Answer: He took my statement, yes.
“Question: And did he tell you that you were at fault?
“Mr. Mueller: If the Court please, this is exactly why we have these twelve good people here, is to determine—
“The Court: Objection sustained. The jury will disregard the last question and/or comment, however you wish to term it.
“Mr. Covell: No further questions.”
The thrust of plaintiffs’ argument on appeal is that the trial court refused to allow plaintiffs to cross-examine the adverse party called by them as a witness. From the court’s remarks made in limiting the cross-examination the court apparently was unaware of the provisions of K.S.A. 60-243 (b).
The statute says:
“. . . A party may call an adverse party . . . and interrogate him by leading questions and contradict him and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.”
This statute, which has been in effect since January 1, 1964, modified the rule in effect prior to 1964 which limited impeachment of one’s own witness. The present statute recognizes the necessity of proving a case by any witness available to a party. Witnesses may be unwilling or hostile to the person calling them. The statute affords some protection to a party who calls an unwilling or hostile adverse party in an effort to establish his case.
In the author’s commentary in Gard, Kansas Code of Civil Procedure, K.S.A. 60-243 (h), p. 211, it is said this subsection should be considered “in light of” K.S.A. 60-420, “as the two go together.” K.S.A. 60-420 provides that 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 matters relevant upon the issues of credibility.
In Gard, Kansas Code of Civil Procedure, in the author’s commentary on K.S.A. 60-420, p. 390, Judge Gard states:
“. . . The right to impeach one’s own witness, in the interest of the ends of justice and adequate inquiry into the facts, is now stated as the rule rather than the exception, subject to the discretionary control of the trial court as provided in section 60-445. Here, as in a number of other instances in this article, the doubts are resolved in favor of rather than against admissibility of information which would go to the real weight of the witness’ testimony. The witness is truly made the witness of the court rather than a mouthpiece to be charged to the account of the party producing him.”
Generally the relevancy of testimony elicited by a party from any witness and the scope of both direct and cross-examination of that witness is subject to reasonable control by the trial court. Exercise of reasonable control by the court will not constitute reversible error absent a showing of abuse resulting in prejudice. See Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 48, 510 P. 2d 190, and Frame, Administrator v. Bauman, 202 Kan. 461, 465, 449 P. 2d 525. See also K.S.A. 60-405 as to the effect of erroneous exclusion of evidence.
Under K.S.A. 60-243 (b) a party has a right to call an adverse party and interrogate him by leading questions, and the examining party may contradict and impeach such adverse party by cross-examination or otherwise, subject to reasonable control by the trial court.
The defendant-appellee argues that his objections to the questions in the present case were that the questions by plaintiffs’ counsel contained incorrect assumptions as to defendant’s prior testimony and were unduly repetitious. Therefore, although the court did imply that cross-examination of the witness was improper and further cross-examination would not be permitted the real reasons for sustaining the objections were those given when the objections were made by defendant.
We have carefully examined the record covering the examination of the defendant by counsel for plaintiffs. The questions to which objections were sustained were largely repetitious. The purpose of this particular line of questions is not apparent in the record. Counsel, after posing the questions, terminated his examination of the adverse witness without making known the substance of the evidence he expected to establish by his questions as required by K.S.A. 60-243 (c). In the present case, assuming the court did unduly restrict examination under a mistaken belief that the party calling an adverse party was not permitted to interrogate with leading questions or impeach the witness, counsel for plaintiffs wholly failed to call the statute (K.S.A. 60-243 [h]) to the attention of the trial judge. In this he failed to fulfill his obligation as an officer of the court.
In addition, three witnesses other than defendant, who were at ór near the intersection when the collision occurred, testified for plaintiffs. These included both Mr. and Mrs. Manley and a Mr. Pike who had stopped in the left turn lane to the left of the Manley vehicle. Regardless of whether the court may have unduly restricted the examination of the defendant it does not appear that appellants’ rights were prejudicially affected thereby. Accordingly we apply the harmless error rule as set out in K.S.A. 60-2105.
As the final point on appeal appellants question the sufficiency of the instructions given by the trial court affecting the rights of Sue Ellen Manley, a passenger in the Manley vehicle.
At the close of evidence the court ruled that the passenger, Sue Ellen Manley, as a matter of law was not guilty of contributory negligence. The question of her possible negligence was taken from the jury. The instructions given by the trial court bearing upon her right to recover were as follows:
“The plaintiffs, Joseph W. Manley and Sue Ellen Manley, claim that they sustained injuries and damages caused by one or more of the following acts of negligence of the defendant, Charles A. Rings:
“a. In failing to keep a proper lookout.
“b. In failing to keep his vehicle under proper control.
“c. In failing to yield the right of way.
“d. In failing to obey a traffic signal.
“The burden of proof is upon the plaintiffs to prove that the defendant was negligent in one or more of the particulars alleged and that the defendant’s negligence was a direct cause of the plaintiffs’ injuries and damages.
“The defendant generally denies the negligence claimed by the plaintiffs. He denies that any negligence by him directly caused any injuries or damages to said plaintiffs. He further denies the nature and extent of the injuries and damages claimed by the respective plaintiffs.
“You are further instructed that any negligence on the part of Joseph Manley is not chargeable to Sue Ellen Manley and will not bar a recovery for injuries and damages sustained by her as a direct result of negligence by the defendant, Charles Rings.
“As to the claim of plaintiff, Sue Ellen Manley, if you find from all of the evidence that she has met the burden of proof on each of the issues concerning which the burden of proof rested upon her, then you should return a verdict in favor of this plaintiff, Sue Ellen Manley.
“If, on the other hand, you find that the plaintiff, Sue Ellen Manley, has failed to meet the burden of proof on any of the issues concerning which the burden of proof rested upon her, then you should return a verdict in favor of the defendant, Charles Rings.”
The balance of the instructions appear to be complete and follow those suggested by the Committee on Pattern Jury Instructions of the Kansas District Judges Association (PIK Civil).
Plaintiffs argue that the court should have instructed that Sue Ellen Manley could not be found guilty of contributory negligence. They further contend that the last two paragraphs quoted above were confusing and complex when considered with the other instructions relating to recovery by the driver, Joseph W. Manley.
Considering the instructions as a whole we see no cause for reversal. When a claim by the driver and a claim by his passenger have to be submitted to a jury separate issues are involved and complexity in the instructions is unavoidable. The instructions given did not include any reference to negligence by Sue Ellen Manley or imply that defendant had such a defense against her. To have given the instruction orally requested by plaintiffs would have unduly emphasized and repeated what was contained in the instructions given.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from an order of the trial court granting motions for summary judgments in favor of defendants, Peter J. Beinar, Joseph W. Vowell and Donald A. High. Plaintiff B. W. Klippel, Jr. appeals.
Appellant Klippel was an oil operator-producer conducting development, production, maintenance and marketing operations on twelve oil leases in Woodson County under oil and gas lease operating agreements covering what is referred to as the East Rose Field Unit.
Appellant filed separate actions against Peter J. Beinar, et al., and against Joseph W. Vowell and Donald A. High. The issues in the separate actions are quite similar and the actions were consolidated for trial and remain consolidated for purposes of this appeal.
In the petitions Klippel alleges that defendant Beinar is the owner of an oil and gas lease covering the South Half of the North Half of the Northeast Quarter (S Vz N Vz NE 14) of Section 21, Township 26 south, Range 16 east, and that Vowell and High are the owners of an oil and gas lease covering the South Third of the East Half of the Southeast Quarter (S Vz E Vz SE 14) of Section 21, Township 26 south, Range 16 east, all in Woodson County. He alleges that both leases are in a unitized area and subject to operating agreements held by him. He further alleges that by reason of expenditures, charges, credits and receipts allocable to the respective unitized tracts the defendants are individually indebted to him in stated amounts as shown in itemized statements attached to the respective petitions.
In these itemized statements, after arriving at the total operator’s cost in the East Rose Field Unit, Klippel lists the twelve leases participating in the unit, names the original lessors and the present lessees including the respective lessee-defendants, assigns a “unit participating factor” to each lease and thereby arrives at the lessee’s respective share of the total operator’s costs in the field unit for the period covered.
Generally it can be said that the defendants in their answers admitted that they owned leases covering the respective tracts of land. Their ownerships were asserted under assignments of leases. They denied that their leases were subject to the burdens of unitization and alleged the operating agreements on which plaintiff based his claims for unit operating expenses were void because of fraud, misrepresentation and unconscionability. In addition to the answers the defendants filed counterclaims asserting that the assignments of leases conveyed nothing to them and that the plaintiff had wrongfully demanded and had been paid large sums for operating expenses not incurred on defendants’ leases. Defendants prayed for accountings and for return of payments wrongfully received by plaintiff plus damages and costs.
We are not concerned with these counterclaims since they were not determined when the summary judgments were entered. They are pending in the trial court.
In the motions for summary judgments defendants alleged that the oil and gas leases referred to in plaintiff’s petitions had expired by their terms, that the operating agreements under which plaintiff claimed had expired with the termination of the leases and that the agreements could no longer be enforced because of lack of mutuality and unconscionability.
At the hearing on the motions for summary judgments the parties furnished various copies of documents to the court. These included copies of leases, court records in a quiet title action involving the lease interests, the assignments of the leases and of the participating interests in the East Rose Field Unit to Beinar, Vowell and High, the operating agreements and certain orders signed by Beinar and by High as president of Reddy-Kay Drilling Company, a corporation, addressed to an oil purchasing company denominated “Working Interest Division Order, Confirmation of Unitization Agreement, Appointment of Common Agent.”
In addition to this documentary evidence the record on appeal contains portions of depositions by Peter J. Beinar, defendant, and B. W. Klippel, Jr., plaintiff, and affidavits of two individuals with reference to unitization of the TEC Unit effective October 1, 1966, and mentioning a previous affidavit filed in 1967. The deposition of plaintiff indicates that the East Rose Field Unit was producing 30 barrels of oil per day and the break even point to cover operating expenses would be 75 barrels of oil per day. This was tertiary recovery and we find nothing in the record as to when primary or secondary recovery of oil began.
In what is referred to by the parties as the unitizing lease to Owen Snow Petroleum Engineering Company, executed in 1966, the parties to that lease acknowledge unitization and refer to the total unit acreage as the TEC Unit. There is nothing in the record to indicate when this unit was put together or when oil was first produced from wells in that unit. We can only assume the TEC Unit later became the East Rose Field Unit since the twelve leases in controversy are included in both units.
In a memorandum decision covering ten pages of the record on appeal the trial judge attempted to set forth a history of the ownership of the leases and of the interests of the respective parties and concluded:
“The Court concludes that in each action the plaintiff has failed to state a cause of action on which relief may be granted and that the motion for summary judgment lodged against each petition should be sustained.”
In arriving at this conclusion he found that no oil had been produced from the land covered by defendants’ leases, that no unitization of defendants’ leases had been established, that the plaintiff’s operating agreements were restricted to the land covered by defendants’ leases, that the operating agreements did not authorize plaintiff to incur expense on other acreages in the unit or to charge a fractional share to defendants, and that the operating agreements were null and void.
The appellant Klippel contends on appeal it was error to enter summary judgments in favor of defendants, for to do so the judge had to resolve genuine issues of material fact in dispute among the parties to these actions. These disputed issues included the question of the validity of the leases and of the operating agreements, which in turn depended upon the existence of binding unitization of these leases with other producing leases in the East Rose Field Unit. He points out that the validity of the operating agreements on which suits were filed were challenged by affirmative defenses which could only be determined in defendants’ favor on factual evidence not before the court. He further argues the inclusion of defendants’ lease interests in the unit operation of the East Rose Field Unit was ratified by defendants by accepting royalty credits and by paying operating expenses based upon the respective unit participation factors assigned to their leases.
The appellees vigorously argue in support of the summary judgments that the documents before the trial court conclusively establish that no valid lease interests were assigned to them, that they never agreed to unitization and no unitization of their leases was established, that the operating agreements were limited to their respective tracts and had terminated and that their lease interests expired because of lack of production from the tracts covered by their leases.
It might be helpful to review generally some of the aspects of unitization of oil and gas lease interests. Consolidation of oil and gas leasehold estates can be accomplished in a number of ways: (1) The execution of a community lease by two or more separate landowners; (2) the declaration of a consolidated unit by a lessee under a lease clause permitting such unitization; (3) separate pooling agreements executed by the parties in interest; and (4) governmental fiat. (See Ferd E. Evans, Jr., Some Aspects of Gas Unitization, 7 Kan. Law. Rev. 1 (1958), and 3A Summers, Oil and Gas [Perm. Ed.], § 612, p. 479.)
The legal results of unitization may be roughly summarized as follows: (1) The life of the lease is extended as to all included tracts beyond the primary term and for as long as oil, gas or other minerals are produced from any one of the tracts included; (2) the commencement of a well on any one of the tracts operates to excuse the payment of delay rentals on all included tracts for the period stated in the respective leases; (3) production from a well on any one of the tracts relieves the obligation to pay delay rentals, during production, on all included tracts; (4) the lessee is relieved of the usual obligation of an implied covenant for reasonable development of each tract separately; (5) wells may be located without reference to property lines; and (6) the lessee is relieved of the obligation to drill off-set wells on other included tracts to prevent drainage by a well on any included tract. (See Hoffman, Voluntary Pooling and Unitization, pp. 135-36, and South. Royalty Co. v. Humble Oil & Ref. Co., 151 Tex. 324, 249 S.W.2d 914.)
The extent of participation of a particular leasehold in the income from and expense of operating the total unit is generally fixed at the time the original unitization takes place. The extent of participation of a particular tract in the income and expense of the unit is called its unit participation factor.
It has been said that the very essence of a pooling or unitization agreement is the contribution of some interest in oil or gas to the common pool from which possible royalties may be received, and when a participant no longer holds a valid interest in the pool or unit he no longer is entitled to share in production and cannot be required to pay a share of unit expenses which accrue after his interest terminates or is disposed of. (See Hover v. Cleveland Oil Co., 150 Kan. 531, 95 P.2d 264.)
The sale of pooled interests in oil or gas to a grantee ordinarily carries with it all the rights and burdens of a previously existing pooling agreement. (Hoffman v. Sohio Petroleum Co., 179 Kan. 84, 292 P.2d 1107.) The court held in Hoffman that when the purchasers accepted their conveyances “they made them contracts in writing whereby they not only took, but agreed to take, their particular tracts with whatever benefits or burdens might eventually come to them under the terms of such lease.” (179 Kan. p. 89.)
It has been held that the owner of an interest in oil and gas in a unitized pool who did not sign a unitization agreement may nevertheless ratify and be bound according to its terms by accepting royalties and paying unit expenses on the basis of his acreage as provided in the unitization agreement. The acceptance of a unitizing agreement is not required to be in writing nor need it be signed by a party in whose favor it is made, but it may be sufficient that such party knowingly accepts benefits and by doing so he becomes bound by its terms. (See Dobbins v. Hodges, 208 La. 143, 23 So.2d 26; Merrill Eng. Co. v. Capital Nat. Bk., 192 Miss. 378, 400, 5 So.2d 666; and Myers, The Law of Pooling and Unitization [Sec. Ed.], § 4.08, p. 139.) The binding effect of ratification of a unitizing agreement has been recognized under varying circumstances. (See 3A Summers, Oil and Gas, § 606.1, p. 410, and Hoffman, Voluntary Pooling and Unitization, p. 131.)
In our present case the defendants admit they received assignments of interest in oil and gas leases which assignments covered lands designated in the instruments of assignment as participating in the East Rose Field Unit at a specified field unit participation factor.
The questions raised by them as to the validity of their lease interests depend upon determinations of factual issues including but not limited to (1) whether the lease interests were included in a unitized acreage from which oil was being produced thus extending the primary terms of the original leases, (2) if said interests were not unitized in the field unit, whether the lease owners may have become bound by their ratification of the unitization agreements in accepting credits and paying pool expenses after receipt of their interests, (3) whether the lease owners held valid and existing interests in oil and gas which could contribute to the common pool or unit, and (4) whether the operating agreements should be set aside on grounds of misrepresentation, uncons cionability and fraud or because the non-operators held no valid oil and gas interests which could contribute to the common pool.
A summary judgment may be entered if the pleadings, depositions, answers to interrogatories and admissions on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (K.S.A. 60-256 [c].) But in considering a motion for summary judgment the movant’s adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Vaughn v. Murray, 214 Kan. 456, Syl. 1, 521 P.2d 262; Rothwell v. Transmeier, 206 Kan. 199, Syl. 3, 477 P.2d 960.)
It is apparent that the defendants attacked the allegations in the petitions by raising affirmative defenses. Questions of fact remain in dispute and the summary judgments in favor of defendants were prematurely and improperly entered.
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The opinion of the court was delivered by
Kaul, J.:
This is a negligence action brought to recover damages for personal injuries wherein the jury returned a verdict for plaintiff-appellee, Thomas Orrin Frevele. The injuries complained of were incurred during the unloading of building materials from a truck driven by defendant-appellant Bernard Mc-Aloon, who was employed by defendant-appellant Lawrence Diebolt, d/b/a Diebolt Lumber and Supply.
Plaintiff was a building contractor who, with a three-man crew, was engaged in the remodeling of a house in Humboldt. On November 14, 1972, defendant McAloon delivered building materials consisting of sheets of particle board, sheet rock, plywood paneling and wall board, all of which were in 4 by 8 foot sheets. Several rolls of insulation were also included in the load. On arrival at the construction site McAloon, who had made prior deliveries, backed his truck up to the front porch of the house, which was being remodeled. Plaintiff and his employees first unloaded the several rolls of insulation and carried them into the house. According to plaintiff’s testimony, while the insulation was being unloaded, defendant McAloon was untying the ropes which had secured the sheet rock, plywood and particle board to the truck bed.
The ensuing events were testified to by plaintiff and his employees. After the rolls of insulation were unloaded, McAloon engaged the hoist of the truck bed to raise the front of the bed in order to facilitate the unloading of the rest of the material. Plaintiff testified that as the truck bed was raised the particle board started to slide off and that he shouted to McAloon to lower the truck bed and stop. There was also testimony by James Weeks, an employee of plaintiff, that McAloon had been warned not to raise the bed very high. Plaintiff got behind the truck bed and attempted to stop the particle board from sliding, but was unable to hold it. When plaintiff learned that he would not be able to hold the particle board he attempted to enter the door of the house to avoid being pinned by the sliding board. However, his right foot was pinned to the wall of the house. His foot was severely bruised and the skin lacerated. Plaintiff was unable to work until January 3, 1973. He worked part time for about a month when, although using a cane and still suffering discomfort, he returned to full time work. He was released by his doctor on April 4, 1973, and had fully recovered prior to trial. Medical bills were stipulated to by the parties.
Defendants denied any negligence on their part and further asserted the defense of contributory negligence. Both of defendants’ theories of defense were submitted to the jury by the trial court in instruction No. 13.
At the close of plaintiff’s evidence defendants moved for a directed verdict on the ground that plaintiff’s admitted actions in stepping into the path of the sliding particle board was contributory negligence which barred his recovery as a matter of law. Defendants renewed their motion at the close of all of the evidence. In both instances defendants’ motion was overruled. The case was submitted to the jury which found for plaintiff and assessed his damages at $5,585.20.
Defendants’ first point on appeal is directed at alleged violations of the pretrial order. They first argue the court erred in permitting witnesses, other than those named by plaintiff in the pretrial order, to testify. When plaintiff called his employee, James Weeks, defendants objected on the ground mentioned. The paragraph of the pretrial order pertaining to witnesses reads as follows:
“The parties agree that the exhibits and witnesses will be submitted to each other on or before March 15, 1975, and all discovery completed by trial time, with plaintiff’s witnesses at this time being listed as the plaintiff and Dr. Long of Humboldt, and defendants’ witnesses being listed as all of the plaintiff’s witnesses, all witnesses to the accident, and the defendants.”
The witnesses in question were named by plaintiff in his answers to defendants’ interrogatories Nos. 6 and 12 which were served on March 7, 1975, as follows:
“6. Who were the witnesses to the accident so far as you know and what are their addresses?
“Answer: Melvin G. Baker, Larry Brock and James Weeks all of Humboldt, Kansas.
“12. What are the names and addresses of all witnesses you intend to use to prove the allegation of your petition?
“Answer: The witnesses named herein, including Dr. Edward E. Long and Plaintiff’s wife, Dorothy W. Frevele.”
The record clearly discloses that defendants were informed of all of the witnesses to be used by plaintiff well within the time limitation of March 15, 1975, prescribed by the pretrial order. We fail to see how defendants were prejudiced under such circumstances. While a pretrial order, under K.S.A. 60-216, controls the subsequent course of the action, the order is subject to the proviso “unless modified at the trial to prevent manifest injustice.” We have held the proviso reposes large discretionary power in the trial court. (Bartlett v. Heersche, 204 Kan. 392, 462 P. 2d 763, Syl. 8.)
Defendants’ next argument on this point is that plaintiff’s evidence pertaining to loss of income or earnings, which were apparently included in the jury’s award for damages, was not within the formulation of issues set out in the pretrial order. Defendants point out there was no modification of the pretrial order in this regard and further argue that plaintiff “should have pled the exact amount of lost wages, earnings or income if he was claiming any.” In his petition, plaintiff’s allegations pertaining to damages read:
. . [A]nd as a result thereof was prevented from transacting his business, suffered great pain of body and mind and incurred expenses for medical attention and hospitalization all to the damage of the Plaintiff in the total sum of Eight Thousand Five Hundred Dollars ($8,500.00).”
It appears to be defendants’ contention that the allegations do not meet the requirements of K.S.A. 60-209 (g) which reads in pertinent part:
“When items of special damage are claimed, their nature shall be specifically stated. . . .”
The subsection in question is the same as the corresponding Federal Rule (Federal Rules Of Civil Procedure, Rule 9 [g]). In 5 Wright and Miller, Federal Practice And Procedure, Civil, Sec. 1311, concerning the rule, the authors comment:
“When special damages are sought in addition to the general damages that the law allows, the specific allegation requirement can be satisfied easily. . . .” (p. 448.)
We believe the allegation that plaintiff was prevented from transacting his business is broad enough to include loss of income.
Plaintiff points out that the language used in his allegation of damages is drafted from the language appearing in Form No. 14 of the Appendix of Forms following K.S.A. 60-269, p. 94, and that the Forms set out therein are declared to be sufficient in K.S.A. 60-268. We find no merit in defendants’ contention in this regard.
Defendants next complain of instruction No. 14 concerning loss of income and the age of plaintiff. In the instruction the trial court erroneously stated plaintiff’s age to be fifty-seven, when it was admittedly sixty at the time of trial, which was some two and one-half years after the injury. Defendants attempt to give significance to the misstatement of age in connection with permanent injuries. When the matter was called to the trial court’s attention at the hearing on defendants’ motion for a new trial the court commented:
“As to ground 2., the Court erred on plaintiff’s age by stating it to be 57 rather than 61, his true age at the time of trial. As permanent injuries were not alleged and the damage instruction contained no wording referable to future pain and suffering, the alleged error appears to be harmless. . .
The record shows no specific objection by defendants to instruction No. 14 on this ground. Neither does the record reflect any testimony or argument concerning future pain, suffering or permanent disability. In his testimony plaintiff conceded that he had fully recovered from his injuries. Under such circumstances we fail to see how the jury’s assessment of damages could have been enhanced or the defendants prejudiced by the inadvertent error with respect to plaintiff’s age. If such could be said to be error it does not rise to the level of prejudice of substantial rights necessary for a reversal of the judgment. (Patterson v. Burt, 213 Kan. 463, 516 P. 2d 975.)
Defendants next complain of references to permanent injury and loss of income apparently made in plaintiff’s final argument to the jury. Jury arguments are not reproduced in the record and the record discloses no objection made at trial. It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim of error. (State v. Wilson & Wentworth, 221 Kan. 359, 559 P. 2d 374, and cases cited therein.)
Defendants also complain that they were prejudiced by references to insurance liability. The record discloses no objection or motion for a mistrial in this regard. The only mention of insurance came during the direct examination of defendant McAloon by defendants’ counsel. When the matter was called to the trial court’s attention on motion for a new trial, the court observed:
. . That the defendant McAloon mentioned insurance on direct examination by defendant’s attorney was not proper, but his counsel’s question was so worded that counsel could and should have anticipated the answer. Neither party moved for a mistrial at the time and the Court let the matter pass without comment.”
In Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 491 P. 2d 891, with reference to an inadvertent mention of insurance Mr. Justice Fromme speaking for the court stated:
“. . . An examination of our cases on the subject indicates that when the mention of insurance during a trial is purely inadvertent and is not brought into the case by intentional misconduct of plaintiff’s counsel prejudicial error has not been committed thereby. (See Newell v. City Ice Co., 140 Kan. 110, 113, 34 P. 2d 558; Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120; Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281; Bott v. Wendler [203 Kan. 212, 453 P. 2d 100].)” (p. 203.)
Defendants’ final three points on appeal are directed at the sufficiency of the evidence. Defendants also claim that the uncontroverted evidence showed the proximate cause of the accident to be plaintiff’s contributory negligence. Our scope of review in response to such contentions is limited. In the recent case of Simpson v. Davis, 219 Kan. 584, 549 P. 2d 950, the rule was stated by Mr. Justice Schroeder in these words:
“In ruling on a motion for a directed verdict pursuant to K.S.A. 60-250, the 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, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. . . .” (p. 589.)
There is evidence in the record that one of plaintiff’s employees was on the porch and directly behind the truck when the lumber began to slide. There is also evidence that the plaintiff was behind the load at this time. Under such circumstances whether McAloon had a duty concerning the raising of the bed which would cause the lumber to slide in the direction of plaintiff and his employees, and whether such duty was breached, were jury questions.
Defendants argue that plaintiff was guilty of contributory negligence as a matter of law which would bar his recovery. They contend plaintiff had admitted his own contributory negligence in his answers to interrogatories Nos. 4 and 5:
“4. At the time the defendant, McAloon, raised the truck bed, were you standing where the material could slide against your leg and foot?
“Answer: No.
“5. After you saw the material slide, did you place yourself in a position where the material could slide against your leg?
“Answer: Yes, although I did not realize it at the time as I was trying to stop the material from sliding off the truck.”
Defendants also rely on plaintiff’s alleged admission in his cross-examination testimony:
“Q. So that as a matter of fact, the only person who could cause or prevent your injury was yourself; is that correct?
“A. In a matter of speaking, I guess that’s right.”
Under these facts plaintiff has admitted nothing which would be a bar to his recovery as a matter of law. In Brooks v. Dietz, 218 Kan. 698, 545 P. 2d 1104, we held:
“Admissions of a party are binding and conclusive on him when uncontradicted and unexplained, but when relied on to establish negligence or assumption of the risk as a matter of law the facts revealed thereby and inferences to be drawn therefrom must be viewed in the light most favorable to the party making the admissions. If reasonable minds might differ as to whether the party’s admitted conduct, viewed in that light, is unreasonable under all the circumstances, the issue must go to the jury.” (Syl. 7.)
Plaintiff testified that when he grabbed the lumber he thought he could keep it from sliding. He also stated that had the bed been stopped at that point and then lowered, he could have held the lumber on the truck. In view of the fact that James Weeks was in a position to be struck by the sliding lumber, it cannot be said that plaintiff’s attempt to stop the lumber from sliding was unreasonable as a matter of law. In Brock, Administrator v. Peabody Cooperative Equity Exchange, 186 Kan. 657, 352 P. 2d 37, we said:
“It is not contributory negligence for a person to risk his life or place himself in a position of great danger in an effort to save the life of another or to rescue another from a sudden peril or great bodily harm. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it unless made under such circumstances as to constitute rashness in the judgment of prudent persons.” (p. 661.)
It appears the jury considered that defendant McAloon was negligent in raising the truck bed to a level which caused the particle board to slide after he had been warned not to raise it very high. When the particle board started to slide, plaintiff thought he could hold it, but was unable to do so and as a consequence he was injured. Mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved will not preclude a plaintiff’s recovery even though there may be added to the knowledge of danger a comprehension of some risk. (Autry v. Wallis I.G.A. Foodliner, Inc., 209 Kan. 424, 497 P. 2d 303; Shufelberger v. Worden, 189 Kan. 379, 369 P. 2d 382; Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482; and Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649.)
The reasonableness of plaintiff’s actions under the circumstances was a proper question for the jury and the record shows substantial competent evidence to support its verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from defendant’s conviction of one count of burglary. (K.S.A. 21-3715.)
On December 27, 1974, Officer Charles W. Cordill was on duty in the vicinity of 8601 State Avenue, Kansas City, Kansas. He had been on duty for approximately one hour and had stopped to record on his log a series of radio calls he had received. As he was filling out his log, the owner of a nearby liquor store approached him and began a conversation. The store owner told him there had been prowlers in the vicinity earlier in the day. While the two men were conversing, Officer Cordill received a dispatch reporting a prowler at 86th and State Avenue. The officer immediately realized he was at that location and proceeded to the rear of the building adjacent to the liquor store, the Trail West Ranch Wear Store. He observed two men near the rear of the building, crouched down close to the wall. Cordill ordered them to step away from the wall, proceed to the front of the building, and lean against the wall with their hands in the air. As defendant raised his'hands the officer observed him drop a pistol. This action was also observed by Officer James Bishop, who had responded to assist Officer Cordill.
Further investigation determined there had been a break-in at the western wear store and officers found a pile of clothing and other merchandise, suggesting the burglary had been interrupted. Defendant and his companion, Jerry Rice, were arrested and charged.
Among evidence introduced at trial was the .25 caliber Titan pistol and its loaded clip. The weapon was identified by the officers as the one taken from the scene of defendant’s arrest. Officer Cordill further testified that the weapon had a round of ammunition in the chamber and was cocked at the time he picked it up. Defendant presented no evidence and was found guilty by the jury.
As his first point on appeal defendant alleges it was error to admit the pistol into evidence because it was not relevant to the charge of burglary and its prejudicial value outweighed its probative value. Defendant also argues the trial court erred in failing to give a limiting instruction. The basis of his argument is the prohibition of K.S.A. 60-455 on admission of “other crimes or civil wrongs” except for the limited purposes outlined by the statute.
In order to apply 60-455 the possession of a gun must be a crime or a civil wrong. We are unable to find any basis for concluding that the possession of the pistol under the facts of this case was a crime or a civil wrong; therefore, 60-455 is inapplicable. Even assuming possession of the pistol was a criminal or civil wrong, if such possession was otherwise relevant in a criminal action, evidence of such possession is not rendered inadmissible because it may disclose another or independent offense. (State v. Rasler, 216 Kan. 582, 586, 533 P. 2d 1262.) In State v. Williams, 196 Kan. 628, 413 P. 2d 1006, we discussed the issues of relevancy and probative value in a similar factual situation and said:
“It is the appellant’s contention that he was not charged with robbery, assault with a deadly weapon, or any crime of violence wherein a weapon such as the gun introduced would be instrumental in the commission of the crime. It is therefore argued the probative value of the gun as tending to prove the commission of the crime charged was negligible and far outweighed by the risk of unfair and harmful surprise to the defendant to say nothing of the undue prejudice generated by the introduction of the weapon into evidence.
“It is well established that attempts by the accused to conceal or destroy evidence are incriminating circumstances that may be presented to the jury. (State v. Wilson, 108 Kan. 433, 195 Pac. 618.)
“It has also been held that the demeanor of one charged with crime, at or near the time of its commission, or of his arrest for the same, may always be shown. (State v. Baldwin, 36 Kan. 1, 12 Pac. 318.)
“Here the pistol was the fruit of a search made of the area where a lawful arrest had been effected, and was used to substantiate the evidence presented as to the conduct of the appellant at the time of his arrest. Both the pistol and the evidence of the appellant’s conduct at the scene of the arrest are properly a part of the state’s circumstantial evidence against the appellant. Both are relevant and have a bearing on the element of criminal intent or guilty knowledge. Considering the character of the case and the conduct of the appellant, the trial court did not abuse the exercise of its power of discretion by admitting the pistol into evidence.” (pp. 632-33.)
Defendant’s second assertion of error concerns alleged improper prosecutorial remarks outside the courtroom. Defendant now concedes the argument is meritless as it is controlled by State v. Norwood, 217 Kan. 150, 535 P. 2d 996. For this reason we deem the point to be abandoned.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Albert Brocato was convicted by a jury of possession of burglary tools (K.S.A. 21-3717). On appeal to this court he questions the existence of probable cause for his arrest and the sufficiency of the evidence to support his conviction. This case arises from the same facts which gave rise to State v. Hernandez, 222 Kan. 175, 563 P.2d 474.
The following facts are gleaned from the abbreviated record presented to this court. A rash of burglaries had occurred in the city of Leawood, Kansas. A description of a suspect vehicle thought to have been used in these burglaries was given to the police. On July 25, 1975, while on patrol, Officers Prince and McCarthy noticed a vehicle coming toward them which resembled the description of the suspect vehicle. The time was 10:30 p. m. The vehicle was a 1965 Chevrolet, dirty in appearance, with a loud exhaust and a Missouri license plate. The officers turned their patrol car around and began following the suspect vehicle which turned on an intersecting street. The police car’s siren and red lights were activated. The suspect vehicle appeared to accelerate. The officers noticed that a brown paper sack was passed by the driver of the suspect vehicle to the passenger and then the sack was thrown from the vehicle. The sack bounced over the curb and fell back into the street. When the officers were within two car lengths of the suspect vehicle it braked to a stop. Vincent Hernandez was driving and Albert Brocato was the passenger in the front seat. They were ordered out of the car and Officer Prince stayed with them while Officer McCarthy retrieved the brown paper sack. The sack contained a pry bar with a specially sharpened point and two pairs of brown nylon gloves. One of the officers testified at the trial that the pry bar and gloves were of the type used in committing burglaries. Brocato and Hernandez were arrested at the scene and advised of their constitutional rights. An arrest warrant was issued after they were taken to the police station.
On appeal to this court Brocato attacks his warrantless arrest on two grounds, lack of probable cause and improper attitude of Officer McCarthy. The latter charge arises from words directed to Brocato by Officer McCarthy at the police station. Hernandez was giving the officer a bad time verbally and Officer McCarthy in reply facetiously stated that police officers had nothing better to do on a Friday night than search for “scum”. Brocato now says this establishes a prejudicial attitude against him which negatives probable cause for the warrantless arrest. The point is without merit.
Defenses and objections based on defects in the institution of the prosecution, such as probable cause for a warrantless arrest, may be raised only by motion before trial. (K. S. A. 22-3208; State v. Addington, 205 Kan. 640, 643, 472 P. 2d 225; State v. Theus, 207 Kan. 571, 485 P. 2d 1327.)
Here the defendant proceeded to trial and the point was not raised before trial. This might well dispose of this contention but in addition it appears there was probable cause for the warrant-less arrest.
K. S. A. 22-2401 (c) (1) provides a law enforcement officer may arrest a person when he has probable cause to believe that the person is committing or has committed a felony. In State v. Lamb, 209 Kan. 453, 497 P. 2d 275, this court examined what constitutes probable cause. Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances and exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed. See Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, reh. den. 338 U. S. 839, 94 L. Ed. 513, 70 S. Ct. 31.
In the present case the officers had a description of a suspect vehicle previously connected with prior burglaries in that neighborhood. There was evidence of an acceleration of the suspect vehicle after the siren and red lights were activated on the police car. A brown paper sack containing the pry bar and two pairs of brown nylon gloves of the type used in committing burglaries was thrown from the suspect vehicle. Under the facts and circumstances known by the officers at the scene, probable cause did exist for the warrantless arrest. The attitude of the officer in making the arrest would not vitiate the arrest or deprive a court of jurisdiction to try the defendant. Any subsequent conviction would not be vitiated unless there was a showing the defendant’s substantial rights were prejudiced and he was deprived of a fair trial. See State v. Taylor, 212 Kan. 780, Syl. 5, 512 P. 2d 449. No such showing is made in the present case.
The defendant attacks the sufficiency of the evidence on various grounds but mainly directs his argument to an alleged failure of the evidence to establish “intent to commit a burglary”.
K.S.A. 21-3717 reads:
“Possession of burglary tools is the knowing possession of any key, tool, instrument, device or any explosive, suitable for use in entering an enclosed structure or a vehicle or means of conveyance of persons or property, with intent to commit burglary.”
In State v. Hart, 200 Kan. 153, 434 P. 2d 999, this court points out:
“It is appropriate to observe, however, that an intent to use the tools in a particular or specific burglary is not required. The intent is sufficient if it consists of a general purpose to employ the instruments in the course of burglarious episodes, whenever and wherever opportunity might present itself. [Citations omitted.]” (pp. 157, 158.)
This is in accord with the rule in a majority of jurisdictions (33 A. L. R. 3d 798, 839). The intent required to establish the illegal possession of burglary tools may be inferred from the circumstances which attend their possession at the time of an arrest. The intent necessary to complete the crime proscribed in K. S. A. 21-3717 consists of a general purpose to employ the tools in the course of burglarious episodes, whenever and wherever opportunity might present itself. (State v. Hart, supra.) The following circumstances have been considered as bearing on such an intent: Concealment of tools on one’s person or in his clothing; carrying such tools inside the passenger area of the car instead of in the trunk or in a shop; flight or resistance to arrest; and possessing a large number of master keys useful in burglarious enterprises. See State v. Hart, supra, p. 163; State v. Karney, 208 Kan. 677, 494 P. 2d 1204; and State v. Caldrone, 205 Kan. 828, 473 P. 2d 66, cert. den. 401 U. S. 916, 27 L. Ed. 2d 817, 91 S. Ct. 896.
Here the following facts bearing on intent were established: The vehicle resembled a vehicle suspected of being used in recent burglaries in the general neighborhood; the suspect vehicle appeared to accelerate when the officers gave chase; the tools were passed by the driver to the passenger in the suspect vehicle and disposed of by throwing them into the street; the suspect vehicle continued around a turn after the officers gave chase and did not come to a halt until after the burglar tools had been thrown from the car; and there were two pairs of brown nylon gloves in the brown paper sack and two men in the suspect vehicle.
It is true this case lacks many of the factors which were present in previous Kansas cases. However, after reviewing the cases discussed in the annotations appearing in 103 A. L. R. 1313 and 33 A. L. R. 3d 798-918, we conclude the evidence was sufficient to raise a reasonable inference of guilt, including the necessary element of intent.
We have examined defendant’s contention that the trial court erred in failing to enter a judgment of acquittal or in the alternative to grant a new trial. As to a motion for judgment of acquittal the rule may be found in State v. Wilson & Wentworth, 221 Kan. 359. 362. 559 P. 2d 374. In State v. Lora. 213 Kan. 184, 187, 515 P. 2d 1086, the rule is stated as to the sufficiency of evidence being reviewed on appeal in a criminal case. After applying these rules to the facts of the present case we find nothing to justify disturbing the judgment and sentence.
Before concluding this opinion we note the original record filed in this court failed to contain the matters counter-designated by appellee. The matters counter-designated were submitted later without an accompanying index. In addition, appellant’s brief contains no index or table of contents and authorities relied on as required by Supreme Court Rule No. 6.02 (o) (formerly Rule No. 8 [b]). We will appreciate compliance with these rules and in the future sanctions may have to be imposed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order of the trial court refusing to determine the right to custody of three minor children of the parties in a divorce action.
Kenneth and Emily Varney were married on October 12, 1969, in Murfreesboro, Tennessee. The first two of their three children were born while the parties resided in Tennessee. In September, 1972, Kenneth took the children and moved to Topeka, Kansas, without telling Emily. In December, 1972, Emily came to Topeka to join her family. Both Kenneth and Emily obtained jobs in Topeka. Later Emily became pregnant and a third son was born.
Marital problems again placed a severe strain on the marriage in the fall of 1975, and the parties agreed to try to save their marriage by returning to Tennessee and buying a new home. Emily went to Tennessee first and found employment at a Tennessee hospital. On September 26, 1975, she moved the children to Tennessee where the four have since resided. In December, 1975, Kenneth visited in Tennessee and signed a contract to purchase a new home.
Kenneth then returned to Topeka for the ostensible purpose of selling their Topeka residence and winding up his business affairs. He apparently decided not to return to Tennessee and continue the marital relationship because on December 24, 1975, he filed in the Shawnee County District Court a petition for divorce and a motion for temporary custody of the children. Emily was served with the divorce petition in Tennessee five days later.
On January 9, 1976, Emily filed her answer and several motions. In her answer she alleged that she and the children were domiciled in Tennessee and the district court was without jurisdiction to hear the case. Her motions requested temporary child support, alimony, attorney’s fees and possession of personal property.
Kenneth’s motion for temporary custody was denied and Emily was granted temporary child support.
After hearing the matter the trial court granted the divorce, divided property, awarded attorney fees and assessed costs. The court refused to make any orders concerning the custody, care or control of the children, finding the court had no jurisdiction over the children. Kenneth appeals.
Both parties and the trial court have approached this issue on the assumption that it is necessary to determine the domicile of the wife and children in order to determine the jurisdiction of the court. The search for domicile is not now necessary because of the existence of K.S.A. 60-308 (b) (8). The statute provides:
“(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
“(8) Living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations arising for alimony, child support, or property settlement under article 16, if the other party to the marital relationship continues to reside in the state;”
Although Kansas patterned much of its long arm statute after those of other states, it pioneered the provision which confers jurisdiction in marital relationship cases. (Scott v. Hall, 203 Kan. 331, 337, 454 P.2d 449; Henry, Domestic Relations: The Role of Long Arm Statutes, 10 Washburn L.J. 487, 489.) The statute requires only that the parties live in a marital relationship within the State of Kansas (Whisenant v. Whisenant, 219 Kan. 387, 394, 548 P.2d 470), and that the party to the marital relationship other than the absent spouse continues to reside in Kansas. (Scott v. Hall, supra.)
Personal jurisdiction under the long arm statute is based on sufficient “minimum contacts” with nonresidents. Historical roots of the concept carry forward from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154, 161 A.L.R. 1057, to McGee v. International Life Ins. Co., 355 U.S. 220, 2 L.Ed. 2d 223, 78 S.Ct. 199, and Hanson v. Denckla, 357 U.S. 235, 2 L.Ed. 2d 1283, 78 S.Ct. 1228. Each case must be judged on its own merits to determine whether the nonresident defendant has sufficient minimum contact with this state so as to comply with due process when our courts assert in personam jurisdiction. (Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248; Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128.) Establishing a marital domicile within the state is sufficient minimum contact to confer in personam jurisdiction when the additional requirements of K.S.A. 60-308 (b) (8) are met. (Scott v. Hall, supra at 338-39.)
In Whisenant v. Whisenant, supra, it was said the statute applies to:
“. . . cases involving alimony, support, child custody, visitation, and other rights arising solely from the husband-wife or parent-child relationships, to factual situations where the parties actually lived in the marital relationship within the state of Kansas. . . (p. 394.)
The Varney family existed as a family unit in the State of Kansas. Kenneth Varney continued to reside within the state after his wife and children departed; thus, the trial court had jurisdiction to hear and decide all matters incident to the marital union of Kenneth and Emily Varney, including the custody and support of the minor children.
It appears the trial court denied jurisdiction because of the provisions of K.S.A. 1975 Supp. 60-1610 (a) (now K.S.A. 60-1610 [a]). The statute reads:
“(a) Care of minor children. The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (it) domicile of the child is in the state, or (Hi) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in' the state. . . .”
The trial court construed the statute as requiring domicile of the children in this state as a basis for exercising jurisdiction in matters pertaining to custody and support. This conclusion is based on a construction of the statute that the three conditions for acquiring jurisdiction apply to an original action for divorce. We believe it was the intention of the legislature to limit jurisdiction to those instances when actions relative to the custody and support of minor children occur subsequent to an original judgment for divorce in which custody and support matters were determined. The jurisdiction of the trial court in original divorce cases is not limited by 60-1610 (a).
The philosophy of this court has long been that all issues incidental to the dissolution of family ties should be determined at one time. Clearly, the intent of K.S.A. 60-308 (b) (8) is to allow a trial court to draw these matters together for unified disposition, even when one of the partners to the marital union has established a domicile elsewhere, once the initial requirements of the subsection are met. It serves no worthwhile purpose for two persons disenchanted with their marriage to dissolve their bonds in one state and battle for custody and support of their children in another state.
The decision of the trial court is reversed and the case is remanded for further proceedings on the issue of custody and support of the minor children. | [
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The opinion of the court was delivered by
Haevey, J.:
Plaintiff brought this action to recover a reasonable sum for the care and maintenance of her insane sister, Florence Vogel, formerly the wife of the defendant, Richard A. Vogel. The trial court rendered judgment for plaintiff upon the stipulated facts. Defendant has appealed.
In June, 1926, Florence Vogel, then the wife of defendant, was duly adjudged to be insane and was committed to the state hospital at Larned. In September, 1931, defendant obtained a divorce from his wife, Florence Vogel, upon the ground of incurable insanity, under the procedure authorized by G. S. 1935, 60-1501, 11th clause. This statute, among other things, provides:
“That a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant.”
Florence Vogel remained in the state hospital as a patient until November, 1932, when plaintiff visited her, and upon the advice and with the consent of the superintendent'of the hospital removed the patient to her home, where she has since maintained and cared for her. It was stipulated that such care and maintenance were of the reasonable value of $5 per week. .
Defendant, as appellant here, contends that the statute just quoted is limited to the statutory provisions (G. S. 1935, 39-231, 39-232 and 39-233) which pertain to who shall be liable for the maintenance of persons in the state hospitals for the insane; that the appellant is only secondarily liable for-the support of his insane wife, and that the services rendered to the wife by plaintiff were presumed to be gratuitous; hence, that there is no liability. We think none of these contentions is well taken. In 32 C. J. 686 it is said:
“Under the common law a husband is under a legal obligation to support and maintain his wife, and the fact that she is insane does not absolve the husband from that obligation. If the husband fails to support and maintain her, anyone who furnishes her with the necessaries may compel him to pay therefor.”
The fact that the wife has a separate estate does not affect this ruling. (30 C. J. 517.) See the authorities cited in support of the above text; also, those collected in the annotation, 4 A. L. R. 1113. The late case of Cohen v. Cohen, 291 Ill. App. 39, 9 N. E. 2d 595, although differing from the case here on the facts, is quite in point in principle. The portion of the statute (G. S. 1935, 60-1501), above quoted, is broad enough to cover that liability. Those of us familiar with the efforts made to get this eleventh ground for divorce incorporated in our statute know how essential it was to the passage of the act that it contain a provision which would not relieve the successful party from the maintenance of the one who was insane.
There is no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Plaintiff brought this common-law action for damages for injuries sustained through the alleged negligence of defendants. The Shell Petroleum Corporation, defendant, interposed a demurrer to plaintiff’s petition on the assumption that the facts had been so comprehensively stated therein as to make it clear that plaintiff’s right of redress was restricted to the provisions of the workmen’s compensation act. The trial court held otherwise and overruled the demurrer. Hence this appeal.
From the allegations of the petition, which extends to ten printed pages, the pleaded facts may be summarized thus;
The Shell Petroleum Corporation holds an oil and gas lease on a certain tract of land near Galva, in McPherson county, known as the Finkle lease. On this lease are oil and gas wells, pumps, tanks, engines, boiler house, boilers, slush ponds, and other paraphernalia incidental to the production of oil and gas.
The codefendant, the Kansas Power & Light Company, is engaged in transporting natural gas from McPherson county production areas to market centers elsewhere. It has gas lines, separators, reducers, distributors, meters, cutting devices, and other paraphernalia used in the accumulation and transportation of natural gas.
On the Finkle lease the Shell Petroleum Corporation had informally laid out and used a sort of private roadway which ran from some adjacent public road to the center of its industrial activities. This private roadway enters the premises from the north and runs southward for some unstated distance to a point where there is a meter house on the east side of the roadway and a slush pond on the west. At this point the private roadway is barely wide enough for a motor vehicle to pass between the meter house and the slush pond. After negotiating this narrow passage, the roadway turns to the west for some unstated distance to the point where there was' a boiler belonging to the Shell Petroleum Corporation which needed to have some of its flues welded.
Near the slush pond and the meter house one of the gas pipe lines of the Kansas Power & Light Company had been laid across the private roadway without being buried. In the meter house a fire, was burning — for what purpose does not appear.
The plaintiff in this action is a welder by trade, and at the time of present concern he was employed by one D. R. Churchill, a sole trader doing business in McPherson under the name of Churchill Boiler and Welding Works, which apparently indicated the nature of his business.
On February 24, 1937, this plaintiff was directed by his employer to go to the Finkle lease to weld a boiler belonging to the Shell Petroleum Corporation. This company detailed one of its employees, B. E. Jennings, to show plaintiff how to go to reach the place where this work was to be done. Plaintiff and Jennings proceeded to the Finkle lease in a pick-up truck owned by Churchill. They entered the private roadway and proceeded southward to the point where it turns west after passing between the meter house and the slush pond. The roadway had deep ruts in it and the wheels of the pickup truck broke the gas pipeline laid across the roadway, whereby gas at-high pressure was released and reached the fire in the meter house, and caused “a great blaze which caught the clothing of this plaintiff and severely burned and cooked the face and hands and lungs of this plaintiff.”
In his petition plaintiff alleged that defendants and each of them were negligent in many particulars which need not presently concern us because, as already stated, this appeal has to do with the question whether plaintiff’s injuries are redressable in this action at common law or under the workmen’s compensation act.
The litigants are agreed that the answer to this question turns chiefly upon the proper interpretation of G. S. 1935, 44-503, which reads:
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensa tion is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. (b) Where the principal is liable to • pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workman independently of this section, and' shall have a cause of action therefor, (c) Nothing in this section shall be construed as preventing a workman from recovering compensation under this act from the contractor instead of the principal. (d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management, (e) A principal contractor, when sued by a workman of a subcontractor, shall have the right to implead the subcontractor. (/) The principal contractor who pays compensation to a workman of a subcontractor shall have the right to recover over against the subcontractor.”
Appellant’s interpretation of this statute, as applied to the facts pleaded in plaintiff’s petition, is that it, the Shell Petroleum Corporation, was a principal, and plaintiff’s employer Churchill was a contractor, that a contract between principal and contractor for the welding of defendant’s boiler had been made, that plaintiff, employee of Churchill, the statutory contractor, had been sent to the premises of the defendant to fix the boiler. Under those circumstances defendant argues that the section of the compensation act quoted above governs the rights and liabilities of the parties.
The workmen’s compensation act governs the relationship of defendant to its own employees, of course (G. S. 44-505, 44-507); and defendant’s counsel assert that the relationship of plaintiff to his immediate employer, Churchill, was likewise governed by the same act. Counsel for plaintiff say that there is nothing in the record to justify that assertion, which point is apparently well taken. While a “boiler and machine works” which has in its employment a workman capable of welding an engine boiler would probably come under the terms of the statute, G. S. 1935, 44-505, yet we could not make the additional assumption that the Churchill Boiler and Machine Works employed five or more workmen so as to make compulsory its operation under the act. (G. S. 1935, 44-507.) And even if plaintiff and his employer were under the act, the fact would not necessarily bar this action at common law. The statutory provision which governs this point has been revised since our decision in Swader v. Flour Mills Co., 103 Kan. 378, 103 Kan. 703, 176 Pac. 143, but the right to maintain a common-law action still exists (under regulations) in behalf of a workman (or his employer) against a third-party wrongdoer through whose fault he is injured, notwithstanding the injury occurred under circumstances which would entitle him to compensation from his own employer. (G. S. 1935, 44-504; Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; Riddle v. Higley Motor Co., 122 Kan. 458, 252 Pac. 231; Jolley v. United Power & Light Corp., 131 Kan. 102, 289 Pac. 962.)
Counsel for plaintiff contend that Churchill, plaintiff’s employer, was an independent contractor, and consequently that the intricate relationships which G. S. 1935, 44-503, was intended to govern did not exist and that the cited section has no application. What is an independent contractor?
“(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” (Restatement, Agency, § 2.)
In comment to section 403, Restatement of Torts, it is said:
“a. The words ‘independent contractor’ denote any person to whom the construction, rebuilding or repairing of a chattel is entrusted in such a way as to give him charge and control of the' details of doing the work, irrespective of whether the work is done gratuitously or is to be paid for by his employer or is in any other way of financial or other benefit to the contractor.” (p. 1091.)
This definition and comment accord with our own pronouncements. (Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, syl. ¶ 2; Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907; Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P. 2d 474.)
Tested by this rule, our own cases where the workmen’s compensation act was invoked fall into two main classes — first, where it was held that the injured workman was the employee of an independent contractor, and second, where the performance of the injured workman’s duty was measurably controlled by the contractee with whom the workman’s immediate employer had contracted, or where the workman himself was the contractor but the contractee exercised some measure of control of his work.
’ Typical of the cases where the injured workman had to look to his own immediate employer, an independent contractor, for compensation and could not hold the contractee liable therefor, was Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66, where the owner of a sawmill contracted with a person to take sawdust from a bin as fast as necessary to prevent such accumulation as to delay work and remove it to a designated place in consideration of a fixed price per hour, and a driver employed by such person was injured while attempting to load a wagon from the bin. It was held that such person was an independent contractor and the driver was not an employee of the mill-owner so as to render him liable under the compensation act.
In McIlvain v. Oil and Gas Co., 110 Kan. 266, 203 Pac. 701, it was held:
“One who contracts to haul oil-and-gas well casing between the place where it is used and the place where it is repaired, and who employs but one workman to assist in performing the labor does not come within the provisions of the workmen’s compensation act, although the one for whom the casing is hauled may come within that act.” (Syl. ¶ 2.)
Commenting on the McIlvain case, Mr. Justice Burch, in Southern Surety Co. v. Parsons, 132 Kan. 355, 357, 295 Pac. 727, said:
“In the Mellvain case the Prairie Oil & Gas Company was engaged in engineering work — drilling an oil well. Earl Blue was employed to haul casing to the well, which was not engineering work, and was not work done on, in, or about the place where the Prairie company was doing engineering work. Blue employed Mellvain and Mellvain was Blue’s only employee. Mellvain was injured and sued the Prairie company and Blue. It was held the Prairie company was not liable to pay compensation, although subject to the act, because Blue was an independent contractor whose employment had nothing to do with that part of the Prairie company’s business which brought it within the act.” (Italics ours.)
Among the cases where the injured workman was allowed a claim for compensation against the contractee, passing by his own immediate employer, as authorized by G. S. 1935, 44-503, was Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, the facts and law of which are summarized in the syllabus:
“An oil company engaged in developing mineral resources of leased land and producing oil therefrom, let to an independent contractor a contract to erect a derrick on the land, as an incident to the drilling of an oil well by the company. While the derrick was under construction one of the contractor’s workmen fell from it and received injuries which resulted in death. The workman’s dependents sued the company for compensation. Held, the work of building the derrick was part of the company’s business, within the meaning of the subcontracting section of the workmen’s compensation act (R. S. 44-503); the accident occurred on premises on which the company had undertaken to execute work, within the meaning of subdivision (d) of the section; and the company was liable to the' dependents for compensation, under subdivision (a) of the section.”
Another instructive case to the same effect was Phoenix Indemnity Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P. 2d 739, where it was held:
“Where a petroleum company contracts with an individual to drill an oil well, furnishing him the drilling rig, casing and other equipment and reserving the right to take full charge of the well and the operation thereat and to manage and control the drilling into, shooting and testing the sand when oil-bearing sand is reached by the driller, and requiring the' driller to procure an insurance contract under the workmen’s compensation law to protect the petroleum company against any right of action, the relation of such parties is respectively that of principal contractor and subcontractor, as distinguished and defined in R. S. 1931 Supp. 44-503.” (Syl. If 1.)
Other recent cases where the facts required the application of G. S. 1935, 44-503, were Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97; and Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15.
Still another case worthy of special mention was Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 Pac. 950, where plaintiff was employed by defendant to cut trees at so much per tree. A tree fell on him and broke his leg. His claim to compensation under the statute was resisted on the ground that he was an independent contractor. But the evidence showed, without apparent dispute, that his work was supervised and in part directed by defendant’s foreman, consequently it was held that plaintiff’s status was that of defendant’s workman, and not that of an independent contractor.
In the light of these authorities, it seems clear that Churchill, plaintiff’s employer, was an independent contractor. Defendant had no control of Churchill. It was Churchill’s job to weld the boiler, and he sent his employee, Bittle, to do the work. It was a single isolated transaction, such as occurs in the business world every day, when one man has a machine which gets out of ñx and he calls on another man skilled in repairing such machinery to put it to rights. The status of the person so employed (contracted with) is familiarly designated in the lawbooks as that of an independent contractor. And as Bittle was the employee of the independent contractor, the statute relied on by defendants to replace or supersede the common-law action plaintiff seeks to maintain against defendants has no application.
The demurrer to plaintiff’s petition was properly overruled and the judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This is an action for the recovery of a broker’s commission for obtaining a drilling contract on an oil and gas lease in Rice county. The jury returned a verdict for defendants. The court rendered judgment for defendants, and plaintiff appeals.
The petition alleged that on July 6, 1935, the defendants, together with the White Rock Petroleum Company, were the owners of an oil and gas lease on certain lands; that on or about that date the defendants employed the plaintiff to secure a drilling contract on their property; that on or about July 10,1935, the plaintiff obtained the Bradley Oil Company that was ready, able and willing to enter into a contract with defendants for the drilling of the wells; that thereafter defendants entered into a drilling contract with the Bradley Oil Company; that defendants promised to transfer to plaintiff as its commission a one-sixteenth interest in the oil and gas lease, and that this interest was of the value of $10,000. Plaintiff further alleged that the services rendered by plaintiff were of the fair and reasonable value of $10,000.
The answer contained specific denials of the allegations above set forth. Upon the issues thus presented a trial was had. The jury returned a verdict for the defendant, which was approved by the court. On the issue of whether or not there was an express contract of employment, the evidence was conflicting. As the verdict of the jury was in favor of the defendant, the plaintiff admits that question is out of the case.
It is now contended that plaintiff is entitled to judgment on the undisputed evidence as to the implied contract, and that is the only question before this court.
The court gave the following instruction:
“You are instructed that an implied contract of employment arose in this case if plaintiff performed services, the benefits of which were accepted or utilized by the defendants with the knowledge that the plaintiff expected compensation therefor or under such circumstances that a reasonably prudent man would have understood that plaintiff expected compensation therefor. In such a situation the law implies a promise on the part of the defendants to pay plaintiff the reasonable value of such services, if any. So here, if plaintiff introduced a prospective buyer, the Bradley Oil Company, to the defendants, and as a result of such introduction an agreement was ultimately reached between the Bradley Oil Company and the defendants for the sale of one-half interest in said lease, and defendants knew or should have known that plaintiff was not acting as a mere volunteer but expected compensation for its services, if any, then there was an implied agreement on the part of the defendants to pay plaintiff the reasonable value of its services.”
This instruction is approved and relied upon by both parties to this controversy.
On July 6, 1935, the White Rock Petroleum Company employed the plaintiff to secure a purchaser for an undivided half interest in an oil and gas lease on certain lands. On July 10, 1935, the plaintiff wrote the defendants, in which the contract with the White Rock concern was set forth, and in which it was stated that: “Acting under that employment we sold this interest on those terms to the Bradley Oil Company, who is now willing to close the trade. We have since learned that you gentlemen are joint owners with White Rock in this leasehold, and think it advisable to have some confirmation of the transaction — some expression from you as to your willingness to enter into such a sale of the one-half interest on the said terms.” The letter invited the defendants to endorse their acceptance upon an enclosed copy of the letter to be available for closing the transaction with the Bradley Oil Company.
It is admitted the defendants refused to endorse their acceptance on this proposal. Mr. Bruce, president of the plaintiff company, testified:
“I had secured Mr. Bradley to enter into the arrangement before the 10th of July, possibly the 8th or 9th, and then I went back and wrote the letter. I did not attempt to induce Mr. Bradley to make this deal after the 10th, as he had already agreed to take it.”
Mr. Bradley testified:
“I had been dealing directly with McCrae and Harris and after the first proposed contract Mr. Bruce did not appear in the deal any further as I recall.”
There was testimony which tended to show that in January, 1936, at the instance of Mr. Bradley, the defendants McCrae and Harris induced various persons who owned an interest in the lease to sell an undivided one-half interest in the lease to Bradley for one free well to the sand and $12,500 in cash, of which the deféndants received no part.
The defendant McCrae testified:
“Mr. Bruce handed the letter to me personally and submitted this proposition to me. He did not at that time make any statement to the effect that he was expecting or claimed a commission or an interest in this oil and gas lease from me if he found a purchaser for a half interest in the lease. . . . With reference to entering into a contract of this kind, I told him that I didn’t own such interest and didn’t know where I could get them. ... I told Mr. Bruce we couldn’t sign it, and handed it to Mr. Harris and told him that I could not sign it and I never signed the contract. ... I never promised to pay Mr. Bruce or the plaintiff any money or any interest in this lease for any services he might perform.”
The defendant Harris testified:
“I was in Wichita on July 10, 1933. Mr. Bruce brought and delivered to me a letter in substance the same as plaintiff's exhibit 2. I did not sign the acceptance of this offer as it was submitted’ in the letter. I owned no interest in the lease on July 10, 1935. Subsequent to July 10, 1935, I acquired and I now own a one-thirty-second interest. ... I never told Mr. Bruce that I would give him a one-sixteenth interest or pay him any money for anything he might have to do so far as I was concerned with this lease. I never made any promise to him of any money for anything he did or was about to do in the case. He never has made any demand upon me for any money. I was present at the conference between Mr. Bruce and Mr. McCrae and myself on July 10, 1935. At the second conference Mr. Bruce had a contract which he submitted to Mr. McCrae and myself for our approval. I did not sign it and to my knowledge neither did Mr. McCrae. I told Mr. Bruce that I didn’t own any interest. That was the substance of the conversation. He left this contract with us and asked us to look it over and see if we could not work out a deal. At that time I didn’t represent any interest holders in this lease and I so told Mr. Bruce and that is the reason I gave to Mr. Bruce why I could not sign the contract.”
Mr. Bruce further testified:
“I made a demand in the Allis Hotel to Mr. McCrae, in the presence of his attorney, for the commission sometime in the early part of 1936. . . . That was at the Allis Hotel. Mr. Ellison, their attorney, was present. Mr. Harris was not in the room. I believe that was in the middle of January or Eebruary of 1936. I made a demand to Mr. McCrae. I am not sure about Mr. Harris.”
There was testimony that before the final contract between the defendants and the Bradley Oil Company was entered into, various persons holding fractional interests in the lease assigned their interests to McCrae so that they could be transferred to the Bradley Oil Company. There was also testimony that sometime after the conference between Bruce, representing the plaintiffs, and the defendants, in July, 1935, and the closing of the deal with Bradley, in January, 1936, the White Rock company sold its interest in the lease to Mr. Lassen, a director and vice-president of the plaintiff company.
The jury heard the testimony of the witnesses. They were the sole judges of the weight of the evidence and the credibility of the witnesses. From the evidence, the jury might infer that the plaintiff was employed by the White Rock company to do the work it is now suing these defendants for; that plaintiffs had contacted Bradley and had performed their part of the contract with the White Rock company before the 10th of July, 1935; that defendants were not parties to the agreement between the plaintiffs and the White Rock company; that the defendants had no interest in the lease in July, 1935; that McCrae never had any beneficial ownership therein at any "time; that the one-thirty-second interest of Harris was not acquired before the final deal was concluded in January, 1936; that the defendants received no part of the $12,500 paid by the Bradley Oil Company pursuant to the terms of the contract in January, 1936.
We are therefore unable to agree with the contention of the plaintiff that he was entitled to judgment on the undisputed evidence, or that the motion for a new trial should have been granted. Whether the plaintiff was the effective cause in procuring the contract— whether the plaintiff, prior to January, 1936, notified the defendants that a commission was expected, and whether the defendants received any benefit whatever, were questions upon which the evidence was in conflict. There was conflict in the evidence as to the existence of an implied contract. The jury by their verdict resolved these questions in favor of the defendants. The rule often announced by this court is that facts determined by a jury on conflicting evidence are conclusive and will not be disturbed on appeal. (Carpenter v. Aldridge, 133 Kan. 465, 300 P. 2d 1065; Pease v. Reser, 122 Kan. 433, 252 Pac. 211; Lindberg v. Pence View Farming Co., 140 Kan. 138, 33 P. 2d 1102.)
For the reasons stated, the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for wages and for penalties under G. S. 1935, 44-307 and 44-308. Judgment was for plaintiff. Defendant appeals.
The action was begun in the city court of Wichita. In his bill of. particulars plaintiff claimed $10.92 for wages actually earned and $10 refund of moneys under the railroad pension act. The defendant filed answer alleging a general denial and that he was trustee in bankruptcy appointed by the federal court. He offered to confess judgment for $4.60 and costs. The bill of particulars was filed on August 23, 1937, and the trial in the city court was on September 8, 1937. The employment was terminated on August 3, 1934. The defendant offered during the course of the trial to confess judgment for $4.60 and costs. Judgment was rendered in the city court for $4.60 for wages actually earned and $74.62 for penalties.
The penalties were included in the judgment pursuant to the terms of G. S. 1935, 44-307 and 44-308. These two sections provide that when an employee leaves the service of a firm or corporation it is unlawful for the company to refuse to pay him within ten days of the termination of the service. The section provides that as a penalty for so refusing to pay an employee within ten days of his leaving the service the company shall continue to pay the employee the wages for which he was working from the date of the discharge at the same rate as if he were still in the service until complete settlement is made.
The matter of the amount of the judgment over and above the $4.60 allowed for actual money earned was simply a matter of calculation. On the appeal to the district court a jury was waived and the case was submitted to the trial court. The evidence, as far as we are concerned with it in this review, consisted of the transcript of evidence in the city court. By the time this trial occurred more time had elapsed since the termination of the service.
When the appeal was taken from the city court the defendant paid to the clerk of that court the amount of that judgment. The trial in district court was a trial de novo. This record discloses, however, that the only matter considered and passed on by the trial court was the question of the penalty. The question of whether the judgment for $4.60 was correct was never considered by the trial court.
The judgment was rendered for penalties to the date of the trial in district court for $254.28. The $4.60 for wages actually earned was no part of this judgment. Motion for a new trial was duly filed and overruled. The defendant appeals.
Plaintiff is met at the outset by the fact that he sued in the first place for about $20 in addition to the penalties. The city court gave him judgment for $4.60 only. He did not appeal from this judgment, nor did he press the matter of how much was actually due him for money earned when the trial occurred in district court. We therefore are forced to the conclusion that instead of the $20 sued for by plaintiff and claimed by him to be actually due there was due him only $4.60. Plaintiff does not dispute this.
Since this is the case, then G. S. 1935, 44-307 and 44-308, do not apply. It would not do to say that every time an employee’s service with a company was terminated and there was a dispute about the amount due, the company should be made to pay a penalty for not paying the amount demanded, especially when it afterward turned out that the company was right. To so hold would permit unscrupulous employees to make demands they knew would not be met, and later bring an action for penalties. The statute was not intended to bring about such a result.
Plaintiff is also met with the point that he did not give defendant any notice in writing of the place where the payment should be made. Such a notice is required before an employee may avail himself of the provisions of G. S. 1935, 44-307 and 44-308. (See Hurt v. Edgell, ante, page 234, 75 P. 2d 834.) We are not concerned with the question of whether defendant could appeal from the city court, to the district court from part of the judgment only since plaintiff did not see fit to raise that question in the district court.
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The opinion of the court was delivered by
HutohisoN, J.:
This was an action to recover from the vendors a $15,000 advance payment made to them by the mother of plaintiff on the purchase price of 1,000 acres of land in Chase county, near the town of Cottonwood Falls, at $80 per acre, the terms and conditions of the sale being expressed in a written contract, a copy of which was attached to the petition as an exhibit. The legal question involved herein is whether the advance payment was a penalty or liquidated damages. An answer and an amended answer were filed by the defendants, but they were by leave of court withdrawn and defendants demurred to the petition, which demurrer was sustained by the court, and from that ruling the plaintiff appeals.
The petition alleged the mother of the plaintiff, on the 11th day of April, 1935, entered into a written contract with the defendants to purchase this land for $80,000, the advance payment of $15,000 having been made by the purchaser to the defendants at the time the contract was executed, and the remaining $65,000 was, by agree ment, to be paid on March 10, 1936. The petition further alleged that the mother of plaintiff, in June, 1935, sold and assigned her interest in this contract to her son, the plaintiff, a copy of which written transfer or assignment was attached to the petition. The oetition also alleged that the plaintiff notified the defendants six days before the date when the last payment was due that he would be unable to pay the same and made demand upon them for the return of the amount advanced.
The petition further alleged that at the time of the execution of the contract between the mother of the plaintiff and the defendants the provision concerning the retaining of the down payment by the defendants in case of failure of the purchaser to carry out the terms of the contract was inserted in the contract without making any calculation of actual damages, and it was regarded by the parties to the agreement simply as a down payment. The petition also alleged that the defendants have not suffered or sustained any damages whatsoever by reason of the failure of the plaintiff or his mother to carry out the terms of the agreement, and that the defendants have at all times been in possession of the property.
The petition contained no allegation of fraud or of failure of any kind on the part of the defendants to perform the terms of the contract.
The paragraph in the contract with reference to forfeiture thereof is as follows:
“It is further agreed by the parties hereto, that if default be made in fulfilling this agreement, or any part thereof, by or on behalf of said party of the second part, this agreement shall, at the option of the first parties, be forfeited and determined, and said party of the second part shall forfeit all payments made by her on the same, and such payments shall be retained by said parties of the first part, in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to retain possession of said premises.”
, Appellant insists that the statement in the contract that the payment advanced was liquidated damages is not controlling when it is alleged that no damages were actually calculated in connection with the making of such a statement, and he relies strongly upon the decision in the case of Condon v. Kemper, 47 Kan. 126, 27 Pac. 829, where it was said in the opinion:
“. . . when it may be seen from the entire contract, and the circumstances under which the contract was made, that the parties did not have in contemplation actual damages or actual compensation, and did not attempt to stipulate with reference to the payment or recovery of actual damages or actual compensation, then the amount stipulated to be paid on the one side, or to be received or recovered on the other side, cannot be considered as liquidated damages, but must be considered in the nature of a penalty, and this even if the parties should name such amount 'liquidated damages.’ ” (p. 130.)
The case just cited, however, was not one where advance payment had been made on a purchase price, but was upon a contract to either build a wall on a party line or move a frame house back and put it in good repair, and the contract stipulated as follows: “that a failure on the part of said Condon to perform these obligations shall entitle said Kemper to recover from him the sum of $500 as liquidated and ascertained damages for the breach of this contract.” Condon failed to do either, but it was shown that the moving of the house would not have cost more than $100, and in conclusion the court held:
“. . . that the sum of $500 mentioned in such contract as liquidated and ascertained damages, must be treated as a penalty and not as liquidated damages.” (Syl.)
Appellant also cites Evans v. Moseley, 84 Kan. 322, 114 Pac. 374, where an advance payment of $3,000 was made on the purchase of a thousand head of cattle, and the agreement made the advance payment a forfeiture in case the purchaser failed on his part and also to be returned to the purchaser if the owner of the cattle should fail to deliver the cattle in addition to any and all sums on account of shortage in number of cattle delivered. It was there said in the opinion:
“Notwithstanding the language used in the contract, it is difficult if not impossible to believe that the parties really intended that $3,000 should be forfeited or recovered alike for a total failure or for a failure to deliver twenty or forty head of the cattle. . . . We hold, therefore, that the trial court correctly construed the stipulation as one for a penalty only.” (pp. 329, 330.)
Another case cited by appellant is Benfield v. Croson, 90 Kan. 661, 136 Pac. 262, where, by contract, an exchange was made of land for merchandise (to be invoiced) and each party put up with a third party $500 as a forfeiture for failure of performance, and the court held:
. . the language of the contract providing for a forfeiture and not for stipulated damages should control in the absence of circumstances indicating a different intention; that actual damages resulting from a breach of the contract were readily provable without entering into the realm of speculation and conjecture; that the amount of the stake was fixed without reference to com pensation for loss in case of a breach; and that upon default by one party the other could not enforce the forfeit.” (Syl. ¶ 1.)
See, also, Kuter v. Bank, 96 Kan. 485, 152 Pac. 662.
The case of Heatwole v. Gorrell, 35 Kan. 692, 12 Pac. 135, was where one party sold his business and good will to another and bound himself in the sum of $500 that he would not engage in that business at the same place for a period of five years. It was there held that the sum named in the instrument was a penalty and not liquidated damages, and for the breach the purchaser could recover only actual damages.
Another case cited is Methodist Episcopal Church v. North, 92 Kan. 381, 140 Pac. 888, where a church sold its own building and the lot on which it was located for $1,000, and the purchaser failed to pay the same. Thereafter the church sold the property to another for $320 and sued the former purchaser for the difference, or $680, but the court held he was only liable for the actual loss, and the measure of damages was the difference between the contract price and the market value when the breach occurred.
The case of Land Co. v. Barton, 51 Kan. 554, 33 Pac. 360, concerned the sale of land where a guaranty was given in writing for the conveyance of certain real estate upon the payment of a specified price, and the guaranty was held to be a penalty for the breach, of which the injured party would be entitled to recover actual damages only.
In none of these cases just cited were there any advance or down payments made on the purchase price except in the Evans cattle case where the advance payment was made a forfeiture for the breach of either party. In all the other cases, except the church case, forfeitures were simply designated or put up with third parties, which is quite different from making a partial payment on the purchase price.
In the consideration of the demurrer to the petition we must accept as true the allegation that when the contract was executed no attempt was made to calculate the amount of actual damages that might be sustained by defendants in case the purchaser should fail to make the final payment. This is considered uniformly to be a strong reason for holding such forfeitures to be only penalties instead of liquidated damages. But that feature must be weighed in the balance of justice as being directly and positively opposed to the definite written agreement of the parties that they intended it for liquidated damages. Such allegations tend mostly to show a lack of accuracy in stating the intention of the contracting parties. In 8 R. C. L. 559 the difference between these elements is stated as follows:
“. . . the distinction between a penalty and liquidated damages being that the one is a surety for, and the other is to be paid in the event of nonperformance of, the act to be done.”
The same text, further commenting thereon, refers to the language of the contract sometimes being ambiguous and the amount named being excessive. In the case at bar it is not claimed that there was any ambiguity in the language used in the contract, although it is claimed the amount is excessive, that the vendors suffered no loss whatever, and that when making the contract damages were not considered by them.
In the case of Hull v. Allen, 84 Kan. 207, 113 Pac. 1050, it was held:
“A purchaser of land who makes a deposit of money, under a written contract that if the balance of the consideration is not paid as agreed upon the deposit will be forfeited, cannot recover the deposit if the consideration is not paid and the contract carried out because of his fault.” (Syl. f 1.)
In the case of Hillyard v. Banchor, 85 Kan. 516, 118 Pac. 67, it was held:
“It is a general rule that a purchaser of land who has made an advance payment and then failed to fulfill his contract without default on the part of the vendor cannot recover the amount so paid.” (Syl. H 4.)
The last-cited case commented upon and followed the decision in the case of Frederick v. Birkett, 37 Kan. 536, 15 Pac. 510.
Two more recent cases, Wensler v. Tilke, 97 Kan. 567, 155 Pac. 946, and Bently v. Keegan, 109 Kan. 762, 202 Pac. 70, were each to recover the advance or down payment on the purchase price of real property where there was a contract providing for the retention of such payment by the vendor in case of a breach of the contract by the vendee. They both cited the Hillyard case with approval and reached the same conclusion. In the Bently case it was held specifically that “the initial payment shall be retained by the vendor as liquidated damages.”
The case of McClanahan v. Sehon, 113 Kan. 482, 215 Pac. 277, also involved an advance payment made upon real estate where the action was brought by the purchaser to recover the same, and not only the Hillyard case, but also the last two cases above cited, were therein cited and approved.
See, also, Brown v. Kaufman, 123 Kan. 427, 255 Pac. 1113, which was not a case of sale of land but of machinery, but the same principle was involved as to fulfilling the conditions of the written contract of purchase; also, the case of City of Topeka v. Industrial Gas Co., 135 Kan. 646, 11 P. 2d 1034, which concerned a bond and a city ordinance concerning gas franchise.
Appellant urges the time-honored recognition of the rule as to the law abhorring forfeitures, and in that connection it was held in the mining case of Hinshaw v. Smith, 131 Kan. 351, 291 Pac. 774, that — -
“While the law abhors forfeitures, it does not abhor the fulfilling of contracts voluntarily made in which parties have bound themselves to perform certain definite requirements or lose their rights under such contracts.” (Syl. ¶3.)
No one would maintain that if the loss and damage to the defendants by reason of the failure of the plaintiff to make payment of the balance of the purchase price was more than the advance payment to which the contract limited their damages that they could recover the actual amount of their damages even in excess of the advance payment. If the advance payment under the contract in this case is a penalty as far as the purchaser is concerned, it should be the same as to both parties.
We are positively of the view, in line with the cases last above cited, that the advance payment under the contract in the case at bar is in the nature of damages and not a penalty, and it was forfeited by the failure of the plaintiff to perform the agreement on his part.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to cancel a contract for the sale of real property because of defaults in payments. The trial court made findings of fact and conclusions of law and rendered judgment for plaintiff. Defendants have appealed.
On June 15, 1928, William Shick, then the owner of certain real property in Wichita, on which a greenhouse was situated, and defendants entered into a contract in writing by which Shick agreed to sell the property to defendants for $7,000, of which $1,000 was paid in cash and the balance to be paid, at times stated, in $500 payments, with interest on deferred payments. Defendants were to pay the taxes. .There were provisions for forfeiture of the contract for nonpayment, with a grace period of six months if made necessary by sickness. Under their agreement this contract and a deed for the property, executed by Shick, were placed in escrow in a bank at Wichita, where the payments were to be made. The deed was to be delivered to defendants when the full amount, with interest, was paid. Defendants made payments aggregating $3,000 by 1930 on the principal sum to be paid, and interest to July, 1931. Since then no payments have been made on principal or interest.
After this contract was executed Mr. Shick, an elderly man, spent most of his time in California, but retained Wichita as his home and visited defendants there for short periods, perhaps each year. Their personal relations were friendly. Each was experienced in conducting a greenhouse. Defendants rented from Mr. Shick a residence owned by him and situated near the greenhouse, but no controversy over that is involved in this action.
William Shick died September 3, 1935, leaving a will, which was duly probated, and plaintiff was duly appointed and qualified as administratrix of his estate with the will annexed. She brought this action July 28, 1936, alleging the pertinent facts above stated; that the payments to have been made on the contract were in default and taxes for certain years unpaid, and asked to have the contract forfeited. The answer admitted the execution o.f the contract and the payments alleged to have been made, claimed credit for some additional payments, and alleged that about 1932 William Shick waived further payments and forgave the balance due because of the reduced value of the property and impairment of the greenhouse business resulting from the financial and business depression, and by a cross petition defendants sought to have the deed still in escrow delivered to them. These allegations of defendants were denied in a reply and in an answer to the cross petition. In addition to facts contained in the pleadings the court made this finding:
“The property was. sold during the high prices of property. In. 1932-33 properties were at a low ebb because of the depression. In either the summer of 1932 or 1933, the time being somewhat uncertain under the evidence, Shick had conversations with the defendants and also with a workman at the greenhouse, in which he told the defendants to go ahead and make improvements upon the property and not to make payments to him upon the principal and interest on the contract. His conversation, in substance, was that he would take care of them on the contract; that they had paid as much as the property was worth, and for them to go ahead and improve the property. From that time until his death he made no further demands upon them for payment. Mr. Kauer wrote from time to time, telling of the difficulty of making money in the greenhouse business, and stating, in substance, that he would be able sometime to pay on the agreement.
“Mr. and Mrs. Kauer put improvements upon the greenhouse property, including the rebuilding of one section, benches, pumps, pipes, etc., amounting to, in all, the sum of SI,500 over a period of approximately three years.
“At no time did Mr. Shick, in writing, release the defendants from the contract nor did he authorize the bank to release the deed and contract in escrow to the defendants, and no demand has ever been made upon the bank by the defendants for the deed and contract.”
Also, the court made the following conclusions of law:
“1. The transactions between the deceased and the defendants did not amount to a cancellation or release of the contract or a gift of. the property.
“2. The plaintiff is entitled to judgment canceling and terminating the contract and for possession of the property, but because of payments and improvements made on the property pursuant to conversation with the defendants [they] should in equity be allowed six (6) months’ possession of the property and that amount of time in which to make up the back payments due under the contract, together with interest, insurance and taxes and the costs of this action, and if they fail to do so then the plaintiff should at such time have immediate possession.”
Defendants’ exceptions to the findings made, request for additional findings, and motion for a new trial were overruled.
Without really taking exceptions to the court’s findings on the ground they were not sustained by the evidence, appellants argue the evidence showed that a new contract was made in 1932 or 1933 which took the place of the original one, hence that no action could be maintained on the original contract. We find no support in the record for that view. We think the finding quoted is fully as favorable to appellants as the evidence warrants. There was correspondence between the parties. While it is true these letters do not show that Shick “dunned” defendants for payments after 1933, they do not show the payments had been forgiven, or a new contract had been made; and defendants’ letters to Shick repeatedly spoke of the writers’ desire and efforts to make further payments on the original contract in the near future. They said nothing about payments having been forgiven, or a new contract-having been made.
Appellants contend that upon the facts found by the court, the conclusions of law and judgment should have been in their favor. They point to the words in the finding, “At no time did Mr. Shick, -in writing, release the defendants from the contract.” They argue that it wa's not essential for the release of the contract to be in writing, citing 13 C. J. 588 and cases from- other states, to the effect that an executory contract may be discharged at any time before performance by a new contract, with the effect of altering the terms of the original contract, or rescinding it altogether. We are unable to see how the rules stated in these authorities have much bearing here. There was no finding a new contract had been made; neither would the evidence abstracted have supported such a finding; neither did the court rule that the release of defendants from their obligation on the contract had to be made in writing in order to be valid; hence, we do not have the correctness of such a ruling before us. All .the court was doing by the use of the language last quoted was making a finding that defendants were not released of their obligations under the contract by any writing executed by Shick. No contention is made that this finding is inaccurate.
. The court did find that Shick told defendants, in substance, that he would take care of them on the contract. That is quite different from a finding that Shick told defendants he would release them from further payments on the contract. No finding of that kind was made. Shick did take care of them to the extent that he did not ask for payments for more than four years after the last payment had been made, during which time defendant, Guido Kauer, was writing him about circumstances and conditions and his hope and desire to make payments on the contract at an early date.
Wé note when the court’s final judgment-was rendered, February 19, 1937, defendants were given an additional six months’ time in which to make payments, and at the argument we were told that time had been extended two months.
We see nothing wrong with the court’s decision, nor any 'reason for defendants to say they have not been dealt with equitably.
The judgment of the court below is affirmed. ■ | [
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The opinion of the court was delivered by
HutchisoN, J.:
This action was commenced in the district court of Elk county by the daughter of the deceased testator against the executor and plaintiff’s three children, asking for a judicial construction of her father’s will and that she be adjudged and decreed to be the owner and holder of certain real and personal property described in the will by virtue of being devised an estate tail therein.
The trial court held the will did not create an estate tail in the plaintiff and that the deeds and transfers made for the purpose of breaking an entailment were ineffective, but that she, after the death of her mother, held an equitable estate for life, and that her children had a vested remainder as representatives of their class. The court further held that the will by implication made the executor a trustee of the entire estate for the benefit of a life tenant and the remainder-men, it being clearly evident the intention of the testator was to create a trust which was necessary to control and dispose of his property to accomplish his purpose. From the judgment so construing the will, plaintiff appeals.
A copy of her father’s will was attached to the plaintiff's petition, and the portions thereof now under consideration are as follows:
"I hereby give, devise and bequeath all of my property, both real and personal of whatsoever kind and wheresoever situated to my beloved wife, Mary J. Jordan, to have and enjoy during the term of her natural life and at her death, the use, benefit and income from said property to be paid t.o my beloved daughter, Mamie Jordan Taylor, during the term of her natural life. At the death of the said Mamie Jordan Taylor I hereby give, devise and bequeath all of my property then remaining, both real and personal of every kind and character and wheresoever situated, in fee simple, t.o the living issues of the body of the said Mamie Jordon Taylor, if any there be.
“In the event [of] the said Mamie Jordan Taylor shall not be living at the time of the death of my beloved wife, Mary P. Jordan, but shall leave living issue, then and in that event my estate, both real and personal, shall pass to said living issue share and share alike, upon their becoming of age.
“Should my executrix hereinafter appointed, or her successors, see fit at any time, I hereby authorize, direct and empower said executrix with the approval of the probate court t.o sell any of the property of my said estate, either real or personal, and execute proper conveyances therefor and to reinvest the proceeds therefrom in real-estate mortgages or municipal securities and the income from said investments shall pass and be distributed as hereinbefore provided.”
An intervening paragraph spoke of the disposition the testator desired to be made of his property in the event his daughter should not be living at the time of the death of his wife “nor leave any living issue of her body at her death.”
The will at the time it was executed was accepted by the wife of the testator. It was executed on June 12,1926, and the testator died on November 12,1928. The will was admitted to probate November 27, 1928, and the wife was appointed executrix, which position she held until her death on February 11, 1929. On March 1,1929, J. C. Shoemaker was duly appointed and qualified as executor.
The petition stated that at the time the will was executed the daughter was married but had no children, but one was born to her before the death of her father, and two since. They are, Wanda, Lee and Glen Taylor, who are defendants herein. The petition further stated that the plaintiff and her husband, on September 5, 1936, for a valuable consideration, conveyed the real and personal property to A. R. Karns, and that he, a single man, on September 8,1936, for a valuable consideration reconveyed the same real estate and personal property to the plaintiff, and that both deeds were duly recorded in the office of the register of deeds of the county. Guardians ad litem, were appointed for the three children and they filed an answer for the children, denying generally the construction placed upon the will by the plaintiff. The executor also filed a similar answer. Thereafter plaintiff filed replies in the form of general denials to each of these answers. On the trial the parties entered into a stipulation to the effect generally that the facts stated in the petition were true.
There is probably no legal question in this state that is more perplexing and confusing to our profession than that concerning estates tail. We have perhaps twenty-five or more decisions of this court construing wills and applying the law on this subject to the language used and circumstances prescribed in the wills, since the decision in the case of Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, holding the doctrine of estates tail still exists in Kansas. The following are some of the definitions of estates tail recognized in Kansas:
“Estates tail are estates of inheritance which, instead of descending to heirs generally, go to the heirs of the donee’s body.” (21 C. J. 931.)
“An estate tail is where lands and tenements are given to one and the heirs of his body begotten.” (10 R. C. L. 656.)
“An estate tail is an estate of inheritance which descends only to the heirs of the body of the donee or to some special class of such heirs.” (Burdick on Real Property, p. 68.)
“An estate tail or fee tail is a freehold estate in which there is a fixed line of inheritable succession limited to the' issue of the body of the grantee or de- visee, and in which the regular and general succession of statutory heirs at law is cut off.” (Gardner v. Anderson, Trustee, 116 Kan. 431, syl. ¶ 3, 227 Pac. 743; and Houck v. Merritt, 131 Kan. 151, 153, 289 Pac. 431.)
“A devise of land to a person for life and providing that upon the death of such person 'the fee title shall vest, and become the property of the children bom of the body’ of such person, constitutes an estate tail which the' tenant in tail may transform into an estate in fee simple by a conveyance.” (Davis v. Davis, 121 Kan. 312, syl. ¶ 1, 246 Pac. 982.)
“A deed of land to a person for life and providing that ‘if she leave surviving her children of her own blood, then said children shall at once become the owners of the land conveyed by this deed,’ constitutes an estate tail which the tenant in tail may transform into an estate in fee simple by a conveyance.” (Lisman v. Marks, 126 Kan. 344, syl., 267 Pac. 963.)
“The essential and distinguishing earmarks which denote the creation of an estate tail are an interference with and curtailment of the statutory rules pertaining to the descent and distribution of real estate and a limitation of the' right of inheritance to the issue of the body of the grantee or devisee.” (Woodley v. Howse, 133 Kan. 639, 640, 3 P. 2d 475.)
In the case of Ewing v. Nesbitt, supra, the will which provided “I will and bequeath to my daughter, Mary A. Nesbitt, nee Ewing, and to the heirs of her body (describing lands) ” was held to create an estate tail.
From these definitions it will be observed readily that those who are to inherit after the death of the daughter, namely, the “issue of the body of the said Mamie Jackson Taylor, if any there be” come fully within the terms and requirements necessary to effect an estate tail as far as their designation and description are concerned. And since those who are to inherit are limited to the “issue of her body,” as they are also described in the subsequent paragraph of the will, such will does not come within the restriction of our statute, G. S. 1935, 22-256, which affects only “heirs in fee or by words to that effect.”
Appellees call our attention to the provision in the will that such heirs of her body are given the property then remaining after her death “in fee simple.” In the case of Davis v. Davis, supra, the expression used in the will by the testator as to subsequent takers was, “It is my further will and bequest, that the fee title to the real estate . . . upon the death of my said granddaughter . . . shall vest and become the property of the children born of the body of the said (granddaughter),” and it was held to create an estate tail.
The term “in fee simple” was used in the deed in a similar connection in the case of Somers v. O’Brien, 129 Kan. 24, 281 Pac. 888, it being therein stated that at the death of the daughter the property conveyed to her was to go “in fee simple” unto the issue of her body, and it was held:
“The grant is to her for life and ‘at her death in fee simple unto the issue of her body’ — the founding of a line of inheritance of the grantors’ own choosing at variance with the mode of intestate succession prescribed by statute. It is therefore an estate tail.” (p. 28.)
In the case of Houck v. Merritt, 131 Kan. 151, 289 Pac. 431, the will devised the property to the daughter “to her own use during her natural life and at her death to her children, the issue of her body, in fee simple forever,” and the will was held to have created an estate tail.
In 1 Tiffany on Real Property, 2d ed., a fee-simple estate is thus defined: “An estate in fee simple is an entire interest and property in the land,” and the author follows that definition with the following distinction:
“While the words ‘fee simple,’ or ‘fee simple absolute,’ are ordinarily used to distinguish a fee-simple estate from other estates of inheritance, hereafter discussed, such as ‘fee tail’ or ‘determinable fee,’ the word ‘fee’ alone, without any qualifying words, serves to designate a fee-simple estate, and is not infrequently used in that sense.” (p. 44.)
“ ‘An estate in fee simple is where a man has an estate in lands or tenements to him and his heirs forever.’ A fee simple is the greatest interest and the most, absolute in the rights conferred that one can have in real property.” (1 Thompson on Real Property, p. 781.)
“A tenant in fee simple' is one who has lands or tenements to hold to him and his heirs forever. A fee, in general, signifies an estate of inheritance, and a fee simple is an absolute inheritance, clear of any condition, limitation, or restriction to particular heirs. It is the highest estate known to the law, and necessarily implies absolute dominion over the land.” (10 R. C. L. 649.)
“A tenant in fee simple is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever; generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law.” (21 C. J. 918.)
The very use of this term “fee simple” is contrary to such inheritance being subordinate to others and was undoubtedly intended by the testator to be an absolute and complete estate of inheritance in such parties, namely, the issue of the body of Mamie Jordan Taylor.
In the Somers and Houck cases, where the term “in fee simple” was used as to the character of the estate which those taking in remainder would inherit under the terms of the wills, and also in the Davis case, where the term used in the same connection was “the fee. title,” these terms do not seem to have been especially or separately considered in those opinions nor to have been made in any way the basis of the rulings which in fact ignored or minimized their usual or ordinary meaning and significance, the decision being made entirely upon other language in the wills justifying the conclusions reached. For this reason the rulings in those eases are not as persuasive as to the meaning and effect of these expressions as appellant insists. The will in the case of Meyer v. Meyer, ante, p. 664, 78 P. 2d 910, contained the words “in fee simple” in a similar connection, and in the opinion handed down in that case this month, it is held that the will did not create an estate tail.
Two other reasons are given in support of the ruling of the trial court that the interest held under the will in this case by the first taker was not an estate tail. The first is that the limitation over is upon a definite failure of issue. A time is definitely fixed for the possibility of such failure, viz., at the death of Mamie Jordan Taylor, and also in a subsequent paragraph of the will it outlines a possible situation where Mamie might die before her mother and might not “leave any living issue of her body at her death.” This, too, definitely fixes the time as to the failure of issue at her death. Both expressions make her death the time when the failure of issue of her body shall be determined. The case of Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904, was very similar in this respect, and it was there held:
“A testator devised certain real estate to his granddaughter to be held for her sole use during her natural life and then to go in fee simple to the issue of her body living at ihe time of her death, and if she died leaving no living issue of her body, then to go in fee simple to such half brothers and half sisters as may be living at the time of her death, but if she died leaving no half brothers or half sisters, the property should go to the children of the testator. The granddaughter claimed that the will gave her an estate tail' in the property. Held, that as the limitation over is upon a definite failure of issue, that is, upon the death of the granddaughter, an estate tail was not created.” (Syl. ¶ 1.)
In the case of Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433, a will was considered wherein property was devised to a daughter in trust for the heirs of her body, either children or grandchildren, if any, to take in equal shares, providing that if the daughter died without any child or children of her body surviving her, then after her death it should become the absolute property of the children of the brother of the testator, and it was held that the devise did not create an estate tail, because a failure of issue was definitely fixed by the testator as of the time of the death of the first taker, the daughter.
It is said in 10 R. C. L. 657:
“. . . if it appears that the limitation over was not postponed until an indefinite failure of issue, but on failure of children only, or on failure of issue within a given time, the estate will not belong to the class known as estate tail.” (See, also, Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682.)
The second reason assigned why the provisions of the will under consideration do not create an estate tail is because no bequest as to either the real or personal property was made to the daughter: She was given only “the use, benefit and income from the property” after her mother’s death and the executor was put in charge of the property with authority to sell the same and reinvest the proceeds therefrom, and the income therefrom was to pass and be disposed of as provided by the will. This provision would prevent the first-named beneficiary from ever having had any title or ownership of any of the property which she could convey. This matter was considered in the case of Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884, and it was there held:
“Where an estate is devised in trust and active duties are imposed upon the trustee thereof for the' proper execution of the trust, and the interest of the beneficiaries therein is specifically limited to the net income of the trust estate, which is to be paid to them annually during their lives, and after the death of the last survivor of them the remainder estate is to be divided between the heirs of their bodies, such testamentary disposition of property does not create an estate tail which can be broken by a conveyance.” (Syl. If 2.)
It was held in the case of Johnson v. Coolbaugh, 109 Kan. 597, 201 Pac. 59, that—
“A trust created by a will imposed upon the trustee the power and responsibility of paying to the widow of the testator so much of the income from real estate as might be necessary for her support during her life, and at her death the income was to be paid to a son during his life, and if he left children surviving him, then] at his death, the income was to be paid to them for a period of twenty years, at which time the fee title was to vest in them. Held, that the trust is an active and not a dry or passive one, and that it cannot be executed until the time arrives for the final distribution (Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884), and further held, that the only interest acquired in the real estate by the. testator’s son is a life use of the income from the time of his mother’s death.” (Syl.)
The language of the will plainly by implication made the executor a trustee of the entire estate for the benefit of the life tenant and remaindermen, it being clearly evident that the testator intended to create a trust which was especially necessary to control and dispose of the personal property.
It is said in the Restatement of the Law of Property, section 200:
“When a will creates successive interests in a thing other than land 'and such will is reasonably susceptible of the construction that the executor of such instrument is to become trustee of the thing for the benefit of the owners of such interests, then a trust is created.”
It was also stated in 69 C. J. 709:
“The question of whether a trust has been created in a will is largely one of intention, to be determined from the whole will and the surrounding circumstances.”
In the case of Phoenix Mutual Life Ins. Co. v. Nevitt, post, p. 772, 78 P. 2d 913, which is being handed down this month, it was held:
“Where the income from real estate is devised to certain parties for life and it is provided that these parties may sell the real estate from time to time and invest the proceeds in securities and at the death of the last survivor of these parties the remaining personal property and real estate shall go to the bodily heirs of the named parties, the will does not create an estate tail that can be terminated by conveyance.” (Syl. ¶ 3.)
The appellant insists that the rule with reference to estates tail is different with personal property, and that her mother, under the terms of this will, became the owner of and entitled to all the personal property on the death of her husband; and that since the mother died intestate, leaving the appellant as her only heir at law, the appellant is now the owner of all the personal property by inheriting it from and through her mother. To this argument we cannot agree, as the personal property was mentioned in the will and directions were given the executor as to disposal thereof for the benefit of the beneficiaries under the will.
We conclude that the trial court was correct in its ruling that the will in this case did not create an estate tail and that the will by implication made the executor a trustee of both real and personal property for the benefit of the daughter and the issue of her body at the time of her death.
The trial court allowed each of the two guardians ad litem a fee of $250 to be paid, together with the costs in the trial court, out of the corpus of the estate. Appellant objects to this order, especially as to the fund from which it was ordered to be taken. This is purely a matter of discretion, and we think for the best interests of all concerned that it was a very wise choice.
Application has been made in this court for a further allowance to these two guardians ad litem for the services they have performed in the appeal, and we have decided to allow each of them the sum of $125 which, together with the costs in this court, shall be paid out of the corpus of the estate.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money. Judgment was for plaintiffs. Sometime subsequent to the obtaining of the judgment defendant filed a motion asking that it be vacated on the ground that it was void. This motion was denied. The appeal is from that order.
On July 28, 1924, plaintiffs filed a petition in which they alleged that defendant had conspired with another person to injure the title of plaintiffs to certain real estate by pretending that he was the agent of one of the plaintiffs and had authority to execute a contract to sell an interest in an oil lease on the land in question. The petition alleged that defendant did execute the contract to sell the interest in the oil lease and did place it on record; that he did this for the purpose of willfully injuring the title of plaintiffs to the land in question and that the action of defendant did damage plaintiffs. There was a second cause of action pleaded that had to do with a pretended contract to sell a royalty interest in oil and gas upon the same real estate. Both these causes of action pleaded that the contracts to which reference was made had been placed on record. The petition prayed for damages in the amount of $4,115.
Summons was issued and personal service had on defendant. On August 4,1924, defendant filed a motion to require plaintiffs to make their petition more definite and certain. The trial docket kept by the trial court shows an entry on January 29, 1925, “motion sustained.” This appeal is presented on the theory that there is no doubt but that this entry refers to the motion to require the petition to be made more definite and certain. At any rate, no amended petition was ever filed.
The journal entry in the case shows that on the 14th day of October, 1925, the case came on for hearing in court. This was nearly ten months after the ruling of the court on the motion to make more definite and certain. Two terms of court had elapsed in the meantime.
This journal entry further recited that on the day in question the case came on for hearing; that the plaintiffs appeared in person and by attorney and the defendant did not appear either in person or by attorney, although defendant Johnson had been served with a summons in person. The journal entry then recited that the cause stood in its regular order for trial; that the plaintiffs waived jury and the trial was had to the court; that the plaintiffs introduced their evidence and rested, and the court, being fully advised in the premises, found that the allegations in the petition were true. Judgment was given against the defendant for $4,000 and costs.
Executions were issued on this judgment on October 19, 1929, and October 18, 1934. The first of the above executions was returned unsatisfied. An interest in some real estate was taken under the latter execution.
This real estate was sold to apply on the judgment. The period of redemption from sale of this real estate expired while the motion to set aside the judgment was pending. Just prior to the filing of the motion to set aside this judgment garnishment proceedings were instituted and funds due defendant from a third person taken thereunder. These funds have been paid into court and are being held awaiting the outcome of this action. This motion to set aside the judgment obtained on October 14, 1925, was filed June 28, 1937. All parties are agreed that in order for this motion to be allowed the judgment must be void. The question then is whether the judgment was void or merely voidable. If it was voidable only then the motion to vacate it had to be brought within three years of the obtaining of the judgment. (See G. S. 1935, 60-3007 and 60-3008.)
The rule is stated in 34 C. J. 514 as follows:
"By the weight of authority, whether a judgment is void or voidable is to be determined from an inspection of the record. If the record discloses the jurisdictional defect, the judgment is void; if it does not, the judgment is merely voidable.”
In 15 C. J. 734 it is stated:
“The three essential elements of jurisdiction are: (1) The' court must have cognizance of the class of cases to which the one to be adjudged belongs; (2) the proper parties must be present; (3) the point decided must be, in substance and effect, within the issue.”,
The above rules are conceded to be correct by both parties. When we apply them to this case we see at once that the action was for the recovery of a money judgment. Clearly the district court of Reno county had cognizance of such a case. We see, also, that personal service was had on The defendant and he had appeared generally. So there can be no doubt but that he was in court. In other words, the trial court had jurisdiction of the subject matter of the action and of the parties.
It is the third element set out above that defendant argues is lacking in this case; that is, he claims that the judgment was not within the issues. He points out* that the motion to require the plaintiffs to make their petition more definite and certain had been sustained and that the record does not disclose any change of that order nor any compliance with it. The argument is that on account of the above there were no issues before the court at the time judgment was entered.
The question we have to decide is whether the circumstances stated constitute such a jurisdictional defect as to render the judgment void or merely an irregularity that could be corrected by appeal only.
In Barnum v. Kennedy, 21 Kan. 181, this court said:
“The parties, then, being both in court, and the court having jurisdiction of the subject matter, its judgment is valid as against any collateral attack. If the judgment was prematurely rendered, and without giving defendant the full statutory time for pleading, that is a matter of error, and not of jurisdiction; and error is corrected only by a reviewing court.” (p. 183.)
To the same effect is the holding in Wood v. Love, (Tex.) 190 S. W. 235. There the court said:
“If the judgment in plaintiffs’ favor should be construed as one by default, it would not follow that Wood’s contention that it was erroneous as to him should be sustained, because he had filed an answer to their suit. It does not appear from anything in the' record . . . that the attention of the trial court was called to the fact that he had filed an answer; or that he asked that the judgment be set aside at the term during which it was rendered. It has often been held that under such circumstances a judgment by default will not be disturbed.”
See, also, Garner v. State, 28 Kan. 790; also, Brumbaugh v. Wilson, 82 Kan. 53, 107 Pac. 792.
The statute contemplates the setting aside of judgments where an irregularity appears in the record. (See G. S. 1935, 60-3007.) The statute provides, however, that such relief must be sought within three years of the time the judgment was obtained. A much longer time than that has elapsed in this case. This case is a good. example of the reason for the provision in the statute for the three-year limitation. The judge before whom the case was tried is dead. One of the plaintiffs is dead. No doubt it would be difficult, if not impossible, for the plaintiff to marshal the evidence necessary to prove the cause of action he pleaded so many years ago. No unfair advantage is being taken of defendant. It appears that there was a docket setting for the September, 1925, term of the district court; that this case was on it assigned for trial on October 14. The court reporter makes an affidavit that -he made this setting under the direction of the court and that he sent a copy of it to each of the practicing attorneys in Hutchinson. The attorney who filed the motion for the plaintiffs to make the petition more definite and certain was a member of the bar at Hutchinson at that time.
Defendant argues that the petition was insufficient to support a cause of action for special damages even though the defendant had not appeared. This contention is answered by the following rule in Rowe v. Palmer, 29 Kan. 337:
“It is not necessary for ns to decide whether the petition states such a cause of action as would be good if challenged by a demurrer. If it contains sufficient matter to challenge the attention of the court as to its merits, and such a case is thereby presented as to authorize the trial court to deliberate and act, a judgment rendered thereon is not void. From the petition and notice by publication the court acquired jurisdiction; thereafter it had the right to decide every question that occurred'in the cause, and whether its decisions be correct or not, its judgment until reversed must be regarded as binding.” (p. 340.)
If this argument of defendant should be held good a party could wait many years and then file a demurrer and cause it to be considered and passed on just as though he had filed it within time. Such a holding would fly in the face of the provisions of the statute cited above, that irregularities must be corrected within three years.
We are not called on to say just what our holding would be had a demurrer been leveled at the petition in this case and overruled by the trial court. Such was not done. There was enough pleaded in this petition so that the court could deliberate and act intelligently. The court was able to determine the merits of the claim of plaintiffs.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained in an automobile casualty alleged to have been caused by the negligence of defendant. The jury answered special questions and returned a general verdict for plaintiff for $22,500. Defendant has appealed.
The facts, concerning which there is no substantial controversy, may be stated as follows: The state highway known as U. S. 75 south from Topeka is paved with an 18-foot cement slab. It carries a heavy motor vehicular traffic — about 1,600 vehicles in 24 hours; about 150 from 6 o’clock to 9 o’clock in the morning. From a point a short distance north of Pauline, about seven miles out of Topeka, to a point more than a mile south of Pauline, the highway right of way adjoins on the east the right of way of the defendant railroad company. South of there the railroad right of way is from one half mile to a mile from the highway as they continue south to Carbon-dale, 16 miles from Topeka. At Pauline defendant has three tracks —the main-line track, the east rail of which is 67% feet west of the west edge of the slab on the highway; east of this is a passing track 52% feet west of the slab; and west of the main-line track is the house track, 115 feet west of the slab. The depot is between the main-line track and the house track. The stockyards northwest of the depot and the grain elevator southwest of the depot are on the west of the house track, and served by it. At the W. M. Myers farm, south of Pauline, the east rail of the main-line track, being the only track at that place, is 69% feet west of the west edge of the highway slab. Even with the north line of the Myers farm, about three fourths of a mile south of Pauline station, a township road leads west from the highway U. S. 75. These railroad tracks were constructed by defendant many years ago, and since then have been maintained by it in substantially their present location, and over them defendant opérates a number of freight and passenger trains each day. At Pauline defendant has no fence between its right of way and the highway, but beginning a short distance south of Pauline it has a fence, constructed of barbed wires and posts one rod apart, along the east side of its right of way, 50 feet east of the center of its main-line track. At Pauline, to the east of the depot and grain elevator, across the highway and facing west, is the old Paul residence, with a number of large shade trees in the yard so situated as wholly or partly to shade the highway slab west of them during the morning hours. At the Myers place, south of Pauline, the residence is on the east side of the highway, and about it are orchard and shade trees so situated as to shade the highway slab, or a part of it, during the early morning hours. Perhaps about half way between the old Paul residence and the Myers place there is a large billboard on the east side of the highway and near it, so situated as to cast some shade on the highway slab in the early morning hours.
On the morning of February 27, 1935, about 9 o’clock, when this casualty occurred, there was a patch of ice, or frosty ice, about 10 rods long, north and south, on the pavement directly west of the trees at the Myers place. Near the billboard there was a similar icy patch on the pavement for a short distance, and on the pavement west of the old Paul residence there was another icy place, not so long north and south as near the Myers place, but thicker in the center and feathering out to the north and south, and there the icy spot was wider on the east side of the pavement and narrowed westerly, coming almost to a point on the west side of the pavement.
On this morning a number of the officials and civic leaders of the city of Wichita desired to come to Topeka to appear at 9 o’clock before a meeting of a legislative committee at a hearing upon certain bills. They traveled in four automobiles — Mr. Wilson, chief of po lice, and others in the front one, a Mr. White and others in the second, plaintiff and others in the third, and two women in the fourth. While they all planned to be at Topeka for the 9-o’clock meeting, the cars did not attempt to keep together on the way. Their route brought them by Pauline over highway U. S. 75 from the south. They left Wichita about 5 or 5:30 o’clock in the morning and drove to Emporia, where they stopped for breakfast. The car in which plaintiff was riding left Emporia about 8 o’clock and reached the portion of the highway near the W. M. Myers place shortly after 9 o’clock. Plaintiff and a Mr. Cahal were riding in the rear seat; Mr. Bowery, captain of detectives of the city of Wichita, was driving, and a Mr. Middlekauf was riding in the front seat with him. Approaching the Myers place from the south the pavement was slightly rolling, and as the driver approached the icy spot on the pavement there was a slight rise, or knoll. Bowery drove over this and onto the icy part of the pavement without seeing that it was icy, at a speed estimated by him at from 55 to 60 miles per hour. The car had crossed the icy place and traveled some distance on the dry pavement, diagonally to the northwest, and left the pavement, crossed a shallow drainage ditch, and into defendant’s right-of-way fence, knocked down several posts, and came to rest on its top, its front to the south. Plaintiff was thrown from the car and sustained serious personal injuries; whether sufficient to justify the large verdict in this case we need not now determine.
In his petition plaintiff alleged the injuries suffered and sustained were the direct and proximate result of the negligence of the defendant in these respects: That between the hours of 5 and 9 o’clock on the morning of the casualty, while the temperature was from 8 to 15 degrees above zero, the agents, servants and employees of defendant operated many freight and passenger trains over its tracks at Pauline, and north and south of there, and in doing so unnecessarily, wrongfully, unlawfully and negligently caused or permitted large quantities of steam and water to be discharged through the cylinder cock valves and other openings of the locomotives which they operated, and to be cast, thrown and settled on the pavement of highway U. S. 75 at Pauline, and south of there; that the servants of defendant knew, or by the exercise of due care should have known, that on account of the near proximity of the railroad tracks to the pavement, and on account of the low temperature, the water and steam so cast upon the pavement would condense quickly and form ice; that such steam and water did condense and form ice on the pavement near the Myers place, which was concealed and hidden from view of drivers on the highway from the south by the slight rise or knoll on the pavement, until the driver was upon the ice so formed; that by wrongfully and negligently casting the steam and water from the locomotives at the time and place in question defendant caused the ice to form on the pavement, making it slippery and unsafe for travel, and that defendant neglected to enforce, and its servants neglected to observe, defendant’s rule that the discharge of steam and water from safety valves, blowoff cocks and other openings of the locomotives at places where the public would suffer inconvenience thereby, must be avoided. There were allegations, also, as to the nature and extent of plaintiff’s injuries.
The answer contained a general denial and specifically denied the alleged icy condition of the pavement was the result of any steam or water blown from the locomotives of defendant, and further alleged contributory negligence of plaintiff, and that he and the driver of the car in which he was riding were engaged in a joint enterprise. The reply was a general denial.
Passing the allegations respecting contributory negligence and joint enterprise, not seriously argued by defendant, the issues respecting defendant’s liability formed by the pleadings were these: Plaintiff alleged that the icy spots on the pavement, above mentioned, were caused by steam and water which defendant’s servants caused or permitted to escape from one or more of defendant’s locomotives; that it was unnecessary for defendant’s servants to cause the water and steam to escape at the times and places they did; that they were negligent in doing so, in view of the close proximity of the railroad to the highway and the low temperature; that it was done in violation of defendant’s rule; and that the icy condition of the pavement was the proximate cause of the casualty in which plaintiff’s injuries occurred. Each and all of these allegations were denied by defendant.
It was stipulated that the temperature, as shown by the record of the United States weather station at Topeka on February 26, 1935, showed a low of 10 degrees above zero from 4 to 7 o’clock a. m., and a high of 23 degrees from 3 to 4 o’clock p. m., and 17 degrees at midnight; and on February 27 a low of 15 degrees from 6 to 7 a. m., with an increase to 18 degrees from 7 to 8 a. m., to 22 degrees from 8 to 9 a. m., and 27 degrees from 9 to 10 a. m., and 32 degrees from 10 to 11 a. m.; and that on February 27 the wind was from the northeast, at a velocity of from 3 to 4 miles an hour, from midnight to 3 a. m., and from the south, with a velocity of 4 to 9 miles per hour, from 3 to 8 a. m., and from the southwest, with a velocity of from 9 to 12 miles per hour, from 8 a. m. till noon, and that the humidity, taken at Kansas City at 7 a. m., February 27, was 94, and that the night of February 26-27 was clear, with 100 percent sunshine for the 27th. It was also stipulated that no engines except defendant’s went over its tracks near Pauline.
To show the ice on the pavement, that defendant negligently placed it there, and that this was the cause of the casualty, plaintiff produced evidence to this effect: That the pavement, other than at the three icy places mentioned, was dry. Bowery, who had come . onto this pavement 18 miles south of Topeka, testified he had seen no ice on the pavement before reaching the W. M. Myers place. The two women in the car behind him testified they had not previously seen ice, and Mr. White, in the car ahead of him, never saw any ice on the pavement all the way to Topeka, not even at the three places above mentioned, and the car in which he was riding was driven at 95 miles per hour a part of this time, perhaps while passing over one or more of the icy places above mentioned. There was also testimony of witnesses who drove out from Topeka that they saw no ice before they got to Pauline. Mr. Bowery, who had had considerable experience driving automobiles, testified that south of the W. M. Myers place he was driving along at not more than 60 miles per hour; that as he approached the Myers place there were no other motor vehicles in sight on the highway; it was a slightly rolling prairie country, and at some places the pavement was higher than others; that approaching the Myers place from the south the pavement rises gradually as far north as almost to the south end of the icy place and then is slightly downgrade for some distance; that the icy place was in the lower part of the pavement to the north; that as he came over the rise, or knoll, in the pavement, from the south he could not see the ice on the lower part of the pavement to the north until his car was on it. As to what took place he testified:
“. . . all of a sudden I had a sensation of spinning. In other words, the landscape just jumped before my eyes. ... I immediately took my foot from the footfeed and held the wheel in a very firm grip because I knew I was going forward. ... I believed I was on ice, that was the sensation, and the car was clear out of control — only thing to do was to stop, and I knew better than to put on the brakes. ... It throws you into a skid. ... It happened mighty fast; we went into the ditch; I recall hitting some fence posts; they were on my side of the car, then all of a sudden blacky blackness, then my next sensation was that of crawling.”
He crawled out of the car; it was then at rest on its top, the wheels in the air, headed south, as though it had turned end over end. Plaintiff was lying stretched out, apparently lifeless, on the ground north of the car. Mr. Cahal was lying south of the car toward the railroad embankment, and south of him was Middlekauf, who died later that day of his injuries. Bowery, though stunned, was attempting to do something for the others. He looked back over the pavement and saw ice glistening thereon. About that time Mr. De Long came. Mr. De Long was a highway patrolman. He had started to Emporia from Topeka that morning. At Pauline his car had skidded a little on some ice, but directly righted itself. He saw no ice on the pavement before reaching Pauline, and did not see ice there until his car skidded, and he thought he might not have seen it if his car had not skidded a little. Soon after he passed Pauline, and when about half a mile north of the Myers place he saw the car driven by Bowery “make this last turn. . . . The car completed a turn and came to rest.” (Some evidence tends to show it turned over more than once.) He drove on to the scene of the casualty, saw the car, the three men on the ground, and Mr. Bowery standing up, apparently dazed. He did not get out of his car at that time, but turned around and went back to Pauline and repprted the accident by telephone to the state highway headquarters at Topeka and asked them to send an ambulance, and also to send Mr. Lomax with a camera. It is stipulated the ambulance was called at 9:18 o’clock. De Long returned to the scene of the accident. By that time traffic was becoming congested. He and two other highway patrolmen who came about that time busied themselves directing traffic and taking the names of those who they thought knew something about it. Among the names taken were W. M. Myers, who was not called as a witness for plaintiff, and A. R. Bosch, and his son Walter, who testified, by deposition, to this effect: Early that morning they had gone to some timber about three quarters of a mile west of the Myers place and cut a truckload of wood. At some time while they were cutting wood they heard a train whistle to the east of them. Mr. Bosch did not take time to look to see it. Walter looked, but saw only a glimpse of a moving train, not enough to tell whether it was a freight or passenger train, or which way it was moving. They were there about two hours. They had got their load, had stopped at a farm house to put water in their radiator, and had driven east on the township road, above mentioned, to U. S. highway 75, reaching there after the accident, but while the bodies were on the ground and before the ambulance came. They were stopped before they entered U. S. highway 75 by a highway patrolman, who took their names. They got out and looked around. Mr. Bosch examined the icy place on the pavement. It was south of where the township road entered U. S. 75. Perhaps the strip was 100 feet long. He thought that would be a pretty fair estimate, but did not measure it. It looked “whitish” or “frosty” in the thickest part of it, but gradually tapered off to look more like ice as it got thinner. He saw some ice on vegetation, some on the west and some on the east side of the highway, but did not pay much attention to it. Walter testified the strip of ice on the pavement was about 100 feet long, with the north end of it near the township road. He did not notice ice on the vegetation near there. He had never seen any locomotive blow steam across the highway along this area. Both of them testified they saw two or three icy places on the pavement between there and Pauline.
Mr. Lomax was an assistant attorney for the state highway commission, whose special duty was to prepare defenses in damage actions brought against the commission on account of defects in state highways. He had investigated a number of highway accidents. Promptly on De Long’s report by telephone of the accident Lomax’s superior directed him to take his camera and go to the scene of the accident and make an investigation. He got Mr. Dean of the department to drive him out there, but first had to go to his residence for his camera and equipment. They drove south on U. S. 75, and near the south edge of Pauline, while traveling 70 miles per hour, the rear wheels of the car skidded a few inches on ice. He had seen no ice on the pavement before reaching Pauline, and did not see it there until the car skidded. He then began to watch, and about a quarter of a mile south of Pauline saw a similar slreak of ice, and another south of the township road. He thinks he passed the ambulance as he went out. On reaching the scene of the casualty he parked his car on the east side of the highway. The ambulance had gone. De Long and two other highway patrolmen were there directing traffic. Other persons were there. He first examined the highway to see if there were ruts adjoining the pavement, a hole in the road, or anything that might result in an action against the highway department. He made several photographs, counted fence posts, estimated distances, and looked at the ice on the pavement. The icy strip was about ten rods long. The north end of it was about the south line of the township road, which enters U. S. 75 from the west. The ice was a thin coating, but very slippery, really hard to walk on. At the north edge it was perceptibly thinner, not a solid coating; in the center it was solid, and at the south end it feathered out again. It was directly west of the trees at the Myers place. There were fruit and shade trees close to the highway, and these cast some shade on it during the early morning hours, though bare of leaves. He saw the wrecked car and traced its tracks back to where it had left the ice. From there the tracks bore to the west of north diagonally across the pavement and left the pavement about four rods north of the ice. From there on, when it first hit the shoulder of the highway, it looked as though they had been sliding. There was no indication of any skidding. The tracks went down into the ditch and up the back slope. The car hit the right-of-way fence, eight posts north of the township road, and followed north along the fence 15 rods, to where it came to rest. In doing so it broke off or tore out as many as twelve fence posts and became entangled in the barbed wire; had wire and one post clinging to it where it rested. Having satisfied himself there was no defect in the highway which made the highway commission liable, and having talked with some farmers about how the ice might have got on the pavement, he returned to Pauline and inspected the ice there. He found the icy patch there to be about 30 feet long north and south, in the center of the pavement, wider on the east side and narrower on the west. It was shaped much like a cone, or pyramid, with the base to the east. Ice showed on the weeds and grass between the highway and the railroad track up to within 8 or 10 feet of the track, and this was a continuation of the cone shape of the ice on the highway, and became narrower until onty a few feet wide nearest the railroad. He took three photographs, one from a position on the railroad track south of the depot and north of the elevator, with the camera pointed east toward the old Paul residence; one from the east side of the highway, with his camera pointed a little south of west toward the grain elevator, and another near the south edge of the ice, with the camera pointing west of north. These pictures show what appears to be ice on the pavement, but do not show any cone-shaped patch of ice on weeds and grass. There was a telephone pole between the railroad track and the highway, and the testimony was that there was a thin film of ice on the west side of that to about the height of a man’s head, but none on the east. The photographs do not bring that out, or the cone shape of the ice on the vegetation. With respect to these things Mr. Lomax thought the photographs not very good. De Long was present when these photographs were taken and the investigation made. His testimony was substantially the same as that of Mr. Lomax, but perhaps more clearly brought out the fact that all the ice they observed was east of a line or point 8 or 10 feet east of the passing track, the east rail of which was 52% feet west of the west edge of the slab. Mr. Lomax further testified that there was some ice along the shoulder of the ditch on the east side of the highway slab. They then went south and inspected the icy place at about a quarter of a mile south of Pauline. This was about 40 feet long north and south, a little heavier to each end than in the center, but not as heavy as at Pauline or at the Myers place. Mr. Lomax got out of the car and walked over near the right-of-way fence and observed some ice on the grass and weeds. He did not examine the fence posts for ice, and there was no telephone pole there between the pavement and the railroad track. He returned and further inspected the icy condition near the Myers place. He observed the fence posts between there and the railroad and that on possibly six of them, near the center, each had a thin film of ice on the west side but not on the east. He saw no ice on the fence posts west of the north or south end of this icy strip. He walked over to the railroad track on the township road and south on the track perhaps 100 feet, and looking east he could see ice on the grass and weeds, especially the taller ones. Looking west he could see no ice on the vegetation.
Mr. De Long had traced the tracks of the car back as much as 100 feet from the north edge of the ice, perhaps before Lomax came. At the time he did this the tracks were plainly visible. At a place about 100 feet south of the north end of the icy strip the car apparently had been traveling on the east side of the pavement, but at that point the tracks indicated a “slight skid,” and from that point had taken a direction a little west of north diagonally across the pavement and in a straight line across the remainder of the strip of ice, and on until the car had struck the fence, as testified to by Lomax.
Judge Somers and Mr. Branine, of Newton, driving north on high way U. S. 75 soon after the casualty, noticed the ice on the pavement. Asked to describe it, Judge Somers replied:
“As I remember it we came over a rise and there were' irregular patches of, oh, icy frost, stretching across the pavement, a patch, say, twenty-five or thirty yards long. There would be a clear space, then another patch of irregular outlines from the top of this rise down to where this car was turned over.
“Q. Did your car skid? A. Yes. On the first ice I noticed.”
They drove on in to Topeka and in doing so noticed other patches, the same as they had been passing, about every 100 yards or so, until they got to the underpass. This is about a mile and a half north of Pauline. He noticed none north of the underpass and had noticed none on the way before seeing the ice near the casualty.
Mr. Branine described it as follows:
“We came up over a little raise or knoll in the highway. Just on the other side to the north of the knoll we saw the group of cars and the state highway patrolman, and automobile overturned. We slowed up, asked what happened. Right at that point where we stopped there was a strip of ice on the pavement.
“Q. About how large was that strip as you remember? A. As nearly as I can estimate it from memory it would be, T would say, twenty to thirty feet.
“Q. That is north and south? A. Yes, sir, the width.
“Q. The width of the highway? A. Yes.”
He saw some icy spots or strips of ice across the pavement after he left the scene of the accident and proceeded toward Topeka. He did not recall definitely how many; anyway, two or possibly three. They were south of the underpass.
Mr. Oldham, an oil-truck driver, left Topeka that morning on U. S. 75 to go to Wakarusa, south of Pauline. Shortly after he had gone through the underpass about a mile and a half north of Pauline he saw a train at Pauline “blowing steam out across the highway.” The train was going south and was just leaving Pauline. It looked like, a passenger train and had what appeared to be a white emblem on the back, such as defendant has on some of its passenger trains. He stopped a few minutes at a house before he got to Pauline. At Pauline he noticed ice on the pavement just south of the depot, because his car swerved. He had not seen it before his car hit it. As he went on south he noticed two more icy places on the pavement. At the first of these his car did not swerve — he was watching; the next one was near the scene of the accident. When he reached there De Long and Lomax and others were there. He testified the injured men were still there and that he left soon after they were placed in the ambulance, but as to this he was probably in error. He described the ice near the Myers place as being south from the Myers’ mail box, about 100 feet south of the township road, and to be about 10 rods long north and south, and that he observed there was ice east of the highway clear out on the wheat stubble and west to within 10 or 12 feet of the railroad tract. It does not appear that he went off the highway. He had noticed no ice on the pavement that morning before he reached Pauline nor after he passed the Myers place in going to Wakarusa.
Mr. Bowery, recalled, testified that from 1923 up to and including a part of 1928 he was employed as a boilermaker for the Orient railroad, in its shops at Wichita, and continued to work for a few months after defendant had purchased that railroad. He was familiar with the engines then used and the construction of the boilers thereon, which he described; that the steam pressure of the engines varied from 75 to 225 pounds per square inch; that water can be released from the boilers of engines through what is termed “blowoff cocks.” These are located one on each side of the engine, near the center, slightly above the mud ring and near the lower part of the water-carrying space in the boiler. The valves of the shutoff cocks do not operate automatically, but are opened by a lever, which the engineer or fireman pulls and holds as long as he wants the water to run. They have an opening of about an inch and a half. When the blowoff cock is open water and steam are thrown out by the pressure of the steam in the boiler. He has seen it cast out as far as from 150 to 200 feet. These are sometimes opened while the train is running, to clean out the sediment or the settlings, whatever they may be, near the bottom of the boiler. He thought some of the engines! he worked on were still being used on the Santa Fe, but they were not the large engines used at the present time; but he had looked over some of those engines, either in the yards or as he drove along near the tracks, and thought they all had blowoff cocks. He was not familiar with mufflers for blowoff cocks now used on some engines.
The testimony of J. D. Kabler, a chemist, given at a former trial in Sedgwick county, was permitted to be read to the jury. We pass by the questions argued by defendant on its objections to this testimony without deciding them. He was asked to tell the jury briefly about steam — as to what effect temperature has on it. He replied:
“What you see visibly is really not steam. It is water vapor made up-condensed into extremely small drops, many of them microscopic, of water. Steam in itself is not visible. It is a released gas the same as air. . . . On escaping from a condenser of any kind into the air surrounding it, it expands and condenses with a formation of small droplets of water and water vapor which are then visible. That is what is ordinarily called steam, but is really not steam. ... It will freeze quicker than water, for two reasons, because, first, the particles are extremely small, lose their inherent heat very fast, and, secondly, because since it is steam there are no solids in solution to lower the freezing point.”
He was asked:
“Assuming that a locomotive blew off steam from the side so that it traveled a hundred or a hundred and fifty feet across the paved highway, commencing about 60 feet from the locomotive, and the temperature at that time was from 18 to 22 degrees above zero, how long, in your opinion, would it take that vapor to be transformed into ice? A. Traveling — that condensed moisture traveling through the air at that distance would freeze at those temperatures almost instantly. It very rapidly loses the heat, the steam as it expands in the air. Steam, being a gas, gives off heat rapidly — very soon — almost instantly becomes the temperature of the surrounding atmosphere, and would freeze almost instantly.”
He was also asked the question and gave the answer as follows:
“Assuming that a train was moving slowly on a morning when the temperature was 18 to 22 degrees, about sixty feet from a paved highway; the night had been cold and the engine would blow off this vapor so that it would pass clear across the highway some 18 feet in width, will you state to the jury whether, in your opinion, that vapor could have caused a coating of ice upon the pavement, oh, less than a quarter of an inch in thickness? A. I think it would. It would form a coat of ice on the pavement.”
He did not know the amount of steam that blows off from a locomotive in the space of three seconds, had never measured it, or attempted to. He had never attempted to weigh the amount of moisture flowing on any object at any stated distance away from a locomotive where the steam had been blown off. He had made no tests with reference to the amount of moisture that would be sprayed upon any area blown off from one locomotive moving ten miles per hour. He knew nothing of the temperature of the water inside the boiler at the time when water is blown off, but expressed the view that the higher the temperature the greater the pressure of the steam, and the faster it would come out the finer the particles would have a tendency to be, but these particles would not show in the air until the temperature of the vapor had been reduced below the boiling point of 212 degrees F. He made it clear he did not pretend to testify to actual amounts, but. merely to what steam would do, and when it came in contact with the air of the temperature mentioned that it would freeze.
We understand from the record defendant’s objection to the question last quoted and its motion to strike the answer on the ground the witness had not shown himself competent to answer it intelligently, tentatively overruled, was later sustained, as it should have been. In any event, his answer to the question had no value as evidence. The witness had conducted no tests, had no experience, and was in possession of no facts which would enable him to answer the question intelligently. The fact that he was a chemist and knew what intelligent persons generally know — that steam itself is an invisible expansive gas; that when liberated in air, in a temperature less than 212 degrees F., it expands in every direction and condenses in minute droplets which float in the air as a cloud or fog— standing alone, did not qualify him to say how much of the moisture contained in such steam would fall to the earth at any particular place, or that it would form ice at any particular place. He could not know that unless he knew the amount of water in the steam liberated, and other facts, which he was free to say he did not know. His answer to the question, either “yes” or “no,” proved nothing.
Plaintiff introduced in evidence paragraph 466 of the rules and regulations of the operating department of defendant, in force at the time. This reads:
“Excessive smoke and escape of steam should be avoided. Blowoff cocks, cylinder cocks or injectors must not be opened when damage to property or injury to persons may result.”
We have attempted to state, as concisely and as accurately as possible, all of the material evidence offered on plaintiff’s behalf except that pertaining to his injuries, on which point defendant offered no evidence. In doing this we have not confined ourselves to the abstracts and briefs, but have read, and reread, the transcript. We find no evidence that any engine of defendant’s blew off any steam or wrater at Pauline, or within a mile south of there at any time, except the testimony of Oldham, and evidently what he said about escaping steam at Pauline was after the casualty, as was thoroughly demonstrated later in the trial and is now conceded. Having failed to show that any steam or water was thrown or permitted to escape at the place in question prior to the casualty it necessarily follows plaintiff also failed to show that defendant’s servants negligently caused or permitted it to escape, and that steam and water from defendant’s engines formed ice on the pavement, and that such ice was the proximate cause of the casualty.
Defendant’s demurrer to plaintiff’s evidence was overruled and defendant introduced its evidence, possibly with the view it could demonstrate with certainty its lack of liability. The demurrer should' have been sustained. Plaintiff, as appellee, says that is no longer important because defendant went forward with its evidence and supplied all the evidence omitted by plaintiff essential for his recovery. Defendant contends it did not supply such missing evidence. This requires us to examine defendant’s evidence.
Defendant undertook, by two lines of testimony, to show that such icy condition of the pavement as existed at any of the places mentioned was produced by natural causes and not by any water or steam that escaped from any of its engines. It produced a number of witnesses who lived in Topeka, or south of there near highway U. S. 75, as far as Carbondale, sixteen miles south of Topeka, most of whom had traveled over that portion of the highway in question that morning, who testified that early that morning there was exceptionally heavy, icy frost on the tops of automobiles that stood out over night, on the pavement, on grass, weeds, shrubbery and posts; that this was so heavy that cars would slip or skid a little on it; that after the sun came up this disappeared rapidly where exposed to the sun, but stayed longer where protected by shade. One witness, who came over this highway from Carbondale to Topeka just a few minutes before the casualty, learned of it on reaching Topeka and immediately recalled his trip over the road and the number of patches of frosty ice on the pavement. He testified to fourteen such places where the pavement had been protected from the early sun’s rays by trees, buildings or other structures near the pavement. Each of these still had heavy, frosty ice as he drove over them, but the pavement was dry where the sun’s rays got to it. Other witnesses testified to several such places other than the three mentioned by plaintiff’s witnesses. Defendant argues this was positive evidence which should have been given more weight than the negative evidence of plaintiff’s witnesses, who simply said they did not see such places. To further establish this point defendant offered scientific evidence to this effect: That the surface of the earth, with stones and pavement thereon, is more sensitive to heat or cold from the sun’s rays, or absence of them, than the air above; that it cools more quickly when the sun goes down and warms up more rapidly when the sun rises; that warm air may contain a greater moisture content than cool air; that when the air contains a large moisture content, as shown by a high relative humidity, and the sky is clear and there is little or no wind, when the sun goes down and the surface of the earth cools first and the air later, the moisture content of the air settles on the earth in the form of dew if the temperature is above freezing, in the form of frost if the temperature is below freezing, and that such frost will form on stone, pavement, grass, weeds, shrubbery or posts; that if •there is any wind at all this would form heaviest in the places protected by trees, shrubbery, buildings and other structures, and upon the rising of the sun in the morning the frost exposed to the sun’s rays would disappear readily, the moisture of which it was composed returning to the air as vapor, and that the frost protected from the sun’s rays would remain longer; that it would be possible for this frost to disappear under the sun’s rays and by the action of the wind even though the temperature were below freezing, and that the temperature, humidity and weather conditions stipulated as existing on the night of February 26-27 were ideal for the formation of such a heavy icy frost, and that the sunshine and breeze in the morning of the 27th would cause this icy frost to disappear at places exposed to the sun’s rays, and to remain where not so exposed. Reading the transcript of the testimony of these witnesses, nothing appears to suggest any reason for not giving their testimony full credence. However, the weight to be given that testimony was for the jury and trial court and is not for this court.
Defendant then undertook to show that it would be impossible for steam and water thrown, or permitted to escape, from the boilers of its engines through blowoff cocks to form ice such as some of plaintiff’s witnesses testified was on the pavement. Defendant does not contend that the moisture which escapes from such blowoff cocks does not at times extend as far as 150 or 200 feet from its engines in the form of the small droplets as a cloud or fog, but does contend that the quantity of it which does or may reach the ground or pavement is entirely too small to form such ice. With respect to that a witness, who had tested many times the amount of water which in the' form of steam and water would escape from blowoff cocks used on defendant’s engines on this line, explained how such tests were made and testified that five gallons per second was the maximum of water discharged when the blow-off cock was open. Another witness, whose qualifications were not questioned, had made a test to see how much of the moisture which escaped from the open blowoff cock would reach the ground' or pavement at distances from the engine varying from 25 to 80 feet. He described the test made and his findings, which were to this effect, that of the moisture which escaped from the blowoff cock only 22 percent of it reached the ground within the distance of his test, the remainder remaining in the air as a cloud or fog and being drifted to some other place, or eventually taken up in the air; that of the amount which reached the ground the greatest part of it did so within 60 feet of the engine, and that the amount which would fall upon a given space as much as 79 feet from the engine did not exceed three thousandths of an inch, and that this was entirely too small a quantity to make any film of ice on the earth or pavement. The evidence offered by defendant on these points was not controverted by any evidence offered by plaintiff. Its weight, of course, was for the jury and trial court.
Defendant then showed the movement of its trains over its line through Pauline from midnight until after 10 o’clock a. m. on February 27. Its only west (south) bound passenger train during that time was train No. 5, known as the “Ranger,” due at Pauline at 9:40, and which went through there at 10:05 o’clock. This must have been the train Oldham saw and tends to fix the time he arrived at the scene of the casualty. The engine of this train was equipped with a muffler over the blowoff cock, so designed as to carry the force of the water and steam permitted to escape down the side of the engine and back under the cab, where it was discharged. The only “steam” Oldham could have seen must have consisted of the small droplets of moisture spoken of by the expert witnesses, which floated in the form of a cloud or fog through the air. It is not now contended on plaintiff’s behalf that any steam or water which escaped from the blowoff cock of this engine caused any ice on the pavement or elsewhere. Of the eastbound passenger trains within the time mentioned, the whistle of which could have been heard by Mr. Bosch and his son, was train No. 26, due through Pauline at 7:30 a. m. There is no contention on plaintiff’s behalf that the blowoff cock of this engine was open at any place near Pauline, or that any moisture permitted to escape from that engine caused any ice on the pavement.
Between midnight and 10 o’clock a. m. on the day in question there was one east (north) bound freight train over the track near Pauline. This reached Topeka at 2:45 a. m. and passed through Pauline ten or fifteen minutes earlier, but it is not contended water and steam were permitted to escape from its engine anywhere near Pauline. Within that time there was one west (south) bound freight-train, known as 91-Z. It reached Pauline at 5:10 a. m. and left there at 5:58 a. m. It is conceded that the blowoff cock of the engine of this train was opened and water and steam escaped therefrom at Pauline. The only witness who testified about that was the fireman, E. H. Hagelberg. We summarize, or quote the pertinent parts of his testimony, as follows:
The train contained 38 freight cars. Two of these next to the engine were to be set out at Pauline, and the train was to wait there for an east (north) bound passenger train, No. 28, to pass. The train came in on the passing track and pulled toward the south end of it until the engine was 50 or 75 feet north of the block signal. The passing track at Pauline is the one nearest highway U. S. 75 and is long enough to hold 61 freight cars. There the train was disconnected back of the two cars to be set out. The other 36 cars were left standing on the passing track. The engine with the two cars to be set out was moved forward onto the main track, then backed onto the house track. This is the track west of the depot which serves the elevator and stockyards, the east rail of which is 115 feet west of the west edge of the pavement on the highway. The two cars were spotted somewhere west of the depot. While on the house track and backing the two cars, or pulling away from them, the witness opened the valve of the blowoff cock. The witness testified:
“I had a little bit too much water in the boiler; I blowed out possibly an inch of water out of the boiler.
“Q. At what point were you when you blew it out, . . . right close to the elevator somewhere? A. Somewhere along there.
“Q. Was this train which you left standing on the siding between that spot and the highway? A. Yes, sir. . . .
“Q. Was the train moving when you let off this steam? A. Approximately eight or ten miles an hour. . . . Yes; you know, just coming out of the house track.
“Q. How many seconds at a time did you blow off, and how many times — . 'explain how you did that. A. I blowed it about three or four times then— blow three or four seconds, blow off a second or two — it is hard to regulate exactly.
“Q. There is some little interval between blowoffs? A. Yes.
“Q. Where were you by the time you gave the last blowoff? A. Some place in here [designating]; we was moving slowly — only covered a short distance — hadn’t got over to the main line.
“Q. You hadn’t left the house track then.? A. No.
“Q. Then you moved out on the main line? A. Yes, sir.”
The engine was then moved forward onto the main line and backed onto the passing track, where the train was connected. It then waited perhaps fifteen minutes until the passenger train passed. It then pulled out on the main line and proceeded southward (west).
“Q. At that time, or during that time, did you blow off any steam? A. No, sir.
“Q. Or open the blowoff cocks? A. No. . . .
“Q. Did you blow off any steam at that point or within the mile or two next south of that point? A. I didn’t blow off any more until after we had passed Wakarusa.
“Q. How far is Wakarusa south of Pauline — do you know, about? A. I think the timetable says five and some tenths miles; I don’t know exactly.
“Q. Where was that place — can you designate where you blew off more steam, locating it by a grade, or a creek? A. The best location I can give— we are down grade after we leave Pauline, practically down grade all the way to Wakarusa; the engine doesn’t work much, you have to work the water pump quite a bit going down grade to keep the water inside the locomotive, you know; after you pass Wakarusa you start up quite a steep grade and the engine has to labor quite a bit to get the train up there, so you have to reduce the water pretty well — have to blow some water out on that account.
“Q. On account of approaching or starting up a grade? A. Yes.
“Q. That is this place here? A. Blowed her out after leaving Pauline.
“Q. Between that point, at this place by the depot, you had not blown out your side of the engine at all? A. No.”
Coming out of Topeka to Pauline it is upgrade and he opened the blowoff cock several times between Topeka and Pauline. The engine of this train had no muffler on the blowoff cock.
“Q. I am talking now about Pauline; you testified that you blew out, opened the blowoff cock several times at Pauline? A. Three or four times is usual at Pauline.
“Q. Your engine would be foaming, is the reason you did that? A. No, I didn’t state that; I said my water level was too high, so I reduced the water in the boiler about an inch, which I did.
“Q. What was the reason you did that? A. So I could get the water down so I could put the injector on and not have too much water in the boiler.
“Q. You knew that after you left the siding and started up on the main line after 28 passed you started out with a grade? A. No grade that I noticed.
“Q. It is up grade there for a ways instead of down grade? A. From where the engine was at the time there is no grade, practically, to my knowledge, for any distance — it is practically level, then down grade on to Wakarusa. . . .
‘‘Q. If an engine sets a while after laboring up a hill it is a good idea to blow them off, isn’t it? A. If you have to work the engine to any extent.
“Q. Yes. On leaving Topeka and having worked the.engine hard for 30 or 35 minutes, then you set out for twenty minutes, it would be a good idea to blow off before you start working it again, would it not? A. If the conditions permit it could be done.
“Q. It is ordinarily done, is it not? A. If the boiler needs it.
“Q. There would be nothing unusual about that? A. No.
“Q. Now then, when you backed in there and left the two cars near the depot and elevator, that is when you blew off your locomotive? A. Yes.
“Q. You opened the blowoff cock? A. Three or four times.
“Q. Three or four times. Did you pull it wide open? A. Yes, sir.
“Q. When you jerked it wide open that shot steam out to the east? A. Yes.
“Q. As a matter of fact it is really hot water, rather than steam, that comes out? A. Water in the boiler — when it hits the air it is practically steam.
“Q. It is really hot water that comes out? A. About 380 degrees Fahrenheit.
“Q. How much pressure is there in your boiler? A. Two hundred pounds approximately, 195 to 200.
“Q. How big is the blowoff cock opening? A. My judgment, it is supposed to be about a two-inch pipe.
“Q. Your engine was equipped with the usual and ordinary size blowoff cock and opening? A.. Just a straight blowoff.
“Q. What kind of a lever is there in the cab of the engine for this blowoff valve? A. I don’t remember just what they call them — it is a lifting lever that works — when you take hold of it inside the cab — it has got a safety lock over it, you have to raise the safety lock with one hand and take hold of the lever and pull it open; it comes all the way open, and when you let go it goes all the way shut. . . .
“Q. That safety lock keeps the blowoff cock from opening unless the engineer or fireman wants it open? A. That’s right.
“Q. Nothing automatic about that blowoff valve? A. No. . . .
“Q. How long did you hold that blowoff cock open the first time? A. Practically two or three seconds, I would judge, something like that, possibly four; I don’t know, I wouldn’t state how many seconds — that isn’t very long.
“Q. Two or three or four seconds. Then you closed it, I understand? A. Yes.
“Q. Then you opened it again? A. Yes.
“Q. For two or three or four seconds. Then closed it again, then opened it again for two or three or four seconds? A. Yes, sir.
“Q. Did I understand you to say you blew it off three or four times? A. Yes, I think, approximately — wouldn’t say for sure.
“Q. But it was three or four times. When you blew that off was right about the time you had left these two cars at the elevator or depot? A. Somewhere around the station.
“Q. Somewhere around the station? A. Mark the depot. . . .
“Q. At the time you were here by the depot or elevator and opened the blowoff cock, were you moving or stopped? A. Moving.
“Q. Did you open the blowoff cock just as you started to pull away from the box cars? A. I don’t know, we were moving; that is all I can tell.
“Q. So far as you know you might have just backed in, the brakeman uncoupled the cars, gave you the go-ahead signal, whatever he did — that would be about a good time to blow it off, wouldn’t it? A. Just what do you mean, good time to blow it off?
“Q. Well, the brakeman, you would know where he was and he wouldn’t be in danger? A. Sure I wouldn’t blow off with him going right by the side of the blowoff cock.
“Q. You have a rule not to open the blowoff cock around a depot or along a road, anything of the kind? A. I what?
“Q. Isn’t there a rule of the Santa Fe telling you not to open the blowoff cock around the depot, highways, horses, or employees — something of the kind? A. Well, they leave that to the man working it; of course a man ought to use judgment; I don’t know as to any rule about using the blowoff cock if we have to use it. . . .
“Q. After you had blown off your engine, when you got into Pauline and backed two cars up there, then you go back up, come back in on the siding and set there for fifteen or twenty minutes, whatever time it is, then you started to pull out to go south to Wakarusa? A. Yes, sir.
“Q. I believe you say you blew off your engine again? A. No.
“Q. How do you recall that you did not? A. I know I didn’t; I didn’t have to, didn’t have enough water that I needed to blow off.”
Later in the day, while at Osage City or Emporia, the witness learned of the accident in which plaintiff was injured and was asked to make a report to his superior officer of the manner in which he had handled the engine that day, and did so.
Defendant also undertook to show that the icy condition of the pavement near the W. M. Myers property was not the proximate cause of the casualty which resulted in plaintiff’s injury, and with respect to this two points are noted. One was the rise or knoll in the pavement directly south of the icy place which prevented Bowery, the driver of the car, from seeing the icy spot until his car was on it. This was stressed by plaintiff in his petition, opening statement, and by the testimony of Bowery and several other witnesses called by plaintiff, and found by the jury in answer to a special question, the inference being that had this rise or knoll not been in the pavement Bowery would have seen the icy place and so handled his car as to have avoided the casualty. There is no contention defendant was responsible for this rise or knoll in the pavement. It is a condition common in pavements laid over a slightly rolling country. The other point is, from the evidence it is clear the car did not spin on the icy place near the Myers farm. The witness De Long traced the tracks of the car, then clearly visible, southward to a point 100 feet or more south of the north end of the ice. There the tracks indicated a “slight skid,” and from that point the tracks were straight in a course a little to the west of north until the car left the pavement. The witness Lomax traced the tracks back from where they struck the right-of-way fence eight rods north of the township highway, to where they left the ice on the pavement, a short distance south of the south line of the township highway. He did not attempt to trace the tracks farther south, because by the time he looked at it he thought enough cars had gone over the icy place to make it difficult to trace the tracks, but for the distance he traced, the car' moved in a straight line. There was no skidding, although the tracks indicated the wheels were sliding in the mud as they crossed the shallow ditch west of the pavement. Only one other witness, W. M. Myers, called by defendant, testified to the course the car took. He was in the backyard at his place. He heard a car coming rapidly from the south and looked up and saw it perhaps when it traveled a part of the time on the icy place. His view was obstructed part of the time by his residence and other buildings, so he could not observe the car all of the time after it first came over the little rise or knoll until it ran into the fence. At some point, a little difficult to locate from his evidence, but while the car was on the ice, he thought it was traveling near the center of the pavement, and that it first turned slightly to the right until the right wheels were within a foot of the east edge of the pavement, and then turned to the west of north and followed a straight course until it struck the right-of-way fence. This may be the same point spoken of by De Long as where the tracks indicated a “slight skid.” But from all of the testimony offered by either side it is clear that for a distance of approximately 100 feet on the icy place, and more than that far north of it, the car had traveled in a straight line until it struck the fence. Defendant produced the testimony of several experienced drivers of automobiles that this would not have happened if the ice was the cause of the casualty; that if it had been caused by ice the car would have spun immediately while it was on the ice, and that the mishap, whatever it would have been, would have happened there and not after the car had gone on a straight course more than 200 feet. Other evidence on this point was to this effect: When the automobile came to rest, with its wheels in the air, the left front tire was flat — all of the air was out of it. The tires on the other three wheels were up, apparently full of air. Soon after the casualty the car was moved to a garage in Topeka. There an experienced automobile man in charge of the garage examined the left front tire and found it flat and could see no cut or hole from the outside .which would cause it to go flat. Soon after it was taken to the garage Mr. W. E. Wilson, chief of police of Wichita, appeared at the garage and gave directions in accordance with which the automobile was taken upstairs and covered with a tarpaulin, and the garage man permitted no one to see it. Defendant’s theory was that the tire went flat from some cause while the car was on this icy place. It offered evidence that a flat front tire pulls the car to that side, and experienced witnesses testified that if the tire had gone flat while the car was on the ice it would have pulled the car to the left and off the pavement — in a course this car took- — if it was not stopped, or if the driver was not able to hold the car on the road. As to this it is argued for plaintiff that the left front tire was the' first to strike the barbed wire in the right-of-way fence, and there is no wonder it was. flat; indeed, it might have been cut all to pieces. It would not have been surprising to have found a cut or hole in the tire made by the fence, but the only evidence on that point is that there was no such cut or hole.- While plaintiff should not be held responsible for Mr. Wilson’s giving directions which prevented a more careful examination of that tire, the fact remains that no further examination of it was made, or if made, the result is not shown by this record. Certainly, if the casualty occurred because of the rise or knoll in the pavement, or if the air suddenly went out of the left front tire for some reason, defendant would not be responsible, even though its engine threw the water on the pavement which caused the icy condition.
As to this point it was argued for plaintiff that there may be two or more proximate causes of the casualty; hence, even if the things just mentioned be regarded as proximate cause, or proximate causes, of the casualty in which plaintiff was injured, that alone would not relieve defendant of liability. For the purposes of this case, that may be conceded to be true, but even so, that does not relieve plaintiff from proving defendant’s negligence was a proximate cause of the casualty.
Counsel for plaintiff correctly point out that insofar as the testimony of defendant’s witnesses differs from that of plaintiff’s, there was presented only a controverted question of fact for the jury to decide, and the fact that it chose to believe plaintiff’s witnesses rather than those called by defendant is not a reason for reversing the judgment. As to the testimony of defendant’s witnesses on points not covered by witnesses offered by plaintiff it is argued the jury was not required to believe that testimony, even though it was uncontradicted. While this principle is not of such universal application as the one just previously stated, it has been recognized at times, and since it is the view most favorable to the plaintiff we shall permit it to be applied here without analyzing the point as to whether it is proper to do so. The fact that the jury chose not to believe uncontradicted evidence offered by defendant would not, however, justify the jury in reaching a conclusion directly opposed to it, with no evidence at all to support the conclusion reached.
Counsel for plaintiff, as tending to supply thé deficiency of proof in his behalf, say defendant admits its servant threw water and steam on the pavement near Pauline, there was ice on the pavement near Pauline, the water and steam thrown on the pavement caused the ice at that place, the icy patch a quarter of a mile south of there, and also the one along by the W. M. Myers place was the same kind of ice as was on the pavement at Pauline; that defendant’s witness Hagelberg testified he “blowed her out after leaving Pauline,” meaning that he opened the blowoff cock and let water escape from his engine; that this must have been done as he passed by the W. M. Myers place; hence, it is argued it is established by defendant’s own admission that it caused the ice to be formed near the Myers place. The evidence does not support this line of reasoning, or the conclusion. Any “admission” of the defendant on this point-must be found in the testimony of Hagelberg. We have summarized or quoted all of that which is pertinent. He testified that he did let water out of the boiler through the blowoff cock by opening it as many as three or four times, from two to four seconds each time, while the train was moving at from eight to ten miles an hour on the house track, 115 feet west of the west edge of the pavement on the highway, and from 115 to 130 feet west of the ice on the highway, and at a time when a train of freight cars was standing on the passing track between the engine and the highway. There is not a particle of evidence on behalf of plaintiff that it would be possible for the water which this witness testified he permitted to escape from his engine at Pauline to form any ice on the pavement that far away and under those circumstances. Certainly there is none to that effect on behalf of defendant; in fact, its evidence tended to demonstrate it would be impossible. So, while it is true defendant admitted letting water escape from the engine at Pauline, it is not admitted that the ice on the pavement was formed from the water which so escaped, and there is no proof in this record that it did. Hagelberg testified positively that he did not open the blowoff cock and permit water to escape from his engine after he left the house track at Pauline until he was going up the grade south of Wakarusa station, more than five miles away. Counsel for plaintiff repeatedly call attention to the expression once used by Hagelberg that he “blowed her out after leaving Pauline,” and argue that this is an admission by him that he opened the blow-off cock and permitted water to escape from the engine in the vicinity of the W. M. Myers place. We have carefully read the transcript of the direct and cross-examination of this witness and find that this is an inaccurate interpretation of his testimony. As we read this evidence the oft-quoted phrase clearly refers to when he was going up the grade south of the station at Wakarusa.
Neither can it be said that the circumstances under which Hagel-berg testified having opened the blowoff cock of the engine were in violation of rule 466 of defendant, nor that it was negligence for him to do so at that time. He stated the reasons why it was necessary. It is not seriously contended these reasons were not good. There is no suggestion in this record that he should have anticipated that ice would have been formed on the pavement by his causing the water to escape from the engine at the time and place and under the circumstances he did so.
W. M. Myers, called as a witness for defendant, on cross-examination was asked, among other things, if he had not told Mr. Lomax, Mr. De Long, W. E. Wilson and others with him from Wichita, that the ice near his place was caused by water which escaped from one of defendant’s engines, and answered that he had not made that statement. In rebuttal these persons were called by plaintiff as witnesses and contradicted Myers on that point. Counsel for plaintiff lay much stress on that in their briefs. We shall not take space to set out the version of Mr. Myers and of the other witnesses as to what he told them. The most favorable way to say that for plaintiff is that they succeeded in impeaching Myers with respect to what he told them. If it be conceded that they were successful in impeaching Myers, that is not evidence as to how the ice, or icy frost, got on the pavement near the Myers premises. Counsel eventually have agreed this is the legal effect of impeaching testimony.
Considering the evidence offered on defendant’s behalf as favorably to plaintiff as can reasonably be done, it does not supply the material defects in plaintiff’s evidence when defendant’s demurrer to it was presented and overruled. We are unable to find substantial, competent evidence in this record to sustain any judgment for plaintiff. It is axiomatic that when such evidence is lacking a verdict for plaintiff cannot stand. We find it unnecessary to consider contentions of appellant respecting alleged trial errors.
The result is, the judgment of the trial court must be reversed, with directions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This was an action to procure a declaratory judgment touching the respective rights of the grantor and grantee of a tract of land where the instrument of conveyance reserved to the grantor an interest in the oil, gas and other minerals for a period of years.
Since that conveyance was executed the property has been leased for oil and gas development upon a down payment of one dollar per acre and an agreement of the lessee to pay an additional dollar per acre annually as delay rental- — for the privilege of holding the land in lease without the necessity of actual development.
What, if any, interest in this down payment and delay rentals has the grantor of the land? She claims one half of both. The grantee claims she is entitled to none. The trial court agreed with the grantee and gave judgment accordingly.
To determine the correctness of that judgment, the cause is brought here for review.
Going somewhat further into the details of the matter in hand, it appears that on March 27, 1929, the plaintiff, Hazel C. Brooks, was the owner of 3,600 acres of land in Clark county. On that date she and her husband sold the land to W. H. Mull subject to a reservation of certain mineral interests therein for a period of fifteen years. The instrument of conveyance was a warranty deed. The specified consideration was “one dollar and other valuable considerations.” The property conveyed was described in terms of government survey followed by a reddendum in these words:
“Reserving to the grantors, however, an undivided one-half interest in and to all of the oil, gas, and, or, other minerals that may be produced from said land for a period of — fifteen (15) years from the date of this conveyance, or as long thereafter as oil, gas, and, or, other minerals may be continuously produced in commercial quantities.”
Pursuant to this conveyance defendants entered into possession of the property and have exercised all rights of dominion over the surface of the land since its execution.
Some years later, on November 9, 1936, Mull, plaintiff’s grantee, executed to M. C. Bluhm an oil and gas lease of the property on the usual terms prevalent in this state. The lease was to endure for ten years and as long thereafter as gas or oil should be produced on the leased premises. The specified consideration was that one-eighth part of the oil and gas, or both oil and gas, produced on the land should be delivered to the lessor. The lease also contained the following paragraphs:
“If no well be commenced on said land on or before the 9th day of November, 1937, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Citizens State Bank at Ashland, Kan., or its successors, which shall • continue as the depository regardless of changes in the ownership of said land, the sum of . . . [one dollar per acre] . . . which sum shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve 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 the period as aforesaid, and any and all other rights conferred.
“If said lessor owns a less interest in the above-described land than the entire and undivided fee simple estate therein, then the royalties and rentals herein provided shall be paid the lessor only in the proportion which his interest bears to the whole and undivided fee.”
In addition to the foregoing it is stipulated by the litigants that the lessee made a down payment of $3,600 — one half of which has been placed in a bank to abide the decision of this lawsuit.
To maintain the simplicity of the legal question involved we have spoken of the lease in the singular, although it was divided into eleven separate lease contracts to suit the convenience of the lessee. We note an agreement between plaintiff and defendants to extend the duration of plaintiff’s mineral interest until 1948; and we also note that plaintiff holds a mortgage on the property in the sum of $27,200. None of these details are of present concern.
On December 21, 1936, the plaintiff executed to Bluhm an instrument designated “Ratification of Oil and Gas Lease and Subordination of Mortgage,” which, in part, recited:
“Whereas, on the 9th day of November, 1936, W. H. Mull and Addella Mull, his wife, and H. A. Mull and Ruth Mull, his wife, executed and delivered to M. C. Bluhm eleven certain oil and gas leases, all of that date, covering the following described real estate situated in the county of Clark and state of Kansas:
• [3,600 acres] ......
“Wthbbeas, the undersigned, Hazel C. Brooks, a widow, is the owner of an undivided one-half interest in all the oil, gas and other minerals lying in and under said real estate.
“Whekeas, the undersigned desires to ratify, approve and confirm said oil and gas leases and subordinate her said mortgage thereto.
“Now, therefore, the undersigned, Hazel C. Brooks, in consideration of the sum of $1 and other valuable consideration, the receipt of which is hereby acknowledged, hereby ratifies, approves and confirms each and all of said oil and gas leases, to the same extent and purpose as if she had joined in the execution of each of said leases as a party lessor, without, however, covenants of warranty of title or otherwise.
“Executed at Wichita, Kan., this 21st day of December, 1936.
Hazel C. Brooks.”
To determine the soundness of the trial court’s judgment, it may serve to shorten our task by considering first what arguments are advanced to sustain it.
Counsel for appellees contends that in ratifying the leases plaintiff did not change the reservation clause in the deed of conveyance she executed. That is quite true, of course. She does not contend otherwise. The mineral rights of plaintiff as grantor were prescribed and fixed at the time she executed the deed; but so, too, were the mineral rights of the grantee. He then acquired the fee title to the surface of the property and an undivided one-half interest in the minerals which may be produced from the property during the first fifteen years; and thereafter grantee’s ownership of all the minerals will be complete, and the plaintiff grantor will have no further interest therein. (That the fifteen years’ duration of plaintiff’s interest has been extended four years additional, until 1948, is of no present concern.)
Appellees argue that plaintiff was not a necessary party to the leases. It is perhaps true that an owner of any interest in property can make an independent lease of that interest — if he can find a taker — without the assent of the owners of similar interests in it, although some rather obvious difficulties are likely to interfere with the lessee’s enjoyment of the premises under such circumstances. If two men own a farm in common, a lease of it by one of the owners, unless ratified by the other owner, would give the lessee an uncertain tenure. We shall not press too far the analogy between an ordinary farm lease and an oil and gas lease, for there are substantial differences between them (Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463) — at least until actual production of minerals has com menced. (Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398, syl. ¶ 4.) But the practical futility of a mineral lease executed by the owner of an undivided half interest in the minerals which may be produced from the land, not assented to or ratified by the owner of the other undivided half interest, is quite as obvious as would be the lease of a farm by a lessor who had only an undivided half interest in it.
In the case at bar counsel for the parties entered into certain stipulations of fact, one of which reads:
“If plaintiff were present at the trial she would testify that the lessee named in all the leases covering the real estate described in plaintiff’s petition acting upon the advice of his attorneys refused to accept the title of defendants unless the plaintiff joined in such leases or ratified and confirmed the same.”
All the circumstances support the pertinent facts implied in that stipulation, and all the logical inferences are to the same effect. By the terms of an ordinary oil and gas lease in Kansas (and the one we have to consider is typical), the lessee gets seven eighths of the production, and the remaining one eighth goes to the owners of the mineral rights, the so-called royalty rights of familiar parlance. Applying this well-known operative arrangement to the lease in question, if plaintiff had not joined in or ratified it, Bluhm, the lessee, would have to account to this plaintiff for four eighths — one half — the total production. That would leave him three and a half eighths to himself for his share, after paying one half the royalty interest to the defendants. We think it perfectly clear that for all practical purposes the lease from defendants to Bluhm was not worth a picayune until Mrs. Brooks ratified it.
To support appellees’ position, their counsel advances the proposition that appellant’s reservation does not constitute her the owner of one half the minerals in place, with the right of entry to remove them. As to the second phase of this contention we are not at all sure of its soundness, but that point can await some lawsuit where it has to be met and decided. What we are agreed on is that until the year 1948, the plaintiff has exactly as much interest in the minerals which may underlie this 3,600-acre tract of land as does her grantee and those who claim under him. She has the same right, or more precisely, an equal right, to lease the property for the exploration of oil and gas and for their development as does her grantee. She has the same or an equal right with him to decline to grant an oil and gas lease. She has the same or an equal right to prescribe the conditions which will excuse the lessee from doing a certain amount of drilling each year without forfeiting the lease, here the payment is to be a dollar an acre as delay rental; and she is just as much entitled to an equal share of the down payment of a dollar an acre as is her grantee and co-owner of the minerals which may be produced from the land during the interval covered by the terms of the reservation.
We note that the trial court attached some significance to the fact that the land is chiefly adapted for the pasturing of cattle, and that cattle will not thrive where they are disturbed by the hustle and bustle of oil-drilling operations. That is quite true, no doubt. But the contract of sale and reservation in the conveyance of the 3,600 acres clearly show that the possibility of oil prospecting and development was contemplated by the parties; and we must assume that the fact was considered in agreeing upon the price when the contract of purchase was effected. That consideration cannot now be weighed in a second time in measuring and adjudicating the rights of plaintiff and defendants to share in the down payment and delay rentals which may be paid under the terms of this lease.
Counsel for appellees also attaches much significance to our decisions holding that so long as minerals remain in the ground they are a part of the realty. (Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750.) But it is equally well settled that a severance of title to the minerals underlying a tract of land from the title to the surface may be made. In Mining Co. v. Atkinson, 85 Kan. 357, 116 Pac. 499, it was said:
“ ‘The severance of the surface and mineral rights is accomplished either by a conveyance of the land with an express reservation of the minerals, or by a conveyance of the minerals or mining rights.’ (27 Cyc. 682; Moore v. Griffin, 72 Kan. 164.) ‘After the mineral is conveyed apart from the land, or vice versa, two separate estates exist, each of which is distinct; the surface and the mineral right are then held by separate and distinct titles in severalty, and each is a freehold estate of inheritance separate from and independent of the other.’ (27 Cyc. 687.)” (p. 360.)
See, also, Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56; and Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 69 P. 2d 4.
Appellees would minimize the significance of our decision in the Atkinson case, on the ground that in that case the grantor reserved all the minerals — not one half- — that may be produced from the land conveyed. Such a distinction is too subtle for the determination of the rights of litigants. The reservation of an undivided one half the minerals is just as much entitled to legal recognition as a reservation of the whole of them; and it was so held in the closely analogous case of Gill v. Fletcher, 74 Ohio St. 295, 78 N. E. 433. In that case, in the year 1838, one Joseph Gill owned 317 acres of land in Ohio. He conveyed it to one Jesse Payne, with the following reddendum:
“ ‘The said Joseph Gill reserving the one half of the plaster or the profits thereof which may hereafter be found on said land. To have and to hold the same . . . (the half of plaster as above described only excepted) unto the said Jesse Payne, his heirs and assigns forever.’ ” (p. 296.)
Many years afterwards the legal significance of this reservation became the subject of the lawsuit cited above. The supreme court of Ohio said:
“It is familiar law, already recognized by this court in Bwrgner v. Humphrey, 41 Ohio St. 340 and 352, that the surface of the land and the minerals underlying it may belong to different owners. The doctrine is thus stated, with citations of a great number of authorities: ‘It is well settled that a mine may be severed from the surface, the surface being held in fee by one person and the mine by another. The ownership of a mine after severance is to all intents and purposes the same as the ownership of land, and is attended with all the attributes and incidents peculiar thereto. The mine itself may in turn be divided longitudinally and each stratum become the subject of a grant, the mine thus becoming the property of as many owners as there are different strata. Severance may be accomplished by a conveyance of the mines and minerals only, or by a conveyance of the land with a reservation or exception as to the mines and minerals.’ 20 Am. & Eng. Ency. Law, 2 ed., 771-773.” (p. 302.)
In its opinion the court considerately dealt with the ancient distinction between an exception and a reservation in a deed, a distinction greatly minimized nowadays (Moore v. Griffin, 72 Kan. 164, 166-167, 83 Pac. 395), and held:
“Where the owner of a fee-simple estate in lands conveys the lands to another in fee simple, reserving one half of the mineral which may thereafter be found on said land and declaring that the grantee, his heirs and assigns shall have and hold the land and its appurtenances, ‘the half of the mineral only excepted,’ such conveyance creates an exception to the grant, leaving in the grantor and his heirs a fee-simple estate in one half of the mineral separate and distinct from the estate in the surface and the other half of the mineral conveyed to the grantee.” (Syl. 112.)
In Summers on Oil and Gas it is said:
“It is a settled rule of law, based on sound policy, that a grantor of land may retain his legal interest in the oil and gas thereunder by an expression of intent to that effect in a deed of the land. But a troublesome question arises when an attempt is made to determine whether the retention of this separate interest is effected by exception or reservation. In determining this question, the use of the terms themselves are not controlling, but the courts look to the intent of the parties and the nature of the legal interest sought to be created.” (p. 136.)
Other instructive excerpts from the same valuable work read:
“If in the grant or reservation of a separate interest in oil and gas the grantor does not expressly grant or retain such legal relations as are necessary for the production and operation of the land for oil and gas purposes, these relations are held to be created by implication.” (p. 120.)
“Granted that a landowner has powers to create separate interests in oil and gas by grant or exception, it naturally follows that he may create such interests for years, for life, or in fee, and the courts so hold.” (p. 128.)
“As a general principle, each cotenant of land is entitled to the use of it, but is forbidden to injure or destroy the common property. Since any use of land for oil and gas purposes necessarily amounts to a removal and destruction of a part of it, such action is looked upon as in the nature of waste, and a cotenant is not privileged to drill for and produce oil and gas from the common land without the express or implied consent of the other co-owners. If he does so, the other cotenants may have damages, injunction, or waive the tort and sue for an accounting of the rents and royalties. . . . Based on these principles, it is well established by the authorities that a tenant in common does not have the power to make a valid lease of the common land for oil and gas purposes, which will be binding upon his cotenants, and thereby create in others a privilege which he did not have. . . . Such a lease may become valid as to the cotenants who did not join in it by such acts by them as may amount to an estoppel or ratification thereof. . . .
“A lessee of one cotenant as against a nonjoining cotenant, or the lessee of a nonjoining cotenant, logically has no more privileges of taking oil and gas than the original co-owners of the land had as against each other. . . . Probably the only satisfactory remedy for all parties concerned in a situation of this kind is to be had by agreement.” (pp. 220-223.)
It is also argued, on behalf of appellees that by the literal terms of the reddendum in the deed, plaintiff’s only interest is in the oil and gas “that may be produced from said land,” etc. Counsel reminds us of the rule applicable to any debatable meaning of words in a conveyance, that they are to be most strongly construed against the maker or grantor of the instrument. Quite so; but there are other rules of construction, and the one which impresses the court as of controlling significance in this case is that courts should refrain, wherever possible, from giving a construction to a written instrument which would result in vitiating its purposes or reduce its terms to an absurdity. (13 C. J. 540-541.) The construction of the reservation in plaintiff’s deed for which defendants contend would utterly prevent any effective leasing of this 3,600 acres of land for oil and gas until 1948, for certainly no sane man would lease and develop it if plaintiff is to receive an undivided one half of all the oil and gas which the industry of the lessee may produce from the land; yet that would be the necessary effect of defendants’ interpretation of the terms of the reservation in the deed.
We hold that plaintiff equally with defendants is entitled to an undivided one-half interest in the down payment of $3,600, also, in all delay rentals that may be paid, and in any other benefits which may arise out of the respective undivided mineral interests of herself and defendants in the property until 1948.
The judgment is reversed and the cause remanded with instructions to enter judgment in plaintiff’s behalf for the $1,800 now in escrow in the First National Bank in Wichita to abide the final determination of this lawsuit and for a further judgment in plaintiff’s behalf in accordance with the prayer of her petition. It is so ordered.
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The opinion of the court was delivered by
Allen, J.:
This case was filed to recover on a policy of insurance alleged to have matured, for the sum of $2,000 claimed to be due appellee as beneficiary, by reason of the unexplained absence of the insured from his home and place of residence for more than seven years, during which time no word had been received from him, or tidings concerning his whereabouts had, although appellee had used due diligence in an effort to locate him.
' On July 1, 1921, the defendant issued a policy of insurance on the life of Fred Dubler, in which Hattie Dubler, his wife, was named beneficiary. Premiums were paid to March, 1928, when payments stopped and the member was suspended for nonpayment, but the policy was placed on extended insurance which would expire June 1, 1937. The policy carried the provision that it was issued and accepted by the member with the express understanding and agreement that all of the laws of the order now in force or which may hereafter be adopted constitute a contract between the insured and the order and that the insured consented to the terms thereof.
One of the bylaws of the order in force at the time the policy herein was issued and incorporated in the policy provided that in case of a presumption of death or unexplained absence of the member there shall be deducted from his certificate an amount equal to the difference between the amount he had paid into the mortuary fund and the amount he would have paid! into said fund if he had lived out his expectancy. This provision is specifically written into the policy as follows:
“3d. It is expressly stipulated and agreed in ease of a presumption of death arising from the mysterious disappearance or unexplained absence of the member, there shall be deducted from his beneficiary certificate an amount equal to the difference between the amount he has paid into the beneficiary fund and the amount he would have paid into said fund if he had lived out his life expectancy, based upon the American Experience Table of Mortality.”
At the time the policy was taken out the insured, Fred Dubler, lived at Winfield, Kan. On May 1, 1929, the insured disappeared from his home in Tulsa, Okla. On May 24, 1937, his wife, Hattie Dubler, beneficiary under the policy, brought this action.
Appellant answered, setting up the bylaw as a part of its defense, and the allegations relative to the bylaw were, on motion, ordered stricken from the answer on the ground that it was void.
This is an appeal from that order.
Counsel for plaintiff contend the provision in this policy is void, relying upon Fernandez v. Sovereign Camp, 142 Kan. 75, 46 P. 2d 10, and Green v. Royal Neighbors of America, 146 Kan. 571, 73 P. 2d 1.
In the Fernandez case three separate bylaws of the defendant insurance company were involved. One was in force when the policy was written; one was adopted subsequent thereto, but before the insured left home; and one was adopted after the time it was alleged the insured disappeared. The first bylaw in that case provided:
“The absence or disappearance of the member from his last-known place of residence and unheard of shall not be regarded as any evidence of the death of such member nor give or create any right to recover any benefits on this certificate or on account of such membership, in the absence of proof of his actual death, aside from and unassisted by any presumption arising by reason of such absence or disappearance, until the full term of his life expectancy at the time he disappears, according to the Carlyle table of life expectancy, has expired, and then only in case all assessments, dues, special assessments and all other sums now or hereafter required under the laws of this society be paid on behalf of such member within the time required, until the expiration of the term of such life expectancy; and the conditions of this certificate shall operate and be construed as a waiver of any statute of any state or country, and of any rule of the common law of any state or country to the contrary. In the event the payments are not made as above provided, said member shall stand suspended.” (p. 76.)
It was there provided in express terms that the absence or disappearance of the member from his last-known place of residence and unheard of “shall not be regarded as any evidence of the death of such member nor give or create any right to recover any benefits on this certificate or on account of such membership, in the absence of proof of his actual death.” It was held that this provision was unreasonable, against public policy and therefore void. In so holding we followed our former cases — Hannon v. United Workmen, 99 Kan. 734, 163 Pac. 169, and Fidelity and Deposit Co. v. Davis, 129 Kan. 790, 284 Pac. 430.
In the later bylaws in the Fernandez case two alternative elections were available to the beneficiary. The first, after payment of all dues and assessments for the seven-year period, would entitle the beneficiary to the full proportionate amount of the accumulated reserve held by the company for the use and benefit of persons or members immediately upon the establishment of the presumption of death; the second would pay to the beneficiary the face value of the policy, less the premium payments which the insurer would have re- ■ ceived if the insured had lived his life expectancy. Construed with the first bylaw above quoted these bylaws were held unreasonable and void.
We are satisfied with the rule announced in the foregoing cases and adhere thereto. We do not think the provision in the policy now before us for construction falls within the orbit of those cases. It does not change or purport to change any rule of evidence. It does not deny to the plaintiff the right to invoke the seven-year rule at the end of seven years’ absence, nor does it purport to modify or change any procedural rules established in this state. When the reason for the rule ceases, the rule should cease.
The question presented then is whether the provision in the policy now before us created a valid exception to the risks of the contract of insurance. In the case of Schumacher v. National Travelers Benefit Association, 118 Kan. 523, 235 Pac. 833, this court had before it the “eyewitness clause.” The certificate provided that coverage would not extend to injury resulting from the discharge of a firearm unless the claimant should establish the accidental cause of the discharge by the testimony of a person, other than the insured, who actually saw this accidental cause in operation. In holding this clause to be, a valid exception, this court said:
“The provision in question is a limitation on the liability of the insurer, not a stipulation by which certain facts must be proved. The company had the right to make a contract limiting its liability. The insured accepted the policy with that limitation in it. The insurer and the insured were capable of contracting. They made a contract. This court will not change that contract by holding one of its provisions invalid, thereby creating a liability against the insurer when it had stipulated at the time the contract was made that it would not be liable under the conditions named.” ■ (p. 524.)
We have held that suicide may be made a risk not insured against. (Deweese v. Woodmen of the World, 110 Kan. 434, 204 Pac. 523; Hart v. Modern Woodmen, 60 Kan. 678, 57 Pac. 936; Power v. Modern Brotherhood, 98 Kan. 487, 158 Pac. 870; Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933; Knights of the Maccabees v. Nelson, 77 Kan. 629, 95 Pac. 1052.)
Public policy does not prevent parties to an insurance contract agreeing that death caused in military service in defense of the nation in time of war may be made an excepted risk. (Bradshaw v. Insurance Co., 107 Kan. 681, 193 Pac. 332; Lofstead v. Insurance Co., 110 Kan. 445, 204 Pac. 530; LaRue v. Insurance Co., 68 Kan. 539, 75 Pac. 494.)
Parties may lawfully contract concerning the character and circumstances of the happening insured against, and by so doing lawfully except risks otherwise covered; but they may not contract concerning court procedure by which facts are established. (Schumacher v. National Travelers Benefit Association, supra.)
As it is clear the disappearance clause in the policy now before us does not strike down any rule of evidence and is not in itself unreasonable, we think the court erred in upholding the motion to strike this provision from the answer of the defendant, and for the reasons stated the case must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the court sustaining an application for a writ of assistance on behalf of the purchaser at a foreclosure sale. The record before us shows' substantially the following:
On December 3, 1921, Sutor Brothers filed suit upon two notes executed by Fred Hebert and wife and to foreclose a first and second mortgage upon land given to secure the notes. In that suit the First National Bank of Palco was made a party defendant. The bank answered, and by cross-petition asked for a judgment upon notes executed by Hebert and wife to the bank and secured by mortgages upon the same land. On May 1, 1922, judgment by default was entered upon the notes, and a decree of foreclosure and fixing the priority of liens was rendered. Later an order of sale was issued and the real property was advertised and sold. It was purchased by the bank. This sale was confirmed by the court July 26, 1922, and a certificate of purchase was issued to the bank, the period of redemption being eighteen months. At the end of the period of redemption a sheriff’s deed was issued to the bank. It demanded possession of the property, which was refused, and on February 11, 1924, filed its application reciting the above facts, and asked for a writ of assistance. Hebert filed an answer, consisting, first, of a general denial; second, contending that judgment was prematurely taken when his demurrer was on file undisposed of; third, a suit had been filed and was then pending to set aside the judgment, and the pleadings in that suit were referred to, and that on February 14, 1924, he went to the bank for the purpose of paying the bank what was due it, but the bank refused to accept any sum less than the sum shown to be due it by the certificate of purchase. He asked for a jury trial upon the issues raised by his answer.
To this answer a reply was filed: first, a general denial; second, that the title to the lands had been adjudicated by the judgment in the case; third, denial that a demurrer was pending undisposed of at the time judgment was taken.
On February 20,1924, upon application of the bank, an order was made spreading a journal entry nunc pro tunc of proceedings of February 7, 1922, overruling Hebert’s demurrer to the plaintiff’s petition.
On February 21, 1924, the application of the bank for writ of assistance came on for hearing. The defendant, though notified of the hearing, did not appear. His application for a jury trial was denied, and the court, having heard the evidence, allowed the application for the writ of assistance. Thereafter, and on the same day, Hebert appeared by his attorney and asked the court to fix the amount of supersedeas bond and for a stay pending appeal to this court. This request was granted and the bond given.
Appellant contends, first, that the court erred in sustaining the application of appellee for a writ of assistance; second, that the court erred in overruling appellant’s application for a jury to try the issues of fact raised by the pleadings.
Disposing of the second point first: Counsel have cited us to no authority, and our own research discloses none, requiring or authorizing a jury trial upon the hearing of an application for a writ of assistance in a foreclosure proceeding. The authorities seem unanimous to the effect that the granting, or refusing to grant, an application for a writ of assistance in such a proceeding is the exercise of equity jurisdiction. (5 C. J. 1317; 2 R. C. L. 730; Motz v. Henry, 8 Kan. App. 416; Bird v. Belz, 33 Kan. 391, 6 Pac. 627; Watkins v. Jerman, 36 Kan. 464, 13 Pac. 798; Lundstrum v. Branson, 92 Kan. 78, 139 Pac. 1172.) There was no error in refusing a jury trial upon the application.
Appellant contends that the court erred in granting the application, because (a) the judgment was taken May 1, 1922, when his demurrer to the petition was undisposed of; (6) at an adjourned session of court of which he had no notice; and (c) because of a suit pending to set aside the judgment for the reasons above stated, and for the further reason that since the judgment a part of the indebtedness to the bank has been paid, the pleading in which suit was referred to in his answer to the application for the writ. It will be observed that none of these objections go to the jurisdiction of the court to render the judgment of May 1, 1922. Generally speaking, irregularities in the proceedings which do not go to the jurisdiction of the court are not a defense to an application for a writ of assistance. (2 R. C. L. 739; 5 C. J. 1322,1323.) Two portions of the record show that the demurrer was disposed of before judgment was rendered; the judgment itself recites that defendant was in default, and the journal entry nunc pro tunc shows that the demurrer was disposed of in February, 1922. In addition to that, the statute provides (R. S. 60-3010) that a motion to vacate a judgment, because of its rendition before the action regularly stood for trial, can be made only in the next three days of the succeeding term. This was not done. There is no merit in appellant’s contention that the judgment was prematurely taken. Neither is there any merit in the contention that the judgment was taken at-an adjourned term of court.
Appellant’s contention that the writ of assistance should not have been allowed because there had been a substantial payment upon the judgment since the sale of the property is really not presented by this record. It is not specifically set up in his answer to the application for the writ, but the answer does refer to the pleading in another action in which it is now argued that matter was set up. Even if that could be regarded as a proper pleading of the matter, which may be doubted, there was no evidence to support it upon the hearing. Defendant was specifically notified when this hearing whs to be taken up, and yet he failed to appear and offer any evidence of'this alleged payment, if any such had been made. No doubt if he had appeared and offered evidence that a part of the judgment had been paid since the sale of the property, and offered to pay the balance, the application for the writ would have been denied; but no proof of that matter having been made, the court below could not assume it to be true, and neither can this court. Hence if this question is regarded as having been at issue, there was a total failure of proof to support it. We shall hold, however, that this particular question was not in issue before the court, and we do so for the specific reason that we do not want this decision to preclude appellant in some other proper cause or proceeding from having the benefit of any payment which he had in fact made upon this judgment.
The judgment of the court allowing the writ of assistance is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a school teacher’s contract. The defendant prevailed and plaintiff appeals.
The case was tried on an agreed statement of facts, which showed that on April 3, 1921, the plaintiff and defendant entered into- a written contract whereby the plaintiff agreed to teach music in the public schools of Bonner Springs for the year beginning September 5, 1921, at a salary of $135 per month. The contract contained this provision:
“Fijth. That this contract may be terminated by either party on thirty days’ notice in writing to be given by the party desiring such termination, and only when there exists some reasonable ground therefor, excepting that this contract may be terminated at any time by mutual consent of the parties thereto.”
On May 31 an adjourned meeting of the board of education was held, at which the following action was taken:
“After presenting a summary of the expenses of running the schools for the past year, and a very careful consideration by the board of what they could possibly do in the coming year, it was resolved to keep the school system up to standard although it would be necessary to do away with some departments. Moved by R. Filkin, and seconded by Mrs. Frederick that the music department be discontinued for the next yeai', and that Miss Brown be notified that because of this necessary action her contract would be cancelled. Carried.”
The superintendent of schools on June 1 wrote plaintiff:
“At the meeting of the board of education last night it was decided to discontinue the music work in the schools. It was found necessary to do this because of the financial condition in which district finds itself at this time, and the board hopes that perhaps by another year this work can be reestablished. The board will be glad to furnish any recommendations to you and give you such assistance as it may in helping you secure another location. Thanking you for what you have done here, and wishing you success in another position, I am, . . .”
Facts stipulated, also, were that after receiving notice of cancellation of her contract the plaintiff endeavored to secure other employment but was unable to do so except to the extent of earning $320 during the year specified in the contract. Also that she presented herself to the board of education on September 5, 1921, for the purpose of performing her duties under the contract and her services were refused.
The plaintiff contends that the contract was cancelled for the convenience and whim of the board of education; that the notice given her in no way fell within the provisions of the contract providing for cancellation, and that there was no evidence of a reasonable ground for cancelling the contract. Whether the board at its meeting on the 2d of April, at which time it was agreed to employ the plaintiff, considered its financial condition is not disclosed, but it is apparent that the defendant, in the exercise of its functions as a school board, acted in good faith, not only with reference to the contract, but in the carrying out of its obligation to the patrons of the school. In consideration of its affairs the discovery was made that it would not be possible, with the funds available, to carry forward all of the departments including that of music, and in its exercise of discretion, and in compliance with the terms of the contract, chose to keep the other departments up to their standard and dispense with the music department until the financial condition of the board would enable them to reinstate it.
The plaintiff cites Drug Supply Co. v. Board of Administration, 106 Kan. 256, 187 Pac. 701, and other authorities which lay down the rule that whenever subsequent impossibility of meeting condi- ' tions of a contract might readily have been foreseen by the party obligated to perform, he will not be excused on the ground of impossibility. We do not think the rule contended for is properly applicable to the facts here. Other authorities cited by plaintiff are not controlling. A fair interpretation of the contract in controversy indicates that either party under the fifth clause might cancel it, if acting in good faith and for reasonable cause. There is no allegation or proof indicating bad faith on the part of the defendant board, and bad faith cannot be assumed. (See 13 C. J. 606; 6 R. C. L. 922.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages suffered by plaintiff as the result of an abortion produced by defendants. Julian’s demurrer to the petition on the ground of misjoinder of causes of action was overruled, and he appeals.
The petition contained a paragraph in which it was charged Turner was responsible for plaintiff’s pregnancy, the relationship between Turner and the plaintiff — a child of sixteen years — and the circumstances under which pregnancy occurred -being stated in some detail. Julian contends he is not concerned with thahcause of action.
The purpose of the pleader is not made- clear by the petition. While plaintiff lived in Turner’s home, she was his employee, and not his ward (R. S. 21-901), and her consent to intercourse with Turner was not negatived. She was, however, under the age of consent; Turner was guilty of statutory rape (R. S. 21-424), and according to the weight of authority he was liable to plaintiff in damages even although the criminal act was committed with plaintiff’s consent. The reason for the rule is that the statute was designed to protect girls from the consequences of conduct which, because of inexperience and immaturity, they are not capable of appreciating. If iti.was the purpose of the pleader to recover from Turner for plaintiff’s defilement, Julian’s demurrer to the petition should have been sustained.
The abortion statute is designed for the protection of the general public interest, and not for the special protection of a class, 'as primary object. The reason for civil liability for statutory rape, consented to, does not obtain, and there is authority that consent to an illegal operation bars recovery. (See notes 10, 12, and 14 to article “Consent as Affecting Civil Liability,” by Francis H. Bohlen, in Columbia Law Review for December, 1924, Yol. XXIV, No. 8. See, also, 33 A. L. R. 53, 58.) In view of this authority, the pleader, without alleging nonconsent, attempted to state a case of submission to the illegal operation, obtained by deceit. The question before the court is not whether the petition stated a cause of action founded on the abortion, but whether it stated two causes of action, one for seduction and the other for abortion, and if the paragraph relating the circumstances under which pregnancy occurred was inserted merely by way of inducement to show a relationship favorable to overcoming plaintiff’s will, but one cause of action was pleaded. Since plaintiff disclaims relief on account of the seduction, and will be bound by that interpretation of her pleading throughout the subsequent proceedings, the court did not commit prejudicial error in overruling the demurrer.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit by lessors of certain oil and gas leases to enjoin the lessee from using the “thief test” on oil'in tanks on the leased premises, and from turning oil under such test into pipe lines for treatment elsewhere, and for a decree requiring defendant to use the heating and steaming plants on the leased premises before turning the oil into the pipe lines. It was tried to the court, who made findings of fact and conclusions of law. Judgment, the nature of which will be more fully set out, was rendered for plaintiffs, and the defendant has appealed. There are three cases against the same defendant, involving three leases owned by defendant parties, but the allegations as to injuries sustained and the relief sought are identical. They were consolidated for trial in the court below and here, and may be treated as one.
The petition, after alleging that the plaintiff is the owner of the land, that a lease was executed, a copy of which is attached, and that defendant by proper assignment is now the owner and holder of the lease, recites:
“5.. The defendant, The Empire Gas and Fuel Company, has drilled a number of wells on the land covered by said oil and gas lease and said wells are producing large quantities of oil. That one of the conditions of said lease is that there shall be delivered to the plaintiff free of cost in pipe line a one-eighth (%) part of all oil produced and saved from said premises. The condition being in words and figures as follows:
“ ‘To deliver to the credit of the first party, his heirs, or assigns, free of cost, in the pipe line to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the leased premises.’
“6. The defendant, Empire Gas and Fuel Company, erected and maintained on said leased premises a treating or steaming plant for the purpose of treating the oil obtained from, the wells drilled thereon and removing therefrom water and basic sediment before turning the same into the pipe-line connections, and said treating or steaming plants were operated for the purpose of ascertaining with some degree of accuracy the amount of merchantable oil produced from wells, and in conformity with conditions of lease aforesaid put in pipe line connecting with wells the merchantable oil, out of which the plaintiff was to receive one-eighth of oil produced and saved from the premises. That said testing or steaming plants were fairly well designed to test the production of merchantable oil, and the plaintiffs received up to the 1st of August, 1920, his checks for one-eighth, the royalty of oil turned into pipe line connecting with the wells from the treating and steaming plant.
“7. On or about the 1st of August, 1920, the defendant, the Empire Gas and Fuel Company, breached the terms and conditions of its contract of lease, as aforesaid, closed down and abandoned the use of its treating and steaming plant and resorted to another and different method, known as the ‘thief test’; the ‘thief’ being an instrument with a cup or trap which is let down into the bottom of tank and brings up a cup of oil, then to the center and last to the top. These tests are ground out and an estimate is made therefrom of the amount of oil in each tank. By the method of estimating the plaintiff has been greatly reduced in his one-eighth royalty, the amount of his one-eighth of the production falling immediately to a lesser amount, which varies and is uncertain, and hence cannot be placed with any degree of accuracy, but as a total for each month the one-eighth interest of the plaintiff has diminished one-sixth (%) without there being any diminution in the production of the wells on said lease, the decrease being due to the inaccurate tests and estimates hereinbefore pleaded as the ‘thief test.’ In violation of the conditions of its contract of lease as aforesaid, the said defendant turned the nnsteamed oil into its own pipe line and earned the same to the Boyer tank farm in Butler county, Kansas, where it treats said oil by some method unknown to the plaintiff, but well known to the defendant, thereby placing the plaintiff in a situation where he can by no system of gauging keep an account of the amount of oil produced from wells and pumped into tanks and from tanks turned into connecting pipe line. By this method the defendant has failed to account for plaintiff’s royalty, and placed it beyond the reach of plaintiff to know or ascertain his rights in the premises — the amount of oil produced or turned into connecting pipe lines. As a result of this method there has been a great loss in pipe-line runs. There is no way that the plaintiff can gauge his interest or protect the same, to the plaintiff’s irreparable loss and damage.
“8. That during the months of August and September and up to and including October 11th, 1920, there was in the tanks of said leased premises, pumped from the wells thereon, twenty-eight thousand two hundred twenty-three barrels of oil as shown by the gauge of said tanks, as plaintiff is informed and believes. That during said time the defendant, Empire Gas and Fuel Company, has only accounted to the plaintiff for twenty-four thousand eight hundred ten and 3%oo (24,810.36) barrels in said tanks turned into pipe lines, thereby showing an actual loss of three thousand four hundred twelve and ®%oo (3,412.64) barrels of oil in which the plaintiff has a one-eighth royalty interest, thereby entailing upon the plaintiff a loss of fourteen hundred ninety-three and %oo dollars ($1,493.03), which would be his one-eighth of said oil as royalty at $3.50 per barrel, the standard price of said oil as published by the Prairie Oil and Gas Company.
“9. Plaintiff is informed and believes, and so alleges the fact to be, that the methods adopted by the defendant in the testing, estimating and treating of oil taken from the land of the plaintiff is unjust, inaccurate and problematical in results. The methods adopted by the defendant to produce the result as aforesaid, and consequent loss to the plaintiff of fourteen hundred ninety-three and ?loo dollars ($1,493.03) in two months, are not known to the plaintiff, and hence cannot be described with accuracy, but are well known to the defendant, its agents and employees. There has been no appreciable diminution in production of oil from wells. The treating and steaming plants erected by the defendant on the leased premises of the plaintiff are standing with full equipment for treating oil produced from the wells thereon. In the use of said treating and steaming plants the plaintiff was able to keep fairly accurate account of the amount of oil produced, treated and turned into pipe line. The abandonment of said treating plants by the defendant leaves the plaintiff where he can keep no account or do anything to guard his interest or protect his one-eighth royalty, and is compelled to receive, without any knowledge of amount, the figures furnished by the defendant, which figures are based upon the inaccurate tests as hereinbefore pleaded. They result in an actual loss to the plaintiff, as hereinbefore stated, of fourteen hundred ninety-three and %oo dollars ($1,493.03), his share in the way of royalty in the three thousand four hundred twelve and 6%oo barrels of oil lost and unaccounted for. The plaintiff has no adequate remedy at law to protect him in damage. The methods used as aforesaid are continuing, and the plaintiff will suffer great and irreparable loss unless he can have the benefit of the equitable remedy of injunction, enjoining said defendants from pursuing their present method of measuring, testing and treating oil, and a mandatory order and decree compelling them to use their heating and steaming plant on said leased premises for treating the oil before turning into pipe line, and for the further relief of an accounting for the loss sustained.”
The answer contained a general denial and averred that with the oil produced* from the leases there is commingled a large percentage of water, which varies in amount, which it is necessary to separate from the oil in order to render it marketable; that defendant, without cost to plaintiff, has at all times during the operation of the lease used such methods as were from time to time approved by those skilled in the business, and has at all times delivered to plaintiff a greater amount of credit for oil than plaintiff was entitled to under the terms of the lease; that prior to March, 1919, defendant in separating the water from the oil used a steaming process, at great expense; that since that time defendant has used a dehydrating plant in the neighborhood of plaintiff’s land, and from then to some time in August, -1920, in order to determine the percentage of water in the oil, defendant made use of fair and average samples of the mixture of oil and water taken from the wells, and used a process known as the “centrifuge” or grinding-out process, which was during that time the ordinary and approved process used in the oil field for that purpose, but that this process did not show the full amount of water or basic sediment commingled with the oil, and therefore during that time defendant had given credit to plaintiff for more than the share of oil due plaintiff under the terms of his lease.
Both plaintiff and defendant asked for án accounting, but this feature of the case has not been tried out and need not be further noted.
After trial, during which the court, in addition to hearing the evidence, made personal examination of the leases, the manner of taking samples, the dehydrating plant and the process of determining the amount of water in the oil, and made-findings of fact that the plaintiffs were the owners of the land described, and had executed oil and gas leases in the ordinary form, containing the clause set out in plaintiffs’ petition.
“5. The above-described lands are situated in what is known as the El Dorado district. At the time said leases were given there was no development for or production of oil in that district.
“6. The defendant became the owner of all of said leases in the year 1916 and commenced to develop all of them in the summer of 1917, very soon after development first started in the El Dorado field.
“7. During the early development in the El Dorado field there was very little water commingled with the oil as it was produced. It was comparatively free from impurities and was marketable in the condition in which it was pumped. Later salt water came into the wells and gradually increased in volume, and during the last few years a large percentage of the fluid produced by the wells has been salt water, amounting on many leases to more than ninety per cent. This is commingled with the oil and has to be pumped out with it. The mixed fluid thus pumped out is run into a tank. Since the water is heavier than the oil, a considerable portion of it settles by gravity into the bottom of the tank and is drawn off without disturbing the oil. A large amount of water, however, remains mixed with the oil, and under ordinary temperature will not separate. It was found that by heating the mixture a still greater portion of the water, which has remained suspended in the oil, could be separated and precipitated to the bottom and again drawn off; but even when the fluid was heated the water descending carried with it considerable oil. This mixture, with such other impurities as are brought up by the pump, forms an emulsion at the bottom of the tank, which is called 'basic sediment,’ or most generally ‘B. S.’ This B. S. gradually thickens in the bottom of the tank, and much of it has to be scraped out and thrown away, and most operators deposit it in large artificial ponds upon the leases, where occasionally it is finally disposed of by burning.
“8. Purchasing companies will not ordinarily accept oil having much more than one per cent of water and other foreign matter.
“9. [A finding as to the divisional order given by plaintiffs for the payment of oil.]
“10. The delivery of oil to the purchasing company was made in the following manner:
“A pipe line was connected with the stock tanks on the leased premises, somewhere from twelve to twenty inches above the bottom of the tank, and the oil was run through this pipe line. Before being run, an agent of the purchasing company, called the gauger, carefully measured the depth of the fluid in the tank; then the pipe-line connection was opened and the oil allowed to pass into the pipe line from the tank, and as much taken out' as the purchaser was willing to accept; then the pipe line was closed and again the depth of the fluid in the tank was carefully measured, and the number of barrels and fractions of barrels run was then determined by the purchasing company. Prior to this time each tank had been carefully measured, and a very elaborate table was prepared by ah expert engineer at Tulsa, employed by practically all purchasing companies for this purpose. That table showed the number of barrels of forty-two (42) gallons each that would be contained in each portion of the height of the tank, figured down to a quarter of an inch and an hundredth part of a barrel. From this table the purchasing company figures the number of barrels delivered, and remits, at the market value, one-eighth to the royalty owner and seven-eighths to the producing company. The landowner could have an agent present to verify these measurements and keep a record of same when this is done.
“11. The first method used by the defendant in removing water from the oil, so as to make it marketable, was by establishing upon each lease a steaming plant and placing steam pipes in the tanks until the fluid was heated sufficiently so as to separate water from the oil to such an extent that the portion of the fluid above the pipe-line connection would be of such purity that the purchaser would accept it. Before the purchaser would accept it, a sample of the oil would be taken from near the pipe line connection by means of an instrument called a 'thief,’ and that sample tested by the use of what is called a ‘centrifuge machine.’ If the sample satisfied the purchaser, he would buy the oil. If it did not, he would require further treatment.
“12. By this method the heating of the oil caused some of the lighter vapors of the oil to escape, so that there was a distinct loss in volume before the oil was sold, and there was a distinct and important loss in the quality of the oil by reason of the fact that the lighter gasoline vapors were lost and the value of the oil was consequently lessened. There was another loss also in the amount of emulsion which settled below the pipe-line connection and which would not be accepted by the purchaser, and which was thrown away, with the possibility of reclaiming only a small portion. All of these losses were suffered by the lessor and the lessee in proportion to their interests of one-eighth and seven-eighths.
“13. In addition to the above losses, the expense of this method of treatment was very substantial. The cost of constructing these separate steaming plants and maintaining and operating them was borne by the defendant, except that, as provided by the leases and as was customary in the field, the fuel for this purpose was oil taken from the lease and amounted to about ten barrels a day.
“14. Seeking to prevent the above losses and expenses, the defendant during the year 1918 undertook extensive experiments to devise a method of treating the oil in such a way as to save the vapors which had been escaping and to reclaim from the B. S. the oil contained therein; also to recover from the B. S. ponds, where the waste matter had been deposited, the maximum amount of oil capable of recovery therefrom, and it was finally determined to construct what is known as the ‘dehydrater.’
“15. The dehydrater is a large plant, costing over four hundred thousand ($400,000.00) dollars, and is located about three miles east of the Hamilton and Shriver lands and on the main road to El Dorado. A system of pipe line was laid, connecting the tanks of all of the wells upon plaintiffs’ lands and upon nearly all other leases owned by the defendant in the El Dorado district, at a further cost of about two hundred and fifty thousand ($250,000.00) dollars. The defendant operated at that time and at the time of the trial of this action about seventy-five (75) leases in that district, with about thirteen hundred and fifty (1,350) wells, all connected with the dehydrater. No other company owns nearly that number of leases in the district.
“16. The dehydrater was built by the defendant. It is operated by the Empire Petroleum Company, but the defendant pays the Empire Petroleum Company the entire expense of operating the plant. The defendant also pays the Empire Petroleum Company for any loss due to any overpayment which the Empire Petroleum Company may make on account of its giving credit for more oil delivered from the leases than the actual runs from the dehydrator delivered, if any such there be. The pipe lines receiving the oil from the leases are owned and operated by 'the Empire Pipe Line Company.
“16a. The Empire Gas and Fuel Company is the producing company. The Empire Pipe Line Company is the company that transports oil through its pipe lines. The Empire Petroleum Company is the buying company. The Empire Pipe Line Company lines connect with the dehydrater plant, and the oil from the dehydrater is turned into the connecting lines of the Empire Pipe Line Company. The treating of the oil at said dehydrater is done by the purchasing company. There is no treatment of the oil on the property of the plaintiffs.
“17. The method of conducting the dehydrater, briefly stated, is as follows:
“The oil, including water and other impurities, except such as have settled out by gravity, is collected through the pipe lines from the various leases and run into large receiving tanks and there commingled. From these tanks it passes through entirely closed, large pipes, which are heated by steam, and passes into entirely closed reservoirs, where it is further treated with chemicals, and this treatment removes practically all water and other impurities, and the oil in good marketable condition is delivered into stock tanks or run into pipe lines for final shipment. In this treatment substantially all gasoline vapor is saved.
“18. The dehydrater was completed about March, 1919, and all leases were connected as soon thereafter as.practicable. The J. E. Hamilton lease, referred to herein, was connected with the dehydrater March 18, 1919; the Joshua Shriver lease was connected March 15, 1919; and the J. L. Shriver connected May 24, 1919; and since those respective dates all oil from these leases has been delivered to the dehydrater.
“19. Ever since the connection with the dehydrater, the same method of measuring the fluid at the tanks on the leases and the same method of estimating the number of barrels of fluid run from the tanks, with the same strapping tables and the same method of payment therefor by the Empire Petroleum Company, have continued as were used prior to the time that the dehydrater was connected.
“20. Some time between March and the middle of the year 1919 the use of steaming plants upon the lease was discontinued, for the purpose of preparing the oil for the market, and as a consequence the fluid run from the tank into the pipe line and to the dehydrater contained considerable water which had not been separated by gravity from the oil, and which amounted to from about six to about twelve per cent or more of the total fluid content delivered from the tank; and in order to determine the amount of credit that should be given to the lessors and to the lessee, respectively, by the purchasing company, a sample was taken of this fluid and that sample tested for the purpose of determining the proportion of water contained in the sample; and when that proportion of water in the sample was thus determined, then the same proportion was deducted from the total volume of fluid delivered into the pipe line, and credit was given to the lessor and the lessee for their respective portions of the remainder, so that the lessor received full credit for his one-eightji of the total amount of fluid run from the tank into the pipe line, less the proportion of water found to be contained therein.
“21. The method of selecting the sample of the fluid in the tank for testing during all of the time from the date the steaming process was abandoned for making marketable oil, and until January 19, 1921, was as follows:
“The instrument above referred to and called the thief (which is a square can one foot deep and about two inches across, open at the top; also open at the bottom when being submerged, but with a sliding bottom, which is closed by a spring which can be released quickly when the thief is at the point at which it is desired to take the sample) was submerged into the fluid in the tank at the top of that fluid and filled and emptied into a can, then the thief was lowered half way down to the pipe-line connection in the tank and again filled and emptied into the same can, and was again lowered down to just above the pipe-line connection and again filled and emptied into the same can. These three samples were thoroughly mixed by agitation, passed through a quartering device, and two portions separately tested in' the centrifuge machine — until about August, 1920 — which was revolved rapidly by hand until the water carried by centrifugal force separated from the oil so far as this treatment would separate it, and the proportion only, represented by the water thus separated, was accepted as the proportion to be deducted from the amount of oil delivered from the tank, for which both lessor and lessee received credit and payment from the purchasing company.
“22. This method of testing the samples of oil by the use of the centrifuge machine was continued upon all leases until August 19, 1920, and payments were made during that time on the basis of that test, when it was determined and claimed by the defendant that the lessor in each case was receiving credit for more than his one-eighth of actual oil delivered, which was claimed to be due to the fact that the centrifugal machine did not separate all of the water from the oil, this being largely the water contained in the emulsion or B; S. which formed a part of the sample.
“23. Upon the 19th day of August, 1920, the defendant discontinued the use of the centrifugal machine for making the tests and adopted the method of distillation. By this method the samples taken from the tanks have been treated in the laboratory of the defendant — first about one mile, and later at Oil Hill, about six miles from the leases — by being measured, placed in a still, subjected to heating, and the vapors of gasoline and of water being collected in an accurately graduated tube, in which the water settles to the bottom, with the gasoline on top, and the amount of water thus extracted by distillation, and this only, is deducted from the total cubic contents of the sample which is treated; and this proportion of water to the total volume of the entire sample is the proportion that is used and deducted by the 'Empire Petroleum Company in estimating the amount of actual oil delivered from the tank, and upon this estimate its payments have been made.
“24. After further consideration and after the commencement of this suit, the defendant upon January 19, 1921, in taking the samples to be tested, used what is called a ‘continuous-column method.’ This is done as follows:
“A thief two feet long is attached to the pole used in gauging the depth of the fluid in the tank at a point so that the top of the thief is level with the top of the fluid. This sample is taken out and deposited in the receiving can; then the thief is placed two feet lower on the pole and is submerged and the sample taken and deposited in the same can; and so on until the thief has taken a continuous sample down to the pipe-line connection, and these samples, being thoroughly mixed and treated by distillation, have formed the basis of estimating the amount of oil for which credit is given since January 19, 1921.
“25. Each lessor receives payment for his royalty based upon the amount of fluid run from the tank upon his own land, after deducting the amount of water as so determined by the test of the samples, without regard to what happens to the oil after it passes from the tank into the pipe line, and without regard to what is done with it at the dehydrater.
“26. The present method of gauging and measuring the tanks and fluid in the tanks is correct and proper.
“27. The present continuous-column method of taking the samples to be tested and treated gives a fair sample of the whole volume of fluid in the tank.
“28. The present method of testing the samples by distillation to determine the per cent of water contained therein is correct, and if the work in the laboratory is accurately done — and this must be very accurate, since the sample is such a very small portion of the whole — and honestly reported, then the result is correct.
“28a. This method of determining the amount of marketable oil delivered into the pipe linp is not used by any other company in this midcontinent oil field, but all others steam the oil on the leases, before turning same into the pipe line, when necessary.
“29. Comparisons have been made of the records of the dehydrater, which show the total amount of oil actually recovered during definite periods, and the other records of the Empire Petroleum Company, showing the total amount of oil during the same periods, for which all lessors in the field have received payment for their one-eighth royalty. These comparisons show that during the time from March, 1919, when the dehydrater was completed, to August 1, 1920, during which time the centrifuge machine was used, there was an overpayment to all lessors.
“30. The comparisons referred to in conclusion 29 also show that from August 1, 1920, to June 1, 1921 (shortly before the trial of this case), during which time the distillation test had been in operation, there was still a small overpayment to lessors, amounting to about 0.65 per cent.
“31. The total number of barrels of oil produced by the defendant in the field during the year 1918 was 12,066,191.65, while the total number of barrels produced by the defendant in the field during the year 1919 was 7,837,284.17, showing a decrease in the amount'of production for the twelve months next prior to January 1, 1920, to be 35 per cent.
“32. The cost to the Empire Gas and Fuel Company of maintaining and operating the separate steaming plants upon all of the leases connected with the dehydrater will at all times substantially exceed the cost of operating the dehydrater itself.
“33. Under the steaming plant a very substantial portion of the oil was necessarily thrown away into the B. S. ponds. The abandonment of the steaming process and charging against the lessor only the water contained in the B. S. has saved to both parties substantially all of the oil contained in the B. S. About 30 per cent of this B. S. is oil.
“34. By the use of the dehydrater the B. S., which had formerly been thrown into the ponds, has been reclaimed and run to the dehydrater, and there practically all of the oil has been extracted from it, and in each case the lessor has received payment for his one-eighth.
“35. The maintenance of steaming plants upon the separate leases necessitated the use of a considerable quantity of oil per day, which expense was borne by both lessor and lessee, and the abandonment of the steaming plants has resulted in a saving to both lessor and lessee in this respect.
“36. The plaintiffs have been offered the privilege of observing all tests made in the laboratory and have at all times had the privilege of observing the gauging of the oil and the sampling of the same at the tanks upon the leases, but it is not practicable, if possible, for the lessors to visit the laboratory of the defendant at all times when the particular samples of fluid from their leases are being worked, and then only a chemist, or one reasonably familiar with this character of laboratory work, could check up the result, and the lessors have no control over the samples of fluid which are finally treated after they are taken from the tanks at the wells.
“37. The returns in money to the plaintiffs for oil from their leases fell off suddenly and very materially about August, 1920.”
The court stated its conclusions of law as follows:
“First. For the purpose of eliminating water and basic sediment and ascertaining quantity of marketable oil, the plaintiffs are entitled to have the fluid from their wells treated upon the leases so that they may ascertain .and know for themselves the amount of oil that is delivered into the pipe line; or, the defendant should inaugurate a plan in the use of its present system under and by which the plaintiffs may be afforded an opportunity to know that a correct sample of the fluid from their wells is treated, and properly treated, in ascertaining the amount of marketable oil run from their leases, and this without any greater expense to them than they would ordinarily incur for the services of a gauger to oversee and measure the quantity of marketable oil in their tanks prior to being turned into the pipe line, after being steamed or otherwise made marketable by the defendant upon the leases.
“Second. Unless the defendant afford the plaintiffs, without additional trouble and expense to them, reasonable means and opportunity of ascertaining and knowing that the proportion of the fluid turned into the pipe line from the tanks on their leases, and which is reported by defendant to be marketable oil, and for which they are paid, is correct, then it should be re quired to treat the fluid upon the leases so that when turned into the pipe line it shall represent oil sold, one-eighth of which would represent the plaintiff’s share of marketable oil.
“It is, therefore, ordered that as a condition precedent to the continued use of its present method of ascertaining the amount of marketable oil delivered to the pipe line from the tanks on the leases of the plaintiffs, the defendant shall pursue the following course:
“First. Furnish to the gauger of ,the plaintiffs, in a proper receptacle, an equal part of the sample taken from the tanks for treatment at the laboratory.
“Second. Treat its sample at a time reasonably convenient for the gauger of the plaintiffs to be present and observe the work, and of which time the gauger shall be given notice by the defendant when the samples are taken from the tanks.
“Third. Give to the gauger of the plaintiffs, at the time of treating the fluid in the laboratory, a record report of the result thereof.
“Fourth. Treat the sample delivered to the gauger of the plaintiffs, when requested to do so, and give to said gauger a record report of same for the purposes of comparison.
“Fifth. Number all samples and reports of treatment thereof, so as to insure correct comparisons.
“Sixth. Pay to plaintiffs the reasonable expense incurred by them in handling the samples and observing the work of the defendant in treating the same, over and above the ordinary and reasonable cost of hiring a competent gauger to measure the oil in the tanks upon the leases after their being made ready for the market and before being turned into the pipe line, and if plaintiffs and defendant are not able to agree, then this court to ascertain and fix the amount which shall be paid by defendant to the plaintiffs on this account.
“Seventh. File in these cases its consent and offer to comply with these suggestions, within forty days from this date.
“And it is further ordered and adjudged that when, and so long as, the defendant complies with these requirements, as hereinbefore suggested, then it shall be permitted to continue its present method of marketing the oil from the leases of the plaintiffs, and the relief prayed for by them be denied; but upon defendant’s refusal to comply with these requirements; judgment should, and will, be rendered in favor of the plaintiffs in these actions.”
Defendant moved for a modification of some of the findings of fact made, and for some additional findings. Reading the evidence, it would seem that this motion might have been sustained in part at least, but we do not regard the overruling of this motion as material. The defendant objected to the conclusions of law and to the judgment rendered and moved for judgment in its favor upon the findings made. This motion was overruled, as was also its motion for a new trial.
Defendant’s motion for judgment in its favor on the finding of fact made by the trial court should have been sustained. Plaintiffs were defeated by the evidence; and the court found against them upon their allegation that the “thief test,” or method used by defendant in determining the amount of oil produced and saved from the lease, was inaccurate and resulted in loss to plaintiffs. So thorough was this evidence that counsel for plaintiffs, while a witness was being examined in the trial, spoke up and said, “Understand me, I think your distillation test is a splendid test. I am not attempting to attack your tests at all on that.” And both in the oral argument and brief in this court it is frankly conceded that the method of testing the samples taken from the tanks by the instrument called a thief is scientific and accurate and correctly shows the percentage of water to be deducted from the total quantity of oil and water run from the tank. The allegation in the petition that the method of the defendant in testing the oil and in treating it so as to make it marketable resulted in loss and damage to plaintiffs also was thoroughly disproved. On the other hand, the evidence and findings show that the method used by defendant results in a substantial saving and benefit to plaintiffs, as well as to defendant; by saving the most volatile and valuable portions of the oil that were lost by the heating and steaming process; by saving the basic sediment, thirty per cent of which is oil, all of which was wasted under the heating and steaming process; and by not having to use ten barrels of oil per day to operate the heating and steaming plants. So the relief sought by plaintiffs in their petitions — that defendant be enjoined from continuing to use the “thief test” in determining the amount of oil produced and saved from the leased premises, and for a decree requiring defendant to reestablish and operate the steam-heating plants upon the leases — is no longer seriously contended for. In fact, they say,- in substance, that this large, expensive, efficient dehydrating plant used by defendant should not be junked, and the former wasteful and more expensive method of steam heating the oil in the tanks on the leases reestablished in its stead.
But plaintiffs contend that because of the clause in the lease which obligates the lessee “to deliver to the credit of the first party, his heirs or assigns, free of cost, in the pipe line to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the leased premises,” and since defendant, with consent of plaintiffs, did establish and operate the steam-heating plants upon the leases so as to treat the oil and make it marketable when turned into the pipe line from the tank, the parties to the lease have put an operative interpretation upon the lease which has become in effect a part of the lease, which plaintiffs are entitled to have enforced.
Let us examine this contention for a moment. When the leases were made,- in 1914, there was no oil produced in the El Dorado field where these lands are situated, hence whether oil, if found there, would need treatment to make it marketable, or the method of treatment if that should be necessary, was not mentioned in the lease. The lease did provide that the lessor should have one-eighth of the oil produced and saved from the leased premises; that is all it did provide. The method of producing the oil and saving it was for the lessee to determine. It was contemplated, of course, that the lessee’s methods of producing and saving the oil should be fair, and that no fraud should be practiced upon the lessor; but plaintiffs do not charge fraud, and the court has found and plaintiffs now admit that the method is fair. For some time after the wells were drilled, in 193,7, the oil was sufficiently pure that it needed no treatment; the pipe lines took it as it came from the wells; hence during that period there was no mutual interpretation of the lease which required the treatment of the oil on the lease. Later, as the wells were pumped, water came into them and was pumped up with the oil — so much water that the purchasing company would not take the oil in that condition. . The oil, of course, was worth nothing either to plaintiffs or to defendant unless it could be sold; so defendant began to treat the oil to free the water from it enough to make it marketáble. There is no evidence that it consulted the plaintiffs about what method to use. It went ahead to prepare the oil for market and used the best and most practical method then known to its officers and employees, and the method then generally used in the El Dorado field. It discovered that this method was expensive and wasteful and it set about to find a better one.
Defendant had 75 leases in a compact territory, upon which it had 1,350 producing wells. Its officers concluded it could well afford to spend $650,000 to build a central dehydrating plant which would take all the water and foreign elements from the oil and make it marketable and connect all its wells with it. Plaintiffs’ wells were connected in. March and May, 1919, and the steam-heating plants on the leases were then discontinued. These suits were filed November 3, 1920, so at that time the use of the steam-heating plants had been discontinued for a longer period than they had been used on the leases. Under this-state of facts their use cannot be said to have been an operative interpretation of the lease by the parties that the oil must be treated by the steam-heating process upon the lease which the plaintiffs are entitled to have enforced, even if the clause in the lease were open to such an interpretation, which may well be doubted.
What plaintiffs are really asking now is, not that defendant be enjoined from using its present method of treating the oil to render it marketable and of testing the quantity to be paid for, and that it be required to reestablish and operate the steam-heating plants on the leases as they prayed in their petitions, but they want the defendant to be compelled to perform the alternative judgment offered them by the trial court. It should be a sufficient answer to this contention to say that when a plaintiff brings a suit and makes allegations which if established by proof would entitle him to the relief sought, or some similar relief, and then in the trial his proof fails and he does not establish any of the material allegations upon which he relies, he is not ordinarily entitled to any judgment in his favor.
Since the method now used in marketing the oil from plaintiffs’ leases is not to treat the oil so it is marketable when turned from the tanks on the leases into the pipe lines of the purchaser, but to turn oil and water from the tanks into the pipe line leading to the dehydrater, where it is mingled with other oil and all of it treated, it is important that fair samples bé taken and that these be accurately tested, for the oil is sold by sample and the lessors are paid by what the sample shows. This method of taking and testing the sample is described in the findings and is found and conceded to be correct. By this method the lessors receive and are paid for one-eighth of all the oil produced and saved from the lease. This is all their lease provides that they shall receive.
The court found that the method used by defendant in determining the amount of marketable oil delivered into the pipe line is not used by any other lessee in the midcontinent oil field, but all others steam the oil on the leases, when necessary, before turning the same - into the pipe lines. And there was evidence that, aside from the practice of defendant, it was the universal custom in the midcontinent oil field that the lessor receive his royalty upon all oil turned from the stock tanks on the leases into the pipe line, without regard to what percentage of water it contained. From this it is argued that plaintiffs have a right to be treated as all other lessors in the field are treated. While it is true that custom in the oil field determines the rights of the parties in many particulars, here is a situation to which it cannot be applied. The defendant is the only company in the midcontinent oil field having sufficient production in a compact territory to justify it in expending the sum necessary to build a central dehydrating plant and connect its wells with it. The method is advantageous financially both to plaintiff» and to the defendant. It is a step forward in the method of treating the oil which conserves all of the production from the wells, a portion of which was under the old method wasted or lost. A court should not require the abandonment of a correct, efficient, beneficial method because it is advanced, and require the return to a method that is wasteful and extravagant because such method was customary.
Plaintiffs cited and relied upon Scott v. Steinberger, 113 Kan. 67, 213 Pac. 646. The question there was the price to be paid for gas, whether the lessor should be paid on the basis of the price of gas at the end of the pipe line through which it was marketed, or should he be paid upon the basis of the price of gas at the lease, and it was held—
“That the lessor was entitled to receive his share as measured into a pipe line which connected with the well, at the price or value of gas at that place, and not the price or value that was obtained for it at some distant place on the pipe line to which it was transported and sold.” (Syl.)
There is nothing in this holding which conflicts with the conclusion here reached. The oil of plaintiffs is measured in the tanks on the leases and samples are taken, from which is determined the percentage of oil and water in the total quantity of fluid turned into the pipe line. So the oil is measured on the leases and plaintiffs are paid in accordance with that measure.
Plaintiffs argue that the method used places them at the mercy of defendant; that defendant’s agents and employees turn the oil from the tank, take the measurements, take the sample, and at defendant’s laboratory, by a process with which plaintiffs are not familiar, they determine the amount of oil to be paid for. It is pertinent to ask, Who would do this if defendant did not? The lease is of no value to either party unless it is operated. By the lease the defendant is required to operate it. The plaintiffs have no liability in that regard; plaintiffs are only indirectly concerned with method of operation; they are primarily concerned with the result obtained. So long as the method used by defendant is fair and efficient and by its use the plaintiffs receive and are- paid for one-eighth of all the oil produced and saved from the leased premises, they have nothing to complain about. (Colgan v. Oil Co., 194 Pa. 234; Locke v. Russell, 75 W. Va. 602; Grass v. Development Co., 75 W. Va. 719.)
The evidence shows that even prior to the use of this method by defendant, that plaintiffs employed a man to watch and check the work of the gauger of the purchasing company and report to them, in order that they might have information of their own as to the amount of oil produced from the leases. The evidence shows that some other royalty owners do the same thing. By the method used by defendant the court finds that the taking of the samples and analyzing them to determine the amount of oil to be paid for must be done with care in order to be accurate, and obviously that is true, but the evidence is, and the court finds, that this work was being done with care by defendant. Now, if the plaintiffs desire to know with certainty the amount of oil they should be paid for, there is no reason why they could not have an employee take samples at the same time samples are taken by defendant and have them analyzed by some one employed by them, and they should be permitted to do that if they desire to do so. But there is no complaint along this line. Plaintiffs have never been denied the' right to have their employee present at the time samples were taken and the oil turned into the tanks; in fact, the evidence shows that he was present at such times when plaintiffs desired him to be. And he should be permitted to take samples at the same time and under the same circumstances as those taken by defendant, or if there is likely to be a difference between the two samples taken, to have a part of the sample taken by defendant and then to have that examined. But these rights have not been denied and they are not complained of by plaintiffs. But there is nothing in th'e lease that would require defendant to pay plaintiffs’ employee for doing such work. Defendant is required to treat the plaintiffs fairly and to pay them for their full one-eighth of the oil produced and saved from the leased premises, and when it has done that its obligation is fulfilled
We have examined all of the authorities cited by counsel on both sides. There .is nothing in any of them contrary to the conclusions here reached. It will not be necessary to make a more extended reference to them, for in its final analysis this case gets down to this proposition: When a plaintiff is defeated at the trial upon all the material allegations of his petition and it is clear he has sustained no injury, the defendant should not be put to great expense because plaintiff entertains a fear that possibly he might be injured in the future. When he sustains such injury — if he does — the courts will give him relief.
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The opinion of the court was delivered by
Mason, J.:
P. L. Lynch owns the northwest quarter of section 36, lying about two miles south and a little west of Scott City. The track of the Santa Fe railroad runs nearly north and south about twenty rods east of his east line, and is on an embankment some two and a half feet high. Lynch brought this action against the director general of railroads, who was then operating the road, charging the destruction of fifteen acres of growing alfalfa by the backing up of water caused by this embankment. He recovered a judgment for $1,500, and the defendant appeals.
1. The defendant asks a reversal on the ground that the evidence did not support a finding of the existence of a watercourse on the plaintiff’s land which extended as far east as the railroad, reliance being placed largely upon the opinion in Gibbs v. Williams, 25 Kan. 214. The railroad east of the plaintiff’s land crosses a basin of low ground; Lion creek and its tributaries, flowing eastward, drain a considerable territory, extending some fifteen miles to the west. A witness testified that this creek enters the basin through sections 35 and 36 and into section 31, which would indicate its extension beyond the railroad. Another testified that a person just seeing the place where there is a bridge on the railroad grade might call it the bed of the stream, but he would call it a depression; that the bank at the railroad grade at the point indicated was well defined in places; that it was fairly steep; that the chain of lagoons that runs through the plaintiff’s place are well defined and easy to see; and that' the track goes right through the lagoon, and there was another further west. Another gave testimony to this effect: Lion creek “has its course through the northeast and northwest quarters of section 36. . . . As it comes towards the basin the banks are not as high. The course is very distinct and well marked, however, but the banks are flatter.” He said:
“There is a branch that comes in about a mile west of Lynch’s. The stream from that point on has an almost direct east course. The banks are not steep, but the channel is formed of what we might style as lagoons along. Well, they look like buffalo wallows, only they are very long, about two and one-half feet deep. I am not so very well acquainted with the place where the railroad crosses this creek on 36. I am more familiar with where it crosses the wagon roads, both west and east of the railroad. As before stated, the banks are not steep, and the width of the channel, if I would call it that, is something like 100 feet, I guess. I would judge the height of the banks is two and one-half feet. I am acquainted with the course of this creek east of the wagon road for about three-quarters of a mile. It is just a series of what we would call lagoons — long, low lagoons, which form the channel.”
The plaintiff testified:
“I am acquainted with the stream known as Lion creek. Have known it twenty-seven or twenty-eight years. It heads in above Modoc, comes east through my place. There are tributaries west of Modoc and one called Rocky Jaw comes in from the west, could not say how far down, about one mile west of my place. The water comes through Lion creek frequently, ever since I have known it, sometimes once or twice a year and sometimes it may be three or four or five years before the water would come down. • I recall one instance about twenty years ago. It always flowed in the same course. Up near Modoc the banks are very high, in places fifty feet. About a mile west of my place it seems to spread out. It is just like a depression or low place. It is easy to follow it. I never made any measurement as to the height of the banks; I would say something like eighteen inches or two feet. Where the creek starts into my place on the west side I should say it was sixty or possibly eight [eighty] rods; there is a deep place, two or three feet, and it will gradually rise and go on for forty yards, and there will be another place of the same character. These deep places are just connected by a small depression that is grassed over. At the west side of my place I would say that the depression is 100 feet wide, as nearly as I could estimate it, and where the railroad grade comes it is about the same. I would say the banks at the railroad were about two feet high. Right east from the railroad fill it is the same as on the west side. There is a deep depression like that on the west side of my place, then that rises again and dips on towards Coffin’s place, east of me. It continues in this way for about a mile and a half. Prior to the construction of the railroad the water followed the same course. The railroad was constructed in 1909, as I recall it. Prior to the construction of the railroad the water would stand in this creek bed; we would have big rains and the water would stand there for weeks at a time in the creek bed. I don’t remember of its overflowing the surrounding country outside of the creek bed.”
There was other evidence to the same effect and much of a contrary tendency. Considering the evidence for the plaintiff in its most favorable aspect, we think there was enough to carry the case to the jury on the question of the existence of a watercourse.
It is not necessary that the flow should be constant.
“There must be a permanent source of supply, but it is not essential to a watercourse that the flow should be constant and continuous. Surface water may be the source of supply, and the flow from that source is necessarily intermittent and somewhat irregular. It is sufficiently permanent if the accumulated surface water flows through a well-defined channel, made by the water flowing with some regularity during the heavy rains which ordinarily occur in that region. . . . To constitute a watercourse it is not necessary that the supply should be from springs, nor that the water should be discharged through a'channel into another watercourse. The fact that the channel of the stream in question grew less distinct and that it practically passed out of sight before the waters reached Dry creek does not argue that the stream lacks the characteristics of a watercourse.” (Brown v. Schneider, 81 Kan. 486, 488, 106 Pac. 41.)
Nor are continuous abrupt banks, and the absence of vegetation from the bed, essential features of a watercourse. (40 Cyc. 556; Railway Co. v. Scott, 71 Kan. 874, 81 Pac. 1131.) In the case last cited it was said:
“The jury found that the plaintiff’s land was not bottom land; that there were no bluffs or gorges on either side of the ravine; that the banks had been plowed across in places; that in certain places vegetation grew in the bottom of the ravine; that where the ravine passed through the land of one McDonald the banks had been plowed and alfalfa sowed, and that he once raised a crop of millet in the z-avine. We do not thizzk that the defendant was entitled to judgment on these special findings notwithstanding the general verdict. Bluffs and gorges are not necessarily essential to a watercourse, nor do we think that the fact that the banks of this ravine were plowed in places, or that occasionally cz-ops matured in parts of it, is conclusive that it was not a watercourse.” (p. 875.)
An earlier opinion contains this language, referring to a situation somewhat analogous to that here presented:
“Of the existence of a natural watez-coiuse, within the terms of that rule, there can be no doubt. An area of countiy of several hundred aci’es (one to two sections, the witnesses state) is drained. The country is bluffy, and deep ravines have been cut in the hills for the outflow of water falling on this surface. In one of the ravines there is a small perpetual flow from a spring, evidently, although the bulk of the water flowing through these ravines is from rain and snow. The configuration of the countiy is such that they deserve protection as natural watercourses. The same may be said. of the ditches running from the foot of these ravines and uniting just north of the wagon road. As to that extending thence to the river, and which is called by different witnesses a drain, a ditch, a slough, a swale, and a depression, the testimony is far from satisfactory; and yet we are constrained to say that there was enough to uphold the verdict. That by the deepening of the ditches along the railroad track the water flowing down tlnough these ravines, ditches, etc., was partially diverted and thrown upon the plaintiff’s field of rye cannot be doubted. Possibly the flood was so great that the land would have been covered anyway. Cei-tainly the railroad ditches helped, if they did not cause the overflow. Counsel contends that, because the company owned the fee of the light of way, and because the ditches dug and deepened by it were so dug and deepened for the necessities of its track, its action was proper, and afforded no ground of complaint by plaintiff of its results, and challenges the contrary ruling of the court in these respects. The court was right. A party cannot on his own land, or because of the necessities of his own business, divert the flow of a natural watercourse without paying any party injured the damages he sustains therefrom. This doctrine is clear, and a railroad company hasl no greater rights than any other landowner.” (U. P. Rly. Co. v. Dyche, 31 Kan. 120, 123, 1 Pac. 243.)
2. Reversal is also asked on the ground that some of the special findings are inconsistent with the evidence, some with the general verdict, and some with each other. Omitting two, which will be referred to later, they read:
“1. Was the damage to plaintiff due to rain falling over a large surface of land, which naturally flowed upon and over a depression at one end of the track? Yes.
“2. Was there through section 36 a distinct channel, with well-defined banks, cut through the turf and into the soil by the flowing of the water? Yes.
“3. If you answer the preceding question ‘yes,’ was such channel continuous and of such character clear across the section up to the railroad embankment? Yes.
“4. Did such channel present on casual glance to eveiy eye unmistakable evidence of the frequent action of running water? Yes.
“5. If you answer questions 2, 3 and 4 in the affirmative, describe fully the bed and banks of the watercourse, giving) width of channel, height and slope of banks, and stating whether any considerable part of the) bed was grassed over.
“Starting at west side of section 36, banks 1% to 2% feet; width 50 to 100 feet for about 40 rods; from there east for about 80 rods grassed over; from there to railroad about 1% feet, more or less.
“6. Was there a permanent source of supply of water, or was the flow only occasional and caused by rains? Occasional, by rain.
“7. Had the railroad embankment caused any damage from the time of its construction in 1909 up to the tima of the floods in 1919? No.
“9. How often did water run through section 36? Only when heavy rain fell on watershed.
“11. Was the flood which caused the damage to plaintiff an unprecedented one? No.”
With respect to the challenged findings we think, upon grounds for the most part already indicated, those numbered 2, 3, 4 and 11 are supported by the evidence; that findings 1, 5, 6 and 9 are consistent with the verdict, and that there is no irreconcilable conflict between findings 7 and 11.
3. Upon the issue of the amount of damages two witnesses testi fied that the alfalfa land was worth $200 before the flood and $100 after it. Another said such land in alfalfa was worth $250 an acre, and without it not over $100. Complaint is made because two others were permitted to say that the difference in value between such land with and without alfalfa was $100 an acre. This method of showing depreciation has been condemned (W. & W. Rld. Co. v. Kuhn, 38 Kan. 675, 17 Pac. 322), but as there was some competent evidence to the same effect and the defense offered none at all on this matter we regard the challenged rulings as nonprejudicial.
4. In the course of the argument to the jury the plaintiff’s attorney urged them to be very careful in answering the special questions, “because if they did not answer them properly the effect would be to set aside their general verdict.” Counsel for the defendant interrupted him, asking the court to declare a mistrial, and to discharge the jury, which request was refused, and no admonition was given. Reversal is asked on account of the episode. The need of having the special findings harmonize with the general verdict and with each other is not a matter to which the attention of the jury should be directed. (Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064; Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439.) The only order asked by the defendant in that connection, however— the discharge of the jury — was too drastic, and it does not seem probable that prejudice resulted.
The railroad was built in 1909 by the Garden City, Gulf & Northern Railway Company, which in 1911 sold it to the Santa Fe. The director general of railroads took possession of it some years later. An instruction whs given that in order to recover it was necessary for the plaintiff to show "that the director general of railroads had notice or knowledge of the fact that such embankment did not contain an ample passageway for such water as might reasonably have been anticipated to flow down said Lion creek.” The two special findings not already quoted read:
“8. What if any notice did the director general of railroads, or any of his predecessor, have that the railroad embankment was a menace to the property of plaintiff? By notifying Santa Fe agent at Scott City and section foreman.
“10. Did the plaintiff, or any one for him, notify the defendant of the danger to his land by reiason of the railroad embankment, and request him to discontinue or remove or change the embankment that caused the danger? Yes.”
The court, on motion of the defendant, set aside these findings, and the contention is now made that inasmuch as a material finding upon which the verdict was presumably based, or at all events may have been based, was set aside, a new trial should have been granted. Against this the plaintiff argues that if the defendant had actual knowledge of the obstruction of the watercourse there was no. occasion to give him notice, that there was evidence tending to show he had such actual knowledge, and that it should be presumed the jury found such to be the case. The difficulty with the plaintiff’s argument is that when the jury were called upon to say what notice the defendant had that the embankment was a menace to the property of the plaintiff they did not say he had actual knowledge of it, but specifically that the Santa Fe agent at Scott City and section foreman had been notified, and that the defendant had been requested to change the embankment. In the absence of a special finding on the subject, the jury would be deemed to have found anything supported by the evidence and necessary to uphold the verdict. But with respect to a subject on which a specific finding is made the presumption must be rather that the jury rested their verdict upon the fact which they did find rather than on one which they might have found. ■
“Where the court sets aside a finding which may have been in part the basis of the general verdict, a new trial must be granted unless the remaining findings in themselves require a judgment.” Goff v. Goff, 98 Kan. 201, (syl. ¶ 3, 158 Pac. 26.)
Here the remaining findings do not touch the matter of the defendant’s notice or knowledge.
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The opinion of the court was delivered by
Burch, J.:
The action was commenced by the state of Kansas, on the relation of the county attorney of Wyandotte county, against the board of county commissioners of Wyandotte county, to obtain a declaratory judgment that certain bonds of the county, in the sum of $472,450, are void because issued without lawful, authority. The bonds had been executed and registered and were about to be delivered to a purchaser, pursuant to a contract of sale.
The petition was filed on the evening of September 29, 1924. It stated facts on which the relief prayed for was predicated, and was accompanied by a transcript of the proceedings upon'which the bond issue was based. As an incident to declaration of invalidity of the bonds, ouster of the members of the board from office was sought. Pursuant to application of plaintiff, the board was immediately cited to answer on or before October 6, the first day of the October, 1924, session of the court. Plaintiff refrained from asking for an order prohibiting delivery of the bonds pending determination of the controversy. On the morning of October 1 the board appeared and represented to the court that within a few hours the purchaser of the bonds would tender the price and demand delivery, and that the procedure adopted by plaintiff placed the board, as a state agency, and placed the members individually, in peril. Therefore the board requested instruction. The court lacked authority to grant the request. In order, however, to gain possession of the entire controversy and equip itself to act advisedly, the court, on its own motion, made the purchaser of the bonds a party to the suit, required the purchaser to plead by October 6, and restrained action relating to consummation of the bond sale until further order.
The board of county commissioners answered that they were proposing to issue the bonds pursuant to the proceedings disclosed in the transcript. The purchaser filed a motion to dismiss. The cause was heard on the petition, the answer, and the motion. At the hearing the prayer of the petition that the members of the board be ousted from office was abandoned. A brief was filed for the state, and, at the court’s request, the purchaser filed a brief on the merits, which the board of county commissioners adopted. Two principal subjects of controversy were disclosed: First, Was the bond issue valid under the laws of this state? Second, Was the first subject-res judicata, as against the state, because of adjudications sustaining the bonds by the United States district court for the district of Kansas and by the district court of Wyandotte county, in actions to which all the state agencies concerned the Kaw Valley drainage board, the board of county commissioners, and the city of Kansas City, Kan., were parties?
The bonds were issued to provide funds for the reconstruction of the bridge, across the Kansas river at Twelfth street in the city of Kansas City, in Wyandotte county. Formerly, in time of flood, tei’ritory adjoining and adjacent to the river throughout its course within the city was subject to inundation, and the flood of 1903 occasioned appalling destruction of property. In 1905 the legislature passed an ’act relating to natural watercourses, which provided for the organization of public corporations to take charge of and exercise control over such watercourses, in order to prevent overflow, or lessen the volume of overflow, and so prevent or minimize damage by flood. (R. S. 24-401 et seq.) Under this statute the Kaw Valley drainage district of Wyandotte county was organized, and was vested with exclusive control over the bed, channel and banks of the stream, with authority to deepen, widen, establish, regulate and maintain the channel; build levees; prescribe, regulate, and fix the height of superstructures of bridges, the length of bridge spans, and the location of bridge 'piers; and to maintain suits to enforce its reasonable orders. The grant of power was without doubt intended to be plenary, to the end that hazard from the watercourse might be reduced or rendered nonexistent.
In 1909 an act was passed, applying to Wyandotte county, containing the following provisions,: '
“Whenever in any county having an assessed valuation for taxation purposes of over ninety million dollars the board of directors of any drainage district organized under the laws of this state, under the powers vested in them, shall prescribe, regulate or fix the height of any public bridge located within said district or the length of spans and the location of piers or abutments of any such bridge, or shall locate harbor lines for or establish the channel of any stream within such district, and shall notify and request, in writing, the board of county commissioners to change, alter or reconstruct any such bridge or bridges to conform to such harbor lines, channel or requirements; or whenever in any county the secretary of war of the United States, or any other competent authority, shall request, order or direct, in writing, the reconstruction, raising or lengthening of any public bridge, or the spans thereof, over any nayigable stream, or shall request, order or direct the reconstruction or relocation of the piers or abutments of any public bridge over a navigable stream, or shall establish harbor lines or otherwise designate the channel for any navigable stream, and shall request, order or direct the reconstruction of bridges to conform thereto; the board of county commissioners of the county wherein such public bridge is located is hereby authorized and empowered to reconstruct such bridges and approaches thereto, raise, lengthen and repair such bridges, and to reconstruct, remove and relocate the abutments and piers thereof, and to improve such bridges in any other respect required, and to do any and all acts necessaiy to conform to such requirements, in the manner hereinafter provided, and for the purpose of paying for such improvements may issue bonds of such county without the same being authorized by any election, and subject only to the limitations contained in this act. The amount of bonds so authorized to be issued shall not exceed the actual cost of such improvements.” (R. S. 68-1401.)
“It shall be the duty of the county commissioners of any county of this state to which this act applies now or hereafter having therein any public bridge or bridges over any navigable river, which bridge or bridges have been ordered or shall hereafter be ordered or required by the secretary of war of the United States, or the board of directors of any drainage district organized under the laws of this state, in any county having an assessed valuation for taxation purposes of over ninety million dollars, to be removed, relocated,’ reconstructed or improved, to take possession of such bridges and to forthwith remove, relocate reconstruct or improve the same, as may be necessary and proper, and the ownership and control of such bridges is hereby vested in such counties. . . .” (R. S. 68-1405.)
In August, 1919, the drainage board adopted a resolution, the propriety of which is not disputed, relating to structural changes in the Twelfth street bridge, and directed the board of county commissioners to make the bridge conform to the resolution. It will be observed that, under the statutes quoted, two distinct questions may arise: First, What may the drainage board lawfully do? And second, After lawful action by the drainage board, and request upon the county board, what may the county board lawfully do? The bridge was built in 1889, and was reconstructed in 1903-’04, under a special act of the legislature of 1903, following the.flood of that year. The county board was obliged to consider the bridge problem presented to it from three viewpoints: (1) abatement of a public nuisance, or at least removal of a public menace, disclosed by resolution and order of the drainage board; (2) usefulness of the bridge as a public thoroughfare; (3) prudent management of the public business. The county board was advised by its engineers that nothing but reconstruction of the entire bridge would be practical, and indicated its willingness to comply with an order to that effect. On January 9, 1920, the drainage board adopted a resolution condemning the bridge and requiring its removal and construction of another.
The Kansas City Railways Company, a Missouri corporation, had been concerned in the reconstruction of the bridge in 1903, and was using the bridge for transportation of passengers and mail in interstate commerce pursuant to contract with the county board and under a franchise granted by the city of Kansas City. On January 9, 1920, the railways company commenced suit in the United States district court for the district of Kansas against the drainage board and the county board to enjoin enforcement of the drainage board’s order. On March 1, 1920, the county board, adopted a resolution to reconstruct the bridge. Execution of the resolution was stopped by a restraining order of the federal court. Answers were filed by all defendants, and amended and supplemental pleadings were subsequently filed by all parties, whereby all questions of law and fact pertaining to the entire Twelfth street bridge controversy were deposited in the lap of the federal court.
The federal court had taken jurisdiction on the grounds of diversity of citizenship and invasion of constitutional right of the railways company, both under its claimed interest in the bridge and as a taxpayer of the drainage district. Having taken jurisdiction, the court evidently deemed it a duty to dispose of the whole controversy according to the usage of courts of equity under such circumstances. In June, 1922, the court proposed a sensible, practical and efficient substitute for the routine procedure in equity cases, which was adopted by all parties by stipulation and amendment of pleadings. The stipulation provided for the appointment of three engineers and two business men, each' eminent in his calling, to investigate, determine and report to the court matters submitted to them, with such further information as might be useful to the court. Commissioners of the character indicated were appointed and the following specific matters were referred to them:
“(a) In the interests of protection from damage by flood waters, economy in the expenditure of public money, having in mind both present and future conditions as they may arise, including the requirements of the traveling public, and the use which said structure is to be placed and designated to carry out, what change, modification, alteration, destruction, reconstruction, or repair should the Twelfth street bridge, in Kansas City, Kansas, suffer or undergo or be done to afford proper safeguard and protection against flood waters, and for the proper and safe use of said bridge by the traveling public? In response to this question, state fully, accompanying same with plans, specifications, detailed drawings,, blue prints and all things and matters necessary to be done as a prerequisite to the letting of a contract for the furnishing materials, doing the work of reconstruction, repair or alteration which you recommend to be done.
“(b) What the probable estimated cost of the doing of the work, the furnishing the materials, and so forth, including the use of such materials derived from the present structure as you may recommend should be done, to remove all or any part of the structure as it now stands, and the building, repairing, constructing or reconstructing of such new or modified structure as you recommend?
“(c) What, if anything, is the interest of the Kansas City Railways Company in the present bridge constructure, and what sum of money, if anything, would be awarded that company, or its receivers, on account of such destruction, change, reconstruction or repair of said bridge as you recommend in your report should be done, including the right to use any part or portion of said old structure used or to be used in the new or modified structure?”
The stipulation contained the following:
“It is further stipulated and agreed, all parties hereto consent, agree and pledge themselves, in all good and full faith, to make such orders, adopt such rules and resolutions, and take such steps as may be necessary to carry out and perform the work of changing, modifying, tearing down, constructing or reconstructing anew said Twelfth street bridge as shall be recommended in the report of said commission herein provided for, and as said report by decree of this court shall stand approved and confirmed.”
After thorough investigation and careful consideration, the commissioners made a complete and detailed report. The bridge as it stood afforded a twenty-foot roadway, but was defective, and it was necessary to replace the end spans. The commissioners recommended new spans forty feet wide at the north and south ends of the bridge, and reconstruction of the remainder of the bridge to afford a forty-foot roadway, using the existing spans in the reconstruction. The recommendation took into consideration flood protection, present and future conditions, including needs of the traveling public and the economical expenditure of public money. The court approved the report of the commissioners and entered a decree for alteration and reconstruction of the bridge as recommended. The decree included findings of facts essential to jurisdiction of the drainage board to order such reconstruction,.and of facts essential to jurisdiction of the county board to comply with the drainage board’s order. It was specifically found and adjudicated that bonds of the county were authorized and should be issued to pay for the work, without a bond election. The decree was entered on February 10,1923, and on February 15 the county board adopted a resolution providing for reconstruction of the bridge according to the decree. On February 5, 1924, pursuant to an order of the drainage board, and pursuant to the decree, the county board adopted another resolution providing for reconstruction of the bridge. On April 1, 1924, contracts for reconstructing the bridge were let. The bonds in controversy were then duly issued and sold.
While the injunction suit was pending in the federal court, and before final decree, the drainage board prosecuted to judgment against the county board an action of mandamus to compel compliance with the drainage board’s order, made in 1920, to build a new bridge. This court reversed the judgment in February, 1922. (Drainage District v. Wyandotte County, 110 Kan. 566, 204 Pac. 723.) In the opinion the court said:
“The only basis for the power of the drainage district board to maintain this action is to secure compliance with its order to remove the old bridge or so much of it as obstructs the flow of water and tends to increase the flood hazard. But whether the old bridge or any part of it has that tendency, and whether the order to remove that obstruction by the demolition of the bridge in whole or in part is reasonable, is a question which inheres in the suit in the federal court, nor can it otherwise be determined so long as the federal court retains jurisdiction. . . .
“If the order of the drainage board for the removal or reconstruction of the bridge or any part of it to eliminate or minimize the flood hazard caused thereby was a reasonable order, the temporary restraining order of the federal court will eventually be dissolved. If the order was not reasonable, that matter will be judicially determined. . . .
“Until the validity of the drainage board’s order is adjudicated to a conclusion in the court having jurisdiction of that matter, the duty of the county board, if it has any duty touching this bridge, should neither be directed nor controlled by mandamus.” (pp. 572, 573.)
It appears that while the injunction suit was pending and undetermined the federal court was not averse to instruction from the state courts relating to interpretation and application of the state’s laws, and on April 12, 1923, a suit was commenced in the district court of Wyandotte county to obtain a declaratory judgment respecting authority of the drainage board and of the county board in the premises. The board of county commissioners was plaintiff, and the drainage board, the city of Kansas City, Kan., and the railways company were defendants. On May 29, 1923, the court rendered judgment that the contemplated reconstruction of the bridge was within purview of the statutes referred to, that the county board could issue bonds to build the bridge without an election, that the county board could build the bridge regardless of original title to the structure, and that the entire matter had been adjudicated by the United States district court. No appeal was taken from this judgment.
Previous to the time the declaratory judgment was rendered the state of Kansas had not participated in any of th.e litigation pertaining to the bridge. On June 2, 1923, the state of Kansas, on the relation of the county attorney of Wyandotte county, applied to this court for a writ of mandamus to compel the county board to reconstruct the bridge and to issue bonds to pay for the work without calling an election. The city of Kansas City and the drainage board joined in the application. The application contained a history of the controversy, exhibited a copy of the decree of the federal court, and contained the following:
“That said decree was rendered with jurisdiction over all of the parties to and the subject matter of said suit. That no appeal has been taken, or attempted to be taken, from said decree by any of the parties. That said decree and all of the provisions thereof are final, valid, and in full force and effect.
“That the said decree of the United States district court of date February 10, 1923, hereinbefore set forth, is a final and conclusive adjudication and decision; that it is the duty of the board of county commissioners of Wyandotte county, Kansas, to repair, alter and reconstruct said Twelfth street bridge in the respects, manner and plan set forth in said decree, and that said board of county commissioners has full authority to, and that it is the duty of said board of county commissioners to issue bonds of the said county of Wyandotte, without any election, to provide for the repair, alteration and reconstruction of said Twelfth street bridge in accordance with said decree.
“That the plaintiffs do not waive, but expressly rely upon, assert and plead the said decree and proceedings of the'United States district court as a final, valid and conclusive adjudication as to the power and duty of the board of county commissioners to repair, alter and reconstruct said Twelfth street bridge in accordance with said decree and to issue the bonds of Wyandotte county to provide therefor, without any election. . . .
“That by reason of the controversies and matters hereinbefore set forth, said ’ bridge is not repaired, reconstructed or kept' in a safe or adequate condition for public travel, and that it is a matter of general and great public importance that said bridge be reconstructed at once.
“Wherefore; the plaintiffs move the issuance of a writ of mandamus, commanding the board of county commissioners of Wyandotte county, Kansas, to forthwith reconstruct said Twelfth street bridge across the Kansas river in Kansas City, Kansas, in the manner and according to the plans set forth in the said decree of the United States district court, and to issue bonds of said county to pay therefor without any election, and do all other acts and things necessary to the reconstruction of said bridge.”
The application was in effect one for a writ of mandamus from this court to enforce the decree of the federal court. The federal court was competent to enforce its own decree, and the action was dismissed.
On June 7, 1924, the board of county commissioners commenced an action of mandamus in this court to compel the state auditor to register the bonds. The attorney-general of the state appeared for the auditor, and filed a motion to quash the alternative writ. On July 14 a brief was filed by counsel acting as friends of the court, which was refiled on October 6 by the state as its brief in this action. On September 25, 1924, a stipulation to dismiss the action, and consent of the attorney-general, representing the auditor, to dismissal, were filed, and on the same day the action was dismissed.
The action is one of quo warranto, and the declaration sought is that the board of county commissioners acted in excess of its corporate powers in issuing the bonds. In this state an action of quo warranto is a civil action. It may be brought by the attorney-general or by the county attorney in the name of the state, or, under certain circumstances, by a private person in his own name. Whether or not an action shall be commenced rests with the officer or person authorized to sue. A petition may be filed and summons may be issued as in any other civil action, and the courts have no discretion in the matter. When an action has been commenced and the cause of action is before the court ioi adjudication, the court has discretion to grant or withhold relief, and this is true whether the action be prosecuted in the name of the state or in the name of a private person. In this respect the state comes into court on equal terms with its citizens. Quo warranto is still an extraordinary remedy, and will not lie when other adequate remedy exists. (The State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828.) Even although there be departures from legal limitations and standards, ouster does not mechanically follow. The court may take a broad view of motives, conduct, situations and circumstances, and of the ultimate consequences of application of the remedy, whether useless, beneficial or harmful. (The State v. Bowden, 80 Kan. 49, 101 Pac. 654; Yeager v. Aikman, 80 Kan. 656, 103 Pac. 132; Little v. Davis, 80 Kan. 777, 104 Pac. 560; The State v. Kennedy, 82 Kan. 373, 108 Pac. 837; The State, ex rel., v. Stewart, 90 Kan. 778, 135 Pac. 1182; The State, ex rel., v. Cannon et al., 116 Kan. 325, 328, 226 Pac. 777; Weston v. Lane, 40 Kan. 479, 20 Pac. 260.)
In other states it has been held that the court may, in the exercise of its discretion, take into consideration the position and motives of the relator, the interest or policy of granting the remedy, the public interest, convenience, or detriment, the prospect of strife, confusion and litigation, and unreasonable delay or acquiescence of the complaining party. The state itself may be denied relief when there has been long acquiescence or recognition. The People v. Hepler, 240 Ill. 196; The People v. Lease, 248 Ill. 187; State of Iowa v. City of Des Moines, 96 Iowa, 521; Attorney-general v. MacDonald, 164 Mich. 590; State v. Nohle et al., 16 N. D. 168.)
The petition contains no charge of fraud, collusion or corruption, and good faith of the board of county commissioners is not impugned. The charge is lack of corporate capacity to issue the bonds. Authority of the board is challenged with respect to some matters which raise quite simple questions of statutory interpretation, not in themselves of sufficient gravity to induce the court either to give or to withhold- a declaration concerning them. The question of importance is whether the board of county commissioners is clearly undertaking such an improvement of the bridge that the board departs from the authority conferred by the flood-protection statute, and brings itself within the restrictions of the general law, which requires a bond election and places a limit upon bonded indebtedness of the county. This question has been adjudicated by the federal court and by the district court of Wyandotte county, but the state challenges jurisdiction of the federal court and insists further that because it was not a litigant it is not bound by the judgment of either court. Shall this court now interfere?
The brief filed by the state was prepared by counsel who frankly stated they represented taxpayers who pay a considerable portion of the taxes of Wyandotte county. Presumably the county attorney used the name of the state in their behalf. At the very inception of proceedings involving reconstruction of the bridge, a taxpayer, the Kansas City Railways Company, instituted an action to prevent improper exercise of the county board’s corporate power. Almost five years have elapsed. Throughout the period, one event after another has occurred strengthening the likelihood that expensive reconstruction of the bridge would take place. Although privileged by statute to do so (R. S. 60-1121), the taxpayers now moving have neither taken independent action to jprotect their interests nor intervened in any of the suits wherein legality of the county board’s action was questioned. Contracts for construction of the bridge have been let, which are valuable to the contractors because of reduction in price of material. The bonds have been registered and sold, and the contract of sale is valuable to the purchaser because of the condition of the bond market. The stipulation for dismissal of the auditor’s case, signed by attorneys who now represent the purchaser of the bonds, recited that the purchaser had agreed to take the bonds without any adjudication respecting their validity. He was about to tender the price and demand delivery when this action was commenced. The relief sought does not prevent delivery of the bonds to the purchaser, or prevent the purchaser from transferring them to innocent purchasers, against whom taxpayers, in their capacity 'as such, would be remediless. The result is the usual result of laches in matters of moment _ and magnitude — confusion complication and embarrassment, and balancing all the probabilities, doubt of ultimate outcome.
Regarding the action as one in the general public interest, the state has assumed inconsistant positions before this court regarding that interest. A little more than a year ago the same county attorney who brings the action was here petitioning the court, in the name of the state, for a writ of mandamus to compel the county board to do what he would now oust them from doing. When action was first taken pointing to the result now impending, the state stood aloof. It did not intervene in the suit in the federal court, and it petitioned for no review of the decree entered in that suit. It did not intervene in the suit in the district court of Wyandotte county, which resulted in a judgment intended as a basis for the bond issue, and suffered the judgment to become final. The attorney-general of the state represented the state auditor in the suit brought to forbid registration of the bonds, and consented to dismissal. The court is not deciding that the state of Kansas is bound by laches of its officers, neglect to improve opportunity for relief by usual methods, election, or inconsistency of conduct. The court does decide that the peculiar if not bewildering conduct of the state is a matter to be considered in determining whether the court should proceed to judgment on the merits.
In addition to the interest in regularity of conduct on the part of public officers, and the consequences resulting from unauthorized conduct, another public interest of very great if not surpassing importance must be considered — the interest in conservation of life and property. The court must depend on the record for information respecting physical conditions out of which the controversy arose. The most authentic information it possesses is contained in the decree of the federal court, which includes the following findings of fact:
“The court further finds that the present steel trestle approach 270 feet in length at the northerly end of the present Twelfth street bridge, together with the piling, pedestals, columns and all parts thereof, constitutes and is a wrongful obstruction in the channel of the river at said bridge; that it prevents the deepening and improvement of the channel; that said steel trestle approach is so constructed and maintained as to materially reduce the capacity of the river to carry its waters at times of floods and high water therein and endanger the levees of the Kaw Yalley drainage district along the banks of the Kansas river, and the safety and lives of people residing and doing business in said district, and of all property situated therein.
“The court further finds that the piers of the said Twelfth bridge as now constructed and maintained are unsafe and inadequate, are liable to be undermined in times of floods or high water in the Kansas river, and constitute, and are as now maintained, wrongful and dangerous obstructions in the channel of said river.
“The court further finds that it is necessary, in order to secure an adequate channel for the Kansas river, of sufficient capacity to carry the waters of the Kansas river at said Twelfth street bridge, and to make said bridge safe as against high water and floods such as frequently occur in the Kansas river, to change, alter and reconstruct said Twelfth street bridge in the respect specified in and according to the report, plans and specifications of said commission; and
“The court further finds that it is necessary and proper, in order to secure adequate flood protection, to alter and reconstruct the superstructure of said bridge and the approaches thereto in accordance with the said report, plans and specifications of said commission. •
“The court further finds that the northerly steel trestle approach of said present Twelfth street bridge as now constructed and maintained, and the viaduct span of said bridge extending across the tracks and right of way of the Atchison, Topeka & Santa Pe Railway Company, at the soútherly end of said bridge as now constructed and maintained, are insufficient, dangerous, and may fall into the river, and thereby obstruct the natural flow of the water in the river, and that the superstructure of the main spans of said bridge’ is also inadequate and unsafe for public travel, and that said bridge as a whole is unsafe in each and all of the respects specified and shown by the report of said commission, and as now maintained constitutes and is a public nuisance, which it is the duty of the board of county commissioners of Wyandotte county to abate by altering and reconstructing the same as provided in the aforesaid report, plans and specifications of said commission, and that said county is authorized and required to issue bonds for the alteration and reconstruction of said bridge in the manner and respects provided in said report, without the same being authorized by any election.”
A declaratory judgment is prayed for. The court has jurisdiction to make a declaration of right only because it could grant consequential relief if such relief were prayed for. After declaration, further relief may be demanded (R. S. 60-3129), and the case is to be regarded in the same light as if the county board were to be ousted from exercise of assumed authority to deliver the bonds, under sanctions likely to make the ouster effective. If the court should now proceed to judgment on the merits, and should conclude the bonds were wrongfully issued, intolerable consequences would necessarily result. The court would be placed in antagonism to the federal court, which has decreed that the bonds shall b.e issued, and this, too, after twice indicating that the federal court, already in full possession of the controversy, was capable of dealing with it.
Without pursuing the subject further, the court concludes that, under the circumstances stated, it would be highly improper for it to make a binding declaration of right in respect to the matters in controversy, and, exercising its judicial discretion, it declines to do so. The restraining order heretofore issued is set aside, and the action is dismissed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a policy of fire insurance. Plaintiff prevailed^ and defendant appeals.
The case was tried on an agreed statement of facts, which among other things, recited that the defendant was a New York corporation; that on May 1, 1921, O. W. Terrell, who was the owner of a frame house on real estate therein described, and located in Oklahoma, made application to the defendant for a policy of insurance, payable to himself, as owner, and to plaintiff, I. M. Fuller, as mortgagee, “as his interest might appear”; that the defendant, in compliance with the application, issued its policy in a sum not to exceed $900 (a copy of the policy was attached and made a part of the statement of facts); that on November 20, 1920, the-plaintiff had sold the real eestate to O. W. Terrell, taking a mortgage back for the sum of $5,000; that the mortgage and interest thereon are wholly unpaid; that on November 25, 1921, Terrell entered into a contract to sell the property to one Hofman; that on December 5,1921, Terrell executed a deed to the property to Hofman and placed the same in escrow; that the deed was delivered to Hofman on January 10, 1922, and recorded January 12; that possession of the premises was given to Hofman February 2; that on January 5, 1922, the house covered by the policy was totally destroyed by fire; that Terrell made á claim for loss under the policy on February 21, 1922, in the sum of $877.17; that in his claim he stated that he was the owner of the property, subject only to the interest of Fuller, the mortgagee, that the adjusters investigated Terrell’s claim and informed him on February 22, 1922, that the records showed that he was not the owner of the property; that Terrell and the adjusting company agreed that the value of the house covered by the policy was $817; that defendant has not paid any sum under the policy and has refused to make payment upon the claim submitted; that the statutes of Oklahoma, in so far as they are applicable, may be considered as evidence in the case.
On November 23,1923, the trial court filed a written memorandum including findings of fact substantially as above enumerated, and concluded therefrom that plaintiff was entitled to recover $837.32 and a reasonable attorney’s fee in the sum of $150. Judgment was rendered accordingly.
The defendant contends that the court erred in holding that the plaintiff could sue and maintain a cause of action on the policy; that the policy was written for the benefit of Terrell; that it does not provide for the payment of the loss to the plaintiff; that the contract of insurance is a personal one made by the company with the owner Terrell and was for his benefit alone. The contention is not sound. The application on which the policy was issued provided for payment to the plaintiff, as mortgagee, “as his interest might appear.” Attached to the policy issued to him was a copy of the application on which appeared, “Loss, if any, on buildings payable to I. M. Fuller, mortgagee, as his interest may appear.” This was a sufficient compliance with the requirement of the policy which reads: “Note: To secure mortgagee, if desired, the policy should be made payable on its face to such mortgagee, as follows: Loss, if any payable to John Doe, mortgagee,” when considered in connection with the facts that the defendant issued its policy on the application and accepted the premium in payment therefor.
There is no dispute as to the loss, either as to the time of the fire or the value of the property insured. It was conceded that the defendant’s adjuster, pursuant to proof of loss, investigated the premises and agreed that the actual loss was $817. A mortgagee is a proper party to prosecute an action for loss sustained under a policy of insurance where the policy provides that loss, if any, shall be payable to such mortgagee “as his interest may appear.” (See Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682; Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78; Stamey v. Assurance Co., 93 Kan. 707, 150 Pac. 227; Jones v. Insurance Co., 94 Kan. 235, 146 Pac. 354; 14 R. C. L. 1427, 1428; 26 C. J. 485.)
The defendant contends that there was no proof that Terrell was the sole and unconditional owner of the property. It quotes various sections of the statutes of Oklahoma and argues that their application to the policy in question precludes plaintiff’s recovery. Plaintiff, on the other hand, argues that the Oklahoma statutes were not in evidence and therefore that their provisions cannot be invoked. The agreed statement of facts recited that “the statutes of the state of Oklahoma, in so far as they are applicable, may be considered as evidence in this case.” In the sections quoted by the defendant nothing is pointed out that would change the rule prevailing in this state. Terrell, on November 25,1921, entered into a contract to sell the property. On December 5 he executed a deed and placed it in escrow. On January 5 the property was destroyed by fire. On January 10 the deed was delivered, afterwards recorded and possession of the property afterwards given. While the deed was in escrow awaiting the performance of conditions precedent to its delivery, there was no change of title which would prevent recovery on the policy. (Garner v. Insurance Co., 73 Kan. 127, 84 Pac. 717; Pomeroy v. Insurance Co., 86 Kan. 214, 120 Pac. 344; Ellis v. Insurance Co., 108 Kan. 467, 196 Pac. 598; Dow v. Fire Insurance Co., 115 Kan. 190, 221 Pac. 1112.)
It is contended that the court erred in allowing an attorney’s fee. The sections of the Oklahoma statute quoted by defendant contain no reference to attorneys’ fees. The laws of other jurisdictions áre presumed to be the same as ours, and under our statute an allowance of attorneys’ fees was proper. (R. S. 40-416, and cases cited.)
The judgment is affirmed. | [
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The opinion of thd court was delivered by
Hopkins, J.:
The action was one by the drainage district to recover the expense of removing certain approaches to what is known as the James street bridge. The plaintiff’s petition was in two counts. A demurrer was sustained to the second count, and plaintiff appeals.
The facts are substantially as follows: The public bridge of Wyandotte county across the Kansas river at James street, in Kan sas City, Kan., prior to 1912, consisted of but two spans with an embankment constituting an approach at the easterly'end of the bridge. The improvement of the channel for flood protection necessitated the removal of the approach. In 1911 the drainage district ordered its removal. The county failed to remove it, but by order of the drainage district reconstructed the bridge. Under an alleged agreement between the drainage district and the county, the drainage district removed the approach, consisting of approximately 29,750 cubic yards of dirt. The work was completed October 9, 1913. A controversy arose as to compensation due the drainage district from the county for removal of the approach, and in September, 1917, the drainage district brought action against the county for $5,553. Later an amendment was made to plaintiff’s petition reducing the amount claimed under the contract to $4,000. Still later, on January 23, 1922, the plaintiff filed an amended petition in two counts. In the second count it was alleged that the approach had been removed at a cost of $23,244, and claim made for that amount. The trial court sustained a demurrer to this count of the petition on the ground that the plaintiff had not presented its claim within two years after it accrued.
The plaintiff contends that the statute requiring claims against a county to be filed in two years is not applicable, because the plaintiff is a public corporation suing solely as the agent and for the benefit of the state in the performance of a purely governmental function. It also claims that the funds which it used in 1912 to remove the embankment were public funds which it held in trust by virtue of a vote of the taxpayers of the district for the construction of other and different improvements, and that, having used such trust funds for the benefit of the county, they may be recovered. On the other hand, the defendants contend that the claim was not, in its nature, a public demand or a right affecting the general public, but was purely a private and proprietary right which was subject to the general limitation laws. The statute reads:
“No account against the county shall be allowed unless presented within two years after the same accrued: Provided, That if any person having a claim against the county be at the time the same accrues under any legal disability, every such person shall be entitled to present the same within one year after such disability shall be removed.” (R. S. 19-308.)
The plaintiff well argues that the drainage district is an incorporated agency of the state; that, while it acts, by direction of the state, in its own name, it acts for the state and for the benefit of the public, generally, and, indirectly, at least, for the benefit of the people of the whole state, and the fact that in this action the drainage district uses its name as plaintiff made no difference; that the situation is exactly the same so far as statutes of limitation are concerned, as though the case had been prosecuted in the name of the state; that the drainage district exercises for the state a part of its police power to promote the general welfare, and that the construcion and reconstruction of the bridges and approaches thereto and the clearing of the channel of a navigable river to secure flood protection is a governmental duty or function, citing various authorities, among which are, Roby v. Drainage District, 77 Kan. 754, 760, 95 Pac. 399; Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817; Drainage District v. Railway Co., 87 Kan. 272, 123 Pac. 991; Anderson v. Cloud County, 90 Kan. 15, 132 Pac. 996; Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409; Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54; Todd v. Drainage District, 109 Kan. 754, 201 Pac. 1096; Sherwood v. Worth County Drainage District No. 1, 250 S. W. 605; 25 Cyc. 194.
We concur in the general principle for which the plaintiff contends, but are of opinion that when the drainage district rendered services to another municipal organization (the county), it went beyond its .purely governmental duty. It was within the power of the drainage district to compel the county, by mandamus, or otherwise, to remove the approach (R. S. 24-407), but when the drainage district entered upon the business of performing services for the county, it undertook to perform a function that was proprietary rather than governmental, and it was bound to file its claim within the time prescribed by the statute.
In I Wood on Limitations, 4th ed. 167, it is said:
“Statutes of limitation do not ran against the state in respect of public rights unless the state is expressly included within the terms of the statutes, but where the state becomes a partner with individuals or engages in business it divests itself of its sovereign character and is subject to the statute.”
A similar question was well considered in Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670. In the opinion it was said:
“A very satisfactory expression of the rule is found in Simplot v. Chicago, M. & St. P. Ry. Co., 16 Fed. 350, 5 McCrary, 158, in these words: ‘The true rale is that when a municipal corporation seeks to enforce a contract right, or some right belonging to it in a proprietary sense, or, in other words, when the corporation is seeking to enforce the private rights belonging to it, as distinguished from rights belonging to the public, then it may be defeated by force of the statute of limitations; but in all cases wherein the corporation represents the public at large or the state, or is seeking to enforce a right pertaining to sovereignty, then the statute of limitations, as such, can not be made applicable. In the latter cases, the courts may apply the doctrine or principle of an estoppel, and by means thereof, where justice and right demand it, prevent wrong and injury from being done to private rights.’ (p. 361.) A summaiy of the doctrine discussed is thus stated by the author of the note referred to [101 Am. St. Rep. 144]: ‘Theoretically, the rule that statutes of limitation do not run against governmental bodies when asserting a public right or protecting property held for public use, and that such statutes 'do run against such bodies when asserting private rights or enforcing rights arising from out of ordinary business transactions, is sound. The rule is supported by the weight of authority, although there are some cases which seem to hold that the pecuniary interests of the United States are matters of sovereignty. The difficulty of any rule in regard to the subject lies in its application to the varied circumstances of each particular case. There are, of course, many circumstances under which it would be readily conceded that the governmental body is acting strictly in a sovereign capacity, but, on the other hand, there are many other circumstances when it seems to us that it is extremely doubtful whether the governmental body is acting in a strictly sovereign capacity in attempting to enforce alleged property rights.’ ” (p. 273.)
The defendant was obligated by the law to remove the approach, and doubtless, had the plaintiff taken proper steps at the time, it could have compelled it so to do. The plaintiff, having removed the approach for the defendant, would have been entitled to recover the actual and reasonable expense for so doing had it followed the requirements of the statute and filed its claim within the time specified by the statute. (See Davis County v. Riley County, 9 Kan. 635.) While the record is not entirely clear that the plaintiff failed to file its claim within the two years, we understand that to be the fact.
The allegations of the first count of the petition are made a part of the second count. In the first count it was alleged that the drainage district entered into a contract with the defendant whereby it was agreed that the plaintiff should remove the approach for $4,000.
It is contended by the defendant that the alleged contract between the parties set out in plaintiff’s petition was of no effect because certain positive, express and mandatory requirements of the statute to be pursued by the county had not been compliéd with. We concur in that view. The arrangement by which the plaintiff claims to have done the work is pleaded in its petition. The minutes of the board of county commissioners, including its resolutions, are shown, from which it appears that no plans and specifications were prepared, no estimate of the cost under oath, no advertisement for bids, no letting to the lowest and most responsible bidder, and no bond for the proper performance of the contract, all of which elements are required by the statute. ( R. S. 68-1402.) The county was without power to make the contract without following the antecedent requirements of the statute, and is not liable under the contract. ■
The judgment is affirmed. | [
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The opinion of the court was delivered -by
Johnston, C. J.:
This was an action by a subcontractor to.enforce a mechanic’s lien for material furnished and work performed in the improvement of real property. A personal judgment against the principal contractor was rendered, but the lien claimed against the real property was refused. Plaintiff appeals.
It appears that Early & Bishop entered into a contract with Edwin Shelby to construct a business house on lots they owned in Cedar-vale. The Unit Sash and Sales Company, of Lincoln, Neb., contracted with Shelby to furnish the material for the front of the store building and to install the same. The plaintiff made designs for the front, listed the materials that were deemed to be necessary to construct the front, fixed the price thereof, and the agreed prices for the material specified amounted to $760, and to this was added $76 for installation of the materials, and it was agreed that plaintiff should have $836 for the material and work. The specified materials were furnished on August 25,1921, and the installation was completed on September 15, 1921, but Shelby failed to pay for the material or work and a claim for a mechanic’s lien was filed, but not within the lien period of sixty days, nor until January 7, 1922. To complete the store front Shelby purchased from plaintiff certain copper moldings at the cost of $25, and these were shipped from Lincoln, Neb., on November 7, 1921, and arrived in Cedarvale on November 9, 1921. The added material was placed on the premises of defendant at the time it was received, but Shelby had left the community and the moldings were never built in or made a part of the store building.
In behalf of plaintiff it is contended that the last order or contract of purchase of the molding may be tacked to the original contract and in that way revive the expired lien for the original purchase. If the materials had been furnished on a running account or upon a single continuous contract, plaintiff’s claim, if filed within the statutory period after the last item was furnished, would warrant the claiming of a lien on the whole, but if the material was furnished and work performed upon separate contracts the time of filing could not be extended by furnishing material or performing labor under a second and distinct contract and the attempt to tack the same to the first. It has been said:
“Where labor or materials are furnished under separate contracts, even though such contracts are between the same persons and relate to the same building or improvement, the contracts cannot be tacked together so as to enlarge the time for filing a lien for what was done or furnished under either, but a lien must be filed for what was done or- furnished under each contract within the statutory period after its completion.” (27 Cyc. 144. See, also, Baxter v. Oil Co., 117 Kan. 47, 230 Pac. 298; Lumber Co. v. Hegwer, 1 Kan. App. 623; 18 R. C. L. 931; Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207; Lumber Co. v. Harris, 107 Mo. App. 148.)
From the evidence it is manifest that the moldings were furnished under a separate contract. In fact, it was admitted by the representative of the plaintiff who made the design for the front and specified the material that the first purchased was upon the theory and belief that when the material agreed upon was furnished and installed the contract would be completed. His testimony was:
“Q. It was your intention, and it was your opinion given to Shelby at that time, that that would complete the front, and that for the sum of $760, plus $76 for installation, you would put that front in the store, and made that contract with him, didn’t you? A. Yes, sir; according to his understanding.”
In ordering the moldings Shelby sought to get a lower price than the one first quoted upon the ground that the moldings not included in the first purchase must come out of his own pocket. To this request the manager of the plaintiff wrote on October 18, 1921:
“We note that you say that the metal moldings that we recently quoted you are for yourself and come out of your own pocket. We have gone over this matter again and have figured it to make you the best price possible and find that we will be able to furnish it for $25, if the special bending does not cost us more than we hope it will. If this price will help you any we will be pleased to have your order.”
The contracts, therefore, being separate and distinct, the time for filing the claim for the lien on the first contract expired long before a lien was asserted by plaintiff, and such time was not extended nor the expired lien revived by the second contract.
Was plaintiff entitled to a lien for the $25 for molding that was shipped to Cedarvale on November 7, 1921? It appears that the molding was never attached to the building and therefore never became a part of the realty on which the lien was sought. It has been determined that under the statute providing for liens, no lien, can be allowed for material purchased for a building on the land of the owner unless it in fact goes into the building and becomes a part of the realty. (Hill v. Bowers, 45 Kan. 592, 26 Pac. 13; McGarry v. Averill, 50 Kan. 362, 31 Pac. 1082: Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563; Geppelt v. Stone Co., 90 Kan. 539, 135 Pac. 573; Id., 94 Kan. 560, 146 Pac. 1157; Machine Co. v. Elevator Co., 97 Kan. 464, 155 Pac. 1077; Manufacturing Co. v. Haughton, 97 Kan. 528, 155 Pac. 1078.)
It follows that the judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a workman’s compensation case. H. E. McCormick while working for the Central Coal and Coke Company, and both operating under the workman’s compensation act, was accidentally killed May 25, 1920. He left a widow and two sons, ages respectively six years and six months. His wages were such that his dependents were entitled to the maximum compensation, $3,800. No proceedings in court or by arbitration were had to determine the amount of compensation, the dependents to whom it should be paid, nor for the apportionment of the payments among dependents. By agreement between the employer and the widow for herself, and as guardian for the children, payments were made at the rate of $15 per week. These payments continued until October 17,1922, making total payments of $1,875 (of which $240 had been paid to the widow personally after her remarriage). At that time the employer ceased paying compensation, for the reason that it learned that the widow had remarried in April, 1921. In June, 1923, the children, by their guardian, filed an application in the district court for the appointment of an arbitrator for the purpose of settling and adjusting their claim for compensation against the employer. An arbitrator was appointed, to whom all questions as to the rights of plaintiffs for compensation were referred. The hearing before the arbitrator was upon an agreed statement of facts embodying the matters above stated, and it was specifically agreed that the arbitrator should make findings as to who were and are the dependents of H. E. McCormick, and the amount of compensation respectively due to each of such dependents.
The arbitrator found that a fair division of the compensation between dependents at the time of H. E. McCormick's death is that each should receive one-third of the compensation; that the share of the compensation which the two children should receive was $2,533.33, two-thirds of the total compensation payable; that of this sum there had been paid to their mother for them $1,645, leaving the balance unpaid to the minor children of $888.33; that because no payments had been made since October, 1922, a part of that was due, which should be paid in a lump sum, and the remainder should be paid at $10 per week; that the payment of the share of the widow ceased on her remarriage, and that the portion of the widow's; pnethird, unpaid at the time of her remarriage, should not be paid to anyone.
Upon a review of this award in the district court, the court held that defendant-'should receive credit for all money paid by way of compensation, being the total sum of' $1,875; that the part thereof paid after the marriage of the widow should be construed as having been paid to her for the benefit of the children, and that the children are entitled to receive all of the unpaid portion of the compensation, namely, $1,925, at the: rate of $15 per week from October-, 1922. The sum unpaid up to' the time of the hearing was awarded in a lump sum and the balance to be paid $15 per week. Judgment was entered accordingly. iFrom this judgment the Central Coal and Coke- Company has appealed.
In a case such as this- the' rights of dependents to compensation is governed by the.statute. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, 93 Kan. 257, 144 Pac. 249; McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247; Moeser v. Shunk, 116 Kan. 247, 251, 226 Pac. 784.)
. The pertinent portion: ofi the statutes necessary to be -specifically considered in determining the -questions presented on this appeal are as .follows: " • -
' “ ‘Dependents’ means such members of the workman’s family as were wholly' or in part dependent upon the workman-at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only widow or husband,as the case may be, and children; or if no widow,.husband, or children, then parents or grandparents; or if no parents or grandparents, then grandchildren;, or if no grandchildren, then brothers and sisters'. In the meaning of this section parents include step-parents, children include step-children, and grandchildren include step-grandchildren, and brothers and sisters include stepbrothers and stepsisters, and children and parents include that relation by. legal adoption., In the meaning of this section a widow shall not be regarded as a dependent of a deceased .workman nor as a member of his family, if she shall have for more than six months willfully or' voluntarily deserted or aban doned him, prior to the date of his death; and a husband, whether he be capable of wage earning or not, shall not, within the meaning of this section, be regarded as a dependent of his deceased wife, nor as a member of her family, if he shall have for more than six months willfully or voluntarily deserted or abandoned her prior to the time of her death. (L. 1911, ch. 218, § 9 [with italicized portion added by amendment) L. 1917, ch. 226, § 2.)” (R. S. 44-508.)
“The amount of compensation under this act shall be . . . 2 (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section 4 of this act, but not exceeding thirty-eight hundred dollars (S3,800) and not less than fourteen hundred dollars ($1,400) . . . (b) If a workman does not leave any such dependents, but leaves dependents in part dependent on his earnings, such proportion of the amount payable under the provisions of paragraph 2 (a) of this section as may be agreed upon or determined to be proportionate to the degree of dependency of the said dependents, (c) If a workman does not leave any dependents, the reasonable expense of his burial, not exceeding one hundred and fifty dollars ($150). {d) Marriage of any dependent shall terminate all compensation of such dependent, but shall not affect the compensation allowed other dependents. When any minor dependent, not physically or mentally incapable of wage earning shall become eighteen {18) years of age, such compensation shall cease. (L. 1911, ch. 218, § 11, [with italicized portion added by amendment] L. 1913, ch. 216, § 5.)” (R. S. 44-510.)
“Where death results from the injury and the dependents of the deceased workman as herein defined, have agreed to accept compensation, and the amount of such compensation and the apportionment thereof between them has been agreed to or otherwise determined, the employer may pay such compensation to them accordingly (or to an administrator if one be appointed) and thereupon be discharged from all further liability for the injury. Where only the apportionment of the agreed compensation between the dependents is not agreed to, the employer may pay the amount into any district court having jurisdiction, or to the administrator of the deceased workman, with the same effect. Where the compensation has been so paid into court or to an administrator, the proper court, upon the petition of such administrator or any of such dependents, and upon such notice and proof as it may order, shall determine the distribution thereof among such dependents. Where there are no dependents, medical and funeral expenses may be paid and distributed in like manner. (L. 1911, ch. 218, § 14.)” (R. S. 44-513.)
“Where death results from injury, the action shall be brought by the dependent or the dependents entitled to the compensation or by the legal representative of the deceased for the benefit of the dependents as herein defined; and in such action the judgment may provide for the proportion of the compensation to be distributed to or between the several dependents; otherwise such proportion shall be determined by the proper probate court. . . . (L. 1911, ch. 218, §36.)” (R. S. 44-534.)
“The cause of action shall be deemed in every case, including a case where death results from the injury, to have accrued to the injured workman or his dependents or legal representatives at the time of the accident. . . . (L. 1911, ch. 218, § 37.)” (R. S. 44-535.)
Appellant contends: (1) that under our statute compensation should be apportioned among dependents in accordance with the law of descents and distributions, (2) that who are dependents, and the portion of compensation to which each dependent is entitled, should be determined as of the date of the fatal accident to the workman, and (3) that upon the marriage of any dependent, or when any minor dependent (physically and mentally sound) reaches the age of 18, such dependent shall cease receiving compensation, and the unpaid portion of the compensation apportioned to such dependent shall not be paid to anyone.
The portions of the statute above quoted, as enacted in 1911 ■{omitting consideration for the present of the amendments), are substantially like the English workmen’s compensation act of 1906 (6 Edw. VII, C. 58), and should receive the same construction. Dependents must be “members of the family” of the deceased workman, as that term is defined in the statute (R. S. 44-508), but who are dependents in a given case, and the extent of the dependency, whether wholly or partial, of any person who is within that class of persons defined by the statutes as “members of the family” is a question of fact. (Hodgson v. The West Stanley Colliery, [1910] A. C. 229; Potts v. Niddrie & Benhar Coal Co., [1913] A. C. 531; Littleford v. Connell, 3 B. W. C. C., 1; Brooke v. Henry Lodge, Ltd., 10 B. W. C. C., 574; Healy v. Reilly, 10 B. W. C. C., 744.)
A surviving spouse may be wholly dependent, or may have employment, or a separate income, or be living apart from the workman, so as to be only partially dependent, or not dependent at all, -and these things might be true of a child, or of any other person named in the statute. Hence, the dependency of any individual “member of the family” of the deceased workman is either wholly or partial (R. S. 44-510). Wholly dependent, means full, complete dependence, that the individual has no consequential source or means of maintenance other than the earnings of the workman. Partial dependence may vary in degree from wholly dependent on the one hand to wholly independent on the other; and may. apply to any individual “member of the family” of the workman, who has some substantial source of maintenance other than -the wages of the workman. Such partial dependent is entitled, under R. S. 44-510, to receive such proportion of the amount of compensation payable “as may be agreed upon or determined to be proportionate to the degree of dependency.” The question of the degree of dependency, naturally, is a question of fact in each case.
Under the statutes of some of the states, the widow and children are “conclusively presumed” to be wholly dependent. Under such statutes, when the designated relationship to the deceased is shown, the individuals are by virtue of the statutes wholly dependent, but that is not true under the English statutes, nor under our statute.
Appellant cites Texas Employers’ Ins. Ass’n v. Boudreaux, 231 S. W. 756 (Tex.), and other Texas cases, but the Texas statute specifically provides that compensation shall be apportioned among dependents in accordance with the law of descents and distribution. Our statute makes no such provision, but on the other hand provides that compensation be paid to dependents. Since the liabilities imposed upon the employer and the benefits created for the workman, and for his dependents, by the workmen’s compensation act are purely statutory, construction of the specific provisions of the statutes of other states is not applicable in this state unless the statutes are the same. Appellant cites Taylor v. Sulzberger & Sons Co., 98 Kan. 169, 173, 157 Pac. 435. The only question there decided was whether an adult married son, who maintained a home of his own, was dependent upon his mother, who lived apart from him. The son’s claim was denied. Appellant also cites Gilliland v. Zinc Co., 112 Kan. 39, 209 Pac. 658, but there a provisional apportionment made by the trial court between a widow and minor children, which was not specifically contested on appeal, was permitted to stand without definite approval. Appellant calls our attention to the provisions of R. S. 44-513 and 44-534, that payment may be made to an administrator of the deceased; that suit may be brought by his personal representative, or by the dependents, and in such action the judgment may provide for apportionment of compensation among dependents, or by the proper probate court, and argues that these provisions indicate that the distribution shall be made according to the law of descents and distribution. Some force would attach to this contention but for the provisions in the statute that the payment must be made to dependents, as defined by the statute, some of whom would not take under the law of descent. The result is, whatever tribunal passes upon the apportionment of compensation for a fatal accident must apportion it among dependents as defined by the statute and in accordance with the facts of the case as to who are dependents, and the extent of their respective dependency. It is not determined by the law of descents and distribution.
Appellant next argues that who are dependents, and the portion of compensation to which each is entitled, should be determined as of the date of the fatal accident to the workman. For the purposes of this case that may be regarded as correct, though perhaps it would not be correct in all cases, such as a change in dependency within the period between the accident and the death, or the birth of a posthumous child, but no such question is in this case. Under the English statute and under our statute (R. S. 44-513) when compensation is payable because of the death of a workman, and the amount of the compensation is agreed upon, or determined, the employer is concerned only with the question of whether or not there are dependents. If there are no dependents the'1 employer pays the burial expenses, not exceeding $150. If the workman leaves dependents wholly dependent, the employér pays the compensation provided by the act (R. S. 44-510); if there are no persons wñolly dependent, but there are persons partially dependent, the employer may be concerned with the apportionment of compensation among them, for that may have a bearing upon the amount or portion of the compensation to be paid. But when there are persons wholly dependent, the employer is not concerned with the number of them, whether one or a dozen, nor with the relation they bear to the workman, whether surviving spouse or children, or any of the other “members of the family” whom the statute (R. S. 44-508) defines as dependents, for these matters neither increase nor decrease the sum the employer is required by the statute to pay. The status of the employer to pay compensation and of those wholly dependent (whatever their number be) jointly or collectively to receive compensation is fixed by the death of the workman (R. S. 44-513, 44-534, 44-535; Smith v. Boiler Works Co., 104 Kan. 591, 180 Pac. 259), and the dependents, jointly and collectively, or the legal representative of the deceased workman may bring an action therefor. "In such action the judgment may provide for the proportion of the compensation to be distributed to or between several dependents” (R. S. 44-534), but whether that is done, or what apportionment is made among persons wholly dependent, is of no concern to the employer. And it has been held that the employer cannot appeal from an apportionment among dependents wholly dependent, because it is a matter which does not concern him. (Harland & Wolff v. Radcliffe, 2 B. W. C. C. 374; Rhodes v. Soothill Wood Colliery Co., Ltd., 2 B. W. C. C. 377; Janes’s Case, 217 Mass. 192.) But be cause the amount of compensation and the dependent, or dependents, entitled to receive it are fixed upon the death of the workman, it does not follow that the apportionment between dependents wholly dependent (if such apportionment is made, and most frequently it was not made) must remain fixed. It is subject to change should changed conditions require it (Ivey v. Ivey, 5 B. W. C. C. 279; Dunnigan v. Coal Co., 115 Kan. 57, 229 Pac. 109), just as the award to an injured workman may be modified if changed conditions warrant it, though perhaps the occasions are not so frequent.
So far we have considered this case as though the amendments, now a part of R. S. 44-508 and 44-510 (italicized as printed herein), had not been made. It remains to consider the modification wrought upon the statute by these amendments. Remembering that dependency, under the statute as originally enacted, was a question of fact to be determined or agreed upon in each case, and when once determined was subject to modification upon change of conditions which required it, the amendment incorporated in R. S. 44-508 simply fixed some statutory rules for determining dependency, and the amendment incorporated in R. S. 44-510 fixed some statutory rules as to when dependency which once existed ceases. The statute as a whole is not otherwise modified by these amendments. The amount of compensation to be paid remains the same. The right of the legal representative of the deceased workman, or of his dependents, to bring an action for compensation upon the death of the workman is not modified. The right of those wholly dependent, without regard to their number, to receive the entire compensation is not disturbed. But appellant calls our special attention to the wording of the amendment in R. S. 44-510, “marriage of any dependent shall terminate all compensation to such dependent, but shall not affect the compensation allowed other dependents.” And it is argued that the word “affect” means change, to increase or diminish; hence the phrase means that the marriage of any dependent shall not increase or diminish the compensation to be paid other dependents, and therefore the employer may retain what would have been paid to the dependents who married had the marriage not taken place. By this reasoning the employer becomes the financial beneficiary of the married dependent, and the industry is relieved of a part of its obligation, under its statutory contract with the workman, to those wholly dependent upon him, though there are still persons in that class of wholly dependents. The ordinary mean ing of “affect” is to change, increase or diminish; but in a statutory-enactment containing a provision that it “shall not affect” a certain class of persons, it is held to mean that the enactment shall not affect the designated class injuriously. (Ryan et al. v. Carter et al., 93 U. S. 78; Baird v. St. Louis Hospital Ass’n, 116 Mo. 419, 427.) That is the sense in which it is used here, though perhaps either meaning will produce the same result. Now let us consider the application of this amendment to the plaintiffs in this case. They are two minor children of the deceased workman, and were wholly dependent upon him at the time of his accidental death. That is agreed. They were, and still are, members of that class of persons entitled to receive under the law the full amount of compensation, and they were entitled to receive the full compensation, if they were the only persons wholly dependent. That right is not affected by the marriage of some other dependent, or at any rate not injuriously affected. It still remains notwithstanding the marriage of another dependent. The result is the marriage of a dependent causes that person to cease to be a dependent, within the meaning of the law— to step out of the class of persons designated by the statute as dependents of a deceased workman — but it does not change the amount of compensation to be paid nor the right of other persons, dependents of the deceased workman, and within the class of those wholly dependent, to receive it. And this was the judgment of the trial court.
One other question remains to be considered. Appellant contends that the district court had no authority to modify the findings and conclusions of the arbitrator. The review was predicated upon the ground of gross inadequacy, which is one of the grounds of review authorized by statute (R. S. 44-528).
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Foth, J.:
Plaintiff Garold E. Shelman, having obtained a $50,000 judgment for personal injuries alleged to have been sustained at the hands of the A1 Elam Construction Company, Inc., sought to collect his judgment on behalf of himself and the other plaintiffs claiming through him by this suit against Elam’s general liability underwriter, Western Casualty and Surety Company. (The claim of the other plaintiffs arises out of workmen’s compensation benefits paid to Shelman.) The primary issue is whether Western’s comprehensive liability insurance policy covered the incident in which Shelman was injured, or whether the incident came within an exclusionary clause of the policy. By stipulation the case was submitted to the trial court on depositions, exhibits, briefs and oral argument. It found coverage and rendered judgment against Western for $25,000, the limit of its policy. Western has appealed.
The facts, as found by the trial court, are not disputed.
In June, 1966, R. G. Aldridge, d/b/a the Aldridge Construction Co. (one of the plaintiffs), was engaged in building a highway bridge across the Osage River in Missouri, just below Bagnell Dam. It needed to move its equipment to the opposite bank, but the size of the equipment precluded its being transported by highway. Aldridge therefore engaged Elam, the insured here, to ferry the equipment across on a barge. Elam was basically a sand and gravel dredging operation, and had never performed such work before. It nevertheless agreed to furnish its barge, its stern-wheeler tug “Popeye,” and a captain and a deckhand (Albert Ash) to operate them. Aldridge was to be responsible for loading and unloading his equipment.
Shelman, the injured plaintiff, was an employee of Capitol Stores, Inc., of Topeka, and was in charge of maintaining the tires on Aldridge’s equipment. On this occasion he was present to protect the tires during the move.
The trial court’s findings narrate the manner in which the accident occurred:
“11. Elam’s phase of the aforementioned ferrying operation, aside from the actual transportation, was to stabilize the barge at the riverbank, by means of the tugboat’s power and by means of two steel cables % inches in diameter, one of which was attached to each bank-end corner of the Elam barge, the other ends of which were attached each to a piece of Aldridge’s heavy earthmoving equipment parked on the riverbank; Aldridge’s mechanic would then back the piece of Aldridge’s heavy equipment which it was intended to move across the river at the time, across a dirt ramp built by another of Aldridge’s men and onto the barge, after which the lines at the barge end of the operation were cast off, and the ferrying operation would proceed; the ties, or fastenings, of the cables to the barge were made by Elam’s deckhand, who employed a number of figure 8 loops around a eaveness or cavel (a metal horn) on the barge. As the operation progressed, personnel other than the deckhand assisted in the tying. The ends of the cables attached to the bulldozers remained in place. So the tying and untying on each trip occurred only on the barge end.
“12. During the action (sic — actual) loading stabilization of the barge was of key importance. The stabilization was accomplished by virtue of the cables which had to be taut and the pushing of the barge against the bank by the tug under power. The bulldozers were moved on each loading to insure taut cables. The tug alone had insufficient power to stabilize the barge while the equipment was being loaded. The cables alone, were insufficient. It took both cables and the tug power to stabilize. Throughout the day different volumes of water were discharged out of Bagnell Dam into the river. This changed the level of the river sufficiently that troubles were encountered in keeping the cables taut and in keeping the dirt ramp adequate for the loading.
“13. Four or five loadings and trips across the river were made uneventfully.
“14. The next loading was to occur around noon. Aldridge did not have another piece of equipment in place to load when the tug returned. The deckhand went forward to eat lunch. The loading commenced. As the equipment was being loaded the cable came loose from the upstream end of the barge. The barge swung downstream. The equipment being loaded turned over, severely injuring plaintiff Shelman.
“15. A1 Elam employees had complete control over the barge and tug. No one else directed or controlled the operation of same. The accident occurred on the barge, which was on the river, and was a result of the cable on the barge coming loose. There is a question as to who actually tied the cable in question. It could have been Ash or an Aldridge employee. The Aldridge employees did tie some cables during the day — but they were copying the figure eight knots used by Ash initially.”
Western was notified of the accident, which occurred June 15, 1966. It investigated and on January 31, 1967, wrote its insured, Elam, that it was denying coverage. Thereafter several abortive suits were filed against Elam; finally, on May 19, 1971, one resulted in the judgment which supplies the basis for this suit.
That suit was brought by all plaintiffs against Elam in the United States District Court for the Western District of Missouri. Western was notified of the suit but refused to defend. Elam, through its own counsel, filed an answer in which it raised a number of defenses. It also asserted a counterclaim against Aldridge for indemnity, claiming Aldridge had contracted to assume all responsibility for the ferrying operation and for all injuries or damages arising out of it.
Negotiations between the parties resulted in a stipulation of settlement of a character specifically authorized by Missouri statute (R. S. Mo. 1976 Supp. § 537.065). Under its terms Elam paid to the plaintiffs $10.00, dismissed its counterclaim, and consented to trial without further notice to it. In return, plaintiffs agreed that if they obtained a judgment against Elam it would not be a lien against Elam’s property and they would not seek to execute except against any insurer whose policy covered Elam’s liability for such damages.
The federal court approved the stipulation and proceeded to hear the case without a jury. It found from the evidence presented that the upstream end of the barge came loose as a direct result of the negligence of Elam’s employees, causing Shelman’s injuries. It awarded plaintiffs judgment, as their interest might appear, in the amount of $50,000. This suit followed.
Western’s basis for denying coverage and the foundation for its defense in this action is the so-called “watercraft exclusion” clause in the policy it issued to Elam:
“This policy does not apply:
“(c) under coverages A and C, except with respect to operations performed by independent contractors and except with respect to liability assumed by the insured under a contract as defined herein, to the ownership, maintenance, operation, use, loading or unloading of (1) watercraft twenty-six feet or more in overall length and not specifically described in the declarations of the policy, if the accident or occurrence takes place away from premises owned by, rented to or controlled by the named insured, or (2) aircraft. . . .”
By separate endorsement it was provided:
“Exclusion of Watercraft. It is agreed the policy does not apply under Coverages A and C, except with respect to operations performed by independent contractors and except with respect to liability assumed by the insured under a contract covered by the policy, to the ownership, maintenance, operation, use, loading or unloading of watercraft if the accident occurs away from premises owned by, rented to or controlled by the named insured.”
The applicability of the exclusionary clause was first presented to the trial court here by Western’s motion for summary judgment. It was undisputed that the place where the accident happened was not “owned by” or “rented to” Elam. The issue therefore was whether it could be said to be “premises . . . controlled by” Elam. We cannot improve upon the trial court’s analysis:
“If there is any material issue of fact, which, if resolved in the plaintiffs’ favor, would permit recovery, then summary judgment can not be granted. Thus, if a case can be made that Elam either controlled the premises where the accident occurred or contracted to assume liability for the accident, the motion should be denied. On the issue of ‘premises controlled by the insured’, the terms ‘premises’ and ‘controlled’ will be dealt with separately.
“In the context of insurance exclusionary clauses, particularly water craft exclusionary clauses like the one at issue here, the term ‘premises’ can not be interpreted the same way in every case.
“In some cases, summary judgment has been granted because the premises were clearly specified, and there was no doubt that the accident occurred away from those premises. In U. S. Fidelity & Guaranty Company v. Rowe, 249 F. Supp. 993 (E. D. Va. 1966) affirmed in Rowe v. U. S. Fidelity & Guaranty Company, 375 F. 2d 215 (4th Cir. 1967), for example, the list of hazards insured against left no doubt that premises referred only to the insured’s marina. Thus, a water craft accident one-quarter mile from the marina was clearly outside the policy. Summary judgment was granted.
“In Snyder v. Travelers Insurance Company, 251 F. Supp. 76 (D. Md. 1966), the insured’s address was listed as all premises owned, rented, or controlled by the insured. Because the policy also referred to automobiles away from such premises, structural alterations at the premises, and elevators newly installed at the premises, the court concluded that ‘Premises here must mean a fixed situs on land. ... In short, the policy throughout speaks of “premises” as a fixed site on land . . . and not an item of maritime personal property.’ Snyder, at 79. Thus, the contention that the barge itself constituted premises did not save the plaintiff’s case from summary judgment where the accident occurred six to eight miles away at a third person’s dock.
“The court interpreted premises as a shifting location because of the nomadic nature of the insured’s lumber business in Jones v. Globe Indemnity Company, 305 F. Supp. 242 (E. D. Calif. 1969).
“Notwithstanding the listing of Ganado, Jackson County, Texas, as all premises owned, rented or controlled by the insured, the court in American Fidelity & Casualty Company v. Traders Sr General Insurance Company, 334 S. W. 2d 772, 160 Tex. 554 (1959) said at 774 of a water craft exclusion similar to that in the case at bar: ‘We confess difficulty in construing the language of this exclusion. To us it is rather involved. . . . The policy is not explicit.’
“Noting that premises was not defined in the policy, nor was there a ‘special limitation of coverage to the county specified, the court concluded that a place outside the county named in the policy came within the definition of premises.
“There was another similar water craft exclusion in Upper Columbia River Towing Company v. Maryland Casualty Company, 313 F. 2d 702 (9th Cir. 1963). That case went to the jury despite the fact that the premises in question were two different docks owned and operated by companies other than the insured.
“These cases show that premises are interpreted broadly in favor of the insured to the extent permitted by the particular policy.
“Nowhere does the policy in the case at bar define premises nor purport to list all premises owned, rented, or controlled by the insured. In fact, the insured’s place of business is not clearly delineated in the section of the policy describing the insured’s premises.
“The policy does mention the use of automobiles in relation to premises under the definition of General Exposure. The coverage of automobiles at premises owned, rented, or controlled by the insured is, however, consistent with the interpretation of premises as the insured’s work site. Such a provision cannot limit the scope of premises in the face of defense counsel’s statement during oral argument that the barge and tug boat would be covered while dredging where formal arrangements had been made by Elam. In addition, there are no indications in the policy, such as there were in Snyder and Rowe that premises is a specific, fixed location.
“Like the term premises,
“ ‘it is useless to attempt a definition of the word “control” that would be applicable to all cases involving the same policy phrase since the very nature of the word itself will require an ad hoc determination.’ General Insurance Company of America v. American Employer’s Insurance Company, 461 P. 2d 517, 11 Ariz. 38 (1969) at 520.
“According to Pacific Employers Insurance Company v. Hartford Accident and Indemnity Company, 228 F. 2d 365 (9th Cir. 1955) reh. den. 1956:
“ ‘The word “control” has no strict or technical definition which necessarily excludes all others. Black’s Law Dictionary (4th ed.), p. 399, defines "control” as “Power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee”. It is said in Rose v. Union Gas & Oil Co., 6 Cir., 1924, 297 F. 16, 18, “The word ‘control’ does not import an absolute or even qualified ownership. On the contrary, it is synonymous with superintendence, management, or authority to direct, restrict, or regulate”.’
“Decisions supporting this definition, especially in the context of insurance exclusionary clauses, are too numerous to cite.
“In Upper Columbia, the plaintiff’s effort to prove it had control of the dock where its barge was moored was unsuccessful, but the question was submitted to the jury on the strength of the following evidence. The injured parties slipped on the deck óf the insured’s barge while at docks not owned or rented by the insured. The docks were owned and maintained by third persons. None of the insured's employees were even on the docks or the barge when the accidents occurred during loading of the barge. The insured introduced evidence that his employee was general superintendent of the person who was in charge. Other evidence by an official of the dock owner disputed the claim of insured’s superintendence over either dock.
“On this evidence, the court ruled, fairminded men could differ. The holding is somewhat weakened as applied to the plaintiff in the case at bar by the fact that the court did not rule on the sufficiency of the evidence supporting the plaintiff’s case, but it merely ruled that control of the premises was not established by the plaintiff as a matter of law. Nevertheless, it is clear that the court felt the issue of control was for the trier of fact to decide. Furthermore, the court said that control over the loading operation was relevant to the issue of control but not conclusive.
“The evidence that Elam controlled the premises is even stronger than that supporting the plaintiff is Upper Columbia. Two of Elam’s employees were present at the time of the accident. According to Aldridge’s answer to interrogatory 10, Elam was responsible under the contract for properly mooring the barge: ‘Employees of A1 Elam were to move tug with barge to loading site and anchor barge. Aldridge employees to load scraper and tractor.’
“While the inference can be drawn from Elam’s deposition that Aldridge’s assumption of liability for loading and unloading included the mooring of the barge, Elam’s testimony is not specific on this point. At best defendant’s argument here merely raises the material issues of the substance of the agreement and what constitutes loading and unloading under the contract between Elam and Aldridge.
“If Elam did have responsibility for mooring as alleged, he had authority to direct that operation. Elam could even have such authority if Aldridge had accepted liability for Elam’s mooring job, although such an assumption of liability by Aldridge would be one factor tending to disprove Elam’s authority. Because the mooring operation required contact with the premises in question, and because the facts which must be taken as true on this motion indicate Elam had control over that operation, a case can be made that Elam had control of the premises.
“Defendant’s claim that Aldridge’s control over loading negates control over the loading is not conclusive. The claim also ignores the distinction between loading and mooring and the fact that control of the premises can be based on mooring alone.
“The cases have held that control of the premises need not be exclusive but may be shared with property owners, contractors hired by owners, and others. See Upper Columbia. See also D’Aquilla Brothers Contracting Company, Inc. v. Hartford Accident and Indemnity Company, 193 N. Y. S. 2d 502, 22 Misc. 2d 733 (Supreme Ct. 1959) where ‘such measure of control, jointly with others as was consonant with the work done’ was ruled sufficient to constitute control of the premises by a subcontractor; and Hartford Accident and Indemnity Company v. Shelby Mutual Insurance Company, 208 So. 2d 465 (Dist. Ct. App. Fla. 1968) where the court reversed an interpretation of control which required a proprietary interest of the same kind or class as ownership or tenancy.
“While Elam may not be a subcontractor, these cases did not turn on the insured’s status on the measure of authority exercised over the premises. Thus, subcontractors have lacked sufficient authority to constitute control. See Herbert v. California Oil Company, 280 F. Supp. 754 (W. D. La. 1967).
“Hall v. Moveable Offshore, Inc., 455 F. 2d 633 (5th Cir. 1972) illustrates the small amount of control that will suffice to support a verdict. The insured was to transport an oil rig built by Dresser-Ideco, the owner of the premises, to High Seas Co. A scaffold had been built about the rig by Safeway Scaffold Co. The victim’s employer had been hired by the insured to hoist the rig onto the insured’s barge. Because the scaffold’s feet were too thin, the scaffold tipped and injured the victim while he was attaching a cable to the rig. The insured had inspected the premises.
“The jury found there was control by the insured of the premises, but the trial court rendered a verdict n.o.v. The Court of Appeals reversed saying that, while the issue was contested, there was sufficient evidence to support the jury’s verdict. The fact that finding control here determined tort liability should not color the result for application to insurance cases. Courts have, if anything, been more likely to find control to protect an insured.
“Courts have been willing to distinguish the authority of the insured from that of others at the premises to find control by the insured. In American Fidelity, the oil company dismantled an oil rig while the insured’s employees moved the parts from the structure of the rig to other places on the drilling site and stacked them. This was deemed sufficient control of the premises because the insured determined how the trucks were to be used, where the parts were to be stacked, and supervised the loading and unloading of the trucks.
“A thorough search has revealed no instance where summary judgment was granted on the issue of control of the premises in the face of facts as supportive of the plaintiffs’ position as in the case at bar.
“Plaintiffs’ contention that ‘control’ is ambiguous is unnecessary. Control as used in this policy and as interpreted by the courts is sufficiently broad to include plaintiffs’ allegations. The only ambiguity would result from an assertion against the weight of authority that the term should be read narrowly. Defendant suggests such a reading when it contends control of loading is necessary to constitute control of premises; that because the accident ‘involved’ loading, control by Elam is precluded; and that control of the premises by Aldridge precludes control by Elam. To the extent that defendant introduces such ambiguities, they must be resolved in favor of the plaintiff.”
In short, the trial court held that whether Elam “controlled” the “premises” where the accident happened was a question of fact, and could not be determined as a question of law. (It also found a factual issue raised as to whether there was any “liability assumed” by Elam under a “contract,” an issue we do not reach.) We agree with the trial court’s conclusion, which is amply supported by the authorities cited by it.
The strongest cases cited by Western lend little support to its position that, as a matter of law, Elam did not control the premises where the accident occurred. The closest factually is Upper Columbia River Towing Co. v. Maryland Casualty Co., 313 F. 2d 702 (9th Cir. 1963), cited by the trial court. There two workmen were injured in two separate accidents on the insured’s barge, moored at different times to two docks owned and operated by other companies. The appellant (insured) contended that the evidence showing its control over loading operations made the watercraft exclusion inapplicable as a matter of law. The Ninth Circuit rejected the argument, saying:
“The applicability of the exclusion, however, clearly was made to depend upon whether or not the ‘premises’ were controlled by appellant. Although evidence tending to show control over the loading operation may have been relevant to the determination as to whether appellant had control over the premises, such evidence was not conclusive on that issue. The evidence was not such in this case that fairminded men could not have drawn different inferences therefrom. Therefore, the district court would not have been justified in holding that as a matter of law either dock was under the control of appellant. We hold that the court properly submitted the issue of control to the jury.” (313 F. 2d at 705-6.)
The holding supports the trial court’s conclusion that where different inferences may reasonably be drawn from the evidence, “control” is a question for the finder of fact.
In Snyder v. Travelers Insurance Company, 251 F. Supp. 76 (D. Md. 1966), also referred to by the trial court, the policy insured against liability arising out of the “ownership, maintenance or use of premises, and all operations.” The policy specifically described by street address the location of “all premises owned, rented or controlled” by the insured. That, together with other language in the policy, led the court to conclude that a floating crane was not the kind of “premises” meant by the policy. Here, however, no premises are described in Elam’s policy, although a place for such a description is provided. We cannot infer, as the Snyder court did, that “premises” in the policy was intended to refer to “a fixed site on land.” In this case, “premises” could be any premises, so long as there was the requisite control by the insured. (Western cites this case for, and devotes a substantial portion of its brief to, the proposition that the barge did not constitute “premises.” As we understand it, neither plaintiffs nor the trial court ever suggested that it did.)
Universal Towing Co. v. Hartford Fire Insurance Co., 297 F. Supp. 1290 (E. D. Mo. 1969), did not involve either “premises” or “control.” Coverage was provided to the insured towing company only for occurrences which took place “at the Insured’s Terminals),” which were supposed to be listed in the policy. None was listed, and the insured therefore claimed coverage not only for the three it owned but also for one where it serviced an anchor fleet for another towing company. The court construed “the Insured’s Terminals” to mean only those owned by the insured. That construction was based in large part on auditing procedures under the policy whereby premiums were based on daily counts of barges located at the covered terminals. Barges located at the fourth terminal were never counted by the insured, and no premiums were paid for them. Here we have no such extrinsic evidence which would lead to an operative construction of the policy.
Western makes much of the conceded fact that Missouri law applies in construing the policy in question here, and strenuously urges that the trial court misapplied the law of our sister state. We find nothing peculiar about the Missouri rules, nor do we find any misapplication. In Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 370, 1 S. W. 2d 99, 57 A. L. R. 615 (1927), the Missouri court said:
“In the construction of the policy, the rules to be followed are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but insofar as open to different constructions, that most favorable to the insured must be adopted. [Citation omitted.] However, as said in 14 Ruling Case Law, sec. 103, p. 931, the rule ‘does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.’ ” (Emphasis added.)
(See, also, Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 222 S. W. 2d 76 [1949]; Universal Towing Co. v. Hartford Fire Insurance Co., supra.) The Missouri rules appear indistinguishable from those routinely applied by Kansas courts to Kansas policies. (See, e. g., Mah v. United States Fire Ins. Co., 218 Kan. 583, 545 P. 2d 366, and cases cited at 586-7.)
The trial court in this case simply held that the policy was not so unambiguous that the term “premises” in the policy was clearly limited to Elam’s principal base of operations, or that the “control” contemplated was clearly exclusive control. Such holdings did no violence to either Missouri law or the terms of the policy.
The trial court made two other pretrial rulings which Western challenges on appeal. First, it found the federal judgment was entitled to full faith and credit, and precluded Western from relitigating the issue of Elam’s negligence. Western concedes that under Missouri law “generally a liability insurer does not have a right to open or set aside matters relating to the merits of a judgment awarded in favor of an injured person against a policy holder of the insurer in an action in which the insurer did not appear to defend.” (Appellant’s Brief, p. 29.) But, it says, an exception is made where the judgment is obtained by fraud or collusion.
In support of this proposition Western cites Lane v. Hartford Fire Insurance Company, 343 F. Supp. 79 (E. D. Mo. 1972), which in turn relies on Wells v. Hartford Accident and Indemnity Company, 459 S. W. 2d 253 (Mo. 1970). Those cases do recite the Missouri general rule, and the fraud or collusion exception, but do no more than that to support Western’s position here.
In Wells the Missouri court held that a carrier of uninsured motorist insurance, having had an opportunity to intervene in its insured’s action against an uninsured motorist, was bound by the results of that action on the issues of liability and damages. We see no comfort for Western in that holding.
In Lane plaintiff had taken a default judgment against the defendant’s insured, one LeRoy McDonald, based on a stipulation not to execute which was strikingly similar to the one entered into in this case between plaintiff’s and Western’s insured. The court held:
“The state court record does not show fraud or collusion in obtaining the prior judgment. The fact that LeRoy McDonald did nothing to contest plaintiff’s claims against him alone does not support an inference that the judgment was obtained by fraud or collusion. Eakins v. Burton, 423 S. W. 2d 787, 790 (Mo. 1968). The agreement between plaintiff and LeRoy McDonald whereby plaintiff agreed not to levy execution upon obtaining a judgment against LeRoy McDonald was not fraudulent or collusive. Section 537.065 R.S. Mo. 1969, V.A.M.S., expressly authorizes agreements of this nature.” (343 F. Supp. at 85.)
So, here, the fact that the federal judgment was based on the statutorily authorized stipulation gives rise to no inference of fraud or collusion. The record shows that Elam stoutly defended itself through several lawsuits, and finally settled. Western chose not to defend its insured and is bound by the result.
The other pretrial order was a summary judgment denying Western’s counterclaim against Aldridge for indemnity. The trial court found that Elam, as part of the settlement of the federal suit, had dismissed its counterclaim in that suit based on the same theory as Western’s counterclaim here. It found:
“1. That the counterclaim filed by A1 Elam Construction Co. in the Federal case was compulsory in nature pursuant to Rule 13(a) of the Federal Rules of Civil Procedure;
“2. That had defendant herein undertaken the defense of the Federal case when demand was made upon it to do so, it could have prosecuted the counterclaim in the Federal case;
“3. That the defendant herein has no claim for indemnification except through the subrogation clause in its liability policy with its insured, A1 Elam Construction Co.;
“4. That the defendant stands in the shoes of its insured and has no greater rights herein than would A1 Elam;
“5. That any claim for indemnification against R. G. Aldridge and its carrier by A1 Elam was disposed of in the stipulation and subsequent Federal disposition;
“6. That Al Elam and its carrier (defendant herein) are barred by the doctrine of res judicata from asserting the counterclaim which the carrier is asserting herein;
“7. That the defendant herein denied its insured defense in the Federal case on the ground that the incident was not covered by the policy and accordingly lost its right to direct the defense of same;
“8. That the defendant made such denial of defense after an admittedly full investigation of the facts;
“9. That the defendant knew or should have known that under Missouri law the actual disposition reached in the Federal case with its limitation on the levying of execution was a possibility;
“10. That the plaintiffs’ motion to dismiss the counterclaim should be and is hereby sustained; and
“11. That the scope of the trial is limited to the issue of whether or not coverage is afforded under the policy for the judgment rendered in the Federal Court.”
Western’s argument here is that even if it is bound by the federal judgment, the estoppel goes no further than to those matters necessarily proved to sustain the judgment against Elam. It does not go, it says, to Western’s right as an indemnitor to recover over against Aldridge who, it alleges, really caused the loss and contracted to pay it.
The argument overlooks the effect of Elam’s counterclaim in the federal case and its dismissal. The trial court was clearly right in finding under familiar principles of subrogation that Western stands in the shoes of Elam. Thus any defenses good against the insured are also good against the insurer as subrogee. See, New Hampshire Ins. Co. v. Fox Midwest Theatres, Inc., 203 Kan. 720, 457 P. 2d 133; Liberty Mut. Ins. Co. v. Fales, 8 Cal. 3d 712, 106 Cal. Rptr. 21, 505 P. 2d 213 (1973); 44 Am. Jur. 2d, Insurance, § 1821. Aldridge was a plaintiff in the federal case, and Elam’s counterclaim arose out of the same transaction. When, as part of the settlement, Elam dismissed its counterclaim and permitted Aldridge to take judgment against it, Elam barred itself from further action on the claim. See, Robinson v. Railway Co., 96 Kan. 137, 150 Pac. 636, Syl. 5; 50 C. J. S., Judgments, § 705; 47 Am. Jur. 2d, Judgments, § 1095. Since Elam could no longer pursue the counterclaim, neither could its insurance carrier Western.
Having thus limited the issues, the trial court proceeded to hear the case pursuant to the parties’ stipulation, and to make the findings of fact quoted in part above. The essence of those findings was that Elam exercised some control over the premises where the accident occurred, albeit jointly with Aldridge. Its pertinent conclusions of law were:
“3. There is no requirement that ‘control’ as the term is used in the insurance contract herein be exclusive.
“4. The tug and barge were being operated on a navigable stream on which a proper permit to operate had been issued.
“5. A1 Elam had sufficient ‘control’ over the ‘premises’ where the accident occurred to be covered under the provisions of said policy.”
We are asked to overturn these conclusions, but we cannot do so. The accident happened some three-fourths of a mile downstream from the area where Elam regularly dredged, but that is not controlling. Even under Missouri law, as noted above, “insofar as open to different constructions, that most favorable to the insured must be adopted.” (Wendorff v. Missouri State Life Ins. Co., supra.) If the policy had been meant to be confined to those “premises” where Elam had a leasehold, it would have been easy enough to say so. Absent such a policy restriction the trial court was amply warranted in finding that “premises” could include other areas in the river or on its banks, so long as Elam was exercising control.
Likewise, the policy did not limit “control” to exclusive control, so that applying the same principle of construction the trial court was justified in concluding that joint control was enough. Elam’s employees directed the mooring operation and told Aldridge’s people when to move the tractors on the bank so as to make the cables taut; Aldridge’s men scraped the bank and moved the equipment. The premises — the bank and the river immediately adjacent to it — were therefore under the joint control of Elam and Aldridge. That was enough to remove the accident from the watercraft exclusion clause.
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Malone, J.:
The State appeals the district court’s imposition of a dispositional departure sentence for James Paul Thomas, who pled guilty to aggravated indecent liberties with a child. We conclude that the district court’s findings of fact and reasons justifying the departure do not constitute substantial and compelling reasons for departure as a matter of law. Accordingly, we remand the case to the district court for imposition of a presumptive sentence unless the district court makes additional findings warranting a departure.
On April 18, 2007, the State charged Thomas with rape or, in the alternative, aggravated indecent liberties with a child. The alleged incident occurred in December 2006, and the victim was M.N.R. On July 23, 2007, Thomas pled guilty to aggravated indecent liberties with a child, and in exchange the State dismissed the rape charge. Prior to sentencing, Thomas filed a motion for a durational and/or dispositional departure. The motion asserted as grounds for departure that the victim was an aggressor in the criminal activity and that the degree of harm or loss attributed to the crime was significantly less than typical for such an event. An amended motion for departure also asserted, among other grounds, that Thomas had no prior convictions of any kind as shown in the presentence investigation report. Thomas underwent a sex offender evaluation with Richard W. Burnett, a licensed specialist clinical social worker, who recommended that Thomas be placed on probation.
The district court held a sentencing hearing on October 15, 2007. Burnett testified that he did not believe Thomas would be a risk to society if placed on probation. However, Burnett acknowledged that his evaluation relied solely on information received from Thomas. Burnett did not review police reports or transcripts, and he did not interview any other witnesses. Burnett testified that it would be a cause for concern if Thomas had provided him with inaccurate information during the evaluation.
Thomas testified that in December 2006, when he was 19 years old, he had been going to M.N.R.’s house two or three times a week on a friendship basis. On the day of the incident, Thomas was at M.N.R.’s house during the day, and before he left, M.N.R. asked him to return that night so the two of them could watch movies. Thomas returned to watch the movies, and he and M.N.R. were alone as M.N.R.’s mother had already gone to bed. According to Thomas, M.N.R. told him that he could stay the night. Thomas testified that M.N.R. then left the room and returned wearing only a t-shirt and underwear. According to Thomas, M.N.R. put her hand on his leg and “started playing with herself and she grabbed my hand and just kind of motioned me down to where she was.” Thomas then had sexual intercourse with M.N.R. Thomas admitted that after M.N.R. told him “no,” he continued intercourse for 2 or 3 minutes until he ejaculated, but stated that he “didn’t understand it as a ‘no,’ it was just kind of like a little grunt or whatever.”
Thomas testified this was the only time he and M.N.R. had intercourse. Thomas stated that he did not know M.N.R. was only 15 years old at the time of intercourse, but upon discovering her age later that night, he went to the bathroom to collect his thoughts because he knew what he had done was wrong. Thomas stated that after the incident, M.N.R. sent him text messages and three topless pictures over the phone. Thomas denied text messaging M.N.R. to apologize for raping her.
Officer Jeremy Watkins from the Salina Police Department interviewed Thomas during his investigation. Watkins’ testimony contradicted Thomas’ as follows: (1) Thomas told Watkins that he knew M.N.R. was 15 years old prior to intercourse; (2) Thomas told Watkins he had intercourse with M.N.R. three or four times; (3) Thomas told Watkins that during intercourse, M.N.R. told him to stop and that she was crying; and (4) Thomas told Watkins that he text messaged M.N.R. several times the day after the incident. Watkins also interviewed M.N.R. during his investigation. According to Watkins, “[M.N.R.] stated that [she and Thomas] had intercourse one time at her house and that she was raped.”
M.N.R. also testified at the sentencing hearing, and her testimony contradicted Thomas’ as follows: (1) M.N.R. was lying on the floor and Thomas got on top of her; (2) M.N.R. told Thomas to stop, began crying, and attempted to get Thomas off; (3) after intercourse, M.N.R. and Thomas both cried and Thomas apologized; (4) Thomas kept sending M.N.R. text messages to say that he was sorry and that he did not want to live with himself knowing what he did; and (5) Thomas knew how old M.N.R. was the first time they met.
After hearing the evidence, the district court failed to make explicit findings resolving the many instances of contradictory testimony. The district court imposed a presumptive sentence of 59 months’ incarceration. However, the district court granted Thomas’ motion for a dispositional departure and placed Thomas on probation with community corrections for 36 months. The district court cited two reasons for the departure: (1) Thomas had no criminal history and (2) M.N.R.’s conduct leading to the offense, specifically her suggestive behavior in wearing only a t-shirt and underwear while watching television with Thomas late at night. The sentencing judge’s findings, in their entirety, were as follows:
“First of all note [Thomas] has no prior criminal history. I don’t wish to mean in any way political incorrect or make any untoward statements here, but I would be very remiss if I didn’t make some comment.
“I am greatly concerned where this young man is looking at five years in prison. I want to know why a not quite sixteen year old was sitting late at night watching movies, we know not of what kind, with a boy, dressed in underwear and a tank top. If that is not some sort of sexual suggestion, it may not be aggression, but it certainly ... I don’t think I’m that out of touch that ... I have to agree with [defense counsel],
“Having raised six teenagers, I think we’d be awfully naive to consider that that’s not some sort of a suggestive behavior, or whether intentional or not, I can’t believe she was sitting there in her underwear and tank top while her parents, or her mother, was still awake in the building.
“There’s got to be some awareness here, by [an] almost sixteen year old, of the hormonal makeup of a nineteen year old male and while it doesn’t excuse the behavior, it certainly goes a long way in explaining the behavior and it goes to support the idea that if the victim here was not necessarily an aggressor, there certainly was some mitigating conduct on her behalf that mitigates the conduct of [Thomas] in this case.
“It just . . . I’m sorry, for lack of a better word, it just doesn’t seem fair to send this young man to prison under those circumstances and I think that the conditions posed by Community Corrections would address the situation in this case.
“The Court’s going to grant the Motion for Dispositional Departure upon the finding it has substantial and compelling reasons that the conduct of the victim leading to the offense [and] the fact that [Thomas] has no prior criminal history.”
The journal entry of sentencing listed the departure factors as: “1. CONDUCT OF VICTIM LEADING TO THE OFFENSE-WEARING ONLY UNDERWEAR & TEE-SHIRT WHILE WATCHING TELEVISION WITH THE DEFENDANT LATE AT NIGHT. 2. AGE OF DEFENDANT.” The State timely appeals.
Appellate review of a departure sentence is limited to whether the sentencing court’s findings of fact and reasons justifying a departure (1) are supported by substantial competent evidence in the record and (2) constitute substantial and compelling reasons for a departure. K.S.A. 21-4721(d); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). The district court must “state on the record at the time of sentencing the substantial and compelling reasons for the departure.” K.S.A. 21-4716(a). The district court’s comments at the time of sentencing govern as to the reasons for departure. State v. Snow, 282 Kan. 323, 345, 144 P.3d 729 (2006).
Here, there is no significant dispute whether the district court’s findings of fact and reasons justifying Thomas’ departure sentence were supported by substantial competent evidence in the record. The primary issue on appeal is whether the district court’s findings of fact and reasons justifying the departure constitute substantial and compelling reasons for a departure. Whether the facts relied upon by the sentencing court constitute substantial and compelling reasons for a departure is a question of law over which an appellate court has unlimited review. State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).
K.S.A. 21-4716(c)(1) provides a list of nonexclusive substantial and compelling departure factors. The only statutory departure factor discussed by the parties in their briefs as being applicable to this case is found at K.S.A. 21-4716(c)(1)(A): “The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.” The Kansas Supreme Court has ruled that a sentencing court’s use of statutory factors for departure should not be reviewed with greater deference than nonstatutory factors, and nonstatutory departure factors are not subject to stricter scrutiny than those enumerated in the statute. State v. Martin, 285 Kan. 735, 747, 175 P.3d 832 (2008). The only additional requirement for the court’s use of nonstatutory factors to support a departure sentence is that they be consistent with the intent and purposes of the sentencing guidelines. State v. Tiffany, 267 Kan. 495, 506, 986 P.2d 1064 (1999).
At the sentencing hearing, the district court identified only two reasons in justifying Thomas’ dispositional departure: (1) Thomas had no criminal histoiy and (2) M.N.R.’s conduct leading to the offense, specifically her suggestive behavior in wearing only a t-shirt and underwear while watching television with Thomas late at night. The journal entry of sentencing failed to identify Thomas’ lack of criminal history as a departure factor although the district court expressly relied on this factor at the sentencing hearing. The journal entiy of sentencing also included “age of defendant” as one of the reasons for granting the departure. Although the sentencing judge, in his comments from the bench, referred to Thomas as being 19 years old, the judge did not rely on Thomas’ age as a separate reason for granting the departure. As we have previously noted, the district court’s comments at the time of sentencing govern as to the reasons for departure. Snow, 282 Kan. at 345. Therefore, we will not address the additional reason included in the journal entry which was not relied on by the district court at the time of sentencing.
We will first address whether Thomas’ lack of criminal history constitutes a substantial and compelling reason for a departure sentence. In State v. Richardson, 20 Kan. App. 2d 932, 941-43, 901 P.2d 1 (1995), the court upheld a dispositional departure sentence premised on the length of time since the defendant’s last felony conviction. In doing so, however, the court determined that “[a] defendant’s criminal histoiy cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal histoiy into account in determining the presumptive sentence within the grid.” 20 Kan. App. 2d 932, Syl. ¶2.
Thomas cites State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001), abrogated on other grounds by Martin, 285 Kan. 735. In Murphy, the Kansas Supreme Court determined that the defendant’s lack of criminal history, by itself, is not sufficient to justify a departure sentence, but it “could be considered in the overall picture.” 270 Kan. at 807. Stated differently, a defendant’s lack of criminal history, standing alone, is not a substantial and compelling reason for departure because this factor is already taken into account in the sentencing grid. Based upon Richardson and Murphy, we conclude diat Thomas’ lack of criminal history is not sufficient to justify a departure sentence unless there is at least some other factor upon which the court may properly rely.
Based upon the judge’s comments at the sentencing hearing, it appears that the district court’s primary reason for granting the departure sentence was M.N.R.’s conduct leading to the offense. Specifically, the district court relied upon the undisputed evidence that M.N.R. was wearing only a t-shirt and underwear while watching television with Thomas late at night. The district court found this conduct constituted “some sort of sexual suggestion” and indicated that M.N.R. should have been aware of the hormonal makeup of a 19-year-old male such as Thomas. However, the district court stopped short of finding M.N.R.’s conduct as aggressive or that she consented to and participated in Thomas’ criminal conduct.
Determination of whether M.N.R.’s conduct leading to the offense constituted a substantial and compelling reason for departure requires this court to consider two questions. First, was M.N.R.’s conduct sufficient to bring it under the purview of K.S.A. 21-4716(c)(1)(A), i.e., was M.N.R. an aggressor or participant in the crime? Second, if M.N.R.’s conduct did not rise to the level of aggression or participation in the crime, did her conduct constitute a nonstatutory ground for granting a dispositional departure?
Both questions are best answered by reviewing existing Kansas cases. In State v. Minor, 268 Kan. 292, 313, 997 P.2d 648 (2000), the Kansas Supreme Court upheld the district court’s downward durational departure sentence in a conviction for aggravated criminal sodomy because of the victim’s participation and actions lead ing to oral sex. The defendant testified that the victim initiated the oral sex, including preparations therefor. This testimony was corroborated by the investigating officer, who testified that the victim was a willing and active participant, and by a friend of the victim, who testified that the victim stated she wanted to have intercourse with the defendant. The victim also corroborated that the oral sex was consensual. The Supreme Court concluded that the victim was an aggressor or participant in the criminal conduct and that this evidence supported the statutory ground for a departure sentence. 268 Kan. at 311.
State v. Sampsel, 268 Kan. 264, 997 P.2d 664 (2000), is similar to Minor. In Sampsel, the Kansas Supreme Court upheld the district court’s downward durational departure sentence in a conviction for aggravated indecent liberties with a child because of the victim’s participation and actions leading to intercourse. The victim stated that she wanted to have intercourse with the defendant, made advances toward him, and had consensual intercourse according to multiple witnesses. The Supreme Court concluded that the evidence supported the statutory ground that the victim was a participant in the criminal conduct. 268 Kan. at 281.
In State v. Rush, 24 Kan. App. 2d 113, 115, 942 P.2d 55, rev. denied 262 Kan. 968 (1997), the court upheld the district court’s downward durational departure sentence in a conviction for rape of a child under 14 years of age because the victim was a sexual aggressor toward the defendant. The victim was found to be an aggressor because she willingly took her shirt off when asked, made advances towards the defendant, and then willingly had intercourse with him. The court concluded that this evidence supported the statutory ground for a departure sentence. 24 Kan. App. 2d at 115.
Returning to our facts, the district court did not specifically find that M.N.R.’s conduct rose to the level of aggression or participation in the crime. In fact, the district court acknowledged that M.N.R.’s conduct did not amount to aggression. Minor, Sampsel, and Rush all involved instances where the victim actually participated in the sexual conduct and consented to it. At the very least, the cases involved conduct by the victim that was more provocative, aggressive, or participatoiy than merely asking someone to spend the night and then entering the room wearing only a t-shirt and underwear.
If the district court had found that M.N.R. participated in the sexual intercourse and consented to it, K.S.A. 21-4716(c)(1)(A) would likely apply. However, the district court made no such finding, although there was evidence from Thomas to support such a finding. Instead of concentrating on the conflicting testimony concerning whether M.N.R. participated in the sexual intercourse and consented to it, the district court only made findings concerning M.N.R.’s conduct leading to the offense, specifically that M.N.R. was wearing only a t-shirt and underwear while alone with Thomas. We conclude the conduct of M.N.R., as found by the district court, did not rise to the level of aggression or participation required to furnish a substantial and compelling reason for departure under K.S.A. 21-4716(c)(1)(A).
We must next determine whether M.N.R.’s conduct leading to the offense created a substantial and compelling reason to grant a dispositional departure independent of the statute. The use of non-statutory departure factors is permitted provided they are consistent with the intent and purposes of the sentencing guidelines. Tiffany, 267 Kan. at 506.
As we have previously stated, the district court focused on the fact that M.N.R. was wearing only a t-shirt and underwear while watching television with Thomas late at night. The district court categorized this as sexually suggestive behavior and noted that M.N.R. should have been aware of the hormonal makeup of a 19-year-old male such as Thomas. However, the district court made no further findings to support the dispositional departure. There was conflicting evidence as to whether M.N.R. actively participated in the sexual intercourse and consented to it, but the district court never resolved the conflicting evidence.
We are unwilling to conclude that M.N.R.’s behavior in wearing only a t-shirt and underwear while alone with Thomas constitutes a substantial and compelling reason for a departure as a matter of law. Had the district court made specific findings that M.N.R. participated in the sexual intercourse and consented to it, this would have supported a departure sentence. Based upon the record, how ever, we conclude that the district court’s findings of fact do not constitute a substantial and compelling reason to grant a dispositional departure independent of the statute.
Thomas’ case is remanded to the district court for resentencing. Upon remand, the district court must impose a presumptive sentence unless the district court makes additional findings warranting a departure.
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Hill, J.:
In this appeal we must answer the question whether a sentencing court may impose a prison sentence on a defendant whose criminal history score presumptively qualifies him for drug abuse treatment. Randy Wayne Andelt, on parole for a felony in Nebraska, pleaded no contest to possession of methamphetamine in Kansas. His criminal history score placed Andelt in a sentencing category calling for drug abuse treatment. The district court sent him to prison instead. We hold Andelt’s sentence was a proper guidelines sentence because our sentencing statutes do not compel a court to impose a nonprison sentence, even if presumed, when an offender commits a new felony while the offender is on parole. Therefore, we dismiss this appeal because we have no jurisdiction to review the sentence.
The background facts show a plea, a sentence, and an appeal.
Randy Wayne Andelt entered a plea of no contest in Marshall County to one count of possession of methamphetamine, a severity level 4 drug felony, in violation of K.S.A. 65-4160(a). The district court accepted Andelt’s plea. In March 2007, the court passed sentence on Andelt.
At the sentencing hearing, both sides agreed that Andelt’s criminal history score was E. Under this classification, Andelt’s offense placed him in a 4-E grid block of the sentencing guidelines for drug crimes. This qualified him for a nonprison sanction of certified drug treatment under Senate Bill 123. Despite this qualification, the sentencing court declined to impose the nonprison sentence. The sentencing court, citing K.S.A. 21-4603d(f), sentenced Andelt to the standard prison term of 20 months, with a postrelease supervision term of 12 months. The court reasoned that Andelt’s extensive criminal histoiy, and the fact he was on parole from a Nebraska felony conviction when he committed this crime, required a prison sanction.
On appeal, Andelt argues the district court erred when it declined to sentence him to a nonprison sanction of drug abuse treatment under Senate Bill 123 as provided by K.S.A. 21-4729.
We look at statutory exceptions found within the sentencing guidelines.
From time to time our Kansas Legislature will compress new laws that affect several existing statutes into one large bill. Such a bill is Senate Bill 123, passed in 2003. It is comprised of 11 sections and amends several statutes. L. 2003, ch. 135, sec. 1. Section 1 of Senate Bill 123, which became K.S.A. 2003 Supp. 21-4729, sets up a nonprison sanction of certified drug treatment for certain offenders who are sentenced on or after November 1, 2003. See State v. Bee, 39 Kan. App. 2d 139, 143, 179 P.3d 466, aff'd 288 Kan. 733, 207 P.3d 244 (2009); L. 2003, ch. 135, sec. 1.
The law limits this nonprison sanction to qualifying adult offenders. They must be convicted of a violation of K.S.A. 65-4160 or 65-4162, and their offense and criminal history score must place them in sentencing grid blocks 4-E, 4-F, 4-G, 4-H, or 4-1 on the drug crime sentencing grid. Plus, the offender must have no felony conviction for a violation of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163, or 65-4164. See K.S.A. 21-4729(a)(1). If the offender meets all these requirements, K.S.A. 21-4729(c) states that “[t]he sen tencing court shall commit the offender to treatment in a drug abuse treatment program until determined suitable for discharge by the court but the term of treatment shall not exceed 18 months.” (Emphasis added.)
In its entirety, K.S.A. 21-4603d(n) reads:
“(n) Except as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in addition to any of the above, for felony violations of K.S.A. 65-4160 or 65-4162, and amendments thereto, the court shall require the defendant who meets the requirements established in K.S.A. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program., as provided in K.S.A. 2007 Supp. 75-52,144, and amendments thereto, including but not limited to, an approved after-care plan. If the defendant fails to participate in or has a pattern of intentional conduct that demonstrates the offender’s refusal to comply with or participate in the treatment program, as established by judicial finding, the defendant shall be subject to revocation of probation and the defendant shall serve the underlying prison sentence as established in K.S.A. 21-4705, and amendments thereto. For those offenders who are convicted on or after the effective date of this act, upon completion of the underlying prison sentence, the defendant shall not be subject to a period of postrelease supervision. The amount of time spent participating in such program shall not be credited as service on the underlying prison sentence.” (Emphasis added.)
A careful reading of the statute reveals exceptions to K.S.A. 21-4729’s mandatoiy imposition of the drug abuse treatment program. According to the first sentence of K.S.A. 21-4603d(n), those exceptions are (1) K.S.A. 21-4705(f) and (2) all subsections previous to subsection (n) contained in K.S.A. 21-4603d. The latter exception is interpreted from subsection (n)’s use of the phrase “in addition to any of the above,” which is found throughout K.S.A. 21-4603d to refer to the statute’s other subsections. See K.S.A. 21-4603d(b)(1) (“[i]n addition to or in lieu of any of the above”); K.S.A. 21-4603d(c) (“[i]n addition to or in lieu of any of the above”); K.S.A. 21-4603d(d) (“[i]n addition to any of the above”); and K.S.A. 21-4603d(i) (“[i]n addition to any of the above”). Thus, in reading tire text of K.S.A. 21-4603d(n), it is reasonable to conclude the legislature intended for exceptions to K.S.A. 21-4729, which include K.S.A. 21-4603d(f).
Criminal statutes must be strictly construed in favor of the accused. “Any reasonable doubt regarding the meaning of the statute is resolved in favor of the accused. Nevertheless, judicial interpretation must be sensible and reasonable to effect the legislative design and intent. [Citation omitted.]” State v. Snow, 282 Kan. 323, 340, 144 P.3d 729 (2006).
The intent of the legislature here is clear. K.S.A. 21-4603d(f) states a sentencing court is not required to impose a nonprison sentence, even if such a sentence is presumed, in certain circumstances. Those circumstances are described in the statute. K.S.A. 21-4603d(f)(1) provides:
“When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” (Emphasis added.)
The sentencing court did not commit reversible error when it obeyed K.S.A. 21-4603d(f) and sentenced Andelt to the guidelines prison term for his crime. Contrary to Andelt’s argument, there is no conflict between K.S.A. 21-4603d(f) and K.S.A. 21-4729. K.S.A. 21-4603d(n) was also a part of Senate Bill 123. The law provides exceptions to the compulsory imposition of a nonprison drug treatment program described in K.S.A. 21-4729. Further, K.S.A. 21-4603d(n)’s use of the phrase “in addition to any of the above” shows the legislature’s intent for K.S.A. 21-4603d(f) to be one of those exceptions.
Therefore, this court lacks jurisdiction to further review the sentence imposed. After all, imposition of a prison sentence for the new crime does not constitute a departure. See K.S.A. 21-4603d(f). K.S.A. 21-4721(c)(1) directs that the appellate court must not review any sentence that is within the presumptive sentence for the crime.
We need not analyze Andelt’s second issue complaining about the court imposing a term of postrelease supervision. K.S.A. 22-3717(d)(1)(C) mandates that “persons sentenced for . . . drugse verity level 4 crimes must serve 12 months, plus the amount of good time earned and retained pursuant to K.S.A. 21-4722, and amendments thereto, on postrelease supervision.”
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Hill, J.:
This is an appeal in a whistle-blower case. The Kansas Department of Revenue appeals a ruling by the district court refusing to order the Kansas Civil Service Board to consider awarding attorney fees to the Department. The Department sought attorney fees as a sanction against Jill Powell for what it viewed as a frivolous appeal to the Civil Service Board. The Civil Service Board ruled in the Department’s favor but did not grant attorney fees because of the chilling effect such an award might have on future whistle-blowers. In turn, the district court agreed. In Kansas, the courts give great deference to an administrative agency’s interpretation of a statute, such as the Civil Service Board’s ruling here. Because the legislature has granted the Civil Service Board total discretion to award attorney fees to either the government employee or em ployer in these whistle-blower cases, we hold the Civil Service Board has simply exercised its discretion to not grant fees. We will not alter its ruling in this appeal and, therefore, affirm.
On November 7, 2006, the Civil Service Board entered a default order in favor of the Kansas Department of Revenue in an appeal from their action of suspending and dismissing Jill Powell. Powell walked out of the hearing on her claims, so the Civil Service Board had no choice but to rule in favor of the Department. As the prevailing party, the Department sought attorney fees under K.S.A. 2007 Supp. 75-2973(f), which allows the Civil Service Board to award attorney fees to the prevailing party in a whistle-blower case. The Civil Service Board denied the motion for attorney fees. The Department appealed to the district court, which found the Civil Service Board had discretion in awarding attorney fees under K.S.A. 2007 Supp. 75-2973(f).
The Department asks us to review the Civil Service Board’s interpretation of K.S.A. 2007 Supp. 75-2973(f). That law provides that in a case involving a whistle-blower claim, the Civil Service Board “may award the prevailing party all or a portion of the costs of the proceeding before the Civil Service Board, including reasonable attorney fees and witness fees.” (Emphasis added.) A-though admitting the statute allowed for the award of attorney fees to a governmental employer, the Civil Service Board refused to award attorney fees to the Department because of the chilling effect such an award would have on future appeals to the Civil Service Board.
The scope of this court’s review of an agency decision is found in K.S.A. 77-621(a)(1), which places the burden of proving the invalidity of the agency’s action on the party asserting invalidity. K.S.A. 77-621(c) further limits this court’s ability to grant relief. In this case, this court has the ability to grant relief under K.S.A. 77-621(c)(4) since the Department is challenging the Civil Service Board’s interpretation and application of law.
While statutoiy interpretation is a question of law, special rules apply when this court reviews an administrative agency’s interpretation of a law. 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 take 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).
Before 1998, the statute allowed the Civil Service Board to award attorney fees to an officer or employee who sued an employer for a violation. K.S.A. 1997 Supp. 75-2973(g). Then, in 1998, the statute changed to its current form, which allows the Civil Service Board to award the prevailing party attorney fees. K.S.A. 1998 Supp. 75-2973(f). This change implies a change in the legislature’s intent to now allow attorney fees to both employees and employers. The legislature is presumed not to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006).
The Department of Revenue asks us to adopt the rule established by the United States Supreme Court in Fogerty v. Fantasy, Inc., 510 U.S. 517, 127 L. Ed. 2d 455, 114 S. Ct. 1023 (1994), a copyright case. In Fogerty, the Court held that prevailing plaintiffs and defendants were to be treated alike under 17 U.S.C. § 505, a statute providing discretionary authority to award attorney fees to the prevailing party. 510 U.S. at 534. In doing so, the Court specifically rejected the “dual standard” (different standard for plaintiffs and defendants) that had been applied to a provision of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5[k]) and in copyright cases by some appellate circuits even though both statutes used similar language to allow a court to award attorney fees to the prevailing party. 510 U.S. at 520-23, 534.
We decline the invitation to adopt such a rule as set out in Fogerty. Simply put, disputes over royalties do not compare with the claims of whistle-blowers in an employer/employee relationship. The employer has real power over the employee, while the relationship between the owner of a copyright and one who owes royalties is a commercial owner/debtor matter. Employees can be downgraded and fired for whistle-blowing. In the copyright case, money is either owed or not owed.
While the plain language of the statute precludes the Civil Service Board from automatically excluding employers, it does not preclude the Civil Service Board from exercising its discretion by leaning in favor of denying employers’ attorney fees on close calls. The potential chilling effect that could be caused by allowing attorney fees against employees in whistle-blower appeals is a legitimate concern for the Civil Service Board — the only agency given the responsibility of enforcing the whistle-blower law. If tire legislature wanted to require the Civil Service Board to consider attorney fees in every case or in some way that is not as a matter of the Civil Service Board’s discretion, the legislature could have dictated such. We view the actions of the Civil Service Board to be a reasonable exercise of its discretion.
Affirmed. | [
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Marquardt, J.:
James E. Martin appeals the denial of workers compensation benefits. We affirm.
Martin began working for Case New Holland (CNH) in 1987. In 2002, he began assembly work which required getting underneath cars on a creeper, bending, getting on his knees, twisting, turning, squatting, and stooping. Martin began to notice right hip problems in May 2004. Martin was unsure whether the pain was work-related and recalled no specific incident of injury. After visiting several doctors, Martin was eventually diagnosed with avascular (or aseptic) necrosis of both hips and received hip replacements in March and April 2005. Martin was off work from . February 2005 to May 2005. When he returned to work, he resumed the tasks and responsibilities of his job.
Dr. Daniel Zimmerman testified that Martin’s work activity did not appear to be a contributing cause of his avascular necrosis. He indicated a lack of adequate evidence to state within a reasonable degree of medical probability the existence of a causal relationship between Martin’s work activity and the development of his avascular necrosis. Even though Dr. Zimmerman indicated that Martin’s repetitive work activity could have aggravated the condition, he stated that the condition described by Martin could also have been aggravated by activities outside of work.
Dr. Zimmerman assessed Martin’s permanent partial impairment of the body as a whole at 44 percent. Dr. Zimmerman admitted that Dr. Paul Stein’s reports were based on research of tire disease, while Dr. Zimmerman did not review or research literature about the disease.
Dr. Stein conducted an independent medical examination of Martin. Dr. Stein concluded that Martin’s condition was caused by cigarette use. Dr. Stein stated that any effect of work activity on Martin’s condition was relatively minor. In terms of causation, he estimated that the disability was 90 percent disease-related and 10 percent work-related.
When asked if 90 percent of Martin’s condition was the result of the natural progression of the disease of avascular necrosis, Dr. Stein replied, “[A]t least, if not 100 percent. Once the avascular necrosis starts, it basically goes on to the Nth stage no matter what you do.” Dr. Stein testified that avascular necrosis involves a deteriorating process that is much more rapid than degenerative diseases and progresses under any circumstance. Even Martin’s daily activities would aggravate the condition. In fact, Martin himself testified that he had difficulty moving while walking, bending, or stooping, regardless of whether he was at work or not. Dr. Stein stated that even though Martin’s work activities may have caused pain and discomfort, it would not accelerate the process of necrosis or be any more harmful than other activities, but that it may have aggravated his symptomology.
Dr. Pat Do, after an examination of Martin, stated that Martin’s condition was not likely caused by his work. Dr. Do testified that Martin’s condition resulted from alcohol and cigarette use and the natural aging process. Dr. Do’s report stated that “the job duties of the patient could have aggravated the underlying condition of avascular necrosis.” Dr. Do agreed that standing, walking, bending, and squatting could aggravate the condition, whether done at work or outside of work. Dr. Do also estimated that Martin’s disability was 90 percent preexisting and 10 percent work-related. Dr. Do stated that although work may have aggravated the condition, it was highly unlikely to have caused it.
The administrative law judge (ALJ) denied Martin’s claim for workers compensation. Based on the testimony of Drs. Stein and Do, the ALJ concluded that Martin’s condition was not caused by his employment, but rather by tobacco, alcohol, and steroid use, the aging process, and normal daily activities. The ALJ found that the term “aggravate” as used by the doctors referred to an increase in symptomatology, not a change in the physical structure of the body. The ALJ held that Martin failed to meet his burden of proof.
The ALJ’s decision was affirmed by the Workers Compensation Board (Board). The Board held that Martin failed to prove that (1) if he had not been employed with CNH, he would not be equally injured; (2) by the greater weight of evidence, Martin’s work activities aggravated and accelerated his condition beyond that caused by the natural aging process and normal daily activities; and (3) Martin’s injuries arose out of his employment with CNH.
The Board’s determination is a negative finding. Our standard of review for a negative finding of fact is that the party challenging the finding must prove arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997).
However, the Board’s decision ultimately turned on its interpretation of an “injury.” In making this decision, the Board relied on the terminology of K.S.A. 2006 Supp. 44-508(e), which defines an injury as:
“[A]ny lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living.”
The Board made this decision even though there was no dispute among the testifying doctors that work aggravated Martin’s condition to some extent. In essence, the Board interpreted the statute to mean that a “change in the physical structure of the body” does not include minor work-related aggravations that contribute to increased symptomatology if the increase is primarily or equally caused by the aging process or normal activities. Martin argues that all the experts agreed his work activity contributed to aggravate his condition; therefore, the injury is compensable.
When the facts in a workers compensation case are not disputed, the question is whether the Board correctly applied those facts to the law, which the appellate court reviews de novo. Martinez v. Excel Corp., 32 Kan. App. 2d 139, 142, 79 P.3d 230 (2003). Whether an injury is compensable is a question of law over which an appellate court exercises unlimited review. Coleman v. SwiftEckrich, 281 Kan. 381, 383, 130 P.3d 111 (2006). Moreover, when this court reviews an agency’s interpretation of a statute, the correct standard of review is de novo. Fieser v. Kansas State Bd. of Healing Arts, 281 Kan. 268, 270, 130 P.3d 555 (2006).
“Interpretation of a statute raises a question of law subject to unlimited appellate review. [Citation omitted.] Under the doctrine of operative construction, an administrative agency’s interpretation of a statute it is charged with enforcing is entitled to judicial deference in certain circumstances. [Citations omitted.] . . . However,‘[t]he final construction of a statute [always] rests within the courts.’ [Citations omitted.]” 281 Kan. at 270.
Thus, whether Martin’s disability resulted from an “injury” under K.S.A. 2006 Supp. 44-508(e) is a question of law which this court reviews de novo.
As a general rule, aggravation of a preexisting physical condition is compensable in a workers compensation action where the injury arose out of and in the course of employment. Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 738, 504 P.2d 625 (1972). K.S.A. 2006 Supp. 44-501(c) states that an employee “shall not be entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.” (Emphasis added.)
When dealing with preexisting conditions that are aggravated by work duties, the test is not whether the injury causes the condition, but whether an injury aggravates or accelerates the condition. Claphan v. Great Bend Manor, 5 Kan. App. 2d 47, 49, 611 P.2d 180, rev. denied 228 Kan. 806 (1980). In the instant case, all three doctors testified that Martin’s condition was aggravated, so that it became symptomatic; two doctors estimated 90 percent of this aggravation was due to other factors, while 10 percent was due to work.
The evidence failed to indicate that Martin’s work activities increased his disability, as opposed to merely aggravating his symptomatology, as required by K.S.A. 2006 Supp. 44-501(c).
The Claphan case illustrates the distinction between mere aggravation of symptoms and actual change in physical condition. In that case, the claimant, who had a preexisting tumor, sustained a back injury while working as a nurse’s aide. This court stated, “[T]he test is not whether the tumor was caused by the injury, but whether the condition was aggravated or accelerated by the injury.” 5 Kan. App. 2d at 51. The court awarded full disability benefits, holding that where a preexisting condition is aggravated by an accidental injury arising out of and in the course of employment, a claimant is entitled to compensation for the entire disability without apportionment. 5 Kan. App. 2d at 51-52.
The key distinction between Claphan and the instant case is that Claphan sustained a specific identifiable injury that was directly tied to her job. Martin claimed no specific injury.
Additionally, it should be noted in the context of Claphan and other cases cited, that prior to 1993, K.S.A. 44-508(e) did not include the phrase, “An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living.” See L. 1993, ch. 286, sec. 28.
In Boeckmann, the court held: “[Wjhile the bending, stooping and twisting required by claimant’s job aggravated the arthritic process already existing in his hips, these episodes did not amount to miniature accidental accidents, but that the simple everyday acts of living were as much to blame for claimant’s condition as was his work.” 210 Kan. at 734. Boeckmann was unable to point to a specific job-related incident that aggravated his preexisting condition. The court focused on its belief that such symptoms would have similarly occurred off the job. Although acknowledging that the claimant was “disabled from doing strenuous labor,” the court stressed that the disease and symptoms would have progressed regardless of what the claimant was doing. 210 Kan. at 734, 738. Boeckmann is highly persuasive in evaluating Martin’s case.
Similarly, a panel of this court denied compensation even though a claimant with prior back problems sustained a specific, identifiable injury, where the claimant was found to have encountered a “personal risk” not'related to his employment. See Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 300, 615 P.2d 168 (1980). Our court noted, “Considering the history of claimant’s back problems, it is obvious that almost any everyday activity would have a tendency to aggravate his condition, i.e., bending over to tie his shoes, getting up to adjust the television, or exiting from his own truck while on a vacation trip.” 5 Kan. App. 2d at 300.
Martin cites Baggett v. B & G Construction, 21 Kan. App. 2d 347, 900 P.2d 857 (1995), for support; however, the claimant in Baggett was awarded compensation after an assault by a coworker caused the claimant to fall into a hole located on the job site. Baggett did not deal with the aggravation of a preexisting condition, but addressed whether an assault stemming from personal, non-work-related matters is compensable when a hazard of the job site causes ultimate injury.
As pointed out by CNH, some of this decision rests on public policy grounds. It would breed inefficiency to allow workers with preexisting conditions such as cancer, respiratoiy disease, muscle and joint disease, and similar conditions to place the burden of their personal health care expenses on employers. Although compensation seems necessary when work conditions directly accelerate or aggravate these diseases, it is less warranted when the symptoms encountered would have occurred regardless of whether tlie claimant was so employed. Workers compensation should be reseived for persons who are injured on the job due to hazards specifically associated with that particular work, not for persons who come to an employer with a preexisting disease and suffer the inevitable consequences of that disease while they happen to be at work.
Martin did not suffer an injury that arose out of his employment with CNH. Therefore, the Board did not err in denying Martin’s request for workers compensation benefits.
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Greene, J.:
Graceland College Center for Professional Development and Lifelong Learning, Inc., d/b/a SkillPath (hereafter referred to as SkillPath), appeals the decision of the Board of Tax Appeals (BOTA) that SkillPath does not qualify as an “educational institution” under K.S.A. 2007 Supp. 79-3602(1) and, therefore, is not entitled to an exemption from Kansas sales tax pursuant to K.S.A. 2007 Supp. 79-3606(c). Concluding that BOTA erred in its interpretation and application of the statutes, we reverse.
Factual and Procedural Background
SldllPath is a not-for-profit corporation located in Mission, Kansas, and is wholly owned by Graceland University, a liberal arts college located in Iowa. Graceland University is a member of the North Central Association of Colleges and Schools (NCA), a nongovernmental, voluntary, educational organization that accredits more than 9,000 public and private schools located primarily in the Midwest. SldllPath is not a member of the NCA.
SkillPath offers 1- to 2-day seminars throughout the United States and abroad — -including Kansas — -which focus on various subjects, including business management, computer technology, human resources, education, accounting, and others. SkillPath does not grant degrees, but all of the seminars are above 12th-grade level, and none of them are considered remedial in nature. The seminars are held in rented conference centers, hotels, and meeting rooms, and they are scheduled from time to time based on a projection of demand at the location, from every 4 months to every 2 years. Some of SkillPath’s seminars qualify for college credit through Graceland University.
In 1999, SkillPath requested and was granted an exemption from the Kansas Retailers’ Sales Tax pursuant to K.S.A. 79-3606(c) because it was an education institution. In 2004, the Kansas Depart ment of Revenue (KDOR) conducted a review of sales tax exemptions it had previously granted in order to ensure that those exemptions had been granted in accordance with state law. During this review, KDOR concluded that SkillPath did not qualify as an educational institution because SkillPath was not accredited by, or a member of, the NCA, a requirement that KDOR believed was prescribed by the statute. Accordingly, KDOR sent a letter to SkillPath informing it that its sale tax exemption would be revoked.
SkillPath timely appealed KDOR’s decision to revoke its tax exemption, and KDOR issued a final determination upholding its initial decision. SkillPath then filed a timely notice of appeal to BOTA. After an evidentiary hearing, BOTA interpreted K.S.A. 2007 Supp. 79-3602(1) as requiring an entity to conduct regular classes at uniform intervals and provide courses of study leading to a degree in order to qualify as an educational institution. BOTA concluded that SkillPath did not conduct its classes in a regular manner; and because SkillPath was not a degree-granting institution, BOTA concluded that it did not offer courses of study. Therefore, based on these findings, BOTA concluded that SkillPath did not qualify as an educational institution under K.S.A. 2007 Supp. 79-3602(1) and, as a result, was not exempt from paying sales tax under K.S.A. 2007 Supp. 79-3606(c).
After SkillPath’s petition to BOTA for reconsideration was denied, SkillPath filed a timely notice of appeal with this court.
Standards of Review
BOTA orders are subject to review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. In re Tax Appeal of Sprint Communications Co., 278 Kan. 690, 694, 101 P.3d 1239 (2004).
K.S.A. 77-621(c)(4) mandates this court to grant relief to SkillPath if the court determines that BOTA and KDOR erroneously interpreted or applied the law. “Whether an agency has erroneously inteipreted or applied the law. . . is a question of law over which an appellate court’s review is unlimited.” In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d 947 (1996).
In In re Tax Exemption Application of Central Illinois Public Services Co., 276 Kan. 612, 616, 78 P.3d 419 (2003), the Supreme Court stated:
“When construing tax statutes, statutes that impose the tax are to be construed strictly in favor of the taxpayer. Tax exemption statutes, however, are to be construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. [Citation omitted.]”
Despite the need for strict construction of tax exemption statutes, strict construction does not warrant unreasonable construction. In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 904-05, 47 P.3d 1275 (2002).
In tax appeal matters, our review of statutory interpretation is unlimited, and we apply the same general rules as we do in other contexts. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77-78, 150 P.3d 892 (2007).
“The interpretation of a statute is a question of law over which [an appellate] court has unlimited review. The fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” 283 Kan. at 77.
Appellate courts normally give some deference to BOTA decisions:
“ ‘BOTA is a specialized agency and is considered to be the paramount taxing authority in this state. [Citation omitted.] BOTA is a specialized agency that exists to decide taxation issues. [Citation omitted.] Its decisions are given great weight and deference when it is acting in its area of expertise. [Citation omitted.] The party challenging BOTA's decisions has the burden to prove that the action taken was erroneous.’ [Citation omitted.]” In re Tax Appeal of Sprint, 278 Kan. at 694-95 (quoting In re Tax Appeal of Colorado Interstate Gas Co., 276 Kan. 672, 682-83, 79 P.3d 770 [2003]).
The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. Winnebago Tribe, 283 Kan. at 70. Although an appellate court gives deference to an agency’s interpretation of a statute, the final construction of a statute lies with the appellate court. Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007).
Did BOTA Err in Interpreting and Applying K.S.A. 2007 Supp. 79-3602(1) for Purposes of K.S.A. 2007 Supp. 79-3606(c)P
The operative statutes
SkillPath argues that BOTA erred in its interpretation and application of the applicable statutes, and particularly the statutory definition of “educational institution.” From 1999 to 2004, KDOR had exempted SkillPath from payment of sales tax under K.S.A. 2007 Supp. 79-3606(c), which provides the following sales shall be exempt from taxation:
“[A]ll sales of tangible personal property or services, including the renting and leasing of tangible personal property, purchased directly by a public or private elementary or secondary school or public or private nonprofit educational institution and used primarily by such school or institution for nonsectarian programs and activities provided or sponsored by such school or institution or in the erection, repair or enlargement of buildings to be used for such purposes. The exemption herein provided shall not apply to erection, construction, repair, enlargement or equipment of buildings used primarily for human habitation.”
In determining whether an entity is eligible for this exemption as an “educational institution,” the operative statute is K.S.A. 2007 Supp. 79-3602(1), which provides in relevant part:
“ ‘Educational institution’ means any nonprofit school, college and universiiy that offers education at a level above the twelfth grade, and conducts regular classes and courses of study required for accreditation by, or membership in, the North Central Association of Colleges and Schools.”
This definition has not been amended since it became effective on July 1, 1998, see L. 1998, ch. 130, sec. 29(s), and our appellate courts have not had an opportunity to interpret and apply the provision.
The BOTA Rationale
BOTA concluded that SkillPath did not qualify for exemption, reasoning as follows:
“After examining the evidence provided both in Joint Exhibit 1 and the testimony, the Board finds that the Applicant, SldllPath, does not conduct regular classes. The classes are provided on an as needed basis and do not occur with any degree of regularity. ‘Regular’ as defined in Webster’s Ninth New Collegiate Dictionary (1988) is ‘recurring, attending, or functioning at fixed or uniform intervals.’ The testimony of Mr. Braymer indicates that SkillPath does repeat its class offerings, but that the repetition does not occur at fixed or uniform intervals. Instead, the repetition is based on the demand for that particular, class.
“Furthermore, the evidence shows that SkillPath does not have a course of study. See also, Graceland College v. Department of Revenue (654 N.W.2d 779, 783 (S.D. 2002). SkillPath is not a degree-granting institution. Some college credit is granted to SkillPath classes through Graceland University; however, most customers of SkillPath are not looking for a college degree. The individual classes offered generally do not lead to any ultimate conclusion outside of themselves.
“Therefore without regular classes and conducting a regular course of study, SkillPath does not meet the definition of ‘educational institution.’ As such it can not qualify for a sales tax exemption under K.S.A. 2005 Supp. 79-3606(c). The Board therefore finds that the Department’s determination was correct that SkillPath does not qualify for an exemption from sales tax pursuant to K.S.A. 2005 Supp. 79-3606(c).”
The Evidence Before BOTA
SkillPath initially offered the testimony of Chad Daniel Braymer, executive vice president for operations, who characterized the mission of SkillPath as “to provide lifelong learning opportunities for adults throughout the country [and] world.” Braymer also generally described the course content of SkillPath. He referred to the quarterly course catalog in explaining that courses would be offered in different locations with some degree of regularity, depending on demand in each location. He also explained the relationship between Graceland University (an accredited member of the NCA) and SkillPath, including the manner and extent to which credit at Graceland University may be given for successful completion of certain courses through SkillPath.
SldllPath also offered the testimony of Dr. Kathleen Clauson, executive assistant to the president for institutional research and accreditation at Graceland University. Clauson testified that she was responsible for maldng sure Graceland University maintained all of its accreditations. Clauson also stated that she was a member of the NCA consultant evaluator corps, a group of individuals that assess whether colleges and universities are meeting NCA accreditation standards. Clauson testified that as a consultant evaluator, one of her areas of expertise is determining whether the content of a particular course meets NCA standards.
With due respect to our dissenting colleague, we believe the record is quite clear that there are NCA standards for course content and that those standards were met by the courses offered by SkillPath. Formal accreditation may involve this and other elements, but the Clauson testimony clearly specifies that there are formal standards with respect to course content. As an example, Clauson testified:
“Q. Does NCA have quality standards? I mean, are there standards that you, as an evaluator, would be looking for to insure that course work — that the course content meets NCA standards?
“A. Yes.
“Q. . . . With respect to those standards, did you apply those standards to the evaluation of the 43 classes that we’re talking about?
“A. Yes, I did.
“Q. All right. And what’s your opinion as to whether or not these classes met the standards with respect to course content, the courses?
“A. They did.
“Q. That they did meet the NCA standards?
“A. Yes.
“Q. And do they meet the NCA standards today?
“A. Yes.” (Emphasis added.)
There is no question that Clauson, as an expert in NCA accreditation standards, was able to apply specific NCA standards to course content, separate and apart from the larger question of accreditation of the institution.
Clauson testified that Graceland University offered credit to people who participated in certain seminars put on by SkillPath and that those seminars met NCA standards. Clauson stated that Graceland University would not sacrifice its reputation or NCA accreditation by awarding credit for classes that did not meet NCA standards. In addition to reviewing the seminars that were eligible for college credit at Graceland, Clauson reviewed 43 other seminars that SkillPath offered and found that they all met the NCA’s standards for course content. Clauson stated that her conclusion was shared by another consultant evaluator who had reviewed the 43 courses.
Clauson also stated that it does not matter, under NCA accreditation standards, whether a class is taught in a 2-day session or whether it was broken up into multiple sessions over a long period of time. Furthermore, Clauson stated that whether someone can receive college credit for participating in a course does not matter; the course itself (regardless of whether credit is issued) must meet NCA standards. Regarding her conclusions in connection with eligibility for NCA accreditation of SkillPath’s courses, Clauson testified:
“Q. And those conclusions again were?
“A. That Graceland . . . [SkillPath] is indeed an institution of higher learning providing the quality of learning that we need to provide.
“Q. For NCA Standards?
“A. Yes.
“Q. And specifically with respect to course content, correct?
“A. With respect to course content, yes.
“Q. All right. You’re not opining to the Board that if tomorrow NCA showed up at SldllPath’s doorstep, that they would give SkillPafh NCA accreditation, are you?
“A. No. It’s a two-year accreditation process for any institution. . . . [The] NCA would . . . send a team to SkillPath to consult with them and tell them what they [would] need to do over the two years to become accredited ....
“Q. And there are many different factors that that team would look at. Correct?
“A. Yes.
“Q. And what your focus has been, and your opinion to this Board has been strictly on whether the course content and the courses dremselves meet the NCA standards.
“A. Correct.
“Q. And whether those classes are regularly taught, whether that meets the NCA standards. Is that correct?
“A. Right.”
KDOR did not offer any evidence to contradict Clausoris testimony about the classes and courses conducted by SkillPath or whether they conform to NCA accreditation standards.
Interpretation and Application of the Statutorg Language
KDOR interpreted the definition of “educational institution” in K.S.A. 2007 Supp. 79-3602(1) as requiring SkillPath, if it desired to be exempt from paying sales tax, to meet four requirements: (1) offer education above the 12th grade, (2) conduct classes that are offered at set intervals, (3) offer courses of study that will lead to a degree, and (4) be accredited by, or be a member of, the NCA. We disagree; the plain language of the statute simply does not support this interpretation. For purposes of this appeal, K.S.A. 2007 Supp. 79-3602(1) states in pertinent part:
“ ‘Educational institution’ means any nonprofit school, college and university that offers education at a level above the twelfth grade, and conducts regular classes and courses of study required for accreditation by, or membership in, the North Central Association of Colleges and Schools.” (Emphasis added.)
Is Accreditation or Membership a Statutory Requirement?
The plain and unambiguous language of statute clearly indicates that for an entity to qualify as an educational institution, it must meet only three requirements. First, the entity must be a nonprofit school, college, or university. Second, the institution must offer an education at a level above the 12th grade. Third, the entity must conduct regular classes and courses of study required for accreditation by, or membership in, the NCA. Stated another way, the third test is that the entity conduct regular classes and courses of study that meet NCA accreditation standards. The plain language of the statute does not require the entity itself to be accredited by, or be a member of, the NCA. Although the lack of NCA accreditation or membership was KDOR’s principal basis for the sales tax exemption denial, we note that BOTA did not rely on that interpretation of the statute, and we agree with this aspect of BOTA’s decision.
K.S.A. 2007 Supp. 79-3602(1) does not require an entity seeking to qualify as an educational institution to be a accredited by, or be a member of, the NCA. If the legislature sought to make NCA accreditation or membership a requirement under K.S.A. 2007 Supp. 79-3602(1), it could have simply stated in plain language that accreditation or membership was a requirement. In fact, our review of other statutes in the context of education reveals that the legislature is quite familiar with such a requirement. See K.S.A. 2007 Supp. 8-1,142(a)(3) (defining “educational institution” as any not-for-profit independent institution of higher education which is accredited hy the NCA); K.S.A. 2007 Supp. 72-11a03(f) (defining “accredited independent institution” as an “institution of postsecondaiy education” accredited by the NCA); K.S.A. 72-6509 (requiring Washburn University to he a member of the NCA in order to receive state grants); K.S.A. 2007 Supp. 74-32,120(f) (making NCA accreditation a requirement for a “Kansas educational institution”). We are unwilling to impose any requirement of accreditation or membership where the plain language requires something less.
Is the Third Statutory Requirement Subject to Divisible and Multiple Independent Elements?
We disagree with BOTA, however, in breaking down a singular requirement and applying independent standards to the phrase “conducts regular classes and courses of study required for accreditation by, or membership in, the [NCA]” in K.S.A. 2007 Supp. 79-3602(1). This statutory phrase simply cannot be broken down into three, distinct elements. The language of the operative phrase clearly indicates that the third requirement is to be read as one unified element that an entity must meet in order to qualify as an educational institution. The question is whether the entity conducts regular classes and courses of study required for accreditation by or membership in the NCA.
The statutory focus is on the classes and courses of study conducted; if an entity’s classes and course offerings meet the required NCA accreditation standards, then the entity satisfies the third requirement of K.S.A. 2007 Supp. 79-3602(1). The language of statute simply does not allow an independent determination whether an entity’s classes are being conducted “regularly enough” or whether tire entity’s course offerings meet some other standards. The legislature, by crafting K.S.A. 2007 Supp. 79-3602(1) in the way that it did, made the NCA accreditation standards the guidelines for making such a determination. BOTA’s interpretation of the statute distorts the clear language and punctuation readily found in the statute, something we are prohibited from doing. See In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (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.”).
Does “Regular” Imply Uniform Time Intervals for Offering Courses?
Moreover, we respectfully disagree with BOTA on its apparent interpretation of the term “regular” in this context. BOTA cited a dictionary definition which implies that the term necessarily has time implications; this definition is but one of several definitions of regular. More appropriate to this context is the principal definition of the term as “formed, built, arranged, or ordered according to some established rule, law, principle, or type” with preferred synonyms of “normal, typical, natural: regular may imply conformity to a prescribed rule, standard, or established pattern.” Webster’s Third New International Dictionary 1913 (1986). When the term “regular” is understood in this manner, it supports our view that the phrase “regular classes and courses of study” is modified by the phrase “required for accreditation by, or membership in, the [NCA]” in K.S.A. 2007 Supp. 79-3602(1). That is, the term “regular” simply implies that the classes or courses offered must conform to NCA accreditation standards.
This conclusion as to the term “regular” is consistent with the use of the term elsewhere in statutes from the education context. At the outset, we note that the legislature did not speak with terminology that clearly implies some time requirement or intervals as to course offerings, and it certainly could have done so by employing other language, such as “with regularity” or “on a regular basis.” Instead, the term “regular” is generally employed to indicate some conformance to a norm, especially when used in statutes within the general context of education. See, e.g., K.S.A. 2007 Supp. 46-1131(d)(3) (cost study for regular elementary and secondary education as required by law); K.S.A. 2007 Supp. 72-986(1)(2) (classifying eligibility for services in part based on graduation from secondary school with a regular diploma); K.S.A. 2007 Supp. 72-1111(f) (exemption from compulsory school for certain religious organizations that object to a “regular” public high school education); K.S.A. 2007 Supp. 72-11a03(a) (classifying certain students by demonstration of ability to benefit from participation in the regular curricula of eligible postsecondary education institutions); K.S.A. 72-4159 (defining textbooks purchased by nonpublic schools as regular adopted textbooks); K.S.A. 2007 Supp. 72-4526(c) (establishing teacher authority in adult education programs as same as exercised in regular school instruction); K.S.A. 72-53,111(a) (excluding requirement for providing to some persons education in a regular school setting); K.S.A. 72-8223(b) (directing payment of tuition received from federal funds for attendance of children at school in regular educational programs). We conclude the term regular within the statutory phrase simply means that the classes and courses of study are not out of the ordinary and conform to the NCA accreditation standards.
Even if we were to adopt BOTA’s interpretation of regular as relating to time or uniform intervals, the record is replete with substantia] competent evidence of such “regularity.” The fact that courses are offered and conducted in a manner to meet demand does not distinguish SkillPath from any other institution of higher learning. As shown by Braymer’s testimony, it is undeniable that all such institutions offer specific classes, especially those relating to discrete specialties, at time intervals governed by projected or actual demand. Braymer’s testimony clearly establishes regularity not unlike any other such institution; the courses are recurring in the sense they are offered and conducted at regular time intervals, although the demand may vary at different locations:
“Q. . . . How often might you repeat a class? . . .
“A. . . . We’ve got regular patterns for our classes. Typically, those revolve around demand within the community. So say, for example, our Managing Multiple Projects course in Illinois, in Chicago, I’ll be back there approximately every three months with that course because there’s a high demand for that. Now, our Cisco router course, there’s not as large a population that’s interested in attending that. I might only be through there twice a year with that particular course. In some cases the course is only coming back in one year, once a year. So say, for example, Topeka would be a good example of a smaller market, and that market really doesn’t bear having that same course back there maybe more than once a year.
“Q. And these classes that we’re looking at in this [business course catalog], are these classes that are regularly — that SkillPath regularly offers, or are they not, just infrequent?
“A. No. These are all the classes that we regularly offer.
“Q. And where did you receive your degree?
“A. At Northeast Missouri State. It’s now Truman State University.
“Q. While you attended the university, were there classes that weren’t offered each semester?
“A. Yes.
“Q. Were there classes that weren’t offered every single year?
“A. Yes.
“Q. As far as your competitors, when you reviewed your competitors, would you find that same situation?
“A. Yes.
“Q. All right. Would the classes that, say, Johnson County Community College or the University of Kansas offered for non degree credit, would those vary from semester to semester?
“A. Yes.”
Although we respectfully differ on BOTA’s interpretation of regular as used in the statute, we also conclude that BOTA’s finding that SkillPath failed to offer regular classes is defied by evidence that is substantial when considered in light of the record as a whole.
Does Phrase “Courses of Study” Imply a Pathway to Decree?
Finally, we disagree with BOTA’s suggestion that the phrase “courses of study” requires the classes being offered to “lead to any ultimate conclusion outside of themselves,” such as obtaining a degree. This is also not expressed or implied by the plain language of the statute. We note that numerous statutory references to courses of study do not generally imply that a degree be contemplated. See, e.g., K.S.A. 2007 Supp. 44-703(v) (courses of study or training which an educational institution offers may be academic, technical, trade, or preparation for gainful employment); K.S.A. 71-205 (authorization for courses of study to be offered by community colleges at Fort Leavenworth); K.S.A. 72-4454 (providing for transferability of substantially equivalent courses of study); K.S.A. 72- 7513(a)(2) (powers of State Board of Education include enactment of rules and regulations for courses of study and curriculum); K.S.A. 2007 Supp. 72-8205(c) (authority of local boards of education to prescribe courses of study for each year).
In contrast, numerous statutes clearly and expressly specify that particular courses of study lead to a degree when contemplated by the legislature. See, e.g., K.S.A. 65-1903; K.S.A. 2007 Supp. 65-5418(b)(9); K.S.A. 65-6511(d); K.S.A. 74-3296(a)(7); K.S.A. 74-32,136(a)(7); and K.S.A. 2007 Supp. 76-381(c)(5), all of which contain express language that require “a course of study leading to a [degree or diploma.]” Again, it would have been easy for the legislature to have required educational institutions to exclusively offer courses of study leading to a degree, but we find no such language or implication in the plain language of K.S.A. 2007 Supp. 79-3602(1). Similarly, the record establishes that SldllPath offers courses of study in business and management techniques, education and teaching techniques, technology integration, and others, and these courses were the subject of Clauson’s testimony regarding conformance to NCA accreditation standards.
Summary and Conclusion
In order for an entity to qualify as an educational institution under K.S.A. 2007 Supp. 79-3602(1), it must first establish that it is a nonprofit school, college, or university. That SldllPath is a nonprofit school was not a matter of dispute in this case; there was no challenge to its nonprofit nature, and the parties apparently agree that “school” broadly includes any institution of learning. Second, the institution must offer an education at a level above the 12th grade. This apparently also was never a matter of dispute; SldllPath put on evidence to show that all of its seminars are considered to be above a 12th-grade level, and none of them are considered remedial classes. With regard to the third requirement, tire determinative question is whether Skillpath conducts regular classes and courses of study required for accreditation by, or membership in, tire NCA. We believe Clauson’s testimony clearly established that SldllPath offers regular classes and courses of study which conform to the standards for accreditation required by the NCA and that her conclusion was shared by another consultant evaluator.
We acknowledge our duty to pay deference to BOTA and to construe tax exemption statutes strictly, but we cannot endorse a statutory interpretation that parses and independently assesses the phrase “regular classes and courses of study” without regard for the balance of the statutory phrase providing the precise normative standard for determining whether such classes and courses of study are indeed regular, i.e. those required for NCA accreditation standards. In this limited regard, we respectfully disagree with BOTA’s overly restrictive interpretation of the operative statutes and conclude that SkillPath meets the criteria established for an educational institution and sales tax exemption under K.S.A. 2007 Supp. 79-3602(1) and K.S.A. 2007 Supp. 79-3606(c). For this reason, we must reverse BOTA and remand with directions to taire appropriate action to reverse KDOR’s revocation of SkillPath’s exemption.
We acknowledge the legislative history highlighted by our dissenting colleague, and we concede that KDOR apparently desired a criteria that required accreditation. The mere desire of a proponent, however, does not conclusively establish legislative intent, and this court cannot ignore the plain language of the enactment even if it may not be what the legislature really intended to do. Here, the language of K.S.A. 2007 Supp. 79-3602(1) is not ambiguous; there is no accreditation requirement, but rather a requirement that classes and courses of study meet the standards of the accrediting authority.
“ ‘ “[T]he court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.” ’ ” Colorado Interstate Gas Co. v. Board of Morton County Comm’rs, 247 Kan. 654, 662, 802 P.2d 584 (1990) (quoting Harris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]; Russell v. Cogswell, 151 Kan. 793, 795, 101 P.2d 361 [1940]).
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by defendant Roy E. Ames from a conviction by jury trial of the offense of unlawful possession of a firearm (K. S. A. 21-4204[l][b]).
On April 2, 1974, a search warrant for a gun and holster at the downstairs apartment of 1616 Polk in Topeka was issued. The appellant’s wife lived at this address; the appellant was in the Shawnee County Jail at the time. Officers found a revolver in a holster with the belt wrapped around the holster. Ammunition was in the belt, and live rounds were in the gun. All were seized. On August 28, 1974, an information was filed charging the appellant with the unlawful possession of a firearm with a barrel less than twelve inches long, within five years after conviction for the felony offense of burglary, in the district court of Shawnee County, Kansas. A jury trial was commenced on December 9, 1974. During noon recess on that day, jurors observed the appellant in handcuffs. A mistrial was granted. The second jury trial commenced on February 3, 1975. The state’s evidence showed that on September 21, 1973, the appellant and his wife met Mary Lou Potter at Wild Willie’s South in Topeka. The appellant pointed out the revolver he wanted and gave Mary the necessary cash. She bought the gun and gave it to the appellant. The evidence showed that subsequent to the purchase, the appellant used the gun for target practice and frequently practiced fast-drawing the gun in front of a mirror. Both the appellant and his wife referred to the gun as his. On February 5, 1975, the jury returned its verdict, finding the appellant guilty as charged. Following a number of post-trial motions which ultimately resulted in the district court’s denying the appellant’s motion for new trial, the appellant was sentenced under the Habitual Criminal Act on September 30, 1975. This appeal followed.
The appellant’s first three points on appeal deal with the admission into evidence of the gun and holster seized under the search warrant. He first contends such admission was error because the affidavit in support of the search warrant was fatally defective in that it was based in part on hearsay and such fact was not disclosed to the issuing magistrate.
The affiant was one Dena Christian. She had been living with the appellant’s wife until they each moved to a new address only a few days before she made her sworn statement. In preparing her affidavit at the district attorney’s office, Dena was not certain of the address to which the appellant’s wife had moved. She consulted the classified section in the newspaper and called the listing she thought the appellant’s wife had taken. The landlady told her that the appellant’s wife had rented the downstairs apartment at that address. All the statements in Dena’s affidavit are based on her personal observation except the address at which she stated the appellant’s wife was residing. The hearsay nature of the latter statement was not disclosed to the issuing magistrate.
In State v. Hart, 200 Kan. 153, 434 P. 2d 999, this court, relying on Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, set out the requirements for the valid issuance of a warrant:
“. . . [B]efore a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; . . . while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” 200 Kan. at 162.
See State v. Hubbard, 215 Kan. 42, 523 P. 2d 387.
The point appellant now raises was raised at the suppression hearing before trial. In its ruling on the motion to suppress, the district court stated that if the warrant had been issued on a finding of probable cause, based on material written statements under oath that were later shown to be untrue, items seized should be suppressed. Evidence at the suppression hearing, however, showed the sworn statement was true. Should the items seized be suppressed anyway because hearsay was involved and there was no finding based upon the two-pronged test of Aguilar? The district court answered this question in the negative. It reasoned that warrants may be based on hearsay, and where the hearsay statements are true and are of the nature of the statements in this case the evidence seized should not be suppressed. We agree with the district court. The hearsay involved in this case did not affect the magistrate’s probable cause determination. Failure to comply with the Aguilar requirement does not mandate suppression under the instant facts.
The appellant next contends admitting the holster into evidence was error because the warrant authorized the seizure of only the gun and not the holster.
The search warrant provided in pertinent part:
“. . . I find there is probable cause to believe that an offense against the laws of the State of Kansas has been committed and that certain items, to-wit: One pearl handled white revolver wrapped with tape on handles. Possibly 38 or 45 caliber with barrel less than 12 in length, in leather holster . . . are contraband or are fruits, instrumentalities, or evidence of such offense. . . .”
The Fourth Amendment to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution prohibit warrants except those “particularly describing the place to be searched, and the persons or property to be seized.” The purpose of this requirement is to prevent general searches and to prevent the seizure of an item at the discretion of the officer. Stanford v. Texas, 379 U. S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506. The test is one of practical accuracy rather than one of technical sufficiency, and absolute precision is not required in identifying the property to be seized. United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741; 3 C. Wright, Federal Practice and Procedure, Criminal, Sec. 670 (1969).
In Mascólo, Specificity Requirements for Warrants under the Fourth Amendment: Defining the Zone of Privacy, 73 Dick. L. Rev. 1 (1968), it is said:
“The courts prefer searches conducted under the authority of warrants to those conducted without benefit thereof. Therefore, warrants, and their supporting affidavits, are interpreted in a eommonsense, rather than a hypertechnical, fashion. To do otherwise would ‘tend to discourage police officers from submitting their evidence to a judicial officer before acting.’ Because of the courts’ preference for warrants, it is presumed, in the absence of a showing of illegality, that search warrants are valid. This presumption of legality also applies to supporting affidavits, as well as to the proper performance by the issuing magistrate of his official duties. Consequently, one who attacks the validity of a search warrant carries the burden of persuasion.” Id. at 7-8.
In the case at bar, there was clearly no extension of the search involved in seizing the holster, nor, in our opinion, did the officers seize more than was particularly described in the warrant. The warrant meets the constitutional requirement of “particularity.”
The appellant next contends that because of the great number of technical irregularities in connection with the execution and return of the warrant, the warrant should have been quashed and the evidence suppressed. Therefore, admission of the holster and pistol into evidence was error. The appellant enumerates the following technical irregularities: (1) the return was unsigned; (2) the holster was not listed as an item seized; (3) the officer gave the gun to the district attorney without prior authority of the magis trate in violation of K. S. A. 22-2512; (4) no receipt for the items taken was given to the accused or filed with the magistrate in violation of K. S. A. 22-2512; (5) the date on the return was in error.
K. S. A. 22-2511 provides:
“No search warrant shall be quashed . . . because of technical irregularities not affecting the substantial rights of the accused.”
Failure to comply with each of the first four procedural requirements which the appellant lists have been found in various cases not to require suppression of the evidence. United States v. Hall, 505 F. 2d 961 (3rd Cir. 1974) (return unsigned); Cady v. Dombrowski, 413 U. S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (items seized not listed on return); State v. Stewart, 219 Kan. 523, 548 P. 2d 787 (failure to comply with K.S.A. 22-2512); People v. Canaday, 49 Ill. 2d 416, 275 N. E. 2d 356 (1971) (failure to give receipt for items seized). The fifth irregularity — an erroneous date on the return — is a purely technical error which we discount out of hand under the facts of this case. We are cited to no cases and have found none involving as many irregularities as the instant case.
In State v. Stewart, 219 Kan. 523, 527, 548 P. 2d 787, 792, we said:
“Police officers should comply with the statute [K. S. A. 22-2512] and under certain circumstances their failure to do so might well preclude the admission of seized articles into evidence at the trial. The failure to comply with the statute, however, does not as a matter of law prevent the admission of the seized articles into evidence. . . .”
K.S.A. 22-2511 was adopted verbatim from 111. Rev. Stat. Ch. 38, Sec. 108-14. Relying on their statute which parallels K. S. A. 22-2511, the Illinois court in People v. Canaday, 49 Ill. 2d 416, 275 N. E. 2d 356 (1971) said:
“. . . [F]ailure to comply . . . with a statutory direction to furnish an inventory of the seized materials will not in the absence of prejudice invalidate an otherwise proper search and seizure.” 275 N. E. 2d at 360. (emphasis added)
In the instant case, the irregularities occurred after a valid search and seizure. Hence, they are not constitutionally significant; the ramification of the procedural violations is governed by the rules of procedure.
Federal Rule of Criminal Procedure 41 (d) governs the execu tion and return of search warrants. Its requirements are similar to those in Article 25 of the Kansas Code of Criminal Procedure. The Third Circuit in United States v. Hall, supra, was faced with determining the proper remedy for failure to adhere to the procedures of Fed. R. Crim. P. 41 (d). Noting the rule did not expressly address remedies which might flow from noncompliance, the court turned to Fed. R. Crim. P. 2 for its interpretive polestar. The language of K. S. A. 22-2103 is identical with Fed. R. Crim. P. 2. We think Hall’s rationale is persuasive and adopt it.
Article 25 of the Code of Criminal Procedure outlines procedures for the execution of a search warrant, but does not expressly address the remedies, if any, which flow from a failure to adhere to these procedures. We turn to K. S. A. 22-2103 as our guide. K. S. A. 22-2103 expresses values sought to be achieved by the Code of Criminal Procedure. It commands a construction which secures “simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” The manifest intent of the Code is to ensure a just determination of every criminal proceeding.
Applying these guidelines to the issue before us, we do not believe it was intended that every violation of procedures in the Code, however insignificant or inconsequential, should give rise to the suppression remedy. Were that the intent, 'we think the Code would have specifically so provided. But we do not believe the Legislature would enact the Code of Criminal Procedure expressly requiring certain actions on the part of the state, and not also intend some remedy to flow from certain violations of the required procedures. We therefore conclude that a warrant should be quashed and evidence suppressed by the district court only when the defendant demonstrates prejudice from a technical irregularity in violation of the rules of procedure governing the execution of search warrants.
The foregoing interpretation furthers the governing intent of the Code — a just determination of every criminal proceeding— and prevents the wholesale opportunity for abuse. Suppression remains a viable remedy where a sufficient showing of prejudice is made — i.e., “prejudice in the sense that it offends concepts of fundamental fairness or due process.” United States v. Hall, supra, at 964.
While we do not condone the procedural violations by law enforcement officers in the instant case, we find the defendant has not demonstrated these technical irregularities resulted in substantial prejudice.
For the reasons as set forth in the foregoing portion of the opinion, we hold the district court did not err in its ruling on the suppression motion and its admission of the pistol and holster into evidence.
The appellant next contends the district court erred in denying his motion for discharge at the close of the state’s evidence, and his motion for a directed verdict after the defense had rested its case.
A motion for discharge, a motion for directed verdict and a motion for judgment of acquittal all go to the sufficiency of the evidence to support a conviction. See State v. Gustin, 212 Kan. 475, 510 P.2d 1290; 23A C.J.S. Criminal Law, Sec. 1145(3)(a)(1961). K.S.A. 22-3419 governs motions for judgment of acquittal. The standards for judging the sufficiency of evidence in ruling on a motion for judgment of acquittal were set out in State u. Gustin, supra. In the instant case, the district court did not err in this respect. See State v. Anderson, 211 Kan. 148, 505 P. 2d 691.
The appellant next contends the state failed to prove beyond a reasonable doubt the allegations set forth in the information. This point really goes to the sufficiency of the evidence. On appellate review, the question is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence was sufficient to form the basis for a reasonable inference of guilt. State v. Wilson, 220 Kan. 341, 552 P. 2d 931. In making this determination, the evidence is viewed in the light most favorable to the state. State v. Motor, 220 Kan. 99, 551 P. 2d 783.
Viewed in the light most favorable to the state, the evidence shows that on September 21, 1973, the appellant and his wife went to Wild Willie’s South in Topeka, and looked at guns. The appellant had the clerk lay a gun back for him and left. The appellant called his aunt, Mary Lou Potter, in Holton, and asked that she come to Topeka and buy him a gun. Mary came to Topeka and met the appellant and his wife at Wild Willie’s South. The appellant pointed out the gun he wanted and gave Mary the necessary cash. She bought the gun and gave it to him. After purchasing the gun, all went back to Holton in Jackson County — the appellant, his wife and Mary were in the car with the gun. That same day, the appellant and his wife purchased a holster for the gun at Woolco in Topeka. The belt and holster were too big for the appellant’s wife, but fit the appellant. In January and February of 1974, the appellant and his wife lived in Topeka; Dena Christian lived with them. Dena observed the appellant practicing fast-drawing the gun in front of the mirror almost every day. The sights on the gun had been filed down, apparently to facilitate fast-drawing. Dena testified she never saw the appellant’s wife handling the gun except when they moved. Dena testified the appellant referred to the gun as his, as did his wife. When Dena and the appellant’s wife were living together while the appellant was in jail, Dena never saw his wife handle the gun except when they moved.
The evidence of events after September 21, 1973, was relevant to show the requisite possession of the firearm the appellant exercised on the day it was purchased — i.e., a willful or knowing possession of a firearm with intent to control the use and management thereof. State v. Neal, 215 Kan. 737, 529 P. 2d 114. We have no hesitancy in finding the evidence was sufficient to form the basis for a reasonable inference of guilt.
The appellant next contends the district court erred in denying his pro se motion for appointment of a judge pro• tem.
K. S. A. 20-305 provides that a judge pro tem of the district court may be selected when the judge is disqualified to sit. (K. S. A. 20-305 was repealed January 10, 1977 [1976 Kan. Sess. Laws, Ch. 146, Sec. 48].) A judge is disqualified to sit when he is shown to be prejudiced against one of the parties. In re Peyton, 12 Kan. 398, * 311.
K.S.A. 20-311d provides:
“(a) If either party to any action in a district court files an affidavit alleging any of the grounds specified in subsection (b) the administrative judge shall at once transfer the action to another division of the court. . . .
“(b) Grounds which may be alleged as provided in subsection (a) for change of judge are: . . .
“(5) That the party filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”
K.S.A. 20-311f provides in pertinent part:
“. . . [A] party shall have seven (7) days after pretrial, or after receipt of written notice of the judge to which the case is assigned or before whom the case is to be heard, whichever is later, in which the affidavit may be filed.”
On January 30, 1975, the appellant filed a pro se motion for appointment of a judge pro tem pursuant to K. S. A. 20-305. On January 31, 1975, a motion by the appellant through his appointed counsel was filed pursuant to K. S. A. 20-311d for the disqualification of The Honorable Adrian J. Allen, judge of the fourth division of the district court of Shawnee County before whom the case was to be tried. The administrative judge transferred the latter motion to Judge William R. Carpenter of the first division for hearing and determination. On February 3, 1975, the morning scheduled for the start of the appellant’s trial, Judge Carpenter heard arguments on the motion for disqualification of Judge Allen and denied the motion because it was untimely filed under K. S. A. 20-311f. Judge Carpenter filed his written decision on the motion on the afternoon of February 3, 1975; thereafter, Judge Allen denied the appellant’s pro se motion for judge pro tem and the trial commenced. Judge Allen stated:
“Let the record show that the minutes reflect that Judge Carpenter heard an application for disqualification of myself today to hear this case which was denied, and accordingly the Court feels that the motion for a pro tem should also be denied.”
The appellant concedes Judge Carpenter properly overruled the motion for disqualification because it was untimely filed, but argues the time limits in K. S. A. 20-3Ilf cannot apply to a motion for a judge pro tem under K.S.A. 20-305. Consequently, it was error for Judge Allen to rely on Judge Carpenter’s ruling on procedural grounds. The appellant argues his pro se motion should have been determined on the merits by a judge other than Judge Allen. The appellant’s point is not well taken.
A party who shows a judge is prejudiced against him has a right to have his case tried before some other judge — either a judge in some other division or district, or a judge pro tem. In re Peyton, supra. The first step in getting a new judge, pro tem or otherwise, is to show prejudice. K. S. A. 20-311d sets out the procedures for this determination. Only after a finding of prejudice under the procedures of K. S. A. 20~311d would the provisions for appointment of a judge pro tem under K. S. A. 20-305 come into play. To allow a movant for disqualification of a judge barred by the time limitations of K. S. A. 20-311Í to proceed under K. S. A. 20-305 regardless of time, would circumvent the procedures for disqualification of a judge.
K. S. A. 20-3Ilf was a procedural bar to both the motion for disqualification and the pro se motion for appointment of a judge pro tem. The district court properly did not rule on the merits of either motion; neither will this court reach the merits of either motion on appeal.
The appellant’s next two points will be considered together. The appellant contends he was denied the right to have compulsory process for obtaining witnesses in his favor in contravention of the Sixth Amendment of the United States Constitution and Section Ten of the Bill of Rights of the Kansas Constitution when the district court ruled his court-appointed attorney had the sole power to decide who would testify in the appellant’s behalf. The appellant further contends this denial of compulsory process together with the court-sanctioned refusal of his attorney to present the appellant’s desired defenses constituted violations of rights that are necessarily implied from the Sixth Amendment and Section Ten of the Kansas Bill of Rights — i.e., the right to assist in his own defense.
It is quite clear from the record that the appellant and his appointed counsel disagreed from the outset as to what witnesses should be called and how the defense should be presented. The appellant wanted to go into areas in his defense strategy that his counsel thought were collateral and irrelevant. The appellant filed a pro se motion directing that some fourteen witnesses be subpoenaed. The appellant apparently wanted several of these witnesses to present his theory of the defense. The judge ruled that while the appellant had the right to compulsory process, the ultimate decision on which witnesses would be subpoenaed was for his counsel as were other matters of trial strategy. Appellant’s counsel talked to the witnesses and knew what they would say; he called only those witnesses which, in his opinion, were pertinent to the defense.
There was also some dispute as to the degree of appellant’s participation in his defense. The appellant was recognized as co-counsel at his arraignment. During the course of the proceedings below, he filed a plethora of pro se motions. He was allowed to argue some of these pro se motions at both pretrial and post-trial hearings. At trial, the appellant wanted not only to direct the course of his defense strategy, but also wished to take part in jury selection and wanted the right to have certain questions asked of witnesses. The appellant was not allowed to so participate at the trial. Conduct of the trial was entirely under the control of appointed counsel, although he did listen to the appellant’s suggestions.
The appellant repeatedly stated he wanted appointed counsel. He also wanted the right to conduct his own defense. On October 10, 1974, the appellant’s first court-appointed counsel was allowed to withdraw, and another attorney was appointed. It is not clear from the record why the appellant wanted the change. The court allowed the change because both counsel and the appellant agreed to it. When it became apparent that his second appointed counsel would not call all the witnesses the appellant desired or present his theory of the defense, the appellant asked the court to dismiss him and appoint a third counsel. The court advised the appellant he had the right to defend himself or to have appointed counsel. The appellant wanted counsel, and the court refused to make another change.
In Faretta v. California, 422 U. S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525, the United States Supreme Court held that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation in that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. The opinion states:
“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must ... be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” 422 U. S. 819-20.
The appellant relies on Faretta for the proposition that he had a constitutional right to dictate what witnesses would be called and to participate in his own defense. We disagree.
Prior to Faretta, federal courts held that a party had a right to represent himself or to be represented by counsel, but did not have the right to hybrid representation. United States v. Hill, 526 F. 2d 1019, 1024 (10th Cir. 1975). Faretta ratified a consensus within the federal judiciary favoring a constitutional right to pro se representation. United States v. Swinton, 400 F. Supp. 805 (S.D.N.Y. 1975). Faretta did not alter the established rules concerning hybrid representation. United States v. Hill, supra. See United States v. Bennett, 539 F. 2d 45 (10th Cir. 1976); United States v. Williams, 534 F. 2d 119, 123 (8th Cir. 1976). An indigent accused has a right to either appointed counsel or pro se representation, but both rights cannot simultaneously be asserted. See United States v. Williams, supra; United States v. Swinton, supra; People v. Morris, 12 Mich. App. 411, 163 N. W. 2d 16 (1968). A defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel. See Rogers v. United States, 325 F. 2d 485, 488 (10th Cir. 1963); People v. LaMarr, 1 Mich. App. 389, 136 N. W. 2d 708 (1965).
The Faretta decision recognized that the defendant could either represent himself or be represented by counsel:
. . It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas, (citations omitted) This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” 422 U. S. at 820-21.
There is no question appellant wanted appointed counsel, but he did not want to be bound by the decisions of counsel. Our holding in Winter v. State, 210 Kan. 597, 502 P. 2d 733, is apropos:
“In the control and direction of a criminal case certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify in his own behalf.” (Syl. 1)
“In the conduct of the defense of a criminal case the technical and professional decisions, which require trained professional skill and judgment, must rest with the lawyer. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Syl. 2)
Although the appellant was recognized as co-counsel, his right to participate with counsel in the conduct of his defense was still within the sound discretion of the district court. United States v. Swinton, supra at 806; Fowler v. State, 512 P. 2d 238 (Okla. Crim. App. 1973); see State v. Kelly, 210 Kan. 192, 499 P. 2d 1040. We would also note that an indigent criminal defendant may not demand a different appointed counsel except for good cause, and it is within the sound discretion of the district court to decide whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel. State v. Banks, 216 Kan. 390, 532 P. 2d 1058.
We hold that, under the facts of the instant case, the appellant’s right to compulsory process was not abridged, and the district court did not abuse its discretion in limiting the appellant’s participation in his defense or in denying his request for change of appointed counsel.
The appellant next contends the district court erred in denying his motion for an order designating the Menninger Foundation to conduct a psychiatric examination of him in order to aid the court in determining whether he was, prior to the rendition of the judgment and during his trial, incompetent to stand trial as defined in K. S. A. 22-3301(l)(fe).
Shortly after trial, the appellant’s court-appointed counsel was allowed to withdraw and yet another counsel was appointed as a result of allegations of ineffective assistance of counsel in the appellant’s pro se motion for a new trial. Two months after trial, the new appointed counsel filed a motion to determine the appellant’s competency to stand trial. A psychiatrist with the Shawnee County Court Clinic was directed to examine the appellant concerning his competency. At the hearing on the motion on June 3, 1975, the psychiatrist testified his examination was inconclusive. After he testified, the appellant went into a tirade and was twice found in contempt. The psychiatrist took the stand again and testified concerning the appellant’s conduct he had just observed. Based primarily upon this testimony, the district court found the appellant was unable to understand the nature of the proceedings against him or to make or assist in making his defense. The court ordered him committed to the state security hospital at Lamed for a period not to exceed six months. On July 1, 1975, Larned submitted a report to the district court; a hearing was held on July 25, 1975, and, based on the Larned report, the court found the appellant was competent to stand trial, and ordered suspended proceedings on motions, including motions for new trial, be resumed. Thereafter, appellant’s counsel filed a motion requesting the court to designate the Menninger Foundation to conduct a further psychiatric examination of the appellant to determine whether he was competent at the time of trial. The district court heard arguments on the motion, took it under advisement and, on August 25, 1975, denied it.
The district court’s ruling appears to have been based on doctor’s reports and upon the court’s own observation of the appellant during trial and at numerous other court appearances. The court had before it psychiatric evaluations of the appellant made two and a half years before, six months before and five months after the trial, all of which indicated the appellant was competent to stand trial. The first report by the Shawnee County Court Clinic psychiatrist, filed some three months after trial, was inconclusive. Only the psychiatrist’s report based entirely on his observations at the hearing on June 3, 1975, indicated the appellant was incompetent to stand trial. The district court noted that the appellant’s conduct had been observed at various stages in pretrial and trial proceedings by two public defenders, by various members of the district attorney’s office and by several judges, none of whom questioned his competency based upon personal observation. We do not find the district court abused its discretion in denying the motion for a further psychiatric examination by the Menninger Foundation or in finding the appellant was competent to stand trial at the time of trial. See Johnson v. State, 208 Kan. 862, Syl. 1, 494 P. 2d 1078; State v. Ridge, 208 Kan. 236, Syl. 3, 491 P. 2d 900; State v. Kelly, 192 Kan. 641, 391 P.2d 123.
The appellant next contends the district court erred in sentencing him pursuant to the Habitual Criminal Act (K. S. A. 21-4504). The appellant argues the judgment of conviction relied upon by the state in invoking the statute should have been presumed void because the journal entry was ambiguous as to whether counsel was present at the time of sentencing, and in view of the appellant’s testimony he had no counsel at the time of sentencing.
The district court found that counsel was present at sentencing and that the Florida conviction could properly be used for purposes of the Habitual Criminal Act. We have no dispute with this finding. The Florida journal entry appears in the record and from our reading it is not ambiguous. It indicates counsel was present at the time of sentencing. The district court apparently did not believe the appellant’s testimony that no counsel was present. It is not the function of the Supreme Court to reweigh the evidence or pass on the credibility of testimony. State v. Duke, 205 Kan. 37, 468 P. 2d 132. The district court did not err in invoking the Habitual Criminal Act pursuant to K.S.A. 21-4504.
The appellant raised other points which do not merit discussion. We have carefully considered each and find no error. Points fifteen through nineteen in the appellant’s statement of points are considered abandoned, having been neither briefed nor argued on appeal. State v. Piland, 217 Kan. 689, 538 P. 2d 666.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal is from a judgment denying compensation under the “heart amendment” of the Workmen’s Compensation Act. (K.S.A. 44-501.) The appellant is the widow of a deceased workman who sustained a fatal heart attack on the job on February 12, 1974.
The facts are not in dispute. The deceased workman, Clinton Harold Chapman, Sr., was a carpenter and millwright who for many years had worked out of a local carpenters union in Topeka. At the time of his death, he had been employed approximately two weeks by the appellee, Wilkenson Company, on a job at the Goodyear plant in Topeka, Kansas. Mr. Chapman was on a crew of ten men who were installing a conveyor which extended from the east end to the west end of the Goodyear plant. On the morning of his death, Mr. Chapman and two fellow employees were told to move some equipment to the work area at the west end of the plant — a distance of 900 to 1,000 feet. Each man pushed a load weighing approximately 300 pounds. One pushed a portable welding machine; one, a cart containing tool boxes; Mr. Chapman, a two-wheel steel dolly holding an acetylene bottle, an oxygen bottle, a cutting torch, gauges and hoses. The dolly was hard to push, and the men stopped two or three times along the way. All three men were out of breath when they arrived at the west end of the plant. Mr. Chapman sat down to rest; ten minutes later he sustained an acute myocardial infarction which resulted in his death.
A millwright installs all kinds of machinery. His job includes welding, cutting and all mechanical work involved in setting the machinery. The equipment and tools which Mr. Chapman and the two other workmen moved on February 12, 1974, were tools of a millwright’s trade and were necessary for the job in progress at the Goodyear plant. The work sites at the east and west ends of the project each had a portable welding machine and acetylene cutting torch. This equipment was moved short distances at the work site as work progressed. During his two weeks on the job, Mr. Chapman had moved this equipment in the immediate work area at the east end of the plant. Occasionally, both sets of welding and cutting equipment were needed at one end of the plant. It had been moved from one end to the other at least five times in the two-week period of Mr. Chapman’s employment. Mr. Chapman had never moved the equipment this distance before the morning of his death. Fellow workers testified they considered moving this equipment a part of their jobs. They further testified it was not unusual to have to move this heavy equipment a distance of 1,000 feet.
The Examiner found there was a causal connection between the exertion of moving the heavy equipment and the heart attack, but denied compensation because the exertion was not unusual “in terms of what a millwright is supposed to do in the course of his regular work.”
The appellant made application to the Workmen’s Compensation Director for review of the award contending the Examiner’s finding of usualness was erroneous because it was based on work of a millwright in general rather than on Mr. Chapman’s work on this job. The Director framed the issue thusly:
“. . . [D]id the legislature intend to provide compensation to one incurring a heart attack on the job resulting in disability or death, after that person had just performed work which exertion was more than usual for that person even though other employees of the same employer employed in like position had previously performed that task.”
Answering that question in the negative, the Director found that, while the decedent’s accidental injury may have been precipitated by the duties of his employment, the precipitating cause was not the result of exertion which was more than usual in the decedent’s regular employment. Accordingly, the Examiner’s award denying compensation was sustained. The district court sustained the findings and award of the Director, and this appeal followed.
The jurisdiction of the Supreme Court on the appeal of a workmen’s compensation case is limited to consideration of questions of law. Streff v. Goodyear Tire & Rubber Co., 211 Kan. 898, 508 P.2d 495; K.S.A. 1976 Supp. 44-556 (c); Note, Procedures for Reviewing Workmen’s Compensation Award, 13 Wash-burn L. J. 197, 208 (1974). Many workmen’s compensation appeals under the “heart amendment” have presented the question of whether the district court’s findings were supported by substantial competent evidence. E.g., Lentz v. City of Marion, 222 Kan. 169, 563 P.2d 456. That is a question of law as distinguished from a question of fact. Streff v. Goodyear Tire & Rubber Co., supra. The instant appeal presents a different question of law, and one never before squarely addressed by this court: what is the proper standard for determining “the workman’s usual work in the course of the workman’s regular employment” under K.S.A. 1976 Supp. 44-501?
The appellant argues the Examiner, Director, and district court applied the wrong standard. It is the appellant’s position that the standard for gauging the usualness of the exertion causing the heart attack must be the deceased workman’s usual work rather than the usual work of other workers on the same job or the usual work of members of his occupation in general.
The pertinent portion of K.S.A. 1976 Supp. 44-501 provides:
“. . . Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.”
The appellant notes the statute speaks in terms of the singular “workman” rather than the plural “workmen,” and says this language supports her position that the individual workman’s work history rather than the work of the occupation in general should dictate “usualness.” As a general rule, words in the singular may be construed as being plural where such construction is necessary to give effect to the legislative intent. 82 C.J.S. Statutes, Sec. 337 (1953). Words in the statutes importing the singular may be extended to several persons unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute. K.S.A. 1976 Supp. 77-201 (Third).
Nowhere in the Workmen’s Compensation Act does the recovery of compensation by a workman appear to depend on what another workman does. Construing “workman” as it is used in K.S.A. 1976 Supp. 44-501 to be “workmen” seems neither consistent with the legislative intent manifested in the Act nor necessary to give effect to that intent. This court has long been committed to the rule of liberal construction of the Workmen’s Compensation Act in order to award compensation to a workman where it is reasonably possible to do so. Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 545 P.2d 317; Bright v. Bragg, 175 Kan. 404, 264 P.2d 494.
The appellant’s rationale on the proper standard of usualness finds support in other jurisdictions that have considered the question. In Pennsylvania, recovery of workmen’s compensation for a heart attack sustained on the j’ob requires a showing that the exertion causing the heart attack was unusual. Hamilton v. Procon, Inc., 434 Pa. 90, 252 A.2d 601 (1969) decided the unusualness must be in terms of the individual’s work history rather than the work patterns of his vocation in general:
“If workmen’s compensation is intended to deal with the problems of the individual worker, then the standards which determine whether he shall recover compensation should also be geared to the individual. Furthermore, it is difficult to determine what amounts to an unusual strain for the members of a given profession. Certainly, in a given profession or occupation different members would be subjected to far different working conditions. Most assuredly, there are many carpenters who have never worked under conditions such as those which led to the decedent’s death. What is more, the industry-wide test is difficult to apply because a given member of a profession may be able to tolerate a greater or lesser amount of strain depending on his age. The decedent was sixty-four when he suffered his fatal attack. What is an unusual strain for a carpenter sixty-four years of age who had apparently worked many years in more tranquil surroundings may be far different from what would be an unusual strain for a twenty-year old apprentice carpenter.
“For these reasons, we hold that the unusual strain doctrine is to be applied according to the work history of the individual involved and not according to the work patterns of his profession in general.” Id. at 98-99, 252 A.2d at 605.
Missouri follows the same rationale. Herbert v. Sharp Brothers Contracting Company, 467 S.W.2d 105 (Mo. Ct. App. 1971), motion for rehearing denied, application to transfer to S.Ct. denied.
We note in passing that respected authorities have criticized basing recovery of workmen’s compensation on a showing of “unusual exertion.” 1A A. Larson, The Law of Workmen’s Compensation § 38.60 (1973); Kelly, The Unusual-Exertion Requirement and Employment-Connected Heart Attacks, 16 Kan. L. Rev. 411 (1968). The foregoing Pennsylvania and Missouri cases, while adhering to the doctrine, recognized its shortcomings. In the instant case, our function is not to gauge the wisdom of the statute, but to apply it.
We are persuaded that the proper standard of “unusualness” under the statute is the standard advanced by the appellant. We believe this comports with the general tenor of the Workmen’s Compensation Act and with the applicable rules of construction. The entire Workmen’s Compensation Act is directed toward the individual worker’s injuries, and we believe the standards to determine his eligibility for compensation should also be geared to the individual. We therefore hold that the standard for determining what is usual exertion for purposes of the “heart amendment” is the work history of the individual involved.
This holding is bolstered by an analysis of our prior decisions under the “heart amendment” which, although not speaking to this precise point, are consistent with it. In some of these cases, the issues addressed are not relevant to our instant consideration. Fugit v. United Beechcraft, Inc., 222 Kan. 312, 564 P.2d 521; Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 552 P.2d 998; Dial v. C. V. Dome Co., 213 Kan. 262, 515 P.2d 1046; Brannum v. Spring Lakes Country Club, Inc., 203 Kan. 658, 455 P.2d 546. In others, the evidence did not show a causal connection between the work exertion and the heart attack. Suhm v. Volks Homes, Inc., 219 Kan. 800, 549 P.2d 944; Dolan v. Steele, 207 Kan. 640, 485 P.2d 1318; Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P.2d 860, cert. den. 403 U.S. 914, 29 L.Ed.2d 692, 91 S.Ct. 2240; Muntzert v. A.B.C. Drug Co., 206 Kan. 331, 478 P.2d 198. Where there is no causal connection between the worker’s exertion and his injury, the question of whether the exertion was unusual within the meaning of the “heart amendment” is irrelevant. Suhm v. Volks Homes, Inc., supra. The cases which provide a useful comparison with the instant case are those in which the issue was whether the findings of the district court were supported by substantial competent evidence. Lentz v. City of Marion, supra; Woods v. Peerless Plastics, Inc., 220 Kan. 786, 556 P.2d 455; Simpson v. Logan-Moore Lumber Co., 212 Kan. 404, 510 P.2d 1234; Nichols v. State Highway Commission, 211 Kan. 919, 508 P.2d 856; Calvert v. Darby Corporation, 207 Kan. 198, 483 P.2d 491. While in these cases we spoke of “usual work” both in terms of the individual worker and in terms of other workers of his occupation, in every case the determination of “usualness” was consistent with the work history of the individual claimant.
Lentz v. City of Marion, supra, is illustrative. There the claimant’s deceased husband had been a light plant operator. The evidence went to both the work of light plant operators in general and to the specific work claimant’s husband had done. There we said:
“. . . What is usual exertion, usual work and regular employment as those terms are used within the meaning in the ‘heart amendment’ will generally depend upon a number of facts and circumstances among which the daily activities of the workman may be one, but only one, among many factors.” (p. 173)
Although it was not unusual for the decedent to mow the grass, the exertion he expended in the mowing which caused his heart attack was unusual under all the facts and circumstances. It was unusual for him based on his prior work history.
In the instant case, the evidence is clear that the exertion which caused Mr. Chapman’s heart attack was unusual in terms of the work he had previously done. Although he had moved the heavy equipment short distances in the general work area, he had never moved it from one end of the plant to the other until the morning of his death. Unusualness may be a matter of degree and may appear in the duration, strenuousness, distance or other circumstances involved in the work. 1A A. Larson, The Law of Workmen’s Compensation, § 38.64(a) (1973).
Having determined the proper standard for determining what is usual exertion under the “heart amendment” is the work history of the individual involved, we now hold, as a matter of law, that the evidence supports a finding that the exertion precipitating the decedent’s death was unusual for purposes of the “heart amendment.”
The judgment is reversed and remanded for entry of an award of compensation in accordance with this opinion.
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Per Curiam:
Affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The issue in this case is whether appellant’s property was properly assessed for taxation as personal property.
The controlling facts are not in dispute and are set forth in a stipulation of the parties which, as pertinent to the issue herein, reads:
“1. Plaintiff [appellant] is engaged in the business of growing flowers from seeds or seedlings in individual pots that are elevated and grown in an enclosed atmosphere. That the manner of growth is controlled by external operation. After such plants in question have completely matured and are ready for sale, they are then distributed to the wholesale and retail buyers for their own resale to their respective customers.
“2. That the plaintiff is classified agriculturally for federal and state income tax purposes and is not required to report an inventory for those purposes.
“3. That farmers of a similar nature with crops growing in the field are not taxed for property ad valorem tax purposes with an inventory and are likewise agriculturally classified for internal revenue service purposes.”
Appellant appealed from an adverse decision of the Wyandotte County Board of Equalization to the State Board of Tax Appeals (hereafter referred to as the Board). The Board found the subject property to be personal property and that appellant:
“. . . [I]s not entitled to have its flowers grown in pots excluded from assessment and taxation as personal property in Wyandotte County, Kansas, under the now existing Kansas law. . . .”
Appellant appealed to the district court which ruled:
“. . . [TJhat the order entered by the Board of Tax Appeals should be affirmed, and that the subject property in question be considered as personal property.”
Thereafter this appeal was perfected.
While the record is not entirely clear on the point, it appears from the Board’s order that Wyandotte County had contended the property should be assessed as merchandise inventory pursuant to the provisions of K.S.A. 1976 Supp. 79-1001, et seq. In this connection, the Board, while finding appellant’s flowers to be personal property, specifically determined that appellant was not a merchant and that the subject property was not merchandise inventory. In this connection the Board’s order reads:
“7. The Board finds that the taxpayer is not a merchant as contemplated and defined in K.S.A. 1972 Supplement 79-1001 as enacted by the Kansas Legislature, Chapter 296 of the 1971 Session Laws and has no inventory of personal property to report thereunder according to the method now provided for in K.S.A. 1972 Supplement 79-1001a, as enacted by the 1971 Legislature, Chapter 296 of the Session Laws of 1971. The first reason for this finding and conclusion by the Board is that this taxpayer has no personal property that has been purchased or consigned for sale with a view at being sold at an advanced price or profit, and therefore it is not a merchant under the statutory definition as set out in K.S.A. 1972 Supplement 79-1001. The second reason for this finding is that even if this taxpayer could be classified as a merchant, it could not comply with the mandatory requirements for listing an inventory as established for reporting for Federal Income Tax purposes. The taxpayer is for all purposes of reporting Federal Income Tax a flower farmer engaged in an agriculture pursuit and as such has no inventory as established for reporting for Federal Income Tax purposes. The Board also notes that under the provisions of K.S.A. 1972 Supplement 79-1001b, before exercising the option to use actual average monthly inventories, if it would result in a lower value for inventory purposes, it is first required that all merchants report an inventory as established for Federal Income Tax purposes. We therefore have concluded that this taxpayer is not a merchant and that he has no inventory which he can report as a merchant.
“8. The finished product, flowers growing in a pot, even when ready for sale, is still a growing crop not attached to the soil. Therefore it does not enhance the value of any real estate and is not subject to ad valorem assessment and taxation as real estate in Wyandotte County, Kansas. Only after the mature potted plants are sold by the grower taxpayer to a wholesaler or retailer for subsequent resale, do these potted plants then become inventory items of personal property to be listed and assessed as a merchants inventory.” (Emphasis supplied.)
We agree with the Board’s ruling that under the facts, appellant is not a merchant and that the subject property is not merchandise inventory under K.S.A. 1976 Supp. 79-1001, et seq.
In essence, appellant advances two arguments. It first contends the subject property is a “crop” and that crops of any sort including flowers are improvements to “land” or real property. Appellant contends, “that crops improve the land and enhance the value of the land whether the soil has been placed in individual pots or whether the soil has been left undisturbed.” Appellant projects its contention by arguing that since the growing of flowers in pots must be deemed an agricultural pursuit it follows that it is subject only to real property ad valorem tax. Appellees, on the other hand, while conceding that appellant’s operation is agriculture, contend that flowers growing in individual pots which are elevated and not attached to the land in any manner are clearly personal property and taxable as such under the statutory and case law of this jurisdiction. We are compelled to agree with appellees.
For purposes of taxation real and personal property are defined in K.S.A. 79-102 as follows:
“That the terms ‘real property,’ ‘real estate,’ and ‘land,’ when used in this act, except as otherwise specifically provided, shall include not only the land itself, but all buildings, fixtures, improvements, mines, minerals, quarries, mineral springs and wells, rights and privileges appertaining thereto.
“The term ‘personal property’ shall include every tangible thing which is the subject of ownership, not forming part or parcel of real property; . . .”
We think it clear, under the stipulated facts, that appellant’s flowers growing in individual pots do not form a part or parcel of appellant’s real property, are “tangible things,” and subjects of ownership. The flowers are not exempt under any of the provisions of K.S.A. 1976 Supp. 79-201, and hence are to be listed as “tangible personal property” subject to taxation pursuant to K.S.A. 79-301 [and 1976 Supp.], et seq.
Appellees concede there are no decisions of this court directly in point. However, they direct our attention to the longstanding rule adhered to by this court that a crop which has become ripe or mature and is no longer drawing sustenance from the soil possesses the character of personalty even though it has not been actually severed from the soil. The applicability of the rule has been considered in various circumstances when the question whether crops, trees or plants are personal property has arisen. (e.g., Brendle v. Hudson, 146 Kan. 924, 73 P.2d 1013; Myers v. Steele, 98 Kan. 577, 158 Pac. 660; National Bank v. Beegle, 52 Kan. 709, 35 Pac. 814; and A.T. & S.F. Rld. Co. v. Morgan, 42 Kan. 23, 21 Pac. 809.)
While the cases cited are consistent with and lend support to appellees’ position, we think the issue here is resolved by the language of K.S.A. 79-102 standing alone. This court has repeatedly stated that the entire matter of taxation is legislative and does not exist apart from statute. (Joseph v. McNeive, 215 Kan. 270, 524 P.2d 765; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P.2d 906; and Ray v. Board of County Comm’rs., 173 Kan. 859, 252 P.2d 899.)
Appellant cites Yoder Bros. v. Bowers, 169 Ohio St. 211, 158 N.E.2d 518; and Benken v. Porterfield, 18 Ohio St. 2d 133, 247 N.E.2d 749, for the proposition that there is no distinction between plants or flowers grown in pots in a greenhouse and plants or vegetables grown in the soil by a nurseryman or truck farmer. Neither case supports appellant in the case at bar. The two cases dealt with an Ohio Statute (Page’s Ohio Revised Code Annotated [Taxation] [now 1976 Supp.], § 5711.22), which at the time provided in substance that machinery and equipment used in agriculture and agricultural products should be assessed at fifty percent of true value while other personal property was required to be assessed at seventy percent of value. The taxpayer in both Yoder and Benken was engaged in a greenhouse operation and in each case the Ohio Board of Tax Appeals found the business of the taxpayer not to be agriculture and held the property in question to be subject to the seventy percent statutory assessment provision. In Yoder, on direct appeal to the Ohio Supreme Court, the ruling of the Board was affirmed by an equally divided court. In Benken the taxpayer’s business was described as “planting, cultivating, harvesting and selling flowers and vegetables” in air-conditioned greenhouses and outdoors in lath houses and several planting beds. In a four to three decision the Ohio court reversed the Board’s ruling and held the taxpayer’s business to be agricultural and that his machinery and equipment as well as crops and products of the greenhouse were entitled to the fifty percent assessment. The Berken case was not directly concerned with the issue whether flowers and vegetables were personal property, but the opinion indicates they were so assessed under the fifty percent statutory provision.
Appellant further contends that the assessment herein violates Article 11, Sec. 1 of the Kansas Constitution which mandates the legislature to prove a uniform and equal rate of assessment and taxation. Appellant’s argument on this point is that his flowers should not be assessed as personal property when nurserymen and truck farmers are not so assessed in Wyandotte County. There is nothing in the record to support appellant’s contention that its operation is exactly the same as a truck farmer or nurseryman who plants his crops in the field. Appellant offers no evidence that any other greenhouse business, which operated as appellant does, is assessed in a manner different from that ordered by the Board herein. This court has consistently adhered to the principle that the assessment and valuation of property are administrative functions, not judicial ones, and that courts will not substitute their judgment for that of the assessing authority in the absence of fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud. (Northern Natural Gas Co. v. Williams, 208 Kan. 407, 493 P.2d 568, cert. den. 406 U.S. 967, 32 L.Ed.2d 665, 92 S.Ct. 2408; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P.2d 982; and Symns v. Graves, 65 Kan. 628, 70 Pac. 591.)
We have carefully examined all of the arguments advanced by appellant and conclude that it has failed to establish any ground for judicial interference in the assessment as ordered by the Board of Tax Appeals in the instant case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a direct appeal by defendant-appellant, Richard L. Dodson, from a conviction of promoting prostitution in violation of K. S. A. 21-3513, a class A misdemeanor. A jury trial was waived and the matter was tried to the district court.
On October 21,1975, Reserve Police Officers J. Douglas Mauck and Jack C. Metz were assigned to Detectives Hogan and Killian of the Topeka Police Department’s vice squad for the purpose of participating in a prostitution investigation. Mauck and Metz met at the police station where they were told by the detectives that the investigation would be commenced at a tavern in Topeka and that it was specifically directed at the defendant. After being shown mug shots of the defendant, Mauck and Metz went to the tavern at approximately 10:00 p.m., ordered a beer, and waited to see if they would be solicited by a prostitute. They observed the defendant in the tavern in the company of several females. On cross-examination, Metz admitted that he and Mauck were not solicited by defendant or by any of the women with him for the purpose of prostitution. After defendant left the tavern, a woman, who was the operator of the tavern, placed a business card bearing the defendant’s name on the officers’ table. This card advertised that defendant Dodson ran a booking agency and provided all kinds of entertainment. It was elicited from the police officers on cross-examination that the woman who placed this card on the table was the same person who earlier complained to the police concerning the promotion of prostitution in the tavern.
After remaining at the tavern for some time without receiving solicitations, Mauck and Metz left the tavern and drove to a motel near downtown Topeka where a room had been rented for their use prior to the start of the investigation. From this motel room they made several telephone calls to the numbers listed on defendant’s business card. Mauck made a call to the business number on the card and was told that no one by the name of Ricky Dodson was at that number. Metz then dialed the residence number listed on the card at approximately 11:30 p.m. and was told that Mr. Dodson was not at home. Metz testified he dialed this number again approximately fifteen minutes later and was again told the defendant was not at home. Metz left a message for defendant to call the officers’ motel room and ask for Doug.
Receiving no return on his call by 1:00 a.m., Metz again dialed the residence number and this time succeeded in talking to the defendant. According to Metz, they talked about defendant’s business card and his “providing all kinds of entertainment.” Metz asked defendant “if he could do us any good.” Defendant gave his address to Metz and stated, “I have girls but you’ll have to come out here.” According to Metz, defendant also said, “It will cost you between $45 and $55.” Metz asked defendant to send the girls out to their motel. Dodson replied he was having a party and said, “If you want some action, you’ll have to come out here and be here in about 20 minutes.”
Metz further testified he called the defendant again after a few minutes and requested that he send the girls to another motel which was located closer to defendant’s apartment. Metz asked the defendant to get a room there and they would meet him and pay for the room. According to Metz, defendant replied:
“. . • I have six Goddam girls here at my apartment. I pay over $200 per month rent for an apartment, and I’m not going to send them to a Goddam motel. If you want some pussy, you’ll have to come to my apartment.”
The defendant took the stand in his own behalf and denied most of the testimony of the state’s witnesses as to statements made by him. He specifically denied quoting a price of from $45.00 to $55.00. According to defendant’s version of the conversation, the caller said they wanted girls to dance for a bachelor party and asked to have them sent to their motel room. Defendant testified he refused to send the girls to the motel and quoted a figure of $5.00 an hour for dancing clothed and $7.00 an hour if the girls danced topless.
Shortly after these telephone conversations Mauck and Metz, accompanied by Detectives Killian and Hogan, drove to the defendant’s apartment. Hogan told Mauck and Metz to go inside and that after ten minutes he would come in the door. The officers arrived at the apartment at approximately 1:45 a.m. and Mauck and Metz knocked on the door. A female voice said, “Just a moment,” but no one responded to the knock for some time and the officers heard noises which, they testified, resembled those made when a shotgun is being loaded. The officers started to return to their car, but stopped when the defendant came out of the building and yelled at them. Metz stated defendant told him he had the right apartment and pointed to a girl on the steps of the building, explaining that this was one of his girls. Metz and Mauck returned to the apartment. Metz went to the back bedroom with the defendant to talk, leaving Mauck in the front room in the company of five or six girls. In the back bedroom the defendant questioned Metz and demanded identification from him, stating that the girls were a little bit nervous as they did not know whether the two men were “cops.” Metz and Mauck admitted on cross-examination that neither of them was propositioned for purposes of prostitution while they were in the apartment. After Metz and Mauck had been in the apartment for about ten minutes Detectives Hogan and Killian entered and defendant was arrested.
The complaint filed against defendant charged promoting prostitution in violation of K.S.A. 21-3513 in that defendant:
. . did participate in the maintenance of a house of prostitution, located at 5200 West 20th Street Terrace, Apt. No. 201 or solicit a patron; to-wit: Officer Metz, of the Topeka Police Department, for a prostitute, . . .”
After hearing the evidence, the trial judge found defendant guilty of the offense of promoting prostitution, as defined in the statute and this appeal followed.
Defendant specifies two points of error on appeal. He first contends the trial court erred in allowing the prosecutor, Mr. Thomas D. Haney, to cross-examine him regarding his assertion of the Fifth Amendment privilege against self-incrimination while testifying as a witness in a prior unrelated trial. The testimony of defendant, on cross-examination, leading up to the claimed error is reproduced in the record as follows:
“Q. Have you ever taken the witness stand and lied about anything before?
“A. No, sir.
“Q. Never?
“A. Not to my knowledge, no, sir.
“Q. You’ve been a witness before in---(interrupted)
“A. Pardon?
“Q. You’ve been a witness before in different things.
“A. I guess I have.
“Q. And you’ve never told anything but the complete truth all those times?
“A. I never what now?
“Q. You’ve told the truth at all times?
“A. Yeah, to the best of my understanding, yes.
“Q. Have you ever taken the Fifth Amendment on the witness stand about something you might have said?
“A. Yes, I have.
“Q. During a murder trial?
“A. Yes, I have.
“Mr. Haney: That’s all.
“A. On advice of my attorney.”
(Emphasis supplied.)
In his brief on appeal, defendant concedes no objection was lodged at trial nor was the matter called to the trial court’s attention on motion for a new trial. Nevertheless, defendant now says the error was so plain that the entire case was tainted and, thus, a reversal is required. In support of his position defendant relies on 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. Defendant also points out that K. S. A. 60-425 grants an absolute privilege to a witness not to testify about any matter which might incriminate him and that K. S. A. 60-439 forbids any comment with respect to the exercise of a valid privilege.
Doyle v. Ohio, supra, held that the use for impeachment purposes of the silence of an accused at the time of arrest and after receiving the Miranda warning was a violation of due process under the Fourteenth Amendment to the Constitution of the United States. In Mims we acceded to the holding in Doyle, specifically overruled our previous holdings regarding the use of silence for impeachment purposes, but found harmless error under the circumstances shown. Our decision in Mims was followed by State v. Heath, 222 Kan. 50, 563 P. 2d 418, wherein we applied the rule of Doyle and Mims to a situation where the prosecutor injected post-arrest silence on cross-examination of defendant and then commented on it in closing argument. In Heath we rejected the state’s argument that we apply the harmless error rule and reversed the conviction.
In the case at bar, the state responds to defendant’s arguments by asserting the question is not before us, in the absence of any objection, because of our contemporaneous objection rule (K.S.A. 60-404). The underlying rationale of our contemporaneous objection rule and the practical necessity of the application thereof in the termination of litigation has been recognized and the rule applied in many appeals coming to this court. (See, State v. Wilson, 221 Kan. 92, 558 P. 2d 141; State v. Carter, 220 Kan. 16, 551 P. 2d 821; and Baker v. State, 204 Kan. 607, 464 P. 2d 212, and the many cases cited therein.) However, we are reluctant to apply the rule in the instant case. The record discloses that the trial herein took place on June 17, 1976 — the day the decision in Doyle was announced. Mims and Heath were decided long after the instant trial. Neither the prosecution nor the defense had notice of the abrupt change in the law at the time of trial. In Heathwe noted the United States Supreme Court had not passed on the question of retroactive-prospective operation of the new rule declared in Doyle. We declined to declare prospective operation of the rule under the circumstances shown to exist in Heathwhexe an objection was made to the prosecutor’s comment in closing argument. We also note that an objection was contemporaneously lodged in Doyle and that counsel immediately moved for a mistrial when the improper question was put to defendant in Mims. Even though Doyle, Mims and Heath are distinguishable from the case at bar in the respect mentioned above, we do not rely on application of its contemporaneous objection rule alone in disposing of the question presented.
An examination of the entire record in the case at bar reveals that the improper question and the answer elicited were quite insignificant in the context of the evidence as a whole. As we have previously indicated, the defendant testified to an entirely different version of his conversations with Metz. The critical issue in the case was whose testimony should be believed. The cir cumstantial evidence of times, places and surroundings, and the testimony of other officers, added considerable credence to the testimony of Officer Metz. It is not surprising that the trial judge chose to believe Metz rather than defendant. We have concluded from an independent examination of the entire record that the prosecutor’s improper question was so inconsequential as to amount to harmless error beyond a reasonable doubt.
We think it worthy of mention in connection with our application of the harmless error rule that this was a trial to the court rather than to a jury. Concerning application of the harmless error rule, Judge Gard (Gard, Kansas Code of Civil Procedure Annotated, Sec. 60-261) says:
“Where the trial is to the judge without a jury the rule is less difficult of application because of the collateral considerations which bear on the problem. For instance there is no presumption that the trial judge considered evidence improperly admitted. He is presumed to have considered only what was proper. . . .” (p. 280.)
For his second point on appeal, defendant contends the evidence is insufficient to support a conviction. Defendant takes the position that a conviction cannot be had on a simple offer of services by a middle man as “pimp.” Defendant argues the proof must go further and show the actual existence of a prostitute and some overt act by that prostitute. Defendant further argues that under the statute (K.S.A. 21-3513[l][c]) the existence of a prostitute or a house of prostitution must be proved by the state and that such proof must further show some overt act or offer by the female herself.
We, of course, must view the. evidence in the light most favorable to the state, the prevailing party below. It must also be borne in mind that on appellate review of a criminal case the question is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence was sufficient to form a basis for a reasonable inference of guilt. (State v. Duncan, 221 Kan. 714, 562 P. 2d 84; and State v. Wilson, 220 Kan. 341, 552 P. 2d 931.) The credibility of witnesses will not be passed upon and conflicting evidence will not be weighed on appellate review. This court looks only to the evidence which supports the verdict and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. (State v. Duncan, supra; State v. McCollum, 211 Kan. 631, 507 P. 2d 196; and State v. Griffin, 210 Kan. 729, 504 P. 2d 150.)
K.S.A. 21-3513 is a broad, umbrella-type statute. It defines the offense of promoting prostitution in the alternative as any one of eight different items of particular conduct which would constitute the offense. As previously indicated defendant was charged with participating in the maintenance of a house of prostitution under 21-3513 (1) (a) or soliciting a patron for a prostitute under 21-3513 (1) (e). Any competent evidence as to either alternative requires our affirmance of the conviction.
Metz’s testimony of the statements made by defendant taken together with the presence of the five or six girls in defendant’s apartment in the context of other surrounding circumstances is evidence in support of the trial court’s findings with respect to either of the alternatives. It is ordinarily a question of fact whether the acts and words of the defendant, viewed in the light of surrounding circumstances, constitute solicitation of prostitution. (Curran v. United States, [Mun. App. D. C.] 52 A. 2d 121.) Precise statutory language is not necessary where an offer is implicit in the words and actions of a defendant. (Williams v. State, 254 Ind. 4, 256 N. E. 2d 913.) Under similar statutes, courts of other jurisdictions have generally held that no overt act is required to complete the offense of solicitation. (Pauline v. Lee, [Fla. App. 1961] 147 So. 2d 359; Marcus v. City of Birmingham, 41 Ala. App. 477, 136 So. 2d 920, cert. den. 273 Ala. 711, 136 So. 2d 923; and Government of Virgin Islands v. Rodrigues, [3rd Cir. 1970] 423 F. 2d 9.) In State v. Green, 192 Kan. 451, 388 P. 2d 657, defendant was charged with procuring a female for the purpose of prostitution in violation of G.S. 1949, 21-937, a forerunner of K.S.A. 21-3513. The principal issue in Green concerned the sufficiency of corroborative testimony, but defendant also claimed there was no evidence introduced to show the subject woman engaged in prostitution. Even though the evidence disclosed an arrest was made before any overt act evincing, prostitution took place, this court, in rejecting the defendant’s contentions, said:
“. . . A review of the record discloses there was ample evidence, not only parol and written but also circumstantial, to sustain the conviction on both counts. . . (p. 454.)
It is not fatal to the state’s case that defendant did not state the girls were available for prostitution or sexual intercourse. The word “pussy” as used by defendant to describe the contemplated activity is denominated vulgar slang in Webster’s Third International Dictionary (Unabridged), p. 1849, and defined as meaning inter alia “sexual intercourse.” In a prosecution for offering acts of sexual intercourse and sodomy for hire under an Indiana Statute (Ind. Ann. Stat. Sec. 10-4220 [1969 Supp.], now Burns Indiana Statutes Annotated, Sec. 35-30-1-1) in Williams v. State, supra, wherein the Indiana Supreme Court was confronted with the meaning of vulgar slang used as in the case at bar, Chief Justice Hunter speaking for the court said:
“. . . The offer was implicit in appellant’s words and actions when taken in the context in which they occurred. As was said in Burton v. State (1952), 232 Ind. 246, 111 N. E. 2d 892, this court should not be ignorant as judges of what we know as men.” (p. 6.)
We find the judgment of the trial court is sustained by sufficient evidence.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the Second Injury Fund (now workmen’s compensation fund, see K.S.A. 1976 Supp. 44-566a) in a workmen’s compensation case challenging an apportionment of the award attributing sixty percent of the claimant’s twenty-five percent permanent partial disability to the Second Injury Fund pursuant to K.S.A. 44-567 (a) (2) (now K.S.A. 1976 Supp. 44-567 [a] [2]).
On August 30, 1973, the claimant, Charles K. Cody, suffered a back injury while working for Jayhawk Pipeline Corporation. As a result claimant received a fifteen percent permanent partial disability award.
Subsequently, Jayhawk re-employed claimant. On January 9, 1974, Jayhawk filed a Form 88, Notice of Handicapped Employees, showing claimant to be physically impaired because of a spinal deformity due to the laminectomy performed after the 1973 injury. Receipt of the form was acknowledged by the workmen’s compensation director on January 19, 1974.
On October 2, 1974, claimant’s back was re-injured during the course of his employment. It was stipulated that he had a twenty-five percent permanent partial disability after this injury. The primary issue on appeal is the apportionment of the dis ability award between the insurance carrier and the Second Injury Fund. The hearing examiner found the insurance carrier failed to meet its burden of proof by not establishing that the injury would not have occurred but for claimant’s pre-existing physical handicap caused by his previous injury. The examiner assessed the entire award against the insurance carrier and the director approved the decision. On appeal to the district court the award was approved except for its apportionment. The district court found that although the accident would have been sustained without regard to the previous injury, the medical evidence revealed that sixty percent of claimant’s present disability was contributed to by his pre-existing impairment. On that basis the district court assessed sixty percent of the award against the Second Injury Fund and forty percent against the respondent and its insurance carrier.
Appeal to this court was duly perfected by the Second Injury Fund.
The issue is controlled by K.S.A. 44-567, which provides for Second Injury Fund coverage in two instances: (I) When the second injury would not have occurred “but for” the previous injury (See, Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P. 2d 679; Leiker v. Manor House, Inc., 203 Kan. 906, 457 P. 2d 107); and (2) when the first injury “contributed to” the overall disability found after the second injury (Blevins v. Buildex, Inc., 219 Kan. 485, 548 P. 2d 765.).
The present case is not one where the injuries would not have occurred “but for” the pre-existing impairment. The medical evidence clearly reflected that the present injury would have happened irrespective of the existence of the previous injury, and the examiner and director were correct in that conclusion. This, however, is a “contributing to” case under K.S.A. 44-567 (a) (2). The issue thus becomes whether medical evidence established the extent, if any, to which claimant’s pre-existing impairment contributed to his disability resulting from the second injury. (Blevins v. Buildex, Inc., supra at 488.)
Dr. Kenneth Johnston examined and treated claimant for both injuries. On the occasion of the first injury he diagnosed claimant’s injury as a back injury which required a laminectomy. Based on Dr. Johnston’s report, the examiner entered an award in favor of claimant for fifteen percent permanent partial disability. After the second injury the doctor again treated claimant. At the hearing on the second injury the doctor rated claimant as having a twenty-five percent disability. When asked whether the pre-existing injury contributed to the present disability in any way, the doctor testified that the fifteen percent injury contributed to the twenty-five percent disability.
Where there is substantial competent evidence to support the trial court’s finding on a particular question in a workmen’s compensation case, this court will not disturb that finding. (Blevins v. Buildex, Inc., supra; Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P. 2d 313; Stanley v. A & A Iron Works, 211 Kan. 510, 506 P. 2d 1120.) Moreover, in determining whether there is substantial competent evidence to support a finding, the record must be viewed in the light most favorable to the prevailing party below. (Day and Zimmerman, Inc. v. George, supra; Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P. 2d 518.) The medical evidence in this case clearly supports the district court’s apportionment.
The Second Injury Fund argues claimant is not entitled to coverage under the fund because: (1) The director was not properly notified that claimant was a handicapped person, and (2) claimant is not a handicapped person within the meaning of the Second Injury Fund. Neither contention is meritorious.
Jayhawk filed a “Notice of Handicapped Employees” form with the workmen’s compensation director prior to the injury in question. It was stipulated that it was received by the director. The form used was the standard Form 88 as set forth in K.A.R. 51-1-22. It informed the director that claimant had general bodily disability because of a spinal deformity. This was adequate notice as to both the fact and nature of claimant’s prior injury.
Claimant’s prior injury is sufficient to find claimant is a handicapped person. The fact he has returned to his prior occupation and receives a wage equal to or greater than his wage before the injury is of no consequence. This court has often stated that the primary purpose of the workmen’s compensation act is to compensate an injured workman for his physical injuries and it is irrelevant that an injured workman may actually earn a greater salary (Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P. 2d 146; McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P. 2d 39).
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Per Curiam:
The defendant, Amy V. Marsh, appeals from a judgment decreeing specific performance of a written real estate contract signed by her and the plaintiff, Robert E. Pitts.
Defendant owned a duplex in Wichita, Kansas, which she listed with a real estate agency for sale at $17,000.00. The first offer she received was from plaintiff for $14,000.00. The offer was received one month after listing. The real estate agency advised defendant of the offer and two agents of that firm discussed the possibility of a sale with defendant at her home. A contract was drawn by one of the agents and was signed by the defendant. The contract was then presented to the plaintiff. He signed the contract and paid the $1,000.00 earnest money payment.
The contract was on a standard form in use by realtors in the Wichita area. It set forth the names of the parties, the legal description of the property and the selling price; acknowledged receipt of the down payment of $1,000.00; provided for installment payments and escrow of title documents; set forth the liability of the respective parties for transfer fees, escrow costs, taxes and insurance; outlined the handling of title requirements and the payment for title insurance costs; provided for termite inspection and treatment, if necessary; and set a closing date.
The defendant refused to perform the contract and an action was filed by the plaintiff. A trial was had to the court and specific performance was ordered.
Defendant-appellant asserts on appeal that the trial court erred in finding the contract was clear and unambiguous. She argues that the court directed her or her counsel to name an escrow agent and further directed that if plaintiff failed to make any of the monthly payments his interest in the property would be forfeited. She contends since the sale contract failed to contain these necessary provisions it was too uncertain and indefinite to justify specific performance. She argues the court erred in making an agreement for the parties.
In order for a court to decree specific performance of a contract for the sale of real estate it is necessary the evidence pertaining thereto establish its terms, conditions and purposes with definiteness and certainty. (Peterson v. Hagaman, 162 Kan. 222, Syl. 2, 175 P. 2d 118.) The requirement of certainty in the terms of the contract extends to the parties, subject matter, purposes, consideration, place and time of performance, terms of payment and duration of the contract. (71 Am. Jur. 2d, Specific Performance, Sec. 34, p. 54.) Reasonable certainty in the terms of a contract is all that is required for a court to decree specific performance; the contract need not provide for every collateral matter or every possible contingency which might arise with respect to the transaction. (81 C.J.S., Specific Performance, Sec. 31 b, pp. 486 and 487; 71 Am. Jur. 2d, Specific Performance, Sec. 34, p. 54.)
In the present case the contract was in writing and covered the essential requirements with sufficient definiteness for the court to understand and enforce the mutual obligations of the parties as stated in the written instrument.
The court required the defendant to name an escrow agent to service the installment contract. It further declared that if plaintiff failed to make any monthly payment his title would be forfeited. These were collateral matters properly within the equity powers of the court in this case. They were not unreasonable requirements. They were largely for the benefit of the defendant. “[F]ees required in establishing and paying of escrow” were called for in the contract. The selection of an escrow agent is generally left to the seller as was directed by the court in this case. The strict forfeiture provision imposed by the court was most advantageous to the seller.
This sale was made through a real estate agency selected by the defendant. There was no evidence of fraud or overreaching by the plaintiff. The fact that defendant did obtain a later offer of $17,000.00 for the property does not establish that the prior $14,000.00 offer by plaintiff was unreasonably low. The amount of the $1,000.00 down payment and the terms of the contract relating to the installment payments were agreed upon at arm’s length and without pressure from the plaintiff. Interest on installment payments at 9%% per annum was suggested by the seller or her agents and was agreed to by plaintiff. The trial court properly decreed specific performance.
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The opinion of the court was delivered by
Thiele, J.:
This was an action brought to determine title to a particular tract of land hereafter described, but referred to frequently as the Penny farm, and to settle matters pertinent thereto. The plaintiffs prevailed, and the defendant Etta Idol appeals.
Because of the detailed statements in the findings of fact, only a brief summary will be made of the pleadings. The petition alleged that under the will of Emily Y. Campbell her residuary estate went to F. M. Pearl, as trustee, to be by him sold and converted into money and the proceeds divided among certain named persons, who, or their successors in title, were the plaintiffs and the defendants Harvey T. Bradley and Fred Idol; and that they are beneficial owners of the residue, which included the southeast quarter of section 8 and the southwest quarter of section 9, township 2, range 19, in Doniphan county, Kansas. It was then alleged:
“Plaintiffs further allege that in 1899 said Emily V. Campbell purchased the above-described real estate; that at the time of such purchase she was married to John W. Campbell, who at that time and subsequently assisted her in the management of her business; that on September 22, 1899, the said John W. Campbell assisted in the negotiations leading up to the purchase of the real estate heretofore described and a deed was taken to said property in the name of John W. Campbell, notwithstanding the fact that the entire consideration of $17,000 paid for said real estate was furnished and paid by said Emily Y. Campbell, and the title to said property was taken in the name of John W. Campbell upon the agreement between John W. Campbell and Emily V. Campbell, and without any fraudulent intent, that John W. Campbell was to hold said land and the title thereto in trust for his wife, the said Emily V. Campbell, and such title was so taken and held by John W. Campbell in trust for said Emily V. Campbell.”
The petition further alleged that after acquisition of the land it was managed by Emily V. Campbell and was regarded by her and her husband as being her property, etc., and that she collected and retained the rents, paid the taxes, made and paid for the improvements, etc., and that her possession was open, visible and known to the community and to her husband, etc. We need not here detail allegations with reference to the will of her husband nor what was done in the administration of his estate. The prayer was for determination of ownership of the real estate described and for decree that'-the plaintiffs and defendants Harvey T. Bradley and Fred Idol were owners, etc.
The answer of Etta Idol admitted she was in possession of the real estate in question; that the will of Emily Y. Campbell had been admitted to probate, but denied that it devised the land. She set up her version of the acquisition of the land and her claim that it was the property of John W. Campbell and passed to her under his will. Numerous other allegations need not now be noticed. Her prayer was that plaintiffs and defendants other than herself be denied relief and be barred from any interest in the real estate, and that she have such relief as the court deemed just and equitable.
We need not detail the answer of F. M. Pearl in his various representative capacities. It may be noted here that neither the will of Emily Y. Campbell nor of her husband, John W. Campbell, specifically described the Penny farm.
At the trial much evidence was taken, the evidence as abstracted constituting about 120 pages. The trial court made findings of fact and conclusions of law which are quoted or summarized as follows:
“(1) [Here immaterial.]
“(2) At the time of the marriage of Emily V. Campbell to John W. Campbell in 1893, Emily V. Campbell was a widow of considerable financial means, having inherited from her first husband, H. W. Newling, three different tracts of cultivated land in Brown county, Kansas, consisting in the aggregate of approximately 257 acres of land, and about $20,000 in personal property, consisting mostly of notes and mortgages. On the other hand, John W. Campbell was a man of little or practically no financial means, was a clerk in a small mercantile store in White Cloud, Kan., and the only property which the evidence shows that he owned' was a 40-acre tract of rough, uncultivated land on the Missouri river, worth approximately $10 or $15 per acre.
“(3) In September, 1899, Emily V. Campbell purchased from John D. Penny and wife, and W. H. Forbes and wife, a farm consisting of 320 acres, described as . . . [the Penny farm], in Doniphan county, Kansas.
“The deed given therefor was dated September 22, 1899, and was filed of record on March 1, 1900, named John W. Campbell as grantee therein, and stated a consideration of $17,000.
“(4) At the time of or shortly prior to the purchase of said land Emily V. Campbell had at her disposal and available for the payment of such purchase price the approximate sum of $11,500 in cash, without reference to other property, real and personal, which she owned, while John W. Campbell had no money, funds or income from which the purchase price or any considerable portion thereof could have been paid. The evidence affirmatively shows that $8,000 of the purchase price of the Penny farm was paid by Emily V. Campbell from the proceeds of a loan secured by a mortgage executed by Emily V. Campbell and John W. Campbell upon the land in question, which mortgage ran to Julia P. Warren; and that the Warren mortgage was later paid by the proceeds of a mortgage executed by Emily V. Campbell and John W. Campbell to the Mutual Benefit Life Insurance Company. This last mortgage was paid by Emily V. Campbell by the application of another mortgage in the amount of $8,500 which she owned, which said mortgage was upon the land not herein involved but which had formerly belonged to her.
“This chain of circumstances shows positively that Emily Y. Campbell paid in this manner $8,000 of the original purchase price of said land.
“From the above facts and from other evidence introduced, the court finds that the full consideration paid for the Penny farm, the land in question, was paid by Emily V. Campbell.
“(5) From the time of the purchase of the Penny farm Emily V. Campbell exercised complete domination and control over its management, rented it to tenants, received the proceeds from the crops raised upon the farm, built an eight-room house, a barn, granary, and other improvements thereon, and paid for the same from her own funds; that with the exception of one year, 1901, the farm was assessed for taxation in her name, with the acquiescence and at the direction of both Emily V. Campbell and John W. Campbell; that she paid the taxes on said property from the time of its acquisition in 1900 up to the time of her death in 1932.
“(6) On various occasions John W. Campbell referred to the farm as ‘her farm,’ or as ‘his wife’s farm,’ and frequently stated that the ‘farm belonged to her.’ On one occasion when asked concerning the location of a ditch upon the farm, John W. Campbell stated to workmen building such ditch that he would have to ask his wife, as ‘she owned the place’; on another occasion, when speaking of whether the land should be put to grass or wheat he stated to other workmen that ‘he would leave it to his wife, as she had the say.’ On still another occasion, in determining the location of a granary upon the farm, John W. Campbell stated in the presence of two witnesses: ‘Well, all right, the place is yours [meaning his wife] and you are paying for it. Put it where you want to.’
“Other statements of a similar nature were made at different times by John W. Campbell, and numerous other statements were made by him recognizing her as the owner of said farm.
“(7) Emily V. Campbell made numerous statements to different witnesses in and out of the presence of John W. Campbell that she had bought the farm, that the farm was hers and that she would like to sell it, and that she owned it. Shortly after the farm was purchased and while in the possession of tenants, she stated to one witness: ‘I had some money and I knew of no better way to invest it than to buy land and I bought the Penny farm.’ Many other statements of such import were made by Emily Y. Campbell.
“(8) The evidence shows that no claim was ever made at any time during his lifetime by John W. Campbell that he owned the farm or had any control over it or the management or operation of it; that while he assisted his wife at times in managing or looking after the farm, still she dominated its supervision and made the decisions as to its operation and dictated what should be done in regard to its management. She paid taxes upon the farm for approximately thirty-two years and until the time of her death.
“(9) Prior to the purchase of the farm and for many years thereafter, John W. Campbell did not have a bank account, while his wife, Emily V. Campbell, had a bank account, and what checks were drawn by John W. Campbell were drawn upon his wife’s account, and such checks were signed ‘Emily V. Campbell, by 'John W. Campbell.’ The proceeds of the farm were deposited in her bank account.
“(10) It appears from the evidence respecting the financial standing and condition of the parties and the payment of the purchase price by Emily Y. Campbell and the taking of the title to the land in the name of John W. Campbell, from the confidential and fiduciary relation existing between them, from the conduct of both John W. Campbell and Emily V. Campbell respecting the building and payment for improvements, the assessment of the property for taxation in her name and the payment of taxes by her, the admissions made by John W. Campbell as to the ownership of the farm by his wife, the statements made by Emily Y. Campbell respecting her ownership, from the manner in which they both regarded the farm, its ownership, management, and operation, that a trust relation existed between them in respect to said farm, and from the foregoing circumstances and other evidence not herein detailed, there was an agreement between Emily V. Campbell and John W. Campbell that John W. Campbell was to hold title to said farm in trust for his wife, Emily V. Campbell, and the court finds that John W. Campbell did in fact hold said farm in trust for Emily Y. Campbell.
“(11) That the agreement so implied from the relationship of the parties and the circumstances enumerated above that John W. Campbell would hold the title to said land in trust for his wife was without fraudulent intent on the part of either of them.”
(12) [On January 15, 1915, wills prepared by F. M. Pearl for John W. Campbell and Emily V. Campbell were drawn and executed and left with Pearl.]
(13) Emily V. Campbell’s will was revoked by a will made in 1930 under which plaintiffs claim andj—
“Neither the will of John W. Campbell nor Emily V. Campbell executed in 1915 specifically described any real estate as passing thereunder. At the time of the execution of his will, John W. Campbell owned the 40-acre tract of land referred to in finding No. 2 and a city lot in White Cloud, Kan., appraised at $50. Emily V. Campbell, however, owned considerable real estate consisting of both city and farm property.
“(14) John W. Campbell died October 14, 1917, a resident of Doniphan county, Kansas.
“(15) On July 7, 1930, F. M. Pearl caused the will of John W. Campbell, which had been in his possession and locked in his office safe since the death of John W. Campbell thirteen years before, to be filed for probate. On July 18, 1930, F. M. Pearl was appointed by the court as executor of the estate of John W. Campbell, and on the same date the court appointed appraisers to appraise his estate and to return an inventory thereof. However, no such appraisement was made or inventory filed in said estate until two years later, reference to which is hereinafter made.
“(16) [Immaterial here.]
“(17) Emily V. Campbell died on April 3, 1932, and seventeen days after her death, and on April 20, 1932, F. M. Pearl, as executor thereof, filed an inventory and appraisement in the estate of John W. Campbell, wherein he listed the Penny farm as belonging to John W. Campbell, and constituting a part of his estate. This was the first claim of ownership to the Penny farm made on the part ofl John W. Campbell or his estate by either the defendant Pearl or the defendant Etta Idol.
“On the same day that he filed the inventory in the John W. Campbell estate, P. M. Pearl, as executor thereof, filed an inventory in the estate of Emily Y. Campbell in which he omitted listing the Penny farm as part of that estate.
“(18) The defendant Etta Idol went into the possession of the Penny farm shortly after the death of Emily V. Campbell-and is now in possession thereof with the permission of E. M. Pearl as trustee thereof under the will of Emily V. Campbell, deceased.
“(19) The plaintiffs, with the exception of Leona Waggoner and Warren Snook, and the defendants Harvey T. Bradley and Ered Idol, as well as the defendant Etta Idol, are nieces and nephews of Emily V. Campbell, deceased. The plaintiffs claim title to the land in question as devisees under the will of Emily Y. Campbell, deceased, while the defendant Etta Idol claims title to the land in question as devisee under the will of John W. Campbell. P. M. Pearl is related to the defendant Etta Idol and is a cousin by marriage.
“(20) F. M. Pearl is now acting as the executor of the estate of John W. Campbell, deceased, and of Emily Y. Campbell, deceased, and is also acting as trustee under the will of Emily V. Campbell, deceased, as to all real estate owned by her at the time of her death. Under the will of Emily V. Campbell, F. M. Pearl is charged with certain duties therein expressed concerning such real estate.
“(21) The estate of John W. Campbell, deceased, is indebted to the estate of Emily V. Campbell, deceased, in the amount of several hundred dollars, representing amounts paid by Emily V. Campbell for the benefit of the estate of John W. Campbell; and F. M. Pearl, as executor of the estate of John W. Campbell, deceased, is indebted to himself as the executor of the estate of Emily V. Campbell, deceased. Moreover, he is a creditor of both estates in the amount of 8500, representing unpaid attorney’s fees and executor’s fees in each estate.
“(22) No action has been taken by F. M. Pearl as trustee under the last will and testament of Emily V. Campbell, deceased.
“(23) On February 15, 1935, the defendant Etta Idol, upon the direction of F. M. Pearl, paid or caused to be paid to the county treasurer of Doniphan county, Kansas, the sum of $1,596.95, purporting to be the inheritance tax chargeable against the estate of John W. Campbell, deceased, which check was computed upon erroneous information given to the probate court of Doniphan county, Kansas, and subsequently given to the inheritance tax commission of the state of Kansas, that John W. Campbell died October 14, 1920, while the correct date of his death was October 14, 1917.”
“Conclusions op Law
“(1) From all the evidence in the case it appears to the court, and the court concludes as a matter- of law, that by agreement and without any fraudulent intent, John W. Campbell was to hold, and did hold, the Penny farm, the land involved in this action, in trust for his wife, Emily V. Campbell, who paid the purchase price thereof.
“(2) The plaintiffs and the defendants Harvey T. Bradley and Fred Idol are entitled to be decreed to be the owners of the real estate involved in this action, subject to the provisions of the will of Emily V. Campbell, deceased, free from the claims of the other defendants in this case, and that the de fendant Etta Idol is not entitled to the possession thereof and should be ejected therefrom.
“(3) Because of the confusion among the three estates herein described, and the existing conflict of interest, it is impossible for the defendant, E. M. Pearl, to account to himself and to make settlement with himself between one trust and the others, by reason of which, together with the other circumstances shown in the case, he is not a proper person to act as executor of the estate of Emily Y. Campbell, deceased, or as the trustee of her estate, and should be removed as such executor and trustee of her estate to the end that the same may be administered impartially and without confusion of conflicting interests.
“(4) That the defendant Etta Idol took no interest in the real estate involved herein under the will of John W. Campbell, deceased, and that she has no interest in said real property under the will of Emily V. Campbell, deceased, and that upon the death of John W. Campbell, the legal and equitable title to said real estate was vested in Emily V. Campbell, hnd upon her death the same passed to the plaintiffs and the defendants, Harvey T. Bradley and' Fred Idol, subject to the provisions of the will of Emily V. Campbell.
“(5) That upon consideration of all the evidence in the case, the plaintiffs are not guilty of laches as claimed by the defendants, and that the cause of action stated in the petition is not barred by the statute of limitations.
“(6) That this court should retain jurisdiction of this case to administer the trust estate for the purpose of an accounting between the defendant Etta Idol and the plaintiffs and the defendants Harvey T. Bradley and1 Fred Idol, for the reasonable and proper rental value of said real estate during the period of her possession, and for such other proper relief incident to a complete determination of this case.
“(7) The estate of John W. Campbell, deceased, was not subject to the payment of an inheritance tax because of the enactment of chapter 290 of the Session Laws of 1929 (section 79-1501c, G. S. 1935), and therefore the amount of 81,596.95 paid or caused to be paid by the defendant Etta Idol, at the instance and direction of the defendant F. M. Pearl, was a payment not required by law.”
Judgment consistent with the findings of fact and conclusions of law was rendered. F. M. Pearl, as trustee, was removed and a successor in trust was appointed. Etta Idol appeals.
There is no dispute but that under the allegations of the petition the claim is that with reference to the land in question the conveyance was made to John W. Campbell, the consideration was paid by Emily Y. Campbell, and that a trust resulted in her favor. Whether such claim is good or not is controlled by two sections of our statute. Under G. S. 1935, 67-406, it is provided that:
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.”
The first of the two sections therein referred to is not applicable here, but the second, G. S. 1935, 67-408, reads:
“The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.”
Consistent with the allegations of the petition and with the above statutes, appellant argues that plaintiffs must show that the entire purchase price was paid by Emily V. Campbell, and she further contends it must all have been paid at or before the time the land was purchased, or if not all paid, that an agreement as to an aliquot part should have then been made; that plaintiffs must further show that by agreement and without any fraudulent intent John W. Campbell was to hold the title to the land in trust for Emily V. Campbell, the agreement to be made at the time of the conveyance, and that plaintiffs must affirmatively show absence of fraudulent intent. In connection with her argument, appellant deals not only with legal tests for determining the elements of consideration and its payment, the agreement and the absence of fraudulent intent, but with the sufficiency of the proof, and contends that the proof was insufficient. Appellant’s brief and the brief of the appellees are exhaustive, and many citations of authority are made. Lack of space precludes reference to all such citations.
With respect to all three elements involved, appellant calls our attention to decisions from other jurisdictions, and to other authorities, holding that the proof should be clear, strong and convincing, and such as not to leave reasonable doubt, and that parol evidence to establish a resulting trust should be received with caution. (65 C. J. 449; 23 A. L. R. 1502; 2 Bogert on Trusts & Trustees, p. 1424.) In cases arising under the same statutes with reference to trusts, this court has never applied so strict a rule. In Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52, it was said:
“There was no express'agreement shown on the part of Mrs. Lyons that she held the park property in trust for Korman. This was proved by circumstances. While the proof was not strong, we think it was sufficient to justify the jury in so finding.” (Italics ours.) (p. 433.)
There the claimed beneficiary was in possession until his death. In Taylor v. Walker, 114 Kan. 614, 616, 220 Pac. 518, appears the following:
“It will be observed the statute does not require the agreement to hold title in trust for the person paying the consideration to be in writing, and the court has held many times that a parol agreement is sufficient. The exception to the provisions of section 11679 [now G. S. 1935, 67-406] is one of several in which a trust may be established by parol evidence, and it is sufficient that the court or jury trying the case be satisfied of the existence of the trust relation.” (Italics ours.) (p. 616.)
In that case the claimed beneficiary was in possession. Even though it be assumed that the proof should meet the standard contended for by the appellant, it would be presumed, in the absence of evidence to the contrary, and there is none here, that the trial court applied the proper test in weighing the evidence submitted and in finding the facts. (See Leverton v. Rork, 74 Kan. 832, 85 Pac. 800; Woodell v. Albrecht, 80 Kan. 736, 104 Pac. 559; Hoover v. Hopkins, 122 Kan. 65, 251 Pac. 411.) In commenting on the last cited case, this court, in Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043, 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.” (Italics ours.) (p. 915.)
We shall consider appellant’s specific complaints in view of the above.
It is first contended there is no evidence that Emily Y. Campbell paid the purchase price for the Penny farm, and especially that she paid all of the purchase price at or before the conveyance, and our attention is directed to the last two paragraphs of finding 4. That entire finding must be read in connection with findings 2 and 9, especially, and all other findings bearing on the question of payment. Whether the facts found are legally sufficient or not, the' record clearly shows that when the farm was purchased Emily V. Campbell was in funds to pay $9,000 of the stated consideration of $17,000, and that her husband had little or no personal property and that such real estate as he possessed was not used either as part of the consideration or as a basis for raising it. Appellant states she ' can find no decision that payment of the consideration can be in ferred, and she argues it must be expressly proved by plaintiffs that Emily Y. Campbell paid the consideration, and that her husband did not. In support, she directs our attention to the syllabus, and especially to the last paragraph of the opinion in Kaul v. Hoenshell, 129 Kan. 278, 282 Pac. 697, wherein it is said:
“Because the plaintiff had not paid any part of the purchase money at the time the land was purchased, the statute last quoted [G. S. 1935, 67-408] does not control, and for that reason no trust arose in favor of the plaintiff.” (p. 279.)
That sentence cannot be separated from the other parts of the opinion and considered alone. Reference to the opinion will show that in that case plaintiff had paid no part of the consideration, but that after the deed there involved had been executed and delivered to defendant, who paid the full consideration, plaintiff had tendered a check for one half of the consideration and claimed a one-half interest in the land. Whether under that state of facts a trust arose in plaintiff’s favor was the question for decision, and the syllabus and the quoted language must be read and considered with that in mind.
The matter does not rest entirely on inferences from the evidence, however persuasive they may be. Nell Stearns, a distant relative of Mrs. Campbell and of the appellant, but who was not a beneficiary under the will, testified to a conversation had between Mrs. Campbell and the witness and her mother. She was not able to fix the date. In effect it was that her mother said to Mrs. Campbell:
“Emily, I heard you bought some land,” and that Mrs. Campbell said, “Yes, I did, Matt, I had some money and I know of no better way to invest it than to buy land, and I bought the Penny farm.”
In view of the above statement and other testimony of the witness, it is clear that although the witness could not fix a date, the conversation took place not long after the Penny farm was acquired.
In support of her contention the purchase price must have been entirely paid by Emily V. Campbell at or before the land was acquired, appellant relies on Anderson v. Anderson, 138 Kan. 77, 23 P. 2d 474. That opinion was one denying a rehearing, the original opinion appearing in 137 Kan. 833, 22 P. 2d 471. Space does not permit a full statement of the facts leading up to a claim that interests in land varied, dependent on the amount of the original purchase price that might thereafter be paid by each of two grantees. In the last opinion, after making reference to the trusts statutes, it was said:
“Such an agreement must be made when title is taken, and if it does not relate to the entire tract, must relate to some definite share of the land. In this instance there was nothing remotely resembling an agreement between James and Richard that Richard was to hold an aliquot part of half of the land on any terms for anybody.” (p. 78.)
But that must be read in connection with the whole matter. The facts in that case and in the case at bar are materially different, and that case does not support the contention the purchase price must be fully paid at the time the deed was made by the person asserting a resulting trust in his' favor.
Although it is contended that the court’s finding No. 4, tracing payment of the $8,000 mortgage given when the Penny farm was purchased, is not sustained by the evidence, our examination of the record shows that it is sustained. Of course, when that mortgage was first given, John W. Campbell signed it and the note it secured. Later, another $8,000 mortgage was executed and the proceeds used to pay the first. There is no dispute this last mortgage was paid by Emily V. Campbell. It seems that the second mortgage was paid by using a mortgage owned by Emily V. Campbell and which she acquired some time previously when she sold some land belonging to her which at some previous time stood in her husband’s name. This fact and the fact that the release of the first mortgage stated receipt of moneys from John W. Campbell did not compel the court to disregard the otherwise undisputed evidence.
Assuming, as we do, that the findings with respect thereto are supported by substantial competent evidence, we are of the opinion that Emily V. Campbell, having paid originally of the total consideration of $17,000, the sum of $9,000, and having obligated herself to pay the remainder of $8,000, and having subsequently paid it, in legal effect paid the consideration mentioned and referred to in G. S. 1935, 67-406.
Appellant concedes that an agreement to hold land in trust under the above-mentioned statutes may be inferred from the circumstances, but she insists that it must be shown that the agreement was made at the same time as the conveyance. This contention seems to be based solely on Clester v. Clester, 90 Kan. 638, 640, 135 Pac. 996. John Clester had lived in Ohio, where he was married and had children. His wife died. He came to Kansas and invested in a farm some money his wife had inherited. This land was sold and the proceeds invested in the lands in controversy. He married a second time, and not long thereafter conveyed a part of the land to his second wife. Later, by transfer through a third person, she had title to the remainder. There was evidence she possessed no means of her own; that she had made admissions she held the title in trust; that she knew that money of the first wife was used to purchase the farm and that she intended to pay the children of the first wife for their share. After the death of the father, the children of the first wife sought to recover the land on the theory a trust was created. A demurrer to the evidence was sustained. Appellant directs our attention to the following quotation:
“The weakness in appellants1 claim is the absence of any testimony to show an agreement at the time the conveyances were made by which Ida M. Clester was to hold the land in trust for the husband. Had there been testimony that such was the agreement, the case might be said to fall within the provisions of section 8 of the act relating to trusts) and powers (Gen. Stat. 1909, §9701), and even though the agreement had been oral it would lie within the province of equity to raise a trust to prevent a failure of justice (Rayl v. Rayl, 58 Kan. 585, 589, 50 Pac. 501, and cases cited in the opinion). But there was no testimony showing any •promise or agreement or understanding at the time the conveyances were made that she should hold in trust for him.” (p. 640.) (Italics ours.)
But the case was summed up later, as follows:
“The appellants’ argument in effect is, that it is unreasonable to assume that John Clester intended to convey to the second wife all the land he owned and to exclude them from any interest therein; and that from the mere unreasonableness of such an intention it is a fair inference that an agreement was made at the time by which Ida M. Clester was to hold the title in trust for him. The argument loses sight of the fact that, being the owner of the land, he could lawfully make a gift of it to the wife regardless of how unreasonable such a procedure might be or appear to be. The conveyance to her without a valuable consideration being presumed to have been intended as a gift, the burden rests upon appellants to establish the contrary.
“If all that is required to defeat an absolute conveyance of real estate by the husband to the wife is a showing that it results in hardship and unfairness to other members of the family, then it follows that no matter what the intention may have been, the conveyance must stand or fall upon the question of how it may appear to affect the interests of persons other than the grantor and the grantee. The husband may have intended to make a gift to the wife, but his purpose fails if a jury will say that the making of a gift to her under the circumstances was unreasonable because it results in hardship to others. That such is not the law is too apparent to require argument or the citation of authorities.” (p. 643.)
We believe appellant puts too much stress on the italicized language. We have heretofore referred to and quoted from Lyons v. Berlau, 67 Kan. 426, 433, 73 Pac. 52, to the effect that the agree ment may be proved by circumstances, and Taylor v. Walker, 114 Kan. 614, 220 Pac. 518, to the same effect. In the last case it was also said:
“The agreement and its terms may be inferred from the relations of the parties, their financial means, their conduct and admissions, and other pertinent circumstantial evidence.” (p. 617.)
Appellant directs attention to the fact that the various witnesses testified to statements by John W. Campbell and Emily Y. Campbell made at periods of from two to perhaps ten years after the Penny farm was acquired, and to apparent weaknesses therein, and insists the testimony fails to prove that any agreement was made when the land was acquired that John was to hold it for Emily. The length of time elapsing between the acquisition of the land and the date the statements were made may affect the weight to be given the testimony, but it does not affect its competency. No good purpose is served by reviewing the detailed testimony which supports the findings of fact. But when consideration is given to the financial situation of John and Emily at the time of their marriage and at the time the land was acquired, to the repeated claims of Emily to be the owner of the land and to the repeated recognitions of her ownership by John, even though the statements were made after the land was acquired, and in addition that during all that time Emily directed the improvements made on the farm, paid for them, collected the rents and paid the taxes, it would seem she did so only because it was understood between her and her husband that he held the title not for himself but for her.
Appellant also contends the appellees failed to show lack of fraudulent intent. We think the circumstances showed that — in addition, not even the appellant claims there was any fraud.
We recognize that there was testimony which, if fully believed by the trial court, would have warranted a different judgment than was rendered. But, as has been repeatedly held, it is not the function of an appellate court to substitute its judgment for that of the trial court on matters of fact. In this connection, we have deliberately refrained from discussing the testimony relative to the making of wills by John W. Campbell and Emily V. Campbell in 1915, and especially as to what was said at that time. Without saying more, there was evidence of an impeaching character, and which need not here be detailed, which warranted the court in not giving it much credence.
It is not necessary that we discuss separately the claimed error of the court in overruling defendants’ demurrer to plaintiffs’ evidence. For reasons hereinbefore mentioned, the ruling was correct. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.;
This is an appeal from a judgment of the district court in which a ruling of the soldiers’ compensation board denying plaintiff’s claim for compensation as a Kansas soldier in the World War was sustained.
The cause was tried without a jury. The court made a general finding in favor of the respondents and against the claimant, and gave judgment accordingly.
Plaintiff contends that the judgment was contrary to law and contrary to the evidence.
Considering the last point first, the burden rested on plaintiff to establish the fact that he was a resident of Kansas at the time he entered the army for service in the World War. This he did not do to the satisfaction of the trial court. While he himself gave testimony to that effect, his evidence also showed that although he was born and reared in Coffeyville, for three or four’ years he was “up in Montana, Washington, Oregon and Idaho,” also in Nebraska, Nevada and Arizona; that he “had a residence in Grand View, Wash., in 1910, 1911 and 1912”; that he “was accepted for enlistment in Pendleton, Ore.,” and that “they [presumably the U. S. recruiting officials] sent me to Vancouver, Wash.” Plaintiff also testified that on his own written application he had received a bonus of $410 or $415 from-the state of Washington as a soldier of that state.
“Q. What did that application blank say? A. I could not tell you to save my soul.
“Q. As a matter of fact, it had on there a statement that you were a bona fide resident of the state of Washington at the time of enlistment? A. It may have had; I don’t remember about that.”
In response to a question as to his travel pay when he was discharged from the army, plaintiff testified that he drew $165 as travel pay to Pendleton, Ore.
A witness called by plaintiff testified that he and the claimant were schoolmates in Coffeyville, and that Coffeyville had been plaintiff’s home all his life. But his further testimony, in part, reads:
“Q. Do you know where he lived just prior to his enlistment and induction? A. No, sir; I do not.”
Another witness called by plaintiff testified:
“I have known Robert J. Vennum for 29 years, ever since I came to Coffey-ville. I first knew him in 1908. He was a resident of Coffeyville at the time he enlisted in the army during the World War.”
But on further, examination this same witness testified that “it was Ms understanding that the claimant was a resident of Coffey-ville; that he didn’t know when or where the claimant enlisted.”
Another witness, sister of the plaintiff, gave testimony in his behalf, but she also testified that he had stayed “out west” for five or six years.
It is needless to recite or quote the evidence at greater length to dispose of plaintiff’s contention that the trial court erred in its general finding on the issue of fact “in favor of the respondents herein and against the appellant, Robert J. Vennum.”
Even if the trial court had given the most generous credence to plaintiff’s evidence, it would scarcely support — and certainly not compel- — a finding that plaintiff was a resident of Kansas at the time he entered the army as contemplated by the statute and interpreted by our decisions. (G. S. 1935, 73-102; Baldwin v. Soldiers’ Compensation Board, 117 Kan. 129, 230 Pac. 82; Modest v. Soldiers’ Compensation Board, 121 Kan. 681, 249 Pac. 588; Deckwa v. Soldiers’ Compensation Board, 121 Kan. 858, 250 Pac. 332.)
Counsel for appellant cite cases like Hipchen v. Soldiers’ Compensation Board, 144 Kan. 517, 61 P. 2d 878, where this court held that the trial court’s finding of fact favorable to the claimant was sustained by competent evidence; also, cases like Knuth v. Kansas Compensation Board, 137 Kan. 392, 20 P. 2d 471, where this court dis agreed with the trial court, holding that “the evidence established beyond doubt that the veteran was a resident of the state of Kansas at the time he entered the service on April 6, 1917.” Such cases merely indicate that those charged with the duty of weighing the probative force of evidence do not always agree. In the present case no error in the court’s finding on the controlling issue of fact is made to appear. (Peoples National Bank v. Diven, 135 Kan. 400, 10 P. 2d 883; Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345.) Consequently no error of law inheres in the judgment predicated thereon.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a mortgage. Judgment was for defendant. Plaintiff appeals.
The petition was filed September 24,1936. It alleged the making of the mortgage on September 25, 1931, to the Wheeler-Kelly-Hagny Trust Company, and that the mortgage had been duly assigned to plaintiff, and that the note and mortgage were long past due and that the mortgage was still a valid lien on the real estate in question.
Various parties were named defendants, but they all defaulted except Mary Martin. The prayer was for a foreclosure of the mortgage and that the property be sold to satisfy it.
Mary Martin answered first with a general denial. She then admitted the execution and existence of the mortgage, but denied that plaintiff was the owner of it.
The answer further alleged that the defendant believed that the mortgage had been paid by one Martin, a codefendant in the action, but that if Martin had not paid off the mortgage he was still the owner of it, and that on account of facts to be set out in the answer the mortgage did not constitute a lien on the real estate in question.
The answer then alleged that defendant became possessed of the real estate in question in a property settlement with Martin at the time she was divorced from him; and that while the record at that time showed the mortgage' in question, Martin, soon after the transfer, satisfied it, and that it should be canceled.
The answer then alleged that at the time of the property settlement Martin falsely represented to defendant the amount of the lien against the property on account of the mortgage, and that Martin knew at that time that the mortgage could be canceled by him by the expenditure of a small sum of money, and that either prior to the property settlement or soon thereafter the mortgage' indebtedness was paid, although it was not released of record.
The answer further alleged that on or about February 23, 1936, defendant filed an action in the district court of Sedgwick county against Martin, the Wheeler-Kelly-Hagny Trust Company and other defendants for the purpose of quieting her title to the real estate involved here; that personal service was obtained upon Martin and the other defendants; that, an entry of appearance was filed by the Wheeler-Kelly-Hagny Trust Company, which company disclaimed any interest in the real estate; that on May 15, 1936, judgment was rendered in the quiet-title action, quieting the title of Mary Martin in the real estate, and that plaintiff in this action had knowledge of the pendency of the action to quiet title and made no appearance, in it.
The answer then alleged that by reason of the facts pleaded all the controversies in this action had been fully litigated.
In reply plaintiff denied that he had ever had any connection with Martin, or that he had perpetrated any fraud in the matter, and denied that Mary Martin had quieted her title to the real estate in question against plaintiff.
The plaintiff, Graves, took the stand and testified about the mortgage being assigned to him by the trust company December 24,1932.
Mrs. Mary Martin, the defendant, testified that she acquired the property about August, 1933; that, at the time her husband conveyed the property to her he had promised to pay the mortgage in question; that she went to the office of the register of deeds and found this mortgage on record against the property in the name of the Wheeler-Kelly-Hagny Trust Company; that she thereupon went to the office of the trust company and inquired, and they told her the mortgage had been paid; that thereupon she had her lawyer bring an action to quiet title. She introduced the files in the quiet-title action.
The petition in the suit to quiet title alleged that all the parties named defendant claimed some interest in the real estate. It did not allege that the mortgage had been paid. It will be noted that the trust company was made a party to the quiet-title action and filed a disclaimer of any interest. At that time the records in the office of the register of deeds showed the mortgage in the name of the trust company. The journal entry of judgment quieted her title as to the defendants named in the action. Plaintiff was the owner of the mortgage at that time, but he was not named as- á party defendant.
The trial court found first that there was no fraud in the'case. It then found that the plaintiff had not recorded' his assignment-qf the mortgage; that defendant had searched the records of tifie office of the register of deeds for all adverse rights or encumbrances against the property and found none that related to the plaintiff; that she had exercised all diligence required of her; that she had no notice by record or otherwise' that plaintiff was the owner of the note and mortgage; that she Inquired' of the proper officials of the Wheeler-Kelly-IIagny Trust Company as to the note and mortgage and was informed by them that it had been paid.
The trial court held that the proceedings in the suit to quiet title were regular and that defendant in this action relied upon them and that plaintiff should not recover against her.
Plaintiff has appealed from that judgment. Succinctly stated, the position of defendant is that when she examined the records in the office of the register of deeds and found the mortgage on record there in the name of the Wheeler-Kelly-Hagny Trust Company and then inquired of that company and was told that the mortgage had been paid, she could then bring a quiet-title action against the record holder of the mortgage and thereby quiet her title as to this mortgage without making the assignee of the mortgage a party to the action. The theory is that the quiet-title action rendered this mortgage foreclosure res judicata. At the outset of the discussion it should be noted that defendant had notice of the existence of this mortgage at the time she obtained title to the real estate. The mortgage had been assigned to plaintiff before defendant brought her suit to quiet title and she did not allege in that suit that the mortgage had been paid.
This is not a case where the owner of real estate has made a payment of a mortgage to the record holder of the mortgage. There is no contention that the mortgage in the hands of the assignee was not valid or that it had been paid. The failure of the assignee to record the assignment did not affect its validity. The recording statute is for the protection of people who acquire an interest in real estate without notice of any encumbrance against the real estate. Such being the case, the defendant asks us to hold that the owner of a valid mortgage could be barred from a right to foreclose it by a judgment in an action to which he was not a party and in which the mortgage was not mentioned. The rule is laid down in 34 C. J. 959 as follows:
“Subject to the rules stated above the judgment is not conclusive as to matters not in issue and determined, or which could not be determined; it affects only . . . the parties impleaded and before the court as interested in such land, or their privies.”
There is nothing new about this rule. It applies the general principle of res judicata to actions to quiet title. When they are applied to this case we are forced to the conclusion that the judgment in the action to quiet title had no effect whatever on the mortgage of plaintiff.
The judgment of the trial court is therefore reversed, with directions to render judgment for plaintiff foreclosing his mortgage. | [
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The opinion of the court was delivered by:
Smith, J.:
This was an action to recover money. Judgment was entered for plaintiff. Executions were issued and returned unsatisfied. Garnishment proceedings were instituted. Garnishment summons was quashed on motion of the defendant. Plaintiff appeals from that judgment.
The facts are as follows: Plaintiff obtained judgment against defendant for $2,000 on November 21, 1930. Executions were issued on this judgment on December 3, 1930, and on September 27, 1935. These executions were both returned unsatisfied. After the return of these executions a garnishment affidavit was filed. A summons was issued and served on the garnishee. The garnishee answered that at the time of the serving of the garnishment summons it had in its hands $109.60 which might be due defendant. The plaintiff gave notice that she elected to take issue on the answer of garnishee.
When this election was filed the defendant filed a motion asking that the garnishment summons that had been served on the garnishee be quashed on two grounds. The first ground was that at the time the garnishment summons was issued there was no valid execution issued and outstanding against the defendant. The second ground was that the judgment had been paid and satisfied on March 15, 1934. When this motion came on to be heard counsel for defendant announced that defendant desired at that time to present only the first ground of the motion. Evidence was introduced on that ground and the motion was allowed. It is from the order sustaining that motion that this appeal is taken.
The trial court found in the journal entry that at the time the garnishment summons was served no execution was outstanding and that the appearance of the garnishee and the defendant on other than jurisdictional grounds did not waive the irregularity.
The plaintiff has not brought the proceedings leading up to the issuing of the executions to this court; neither has she brought the evidence upon which the finding made by the trial court was based. As far as this record is concerned, we must consider the case as though the execution had been returned at the time the garnishment summons was issued.
The garnishment proceedings were taken pursuant to G. S. 1935, 60-34,107 and 60-3491. The first section is as follows:
“When an execution shall have been returned unsatisfied the judgment creditor may file an affidavit of himself, his agent or attorney in the office of the clerk, setting forth that he has good reason to, and does, believe that any person or corporation (to be named) has property of the judgment debtor or is indebted to him, and thereupon the clerk shall issue an order requiring such person or corporation to answer on or before a day to be named in the order, not less than ten nor more than twenty days from the date of issuing the same, all interrogatories that may be propounded by the judgment creditor concerning such indebtedness or property.”
G. S. 1935, 60-3491, reads as follows:
“After the issuing or return of an execution against property of a judgment debtor, or of any one of several debtors in the same judgment', where it is made to appear by affidavit or otherwise, to the satisfaction of the judge, that there is reason to believe that any person or corporation has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person or corporation, or anyofficer or member thereof, to appear at a specified time and place within the county in which such person or corporation may be served with the order to answer, and answer the same. The judge may, also, in his discretion, require notice of such proceeding to be given to any party in the action, in such manner as may seem to him proper.”
There can be no doubt that, as a genéral proposition, the above statutes provide for garnishment after judgment and,the issuance and return of an execution.
Plaintiff points out that when the garnishment summons was served on the garnishee in this case it made an.answer as to how much it owed defendant, and that plaintiff took issue with garnishee in this answer. She argues that after the garnishee had thus answered and the issues had been made up it was too late for defendant to take advantage of any defect in the proceedings leading up to the issuance of the garnishment summons.
Defendant cites and relies on Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. 670. In that case the execution had been issued and returned-. The garnishment summons was issued and served. The garnishee did not answer, but filed a motion to quash the summons on the ground that there was no execution outstanding. The court-sustained the motion.
The statute in question at that time was as follows:
“Either at the time of the issuing of the summons, or at any time thereafter before final judgment, in any action to recover damages founded upon contract, express or implied, or upon judgment or decree, or at any time after the issuing in case of an execution against property and before the time when it is returnable, the plaintiff or some person in his behalf shall file with the clerk an affidavit stating the amount of the plaintiff’s claim.” (Gen. Stat. 1901, § 4635.)
It will be noted that the provision of that statute for garnishment after judgment was that garnishment might be had before the execution was returnable. The language of the opinion leaves but little doubt that the court placed the final decision in the case upon that provision. Such being the case, it is helpful for us to examine the statute on the subject in force today. When this is done we see that each of the present statutes on the subject provides for the issuance of garnishment summons after the execution has been returned. This would be sufficient ground for reversing the order of the trial court.
There remains, however, the argument that the defendant and the garnishee could not raise any question as to the sufficiency of the proceedings once they had answered. In this connection it should be noted that the defendant appeared after the summons was served and asked for a continuance, and the garnishee appeared and answered. This court has held that once a garnishee has submitted himself to the jurisdiction of the court by answering he cannot later question the regularity or sufficiency of the proceedings leading up to the issuance of the garnishment summons. (See Winterscheidt v. Wilson, 110 Kan. 649, 205 Pac. 600; also, Turner v. Williams, 114 Kan. 769, 221 Pac. 267.)
Under the same general rule the defendant is barred from questioning the irregularity of the proceedings leading up to the garnishment proceeding once he appeared and asked for a continuance in that matter.
The judgment of the trial court is reversed, with directions to proceed with the action. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a workmen’s compensation case. The commissioner denied the claim and the district court affirmed the decision. The claimant appeals.
It is admitted the only question for review is whether the accident arose “out of and in the course of employment.” Claimant was employed by Victor Swanson, who was engaged in the operation of a feed store located close to the stockyard district in the city of Wichita. Respondent was a self-insurer under the compensation act. He had rented approximately thirty-seven acres of land lying within a few miles of the city limits for the purpose of feeding cattle thereon. Under an oral contract claimant was to live on this tract of land, feed the cattle and do whatever was necessary for their care. At spare times he worked in the warehouse. In compensation for his services claimant was to have the use of a seven-room house on the land, a plot for garden purposes, the use of a cow and was to receive $45 per month. Later the salary was increased to $50 per month. As a result of the employment claimant moved his family onto the premises, attended the cattle, planted a garden and performed the general duties about the place. Some old trees had died at one corner of the premises and respondent decided to remove the trees and build a fence, provided he could obtain the consent of Mrs. Samples, his landlord, to do so. The consent was granted. No agreement, however, was at that time reached between respondent and Mrs. Samples, relative to the disposition of the wood from the trees. The trees, of course, were the property of the landlord. Respondent had not agreed and was under no obligation to furnish fuel to the claimant. Fuel had been purchased by claimant at his own expense. It consisted of wood and coal. The claimant was permitted to use scrap wood lying about the place. Claimant realized the wood from the trees belonged to the landlord and inquired of respondent whether he thought Mrs. Samples would object to his using the trees for firewood. He also desired to use some of it in a heater which was located in a chicken house. Respondent advised he would inquire from Mrs. Samples and inform him. Mrs. Samples did not object and claimant was informed he might use the wood in whatever way he desired. On a Sunday afternoon claimant undertook to chop some wood with which to cook the evening meal. A piece of wood struck him on the nose, broke the septum and resulted in lacerations and prolonged hemorrhages. The doctor had considerable difficulty in stopping the bleeding. The loss of considerable blood left claimant in a weakened condition and resulted in his incapacity to perform his regular duties for about two months.
In order for an accident to be compensable under the act, it must arise out of and in the course of employment. (G. S. 1935, 44-501.) The rulings of the commissioner and the district court were proper. This accident did not so arise. In the recent case of Floro v. Ticehurst, ante, page 426, 76 P. 2d 773, it was said:
“The phrase ‘out of ... . the employment’ requires a showing of some connection between the work that was being done and the accident which caused the injury; that the accident was in some reasonable sense one of the hazards of the work that was being done.” (p. 431.)
In the earlier case of Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863, in which compensation was denied, it was said:
“But in all such cases the employment must have some definite, discernible relation to the accident.” (p. 324.)
In the instant case the cooking of the meal and the providing of the fuel with which to cook it were in no sense a part of claimant’s employment. The activities in this connection were solely for claimant’s personal benefit. They were in no proper sense incidental to his employment.
Claimant urges the accident arose out of work which was enjoined upon him by his employer. The evidence does not support the contention. Respondent was under no obligation to furnish fuel for claimant’s private use. The accident did not occur in connection with the grubbing or cutting of the trees. It occurred long after that task had been completed and while claimant was engaged in chopping the wood solely for his own use and benefit. Claimant relies mainly upon Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372; Chance v. Coal & Mining Co., 108 Kan. 121, 193 Pac. 889, and Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818. Those decisions are not authority for an award of compensation in the instant case. The accident in the first two cases cited resulted from conditions which had become established customs in the business of the employer. In the Thomas case, claim ant, a girl, was injured on a truck which was used for amusement of the employees during a short thirty-minute noon intermission. There was evidence such use of the truck was an established custom and was conducted with the foreman’s knowledge and consent. The shortness of the intermission made it difficult for employees to go elsewhere for their lunch. It was to the employer’s interest they should be back for duty on time. The practice of taking their lunch with them and using the trucks for amusement during the short intermission had become a condition under which the business was carried on. Touching that state of facts this court said:
“Injuries have been held to arise out of the employment whenever they are ‘such as the character of the business or the conditions under which it is carried on make likely, and the result either was or should have been in the contemplation of the employer.’ (Jacquemin et al. v. Turner & Semour Manufacturing Co., 103 Atl. 115 [Conn.].)” (p. 437.)
For a discussion of additional theories underlying the award in the Thomas case, see, also, Corpora v. Kansas City Public Service Co., supra (p. 696).
While it is true that in the Chance case the workman had finished his actual work in the mine, it is also true he was still in the pit, the place of employment, and was still under the direction and control of his employer. It was the custom of the miners to ride out on the last trip on dinkey engines, a means of transportation supplied by the employer for the purpose of ascending. It was held the injury which occurred upon the trip was a result which was or should have been in contemplation of the employer and which grew out of and was reasonably incident to the workman’s employment.
In the Corpora case the workman was injured while putting on his overalls, preparatory to his work. True, the accident occurred a few minutes before the commencement of actual labor. Prior to going to work, however, the workman was required as a preliminary duty to his work, to sign a register to show he was on hand. This he had done before going to the dressing room. It was held the conduct of the workman was incidental to his employment.
The cooking of the meal for claimant and his family, and the chopping of the fuel as an incident to the cooking of the meal, was in no sense one of the hazards of the employment. The accident did not arise because of his employment of feeding cattle and it was in no reasonable way traceable to it. Clearly, therefore, the accident did not arise out of the employment. This eliminates the first requi site. “In the course of his employment,” as a phrase, simply means that the accident happened while the employee was at work in his employer’s service. It relates to the time, place and circumstances under which the accident occurred. (Cox v. Refining Co., supra.) Since both elements are necessary to establish liability and the first element remains unsatisfied, it is unnecessary to discuss the second. The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to restrain and enjoin the board of county commissioners of Reno county, and the township officers of Grant township, No. 22, in Reno county, from recognizing or acting under certain provisions of section 2 of chapter 214 of the Laws of 1937, referred to as the “beer permit law,” and to require the board of county commissioners to issue a license for the sale of 3.2 beer notwithstanding the fact the township officers had objected to the issuance of such a license in the manner provided by that law. A demurrer was sustained to the petitions, and from that ruling plaintiff, a lessee, and intervenor, the owner of the building in which the beer was to be sold, appeal.
The pertinent averments of the petition were: The plaintiff is a lessee and in the possession and control of property known as the Hutchinson Country Club, together with the improvements thereon. The premises contained a large, three-story club house, golf course, swimming pools, tennis courts and facilities for dining, dancing, swimming, tennis, picnicking and fishing. The club was operated as a private enterprise by the plaintiff lessee and was supported by dues or membership fees. The plaintiff had on a previous occasion made application to the board of county commissioners for a license to sell nonintoxicating cereal malt beverages as provided by the statute and had complied with all of the requirements of the law to sell cereal malt beverages and had paid the required license fee. He had otherwise qualified for such a license, but the license had been refused for the sole and only reason that the township officers had objected in writing to the granting of the same. At the time of filing the suit, plaintiff again applied for a license to sell such beverages in accordance with the rules and regulations adopted by the board of county commissioners, which rules and regulations had been made according to the provisions of the law. Plaintiff had complied, and would continue to comply, with such rules and regulations in all respects. He paid the prescribed fee and was entitled to a license. He would then have received and will now receive a license except for the fact that the township officers threatened to object, and unless restrained, will again object in writing to the granting of the license by the board of county commissioners. The board of county commissioners threaten to, and will unless restrained, treat such objection as prohibiting them from issuing the license.
The petition then set forth that portion of section 2 of the act which authorized the action of the township board. It reads:
“The board of county commissioners in any county shall not issue a license without giving the clerk of the township board in the township where the applicant desires to locate, written notice, by registered mail, of the filing of said application. If said township board files no written objection to the granting of said license within ten (10) days after the mailing of said notice, then said license may be granted by said board of county commissioners, but if the township board files a written statement of objection to the granting of said license, the same shall not be granted.”
The petition alleged the quoted provision was illegal and void for the following reasons:
“1. It is in conflict with article 1, section 8, of the constitution of the United States, and that portion thereof which vests in the congress of the United States the right to regulate commerce among the several states. In this connection it is alleged that none of said cereal malt beverages are manufactured in the state of Kansas, but that same are manufactured in other states of the United States, and transported and sold in this state; and that the sale of same is protected by said interstate commerce clause of the federal constitution, the sale of same' at retail being an essential and necessary part of the commerce of said products between the several states.
“2. It violates the 14th amendment to the constitution of the United States, which amendment provides that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“3. The authority to enact or enforce such provision is not expressly conferred by any provision of the constitution of the United States, or by any provision of the constitution of the state of Kansas, and is invalid by reason of the 9th amendment to the constitution of the United States providing that the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people, and section 20 of the bill of rights of the constitution of the state of Kansas, providing that the enumeration of rights in said constitution shall not be construed to impair or deny others retained by the people; and that all powers not delegated in the constitution remain with the people.
“4. It goes beyond section 21 of article II of the constitution of the state of Kansas, which provides that the legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation and administration as it shall deem expedient, by re-delegating the authority to control licenses as to certain portions of the county only, to persons or officers other than county officers, when no authority to delegate any legislative power to such persons exists.
“5. It violates section 1 of the bill of rights of the state of Kansas, providing that all men are possessed of equal and inalienable rights, among which are . . . liberty. . .
“6. It violates section 2 of the bill of rights of the constitution of the state of Kansas, providing that all political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit; and that no special privileges or immunities shall ever be granted by the legislature which may not be altered, revoked or repealed by the same body; and that such power shall be exercised by no other tribunal or agency. In this connection it is alleged that the provisions of said law above quoted purport to empower certain township officers (undefined) with the right to arbitrarily permit the issuance of licenses in any particular instances, and to prevent the issuance of licenses in any particular instances, thus creating a monopoly in the hands of such officers in the sale of said products in their respective townships.
“7. It violates section 17 of article II of the constitution of the state of Kansas, providing that all laws of a general nature shall have a uniform operation throughout the state; and that in all cases where a general law can be made applicable, no special law shall be enacted. In this connection it is alleged that said law is special and non-uniform in its application and operation, according to the whim of township officers, no rule for the guidance of such officers being contained in the law.
“8. No board is created by the terms of said law to act or purport to act on behalf of a township, the term ‘township board’ having no statutory or legal meaning, the law failing to create a board to act for the township or to define what officers of the township, if any, shall constitute such board.”
It was further alleged: The country club and its facilities are located near state highway 96, between the cities of Hutchinson and Nickerson, in Reno county, the same being about seven miles from the city of Hutchinson, and about five miles from the city of Nicker-son, and that the premises were located approximately one mile from the township in which the city of Hutchinson is located. Hutchinson is located in Reno township, and that licenses have been and were being issued in that township, and that these beverages were being sold in the near vicinity of plaintiff’s premises. Such licenses were being issued in the city of Hutchinson where most of the members of the country club reside. The city of Nickerson is located in township 22, the township in question, and the licenses have been and are being issued in that city. Under the provisions of the law ¿uch licenses were issued in that city as a matter of right to the applicant therefor, subject only to the qualification under the provisions of the law. The plaintiff had made substantial investments in maintaining the country club and facilities and unless he was able to sell these beverages, when the same were being sold elsewhere in the near vicinity, to his members and patrons and prospective members and patrons, his income is and will be materially reduced. He was losing and would continue to lose his investment and property rights in the premises, amounting to a virtual confiscation of the same.
The intervening petition of Fred Cramm adopted the allegations of the petition, prayed for a similar relief, and in substance alleged: He was a resident of.the city of Hutchinson, and a citizen of the United States, and that he was the owner of the real estate and improvements described in the petition, and that the matters involved in the action seriously affected his rights and the value of his property.
A stipulation entered into on behalf of all parties was filed and reads:
“It is hereby stipulated that plaintiff’s lease with the intervening petitioner, Fred Cramm, is in writing, dated October 1, 1936, and filed in the chattel-mortgage records in the office of the register of deeds in Reno county, Kansas, on October 2, 1936, and recorded in book B-l, number 872-C. That W. R. Coleman was a co-lessee with the plaintiff, but is not now in active possession as lessee, though he has never been released from the lease. These facts shall be considered as amended and supplementing the petition and intervening petition herein, and as a part of the facts involved in the demurrer on behalf of defendants. The township officer defendants herein have and will object to the issuance of all permits in the township without discrimination. The permit sought by plaintiff is for the retail sale of bottled beer only.”
The demurrer was directed to both the petition and the intervening petition, including the stipulation.
Was the demurrer to the petitions properly sustained? The answer must be found in the soundness of the charges of the unconstitutionality of the challenged portion of the act in relation to the averments contained in the petitions. It is therefore well at the outset to clearly bear in mind that the petitions eliminate all questions of discriminatory conduct or administration of the law by this township board. A careful analysis of the petitions further discloses only the allegation that the law made possible arbitrary exercise of discretion'by the township board, but the petitions contained no charge that this township board, in fact, acted arbitrarily or capriciously in objecting to the issuance of the instant license or that its conduct in objecting to the issuance of any and all licenses was based on personal whim, prejudice or bad faith. In fact, appellants in their brief frankly state: “We are not accusing the township officers with bad faith, but are considering this provision of law in the abstract.” In determining the correctness of the ruling on the demurrer we cannot, however, consider the law as an abstract proposition, but can consider it only in relation to the facts pleaded. Those facts eliminate both the question of discriminatory administration of the law, and whim, prejudice or caprice on the part of this township board in its -objection to the issuance of any and all licenses. Appellants, however, insist that no standard, rules or guides of action, are set up in the act as a basis for determining whether the township board should object to the issuance of a license, and arbitrary action is thus made possible by the act. They urge that portion of the act is therefore void, and hence does not exist. If this be true they insist the license should have been granted by the county commissioners irrespective of whether the decision of the township board, in the instant case, was made arbitrarily or in good faith. The contention will be treated under the appropriate heading.
All presumptions are, of course, indulged in favor of the validity of the law. Doubts as to constitutionality are always resolved in favor of constitutionality. (State v. Sherow, 87 Kan. 235, 239, 123 Pac. 866.) It follows that unless the invalidity of the law clearly appears, courts are not at liberty to nullify the plain mandate of a coordinate branch of government. (State, ex rel., v. Hardwick, 144 Kan. 3, 4, 57 P. 2d 1231.) With these fundamental principles and guides clearly in mind, let us examine the law in question.
1. Appellants urge the challenged portion of the act contravenes the following portion of the 14th amendment to the federal constitution:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It is, of course, elemental that this amendment does not affect valid police regulations enacted by the states. That the law was intended to be and is a regulatory police measure is disclosed not only by its title, but by its express provisions. The fact it also results in the raising of revenue does not deprive it of its regulatory character. Appellants insist that beverages which contain no more than 3.2 percent of alcohol by weight have been expressly declared nonintoxicating by .our lawmaking body. (Laws 1937, ch. 213.) That fact in itself does not necessarily exclude such beverages from the operation of regulatory measures. For the purpose of the questions involved in this lawsuit, we cannot take cognizance of only such portion of the law as declares 3.2 beer to be nonintoxicating, but are obliged to consider and uphold, if possible, other expressions of legislative will concerning that same beverage. Irrespective of what the legislative body said concerning the nonintoxicating character of the beverage in question, that same body, in no uncertain terms and in the same legislative session and in the following chapter, by express mandate declared the sale of the beverage should be regulated. It is not the province of a court to nullify that clear declaration of legislative will if the regulatory measure is otherwise a valid exercise of police power. Having the police power to forbid the sale of such an article entirely, it, of course, had the power to regulate its sale. (State v. Nossaman, 107 Kan. 715, 193 Pac. 347; Little v. Smith, 124 Kan. 237, 239, 257 Pac. 959.) Having the power to regulate the sale, it had the authority to de termine how, in its judgment, the desired regulation could be most effectively accomplished. In the early case of State v. Durein, 70 Kan. 13, 80 Pac. 987, the rule was stated thus:
“Power to legislate for the health, morals, peace and good order of society being conceded to the legislature, that body must determine the limits of its exercise, subject only to the condition that the measures adopted be reasonably appropriate to effect its purposes, and upon this question the court will rarely substitute its judgment for that of the legislature.” (p. 32.)
It must be assumed the legislature fully recognized the well-known fact that all too frequently rural communities are inefficiently and inadequately policed, and hence that in such communities the sale of the beverage might well become or tend to become the source of evils which it was determined to prevent. It therefore saw fit to delegate to the township board the discretion of determining whether in such governmental subdivisions the sale of the beverage; in its sound judgment, should be permitted. That, however, is not all the lawmaking body did. It prescribed definite, uniform, minimum standards and guides of action for the license-issuing tribunal, the board of county commissioners. Definite mandatory requirements were set up in the act with which every applicant for a license was required to comply in order to sell the beverage in the event a license was granted.
Did the delegation of such discretionary power to the township board contravene the 14th amendment to the federal constitution? In State v. Durein, 70 Kan. 1, 78 Pac. 152, it was held:
“The statutes of this state regulating the sale of intoxicating liquors are not violative of the fourteenth amendment to the constitution of the United States because of the discretion vested in the probate judges of the respective counties over the subject of granting permits to sell such liquors for medical, mechanical and scientific purposes.” (Syl. If 6.) (See, also, opinion in same case on rehearing, 70 Kan. 13, 80 Pac. 987.)
In Newman v. Lake, 70 Kan. 848, 857, 79 Pac. 675, it was held proper to vest in the discretion of the probate judge, also, the question of whether a druggist’s license to sell intoxicating liquor should be revoked. Similar regulatory powers over pool tables, operated for hire, have been held to be properly delegated to the governing body of cities. (Burlingame v. Thompson, 74 Kan. 393, 86 Pac. 449.) Delegation of power to township boards has been upheld to grant licenses for the operation of billiard halls, pool halls and bowling alleys, within the township. (State v. Skerow, 87 Kan. 235, 123 Pac. 866.) In the early case- of Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, a city ordinance regulating the sale of cider was upheld. It was there said:
“It will be observed that the ordinance regulates rather than prohibits the sale of cider, and the legislative power to regulate the sale of an article or liquid which in some stages is harmless and in others hurtful is no longer open to question. The juice of apples quickly changes from fresh to hard cider, and hard eider is presumptively not only a fermented but an intoxicating liquor. (The State v. Schaejer, ante, p. 90; same case, 24 Pac. Rep. 92.) It is difficult to show when the change occurs, and when it reaches such a stage as will produce intoxication. It may have been thought that the drinking of cider might foster a taste for strong liquors, and that if the unrestricted sale of cider by the glass was permitted, the officers might be easily deceived as to the character of the drinks sold, and that a tippling-shop might be carried on under the guise of a place to sell cider. In the interest of the health of the people, and the peace and good order of the community, it was deemed wise to regulate the traffic. . . . Such a regulation violates no private right, and does not unreasonably or improperly restrain trade. (Powell v. Commonwealth, 127 U. S. 678; Stokes v. City of New York, 14 Wend. 88; Mobile v. Yuille, 3 Ala. 137; The State v. Campbell, 13 Atl. Rep. 585, and note.)” (p. 609.)
See, also, State v. Railway Co., 76 Kan. 467, 92 Pac. 606, on delegation of powers to a railroad commission, and Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, on delegation of powers to state charter board with the right to determine the number of banks which might be granted charters in any one city, and Barber County v. Bank Commissioner, 113 Kan. 180, 213 Pac. 1054, on delegation of powers to state bank commissioner to fix a maximum rate of interest which banks may pay upon deposits in order to be permitted to participate in the benefits of the bank guaranty act, and Jackman v. Public Service Commission, 121 Kan. 141, 245 Pac. 1047, on delegation of power to inspect and approve plans and specifications for the construction or repair of a dam over a navigable stream. (See, also, list of illustrations of various delegations of powers enumerated in State, ex rel., v. Hardwick, 144 Kan. 3, 6, 57 P. 2d 1231.) Numerous other acts might be cited in which similar delegation of powers has been upheld which pertained to the regulation of a useful as well as a nonuseful trade or business, but which affected the public interest.
In Murphy v. California, 225 U. S. 623, 56 L. Ed. 1229, the rule was stated thus:
“The 14th amendment protects the citizen in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious business which can be prohibited lie many nonuseful occupations which may or may not be harmful to the public, according to local conditions, or the manner in which they are conducted.
“Playing at billiards is a lawful amusement; and keeping a billiard hall is not, as held by the supreme court of California on plaintiff’s application for habeas corpus, a nuisance per se. But it may become such, and the regulation or prohibition need not be postponed until the evil has become flagrant.” (p. 628.)
In State v. Durein, 70 Kan. 13, 80 Pac. 987, it was held:
“The right to sell intoxicating liquors is not one of the privileges or immunities attaching to citizenship in the United States.” (Syl. IT 2.)
To the same effect, see State, ex rel. Sayles, v. Superior Court, 120 Wash. 183, 206 Pac. 966, as to billiard and pool tables, and McKown v. City of Atlanta, (Ga.) 190 S. E. 571, as to beverages. In the latter case, decided in 1937, it was said:
“The due-process- and equal-protection clauses of the state and federal constitution (const. Ga., art. 1, § 1, par. 3; U. S. amend. 14) are not infringed by a revocation of a permit to sell malt beverages. Being a privilege, it can be withheld, and may be given to one and denied to another.” (p. 572.)
In Burlingame v. Thompson, supra, it was said:
“If the statute under which the ordinance was enacted falls within the police power of the state appellant must submit, whatever the effect upon his property and business. All rights exist subject to that power. By allowing pool-halls once to run the state gave no assurance that they might continue, and did not estop itself from subsequently prohibiting them. This subject was fully considered in the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. The doctrine there announced was followed in the case of Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253, and no departure from it has since been made.” (p. 394.)
' To the same effect see, also, Dwyer v. People, 82 Colo. 574, 261 Pac. 858, involving the issuance of licenses by the county commissioners to operate dance halls outside of incorporated cities. It was there stated:
“The business here under consideration is therefore governed by the rule applicable in cases involving licenses for the sale of intoxicating liquor before that traffic was constitutionally forbidden.” (p. 576.)
In Crowley v. Christensen, 137 U. S. 86, 34 L. Ed. 620, 624, the rule is stated as follows:
“The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only. As in many other cases, the officers may not always exercise the power conferred upon them with wisdom or justice to the parties affected. But that is a matter which does not affect the authority of the state, nor is it one which can be brought under the cognizance of the courts of the United States.” (p. 91.)
That an act is valid which vests in a tribunal or public officials discretion in the issuance of a license or permit to operate a trade or business without prescribing standards or rules of action, where in the judgment of the lawmaking body the business in its very nature is or by reason of attendant circumstances may become subversive to the morals, health or general welfare, seems to be well established. (State v. Sherow, 87 Kan. 235, 123 Pac. 866; Jackman v. Public Service Commission, 121 Kan. 141, 245 Pac. 1047; Scott v. Arcada Township Board, 268 Mich. 170, 255 N. W. 752; South Pasadena v. San Gabriel, 134 Cal. App. 403, 25 P. 2d 516.) See, also, exhaustive annotations in 12 A. L. R. 1435, 54 A. L. R. 1104 and 92 A. L. R. 400.
It does not, however, appear that the mere fact no standards or guides of action need be prescribed, as to such trades or business, in order to render an act valid on constitutional grounds, that it was intended the discretion should be arbitrarily exercised, and if in fact the discretion should be clearly abused, the aggrieved party should be entirely without redress. That the discretion, in order to constitute an honest discharge of official duty, shall be reasonably exercised and shall not represent merely a personal will, prejudice or caprice, has been clearly stated. (State v. Durein, 70 Kan. 13, 80 Pac. 987; Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937; Service Oil Co. v. City of Marysville, 117 Kan. 514, 231 Pac. 1031; Jackman v. Public Service Commission, supra; Harbin v. Holcomb, 181 Ga. 800, 184 S. E. 603; Bernstein v. Marshalltown, 215 Ia. 1168, 248 N. W. 26, 86 A. L. R. 782; South Pasadena v. San Gabriel, supra.) In the Jackman case, supra, are contained references to cases involving both useful and nonuseful trades or business, and it was there said:
“The statute does not explicitly state under what conditions the. commission shall grant and under what conditions it shall reject such an application as that here involved. It does not say in so many words that it shall grant the application if that is the course that approves itself to its judgment after a full consideration of the matter, but such a mandate is as much a part of the law as though it were explicitly stated.
“ ‘Even where an ordinance in terms merely says that a certain thing shall not be done without a permit from a designated officer, it is often interpreted as meaning that the officer is to grant the permit unless in his honest judgment reasonably exercised the interest of the public will thereby be put in jeopardy, a construction rendering it unobjectionable on constitutional grounds. (Lieberman v. Van De Carr, 199 U. S. 552.)’ (Service Oil Co. v. City of Marysville, 117 Kan. 514, 516, 231 Pac. 1031.)” (p. 143.)
So, under the present law, it was not intended the discretion of the township board should be arbitrarily exercised. It was, however, plainly intended the township board should be vested with authority to object to the issuance of licenses in the event the morals, health or public interest, in its judgment fairly exercised, would be best conserved by such objection. Assuming, therefore, that the question of the validity of the law by reason of the alleged possibility of arbitrary conduct thereunder, was properly an issue in the absence of an allegation of arbitrary conduct on its part in the instant case, the demurrer was still properly sustained as to that feature of the case. Certainly it cannot reasonably be contended there is no basis in sound reason and judgment for a law which authorizes a township board to object to the issuance of licenses for such a business located outside of an incorporated city, where it is ordinarily difficult to obtain or maintain adequate police supervision. (Scott v. Arcada Township Board, 268 Mich. 170, 255 N. W. 752; Dwyer v. People, 82 Colo. 574, 261 Pac. 858.) In the Dwyer case, supra, it was held:
“The exemption of incorporated towns and cities from the operation of chapter 147, S. L. ’27, concerning licensing of public dance halls by county commissioners, is a reasonable and valid classification.” (Syl. If 2.)
In the opinion it was said:
“The exemption of incorporated towns and cities, which themselves have a like power of control and where the business is more easily policed, is a reasonable and valid classification.” (p. 576.)
In the Scott case, supra, it was said:
“The legislature provided in no uncertain terms that plaintiff’s application for a license must be approved by the defendant board. It contains no direction or guide to the board, and- no definite rule by which it shall be governed in its action in approving or declining to do so. The purpose of the provision undoubtedly was to permit each local municipality to determine whether beer and wine should be sold for consumption on the premises within its limits. To avoid the expense incident to submitting the question of approval to the voters, its determination was left to the township board, the official representative of the township. By so doing the legislature assumed that this board by its determination would represent the judgment of the voters.” (p. 173.)
So, in the instant case, if the voters in township 22 of Reno county-are dissatisfied with the judgment of the present township board, they may express that displeasure at an election. In the meantime appellants have been deprived of no constitutional right.
From what has been said it follows that cases cited by appellants on the subject of the right to contract, or Little v. Smith, 124 Kan. 237, 257 Pac. 959, are not in point. They in no way relate to an application for the granting of a privilege to operate a particular trade or business under a police regulation. Nor are such cases as Chamberlain v. Railway Co., 107 Kan. 341, 191 Pac. 261, In re Irish, 122 Kan. 33, 250 Pac. 1056, or Hair v. City of Humboldt, 133 Kan. 67, 299 Pac. 268, pertaining to unreasonable discrimination, in point. Moreover, in the instant case, discriminatory administration of the law by this-township board is not an issue and the good faith of the board in objecting to the issuance of all licenses is conceded.
2. Appellants contend the statute is in conflict with section 8 of article 1 of the constitution of the United States and that portion thereof which vests in the congress of the United States the right to regulate commerce among the several states. (Little v. Smith, 124 Kan. 237, 257 Pac. 959; 57 A. L. R. 100.) The facts in the case cited are not in point and the contention is wholly untenable. The Smith case involved a statute which prohibited the advertisement of cigarettes and cigarette papers by newspapers or periodicals published in this state notwithstanding the fact such publications had a wide interstate circulation. It might be observed that in that very case it was held the legislature had the power to prohibit or to regulate the sale of cigarettes within the state. Here the question involves the right to obtain a license for the sale of 3.2 beer within the state under a state regulatory police measure. Over that subject the state has full control. (Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205.) In the recent case of Schechter Corp. v. United States, 295 U. S. 495, 550, 79 L. Ed. 1570, it was said:
“But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce ‘among the several states,’ and the internal concerns of a state.” (See, also, In re Williams, 79 Kan. 212, 98 Pac. 777.)
3. Appellants insist the authority to enact or enforce the particular provision of the law here involved is not expressly conferred by any provision of the constitution of the United States, or by any provision of the constitution of the state of Kansas, and is invalid by reason of the 9th amendment to the constitution of the United States, providing that the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people, and section 20 of the bill of rights of the constitution of the state of Kansas, providing that the enumeration of rights in said constitution shall not be construed to impair or deny others retained by the people; and that all powers not delegated in the constitution remain with the people.
The contention has been answered adversely in State v. Durein, 70 Kan. 13, 37, 80 Pac. 987; Lemons v. Noller, 144 Kan. 813, 816, 817, 63 P. 2d 177; Brown v. New Jersey, 175 U. S. 172, 44 L. Ed. 119.
4. It is also contended the law violates section 21 of article 2 of the state constitution, which provides:
“The legislature may confer upon tribunals transacting- the county business of the several counties, such powers of local legislation and administration as it shall deem expedient.”
Under this contention it is first urged the township board does not transact county business, but only township business, and hence the instant delegation of power to the township board is unauthorized by the above constitutional provision. The contention has been answered adversely to appellants. (City of Emporia v. Smith, 42 Kan. 433, 21 Pac. 807; Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598; State, ex rel., v. City of Hutchinson, 93 Kan. 405, 144 Pac. 241; State, ex rel., v. Holcomb, 95 Kan. 660, 662, 149 Pac. 684.)
It is also urged the power to issue a license having been delegated to the board of county commissioners, it cannot, under the constitutional provision, be delegated to another body, officers or tribunal, which may annul or override the power of the board of county commissioners. One difficulty with that contention is the act does not delegate the primary authority to the board of county commissioners to issue a license for any township. The county board can issue a license within a township only when the particular township board fails to object thereto. Unless the township board fails to object, the county commissioners have no power or authority to issue a license, and hence when the township board does object thereto the power of the county commissioners has not been annulled or overridden, as no such power existed. Cases cited by appellants in support of their contention under this heading involve other sections of the constitution or are inapplicable for other reasons. Reference is made to State, ex rel., v. Hardwick, 144 Kan. 3, 57 P. 2d 1231. It was there clearly shown that chapter 138 of the Laws of 1935, which dealt with the prevention of soil erosion and soil drifting, was not a local matter, but affected a wide area, which was not even limited to the state of Kansas. One ground on which the law was held invalid was, therefore, that it was in conflict with section 21 of article 2 of the state constitution. Since soil drifting was there shown not to be purely a local matter it could, of course, not be the subject of local legislation.
5. Appellants urge the challenged portion of the act is unconstitutional as being in violation of section 1 of the Kansas bill of rights, which provides:
“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
They rely upon the case of Smith v. Steinrauf, 140 Kan. 407, 36 P. 2d 995, in which a city ordinance was held invalid. The case is not in point. The ordinance of the city of Topeka, there involved, limited the number of cats an owner might1 keep in his residence without regard to distinctiveness of the character of the animals, purpose, manner or consequences of the keeping. The ordinance involved an absolute and unqualified property interest. It is, of course, futile to talk about equal rights under circumstances in which no person has a right. The denial of an application for a license to sell 3.2 beer as previously shown is not the denial of any right. Nor is it a denial of life, liberty or the pursuit of happiness within the legal contemplation of those terms. The application for a license to sell beer is a request for the granting of a mere privilege, under a regulatory police measure, which request the township board was under no duty to grant. (See, also, Ratcliff v. Stockyards Co., 74 Kan. 1, 6, 7, 86 Pac. 150; State v. Blair, 130 Kan. 863, 288 Pac. 729; State v. Haining, 131 Kan. 853, 293 Pac. 952; Bernstein v. Marshalltown, 215 Ia. 1168, 248 N. W. 26, 86 A. L. R. 782, and annotation ¶ 792.)
6. Appellants contend the quoted portion of the act violates section 2 of the Kansas bill of rights, which provides:
“All political power is inherent in the1 people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
They rely upon what was said in the cases of In re Lowe, Petitioner, 54 Kan. 757, 39 Pac. 710, and Chamberlain v. Railway Co., 107 Kan. 341, 191 Pac. 261. The cases are not in point and the contention is without merit. The constitutional provision relied upon has been definitely construed as referring solely to political privileges and not to those relating to property rights. (State v. Durein, 70 Kan. 13, 18, 19, 80 Pac. 987; O’Neal v. Harrison, 96 Kan. 339, 340, 150 Pac. 551.)
7. It is seriously urged the law contravenes the following portion of section 17 of article 2 of the state constitution perhaps more clearly than any other state constitutional provision. It reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all eases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
That the law is general in its application to the entire state is not subject to debate. It was not enacted for any particular township, but for the entire state and for every township therein. One or any number of licenses may be granted in a township or none may be granted therein. No exception is made as to any township in that regard. The fact, if it were a fact, that only one license were issued in township “A” and that 500 licenses were issued in township “B,” would not render the law ununiform. The law itself does not prohibit but conditionally permits the issuance of 500 or any other number of licenses in township “A,” as well as in township “B.” The condition for the issuance is identical in every township. The condition is that it shall not be objected-to by the township board. The fact a township board in whose discretion the objection to the issuance of licenses is vested may, in its judgment, determine a certain number of licenses should be issued in one township, and another township board may, in its judgment, determine a much smaller number of licenses is sufficient, under conditions in its township, or that the public interest or welfare will be best served by granting no licenses, does not mean the law is not one of uniform operation within the meaning of that constitutional provision. It must be borne in mind the legislature has prescribed definite uniform minimum standards, rules or guides, with which every successful applicant must comply in order to operate under the act. Where the beverage is sold the operation under the law is uniform. The fact it does not result in the sale of the beverage in every township or results in the sale of different quantities in various townships, does not render the law invalid for want of uniformity. (Leavenworth County v. Miller, 7 Kan. 479, 491; Noffzigger v. McAllister, 12 Kan. 315, 321; State, ex rel., v. Smith, 130 Kan. 228, 230, 285 Pac. 542; Craig v. Craig, 143 Kan. 624, 56 P. 2d 464.) Moreover, all licenses are uniformly subject to revocation and all operators under licenses are uniformly subject to injunction proceedings or prosecutions for violations of the act. Under these circumstances the legislative will cannot be frustrated on the ground the law fails to comply with the constitutional requirement of uniform operation. Appellants cite Robinson v. Perry, 17 Kan. 248; Gardner v. State, 77 Kan. 742, 95 Pac. 588; State v. Lawrence, 79 Kan. 234, 100 Pac. 485, and State, ex rel., v. Hardwick, 144 Kan. 3, 57 P. 2d 1231. When carefully analyzed it will be apparent those cases are not in conflict with the views here expressed. This, for example, is clearly illustrated by the Hardwick case cited, in which this same constitutional provision was involved. There,' the law for the prevention of soil erosion and soil drifting did not require uniform-operation. In the instant case, however, operation under the law, that is, sale of the beverage, would be conducted under uniform minimum rules and regulations. It is also clear that the same right of discretion is vested in every township board. We have previously shown that the vesting of such right of discretion in township boards does not constitute an arbitrary or fictitious classification but that the- classification has a perfectly sound basis in reason. (Scott v. Arcada Township Board, 268 Mich. 170, 255 N. W. 752; Dwyer v. People, 82 Colo. 574, 261 Pac. 858.) In the recent case of Craig v. Craig, 143 Kan. 624, 56 P. 2d 464, we ' had the same constitutional provision under consideration relative to the amended statute for divorce actions instituted by residents on military reservations in this state, and said:
“It is insisted that is invalid special legislation. The contention is not sound. In the first place the amendment is not special legislation. Second, it is valid general legislation. The amendment; applies to all within the state similarly situated. Its application is therefore general to the entire class it embraces. It is not a, false or deficient classification, but a genuine, natural, reasonable and complete classification. It rests upon a substantial basis. It operates uniformly on all members of the class. It is neither arbitrary nor capricious.” (p. 629.) (See cases therein cited.)
The same may properly be said of the instant law.
8. Appellants finally contend there is no such tribunal as a township board. Their contention is stated as follows:
“No board is created by the terms of said law to act or purport to act on behalf of a township, the term ‘township board’ having no statutory or legal meaning, the law failing to create a board to act for the township or to define what officers of the township, if any, shall constitute such board.”
The contention is entirely too technical as applied to the instan: situation. That certain definite township officers are commonly referred to as constituting the township board is too well known to admit of argument. No one thinks of a township justice of the peace or constable as being a member of the township board. Furthermore, we know of no statute, and none is cited, which would justify such confusion of thought. Appellants are in error when they say, “There is no such tribunal as a township board.” The legislature itself, for various purposes, has referred to the township trustee, treasurer and clerk as constituting the township board. (G. S. 1935, 80-802, 80-1302, 80-1501 and 80-1601.) These citations are not intended as being exhaustive but only as illustrative of the fact that these township officers are frequently designated under statutes as constituting the township board. The mere fact that no general statute pertaining to townships designates such officers as constituting the township board does not alter the fact that they are generally recognized as constituting not only such board but as constituting the governing officers of the township.
We have carefully examined the citations of authority under the various contentions and are satisfied the ruling of the trial court on the demurrer was proper. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In September, 1936, plaintiff filed this action for divorce. He alleged the parties were married in January, 1924; that two children had been born to them, and charged defendant with extreme cruelty, gross neglect of duty, and abandonment for three years. The prayer was for divorce and that the court make such an order for the care and custody of the children as would be deemed proper. The defendant answered, admitting the marriage and the birth of the children, but denied the charges against her, and by cross petition sought a divorce from plaintiff on the grounds of extreme cruelty and gross neglect of duty. She asked for the custody of the children, and that the court approve a separation agreement entered into between the parties in 1933. The abstracts do not show an answer to this cross petition. The action was tried in May, 1937, and the decision rendered in June, at which time the court made the following findings of fact and conclusions of law:
“Findings of Fact
“1. The plaintiff is a citizen and resident of the city of Salina, Saline county, Kansas, and has been for more than one year last past before the filing of his petition in this case.
“2. The plaintiff and defendant were married at Tulsa, Olda., January 12, 1924. Two children, Denoya Petty, aged eleven years, and Marcheta Petty, aged ten years, are the children and the only children bom of said marriage.
“3. The plaintiff at all times since the birth of said children has endeavored to maintain a home for the sake of said children.
“4. Defendant has the custody of both children at this time and has had at all times since 1933, and the court finds that she is a competent and capable mother and a fit and proper person to have custody of said children.
“5. Defendant has been and is now enrolled as a student in Chicago University for the purpose of qualifying herself as a psychiatric social worker, and it will take one more year at the Chicago University to complete her course. After defendant has completed the course which she is now taking in Chicago University she will be able to earn approximately $100 a month.
“6. The plaintiff is employed and earns the sum of $200 per month as salary and receives the sum of $50 per month as a bonus, making his total monthly income at this time the sum of $250 per month.
“7. During the year 1933, plaintiff and defendant entered into a written contract denominated ‘Separation Agreement and Property Settlement.' At the time the parties entered into said separation agreement the plaintiff agreed and consented thereto; but the court finds that said separation agreement is unfair, unreasonable and unjust, and on account of the conduct and action of the defendant, was not freely and intelligently made and entered into by the plaintiff, and the court refuses to approve said separation agreement and property settlement. The court further refuses to approve said separation agreement for the reason that it is indefinite.
“8. Since 1927 the defendant has been guilty of gross neglect of duty and extreme cruelty toward plaintiff, and on account of the acts and conduct of defendant the plaintiff’s peace of mind has been destroyed and his ability to work has been materially impaired and his income materially reduced.
“Conclusions of Law
“1. The plaintiff should be granted a divorce from the defendant on the grounds of gross neglect of duty and extreme cruelty.
“2. The defendant should be given custody, care and control of the said minor children, Denoya and Marcheta, subject to the right of the plaintiff to visit said children at all proper and reasonable times.
“3. Said separation agreement and property settlement is void and is unfair, unreasonable and unjust, and should not be approved by the court.
“4. The plaintiff should pay the defendant alimony in the sum of $900, payable at the rate of $50 per month commencing on July 1, 1937, until fully paid, and in addition thereto the plaintiff should pay the sum of $75 per month for the support, maintenance and education of said children for a period commencing July 1, 1937, and continuing until the youngest child shall attain the age of 18 years, unless the court makes other and further orders for the support, maintenance and education of said children. All payments to be made through the clerk of the district court of Saline county, Kansas. Plaintiff should pay all costs of this action and $100 attorney fees for the defendant’s attorney.”
Judgment was entered accordingly. Defendant’s motion for a new ■ trial was overruled, and she has appealed.
On behalf of appellant it is contended there was no corroboration of plaintiff’s testimony. We think the point is not well taken. Both parties testified at length, and two additional witnesses were called who supported the testimony of plaintiff in some particulars.
On behalf of appellant it is argued there was no substantial evidence to sustain the court’s finding of extreme cruelty and gross neglect of duty. This requires an examination of the evidence tending to support the findings. The parties were married January 21, 1924, at defendant’s home at Tulsa, Okla., while they were students at our state university at Lawrence. Plaintiff had done newspaper work, was taking the course in journalism, and working part time as a printer. Defendant was taking a college course, and working part time. They began housekeeping in an apartment at Lawrence. Defendant continued in school and completed her course. Plaintiff quit school, lacking one semester of graduating, and took full-time work as a printer in order to make enough money to pay their joint living expenses. When school was out they moved to Osborne, where plaintiff was employed. While there defendant was treated for anemia, and perhaps it was while they lived there she had a miscarriage. In a few months, perhaps early in 1925, plaintiff procured employment at West Palm Beach, Fla., and the parties moved there. His salary there was $75 per week at.first and was increased to $100 per week. The work lasted about two years. In 1926 the daughter Denoya was born. When the second child was expected in 1927, defendant was exceedingly nervous, dissatisfied with the hospital service there, with her doctor, with her home, with living in Florida, and had varying and changing ideas about what to do. She and plaintiff discussed the situation, and concluded it would be better for her to be with her mother at Tulsa when the next child was born, and plaintiff prepared to take her there. When the time came to go she was uncertain about the move, but they went, mak ing the trip in an automobile. Soon after they reached Tulsa the second daughter, Marcheta, was born, prematurely. Plaintiff returned to his work in Florida. Defendant remained at Tulsa several months, where she and the children had an apartment. Then she returned to Lawrence and took further work in the university that summer and fall. She had the children with her. Plaintiff’s work in Florida ended, through no fault of his own, and he found work in Montana. Defendant did not go there with him because she wanted to continue in school. While he was in Montana she wired him to come. He learned, by calling her by telephone, that she was dissatisfied with arrangements for the care of the children and needed his advice. He went to Lawrence, where more satisfactory arrangements were made. He worked at Lawrence for a short time, but the pay was not satisfactory; then at Kansas City, where the pay was a little better, and early in-1928 found more satisfactory work at Junction City, where defendant and the children joined him, and they had an apartment. That summer she left the children with him and went to California for a visit, and returning, stopped at Edmond, Okla., and enrolled as a student in the State Normal School. At the end of the first quarter of the school year she went to Junction City to visit her husband and children, then went back to Edmond for her personal belongings and returned to Junction City. In the meantime the apartment was given up and plaintiff had rooms and board with a family where the children could be cared for. On her return to Junction City they again took an apartment. His work at Junction City paid $40 per week, with perhaps $5 for overtime. In the spring of 1929 he got a position with the Consolidated Printing Company at Salina, at $50 per week. He has worked for that firm continuously until the trial of this action, except for five months early in 1935. While his salary has varied somewhat, it has never been less than $50 per week, and at the time of the trial was $250 per month. He has become unusually proficient in his work, foreman of the printing department, making estimates of costs, and supervising all work in the department. His employer testified that there is no more capable man in the state for this work. In the summer of 1929 defendant went to Ohio to visit her sister for several weeks. In 1930 she went to New York to visit the same sister, who had moved there, and from there went to Missouri and spent July 4 with the children at the home of plaintiff’s parents, and returned to New York the next day to con- suit a gynecologist, returning to Salina in August. The next year she went to the west coast, and to Alaska, and was gone about two months. At each of these times she left the children with plaintiff; at one time her mother stayed with him and cared for the children; the other times plaintiff had some of his people in Missouri take care of the children. In 1932 defendant took the children and made an extended trip to Wyoming and Utah. Plaintiff paid the expenses of these trips, and of her schooling at the state university and the Oklahoma State Normal. They bought a few articles of furniture at Tulsa and Lawrence. Some of these were taken to Junction City and sold when she enrolled in the normal school at Oklahoma, for it then appeared they would not live together again. At Salina they lived in furnished apartments, changing each time she went away. They did buy a Frigidaire, but defendant spoke to a neighbor about selling that because she was gone so much in the summer. At times plaintiff begged her not to take these trips, and disrupt their home as they did, but this had no effect. There is testimony, also, that he was a good husband, always kind. There is testimony defendant was npver satisfied or contented, and on account of this , plaintiff’s home life was never pleasant, and that she told a neighbor if plaintiff would give her the children and $50 a week she would divorce him; that she had no feeling for him whatever. Defendant testified she was never happy in her marriage to plaintiff; that they were never close; that there was no real affection between them. He testified that such affection as there was at first had been lost. They realized this situation, and discussed it several times and talked of a separation, and possibly a divorce. Each was agreeable to something of that kind.
In 1933, perhaps in the spring, though the specific date is not shown, the parties executed the “separation agreement and property settlement” which defendant in her cross petition asked the court to approve. This recited “the parties hereto have developed differences which make it impossible for them to continue to live together” ; that they desired the agreement to be drawn up, and “it is mutually agreed by and between the parties hereto that the husband will pay to the wife for the support of said wife and for the support, maintenance and education of the minor children of said parties,” naming them, “two thirds of husband’s income until the remarriage of the wife or until the said children have been graduated from high school and college if said wife does not remarry before that time. After said children have graduated from high school and college, the wife not having remarried, the husband agrees, from that time until her remarriage, or as long as the wife shall live, if the wife never remarries, to pay to the wife one third of .his income.” It was further mutually agreed that in the event of the remarriage of the wife the husband would pay her $30 per month to be used for the maintenance and education of the children until they finished high school; and in addition pay to her, in trust, an additional sum of $70 per month to create a trust fund for the college education of the children. If the payment of $30 and $70 per month exceeded one third of the husband’s income, the payments were to be reduced proportionately. When the trust fund aggregated $8,000, payments into it should cease; if it did not reach that sum by the time the children were ready to enter college, the husband agreed to finance the college education of the children to an amount of $6,000, less the sum then in the trust fund. It was agreed the wife should have the exclusive control and custody of the children, with the right of the husband of seeing and visiting with them at all reasonable times. By this agreement they divided their two automobiles, the wife taking the better one, the husband the other, and he agreed to continue to pay the premiums on certain insurance policies and not to change the beneficiary named therein. It recited that the wife accepted these agreements on the part of her husband in full settlement of her rights in and to the property of the husband and in full of her rights or claims for support thereafter; that neither party should claim any right or interest in the property of the other presently owned, or hereafter acquired; that it was a full and complete settlement, each party having full knowledge of the property owned and possessed by the other, and in the event either party secured a divorce, “that party shall cause this separation agreement and property settlement to be presented to and approved by the court, and said wife shall have judgment therein for the payments herein agreed to be paid to her directly or to her for the use and benefit of said children. No other or further judgment for support, alimony, temporary or permanent, suit money, costs or attorney fees shall be applied for or obtained in any divorce action. The party bringing any divorce action shall pay the costs in said action resulting.” By it the wife agreed not to incur debts or buy on the credit of the husband, the same as if the parties had never been husband and wife. The agreement was to be binding upon the parties whether a divorce was granted or not, and they further agreed, after its execution, to live separate and apart.
Soon after this agreement was executed defendant took the children and her automobile and went to Piedmont, Cal., where she had the children in school for one year, then to Alameda for two years. During this time plaintiff sent her $150 per month (except for four months from November, 1935, to February, 1936, when he sent $50 per month). His salary during that time was $225 per month. While there defendant got employment with an association of merchants, contacting new residents, or demonstrating household equipment, which enabled her to earn from $80 to $100 per month a part of that time. She made, at the best, a bad business deal, in that she loaned some money to a man on whom she said she had to rely for information in making contacts with new residents, and took his note, of which only a small part has been repaid. It does not appear that plaintiff paid her any additional money by reason of it. Early in 1935 plaintiff got employment in San Francisco, across the bay from Alameda. In the five months he worked there the parties saw each other a few times, but did not resume marital relations. On one occasion she called him to come to her apartment. He found her in a very serious mental state; upset, worried, despondent; she spoke of the business transaction above mentioned; thought her competitors were in league against her, tapping her telephone wire, watching her home at night, and following her in the daytime. At her request he spent several evenings with her, endeavoring to quiet her. A few days later she took a trip to Mexico for three weeks. In the summer he returned to his work at Salina. In the fall of 1935 he got an almost new used automobile. She learned of this and wanted to trade the car she had for it. He agreed to this if she would pay the balance, about $200, due on the car he had — deductions to be made from his monthly remittances to her. She consented to this and the exchange was made. He made some reductions from his remittances, but she wrote that she needed all the money and he ceased making them. Several months later she sold the car for $400 and kept all the money.
In the fall of 1936 she went to Chicago, rented an apartment, put the children in school, entered Chicago University, and took a course to qualify her as a pyschiatric social worker. She spent the school year there prior to the trial, and another school year will be required for her to finish the course, when she hopes to get employment in that work at from $100 to $125 per month.
We agree with counsel for appellant that the evidence does not show extreme cruelty as that term is defined in the authorities. (Masterman v. Masterman, 58 Kan. 748, 51 Pac. 277; Rowe v. Rowe, 84 Kan. 696, 115 Pac. 553; Id., 89 Kan. 592, 132 Pac. 208; Williams v. Williams, 106 Kan. 751, 189 Pac. 910.) Here there is no evidence of charges of infidelity, or of harsh or brutal words or conduct, or of anything done cunningly or subtly with the intention to injure the feelings or reputation of plaintiff.
The divorce was granted upon the ground, also, of gross neglect of duty. That term is indefinite, although it means something more than simple neglect. Each case must be examined by itself. (19 C. J. 69; Smith v. Smith, 22 Kan. 699.) Here, while each had, and apparently still has, a high regard for the other, and neither wants to see any specific harm come to the other, there never has been that real affection between them essential to a happy home and a successful marriage. The testimony of each of them disclosed that they never got along well together; there was a constant feeling of estrangement between them; repeated and almost continuous bickering and disagreements between them over relatively trivial things when they were alone. This destroyed plaintiff’s peace of mind, and decreased his efficiency to work, and affected his earning capacity. There is room to say the blame was not all on one side, but the trial court was in better position to say which party was responsible for it than is this court. In the division of responsibilities between husband and wife, the greater duty of having a harmonious home ordinarily falls upon the wife, just as the greater duty of providing a living falls upon the husband. Here the evidence sustains the view that defendant’s interest in a harmonious home was secondary to her own ambitions apart from the home, and that she carried this to such an extreme as to be primarily responsible for the failure of their marriage. Both knew their marriage had failed. Each wanted a divorce. To refuse a divorce would serve no good purpose. We are unable to say there was no substantial evidence of gross misconduct of defendant sufficient to sustain the judgment for divorce.
After granting the husband a divorce, because of the fault of the wife, the court gave the wife judgment for alimony against the husband for $900. Counsel for appellant points out that the court had no authority to do that under our statute (G. S. 1935, 60-1511). The point is well taken. In Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804, where a similar decree and judgment were rendered, it was held:
“Where a divorce is granted by reason of the fault or aggression of the wife, the court does not have the power to require the husband to pay permanent alimony.”
Appellee has no cross-appeal from this portion of the judgment, but appellant is concerned with its validity. The ordinary rule is, a valid judgment must be within the power of the court to render. Whether, if this judgment were affirmed, appellee could hereafter raise the question of the validity of this judgment, we need not consider, as that question is not before us. We simply decline to approve an invalid judgment when its invalidity is called to our attention.
Counsel for appellant contends the court erred in finding the separation agreement unjust and unreasonable, that it was not freely and intelligently made by plaintiff, that it is indefinite, and in holding it to be void. There is merit in this contention. As previously noted, its validity does not appear to have been put in issue by the pleadings. It would seem plaintiff violated the agreement when he filed his petition without setting it up and asking the court to approve it. If he thought it invalid for any reason he might have set it up and stated the facts or reasons for which he thought it invalid, but this was not done. There is no evidence in the record as to who prepared the agreement, or at whose instance, or under what circumstance it was prepared; hence, there is no evidence to sustain the court’s finding that it was not freely and intelligently made by plaintiff. Plaintiff obviously sought to ignore this agreement, both in his pleadings and in the evidence. Plaintiff called defendant as his first witness. On cross-examination she was asked about the agreement and started to answer, when counsel for plaintiff objected that it was not proper cross-examination. This was sustained. Technically the ruling was correct; plaintiff’s counsel had not asked about that on direct examination. When plaintiff was on the witness stand his counsel asked him nothing about that matter. When defendant was testifying in her own behalf her counsel sought to introduce this agreement in evidence. The following occurred:
(Counsel for plaintiff): “We object to it on the grounds that it is incompetent, irrelevant and immaterial and not effective in this case and the terms of the contract that ever was recognized and in force — that arrangement has never been agreed on, that the parties have lived together since then.
(Counsel for defendant): “I think the court should have it to consider.
(The court): “Just what bearing does that have on what is going to happen now? You made your offer and I will pass on the admittance of it later.”
The record shows no further ruling on the application. As we read the record, including the" transcript, it does not appear the parties lived together as husband and wife after this agreement was executed; there is positive testimony to the contrary. If that were true it would not necessarily avoid their separation agreement. (Dennis v. Perkins, 88 Kan. 428, 129 Pac. 165; Boss v. Boss, 103 Kan. 232, 173 Pac. 291.) Neither does it show the contract had never been recognized as in force, but, on the contrary, shows that since its execution to the time of the trial, about four years, the parties had lived separate and apart from each other; that defendant had the custody of the children, and that plaintiff, with the exception of four months, had sent to her each month for the support of herself and the children substantially two thirds of his salary, which appears to have been his only source of income.
In passing on the validity of the agreement, when judgment was rendered the trial court had nothing before it but the agreement itself and defendant’s request in her cross petition that it be approved. We have the agreement before us and can read it and determine its meaning and validity as well as the trial court could do.
Looking at this agreement we see nothing unreasonable in its provisions respecting the custody, support and education of the children. The provisions are of the kind that an intelligent, fair-minded man, conscious of his duties and obligations with respect to his children, and desiring them to receive a good education, naturally would want to make. The court’s decree gave defendant the custody of the children, substantially as the agreement had done. Plaintiff had testified that she was a good mother to the children and that she would not rob them to clothe herself. There was other testimony that she is an exceptionally capable and intelligent mother, particularly respecting their diet and health. The court correctly found, under the evidence, that she is a suitable person to have control and ■custody of the children. The court required plaintiff to pay $75 per month for support and education of the children. By the agreement he was to pay one third of his income, which, at the time of the trial, was about the same as the amount the court ordered to be paid, but would, of course, vary with his income. Perhaps there was no reason for the court to change the amount which the agreement provides he should pay for the support of the children. If that should prove inadequate, the court, in any proper action or proceeding, could require him to pay more, for the children are not parties to the contract, and the father by this contract could not relieve himself wholly from his natural and legal obligation for their support. The court stopped the payments when the children should get through high school. Plaintiff had agreed to finance, or assist in financing, their college education. We see nothing unreasonable about that, nor any cause for the court to disapprove it, or relieve plaintiff of this obligation, particularly when he does not request it.
The provisions for payment to the wife are not invalid as a matter of law. The amount the husband agrees to pay his wife may be based upon a share of his income (Lindey, Separation Agreements, p. 228, and authorities cited), and the husband may lawfully agree to continue such payments as long as his wife lives, or during her natural life (Lindey, Separation Agreements, pp. 221, 222, and authorities there cited), or for a shorter time, as until her remarriage (Id., p. 243). Such agreements may remain in full force after a divorce between the parties (Id.), particularly if they specifically so provide. (19 C. J. 250.) Neither is it so indefinite as to be invalid. It provides for several contingencies and makes specific provisions for each of them. It is indefinite only because it is unknown in advance which situation will arise, but it is not indefinite as to the obligations of the parties when they do arise.
In support of the holding of the trial court, counsel for appellee makes no analysis of this agreement, and does not attempt to point out which of its provisions is void. He contents himself by contending that it imposes obligations on plaintiff with respect to payments to the wife which the court, under our statute, could not impose on plaintiff in a divorce action, if no agreement between the parties had been entered into. Cases are cited (Noonan v. Noonan, 127 Kan. 287, 276 Pac. 826; Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Hardcastle v. Hardcastle, 131 Kan. 627, 293 Pac. 391; Revere v. Revere, 133 Kan. 300, 299 Pac. 595) in which it was held (where the divorce was granted to the wife because of the fault or aggression of the husband) the court could not give judgment for alimony to the wife in an indefinite sum, or for periodical payments over an indefinite time, as for life, or until the wife should remarry, but that the judgment for alimony must be in a specific sum, although it may be made payable at once or in future installments at the discretion of the court. This argument and this line of authorities are not in point. There is a distinct difference between what the court has authority under statutes to do with respect to alimony in a divorce case and what the parties may agree upon.
In Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437; Id., 147 Kan. 134, 75 P. 2d 1023, pending a divorce action, the parties made an agreement as to the custody of their daughter and the sum the husband would pay the wife for her care and maintenance. They executed this and had it embodied in the decree of divorce. Later the wife brought a separate suit for the specific performance of the contract. A decree was entered. Later the defendant moved to modify the sum to be paid, contending the court had the same right to modify the decree in that respect that it would have to modify a decree entered under the statute in a divorce case with respect to the amount the husband should pay for the support of a child. The court declined to follow that view. The parties were competent to contract, they had done so, the contract set out the conditions under which the amount to be paid could be modified, and in that respect the rights and liabilities of the parties were governed by the terms of the contract, not by the statutory authority of the court in divorce cases.
In granting a divorce the court has no authority under the statute to decree that a part of the property of the husband shall be the sole property of the children (Melton v. Every, 105 Kan. 255, 182 Pac. 543), but the parties to the action may agree that the fee to certain of their property shall vest in the children, and be bound by such an agreement. (Cowle v. Cowle, 114 Kan. 605, 220 Pac. 211.)
In Ross v. Boss, 103 Kan. 232, 173 Pac. 291, the parties had made a separation agreement by which the wife had accepted a certain sum as her full share of her husband’s property. Later the parties lived together for a time, then the wife brought an action for divorce, in which the court gave her an additional sum as alimony. This was held to be error; that the contract having been fairly entered into, the wife was bound by it.
• A husband and wife are competent parties to agree between themselves upon a division of property and payments to be made by the husband for the support of the wife. When such agreements are fairly and intelligently made — that is, when they are not induced by fraud, duress, concealment, or undue influence, not the result of mutual mistake, and when the parties fully understand what they are doing — they are uniformly upheld by the courts. (13 C. J. 465, 466; King v. Mollohan, 61 Kan. 683, 60 Pac. 731; Dondelinger v. Dondelinger, 101 Kan. 179, 165 Pac. 849; Blair v. Blair, 106 Kan. 151, 186 Pac. 746; Bradley v. Burgess, 109 Kan. 347, 198 Pac. 967; Dutton v. Dutton, 113 Kan. 146, 213 Pac. 326; Arthur v. Moorhead, 128 Kan. 421, 277 Pac. 1015; Hewett v. Gott, 132 Kan. 168, 294 Pac. 897.)
Courts have no authority to ignore a contract, fairly and intelligently made by the parties, and to make another for them. (Shaffer v. Shaffer, 135 Kan. 35, 10 P. 2d 17.)
It was error for the court to hold this agreement void.
The result is, the judgment of the trial court should be affirmed insofar as it granted plaintiff a divorce on the ground of gross neglect of duty; the judgment for defendant against plaintiff for alimony in the sum of $900 should be reversed; the findings and judgment of the court respecting the invalidity of the separation agreement should be set aside, and with respect to that instrument the court should be directed to approve it. It is so ordered. | [
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The opinion of the court was delivered by
HutchisoN, J.:
This is an appeal from a finding and judgment for contempt for the violation of an injunction order issued in an action brought in Leavenworth county by several parties living near a dairy, against the defendant, Joseph L. Allen, doing business as the Cloverleaf Dairy, in which they complained of the way and manner in which the creamery was operated in that it caused serious vibrations, loud noises, and offensive odors, which were much to the annoyance, inconvenience, discomfort and health of the neighbors.
The original action for injunction was tried before the district judge without a jury, and an injunction was granted by the district court on July 24,1934, enjoining and restraining this defendant from continuing the objectionable features complained of. In the journal entry of such judgment the following language was used as to the injunction:
“It is therefore now by the court here considered, ordered, adjudged and decreed that the said defendant herein, its successors, grantees or assigns, be and they are hereby enjoined and restrained from operating or running said Diesel engine or any other engine or machinery causing such vibrations as will jar, shake or otherwise disturb or put to great inconvenience, annoyance or damage the property or peaceable enjoyment thereof by said plaintiffs.
“From loading or unloading milk cans and operating trucks or other vehicles in and upon said premises so as to cause loud and violent noises sufficient to disturb the peace and quiet of said plaintiffs.
“From operating said plant in such a manner as to cause disagreeable, obnoxious, dangerous or unhealthy fumes and smoke or gases to permeate the houses of said plaintiffs to their discomfort, annoyance and inconvenience, and that said plaintiffs recover their costs herein expended and that execution issue therefor; to all of which orders, judgments, and decrees the above-named defendant duly objects and excepts.”
An appeal was taken from the order and judgment of the trial court to this court and the judgment was affirmed by this court on April 6, 1935, the decision being reported in 141 Kan. 661, 43 P. 2d 969. The mandate was duly sent to the district court and made of record there.
On April 16, 1936, an affidavit was filed in the district court of Leavenworth county charging the defendant with contempt for the violation of the injunction order, and on the same day there was filed a verified accusation against the defendant for contempt by reason of his violation of the orders made in the permanent injunction granted.on July 24,1934.
Thereafter the defendant filed a motion to make the accusation more definite and certain by stating how and in what manner the plaintiffs were annoyed, and by setting out the definite dates and times when the plaintiffs claim they suffered by reason of the operation of the dairy in violation of the injunction order. The motion was sustained by the trial court as to the matter of times and dates, and overruled as to other matters. Thereafter on June 6, 1936, the plaintiffs requested leave of the court to amend their accusation in contempt by striking out the words “which said times and dates are too numerous to mention,” and by substituting therefor by inter-lineation the words “the exact times and dates of which plaintiffs are unable to state.” The substance of the accusation is as follows:
“. . . since said mandate was duly spread upon the records of this court the said defendant has continued on divers days and times and up. to the filing of this accusation, the exact times and dates of which plaintiffs are unable to state, violated the terms and conditions of said injunction, and has operated a Diesel engine or machinery in his plant which has caused such vibrations as to jar, shake and disturb the above plaintiffs greatly to their annoyance; has loaded and unloaded milk cans and operated trucks or other vehicles on said premises so as to cause loud and violent noises sufficient to disturb the peace and quiet of said plaintiffs; has operated such plant in such manner as to cause disagreeable, obnoxious, dangerous and unhealthy fumes, smoke or gases to permeate the homes of said plaintiffs to their discomfort, annoyance and inconvenience.
“That all of said things have been done by said plaintiff contrary to the provisions of said injunction and in violation thereof and in contempt of the judgment of this court.”
The defendant filed a motion to dismiss the accusation and also a demurrer thereto, both of which were overruled. The defendant then filed an answer, which was a general denial, and also pleaded matters which were involved in the motion to dismiss and the demurrer. The answer also alleged that the defendant in the spring of 1934 removed the semi-Diesel engine which was in operation at the time of the trial as to the injunction and replaced the same and described the method and manner of mounting it in the building so as to avoid vibration and noise; that he erected a brick wall along the west line of his property in the rear thereof and between the driveway and the Alster property; that he increased the height of the smokestack about six feet; that he removed the oil-burning boiler and replaced the same with a coal-burning one; that he removed the brine mixer and ice machine and replaced them with a different machine; that these removals, changes, replacements and alterations were made at great expense and for the sole purpose of abating any nuisance or disturbance; that these changes, replacements and alterations have been successful in abating any nuisance, disturbance or annoyance and they do not cause any vibrations which jar, shake or disturb the plaintiffs; that by the erection of the wall screen the plaintiffs cannot be and are not disturbed by the loading and unloading of milk cans or the operating of trucks or other vehicles; that by increasing the height of the smokestack and the changing to a coal-burning boiler all disagreeable, obnoxious, dangerous or unhealthy fumes, smoke or gas are impossible; that the dairy now cannot and does not cause any noise or vibration which disturbs or annoys the plaintiff; that the dairy is a creamery business which bottles milk and cream, makes butter and ice cream and performs other usual and ordinary operations connected with a milk and cream business; that it is located in the city of Leavenworth and is not prohibited by any zoning ordinance; that it has at various and sundry times been inspected and approved by the state board of health and the board of health of Leavenworth county; that its business is not a nuisance per se, and there is no ordinance or statute which makes it unlawful to operate the same where it is located; that it is a lawful and necessary business and not being a nuisance it cannot be held to constitute a nuisance in law by reason of the ordinary and usual noises and operations of a creamery; that on or about August 16, 1934, the defendant notified the plaintiffs that he had installed a new engine for the purpose of making tests and asked them to call his attention to any disturbance and he would immediately stop the engine, correct the vibration or have the engine removed; that he received no replies or complaints and he therefore purchased the new engine at a great cost and it is now impossible to get his money back; that this being an equity case for the recovery and enforcement of an injunction, the plaintiffs are required to do equity and are prohibited and estopped from now complaining that they are disturbed or annoyed; that if the plaintiffs are disturbed or annoyed by vibrations they are not caused by the operation of the machinery of the defendant, but by the operation of a certain ice plant in the city of Leavenworth; that if there are vibrations, smoke, fumes or noises by reason of the operation of the defendant’s dairy, that such vibrations, smoke or noise are not sufficient to disturb or annoy persons of ordinary and normal sensibilities; that they are not unreasonable or obnoxious and that persons living in a city of the size and character of Leavenworth are not entitled to absolute peace and quiet in their homes, but must accept and tolerate such noises as are not offensive to ordinary and normal persons and are usual in the operation of lawful business enterprises in a city of similar size and character.
Evidence was introduced by both parties, including the evidence of the professor of physics from the state university of Kansas, who was appointed by the court at the request of the defendant to make a scientific investigation as to vibrations, noise, gases, fumes and smoke. He was called and used as a witness in the case by the defendant. The court requested both parties to submit findings of fact and conclusions of law, which they did, and the court thereafter made the following findings of fact and conclusions of law which were included in the journal entry of judgment:
Findings op Fact
“1. The plaintiffs, Blanche Lipscomb, Margaret McKinsey, John Alster and Sam Alster, and all of them, have on many and divers times and occasions from and after the 24th day of July, 1934, to April 16, 1936, and up to the time of this trial, been disturbed and put to great inconvenience and annoyance in the peaceable enjoyment of their property by reason of said property being jarred and shaken from vibrations caused by the operation of the defendant Joseph L. Allen, or his agents or employees, of a Diesel engine, or other machinery in and about the Cloverleaf Dairy plant.
“2. The plaintiffs, Blanche Lipscomb, Margaret McKinsey, John Alster and Sam Alster and all of them, have on many and divers times and occasions from and after the 24th day of July, 1934, to April 16, 1936, and up to the time of this trial, suffered a disturbance of their peace and quiet in their homes by reason of loud and violent noises caused by the loading and unloading of milk cans, milk cases and by the operating of trucks and other vehicles in and upon the premises of the Cloverleaf Dairy.
“3. The plaintiffs, Blanche Lipscomb, Margaret McKinsey, John Alster and Sam Alster, and all of them, have on many and divers times and occasions from and after the 24th day of July, 1934, to April 16, 1936, and up to the time of this trial, suffered discomfort, annoyance and inconvenience from disagreeable and obnoxious fumes, smoke and gasses from the plant of the defendant herein permeating the homes of said defendants [plaintiffs].
“4. The plaintiffs, John Alster and Sam Alster, have suffered great annoyance and discomfort from the noise of water dripping over cooling towers placed on the roof of said Cloverleaf Dairy plant from and after July 24, 1934, to April 16, 1936, and up to the time of this trial.
“5. The plaintiff, John Alster, has suffered great annoyance, discomfort and loss of sleep by reason of.noises in and around a budding constructed of glass blocks on said Cloverleaf Dairy premises since the issuance of the injunction of July 24, 1934, and prior to April 16, -1936, said building being used for the purpose of retailing products of said Cloverleaf Dairy and being operated sometimes until after one o’clock in the morning; that automobiles park outside said building and the occupants thereof are served with drinks, ice cream, ice-cream cones and other dairy and creamery products; that during the hot summer evenings with the windows of the Alster house open he can hear the boys employed by defendant herein giving the customers orders to persons inside said glass house; can hear the slamming of the screen doors thereof and can hear the ringing of the cash register; all of which noises greatly disturb said plaintiff and deprive him of sleep and rest.
“6. The vibrations, noises, gases, smoke and fumes which at times annoy, disturb and inconvenience plaintiffs are not constant, but are spasmodic. They do not occur at regular intervals, nor do they continue for regular periods of time. The gases, fumes and smoke annoy and disturb greatest under certain weather or atmospheric conditions.
“7. There are times when there are no noises, vibrations, smoke, gases or fumes that annoy these plaintiffs, although the plant is in operation.
“8. It is possible for defendant to so operate his dairy plant as to not jar, shake or otherwise disturb or put to great inconvenience, annoyance or damage the property or peaceable enjoyment thereof by said plaintiffs.
“9. It is possible for defendant to so operate his dairy plant and to load and unload milk cans and cases of bottled milk and to operate trucks and other vehicles in and upon said premises so as to not cause loud and violent noises sufficient to disturb the peace and quiet of the plaintiffs.
“10. It is possible for defendant to so operate his dairy plant as to not cause disagreeable and obnoxious fumes, smoke and gases to permeate the homes of said plaintiffs to their discomfort, annoyance and inconvenience.
“11. It is possible to operate the retailing of dairy and creamery products by defendant without shouting of orders and slamming of doors which disturb and annoy the plaintiff, John Alster.
“12. It is possible for defendant to so operate his dairy plant without cooling towers with water constantly dripping to the annoyance and discomfort of the plaintiffs, John Alster and Sam Alster.
“13. That by reason of the failure and refusal of said defendant to obey the injunctive orders of this court, said plaintiffs have been compelled to hire an attorney to prosecute this contempt action at an expense of $300, which is a reasonable fee therefor.
“14. The court finds that the defendant is quilty of contempt in the violation of said injunction in the manner stated in the above findings of fact.
“15. The court further finds that such violations of said injunction were done knowingly, willfully and contemptuously by the defendant, Joseph L. Allen.”
“Conclusions of Law
“1. The defendant, Joseph L. Allen, doing business as Cloverleaf Dairy, has disobeyed the injunctive orders of this court as specified and set out in the judgment of injunction granted and entered in the records of this court on the 24th day of July, 1934, in the case of John Alster, et ah, plaintiffs, versus Joseph L. Allen, doing business as Cloverleaf Dairy, defendant, by operating and running a Diesel engine or other machinery causing such vibrations as have jarred, shaken or otherwise disturbed or put to great inconvenience, annoyance or damage the property or peaceable enjoyment thereof by the plaintiffs, Blanche Lipscomb, Margaret McKinsey, John Alster and Sam Alster, by loading and unloading milk cans and operating trucks and other vehicles in and upon said premises so as to cause loud and violent noises sufficient to and which did disturb the peace and quiet of said above-named plaintiffs, and by operating the dairy plant of the Cloverleaf Dairy in such a manner as to cause disagreeable and obnoxious fumes, smoke or gases to permeate the houses of said above-named plaintiffs, to their discomfort, annoyance and inconvenience between said 24th day of July, 1934, and the 16th day of April, 1936, and from said 16th day of April, 1936, to the time of this hearing and trial.
“2. That by reason of the disobedience of said injunction, as set forth, the defendant, Joseph L. Allen, is in contempt of this court, and should be punished therefor.”
The court adjudged and decreed the defendant, Joseph L. Allen, doing business as the Cloverleaf Dairy, to be guilty of contempt of court and fined him $100 and the further sum of $300 to be paid into court within fifteen days for attorney fee in prosecuting the contempt proceeding, and ordered him to give bond for $1,000 conditioned upon the obedience by him, his successors, grantees or assigns of the injunction therefor issued herein and every part thereof and to pay the costs of the action. The defendant filed a motion to set aside the findings, a motion to set aside the conclusions, a request for additional findings, a motion to set aside the judgment and a motion for a new trial, all of which were overruled, and the defendant promptly and in due time served notice of appeal. The plaintiffs also served a notice of cross-appeal as to the amount of the attorney fee.
The appellant has argued very studiously and earnestly under seven different headings why the findings and conclusions that the defendant was in contempt of court for violating the injunction were erroneous and should be set aside. The first ground urged is that the accusation in contempt is too indefinite to sustain the judgment finding the appellant guilty of contempt. Among the reasons discussed is the fact that the accusation nowhere gives dates of the specific violations of the injunction order. The accusation simply says “since said mándate was duly spread upon the records of this court the said defendant has continued on divers days and times and up to the filing of this accusation, the exact times and dates of which plaintiffs are unable to state, violated the terms and conditions of said injunction. . . .” That statement limited the period to approximately one year. The injunction case was affirmed in this court •on April 6, 1935, and the accusation was filed April 16,1936. G. S. 1935, 20-1204, which prescribes the procedure for indirect contempts, states that, "... a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed.' .
It is said in 1 Bancroft on Code Pleading, 995, that—
“Ordinarily, an allegation of time is not controlling, and the party responsible for such an allegation is not bound to prove it literally, but may show the actual transaction, although it occurred at a time other than that alleged. Generally speaking, it is the transaction, rather than the time at which it occurred, that is the material thing.”
Even if we were to consider a contempt accusation for violating an injunction order as a criminal action, which we do not, the dates would not be absolutely necessary in the indictment as is provided by G. S. 1935, 62-1006, where it is said:
“The precise time of the commission of an offense' need not be stated in the indictment or information; but it is sufficient if shown to have been within the- statute of limitations, except where the time is an indispensable ingredient in the offense.”
Besides, the amended accusation states that the plaintiffs were unable to state the exact times and dates of the various violations.
The appellant insists that aside from -the question of dates and times, that the allegations of the accusation were only conclusions of law to the effect that the appellant was violating the injunction in every manner mentioned in the injunction order. We have purposely set out herein the essential portions of the injunction order and the accusation so as to show that the accusation went further than to allege a violation of the injunction order. It stated that it was being violated by the appellant by the operation of a Diesel engine or machinery in his plant which caused vibrations so as to jar, shake and disturb the plaintiffs. .It spoke of further violations in loading and unloading milk cans, causing loud and violent noises, and operating the plant in such a manner as to cause disagreeable, obnoxious, dangerous and unhealthy fumes, smoke or gas to permeate the homes of the plaintiffs. By turning to the contents of the injunction order, as given herein, it will be observed that practically the same and identical matters were forbidden therein. It is therefore not a mere conclusion, but facts are alleged which constitute the violation and disregard of the injunction, if they should be established later by proof.
Appellant cites in this connection: Heatherman v. Kingman County Comm’rs, 132 Kan. 590, 296 Pac. 707; Hartman v. Wolverton, 125 Kan. 202, 263 Pac. 789; Howard v. Eddy, 56 Kan. 498, 43 Pac. 1133, and cases from other jurisdictions, to show that specific and definite violations of the injunctive order are necessary, which we admit to be the correct rule, but we think the cases cited do not approach the requirements therein outlined as necessary as to the allegations of the accusation in the case at bar. In the Heatherman case, supra, the court dismissed the accusation because it was not specific as to the violations. It was where an order was procured requiring the county commissioners to keep part of the road in question in “passable condition,” and they later provided for a ford across the stream instead of a bridge. The accusation was dismissed and the following language was used in the opinion:
“A contempt proceeding is a little different from any other. It is not like a criminal proceeding. It was the' duty of the appellant to call the attention of the court to the fact that appellees were not showing the proper respect for its orders.” (p. 592.)
The Hartman case, supra, where the accusation was also dismissed, was where the defendant had been enjoined from erecting a building for temporary or permanent residence which would not comply with certain restrictions, but the injunction contained no order whatever as to occupying such building, and it was said in the opinion:
“Occupancy and use forbidden by the restraining order were omitted from the injunction order, which was limited to the single subject of erecting a temporary or permanent residence. Therefore, the court was not authorized to found a judgment of contempt on the restraining order.” (p. 205.)
The second paragraph of the syllabus in the Howard case, supra, is a concise and forcible rule, but we think it is inapplicable to the case at bar, which does allege facts and circumstances upon which the so-called conclusion in the first part of the accusation rests.
We think the accusation was not indefinite, but that it alleged violations of the injunction by referring to various vibrations, noises and odors, all of which were forbidden by the injunction.
We shall consider together the second and third points briefed by the appellant, the second being that equity should not countenance spiteful claims of annoyance when contrary to facts scientifically established. The third point is that scientific investigations show no disturbance was caused by the Cloverleaf Dairy. We have no difficulty in agreeing with the wholesome and correct theoretical principle announced as a second ground of appellant’s claim of error, but it requires evidence to make that proposition workable, evidence that the claims of the plaintiffs were spiteful and for the purpose of annoyance and also satisfactory evidence of the contrary facts being sufficiently and scientifically established.
The third point urged goes to this last-named proposition and we find no evidence in the record reflecting on the character or superior scientific attainments and ability of the expert witness, the professor of physics at the University of Kansas. His scientific statements, however, were partly built and based upon his own personal observations and upon answers received to his inquiries from others. There were also some other experts, chemists among others, and various tests were made by delicate instruments to observe and detect the jar or shaking of the buildings at different times and places and in different houses near by, particularly those occupied by the plaintiffs, and this evidence by these several experts negatived or reduced to a minimum any and all of-the offensive and objectionable character of the vibrations, noise, fumes and disturbing features claimed to have surrounded the dairy plant. To this extent it was either partially or wholly in conflict with the evidence of some of the other witnesses, and it was therefore an element'for consideration in connection with any and all of the pertinent and competent evidence introduced in the case and not such as would be indicated by the heading of this subdivision as being in itself absolutely controlling regardless of the conflict between it and other testimony.
The fourth topic discussed by counsel for appellant is that the evidence produced does not establish contempt on the part of the appellant, and in this connection, in addition to citing and quoting numerous portions of evidence, it cites Phillips v. Brick Co., 72 Kan. 643, 82 Pac. 787, and Shepler v. Kansas Milling Co., 128 Kan. 554, and other cases to the effect that natural rights of persons may be curtailed which the sufferer must sustain without other return therefor than the manifold benefits which inure to him as a citizen privileged to reside in and earn his livelihood in an orderly community, all of which can and will be readily admitted as general principles, but they should not go to the extent of greatly annoying the neighbors or causing loud and violent noises sufficient to disturb the peace and quiet or causing disagreeable, obnoxious, dangerous and unhealthy fumes and smoke to penetrate their homes, as is alleged in the accusation. There was evidence showing that there were times when no noises or vibrations were observable, but that does not go to the extent of showing there were none such at other times, so it always was and always will be a question of fact as to the extent of the vibrations, noise and fumes.
This same paragraph in the brief discussed the lack of good faith on the part of the neighbors, particularly the plaintiffs. That is proper to be considered in weighing the testimony. It will be impossible to take up and discuss every item of testimony which is presented and discussed by the attorneys in their briefs. One feature is mentioned in this connection as to the extent and weight of evidence necessary in a case of this kind. Reference is made to 6 R. C. L. 530 and also to 13 C. J. 77, where the degree of evidence required in such a case was discussed. A portion of the latter text is as follows:
“Many cases insist that the accusations must be supported by evidence sufficient to convince the minds of the triors beyond a reasonable doubt of the actual guilt of the accused, especially in cases of criminal contempt.” (13 C. J. 78.)
In the same paragraph it is also stated:
“. . . there is an irreconcilable conflict of judicial opinion as to the sufficiency of evidence- where the contempt is based on the violation of an injunction, some cases holding that the guilt of defendant must be established beyond a reasonable doubt, and that a conviction resting on ex parte affidavits will be set aside, while others hold that a preponderance of evidence as in other civil cases is sufficient.”
There is no question about its being considered a civil matter in this case. In the fourth paragraph of the syllabus in the case of Holloway v. Water Co., 100 Kan. 414, 167 Pac. 265, it is held:
“Under section 6 of article 6 of the constitution (Gen. Stat. 1915, § 208) the fine for contempt in violating an injunction goes to the support of common schools, although the proceeding to punish for such contempt was in this case civil rather than criminal.”
The fifth subdivision of the appellant’s brief refers to John Alster, one of the plaintiffs, not being a person of normal sensibilities, and refers to the rule that such matters should be considered as affecting normal persons. It also refers to the testimony of his physician as to John being supersensitive. If he were the only plaintiff here concerned, this proposition might become a very serious matter, but there are other plaintiffs and a number of other witnesses who were not plaintiffs, so we are not necessarily dependent upon the question of John’s being normal in his being affected by such matters as are herein claimed to be nuisances and obnoxious, and we can consider the others and avoid passing upon this one particular person and his impressions, feelings and testimony.
The sixth subdivision considers the findings and asserts that they are contrary to the law and the evidence in this case. As stated before, it will be impossible to include in this opinion a discussion of all of the testimony, or even the numerous parts that are quoted and cited in the briefs, but all of the testimony, both pro and con, has been considered, and we shall now attempt to compare our views and impressions concerning the same with those of the trial court as shown by its findings.
We approve and affirm the first, second and third findings of the trial court, and find they are supported by sufficient and more than a preponderance of competent evidence, except that the second finding should not contain the name of Margaret McKinsey, and the third finding should not contain the name of Sam Alster; but the elimination of the name of one person from each of the second and third findings will not affect the validity and force of the findings as a proof of contempt.
As to the fourth and fifth findings, we believe the defendant should not be bound thereby because they concern facts and sitúa- tions which were not definitely mentioned either in the injunction or accusation, namely, the water dripping over a cooling tower; also the noise in the glass block building, slamming of doors, parking of automobiles for the purpose of purchasing ice cream and other dairy products and the ringing of the cash register, for the reason that such matters were not included in the injunction and accusation.
Findings eleven and twelve are not approved because they refer exclusively and specially to the same matters that are contained in findings four and five.
All the other findings are approved and affirmed and found to be established by sufficient and more than a preponderance of competent evidence.
Special objection is made to the last finding, which is to the effect that the violations of the injunction order were done knowingly, willfully and contemptuously. There is ample evidence to show that, with possibly one exception, these violations were not accidental, which of course would not have made a violation of the injunction order contemptuous, but they were made knowingly and willfully, although the evidence shows there were many changes made in the equipment and manner of operation which were for the improvement and the lessening of the objectionable features, but still the vibrations, the noise of loading and unloading and the obnoxious odors and fumes remained, as the evidence showed, and with the knowledge and under the direction of the defendant. Some of the other findings are of a negative character, showing it was found to be possible for the plant to be operated in obedience to the injunction order. These were pertinent findings along the same line as to the matter of their occurrence and repetition being done knowingly and willfully.
There were two conclusions of law made by the trial court which we think were proper and were based upon sufficient findings of fact to justify a legal conclusion of contempt.
The next ground of complaint urged in the appellant’s brief is upon the question of admission and exclusion of evidence by the trial court. Many instances are cited by appellant in this connection, some of which might constitute error, but this case was tried before the court without a jury and the rule is less exacting in that case in oi’der to constitute a presumption of law, and therefore come under the provisions of our rule of court No. 52. We do not understand that any such point is raised or urged in this connection.
There was a distinct misunderstanding about the naming of the professor of physics of the state university as a party to investigate the matter complained of, and whether or not he was named as an officer of the court to make a report or was only an expert witness to examine into the matters at issue and testify as a witness. For that reason the court did not formally receive his report, but permitted him to testify as a witness of the defendant, in which testimony he went into the observations and investigations which he had made, and related in detail the results of his experiments with delicate instruments with reference to the question of vibrations, noises, fumes and gases. The attorney for appellant has filed the full report of this expert witness and also a supplemental report, which are contained in the abstract. They have been considered here in the review of the case as well as the testimony of this witness as it was introduced in evidence. Even if the court was mistaken in the matter of the extent of his employment and that the report and supplementary report should have been submitted as such, it1 would have been only advisory, as is the report of a commissioner appointed by the court to make findings and recommendations (State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5); so we see no substantial, serious or reversible error in the matter of the introduction or exclusion of evidence.
This concludes the consideration of matters under the appeal of defendant, but leaves for consideration the cross-appeal filed by the plaintiffs which has reference only to the question of attorney fee, which is stated in finding No. 13. The appellant urges that this appeal should be dismissed because the alleged error in finding No. 13 was not presented to the trial court by the plaintiffs, but the point was raised for the first time by plaintiffs in this court. Of course, the objection to all the findings, which was made by the appellant, includes this one which grants a fee of $300, and the argument is that it should not have been any sum whatever, but the point insisted upon by the plaintiffs is that under the evidence it should have been $500 instead of $300, and they cite the recent case of Wollard v. Peterson, 145 Kan. 631, 66 P. 2d 375, in which the attorney fee was an entirely separate matter from the other features of the case, from which no appeal was taken, and this court did consider and change the amount of the attorney fee. There is no question about the right of this court to do so, but it is necessary for it to be called to the attention of the trial court before it can be considered as an error and be subject to review in this court. It was held in the recent case of Stephenson v. Wilson, 147 Kan. 261, 76 P. 2d 810:
“On appeal no reversible error can be predicated on a point of law not fairly and timely raised in the trial court.” (Syl. ¶ 4.)
It was held in Skibbie v. Liberty Life Ins. Co., 130 Kan. 121, 285 Pac. 581, that—
“Alleged errors not brought to the attention of the trial court cannot form a basis for review in an appellate court.” (Syl. fl 3.)
We conclude that the cross-appeal of the plaintiffs should be dismissed and the judgment of contempt affirmed. It is so ordered.
Allen, J., dissenting. | [
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