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The opinion of the court was delivered by
Allen, J.:
These cases arise on the issue of ownership and right to possession of the real estate owned by Margaret Schindler at her death on March 15, 1930. She left no known heirs or will, and was a resident of Sedgwick county at the time of her death.
On March 17, 1930, the First Trust Company of Wichita was appointed and qualified as administrator of the estate of Margaret Schindler, deceased, in the probate court of Sedgwick county.
On August 24,1931, Florence Estelle McVeigh commenced her action in the district court of Sedgwick county, in ejectment, claiming title and right of possession to the real estate in question as the heir of Margaret Schindler and the grantee of the only other heir, Wallace Adam Sherer.
On October 4, 1931, Ethel Wentworth and Mabel Thatcher commenced their action in the same court, claiming title and the right to possession of the real estate in question as the sole heirs of the deceased, and later, with court permission, other members of their families were allowed to intervene and claim an interest through the same family tree.
The state of Kansas thereafter, by motion, questioned the jurisdiction of the district court in these cases, and from an adverse ruling presented its appeal to this court, where the lower court was affirmed and the cases remanded for trial, with directions that they be consolidated for that purpose. (McVeigh v. First Trust Co., 140 Kan. 79, 34 P. 2d 571.)
Thereafter Florence Estelle McVeigh obtained permission of the trial court to file an amended petition, making new parties defendant, and did file such a petition and obtained publication service on all of the unknown heirs, etc., of Margaret Schindler, deceased.
March 13, 1935, Margaret Berggraf Oliver, with leave of court, filed an intervening petition in these actions, claiming title and right of possession to the same real estate, as the sole heir of the deceased.
The state of Kansas intervened, with leave of court, and, together with the First Trust Company of Wichita, took issue with each and all claimants on all material allegations, denying, among other things, all claims of heirship or title, but admitting possession by the defendant trust company and setting forth the circumstances of the possession.
The petitions of the three sets of claimants each set up their claimed family tree and each claimed Margaret Schindler belonged to their particular family tree, and by subsequent pleadings each denied the claims of the other claimants in that respect. Each petition asked for an accounting of rents and profits.
The trial of these cases commenced April 22, 1935, and closed April 26,1935. On May 8,1935, the court made findings of fact and conclusions of law, and concluded from such findings “that Margaret McCormick Burggraf Oliver inherited the property of Margaret Schindler, deceased, and is the owner of the real estate in controversy herein.”
Subsequent proceedings in these various causes is thus shown in the abstract:
“Thereafter, and within three (3) days, Florence Estelle McVeigh, plaintiff; Ethel Wentworth and Mabel Thatcher, plaintiffs; Homer Hudson, Viola Kemp, and Joe Hudson, intervenors; the First Trust Company of Wichita, Kan., defendant; and the state of Kansas filed motions for a new trial, motions for additional findings of fact and conclusions of law made by the court herein, and motions for judgment.
“Thereafter, and to wit, on July 9, 1935, said motions come on regularly to be heard, and the state of Kansas and others of the moving defendants introduce evidence including affidavits on said motions for new trial, and thereafter all motions are orally argued to the court, and the court on its own motion continues the matter for further evidence or argument until September.
“Thereafter, and to wit, on the 24th day of September-, 1935, the matter comes on for further hearing upon the motions filed as aforesaid, and the plaintiffs, Ethel Wentworth and Mabel Thatcher, offer further evidence at said time, and the court being advised in all of the premises, finds that the finding of fact heretofore made should be changed and corrected in the following particulars, to wit: [here omitted].
“The court thereupon overruled all motions for judgment, for new trial and relating to the findings of fact and conclusions of law, excepting only insofar as said findings were amended as above set out.
“Thereupon, each of the moving parties, except Ethel Wentworth, Mabel Thatcher, Homer Hudson, Viola Kemp, and Joe Hudson, asked and obtained leave to refile their respective motions and did thereafter and within three (3) days again file motions for néw trial, motions relating to the findings of fact and conclusions of law and motions for judgment.
“Thereupon, and on the 24th day of November, 1935, all parties appearing as before, this cause comes on for hearing on the said motions filed. Whereupon Florence Estelle McVeigh introduced evidence, as shown by the record taken by the reporter and the affidavits filed, upon her motion for judgment and upon her motion for a new trial. And thereupon and after the introduction of said testimony application was made by the intervenor, Margaret Oliver, by her attorney, for a continuance of said hearing, which continuance was allowed, over objections, to January 8, 1936.
“Thereafter, and upon the 8th day of January, 1936, the same being a regular judicial day of the October, 1935, term of this court, this case again came on for hearing on the motions aforesaid, all parties appearing by their attorneys of record, and the court, after hearing and considering evidence offered in support of the motions for a new trial and evidence in rebuttal, finds that a new trial should be granted to all parties and intervenors and that all other pending motions should be overruled.
“It is, therefore, by the court ordered that all findings of fact and conclusions of law heretofore made and entered, and the judgment based thereon in favor of Margaret McCormick Burggraf Oliver and against all of the remaining parties, be and the same hereby are set aside and held for naught and that a new trial be and the same hereby is granted as to all of the parties and intervenors hereto and that all costs to date be and the same hereby are taxed and assessed against the intervenor, Margaret McCormick Burggraf Oliver, and that all other pending motions be and are hereby overruled.”
Appellants, the state of Kansas and the First Trust Company of Wichita, assert that the court erred in not sustaining the motions of appellants for judgment against Margaret Oliver, and in granting a new trial to the Wentworth and McVeigh claimants.
Counsel for appellants suggest that under the power conferred • on this court by our statute G. S. 1935, 60-3317, a summary disposition of this lawsuit should be made at this time. In appellants’ brief it is stated:
“Consideration of the evidence in the Oliver case falls naturally into two phases. In the first is that evidence which was before the court in May, 1935, where its findings were made and entered, and again on September 24, 1935, when the court declined to set aside its findings of fact and conclusions of law in favor of the claimant Oliver and enter judgment for the defendants.
“The error claimed by appellants in overruling the motions for judgment for the defense at that time is based on the lack of any substantial evidence either in May or September to identify Margaret Schindler, deceased, as related to the claimant; and, on the overwhelming preponderance of proof, both in May and September, in favor of the defense and against the claimant.
“The second phase deals with the entire record, with the purpose of showing this court that there is nothing to retry in the Oliver case and that this court should enter judgment for the defense.
“In this connection appellants propose to show this court that the documentary and other indisputable facts now in the record not only defeat the Oliver claim as presented, but conclusively show that the Oliver woman is an impostor who obtained her judgment by fraud and corruption, and in the light of the facts now settled in the record a new trial would afford no prospect of judgment in her favor, but on the contrary would simply encourage a fanatical and unscrupulous claimant and her accomplices in the perpetration of additional fraud and perjury; and that the ends of justice will be best served by putting an end to this extended and expensive litigation without further delay.”
We have examined the testimony in the Oliver case and the analysis of this testimony in the brief of the appellants. It is apparent the court was justified in setting aside the judgment rendered in favor of the claimant Margaret Oliver.
Upon the best consideration we are able to give the matter we do not feel justified in foreclosing the rights and claims of the various litigants by entering a final judgment at this time. If the claim of Margaret Oliver was fabricated out of the whole cloth as alleged, we cannot ignore the fact that the testimony upon which the court relied in setting aside the judgment in her favor was unearthed by the McVeigh claimants. Neither can we assume that upon a new trial the various claimants may not be able to produce additional testimony in support of their respective claims. The trial court, having heard the testimony, set aside the judgment in favor of Margaret Oliver and granted a new trial to all the claimants. If the trial judge was of the opinion that an unjust result had been reached, it was his duty to grant a new trial. In Armourdale State Bank v. Hoel, 120 Kan. 130, 242 Pac. 481, it was said:
“Upon what ground the new trial was granted was not indicated by the court, and it does not appear that the defendant asked the court to state the specific ground or grounds upon which the motion was allowed. Evidently the court was not satisfied with the verdict. It may have thought that the credible evidence did not support the verdict or that the jury had ignored the instructions given, or possibly that the verdict was given under the influence of passion and prejudice. If the trial judge was of the opinion that any of these grounds existed and an unjust result had been reached it was his duty to grant the new trial. From the record it cannot be said that the trial court erred in respect to some pure, unmixed question of law. There have been scores of decisions against the reversal of orders granting new trials in similar cases. They are so numerous and so well understood that a citation of them is not warranted.” (p. 131.)
The granting of motion for a new trial ordinarily rests in the sound discretion of the trial court. (Bowers v. Carlson, 139 Kan. 396, 32 P. 2d 246; Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486; Jones v. Prather, 136 Kan. 335, 15 P. 2d 408.)
It is also urged that the trial court erred in granting a new trial to the McVeigh and Wentworth claimants. We do not think the point well taken. Upon order of the court the various actions pertaining to the Schindler estate were consolidated, were tried together and a single judgment entered therein. The effect of the consolidation under our statute, G. S. 1935, 60-765, was to unite and merge all of the different actions consolidated into a single action for the purpose of all further proceedings the same as if the different causes of action involved had been joined in a single action. (1 C. J. S. 1371.)
The trial court having granted new trials to all the parties, the action must be sustained. In Beachy v. Jones, 108 Kan. 236, 245, 195 Pac. 184, it was said: “But in order to prevent miscarriage of justice, the new trial should be on all the issues involved and between all the parties to the original action.” See, also, Hoxie State Bank v. Vaughn, 137 Kan. 648, 652, 21 P. 2d 356.
For the reasons stated, the judgment of the trial court must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
HutchisoN, J.:
This was an action by a landowner to recover for loss and damage to crops, orchard and permanent injury to land by a railway company in first constructing an embankment on its right of way about three feet above the natural elevation, which accumulated large quantities of floodwater from the Kansas river during a flood and overflow of water from the river in the months of May and June, 1935; and later, after such accumulation and when the high water in the river was receding, but the overflow waters therefrom remained in large quantity along the north edge of the defendant’s right of way, the defendant caused to be cut underneath the tracks of the railway three drains or culverts, thereby causing the “accumulated floodwaters” to be discharged with great force and violence upon plaintiff’s land lying south of defendant’s right of way, the river being about a half a mile north of the right of way, which discharge of accumulated waters washed away a substantial part of the top soil and deposited sand and silt, thereby damaging plaintiff’s crops, orchard and land in the sum of $900, as alleged in the petition.
The defendant railway company filed a demurrer to this petition on the ground that it did not state a cause of action. The court overruled the demurrer, and from that ruling the defendant railway company appeals. The plaintiff had, in the meantime, with the consent of the trial court, amended his petition by inserting paragraph 9 which alleged negligence on the part of the defendant company in that it failed to release the water into a creek on the north side of the right of way with the same labor as was required to cut the three drains under the track, and avoid injury to the plaintiff. This amendment, however, was not filed until after two years from the date of the alleged injury to the land and crops of the plaintiff, and the defendant filed a motion to strike said paragraph from the pleading as irrelevant and in variance with the rest of the petition. The court sustained the motion to strike, and the plaintiff is here with a cross-appeal to review that ruling.
As to the ruling upon the demurrer, much is said and many decisions are cited where floodwater becomes surface water and a different rule applies. So we must decide in the first place in this case whether the allegations refer to floodwater or surface water. Surface water is mentioned twice in the petition, once in paragraph 5 and again in paragraph 6. In paragraph 5 it alleged that prior to the construction of the railway and the elevation of its track there was a natural drainage of surface water from the right of way and the land north thereof toward and upon the plaintiff’s land, but that such drainage was gradual and not in such volume or intensity as to injure plaintiff’s land. In paragraph 6 it is stated that prior to June 10, 1935, when the culverts were put under the track, the surface water from the north was retarded by the elevation of the defendant’s tracks. All the rest of the allegations of the petition concerned the floodwater and overflow from the Kansas river and the receding thereof before the insertion of the culverts or drains through which the accumulated floodwater was discharged with great force.
The case of Thompson v. McDougal, 103 Kan. 373, 175 Pac. 157, was concerning a break in the natural bank of a river which injured some of the landowners, who built a levee on their own land that turned the water back onto the land where the broken bank was, and the court held that it concerned floodwater and not ordinary surface water, referring to the decision in the case of Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034, where it was held:
“The duty of the builder of a bridge over a watercourse to avoid ob structing it does not end with making provision for the escape of so much water as can be carried within the channel; if there is reason to anticipate that the stream will at times overflow its banks he must also, if practicable, provide an outlet for the fioodwater.” (Syl. If 3.)
In the opinion the following statement from 25 L. R. A. 530 was copied with approval:
“ ‘To make the rights with reference to fioodwater of a river depend upon whether or not it is surface water is useless. The only safe course is to treat fioodwater as a class by itself and then determine the respective rights according to the character of the flood.’ ” (p. 622.)
In the same case the following quotation is made with approval from Railway Co. v. Herman, 74 Kan. 77, 81:
“ ‘There is a suggestion that the overflow of the stream is to be treated as surface water, and that the company cannot be held liable for injury resulting from such water. If the water was thrown back upon the riparian owners because of the obstruction of the channel of the stream, it is immaterial by what name it is designated.’ ” (p. 622.)
This refers to the throwing of the fioodwater back upon the landowner up the stream. That is what any embankment would naturally do, and it would be to avoid doing so and also to protect the defendant’s track that it would make drains or culverts in the embankment. The first paragraph of the syllabus in this Herman case is as follows:
“If a railroad company in building a bridge across a stream fails to leave ample passageway for such a flow of water in the stream as might reasonably be anticipated, and the bridge dams the water back upon the riparian owner to his injury, the railroad company is liable for the resulting loss.”
Much has been said in the briefs about fioodwater becoming surface water when the peak of the flood is over and the water recedes and forms into pools or ponds of stagnant water, but we think the petition does not present such a situation. Of course, there will be pools the moment the recession begins unless the land is all sloping toward the river or is practically level. The petition does not state facts to put it in this class within five days after the peak of the flood was reached. It is said in 67 C. J. 863:
“Overflow or floodwaters of a river, stream, or natural watercourse become surface water when they leave the main current never to return and spread out over lower ground; but if they form a continuous body with the water flowing in the ordinary channel, the current widening to the full width of the water, or if they depart from the stream presently to return or to run into another stream or lake, it has been held that they are to be regarded as a part of the stream and not as surface waters.”
Under these authorities and the allegations of the petition we shall regard the water described in the petition as floodwater.
We shall now consider the liability of the defendant who built an embankment which obstructed the continuous flow of floodwater and caused it to be collected at the embankment which had no culverts or drains through which it could pass, and who later made such culverts or drains that let the assembled water through with a rush to the injury of the crops and land on the other side of the embankment. In most cases the injury by an embankment retarding the flow or spreading out of the floodwater is sustained by those landowners upstream on account of the water unnaturally backing up on their lands for a longer time and to a greater extent than it otherwise would have done. Generally speaking, any such embankment, unless it has reasonable openings in it for flood purposes, is the basis of a liability to those injured thereby. Here we have an embankment without culverts at first. This might have been a cause of liability for those on the north or river side of the embankment but not for the plaintiff or others on the south side. But we later have the installing of culverts according to the allegations of the petition during the receding of the flood, which let the floodwater through with a rush. Of course, the defendant had a right, and perhaps a duty, to install such drains or culverts, but was there a liability in constructing them at a time when the accumulated floodwater would go through with a damaging rush? We shall consider both matters together.
The case of Clements v. Phoenix Utility Co., 119 Kan. 190, 237 Pac. 1062, was where floodwater injured parties on the river side of the embankment, which had culverts of sufficient capacity thereunder for surface water, but not for floodwater. The history of the changes made in rulings concerning the rights and liabilities of parties under such circumstances is instructive and has been helpful in the application of such rules since that time. It was there held that—
“The owner of property on the bank of a watercourse has the right to build levees or other barriers to confine the water to the channel of the stream, but he cannot build and maintain a structure which will change the channel or project the water against or upon the property of another, either on the same side of- the stream with him or the opposite side, in such a way as will result in substantial injury to such property, without liability therefor.” (Syl. 112.)
Under this situation it was said in the closing part of the opinion that the party building the embankment should be held liable because on account of the embankment the plaintiff’s land was covered with water over a larger area and to a greater depth than it would otherwise have been.
It was held in Riddle v. Railway Co., 88 Kan. 248, 128 Pac. 195, that—
“A railroad company in carrying its railroad over a watercourse and the approaches thereto must provide sufficient outlets not only for the ordinary flow of water, but also for the escape of water in times of floods which may reasonably be expected to occur.” (Syl. ¶ 1.)
The very recent case of Foster v. Kansas Gas & Elec. Co., 146 Kan. 284, 69 P. 2d 729, was where a gas and electric company with very large and expensive building and equipment, located on the east side of the Neosho river, constructed an embankment five to seven feet above the general level of the land from the east bank of .the river quite a distance to protect its works from the floodwaters of the river, and also constructed high banks north and south of a lake still farther east, the waters of which lake the company used. It left openings in the north and south banks of the lake and also between the lake and the bank north of the works, but it later filled such openings so that the embankment was continuous from the east bank of the river for nearly a mile. The plaintiff’s land was about a quarter of a mile east of the end of the embankment which was north of the lake. The plaintiff in his action against the electric company complained of the extended embankment making the fioodwater on his land deeper and staying longer than before the building of the embankment to his damage and injury, and it was held that—
“In an action for damages to crops by floodwaters of a stream alleged to have been diverted to plaintiff’s land by a fill and levee constructed and maintained by defendant, the record is examined, and it is held: (1) that there is substantial, competent evidence to support the judgment for plaintiff, and (2) that the court did not err by applying the rules of law stated in the syllabus in Clements v. Phoenix Utility Co., 119 Kan. 190, 237 Pac. 1062, with . respect to liability of defendant.” (Syl.)
In 3 Farnham on Waters and Water Rights, page 2564, it is said:
“Thus, where a violent rainfall had caused much water to collect against a railroad embankment, and the company, to protect the embankment,-cut a passageway through and let the water run onto the' land of a lower proprietor, it was held liable in damages for the injuries done, on the ground that to relieve itself from injury it had no right to inflict it on others.”
In 27 R. C. L. 1099 it is said:
“An upper riparian owner does not have the right suddenly to release water held back by an ice jam, to the injury of a lower owner, and the fact that such action is necessary to protect the land of the upper owner does not relieve him from liability. . Even though the upper owner is a railroad company and its roadbed is endangered by the floodwaters retained by the jam, its liability is not relieved by the necessity, for while it may be conceded that it is the imperative duty of a railroad to protect its roadbed from injury or destruction, the necessity for action gives it no right to turn the water resting against it upon the proprietors below, to their injury. Dams, dikes, embankments, and the like may be constructed in or along floatable streams to facilitate their use, but not to the extent of injuring the riparian proprietors by retarding the flow of the water or sending it down in increased volume, to their injury.”
We conclude that although the defendant railway company had a right to build an embankment to raise its track on its right of way and to construct culverts thereunder to permit floodwater to pass through onto the land of others, yet it is liable if it constructed such culverts at such a time as to cause the accumulated floodwater to be discharged through them with greater force and violence than as if sufficient drains had been already constructed when the flood commenced. The petition alleged the loss and damage was caused by the discharge of such accumulated floodwater through such newly constructed culverts upon the land of the plaintiff with great force and violence. The demurrer was properly overruled.
As to the sustaining of the motion of defendant to strike paragraph 9 of the amended petition, we also think the ruling was correct, because said paragraph was not added until more than two years after the time the injury was sustained, and the allegations thereof state a different cause of action in the nature of negligence in not diverting this accumulated floodwater through a creek on the north side of the right of way instead of through the three newly constructed culverts or drains. The rulings are both affirmed.
Habvey, J., not sitting. | [
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The opinion of the court was delivered by
HaRvey, J.:
Appellant was found guilty of the larceny of neat cattle. He has appealed, and contends the trial court erred in overruling his plea in abatement, in admitting certain evidence, in giving a certain instruction, and further contends the evidence was insufficient to sustain the verdict. The facts may be stated briefly, as follows: In 1928 the appellant, Grady, was living on a ranch in Lane county. At the beginning of school in the fall his wife and children went to Garden City to live through the school year, so the children could attend school. He remained at the ranch. In the latter part of October, perhaps the night of the 28th, in accordance with a plan previously proposed by appellant, he and others went to the Fulton pasture, some fifteen miles west of his ranch, and got therefrom about twenty head of cattle belonging to Fulton and drove them east through the Rowan pasture, where they took about fifteen cattle belonging to the Rowans, and drove all of them to the Grady ranch and turned them into a field. A few days later Grady and some of the others associated with him drove the cattle, at night, to the McKelvy place in Ness county, where the cattle were left for the time being. This is near a railroad shipping place. The horse ridden at night by Grady, and one ridden by another of the party, were turned loose at the McKelvy place, and early the next spring their carcasses were found in a draw in an adjoining pasture, and each had been shot in the forehead. Appellant and at least one of his associates returned to his place, with their bridles and saddles, in an automobile. The owners of the cattle taken missed them in a day or two, and not being able to find them promptly, on the theory they had strayed away, notified the officers. Handbills were gotten out and distributed. The owners of the cattle, their neighbors and the officers searched for the cattle and for clues as to who took them. The cattle were located at the McKelvy farm and returned to their owners. On August 26,1929, a complaint was filed in Finney county charging appellant and four others with the larceny of the Fulton cattle in one count, and of the Rowan cattle in the second count, and warrants were issued for the arrest of the parties charged. Grady could not be found by the officers. Later the county attorney filed two complaints in justice court, one charging the larceny of the Fulton cattle and the other the larceny of the Rowan cattle. The first complaint was dismissed, or at least further proceedings under it were not had. Other persons charged in these complaints, and for whom warrants were issued, were arrested, and their cases have been variously disposed of. Two of them reached this court. (State v. Wassinger, 131 Kan. 316, 291 Pac. 743; Id., 133 Kan. 154, 298 Pac. 763.)
On September 20, 1929, an information was filed in the district court charging appellant and others with the larceny of the Rowan cattle. Another information was filed charging him with the larceny of the Fulton cattle, but with that we are not concerned in this appeal. In March, 1936, appellant, under the name of Joe Murphy, was taken into custody by the sheriff of Major county, Oklahoma, for investigation, and a day or two later was charged with a crime in that state and a few days later was formally arrested. After that arrest he informed the sheriff there that his real name is E. A. Grady and that he was wanted in Finney county, Kansas, where there was a reward offered for his arrest, and that he preferred to go to Kansas and be tried for the charge there against him. On March 31, 1936, he signed a statement in the office of the sheriff of Major county, Oklahoma, stating that he waived his right to be prosecuted in that county and that he was willing and ready to accompany any duly authorized officer from the state of Kansas to answer criminal charges in that state. On April 28, 1936, the sheriff of Finney county, Kansas, went to Major county, Oklahoma, taking with him one of the warrants which had been issued in 1929 out of the justice court for appellant, and appellant willingly accompanied the sheriff to Finney county, Kansas, where he was placed in jail. On May 11, 1936, with his counsel present, he waived formal arraignment and entered a plea of not guilty to the charge in the information previously filed in that court. His bond was fixed at $2,500, which he gave on May 14, 1936.
The case came on for trial in September, 1936, when he filed a plea in abatement on the grounds that he had never had, or waived, a preliminary examination; that at the time the information was filed he was not a fugitive from justice; that he had not been arrested on a warrant, and that the prosecution was barred by the two-year statute of limitations. No evidence was offered in support of this plea, and it was overruled. The trial resulted in a hung jury.
On October 2, 1936, the plea in abatement was refiled by leave of court, and evidence was offered consisting of the files of this case and its companion case and of the proceedings before the justice of the peace. The state admitted that he had never had a preliminary examination. Defendant admitted that he left the state of Kansas in November, 1928. The testimony of the trial which had been held, insofar as it pertained to whether he was a fugitive from justice when the information was filed, was considered by the court by the agreement of the parties. That evidence has not been abstracted. The court overruled the plea in abatement. A second trial resulted in a hung jury. A third trial was had in January, 1937, resulting in a conviction, from which this appeal was taken.
We now take up the questions argued: Appellant contends the court should have sustained his plea in abatement for the reason that he had had no preliminary examination. One is not required for a fugitive from justice. (G. S. 1935, 62-805; State v. Woods, 49 Kan. 237, 30 Pac. 520.) Regarding the question of whether he was a fugitive from justice at the time the information was filed as a question of fact, there was an abundance of evidence here to sustain that view. It is admitted that he left Kansas in November, 1928. It was shown, and admitted by his testimony, that he went directly to Oklahoma; that he dyed his hair and changed his name, and except to a relative whom he met he did not disclose his identity until his arrest in March, 1936, in Oklahoma. In the meantime he had come to Kansas to visit his family three or four times a year, apparently making the trips at night and using care to stay out of the way of officers; that in 1929 he learned from his family that he was charged with the offense. One of his purposes in staying away was that he was not then able to finance a defense, and he thought the fact that he had previously served a term in the penitentiary for stealing cattle would make it hard for him.
Appellant complains that he was not arrested on a valid warrant; that the warrant which the sheriff took when he went for him in Oklahoma was the one issued on the first complaint filed before the justice of the peace, which proceeding had been dismissed, and no warrant was issued by the clerk of the district court when the information was filed. The purpose of the warrant, of course, is to get the defendant into court. He volunteered to come to Kansas to face the charge which he knew was pending against him. He pleaded to the information on file and gave bond, fixed by the district court, for his appearance for trial. In a felony case one is tried on the information filed in district court, not upon the warrant which may have been issued for him previously. In this case appellant waived the issuance of the warrant by his plea of not guilty and by giving a bond for his appearance for trial. (See 16 C. J. 184 and cases there cited.) It was not error for the court to overrule the plea in abatement.
Appellant complains of the ruling of the court admitting the evidence to the effect that the horse he rode and the one ridden by another with him when the cattle were driven from his place to the McKelvy place were found a few months later dead, in a near-by pasture, and that each of them had been shot. We see nothing improper in this evidence. • It tended to show that appellant and his companion left the horses at the McKelvy place in order that they might not be seen riding them back to their homes, which trip they were making in the daytime, and that appellant, or some one of those associated with him, got rid of the horses so they would not be found with the cattle and thus identify him with their movements.
Appellant complains of the instruction of the court given with respect to flight, in which the jury was told that such evidence pertaining to that matter as had been received might be considered by' the jury in connection with the other evidence. The instruction is identical, or similar, to the one ordinarily given in cases where there is evidence of the flight of the defendant. It is proper to give such an instruction in such cases (State v. Hays, 113 Kan. 588, 215 Pac. 1109), and the one given was not so worded as to be unduly prejudicial to defendant.
The contention that the evidence does not support the verdict is answered by what has been heretofore stated. The argument on that question largely relates to credibility of witnesses and the weight which should be given to certain of the evidence. Those were questions for the jury and the trial court.
We find 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
Smith, J.:
This was an action wherein a receiver was appointed for the Bank Savings Life Insurance Company. E. H. Lupton filed a claim against the receiver. This claim was denied by the trial court. Claimant appeals.
The receiver was appointed October 9, 1935. During the time that the company had been in operation claimant had been connected with it in some capacity or another. The company had issued two life insurance policies to him. One of them had a disability clause which provided, among other things, that upon the insured becoming totally and permanently disabled the company would waive the premium and pay him $250 a month .as long as he should live. At the time when the receiver was appointed several controversies had arisen between the company and claimant. These controversies involved the title to considerable real estate in western Kansas, a judgment which the company had against claimant in the district court of Douglas county over the premiums due on the policies heretofore mentioned, and an action pending in Shawnee county brought by the company against the claimant in which judgment for $100,000 was° asked.
Immediately after the receiver took charge it was deemed desirable that all the controversies should be settled between Mr. Lupton and the company. After some conferences a contract was executed by Lupton and the receiver. This contract was prepared by the receiver. It provided for a settlement of all these disputed matters. Among other provisions was the following:
. . second party agrees:
“a. That both policies of insurance, Nos. 17,331 and 17,332, shall be in full force ánd effect with all privileges thereunder subject to the payment of premiums except where waived by actual disability and that any disability payments accruing in the future shall be paid according to the terms of the policy.”
This agreement was executed by Lupton and his wife and by the receiver on February 8, 1936: It was approved by the trial court. On February 25, 1936, the receiver entered into a reinsurance contract with the Victory Life Insurance Company whereby the receiver sold to the Victory a part of the assets of the Bank Savings Life Insurance Company, and as a part consideration for these assets the Victory assumed and agreed to pay valid claims for disability benefits arising prior to February 25, 1936, providing for the payment of monthly benefits to the insured. This contract, however, provided that twenty-five percent of the amount provided for in any policy should be excepted from this assumption, and that the amounts provided for in the policies should be paid less that twenty-five percent. The above provision is what is known as the policy lien. This contract was approved by the trial court. The Victory Life Insurance Company offered to pay Lupton seventy-five percent of what was due under one of his policies. This offer was not accepted. He demanded 100 percent of what was provided for in the policies. This was refused by the company. This claim followed.
The claim recited facts as they have been detailed here, and in addition that Lupton and wife had fully complied with the contract between them and the receiver, and that he was totally and permanently disabled on the date when that contract was made. The claim applied the life expectancy of Lupton to twenty-five percent of $250 a month and asked that claimant recover from the receiver $6,750 and costs.
The answer of the receiver was first a general denial. It then set out that by order of court and prior to the filing of the claim the receiver had transferred all the assets of the Bank Savings Company to the Victory; that as a part of negotiations for the contract between the receiver and Lupton they discussed the matter of a lien on policies to be incorporated in the reinsurance contract; that the receiver told Lupton there would be such a lien, the amount of which he did not know at the time; that no mention was made of the lien in the written contract because the amount of it was undetermined at the time.
The answer further alleged that the reinsurance contract which has been referred to heretofore expressly included all contracts of the Bank Savings Life Insurance Company; that claimant had never raised any objection to the reinsurance contract and had never appealed from the order of the trial court approving the contract, although a copy of it was sent him and although the receiver orally • advised claimant of the amount of the lien a few days after the contract was entered into. The answer further alleged that the reinsurance contract provided that each policyholder should be deemed to have assented to the reinsurance contract who failed to deposit in the mail a letter addressed to the receiver within 30 days of the date of the mailing of the receiver’s letter, containing a notice of his dissent from the contract; that a copy of the reinsurance contract was mailed to claimant on March 14, 1936, and claimant had never filed with the receiver a letter stating that he dissented to the reinsurance agreement, and claimant was, therefore, bound by the terms of the agreement. The answer further alleged that a paragraph of the reinsurance agreement provided that no holder of any policy issued or assumed by the Bank Savings Life Insurance Company who should have assented to the provisions of the reinsurance contract should have any rights not accorded by that contract; that claimant had assented to payment of seventy-five percent of his disability claims of the Victory Life Insurance Company and no longer had any right not accorded by that agreement. The answer further alleged that the receiver had transferred all the assets of the Bank Savings Life Insurance Company to the Victory Life Insurance Company pursuant to order of the trial court; that claimant had never objected to these orders or appealed from them and the receiver had no funds with which to pay the claim should it be allowed by the trial court. The prayer of the answet was that the claim be denied.
The Victory Life Insurance Company filed a separate answer making about the same allegations as to the appointment of a receiver, the reinsurance contract, the approval of the court and the failure of claimant to object to the reinsurance contract. The company stated in the answer that it was willing to continue to pay claimant seventy-five percent of the amount due under his policy. This answer prayed that the claim be dismissed. With these pleadings the trial court heard the claim and found for the receiver and the Victory Life Insurance Company and against claimant. This appeal is from that judgment.
When the case came on to be heard parties admitted the facts about as they have been detailed here, especially that claimant had the policy in question; that he was totally" and permanently disabled ; that the contract between the receiver and Lupton and wife had been made and that Lupton and wife had complied with all the provisions of the contract as they had agreed. With this the claimant rested. •
The receiver then took the stand. He was permitted to testify as to the controversies between claimant and the company at the time he was appointed and as to conversations had by him with claimant about these controversies prior to the time when the contract was entered into by the receiver and claimant. He was permitted to testify that at the time when these conversations took place claimant asked him what the lien would be on these policies and he told claimant he did not know what it would be and that he notified him of what the lien was after it was fixed by the court. The claimant objected to the introduction of this evidence on the ground that it was an attempt to vary the terms of a written contract. The trial court overruled this objection. Claimant urges that this ruling was error. Throughout the balance of the hearing on the claim the receiver was permitted to give similar testimony each time over the objection of claimant.
The receiver points out that the agreement between the receiver and Lupton was silent as to a lien and that they both knew there must be a lien. He argues that the disputed testimony was admitted not to change the terms of the written contract, but to prove an agreement of the parties on a matter not covered by the contract.
In order to answer this argument it will be necessary to examine the contract and the circumstances surrounding the parties at the time of its execution, as shown by this record. The dispute between the company and the Luptons has already been noted in this opinion. It will be noted that in the written contract the receiver agreed that “any disability payments accruing in the future should be paid according to the terms of the policy.” It would be difficult to find language more unambiguous. Since both parties knew about the certainty of a lien being placed on the policy it would have been natural for them to have agreed in the written contract that the benefits should be paid according to the terms of the policy “less any lien” or “subject to the reinsurance contract.” This was not done, however. The receiver argues that all the contract pro vided was that the policies should be in full force and effect. It is true that the clause did provide for that, but it went ahead and provided for disability payments according to the terms of the policy. It must be remembered that this was not a contract between the company and the Luptons. It was between the receiver and Lupton. Under such circumstances we are led to the conclusion that the effect of the evidence of the receiver was to vary the terms of the written contract.
The case is one for the application of the rule laid down in Hudson v. Riley, 104 Kan. 534, 180 Pac. 198. There this court said:
“Where parties, after negotiations, commit their agreements to an unambiguous writing, it is to be presumed that every stipulation and material matter have been included in the .writing, and parol evidence of the preceding conversations or negotiations in conflict with the written contract are not admissible in evidence.” (Syl. If 3.)
It is clear that in this case the receiver and Lupton, after negotiations, committed the agreement to writing. We find nothing ambiguous about it. (See, also, Brown v. Pryor, 133 Kan. 129, 298 Pac. 747.) We conclude, therefore, that it was error for the trial court to permit the receiver to testify as to conversations with Lupton about the lien to be put on the policy.
The receiver next argues that Lupton is estopped from objecting to the evidence because he himself testified about conversations with the receiver about the lien. This argument is not good in this case. The testimony of Lupton was by deposition. The testimony he gave about such conversation was to meet the allegations in the answer of the receiver. Of course, he could not be compelled to take his chances on the court’s making the correct ruling on the admission of evidence to sustain these allegations. He met this issue as best he could when he made his deposition.
The receiver next argues that the contract between the receiver and Lupton is binding unless it was subsequently modified by the reinsurance agreement. The argument is that it was so modified and that to hold in accordance with the views of Lupton would be to prefer one policyholder over another. This argument is not good, for the reason, as we have seen, that there were special considerations which prompted the receiver to enter into the contract in question. The contract was approved by the court. It does not appear that this contract made any difference to the reinsuring company when it bid for the assets, and this company no doubt knew about the contract before the contract of reinsurance was drawn and consummated.
The receiver next argues that irrespective of the contract between Lupton and him, Mr. Lupton was bound by the reinsurance contract, which provided for a twenty-five percent lien.
The argument is that Lupton knew about the reinsurance contract and its provision for a lien and did not object to it or take steps to advise the receiver that he dissented from it, as provided by its terms.
The trouble with that argument is that according to the plain terms of the contract Lupton had a right to expect the disability payments to be made according to the terms of the policy. The reinsurance contract was approved by the trial court, but so was the contract between the receiver and Lupton. The contract in question was not the contract of the Bank Savings Life. It was the contract of the receiver. The Victory entered into the reinsurance contract with full knowledge of the contract between the receiver and Lupton.
The rule is stated in 23 R. C. L., p. 76, § 82, as follows:
“A receiver, as soon as he is appointed and qualifies, comes, as we have said, under the sole direction of the court. The contracts he makes or the engagements into which he enters, from time to time, under the order of the court, are, in a substantial sense, the contracts and engagements of the court . . .”
In State Bank v. Domestic, &c., Co., 99 Va. 411, 39 S. E. 141, it was said:
“ ‘The contracts óf a receiver made with express or implied authority cannot be annulled at the pleasure of the court.’ ” (p. 417.)
See, also, Mudge v. Hughes, 212 S. W. 819; also, McAnally v. Glidden, 30 Ind. App. 22, 65 N. E. 291; also, Farmers’ Loan & Trust Co. v. Burlington & S. W. Ry. Co., 32 Fed. 805.
It is clear that the contract between the receiver and Lupton was a valid enforceable contract entered into by the receiver and approved by the trial court. The trial court had authority to approve such a contract, but having approved it, did not have authority to approve another contract between the receiver and another party, the effect of which would be to change or modify the contract first approved. To so hold would make it impossible to make a contract with a receiver and expect the contract to be performed.
The receiver next argues that if Lupton dissented from the reinsurance contract then he is not reinsured by the Victory, and if he assented he is bound by its terms. This argument is not good, for the reason that it was not necessary for Lupton to dissent from the terms of the reinsurance contract in order to receive the benefits of the contract between the receiver and himself.
It will be noted that claimant asked to be awarded twenty-five percent of $250 a month for his life expectancy, or, in the aggregate, $6,750.
We hold that he is not entitled to be awarded any such lump sum, but his claim should be allowed in the amount of twenty-five percent of $250 per month, payments to be made each month for the rest of his life or as long as he remains totally disabled.
The judgment of the trial court is reversed with directions to enter judgment in accordance with the views herein expressed.
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The opinion of the court was delivered by
Allen, J.:
Case No. 33,725 is an appeal from an order of the trial court refusing a writ of possession of real estate in execution of the judgment in the cause. This is the fourth appearance of this case in this court. For convenience of reference the cases are given their appeal numbers: No. 32,101, Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032; No. 32,514, Drury v. Drury, 143 Kan. 83, 53 P. 2d 792; No. 33,139, Drury v. Drury, 145 Kan. 116, 64 P. 2d 53.
The controversy arose out of the divorce suit of Frank W. Drury v. Leota Drury, which was tried April 11, 1933. The journal entry in that case reads as follows:
“The above cause comes on for hearing on its assignment this 11th day of April, 1933, the same being one of the regular days of the April term of court; plaintiff appearing in person and by his attorney, Morris H. Cundiff; defendant appearing in person and by her attorneys, Ebright & Smith.
“Whereupon the parties announce themselves ready for trial. The plaintiff introduces his evidence and rests. The defendant introduces her evidence on her cross petition and rests.
“The court, after hearing the evidence of the plaintiff and defendant and argument of counsel, finds that the defendant should be granted an absolute decree of divorce from the plaintiff on her cross petition.
“The court further finds that the plaintiff was at the time of his marriage to this defendant and is at this time the owner of the following-described real estate situated in Sedgwick county, Kansas, to wit:
“Lot 114 and the south 17 feet of lot 112 on Market street in English’s seventh addition to the city of Wichita;
“Lot 14 and the south 15 feet of lot 12 in Koenig’s addition to the city of Wichita, located on South Lawrence avenue;
“Lots 18 and 20 on Carrie street, now Holyoke avenue, in Rawlins and Bridwell subdivision of lots 5 and 6 in block 2 of Grandview addition.
“That the plaintiff is the owner of certain household furniture and fixtures located in the house and property known and described as 1819 South Market street. That the plaintiff is the owner of one certain Hudson sedan automobile and one certain Chevrolet motor truck. That all of the above-described property should be and remain the sole and separate property of the plaintiff.
“The court further finds that the defendant should have and recover from the plaintiff as permanent alimony the sum of $1,000 and an additional amount of $50 for the use and benefit of her attorneys in the prosecution of this case; said amount of $1,050 payable forthwith. That said allowance of $1,000 for alimony and $50 attorney's fees should be decreed to be a first and prior lien against the plaintiff’s property described as:
“Lots 18 and 20 on Carrie street, now Holyoke avenue, in Rawlins and Bridwell subdivision of lots 5 and 6 in block 2 of Grandview addition to the city of Wichita, Sedgwick county, Kansas.
“That the defendant should have and retain as her personal property all of her personal effects and all of her ówn personal property, whether acquired before or after marriage.
“It is therefore by the court considered, ordered and adjudged that the marital relations heretofore existing between the plaintiff and defendant be and the same are hereby canceled, set aside and held for naught, and the defendant is hereby granted an absolute decree of divorce from said plaintiff. That said decree of divorce shall not become absolute nor take effect until the expiration of six months from date hereof.
“It is further ordered, adjudged and decreed that the defendant be and she is hereby given judgment against the plaintiff in the amount of $1,000 as permanent alimony. That said judgment in the amount of $1,000 be and the same is hereby decreed to be a first and prior lien against the following-described property located in Wichita, Sedgwick county, Kansas:
“Lots 18 and 20 on Carrie street, now Holyoke avenue, in Rawlins and Bridwell subdivision of lots 5 and 6 in block 2 of Grandview addition to the city of Wichita, Sedgwick county, Kansas,
for which let execution and order of sale issue.
“It is further ordered, adjudged and decreed that the defendant be and she is hereby given judgment against the plaintiff in the further sum of $50, payable to defendant’s attorneys of record, as attorney’s fees, and for the costs of this action. That said judgment in the amount of $50 be and it is hereby declared to be a first and prior lien against the above-described property; for which let execution and order of sale issue.
“It is further considered, ordered and adjudged that the following-described real and personal property be and it is hereby decreed to be the sole and separate property of the plaintiff, free and clear from any right, title and interest on the part of the defendant:
“Lot 114 and the south 17 feet of lot 112 on Market street in English’s seventh addition to the city of Wichita;
“Lot 14 and the south 15 feet of lot 12 in Koenig’s addition to the city of Wichita, located on South Lawrence avenue; all in Wichita, Sedgwick county, Kansas. All household furniture owned by plaintiff prior to this marriage; one Hudson sedan automobile; one Chevrolet motor truck.
“It is further considered, ordered and adjudged that the following-described real estate be and the same is hereby decreed to be the sole and separate property of the plaintiff, subject, however, to the lien for alimony and attorney’s fees as above set out:
“Lots 18 and 20 on Carrie street, now Holyoke avenue, in Rawlins and Bridwell subdivision of lots 5 and 6 in block 2 of Grandview addition to the city of Wichita, Sedgwick county, Kansas.
“It is further considered, ordered and adjudged that each the plaintiff and defendant be decreed to be the owner of any and all personal property acquired separately by either prior or after their said marriage.
“It is further ordered, adjudged and decreed that the plaintiff be and he is hereby given a stay of execution on said judgment for a period of thirty days from April 11, 1933.
“It is further ordered that the defendant be and she is hereby given the use and occupancy of the premises known as 1819 South Market street for a period of thirty days from April 11, 1933, and at the expiration of thirty days it is ordered and decreed that she vacatq said premises and deliver possession of the same together with the plaintiff’s household furniture located therein to said plaintiff.
“It is further ordered, adjudged and decreed that all prior orders for temporary alimony or attorney fees in this action are hereby merged in this judgment and plaintiff is relieved from the payment of any and all sums except as herein set out. Ross McCoemicKí Judge_
“O.K. Morris H. Cundiff, Attorney for Plaintiff.
“O.K. Ebright & Smith, by P. K. Smith, Attorneys for Defendant.”
The journal entry thus shows the parties appeared in person and by counsel, and that the journal entry was duly approved by counsel and by the court. It further appears that the property rights of the parties were settled and definitely determined. The defendant was given permanent alimony in the sum of $1,000, and an additional amount of $50 for her attorneys. It was decreed that the allowance so made was to be a first and prior lien on the Holyoke avenue property. A stay of execution for a period of thirty days was allowed on this judgment.
The judgment further provided that the defendant should have the use and occupancy of the Market street property for a period of thirty days from April 11, 1933, and “at the expiration of thirty days, it is ordered and decreed that she vacate said premises and deliver possession of the same together with the plaintiff’s household furniture located therein to said plaintiff.” (Italics inserted.)
The judgment further provided that “the following-described real and personal property be and it is hereby decreed to be the sole and separate property of the plaintiff, free and clear from any right, title and interest on the part of the defendant.” (Italics inserted.)
The decree thus carefully formulated and agreed to by the parties and their respective counsel, must measure and determine the rights of the litigants.
The defendant undertook to enforce her' lien on the Holyoke avenue property. At the sheriff’s sale the property was bid in by the defendant, but she failed to make good her bid. The sheriff made a return of no sale.
After the expiration of the term of court at which the judgment was rendered the defendant attempted to modify the judgment by transferring the lien of the judgment from the Holyoke property to the Market street property. The order of the trial court directing such transfer was held void. (Appeal No. 32,101, Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032.)
While appeal No. 32,101 was pending, the wife filed praecipe for execution. The writ was levied upon certain real estate of her former husband, other than that on which her judgment was made a lien, and on property which was specifically set aside as his sole and separate property, free and clear from any right, title or interest on her part. The former wife, appellee, bought the property at sheriff’s sale. Appellant filed a motion to set aside the sale on the grounds the sale was contrary to the judgment of the trial court, and that the execution and sale were insufficient as a matter of law and contrary to law. The sale was confirmed,.other orders were made and appeal perfected from each of them.
The regularity of these proceedings came before this court in appeal No. 32,514, Drury v. Drury, 143 Kan. 83, 53 P. 2d 792.
The order appealed from in that case stated:
“Said defendant has the right to remain in such possession so long as the judgment entered herein in favor of the defendant and against plaintiff remains unpaid.”
This ruling was set aside by this court:
“In the judgment of confirmation the trial court modified the original judgment by extending the period during which appellee could remain in possession of the property in question from thirty days, as provided by the original judgment, until so long as the alimony judgment remained unpaid. This modification was decreed after the expiration of the term at which the original judgment was rendered. The judgment modifying the former decree was without authority. (Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032.)” (p. 87.)
Following that decision the defendant filed a motion in the district court for a nunc pro tunc order to correct the journal entry of April 11, 1933. The trial court found that by reason of inadvertence and irregularity in the preparation of the journal entry the same did not correctly recite or show the judgment actually rendered, and the judgment was corrected accordingly. In appeal No. 33,139, Drury v. Drury, 145 Kan. 116, 64 P. 2d 53, the order of the .trial court was set aside and the original judgment was upheld.
The decisions and mandates of this court on these appeals were filed in the trial court.
On May 15, 1937, plaintiff filed his application with the trial court for an order directing the clerk to issue a writ of possession to the plaintiff for the Market street property in execution of the judgment in accordance with the decisions and mandates.
On June 8, 1937, this application came on for hearing and thereupon defendant asked that the court deny the application for possession unless and until defendant’s aforesaid alimony judgment was paid and unless and until plaintiff paid to the defendant certain sums which she claimed to have paid on taxes and improvements pending the appeals herein. The matter was argued and briefs submitted, and thereafter and as of June 24, 1937, the trial judge entered his rulings and order from which this appeal was taken, wherein and whereby he refused to execute plaintiff’s judgment for possession except on the following conditions, to wit:
1. Unless and until defendant’s judgment for alimony, attorney fees and costs were' paid by plaintiff; and
2. Unless and until defendant’s claim for taxes paid in purported amount of $494.88 were paid to defendant, and
3. Unless and until defendant’s claim for improvements made during these appeals in amount of $125 were paid to defendant.
From that ruling and order this appeal was taken.
As shown above the judgment of April 11, 1933, gave the defendant the use and occupancy of the Market street property for thirty days from that date, “and at the expiration of thirty days, it is ordered and decreed that she vacate said premises and deliver possession” of the same to the plaintiff.
The integrity of the original judgment has been sustained in the three appeals above noted. In appeal No. 32,514, Drury v. Drury, 143 Kan. 83, 53 P. 2d 792, we expressly held that the plaintiff was entitled to possession of the Market street property, and the mandate directed that he be placed in possession of the property. In disregard of this mandate, the journal entry recites:
“That the motion of the plaintiff herein for a writ of possession be and the same is hereby denied, unless and until the said plaintiff shall fully perform said judgment by full payment of the judgment against him contained herein, aggregating on June 8, 1937, the sum of $1,311.98 . . . and the further payment by the plaintiff to the defendant of the-said sum of 852.30, accrued costs.”
In substance, this ruling is identical with the order appealed from in appeal No. 32,514, which stated that the defendant was in possession and had “the right to remain in such possession so long as the judgment entered herein in favor of the defendant, and against the plaintiff, remains unpaid.”
The mandate of this court directed that possession of the property in question be given the plaintiff. In the former case, as in this case, the trial court modified the order by requiring that before the order of possession be complied with, the plaintiff should pay certain sums of money to the defendant. In making such modification the trial court was in error.
In Duffitt & Ramsey v. Crozier, 30 Kan. 150, 1 Pac. 69, a mandate was sent to the trial court directing that judgment be entered in favor of the plaintiff. The parties presented the mandate to the court and requested the court to render judgment in accordance therewith. Pending this, motion was made by the defendant asking leave to introduce further evidence, and for further findings in the case. Over objection, new testimony, outside the issues, was introduced, and thereupon the court found the defendant was entitled to possession. In sustaining an application for a peremptory writ of mandamus to compel the trial judge to enter judgment in accordance with the mandate, it was said:
“When a case is beard upon proceedings in error in this court, and the merits of the case are passed upon and the judgment of the inferior court reversed with direction for the entering of a judgment, the case is not to be retried by the trial court upon the old facts; nor is the defeated party permitted to introduce other facts which ought and might have been presented upon the original trial. . . . Where cases -are decided by this court upon' the facts found by the trial court, and the judgment of the inferior court is reversed, and a mandate sent to that court to render judgment upon the findings for the defendant, and no new or additional facts are presented, within the rule stated the duty is cast upon the court below to carry out the direction of the mandate. If the district court, under such circumstances, does not carry the judgment into execution according to the mandate, a mandamus will issue from this court ordering the mandate to be obeyed.” (p. 153.)
In Watson v. Watson, 110 Kan. 326, 203 Pac. 714, the appeal was to test legality of proceedings in the district court subsequent to receipt of the mandate. In the opinion it was said:
“All the decisions of this court relating to what the district court may do and must do on receipt of a mandate, are cited in the briefs. It is not necessary to review them, because there can be no dispute about these rules: A litigant may not defend against a claim on one ground and, when finally defeated, renew the litigation by proposing another ground. In such a case, adjudication in favor of the claim adjudicates everything which might have been urged against the claim in whole or in part. These rules constitute limitations on authority of a district court to entertain supplementary proceedings after receiving a mandate directing entry of a specified judgment.” (p. 333.)
See, also, Stroud v. Sinclair Refining Co., 145 Kan. 214, 64 P. 2d 1256; Beloit Bldg. Co. v. Quinn, 145 Kan. 507, 66 P. 2d 549; 5 C. J. S., § 1966.
The very object of instituting courts of justice is that litigation should be decided, and decided finally. Human life is not long enough to allow matters once disposed of to be brought under discussion again. The maxim that there must be an end to litigation was dictated by wisdom and is sanctified by age. (2 Freeman on Judgments [5th ed.] §§ 625, 626.)
In Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294, it was said:
“There are two important ends in view on every lawsuit: the first is that it be decided right; and the second, which is only less important than the first, is that it be decided.”
See, also, Gibson v. Enright, 140 Kan. 700, 704, 37 P. 2d 1017.
It is not denied that the original judgment in this case gave the Market street property to the plaintiff “free and clear from any right, title and interest on the part of the defendant.” It is not denied that it was there decreed that at the end of thirty days the defendant “vacate said premises and deliver possession of the same” to the plaintiff. It is admitted that the defendant had a fair trial— that she was present in court in person and by counsel when the judgment was entered, and that the judgment became final and conclusive on the termination of the term at which the judgment was rendered.
We have carefully considered the arguments advanced by counsel for defendant, as to compensation alleged to be due defendant for improvements made and taxes paid. In the view we take it is unnecessary to discuss these questions. As stated, the original judgment was rendered April 11, 1933. The judgment directed the defendant to vacate the premises and deliver possession to the plaintiff at the expiration of thirty days from that date.
The defendant has, since May 11, 1933, refused to deliver possession as directed by the judgment of the court. Whether she may recover for improvements made or taxes paid in another action where those issues are presented we will not now hazard an opinion. Those questions are not now before this court.
The ruling of the trial court in refusing a writ of possession is reversed and the cause remanded with directions to issue a writ of possession on behalf of the plaintiff.
Case No. 32,514 is a companion to case No. 33,725, Drury v. Drury, just decided. This appeal is from the orders and rulings of the trial court refusing to set aside a sheriff’s sale of real estate made under an execution issued in this cause.
As shown by the original judgment set out in case No. 33,725 the defendant was allowed $1,000 as alimony and $50 as attorney’s fees, and specified the same should be a lien on the Holyoke property. It provided for the enforcement of this lien by the language “for which let execution and order of sale issue.”
The judgment further provided that the property involved in this appeal should be the sole and separate property of the plaintiff “free and clear from any right, title and interest on the part of the defendant.”
The defendant undertook to enforce her lien on the Holyoke property as authorized by the judgment. At the sale she bid in the property, but failed to make her bid good, and the sheriff made a return of no sale. After the expiration of the term of court at which the judgment was rendered, defendant attempted to modify the judgment by transferring the lien from the Holyoke property to the Market street property. This effort was held void. (Appeal No. 32,101, Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032.)
Pending that appeal and on August 24,1934, the defendant caused a general execution to be issued and levied upon the Market street property. At the sale the property was bid in by the defendant. The plaintiff filed a motion asking that the sale be set aside. This motion was overruled and the sale confirmed. This appeal is from the ruling and judgment of the court in overruling the motion to set aside the sheriff’s sale.
In appeal No. 32,514, Drury v. Drury, 143 Kan. 83, 53 P. 2d 792, the syllabus reads as follows:
“Where in a divorce action the wife is granted permanent alimony in a fifxed sum of money which is made a lien on a specific portion of the real estate decreed to the husband and it develops the property on which the lien was granted did not sell for a sufficient amount to satisfy the judgment of alimony, held, the wife cannot thereafter satisfy her judgment by means of execution sale out of other property specifically set aside in that decree to the husband as his sole and separate property, free and clear from any right, title and interest on the part of the wife.”
This disposes of every question involved in this appeal. We adhere to the decision announced in that case. We see no purpose in going over the same ground again. We have made a careful study of defendant’s brief and find no reason to depart from our former decisions.
The judgment must be reversed and remanded with directions to enter judgment setting aside the sheriff’s sale. It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Orville P. Abston, brings this action against Medora Grain, Inc., and its employees, Edward L. Elliott and Frank O. Hoffman, who together will be designated as defendants, to recover damages sustained in an accident occurring at the junction of U. S. Highway 50 and County Road 811 west of Newton. Judgment was recovered against the three defendants and all have appealed.
Briefly summarized, the evidence discloses that about 9:30 p. m. the appellee, Abston, to whom we shall refer as plaintiff, was driving his Oldsmobile car west on U. S. 50, accompanied by a friend, when a truck loomed up about 250 to 300 feet ahead standing diagonally across the intersection, and headed in a northwesterly direction. The plaintiff began to pump his brakes and attempted to pass around the truck to the north or right-hand side, but his car went into a skid, causing it to strike a guardrail at the northwest corner of the intersection, whence it plummeted into a creek bed below.
The offending truck, being a tractor-trailer combination, was owned by Medora Grain, Inc., and had been driven to Wichita that day by the defendant Elliott with a load of cattle. Elliott was accompanied on the trip by the defendant Hoffman, a fellow employee. Sometime after delivering and unloading the cattle, the two men started back to the metropolis of Medora, following a route which took them north on the county road toward its intersection with U. S. 50, an east-west highway.
As he came to the junction of the two roads, Elliott stopped his truck at the stop sign protecting U. S. 50, where he looked toward the east and observed in the distance the headlights of an oncoming car appearing over a small rise or hill. He then proceeded into the intersection and attempted to make a left-hand turn toward the west, at which point his motor suddenly died from mechanical trouble, leaving the truck in possession of the intersection, and there the truck remained, quite motionless, as the plaintiff approached and attempted to pass around it. Further facts will be detailed as they become pertinent.
Originally, the defendants listed six claims of error in their statement of points. However, on oral argument they abandoned point IV, which related to Hoffman’s liability, leaving but five points for our consideration.
The first complaint pertains to the trial court’s rejection of the defendants’ motion for a continuance, made on the morning of the day on which the case was set for jury trial. The prayer of the motion was in the alternative — either for a general continuance or for a continuance, after the jury was selected, to the following day. The reason given in support of the motion was that the defendants’ chief counsel — who had prepared the case for trial — had learned late the previous evening that his mother had been operated for gallstones at a Lawrence hospital earlier in the day and his father felt he should be in Lawrence.
Counsel for plaintiff declined to acquiesce in a continuance and stated his objections, prominent among which were that all his witnesses, including doctors, had been subpoenaed and that his client had taken time off from work. In overruling defendants’ motion the trial court noted, among other matters, there would be rescheduling problems relating to doctors, and that motion days were set the latter part of the week in both Harvey and McPherson Counties. The court did observe, however, that it would recess earlier than usual that day, and not later than 4 p. m. On oral argument we were advised that the court did recess early, that defense counsel did drive to Lawrence that evening, returning about 3 a. m. and, happily, that counsel’s mother had recovered from the operation.
The rule that motions for continuance are addressed to the sound discretion of the trial court is too well embedded in our jurisprudence to require extensive citation of authority. Numerous cases illustrating the rule are found collected in 2 Hatcher’s Kansas Digest (Rev. Ed.), Continuances, §1 and in 3 A West’s Kansas Digest, Continuance, § 7. We shall not discuss application of the rule to the peculiar circumstances of the present case other than to say that in our opinion no prejudice has been shown to have resulted to the defendant. The case appears to have been well and thoroughly tried by both sides, and we find no abuse of judicial discretion.
Defendants next contend that the trial court erred in overruling their motions “for judgment at all stages of the proceedings”, that is to say, at the close of plaintiff’s evidence, again at the close of all the evidence and, finally, after the verdict was returned. Basically the issue for us to decide, so far as these motions are concerned, is whether the verdict is supported by substantial competent evidence. If the verdict is so supported, then the trial court was correct in submitting the case to the jury and in overruling the defendants’ motions for judgment.
Even though we assume, without deciding, that plaintiffs evidence alone was insufficient to justify submitting the case to the jury, the question confronting us remains the same — does the verdict find support in the evidence? In Kansas practice, a motion for directed verdict is tantamount to our former demurrer. (Ogilvie v. Mangels, 183 Kan. 733, 737, 332 P. 2d 581; Fox v. Massey-Ferguson, Inc., 206 Kan. 97, 99, 476 P. 2d 646), and we have frequently said that where a demurrer to the plaintiff’s evidence is overruled at the conclusion of his case and the defendant does not rest on his demurrer but proceeds with his case, his evidence may cure whatever defects inhere in his adversary’s evidence and, at the conclusion of the entire case, the sufficiency of the evidence must be determined from all the evidence, the defendant’s as well as the plaintiffs. (Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295; Anderson v. Thomas, 184 Kan. 240, 336 P. 2d 821; Weber v. Wilson, 187 Kan. 214, 356 P. 2d 659; Bowers v. Gardner, 187 Kan. 720, 360 P. 2d 17.)
Our decisions in this area accord with what we believe to be the general rule. In 2 B Barron and Holtzolf, Federal Practice and Procedure, § 1074, pp. 372-374, we find it stated this way:
“Technically a party waives his right to a directed verdict, if the motion is made at the close of his opponent’s case, and thereafter he introduces evidence in his own behalf. However he may renew the motion at the close of all the evidence. If he fails so to renew the motion, he may not claim error on appeal because of denial of his motion. The renewed motion will be judged in the light of the case as it stands at that time, and even though the court may have erred in denying the initial motion, this error is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent’s case.” (Emphasis supplied.)
A concise summation of the rule appears in Smith v. Sharp, 85 Idaho 17, 375 P. 2d 184:
“. . . [I]f the motion [for directed verdict] is renewed and denied by the trial court, the moving party may claim such ruling as error on appeal. In such a case, the appellate court will review the evidence as it stands at the close of the trial.” (p. 27.)
The rule is applicable to the situation in this case, inasmuch as the defendants did not stand on their motion for directed verdict at the close of plaintiff’s evidence, as they had a right to do, but proceeded to present their own evidence, as was also their privilege. (See Weber v. Wilson, supra.) Accordingly, we turn to an examination of the evidence in its entirety. Before doing this, however, we must refer to certain findings returned by the jury, for the evidence must be evaluated in the light of the findings.
In response to special questions submitted, the jury found that the defendants were guilty of negligence in the following respect:
“If helper in track behind had time to warn traffic, the helper in Medora track should of had time to warn traffic also.”
In view of certain testimony to which reference will later be made, this finding is not as cryptic as it first may seem. Special findings returned by the jury are to be construed liberally with the view of ascertaining the jury’s intention. (5 Hatcher’s Kansas Digest, [Rev. Ed.] Trial, §308, pp. 367, 368.) We entertain no doubt that the jury in this case intended its answer to mean that the defendants’ negligence consisted of their failure to warn the plaintiff of impending danger when there was sufficient time for doing so.
This finding of specific negligence exonerates the defendants of all other acts of negligence alleged in plaintiff’s petition. (Bilsky v. Central Surety & Ins. Corp., 150 Kan. 858, 863, 96 P. 2d 691; Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 692, 85 P. 2d 15; Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 285, 454 P. 2d 124.) Thus our inquiry into the defendants’ negligence is limited to this question: Did the defendants fail to give plaintiff warning of the danger when they had sufficient opportunity to do so?
The statute involved, K. S. A. 8-5,108a, provides in substance that whenever a truck, truck tractor or trailer, is disabled on the traveled portion of a highway or shoulder outside of any municipality at a time when lights are required, the driver shall immediately place a lighted fusee, or lighted red electric lantern, or red emergency reflector at the traffic side of the vehicle in the direction of the nearest approaching traffic; and as soon thereafter as possible, but in any event within the burning period of the fusee (15 minutes) he shall place 3 liquid-burning flares, or 3 lighted red electric lanterns, or 3 red reflectors on the traveled portion of the highway in the following order: One, approximately 100 feet away in the center of the lane occupied by the vehicle and toward approaching traffic; one, approximately 100 feet in the opposite direction in the same lane, and one at the traffic side of the disabled vehicle not less than ten feet rearward or forward in the direction of the nearest approaching traffic.
The defendants do not contend they complied with the foregoing statute, the violation of which was alleged in the plaintiff’s petition. Instead, they maintain first, that the evidence conclusively establishes that their failure to display warning devices as required by the statute was not a proximate cause of plaintiff’s damage and second, that as a matter of law they could not be held negligent because they had insufficient time in which to give warning.
In support of their first position the defendants argue that the accident would have occurred whether or not warning devices were placed in obedience to the statute’s command, and they cite the rule expressed in Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870 and Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665, that where the absence of warning signals does not prevent a driver from seeing a vehicle in time to avoid it, the absence of such signals cannot be said to be the proximate cause of a collision. We acknowledge the rule, but doubt that it compels a verdict in favor of the defendants. At this juncture we might also say that while the trial court refused to submit a requested instruction separately stating this rule, we do not consider its refusal as constituting prejudicial error, in view of other instructions given which correctly define the rights, duties and responsibilities of the several parties to this lawsuit.
The following additional findings returned by the jury become pertinent:
“Question No. 2
“Prior to braking his vehicle, at what speed was Orville Abston traveling as he approached the intersection?
“Answer: 55 miles.
“Question No. 3
“How many feet could Orville Abston see within the range of his headlights under the circumstances that confronted him as he came into the intersection?
“Answer: 300 to 500 feet.
“Question No. 4
“At the time the truck first came into tire range of plaintiff’s vision, as provided by his headlights under the circumstances that confronted him, what, if anything, prevented him from avoiding the collision?
“Answer: Nothing that he did not do.
"Question No. 6
“At the speed he was traveling as he approached the intersection, if he was watching in a careful manner, could Orville Abston have stopped or turned aside his vehicle in time to avoid a collision with the truck or the guard rail?
“Answer: He could have stopped if he had of stayed on blacktop, but an ordinary person would of reacted as Mr. Abston.”
The defendants argue that since the plaintiff could see for a distance of 300 feet within the range of his headlights, and since he was traveling at 55 miles per hour, (all of which the jury found) he could have stopped his car before reaching the stalled truck, irrespective of warning signs. Under ordinary circumstances this might be true, but the argument completely overlooks the fact that the evidence stands undisputed in this case that there was loose gravel and sand on the blacktop which would increase the plaintiff’s braking distance, and that his braking was not doing him much good.
The jury might well have believed that ordinary braking distances were not controlling under this evidence, and that had the warning devices been placed on the highway as the statute requires, the plaintiff would have seen and been warned of danger early enough, and at a distance far enough away, to have brought his vehicle safely to a stop. Such, indeed, would appear to be implicit in the verdict.
As to whether sufficient time had elapsed for warning signals to have been put in place, the evidence was at variance. Mr. Hoffman, who was riding in the truck with Mr. Elliott, estimated that 25 or 30 seconds had intervened between the time the truck had stalled and the accident occurred. However, two defense witnesses who were at the scene had different ideas concerning the time element. One of them testified that not more than a minute could have elapsed, while the other witness estimated the intervening time as being “two, three, or four minutes.” In our opinion the evidence was such that the jury was justified in finding that there had been sufficient time for giving the statutory warning.
We proceed to the question of contributory negligence, a matter which is argued with considerable vigor. Much of what we have said concerning proximate cause is relevant to this contention as well. The defendants stress the “range of vision” rule and say that had plaintiff been exercising reasonable care he could have stopped his car before reaching the ailing truck. This again ignores the undisputed evidence that plaintiff’s car went into a skid upon striking loose gravel.
Nor can plaintiff be faulted for steering his car onto the blacktop shoulder of the highway in an effort to go around the immobile truck which blocked the highway. It is a well established rule that one who acts in an emergency not of his own making is not held to the same degree of judgment which would be required under more propitious circumstances, where time exists for reflection. In Trinity Universal Ins. Co. v. Farmers Co-operative Exchange of Morland, 171 Kan. 501, 233 P. 2d 468, it was said:
“The rule in this state is that one who in an emergency acts according to his best judgment or who, because of want of time in which to form a judgment, omits to act in a most judicious manner, is not chargeable with negligence.” (Syl. ¶ 2.)
The rule appears appropriate to the instant situation. In our view, it would be foolish, or at least unrealistic, to deny that the sight of a large motionless truck athwart the highway, suddenly emerging from the stygian of darkness of night, would be a traumatic and shattering experience for an unwary motorist. One who proceeds along today’s high-speed highways does not expect, in the ordinary course of events, to be confronted with such an awesome episode and, happily, he is not often subjected to that sort of occurrence.
We find a suggestion in the defendants’ brief that since there was nothing to obstruct plaintiff’s view of the intersection for approximately half a mile — as the jury found — he was negligent in not observing the cattle truck until he had reached a point just 250 or 300 feet away. The suggestion is baseless. In the first place, there is no evidence that plaintiff could see for half a mile at night, even though there were no physical obstructions within that distance. The jury found he could see but 300 to 500 feet within the range of his headlights. Furthermore, the evidence from witnesses on both sides is that the truck was a dark color, the sides of the truckbed were slatted, and that it would be difficult to see the truck at night — particularly when it was not expected.
Pertinent also is the position of the defendants’ truck on the highway. Since it was stopped diagonally across the intersection, neither its front lights nor its rear lights were visible from plaintiff’s position to the east. If the truck was otherwise lighted, as to which the evidence was in dispute, only an amber turn signal on the right front fender faced in plaintiff’s direction — and that, according to the testimony, too weak to read by. It is also appropriate to note that a passenger who was riding in a car some 60 yards behind the plaintiff testified he was unable to see the truck until he reached the intersection.
While we still adhere in general to the rule that a motorist must correlate the speed of his vehicle with his ability to stop the same within the range of his vision, exceptions have been engrafted onto the rule. More than once we have said that the color and condition of a truck stopped in a traffic lane late at night is a condition materially affecting its visibility and that the same may qualify the range of vision rule. (Newman v. Case, 196 Kan. 689, 413 P. 2d 1013, and cases cited therein.)
The existence of contributory negligence normally is an issue for the jury to determine. When it can be said that reasonable men could not reach differing conclusions from the same evidence, the issue may be decided as a matter of law — but not otherwise. (4 Hatcher’s Kansas Digest, [Rev. Ed.] Negligence, §§72, 75.) In our view, the evidence fails to disclose negligence on the plaintiff’s part as a matter of law, and the trial court did not err in submitting that question to the jury under proper instructions. The jury’s finding which exonerated the plaintiff of contributory negligence is within the range of the evidence and may not be disturbed.
This brings us to another point raised by the defendants. They object to the court’s instruction setting forth the substance of K. S. A. 8-5,108 (a). We shall not quote the instruction here, for it was phrased in substantially the same language we used in setting out the statute. Their principal objection is that the instruction includes provisions of the statute which require warning signals to be placed 100 feet to both front and rear of a stalled truck. Compliance with these requirements, it is argued, could not have been accomplished in time to prevent the accident.
Under the evidence before us, however, we believe no prejudicial error was committed on this score. If, as one of the witnesses testified, the truck had been stalled no longer than 30 seconds before the accident, it might be conceded that no more could have been done to warn plaintiff than to place a signal beside the truck, although the defendants failed to accomplish even this much. However, there was other testimony that the time which elapsed between the stall and the accident was from two to four minutes. Taking the latter figures, we cannot say an alert driver could not have placed a warning signal 100 feet away. Considering the range of the evidence, we consider the instruction not erroneous.
One final claim of error remains — that the judgment against Mr. Elliott, the driver, cannot stand because of the jury’s answer to question 8, heretofore quoted in full. The substance of that answer was this: If a helper in the truck which had followed Elliott’s truck to Highway 50 had time to warn traffic, then Mr. Hoffman, Elliott’s helper, should have had time to warn traffic also.
This inspired answer was undoubtedly precipitated by testimony given by Mr. Mansell, who rode in the truck which was following Elliott. Mansell said he got out of his truck when it almost stopped, took a flashlight and started over to the stalled vehicle. As he got about to the cab he heard a noise, turned around and saw a car coming, threw his cap in the air, tried to wave his flashlight, and started running to the southwest corner to a farmhouse.
Although Mr. Mansell’s efforts to warn the plaintiff were futile, doubtless because they came too late, he did make an attempt. Apparently the jury believed that Mr. Hoffman would have had time to exert himself to similar endeavor. It was the jury’s reference to Hoffman which Elliott construes as vindicating his inaction. We reject any such conclusion. The statute places the duty to warn traffic directly on the driver of a disabled truck. He may, we presume, be assisted by others, but the responsibility rests upon him, and a failure to carry it out in a prudent and reasonable fashion carries liability with it. The jury’s reference to Mansell’s tardiness does not absolve Elliott.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by the state from, an order of the district court in a proceeding under K. S. A. 60-1507 vacating the conviction and sentence of the petitioner, and ordering his discharge from the state penitentiary because of delay in bringing him to trial on a charge of robbery.
On October 30, 1961, in the District Court of Jackson County, Kansas, petitioner was convicted of robbery in the first degree. On November 8, 1961, he was sentenced to not less than twenty years nor more than forty-two years at hard labor at the Kansas State penitentiary at Lansing, Kansas, under the terms of the Kansas Habitual Criminal Act.
The facts leading up to the conviction on the robbery were stipulated.
The stipulation relates that on August 25, 1959, a complaint was filed in the County Court of Jackson County, Kansas against Earl Ray Thomas accusing him of having committed the crime of robbery in the first degree. Accordingly, a warrant was issued on August 25, 1959, returned and filed on September 9, 1959. Preliminary hearing was had on September 22, 1959, after which he was bound over for trial during the October 1959 term of the district court. Two days following preliminary hearing an information was filed by the county attorney. A continuance over the October 1959 term of court was thereafter requested by the defendant, Thomas, through his appointed counsel. On December 6, 1959, having been incarcerated pending trial, he broke jail and was apprehended a day later.
He was charged with the crime of escaping custody and breaking jail. On January 18, 1960, he was brought before the district court with his appointed counsel. He waived formal arraignment and entered a plea of guilty to the crime of escaping custody and breaking jail. He was forthwith sentenced to the Kansas State Penitentiary at Lansing, Kansas for a term of not less than fifteen years.
Eighteen months and eighteen days subsequent to the filing of the information charging the offense of robbery, on April 11, 1961, a detainer was filed with the warden of the Kansas State Penitentiary at Lansing, Kansas. After the detainer was filed, and during the May term of the court, the matter was set for trial during the October 1961 term of court. On October 27, 1961, a trial by jury was had on the information filed against Thomas on September 24, 1959.
It is admitted that petitioner, during the period of his incarceration in the Kansas State Penitentiary at Lansing, Kansas, made no attempt to employ procedures for relief established under the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62,2901, et seq.)
On January 15, 1969, the petitioner filed proceedings under the provisions of K. S. A. 60-1507. The allegation material to the determination of the issue on appeal reads:
“State concisely all the grounds on which you base your allegation that you are being held in custody unlawfully: (a) Denied fast and speedy trial, denied right to appeal, denied right to obtain witness in own behalf (b) Identification not proper, denied effective assistance of counsel, denied fair and impartial trial (c) Prior conviction used to enhance penalty not prior crime.”
The trial court in a memorandum opinion stated in part:
“The State suggests that Thomas’ recourse was to demand trial under the Uniform Disposition of Detainers Act; that when the detainer was filed against Thomas on April 11, 1961, Thomas was required to demand trial under the Act. And, since he did not do this, he cannot be heard to complain. The Act referred to, K. S. A. 62-2901, would seem to apply to a situation such as the McCullough case, supra. It seems to the Court that it has no application to this ease. This statute may not be used to avoid the requirements of K. S. A. 62-1431.
“The Court therefore concludes that Thomas was not afforded a trial within the time limitation set forth in G. S., 1949, 62-1431, and was entitled to be discharged from the charge in Case No. 1627 in the District Court of Jackson County, Kansas, the robbery case.”
The conviction and sentence was set aside and the petitioner released from custody.
The state has appealed.
It contends that K. S. A. 62-1431 does not apply to situations where an accused is in a penal institution on conviction of a crime while prosecution for another offense is pending against him.
We had the same issues before us under similar facts in State v. Brooks, 206 Kan. 418, 479 P. 2d 893, No. 45,853, this day decided. In the Brooks case we concluded that where a prosecution is pending against a person confined in a state penal institution for another offense, the definition of a speedy trial and the procedure for relief are governed by the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62-2901, et seq.) and not by K. S. A. 62-1431.
What was said in the Brooks case is controlling here. It would serve no useful purpose to reiterate what was said there. The opinion in the Brooks case is adopted herein by reference and made a part hereof.
The judgment vacating the conviction and sentence and discharging the petitioner is reversed and the case is remanded to the district court for the purpose of permitting the enforcement of that part of its judgment from which no appeal was taken.
APPROVED BY THE COURT.
Kaul, J., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal by the landowner from a jury award in an eminent domain proceeding.
On October 29, 1968, Unified School District No. 305 instituted a condemnation proceeding to acquire a tract of land consisting of 19.81 acres owned by Ridglea, Inc. for school purposes. Both sides, being dissatisfied with the appraiser’s award of $42,800, appealed to the district court. The appeals were consolidated, and the case tried to a jury, resulting in a verdict for $36,600 (which did not include the stipulated sum of $965 for damages to growing crops).
Three points of error are raised for our consideration.
The appellant first complains that persons who were residents and taxpayers of the school district should not have been permitted to serve as jurors in the case. Sixteen of the eighteen prospective jurors fell within this category and were retained on the panel despite appellant’s challenge for cause.
Appellant takes the position that residents and taxpayers of the school district were absolutely disqualified to sit as jurors in the case. In support of its argument, appellant points to several of our early decisions holding that taxpayers of a municipality were incompetent to serve as jurors in an action against the city; e. g., City of Abilene v. Hendricks, 36 Kan. 196, 13 Pac. 121; Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034, and urges the same rule should apply, by analogy, in actions against a school district.
The harsh rule of those early cases was relaxed with the enactment in 1913 of a statute providing that in actions against cities or other municipal groups a taxpayer therein would not be disqualified as a juror by reason thereof (L. 1913, ch. 236, § 1). The statute became incorporated into our former code of civil procedure as a part of G. S. 1949, 60-2906, which dealt with specific grounds of challenges for cause. The impact of the statute is demonstrated by what was said in Water Co. v. City of Wichita, 98 Kan. 256, 158 Pac. 49:
“. . . The plaintiff objected to three of the jurors on the ground that they were residents and taxpayers of Wichita. This is no longer an absolute disqualification, (Laws 1913, ch. 236) although such juror may be examined on his voir dire to determine his impartiality. Nothing was shown here, however, that the challenged jurors would hesitate to do their duty notwithstanding their slight and inconsequential interest as taxpayers in the outcome of the lawsuit.” (P. 261.)
When our new code of civil procedure came into being, the-specificity of 60-2906 was replaced with the general terms of K. S. A. 60-247 (b):
“All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court.”
Appellant’s contention that with the repeal of 60-2906 the legislature intended we revert to the rule of absolute disqualification is completely unfounded. Such an interpretation would do violence to the spirit and purpose of the new code. We believe the language of K. S. A. 60-247 (b) clearly contemplates that all challenges with respect to a juror’s qualifications are to be determined by the trial judge in the exercise of his sound judicial discretion.
As a practical matter, there is good reason for holding that taxpayers of a taxing unit involved in a lawsuit are not automatically disqualified from serving as jurors. We are told that approximately eighty-five percent of the inhabitants of Saline county reside within the boundaries of Unified School District No. 305. Undoubtedly, there are other areas of Kansas where a school district encompasses all or the major portion of a county. To hold that taxpayers of a school district are absolutely disqualified as jurors in an action against the district would lead to a strange and illogical result, necessitating a change of venue in many instances. (See, Manufacturing Co. v. Bridge Co., supra; School Dist. No. 1 v. Globe & Republic Ins. Co., 142 Mont. 220, 383 P. 2d 482. Also, see, K. S. A. 19-107, relating to competency of inhabitants of a county to serve as jurors in actions in which the county is interested.) The interest a taxpayer shares in common with the whole community can generally be regarded as too remote and minute to overbalance his innate sense of justice and fairness to all parties concerned (Commonwealth v. Brown, 147 Mass. 585, 18 N. E. 587; 47 Am. Jur. 2d, Jury, § 292; Anno. 81 A. L. R. 2d, 708, § 7).
Whether a prospective juror’s interest as a taxpayer will impair his ability to act fairly and impartially is, of course, a proper matter to be explored in voir dire examination. The record before us discloses the jurors were fully examined on the subject and indicated their impartiality would not be affected. We find no abuse of discretion on the part of the trial court in denying the challenge, and its ruling will not be disturbed.
The appellant further contends that the district court erred in admitting evidence of a prior sale of an adjacent tract of land to the school district (hereafter referred to as the Littell sale).
The Littell sale involved a tract of land consisting of 59.67 acres lying immediately to the east and south of the condemned property. In the spring of 1968 the school district was looking for a new high school site and obtained an option on the Littell property. The option was exercised on August 21, 1968, as evidenced by a warranty deed of that date, from the Littells to the school district. The recited consideration for the sale was $76,079.25. The deed was acknowledged on October 24 and filed of record on October 28, one day before the present condemnation proceeding was commenced. Although the record is silent on the matter, we are told by counsel that after the option to the Littell property was obtained, the school district found it necessary to acquire additional land for the high school site; hence, the Ridglea tract was condemned.
The date of taking of the Ridglea tract was agreed upon, at a pretrial conference, as having been October 29, 1968. Under the terms of the pretrial order, each of the parties was limited to three expert witnesses, who in turn were limited to three comparable sales “to be used by them in their direct testimony to support their opinions as to valuation.” Prior to trial, and pursuant to the court’s order, each party furnished to the other the names of its witnesses as well as the list of the comparable sales on which it intended to rely. One of the two comparable sales listed by the school district was that of the Littell property.
When the case came on for trial, the three valuation witnesses for appellant were questioned on direct examination about the Littell sale. Hartzell Wooley and Kenneth Newell said they gave little or no consideration to it as a comparable sale because it was made under “threat of condemnation.” During the cross-examination of Mr. Wooley, specific inquiry was made about the details of the sale. Over appellant’s objection, the witness was permitted to testify about the date of the sale and the consideration therefor. This was proper cross-examination inasmuch as inquiry had already been made about the Littell sale in the direct examination of the witness. In Humphries v. State Highway Commission, 201 Kan. 544, 442 P. 2d 475, we said:
“. . . [I]t is proper cross-examination to inquire into matters which were the subject of the witness’ direct testimony or material or relevant thereto.” (Syl. 1)
Even before our new code of civil procedure, cross-examination as to the purchase price of specific tracts of neighboring land was permissible for the purpose of testing the knowledge and competency of an expert witness (Luecke v. State Highway Commission, 186 Kan. 584, 352 P. 2d 454).
Appellants third witness, Harley Rose, testified on direct examination that he considered the Littell sale, but in his opinion there was a “lot of difference in the lay of the land.” On cross-examination, however, the witness admitted forty acres of the Littell tract were comparable to the land condemned, and he further testified, without objection, to the price paid for the Littell property.
Each of the three expert witnesses appearing for the school district candidly acknowledged during cross-examination that he relied on the Littell sale in arriving at an opinion of the fair market value of the Ridglea tract. All of them were experienced realtors and appraisers, well acquainted with the market conditions in the Salina area. Mr. Bolen, on behalf of the school district, had actually negotiated the option for the purchase of the Littell property. Both he and Mr. Adrian testified that in formulating their opinions of fair market value, they took into consideration their general knowledge of real estate transactions and economic conditions in the vicinity. Mr. Adrian further expressed his opinion that the Littell sale was in fact voluntary. The school district’s evidence also tended to show there was an oversupply of and a limited demand for building lots in Salina at the time the Ridglea land was condemned. At the conclusion of all the evidence, counsel for appellant moved to strike the testimony of the school district’s witnesses on the ground they had relied on the Littell sale without showing it was voluntary and free from compulsion. In overruling the motion, the trial court expressed the view that the appellant could not complain because the Littell sale was first raised in the direct examination of its expert witnesses.
Within the context of the factual situation here, we cannot say the trial court committed reversible error in denying appellant’s motion to strike. The motion, if sustained, would have resulted in all of the school district’s evidence being stricken solely because the Littell sale was used as a basis for the witnesses’ opinion. This, of course, would have included other relevant evidence to which we have already alluded. The fact the witnesses had relied on the sale was for the most part developed in cross-examination by appellant’s counsel. At that time, inquiry was also made by counsel about the propriety of their considering the sale as being voluntary. Other than the time element of the sale, and the fact it was made to the school district, there was nothing to indicate the sale was other than an arm’s length transaction. The sale was accomplished before condemnation proceedings had begun, which makes this case clearly distinguishable from Searcy v. State Highway Commission, 145 Kan. 709, 67 P. 2d 534 (where a sale to the condemnor was made after condemnation proceedings had been commenced).
A fair assessment of the testimony of Mr. Rose, appellant’s own witness, leads us to believe that he considered the Littell sale in valuing the condemned property, but made considerable allowance for the portion of the land which in his opinion was not comparable. Nothing was said, however, about the sale not being voluntary. Actually, the only difference between Rose’s testimony and that of the witnesses for the school district was in the weight given the sale in arriving at their respective valuations. Factors bearing upon the comparability of other sales ordinarily go more to the weight to be given the testimony than to its admissibility. (See, City of Wichita v. Jennings, 199 Kan. 621, 433 P. 2d 351.) The jury was instructed, without objection, that evidence of sales of other property was admitted for the purpose of testing the credibility and knowledge of the witnesses and for the purpose of determining the comparability of sales which the witnesses may have considered in arriving at their opinions, but that market value was not determined by “exceptional or noncomparable sales.”
The voluntariness of the Littell sale was never an issue until raised by appellant during the course of the trial. No objection was registered to the use of the sale by the school district’s witnesses until appellant’s motion to strike at the conclusion of their testimony. Appellant had been informed well before trial that the school district intended to rely on the Littel sale as a comparable sale. Notwithstanding this knowledge, appellant made no effort to inform the court or opposing counsel that voluntariness of the sale would be a contested issue. Obviously, as a bit of trial strategy, appellant, by inquiring about the Littell sale during the direct examination of its witnesses, sought to bolster its own opinion evidence and at the same time to discredit in advance that which would be introduced by the school district. By this means, appellant used the Littell sale for its own purposes and to its own advantage. We believe, by the same token, appellant was in no position to wait and challenge all the school district’s evidence because of the latter’s use of the Littell sale. Under all the circumstances, the motion to strike not only suffered from overbreadth, but also came too late. (See, Board of Park Commissioners v. Fitch, 184 Kan. 508, 337 P. 2d 1034.)
Finally, appellant complains that the trial court refused to permit inquiry as to whether or not acquisition of the Littell tract for school purposes would enhance the value of the condemned property. The point is fully answered by what was said in Urban Renewal Agency v. Spines, 202 Kan. 262, 447 P. 2d 829. A landowner is not entitled to an enhancement in the fair market value of the property taken resulting from a comprehensive plan of public improvement which requires the taking of his and other property.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiffs commenced this action to quiet title to real estate described in their petition, and referred to throughout this litigation as Tracts 1 and 2. They alleged that they, together with their predecessors in title, had been in “actual, peaceable, open and adverse possession” of the real estate for more than fifteen years last past. The defendant Cemetery District No. 10 of Chautauqua County filed an answer and cross petition in which it sought to quiet its title to Tracts 1 and 2, and Tract 3, hereafter referred to. Trial resulted in a judgment quieting the plaintiffs’ title to Tract 1, and quieting the defendant District’s title to Tracts 2 and 3, and the plaintiffs appeal.
On July 16, 1883, a rectangular tract of land described as commencing at the southeast corner of the northeast quarter of the southeast quarter of Section 8, Township 35, Range 11 East, thence north 396 feet (24 rods), thence west 825 feet (50 rods), thence south 396 feet (24 rods), thence east 825 feet (50 rods), to the place of beginning, and containing seven acres more or less, was deeded by the then owner to the Board of Directors of School District No. 103, Chautauqua County, for “school and seminary purposes.” The west 278 feet (16.85 rods) of the seven acre tract was used as a graveyard, and the tract, herein referred to as Tract 3, has been continuously, and still is, used as a cemetery, being operated by the defendant Cemetery District No. 10 of Chautauqua County, which district was created in July, 1944. The plaintiffs have made no claim of title to Tract 3, and it is not involved in this appeal. The remainder of the seven-acre tract, the land here involved — the east 547 feet (33.15 rods) — comprises the area designated on the plaintiffs’ Exhibit 2 as Tract 1 and Tract 2, the title of which was sought to be quieted in the plaintiffs.
The record does not show what use was made of the east 547 feet (33.15 rods) of the seven-acre tract between 1883 and 1949. However, in December of 1949, School District No. 103 of Chautauqua County was disorganized in accordance with the law of this state, and on December 13, 1949, Tract 1 was deeded by the county superintendent to one M. W. Reynolds. Mr. Reynolds deeded Tract 1 to the First Nazarene Church of Chautauqua, and on January 21, 1950, C. W. Fields, chairman of the Board of Trustees of the First Nazarene Church, deeded the property to the plaintiffs by general warranty deed.
Tract 2 is the larger of Tracts 1 and 2, and adjoins Tract 1 on the south and a small portion adjoins on the east. Tract 2 also adjoins the east boundary line of Tract 3. There is a roadway to the cemetery on Tract 2, located between Tracts 1 and 2, which has been used by the public for approximately 30 to 40 years. Some fourteen years ago, the public parked automobiles on Tract 2, but has not since used the tract for parking, for reasons hereafter detailed.
The defendant’s answer and cross petition alleged the only color of title the plaintiffs had was to the two acres deeded to them in 1950, comprising Tract 1, and alleged that the plaintiffs never paid ad valorem taxes on any of the lands involved other than on Tract 1. It further alleged the plaintiffs had never made a claim to any part of the seven-acre tract other than Tract 1, and that the Cemetery District maintained the fences and roads and mowed the land and has continuously occupied the seven-acre tract, except for the two acres the plaintiffs have used since 1954. The cross petition sought affirmative relief to quiet the Cemetery District’s title to Tract 2, and alleged the plaintiffs could not have adverse possession against an unabandoned public use — the roadway on Tract 2 — and that the plaintiffs were tenants at sufferance, and their claim was a cloud upon the Cemetery District’s title to Tract 2.
At the trial, both parties presented evidence. Plaintiff Stark testified he and his wife purchased Tract 1 from C. F. Fields in 1950, and he believed he was also purchasing Tract 2 since both tracts were fenced together and were separated from Tract 3 by a fence. The plaintiffs entered into possession of Tracts 1 and 2 in 1950, and began clearing them of brush and removed approximately 40 black jack and scrub oak trees. No one had kept up Tract 2. He moved his house onto the property in 1953, made other improvements, and planted approximately 96 trees in 1950, 1951 and 1952 — many of them on Tract 2. He had the hay cut off both tracts every year since 1952. The Cemetery District never asked for an accounting of the hay, or its proceeds, harvested over a period of fifteen years, and the plaintiffs have been in possession of the property since 1950, having actually resided thereon since 1953.
Joe Y. Allen testified for the plaintiffs that he was familiar with the property in question, since he lived just south of them, and he remembered when they first moved their house onto the property in 1953; that the plaintiffs built a hen house, cleared Tract 2, mowed the hay, and kept the brush down. When the plaintiffs acquired the property, it was covered with black jack trees but they had them taken off. Allen testified he had mowed the hay for the plaintiffs since they had resided there except for the first year, and had given them a share of the hay for harvesting the crop; that most of the hay was taken off Tract 2 and he had harvested hay on the property since 1952 or 1953, after the tracts were cleared by the plaintiffs, and that the Cemetery District had never asked him to give it a share of the hay taken off Tract 2.
Orb Sears was a witness for the Cemetery District and testified that the roadway leading to the cemetery has been in its present location for 30 or 40 years; that he used to park outside the cemetery south of the road on Tract 2, but since the plaintiffs moved in, planted trees, and put up a fence, plaintiff Stark told him no one was allowed to park on the tract, so he drove on into the cemetery and parked.
Ray Tresner was a witness for the Cemetery District and testified that he asked the plaintiff Stark to take down the fence located south of the roadway leading into the cemetery, which Stark had put up, but Stark refused to do so. Tresner testified the fence had been up for ten or twelve years.
The Cemetery District produced no evidence to support a claim to Tract 2 except concerning the use of the roadway located thereon.
As indicated, trial resulted in a judgment quieting the plaintiffs’ title to Tract 1 on the grounds they had color of title to, and were the owners of, and had for more than fifteen years last past been in open, exclusive and continuous possession of said real property, and that the Cemetery District had no right, title or interest therein. With respect to Tract 2, the district court found the Cemetery District was the owner of the property, and for more than fifteen years last past had been in open, exclusive and continuous possession of the same, and that the plaintiffs had no right, title or interest therein, and were not in possession thereof, and that the Cemetery District was entitled to have its title quieted to Tract 2 as against the plaintiffs. The court further found the plaintiffs failed to establish ownership by adverse possession to Tract 2 and failed to prove by the evidence they had been in open, exclusive and continuous possession of the real property, and that the title to Tract 2 should be placed in Cemetery District No. 10, Chautauqua County.
The plaintiffs filed a motion for a new trial and, among other things, alleged,
“[t]hat the judgment concerning Tract 2 is contrary to the evidence as the only manner in which defendant Cemetery District No. 10 used said Tract 2 was by using a certain roadway passing through said Tract 2, as access to a cemetery which was located west of Tract 2, whereas plaintiffs have been in the open, exclusive and continuous possession of all of Tract 2 for more than fifteen years before the filing of their petition in this action, except for the limited use of the said roadway by said defendant.”
On October 11, 1968, the plaintiffs’ motion for a new trial was heard and overruled, and they perfected this appeal from the judgment concerning Tract 2.
The appellants contend the judgment denying them relief was contrary to the undisputed evidence and to the law applicable thereto. Consideration of the contention requires an examination of K. S. A. 60-503, and the evidence as presented in the record on appeal.
The statute (K. S. A. 60-503) provides:
“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.”
The section became effective January 1, 1964, and amended G. S. 1949 60-304, Fourth. Formerly, the elements of the possession were required to be “notorious” and “hostile,” but the new section eliminated the element of hostility as essential of adverse possession and changed the common-law conception of the doctrine. It is still necessary, however, to succeed on a claim of title by adverse possession, that the possession shall have been “open, exclusive and continuous” for the statutory period. In lieu of an adverse or hostile holding, the claim may be based on, as the appellant testified, “a belief of ownership.” In his commentary on Kansas Code of Civil Procedure, Judge Gard states the belief of owner concept may present some difficulties as it makes the belief of the possessory claimant, a relevant matter; that belief is a state of mind, whereas hostile holding involves an intent, and belief is distinct from intent; that they are not synonymous, and unless the claimant has made statements to someone evidencing a contrary mental attitude, it is difficult to challenge effectively the testimony of a person as to his belief. (Gard, Kansas Code of Civil Procedure, Annotated, § 60-503, p. 522.)
In a Vernon’s Kansas Statutes Annotated, Code of Civil Procedure (Fowks, Harvey, Thomas) it is stated that Professor Melvin C. Poland wrote the authors’ comments concerning Section 60-503, pp. 6 and 7. In his commentary, Professor Poland refers to the Advisory Committee’s notes where it stated that this section “changes the common law principles of adverse possession as pronounced by the Kansas Supreme Court.” He further states:
“In the language of the statute “belief of ownership’ has been substituted for the common law element of ‘hostile’ holding. It may be assumed the change will make it more difficult to challenge the character of the holding, belief being a state of mind whereas hostile holding involves an intent, normally evidenced by overt acts or statements in respect to such holding. While it may be argued that legislation should not be designated to make acquisition, by a possible criminal act, of ownership of property easier to obtain, it must be admitted that the two-fold policy behind statutes of limitation (the curtailment of stale claims, and the rewarding of the individual who has made beneficial and productive use of the land over a long period of time) will be accomplished more often under the new concept of “belief of ownership’ established by the statute.
“Belief of ownership as a substitute for “hostile’ holding is not without limitation. In cases where there has been an admission or recognition of doubt or uncertainty as to the true boundary line the requisite “belief of ownership’ does not exist under the statute. Further, it must be recognized that in cases where possession has been ‘under a claim knowingly adverse’ hostility remains an essential element. . .” (p. 7.) (Emphasis supplied.)
As indicated, the appellants alleged that they and their predecessors in title had been in “actual, peaceful, open and adverse possession” of the tract in question for more than fifteen years last past. While there was evidence that when Stark purchased Tract 1 he also believed he was purchasing Tract 2 since both tracts were fenced together, in view of the findings of the district court with respect to Tract 2, we think this case must be decided upon the basis that the appellants’ claim to the property was “knowingly adverse” and that “hostile” possession by them, rather than “belief of ownership,” is the essential element to the acquisition of ownership by adverse possession.
Upon the question of adverse possession, the only evidence produced was that offered by the appellants. We were not favored with a brief of the appellee Cemetery District, or its counter designation of evidence, if any there was, which might tend to support the district court’s finding quieting its title to Tract 2. As noted, the appellants state the Cemetery District produced no evidence to support a claim to Tract 2 other than the existence of the roadway used by the public for ingress and egress to the cemetery.
The evidence was uncontradicted and showed the appellants purchased Tract 1 from the Nazarine Church in 1950, and obtained the title thereto by warranty deed; that when they purchased Tract 1 they also believed they were purchasing Tract 2 because both tracts were fenced together and were separated from the cemetery by a fence. They entered into possession and started clearing the property of brush, and cut down some 40 black jack and scrub oak trees. There was no pretense of possession of Tract 2 by anyone, and no one was keeping up that part of the property. After the property was cleared, they planted about 96 trees, many on Tract 2, and appellant Stark employed his neighbor to mow the property and cut and put up the hay on a share basis, most of which was on Tract 2, each year of their occupancy. The Cemetery District never asked the appellants or the neighbor for an accounting of the hay harvested from Tract 2 for a period of more than fifteen years. In 1953, the appellants moved their house onto the property, which was a permanent structure and visible evidence of occupancy, and it is where they have since resided. (It is not clear from the district court’s findings whether the house was located partly on both tracts, or entirely on Tract 1.) In addition, the appellants built a hen house and made other improvements. For a tíme after the appellants moved onto the property, the Cemetery District and the appellants had disagreements concerning the use of the roadway and parking along the south side thereof. As a result, and to prevent parking on Tract 2, the appellants erected a fence on the south side of the roadway some ten or twelve years ago. However, prior to the erection of the fence, people parked their automobiles outside the cemetery south of the roadway, but after appellant told them no one was allowed to park there, they drove into the cemetery to park. At one time after the fence was built, a resident of the Cemetery District attempted to have it taken down, but appellants told him to leave it alone as no one was allowed to park there, and the Cemetery District acquiesced in the appellants’ demand.
The evidence was uncontroverted and showed the appellants’ actual possession was open and continuous and was such as to indicate their exclusive control of Tract 2, except for the use of the roadway. There was no pretense of possession of the fa-act by anyone other than the appellants. It was subjected to their will and dominion manifesed by their clearing and improving the property, and the use which they made of it was that to which it was adapted. The improvements which they placed thereon and their refusal to permit the appellee to use Tract 2 in any manner, proclaimed to all they were exercising their rights of ownership over the property inconsistent with the rights of anyone else. (Chellis v. Coble, 37 Kan. 558, 15 Pac. 505; Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056; Dickinson v. Bales, et al., 62 Kan. 865, 61 Pac. 403.) Their occupancy and use were continuous from year to year, and they cannot be regarded as occasional trespassers, nor can their possession be regarded as hidden or intermittent. For more than fifteen years their possession was maintained without interference by anyone except for the use of the roadway, and it was not until February 1968, that the Cemetery District challenged the rightfulness of then: claim and possession.
While it is trae the appellants had no paper title to Tract 2, such a requirement is not essential to adverse possession, nor to the acquirement of title by virtue of the statute of limitations. In Anderson v. Burnham, supra, it was held:
“Possession of land by an adverse occupant for more than 15 years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” (Syl. f 1.)
See Casner v. Common School District No. 7, 175 Kan. 551, 265 P. 2d 1027; Kansas Power & Light Co. v. Waters, 176 Kan. 660, 272 P. 2d 1100; Truck-Trailer Supply Co., Inc. v. Farmer, 181 Kan. 396, 311 P. 2d 1004; Walton v. Unified School District, 203 Kan. 415 454 P. 2d 469.
Did the use of the roadway by the appellee prevent the appellants from having exclusive possession of Tract 2? This is the controlling legal question in the case. If such use of the roadway prevented the appellants from having “exclusive” possession of the tract, then the district court did not err in finding the appellants failed to establish ownership.
The question of law presented does not appear to have been decided by this court. Counsel for the appellants cite no Kansas case dealing with the question, and our research fails to disclose a controlling precedent. The point has been decided in other jurisdictions, and the rule is stated in 3 Am. Jr. 2d, Adverse Possession, Sec. 53, p. 143, as follows:
“As a general rule, any use of premises by tbe public which indicates a claim of common or public right will prevent the acquisition of title by ad verse possession of the premises by any person; in. such a case, the possession is not exclusive. The rule is held not to apply, however, where the use and occupation by the claimant and the public are not common uses. The permissive use of land by the public does not affect the acquisition of title by adverse possession, since such a use acknowledges the possession of the person holding the land, and is subordinate thereto. The same is true of casual use by the public.” (Emphasis supplied.)
There is also discussion of this question in 2 A. L. R. 1370, where authorities are cited supporting the same rule. See Webber v. Clarke, 74 Cal. 11, 15 Pac. 431; Burrows v. Gallup, 32 Conn. 493, 87 Am. Dec. 186; Woodruff v. Langford (Iowa), 115 N. W. 1020; Dodge v. Lavin et al., 34 R. I. 514, 84 A. 857; Bensdorff v. Uihlein, 132 Tenn. 193, 177 S. W. 481, 2 A. L. R. 1364; Walner v. City of Turlock, 230 C. A. 2d 399, 41 Ca. R. 29.
In Webber v. Clarke, supra, it was held that the fact the public had a right of way for bringing cattle over the defendant’s land did not destroy his exclusive possession of the land, and was not inconsistent with his claim of adverse possession. The Supreme Court of California held that the defendant acquired title to the land by adverse possession by grazing his cattle over it for the statutory period.
In Dodge v. Lavin et al., supra, it was held that the use of a part of the land as a thoroughfare by the public did not affect the possession of a person holding the land by adverse possession. It was claimed the possession was not exclusive, because of the passing and repassing over the property of persons by the implied permission of the owner. It was held this did not prevent the possession from being exclusive as to the public which came on the land.
In the instant case, the appellants and the public used Tract 2 in an altogether different manner — there was nothing in common between the two uses. The appellants’ use of the land for hay was the ordinary use to that of other land similarly located. The public’s use of the roadway was casual and infrequent, but the appellants’ use of the property was continuous and exclusive for its primary purpose. No other person used the tract for the same purposes the appellants used it, and no other person put it to the use to which it was best adapted. We are of the opinion the infrequent passing of the public on the roadway amounted to nothing more than mere casual entries on the land made without any intention of asserting a right of entry and possession, and was not sufficient to break the continuity of the appellants’ exclusive possession and use of the remainder of the tract. There was no basis upon which the district court could conclude the Cemetery District was the owner of Tract 2. The appellants’ possession had ripened into a title.
Before concluding this opinion, we refer to the Cemetery Districts’s allegation the appellants had not paid taxes on Tract 2. In the first place, we have no statute requiring the payment of taxes as an element of adverse possession. In the second place, the appellee Cemetery District presented no evidence to support a claim to Tract 2 except the use of the roadway, and we must assume it presented no evidence on the payment of taxes — allegations of fact are one thing, and evidence to support such allegations is another. Moreover, there was no showing the property was ever assessed for taxation, it having originally been deeded to the school district in 1883, and the school district has since been disorganized. Furthermore, it has been held that the payment of taxes is not a condition to the acquisition of title by adverse possession unless made so by statute. (Finn v. Alexander, 102 Kan. 607, 171 Pac. 602; 2 C. J. S., Adverse Possession, § 171a, p. 745.)
Likewise, the allegation in the Cemetery District’s answer that the appellants had mortgaged Tract 1 to the Sedan State Bank is not persuasive evidence they were not claiming Tract 2 by adverse possession. A lending institution prescribes the conditions upon which loans and mortgages are made, and the fact a bank did not loan money upon lands to which the appellants had not perfected record title, is not persuasive evidence of lack of adverse possession. Moreover, it is entirely possible the appellants needed only to incumber Tract 1 as security for a loan.
As the evidence is not disputed, we conclude it established as a matter of law the appellants’ title to Tract 2 by their clear, positive and continuous possession of Tract 1 and Tract 2 for more than fifteen years. The district court erred in concluding the appellants failed to establish a title to Tract 2, and that judgment is reversed, and the cause remanded with directions to enter judgment in favor of the appellants confirming their ownership to Tract 2, subject to the public’s easement to use of the roadway for ingress and egress to the cemetery.
It is so ordered. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an action by plaintiff Theodore W. Lord, Sr., to recover a brokerage commission of $18,279.26 for the sale of 800 shares of corporate stock owned by the defendants, R. R. Jackman and F. C. Jackman.
The narrow question before us for consideration is the propriety of the trial court’s order sustaining the motion for directed verdict in favor of defendants.
At pretrial conferences the district court ordered a trial by jury, pursuant to K. S. A. 60-239 (b), on two issues: (1) Was the contract alleged by plaintiff entered into? and (2) If so, was it performed? The case was tried in May 1968 and resulted in mistrial because the jury, although in agreement on the first issue, was unable to agree upon the answer to the second issue. Thereupon, defendants moved for judgment in accordance with their earlier motion for directed verdict at the close of all the evidence (K. S. A. 60-250 [b]). The motion was sustained on the basis there was insufficient evidence to support a finding of the existence of a contract between plaintiff and defendants for payment of a commission as alleged in the petition. Judgment was entered for defendants and plaintiff has appealed.
A brief review of the pleadings will focus the issues submitted to the jury. Plaintiff’s petition alleged that on or about April 1, 1963, plaintiff and defendants entered into an agreement whereby plaintiff agreed to attempt to find a purchaser for all the stock of Goffe and Carkener, Inc., part of which was owned by defendants, at a price agreeable to defendants and the other stockholders; and defendants agreed to pay plaintiff three percent of the sale price of such stock upon his producing a purchaser. Plaintiff further alleged that during February 1964 he produced a buyer, ready, willing, and able to purchase the stock at the agreed price. Thereafter, according to the petition, defendants withdrew their offer and refused to pay plaintiff’s commission, although defendants and the other stockholders sold their stock in November 1964 for $998,875 to the prospective purchaser obtained by plaintiff. Defendants, in their answer, admitted the sale price of the stock, but denied all other averments of the petition.
Our cases are legion that when there is a challenge to the sufficiency of evidence on an issue of fact by motion for a directed verdict, the court may not weigh conflicting evidence, but is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the motion is leveled; and if the evidence is of such character that reasonable minds may reach different conclusions thereon, the motion for directed verdict must be denied and the issue submitted to the jury. (Pickens v. Maxwell, 203 Kan. 559, 456 P. 2d 4; Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 454 P. 2d 124; Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 447 P. 2d 833.)
From the evidence most favorable to plaintiff we piece together these facts.
R. R. Jackman and F. C. Jackman, as partners, owned 800 shares (of a total of 1,305 shares) of stock in Goffe & Carkener, Inc. Plaintiff had known the defendant, R. R. Jackman, for nearly thirty years. As early as 1956, R. R. Jackman told plaintiff that he and his brother, F. C. Jackman, wanted to sell their majority stock interests in the corporation. The minority stockholders objected to any proposed sale of the majority interests only and threatened legal action unless the minority interests were included.
Seven years passed, and in March or April 1963 R. R. Jackman and plaintiff met with Lee Norgren, a business broker in Denver, Colorado, with reference to the sale of all the corporation stock. Although Norgren had apparently expressed some interest in purchasing the stock himself, there was evidence that at this meeting the three of them agreed that in the event plaintiff and Norgren procured a purchaser of the stock, defendants would pay them a fee of six percent of the sale price. As a side agreement, plaintiff and Norgren agreed between themselves to split any fee they received. Jackman suggested the commission be deducted from any purchase price offered so that a “net to seller” price would be quoted to the minority stockholders, thus avoiding any difficulty with those who might object to paying a commission from their share of the purchase price. The sale price of the stock was to be $150,000 over and above the book value as shown in the audited financial statements, with adjustments to market value for assets such as memberships in grain or commodity exchanges and certain •securities owned by the corporation.
During the Norgren negotiations, R. R. Jackman informed plaintiff by letter dated June 3, 1963, that the offering price of the stock was $775 per share, and that defendants reserved the right to take the stock off the market at any time.
Norgren soon bowed out of the picture, and through plaintiff’s efforts, Rea Tenney, on behalf of himself and his associates, became interested as a potential buyer of the stock. A meeting of plaintiff, Tenney, and the Jackmans was held in August 1963 in Kansas City, where the proposed sale was discussed. According to plain tiff, there was no new discussion with the Jackmans about any commission being paid to him. R. R. Jackman recalled that at the meeting he advised Tenney there was to be no responsibility on the part of the sellers for a commission or finder’s fee, and Tenney agreed to “take care of” plaintiff. Later, when Tenney was ready to submit a firm offer, plaintiff, at Tenney’s request, sent the Jack-mans a letter dated January 30, 1964, stating:
“This letter covers my introduction to you of Rea C. Tenney, Houston, Texas with reference to his group’s prospective purchase of the common stock of Goffe & Carkener, Inc., Kansas City.
“My compensation in this transaction will come from the Tenney group and therefore you are released from liability for any compensation on this particular introduction.
“This release also applies to all minority stockholders of GofFe & Carkener, Inc.”
In the meantime, during December 1963, while the Tenney negotiations were still in progress, plaintiff received permission from R. R. Jackman to submit the sale proposal to one A. Vincent Blackford. Plaintiff and Blackford discussed the matter on five or six occasions, and Blackford reviewed the corporation’s financial statements. On January 9, 1964, (which was prior to plaintiff’s letter of January 30, 1964, to Jackmans) plaintiff called R. R, Jackman, in Phoenix, Arizona, and advised him that Blackford was ready, willing, and able to buy the stock at the offered price, and wished to come to Phoenix to meet with Jackman. Jackman told plaintiff he felt morally bound to wait to see what happened on the Tenney deal; hut if it did not go through, defendants would be happy to make “the same offer” to Blackford. In further explanation of his telephone conversation with Jackman, plaintiff testified:
“Q And in that telephone conversation was anything said about your fee or commission?
“A Nothing more than that Mr. Blackford was a ready buyer at the asking price plus commission.
“Q How would that have been handled? How would that be handled mechanically?
“A Mechanically they would have paid the net price to the Jackmans and held back the commission and paid those direct to myself.
“Q In what amount?
“A Three per cent of the commission would amount to three per cent of the sales price.
“Q Why was it three per cent instead of six per cent?
“A This tíme I was only claiming what would have been equivalent to the finder’s fee rather than a full commission.
“Q What did Mr. Jackman say to that?
“A That when the Tenney transaction had been declined that he would be happy to talk to both Blackford and myself in relation to the sale.
“Q On what basis?
“A On the basis which — , the former basis which we had been using practically from the start.”
Shortly after the Jackmans received plaintiff’s letter of January 30, 1964, R. R. Jackman told plaintiff the Tenney deal was off. He also informed plaintiff that his brother, F. C. Jackman, was apparently upset with plaintiff and suggested plaintiff visit his brother in Lawrence to assuage any ill feeling which existed. Heeding the suggestion, plaintiff, together with an employee of Black-ford, called on F. C. Jackman. At this meeting F. C. Jackman indicated he would not go along with a sale at that time.
Subsequently, on February 8, 1964, plaintiff called R. R. Jackman and told him Blackford wished to meet with him and try to purchase the stock. R. R. Jackman responded that he and his brother had decided to withdraw their offer of sale. Despite plaintiff’s protestations to the effect he had expended considerable time and money in finding a buyer, the Jackmans were not moved. Plaintiff took no further action, but later learned the stock had been sold to Blackford in November 1964.
The trial court concluded that although Blackford became aware of the stock through plaintiff’s efforts and later, on his own initiative, negotiated for and ultimately purchased the stock, the evidence did not establish a brokerage contract between plaintiff and defendants. We believe the lower court correctly determined there was insufficient evidence to make a submissible case on the existence of an agency contract as alleged by plaintiff.
The relationship between a seller and a broker is that of agency. An agency exists only by virtue of contract, express or implied. Whether a valid contract has been entered into must be determined by application of the same rules which pertain to contracts generally. There must be consideration, mutuality, and a meeting of the minds in respect to all essential matters. Meeting of the minds may be shown by implication from the conduct of the parties. The burden of establishing agency, like other matters essential in making out a claim, is upon the party asserting it. (Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305; Patee v. Moody, 166 Kan. 198, 199 P. 2d 798.)
Throughout the entire course of trial, plaintiff steadfastly relied on a contract made on or about April 1, 1963, when defendants purportedly agreed to pay plaintiff a three percent commission in the event he brought about a sale of the stock. The existence of such a contract was alleged in the petition and also delineated as a disputed issue in the pretrial order.
Plaintiff views the evidence as establishing a contract made at the Denver meeting in April 1963, when R. R. Jackman agreed to pay Norgren and plaintiff a commission of six percent, which Norgren and plaintiff, on their own, agreed to split between themselves. Plaintiff maintains that when the Norgren deal collapsed plaintiff produced Tenney on the “same contract basis,” and this arrangement continued until plaintiff agreed in writing to change the contract for the Tenney introduction only. Plaintiff then attempts to resurrect the earlier agreement made in Denver by saying that when he produced Blackford as a ready, willing, and able purchaser, R. R. Jackman agreed if the Tenney deal fell through, defendants would make “the same offer” to Blackford and the same commission arrangement for plaintiff would be used — that is, three percent rather than six percent because only one broker would be involved. Plaintiff contends Jackman thereby approved continuation of the original agreement calling for a three percent commission to plaintiff, even though Jackman may not have been previously aware of the side agreement between Norgren and plaintiff.
Defendants urge, and we think rightly so, that this is not a case of mere variance between pleadings and proof, but rather a complete failure of proof of the existence of an agency contract calling for the payment of a commission by the defendants.
In the first place, the evidence leaves much to be desired in respect to a purported three percent commission agreement growing out of the Denver meeting. The agreement actually entered into at that time was for payment of a six percent commission to plaintiff and Norgren. The splitting of the commission came about as the result of the side agreement to which defendants were not parties. Assuming, however, the soundness of plaintiffs argument that the Denver meeting gave rise to an agreement entitling him to a three percent commission in the event he alone brought about the sale of the stock, we believe a fair assessment of the evidence can only lead to the conclusion that such an agreement did not continue beyond the Norgren transaction. From that time on there was no agreement or contract between the parties whereby defendants obligated themselves to pay plaintiff a commission.
At the inception of the Tenney negotiations in August 1963, R. R. Jackman made it clear to all concerned that defendants were not to be responsible for the payment of a commission or finder’s fee. In apparent recognition of this fact, plaintiff wrote the letter of January 30, 1964, expressly releasing defendants from any liability for compensation in that “particular transaction.” Prior to-the letter, however, plaintiff had begun negotiations with Black-ford, and in his conversation with R. R. Jackman on January 9, 1964, Jackman told him if the Tenney deal did not materialize defendants would make “the same offer” to Blackford. Contrary to plaintiff’s contention, “the same offer” could only refer to the offer then outstanding to Tenney, which relieved the defendants from payment of any commission. Plaintiff’s attempt to breathe life back into the original agreement with his testimony quoted earlier is, in our view, completely unjustified. The testimony fails to raise a reasonable inference that R. R. Jackman agreed that he and his brother would pay any commission to plaintiff. At most, it was susceptible to the interpretation that any commission would be handled in the same manner as in the Tenney transaction.
As already indicated, a broker’s contract is to be treated the same as any other contract. There must be a meeting of the minds in respect to all essential matters. The broker must have been employed to negotiate the contract in connection with which his services were rendered, and his employment must have been by the person from whom the commission is claimed (Gleichenhaus v. Pratt, 190 Kan. 1, 372 P. 2d 273; Patee v. Moody, supra).
After a careful review of the record, we must conclude that at the time plaintiff produced Blackford as an alleged ready, willing, and able buyer, there was insufficient evidence from which a jury could find the existence of the employment contract relied on by plaintiff.
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The opinion of the court was delivered by
Fontron, J.:
This is an action to recover damages alleged to have resulted from a conversion of three combines. Trial was commenced before a jury. At the conclusion of the plaintiff’s evidence the trial court sustained a motion for directed verdict and entered judgment for the defendant. The plaintiff has appealed.
For the origin of this lawsuit we must turn back the pages of time to the 28th day of June, 1966. On that date the plaintiff, Mrs. F. A. Fox of Coleharbor, North Dakota, who, with her husband Earl, operated a custom combining business in conjunction with their farming operations, purchased three combines from the de fendant, Massey-Ferguson, Inc., (sometimes referred to herein as Massey) through the company’s office at Garden City. The machines were purchased with the view of taking them directly to Canada for resale to an implement dealer at Porcupine Plains, Saskatchewan. A down payment of $3,750 was made on the purchase price of the machines and a remaining balance of $8,928.45 was secured by a conditional sale contract coming due in four monthly installments commencing August 1,1966.
Before the machines could be delivered to Porcupine Plains, ill luck intervened in the form of a hail storm which wiped out a major portion of the wheat crop in that vicinity. Hence the machines could not be sold and they were returned to Coleharbor for the winter.
None of the monthly payments due on the machines were paid and on May 15, 1967, the Massey representative from Minneapolis, a Mr. Beardsley, visited Mr. and Mrs. Fox in Coleharbor where an agreement was reached under which an immediate payment of $300 was to be made and an additional $1200 (sometimes referred to as $1250) was to be paid when Mr. Fox called for the machines in June to move them from Coleharbor to climes further south. The $300 payment was made by a check drawn by Mrs. Fox. This check was later dishonored and never paid.
On June 22, 1967, Mr. Fox, who had been planting wheat in Canada, met Mr. Beardsley at a hotel in Bismarck, where he told Beardsley he could not meet the $1200 payment at that time but would need a few more days to get the money. However, he proposed to give a post-dated check for $1200, or $1250 as the case may be, dated July 5, 1967. To this proposal Mr. Beardsley agreed. At the same time a renewal note and agreement was executed by Mr. Fox, acting on behalf of his wife, calling for payment of the balance of the purchase price in three monthly installments commencing August 1, 1967, and containing provisions for retention of title and right to repossess similar to those found in the original conditional sale contract.
Fox thereupon moved the combines to the sun-kissed fields of southwest Kansas, where fields of golden grain beckoned the reaper’s restless scythe. Shortly after arriving in Gray County, Kansas, (apparently on June 25, 1967) Mr. Fox was accosted at his motel in Cimarron by two Massey-Ferguson collectors or representatives from the defendant’s Kansas City office who accused Fox of removing the machines from North Dakota illegally and without the company’s consent or permission.
From this point on in time, the testimony set forth in the transcript of trial (which has been made available to this court), as well as that summarized in the record, is unclear, vague and highly confusing as to the events which followed, particularly with respect to the sequence in which they occurred. It can fairly be deduced, however, that conversations took place in which the company representatives wanted the entire $1500 paid and the Foxes wanted to retain possession of the combines. Moreover, it is clear that at one point during the negotiations, the Massey agents took peaceable possession of two of the machines without filing legal action (as Massey was entitled to do under both the original and renewal contracts) and placed them on a lot in Montezuma. It is clear also that two days thereafter, at six o’clock a. m. or before, Mr. Fox retook possession of those machines without benefit of court process and thereafter used them in his combining operations.
The present lawsuit seeks damages for loss of business allegedly sustained during the two days when the machines were kept by Massey in Montezuma, plus punitive damages for what the plaintiff contends was an unlawful conversion.
As we have said before, the trial court sustained the defendant’s motion for a directed verdict after the plaintiff had concluded her evidence, and the question now confronting us is whether the court erred in so doing.
The motion for a directed verdict is not new to this jurisdiction; it existed under our former procedure. In the present Code of Civil Procedure use of the motion is recognized and expressly sanctioned by K. S. A. 60-250. The purpose of such a motion is well known to the bar of this state — it being designed to test the sufficiency of the evidence which has been introduced by an adversary. An order sustaining the motion has the effect of removing the case from the jury; it amounts to a determination by the trial court that there is no issue of fact to submit for the jury’s consideration. (Gard, Kansas Code of Civil Procedure, § 60-250, p. 233.)
So far as the old-timers among us are concerned, the function of the motion for a directed verdict can be explained most simply by pointing out that essentially it serves the same purpose as a demurrer to the opposing party’s evidence, as the demurrer was known in practice prior to adoption of the present Code. (Weber v. Wilson, 187 Kan. 214, 356 P. 2d 659.) Likewise, the tests to be employed in evaluating the evidence on a motion for directed verdict are similar to those used in yesteryears on a demurrer. In 3 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, § 60-250.3, p. 219, it is said:
“Insofar as standards to be applied by the court are concerned, when a motion for directed verdict is made, the court must draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and to that party give every favorable intendment of the evidence, and a verdict can not be directed unless the evidence is insufficient to sustain a verdict for the non-moving party. See generally, Barron and Holtzoff, Federal Practice and Procedure, § 1075.”
It is difficult, at best, to divine from the plaintiff’s brief the precise basis on which she predicates her right to recover damages in this action. On one page of the brief she cites authority holding that a mortgagee may not take the law into his own hands and remove mortgaged property by force, threats or violence, without being liable in damages for conversion (although the same authority recognizes that a mortgagee who deems himself insecure may take possession, if the mortgage permits, provided he acts in an orderly manner and without creating a breach of the peace). On the next page plaintiff contends that Massey waived its right to possession by demanding the full purchase price — and that efforts were made to raise the money. With respect to these two variant contentions it may be said there is no evidence that the defendant’s agents committed any breach of the peace in taking possession of the combines, nor is there evidence they ever demanded the full purchase price.
It was only upon oral argument that counsel for the plaintiff defined her position in this fashion: That an agreement had been made in Gray County whereby she was to pay Massey $1500, which would take care of her own dishonored $300 check as well as Earl’s post-dated one, in return for which she could keep possession of the combines subject, of course, to terms of the renewal agreement.
We have combed the transcript in a search for evidence to support this theory of recovery, despite its last minute advocacy by plaintiff’s counsel. Applying the standard we believe must be used in appraising evidence as against a motion for directed verdict, we have concluded that the evidence introduced by Mrs. Fox, and the inferences which reasonably may be drawn therefrom, is susceptible to the interpretation that an agreement was made in Gray County along the lines advanced by plaintiff, at oral argument.
However we find no evidence of record that either Mrs. Fox or her husband paid the $1500 to Massey’s representatives prior to the time the latter took possession of the combines and removed them to Montezuma — or at any other time for that matter. Neither is there evidence to suggest that plaintiff personally or through her husband offered to pay, or tendered, that amount to Massey’s agents in Gray County.
It is true that at one point in his testimony, Mr. Fox stated he secured a $1500 advance from a farmer on a combining job (the farmer testified it was $1000) which he gave to his wife so she could meet with Massey’s men in Dodge City as they had requested, but Mrs. Fox herself testified she did not meet the men in Dodge City; that she was late for the appointed meeting and the men had left shortly before her arrival. The record and transcript are silent as to what later meetings, if any, were held and is entirely barren of any evidence to suggest that plaintiff ever offered a $1500 payment to the defendant’s agents or that she was deprived by them of an opportunity to do so.
We are constrained to hold that the trial court committed no error in sustaining the defendant’s motion for a directed verdict, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant, Dale Albert Chase, appeals from convictions by a jury of murder in the first degree as defined in K. S. A. 21-401 [now K. S. A. 1970 Supp. 21-3401] and of robbery in the first degree as defined by K. S. A. 21-527 [now K. S. A. 1970 Supp. 21-3427].
The state’s evidence shows that James E. Long was killed by two gunshots to the back of the head and robbed on May 15, 1968, in the east part of Topeka. Mr. Long was the driver of a Yellow Cab. Soon after midnight, the morning of May 15, Mr. Long answered a call from the Hotel Jayhawk where defendant and two companions, Kenneth Arthur Roth and Mark DeWitt, were picked up as purported taxi fares.
The following day the taxicab was found in a wooded area partly submerged in a pond near the southeast edge of Topeka. The body of Mr. Long was found nearby.
The events leading up to the criminal prosecution are undisputed and can be stated briefly.
The facts are established by defendant’s testimony given in the previous trial of Roth. Defendant’s entire testimony on direct and cross-examination, given in the Roth trial, was read to the jury in the instant case. No objection was made to this procedure. Defendant relates the events culminating in the murder and robbery in his testimony, which is narrated in defendant’s abstract as follows:
“. . . the boys had met at the Topeka YMCA, had gone pilfering automobiles, and then went to the Jayhawk Hotel, where a taxi cab was called. They discussed robbing the cab driver, and Roth stated that the cab driver must be killed. Chase objected to killing the cab driver, at which time Roth, who had earlier been given the gun by Chase, gestured toward Chase and stated that if Chase wanted to ‘chicken out’, he could be killed, too. The cab arrived and after making at least one error in direction, arrived at the field behind the Hudson School. DeWitt pretended to be getting money to pay the cab driver. The cab driver glanced to the front of the cab, and Roth shot him in the back of the head. Chase shouted, ‘Shoot him again’, and Roth fired again. Chase shouted ‘Shoot him again,’ and Roth fired again. Two of the shots apparently struck the cab driver. Roth and DeWitt exited the car and Chase knocked out the interior lights. Roth rifled the pockets of the cab driver, taking $27.11. Chase moved the cab down to the pond, where one of the boys gave it a shove and it went in. As Chase was familiar with the area, he led the boys to a location on the other side of the wooded area where a car that had been stolen several days earlier had been stashed. This car was used to return to the vicinity of the YMCA. Chase took his motor cycle and went home, and after a fitful night, the following morning returned to the scene of the crime. At that time he further wiped down the taxi cab.”
Because of the seriousness of the crime charged and the nature of the issues on appeal, we have secured and examined defendant’s verbatim testimony. In addition to defendant’s testimony narrated in this record, we have learned that he testified that after returning to the YMCA, the three boys divided the money, then Roth gave the gun back to defendant. Defendant hid the gun and a box of cartridges in the garage at his home.
After defendant was charged by information, a commission was appointed to examine defendant. The commission determined that defendant was competent to stand trial.
Thereafter, defendant’s trial was commenced on June 2, 1969, and extended through June 4. The principal defense was insanity at the time of the criminal offense and several expert witnesses were called by defendant in support thereof. The defendant also claimed that he was threatened by Roth. The trial court fully instructed on coercion and voluntariness and there is no complaint made on appeal in this regard.
As previously indicated, the jury returned a verdict of guilty on both charges and recommended a sentence of life imprisonment on the murder charge.
After a motion for a new trial was heard and overruled, defendant was sentenced to the Kansas State Industrial Reformatory for a term of not less than ten nor more than twenty-one years on the robbery charge and life imprisonment on the murder charge. The sentences were directed to ran concurrently.
On appeal defendant makes three specifications of error which will be examined in the order presented.
Defendant first contends the instructions given by the trial court did not adequately describe the area of mens rea, general criminal or felonious intent within the context of this case.
In this connection defendant requested the submission of the following instruction:
“In order to find the Defendant guilty of the acts alleged in the Information in this case, you must find not only that he committed those acts, but also that he committed them willfully and knowingly.
“Willfullness implies bad faith and an evil motive. An act is done knowingly if it is done voluntarily and purposely and not due to mistake, inadvertance, or some other innocent reason.”
The complete instructions are included in the abstract and have been carefully examined. We believe a recitation thereof is unnecessary. It will suffice to say that intent as an element in each of the offenses charged was carefully explained, and the jury was fully advised concerning the application thereof to the charges in the information. The instructions include definitions of all the terms used in describing intent as applied to robbery and first degree murder committed by a premeditated killing or committed in the perpetration of a robbery or a felony.
The trial court clearly and adequately instructed the jury in regard to the necessary intent to be established by the state. The submission of defendant’s requested instruction would have been superfluous.
Defendant next contends the trial court erred in excluding from the jury two video tapes which the defendant says illustrated diagnostic psychiatric techniques used on defendant by Dr. Joseph Satten, a psychiatrist.
The question arose during Dr. Joseph Satten’s direct testimony. Dr. Satten testified that he with two other psychiatric physicians were appointed as a commission to inquire into the mental capacity of defendant and to report to the court whether he had any mental illness and whether that mental illness interfered with his capacity to stand trial. Interrogation of Dr. Satten proceeded as follows:
“Q. And what, in general, were the findings of that Commission? A. The commission found that he was mentally ill, but that the mental illness did not interfere with his capacity to stand trial.
“A. I used a particular drug called sodium amytal. That is often helpful in relaxing a patient and getting around mental blocks and sometimes is helpful in recovering memories where there are memory gaps.
“Q. Was this interview recorded in any manner? A. I recorded the interview on audio and video tape as well as the interview immediately before the drugs so I could compare his response with drugs and without drugs.
“Q. Was this recording done as a part of your diagnostic procedure? A. Yes and no. Yes, it was helpful to have a recording so I could go back and look at it the second time. No, I am interested in the research and in being able to compare at a later date recorded interviews of various individuals who have been accused of homicide.
“Q. Were those the only two purposes in recording the interviews at that time? A. Well, there was a third potential purpose, namely, that it might be helpful to the court and jury in explaining my examination and my findings.”
Dr. Satten then recited his findings and related the results of his evaluation of the defendant. This portion of Dr. Sattens testimony will be discussed in connection with the next point to be considered in this opinion.
At the close of Dr. Satten’s direct examiantion the following appears:
“Q. Dr., at this point, in your opinion, would it be helpful for the court and jury to view the video material that is available in the court room? A. Why, I think it would. I have tried to describe as accurately and as clearly as I can the nature of the examination and my testing and probing to try to get at what was going in his mind. But I think that seeing the real thing, or at least some reasonable sample of the real thing, might give a better picture.
“Mr. Jarvis: Your honor, at this time, then, we would request permission of the court to display this material.
“The Court: How long does this take, Doctor?
“The Witness: There are two sections, one approximately an hour without a drug, and the other approximately an hour and a quarter under the influence of the drug.”
At this point, the county attorney objected stating that the video tapes were not the best evidence, the jury was not trained in the evaluation of sodium amytal or psychiatric operations and that the state could not cross-examine the video tapes. The court recessed and during the noon hour viewed the two video tapes. The trial court described the tapes as interviews with defendant by Dr. Satten concerning the circumstances of the offense and defendant’s version of events. The trial court refused defendant’s proffer of the tapes, reasoning that by this means the defendant’s version of the facts and the circumstances would be shown to the jury without being tested by cross-examination. The trial court further observed that there were issues in the case that went beyond the question of legal insanity.
In his brief on appeal, defendant argues that the offer of the tapes was not to prove the statements made by defendant, but only to strengthen the credibility of Dr. Satten’s testimony by illustrating the techniques used in arriving at the conclusions presented to the jury concerning the mental responsibility of the defendant. He further argues that any prejudice to the state would have been fully alleviated by an instruction limiting the jury’s consideration.
It is desirable, of course, that the jury be informed about the techniques, tests, and procedures used by Dr. Satten in arriving at his conclusions concerning the defendant’s mental responsibility. On the other hand, when evidence such as that offered here is received for a limited purpose, under a proper limiting instruction, there is, nevertheless, danger that the jury may consider it as substantive. From what was said by the trial court in announcing its ruling, it appears the court was fully aware of both the desirability and danger involved in submitting such evidence to the jury.
The question raised by this assignment is one of first impression in this jurisdiction. Neither the defendant nor the state has directed our attention to authority dealing with the subject. However, our research reveals that similar questions have been considered by other coruts resulting in a conspicuous diversity of opinion.
In People v. Cartier, 51 Cal. 2d 590, 335 P. 2d 114, the defendant, charged with murdering his wife, was examined by a psychiatrist while under the influence of sodium pentathol. The trial court’s exclusion of a tape recording of the examination was held erroneous on appeal; since, as the court observed, “The statements made to the psychiatrist by defendant while under the influence of the drug were not offered for the purpose of proving the truth of the matter asserted therein.”
On the other hand, testimony pertaining to psychiatric examination of a defendant, while under the influence of sodium amytal, has been flatly rejected in several jurisdictions. (See Dugan v. Commonwealth, [Ky. 1960], 333 S. W. 2d 755; Merritt v. Commonwealth, [Ky. 1965], 386 S. W. 2d 727; State v. Linn, 93 Idaho, 430, 462 P. 2d 729; and People v. Ford, 304 N. Y. 679, 107 N. E. 2d 595.)
Other states have taken what may be labeled a middle ground position. In State v. White, 60 Wash. 2d 551, 374 P. 2d 942, (1962), a psychiatrist, Dr. G. Charles Sutch, examined defendant while he was under the influence of sodium amytal and desoxgyn. Dr. Sutch, in much the same manner as Dr. Satten in the instant case, testified as to his diagnosis of White’s mental condition and was permitted to relate the kind of drugs administered for the purpose thereof and their effect on defendant. The trial court refused to permit Dr. Sutch to relate any statements made by White, while under the influence of the drugs, and rejected a tape recording of the interview. These rulings were assigned as errors on appeal. The Supreme Court of Washington en banc held there was no abuse of discretion by the trial court in either ruling, even though the rejected testimony and tape recording were not offered to prove the truth of statements made to the psychiatrist, but only for the purpose of enabling the jury to better understand the basis of the psychiatrist’s opinion. The court discussed other authorities, including People v. Cartier, supra, and reasoned:
“A layman would find it extremely difficult, if not impossible, to make an accurate evaluation of the testimony which was offered. On the other hand, the possibility that a jury might be confused or misled by such evidence is quite real. Therefore, the trial court could have concluded that whatever dubious value such testimony might have would be more than outweighed by the danger of its misinterpretation and misuse by the jury. . . .” (p. 568.)
In People v. Myers, 35 Ill. 2d 311, 220 N. E. 2d 297, a tape recording was not involved, but in affirming the trial court’s rejection of a psychiatrist’s recitation of the responses of the accused, while under the influence of sodium pentathol, which was offered for the purpose of explaining techniques, the court said:
“. . . There is nothing to indicate that defendant’s responses while he was under the influence of sodium pentathol were necessary for the jury to understand the psychiatrist’s findings or opinion based upon such examination. It was not error for the trial court to exclude testimony concerning defendant’s responses while under the influence of sodium pentathol.” (p. 333.)
The decision in Myers was adhered to and additional authorities reviewed in People v. Seipel, 108 Ill. App. 2d 384, 247 N. E. 2d 905, wherein sodium amytal was administered.
We believe the treatment of the problem by the Washington and Illinois courts to be sound and fair to both the state and the accused and applicable to the issue in the context presented herein. Dr. Satten carefully and articulately explained his purpose in administering the drug, its effect on defendant and the benefits derived in evaluating defendant’s mental condition. No complaint is made and we find nothing in the record to indicate that Dr. Satten’s testimony was restricted in this regard.
We find no abuse of discretion by the trial court in refusing to admit the video tapes.
Finally, defendant contends the state did not meet the minimal required quantum of proof concerning defendant’s mental responsibility in view of defendant’s evidence in this regard.
In order that this assignment be viewed in proper perspective, it should be pointed out that there was no challenge made to the court’s instruction concerning the defense of insanity. The instruction given is identical with that approved in State v. McBride, 170 Kan. 377, 226 P. 2d 246, and is essentially the same as that approved in State v. Andrews, 187 Kan. 458, 357 P. 2d 739, cert. den. 368 U. S. 868, 7 L. Ed. 2d 65, 82 S. Ct. 80. As explained in the Andrews opinion, it is generally in conformance with what is commonly denominated the M’Naghten Rule. The instruction further directed the jury that the burden is upon the state to prove to the jury’s satisfaction beyond a reasonable doubt the defendant’s sanity, as that term was defined, at the time of the shooting in accord with the law of this state since State v. Crawford, 11 Kan. * 32(1873). (See State v. McBride, supra.)
The instruction referred to is quoted in full in the McBride and Andrews opinions and need not be restated here.
The gist of defendant’s argument is that, since he called as witnesses in his behalf a battery of experts who unanimously agreed defendant had suffered some degree of mental illness throughout most of his life, the issue of insanity was conclusively resolved leaving no question for the jury’s determination. It is true, the record shows the extraordinary circumstance that the mental health of this defendant has been under some degree of medical and scientific observation since the early age of twenty-eight weeks. This cir cumstance came about by reason of defendant’s participation as one of the subjects of a research project conducted by the Menninger Foundation. We are not informed as to why or how defendant was selected as a subject.
Dr. Alice Moriarty, a research psychologist, described the project as a “longitudinal research project” commenced in 1950; that the project was a continuing one, along with a “longitudinal time continuum.” Dr. Moriarty testified that, as part of the research project, defendant was seen at the age of twenty-eight weeks and subsequently at the age of four, seven, eleven, twelve, fifteen and seventeen, and that he was tested on each occasion. The record does not disclose the nature of the tests. She described defendant’s childhood as “difficult and disturbed” and “that his homelife was rather aberrative.”
Concerning defendant’s mental condition at the time of the offense, Dr. Moriarty testified that on an intellectual level defendant was potentially capable of distinguishing right from wrong; that he was bright enough to do so, “but that emotionally he was not able.”
The sum of the evaluations of defendant’s other experts is essentially the same as that expressed by Dr. Moriarty.
Dr. Donald Offutt, a psychiatrist, who had treated defendant for a short period described his mental condition in these words:
“Chase would have the capability on a purely intellectual level to know that an act was not in best interest; however, on an emotional and instinctual level, he would act impulsively. . . .”
Defendant relies heavily on the testimony of Dr. Joseph Satten, Director of the Division of Law and Psychiatry of the Menninger Foundation. Dr. Satten drew together all prior information concerning defendant, including prior diagnostic efforts and the reports of other doctors. As we have noted, Dr. Satten was also a member of the commission which found defendant able to stand trial.
Dr. Satten summed up his careful and thorough description of his exhaustive consideration of the case by stating in substance that defendant had no appreciation of values of right or wrong in the philosophical sense that a normal person might, that defendant’s symptoms added up to what might be called a personality disorder or character disorder to which was added a label of infantile personality disorder, which suggests a primitive quality of mental functioning.
On cross-examination Dr. Satten testified that if defendant were tested concerning the right or wrong aspects of robbery, murder or burglary, “The chances are that he would put wrong’ on each one of those.”
It is obvious that the fact of defendant’s affliction with a personality disorder or mental illness was established by the testimony of Dr. Satten and defendant’s other experts. However, Dr. Satten does not specifically interpolate his evaluation of defendant’s mental condition into the terms of the legal test set out in the court’s instruction. In other words, Dr. Satten’s testimony, as we see it, was a careful recitation and explanation of discernible symptoms of mental illness bearing upon defendant’s mental capacity, but the door was left open for the ultimate determination by the jury, whether defendant was capable of distinguishing between right and wrong at the time, and with respect to the act committed. (See Fisher v. Fraser, 171 Kan. 472, 233 P. 2d 1066, 29 A. L. R. 2d 699.) None of the experts in the instant case put their conclusions in terms of legal insanity as was done in State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44.
The defense of insanity is authorized in this state by K. S. A. 1969 Supp. 62-1532 [now K. S. A. 1970 Supp. 22-3428]. Under the provisions of that statute we have repeatedly held that the question of sanity of the accused, at the time of the alleged commission of the offense, is one to be determined by the jury upon the evidence introduced bearing upon the issue. The most recent decisions are State v. Sagebiel, supra; State v. Coltharp, 199 Kan. 598, 433 P. 2d 418; and State v. Mendzlewski, 180 Kan. 11, 299 P. 2d 598. Cases from other jurisdictions, in line with our decisions, are noted in Coltharp and Mendzlewski. (See, also, 17 A. L. R. 3d, Anno., Insanity-Proof, §§ 7, 8, pp. 179, 184.)
The attitude of this court stems from the philosophy that medical science is not recognized as an exact science, and has not developed to the extent that it can diagnose human ailments with the exactitude of the mathematician; that necessarily, there is an element of uncertainty and speculation in the formation of expert opinion on the mysterious functioning of the human body. Expressions of this court in dealing with the subject, in both civil and criminal cases, are discussed and cases cited in State v. Harden, 206 Kan. 365, 480 P. 2d 53, this day decided.
The rule of this court with respect to the determination of the issue of insanity is consistent with views expressed by Dr. Karl Menninger, one of the nation’s most eminent authorities on legal aspects of psychiatry. In his recent book “The Crime Of Punishment,” Dr. Menninger proposes the elimination of courtroom appearances by psychiatrists on the issue of guilt because, as he writes:
“. . . I consider guilt, competence, and responsibility to be moral questions, not medical ones. The judge and the jury are the community’s representatives in this area. It is for them to make the judgment and apply the sanctions deemed appropriate, not us psychiatrists. Society decides— through them — what crime is and what proof it requires in any particular instance and what penalty applies,” (p. 139.)
With respect to the proper function of a psychiatrist in this area, Dr. Menninger makes this further observation:
“. . . They [psychiatrists] may certainly examine an offender and submit a report of their findings, and these findings may assist a judge or a jury to come to some conclusions about the man’s competence. But no psychiatrist should presume to accept the responsibility of deciding a highly technical legal question based on these findings. He can say that a man is distracted or deluded or hallucinated, but whether or not this state of mind is compatible with legal ‘competence’ is something about which a psychiatrist has only common knowledge, and not scientific knowledge.” (p. 141.)
Associate Justice William O. Douglas of the United States Supreme Court, in a commentary favoring the Durham Rule (Durham v. United States, [District of Columbia Circuit] 214 F. 2d 862, cert. den. 364 U. S. 854, 5 L. Ed. 2d 77, 81 S. Ct. 83), appearing in Vol. 41 of the Iowa Law Review [No. 4, 1956], expresses views concerning the function of psychiatrists in keeping with those of Dr. Menninger. Justice Douglas says:
“. . . The psychiatrist merely expounds on the theoretical and clinical aspects of the problem. The jury evaluates his testimony, as it does the evidence on every other factual issue. That is the correct disposition, for the question whether society should assess punishment for criminal conduct is, in the last analysis, a moral judgment. The jury, being of the community, reflects its attitudes and speaks for it. . . .” (pp. 489, 490.)
In Dusky v. United States, 295 F. 2d 743 ( 8th Cir. 1961), the United States Circuit Court of Appeals was confronted with an issue concerning the sufficiency of the prosecution’s evidence on the question of insanity in a frame of reference quite similar to that before us herein. Appellant Dusky had a considerable history of medical and psychiatric treatment and had undergone a series of psychological tests. Psychiatric diagnosis was to the effect that Dusky was suffering from schizophrenia on the date of the offense and probably did not know the difference between right and wrong. The prosecution, as in the instant case, offered no expert testimony in rebuttal, but relied upon lay testimony and lay facts. In holding the evidence sufficient to take the question to the jury, Circuit Judge Blackmun (now Associate Justice of the United States Supreme Court) speaking for the court said:
“. . . We cannot conclude, as we must in order to remove this case from the jury’s consideration, that on the basis of the evidence here ‘reasonable men must necessarily possess a reasonable doubt as to defendant’s sanity and that reasonable men must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime.’ . . .” (p.756.)
Further in the opinion, by way of reply to appellant, who urged cases holding to the contrary, the following appears:
“We recognize that these cited cases involve situations, as does the present one, where expert testimony is introduced on behalf of the defendant and where usually the opposing prosecution material consists at the most of lay evidence. But that common feature does not in itself justify any general legal conclusion that the defense is then always entitled to a judgment of acquittal, or that the cases cited above in paragraph 3 are not authoritative. There is nothing essentially sacred or untouchable in expert testimony. The mere fact that the primary evidence on one side may be typified as expert in character while that on the other is exclusively from the mouths of lay witnesses and from lay facts must not of itself serve to destroy the jury’s traditional function.” (p. 757.)
This court has consistently rejected the rule which would treat medical testimony as conclusive, merely because it is not disputed by other medical testimony. (State v. Harden, supra; State v. Sagebiel, supra; and State v. Mendzlewski, supra.)
We believe the jury should be free to make an independent analysis of the facts on which the opinions of the experts rest. If we were to accede to defendant’s argument that the jury was not competent to pass on defendant’s mental condition, because of the expert testimony, we would be transferring the jury’s function to the psychiatrist and substituting a trial by experts for a trial by jury. To adopt the theory urged by defendant, we would be forced to overturn this court’s well-established concept of the jury’s function. Furthermore, we would force responsibility upon the expert which, according to recognized authorities in their own profession, is neither sought nor deemed to be the prerogative of psychiatrists when called upon as expert witnesses to assist in making the determination in judicial process.
In the instant case there was much more for the jury’s consideration than just the analysis of the expert testimony.
The jury had before it in the defendant’s own words, an account of his conduct before, during and following the act committed. The jury was entitled to consider physical evidence consisting of the gun, the taxicab, the stashed car, which corroborated the defendant’s clear recollection of the events that took place before, during and after the shooting. The jury had a right to consider that defendant had stashed the stolen get away automobile, furnished the gun, which he later hid, and returned to the scene the following morning to wipe fingerprints from the taxicab. All of these undisputed facts relate to the issue whether defendant understood the nature and quality of his acts, at the time he committed them, and whether he understood they were wrong. This evidence was weighed by the jury, under the guidance of the court’s instructions against the evidence of the nature of defendant’s mental illness and his mental capacity as described by his expert witnesses.
In this state, as we have noted, when evidence is introduced in support of a plea of insanity at the time of the offense, the burden of proof beyond a reasonable doubt on the issue, falls on the prosecution as in the case of any other necessary ingredient of the offense charged. Likewise, the test, on appellate review, of the sufficiency of the evidence to support the verdict is the same as that applied with respect to any other element of the offense.
The test referred to is stated in our holding in State v. Helm, 200 Kan. 147, 434 P. 2d 796. We held:
“In a criminal prosecution it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court.” (Syl. f 2.)
See, also, State v. Sagebiel, supra; and State v. Paxton, 201 Kan. 353, 440 P. 2d 650, cert. den. 393 U. S. 849, 21 L. Ed. 2d 120, 89 S. Ct. 137.
In the instant case the learned trial judge received the report of the sanity commission, heard and observed firsthand all of the evi dence, approved the jury’s verdict and overruled defendant’s motion for a new trial. In order to strike down the jury’s verdict and the trial court’s approval thereof, as we are asked to do, we would be compelled to conclude that reasonable men must necessarily possess a reasonable doubt as to the defendant’s legal sanity at the time of the offense. After a careful examination of all the evidence within the context of the applicable rules, we are unable to so conclude.
In his brief on appeal, defendant strenuously argues that the case of Phillips v. United States, 311 F. 2d 204 (10th Cir. 1962) fully supports his position and requires a reversal.
The Phillips case has been urged upon this court in two other recent cases. (State v. Coltharp, supra; and State v. Sagebiel, supra.) In each case application of the rule announced in Phillips was rejected.
In the Phillips opinion the court summarizes the appellant’s evidence, which consisted of the testimony of two psychiatrists and two relatives of appellant. The diagnosis of Phillips’s condition at the time of the alleged offense was “schrizophrenic reaction, undifferentiated type, chronic.”
The court stated the government offered no evidence or testimony bearing on the mental competency of the accused, and thus failed to sustain the burden of proof. No mention is made of any lay testimony or lay facts concerning the conduct of accused nor does the court relate how the facts of the offense were established.
Insofar as the holding in Phillips stands for the proposition that expert testimony submitted by accused, tending to prove insanity may only be rebutted by expert testimony offered by the prosecution; it was rejected in Coltharp and Sagebiel and is again rejected here. If the opinion be construed to hold that relative lay testimony or lay facts have no bearing on the mental capacity of an accused then, likewise, the Phillips holding is in conflict with the long line of decisions of this court previously mentioned.
Finding no error, the judgment is affirmed.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal steins from a judgment of the district court to which an appeal had been taken from an order of the Board of Trustees of the Kansas Employees Retirement System denying appellant’s claim for permanent total disability benefits.
The basic facts are not in dispute.
The city of Lyons, Kansas, was a participating employer in the Kansas Public Employees Retirement System on September 9, 1965. On that date Harold J. Strader, appellant, was employed by the city of Lyons, Kansas, as a garbage collector at a salary of $350 per month. He was a member of the Kansas Public Employees Retirement System. He had no record or history of physical disability prior to September 9, 1965. His usual duties included driving a truck, collecting the refuse and emptying the refuse into the truck. He had performed these same tasks since his employment by the city on August 11, 1961.
On September 9, 1965, appellant reported for work as usual, worked through the morning, went home for lunch and returned to work. Shortly thereafter, and while the temperature was about 103 degrees, he drove a city truck to a home located about a mile from where he had commenced operations for the afternoon. Upon arriving at the home he set out to empty a 30-gallon container with the intent of emptying some of the trash from the container into two five gallon buckets in order to throw the trash onto the city truck. When he attempted to lift the container it began to slip and he tried to catch it by gripping it with his leg. He immediately began to feel dizzy but managed to get the container emptied.
Appellant drove about half a block at which time he felt so dizzy he stopped the truck. He opened the window of his truck in order to get some air. He remembers a beginning weakness in the left leg which rapidly progressed to weakness of the left arm and to the left half of his face and pain in the right eye. He became semi-conscious. Later he was discovered by some of the employees of the city of Lyons and taken to Rice County Hospital in Lyons, Kansas. He was hospitalized until October 23, 1965.
Appellant is totally disabled. There is no controversy regarding the timeliness of the application for accidental total and permanent disability retirement, or the member’s report of total disability.
On July 21, 1967, the Board of Trustees of the Kansas Public Employees Retirement System denied the claim of appellant, and on July 25, notified him in writing of its findings, and also notified him of his right, if he felt aggrieved, to make application for a “hearing” before the Board in compliance with K. S. A. 74-4904 ( 2). On October 26, 1967, the hearing in question was held before the Board of Trustees and at that time the appellant appeared in person and by his counsel. Testimony was given by appellant in connection with his claim. After listening to the oral testimony of appellant, and his counsel’s argument, the Board of Trustees considered the three medical reports and reaffirmed the findings that it made at its meeting of July 21, 1967.
The specific finding of the Board of Trustees stated:
“Based on the medical testimony it is found that Mr. Strader’s disability did not arise out of and in the course of his employment with the city of Lyons.”
Appellant filed notice of appeal to the district court of Shawnee County, Kansas, and also filed in the district court an instrument designated a petition. It read in part:
“8. The plaintiffs application for benefits, even though he’s shown eligibility entitlement, has been denied, and the defendant System continues to refuse to pay this indebtedness owed to the plaintiff by the defendant System. The System continues to hold the contributions to the fund made by Harold J. Strader.
“9. In addition, the plaintiff states that justice requires that plaintiff be afforded an independent and judicial review which would include an opportunity to put on additional evidence to show more clearly his entitlement to the total disability benefit.”
The appellee answered admitting the formal allegations of the petition, and stated:
“Admits that it has denied plaintiff’s application for benefits and that it continues to hold his contributions to the fund, but denies that plaintiff has shown eligibility for benefits or that defendant is indebted to plaintiff as alleged in paragraph 8.
“Denies paragraph 9, and alleges that plaintiff was afforded a full and complete hearing before the Board of Trustees at which he was given the opportunity to present any evidence he desired; that all evidence offered by him was received; that the Board gave fair and impartial consideration to such evidence and found in good faith that as a matter of fact plaintiff had not suffered an accident such as would entitle him to any benefits.”
Appellant then filed a reply which for the first time raises the question of the constitutionality of the act:
. . Plaintiff specifically asserts and re-asserts that the act is defective from a Constitutional standpoint, and he asserts further that the variety of consideration given him in this case illustrates the need for (1) either hearing additional testimony, or (2) for additional directives to the System, either judicially or legislatively. If the System has the power to make these changes through administrative enactment, then, in that event, the System has failed to afford this participating employee a hearing which meets the due process requirements of the United States Constitution.”
Appellant later filed a motion for summary judgment, which reads:
“Comes now the Plaintiff, Harold Strader, and in accordance with K. S. A. 60-256, and moves the Court to enter summary judgment for the Plaintiff and refers the Court to the testimony under oath given previously by the Plaintiff, Harold Strader, which is irrefutable by this Defendant or any expert testimony.”
The appellee also filed a motion for summary judgment, which reads:
“The defendant, Kansas Public Employees Retirement System, hereby moves this Court to enter summary judgment for the defendant in accordance with the provisions of K. S. A. 60-256 (b) and (c), on the ground that the pleadings filed show that the defendant is entitled to judgment as a matter of law.”
The district court considered jointly the motions for summary judgment and filed a comprehensive memorandum opinion which we quote in part:
“In connection with this matter of scope of review, the Court refers to the case of Pickman v. Weltmer, 191 Kan. 547, which was a case involving the Employment Security Board of Review of the State of Kansas. In the Pickman case the Court refers to the provisions of K. S. A. 44-709, which provides ‘. . . In any judicial proceeding under this section the finding of the Board as to facts if supported by evidence in the absence of fraud shall be conclusive, and the jurisdiction of said Court shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law. . . .’ In that case, while the statute referred to providing for judicial review goes into more detail than the one herein involved, it seems that the same criteria was set up by the Legislature and that the findings and holdings of an administrative tribunal, as far as judicial review under such statute, would be limited to an examination of the record and whether there was ample evidence to support the findings of fact made by the administrative board. Further, that the judicial review must be made in the light most favorable to the findings and holdings of the administrative tribunal where there is no suggestion of fraud.
“In the case before the Court, it would seem that the matter of judicial review herein would be limited as above indicated, and there is no reference made to fraud of any type. Therefore, in connection with these joint motions for summary judgment, this Court has carefully reviewed the record herein and under the guide lines as set forth in the case of Pickman v. Weltmer above referred to, this Court is of the opinion that there was ample evidence to support the findings of fact made by the Kansas Public Employees Retirement Board of Trustees, and these findings are herewith, by this reference, adopted and incorporated in this decision. It is the further order of this Court that the motion for summary judgment filed herein by the defendant should be and hereby is sustained, and the motion for summary judgment filed herein by the plaintiff is hereby overruled.”
The statute (K.S.A. 1965 Supp. 74-4916; L. 1965 CL 446 §4) governing the right to permanent total disability at the time of the injury reads:
“(3) (a) Upon the application of a member, or his appointing authority acting for him, a member who is in the employ of a participating employer and becomes totally and permanently disabled for duty in the employ of a participating employer, by reason of an accident may be retired by the board if, (A) the board finds the total and permanent disability to be the natural and proximate result of an accident causing personal injury or disease and arising out of and in the course of the member’s actual performance of his duties as an employee of a participating employer; . . .” (Emphasis supplied.)
The underscored language was materially amended by the 1967 legislature (K. S. A. 1970 Supp. 74-4916 [3] [a]) but it has no application here as the injury occurred in September of 1965.
The provision for review is to be found in K. S. A. 74-4909 (10). It reads:
“All decisions of the board as to questions of fact shall be final and conclusive on all persons except for the right of review as provided by law and except for fraud or such gross mistake of fact as to have an effect equivalent to fraud.”
The controlling issue before the Board of Trustees of the Kansas Public Employees Retirement System was, did the appellant’s injury arise “out of and in the course of the member’s [appellant’s] actual performance of his duties?”
The appellant first contends that—
“The conclusion made by the Kansas Public Employees Retirement Board that plaintiff Strader suffered an independent, non-precipated or non-aggravated cerebral artery aneurysm is contrary to the Board’s findings of the operative facts; the Board ignored the basic operative facts in arriving at its ultimate conclusion.”
Perhaps we should first, as did the trial court, consider the scope of judicial review on appeal from a finding of an administrative agency.
The statute covering this question (K. S. A. 74-4909 [10]) makes conclusive the Board of Trustees’ finding of fact except for the right of review (1) as provided by law; (2) fraud, or (3) gross mistake of fact as to have an effect equivalent to fraud.
We do not see that the scope of review as provided by the statute materially changes the rule long established by this court for review of findings made by administrative agencies. We have limited such review to arbitrary, capricious, unreasonable or unfair conduct. It may be said that any such conduct is a species of fraud — at least constructive fraud.
The rule for determining the scope of judicial review in cases such as we now have before us was announced in Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298, at page 547, where we stated:
“The foregoing is a finding of fact and under G. S. 1961 Supp., 44-709 (h), where a claimant seeks judicial review, findings of fact of the Board of Review are conclusive and may not be set aside by the district court in the absence of fraud where they are supported by evidence, and the jurisdiction of the court is confined to questions of law. (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550; Craig v. Kansas State Labor Commissioner, 154 Kan. 691, 121 P. 2d 203; Read v. Warkentin, Commissioner, 185 Kan. 286, 341 P. 2d 980; Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856.) Those cases embrace the rule that judicial review must be made in the light most favorable to the findings and holding of the administrative tribunal. (81 C. J. S., Social Security and Public Welfare, § 232, pp. 341-349.)
“A reading of the record of this appeal reveals there was ample evidence to support the findings of fact made by the administrative board. There is no suggéstion of fraud. Hence, the findings of the Board of Review were conclusive on appeal to the district court and in this court. . . .”
The above statement was followed in Chadwick v. Employment Security Board of Review, 192 Kan. 769, 390 P. 2d 1017 and Boeing Co. v. Kansas Employment Security Board of Review, 193 Kan. 287, 392 P. 2d 904.
It may also be noted that whether there is any evidence to support the Board of Trustees’ finding, or whether the findings are contrary to the evidence, presents a question of law which is always open to review by the courts. A finding without evidence, or contrary to the evidence, would also be such a gross mistake of fact as to have an effect equivalent to fraud as that phrase is used in the statute now under consideration.
We, therefore, examine the record for the purpose of determining whether there is substantial competent evidence to support the finding of the Board of Trustees that appellant’s disability did not arise out of and in the course of his employment.
The appellant contends that because he sustained his disability just after attempting to lift a 30 gallon container the injury arose out of and in the course of his employment as a matter of law under this court’s decisions in workmen’s compensation and accident insurance cases.
Without deciding whether or not the rule announced in workmen’s compensation cases, as to what constitutes injuries arising out of and in the course of employment, applies to claims arising under the Kansas Public Employees Retirement System but only so assuming for the purpose of our consideration here, we must conclude that the facts here presented would not compel a finding that the disability arose out of and in the course of employment, as a matter of law, under the rules announced in such cases.
The appellant relies chiefly on Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; McIver v. State Highway Commission, 198 Kan. 678, 426 P. 2d 118, and Williams v. Benefit Trust Life Ins. Co., 200 Kan. 51, 434 P. 2d 765.
The Pinkston case had the question of an injury arising out of employment under the Workmen’s Compensation Act where the employee had a fatal heart seizure while performing his duties. We stated:
“The phrase ‘arising out of’ employment points to the cause or origin of the accident and requires some causal connection between the injury and the employment. An injury arises out of employment if it arises out of the nature, conditions, obligations or incidents of employment. . . .” Emphasis supplied.) (p. 302.)
In the Pinkston case the medical testimony was that the additional physical exertion aggravated and participated his fatal seizure. The trial court’s finding of injury arising out of and in the course of employment was sustained.
In the McIver case we also had the question of whether a heart condition arose out of and in the course of employment under the Workmen’s Compensation Act. We held in paragraph 2 of the syllabus:
The aggravation or acceleration of a pre-existing heart condition under the stress of ordinary labor resulting in disability constitutes a ‘personal injury by accident arising out of and in the course of employment’ as that term is used in K. S. A. 44-501.”
In the McIver case the medical testimony was that the labor being performed was an aggravation of a pre-existing condition. The judgment in favor of the employee was affirmed.
The Williams case involved the question of what constituted an accidental injury under the terms of a policy insuring against accident. It was held in the first paragraph of the syllabus:
“Where an accidental injury activates or aggravates a dormant disease or physical infirmity, the accident may be said to have been the proximate cause of the resulting disability within tire usual provisions and ordinary meaning of a policy insuring against accident.”
Axiomatic in all of the cases is the requirement that before there can be an accident or injury arising out of and in the course of employment, there must be a causal connection between the injury and the employment or the employment must aggravate or accelerate a pre-existing condition.
We must look to the medical testimony for the nature of appellant’s injury and the effect of his labors upon his cerebral vascular disorder.
The force and sincerity of the argument made by able counsel for appellant leads us to set out the medical testimony at some length.
Appellant was examined by Dr. Foster May 17, 1966. He made his report from information obtained directly from appellant, from his wife who accompanied him and from a photostatic copy of his hospitalization. His written report reads in part:
“I felt that the current manifestations and acute illness of September 1965 in Mr. Strader were the results of a cerebral thrombosis, in the distribution of the right middle cerebral artery, located in the right internal capsule. The hospital record and course to date do not document a diagnosis of ruptured cerebral artery aneurysm. The almost certain cause is cerebral arteriosclerosis, with a left capsular hemiplegia. The information available to me does not document any specific contributing factor relating to his occupation which might be a significant provocative agent in contributing to its development. The patient reports that the environmental temperature was ‘high’ on September 9, 1965, which would not be a factor specifically related to his occupation. Depending upon the exact environmental temperature, the continuity of his physical activity, the frequency with which he ingested liquid beverages, and the degree of activity or inactivity immediately preceding the onset of his episode of left hemiplegia, one might speculate that dehydration may have been a factor in the genesis of the episode. It is most unusual for capsular hemiplegias of this type to be directly related to heavy manual exertion; much more commonly they come on during sleep or during periods of relative physical inactivity. . . .” (Emphasis supplied.)
Dr. McCarter reported as follows:
“Witb regard to the file of Harold J. Strader I have reviewed the following: (1) a letter written by J. T. Grimes, M. D., dated June 9, 1966, (2) form KPERS-38 completed by J. T. Grimes, M. D. on December 17, 1965, (3) the letter by D. Bernard Foster, M. D.
“It is apparent after reviewing the above information that Mr. Strader did suffer a cerebral vascular disorder while working at his usual occupation on September 9, 1965. It is my medical opinion however that the nature of the illness and the time of its onset was unrelated to either his physical activities or the climatic environment immediately preceding its onset.
“In my opinion Mr. Strader’s illness should not be considered a result of an accident arising out of the course of his employment.”
Dr. Grimes, appellant’s physician, made a second report at appellant’s request. He stated:
“As we discussed on October 3, 1967 at my office, there is a possibility of aggravation of a pre-existing but unknown weakness of one of Mr. Strader’s cerebral arteries. The weather was hot (103° F.) and other city employees stated that some of the garbage containers were full and relatively heavy. This is not to say that the stroke could not have occurred at any time of the day or night regardless of temperature or work load. I do not know the answer to that question.”
It is clear from the medical testimony in this case, and the medical testimony in the cases cited, that while physical exertion may increase the burden placed on the heart, it has little, if any, effect on the blood vessels of the brain.
We are forced to conclude that there was ample evidence to support the finding of the Board of Trustees that the disability did not arise out of and in the course of appellant’s actual performance of his duties.
The appellant complains that he did not have a complete hearing because the procedure afforded a claimant coming before the Kansas Public Employees Retirement Board does not provide for the opportunity of cross-examination nor for the subpoenaing of witnesses.
The record does not bear out the contention that appellant did not have a complete and satisfactory hearing.
On August 23, 1967, he wrote to the Board of Trustees stating:
“I sincerely hope that a hearing on this matter might be put off at least until some time in October. I’ll try and make myself available whenever the Board would want to hear it. I certainly hope that you can accommodate me by a later date for a hearing than September 7th.
“Any.documentary evidence which I will want to submit I will do in advance of any hearing date. So far I have not been able to talk to Dr. Grimes nor to secure any other testimony.”
The hearing was held on October 26, 1967, at which time appellant took the witness stand and was examined by his attorney. Appellants attorney made his argument. The chairman of the Board of Trustees then asked if there was any other evidence to be offered in appellant’s behalf. Appellant’s attorney asked the Board of Trustees to consider the latest report of October 6, 1967, from Dr. Grimes of Lyons, Kansas, and requested that this be considered in addition to the oral testimony in the case. Dr. Grimes’ report of October 6, 1967, is quoted herein. The reports of the other doctors mentioned and other records had been previously filed with the Board of Trustees.
There is no indication that the appellant intended to present evidence in any form other than oral testimony on his own behalf, written medical reports from his physician and oral argument by his counsel. The record indicates that at the time of the hearing there was no objection to the hearing procedure and that at the close of the hearing counsel for the appellant conceded that everything which he felt should be presented was before the Board of Trustees.
In the two points which the appellant has raised regarding the fairness of the hearing — lack of power to subpoena witnesses and the fact that no cross-examination took place — appellant would appear to be contending that without a trial de novo in the district court he is denied due process of law.
The appellant got everything before the Board of Trustees that he requested. He did not suggest cross-examination of the doctors who filed the reports. Two of them were in the city of Topeka where the hearing was being held and subject to call. The other, Dr. Grimes, was appellant’s own doctor. He was not hurt by the absence of statutory procedure for subpoenaing witnesses.
It will be time enough for this court to pass upon the due process of law question when it is raised by someone who is hurt.
Constitutionality of legislation or due process before an administrative body will be considered by the courts only where necessarily involved and such constitutionality may not be questioned by one not affected by its operation. (Stone v. City of Wichita, 145 Kan. 377, 380, 65 P. 2d 595; Marks v. Frantz, 179 Kan. 638, 643, 298 P. 2d 316; State v. Consumers Warehouse Market, 183 Kan. 502, 511, 329 P. 2d 638.)
We have not overlooked the statement in appellant’s petition—
“In addition, the plaintiff states that justice requires that plaintiff be afforded an independent and judicial review which would include an opportunity to put on additional evidence to show more clearly his entitlement to the total disability benefit.”
We would suggest that a party appearing before an administrative body cannot produce his evidence piecemeal. He cannot produce part of his evidence before an administrative agency and then produce the balance on judicial review. He must produce all of his evidence on the merits before the administrative body or show a good faith effort to do so.
The judgment is affirmed.
APPROVED BY TPIE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
The action was to recover damages for personal injuries sustained in an automobile collision on Grant Avenue, in Junction City.
At the close of all the evidence, and over the objection of the defendant, the district court sustained the plaintiff’s motion for a directed verdict on the issue of liability, and instructed the jury the defendant was negligent as a matter of law. The verdict was for the plaintiff in the amount of $20,000, and the defendant has appealed. We reverse on the ground the defendant’s liability was a question of fact to be determined by the jury.
In the late afternoon on June 30, 1966, the plaintiff was driving in a westerly direction on Grant Avenue in Junction City from her home in Fort Riley, to attend the grand opening of Gibson’s Store which was to the south of and fronted on Grant Avenue. The ave nue is a four lane concrete street with a medial strip, connecting Fort Riley with Junction City. The plaintiff had proceeded in the left lane of traffic for several blocks and came to a stop in the inside or left lane of traffic behind another car which had stopped to make a left turn into Gibson s parking lot. She had the left turn signal on, which continued to operate. At that time, there was heavy traffic in the two easterly lanes of Grant Avenue which she had to cross.
The defendant was also proceeding in a westerly direction on Grant Avenue in the inside or left lane of traffic. He was alone in his car, and he had about a half mile of clear vision down the street. There were other automobiles ahead of him, proceeding in the same direction, but he saw none of them stopped. He was traveling about 35 miles per hour, when the sun suddenly flashed into his eyes, reflecting off the hood of his freshly washed and waxed automobile and blinded him so that he did not see the plaintiff’s car. He drove into the rear of the plaintiff’s car at about the same speed he had been previously traveling.
The defendant testified that he was a sergeant in the United States Army and was stationed at Fort Riley; that he was not on duty on June 30, 1966, because it was payday for everyone; that he owned a 1956 Chevrolet automobile which he washed, waxed and highly polished that day; that he had worked about three hours on his car that afternoon cleaning and polishing it; that he started into Junction City where he planned to have dinner and attend a movie; that his automobile was proceeding westerly on Grant Avenue into Junction City; that he had been stationed at Fort Riley for about five days, having returned from Vietnam, and that he was not aware of the opening of the new Gibson Store that day, or that it was located south of Grant Avenue, and that there was other traffic in the two westbound lanes, which was proceeding about the same speed as he was traveling. The following questions were asked and answered by him on direct examination:
“Q. Now, Sergeant, as you approached the place where this accident occurred, did anything occur to impair your vision of the street?
“A. Yes, sir. On the way in, the sun had been slightly in my eyes, but not enough to really bother me, and then just prior to the accident, the sun started really reflecting off the hood of my car, and it got me in the eyes.
“Q. Did this blind you?
“A. Yes, sir, it did.
“Q. What did you do when this happened?
“A. Took my foot off the gas and down-shifted into second gear.
“Q. And what were you intending to do with your car?
“A. I was intending to stop and try to get out of the left lane where I could get out of the road.
“Q. Was there any other traffic that kept you from pulling into that lane?
“A. Yes, sir, the right-hand lane was completely full.
“Q. Now, with the sun in your eyes, tell the jury whether you saw Mrs. Diaz’s car before the accident.
“A. I never saw it.
“Q. And then what occurred?
“A. I had just gotten my foot off the clutch after shifting into second gear and ran into the back of her car.”
There was no evidence contrary to that of the defendant on the subject of the blinding nature of the sun’s reflection into his eyes prior to and at the moment of the impact, and if the jury believed the defendant’s testimony, it could have found that on account of being suddenly blinded by the sun, he did not negligently operate his automobile.
It may be said, generally speaking, the “blinding light” rule as applied by this court is that ordinarily a motorist must correlate his ability to stop his vehicle within the distance objects can be seen ahead; but the rule is subject to qualification and exception where there is a sudden change in the motorist’s situation not caused by his own failure or neglect, and that where he is suddenly blinded so that he has no opportunity to stop his vehicle or slacken his speed, he would not be guilty of negligence as a matter of law if he collides with something on the highway. (Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438; Conwill v. Fairmount Creamery Co., 136 Kan. 861, 18 P. 2d 193; Towell v. Staley, 161 Kan. 127, 166 P. 2d 699; Newman v. Case, 196 Kan. 689, 413 P. 2d 1013; Schenck v. Thompson, 201 Kan. 608, 616, 617, 443 P. 2d 298.) In Nagata v. Kahului Dev. Co., 49 Haw. 378, 420 P. 2d 103, it was said that the standard of care has been generally held to be the same whether the impairment of vision is caused by sunlight or oncoming headlights. (Anno: 22 A. L. R. 2d 292,408.)
In passing upon the correctness of the district court’s ruling that the defendant was negligent as a matter of law, it is to be remembered that all of the testimony favorable to him, together with all reasonable inferences to be drawn therefrom, must be accepted as true, and all unfavorable testimony be disregarded. The rule is stated in Deemer v. Reichart, 195 Kan. 232, 404 P. 2d 174, where this court said:
. . [I]t may be stated very generally the question of contributory negligence is ordinarily one of fact to be determined by the jury, it being for the jury to determine, considering the special circumstances of each particular case, whether the conduct of the party was such as would be expected by a reasonably careful person. In determining whether as a matter of law a plaintiff is guilty of contributory negligence precluding his recovery, all of the testimony favorable to the plaintiff together with all reasonable inferences and deductions to be drawn therefrom must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law. (See Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721.)” (l. c. 241.)
The jury had before it testimony of the blinding effect of the sun’s reflection from the hood of the defendant’s freshly waxed and polished automobile, which, if accepted as true, would have relieved him of negligence. In Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793, this court said:
“. . . This is the kind of an action in which each party is entitled to a trial by jury as a matter of right. Such an action should not he converted into a trial hy the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged had been established. Before the court should make such a holding the evidence should be so clear that reasonable minds considering it could have but one opinion; namely, that the party was negligent. . . (1. c. 431.)
Had the question of the defendant’s negligence been presented to the jury, it may or may not have accepted his testimony as to the blinding effect of the sun’s reflection. Be that as it may, we are of the opinion the evidence presented a situation where reasonable minds might reach different conclusions as to whether the defendant was negligent, and if so, whether his negligence was the proximate cause of the injuries complained of. The question was clearly one to be presented to a jury, and not determined by the court as a matter of law.
Other inconsequential points have been raised, but in view of the conclusion just announced, it is unnecessary to discuss them. The judgment of the district court is reversed with directions to sustain the defendant’s motion for a new trial, and proceed in accordance with the views expressed in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This action was instituted by appellant Wood River Oil & Refining Co., Inc., to quiet its title to an oil and gas lease covering certain described real property in Rooks County, Kansas, and to construe a will. All appellees, defendants in the original action, filed cross petitions seeking to establish interests in the property and to quiet their titles thereto.
The following facts gave rise to this action. J. E. Atherton, also known as James E. Atherton, died testate on July 21, 1925, owning considerable real estate in Rooks county, Kansas. His will was admitted to probate in Rooks county on August 4, 1925. By his will, J. E. Atherton devised all of his property to his wife, Mary L. Atherton, for life. The testator then by identical provisions in his will provided for the disposition of seven separate pieces of real property, including that involved in this action, to four of his children and three of his grandchildren. In this action we are concerned primarily with the fourth paragraph of the will, which reads as follows:
“Fourth: I give, devise and bequeath to my son, Orian Louis Atherton of Alva, Oklahoma, to be held by him and for his use, during his natural life time, provided he pays the taxes as they become due and payable on the same, the following described land [describing it]. After the death of my son, the said Orian Louis Atherton, it is my will and I hereby direct that the last above described real estate shall descend to the children of his body and that the same be held by them and for their use for a period of twenty (20) years from the time of the death of the said Orian Louis Atherton, after which time the said children of my son, Orian Louis Atherton, shall come into full possession of the said described real estate and may hold the same or dispose thereof in any manner they wish.”
The widow, Mary L. Atherton, on August 4, 1925, elected to take under decedent’s will, and the estate was duly administered and closed many years ago. The will and the order admitting it to probate have never been contested in any manner. When testator died, his son Orian Louis had six children, Lillie May Atherton Barkley, Orian Louis Atherton, Jr., Julia Stallings, Claudia I. Sanders, Mary L. Dunlap, and Nellie Capreau. Lillie May Barkley died intestate August 10, 1934, leaving as her sole heir her husband, M. W. Patrick Barkley. On January 5,1949, Orian Louis Atherton, widower, executed and delivered to plaintiff (appellant) an oil and gas lease covering the land involved in this action, which lease was duly recorded on January 26, 1949. On January 18, 1949, Orian Louis Atherton executed and delivered to Ed. E. Madden an oil and gas lease on the same land, which was recorded the same day, as also were leases to Madden from all the living children of Orian Louis Atherton together with their spouses, and a lease executed by O. L. Atherton as trustee for his children yet unborn covering this land. Orian Louis Atherton died on May 12, 1949, leaving the five children above named surviving him. This action was filed on June 10, 1949, against Madden and co-owners of his lease, Milo Sidwell, C-G Drilling Company, Inc., and C. F. Gleason, the five children of O. L. Atherton then living and their spouses, and M. W. Patrick Barkley, husband of the deceased daughter and her sole heir. Barkley, intervenor, filed an answer and cross petition claiming title to one-sixth interest in the real estate involved by inheritance from his wife. The case was tried on September 17, 1949, and on November 26,1949, the trial court entered its judgment holding that under the will of James E. Atherton, Orian Louis Atherton was devised a life estate with a vested remainder in his six children in being at the time of the death of James E. Atherton; quieted the title to an undivided one-sixth interest in the property in each of the five children of Orian Louis Atherton then in being, subject to the oil and gas leases executed by them in favor of Ed. F. Madden and his assigns; and quieted title to an undivided one-sixth interest in said property in M. W. Patrick Barkley free of any oil and gas lease here involved. This appeal followed.
Error is charged in failure of the court to determine that under the will of James E. Atherton, a fee tail estate in the land in question was devised to Orian Louis Atherton; that the oil and gas lease executed by Orian Louis Atherton, the tenant in tail, in favor of appellant is binding upon the issue in tail, the persons who, on the death of Orian Louis Atherton, came into possession of the real property covered by said lease; and in holding that neither the case of Atherton v. Ritchie, et al., nor the case of Lynd v. Hillman, et al., both tried in the district court of Rooks county, is res judicata of any of the material facts and issues in this case.
Defendant appellees and cross-appellants, with the exception of the Barkleys, charge that the lower court erred in holding the case of Atherton v. Ritchie, et al., was not res judicata; in holding that the interests of the children of the body of Orian Louis Atherton by the will of James E. Atherton vested on the death of James E. Atherton in those of the aforesaid children living at that time; and in holding that M. W. Patrick Barkley was the owner of an undivided one-sixth interest in the land in question.
Determination of this lawsuit involves the interpretation and construction of paragraph four of the J. E. Atherton will. It is elementary that the cardinal consideration in construing a will is the intention of the testator. The test of that intention is the language contained in the four corners of the instrument, and circumstances surrounding its execution if they are needed to clarify the testator’s true intent and purpose. If the testator’s intention can be reasonably, ascertained, it will be judicially declared and executed unless contrary to law or public policy. (In re Estate of Works, 168 Kan. 539, 213 P. 2d 998; In re Estate of Chevalier, 167 Kan. 67, 204 P. 2d 748; In re Estate of Thompson, 161 Kan. 641, 171 P. 2d 294; Shannep v. Strong, 160 Kan. 206, 160 P. 2d 683.) With these principles in mind we may now turn to the instrument that is the subject matter of this suit.
Our first inquiry is as to the nature and character of the estate taken by Orian Louis Atherton. An examination of the material portion of the first part of paragraph four will be helpful. Deleting unimportant words, that part reads:
“I give, devise and bequeath to my son ... to be held by him and for his use, during his natural life time . . .”
These are words of limitation. They clearly indicate that Orian Louis was to enjoy only the use of the property during his lifetime. The controlling portion of paragraph four, however, is the last part thereof beginning with “After the death of my son” and may be paraphrased as follows:
the said real estate shall descend to the children of his body and the same shall be held by them and for their use for a period of twenty years from the demise of Orian Louis Atherton, after which time the said children shall come into full possession of the said real estate and may hold the same or dispose thereof in any manner they wish.
It is conceded by all parties that the testator’s attempt to delay his grandchildren’s enjoyment of their interest for twenty years is ineffective because no defeasance on breach is provided. However, the language attempting to delay the grandchildren’s full enjoyment may be considered in determining the intention of the testator. The void provision has nothing to do with the vesting of the estate; it refers only to possession. It is to be noted that testator’s attempted restriction in no way limited the manner of the grand children’s holding or the character of their estate. They were granted absolute and complete power of disposition. The language of the instrument under consideration compels us to conclude that the ultimate fee to the land in question was in the children of Orian Louis, and that the latter took only a life estate.
The appellants contend, however, that paragraph four creates an estate tail. An acceptable definition of an estate tail is to be found in Gardner v. Anderson, Trustee, 116 Kan. 431, Syl. ¶ 3, 227 Pac. 743:
“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 devisee, and in which the regular and general succession of statutory heirs at law is cut off.”
For other definitions of estates tail see Coleman v. Shoemaker, 147 Kan. 689, 78 P. 2d 905, and cases cited therein. Where there is an estate tail the line of succession continues from generation to generation until the line of inheritable succession is broken by conveyance or failure of issue. In this case J. E. Atherton, by placing the fee in his grandchildren, severed the line of inheritable succession at its inception. His will provided the grandchildren were to come into full possession and might dispose of the property in any manner they wished.
A devise similar to that in paragraph four was before the court in Brann v. Hall, 141 Kan. 749, 750, 43 P. 2d 229. In that case the devise was in the following words:
“I hereby give and devise unto my son ... a life estate only . . . After the death of my said son ... I give and devise unto the lawfully begotten issue of my son . . . then living, all of the said real estate to take share and share alike, and to their heirs and assigns forever.”
The court’s comment on the above devise was as follows:
“The testator did, in part, select a fixed line of inheritable succession limited to the issue of the body of his devisee, but by express inclusion, he then provided that the heirs and assigns of the devisee were to take, and thus the regular and general succession of the statutory heirs at law was not cut off. Under the terms of the devise, the line of inheritable succession in the selected line could not continue so long as posterity endures in the regular course of descent, for the testator has provided otherwise, and for that reason no estate tail in the first taker was created. The result is that the devisees named as taking life estates took life estates and no more, the remainders going to the issue and the heirs and assigns of such issue of the respectively named devisees of the life estates.”
The language above quoted applies with equal force to the case at bar. In the Brann case, as in the instant case, the line of inheritable succession was broken by giving grandchildren complete power of disposition.
Fee tail estates were recognized in Kansas prior to 1939 when our legislature saw fit to abolish them. (G. S. 1947 Supp. 58-502.) For the purpose of clarity it may be said that in an instrument which became operative prior to the enactment of the mentioned statute, unless it clearly appears that an estate tail is intended, the construction will be otherwise.
Having concluded that the devise in question did not create an estate tail but created a life estate with remainder over to the children of the life tenant, the next inquiry is one of classifying the remainder. Again we must look to the intention of the testator. Did he intend that the remainder vest at his demise, or at the time of his son’s death? Generally, where an estate vests in a class certain but subject to a preceding life tenancy, the conveyance is held to pass a present vested interest in the remaindermen unless a contrary intent clearly appears. In the recent case of In re Estate of Works, supra, and cases cited therein, we said:
“The law favors vested rather than contingent remainders. If there is doubt whether the testator intended a remainder should vest at his death or at the termination of a life estate the doubt will be resolved in favor of the earlier vesting.” And “In order to create a contingent remainder the intention so to do must be expressed in words so plain that no room for judicial construction remains.” (Syl. ¶¶[ 3 and 4.)
No contrary intention appearing, it must be held that the remainder estate vested at testator’s death. Appellee M. W. Patrick Barkley, therefore, takes an undivided one-sixth interest in the property as the sole heir of his deceased wife who was a daughter of Orian Louis Atherton. The interest passing to the grandchildren may be classified as a vested remainder subject to open to let in after born children of their father. (Faris v. Nickel, 152 Kan. 652, 107 P. 2d 721).
Appellants contend the case of Meyer v. Meyer, 149 Kan. 23, 86 P. 2d 493, controls the instant case. The Meyer case is not authority for the decision that a fee tail estate was created in Orian Louis Atherton. In the Meyer case, a life estate was created in Henry Meyer, and at his death the will devised the real estate in fee simple to the “heirs of his body.” In the instant case, a life estate was created in Orian Louis Atherton and after his death, the property was to descend to the children of his body. Had the testator stopped at this point, it undoubtedly would have created an estate tail. However, the fourth paragraph of the will continues with the following "words: “and that the same be held by them and for their use for a period of twenty years from the time of the death of the said Orian Louis Atherton, after which time the said children of my son, Orian Louis Atherton, shall come into full possession of the said described real estate and may hold the same or dispose thereof in any manner they wish.” (Emphasis supplied.) It would appear that this court cannot ignore or misinterpret the effect of the italicized portion of paragraph four, to wit: “and may hold the same or dispose thereof in any manner they wish.” Thus it is clear that the controlling words lead this court to determine that a fee tail estate was not created in this case as it was created in the Meyer case by the words “heirs of his body.”
The contention next raised is that certain proceedings had in Rooks County District Court are res judicata of the material facts and issues in the case at bar. Rooks County District Court case No. 7843 was a case involving Orian Louis Atherton and the living heirs of his body, tried in 1944. It arose through an application for the appointment of a trustee for the unknown and unborn contingent remainder-men, to the end that a valid oil and gas lease might be executed on the property involved in this litigation. In that case no construction of the J. E. Atherton will was sought or made. Rooks County District Court case No. 7807, while involving a provision of the J. E. Atherton will very similar to paragraph four, was not between the same parties as the case at bar, nor was the same land involved.. The elements of the doctrine of res judicata are set out in Atchison & Eastern Bridge Co. v. Atchison County Comm’rs, 150 Kan. 24 (Syl. ¶ 5), 91 P. 2d 34:
“An issue is res judicata only when the following conditions exist: Identity in the things sued for, identity of the cause of action, identity of persons and parties to the action, and identity in the quality of the persons for or against whom the claim is made.”
It can readily be seen that neither Rooks County District Court case No. 7843 nor case No. 7807 meets this test.
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from rulings on a motion to strike and on a special demurrer and a general demurrer lodged against a petition which we may designate as one instituted by the beneficiary of an express trust to enforce the trust.
Plaintiff’s amended petition filed December 1, 1947, contains twenty-two numbered paragraphs and her prayer for relief. Summarized, the allegations of the several paragraphs state: 1. The residence of plaintiff. 2. The residence of defendant Robert L. Childers. 3. That defendants The First National Bank in Wichita and Edith K. Mahaffey were trustees appointed and named in “E. K. Childers Trust” later referred to. 4. That defendants Robert L. Childers and George R. Blake were the duly appointed and acting executors of the estate of Ethel K. Childers. 5. That Ethel K. Childers died at Arkansas City, Kan., on June 23,1946. 6. That plaintiff was the owner of an undivided one-half interest in and to the trust estate created and established by E. K. Childers in her lifetime, sometimes called the “E. K. Childers Trust.” 7. That plaintiff was born in Jackson County, Missouri, on May 24, 1924, her mother’s name being Kathryn Turner. 8. In this paragraph plaintiff pleaded at length that Ethel K. Childers orally agreed with Kathryn Turner that if permitted to adopt plaintiff, she would maintain plaintiff and if plaintiff remained with her until plaintiff should become grown or married, and would render love, affection, devo tion, obedience and services to Ethel K. Childers, at her death she would leave plaintiff an undivided one-half of all property she owned at her death; that she intended soon to adopt a boy, and she contemplated the establishment of a trust for the use of plaintiff and of the boy, and that in the event she created a trust into which she put in all or any part of her funds she would provide in such trust that plaintiff should have and be the beneficiary of an undivided one-half interest therein and that she would not by will or otherwise make any disposition of her property which would deny plaintiff an equal undivided one-half interest therein. 9. That on July 1, 1924, under proceedings in Jackson County, Missouri, Ethel K. Childers adopted plaintiff and plaintiff’s name was changed to Dorothy Childers. 10. That plaintiff carried out and performed all things required of her under paragraph 9. 11. That Ethel K. Childers adopted Robert L. Childers on October —, 1925. 12. That Ethel K. Childers thereafter confirmed the oral agreement by creating an irrevocable trust, designated as “E. K. Childers Trust” of which the above-named bank and Edith K. Mahaffey were trustees and into which she placed a large amount of property, the exact amount being unknown to plaintiff, and in which she named plaintiff as one of the beneficiaries, which trust was created in writing; that plaintiff had no copy but the original document was in the possession of the executors or trustees above named; that the trust was created about 1932, and thereafter Mrs. Childers on numerous occasions confirmed and recognized her oral agreements and her statements that she was carrying it out, and that Robert L. Childers was named as the other beneficiary. 13. That Robert L. Childers for many years had notice of the oral understandings and of the creation of the trust and that he and the plaintiff were beneficiaries' thereof. 14. That Robert L. Childers and the trustees claimed that plaintiff had no interest in the trust and was not a beneficiary thereof and that Robert L. Childers was the owner of and entitled to the interest of the plaintiff therein. 15. That the trust instrument had never been filed of record and plaintiff as a beneficiary thereof was entitled to have the original trust instrument brought into court and made a matter of record and her interest, and the interest of Robert L. Childers, established of record. 16. That notwithstanding the oral agreements at the time of her death, Ethel K. Childers left a last will and testament which had been duly admitted to probate in the probate court of Cowley County, Kansas, and the executors above named appointed. 17. That under the second paragraph of the will of Ethel K. Childers she stated it was not her intention to dispose of by will any trust created by her as it would be no part of her estate but if it should be held to be part of her estate, it should be held and disposed of as provided in the trust agreement. Provision concerning taxes is not of present importance. 18. Refers to another paragraph of the will, and that in substance it provided for the creation of a testamentary trust of the residue of the estate, and that if the income to Robert L. Childers under the trust of 1932 did not amount to $7,500 per annum it was to be supplemented from the testamentary trust. 19. That in the administration of the Childers estate it was necessary to determine whether the trust estate created about 1932 was a part of her estate subject to administration, and in making final distribution of that estate to find and determine the interest of plaintiff in the 1932 trust in order to determine whether Robert L. Childers income therefrom equals $7,500 per year. 20. That the 1932 trust estate, and the additions and accumulations thereto were no part of the estate of Ethel K. Childers in process of administration, and that the estate so in administration had no legal or equitable title or interest therein and that the executors claim that it was. 21. That by reason of the will of Ethel K. Childers and the claim of the executors it was necessary and proper that the executors be made parties in order that a final judgment may be entered, binding all parties. 22. That plaintiff had filed a claim in the probate court but due to uncertainty of the jurisdiction of the probate court to decide and determine the questions involved herein, and to make its judgment binding on all parties, she brought the present action in the district court as a court of original general jurisdiction. The prayer was for judgment establishing the oral agreement, requiring the defendants to bring into. court and file the “E. K. Childers” trust agreement, establishing plaintiff to be the owner of an equal undivided one-half interest in and to the trust, and for all proper relief.
On the same day, the trustees of the E. K. Childers trust filed a motion to strike all of the allegations of paragraphs 7, 8, 9, 10 and 11, and certain language in paragraphs 12 and 13 concerning recognition of the alleged oral agreement, on the general ground that the allegations related to an oral agreement which plaintiff sought to enforce; that the petition disclosed that Ethel K. Childers died testate, her will had been admitted to probate, her estate was in process of administration and plaintiff had filed her claim, and that the district court was without jurisdiction; that the allegations were not relevant to the cause of action pleaded to establish plaintiff’s claimed interest in the trust estate; that the plaintiff alleged an irrevocable trust was created, and establishment of plaintiff’s rights did not depend on establishment of the alleged oral agreement. They moved further to strike from paragraphs 17 and 18 references to the provisions of the will of Ethel K. Childers for the reason they were wholy irrelevant to any cause of action pleaded and because no provision of the will could have any affect on the alleged irrevocable trust nor on the determination of plaintiff’s claim to a beneficial interest therein. They also moved to strike all of' paragraph 19 as set out above, as being irrelevant for the reason those allegations were to the effect that certain determinations should be made in the administration of the estate of Ethel K. Childers and such determinations could only be made by the probate court wherein the estate was in process of administration.
The trustees’ special demurrer was lodged against the allegations for the establishment and enforcement of the oral agreement that Ethel K. Childers would leave plaintiff one-half of her estate and a beneficiary to an undivided one-half of any trust she might create, for the reason the estate of Ethel K. Childers was in process of administration and the probate court had exclusive jurisdiction of any such cause of action. As a further ground the trustees demurred that the allegations in paragraphs 7 to 12, inclusive, were insufficient to state a cause of action against them.
The trustees’ general demurrer was on the grounds that the court had no jurisdiction of the subject of the action; that two or more causes of action were improperly joined and that facts sufficient to state a cause of action were not alleged.
■ The motion to strike was denied and the two demurrers were overruled, and the trustees perfected their appeal to this court, error being specified on the several rulings.
In their brief appellants present as the questions involved: 1. Whether the district court has original jurisdiction of a cause of action to enforce an agreement by a person since deceased to give or leave the plaintiff a portion of her property. 2. Whether the district court has original jurisdiction of a cause of action to establish a beneficial interest in an irrevocable trust created by a decedent in her lifetime if such a cause of action depends on the enforcement of such an agreement. 3. May a cause of action against the executors to enforce such an agreement be joined with a cause of action against the trustees of an irrevocable trust created by the decedent in her lifetime to establish a beneficial interest in such a trust? 4. Does a petition which intermingles allegations tending to state a cause of action for the enforcement of the agreement and also tending to state an action for establishment of a beneficial interest in an irrevocable trust alleged to be no part of the decedent’s estate, .state a cause of action upon a distinct and definite theory? These questions are discussed at some length in appellants’ brief. In her brief, the appellee, with some variation in statement thereof, discusses the same questions.
The question of the respective jurisdictions of the district and probate courts has been before this court during the years and especially since the enactment of the probate code in 1939. We shall make no general review of our decisions on that question, as it seems unnecessary to a disposition of this appeal.
We approach consideration of the questions with the premise that in filing a petition in the district court the plaintiff intended to state a cause of action concerning a matter over which that court had jurisdiction of the subject of the action and a competency to render judgment with respect to it, and not otherwise.
Although the basic question involved therein was different than the one now before us, in In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879, may be found a list of cases wherein the effort of the petitioner was to get something out of the estate, including not only demands of creditors but of those asserting some special claim to all or a portion of the estate either as heirs or under a will or under an alleged contract with the decedent, in which event the demand was clearly incident to the administration of the estate and necessarily to be determined before a final distribution of assets could be made, and in which cases the original, exclusive jurisdiction was held to be in the probate court. In the recent case of In re Estate of West, 169 Kan. 447, 219 P. 2d 418, decided June 10, 1950, where the effort was to compel a full administration and bring assets into the estate for administration, the Thompson case, supra, and others since decided were reviewed. All of the cases lay down the rule that an effort by a petitioner to get something out of the estate by reason of some alleged contract between the decedent and the peti tioner presents a controversy, the determination of which comes within the original, exclusive jurisdiction of the probate court.
In the light of the above, we examine the allegations sought to be stricken. The allegations of paragraph 7 are obviously a prelude to the allegations of paragraph 8. The latter paragraph pleads unmistakably an agreement by Ethel K. Childers with the mother of plaintiff that, if permitted to adopt plaintiff under the conditions alleged, she would leave to plaintiff an equal undivided one-half interest in and to all property owned by her at her death, and if she established a trust she would provide plaintiff would be a beneficiary of an equal undivided one-half interest and that she would not by will, trust agreement or otherwise, make any disposition of her property which would deny plaintiff an undivided equal one-half interest therein. Under our decisions if Ethel K. Childers made the agreement and died without performing it, the plaintiff must assert her claim in the probate court and may not in the first instance assert it in the district court. For that reason the allegations of paragraphs 7, 8, 9, 10 and 11 and certain language in paragraph's 12 and 13, concerning recognition of the alleged oral agreement, are immaterial to any cause that may be stated in the district court and should have been stricken. Insofar as paragraphs 17, 18 and 19 are concerned, it is clear they refer only to the will of Ethel K. Childers and its provisions and it is also clear from them and other paragraphs that her estate is in process of administration in the probate court. It is to be borne in mind that the present action is in no sense one attempting to bring assets held by a third person into the possession of the executors for administration and we need not discuss the question of jurisdiction in such a case. These last-mentioned allegations are immaterial to any cause of action cognizable by the district court and should have been stricken.
The special demurrer raised essentially the same questions as were included in the motion to strike. For the reasons stated, it should have been sustained.
With respect to the general demurrer we note the following: Absent the allegations which should have been stricken it is alleged, in substance, that Ethel K. Childers created an irrevocable trust, making the bank and Mrs. Mahaffey trustees, in which trust she placed a large amount of property, and in which she named plaintiff as one of the beneficiaries; that plaintiff had no copy of the trust instrument nor had it been made a matter of record; that Robert L. Childers was also named as a beneficiary and that he and the trustees now assert that plaintiff is not a beneficiary and has no interest in the trust; that the trust was no part of the estate of Ethel K. Childers now pending in the probate court; that plaintiff as a beneficiary was entitled to have the original trust instrument brought into court, made a public record and her interest established, and absent establishing the oral agreements, that is what she prayed should be done. The trust alleged was one created in the lifetime of Ethel K. Childers, and eliminating all questions of oral agreements between Ethel K. Childers and plaintiff’s mother, the district court had jurisdiction to determine whether or not it was so established, of what it consisted, and who were the beneficiaries. In view of what has been held respecting striking of certain allegations, it follows that only one cause of action was stated; that there was no confusion of theories, and facts sufficient to state a cause of action as above outlined were alleged.
The rulings of the trial court on the motion to strike and on the' special demurrer are reversed, and the ruling on the general demurrer is affirmed, and the cause of action is remanded to the trial court to sustain the motion to strike and the special demurrer and for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action by the state on the relation of the county attorney of Jewell county to restrain the attachment of territory to a rural high-school district. Defendants’ demurrer to plaintiff’s petition was sustained. Plaintiff has appealed.
After the formal allegations, the petition alleged that the Mont-rose Rural High School District through its recognized agents caused the circulation of a petition through the territory described, directed to the Montrose Rural High School Board, requesting the attach ment of the described territory to the district; that the petition further requested the board to obtain the consent of the superintendent of public instruction of Jewell county to the attachment; that the territory described was adjacent to the district and was all located in Jewell county. Tire petition then alleged there were 110 qualified electors in the district; that the defendant Montrose Rural High School District through its agents procured upon the petition the signatures of sixty of the qualified electors residing within the limits of the described territory and on April 7, 1948, the Montrose Rural High' School District endorsed upon the petition its written approval, as follows:
“Approval. The Montrose Rural High School District Board hereby finds that the above petition complies with the provisions of the above mentioned law and that it is signed by a majority of the electors of the above described territory and approves the above petition and presents it to the County Superintendent of Public Instruction for his consideration and ask his consent. Dated on April 7th, 1948.
Montrose Rural High School Board
By Verne Parsons, Treas.
Donald K. Bangs, Clerk
G. L. Dempsey, Pres. Director.”
And that the petition with the approval attached was on April 8, 1948, filed with the superintendent of public instruction. The petition then alleged that subsequent to the circulation of the petition and after sixty names of electors had been procured thereon there was circulated a written withdrawal of names from the original petition; it was signed by twenty-two of the persons who had originally signed the petition for the attachment of the adjacent territory ; that it was filed with the county superintendent; that on April 12, 1948, the county superintendent endorsed upon the original petition his consent and proceeded to publish the written notice of attachment, as provided by law; that he refused to give any force to the withdrawal of signatures mentioned and thereafter an appeal was taken to the board of county commissioners; that upon the hearing of the appeal the board refused to give any effect to the withdrawal of the signatures; that at the commencement of the hearing before the board there was presented to it a petition signed by seventy-seven of the 110 qualified electors in the territory requesting that the county commissioners refuse to attach the territory to the district and stating that the signers refused their consent to the attachment. This petition was filed at that time with the county clerk and was certified to as to the genuineness of signatures; that the board of county commissioners failed to give any force to this petition; that on August 11,1948, the board of county commissioners denied all relief upon the appeal and ordered the adjacent territory to be attached to the Montrose Rural High School District and declared it was subject to taxation as part of the district; that the defendants were threatening to treat the adjacent territory as a part of the district.
The prayer was that attachment of the territory to the district be declared null and void and the proper officials, naming them, be enjoined from treating this territory as part of the district or placing it on the tax rolls.
There was a second cause of action alleging fraud in the procurement of signatures to the original petition. On account of what transpired later, however, this part of the petition will not be set out.
The defendants demurred to the petition as a whole and to each cause of action because they did not state facts sufficient to constitute a cause of action and because the court did not have jurisdiction of the subject matter of the action. The court on December 23,1949, sustained the demurrer and ordered the dismissal of the action.
The plaintiff appealed from so much of the judgment as sustained the demurrer of the defendants to the plaintiff’s first cause of action.
The specifications of error are that the court erred in sustaining defendants’ demurrer to the first cause of action and in entering judgment in favor of the defendants and in dismissing the action at the cost of plaintiff.
The pertinent statute is G. S. 1935, 72-3514. That statute provides, as follows:
“Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high-school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction: (Provided, That an appeal may be taken from the decision of the county superintendent to the board of county commissioners, if such property proposed to be attached is within one county, and to the state superintendent of public instruction if same be within two or more counties, whose- respective decision in either case will be final. A notice of such appeal shall be served upon the county superintendent within twenty days after the consent is formally given or refused, which notice shall be in writing, a copy of which shall be filed with the county clerk if the appeal is to be heard by the county commissioners, and with the state superintendent if the appeal is to be heard by him, within fifteen days after such service upon the county superintendent.) The Bounty superintendent shall make a record of such attachment of territory and shall publish a notice of the same, and thereafter such attached territory shall be and compose a part of such rural high-school district for such rural high-school purposes only and the taxable property of such adjacent territory shall be subject to taxation and shall bear its full proportion of all expenses incurred in maintaining said rural high school.”
This district lies altogether in Jewell county and the territory to be attached is adjacent to it and is all in Jewell county. The section provides for adjacent territory being attached to the district on application being made to the board by a majority of the electors. The section says nothing about a petition, only speaks of an application. This application was made in writing, however. There were 110 electors in the district. A majority of these would be fifty-six and this request was made by sixty of them. So far no reason appears why the request should not have been granted. No annexation could even be started without the request being made of the board, consequently this petition was made to the board. This tribunal was the judge of whether the request was made by a majority of the electors of the territory and the territory adjacent to the district.
All seems to have gone well until some of the electors who had made the request changed their minds. There is no doubt but that people in such a position may change their minds and withdraw their names from a petition such as this, provided they make the request in time. Naturally there must be a time after which no names may be stricken. The State, ex rel., v. Eggleston, 34 Kan. 714, 10 Pac. 3, was a case where a number of electors had requested the board of county commissioners to call a county seat election. At some time during the proceedings some of the signers of the petition asked that their names be stricken. The board refused to strike the names and called the election. When this action was attacked in court we said:
"If any such elector has, by false representations or through a misapprehension of the facts, been induced to sign such petition, he ought to be permitted to have his name stricken from the petition, if his application therefor is made to the county board prior to final action upon the petition.”
The state here concedes this to be the rule. It, however, points to the provision for consent of the county superintendent of public instruction and argues that once the district board has evidenced its approval of the annexation, then the question of the sufficiency of the petition rested upon the superintendent and his action was final. In other words, the state argues that the approval of the ap plication, whether in writing or otherwise, by the board was merely a condition precedent to final action by the superintendent. If the state be correct in this interpretation, then the names were withdrawn in time and the petition stated a good cause of action.
Such an interpretation fails to consider the clear language of the statute. In the first place, it was deemed wise that there should be a provision for adding territory to a school district. The provision was, therefore, made for the application to be made by a majority of the electors. The district board is responsible for the affairs of the district so we have the provision that the application should be made to that board and for the approval of the request by that body. It is important to note that the application must be made to the district board, not to the county superintendent. At the outset, it must appear that the territory seeking to be annexed be adjacent to the district. Only then may the board approve.
In Cowles v. School District, 88 Kan. 603, 129 Pac. 176, the right of school districts to issue bonds was limited, but by chapter 257 of the Laws of 1911 it was provided that upon an application accompanied by a petition to the board of education, signed by at least one-half the number of electors, requesting that an application to issue additional bonds be made to the board of the school fund commissioners, the board was authorized to make an order authorizing the district to vote an additional amount of bonds. Such a petition was filed with the school district board, which granted it and made the applicatio'n t'o the state board. The action was begun attacking the sufficiency of the petition to the school district board. We said:
“After final action upon the petition had been taken by the school district board, and the application was pending before the state board, an attempt was made, as we have seen, to withdraw and add names to the petition, but it was not then open for withdrawals and additions. The initiatory step is taken by the electors and their petition is addressed to the school district board, and not to the state board.”
But little would be added to this opinion to repeat the argument made by this court in that opinion. Suffice it to say it is persuasive in interpreting this statute. The petition in this case was addressed to and acted upon by the Rural High School Board and without favorable action upon it by that board, nothing further could be done. To the same effect is Heidel v. Geary County, 106 Kan. 382, 187 Pac. 866. In that case the question was whether names could be withdrawn from a benefit district petition. (See, also, State, ex rel., v. Guggisberg, 160 Kan. 340, 160 P. 2d 938.)
It is true the statute provides that the annexation must be with the consent of the county superintendent. That provision refers, however, to the entire question of annexation. The county superintendent has broad supervisory powers over the officers of all school districts in the county. -In an action where the land annexed lay partly within another county and an appeal was taken to the state superintendent of public instruction we held that official had discretionary powers as to whether or not he would consent to the annexation. (See State, ex rel., v. Brooks, 160 Kan. 526, 163 P. 2d 414.)
This was aside, however, from the sufficiency of the petition presented to the district board. Here we hold that the consent of the county superintendent to the annexation is addressed to his discretion in his supervisory powers generally, not to the sufficiency of the application to the district board.
It follows the withdrawal of the names, as alleged in this petition, was too late. Furthermore, this withdrawal was not addressed to nor submitted to the only tribunal authorized to act upon the application, that is, the district board.
It follows the demurrer of the defendants to the first cause of action pleaded by the plaintiff was correctly sustained. No appeal was taken from the action of the court in sustaining the demurrer to the second cause of action. It is not before us.
It follows the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was a criminal prosecution. The state appeals from rulings of the trial court pertaining to the admission of evidence and from a ruling sustaining a demurrer to the state’s evidence.
An information was filed against Earl George Richards, Jr., and Paul Robert Simpson, charging them with the crime of robbery in the first degree committed against Chesley Houser. They were tried together and Richards was convicted and we are not concerned with him. The claims of error arise with respect to Simpson.
Our review of the evidence is intended only to be sufficient to permit discussion of alleged errors. Chesley Houser testified that he was a soldier stationed at Fort Leavenworth and on the evening of December 28, 1948, was in the City of Leavenworth. Around 1:00 o’clock a. m. of the next morning he was at a tavern three or four blocks north of the business section of the city. There-he called a cab, but for reasons now immaterial, he started trotting downtown and after going some distance, heard a noise behind him, looked around and saw two men following. The next thing he knew he was struck on the head and knocked down and then slugged on the mouth and head. He started hollering and was warned to keep still. He let two men take his billfold containing money and his wrist watch. He knew the two men were colored but did not get a good enough look at them to identify them. When he was knocked down one man was on one side of him and the second man was on the other side. After taking his billfold and watch the two men left him and he went first to a taxicab station, from which the police were called and thereafter to the police station. A police officer testified he had seen Richards and Simpson at the described tavern around the time stated and other police were directed to bring them in. When police arrived at Simpson’s house they told him the man he had hit was dead and Simpson replied, “I didn’t do it; Peaches (Richards) did.” Richards was also arrested and the billfold and watch were recovered from him. The appeal swings around the following: The policeman testified that after Simpson was brought to the station a written statement was taken from him. In answer to a question by the court, the county attorney stated he was going to attempt to introduce that statement in evidence. Thereupon the jury was excluded and at an extended hearing the circumstances under which the statement was made were shown, but as there is no contention it was not freely and voluntarily made those details need not be mentioned, and it suffices here to say that Simpson signed a statement that he came to the above tavern about 1:35 a. m., the soldier (Houser) was standing on the porch and Richards was coming out. In the statement is an account of conversations between Richards and Simpson, but nothing about their pursuing Houser. It is stated, however, “I was with Earl Richards known as Peaches when he hit the soldier on head with a gun a nickel plated one — and soldier went down — Peaches hit him three or four times when he was down — . . .” Space precludes an extended review of colloquy between court and counsel concerning admission in evidence of this statement. Objection was made that it would prejudice Richards — the state asked that it be admitted against Simpson only and the jury properly instructed, it was contended the statement was not a confession and the state so conceded, there was argument as to whether the statement was exculpatory or against interest, and also that whether the facts stated were hearsay. The court stated that if the statement contained admissions that Simpson participated in the crime it would be admitted in evidence against him. Without definite statement of its reason, the trial court sustained objections to its being received in evidence. Later the state offered as a witness John Murray who was the county attorney at the time the crime was committed. He testified to a conversation with Simpson and that he had taken a written signed statement from Simpson. Again- the jury was excused and at further hearing it was disclosed that Simpson, being warned as to his rights, had signed the statement, and again an extended colloquy took place between court and counsel at which the county attorney stated he desired to introduce the statement as an admission against interest and as an exculpatory statement, and after much argument, the court sustained Simpson’s objection. The statement given Murray is more detailed than that given the police. For our purposes the important part is that Richards came out of the tavern, saw Houser running down the street and that Simpson followed about ten to fifteen feet behind Richards; that Houser fell down and before he could get up Richards hit him with a gun, and the soldier was hollering and Richards said for him to shut up and give him his money, and Simpson then walked back north and Richards caught up with him. Other matters need not be mentioned.
After the court had refused admission of the second statement, the jury was returned to the courtroom and the state than rested. Thereupon the defendant Simpson demurred to the state’s evidence against him on the ground there was no evidence to show that he had had anything to do with the matter. After some further argument the court sustained the demurrer and discharged the defendant. In due time the state perfected its appeal from the rulings on the rejection of the statements in evidence and on the sustaining of Simpson’s demurrer to the state’s evidence.
Shortly after the appeal was lodged in this court Simpson filed his motion that the state’s appeal be dismissed for the asserted reason, summarily stated by us, that Simpson was properly charged in an information, entered a plea of “not guilty”; that a jury was impanelled to try the case; that the state made no objection or reservation on the refusal of the court to admit the statements above mentioned in evidence; that Simpson’s demurrer to the state’s evidence was sustained and that the state made no objection or reservation on that ruling, and therefore the appeal was moot. The motion as made was denied with leave to review on the hearing on the merits, and the matter now presented is discussed in the briefs.
In support of his motion to dismiss, Simpson directs our attention to G. S. 1935, 62-1703, which has remained unchanged since 1868, providing for appeals by the state in criminal actions, and after stating that the present appeal is not from a judgment quashing or setting aside an information, nor arresting the judgment, and obviously it is not, contends there was no question reserved by the state, either upon the rulings excluding the above mentioned statements or upon the ruling upon his demurrer to the state’s evidence and in support of each contention he directs attention to the fact that after each ruling was made the state did not then make a specific objection to the ruling, or take definite exception thereto. In support he relies solely on State v. Mitchell, 143 Kan. 322, 54 P. 2d 917. In response, the state directs attention to the fact that the necessity of objections and exceptions to adverse rulings, formerly necessary, has been abolished, and especially to G. S. 1935, 62-1430, which was enacted in 1915, abolished bills of exceptions, and which, in substance, provides that on trial of a criminal action it shall not be necessary in order to secure a review by the supreme court of any ruling or decision, to make exception but that all of the evidence and proceedings may be made of record and preserved for review in the same manner as is provided by law in civil actions, and our attention is directed to a number of cases arising before the change in the criminal. code in 1915 and the revision of the civil code in 1909, and to State v. Short, 121 Kan. 233, 247 Pac. 114; State v. Marek, 129 Kan. 830, 284 Pac. 424; and State v. Mitchell, supra, which arose thereafter. In the Short case this court held that if the determination of the question reserved would be without practical result the appeal should be dismissed but where a new trial had been ordered on the motion of the defendant the reserved question was not moot. In the Marek case, in sustaining the state’s appeal, the court considered whether a question had been properly reserved for review and stated that in that case there was nothing beyond objection and exception to show that the state reserved any question for review. After making a review of some of our authorities, to which reference is made, this court said:
“Under the authority of the last two cases cited and quoted from (State v. Zimmerman, 31 Kan. 85, 1 Pac. 257, and State v. Craig, 124 Kan. 340, 259 Pac. 802) it is held that all that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make proper objection or exception at the time the order complained of is made or the action objected to is taken. The state can lay the foundation for its appeal in the same manner that the defendant can lay the foundation for his appeal.” (l. c. 834).
and held:
“To reserve a question for presentation to the supreme court on appeal by the state, it is hot necessary for the state to do more than should be done by the defendant to lay the foundation for an appeal by him.” (Syl.' ¶ 4.)
In State v. Mitchell, supra, relied on by both parties, the question was alleged error in the exclusion of oral evidence, which it was determined had not been properly brought into the record on appeal. In discussing requisites of an appeal by the state it was said two things were necessary (1)'a proper reservation of the question,’and (2) a record which will afford ground for review. As to the first, this court quoted approvingly the syllabus from the Marek case as quoted above. As to the second, the record was held defective. The question of sufficiency of the record in the instant case is discussed later herein.
In our opinion Simpson’s contention there was no reservation of a question for appeal may not be sustained. Throughout pro tracted argument of counsel and colloquy with the court, it was clear what the issue was as to the written statements of Simpson which the state attempted to introduce in evidence; that Simpson objected for reasons heretofore set out and that in the argument each party objected to the contentions made by the other and that the state objected to legal propositions suggested by the-court as the argument proceeded. Insofar as Simpson’s demurrer to the state’s evidence was concerned, the argument was not extended, but it did include the effect of evidence being excluded. It is true that when the court ruled the state did not come forward with a renewed objection nor a statement it saved an exception, nor that it'proposed to appeal to the supreme court. In view of the whole record that was not necessary. All of the rulings objected to resulted from Simpson’s objection and demurrer, and if erroneous, it may not be said a reversal is without practical result. Certainly if the rulings had been adverse to Simpson he could have appealed. In our opinion the state is entitled to have the questions presented reviewed on appeal, if the record is otherwise sufficient.
Simpson further contends the state’s appeal should be dismissed for the asserted reason the written statements were never properly brought into the record. He contends State v. Mitchell is directly in point and controlling. In the Mitchell case the evidence excluded was oral, it was not brought into the record in any way, and for that reason could not be considered on appeal. In the instant case the excluded evidence was documentary, and the documents were offered in evidence. It is to be borne in mind that the state also appeals from a ruling on Simpson’s demurrer to its evidence. Inherent in the correctness of that ruling is the question of exclusion of evidence. The ruling on the demurrer raised a question of law, and under the facts presented by the record before us there was no question of fact for decision concerning the excluded statements. The sole questions were of law, and in our opinion it may not be said the record is not sufficient. See Kirkpatrick v. Wickwire, 138 Kan. 230, Syl. ¶ 2 , 25 P. 2d 371, and cases cited, holding that the rule requiring evidence excluded at the trial to be produced on the hearing of a motion for a new trial has no application to documentary evidence. See also G. S. 1935, 62-1413, relative to applicability of rule in civil cases to criminal cases.
Were the written statements made by Simpson admissible in evidence? At the trial the objections made, as previously'indicated, were that the admission would be prejudicial against the codefendant Richards; that they were not confessions; that they were neither exculpatory nor against interest, and that the facts stated were hearsay. The state did not -at the trial and does not now contend the statements were confessions. It does contend that the two defendants Richards and Simpson were being tried together, although separate trials could have been demanded, and the fact the statements were not admissible against Richards for any reason did not render them inadmissible against Simpson under proper instruction to the jury and that such a request was made. The state further contends the statements were exculpatory. That Simpson sought to say he had no part in the actual commission of the crime is clear. The state also contends that the statements show Simpson’s presence at the scene of the crime and as such were statements against interest, a contention we sustain. Houser’s testimony was that he was set upon, assaulted and robbed by two men neither of whom he could identify, and Simpson’s statement he was present, but not participating in the crime, presented a question for the jury to determine as to whether he did participate. Without further comment, we think it was fully disclosed that the statements were voluntary and not coerced, concerning which there is no controversy, and that they were in part exculpatory and in part admissions against interest, and their exclusion when offered in evidence was erroneous. See State v. Myers, 154 Kan. 648, 121 P. 2d 286, and State v. Smiley, 167 Kan. 261, 206 P. 2d 115, and cases cited therein.
It is not necessary that we discuss any claimed error in the exclusion of the police officer’s account of his oral conversations with Simpson.
The ruling on Simpson’s demurrer to the state’s evidence needs no extended discussion. Had there been no error in the exclusion •of the statements above discussed, the ruling on the demurrer might be said to have been proper. In the situation now presented it was not.
The state’s appeal is sustained and the cause is remanded for a new trial consistent with the views heretofore expressed. | [
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The opinion of the court was delivered by
Price, J.:
These consolidated appeals are from orders of the lower court sustaining demurrers of three intervening petitioners to the evidence of plaintiff and rendering judgment in favor of each intervenor adjudging each of their claims to be a prior lien on moneys in the hands of a receiver in an action originally commenced by plaintiff Brack against defendant Kleweno for the appointment of a receiver and for an accounting of the funds derived from á wheat farming partnership and for a dissolution of such partnership.
The action was commenced in June, 1948, and the petition alleged that plaintiff and defendant had entered into a partnership or joint venture to farm a large acreage of wheat land in Ness and Greeley counties, Kansas; that defendant had not submitted a satisfactory accounting, although demand for the same had been made and that the latter had threatened to convert the partnership wheat. The prayer was for the appointment of a receiver to take charge of, harvest and sell the wheat; for an accounting of the profits of the partnership and for a dissolution of the same. A receiver was appointed who harvested and sold the wheat and he now holds the proceeds subject to court order.
In this action each of three intervenors filed an answer and cross petition which briefly summarized is as follows:
The answer and cross petition of intervenor Barrow alleges that on May 18, May 26 and May 31, 1948, defendant Kleweno executed and delivered to him his promissory notes in the amount of $10,000, $10,645 and $4,075, respectively, and a chattel mortgage dated May 18, 1948, in the amount of $52,000 on defendant’s interest in the wheat in question, such mortgage being given to secure the payment of the above first mentioned promissory note and future advances made by Barrow to defendant. This mortgage was duly filed on May 19, 1948. The prayer was for judgment against defendant in the amount of the three promissory notes, with interest, and for a further order adjudging Barrow to have a first and prior mortgage lien on the wheat or the proceeds thereof, and for an order directing the receiver to pay the amount of such lien out of the proceeds in his hands.
Intervenor Scheuerman’s answer and cross petition alleges the execution and delivery by defendant Kleweno to him, on May 14, 1948, as agent for Cimarron Insurance Company, of a promissory note secured by chattel mortgage on defendant’s interest in the wheat in question. This mortgage was duly filed six days later. The note was given for a hail insurance premium and a balance of $194.40, with interest, was claimed to be due.
The answer and cross petition of intervenor, The Wheat Growers Mutual Hail Insurance Company, alleges the execution and delivery to it by defendant Kleweno on April 23, 1948, of a promissory note secured by chattel mortgage, duly filed four days later, on defendant’s interest in the wheat in question. This note was also given in payment of a hail insurance premium and a balance of $512, with interest, was claimed to be due.
Both of these last two mentioned intervenors also prayed for judgment in the amount of their respective claims and for a further order adjudging each to be a first and prior lien on the wheat or the proceeds thereof, and for an order directing the receiver to satisfy such claims out of moneys in his hands.
Plaintiff Brack filed his denial and answer to each of the three intervening petitions, in substance alleging that if such claims existed they, were against defendant Kleweno individually and in no way affected plaintiff’s interest in the proceeds in the hands of the receiver.
Defendant Kleweno answered admitting all allegations of the intervening petitions. Other pleadings were filed by the various parties and after issues were fully joined the court proceeded to try the cause without a jury.
Testimony was taken in support of the claim of each intervenor and at the conclusion of plaintiff’s evidence in opposition thereto the demurrer of each intervenor was sustained. The court made extensive findings of fact which, for the purpose of these appeals, were in substance as follows:
With respect to intervenor Barrow’s claim the court found that in June, 1947, the defendant became indebted for machinery and other expense in connection with the farming operations and in that month borrowed the sum of $10,000 from Barrow with which to pay such indebtedness; that the note of May 18, 1948, was given for that loan, and that the farm partnership between plaintiff and defendant received the benefits of this loan and therefore should be charged with the indebtedness. As to the later advancements by Barrow to defendant, evidenced by the other two notes heretofore referred to, the court found that this indebtedness was not used or borrowed for the farming operations. Pursuant to this finding the court ordered the receiver to pay to Barrow the amount of the $10,000 note of May 18, together with interest. In passing it should be noted that Barrow makes no complaint and has not appealed from the lower court’s order denying his claim as to the other two notes in question.
As to the claims of the other two intervenors, based on promissory notes secured by chattel mortgages given for hail insurance premiums, the court found that the policies, although taken out in the name of defendant, were on partnership growing wheat and therefore should be satisfied out of the moneys in the hands of the receiver and he was also directed and ordered to make these payments accordingly — hence these appeals.
At this point we pause to take note of defendant Kleweno’s motion to dismiss the three appeals. We have examined this motion and without further comment find it to be without merit, and it is therefore denied.
We pass now to the various complaints and grounds urged by plaintiff Brack in support of his position. In passing it should be stated that all issues between all parties to this lawsuit were fully and completely adjudicated by the lower court. Plaintiff Brack’s appeal from the judgment rendered in the main action between him and defendant Kleweno is pending in this court and nothing in this opinion is to be interpreted as having any bearing on the merits of that phase of the case. We confine ourselves to the orders of the lower court with reference to the claims of the three intervenors.
Plaintiff strenuously argues that the lower court erred in proceeding to hear and determine the claims of the intervenors prior to adjudicating the main issue between plaintiff and defendant. One answer to such contention is that in the nature of things there had to be a starting point and our examination of the lengthy record before us clearly shows that the lower court had in mind and did in fact try all issues between and among all parties in as orderly a manner as was possible in tKis somewhat involved proceeding.
Plaintiff complains of the fact that he was denied a trial by jury on the question of the intervenors’ claims. Irrespective- of the fact there may be some question as to whether plaintiff waived such right, we find the contention to be without merit. The action was for the appointment of a receiver and for an accounting and was one in equity rather than law. The claims of intervenors were for the purpose of establishing their liens on the moneys in the hands of the receiver, were equitable in nature and were in no way properly triable by jury. Even though we were positive the record shows a demand for jury trial, the lower court committed no error in this respect.
Many pages of plaintiff’s brief are devoted to the alleged animosity and prejudice on the part of the trial judge to plaintiff and particularly to plaintiff’s counsel. Many of the objections and arguments thereon, together with various rulings and statements by the court, are abstracted — others are not. From our examination of this record the conclusion is inescapable that the trial judge patiently and conscientiously attempted to try this lawsuit in the. face of almost constant objections and lengthy arguments in support thereof by plaintiff’s counsel. We realize that the cold printed record does not always disclose the atmosphere of the courtroom, but we fail to discover any prejudice or animosity on the part of the trial judge.
Complaint is also made of the fact that the trial judge himself prepared a number of journal entries covering the proceedings before him. The record discloses there was great difficulty in getting counsel for plaintiff to approve earlier journal entries and the trial judge, under such circumstances as this record discloses, cannot be criticized for his attempt to get all issues disposed of and a record thereof made.
Numerous other complaints are urged upon us, such as rulings on the admissibility of evidence, in limiting cross-examination of witnesses and the like, but nothing would be added to the body of our law by a detailed discussion of them. It is sufficient to say that each complaint has been examined and considered and is found to be without substantial merit.
This brings us to the real crux of these appeals, namely, did the court commit error in adjudging the claims growing out of hail insurance premiums and the one portion of Barrow’s claim to be prior liens on the proceeds in the hands of the receiver and in ordering him to pay them? The court’s findings with respect to each of these claims have already been summarized. We have examined the evidence before the court concerning them and hold that such findings are supported by substantial, competent evidence. Such being the case they will not be disturbed on appeal and we think the court properly ordered the receiver to pay the claims in question.
In conclusion we wish to state that every contention on the part of plaintiff, even though not taken up and discussed in detail, has received our attention and consideration, but we are unable to find any reversible error in the appeals now before us. The judgment of the lower court as to each of the three intervenors is therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus to compel a change of place of trial of an action commenced in the justice of the peace court.
In view of the disposition which must be made of this proceeding it is not necessary that we review at length either the motion for the writ or the answer of the defendants.
In their motion for the writ the plaintiffs allege that the defendant Lee F. Best is now and has been a duly elected and qualified justice of the peace in and for the city of Columbus in Cherokee county, and that prior to April 14,1949, defendants Bottom and Dewey as plaintiffs commenced a certain forcible detainer action against Cutrel and Bender as defendants in the justice of the peace court of Lee F. Best, and “That after some continuances said forcible detainer action was set for trial on the fourteenth day of April, 1949,” by Best, the justice of the peace, and on that day Bottom and Dewey appeared in person and by attorney; that Cutrel and Bender also appeared in person and by their attorney and duly filed with the justice of the peace their certain affidavit for a change of place of trial of the forcible detainer action. The plaintiffs further allege that the justice of the peace granted the change of venue and stated he would transfer the cause of action and cause the papers and files to be sent to Gill, a justice of the peace of the city of Baxter Springs; that later Best notified the present plaintiffs that he had decided not to grant the change of venue and that he would retain jurisdiction to try the action and that he had set the trial of the action for May 5, 1949. Other allegations need not be detailed.
On May 2, 1949, the instant proceeding was commenced and on that date an order was made that Best, the justice of the peace, grant a change of place of trial of the forcible detainer action or show cause on or before May 7,1949, why he had not done so.
In due time Best filed his answer denying matters not admitted and in which he admitted his official status and that Bottom and Dewey commenced the forcible detainer action mentioned, and that after s.ome continuances, as set out in the motion -for the writ, the defendants in the forcible detainer action filed an affidavit for change of venue as alleged in that motion. He also alleges at length that upon presentation of the affidavit for change of veriue, the defendants in the forcible detainer action announced that the action would have to be sent to a justice of the peace at the city of Baxter Springs, that the city of Baxter Springs is not an adjoining township to the township of the city of Columbus, and he further alleged at length that there is no other justice of the peace in Columbus and no justice of the peace in any adjoining township to whom the action may be sent for trial. He prayed that a peremptory writ be denied. .
On December 3, 1949, the plaintiffs filed their motion for judgment on the pleadings, and thereafter the parties filed their written briefs and orally argued the cause. Under such a motion the facts must be resolved favorably to the defendants (Smith v. Lundy, 103 Kan. 207, 173 Pac. 275; State v. Drainage Dist. No. 3, 167 Kan. 213, 221, 205 P. 2d 997).
In their brief plaintiffs direct our attention to G. S. 1935, ch. 61, art. 7, which is the portion of the code of civil procedure before justices of the peace dealing with changes of venue generally, as well as to its history and to some of our decisions where the provisions of that article were involved.,, iWe need not review either the statute or-the decisions for we think it clear that the general rule is that, if on the return of the summons or at any time before the trial shall have been commenced, either party shall file with the jutice of the peace before whom the action is instituted or is pending for trial, an affidavit setting forth statutory reasons for a change of trial (G. S. 1935, 61-701) the duty of the justice of the peace to grant such’a change is mandatory and not discretionary, and his failure to so perform may be corrected by mandamus (Borden v. Miles, 130 Kan. 808, 288 Pac. 563, and cases cited therein).
The defendants do not dispute the correctness of the rule above stated, but they call attention to the fact that this is a 'forcible detainer action, brought under and governed by the provisions of G. S. 1935, ch. 61, art. 13, and that as applied to such actions specific provision is made that “If the suit be not continued, place of trial changed or neither party demand a jury upon the return day of the summons, the justice shall try the case”; (G. S. 1935, 61-1309), that the motion for the writ discloses that several continuances had been had before the affidavit for change of trial was filed, and that such filing occurred too late to be effective, and our attention is directed to Spacek v. Aubert, 92 Kan. 677, 678, 141 Pac. 254, where the question was presented but not decided. It has been held repeatedly that where there is conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific legislation controls (Harkrader v. Whitman, 142 Kan. 186, 46 P. 2d 1) and that where there is repugnancy between a special statute and a general statute, the special statute will prevail (In re Estate of Park, 147 Kan. 142, 75 P. 2d 842; Smith v. Henry, 155 Kan. 283, 124 P. 2d 448; Sherman County Comm’rs v. Alden, 158 Kan. 487, 148 P. 2d 509, 152 A. L. R. 881; Wyandotte County Comm’rs v. Ferguson, 159 Kan. 80, 151 P. 2d 694).
The rule of the above cases is applicable here. Whether the defendants in the forcible detainer action were entitled to a change of place of trial was to be determined by the provision of that article of the civil code before justices, and not by the provision of another article dealing with actions generally. It is clear from the allegations of the motion for the writ that the affidavit for change of place of trial was not filed upon the return day of the summons but sometime thereafter, and it follows that if it was not filed in time it was ineffective and insufficient to compel such a change.
Our conclusion above stated makes'it unnecessary to discuss other matters presented in the briefs.
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The opinion of the court was delivered by
Wertz, J.:
This is an action for partition of real estate. The appellant, one of defendants below, sought reimbursement for improvements allegedly placed on the real estate involved while he was allegedly a co-owner and in possession. This appeal arises by reason of rulings of the lower court in sustaining appellees' (codefendants below) motions to strike portions of appellant’s separate answer and amendment thereto.
Plaintiffs below were three sisters, the defendants were their three brothers; all were children of Sam and Ida S. Knutson. Sam Knutson died intestate in 1925, and under the statutes of descent and distribution his estate was divided among his widow and their six children, the widow receiving an undivided one-half and each child an undivided one-twelfth of the real estate in fee. Some time subsequent to the death of Sam Knutson, his six children entered into a written agreement with their mother, Ida S. Knutson, under which the children gave all of their title and interest in the personal property of their father to their mother and the use and possession of the real estate was granted to her for the term of her natural life, setting out as their purpose the intent- “to vest in said Ida S. Knutson, full power and authority to lease for agricultural and mineral purposes, all real estate owned by said Sam Knutson at the time of his death, the same as if she was the absolute owner of said real estate in fee simple.” Ida S. Knutson, the widowed mother, remained in possession and enjoyment of her interests until her death intestate in 1948. Her estate was administered and the legal title to the undivided one-half of the realty owned by her at the time of her death became vested in the plaintiffs and defendants, each acquiring an undivided one-sixth of the undivided one-half interest of his mother. The effect of this was to vest title to an undivided one-sixth of the whole of the realty in each of the six parties to this action. The three daughters then filed their petition for partition; the defendants answered and after certain preliminary proceedings not material to this appeal, the issue presented herein arose. The defendant Carl S. Knutson alleged in his separate answer: That he is the son of Sam Knutson and Ida S. Knutson; that plaintiffs and defendants are his brothers and sisters; that prior to the death of Sam Knutson, appellant moved upon the real estate described in plaintiffs’ petition and was a tenant thereon and thereof at the time of the death of Sam Knutson in 1925; upon the death of Sam Knutson, who at the time of his death was owner of the real estate described in the petition, this defendant (appellant) became and ever since has been the owner of an undivided part and portion of said real estate and was a co-owner and cotenant thereof along with Ida S. Knutson and the brothers and sisters of this defendant and that they were now together co-owners and cotenants of the real estate subject only to the claims of this defendant arising from his outlay and expenditures for improvements thereon; that through the years and while this defendant Carl S. Knutson was part owner of the premises and co-tenant with Ida S. Knutson and his brothers and sisters, he constructed improvements upon the real estate which have a lasting and permanent effect enhancing the value thereof in the amount of approximately $7,000; that he built and constructed permanent fences, stock scales, a chicken house, feed racks, a cattle shed, grain bins, a dehorning chute, renewed the barn roof, installed electric fixtures, made the dwelling house modern, equipped same with butane fuel facilities and other repairs; that such work, labor outlay and expense was done by this defendant at a time when he was a part owner of the premises; that he is entitled to have his special interest in said property and premises adjudged by the court as in equity; that the expenditures and outlay of this defendant on the premises never became and never was at any time a part of the estate of Sam Knutson, deceased, or of Ida S. Knutson, deceased, but at all times was and is now the individual investment and property in equity of defendant Carl S. Knutson as an addition to his undivided ownership in and to the premises and should be adjudged as the property of defendant Carl S. Knutson; that the real estate and property involved herein should be partitioned subject to the claim of Carl S. Knutson arising by reason of his placing same upon the real estate and premises; he prays for a determination and adjudication of the value of his equity, and that the value of the property over and above the equity and ownership of the defendant be partitioned as provided by law into six parts. A motion to make more definite and certain was leveled at the separate answer of Carl S. Knutson, praying that he be required to allege in particularity the dates of and the amounts expended for the improvements alleged in the defendant’s answer, and to set out any agreement between Carl S. Knutson and Ida S. Knutson, or his brothers and sisters, concerning the use, occupancy and tenancy of the realty involved. This motion was granted, and Carl S. Knutson amended his answer by setting out the dates requested and by setting out the agreement entered into between Ida S. Knutson and her six children heretofore remarked upon. The brothers of Carl, his codefendants, then leveled a motion to strike those portions of the amended answer in which expenditures for improvements were alleged, to strike the phrase “and ever since has been” from the portion of the answer which alleged “This defendant became and ever since has been the owner of an undivided part,” and to strike from that portion of the prayer in which the defendant “prays the court that a determination and adjudication be made by the court as to the value of the equity of this defendant Carl S. Knutson in said real estate; that the value of said real estate over and above the interest, equity, and ownership of this defendant therein be partitioned” the phrases “the value of the equity of this defendant Carl S. Knutson in said real estate; that the value of said real estate over and above the interest, equity” upon the grounds that the portions attacked were “incompetent, irrelevant, immaterial, surplusage, prejudicial, a conclusion and further that the court has no jurisdiction to entertain matters therein alleged.” The motion was sustained by the court below and this appeal from the order sustaining that motion followed.
Appellant has assigned five specifications of error. The gist of these assignments may be expressed in a single question: Did defendant Carl S. Knutson by joining with his five brothers and sisters in executing the aforementioned agreement with their mother subsequent to their father’s death granting to her the use and possession of all their right, title and interest in the real estate together with the rents, issues and profits therefrom for and during the term of her natural life with power and authority to lease both for agricultural and mineral purposes, place himself in a position where he cannot now assert his right to recover the value of the alleged improvements?
Appellant contends he had such possessory right and was the owner of such an interest in the land as would entitle him to recover the value of improvements which he allegedly made. Appellees maintain that the- fact's as developed in the pleadings conclusively show appellant did not have such an interest at the time he allegedly placed the improvements on the real estate as would enable him to recover for the same as against appellees and plaintiffs below.
G. S. 1935, 60-1901, provides in pertinent part:
“In all cases, any occupying claimant, being in quiet possession of any lands or tenements for which such person can show a plain and connected title in law or equity derived from the records of some public office; or, being in quiet possession of and holding the same by deed, devise, descent, contract, bond or agreement from and under any person claiming title as aforesaid . . . shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant . . .”
Appellant brought himself within the provisions of the mentioned statute by alleging that prior to the death of his father in 1925, he came into possession of the premises and was a tenant thereon and that upon the death of Sam Knutson, his father, who was the owner of the real estate described in the petition, he became and ever since has been the owner of an undivided part and portion of the real estate and was co-owner and co-tenant thereof along with his mother, Ida S. Knutson, and his brothers and sisters and that they are now co-owners and co-tenants of said real estate. It is admitted by plaintiffs’ petition that appellant is and was at all times subsequent to the death of Sam Knutson the owner of an undivided 1/12 interest in the fee, and that after the death of his mother, Ida S. Knutson, he was the owner of an undivided 1/6 interest in the fee. Appellant was not a mere lessee; he was a co-owner in fee of the real estate and was occupying the premises apparently under some arrangement with his mother, co-owner of a % interest in the fee and the one who was entitled to the use and occupancy of all the premises during her life with the right to lease same for agricultural purposes. He had been so occupying the premises for over 25 years, extending back to a date prior to the date of his father’s death. This being a partition action, it is therefore covered by the provisions of civil procedure. G. S. 1935, 60-2104 provides that the answers of defendants in a partition action must state among other things the amount and nature of their respective interests. We feel that the appellant did so state the amount and nature of his interest. Section 60-2114 provides: “The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
It can be readily seen “that in a partition action the district court has power to make any order, not inconsistent with provisions of the statute governing partition actions, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests. Our decisions hold that in administering the provisions of such section of the code the trial court has the same powers as were exercised by chancery courts under equity practice, including full power to settle all questions involved on just and equitable principles. (Johnson v. Burns, 160 Kan. 104, 159 P. 2d 812; Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844; Young v. Young, 148 Kan. 876, 84 P. 2d 916; Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763; Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074; Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096.) We have never held that in an action instituted by a guardian for a ward involving partition and an accounting there is anything to be found in the probate code which deprives the district court of the powers conferred upon it by the code of civil procedure.” (Wharton v. Zenger, 163 Kan. 745, 751, 186 P. 2d 287.)
This being an equitable action, we feel that appellant properly stated, in his answer and amendment thereto, a cause of action for relief, and it was error for the court to strike the allegations therefrom. The case is reversed and remanded to the district court with instructions to reinstate those portions of the answer and amendment thereto stricken by the court, and to proceed with the trial. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order admitting a will and codicil to probate.
The testatrix, Mrs. Lillian M. Freeman, was a widow seventy-three years of age with considerable business experience. She asked her banker and financial adviser of many years, C. N. Emery, chairman of the board of directors of the Miami County National Bank of Paola, to prepare her will. He declined to do so and advised her to consult an attorney. She gave Mr. Emery the necessary data to indicate the disposition she desired to make of her property. Mr. Emery delivered it to Coughlin & Coughlin, a law firm at Paola. That firm prepared the will and Mr. Emery gave it to the testatrix. On delivery she stated she would take the will home. She had some of her neighbors act as witnesses. Following its execution on June 17, 1947, the testatrix advised Mr. Emery she had the will executed and was placing it in her safety deposit box in the Emery bank. On January 2,1948, testatrix came to the Emery home to have a codicil witnessed which she had prepared in her own handwriting. By its terms she bequeathed some articles of personal property, which apparently had sentimental value, to some of her immediate friends and to two or three of her distant relatives. Her closest relatives were cousins. Testatrix requested that Mr. and Mrs. Emery witness the codicil to her will. She stated she was going to the bank and would place the codicil with her will. After her death on September 12, 1948, the will and codicil were found in her safety deposit box where she previously had stated she would place them. The first instrument bore the following heading in large letters, “LAST WILL AND TESTAMENT OF LILLIAN M. FREEMAN,” and on the bottom of the last page the following:
“Lillie M. Freeman,
“Lillian M. Freeman,
“TESTATRIX
“The foregoing instrument was signed by the said testatrix, Lillian M. Freeman, as and for her last will and testament in our presence and we, at her request and in her sight and presence, and in the sight and presence of each other have hereunto subscribed our names as witnesses hereto at Paola, Kansas, this 17 day of June, 1947.
“Clara D. Carpenter,
“Witness
“Elsie S. Schlesener,
“Witness”
The codicil bore the following heading:
“CODICIL TO MY WILL
“Jan. 2, 1948
“Lillie M. Freeman”
Her signature appeared at the end of the codicil and under the words, “Witness to codicile” were the signatures of C. N. Emery and Maude B. Emery.
Appellants, four cousins of the testatrix, are opponents to the probate of the will. The sole ground of their complaint is the will and codicil were not executed and attested by the testatrix in accordance with the provisions of G. S. 1947 Supp. 59-606 and were, therefore, null and void. The probate court admitted the will and codicil. The contestants appealed to the district court. In the latter court it was stipulated the issue presented should be determined from the transcript of the pleadings and record made in the probate court. The district court found the will and codicil were each properly executed as such and that by the codicil testatrix republished, ratified, revived and confirmed her will except as modified by the terms of the codicil and that the two instruments contained the complete expression of the decedent’s wishes with respect to disposition of her property.
The will and codicil combined, if valid, of course, constitute the complete will. For purposes of differentiation we shall, however, refer to the first instrument as the will unless otherwise indicated. We shall first consider appellants’ contentions with respect to the will.
Appellants are the opponents of the will. They introduced no evidence at the probate hearing or in the district court. Did proponents’ proof of the will satisfy the requirements of the law sufficiently to entitle it to probate? The pertinent portion of G. S. 1947 Supp. 59-606 reads:
“Every will . . . shall be in writing, and signed at the end thereof by the party making the same . . . and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.”
We are not concerned with whether proponents’ proof supported the facts recited in the attestation clause. The test is whether the evidence satisfied the requirements of the statute.
Appellants say no witness saw the testatrix sign the will or codicil. This is true but the statute does not make that mandatory. (In re Estate of Davis, 168 Kan. 314, 320-321, 212 P. 2d 343, and cases therein cited.) The statute is framed in the alternative. It says, . . who saw the testator subscribe or heard him acknowledge the same." (Our emphasis.) It is not imperative that we determine in the instant case whether the word “same” at the end of the statute relates to the word “will” or to the testator’s signature insofar as an acknowledgment is concerned when the instrument presented to the witnesses for signature by the testator already bore the testator’s signature and the testator acknowledged that such signed instrument constituted his will. (In re Estate of Davis, supra, p. 319.)
Appellants next argue there is no evidence the testatrix told any of the witnesses she had signed the will. This statement is also true. In that statement appellants, however, assume the testator may acknowledge his signature to a will only by means of a direct communication to that effect. The assumption is not sound. Our statute prescribes no particular words that must be employed to constitute an acknowledgment of a will or signature. The act of acknowledgment may be establisted by any words indicative of acknowledgment or by conscious acts or conduct of the testator from which an acknowledgment may be implied. (In re Estate of Davis, supra.)
Appellants argue there were no other facts or circumstances proving acknowledgment. We cannot agree. It is unnecessary to detail all the examined evidence of the witnesses to the will. Testimony of the first witness, Elsie Schlesener, a neighbor of the testatrix, in substance, discloses: Testatrix called her to come and witness the will; testatrix showed her the instrument, previously described, containing the signature of the testatrix; she recognized the signature of the testatrix; the testatrix said, “This is my will and I want you to be a witness”; testatrix further said she was “going to have Clara Carpenter for the other one.”
Mrs. Carpenter testified, in substance: The testatrix called her by telephone to come to her home; she went and testatrix had the will on the dining-room table; testatrix handed her this subscribed instrument (the will) and asked her whether she would sign it; the name of the first witness was on it; testatrix told her she had Elsie (the first witness) sign it as she thought she should have a younger person as a witnes; she understood a will required two witnesses and she thought she was signing the will of the testatrix; the other witness was not there; testatrix did not say anything about having signed the will; she saw the signature of the testatrix and that of the first witness on it at the time she signed.
From the foregoing it is clear the witnesses knew the character of the instrument they were signing (In re Estate of Wittman, 161 Kan. 398, 168 P. 2d 541) although that was not imperative so long as the instrument they signed as witnesses was acknowledged by the maker to be his instrument. (In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544.) The various statements of the testatrix and her conduct coupled with the obvious character of the instrument, signed by the testatrix, showed the testatrix acknowledged the instrument, including her signature thereon, as constituting her will. If the testatrix did not by her statements and conduct intend to acknowledge her signature there was nothing for these two neighbors to witness.
Our statute contains no requirement a testator must sign in the presence of the subscribing witnesses. (In re Estate of Davis, supra, p. 320.) It, of course, constitutes a far safer and a commendable practice to have the testator sign a will in the presence of the witnesses and to state to the witnesses that the instrument is his will. Here, however, we are asked to declare the will invalid in the face of an alternative statutory provision with which the testatrix complied.
Appellants cite decisions of this court pertaining to requirements for the proper execution and attestation of wills. (Chaplin v. Chaplin, 105 Kan. 481, 184 Pac. 984; Hill v. Kennedy, 134 Kan. 560, 7 P. 2d 88; Imthurn v. Martin, 150 Kan. 906, 96 P. 2d 860; In re Estate of Charles, 158 Kan. 221, 146 P. 2d 395; In re Estate of Bond, 159 Kan. 249, 153 P. 2d 912; Lowry v. Lowry, 160 Kan. 11, 159 P. 2d 411.) A comparison of the facts in these cases with those in the instant case clearly discloses the decisions do not compel judgment for appellants in this case.
The principles heretofore stated, of course, apply with equal force to the execution and attestation-of codicils. The evidence touching proof -of the proper execution and attestation of the codicil has been examined and found entirely sufficient. That the testatrix at the time the codicil was executed and attested again recognized her former will, .with which she placed the codicil, cannot bé doubted. In view of what has been said previously with respect to the sufficiency of the evidence to admit the will to probate we need not treat the second ground on which the trial court sustained the will, namely, that by the codicil testatrix republished, ratified, revived and confirmed her will, except as modified by the terms of the codicil.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal by plaintiff below, the City of Wichita, from a judgment sustaining a demurrer to plaintiff’s evidence and defendant’s motion to dismiss the accusation in contempt, in an action in which defendant was charged with violation <pf a permanent injunction previously rendered against her and in favor of plaintiff in the same case. The facts, briefly, are as follows:
., The-defendant (appellee) at all times herein mentioned was the owner of a residence located within an “A” residential district, restricted to one and two-family dwellings under the zoning ordinances pf the City of Wichita. Sometime prior to November, 1940, defendant began altering her residence into a six-family apartment, and plaintiff city commenced an action seeking to permanently enjoin her from such alteration alleging that it violated the existing zoning ordinances of the city. Issues were joined between the parties and the case was tried by the court, judgment being entered on November 7, 1940. Pertinent parts of the judgment read:
“And thereupon from the admissions of defendant made in open Court, the Court finds that the defendant is operating an apartment house for more than two (2) families at 435 North Pershing Avenue, Wichita, Kansas, as charged in plaintiff’s petition, and that at the time of the filing of plaintiff’s Petition and Supplemental Petition, defendant was altering the house on said premises for more than two (2) families, for the purpose of using same as a six-family apartment, contrary to Ordinance No. 12-120 of the City of Wichita, Kansas, known as the ‘Zoning Ordinance.’
“And the Court further finds . . . That said house and premises are located within an “A” Residence District ... as fixed and determined by said Zoning Ordinance. ...
“It Is . . . Ordered, Adjudged and Decreed, That the Defendant, Helen S. Wright, be and she is hereby permanently enjoined from using, and from hereafter altering the house and buildings on the premises known as 435 North Pershing Avenue, Wichita, Kansas [legal description], into a six-family residence, or for more than a two family residence, or in any manner altering or using the buildings on said premises contrary to Ordinance No. 12-120 of the City of Wichita. . . .”
On November 8, 1948, plaintiff filed in the same action its verified accusation in contempt, setting out the above injunction, alleging that defendant had in violation of the permanent injunction used said premises for a dwelling house containing eight (8) occupied apartments; and praying that defendant be cited to show why she should not be- punished for contempt for violation of the permanent injunction, and that defendant be made to comply with terms and provisions of the permanent injunction. An order was issued by the court directing defendant to appear and show cause why she should not be punished for contempt for failure to comply with the permanent injunction. On December 16, 1948, defendant through counsel filed her answer; issues were joined, and the case proceeded to trial.
Plaintiff’s evidence disclosed that the mentioned premises were located in a district zoned by the ordinances of the city of Wichita, Kan., as an “A” Residence District — a two-family district — in the year 1940; that the zoning district for the premises had not been changed since that date. The Deputy City Building Inspector and the Chief Fire Inspector for the city both testified that their inspections of the premises on September 21, 1948, disclosed eight (8) separate family living units, each occupied by a separate family and each having separate cook stoves and sleeping accommodations; that an apartment manager was maintained on the premises by defendant. Ordinances No. 12-120, 15-371 and 15-524 of the city of Wichita were received in evidence.
Ordinance No. 12-120, adopted July 10, 1939, provides in sub stance: That the city of Wichita shall be divided into seven “Use Districts” for the purpose of regulating and restricting the location of trades and industries; location, erection, alteration and repair of buildings erected or altered for specific uses; and the uses of lands within the specified districts, said “Use Districts” being shown on an attached map of the city and made a part of the ordinance. (The premises known as 435 North Pershing Avenue, Wichita, Kan., are wholly within Use District designated “A” residence district.) That in an “A” Residence District no building or premises shall be used, and no building or premises shall be hereafter erected or altered, except for one-family or two-family dwellings.
Ordinance No. 15-371, adopted August 17, 1948, sets up further restrictions, none of which are effective as to the property here involved or its location in an “A” Two-Family Residence District. Further zoning revisions in Ordinance No. 15-524, adopted November 16, 1948, do not affect the property at 435 North Pershing Avenue, Wichita.
The above evidence having been introduced, plaintiff rested its case, whereupon defendant interposed a demurrer to plaintiff’s evidence and a motion to dismiss the action, both of which were sustained by the lower court.
Plaintiff has appealed assigning as error the ruling of the trial court sustaining the demurrer and motion to dismiss the plaintiff’s accusation in contempt. Defendant has filed no abstract or brief with this court, but was granted permission to argue her cause orally. In her argument she contends that the permanent injunction was improvidently granted and that she had been operating the premises as a six- and eight-family apartment house since thirty days after the injunction became permanent. At no place in all the proceedings is the procedure or city ordinance challenged.
Practically speaking, there was but one question before the lower court and that was whether defendant had violated the permanent injunction issued November 7, 1940. 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. Frey v. Willey, 161 Kan. 196, 166 P. 2d 659; Smith v. Clothier, 113 Kan. 47, 213 Pac. 1071; Hall v. Eells, 155 Kan. 307, 124 P. 2d 444.
An examination of the original decree in injunction clearly re veals that it permanently and perpetually restricted the use of defendant’s residence property at 435 North Pershing Avenue for more than a two-family residence contrary to provisions of Ordinance No. 12-120 of the city of Wichita. Testimony of two city officials introduced by plaintiff disclosed that the described property was being used for more than a two-family residence; that it had in fact been converted into an eight-family apartment house. This evidence was ample to sustain plaintiff’s case as against a demurrer to the evidence and a motion to dismiss, and those motions should have been overruled.
The judgment sustaining the demurrer and the motion to dismiss is therefore reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Parker, J.:
This appeal is from an order made by the district court in a probate proceeding. Jurisdiction of the district court to make the order is also involved.
Ella Demoret died testate on or about the 11th day of December, 1946, a resident of Reno county, leaving a large amount of real and personal property, the title to which, at least so far as the public records were concerned, stood in her name.
By the terms of her will her executors were authorized and directed to divide her real estate into ten shares or parcels on the basis of value. Each of nine of these parcels was to equal 11 percent and the tenth 1 percent of her real property. When so divided, the executors were directed to convey the parcels as follows: The 1 percent parcel to her grandnephews, Gene Stevens and Joseph Clair Stevens, share and share alike; one 11 percent parcel to C. D. Updegraff, her nephew, and Elizabeth, his wife, or the survivor of them, during their lives, and upon their death to vest in the persons next hereinafter mentioned, share and share alike; one 11 percent parcel to each of eight other nieces and nephews namely, Maud Seyb, Myrtle Young, Molly Seyb, Grace Graber, A. D. Updegraff, James H. Collingwood, Lena Young and Ruby Richardson.
Substantially the same distribution was made of her personal property, the executors being authorized to sell it and divide the proceeds or make distribution in kind.
The will contained no description of the decedent’s real or personal property and provided that the decision of her executors as to the division thereof should be final, conclusive and binding, upon her devisees and legatees.
It is not disputed that a substantial portion of the apparent estate left by the testatrix was acquired from the estate of her brother, D. F. Collingwood, hereinafter referred to as Dan, who died, a resident of Meade county, leaving a will under which she received one-half of all proprety owned by him on the date of his death.
Ella Demoret’s will was admitted to probate in due course and Gene Stevens and Joseph Clair Stevens were appointed as executors in accordance with its terms. Notice of their appointment was first published on February 19, 1947. Thereafter all property standing in the name of such decedent, including that obtained by her under Dan’s will, was inventoried as assets of her estate.
August 12, 1947, within nine months after publication of the first notice, Sigmund Siebert filed a claim against the estate of Ella Demoret. For present purposes it will suffice to say that in his petition, after detailing at length the conditions and circumstances leading up to its execution, he alleged the existence of a trust agreement between Ella and Dan, whereby the latter was to will her one-half of his property, with the understanding and promise she would take and hold it during her lifetime but before her death would execute a will whereby she would devise all of her property thus acquired in equal shares to Dan’s nieces and nephews, except a nephew Mart Collingwood, or in the event of the death of any one of such relatives prior to her death then she would devise the share of such deceased nieces or nephews to their respective blood heirs. He then charged that Ella failed to leave a will as she had agreed to do and that she died holding such property in trust for Dan’s living nieces and nephews, Alfred J. Collingwood, A. D. Updegraff, C. D. Updegraff, James H. Collingwood, Ruby Richardson, Lena Young, Maud Seyb, Molly Seyb, Myrtle Young, Grace Graber, his grandnieces, Diantha Musette Collingwood and Sarah Ellen Collingwood, daughters of Lelo P. Collingwood, a deceased nephew, and the claimant himself, a grandnephew and son of Jessie Siebert, a deceased niece. He then asked that the probate court find Ella held the property acquired from Dan in trust during her lifetime for all his nieces and nephews, except Mart Collingwood, living at the time of her death, and the blood heirs, of any such nieces and nephews who might be dead, living at the time of her brother’s death; that such trust be imposed on all property real and personal received by Ella from Dan’s estate, and that he be adjudged to be the owner of an undivided one-twelfth interest therein.
On August 12, 1947, pursuant to direction of the probate court, Siebert gave notice of a hearing on his petition to all devisees and legatees named in Ella’s will and to all persons claimed by him to have an interest in Dan’s property by reason of the trust agreement therein set forth, including Faye Collingwood, as guardian of Diantha Musette Collingwood and Sarah Ellen Collingwood, minors. Among other things his notice specifically stated that Ella had received Dan’s property and held the same in trust during her lifetime for the nieces and nephews named in his petition, that he was asking that the trust be imposed on all such property and that on failure of any of the parties so notified to file written defenses to the petition on or before September 15, 1947, judgment would be rendered in accord with its terms.
The record does not disclose the reason for the delay but the fact is that nothing happened after service of his notice until February 10, 1948. On that date, which we pause to add was more than nine months from the publication of the executor’s first notice to creditors, Faye Collingwood, as guardian of the minors heretofore mentioned, filed a petition in probate court, referred to therein as an answer and intervening petition to Siebert’s petition. No useful purpose would be served by a detailed recital of the allegations of this pleading. It can be said, however, that under its averments the guardian made substantially the same claims as those made by Siebert in his petition and alleged that under and by virtue of the trust agreement Ella held all property received from Dan’s estate in trust, that on the date of her death it belonged to the persons named in her petition (who were the same as those named in Siebert’s petition), and that each of such persons, except her wards who owned a one-twelfth interest jointly, was the owner of an undivided one-twelfth interest therein.
So far as the record shows the executors gave no attention to the noticed hearing on Siebert’s petition until April 1, 1948, at which time they filed an answer. On the same day they demurred to the pleading filed by Faye Collingwood, as guardian, on grounds that it failed to state facts to constitute a cause of action and that the pretended demand set forth therein was barred by the nonclaim stat ute (G. S. 1947 Supp. 59-2239). On the same date the executors filed an answer to the guardian’s pleading, which for informative purposes can be said to state defenses similar to those made to Siebert’s claim, alleging in substance that such pleading failed to state a cause of action; that the guardian’s claim for relief was barred by the nonclaim statute; that the trust agreement relied on was void, and that the property claimed by the guardian to be held in trust for the persons named in her petition was the sole and absolute property of Ella Demoret on the date of her death.
The parties are not entirely in accord as to what took place after issues were joined in the probate court as heretofore stated. We therefore turn to that tribunal’s journal entry of judgment. It recites the parties agreed in open court that Siebert’s claim and the intervening petition of the guardian should be heard and tried at the same time and on the same evidence; that the trial commenced on April 1 and ended the following day; that the executors’ demurrer to the guardian’s pleading was presented, argued, and a ruling withheld until the close of the evidence; that evidence was offered in support of the petition of each of the claimants; that the executors then separately demurred to the evidence adduced in support of each of the claims; that both demurrers were overruled; that the executors rested without introduction of any evidence; that the claims of the respective claimants were then submitted on the evidence adduced by them; and that the demurrer to the intervening petition of the guardian was also overruled.
Included also in the journal entry are extensive findings with respect to the facts on which the probate court based its judgment and decree holding that the agreement between Dan and Ella was entered into as claimed by Siebert and the guardian; that under and by virtue thereof Ella held the property received by her from Dan for the use and benefit of certain of Dan’s nieces and nephews and grandnieces and. grandnephews; that such agreement, as established and enforced, inured to the use and benefit of all such persons, and that the names of all persons for whom such property was held in trust and their respective interests therein were as follows: Sigmund M. Siebert, an undivided one-twelfth; Diantha Musette Collingwood and Sarah Ellen Collingwood, jointly, an undivided one-twelfth; Gene Stevens and Joseph Clair Stevens and Faye Whitson, jointly, an undivided one-twelfth; Alfred J. Collingwood; A. D. Updegraff; C. D. Updegraff; James H. Collingwood; Ruby Richardson; Myrtle Young; Maud Seyb; Molly Seyb and Grace Graber, each an undivided one-twelfth.
Such journal entry also recites that the accounting necessary to determine the property .received and held by Ella Demoret in trust should be and was specifically reserved for further hearing and determination in the probate court on some future date.
The notice of appeal in the instant case, asserted by the executors to have been served by them in perfecting their appeal to the district court from the judgment rendered in favor of the guardian, was filed in the probate court on April 28, 1948. The first paragraph thereof reads:
“To: Diantha Musette Collingwood, a minor, and Sarah Ellen Collingwood, a minor, and Faye Collingwood, Guardian of the persons and estates of Diantha Musette Collingwood, and Sarah Ellen Collingwood, minors; and Walter F. Jones, Guardian ad Litem for Diantha Musette Collingwood and Sarah Ellen Collingwood, Minors; and Jones, Hunter and Dunn, attorneys of record for Faye Collingwood, Guardian of persons and estates of Diantha Musette Collingwood and Sarah Ellen Collingwood, Minors; and to John R. Alden, Probate Judge pro tem of Reno County, Kansas (this notice being served upon said probate judge pro tem for the adverse parties to whom this notice is addressed);”
It will be noted that the last twenty words of the paragraph just quoted are emphasized by parentheses. On first blush this might appear to be unintentional. That this is not true is evidenced by the other notice of appeal filed by the executors in probate court on the same day in connection with what they term their appeal to district court from the judgment in favor of Siebert. The first paragraph of that notice contains identical language similarly emphasized, and reads:
“To: Sigmund M. Siebert and Jones, Hunter & Dunn and Cunningham, Walker & Cunningham, his attorneys of record; and to John R. Alden, Probate Judge pro tem, of Reno County, Kansas, (this notice being served upon said probate judge pro tem for the adverse parties to whom this notice is addressed) :”
At this point it should perhaps be stated that although each notice of appeal contains the emphasized language heretofore quoted the proof of service filed by the executors states that a copy of each such notice was served on the probate judge pro tem for all persons named therein and for all persons entitled to take any interest or estate under the will. Likewise added that no personal service was had on anyone other than the persons to whom such notices are addressed.
In district court, the executors filed a special demurrer to the guardian’s petition on the ground the pretended claim therein set forth was not filed within nine months after the date of the first published notice to creditors as required by the nonclaim section of the probate code (G. S. 1947 Supp. 59-2239). This demurrer was sustained by the district court. The guardian took action which entitles her to appellate review of that ruling.
Following perfection of her appeal the appellant filed a motion in this court challenging the jurisdiction of the district court to entertain the appeal from probate court on the ground notice of appeal was not served upon all the adverse parties in probate court and asking that we direct the district court to set aside its order sustaining the special demurrer and dismiss the executor’s appeal.
Appellees contend the motion is entitled to no consideration because the question it presents was not raised in the court below and is not included in appellant’s specification of errors. There is no merit to this contention. Jurisdictional questions when raised are subject to review at any time. Indeed even if the parties do not raise them it is the duty of an appellate court to do so. The rule is so well established that it requires no citation of the authorities supporting it.
If the district court had no jurisdiction of the probate appeal its ruling on the special demurrer is of no force and effect. Therefore the motion must be disposed of before any consideration is given to the merits of the appeal.
G. S. 1947 Supp. 59-2405 sets forth what is required in order to perfect a valid appeal from probate to district court and so far as here pertinent provides:
“To render the appeal effective: (1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal specifying the order, judgment, decree, or decision appealed from, and file such notice of appeal in the probate court with proof of service thereof verified by his affidavit. . . .”
We need not labor long and extended arguments as to what the rule is in other jurisdictions. Neither is it important that on appeals from district court to this court that our code of civil procedure (G. S. 1935, 60-3306) only requires notice of appeal to be given parties who appear and take part in the trial. The section of the probate code from which we have just quoted expressly provides that on appeal from probate court to the district court notice of appeal must be served on all adverse parties to make the appeal effective. Unless and until the legislature sees fit to provide otherwise we must adhere to its requirements.
Thus it becomes our duty to determine who were adverse parties in the probate court and then ascertain whether they were served with notice of the appeal to district court in conformity with the statute.
In giving consideration to the first question much confusion will be avoided by the early disposition of arguments advanced by appellees with respect thereto. Throughout their briefs and in oral argument they insist that Siebert’s claim with respect to the property held in trust by Ella as well as those of the appellant, and for that matter those of others interested under its terms, must be regarded as separate and distinct demands against her estate and that hence, since appellant’s petition was not filed within nine months from the date of the first published notice to creditors her claim was barred by the nonclaim statute (59-2239). It must be conceded our decisions are to the effect a demand against an estate must be exhibited within the period of time stated. Even so they do not go so far as to uphold the appellees' position; It clearly appears from the allegations of Siebert’s petition he was asserting the existence of an agreement which, if proved, would result in a judgment to the effect that Ella merely held the naked legal title to the property acquired from Dan’s estate in her name and that it was no part of her estate. The very essence of his proceeding was the establishment of a unitary trust, the terms of which were not special to him but common to all persons named in his pleading. To succeed himself he had to establish its existence as to them. Under such conditions we have little difficulty in concluding Siebert’s proceeding must be regarded as commenced for the benefit of all persons having a common interest as beneficiaries under the trust.
Having concluded the nonclaim statute has no application under the factual situation here involved we can now determine who were adverse parties on appeal from the judgment rendered by the probate court. Right or wrong, a question which we need not here decide, it decreed that Ella held the property in trust for the parties named in Siebert’s petition who owned it on the date of her death. The judgment was not divisible and should have been appealed from in its entirety. While there is much in the briefs, and we might add in the notice of the appeal from probate court, to warrant a conclusion appellees limited their appeal solely to the portion of the judgment in favor of the guardian the notice does contain a saving clause which, without further comment, we shall treat as applicable to the entire judgment.
We are not disposed to prolong this opinion by attempting to distinguish the numerous decisions, cited by the parties, defining what is meant by the term “adverse parties.” It suffices to say there can be no question but what the term as used in G. S. 1947 Supp. 59-2405, has reference to and includes parties who, after having been served with notice or summons in a proceeding or action, will be prejudiced by the result if the litigant appealing from the judgment rendered in such proceeding or action is successful in his appeal.
So far as the record discloses it clearly appears that Alfred J. Collingwood and C. D. Updegraff were adverse parties. Adverse, because unappealed from, the judgment in appellant’s favor upheld the trust, found that it inured to their benefit and gave them greater rights than they would otherwise have if on appeal to district court a contrary judgment was rendered. To illustrate: Alfred J. Collingwood was not even recognized in the will. Under the judgment he was given an undivided 1/12 interest in the trust property. By terms of the will C. D. Updegraff received a life estate in Ella’s real estate' whereas the judgment gave him an absolute undivided 1/12 interest in the trust property. By the same token it could perhaps be held that all other parties awarded property under the judgment in accord with the terms of the trust were adverse. Of a certainty if the probate court’s judgment stands they take their undivided share of the trust property outright whereas the executors could allocate what they were to receive under the terms of the will. However, we need not labor the point. Within the meaning of the term “adverse party” as used in the statute (G. S. 1947 Supp. 59-2405) the two persons just named were adverse parties entitled to notice in order to perfect a valid appeal and their status with respect to service of that notice will determine its validity.
In an attempt to forestall the conclusion just announced appellees attack the journal entry which they concede was signed by the probate judge and is a part of the transcript of proceeding transmitted by the probate court to the district court. They urge that at the time their notices of appeal were served the journal entry had not been signed and they did not understand judgment had been ren dered in favor of any one but Siebert and the guardian. In short they claim the journal entry does not speak the truth. One trouble with this claim is their notice of appeal contains a statement the probate court had entered a judgment finding that Ella had received property in trust from Dan for the benefit of his nieces and nephews and imposing a trust on all property so received. But regardless whether the journal entry is correct or not the claim is of no avail to appellees at this stage of the proceeding. This court cannot determine the terms of a judgment on controverted claims of the parties. It must assume the journal entry, signed by the judge of a court below, correctly reflects the judgment. Moreover an appellate court is not the proper forum in which to correct a judgment. Action of that character must first be instituted by a proper proceeding in the court in which it was rendered.
The question whether adverse parties were served with notice of the appeal as required by G. S. 1947 Supp. 59-2405 remains. Heretofore we have directed attention to the fact the notices of appeal specifically limit service upon the probate judge to the parties named therein — in the instant case to the guardian. This court is of the opinion the parties are bound by the express terms of their notice and cannot now be heard to say they intended to include other adverse parties.
It is pointed out that a valid appeal may be perfected by service of notice upon the probate court for all adverse parties. This must be conceded. It is then suggested appellees’ proof shows service upon the probate judge for adverse parties. Assuming, without for the moment deciding, the proof of service warrants that construction we are convinced that the terms of the notice are decisive and cannot be contradicted or enlarged upon by the proof.
But our decision in the instant case need not depend entirely upon the conclusion just announced. Turning to the proof of service we note the most that can be said for it is that notice of appeal was served on the probate judge for all parties named therein and for all persons entitled to take any interest or estate under the will. Alfred J. Collingwood who, as we have seen is an adverse party, was not named in the will or entitled to take any interest in the estate. Neither was he a party to whom the notice of appeal itself was directed. Thus from the face of the record it clearly appears there was no service upon him of the notice of appeal as required by G. S. 1947 Supp. 59-2405.
The views heretofore expressed compel the conclusion the district court acquired no jurisdiction over the attempted appeal from probate court because of failure to serve notice on all adverse parties. It follows that orders made by that tribunal in connection with such appeal are of no force and effect and that appellant’s motion challenging its jurisdiction must be sustained.
Appellees bitterly complain that to sustain the motion deprives them of the right to a trial on the merits upon a technicality and results in gross inequity. If this were an equitable proceeding— which it is not — this claim would possess more merit if it did not appear appellees are in no better position than appellant to invoke the aid of equity. They seek to defeat appellant’s claim by application of one section of the statute (59-2239) while she seeks to dispose of theirs through application of another (59-2405). As it is all we can do is to give force and effect to the plain mandate of the last cited section. In view of its clear and unequivocal language to do otherwise would mean that we were substituting our judgment for that of the legislature.
In an attempt to mend their hold appellees have filed with this court a motion to amend their notice of appeal by bringing in additional parties and insist the notice may be so amended under authority of either G. S. 1935, 60-3310 or G. S. 1947 Supp. 59-2405. We do not agree. The first section just mentioned does not authorize this court to permit an amendment of a notice of appeal from the probate court to the district court and under the circumstances is not applicable. Nor do the provisions of 59-2405 permit the requested amendment. We so held in In re Estate of Dudley, 159 Kan. 160, 152 P. 2d 678, where we affirmed a judgment of the district court dismissing an appeal from probate court for failure to comply with another requisite to a valid appeal which — we pause to point out — was no more important if as much so as the requirement that notice of appeal must be served on adverse parties. In the opinion of that case we said:
“In this court appellant stresses the last sentence in G. S. 1943 Supp. 59-2405, which reads:
“ ‘Whenever a party in good faith gives due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just.’
“The contention is that, having given a notice of appeal within time, he might give the bond two or three months after the time for appeal had expired. Appellant is not in position to present this question for the reason that he never made any request upon the district court within the purview of this statute. We add, however, that the purpose of the quoted sentence was to prevent trivial imperfections from defeating an appeal. Certainly the court would be reluctant to say that the simple giving of a notice of appeal would justify the delay of giving any bond until after the time for appeal had expired.” (pp. 163, 164.) -
In conclusion it should be stated that we have not commenced to here answer all of the arguments advanced by the astute and capable counsel for the parties in support of their respective positions on appeal. Many of them deal with the merits of the case and are not mentioned for that reason. Others are based on erroneous theories respecting the status of the parties in probate court, and on appeal to the district court, and on that account have been disregarded. Numerous others material to the issues but not regarded as of sufficient importance to warrant space in the opinion have also been considered and rejected.
Finally we feel impelled to add that had decision of the question been required for the disposition of this appeal we would have no difficulty in concluding that under the facts and circumstances of this case the appellees, as executors of the estate of Ella Demoret, were “aggrieved parties” within the meaning of that term as used in G. S. 1947 Supp. 59-2404 and therefore authorized to take ah appeal from the judgment rendered by the probate court.
The judgment of the district court is reversed with directions. to set aside its order sustaining the special demurrer and dismiss the appeal from probate court. It is so ordered.
Wedell, J., dissenting.
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff brought this action pursuant to G. S. 1947 Supp. 60-3203 for the alleged wrongful death of her husband, Charlie Frederick Waterbury, hereinafter called Waterbury, alleged to have resulted from the negligence of defendants as joint tort feasors. The action was brought for the benefit of plaintiff and Charlene Waterbury, aged eleven years, Waterbury’s daughter by a former marriage. Riss & Company, Inc., was found by the jury not to be guilty of any negligence which resulted in Waterbury’s death and no judgment was rendered against it. Each of the other defendants was found to be guilty of negligence which contributed to his death and judgment was rendered against them for the sum of $12,000. Each of them defended separately and have separately appealed.
We first set out the general statement shown by the record of the relationship of the parties and of the circumstances which resulted in the death of Waterbury. Details will be supplied later, as the necessity therefor appears. Some years prior to the incidents which gave rise to this action Jake Burkhardt, Morris Sigman, Sam Sigman, Sam E. Rudd, Elenore Rudd, Leonard A. Levand and Celia Levand bought the property formerly owned and used by the Jacob Dold Packing Company, which had ceased doing business at Wichita, and hold title thereto as tenants in common. They transacted their business under the name of Burkhardt & Sigman, and hereinafter will be so referred to. This property consists of about eleven acres of land upon which there are about fifteen buildings, most of them large, suitable for the storage of varied types of dry merchandise. Some of these owners lived in Denver, Colorado, and others in Wichita. One of them, Sam E. Rudd, was their manager. He had an office in one of the buildings and was there daily, or at such times as he needed to be, to look after and manage the property. One of these buildings is known as building “J.” It is a brick building, 125 feet square, with a brick wall through its center from north to south, through which were two openings for the transfer of merchandise from one side of the building to the other. The buildings were served with railroad tracks and with driveways for trucks and other vehicles. Along the east side of building “J” is a room spoken of as an annex to building “J” which is 125 feet long and 16 feet wide. It had an opening about the center on the east and another one on the south, and also two openings in the wall between it and building “J.” At the time of Waterbury’s death all of these openings were closed except the one on the east. This annex was originally constructed of lumber on the east side and both ends. At sometime thereafter, but prior to the incident which gives rise to this action, Burkhardt & Sigman had rebuilt those walls of the annex with cement blocks, used also for the foundation of the walls, which were covered with stucco on the outside. The floor of the building was made of bridge planks and so situated as to be from two to four feet above the ground and from near the center of the building for its full width, and for about thirty feet south there was an excavation under the floor six or eight feet deep.
Under the date of April 26, 1947, Burkhardt & Sigman executed a written lease to the Rocky Mountain Industries, Inc., hereinafter called Rocky Mountain, for building “J” for a term of five years, and on the same date gave it written authority to sublet a part of the property. These instruments will be referred to later.
Rocky Mountain was operating a truck line depot and warehouse storage business and had for its manager Frank Barthelme. It had some business arrangement with Riss & Company which had trucks and a certificate authorizing it to haul merchandise. The specific terms of that relationship are not shown by the abstract and are not important here.
In November, 1947, Rocky Mountain orally leased the annex from month to month for a monthly rental of $110 to the Country Club Distributing Company, Inc., hereafter called Country Club. This is a Kansas corporation with headquarters at Wichita and was engaged in the wholesale distribution of Country Club beer in case lots, which they purchased in St. Joseph or Kansas City, Missouri, and had delivered to Wichita in trucks under a contract with the G. & W. Truck Lines, hereinafter called G. & W., which did a freight trucking business and had the appropriate state and federal certificates for conducting that business. G. & W. had trucks for the hauling of merchandise, but did not have a truck tractor and had an agreement with B. F. McReynolds for the rent of his truck tractor and the services of a driver. In hauling the beer McReynolds usually drove the truck himself. He also managed a filling station in Wichita. Waterbury was employed by McReynolds in operating the filling station. On the morning of the tragedy McReynolds had returned from St. Joseph with a truck load of beer which he had transported for G. & W. for Country Club. Under McReynold’s agreement with G. & W. he was to assist in loading and unloading the cargo hauled. That morning he had something else to do and told Waterbury to deliver the truck load of beer to the annex for Country Club.
At that time cases of beer had been stored in the north end of the annex eight cases high, and near the wall at the south end the parties were storing beer in the aisle between the walls when the floor gave way. The cases of beer fell into the aisle and upon Waterbury, with the result that he was so injured that he died before he could be taken to a hospital.
In this court no complaint is made of the amount of the verdict. Neither is it contended that Waterbury was negligent in any respect which resulted in his death. Neither is it contended that plaintiff is not entitled to recover from some one of the appellants. The real contest in the trial court below and here is which one, or if all, of the appellants are liable.
The G. & W. Truck Lines is operating under the workmen’s compensation act. After Waterbury’s death his widow and child filed a claim for compensation against G. & W. under the compensation act. This claim was allowed in the sum of $4,964 and was paid by G. & W. or its insurer. Pending this action in the trial court G. & W. and its insurer filed a motion to intervene and set up the facts and be subrogated to plaintiff in respect to any judgment plaintiff would receive in this action. That motion was denied. After judgment was rendered G. & W. and its insurer filed a claim in the district court to have the amount of it paid in a compensation proceeding out of the judgment recovered. That matter has not been passed upon and is not here for review.
In plaintiff’s petition the pertinent portions of the above facts were alleged, and respecting the liability of defendants it was specifically alleged:
“At all times material hereto, the said building was directly and entirely under the management, control, and possession of each and all of the defendants, and the defendants were jointly in complete control of the warehousing operations in the said building, and the defendants had assumed the responsibility for, and were purporting to discharge the duty of, keeping and maintaining the said building in a safe condition for the protection of any and all persons lawfully in the same.
“The plaintiff does not know, and therefore does not attempt to allege, what specific acts of negligence any one of the defendants may have been guilty of and that may have been the proximate cause of the death of the plaintiff’s husband, but the plaintiff states the collapse of the warehouse floor and the resultant death of the plaintiff’s husband was an occurrence which would not have taken place except for some act or acts of negligence in the inspection, maintenance, operation, or repair of the said building; and the plaintiff states that the sudden collapse of the said floor and the resultant death of her said husband were the direct results of some act or acts of negligence on the part of the defendants, either jointly or severally, in the maintenance, inspection, operation, or repair of the said building.”
And in response to an order made on the motion to make .the petition more definite and certain an addendum to the petition was added, which alleged:
“The freight hauler by whom the plaintiff’s husband was employed on the said 11th day of December, 1947, was B. F. McReynolds, whose residence and postoffice address is 538 Pattie, Wichita, Kansas, who, as this Plaintiff is informed and believes, was hauling the said beer for a freight hauler known as G & W Trucking Company, Wichita, Kansas. The Plaintiff believes and therefore alleges that neither the said B. F. McReynolds nor the G & W Trucking Company had any part in the possession, control, or operation of the said premises.”
The answer of Burkhardt & Sigman contained a general denial of matters not specifically admitted; admitted the allegations in the petition of the residence of plaintiff and the answering defendants; alleged that on December 11, 1947, they were the owners and tenants in common of, the building in which plaintiff alleged her husband met his death, and further alleged that on April 26, 1947, they entered into a certain lease agreement with the defendant Rocky Mountain, which instrument was attached to and made a part of the answer as “Exhibit A,” and also a certain letter, a copy of which is attached as “Exhibit B,” authorizing Rocky Mountain to sublet the premises; that Rocky Mountain entered into possession of the premises described in the lease and remained in control thereof at all times material; that the answering defendants believe and therefore allege that the defendants Riss & Company and Country Club, or either of them, was in possession of the premises on December 11, 1947, subject to the lease, “Exhibit A,” and pursuant to the letter, “Exhibit B.” The lease agreement attached was for a term of five years. The rent was stipulated, and among other things recited:
“That said lessee shall use said leased premises for operating a truckline depot and warehouse storage business. . . .
“That said lessee shall maintain and keep said building and premises in good repair, except the walls and the roof thereof which shall be maintained by the lessor. That said lessee shall make such alterations in the leased premises as are necessary to the conduct of its business; provided, however, that said lessee shall make no structural change in said building without first obtaining the written consent of the lessor.
“That lessee agrees to save harmless, protect, and indemnify the lessor from and against any and all losses, damages, claims, suits or actions, judgments and costs which may arise or grow out of any injury to or death of persons, or damage to property in or about or in any way connected with the demised premises caused solely by the act of the lessee; and lessor agrees to save harmless, protect, and indemnify the lessee from and against any and all losses, damages, claims, suits or actions, judgments and costs which may arise or grow out of any injury to or death of persons, or damage to property in or about or in any way connected with the demised premises caused solely by the act of the lessor; it being understood that any and all losses, damages, claims, suits or actions, judgments and costs which may arise or grow out of any injury to or death of persons or damage to property in or about or in any way connected with the demised premises, caused by the joint or concurring acts of lessor and lessee, shall be borne by them jointly. . . .
“That lessor warrants that it is the owner of the premises hereby demised; that it has full authority to lease the same to lessee for the term herein set out.
“That said lessor, or its agent, shall have the right to enter the premises hereby leased at all reasonable times to inspect said premises.”
It also contained a provision by which the lessee could not sublet the premises without the written consent of the lessor. Upon the same date, however, by letter the clause in the lease limiting the lessee’s right to sublet the premises was referred to and it was said:
“We herewith consent to the sub-leasing of part of said premises for a same or similar line of business, and especially for the dry storage warehouse business, subject always to all of the terms of this lease and to the continuing obligation of the lessee to fulfill all of the obigations of this lease and without relieving it of any of such obligations.”
Rocky Mountain filed an answer which was a general denial of the- allegations of the petition except that it is a corporation; alleged a lease from Burkhardt & Sigman to it, and the letter from Burkhardt & Sigman to it authorizing it to sublet a part of building “ J”; that about November 25, 1927, pursuant to its authority to do so, it entered into an oral agreement with Country Club for the annex to building “J” for use as a warehouse at an agreed rental of $110 per month; that the annex is completely separated from the remainder of building “J” by a brick wall extending the full height of the building; that pursuant to the oral agreement Country Club entered into the exclusive possession, management and control of the annex to building “J” and was in exclusive possession, management and control on December 11, 1947; and that if plaintiff’s husband came to his death, as alleged in the petition, the said death and any and all causes contributing thereto occurred in the east annex to the building and not in any portion of the building in the possession of or under the management and control of defendant; and further alleged that the petition failed to state a cause of action against the defendant Rocky Mountain.
Country Club filed an answer in which it alleged plaintiff’s petition failed to state a cause of action against it, and generally denying all the allegations contained therein. It specifically denied allegations in plaintiff’s petition of the management, control and possession in each and all of the defendants, and that defendants were jointly in complete control of the warehouse operations of the building, and that defendants had assumed the responsibility of discharging the duty of keeping and maintaining the building in a safe condition; denied that the death of plaintiff’s husband was the result of negligence of the defendants, either jointly or severally, in the maintenance, inspection, operation or repair of the building; further alleged that Country Club had entered into an oral agreement with Riss & Company through its agent Barthelme, who was also the agent of Rocky Mountain, by which Country Club leased-' its portion of the premises for the storage of beer on a month to month basis, and that Barthelme had advised Country Club that the place where the beer was being stored at the time in question was perfectly safe to store beer to the rafters, and made no mention of any written lease, or the terms thereof; that the collapse of the floor was due to a latent defect in the building in that there existed a six-foot pit below the ground level, which was unknown to Country Club but well known to Burkhardt & Sigman, and that Country Club had no authority to inspect or make repairs on the premises, and that there was nothing about the premises which called attention to the latent defect. The answer further alleged that plaintiff could not maintain a cause of action against Country Club for the reason that G. S. 1935, 44-503 prevails; that defendant was engaged in the wholesale distribution of beer and was under obligation to provide for the hauling of the beer to its warehouse; that in carrying out this work it entered into a contract with G. & W. Truck Lines to haul the beer from the brewery to its warehouse; that Hillard Waller, one of the partners of G. & W. Truck Lines, had a dual relationship with Country Club; that he was employed as a general warehouse and office worker on a fixed salary, plus overtime; that he made the contract for the hauling and delivery of the beer to the warehouse; that he entered into an agreement with McReynoIds, who was purchasing a tractor, to furnish the truck and driver to pull the trailer owned by G. & W. Truck Lines in the hauling of the beer; that McReynoIds was to furnish a driver to haul the trailer, and the driver was to assist in the unloading of the trucks at the warehouse; that at the time in question plaintiff’s husband, being an employee of McReynoIds, was assisting in such work of carrying beer cases from the truck to the unloading dock, and also carrying such cases from the unloading dock to the place in the warehouse where it was to be stored, and that by reason thereof Waterbury came within the provisions of the workmen’s compensation act as an employee of a subcontractor of Country Club.
Each of the appellants demurred to plaintiff’s petition, which demurrers were overruled. The questions raised in the several answers were properly put in issue by replies. When the case was called for trial counsel for plaintiff made an opening statement. Thereafter each of the appellants filed a motion for judgment on the pleadings and opening statement, which motions were overruled. The plaintiff, called as a witness, testified she was the wife of Charlie Waterbury; that she became acquainted with him in 1944, and was married on June 26, 1947; that at the time of his death on December 11, 1947, he was employed by B. F. McReynolds at a filling station at wages of $50 a week; that he was born January 20, 1908, and was in good health prior to his death; that she was entirely dependent on him for support; that he was previously married and had a daughter, Charlene, by that marriage, who lived in Great Bend; that she paid his funeral expenses amounting to about $400. On cross-examination she was asked whether her husband, prior to the time of this accident, was contributing to the support of his daughter. She testified that she was sure he did. Further inquiry into the matter was objected to by appellant and the objection was sustained. Upon a stipulation being entered into that Waterbury and his first wife were divorced in an action in the district court of Sedgwick county, in which an order was made that Waterbury should pay the sum of $7.50 per week for the support of his daughter, Charlene, to be paid to the clerk of the district court to be transmitted to Charlene, the clerk of the court’s records did not show any payments made through that office.
Sam E. Rudd, called as a witness for plaintiff, testified that he was one of the defendants and one of the owners of what is known as the Burkhardt & Sigman premises; that he is the local manager for the owners in the handling of all matters pertaining to that property and has an office on the property. He described the premises, stated there are twelve buildings on the property, which are leased to nine tenants; that the leases were drawn up by a local attorney, but he is the person on the premises who negotiates them. The lease to Rocky Mountain for building “J” and the letter authorizing the lessee to sublease the property were introduced in evidence. This letter did not specify any particular subtenant. That upon the execution of the lease Rocky Mountain went into possession of the premises. Witness later learned that Country Club had gone into possession of a part of the property. He was in the building prior to Waterbury’s death. The Country Club was in the annex at that time. Mr. Barthelme called his attention to the fact that part of the floor in the center of the annex was spreading. He took his maintenance man, a Mr. Ross, and went in there and looked at the floor. After that examination he advised Mr. Barthelme, who was present, that if they would get the part of the floor load removed they would come in and repair the floor. The floor of the annex was constructed of wood. It was solid over the full 16 x 125 feet, without openings down beneath. After the accident resulting in the death of Waterbury he repaired the floor under a working agreement with Rocky Mountain with regard to repairs, and at that time replaced the entire floor with concrete. The floor of the annex was repaired but once, and that was after the accident. The witness could see for himself that the floor was sagging. When he and Ross were there they took up some of the flooring and Ross went beneath it and found some posts broken. He told Barthelme it would be too dangerous to do any work under the floor without removing the floor load. He discussed this matter with Barthelme two or three times. The witness dictated a letter to Rocky Mountain in care of Barthelme, which was offered in evidence over the objection of Rocky Mountain. The letter, written on a Burkhardt & Sigman letterhead, and dated December 5, 1947, reads:
“In connection with our various conversations relative to the floor in the Northeast part of your East Annex to your building. As the writer explained to you we will be very happy to repair that floor, that is to replace some of the posts that are now broken. This can only be done when you get the greatest part of the floor load removed. Understand that we do not guarantee any floor load. Any damage to the floor, or any part of the building, by this floor cave-in will be your responsibility. We would suggest, however, that the earliest possible time the weight can be removed from your floor you advise us so that this can be repaired; as in our opinion the load you have there now will cause some damage. Please advise us as quickly as possible when we can go in and make these repairs.” The letter was signed, “Burkhardt & Sigman, Sam E. Rudd.”
Counsel for plaintiff objected to the introduction of this letter upon the ground that it was not proper cross examination. Counsel for Rocky Mountain also objected to its introduction for the same reason. Counsel for Burkhardt & Sigman argued that it goes to the ultimate facts and would save time, and that the court and jury should know about it. Further cross examination brought out the fact that the break which occurred at the time of the accident was about eight or ten feet away from where he had seen the floor sagging. Mr. Ross went down beneath the floor. The witness himself could see some broken posts; he did not know how many. By posts he meant supports to the floor load from below. Mr. Ross was not under the floor very long, but he made an examina tion fairly enough to find out what the trouble was. The floor planks were replaced. The witness did not give any indication to Country Club as to the condition found beneath the floor for the reason, as he stated,, that he had no dealings with Country Club.
Frank Barthelme, called as a witness for plaintiff, testified that from May, 1947, until the date of the accident he was employed by Rocky Mountain in the capacity of agent or manager. He was the highest official in Wichita. That since the lease was entered into he operated a truck terminal in that building under his management, which loaded and unloaded freight. He described building “J” and the annex. He recalled having a conversation with Mr. Rudd at the time his maintenance man examined the floor to the effect that if Mr. Rogers, of the Country Club, would remove the beer from that portion of the floor Burkhardt & Sigman would fix the floor. They would do this only when the load was off the floor because it would be too dangerous to go under the floor until the load was removed. After that conversation he received a letter from Burkhardt & Sigman, but did not remember what he did after receiving the letter. Before receiving it, and after he talked with Mr. Rudd and examined the premises, he talked to Mr. Rogers of Country Club and passed to him the information Rudd had given the witness to the effect that when the load was removed from the floor on the portion of the building he noticed was sagging that Burkhardt & Sigman would make the necessary repairs; that when he and Rudd examined the part of the floor on which the beer was situated the annex was about one-third full of beer, and it had about the same amount of it when he told Rogers that if he would remove the beer Burkhardt & Sigman said they would repair the floor. So far as the witness knew, Country Club did nothing with reference to that beer after he had told them. More beer was put in, so that at the time of the accident the annex was nearly full. The witness did not recall the exact date when Country Club started to store beer in the annex. He noticed the floor was beginning to sag a couple of days after they started to store the beer. His oral agreement with the Country Club was that he rent them the complete annex. No written lease was prepared at the time, but a lease was to be drawn up, and it was actually drawn quite awhile after the accident. He further testified that the doors and openings to the annex were closed, except one, which had a padlock on it; that no employee of Rocky Mountain was in the annex when the accident occurred; that he was in the annex two or three times after Country Club started to store beer there. He heard the floor cracking a little and thought they would go in and examine it. He did not have Country Club’s permission to take up some of the floor to make the examination. Mr. Rudd, his maintenance man, and the witness w4ere present when the examination was made.- No warning signs were put up and no repairs made on the floor before December 11, 1947. The witness further testified that he never directed any of the activities of the Country Club after he subrented it with reference to the unloading of beer in the annex, or doing anything else; that he did not tell Country Club where to put beer in the annex. At the time he leased the annex to Country Club Mr. Rogers told him what Country Club wanted to store. He may have told Mr. Rogers at that time that it had been used by Beechcraft, but he didn’t know what they stored there. He did not tell Mr. Rogers in substance that he could pile beer in the south end up to the rafters and it would handle it. He did nothing other than talk to Rogers about moving the beer and fixing the floor.
H. R. Rogers, called as a witness for plaintiff, testified he was the manager of Country Club, which is a wholesale distributor of cereal malt beverages; that about the middle of November he had an oral conversation with Barthelme about renting the annex to building “J.” Barthelme told him that the annex was for rent and that it had been occupied by Beech. Nothing was said to him as to who was to maintain or make repairs on the building. Thereafter, when the floor was sagging in the north end, Barthelme told him his landlord, or the man who looked after the property, had seen the floor was sagging and that he wanted to brace it; that he didn’t want to put a man under the floor with a heavy load on it. Barthelme did not tell him to remove the load, but said if the witness’s men were busy he would take his men and move the beer into the warehouse until the floor was fixed. The witness told Barthelme he did not want to put him to that trouble, that if there was no particular rush to fix the floor he would start to fill the south end and that they would be taking the beer out of the north end within the next two weeks, which would relieve the floor that much, and that Barthelme told him that if they were going to move the beer out that soon that it would not be necessary to move it. The witness told Barthelme that he was going to fill the south end, and asked about the floor to the south, and that Barthelme said he was sure that was in good condition -and that he could stack it clear to the rafters if he wanted to, and that he went and stacked beer in the south end until he had it almost full; that after the break in the floor he went to see it. The floor was twenty or twenty-four inches from the level of the ground as the witness went into the building; that where the floor fell there was a pit six to eight feet deep, about thirty feet long, the width of the building; that the floor broke in the middle and pulled the stringers out of the wall on each side; that the place where the floor broke was about in the middle; that Mr. Barthelme talked about wanting to go under the north end and brace it; that he did not say anything about putting supports under the south end; that Barthelme told him on the south end he could store to the rafters; that after the cave-in he and his foreman, Mr. Walter Binge, went to see Mr. Barthelme and asked Barthelme if he didn’t tell the witness that he could go to the south end; that it was substantial and we could stack clear to the rafters if we wanted to; and he said, “that was what I said and I will stay with it.’’ He further testified that Barthelme notified him that the floor was sagging in the north end, but that no one had told him of the examination made of the floor but Barthelme and his maintenance man; that at that time Barthelme called his attention to the sagging of the floor and that the entire north end of the annex had been filled with beer, about 4,000 cases. When the floor collapsed there were 8,825 cases of beer in the annex. One case weighs a fraction over 40 pounds and covers 16x11 inches of floor space; stacked eight cases high the floor load would be about 325 to 350 pounds per square foot. If the annex is 16 x 125 feet that would be 2,000 square feet, and at 350 pounds per square foot the total floor load would be 700,000 pounds. The openings between the annex and the main building were closed. When Barthelme offered to loan some of his men to move the beer from the north end of the annex so the floor could be repaired the witness told him:
“That was nice -of him, we were busy, but that wouldn’t be necessary, if they couldn’t wait, we would move it. That we were going to start to using out of the north end and in the next two weeks would have at least 2,000 cases moved.”
This was about a week before the cave-in, at which time no beer had been removed from the north end.
B. F. McReynolds testified that early in December, 1947, he was operating a filling station and was also engaged in the business of driving a truck; that he owned and leased to G. & W. his trac tor without a trailer, and at times drove the tractor-trailer for G. & W. for the purpose of hauling beer from Missouri to Wichita; that on the morning of December 11 the tractor-trailer had returned to Wichita with a load of beer consigned to Country Club; that he had two employees at his filling station, Waterbury and another; that Waterbury was on duty that morning; that he did not go with the truck to be unloaded that morning, but sent Waterbury in his place.
Hillard Waller testified that he had lived in Wichita for nine years; that he was engaged in the trucking business under the name of the G. & W. Truck Lines; that he was authorized by the Interstate. Commerce Commission and the Kansas Corporation Commission to do contract hauling from Missouri to Kansas and was under a contract, among other .people with Country Club, to haul beer from St. Joseph and Kansas City to Wichita and had a contract with McReynolds whereby he leased McReynolds’ tractor to- operate under the G. & W. carrier permits; that on the morning of December 11, 1947, McReynolds’ tractor was there with a load of beer for Country Club; that the witness and Waterbury were present at the annex to building “J” and assisted in unloading it; that they were finishing loading the south aisleway and bringing the conveyor to the door when the floor caved in without warning. Waterbury was covered up by cases of beer. The witness helped get him out, but Waterbury died either on the way to the hospital or soon thereafter. The witness further testified that no employee of Rocky Mountain was present when the beer was being unloaded; that he saw the floor at the north end after it commenced to sag prior to the south end collapse; that it sagged all the way from two to five or six inches from its normal level; that Walter Binge, foreman of Country Club, was in charge of stacking the beer; that Binge told where to stack the beer; that at the time of the accident he was in the employ of G. &. W.; that under his contract with Country Club “it was our duty to haul the beer and unload it on the dock and help load it into their warehouse.” The witness further testified that:
“At the time of the accident I was also in the employ of Country Club Distributing Company part time in the position of office worker and warehouse worker which was wholly separate from our contract to haul beer.”
At the close of plaintiff’s evidence each of the appellants here filed a demurrer to the evidence. These demurrers were overruled. Burkhardt & Sigman called no additional witnesses. Rocky Mountain called their manager, Frank Barthelme, who had previously testified. He repeated the substance of his former testimony about the leasing of building “J” and subletting the annex to Country Club and testified that after Country Club started putting beer in the annex you could hear the floor giving a little; that he called Mr. Rudd’s attention to it; that Mr. Rudd brought his maintenance man and looked at it, and that “Mr. Rudd told me that if we would take the load off the floor, he would repair it”; that he immediately contacted Mr. Rogers, the manager of Country Club, and offered to use some of his men to move the beer into the other part of the building till the floor could be fixed; that Rogers said there was not much use in doing that because in a couple of weeks he would have the beer out of the north end. He told Rogers about the examination of the floor and all he knew about the condition of the floor, and further testified:
“I never agreed with Mr. Rudd or anyone else that I or Rocky Mountain Industries would be responsible for any break in the floor. I had nothing to do with the letter addressed to Rocky Mountain Industries by Burkhardt & Sigman, B. & S.’s Exhibit ‘A’, and did not agree to the statement in the letter about any damage by a floor cave-in being our responsibility. . . . Mr. Rudd did not ask me or my company to repair the floor. He said he would repair it.”
Martin Dondlinger, called as a witness for Rocky Mountain, testified that he had been a contractor for about twenty years; that he-went into building “J” where the accident occurred on December 11; that he was familiar with the construction of the floor of the annex; that the floor boards ran north and south and that at the place where the floor gave way there were 3 x 12 joists running east and west under the floor twenty-four inches apart. He further testified:
“The maximum safe floor load for a building of that type of construction is about 125 pounds per square foot. It would carry some more than that, but that allows for the safety factor. It might carry 200 pounds to the square foot, but if you had a jar or something, you would be liable to break it. . . . This was typical warehouse construction at the time it was built but would not be typical today.”
Country Club called Walter Binge as a witness. He testified that he was warehouse foreman for Country Club, had been since before November 10 and later than December 11, 1947; that during that time G. & W. delivered beer for storage in the annex to building “J”; that a part of his duties was to direct the storage of the beer from the truck to the annex floor; that a few days after Country Club leased the annex he went there to look over the building, which at that time did not appear to have any defects in the structure of the floor, it looked substantial. “When we had beer stacked in about half of the north end, we could all see that the floor had sagged”; that on December 11,1947, he was in charge of stacking and storing the cases of beer in the annex; that the witness Waller and Waterbury were in the building when the floor gave way without warning. Country Club also introduced in evidence a certified copy of an instrument which showed that on July 24, 1946, it had filed with the commissioner of workmen’s compensation its election to come within the provisions of the workmen’s compensation law.
At the close of the evidence each of the appellants here filed a motion for judgment or for an instructed verdict, which several motions were overruled. The court instructed the jury. Appellants’ criticism of the instructions will be noted later. At the request of Rocky Mountain and Country Club, objected to by Burkhardt & Sigman, the court submitted special questions to the jury, which questions and answers are as follows:
“1. Q. Do you find that the defendant, Riss & Company, Inc., was guilty of any specific negligence which was the proximate cause of the death of Charlie Waterbury? A. No. . . .
“3. Q. Do you find that the defendant, Rocky Mountain Industries, Inc., was guilty of any specific negligence which was the proximate cause of the death of Charlie Waterbury? A. Yes.
“4. Q. If your answer to the foregoing question is in the affirmative, state what such negligence consisted of? A. Failed to have building condemned and insist on building being put into safe condition.
“5. Q. Do you find that the' defendant, Country Club Distributing Co., Inc., was guilty of any specific negligence which was the proximate cause of the death of Charlie Waterbury? A. Yes.
“6. Q. If your answer to the foregoing question is in the affirmative, state what such negligence consisted of? A. Failure to have building condemned and put in safe condition. Also continuing to add load to the floor.
“7. Q. Do you find that the defendants, Burkhardt, Morris Sigman, Sam Sigman, Sam E. Rudd, Elenore ’ Rudd, Leonard A. Levand and Celia Levand, were guilty of any specific negligence which was the proximate cause of the death of Charlie Waterbury? A. Yes. Failure to have building condemned and put in a safe condition.”
As previously stated, the general verdict was in favor of the plaintiff in the sum of $12,000 against the defendants, Burkhardt & Sigman, Rocky Mountain and Country Club. Each of the appellants filed post-trial motions, including a motion for a new trial, all of which were considered by the court and overruled, and the defendants have appealed separately.
Each of them filed an abstract setting out that portion of the record which its counsel deemed appropriate to its appeal. This has resulted in some overlapping and perhaps in some omissions of pertinent portions of the record. Counsel for appellee in their brief state that for that reason they are not filing a counter abstract but will refer in their brief to a few portions of the record omitted from any of the abstracts filed by appellants. We shall endeavor to note those we deem pertinent.
We now turn to the consideration of the legal questions argued.
The respective counsel for appellants complain of the rulings of the trial court upon various demurrers and motions. We have examined each of these and find nothing seriously wrong with the rulings of the court, certainly nothing that would justify a reversal. It would serve no useful purpose to set these out in detail and discuss and rule upon them.
Counsel also argue that the case was predicated upon the doctrine of res ipsa loquitur, that the evidence showed specific negligence, and that the answers to special questions, the verdict and judgment were predicated upon specific negligence. Assuming this argument to be well taken, and that someone is to blame for it, the record discloses appellants did much more to bring that situation about than did the appellee. The allegations of the petition and the testimony of plaintiff disclose that Waterbury's death arose from an accident for which any or all of three or four parties were to blame. With the parties contending between each other as to which was to blame it would have been difficult if not impossible for plaintiff or her counsel before filing the petition to have made an inquiry and to have found the specific acts and claims of the respective defendants. For that reason it was not improper to predicate the action upon the doctrine of res ipsa loquitur. Each of the defendants filed answers, each denying liability and alleging facts designed to relieve that party of liability and place the blame upon one of the others. When the trial started plaintiff was called to the stand and testified to the facts indicating that some one or more of the defendants was liable. This is not now controverted by anyone. Plaintiff then called the manager of each of the appellants and examined him primarily with respect to the relation of that defendant to the business and its control thereof. Counsel for the respective defendants on the cross-examination of that witness went further than the direct examination to bring out additional facts. Counsel for plaintiff objected to that as not being proper cross examination. The court permitted counsel for defendant to go forward with the examination and bring out such facts as he desired from the witness. Some of the matters so called out from further examination by plaintiff or counsel for one of the other parties brought out additional facts tending to show or bearing upon specific negligence. This process continued as to each of the appellants.
In this connection we had as well deal with the special questions. Counsel for plaintiff did not ask for special questions. Counsel for Rocky Mountain and for Country Club did ask for special questions. Counsel for Burkhardt & Sigman objected to the giving of special questions. We call attention to. the fact that the special questions relate only as to whether each of the respective defendants was guilty of any specific negligence which was the proximate cause of Waterbury’s death. That was the real controversy as between the respective defendants. We think it was appropriate for the court to submit the questions. Indeed, the parties who desired them were entitled under the statute to have them given. (G. S. 1935, 60-2918.) It will be noted that as to three of the defendants there were two questions: First, was the party guilty of negligence? Second, if the answer was in the affirmative for the jury to state what such negligence consisted of. Since the jury did not find Riss & Company guilty of such negligence, it did not answer the second question as to it. As to the defendants Rocky Mountain and Country Club, the first of the two questions was answered in the affirmative and the second was answered. With respect to the defendant Burkhardt & Sigman, only the first of the two questions was asked. The jury answered that “Yes” and went on to state what the negligence consisted of. Their counsel here complain of the latter portion of that answer and contend there was no evidence to support it. In fact, all of the answer to the question submitted to the jury in addition to the word “Yes” was surplusage. It should have been stricken and no doubt would have been had anyone requested it. It need not be considered. (See Hall v. Kansas City, 112 Kan. 752, 212 Pac. 875, 30 A. L. R. 782.)
The doctrine of res ipsa loquitur is not one of substantive law, but is one pertaining to evidence. Where it is relied upon alone it simply means that certain facts and circumstances raise an in ference or presumption of liability. Generally speaking the rule is that when specific acts of negligence are brought into the case by the evidence the doctrine of res ipsa loquitur loses its force and the case must be determined upon the facts showing specific negligence. (See Daniel v. Otis Elevator Co., 154 Kan. 293, 118 P. 2d 596.) We are cited to no authority and our research has disclosed none holding that when res ipsa loquitur is pleaded and relied upon by plaintiff and at the trial defendants’ evidence discloses specific acts of negligence of defendants which justify judgment for plaintiff, that plaintiff is thereby defeated in his action.
In this court counsel for Country Club, aside from rulings upon motions and demurrers already disposed of, present but one question for our determination. They contend that Country Club is liable to plaintiff, if at all, only under the subcontractor section of our workmen’s compensation law (G. S. 1935, 44-503). Their argument runs like this: Country Club is a licensed distributor of cereal malt beverages; it cannot distribute the beverages unless it can have the beverages transferred from where they are made to its warehouse in Wichita; that it made a contract with G. & W. to transfer the malt beverages from Missouri to Wichita; that Waterbury was an employee of G. & W., and that Waterbury’s death by accident while so employed is one for which Country Club, as the principal contractor, is liable; it is pointed out that when the workmen’s compensation law is applicable it constitutes the sole remedy of the workman or his dependents, hence that plaintiff could not maintain a common-law action against Country Club for damages. The argument lacks merit. Country Club, as a distributor of malt beverages, is licensed by the director of revenue of the state commission of revenue and taxation and its business is conducted under the authority of our statute (G. S. 1947 Supp. 21-2701 et seq. and 79-3817 et seq.). G. & W. is not licensed as a distributor of malt beverages and is not employed by Country Club to do that type of work by any type of contract. G. & W. is licensed as a contract carrier under our statute pertaining to the regulation of motor carriers of persons and property (G. S. 1935, 66-1,102 et seq., and specifically 66-1,112a) issued by the state corporation commission. It is not licensed as a distributor of malt beverages. Neither Country Club nor G. & W. is authorized under its license to conduct the business of the other. Waterbury was a temporary or substitute employee of G. & W., which was operating under the workmen’s compénsa tion act, and its beneficiaries were entitled to recover under that act from G. & W. or its insurance carrier, and did so. This fact did not prevent his dependents from suing Country Club in a common-law action for damages. (See, G. S. 1947 Supp. 44-504; Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219.
In their brief counsel for Country Club make no contention that Country Club was not guilty of specific acts of negligence which contributed to the death of Waterbury, as the jury found. Therefore judgment was properly rendered against Country Club.
Counsel for Burkhardt & Sigman, in addition to discussing the rulings of the court on certain motions and demurrers hereinbefore disposed of, relied primarily upon their lease with Rocky Mountain, pertinent portions of which have been set out herein, and upon the general law of landlord and tenant. They point to the covenant in the lease,
“That said lessee shall maintain and keep said building and premises in good repair, except the walls and roof thereof which shall be maintained by the lessor. That said lessee shall make such alterations in the leased premises as are necessary to the conduct of its business; provided, however, that said lessee shall make no structural change in said building without first obtaining the written consent of the lessor.” ,
And also point to the provision;
“That said lessor, or its agent, shall have the right to enter the premises hereby leased at all reasonable times to inspect said premises.”
They argue that since Waterbury’s death did not result from any collapse of the walls or roof they are not liable. This overlooks the provision of the lease “That said lessee shall use said leased premises for operating a truckline depot and warehouse storage business,” which amounted to a representation that the building was suitably constructed for that purpose.- It also overlooks the provision in the lease indicating the parties contemplated injuries to or death of persons might result under circumstances for which the lessor and the lessee would be jointly liable. Nothing was said in the lease about a floor load. Nothing was said concerning that matter until in the letter of December 5, 1947, of Burkhardt & Sigman to Rocky Mountain written by Rudd after he knew the floor was sagging and at a time when he realized that the load on the floor at that time would cause damage. Notwithstanding the interpretation which should be given to the lease with respect to the lessee making repairs, as to whether that- applied to the floor, the evidence clearly discloses that a few days before the letter of De-' cember 5 was written Rudd, the manager of Burkhardt & Sigman, was advised that the floor was sagging; that Rudd took his maintenance man Ross there to examine it, and that he then said that he would repair the floor if the load was removed so that men could work at it safely. He did not ask Rocky Mountain’s manager, Bathelme, who was present, to repair the floor, but said he would repair it. We think these facts tend rather clearly to show that Burkhardt & Sigman did not understand the wording of the lease to require Rocky Mountain to repair what was obviously a serious weakness of the floor, which Rudd knew was then overloaded. There was also evidence that the structure of the floor would not hold safely a weight of more than 125 pounds to the square foot. The load then on the north end of the floor was something over twice that. Burkhardt & Sigman had rebuilt the north, east and south walls of the annex, probably constructed the floor, and knew it was from two to four feet above the ground and that it was supported with posts ■underneath, which posts had rotted or broken. The American Law Institute, in its Restatement of Torts, § 357, lays down what appears to be the applicable rule as follows:
“A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if
“(a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and
“(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented.” (Our emphasis.)
This rule supports the trial court in submitting to the jury the question of the specific negligence of Burkhardt & Sigman, and also of Rocky Mountain.
Counsel for Rocky Mountain argue that as the lessee of Burkhardt & Sigman and as the lessor of Country Club it was the duty of the ultimate tenant, Country Club, to keep the premises in good repair. In the situation shown by the evidence in this case we think the point is not well taken. We have none of the terms of the lease to Country Club except that it was leased by Rocky Mountain to Country Club under an oral agreement from month to month that Country Club should use the place for the storage of beer. This necessarily carried with it the representation that the building was suitable for that purpose. There was a controversy between Rocky Mountain and Country Club as to whether there was any representation as to the quantity of beer which Country Club might store in the building. Apparently the jury resolved that in favor of. Rocky Mountain, which evidence was to the effect that no specific representation was made by Rocky Mountain as to the amount of beer which Country Club might store there. The fact, however, remains that when Rocky Mountain’s manager discovered soon after Country Club commenced using it that the floor was sagging, and later learned that the quantity of beer stored there was likely to cause damage to the building, and perhaps to those rightfully in there, Rocky Mountain did nothing effective to prevent the breaking of the floor, with the resulting death of Waterbury. We think the question of Rocky Mountain’s negligence in that respect was a proper one to submit to the jury and that the finding of the jury with respect thereto was supported by substantial, competent evidence.
Both Burkhardt & Sigman and Rocky Mountain argue that there was an intervening cause, namely the negligence of Country Club in continuing to pile great quantities of beer in the building when it was known the floor was so defective that it was likely to cause damage. It can hardly be said, however, that they did not also know those facts. Neither is it correct to say, as their counsel argue, that they had no way to stop it, since Country Club was the tenant actually and primarily in possession of the building. This does not follow. In the lease from Burkhardt & Sigman to Rocky Mountain the lessor specifically retained the right to inspect the premises. Obviously, under the terms of the oral agreement with Rocky Mountain and Country Club the manager of Rocky Mountain had the right to inspect the property. At any rate he did so. He found the floor sagging, thought it dangerous, sent for the manager of Burkhardt & Sigman, they examined it, and both of them thought it dangerous. Rocky Mountain’s manager offered to remove some of the beer so that repairs could be made and communicated that fact to the manager of Burkhardt & Sigman. They both yielded to the suggestion of the manager of Country Club to delay their repairs for perhaps two weeks until Country Club would remove some of its beer in the normal course of its business. Whether that conduct was negligent which, combined with the negligence of Country Club in continuing to put much greater weight upon the floor, resulting in the floor giving way and in Waterbury’s death, we think was a proper question to submit to the jury. Both of these appellants argue that the annex was not a building open to the public, hence that they were not liable to some member of the public who went into the building. We see no room in this record for the consideration of that point. Waterbury was not there as a member of the public. He was there in the capacity of an employee of G. & W., who were rightfully in the building to perform a part of their duties.
At the trial counsel for Rocky Mountain objected to several of the instructions, but they discuss none of them here and we presume the objections to them have been abandoned. Counsel for Burkhardt & Sigman at the trial objected to one of the instructions and bring only that one here. Ordinarily when a number of instructions are given and only one of them is brought to the court we regard the record insufficient for its examination. Passing that, however, we have read the instruction and see nothing seriously wrong with it.
This record is peculiar in that four defendants were contesting among themselves as to which of them were liable to plaintiff in a case in which it was not contended by any of them that plaintiff was not entitled to recover from some of the defendants. We think the record shows that each of the defendants had full opportunity to introduce all the evidence it cared to introduce, that the evidence as a whole presented a situation quite clearly to the jury and the trial court, and that there is no material error in any of the rulings of the trial court.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for an alleged malicious prosecution. Judgment was rendered for the plaintiff and the defendant appeals.
In his petition plaintiff alleged that on February 15, 1947, defendant falsely and malicously stated to Glenn Davis, a deputy sheriff of Sedgwick county, that plaintiff had certain property consisting of bed clothing, blankets, sheets and towels, and canned peaches, which plaintiff had stolen from the county hospital of Sedgwick county and that .said statements were untrue and known to defendant to be untrue; that the statements were made for the purpose of causing plaintiff to be discharged from his employment as a stationary engineer at the hospital and for the express purpose of causing plaintiff to become in default in payments ordered'by the district court in a certain numbered action thus creating an obligation of the plaintiff to pay defendant the sum of $2,000 forthwith; that in truth the property mentioned was in possession of. the defendant; that defendant stole said properties from the hospital and placed them in the residence formerly occupied by the defendant and falsely and maliciously stated they had been brought to the residence by plaintiff, all for the purpose of causing plaintiff humiliation and ridicule; that by reason of such statements Davis, the county attorney, and Huston, chairman of the board of county commissioners of Sedgwick county, believed the statements to be true, when in fact they were false, and caused a warrant to be issued for plaintiff, as a result of which he was arrested and brought before the city court of Wichita and required to make bond for his appearance. Details of these criminal proceedings need not be noted further than that the prosecution was dismissed. He prayed for actual damages and in a second cause of action for punitive damages.
The defendant’s answer was a general denial.
At the trial defendant demurred to the plaintiff’s evidence and that demurrer being overruled, defendant offered her evidence. The jury returned a verdict in favor of plaintiff for both compensatory and punitive damages. Defendant’s post-trial motions were denied and she appeals from the ruling of the trial court on her demurrer to plaintiff’s evidence and from the ruling on her motion for a new trial. '
For reasons not disclosed, the plaintiff, as appellee in this court, has seen fit to file no counter abstract or brief in this court and we are not advised as to what he may have urged in the trial court to procure the rulings in that court of which complaint is here made.
Did the trial court err in its ruling on defendant’s demurrer to plaintiff’s evidence? In reviewing the plaintiff’s evidence, we shall refer only to those portions dealing with whether the defendant was responsible for the criminal proceeding instituted against the plaintiff and whether she acted maliciously and without probable cause.
Glenn Davis testified that he was a deputy sheriff; that he knew the plaintiff and had been to plaintiff’s premises; that another deputy Dial was out there on December 8, 1946, because of a call from defendant; that at a later date witness and Dial went there and picked up three crates of canned peaches, seven blankets, five sheets, eight bedspreads and eleven towels, all marked “Property of Sedgwick County, Kansas” as well as three other articles; that the articles were in the kitchen piled in a pile and defendant said it was stolen from 'the county hospital and that “I don’t want it here”; that he did not know whether she told him who she claimed stole the property; that he took the property to the sheriff’s office and called the county commissioners; that Barnes told him a Mrs. Boyd, in charge of the hospital, had loaned it to him; that Mrs. Boyd told him a part of what Barnes said was true, that it was two blankets and two sheets, or three blankets and one sheet, but she knew nothing about the rest of the property; that he was not present when plaintiff was interviewed by the county commissioners; that he was not present the firSt time articles were picked up at plaintiff’s house; that he would not have taken the matter before the county commissioners if his own independent investigation had not revealed probable cause; that he did not recommend dismissal of the charge against plaintiff and did not know it had been dismissed.
Plaintiff, testifying in his own behalf, stated that he had been employed as an engineer at the county hospital; that his wife, the defendant, sued him for a divorce and he was restrained from visiting his home; that they were going to have company and did not have enough blankets and stuff and he went to Mrs. Boyd and borrowed them the latter part of August and his wife said she would wash them before he returned them but she did not do so; that when the restraining order was made the property belonging to Sedgwick county was in the house and he went out to get it and defendant refused to give it to him; that since he could net get the property he just'let it go; that Dial came out to the hospital and talked to him and that he then came down to see the county commissioners; that he then went and got “this stuff” and turned it over to Mrs. Boyd; that the next time anything came to his attention about the property was when he was arrested by the city marshal who showed him some “stuff” stolen from the hospital, but he had never seen any of it before. On cross-examination he stated all he had taken from the hospital was blankets and sheets for two beds and he hadn’t takén them back as his wife had not washed them.
Huston testified he was a county commissioner and knew plaintiff, who'was an engineer at the county hospital; that the county commissioners had been informed that some property of the county hospital was at Barnes’ former residence and he had had one conversation with Barnes; that he was the prosecuting witness; that his signature was on the complaint; that he read the charge before he signed it and that he would not have signed it if he did not think Barnes was guilty or that there was probable cause to believe him guilty; that the board believed Barnes had confiscated the property and that was the reason they discharged him and not the fact the case had been brought against him. He further testified that he did'jnot know from his personal knowledge that Barnes had taken anything; that his information was from the deputy sheriff; that he did not merely take his word, he saw the property marked “Sedgwick County”; that he remembered telling Barnes if he had any county property to take it back and that Mrs. Boyd had told him that she let Barnes have some property.
Beard testified he was a county commissioner; that the matter of Barnes having county property came to his attention about December 1, 1946; that the commissioners directed the sheriff to go over and see what he could find; that there was some talk of issuing a warrant but no warrant was issued on the first trip; that the board had information Barnes had property belonging to the county; that he saw the first lot of property brought in and that property was brought in two different times.
There was no evidence to support plaintiff’s allegation that defendant stole any articles and placed them in plaintiff’s residence.
It is generally held that to maintain an action for malicious prosecution, the plaintiff must show that the defendant was responsible for the institution or continuance of the original proceeding of which complaint is máde, and it is not sufficient to show that he has mere passive knowledge or acquiesces in or consents to the acts of another, it must be shown that he was affirmatively active in instigating or participating in the prosecution. In a criminal prosecution he must have been the prosecutor or the actor and moving cause in the prosecution, and he is sufficiently the prosecutor where the action was instituted at his instance and request by a public prosecutor. Where a person states the bare facts as to the conduct of a third person to a public officer and the latter erroneously deems a crime to have been committed and directs an arrest, it is the officer’s error rather than the defendant’s act which is the cause of the plaintiff’s injury (see 34 Am. Jur. 715, et seq.).
As is later shown, want of probable cause is an element for consideration in determining liability for alleged malicious prosecution. Many variations in definition may be found but generally probable cause for instituting a criminal prosecution is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious, or prudent, man in the belief that the party is guilty of the offense with which he is charged (see 54 C. J. S. 982 and 34 Am. Jur. 731).
Although in some particulars there may be distinctions between malicious prosecution of civil actions and of criminal actions, it is true of both classes that to recover damages for such malicious prosecution the plaintiff must allege and prove not only that the defendant was actuated by malice in instituting the prosecution, but also that it was instituted without probable cause (Malone v. Murphy, 2 Kan. 250; Walker v. Smay, 108 Kan. 496, 196 Pac. 231; 54 C. J. S. 955; 34 Am. Jur. 727).
In Walker v. Smay, supra, it was held that the existence of malice is ordinarily a question of fact for the jury, but where there is no dispute in the testimony, the presence or absence of probable cause is a question of law for the court. In the early case of A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, 15 Pac. 877, it was held that the question of probable cause is primarily one for the court, but if the facts tending to establish the existence or want of probable cause are in dispute, it is the duty of the court to submit the question to the jury. In Rowe v. Glen Elder State Bank, 126 Kan. 291, 267 Pac. 998, it was held that where the question of probable cause is a matter of dispute, whether certain facts exist is a matter of fact for the determination of the jury, but whether particular facts if found to exist, do or do not constitute probable cause, is one of law for the decision of the court and it is error to submit it to the jury. In that opinion reference is made to other of our decisions to the same effect.
We shall confine our review to whether the defendant, by reporting to the sheriff’s office that the articles marked “Property of Sedgwick County, Kansas” were at the residence where they were found and taken by the deputy sheriffs, instigated the prosecution against the plaintiff, and participated in the prosecution, and if she did so, was her action in so doing without probable cause.
It may be conceded that whether the defendant, by reporting to the sheriff, instigated the prosecution against the plaintiff and participated in the prosecution, presents a question of fact, if there be any dispute concerning the same. The demurrer to the plaintiff’s evidence of course conceded for that purpose the truthfulness of any evidence adduced by the plaintiff. We are therefore confronted with the question whether there was any such evidence. The sum total of that evidence, as abstracted, is that a deputy sheriff went to the residence of plaintiff and defendant upon a call from defendant and recovered some property and that on a second visit by officers she pointed to property marked “Property of Sedgwick County, Kansas” and said it was stolen from the county hospital and “I don’t want it here.” There is no evidence that she accused plaintiff or any other person of the theft if there was one. Further than that the evidence discloses that the prosecution did not stem from any direct or indirect accusation made by the defendant, but was the result of an independent investigation made by the deputy sheriff Davis and by the county commissioner Huston.
If we assume, however, for the purpose of argument that there was any evidence that defendant was the instigator of the criminal prosecution of the plaintiff, we are of opinion the evidence as abstracted is such that it may not be said as a matter of law that there was any want of probable cause as that term has previously been defined. The very presence of articles marked “Property of Sedgwick County, Kansas” was itself suspicious. While plaintiff did make some explanation to the deputy sheriff and to county commissioner Huston that he had borrowed some of the articles, there is no showing he told the defendant he had done so. And in any event that explanation, if made, included only two sheets and two blankets and did not cover the remainder of the property, detailed as above set forth, and all of which was marked as being property of the county.
In our opinion the trial court erred in ruling on the defendant’s demurrer to the plaintiff’s evidence.
In view of our holding, we need not discuss the ruling on the motion for a new trial.
The ruling of the trial court is reversed and the cause remanded with instructions to sustain the defendant’s demurrer to the plaintiff’s evidence. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action to recover damages for fraud alleged to have been committed by the defendants in acquiring 72 shares of stock of the Lawrence Paper Company from the plaintiff at a sale price of far less than its fair actual value. The appeal is from an order of the trial court overruling a demurrer to the amended petition.
The action was commenced on June 10, 1948, by the filing of a petition. Motions to strike portions of this pleading were filed by each of the two persons named therein as defendants. They were only partially sustained. Defendants then moved to set aside unfavorable portions of the trial court’s rulings. In January, 1949, and before these last motions were presented, the plaintiff filed an amended petition. The defendants attacked this pleading by separate motions to elect, to strike and to make more definite and certain. These motions were overruled in part and sustained in part. Thereafter each defendant demurred to the amended petition on grounds that two causes of action were improperly joined, that it failed to state a cause of action against either defendant, and that it disclosed on its face that the cause of action attempted to be stated against both defendants were barred by the statute of limitations. When these demurrers were overruled the defendants perfected this appeal. Thereupon the trial court stayed all proceedings in the cause pending its disposition.
We pause to note two questions raised by appellee. He challenges the power of the trial court to stay the proceeding and the right of appellants to be heard on the instant appeal prior to the trial of the cause on its merits. Neither point deserves much consideration. If after overruling the demurrer the district court, either upon application of the appealing party or its own motion, deemed it advisable to continue the hearing of the cause on its merits for purposes of appellate review it had that right (G. S. 1935, 60-2933) and its action in doing so was largely discretionary (Bliss v. Carlson, 17 Kan. 325; Westheimer v. Cooper, 40 Kan. 370, 19 Pac. 852; Gurney v. Steffens, 56 Kan. 295, 43 Pac. 241). The granting of the stay amounted to nothing more than a continuance. Appellee makes no showing of abuse of discretion. In its absence we cannot say the trial court’s action was erroneous. More than that, even if it had been, the error would be of no avail to appellee at this stage of the proceeding. Under the statute (G. S. 1935, 60-3302 [second]) and our decisions (Sanik v. Shryock Realty Co., 156 Kan. 641, 645, 135 P. 2d 545; Bartholomew v. Guthrie, 71 Kan. 705, 81 Pac. 491) a ruling on a demurrer, whether sustained or over ruled, is appealable and when it reaches this court through proper channels is entitled to consideration.
From what has been stated it is.apparent the sufficiency of the amended petition is the principal issue and that matters antedating it, although they may be incidentally involved, are of 'secondary importance. For that reason to quote such pleading in toto will not only tell the story and result in an accurate recital of the facts upon which the right of the parties depend but dispense with all possibility of confusing those facts, as counsel have been prone to do in their briefs and arguments, with others involved in extended litigation (Dinsmoor v. Hill, 164 Kan. 12, 187 P. 2d 338; also Dalton v. The Lawrence National Bank, Murphy v. The Lawrence National Bank and Hurst v. The Lawrence National Bank, consolidated, and decided and reported this date, as Dalton v. The Lawrence National Bank, 169 Kan. 401, 219 P. 2d 719) pertaining to the settlement and disposition of the M. G. Bowersock Trust but not here in question because they are not to be found in such pleading. Omitting formal allegations of little or no importance it reads:
“That the Lawrence Paper Company is a corporation organized and existing under and by virtue of the laws of the State of Kansas and having its office and principal place of business at Lawrence, Kansas. That at all times concerned herein the Lawrence Paper Company had issued and outstanding 4,000 shares of capital stock.
“That this plaintiff was the owner of the entire interest in and to 72 shares of stock in the Lawrence Paper Company, which stock was held in the name of the M. G. Bowersock Trust. That this plaintiff was entitled to a distribution to him of said 72 shares of stock from said M. G. Bowersock Trust under an agreement dated September 3, 1942, which agreement covered all shares held in the name of M. G. Bowersock Trust but that no distribution of said shares of stock had been made by said trust at the times herein complained of. That after September 3, 1942, and prior to May 23, 1944, the defendants, Irving Hill and Justin D. Hill, acting and conspiring together determined to purchase a sufficient amount of Lawrence Paper Company Stock which had been held by the M. G. Bowersock Trust to give the Hill family more than 50 percent of said stock and the controlling interest in said paper company and so acting and conspiring together for the purpose of defrauding this plaintiff did through misrepresentations and failure to disclose the facts within the knowledge of defendants as hereinafter described acquire on the 23rd day of May, 1944, from this plaintiff his rights in and to 72 shares of Lawrence Paper Company Stock and at the time of acquiring the same, defendants failed and neglected to inform plaintiff that they were buying his stock together with other stock for the purpose of securing majority control of said company.
“That the defendant, Irving Hill, was at all times herein mentioned the President and General Manager of said Lawrence Paper Company, and the defendant, Justin D. Hill, was the Vice President and Manager in charge of production in the business of said company.
“That the defendant, Irving Hill, on or about the 20th day of May, 1944, falsely and fraudulently represented to this plaintiff knowing said representation to be misleading, false and fraudulent, that Lawrence Paper Company Stock paid no dividends, and that it had no real value, and that it was not a good investment, and that the plaintiff would be acting for the best interests of his son Loring, to whom plaintiff told Irving Hill he wanted to sell his stock, if he sold his stock to Justin D. Hill, and that the plaintiff and his son Loring would be better off if plaintiff sold plaintiff’s stock to Justin D. Hill, son of Irving Hill, at the price offered by Justin D. Hill.
“That Justin D. Hill caused to be sent to plaintiff on the 19th day of May, 1944, from the Trust Department of the Lawrence National Bank of Lawrence, Kansas, a letter, knowing the contents of said letter to be misleading, false and fraudulent, offering to buy plaintiff’s 72 shares of stock in the Lawrence Paper Company at a price of $107.50 per share, said letter falsely and fraudulently represented that said stock was of the value of not to exceed $107.50 per share, and that said stock was not a dividend payer, and that earnings were used to develop the business, and that there was no market for this stock, and that an examination and audit of the value of the shares had been made, and that from said examination and audit Justin D. Bowersock sold his 234 shares and the Fanny P. Bowersock Trust had sold its 90 shares of Lawrence Paper Company Stock to Justin D. Hill upon their solicitation to Justin D. Hill to buy froin them at said price. That a true and correct copy of said letter is attached hereto and marked ‘Exhibit A’ and made a part hereof.
“That Irving Hall and Justin D. Hill, officers of said Lawrence Paper Company as herein alleged, fraudulently failed, and neglected to disclose to plaintiff that the real and actual value of Lawrence Paper Company stock in May, 1944, was in excess of $400.00 per share, or the true financial condition of the company and that said defendants were acting together in negotiating for the purchase of plaintiff’s stock by them.
■ “That the representations made to this plaintiff by Irving Hill and by Justin D. Hill were falsely and fraudulently made for the purpose and with the intention that the plaintiff would believe as he did from said representations that the Lawrence Paper Company was not in a financial condition to pay dividends, that its earnings were insufficient for that purpose and that its financial condition was unsound. At the time of the making of such representations, the defendants, and each of them, knew the condition of the company. They knew at said time that there was sufficient cash on hand in said company to pay approximately $107.50 on each and every share of stock outstanding without recourse to any other assets. That defendants knew it had many other assets composed of a leasehold, buildings and a complete paper mill, merchandise and accounts receivable. Defendants knew that its books showed that it had at that time a book value of more than $250.00 per share on its stock. Defendants knew that it had been making for several years prior to that time very large profits and was a going concern in excellent condition. Defendants knew that its books showed that it had assets of approximately $900,000.00 over and above its outstanding indebtedness. That the defendants, Irving Hill and Justin D. Hill, as officers of said Lawrence Paper Company failed and neglected at said time to disclose to this plaintiff, a stockholder in said company, their knowledge as hereinbefore alleged of the true condition of said company, all of which was calculated by said defendants to deceive and mislead this plaintiff.
“That plaintiff believing in and relying upon the statements of defendants herein set out, having confidence in them, and as a stockholder relying upon the defendants as officers of the company to make full disclosure of the value of stock in and the true condition of the Lawrence Paper Company to the plaintiff, and having no knowledge upon the subject or the condition of the Lawrence Paper Company sold his rights in and to 72 shares of stock in the Lawrence Paper Company to the defendants for $107.50 per share on the 23rd day of May, 1944, said purchase being made in the name of Justin D. Hill. That by such purchase and the purchase of other trust stock defendants did acquire majority control of said Lawrence Paper Company.
“That plaintiff first became aware of and discovered that defendants representations herein alleged were false and untrue and that said defendants had failed and neglected to tell him of the real value of the shares of stock in the Lawrence Paper Company and the true condition of said company, as herein alleged (when plaintiff heard evidence at the Court House at Lawrence, Kansas, in the case of Mary B. Dinsmoor, et al. vs. Irving Hill, et al., No. 18141, in the District Court of Douglas County, Kansas) on June 12, 13 and 14, 1946.
“That plaintiff because of defendants, Irving Hill, and Justin D. Hill’s misleading, false and fraudulent statements, and their failure and neglect to advise plaintiff in their capacities as officers of said company of the real value of shares of stock in and the true condition of the Lawrence Paper Company and the true purpose for which they desired to purchase the stock, has been damaged in the sum of $21,060.00.
“Plaintiff further states that the conspiracy above referred to entered into by defendants together with the false and fraudulent representations to plaintiff by them and the omission by defendants in failing to give plaintiff full information was intentional, deliberate, willful and malicious. That by reason thereof and for the further reason that defendants occupy a fiduciary capacity and a capacity of trust toward plaintiff, a stockholder in the Lawrence Paper Company, as officers and directors of said company, plaintiff is entitled to punitive damages in the sum of $25,000.00.”
At the outset it should be said a close analysis of appellants’ claims of error, both in their briefs and on oral argument, reveals that they rely principally upon the proposition their demurrers should have been sustained on the ground appellee’s cause of action was barred by the statute of limitations. For that reason other matters relied on but not so strenuously urged will be disposed of early in this opinion.
Conceding that appellants’ specification of errors raises the question whether the trial court erred in overruling the first ground of their demurrers predicated upon the premise that two causes of action were improperly joined such question is no longer entitled to consideration on appellate review. It is neither briefed nor argued and, under our decisions, must be regarded as abandoned (Henderson v. Deckert, 160 Kan. 386, 162 P. 2d 88; Carver v. Farmers & Bankers Broadcasting Corp., 162 Kan. 663, 179 P. 2d 195; Liston v. Rice, 162 Kan. 644, 645, 179 P. 2d 179; Cimarron Co-operative Equity Echange v. Warner, 166 Kan. 190, 200 P. 2d 283).
Without regard, to the statute of limitations it is urged the allegations of the amended petition are insufficient to state a cause' of action against either of the appellants for actionable fraud. No useful purpose would be served and it would only encumber our reports to here detail or labor appellants’ contentions in support of their position on this point. It suffices to say that while the plaintiffs were not the same and there was an additional party defendant in the three appeals disposed of in Dalton v. Lawrence National Bank, supra, this day decided, the petitions there involved, which were likewise attacked, contained similar allegations respecting the alleged fraud of the appellants as officers and directors of the Lawrence Paper Company in acquiring stock of that corporation from other stockholders and that all contentions here advanced by appellants in support of the claim now under consideration were there made and definitely rejected. In view of what is said and held in Dalton v. Lawrence National Bank, supra, we have little difficulty in deciding, and now hold, that the instant pleading, accepting its allegations as true and giving them the benefit of all reasonable inferences as we are required to do in testing its sufficiency when challenged by demurrer, states a cause of action against both appellants on account of fraud unless questions pertaining to the statute of limitations not yet considered or decided compel a conclusion that appellee’s right to maintain the action is barred by its terms.
The amended petition in this case was filed approximately two and one-half years after the date on which the fraud relied on was alleged to have .been discovered. It charged that appellee was the owner of the entire interest in and entitled to distribution of the seventy-two shares of the involved Lawrence Paper Company stock which at the time of its sale to appellants was held in the name of the M. G. Bowersock Trust whereas the petition alleged such stock had been withdrawn from the trust and that appellee was the owner thereof. Appellants contend that this constituted such a departure in pleading that it must be held the amended petition stated an entirely new cause of action. Obviously, if this were true, the cause of action set forth in the amended petition would be barred by the statute of limitations (G. S. 1935, 60-306 [third]). We have held (see Springer v. Roberts, 151 Kan. 971, 101 P. 2d 908) that where an amendment to a petition sets forth a new cause of action the statute continues to run until the amendment is filed. However, we are unable to agree that this change of language in the two pleadings resulted in a departure. Under our liberal civil code there is no departure unless the facts alleged in the amended petition so contradict the allegations of the petition that it can be said there has been a material change in the cause of action first pleaded.(Armstrong v. Lough, 128 Kan. 167, 277 Pac. 51). In fact this court has defined the term and held it to be the abandonment by a party of the grounds set up in a prior pleading and the allegation of matter inconsistent therewith (Kolich v. Travelers Ins. Co., 154 Kan. 458, 119 P. 2d 498). Resort to the two pleadings here involved makes it crystal clear that under the allegations of each appellee was claiming to be the real owner of the shares of stock involved and that he had disposed of his right, title, and interest therein as a result of appellants’ fraudulent conduct. It is true, as appellants point out, that Johnson v. Bank, 59 Kan. 250, 52 Pac. 860, holds that in an action for damages for the conversion of personal property an allegation in the petition of -ownership generally followed by an admission in a subsequent pleading that plaintiff’s-ownership was special, as that' of a mortgagee, constituted a departure and was fatal. Even -so the case does not support their position. The rule there stated is based'upon special requirements of-the statute relating’to pleadings in an action of replevin or for the conversion of personal property (see Kennett v. Peters, 54 Kan. 119, 37 Pac. 999) and has no application to the sufficiency of pleadings in other actions.
Like some of the other matters to which we-have heretofore referred the issues involved under allegations' of the amended petition and raised by the appellants regarding the time when the statute of limitations started to run on the cause of action set forth in. the instant action are substantially the same as those determined in Dalton v. Lawrence National Bank, supra. Therefore, following, that decision, we hold (a) the fact the letter written by the Trust Department of the Lawrence National Bank, alleged to have been sent to and received by appellee at the direction of appellant, Justin D.' Hill, tendering an audit of the books of the Lawrence Paper Com pany did not in and of itself start the running of the statute; (b) the fact the Lawrence Paper Company filed an annual corporate statement with the Secretary of State did not have that effect; (c) that under the statute appellee’s cause of action did not accrue until discovery of the fraud relied on, and (d) that under all the facts as set forth in the amended petition there was no discovery of, and the statute did not start to run against, such fraud until June 12, 1946, which was less than two years from the date of the commencement of the action.
Appellants’ final contention can best be stated in their own language. In their brief they say: “Therefore, it is the law that in order to recover on a cause of action based on fraud, the plaintiff must bring his action within the two-year period or must allege and prove that the fraud was not, and could not with reasonable diligence have been, discovered until within two years before the bringing of the action.”
Thus, since we are not here concerned with the sufficiency of evL dence, it appears the gist of their claim on this point is that appellee entirely failed to allege in the pleading in question that he could not have discovered the fraud earlier by the exercise of reasonable diligence and therefore failed to state a cause of action. ■
They cite Malone v. Young, 148 Kan. 250, 81 P. 2d 23; Preston v. Shields, 159 Kan. 575, 156 P. 2d 543, and Schulte v. Westborough, Inc., 163 Kan. 111, 180 P. 2d 278, and insist that what is there said and held compels the sustaining of their position. We do not agree. When those decisions are carefully examined and analyzed the most that can be said for'them is that they hold that in such an action a party is required to plead facts which disclose inability to discover the fraud by the exercise of reasonable diligence.' Even so, that does not mean, nor can those decisions be construed as intending to hold that the pleading under attack must contain express affirmative allegations of that character. If — as here — it contains an express allegation the fraud relied on was not discovered until within two years from the date of the commencement of the action it is sufficient to withstand an attack by demurrer based upon the ground it fails to state a cause of action unless other facts set forth therein suggest a source from which the fraud could have been discovered earlier. To hold otherwise would disregard the plain language of our civil code stating that a defendant can only demur to a petition on the ground it fails to state a cause of action when that defect appears on its face (G. S. 1935, 60-705) and providing that when it does not so appear upon the face of the pleading the objection may be taken by answer (G. S. 1935, 60-707). It would also wholly ignore the universal rule that as against a demurrer the allegations of a pleading are entitled to the benefit of all reasonable inferences.
This we believe, although the factual situation here involved does not require its application, is the rule even though the challenged pleading might -contain allegations susceptible of a construction that the person defrauded had some reason to suspect the wrong which had been perpetrated upon him. Early in the history of this court in Marbourg v. M’Cormick, 23 Kan. 38, we said:
“ . . . ‘Discovery of the fraud’ is the language of the statute. That implies knowledge, and is not satisfied by mere suspicion of wrong. The suspicion may be such as to call for further investigation, but is not of itself a discovery. A party, even though his suspicions have been aroused, may well be lulled into confidence, and take no action by such representations as were made. And it would be strange if a party who had disarmed suspicions by his representations could thereafter plead those suspicions as ground for immediate inquiry and action. This is not a case where a party is chargeable with notice of existing equities, or the rights of third parties, but involves simply the question of liability between the immediate parties,” (p. 43.)
See, also, Pickens v. Campbell, 98 Kan. 518, 523, 159 Pac. 21.
In conclusion it should perhaps be added that even if it be assumed appellants’ contention on this particular point includes a claim the instant pleading contains allegations suggesting the fraud therein alleged could or should have been discovered earlier-by the exercise of reasonable diligence our examination of such pleading fails to disclose anything which warrants that construction.
The order overruling the demurrer is affirmed.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
These two actions were to recover damages alleged to have been sustained when an automobile driven by the plaintiff in one of them collided with a horse loose upon the highway. The cases were consolidated in the trial court. The trial court sustained the defendant’s demurrer to the plaintiff’s evidence in each of the cases and the plaintiffs have each appealed.
The petition of the plaintiff, C. A. Abbott, alleged that he was driving his car on.the highway at 7:15 p. m. on January 7th at a speed of thirty-five to forty miles per hour; that a dark-brown-colored horse belonging to defendant walked across the highway; that he saw it in the center of the highway forty to fifty feet ahead of his car; that he applied his brakes and turned his car to the left in an attempt to avoid striking it; that when it reached the center of the highway it turned to the north and faced the car and in spite of plaintiff’s efforts the automobile collided with the horse and was damaged.
The petition alleged the defendant was negligent in allowing the horse to run at large and that she negligently failed to keep it off the highway, which acts and omissions caused the damage. He prayed for judgment in the amount of $800.
The petition of Erma V. Abbott was in identical words as to the negligence and alleged as a result of the collision she was injured in many particulars. She prayed for damages in the amount of $10,625.
The defendant filed a general denial and alleged the plaintiffs were negligent. The reply was a general denial. The actions were consolidated in the trial court by stipulation.
Mr. Abbott testified that he was driving south on Highway No. 69 at 7 o’clock at night when in front of the residence of defendant he observed a dark-brown-colored horse coming upon the highway; that he was driving a little under thirty-five miles an hour and had his lights in operation; that he first saw the horse as it came from the east side of the road onto the right side; that he saw if he continued driving straight ahead he would hit it; that he immediately applied his brakes and turned the car to the left; that he got partly past the horse but it collided with the right side of his car about the middle post on the back; that with two county patrol officers he caught the horse and returned it to defendant, who admitted she was its owner. He further testified about the damage to the car and the injuries to his wife. On cross-examination he testified at the time of the collision he could see objects on the road ahead for two hundred feet and he did not see the horse until fifty feet from it, when it was coming out of the darkness on the east side of the highway directly in front of his car; that there was ice on the shoulder of the highway but none on the pavement; that from^he time he first observed the horse until the moment of the impact was just a short interval.
The testimony of his wife was to about the same effect.
A deputy sheriff called out of turn for the defendant testified from his report that there were no defects in the condition of the driver or of the car and that the headlights had been checked and were all right and the weather was clear.
There was the testimony of the garageman as to the value of the car and of a doctor as to the injury.
The court sustained the defendant’s demurrer to the evidence as to both cases — hence this appeal.
Plaintiffs argue that they established a prima facie case against the defendant sufficient to carry the case of actionable negligence to the jury under the doctrine of res ipsa loquitur, when they proved the collision, that the horse was unattended on the highway, the damages and that defendant owned the horse.
They concede that under the early common law an owner of a domestic animal was under no legal obligation to prevent it from running at large on the highway and was not liable for an injury resulting from it so being at large unless he could reasonably have anticipated that injury would result from it. They argue further, however, that in the light of modern conditions of congested vehicular traffic on the highways the great weight of modern authorities lays more stress on the exception to the common law rule that the owner of an animal is liable if he could reasonably have anticipated the injury would result from its being at large on the highway.
This appeal was submitted in March without oral argument. Before we had decided it, however, our attention was called to G. S. 1935, 47-122, 47-123 and 47-124, same being Chapter 211 of the Laws of Kansas for 1929. It appeared an argument might very well be made that these sections had a bearing on actions such as these. We reset the appeal for reargument in May and ordered the parties to file briefs on that question only. These briefs were filed. Counsel appeared and argued. The appeal is now ready for decision on all points.
In the meantime at the May session the appeal in Wilson v. Rule, this day decided, involving the same general legal question whs submitted. We have had the benefit of briefs and oral argument on it. All three appals will be disposed of at this session.
We shall first dispose of the argument of plaintiff that res ipsa loquitur applies. To so conclude would be to hold that the fact an animal escapes from a pasture or corral, or from custody, while being led, ridden or driven or while hitched or tied to a hitching rack is so unusual that no other conclusion can be drawn from the occurrence itself than that the owner was negligent. Our knowledge of the ways of domestic animals forbid us doing that. To say that the mere fact the horse was loose upon the highway was evidence in and of itself that the owner was negligent in the manner in which she confined it, simply flies in the face of what the ordinary and unusual situation is.
A situation quite common a generation ago and not unknown now was dealt with in Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938.
We considered there a case where a team while tied to a hitching rack in a town became frightened, broke a halter strap and while running away on the street collided with a buggy in which the plaintiff was riding, and injured her. The theory upon which plaintiff sued was that the fact the halter strap broke was evidence the owner had negligently left them insecurely fastened. We said:
“It may well be questioned whether under the evidence in this case the fact that it broke draws with it any presumption that the strap was so defective as to make its use under ordinary circumstances negligence. . . . Ordinary care is all that was required of the defendant, and ordinary care does not require that all possible means for avoiding accident should be used. Quite true, the accident would not have occurred had the horses been hitched to an unbreakable rack with an unbreakable chain; nor would it have occurred had not the defendant driven to the city on that day; but ordinary care does not require the use of such precautions.”
See, also, Blashfields Cyclopedia of Automobile Law and Practice, sec. 6046.
We go now to a consideration of the effect on this appeal of G. S. 1935, 47-122 and 47-123. At the outset, it .should be stated that this record differs from Wilson v. Rule, this day decided, in that the petition in this case alleges that the defendant was negligent in allowing and permitting her horse to run and be at large and that she negligently failed to keep it confined while the petition in Wilson v. Rule charged that defendant was negligent in failing to keep his mules off the highway. At any rate, section 47-122 provides, as follows:
“That it shall be unlawful for any neat cattle, horses, mules, asses, swine or sheep, to run at large.”
Section 47-123 provides:
“That any person whose animals shall run at large, in violation of the provisions of section 1 [47-122] of this act, shall be liable to the person injured for all damages resulting therefrom, and the person so damaged shall have a lien on said animals for the amount of such damages.”
Plaintiffs argue the above sections by their precise terms are applicable to persons in their situation and no search for the legislature’s reasons for enacting the statute is necessary or permissible and that proof that defendant’s horse was loose on the highway showed it was at large in violation of the statute and placed upon defendant the duty of going forward with proof that the fact the horse was loose upon the highway was not due to lack of due care on his part.
The arguments send us to a consideration of the development of the law having to do with loose stock. In England the liability of the owner of stock was confined to damages caused by the stock when it had invaded the land of another. Such was not well adapted to the early day conditions of this country, especially those states comprising the great plains area, where open range for stock was to become a common feature of our rural life. This feature of our law is the story of the attempts of the legislatures and courts to adjust the rights of the farmers who' tilled the soil and planted crops on one hand, and those who emphasized stock raising on the other. The common law was remedied by the adoption in the states of so-called “fence” laws, whereby landowners were required to fence out their neighbors’ wandering livestock in order to protect their crops. In Kansas the subject was treated in chapter 40 of the Laws of 1868, now appearing as G. S. 1935, 29-101 to 29-104. This statute it will be noted is carried in the statute books under the subject of fences. By its enactment the common law was so far modified that no action would lie for injuries done on real estate by trespassing cattle unless the real estate was enclosed with a sufficient fence, as prescribed by the statute. (See U. P. R. W. Co. v. Rollins, 5 Kan. 167; also Darling v. Rodgers, 7 Kan. 592.)
By the time the next legislature met those who placed their emphasis on growing crops, as distinguished from running stock on the open range, began to make their influence felt. The legislature in 1870 enacted chapter 115. It provided in the first section that it should relate only to six counties named and that it should be in effect for only five years. Section 2 provided that the owner of stock who allowed it to trespass on the land of another should be liable in damages to the person so injured. There were other provisions not now important. In Saline county Rodgers sued Darling because Darling’s stock came on Rodgers’ wheat field and did damage. Darling answered not denying the damage but alleging that there was no fence around Rodgers’ wheat field. The trial court sustained a demurrer to this answer and gave plaintiff judgment for $25. If chapter 115 had been good, the demurrer was rightfully sustained because Darling, the owner of the stock, was liable. We held chapter 115 bad because it did not have a uniform operation throughout the state. (See Darling v. Rodgers, supra.) The opinion is important, namely for historical purposes.
There was in 1868 also an effort to limit somewhat the effect of chapter 40. That was by the enactment of article 1 of chapter 105 of that session. It provided that upon the presentation to the board of county commissioners of a petition signed by a majority of the electors of a township, the county board should make an order that all owners of domestic animals should keep them confined in the nighttime for certain portions of the year. There was also a section making the owners of stock liable for any damages from the depredations of such stock. This act was held valid. (See Noffzigger v. McAllister, 12 Kan. 315.)
The legislature of 1872 enacted chapter 193 of that session. It is spoken of generally as the “herd law.” It gave the county commissioners power to direct what animals should not be allowed to run at large within the county. After providing for the recordation of the order, the statute provided that persons injured in property by the running at large of any of the animals named in the order should have a lien upon the animals for the damages committed upon the property of such person. The next section provided for the taking into custody of animals about to commit a trespass upon premises owned by the person taking them up, and in another section that any landowner in such a county, who should enclose his land by a good and lawful fence, should have the same rights and powers conferred upon owners of real estate in counties not having the herd law. This chapter is carried in our present statute book as G. S. 1935, 47-301, 302, 303, 304 and 305.
The legislature of 1874 again dealt with the subject by the enact-, ment of chapter 128 of that session. The first section provided that when two-thirds of the legal voters of any county should petition the county commissioners to make an order that all neat cattle, horses, mules, asses, swine and sheep shall be prohibited from running at large, the order should be made. Section 2 provided any person who should permit any of those animals to run at large shall be deemed guilty of a misdemeanor and upon conviction should be fined. The third section provided that the owners of any of these animals permitted or allowed to run at large should be liable to any person who should suffer damage from the depredations or trespasses of these animals. The section further provided for a lien. This chapter is carried in our statute books as G. S. 1935, 47-309, 310, 311 and 312.
The legislature of 1879 further supplemented the herd law by the enactment of chapter 175 of the laws of that session. By the first section of this chapter the county commissioners were given the power to rescind or modify the herd law by providing what animals should not be permitted to run at large. The third section provided for the county commissioners calling an election on receipt of proper petitions and submitting to the people of the county the question of the suspension of the herd law. This chapter is carried in our present statute as G. S. 1935, 47-306, 307 and 308.
It will be noted that from 1868 to 1879 the question of livestock and liability of the owner on account of its being at large was a live legislative question. It received the attention of practically every legislature. Chapter 128 of the Laws of 1874 was the most comprehensive enactment. There can be but little doubt the damages for which owners of livestock at large upon the highways were liable in the early days were those caused by the stock while trespassing on real estate. It should be remembered that these laws were all enacted before the days of hard surface roads, automobiles, buses and trucks. The hazards of travel upon the roads were not nearly so great then nor was there so much traffic.
There is one statute of comparatively recent enactment. It is chapter 235 of the Laws of 1917. It provides that when not less than 55 percent of the legal voters of a county in which horses, mules and cattle are permitted to run at large shall petition the county commissioners to make an order not to permit them to run at large, the county commissioners should make such an order. This chapter is carried on our statute books as G. S. 1935, 47-313:
Such was the legislative situation when chapter 211 of the Laws of 1929 was enacted. The first section made it unlawful for any neat cattle, horses, mules, asses, swine or sheep to run at large. The second section provided that any person whose animals should run at large in violation of the provisions of section 1 should be liable to the person so injured for all damages resulting therefrom, and the person so damaged should have a lien on the animals for the amount of the damages. The third section provided for taking the trespassing animals into custody. As originally enacted, this section provided it should not apply to counties where there had been established a forest reserve. Chapter 221 of the Laws of 1931 took this provision out of the act. These chapters are carried on our present statute books as G. S. 1935, 47-122, 123 and 124. These last sections are the ones upon which plaintiff bases his action.
Defendant first argues the statute was not intended to give a right to sue the owner of livestock for any damages except those committed while the stock was trespassing on land. In other words, the statute was not enacted for the benefit of automobile drivers on the highway.
The conclusion we have reached as to the disposition we should make of this appeal makes it unnecessary to consider some of the questions argued.
The statute upon which plaintiff depends uses the phrase “run at large” in both sections. The horse in this case was unattended upon the highway. There is no evidence whatever on the part of plaintiff as to how he happened to be there. The question is — -Is a horse that is simply unattended upon the highway, running at large, within the meaning of the statute? ' If the language of the statute does not mean that, then the evidence of the plaintiff did not prove a cause of action under the statute and the defendant’s demurrer to the plaintiff’s evidence should have been sustained. We find the answer in our own decisions. In K. P. Rly. Co. v. Wiggins, 24 Kan. 588, plaintiff’s mare was killed by a train being operated by defendant. It occurred in a county where the herd law was in force. The railroad admitted killing the mare and that its right of way was not fenced. It argued that in herd law counties the owners of domestic animals were bound to keep them from trespassing and if they failed to do so were liable for all damages done by them, irrespective of negligence; that the animal was trespassing on railroad property when she was killed and her owner was liable for all the consequences of such trespass. We first recited a substantial statement of the evidence and in dealing with the argument that plaintiff’s own evidence convicted him of contributory negligence said:
“Reasonable precaution, and not absolute security, is required. If the latter were the rule, the fact that the animal got loose proves the negligence, and the manner in which she was confined is immaterial.” '
In dealing with the other question we said:
“Can it be held that this animal was allowed to run at large? It would not seem that plaintiff could be charged with any violation of this statute when he had taken reasonable precautions to confine his animal.”
See, also, Mo. Pac. Rly. Co. v. Johnston, 35 Kan. 58, 10 Pac. 103; Mo. Pac. Rly. Co. v. Bradshaw, 33 Kan. 533, 6 Pac. 917; and Mo. Pac. Rly. Co. v. Roads, 33 Kan. 640, 7 Pac. 213.
An instructive discussion of this subject is in Railway Co. v. Olden, 72 Kan. 110, 83 Pac. 25. There three mules and a colt were killed by defendant railway company. The defendant argued that since the evidence disclosed the enclosure from which the stock escaped was not fenced with a legal fence the plaintiff was guilty of contributory negligence and could not recover. We pointed out how the fence law, chapter 40, Laws of 1868, modified the common law and that the enactment of the herd law, chapter 193 of the Laws of 1872, was a readoption of the common law. In considering the question of whether the fence law furnished a rule by which to determine whether the owner of stock in herd law counties was guilty of negligence in enclosing them, we said:
“The care and diligence that every man is required to exercise in the protection of himself or property is ordinary care in view of all the surrounding circumstances. If the stock lulled be the ordinary farm stock, and the owner have the pasture enclosed with an ordinary fence, such as is generally required to restrain that kind of stock, and they escape without his fault, he is not guilty of negligence and is not guilty of permitting the stock to run at large and he may recover regardless of the fence law.”
In Abbey v. Railway Co., 108 Kan. 88, 194 Pac. 191, we said:
“Under the night-herd law (Gen. Stat. 1915, §§ 10974-10976), stock is confined when means shown by experience to be adequate for the purpose are employed, and if an escape occur without fault of the owner, the escaping animals are not regarded as running at large.” (Syl. If 3.)
These opinions all deal with actions brought against railroads for killing stock. About the only defense available to the railroads in such cases is the contributory negligence of the owner in permitting his stock, which was killed, to run at large. The opinions interpreted the statutes then in existence, however, especially the words “running at large” or “at large.”
Another decision of similar'import is Hazelwood v. Mendenhall, 97 Kan. 635, 156 Pac. 696. At page 637 of the opinion in that case we held:
“. . . The requirement that the crops shall be protected by a legal fence is canceled by the herd law so far as relates to animals that are ‘running at large.’ Any that without fault of their owner have escaped from an enclosure surrounded by a barrier reasonably adapted to their restraint are not regarded as within that term, . . .”
The rule seems to be universal that the words meant something more than merely being unattended. See 3 C. J. S. 1231, § 131, where the following statement appears:
“The meaning of the words ‘running at large’ differs in different statutes, and should always be determined largely from the objects and purposes sought to be accomplished by the particular statute wherein they are used. There is a distinction to be noted between a statute attaching a penalty to ‘permitting animals to run at large’ and one making it the duty of some municipal official to take up an animal ‘found running at large.’ A statute of the first class implies knowledge, consent, or willingness on the part of the owner that the animal be at large, or such negligent conduct as is equivalent thereto, but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch and care for the animal in a particular instance, or where, notwithstanding the owner has taken precautions to restrain them, and is without fault or negligence, the animals escape from him, and he makes immediate and suitable efforts to recover them, or where the animals have .been driven from the lands of their owner by a wrongdoer. The rule is otherwise, of course, if animals are at large through the negligence of the owner, or of his servants, or are permitted to go at large after knowledge of their escape.”
This was the rule announced in Champlin Refining Co. v. Cooper, 184 Okla. 153, 86 P. 2d 61. That was a case where a plaintiff’s automobile had collided with a horse at large and unattended upon the highway. The Oklahoma statute or herd law was somewhat like ours, that is, it used the words “running at large.” The trial court held the unlawful presence of the horse upon the highway established a prima facie case of negligence under the statute. The supreme'court reversed on several grounds and on the question with which we are dealing held:
“Proof of the presence of a horse upon a public highway, at large and unattended, in violation of the Herd Law, sections 8986-9045, O. S. 1931 (4 Okla. St. Ann. sec. 91-184), which imposes a positive duty upon the owner of preventing such an animal from running at large and unattended and makes said owner liable for all damages done while wrongfully remaining at large upon the public highway or upon the lands of another, is not prima facie evidence of negligence on the part of such owner and will not of itself sustain an action for property damage to a motorist’s automobile resulting from a collision with said horse.”
See, also, Gardner v. Black, 217 N. C. 573, 9 S. E. 2d 10. This was a case where plaintiff’s automobile collided with a mule. The statute in question used the phrase “run at large.” The court held:
“The owner or person having charge of domestic animals is liable for injury or damage caused by such animals while running at large only if the animals are at large with his knowledge and consent or at his will or their escape is due to negligence on his part.”
See, also, Howrigan v. Bakersfield, 79 Vt. 249, 64 Atl. 1130. There plaintiff sued the township because his blind mare was injured on account of the alleged insufficiency of a bridge the township was bound by law to keep in repair. The township defended on the ground it was contributory negligence in the plaintiff to allow the mare to stray along the highway unattended. The supreme court said:
“It is generally held, under statutes prohibiting horses and cattle going at large, that when they escape from their owner’s enclosure without his fault or negligence, they are not at large in the legal sense of the term.”
See, also, Anderson v. Nesbitt, 43 Ind. App. 703, 88 N. E. 523; also DeBuck v. Gadde (1943), 319 Ill. App. 609, 49 N. E. 2d 789.
Applying the above rule to the facts here, we hold that the plaintiff had the burden of proving, in order to make a prima facie case, that the horse with which plaintiff collided was unattended upon the highway because its owner had failed to exercise due care in enclosing it, under all the surrounding facts and circumstances. He made no attempt to do this and thereby failed to prove a cause of action sufficient to warrant the trial court in submitting the issues to the jury.
It follows that the trial court was correct in sustaining defendant’s demurrer to plaintiff’s evidence.
The judgment of the trial court is affirmed.
Thiele, J., dissents.
Price, J., concurs in the result.
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The opinion of the court w.as delivered by
Thiele, J.:
This was an action to recover damages for injuries to person and property sustained in a collision of motor vehicles. From a judgment in favor of plaintiff the defendants appeal.
For our purposes the pleadings are summarized.
In his petition plaintiff alleged that the defendant Dicke was the owner of a 1941 Chevrolet truck operating under Kansas corporation commission permits; that the truck was covered by a liability insurance policy issued by the defendant casualty company; and that at all times mentioned the truck was driven by the defendant Trueblood as the agent, servant and employee of Dicke. It was further alleged that on May. 29, 1947, at about 8:30 p. m., plaintiff was driving his automobile south on Highway No. 75 at a point about two miles south of Carbondale, at which time and place the truck and the automobile collided; that unknown to the plaintiff the truck owned by Dicke and driven by Trueblood had proceeded south on the highway to the point above described; that the truck had a high, flat bed and there was deposited on the bed a haybaler obscuring any lights or reflectors upon the truck ,and extending over the sides of the bed of the truck, contrary to law; that the highway was a paved highway approximately eighteen feet in width and at the point above mentioned there was a culvert or concrete bridge; that it was dark at the time the collision occurred; that the truck approached the culvert or bridge; that there was automobile traffic approaching from the south; that there was not room for the other traffic to pass the loaded truck upon the bridge and Trueblood stopped the truck immediately north of the bridge or culvert and directly upon the highway; that the driver did not place any flares behind the truck; that immediately to the north of the bridge or culvert was a knoll or rise in the highway and as plaintiff approached he was unable to see until his automobile passed over the knoll or rise and until the lights of his automobile came down to the level of the highway; that the northbound traffic was at that time passing the parked truck and the lights of the northbound vehicles made the vision of the plaintiff difficult and that it was impossible to see the truck parked on the highway without lights and with the'protruding load thereon; that the truck and its load were of dark and dirty color and that the bed of the truck was above the normal level of the headlights of the automobile which plaintiff was driving; that after plaintiff came over the knoll the truck was so close he was unable to stop and by reason of the northbound traffic was unable to turn to the left to miss the truck, and .that he drove into the rear of the truck causing the injuries and damages set forth. It was alleged in the petition that defendants were guilty of negligence in seven particulars, but we notice only the charges that defendants were negligent in parking the truck upon the paved slab after nightfall in violation of the state law, and in failing to pull the truck and its load off the paved highway.
The defendants answered by admitting their status, denying generally and alleging the collision occurred solely, through the negligence of the plaintiff in driving his automobile into the rear of the truck, in operating his automobile at á high and dangerous rate of speed of fifty miles per hour, in driving at such a rate of speed that he was unable to stop within the range of vision of his lights, in failing to stop in time to avoid the collision and in operating his automobile without regard to the occupancy of the highway immediately in front of him and in such manner as to endanger the life and limb of persons on the highway.
Plaintiff’s reply was a general denial.
At the trial plaintiff introduced evidence in support of his allegations. Defendant’s demurrer to that evidence was overuled and the trial proceeded. The jury returned a general verdict in favor of the plaintiff and answered special questions submitted as follows:
“1. Do you find the Defendants, or either of them, guilty of negligence which was the proximate cause of the injuries? A. Yes.
“2. If you answer the foregoing question in the affirmative, then state in what such negligence consisted? A. Stopping on the highway.
“3. State the length of time Defendants’ truck was stopped at the time of the collision. A. Momentarily.
“4. State whether or not the lights on the rear of Defendants’ truck were burning immediately prior to the collision. A. The lights were burning.
“5. State the rate of speed at which Plaintiff was traveling at the time of the collision. A. 40 or 45 miles per hour. '
“6. State whether or not there was any projection hanging down from the haybaler which obscured the lights on the rear of the defendants’ truck from approaching Plaintiff’s view. A. Projection did not obscure lights from Plaintiff.
“7. State how far Plaintiff was from Defendants’ truck before Plaintiff saw same. A. 40-45 feet.
“8. If you find for Plaintiff, then state how much you allow for:
“(a) Damage to auto.......................i...................81250.00
“(b) Loss of earnings........................................... 300.00
“(c) Loss of schooling.......................................... 725.00
“(d) Loss of personal property................................... 109.96
“(e) Doctor & Hospital bill..................................... 107.00
“(f) Pain and suffering.......................................... 2000.00”
Defendants filed their motion to set aside the answers to spec'al questions 1, 2 and 8, their motion for judgment on the answers to the special questions notwithstanding the general verdict, and their motion for a new trial. These several motions were all denied and defendants perfected their appeal to this court.
Appellants’ specifications of error covering the rulipgs on their demurrer to plaintiff’s evidence and on their post-trial motions are discussed in their brief under five headings.
Appellants’ first contention is that there was no evidence that Trueblood was guilty of negligence. This argument is predicated on testimony that as loaded on the truck the haybaler made an over-all width of about ten feet and nine inches, the overhanging portion extending about two feet and nine inches on the right side of the truck; that Trueblood testified that he was not quite sure whether the load would clear the concrete side of the culvert or bridge and he slowed up and waited until vehicles approaching from the south had passed, as the lights from them interfered with his vision. Although not mentioped by appellants in their argument there was testimony that the culvert or bridge was twenty-four feet between the sides thereof and that the shoulder on the west side of the highway was wide enough to permit a car to be driven from the paved portion of the highway onto the shoulder. The gist of appellants’ argument is that any driver with a wide load would slow down on approaching a bridge to avoid meeting oncoming traffic, and that is what Trueblood did, and reference is made to his further testimony that at the time of the collision he was not quite sure his load would clear the concrete side of the bridge, and our attention is directed to McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074, where this court considered the force and effect of G. S. 1947 Supp. 8-570, which provides that no person shall stop, park or leave standing any vehicle upon the paved part of the highway when it is practical to stop, park or leave such vehicle off such part of the highway, and to the latter portion of that section that it should not apply to the driver of any vehicle which is disabled while on the paved portion of the highway in such manner and to such an extent that it is impossible to avoid stopping. In that case it was held that one who, by reason of road conditions there set forth, was compelled to stop did not violate the statute and could not be said, as a matter of law, to be guilty of negligence. As was said in that opinion what the statute denounces is voluntary stopping and not stopping where such is compelled.
In the case at bar it is clear that Trueblood voluntarily stopped his truck on the pavement, he did not drive to the shoulder as he might have done, nor did he proceed as he might safely have done except for his fear that his truck, the load width of which was beyond the statutory limit (G. S. 1947 Supp. 8-5,114), might strike the side of the bridge. We cannot say, as a matter of law, that Trueblood was not guilty of negligence in stopping where he did. The jury found by its general verdict that he was guilty of negligence as a matter of fact.
Appellants next direct our attention to decisions to the effect that a finding of specific negligence absolves the defendant from all other acts of negligence pleaded. (See Haley v. Kansas City Public Ser. Co., 154 Kan. 477, 119 P. 2d 449, and cases cited, and see Brittain v. Wichita Forwarding Co., 168 Kan. 145, 211 P. 2d 77, as to rule between general and special findings.) That such is the rule is not debatable. The gist of the argument is that the jury, by its answers to special questions, did find that the negligence found was “stopping on the highway” — “momentarily,” but that it did not find Trueblood failed to pull his truck off the highway when it became necessary to stop, and that there is no finding that he had time to do anything other than he did, in support of which Knight v. Hackett, 149 Kan. 492, 87 P. 2d 505, is cited. In that case it was held that a naked allegation that the truck was stopped or parked on the pavement did not charge the driver with any negligent act or omission. As is pointed out in the opinion, the accident there involved occurred prior to the enactment of our uniform act regulating traffic on highways, now appearing as G. S. 1947 Supp., Ch. 8, Art. 5, and that whether the driver was negligent in stopping the truck on the pavement would depend on the circumstances. The statute now in effect, G. S. 1947 Supp., 8-570, prohibits stopping on the pavement of the highway, except under conditions there set forth, and the jury, which was not interrogated specially about circumstances warranting application of the exception in the statute, by its general verdict found there were no exceptions. Further than that, the whole circumstances, both from the viewpoint of the plaintiff and from that of the defendants, were disclosed to the jury, and it resolved such conflicts as there were in the evidence in favor of the plaintiff. There is a thread of argument that the ground of negligence found was not one pleaded, but we think that contention may not be sustained.
Appellants also contend that the evidence disclosed that plaintiff was guilty of negligence which contributed to his injuries and damage. The argument seems to be that because lights were burning on the rear of the truck plaintiff was negligent in running into it. Appellants recognize that plaintiff testified his vision was obscured by bright lights of oncoming traffic, but they argue this is not to be considered as the jury made no finding in this regard. No such special question was submitted. The general verdict imports a finding favorable to the plaintiff. In addition the appellants ignore the testimony about the knoll or rise in the highway a short distance to the north of the scene of the collision, and that the contour had the effect of obscuring the truck until about the time the lights of oncoming traffic interfered with plaintiff’s vision. All of the attendant circumstances have to be considered in determining whether as a matter of law this court may say that plaintiff was guilty of contributory negligence. We think those circumstances were such that the question was one of fact and not of law.
Appellants’ further contentions that counsel for plaintiff was guilty of misconduct prejudicial to the rights of the defendants by reason of his closing argument, and that the trial court was guilty of such abuse of discretion, as influenced and prejudiced the jury in favor of the plaintiff grow out of a single incident and will be discussed together. During the course of plaintiff’s closing argument, his counsel stated to the jury that there was an insurance adjuster, in the courtroom and that he had had a conversation with him relative to the trial of the case. Defendants objected for the’ reason there was no evidence on the point and they moved the court to instruct the jury that such remarks were prejudicial to the defendants and to disregard the same. Plaintiff’s counsel then volunteered a remark that, “They are a party defendant with a policy here, he admits that, your honor.” The trial court overruled the motion and did not admonish the jury.
Although appellee attempts in a manner to justify what was said and done, it is clear that counsel’s remarks pertained to matters not in evidence, went beyond the limit of fair argument, were improper and should not have been made. When the objection was made the trial court should have admonished counsel and should have directed the jury to disregard the improper statements and argument. Although we must disapprove what was done, it does not follow there must be a reversal. Before that result is to follow it must appear that the unoffending party was prejudiced. At no place in their brief do the appellants contend that the amount of the verdict or any of its parts as set forth in the answer to special question 8 is excessive or not sustained by the evidence, and our own examination of the record does not disclose anything from which it may be concluded that the jury was biased or prejudiced by the occurrences just mentioned. We are admonished by the code to disregard irregularities which do not appear to have prejudicially affected the rights of the party complaining (G. S. 1935, 60-3317), and that is the situation presented by the present record.
It follows that the judgment of the district court should be affirmed, and it is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to enjoin the issuance of school district bonds. Plaintiff appeals from an adverse judgment.
In his petition plaintiff alleged that he was a resident and taxpayer within the limits of the defendant Rural High-school District; that the district was organized in 1917 and the individual defendants were members of its school board; that the defendants threatened and were about to issue general obligation bonds of the district in the sum of $70,000, as the result of an election and to sell and dispose thereof, thereby creating an indebtedness of the district, and thereafter, to levy a tax against the property of the plaintiff, burdening him with an unlawful tax; that the defendants claim authority to issue bonds by virtue of the Laws of Kansas of 1949, chapter 389 (Senate bill 228); that defendants caused notice of a bond election to be given, which notice, for present purposes may be said to have called an election on a fixed day upon the question of issuing general obligation bonds of the district in an amount not exceding $70,000 “for the purpose of providing funds to pay the cost of enlarging, remodeling and improving the high-school building, located at Reserve, Kan., in said school district”; that such notice was insufficient and invalid in that it did not clearly inform the electors that the purported school building was to be moved from its present location to a new site some three or four blocks distant; that the notices and the ballots used were insufficient in that they did not clearly inform the electors what purported high-school building was to be remodeled and improved and the location of said building, in that many electors were under the impression and led to believe by the insufficiency of the notices and ballots that the building to be enlarged, remodeled and improved was the school building used for conducting the classes of the rural high school which in fact was a building owned by Common School District No. 72 of Brown county and not the building contemplated to be enlarged, remodeled and improved by the rural high-school district. Plaintiff further alleged that the, rural high-school district was not the owner of a schoolhouse in the district and for that reason' was not entitled to call an election or issue bonds under the statute above mentioned; that the rural high-school district was the owner of lots 1 and 2, in block 9, in Reserve, but under its deed it had no fee simple title and the building'on the lots had never been and was not being used as a schoolhouse, and that the district, through its board, intended to move the building from its present location on the above lots at a cost of approximately $5,000, and that under the statute relied upon, proceeds of bonds could not be-used for moving the purported building. Other allegations may be said to expand those mentioned. The prayer was for an injunction against issuance and disposal of the bonds.
Although not definitely disclosed, the record indicates that about the time the petition was filed and on June 27, 1949, a temporary injunction was issued.
The answer of the defendants contained some admissions not necessary to detail and a general denial of all other material allegations repugnant to the validity of the bond issue.
Trial was had upon an agreed statement of facts which is summarized as follows: Plaintiff is a resident and taxpayer within the limits of the defendant school district which was organized in 1917 and which operates a rural high school having about fifty pupils. In May, 1949, the district caused an election to be held for the purpose of issuing bonds not exceeding' $70,000 for the purpose of providing funds to pay the cost of “enlarging, remodeling and improving the rural high-school building located at Reserve, Kan., in said school district”; that the election was held under authority of Laws 1949, chapter 389, and that the result was 125 for issuance of the bonds and 116 against such issuance. (Although not specifically included there is no contention but that the ballots used stated the proposition to be voted on in the language quoted above.) It was also agreed that the school district owned all of block 4 in the city of Reserve, under a general warranty deed, and that it had obtained title to lots 1 and 2, in block 9, in that city, under a quitclaim deed from the trustees of the Modem Woodmen of America Reserve Camp 3308, the deed being duly recorded in 1937, and as shown by a resolution of the Camp of March 7, 1949, copies of the deeds and resolution being attached. This last deed shows that the grantor reserved the right to use the building on the lots for specified purposes and that if the grantee should have no more use for the building the real estate should revert to the grantor. The resolution of 1949 was to the effect the grantee should have full title to the property with the right to use the building in any manner it might desire without any restrictions from Lodge No. 3308. There is no showing of any deed or other instrument of writing carrying into effect the terms of the resolution, or that such deed or instrument was ever recorded in the office of the register of deeds. It was further agreed that there is a building on lots 1 and 2, in block 9, which had been used by the school district for the purpose of holding school dramatics and school athletics; that the building had also been used for community affairs with the consent of the school board, but that all high-school classes had been conducted in the grade-school building of Common School District No. 72 located in Reserve. And it was also agreed that the school board contemplated moving the building located on the lots in block 9, at a cost of approximately $2,000, about two blocks to the real estate owned by the district in block 4, the cost to be paid out of the proceeds of the sale of the bonds, and to enlarge, remodel and improve the building at its new location.
The trial court, having considered the agreed statement of facts and the argument of counsel, found generally in favor of the defendants ; that the building on lots 1 and 2, block 9, in the city of Reserve, is being and has been used for school purposes; that the words “enlarging, remodeling and improving” as set out in Laws 1949, chapter 389, were broad enough to and included the moving and the right to remove the building on lots 1 and 2, block 9, to block 4, a distance of two blocks; that the temporary injunction of June 27,1949, should be dissolved and a permanent injunction denied. It also found the ballot submitted to the voters conformed to the provisions of the bond statute, G. S. 1935, 10-120.
The plaintiff’s motion for a new trial was denied and in due time he perfected his appeal.
On October 12, 1949, the appellant filed his abstract of the record. It did not contain any specification of errors as required by our rule 5 (see 166 Kan. p. XI for the rule). On March 8, 1950, appellant filed his brief which contained a clear statement of the questions involved on the appeal. On March 31,1950, appellant filed his motion that he be permitted to amend and supplement his abstract by filing a specification of errors, which was allegedly inadvertently omitted. A copy of the proposed specification was made a part of the motion. This motion was allowed and the abstract was amended. Although the abstract had been on file for over five months, appellees made no objection thereto until they filed their brief in this court on April 6, 1950, in which they challenged appellant’s right to be heard because of his failure to include in his abstract a specification of errors as required by rule 5 and directed our attention to many of our decisions .treating the question of failure to comply with the above rule. This court has considered the appellees.’ challenge, the decisions relied on by them, and the particular facts of this case insofar as the specification is concerned, as well also the fact that appellees seem not to have been prejudiced in any manner as they have filed a full answering brief to the contentions urged by appellant in his brief, and has concluded that the appeal should be considered.
Although other questions are proposed and discussed in the briefs of appellant and appellees, in our opinion all that need be considered is whether the notice of the bond election and the ballot used clearly stated the question submitted to the electors and whether the electors voted intelligently thereon. Although the sufficiency of a notice of election or the form of a ballot to adequately advise the electorate of the question submitted has been a subject treated in a considerable number of our decisions, it is to be borne in mind that each case has arisen under statute or circumstance so that each might be said to be distinguishable from the others, and that is true of the various decisions to which each party directs our attention and of others not cited. There can be no controversy but that the election notice and the ballot specified the question to be voted upon was, should the school district issue bonds in an amount not exceeding $70,000 “for the purpose of providing funds to pay the cost of enlarging, remodeling and improving the high-school building,” nor is it arguable but that, standing alone, such statement of the question is unequivocal. But in view of the conceded fact that the moneys were not to be used for those purposes alone but that it was proposed by the school board that the building was to be moved from one site to another, the expense of moving to be paid out of bond proceeds, may it be said the question submitted was unequivocal?
In Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421, a writ of mandamus was sought to compel registration of bonds. There a board of education had adopted a resolution providing for erection of a school building at a total cost of $391,500, to be paid for by funds raised by the district and moneys to be received as a federal grant. The board submitted an otherwise unequivocal proposition to issue bonds for the sum of $198,500 for the purpose of erecting the school building, the notice of the election and the ballot containing no reference to the federal grant, as is disclosed by the proposition submitted, set out in the opinion; The election carried but the state auditor refused registration for the reason the question submitted did not clearly state the proposed project for which the bonds were issued. In that opinion may be found an extended discussion of the question whether the election notice and the ballot clearly stated the substance of the proposition submitted, and a review of some of our decisions treating the question. Although reference is made to that opinion for a full statement of reasons, included therein is reference to the fact that the electorate were not advised by the proposition stated in the election notice and ballots that the funds from the bonds were to be used otherwise than for a building costing only $198,500 and were not advised it was proposed to erect a much more expensive building of which the bond proceeds were to pay only a part. This court there concluded that the proposition submitted to the electors did not clearly state the object for which the bonds were to be issued and that registration should be refused.
Appellant also directs our attention to Kansas Utilities Co. v. City of Paola, 148 Kan. 267, 80 P. 2d 1084. In that case the primary question was whether the proposition submitted and the ballots used were misleading and confusing in that more than one proposition was included in the question submitted. On that ground the case may be distinguished from that now before us, but it is nevertheless informative on the general principle that notices of election and election ballots must clearly state the proposition so that the electorate may intelligently vote on whether bonds are to be issued, the proceeds of which are to be used for particular purposes.
In Henson v. School District, 150 Kan. 610, 95 P. 2d 346, which was to enjoin issuance of bonds, we considered a situation quite like that considered in Board of Education v. Powers, supra. The school board expected to erect a building costing $15,000 to be paid for by a federal grant and bond proceeds. The proposition submitted was to issue bonds in the sum of $6,500 for the purpose of erecting a schoolhouse, no reference being made to total cost or federal grant. We held the election notice and ballots did not clearly inform the electors as to ihe question submitted.
City of Coffeyville v. Robb, 165 Kan. 219, 194 P. 2d 495, was to compel the state auditor to register bonds. In that case the relief sought was allowed, it being held there was nothing in the election notice or ballot which tended to mislead the voters.
In Eastern Kansas Utilities, Inc., v. City of Paola, 165 Kan. 558, 196 P. 2d 199, the action was to enjoin issuance of bonds, and the question now being discussed was under consideration there. Without reviewing all of the facts giving rise thereto, this court held:
“Our statutes pertaining to city elections to provide a municipal utility contemplate that the ordinance submitting the proposition to a popular vote, and the notice of election and the ballot, shall clearly state the question the electors are to vote upon, and where the proposition is so obscurely stated that the electors may be misled, the election is vitiated.” (Syl. HI.)
Appellees seek to distinguish some of the decisions reviewed by-pointing out that they dealt with either dual or equivocal propositions, and that the proposition as stated in the notice of election and the ballot in the instant case is not subject to such criticism, and they further contend that whether any part of the bond proceeds can be used to pay the cost of moving the building does not constitute a ground for enjoining issuance of the bonds; that appellant has not alleged his tax burden will be increased if the building is moved. (Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720) and that it is doubtful if the question of moving the building was ever properly before the court and cannot be treated as a basis for enjoining the issuance of the bonds.
In our opinion no elector of the school district who presented himself to vote in response to the election notice and who then received the ballot used and read it, would be advised that the proceeds of the bonds were to be used as the agreed statement of facts says they were to be used. It may fairly be assumed that an elector might be in favor of the bonds if he thought the building was to be improved at its present location, but would otherwise be in opposition; that another elector might be in favor of the bonds if he thought the building was to be improved at the removed location but would otherwise be in opposition; and that another voter might favor the bonds on the assumption the proceeds thereof would be spent wholly for the enlarging, remodeling and improving, but would oppose use of any such proceeds for paying removal costs. No one of the electorate was advised by the notice or ballot that it was proposed to move the building from one location to another and to pay the expense of removal out of the bond proceeds. Under the circumstances disclosed by the record it may not be said that each elector who voted in favor of the bonds did so on any common basis of what was to be done. By reason of the failure to fully disclose the proposition being considered, it may hardly be said there was a majority vote on any one phase of it.
Inherent in the case is the question of the power of the school district to issue bonds, a part of the proceeds of which was to be used to pay for the removal of the schoolhouse from one site to another. In discussing this question we do not overlook appellees’ contention that it was not properly before the court in an action to enjoin issuance of bonds, but would be properly raised in an action to enjoin wrongful appropriation of the bond proceeds. Whether that be correct need not be determined. The nature of the proceedings before us is such that a complete determination should be made of all issues. The statute under which the school district proceeded was Laws 1949, ch. 389, which provides for the issuance of bonds “for the purpose of raising funds to pay the cost of equipping, enlarging, remodeling, repairing and improving schoolhouses, and for the purchase, repairing and installation of equipment therein or therefor,” as disclosed by the title of the act as well as by the declarations contained in the act. As has been stated, the trial court was of the opinion the words “enlarging) remodeling and improving” were broad enough to and included the moving of the schoolhouse. Appellees direct our attention to dictionary definitions and to authorities defining those words, but none of them go so far as to say that “removal" from one site to another is included. The language of the statute under which the school district is attempting to issue the bonds is to be read and considered in view of our long standing rule that municipalities cannot issue bonds unless the power to do so is conferred by legislative authority, either express or clearly implied, and any reasonable doubt as to the existence of such power is to be resolved against -its existence (see Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 239 Pac. 760, and School District v. Robb, 150 Kan. 402, 93 P. 2d 905, and cases cited). The statute provides for “equipping, enlarging, remodeling, repairing and improving” the schoolhouse and “the purchase, repair and installation of equipment therein.” Certainly those words do not include removal of a schoolhouse from one site to another, and it may not be said there is any express authority. And when the details of the statutory language are considered, it may not be said it is clearly implied there is any such power. Were we in doubt as to whether the language conferred power on the school district to issue bonds to raise moneys to move the schoolhouse from one site to another, our conclusion would be the district was not given such power. We con- elude however there is no doubt and that the district was without power under the statute relied on to issue bonds, the proceeds of which were to be used for the removal.
In our opinion, under the agreed facts, the proposition submitted to the electors under the notice of election given and the ballots used did not clearly state the proposed object for which the bonds were to be issued, but on the contrary failed to disclose the purpose for which the proceeds of the proposed bonds to be issued were to be used, and further, under the agreed statement that a part of such proceeds were to be used for an unauthorized purpose and that issuance of the bonds should be enjoined.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment in favor of the plaintiff. | [
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The opinion of the court was delivered by
Wedell, J.:
Two replevin actions were consolidated for trial in the district court. They were instituted by the Federal Deposit Insurance Corporation against H. J. Cloonan and Helen M. Cloonan, his wife, on two chattel mortgage notes and to obtain possession of the chattels pledged as security. The action against Helen M. Cloonan was dismissed. The jury answered special questions, rendered a general verdict for plaintiff giving plaintiff possession of the chattels which secured the smaller note and a money judgment for the balance due on the larger note. Cloonan appeals.
On a former appeal of the same case we reversed the judgment against appellant and by reason of trial errors remanded the case for retrial. (Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 193 P. 2d 656.) The pleadings are set forth at length in our former opinion, are made a part hereof and will not be restated.
The pleadings clearly set forth the capacity in which appellee instituted the actions, appellant’s defenses and appellee’s reply thereto. The substance of appellant’s defenses was (1) the subject notes were not delivered to the failed Exchange State Bank of Parsons by appellant and when appellee acquired them on the closing of the bank it obtained no better title than the failed bank had; and (2) appellant had fully paid the failed bank all obligations he owed it notwithstanding that neither the three old notes nor the two subject renewal notes in the same total amount reflected their payment. Appellee’s reply, in substance, alleged: The renewal notes had been delivered to the failed bank; if the renewal notes were conditionally delivered the conditions were unknown to appellee; appellant had waived any conditional delivery and was estopped to assert it; the notes had not been paid.
Touching appellant’s first defense the undisputed testimony discloses: The bank was declared insolvent June 21, 1941; at that time the failed bank had possession of three old notes of the appellant in the total sum of $11,850 although the old notes were not then listed as assets of the bank; none of these three old notes was due before the bank closed; only one of them, a $4,000 note, was secured; when the bank closed there were listed among the bank’s assets the two new subject notes in the same total sum as the old notes with separate chattel mortgages securing each of them.
With respect to the circumstances under which the renewal notes, the subject of this litigation, were executed appellant, in substance, testified: On or about June 1, 1941, the cashier of the failed bank advised him appellee’s agent was examining the Exchange State Bank for the purpose of determining whether it was solvent; the bank was in hard straits and unless it could obtain additional assets in the form of security on its loans to appellant and some other customers the bank would be closed; appellant advised the cashier he did not know why he should pledge additional security for the old notes if the bank was in danger of being closed; that if he pledged such security and the bank was closed he would have no security for a line of credit elsewhere; that the bank’s records were wrong and that he, in fact, did not owe the bank; the cashier advised him if the bank closed, he, appellant, could not hope to establish his alleged claims against the bank, that the old notes did not show they were paid; the cashier advised the thing for him to do was to make the renewal notes and to secure each of them and if he did so the renewal notes would not be put into the bank unless the bank were kept open as a going concern and if the bank were kept open appellant could then assert his claim of payment; appellant took the matter under advisement, discussed it with his wife and upon further assurance from the cashier that the notes would be handled just as he had agreed, appellant and his wife signed the two notes undated and gave them to the cashier.
The testimony of the cashier, appellant’s witness, corroborated that agreement. The cashier also testified he dated the notes on June 9, made them payable within thirty days thereafter, the same as the old ones had been, and placed them in the assets of the bank on June 14, 1941. The special findings of the jury were:
“1. Were the notes and chattel mortgages undated at the time they were left with Deb Smith? A. Yes.
“2. Were the notes and chattel mortgages dated and placed in the assets of the bank without the knowledge of H. J. Cloonan? A. Yes.
“3. On what date were the dates inserted in said notes and chattel mortgages by Deb Smith? A. June 9, 1941.
“4. On what date did Deb Smith place the notes and chattel mortgages in the assets of the bank? A. June 14, 1941.
“5. Were the notes and chattel mortgages left with Deb Smith with the understanding that they were to be dated and placed in the assets of the bank only in the event that the bank was kept open? A. Yes.
“6. After the notes and chattel mortgages were signed by H. J. Cloonan, where were they kept until they were dated and placed in the assets of the bank? A. Were left in custody of Deb Smith.
“7. Do you find that on May 16, 1941, H. J. Cloonan gave his check for $2505.00 to the bank and directed Rarold Reece, officer of the bank, to apply $2500.00 thereof on the $6900.00 note? A. No.
“8. Do you find that on May 17, 1941, H. J. Cloonan gave his check for $4,000.00 to the bank and directed Harold Reece, officer of the bank, to apply the same on his $6900.00 note? A. No.
“9. Do you find that on May 20, 1941, H. J. Cloonan gave his check for $3207.00 to said bank and directed Harold Reece, officer of the bank, to apply the same on his $4,000.00 note? A. No.
“10. If you find for the plaintiff, in Case No. 5439, please state the amount you allow by way of principal, and by way of interest, as follows:
“Principal: .......................................... $5468.18
“Interest: ........................................... $2650.96
“Total: .................'............................ $8119.14”
Appellant contends answers one to six inclusive establish nondelivery of the notes and the general verdict cannot stand. It will be observed the jury was not asked to find whether appellant was later advised the cashier had placed the subject notes among the assets of the bank and if so what appellant did concerning that fact. Appellant testified the old notes had not been returned to him and he did not know the subject notes had been placed among the bank’s assets until after the bank was closed. With respect to this last statement the testimony of the cashier, appellant’s witness, differed from that of appellant. The cashier admitted he had not returned the old notes to appellant but testified he had informed appellant on June 14, two or three days thereafter, or at least before the bank closed, that he had placed the notes among the assets of the bank on June 14. On that particular point appellee contends the jury had a right to believe appellant’s witness and conclude appellant was advised the renewal notes had been placed among the bank’s assets before the bank closed. That contention, of course, is sound. By its general verdict in favor of appellee every controverted fact, not expressly found by the jury, and every favorable inference therefrom, were resolved in favor of appellee. (Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 44, 86 P. 2d 583.)
In view of the general verdict this court must, therefore, proceed on the theory the jury believed appellant knew the renewal notes had been placed among the bank’s assets before the bank closed and hence prior to appellee’s acquisition thereof.
Appellee emphasizes the fact the record discloses it had no notice of the conditional delivery agreement between appellant and the cashier. There was evidence to support that contention and no positive evidence to the contrary. Appellee asks us to recede from our former holding in this case that it was not a holder in due course. The request is based primarily on D’oench, Duhme & Co. v. F. D. I. C., 315 U. S. 447, 86 L. ed. 956, 62 S. Ct. 676, and Deitrick v. Greaney, 309 U. S. 190, 84 L. ed. 694, 60 S. Ct. 480, not cited by appellee in the former appeal and on testimony not presented in the former appeal, namely, the written contract under which appellee purchased the subject notes and other paper from the failed bank and in which contract that bank warranted the title and validity of the subject notes, warranted the paper was genuine and that it had no knowledge of any fact which would impair the validity of the instruments and that the balance due thereon was as represented by such instruments.
Our former decision, of course, was based on the facts presented in that record. We have examined the cases now relied on by appellee but do not deem it necessary to determine whether those decisions, in the light of the particular facts therein contained, are decisive under the facts in the instant case.
Under a well established rule this court has refused to reopen and reconsider what was decided in an earlier appeal in the same case. (Lechleitner v. Cummings, 160 Kan. 453, 456, 163 P. 2d 423, and cases therein cited.) In any event we prefer to determine whether under the evidence presented in the last trial the jury was justified in concluding appellant waived the conditional delivery of the subject notes. If appellant waived the conditional delivery the failed bank itself could have recovered on the notes, assuming, of course, appellant failed to establish his defense of payment. As previously indicated the jury found the notes were delivered conditionally but nevertheless rendered a general verdict against appellant.
Did the evidence adduced in the last trial and inferences reasonably to be drawn therefrom support the conclusion appellant ratified the cashier’s conduct in placing the subject notes among the bank’s assets and thereby waived the defense of conditional delivery?
It will be recalled the cashier dated the renewal notes on June 9. They were made payable July 9, 1941. On June 9 appellant was in the bank in conference with the examining officcers. There was testimony he then admitted he owed the bank $11,850 and that he said he would pay the notes if given time to do so. That amount was his loan limit. It was the total of the three old notes as well as the total amount of the two subject renewal notes. We cannot, however, say he acknowledged the new notes on that date. In the conversation the three old notes were discussed and designated by their respective amounts. Touching the question of his indebtedness, however, it should be recalled the jury expressly found appellant did not on the previous dates of May 16,17 and 20 direct Reece to apply the checks designated in findings seven, eight and nine on the three old notes. We must, therefore, proceed on the theory the jury was justified in believing appellant on June 9 acknowledged owing the bank $11,850 as represented by notes. Appellant did not on that date or any other date inform the examiners of any agreement he had with the cashier concerning the conditional delivery of the new notes.
The new notes were placed among the bank’s assets June 14. As previously stated appellant’s witness, the cashier, testified he had notified appellant on June 14, two or three days thereafter, or at least before the bank closed that the notes had been placed among the bank’s assets on June 14. On June 14 the larger one of the two renewal notes in the sum of $9,350 was credited with two payments of $200 each. On June 17 another credit of $200 was recorded on the same note. The bank was closed June 21 and on that date appellee acquired the subject paper. Thereafter and between June 21 and August 23, 1941, inclusive, appellant made twelve payments in the total sum of $2,855 which were all credited on the $9,350 note. At least some of the receipts for such payments were delivered directly to appellant by the liquidator. Such receipts showed the payments were credited on the renewal $9,350 note. It was not until the latter part of July that appellant advised the liquidator he had some claims against the bank. After so advising the liquidator appellant made seven of the above mentioned payments in August, 1941. There was evidence appellant told the liquidator he owed the subject renewal notes and would pay them if appellee would go along with him.
In the latter part of August or the early part of September appellant told the liquidator he would not make further payments as he had paid all he thought he owed the bank. Under the facts and inferences the jury reasonably might draw therefrom we would not be justified in holding there was no basis for concluding appellant had ratified the delivery of the renewal notes and had waived the former conditional delivery.
We now reach the defense of payment. It is not our purpose or province to brand appellant or any officer of the bank with bad faith or unlawful conduct and we shall refrain from intimations in that regard. It is perfectly obvious, however, there were some glaring and unexplained irregularities in this bank. The exact nature of at least most of them is not disclosed by the instant record. We shall not deal in speculations. It is true, as appellant contends, the record discloses he made some substantial payments to the bank for some purpose, or purposes, the nature of which is not clear, for which no credit was shown on the bank’s records. It cannot be said appellant’s own books clearly indicate the purpose of such payments. At least some of appellant’s bank transactions appear to have been had with a previous officer of the bank in May, 1941. That officer did not testify in this case. It would serve no useful purpose to attempt to narrate all the oral testimony on the subject of payment or to discuss the various records of the bank or appellant’s own books on this subject.
The burden of proving payment of an obligation rests upon the person who asserts it. (National Bank v. Hellyer, 53 Kan. 695, 37 Pac. 130; Bridge Co. v. Wayland, 107 Kan. 532, 192 Pac. 752; 40 Am. Jur., Payment, § 278.) That burden was on appellant in this case whether the indebtedness be regarded as represented by the old or the renewal notes. He undertook to show he had paid most, if not all, of the old notes and also stated his reasons for thereafter executing the new ones in the same total amount of $11,850. It was the province of the jury to consider and weigh all that testimony. As previously indicated there was evidence from which the jury could conclude he acknowledged his indebtedness on the substituted new notes as well as on the old notes. Appellant did not meet the burden of proof of payment to the satisfaction of the jury. The record will not permit us to say, as a matter of law, the jury was wrong.
Appellant argues his application for a change of venue should have been sustained. We have examined the affidavits filed in support of the application and the one in opposition thereto. In view of the entire history of this and related litigation it would appear this was a case in which the application well might have been allowed. We, however, cannot say the record affirmatively discloses an abuse of judicial discretion in denying it. Absent a showing of such abuse we will not disturb the order. (State v. Harris, 126 Kan. 710, 271 Pac. 316; In re Hedrick Appeals, 155 Kan. 165, 123 P. 2d 806, and cases therein cited.)
It is asserted the court erred in refusing to set aside special answers of the jury seven to ten inclusive, previously set forth, on the ground only appellant testified touching those subjects and that his evidence was not contradicted. It would appiear the jury did not believe that testimony. The dates involved in those questions were May 16,17 and 20. It will be recalled there was evidence appellant thereafter and on June 9 acknowledged his indebtedness on the old notes to which those special questions pertained. The jury probably considered that testimony in connection with its answers seven, eight and nine.
Appellant argues his motion for judgment non obstante veredicto should have been sustained. The contention is based on the theory special answers one to six inclusive disclose the renewal notes were not delivered and hence no liability thereon could attach. The -■ontention ignores the questions of appellant’s later ratification of the delivery of the renewal notes by the cashier, appellant’s subsequent acknowledgment of the indebtedness represented thereby »nd his waiver of the original conditional delivery, all embraced in the general verdict. The special findings did not purport to cover those questions and they do not compel a general verdict contrary to the one rendered. The motion was properly overruled.
Appellant contends there was error in the exclusion and admission of evidence. We have examined the testimony involved under each of the contentions. We need not in this case discuss the original competency of appellant’s own bookkeeping records to show payments on the old or subject notes. However, in view of some of appellee’s testimony which was received on that subject it would seem the court should have permitted appellant’s witness, Stevenson, to testify what, in his opinion, appellant’s records did not disclose with respect to a $4,700 item. Upon full examination of the entire record we do not, however, regard that or other alleged errors with respect to admission or exclusion of evidence of sufficient importance to justify a reversal of the judgment.
Appellant complains concerning instructions given and the refusal to give certain requested instructions. We do not deem it necessary to treat the numerous instructions separately. Appellant’s principal complaint revolves about the question whether appellee was a holder in due course. In view of what previously has been said herein on that subject it is clear it was not necessary, under the evidence in this case, that appellee should be a holder in due course in order to prevail. In the trial appellant was permitted to adduce evidence in support of all defenses he could have presented against the failed bank itself had it been the plaintiff. He was permitted to show the conditional delivery of the renewal notes. The jury made findings on that subject. Moreover, appellant was permitted to prove payment of his entire indebtedness to the failed bank irrespective of whether it was represented by the old or the renewal notes. In this he failed. In view of those facts we think we would not be justified in reversing the judgment for technical errors which do not affirmatively appear to have prejudiced appellant’s substantial rights.
The judgment is affirmed.
Harvey, C. J., dissents. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a suit in equity to construe a life-insurance policy as it pertains to the method of payment of the proceeds of the policy to the beneficiary. We shall speak of the parties as they appeared in the trial court.
On June 27,1938, James Wesley Hudgen, of Pittsburg, Kan., age forty, and manager of a farm implement company, made written application to defendant for a modified life-insurance policy in the amount of $5,000. The application contained the provision:
"Proceeds of policy in event of death payable to Beulah M. Hudgen, Age 39 Wife Make payable $60.00 per month as death claim until proceeds shall have been paid.”
The application was forwarded to defendant at its home office in Topeka and was approved on July 25, 1938, and the policy was issued. By it defendant “Guarantees to pay Five Thousand Dollars To the Beneficiary Beulah M. Hudgen, wife — proceeds payable in monthly installments of $60.00 each.” Defendant is an old-line legal-reserve company and the reserve on its policies is made on its American Experience Table of Mortality and 3% percent interest and provides that interest on deferred payments should be computed at the rate of 3% percent per annum. The insured was given the privilege to change the mode of payment of the policy, but he made no change from that stated in his application and in the policy. The policy lists three options of installment payments, any one of which might be selected by the insured. None of them coincides with the request made in the application and stated in the policy here involved. Each of the options of installment benefits has a table showing the number of installments and the amount of each in which the proceeds of the policy would be payable if the option had been selected by the insured as authorized, perhaps required, by G. S. 1935, 40-420 (11), and in each of them interest on the delayed payments was computed at 3% percent per annum. The policy issued in this case contained no table showing the amount of each of the installments, nor any computation as to the amount of those installments computed at 3% percent annual interest, or at any other rate. It does provide that when payment is made in installments the beneficiary cannot assign or commute the unpaid installments.
The insured paid the premiums on the policy until his death on December 13, 1947. After his death due proofs of death were furnished to and received by defendant and payment of the death claim was approved by defendant subject to and in accord with the provisions of the policy. At the time of his death he was paying the premiums on a semiannual basis and had paid the premium for the first half of the policy year beginning July 25, 1947. The premium for the second half of the policy year, amounting to $53.33, had not been paid, and acting under a provision of the policy which authorized defendant to do so, it deducted that amount from the $5,000 face value of the policy, leaving the amount payable $4,946.67.
Under date of January 23, 1948, defendant sent to a bank at Fort Scott, where the plaintiff herein, the beneficiary named in the policy, was then living, a check for $60, payable to plaintiff, with instructions to the bank to deliver the check to plaintiff if she surrendered the policy and executed an enclosed “Supplemental Contract.” This was in the form of an agreement between plaintiff and defendant. It recited the execution of the policy and its terms as to payment, as above stated, the death of the insured, and the making and approval of the proofs of death, and continued:
“Now Therefore, it is mutually agreed by the parties hereto that the death claim on said policy shall be settled and paid by the company in the following manner: The sum of $4,946.67, being the face amount of the policy less balance of annual premium due July 25, 1947, in the amount of $53.33, shall be paid by the Company by setting aside said sum in a special fund to be held by the Company and paid, including interest thereon to Beulah M. Hudgen, The Beneficiary, at the rate of $60.00 per month on the first day of each month commencing with January 1st, 1948, until said fund including interest shall have been paid out in full. The Company agrees to pay and accumulate interest at the rate of 2%% per annum upon the unpaid balance of said fund until the entire fund and interest have been paid to beneficiary in monthly payments of $60.00 per month as provided above.
“It Is Understood and Agreed that said fund is not withdrawable, except in said monthly installments as provided above.
“This Agreement shall be binding upon the heirs, executors, administrators, devisees, trustees, successors, and assigns, of the parties hereto.”
Plaintiff declined to comply with those conditions and the check was not delivered to her. Defendant continued to send a check for $60 on the first day of each month for several months to be delivered to plaintiff if and when she complied with the conditions stated in the first communication. She continued to decline to comply with those conditions and none of the checks was delivered to her. Defendant does .not now contend that plaintiff was under any duty to execute this Supplemental Contract, or to surrender the policy prior to the payment of its liability thereon.
At some date in 1948, not shown by the abstract, the beneficiary, as plaintiff, brought this action to have the policy construed with respect to the payment of the proceeds thereof. The petition alleged in more detail than is here stated the facts above set.out and some other provisions of the policy and predicated upon the view that the policy does not provide a table showing the number of installments and the amount of each, interpreting G. S. 1935, 40-420 (11), as requiring such a table; suggested the construction that the proceeds of the policy should be paid in a lump sum with six percent interest since the death of the insured, December 13, 1947, or that the proceeds of the policy be paid at the rate of $60 per month with interest at six percent per annum -on the unpaid monthly balance, either added to the monthly payments, or payable at the expiration of the payments on the principal sum, and to bear interest at the rate of six percent per annum, or that the sum payable on the policy be paid at the rate of $60 per month with interest thereon at the rate of 3%' percent per annum on the unpaid monthly balance, either added to the monthly payment or payable at the expiration of the payment of the principal sum, and also to bear interest at the rate of 3% percent per annum. Defendant attacked this petition with a motion to strike, which the court sustained in part and overruled in part. Thereafter defendant answered admitting certain paragraphs of the petition and denying others, and alleging that in effect the insured had accepted option one of the installment payments set out in the contract, and asked that the policy be so construed. (This contention has been abandoned.) In its prayer defendant expressed its ability and willingness to abide by and comply with whatever order the court may enter and offered to confess judgment for the sum of $4,946.67 together with the interest on amounts remaining unpaid at the rate of 3% percent per annum, the principal and interest to constitute the proceeds of the policy to be paid at the rate of $60 per month commencing January 1,1948. It will be noted in this answer defendant does not make its contention clear as to whether the interest so computed on each payment should be paid at the time of the $60 payments, or after all those payments had consumed the principal liability on the policy.
The trial court heard the parties and concluded that the proceeds of the policy should be paid in a lump sum together with six percent interest since the death of the insured, but that defendant should have credit for the amount of the several checks it had sent to the bank and which had not been delivered to plaintiff. From this judgment the defendant appealed, and plaintiff filed a cross-appeal which went mostly to the ruling of the court upon the pleadings. It is not seriously pressed.
The court is of the view «that it will serve no useful purpose to analyze and pass upon many of the questions that are argued in the brief pertaining to the pleadings and the various theories of the respective parties as shown by their pleadings and briefs and some which occurred to the members of the court during consultation, but deem it best to go directly to the interpretation of the policy and the application for it and set out what we deem to be the proper method of making the payments.
This suit would have been unnecessary had defendant placed in the policy a table of the number of installments and the amount of each as is authorized, perhaps required, by our statute (G. S. 1935, 40-420 [11]). However, the fact this was not done does not void the policy, neither should it change the declared wish of the insured to have the proceeds of the policy paid to the beneficiary at $60 per month and the acceptance of that provision in the policy issued by defendant.
Our mandate may be handed down in May. The next monthly payment as selected by defendant will be June 1,1950. By that date thirty of the $60 payments, aggregating $1,800, the insured expected his beneficiary to receive will not have been paid. The policy makes no provision for computing interest on unpaid payments. We think the $1,800, plus six percent interest upon each of those payments from the time it should have been paid to June 1,1950, should have been paid on this date. This interest, as we compute it, amounts to $139.50. Our judgment respecting this matter is that defendant shall pay plaintiff $1,939.50 on June 1,1950.
On June 1, 1950, the interest at 3% percent per annum upon the principal amount payable on the policy, $4,946.67, which interest we compute to be $432.83, should be added to the original principal, making a total of $5,379.50, from which should be deducted the $1,800 paid on the principal on June 1,1950, leaving a new principal of $3,579.50.
To determine the principal amount on July 1, 1950, interest on this new balance of $3,579.50 at the rate of 3% percent per annum should be computed for the one month from June 1 to July 1, 1950, and added to the $3,579.50. The formula for computing this 035 interest is X $3,579.50. The interest thus computed amounts to $10.44, which added to the $3,579.50 amounts to $3,589.94. From this will be deducted the July first payment of $60, leaving a new principal of $3,529.94. Upon this, interest shall be computed for one month and added to this new principal and the $60 payment of August first deducted. Subsequent monthly payments shall be computed in the same way and payments of $60 per month made until all of the original sum to be paid on the policy with interest computed as in this manner has been paid.
The judgment of the trial court should be reversed with directions to enter judgment, for plaintiff in harmony with this opinion. The costs in this court should be divided between the parties.
It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an original proceeding in habeas corpus.
The petitioner has not filed an abstract as required by the rules of this court. Respondents have, however, prepared and filed a certified abstract consisting of the petition for a writ and the answer and return of respondents, the sheriff of Leavenworth county and W. C. Parker, agent of the state of Missouri.
Omitting caption the petition signed and certified by petitioner's counsel, reads:
“Your petitioner, by his attorney, John H. Murray, shows the honorable Court:
“1. That your petitioner is unlawfully deprived of his liberty by the respondents named herein and that said imprisonment is illegal.
“2. That your petitioner, Joe Muscia, was released from the United States Penitentiary, Leavenworth, Kansas, by the Federal authorities and is in constructive custody of the United States Government at this time.
“3. That a warrant was purportedly issued by the State of Missouri under date of April 28, 1943, for alleged parole violation and that said petitioner was taken into custody on said alleged warrant for alleged violation of a parole, by the sheriff of Leavenworth County, Kansas and is restrained by said sheriff on said warrant, and the restraint, imprisonment, and detention of petitioner by said sheriff is illegal and that said warrant is of no legal force or effect, and petitioner is deprived of his constitutional rights.
“Wherefore, a petitioner prays that a Writ of Haheas Corpus issued to the respondent directing him to bring petitioner before this court and that this court order petitioner to be discharged from said unlawful imprisonment, detention and restraint.”
Omitting caption the verified answer and return of respondents reads:
“Come now the respondents above named, and for their joint answer and return to the petition for A Writ of Habeas Corpus filed herein, respectfully state and allege to the court as follows:
“I
“That except as may be hereinafter admitted, the respondents specifically deny each, every, and all allegations, statements and averments as contained in petitioner’s petition as constituting any cause of action against these respondents or grounds upon which to base the relief prayed for.
“II
“The respondents admit that the petitioner is being held in the custody of Leonard S. Turner as Sheriff of Leavenworth County, Kansas, and expressly deny that said detention is unlawful, and further allege that said petitioner is a fugitive from justice from the State of Missouri, and he is now being held in custody by the respondent, pursuant to a warrant duly and regularly issued by the Honorable Frank Carlson, Governor of the State of Kansas, for the purpose of rendition to the respondent, W. C. Parker, as agent for the State of Missouri; that attached hereto and marked ‘Exhibit A’ is a duly certified copy of the warrant issued by the Honorable Frank Carlson as Governor of the State of Kansas, and said Exhibit A is incorporated herein by reference and made a part hereof as if written out in full herein.
“Wherefore, your respondents having fully answered herein, pray that this honorable Court find that the petitioner is legally and lawfully in the custody of the respondents, and that the petitioner’s application for a Writ of Habeas Corpus be denied in every respect.”
The warrant of the governor of Kansas is regular in form, addressed to the sheriff of any county in Kansas and directs such sheriff to deliver into the custody of the respondent, W. C. Parker, agent of the state of Missouri duly commissioned by the governor of Missouri, to receive said petitioner, a fugitive from the state of Missouri. Upon the issues joined by such pleading this court is asked to order the release of the petitioner.
It is elementary the burden of proof is upon a petitioner to establish his unlawful detention. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; Pyle v. Hudspeth, 168 Kan. 706, 215 P. 2d 157.) The' proof must be by a clear and convincing preponderance of the evi dence. (Bissell v. Amrine, 159 Kan. 358, 155 P. 2d 413.) The pleadings heretofore mentioned are the only record presently before this court in the instant proceeding. There is no evidence whether petitioner was released outright and permanently or conditionally by the federal authorities at the time the sheriff of Leavenworth county took him into custody pursuant to the warrant of the governor of this state. Moreover the matter of petitioner’s custody is one of comity between the federal and state governments and as such is a subject over which petitioner has no voice. (Powell v. Turner, 167 Kan. 524, 530, 207 P. 2d 492.)
In his brief counsel for petitioner calls attention to a purported affidavit in which petitioner states to what facts he would testify were he personally present. The affidavit referred to is not competent evidence. It purports on its face to be only a copy of an alleged original affidavit. The original affidavit has not been filed in this court and is no part of the'record before us. Moreover, if we gave full credit to the alleged facts contained in the copy of the purported affidavit it alone would not establish petitioner’s right to release from custody.
The result is the petition for the writ must be denied. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This appeal arises out of an action to set aside two deeds and was taken by plaintiffs from an order rendering judgment against them pursuant to a motion for judgment on the pleadings.
The appeal requires examination of the verified pleadings consisting of an amended petition, answer and amended reply. Before narrating the essence of material portions of such pleadings a brief general statement of admitted facts may be helpful.
We shall continue to refer to the parties as plaintiffs and defendants, except as we refer to certain of them by name. The plaintiffs are D. R. Maltby, a widower, and his two sons, Arthur Raymond Maltby and L. H. Maltby, also referred to as Harold L. Maltby. The defendants are Mary Kathleen Sumner, formerly Mary Kathleen Foster, and her husband, Milton T. Sumner. Mary Kathleen is a daughter of a prior deceased adopted daughter of the plaintiff, D. R. Maltby, and his deceased wife. Mary Kathleen’s mother died in 1932 and Mary Kathleen was reared in the D. R. Maltby home.
The foundation of plaintiffs’ cause of action to set aside two deeds executed and delivered to Mary Kathleen is that such deeds were executed in consideration of and pursuant to a certain previous oral contract made by D. R. Maltby for himself and on behalf of the two plaintiff sons with Mary Kathleen Sumner and her husband. The oral contract alleged by plaintiffs was that the contracting parties had agreed defendants would keep house and care for D. R. Maltby during the remainder of his life, that defendants breached the agreement and that both deeds were therefore invalid.
The amended petition, in substance, further alleged: D. R. Malt-by’s wife died in 1944; defendants lived with and kept house for D. R. Maltby (to whom we shall hereafter refer to as “D. R.”) in an affectionate and careful manner until on or about June 11, 1947, when D. R. for himself and on behalf of his two sons entered into an oral contract with defendants whereby it was agreed if defendants would continue to so care for D. R. during the remainder of his life he would convey, and cause to be conveyed, to Mary Kathleen the McPherson residence property in which D. R. and defendants were then living, subject to the reservation of a life estate in D. R., and that he would also convey a one-third interest in a business building in McPherson, likewise subject to a life estate in D. R.; that D. R. would convey an equal undivided one-third interest in said business building to each of his two plaintiff sons; that D. R. would further contribute a certain amount of money monthly toward his care (he was then over eighty years of age); pursuant to such oral agreement D. R., on June 11, 1947, executed such a deed to the business property to his two sons and Mary Kathleen (this particular deed to the business property recited the consideration was “One Dollar ($1.00) and Love and Affection . . .”); on June 23, 1947, D. R. together with his two sons and their wives executed a warranty deed whereby they conveyed to Mary Kathleen all of the undivided interests of the plaintiffs in the residence property, also subject to a life estate in D. R. (this deed recited the consideration for the conveyance of the residence property to be $10 and other valuable consideration. Revenue stamps in the sum of $2.20 were attached to the deed by D. R.); the deeds were recorded on October 20, 1947, and September 2, 1947, respectively.
The amended petition, in substance, further alleged: The only consideration for the two deeds was the promise and agreement of defendants to make a home and care for D. R.; the actions and conduct of defendants prior to the execution of the deeds whereby they indicated affection and respect for D. R. were false and a pretense for the purpose of procuring the deeds; their conduct constituted a fraud on D. R.; defendants originally intended to breach the contract ; within two or three weeks after the execution and delivery of the deeds to Mary Kathleen, the defendants breached the contract and ceased to treat D. R. with the affection and respect they formerly had; by reason of such breach the consideration for the deeds failed, the deeds were invalid and should be set aside.
The answer of defendants first contains a general denial of all matters alleged in the amended petition not expressly admitted in the answer. The answer, in substance, further states: An entirely different oral contract was made between defendants and D. R. relative to the latter’s care from that alleged by plaintiffs; the oral contract was made in April, 1944, and not in 1947 as claimed by plaintiffs; the oral contract was made shortly after the death of D. R.’s wife in 1944; it was at the time of the funeral of D. R.’s wife that he requested defendants to leave their home and business in Texas and to come and make their home with him in the McPherson residence property; the agreement was if defendants would come and make a home for D. R. he would will the residence property and its furnishings to Mary Kathleen and defendants could have free use of the home and its contents so long as D. R. lived; defendants disposed of their furniture in Texas, left their business, came to live with D. R. on or about April 15, 1944, and continued to live with him until about June 1, 1948; the business property was not involved in the oral contract; it was the residence property only which D. R. agreed to will to Mary Kathleen together with its furniture and contents.
The answer, in substance, further alleged: D. R. changed the oral contract after defendants were living with him; D. R. advised defendants it was necessary for him to change that contract as he had previously devised a one-third interest to Mary Kathleen and the two sons by a former will; by reason of such change defendants were obliged to and did purchase the residence property from D. R. and the latter adjusted the situation by executing a codicil to his former will on June 8, 1944 (the codicil was attached to the answer) ; the deeds in question to the residence and business property were subsequently executed on June 11, 1947, and June .¡23, 1947; the conveyance of the business property was in nowise related to the oral contract; that conveyance constituted a gift of an equal' undivided one-third interest to Mary Kathleen and to the two sons; that deed was executed by D. R. as a part of his plan to divide his property among the three grantees during his lifetime instead of leaving it to become a part of his estate and also to prevent an alleged creditor from reaching any part .of it; defendants did not breach the oral agreement; in 1948 D. R. was eighty-eight years of age; Mary Kathleen was twenty-eight and her husband thirty-six; by reason of the disparity of ages between D. R. and the defendants and their children and the differences in their attitudes and viewpoints D. R. became dissatisfied with defendants and on May 26, 1948, served notice on them, to vacate the premises; he served another such notice on July 3, 1948, at the time he filed suit against defendants in the district court to enjoin and restrain them from moving any personal property from the premises.
The answer further, in substance, states: Defendants were at all times willing to care for D. R. and left the residence only by reason of his insistence; in order to comply with D. R.’s request for possession of the residence defendants were-required, being unable to find a rental property, to purchase another home at a premium; on July 8, 1948, D. R., the plaintiff Harold L. Maltby, and defendants met in the office of A. T. MacDonald, plaintiffs’ attorney, for the purpose of settling all differences existing between them and to reestablish amiable relations among them; before such written agreement was executed D. R. stated to defendants he wanted them to be satisfied, that he was satisfied and wanted to be friends again.
The agreement as executed was signed by D. R. and defendants and reads:
“This agreement made and entered into this 8th day of July, 1948, by and between D. R. Maltby, hereinafter known as First Party, and Milton T. Sumner and Kathleen Sumner, hereinafter known as Second Parties, all of McPherson, Kansas, Witnesseth:
“That, Whereas, the said First Party is the owner of a life estate, and the Second Parties are the owners of the remainder estate in and to the real property described as: [description of residence property]
“Whereas, the said parties desire to agree as to the possession of the de scribed real property and as to certain furniture, household goods and effects located in the described real property;
“Now, Therefore, in consideration of the covenants and mutual promises herein contained, said parties do agree as follows:
“1. That the said Second Parties shall and will give up to the First Party the possession of the said described real property by the 1st day of August, 1948; it being understood that during the occupancy of the described property by First Party as life tenant, he shall and will pay all taxes and insurance upon the property, and shall and will maintain the buildings and premises in a good state and condition of repair.
“It is further understood and agreed that upon the demise of said First Party, that Mr. and Mrs. L. H. Maltby shall have a reasonable period of time, not to exceed six months, from the date of the demise of said First Party, in which to give up possession of the described real property.
“2. It is further understood and agreed that the said First Party owns a life estate in the personal property described in the list attached hereto and made a part hereof as Exhibit ‘A’, with the right of exchanging and replacing the same, and that at the demise of First Party, said furniture and effects shall be owned absolutely by Second Parties; and it is agreed that First Party does hereby sell, transfer and convey, and release, remise and quit-claim to said Second Parties any and all of the other personal property, furniture and household effects now located in and upon the described property.
“The parties hereto agree that this contract shall be considered as a compromise and settlement of all differences heretofore existing between them, and that it is made and entered into with the desire and intention on the part of both parties to re-establish amiable relations between them.
“The parties hereto agree that this instrument shall be binding upon them and their heirs, and in witness ^thereof, have hereunto set their hands at McPherson, Kansas, on the day and year first above written.” (Our italics.)
The answer, in substance, further states: The terms of the agreement were carried out by each party; plaintiffs stated to defendants there were no differences between them other than the dispute over the furniture and the time when defendants should give possession of the residence; defendants relied upon such representations when they executed the compromise, agreement; plaintiffs are estopped to maintain the instant action' for the reason stated.
In plaintiffs’ amended reply they denied generally all material averments contained in the answer except such as were expressly admitted in the reply. The reply specifically denied any will or codicil thereto was executed by D. R. pursuant to any agreement with defendants and alleged that any will or codicil made was subject to revocation by D. R. The reply further denied: The deeds were executed by D. R. by reason of any creditor’s claim against him and that any of the deeds were made as a gift to defendants or either of them; that no other differences existed between plaintiffs and defendants than that pertaining to possession of the residence property; that the meeting in the law offices of A. T. MacDonald was had for the purpose of settling all differences between plaintiffs and defendants and alleged the meeting was only for the purpose of settling their differences with respect to the possession of the residence property and the household goods and furnishings.
The reply also denied: The deeds were prepared by D. R.’s attorney; that an attorney had authority to settle any other differences between the parties and that any other purpose of the meeting was explained to D. R.; that the deeds were made by D. R. for the purpose of avoiding costs of all administration, federal estate taxes, or state and inheritance taxes on his estate; that D. R. employed attorneys to execute the deeds; that D. R. demanded defendants pay $1,700 to him before delivering the deed to the residence property and that defendants paid D. R. the sum of $1,700 on August 27, 1947; that D. R. joined defendants in the execution of a mortgage on the residence property.
In addition to the foregoing denials plaintiffs’ amended reply also alleged: D. R. was deaf, had limited vision and was suffering from arteriosclerosis; he did not read the agreement; he was unable to read except with a strong magnifying glass in addition to his spectacles ; he did not hear any of the discussion; he was unable to hear ordinary conversations and heard none of the discussion except that part thereof which pertained to the differences relating to the possession of the residence property and household furnishings; he did not know and was not advised, or was his son, the agreement pertained to any other subject; the agreement was not dictated and prepared by his but by defendants’ attorney; defendants knew a dispute existed between them and plaintiffs relative to defendants’ breach of the oral contract; that if defendants intended the agreement of July 8, 1948, was to relate to anything other than the possession of the residence property, furniture and household effects, then such intention was fraudulently concealed from D. R. and from Harold L. Maltby and was included in the agreement for the purpose of defrauding plaintiffs.
It has been observed the answer of defendants contains denials of some allegations found in the amended petition and that plaintiffs’ amended reply contains denials of certain facts pleaded in defendants’ answer. A part of such denials pertains to matters which in some cases might be highly material. Whether they are material here requires an analysis of the fundamental theories of plaintiffs’ cause of action and of defendants’ defense thereto.
It has been observed the agreement of July 8,1948, between D. R. and defendants purports to be a “. . . compromise and settlement of all differences heretofore existing between them.” According to the pleadings what were the fundamental differences existing between D. R. and defendants prior to the execution of the compromise settlement agreement? They were the date of the oral contract, its terms and who breached it. Plaintiffs allege the oral contract was made in 1947, both deeds were executed to the defendant, Mary Kathleen, in consideration of a single oral contract between D. R. for himself and on behalf of his sons whereby defendants agreed to care for D. R. during the remainder of his natural life; that defendants breached that contract and hence the contract failed and both deeds were invalid.
On the other hand defendants claim: The oral contract whs not made in 1947 but in 1944, immediately after the death of D. R.’s wife, and that they promptly left Texas and began their services for D. R. in April, 1944; D, R. promised them the full use of the residence property with him during his lifetime and the remainder estate therein and its furnishings after his death; D. R. did not promise to convey or devise the business property to them; the 1947 deed conveying an equal undivided one-third interest in the business property was a gift to Mary Kathleen; soon after they entered the home D. R. changed the oral contract with respect to the residence property and they complied with such changes as were previously indicated in their answer; later D. R. and not defendants breached the oral contract.
Other differences, or disputed facts, existing prior to the execution of the agreement on July 8 are incidental to plaintiffs’ cause of action and defendants’ defense. If the fundamental differences heretofore indicated had been resolved in favor of plaintiffs, prior to- the compromise agreement, D. R. would have recovered the interests he had conveyed to Mary Kathleen in both the residence and business property, subject possibly to moneys defendants claim to have paid D. R. for the residence property. On the other hand if these same fundamental differences had been resolved in favor of defendants, prior to the July 8 agreement, they would have been entitled to the use of the residence property and household furnishings during D. R.’s lifetime and to the remainder interest therein by virtue of the oral contract they pleaded and the defendant, Mary Kathleen, would have been entitled to an equal undivided one-third interest in the business property as a gift.
Prior to the execution of the agreement on July 8 D. R. claimed defendants had breached the oral contract and served notices on May 26 and July 3, 1948, on defendants to vacate the residence property. On the latter date D. R. also filed an action to enjoin them from removing household furnishings from the home. Manifestly, under these circumstances the friendly relations which had previously existed, and which the compromise settlement agreement acknowledges to have existed, were shattered.
Bearing in mind all the differences alleged by plaintiffs to have existed at that time between D. R. and defendants, we now turn our attention to the next occurrence in the chronological order of events. With such litigation pending we find plaintiffs, D. R., his son Harold L. Maltby, and defendants in a lawyer’s office on July 8, 1948. It was here the compromise and settlement agreement was prepared and signed.
That this agreement was intended to reestablish amiable relations between the parties is too clearly stated in the agreement to be open to question. That the language of the agreement indicates the parties intended a compromise and settlement of all theretofore existing differences seems equally clear. The pertinent part of the contract reads: •
“The parties hereto agree that this contract shall be considered as a compromise and settlement of all differences heretofore existing between them, and that it is made and entered into with the desire and intention on the part of both parties to re-establish amiable relations between them.”
We shall first approach the problem on plaintiffs’ own pleadings and theory. In doing so we accept plaintiffs’ allegation as true that there existed prior to and at the time of the settlement agreement a dispute relative to who breached the particular oral contract pleaded by plaintiffs. How the parties could hope to reestablish amiable relations between them by means of the agreement of July 8 and at the same time intend thereby to leave unsettled the dispute as to Mary Kathleen’s interest in the most valuable property, the business property, when title to her interest therein also depended upon whether the oral agreement embraced that property and Upon who breached the contract, is not understandable. Plaintiffs make no attempt to explain how amiable relations could be thus reestablished. Manifestly to leave that dispute open for other litigation could result only in further estrangement between the parties.
Plaintiffs also allege and claim the compromise agreement disclose? its purpose was to agree only on a settlement of their differences with respect to the right of possession of the residence property and certain household goods and furnishings and nothing more. True the question of the right to possession of the residence property was the immediate cause of dissension but clearly, in view of all the differences alleged by plaintiffs to be then existing, the settlement of that single dispute could not, as already shown, restore amiable relations between the parties. Although one paragraph of the settlement agreement states the parties desired to agree as to the possession of the residence property, furniture and household goods, that is not the only provision of the compromise agreement. The next paragraph reads:
“Now, Therefore, in consideration of the .covenants and mutual promises herein contained, said parties do agree as follows. . . .” (Our italics.)
One of the mutual promises which follows in the agreement is the one heretofore treated with reference to the compromise and settlement . ■ of all differences heretofore existing between them. . . .” (Our italics.)
The interpretation of a written instrument is a judicial function. (Morgan v. Wheeler, 150 Kan. 667, 672, 95 P. 2d 320.) The real intent and purpose of a written instrument is not to be determined by considering one isolated sentence or provision thereof but by considering and construing the instrument in its entirety. (Wood v. Ozark P. L. Co., 142 Kan. 333, 336, 46 P. 2d 614; In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544.) Facts and circumstances surrounding its execution become competent only in the event the instrument is ambiguous on its face and requires aid to clarify it. (Shannep v. Strong, 160 Kan. 206, 211, 160 P. 2d 683; In re Estate of Koellen, supra.) So if this settlement agreement can be said to be indefinite as to whether it was intended to settle all differences theretofore existing or only the dispute with respect to possession of the residence property, the facts pleaded by plaintiffs clearly disclose other related differences which existed between the parties thereto had to be laid at rest if amiable relations were to be reestablished, as was intended. Such other differences according to plaintiffs' allegations, arose out of the alleged breach by defendants of the oral contract relied upon by plaintiffs. In 15 C. J. S., Compromise and Settlement, § 27, the rule is stated thus:
“A settlement stated to be in full satisfaction of all claims and demands between the parties is conclusive of all related prior disputes or controversies known to exist, whether then due or not; and claims are included, although not specially mentioned, where it appears that the parties intended to embrace all matters of differences between them.” (P. 746.) (Our italics.)
The result is plaintiffs’ interpretation of the contract as a whole is too narrow.
There are other considerations which render plaintiffs’ contentions untenable. Here again we must consider only facts alleged and relied upon by plaintiffs. They allege both deeds were the consideration for a single oral contract with defendants to care for D. R. and that defendants’ breach of the contract rendered both deeds invalid. The compromise and settlement agreement is not in harmony with plaintiffs’ allegations and theory defendants breached the oral contract and therefore lost title to the properties. On the contrary that agreement starts with language which, in effect, conceded the existing validity of the previous oral contract, alleged by plaintiffs, whereby defendants were to receive, among other things, the remainder estate in the residence property. The agreement of July 8 expressly recognizes D. R. as the present owner of only a life estate and defendants as the present owners of the remainder estate in such property. After first recognizing such present existing ownership the agreement thereafter proceeds to state the terms of the compromise settlement with respect to possession. Defendants relinquished possession of the residence property only for a period not to exceed six months after D. R.’s death. The agreement likewise recognizes the same present ownership of the parties in certain household belongings. Clearly the single oral contract, under plaintiffs’ own theory of the case, could not have been valid on July 8, 1948, as to the residence property and furnishings and invalid with respect to the business property. It follows that although the agreement of July 8 makes no specific reference to the business property the deed with respect to it cannot be set aside on plaintiffs’ theory. This conclusion renders it unnecessary to rely on defendants’ allegation that the deed to the business property constituted a gift by D. R. to Mary Kathleen and D. R.’s two sons. That deed stands undisturbed.
We now reach the allegations of plaintiffs’ amended reply whereby they seek to overthrow the effect of the italicized portion of the following sentence in the July 8 agreement:
“The parties hereto agree that this contract shall be considered as a compromise and settlement of all differences heretofore existing between them, and that it is made and entered into with the desire and intention on the part of both parties to reestablish amiable relations between them.”
We previously indicated the impossibility of isolating various paragraphs of a contract where its interpretation is involved. The same principle, of course, applies with even greater force to parts of the same sentence where one part of it, as here, states the reason for the preceding part of the sentence.
It is not contended D. R. failed to understand the unitalicized part of that sentence. In fact, plaintiffs adopt the unitalicized part of the sentence but argue it was intended to apply only to the possession feature of the residence property. The former part of the sentence is not so limited in its scope. In order to escape the effect of the italicized portion of the same sentence plaintiffs, in substance, alleged: D. R. did not read and was unable to read the contract except with a strong magnifying glass; he was unable to hear all of the discussion; he was able to hear only the discussion which pertained to the residence property; he did not intend to settle all existing differences between the parties and the attorney had no authority to insert the italicized provision in the contract. (See detailed allegations in summary of amended reply.)
If D. R. was unable to hear the entire discussion there is no reason alleged for his failure to have the agreement explained to him or for his failure to get his magnifying glass in order to read the contract before signing it. There is no allegation he was coerced or rushed into signing it or prevented from having his magnifying glass brought to him or from taking the agreement to his home, examining it there and having it explained in detail by his son, Harold L. Maltby, who was present at the conference, or by any other person of his own choosing. There is no allegation he or his son were informed the italicized portion would riot be put into the agreement or that it was not contained therein. There is no allegation D. R. or his son asked anyone to explain the agreement and that such request was refused. Nor is there an allegation his son, Harold, could not read or was prevented from reading this short, simple agreement and explaining it to him. A total failure to attempt to understand the terms of such a short, simple agreement before signing it cannot operate to avoid its effect on the ground of ignorance of its contents. (Tractor Equipment Co. v. Ayers, 115 Kan. 769, 225 Pac. 115; Colt Co. v. Kocher, 123 Kan. 286, 255 Pac. 48; First Federal Savings & Loan Ass’n v. Thurston, 148 Kan. 88, 94, 96, 80 P. 2d 7.) The general rule is that a contracting party is bound by an agreement to which he assents, where the assent is uninfluenced by fraud, violence, undue influence, or the like, and he will not be permitted to say he did not intend to agree to its terms. (17 C. J. S., Contracts, § 136.)
A contracting party is under a duty to learn the contents of a written contract before signing it and if, without being the victim of fraud, he fails to read the contract or otherwise to learn its contents, he signs the same at his peril and is estopped to deny his obligations thereunder. (17 C. J. S., Contracts, § 137.)
In 12 Am. Jur., Contracts, § 137, the rule is stated thus:
“It is the duty of every contracting party to learn and know its contents before he signs and delivers it. He owes this duty to the other party to the contract, because the latter may, and probably will, pay his money and shape his action in reliance upon the agreement. To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts.”
and that:
“If a person cannot read the instrument, it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.”
What plaintiffs in reality are attempting to accomplish by their allegations is to vary the written provision of the compromise agreement which states it. was a “settlement of all differences heretofore existing between them. . . .” (our italics) by substituting therefor the words, “a settlement only of differences pertaining to the residence property and furnishings.” Similar allegations in a pleading have been held to be nullities. (Colt Co. v. Kocher, supra, p. 289, and cases therein cited. See, also, Golden v. Golden, 155 Okla. 10, 15, 8 P. 2d 42.)
The purpose of the rule requiring a contracting party to learn the contents of an instrument before signing it is to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible to vary the terms of such instruments. (12 Am. Jur., Contracts, § 137.)
Although we do not predicate our decision on the following circumstances it is somewhat interesting to find that in the amended reply plaintiffs admit D. R. was able to hear the discussion that the agreement was for the purpose of settling the dispute relative to the possession of the residence property and its furnishings.
It is finally argued the order sustaining the motion for judgment on the pleadings bars the two sons of D. R., who were not actually parties to the settlement agreement, from prosecuting an action to set aside the two deeds. As we view the matter it was not necessary they should have been parties to the compromise and settlement agreement in order to make it valid and binding as to D. R. We start with the conceded fact the two properties involved were not owned by the two sons but solely by D. R. prior to the execution and delivery of the deeds. It is not contended D. R. could not dispose of those properties in his lifetime as he desired without consulting his sons or Mary Kathleen. Although aged there is not the remotest allegation his mental capacities were in anywise impaired. In fact he filed the injunction action against defendants five days prior to the compromise agreement. Having full right and authority to dispose of the properties originally as he desired, he likewise retained authority to effectuate a compromise settlement with defendants, as he desired, relative to any interest Mary Kathleen had acquired by virtue of the oral contract and deeds. The original oral contract pleaded by plaintiffs was made by D. R. alone with Mary Kathleen and her husband and was made in order to provide benefits D. R. desired, namely, his care during the remainder of his life. If he believed he was not receiving the care to which he was entitled by virtue of such contract he had a perfect right to make a compromise settlement respecting the same without interference by his sons. If he alone had the right and authority to make the oral contract for himself and his sons he had the same right to compromise the matter for himself and his sons. Then, too, his son Harold was present at the compromise conference. It is not alleged he or his brother, the other plaintiff, opposed the settlement then or thereafter. Furthermore under the compromise settlement Harold obtained possession of the residence property and plaintiffs do not challenge such possessory right.
Moreover defendants, by virtue of the compromise settlement, did not acquire rights in the properties which belonged to the two sons of D. R. but, on the contrary, defendants surrendered their alleged right to possession of the residence property and certain furnishings during the life of D. R. and not to exceed six months thereafter.
Cases relied on by plaintiffs have been examined and found not to require a judgment contrary to the views herein expressed.
Careful consideration of the fundamental issues presented by the pleadings convinces us the motion for judgment on the pleadings was properly sustained.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from a conviction of manslaughter.
Appellant was charged under G. S. 1935, 21-431 with assaulting one William Ferguson with a shotgun with intent to kill but instead was found guilty of assault with intent to commit manslaughter under G. S. 1935, 21-434. The latter offense being included within the former, the trial court instructed on it as well as on other lesser offenses.
Appellant does not contend the facts do not bring the case within that particular manslaughter section of our crimes act but argues the trial court erred in an instruction thereon and also on an instruction pertaining to self defense. The contentions will be con sidered following a narrative of facts deemed necessary to treat the alleged errors.
The appellant, L. C. Davis, and one William (Scoop) Ferguson, two colored citizens of Lawrence, became involved in a controversy in a barbershop located on East Eighth street in Lawrence. The subject of the controversy was which one of them was the best shoe-shiner. We need not narrate all the debate. It is sufficient to say it constituted quite a verbal affair in the presence of others who absented themselves abruptly when the discussion became heated and a razor and pistol made their appearance. Appellant was thirty years of age and Ferguson seventy. Ferguson had a shoeshine parlor of his own in the 700 block on Massachusetts street, that being the main business street of the town. Ferguson had gone to the barbershop on East Eighth street to get a shave and haircut. Appellant’s version with respect to the remark that really touched off the display of force is as follows:
“In the barber shop I told Ferguson I knew I was the best shoe shiner and I bet him $50 because I got a shoe shine at his place and the wind blew it off before I got to the corner and that started the war.”
Ferguson testified it was the first time he had ever seen appellant. The appellant testified: When Ferguson “dived in his pocket” he “. . . dived for something to fight with and got a razor. Ferguson had an old shiny pistol, 32 or 38 caliber. They were all flying out of there”; Ferguson kept cussing him and said he was going to kill him; he, Ferguson, tried to kick him out from behind the barber chair and he (appellant) tried to cut Ferguson’s leg; he finally got out of the door, laughed and told Ferguson to “cool down and let’s forget about it”; his (appellant’s) car was parked in front of the barbershop; he had been squirrel hunting that morning and had a shotgun in the car; thereafter he went west to the post-office in his car, cashed a money order, went back to the Santa Fe restaurant and then started for the police station to report the affair and to have Ferguson arrested; the boy in the car with him said to take him to the telegraph office and to forget about having Ferguson arrested; he then turned right (traveling north on Massachusetts street in the 700 block).
Ferguson’s story concerning what transpired in the episode, previously narrated, varies somewhat. His story was appellant grabbed a razor and it was then that he, Ferguson, reached for his “antique pistol,” that when they left the barbershop on East Eighth street appellant had said two or three times, “I am going to kill you, you dirty son---.”
We now reach the next meeting of the men on Massachusetts street. Ferguson stated: He left the barbershop on East Eighth street for his own shop at 716 Massachusetts, that being on the east side of that street; it was a distance of about five blocks; he went west on Eighth street to Massachusetts and then turned north towards his shop; after walking about 150 feet he was shot by appellant with a shotgun from a car which appellant was driving; he, Ferguson, thought three shots were fired by appellant; he did not see a boy in appellant’s car but did see appellant pointing the shotgun at him.
Appellant’s story, in substance, was:
Cars were parked along the east side of the street; as he was driving north one of the cars backed out and he had to slow up; about that time the boy with him said, “Look out, there is the old man” (meaning Ferguson); he saw Ferguson trying to come up between the cars and he saw the Ferguson pistol shining in the sunlight; he jumped back and grabbed the shotgun; it got caught and went off and the shot hit a red car; he started to drive away and saw Ferguson coming; he did not intend to kill Ferguson but intentionally shot him in the leg.
Other testimony of disinterested witnesses was: Two shots were fired; some of the pellets from the shotgun shell went through a car and some went through a studio window about six.feet above the sidewalk; Ferguson fell in the doorway of a business place; he had a gun in his hand; after he was shot and was down on his knees Ferguson was probably pointing his pistol at appellant’s car.
There was also testimony Ferguson was in the street. Other testimony might be reviewed but this is sufficient for present purposes. The instruction on self-defense complained of reads:
“9. The defendant appears to admit that he fired at William Ferguson with his shotgun, but denies that he intended to kill him. He claims that William Ferguson’s conduct was such that he feared that Ferguson was liable to attack him and that he shot him to prevent him from doing him injury. If under all the circumstances the defendant had reasonable ground to believe he was about to be attacked by Ferguson, he would be justified in taking such reasonable steps as were necessary to prevent Ferguson from harming him.”
Appellant contends a correct instruction would have stated defendant “. . . would be justified in taking such steps as ap peared to him, at the time reasonably necessary to prevent Ferguson from harming him.”
It is true the test is not what the circumstances actually were but whether the circumstances were such as appeared to the defendant at the time to be reasonably necessary to protect himself. (State v. Reed, 53 Kan. 767, 779, 37 Pac. 174; State v. Keehn, 85 Kan. 765, 792, 118 Pac. 851; State v. Snow, 121 Kan. 436, 247 Pac. 437.) Of course, the apprehension of danger must be reasonable and of this reasonableness the jury is the ultimate judge. (State v. Keehn, supra, p. 792.)
It will be observed the first part of the instruction reads:
“9. The defendant appears to admit that he fired at William Ferguson with his shotgun, but denies that he intended to kill him. He claims that William Ferguson’s conduct was such that he feared that Ferguson was liable to attack him and that he shot him to prevent him from doing him injury.”
Construing the instruction in its entirety we think the court meant appellant might use such force as at the time reasonably appeared to him to be necessary. Although the instruction might have expressed that thought more clearly we think the instruction was not sufficiently defective to require a reversal. (State v. Reed, supra, p.779.) No objection was lodged against it at the time of trial. No fuller instruction was requested. Considering the instruction in its entirety we think it cannot reasonably be said appellant’s substantial rights were prejudiced thereby.
The next objection is to instruction No. 7, which reads:
"You will observe, gentlemen, that the foregoing section of our statute, both Sections 21-434 and 21-435, use the term 'manslaughter’, which is the unlawful killing of a human being, without malice, and yet without justification or excuse. I thus define the word 'manslaughter,’ not because it is the crime charged here, for it is not, but in order that you may say, if you find that the defendant assaulted William Ferguson and wounded or disfigured him, or gave to him great bodily harm, or endangered his life, whether he did so under such circumstances as would have constituted manslaughter if death had ensued from the acts thus committed by the defendant.”
As previously indicated herein the instruction was intended to cover an offense under section 41 of our crimes act, G. S. 1935, 21-434, which reads:
“Every person who shall be convicted of an assault with an intent to commit any robbery, rape, burglary, manslaughter, or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by confinement and hard labor not exceeding five years, or by imprisonment in the county jail not less than six months.” (Our italics.)
In support of appellant’s contention he argues an instruction under that section should have been as given in State v. Murray, 83 Kan. 148, 110 Kan. 103, as follows:
“If a person assault another with a deadly weapon, in heat of blood, upon reasonable provocation, without malice and without legal justification or excuse, but with intent to kill, he may be convicted of assault with intent to commit manslaughter under section 41 of the crimes act.” (Syl. ¶ 10.)
That was the substance of the instruction given in the Murray case, p. 156, and it was held the instruction was not erroneous. We, however, do not read syllabus 10, quoted above, as supporting the contention there can be no conviction under this section of the crimes act except under the identical language employed in the instruction given in the Murray case. Nor do we think the corresponding portion of the opinion, when carefully analyzed, is properly susceptible of appellant’s contention. While the facts in the Murray case were in the main quite similar to those in the instant case insofar as elements of the crime are concerned, there was positive evidence in the Murray case the offense was there committed in the heat of blood. In the instant case appellant makes no such contention. In fact, appellant’s theory is that he had decided to forget the trouble at the barbershop on East Eighth street and had decided not to have Ferguson arrested. We think instruction No. 7 was reasonably sufficient under this section of the crimes act as applied to the facts in this particular case. We are referred to no particular respect in which the instruction resulted in prejudice to appellant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for the conversion of an automobile.
For present purposes it may be said that on February 23, 1949, General Motors Acceptance Corporation, hereafter called the corporation, commenced an action against Arnold Davis, alleging that it had a special ownership or interest in a described Ford automobile by reason of a described conditional sales contract which had been filed in the office of the register of deeds of Sumner county, and that there was due it under that contract the sum of $389.60; that defendant Davis had acquired the automobile, under circumstances set forth, and had converted it to his own use to the plaintiff’s damage in the above amount, for which it prayed judgment. Davis’s answer contained some admissions, alleged that he had no knowledge of any conditional sales contract, and in substance that he bought the automobile from a used-car dealer and obtained title free and clear of plaintiff’s lien. The action was tried on an agreed statement of facts which disclosed that under date of March 2,1947,. one Gray purchased the automobile from the Hope Motor Company under a conditional sales contract, which contract was on the same day assigned to the corporation, the contract being filed in the office of the register of deeds of Sumner county on March 5, 1947. When Gray purchased the automobile from Hope, the certificate of title for it was made out to D. E. Gray, Used Cars, Wellington, Kansas, but no lien was shown on the certificate of title. On March 16, 1947, Gray sold the automobile to defendant Davis, a dealer in used cars. Davis’s knowledge of the conditional sales contract was limited to such knowledge as might be imputed by reason of its being filed in the office of the register of deeds. On March 20, 1947, Davis sold the automobile to one Richey for a valuable consideration and retained the proceeds of the sale for his own use. It was also agreed there was due the corporation on the contract the sum of $389.60.
The cause was submitted for trial by the court upon the agreed statement of facts and on August 13, 1949, the trial court rendered judgment in favor of the corporation. Davis perfected his appeal and on October 12, 1949, he filed his combined abstract and brief in this court, wherein, on the same page, he stated his specification of error and also the question involved in the appeal. On March 29, 1950, the corporation filed its brief included in which is an argument that the specification of error set out in Davis’s abstract presents no question for appellate review. On April 4, 1950, Davis, without specific permission, amended his specification of error, and on April 5, 1950, the corporation filed its objections to the amendment being given consideration. It is not necessary that we review decisions cited in the corporation’s brief, for what is said in them was considered in the very recent case of Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, where it was held:
“When an appellant’s right to be heard on appeal is challenged on grounds of noncompliance with such rule and it appears from the record he has made no attempt to conform with its requirements until the day the cause is set for argument his appeal will be dismissed.” (Syl. ¶ 3.)
It is clear from the abstract that the question in the trial was, and in this court is, the priority between the right of the holder of a conditional sales contract which has been duly filed as provided by statute (G. S. 1935, 58-314) covering an automobile and the right of the purchaser of the automobile from the maker of the contract. As originally prepared the combined abstract and brief, by the specification of error and the statement of the question involved, were such that the corporation was not in any manner misled or disadvantaged, and in its brief it has covered the question above stated. The appeal will be considered.
The record as abstracted discloses nothing from which the trial court’s theory of decision may be clearly deduced and we therefore assume that it accepted the theory advanced by the corporation'here, that there was a bona fide conditional sales contract made by Gray to Hope, duly assigned to the corporation, and filed in the office of the register of deeds prior to the'kale of the described automobile by Gray to Davis; that there is nothing in the record to indicate that Hope consented to any sale by Gray or that the automobile was co-mingled with other stock of Gray; that the car was not a new one, and this fact should have placed Davis on notice of possible liens as he was a used car dealer familiar with the practices of the trade, and that he was not a member of the general buying public, but was a dealer familiar with trade practices, and that under the circumstances stated the case is ^one. wherein the con’ditional sales filing statute (G. S. 1935, 58-314) applies; that Davis is not exempt from its operation, and to further extend exceptions to the statute would result in grave injustice and promote confusion as to the meaning of the act.
We pause here to note that, in part, Davis relies upon our decisions in Emerson-Brantingham Implement Co. v. Faulkner, 119 Kan. 807, 241 Pac. 431, where it was held:
“Where a mortgagee knows the mortgagor is a dealer, buying to sell in regular course of business, and consents to a sale by the mortgagor, the purchaser takes free from the mortgagee’s lien.” (Syl. ¶ 2.)
and to Sorensen v. Pagenkopf, 151 Kan. 913, 916, 101 P. 2d 928, where weight was given to failure to observe the requirements of G. S. 1947 Supp. 8-135, hereafter mentioned, and where the above rule was approved, and to Gump Investment Co. v. Jackson, 142 Va. 190, 128 S. E. 506, cited and quoted from therein. Appellee directs attention to factual differences in those cases, not necessary to repeat here, and argues that the rule is inapplicable here. We are of the opinion that whether every inference included in the corporation’s contention may be indulged in view of the scanty record,-it may be assumed the trial- court adopted the corporation’s theory that one dealer purchasing from another dealer was not a member of the general buying public.
In our opinion, however, we need not treat at length the rule of the last cited cases, nor direct attention to many decisions from other jurisdictions where under circumstances dependent on varying facts and different statutory provisions as to constructive notice by reason of filing or recording of liens, the general rule has been followed and applied, and the doctrines of estoppel or consent applied, for as is pointed out by Davis, when Hope dealt with Gray it'did more than take from him a conditional sales contract, it caused to pass to him a certificate of title to the described automobile showing no lien thereon. Long subsequent to the passage of the statute for filing chattel mortgages (G. S. 1935, 58-301) and for filing conditional sales contracts (G. S. 1935, 58-314) the legislature enacted statutes pertaining to registration of motor vehicles and providing for transfers of ownership thereof and for certificates of title thereto, especial attention being directed to G. S. 1947 Supp. 8-135, which is too long to be quoted here. Attention is directed to subdivision (1) which provides for application for a certificate of title and the requiring among other things, that it show “all liens or encumbrances thereon” and that the certificate of title shall contain a full and proper description of the vehicle “together with a statement of any liens or encumbrances,” and to subdivision (2) for assignments. Under subdivision (3) dealers shall execute, upon delivery of the motor vehicle to the purchaser, “a bill of sale stating the lien or encumbrances thereon,” and under subdivision (6) it shall be unlawful for any person to buy or sell in this state any vehicle required to be registered, unless at the time of delivery thereof, there shall pass between the parties such certificate of title with an assignment thereof.
In the case before us Hope not only delivered the automobile to Gray but it caused to be issued and delivered to Gray a certificate of title which made no mention of any lien reserved or encumbrance thereon, all in violation of law if it be assumed that Hope did have a lien on the automobile by reason of the conditional sales contract, and by so doing Hope invested Gray with possession of the automobile and every indicia under the statute of a full and complete title free of any lien or encumbrance. Under such circumstances any person, member of the public generally, or a dealer in used cars, had the right to purchase from Gray upon satisfying himself that the certificate of title correctly identified the automobile being purchased, and to rely upon the certificate of title that there was no lien or encumbrance thereon. Hope, having invested Gray with indicia of full ownership may not say that one dealing with Gray without actual notice of Hope’s rights, if ány, dealt at his peril. The general rule is that an instrument evidencing an agreement to pay moneys but providing for retention by the payee of the title to the. goods for which the note was given, is not a negotiable note (Killam v. Schoeps, 26 Kan. 310, 40 Am. Rep. 313, and International Harvester Co. v. Watkins, 127 Kan. 50, 272 Pac. 139, 61 A. L. R. 687). The corporation, although having acquired title to the conditional sales contract, stands in no better position than Hope. We need not discuss nor decide whether under the present motor vehicle act, it is possible for an individual, as distinguished from a dealer purchasing from a wholesaler, to execute a valid conditional sales contract on a motor vehicle.
In oúr opinion the judgment of the trial court may not be sustained. Its judgment is reversed and the cause remanded with instructions to render judgment for the defendant Davis.’ —
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
Eleven assignments of error are made by the plaintiff in error, Page, and thirteen by the cross-petitioner in error, Harper. There is, however, practically only one question presented for consideration, viz., Should Leeman and Prehm account to Harper and Page for the profits received from the Harden' property, including the rents and the amount received from the sale of the property, deducting expenses and amounts paid in perfecting title? The issue on this question was fairly presented by the petition and cross-petition, which alleged the facts as above recited. To these pleadings the defendants Leeman and Prehm answered by general denial only.
The relation of the several parties as above recited is established by uncontroverted evidence, and is admitted by the brief of defendants in error, but they say there was no evidence that Leeman agreed to act as trustee for Harper and Page in the purchase at the execution sale, or that Leeman and Prehm agreed to act as such trustees in the purchase of the trust deed and the notes secured thereby or in purchasing the property at the sale had thereunder. No such agreement was necessary. Their admitted former relation to their principal and cosurety, and to the judgment debt,- on which it was their duty to realize as much as possible, made -Leeman, at least, such trustee, and Prehm also if, as it is to be presumed, he knew all the facts.
When the. owner of a judgment or mortgage lien on land, or one who represents such owner, bids at a sale ordered to satisfy such lien, the very fact that the one who makes such bid may raise it to the entire amount of such lien without the investment of an additional dollar often gives such bidder a decided advantage over other bidders, who must back their bids with their cash; especially is this true where the lien or the lien and prior liens approximate or exceed the value of the property. Thus other bidders are deterred from coimpeting in the uneven contest and often refuse to bid at all. It is unconscionable that one who stands in the place of the owner, as Leeman did in this case, the judgment being in his name, should be allowed to take such advantage of his position to the detriment of his principal, and probably to the detriment of the judgment debtor also. (Case v. Carroll, 35 N. Y. 385, 388; 1 Beach, Trusts & Trustees, § 100.)
That Leeman held the lien in trust for himself, his cosureties and Harper will not be questioned. He held the property, which he acquired to an advantage, through his relation to such lien; and must hold the same in the same way he held the lien. (Winkfield v. Brinkman, 21 Kan. 682.) The trust in the land arises by implication of law from the facts and circumstances of the case. (Bank v. Woodrum, 60 Kan. 34, 55 Pac. 330.) In ah.analogous situation it is said:
“The cestuis que trust may call him to an account . . . having an option to make him replace it [the property — ;in this case to set aside the sale of the land] or, if it is for their benefit to affirm his [their] conduct "and take what he has sold it for, they may take that and charge him with legal interest.” (1 Beach, Trusts & Trustees, § 184.)
The court excluded evidence of the- rents and price received on the sale of the property, and sustained a demurrer to the evidence of the cross-petitioner, in opposition to the views herein expressed. The judgment as to both the plaintiff in error and the cross-petitioner in error is reversed, and a new trial is awarded in accordance with the principles expressed in this opinion.
All the Justices concurring. | [
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Per Curiam:'
This was the second trial of an action in ejectment. On motion therefor, the court rendered judgment for the defendants on the pleadings. This is assigned as error. The plaintiff in the action claimed to be the owner of the property in controversy and entitled to its possession. The defendants denied plaintiff’s ownership, and in their cross-petition for affirmative relief alleged that one Amanda Miller was the owner of the property and that she had executed to them an oil-and-gas lease under which they were in possession, and they asked that the plaintiff’s claim of ownership be canceled. To this cross-petition the plaintiff filed a general denial, and reaffirmed her ownérship of the land.
These pleadings puc in issue the ownership of the land as one of the material facts to be determined before the court could decide the ultimate rights of the parties. It was therefore error for the court, while this issue was undetermined, to render a judgment on the pleadings.
The motion to dismiss this proceeding is denied, the judgment reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one of ejectment and partition. In 1857, pursuant to treaty stipulations with the Wyandotte Indians, the United States patented to Silas Armstrong a tract of land, irregular in shape, lying in the fork of the Missouri and Kansas rivers north of Turkey creek, and containing some 274.7 acres. The land was low bottom-land, of the peculiar formation which characterizes the valley of the Missouri river in this region, and subject to the vicissitudes which result from the conduct of that capricious stream. By purchase and descent various parties acquired undivided interests in this land. In some instances quantities in acres were conveyed, to be derived from the undivided holdings of the grantors. By the close of the year 1866 some twenty-five different parties claimed to be tenants in common of the tract, and on January 23, 1867, a suit was brought in the district court of Wyandotte county to partition it. The petition designated the land as “all that parcel of land lying in the fork of the Missouri and Kansas rivers and between the Missouri state line and the Kansas river as lies north of Turkey creek.” The area was estimated at “about 250 acres, more or less.”
On April 11, 1867, the court ordered that “for the purpose of ascertaining the quantity of land included in the boundaries mentioned in the petition of said plaintiffs a survey of the same be made, and it being represented that John Runk, jr., is a competent person to make said survey, he is hereby empowered to make the same and. report by Saturday morning next.” On April 13, 1867, a decree of partition was entered, which describes the land as it is described in the petition, and which closes by ordering a writ in due form to be issued to the sheriff of Wyandotte county, commanding him by the oath of three judicious and disinterested freeholders named to cause “the same said land” to be set off and partitioned among the parties found by the court to be entitled tq portions thereof.
On September 26, 1867, the partition commissioners made their report. Those who were entitled to acre quantities were given shares out of the undivided interests of their grantors. In the description of various allotments boundary-lines are described as running “to the east bank of the Kansas river; thence down the same,” etc.; and “to the west bank of the Missouri river; thence down the same,” etc.; and on the plat accompanying the report a number of lots are extended from river to river. The commissioners’ report concludes with the following statements:
“By a survey which was made of the lands during the April term of the first district court, A. D. 1867, they were found to contain 208.4 acres, upon which a division was based. ... A careful survey, made during the month of July last, shows that owing to the waste by the washing away of the banks of the Missouri and Kansas rivers the quantity of the land has decreased to 200 acres.
“The allotments are proportional to this in quantity, and give an area to Thomas Ewing, jr., of 18.63 acres; Calhoun heirs, 16.84 acres; Graham, 8.28 acres; Armstrong heirs, 34.58 acres; James, 54.42 acres; Wood, 20.94 acres; William Weer’s heir, 25.13 acres; Swope, 9.06 acres; and the Union Pacific railway, E. D., 11.58 acres.
“The accompanying plat, hereto attached, represents the allotments, with the courses and distances marked on the lines, and the several areas in acres and hundredths of an acre.” ■
The report of the commissioners was confirmed by the court on October 15, 1867, and no action having been taken to review the proceedings, they became* final.
Subsequently to the partition suit the Missouri river continued to encroach upon those allotments of which it formed the boundary, and in order to prevent their 'lands from washing away the several owners entered! into a contract with James F..Joy to deed him certain tracts bordering upon the stream, and extending back for quantity, in consideration of his riprapping the river-bank. The agreement is dated in August, 1868, and the work was completed within a few months following. Deeds were duly delivered to Joy whereby he acquired the entire Missouri River frontage from the mouth of the Kansas river to the state line, except that opposite the land of two of the allottees in the partition suit, Swope and Ewing, who paid for their proportion of the work of riprapping in cash. The calls in the Joy- deeds were to the bank of the Missouri river, and down and along the same. Later the title of these riparian owners ^passed either mediately or directly to the Armour Packing Company, the Hannibal & St. Joseph Railroad Company, the Fowler Land Association, the Metropolitan Water Company, and others.
From the time of the partition down to the time when the bank was. protected a considerable quantity of land along the channel of the river was carried away by erosion. " The final survey under which partition was made is known as the Miller survey, and the riprap bank, or Jóy deed line, lay south of the north line of the Miller, survey, at distances varying from 200 to 300 feet! The composite map following indicates crudely the position of the Missouri River bank at the time of the government survey, the Miller survey line, the riprap bank or Joy deed line, several of the allotments made by the commissioners in the 'partition suit, and affords some other information which may be useful in arriving at a comprehension of the case.
• From 1868 .until 1889 the deep-water channel of the Missouri river lay next to the riprap bank. Business enterprises requiring access to the river were established there. For a long time the Fowler Packing Company maintained a wharf upon its land (partition lot 16 and a segment of lot 15), from which steamboats loaded and discharged their cargoes, and all the commerce of the stream was carried upon the current which pressed against that bank. About the year 1889 the main current was diverted to the Missouri side of the stream. The old channel filled up, and at the commencement of-this litigation the. river was separated from thé old riprap bank by a wide stretch of land many acres in extent.
This suit relates to land lying north of the Miller survey line and between that line and the river .where it now runs. The plaintiffs are persons who have ob .tained title by purchase or descent from the allottees in the partition suit other than those who were given acre quantities, and for all purposes of the case may be termed tenants in common of the Armstrong grant. The defendants may be designated as purchasers of those .portions of the Armstrong grant which are shown by the report of the commissioners in the partition suit to border upon the Missouri river. With them are joined some of the cotenants of the plaintiffs.
The plaintiffs claim that, following unusual rains, the ice in the Missouri and Kansas rivers broke up early in the year 1867, after the partition proceedings were begun, and formed a gorge near the confluence of the streams. A stage of extraordinary high water followed, and the Missouri river with great rapidity and violence cut a new channel through the tract described in the partition suit. The June rise succeeded, and the water continued high throughout the year. The April survey in the partition proceedings disclosed that but 208 of the 250 acres of land remained, and by the next July eight acres of that had washed away. Consequently 200 acres, and no more, were partitioned, the allotments being made proportional to that quantity. Upon the subsidence of the flood in 1868 a portion of the Armstrong grant which had been submerged, and which had been cut off from the partitioned land by the new channel of the river, reappeared in the form of an island, upon both sides of which the water flowed, the great volume, however, passing through the channel and continuing to erode the bank until the Joy deed line was reached. The size of this island increased by accretions to it upon all sides. About the year 1889 some of the defendants placed obstructions out in the channel of the stream which, together with other artificial means, caused the main current to be deflected to the opposite shore. For some time the water lay in pools along the channel next to the riprap bank, but these at last disappeared and the island expanded to the mainland.
The plaintiffs say they were not deprived of their land by the action of the river in the year 1867, or by the partition proceedings, or by any other means, and that all of such land with its accretions has been restored to them unpartitioned and in identifiable form.
The defendants dispute the facts furnishing the foundation of the plaintiffs’ claim. They dispute some of the legal principles invoked in aid of such claim, and they deny the applicability of other principles essential to its support. Further than this, they assert that the plaintiffs are estopped from claiming that all the land of the Armstrong grant was not partitioned, and are estopped from denying that the partition allotments have followed the recession of their movable boundary —the river itself — to its present location.
Upon a trial by jury the plaintiffs and those defendants who are cotenants with them were awarded land indicated by the shaded portion of the map. The court rendered judgment upon the verdict, and reserved the matter of partition pending this proceeding in error. The jury returned answers to a large number of special questions covering practically all of the paramount facts. The special findings show that in 1856 the Armstrong grant contained 274.7 acres. When the partition suit was commenced it contained 250 acres, more or less. A new channel was cut through the land in controversy by the high waters of the Missouri river in 1867; the' land in controversy was suddenly and perceptibly submerged by the violent rise of the river in that year; the ice-gorge of that year caused the river to cut a new channel and to wash away the bank; the cutting and the washing away of the bank between Kaw point (the point of land at the junction of the rivers) and the state.line was not done in the usual manner of cutting along the banks of the Missouri river; the new channel varied from 200 to 300 feet in width, and after it was cut was the main channel of the river.
The jury further found that in 1865 or 1866 the Missouri river began to wash away the bank forming the border of the Armstrong grant, and in 1866 and 1867 the land caved into the river and washed away quite rapidly; but, as distinguished from this process, a portion of the land was cut off by the new channel of 1867 and left lying to the north of it in the form of an island. The land so cut off was from 100 to 200 feet wide and from 800 to 1000 feet long. It lay some 600 or 700 feet out, measuring from the line the river reached when the south bank was riprapped, and the south boundary of partition lot 18, if extended, would have about crossed its northwest point. No island was in existence between the mouth of the Kansas river and the state line when the partition suit was commenced. The one formed as described continued in existence at all times up to 1891 or 1892, when the water ceased to flow in the' channel separating it from the mainland.
The findings also state that the high water continued during the entire season of 18,67. During the flood the island referred to was entirely submerged. The top of it was scoured off and washed away. ' It did not reappear until the water had subsided the next year, and then it presented itself as a new formation of sand, or sand and soil, which afterward supported a growth of willows and weeds for some of the time. In later years it was frequently submerged, and its configuration changed somewhat, but it remained visible at all times in low stages of water. (In answer to one of the numerous and pertinacious special questions upon this subject the jury used the expression “very low water.”)
The jury further found that a portion of- the land in controversy was formed by accretions to the island. Prior to 1889 an accretion of sand, or sand and soil, formed in front of partition lot 18, about 100 feet wide at Kaw point. In that year what is known as the water-works dike was constructed in the river by one of the defendants, the Metropolitan Water Com pany, commencing 100 feet from the riprap bank. At the time the dike was built no deposits had begun to form in front of lots 12, 13, and 14. An accretion also' formed in front of lots 15 and 16, but to the time of bringing suit it had extended only 250 feet (less than the width of the channel between the mainland and the island). After the dike was constructed the river ran around the end of the island in a southeasterly direction, in a channel lying north of it. The Ohio Avenue sewer, of Kansas City, Kan., was extended to this channel in 1889, but the river ceased to run there, and by 1892 it had entirely filled up, the river having receded beyond the government-survey line of 1856.
These findings are conclusive upon the facts to which they relate, and require consideration in the light of the legal doctrines of avulsion, submergence and reappearance, and accretion and reliction, to determine the rights of the parties to the action. The verdict being a general one, the evidence fávorable to the plaintiffs and consistent with the special findings controls in all matters not covered by the findings themselves.
In the year 1867 the Missouri river formed the boundary between the state of Missouri and’ the state of Kansas at the place in question. The stream was navigable, constituted a public highway between the two states, and under the legal policy of each title to its bed was vested in them, the dividing line being the center of the main channel.
The courses of rivers being determined by the operation of the elements according to natural laws, they are subject to changes of location. If the change in the position of a navigable river dividing the territory of two states be by gradual and imperceptible encroachment, or insensible recession, so that the process cannot be detected while it is going on, the boundary follows the shifting thread of the stream. But if from storm or flood or other known violent natural cause there be a sudden, visible irruption of the water, whereby the lands upon one side are degraded or submerged or a new channel is cut for the stream, the boundary remains stationary at its former location, and the boundaries of riparian owners whose lands have been affected remain unchanged. These principles are elementary in the law. The books' teem with learning upon the subject, and the collation of authorities would be a work of supererogation. (McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822.)
It is argued, however, that because of its crooked course, the velocity of its current, the friable character of its banks and the quicksand substratum of the adjacent soil it is characteristic of the Missouri river that large pieces of upland should suddenly, visibly and perceptibly break off, plunge into the water, and be swept away; and from this fact it is concluded that the law of avulsion cannot be applied to the conduct of this stream, or at least that it governs only in “ox-bow” cases like Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300, Missouri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 155, 49 L. Ed. 372, and Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186. If this river be distinguished from others by the violence and rapidity with which it invades the lands-adjacent to its course, the findings of the jury are explicit upon the point that the Armstrong grant was not ravaged in the usual manner of cutting along its banks, and a clear distinction is made between the caving and washing away of marginal soil and the phenomena of this case. The ice-dam in the stream added an unusual and aggravating feature. Nothing short of the liberated energy of gorged water at flood-tide could have produced the tremendous results described in the testimony supporting the special findings. It is said that after the water gained headway it went through the land with a rush, tearing out the earth in massive blocks 5, 10, 20, 25 and 30 feet in width and sometimes 40, 50 and 300 feet long, felling forest-trees and otherwise devasta ting the tract, so that, upon an abatement of the inundation, in place of farm land a river channel 100 yards wide separated a denuded island from the shore.
The argument for the limitation of the avulsion doctrine was made in favor of the abolition of the law of accretion from the valley of the Missouri river in the cases of Missouri v. Nebraska and Nebraska v. Iowa, supra. The court held, however, that, notwithstanding the greater' rapidity of changes here than elsewhere, the fundamental principles of the law were not affected.
In the case of St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337, 34 L. Ed. 941, the litigation arose out of circumstances much less extraordinary than those connected with the flood of 1867, but the rights of the parties were solved upon the theory of an avulsion. The facts were that the washing away of the banks of the Mississippi river opposite the city of St. Louis usually occurred at the time of the spring floods, which varied in duration but lasted from four to eight weeks. Each flood usually carried away a strip of land from ■off the river-bank 250 to 300 feet in width, the loss of which could be perceived in its progress. As much as a city block would be cut off and washed away in a day or two, and masses of earth from ten to fifteen feet in width frequently caved off, fell into the river and were washed away at one time. The court said:
“By findings of fact 6 to 9 the sudden and perceptible loss of land on the premises conveyed to the plaintiff, which was visible in its progress, did not deprive Blumenthal, as riparian proprietor, of his fee in the submerged land, nor in any manner change the boundaries of the surveys on the river front, as they existed in 1865, when the land commenced to be washed away.
“It is contended by the defendant, not only that the plaintiff never had any title to the bed of the river, but that, when the dry land of which he was in possession was swept away by the river and ceased to exist, his ownership of that land also ceased to exist. It is laid down, however, by all the authorities, that, if the bed of the stream changes imperceptibly by the gradual washing away of the banks, the line of the land bordering upon it changes with it; but that, if the change is by reason óf a freshet, and occurs suddenly, the line remains as it was originally. This principle is recognized by the supreme court of Illinois, in Buttenuth v. St. Louis Bridge Company, 123 Ill. 535, 546, 17 N. E. 439, 5 Am. St. Rep. 545, in these words: ‘The law, as stated by law-writers, and in the adjudged cases, seems to be, that where a river is declared to be the boundary between states, although it may change imperceptibly, from natural causes, the river, as it runs, continues to be the boundary. But if the river should suddenly change its course, or desert the original channel, the rule of law is, the boundary remains in the middle of the deserted river-bed.’ ” (Page 245.)
In the case of City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185, the testimony disclosed that the building of certain piers in the city of Chicago had the effect of throwing a strong current of the Chicago river against the shore of Lake Michigan, which gradually undermined the bank. Upon the occasion of storms the bank would fall, sometimes five, ten and thirty feet in width at a time, and sometimes as much as 100 feet would be washed away in a single storm. The court held that the boundaries of the land were riot changed, quoting among other authorities Hargrave’s Law Tracts, 36, 37, as follows:
“ ‘If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it, or, though the marks be defaced, yet if by situation and extent of quantity and bounding upon the firm land the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject does not lose his property; and accordingly it was held by Cooke and Foster, M. (7 Jac. C. B.), though the inundation continue forty years. . . . But if it be freely left again by the reflux and recess of the sea the owner may have his land as before, if he can make it out where and what it was, for he cannot lose his propriety of the soil, though it be for a time become part of the sea and within the admiral jurisdiction while it so continues.’ ” (169 Ill. 407.)
The conclusion of the court was expressed thus:
“Under the authorities, and according to all reasonable deductions from legal principles, we must hold that the title to these lands submerged by the action of Lake Michigan was not lost, and that by their subsequent reclamation the city has completely reasserted its title thereto, as such title stood at the time of the dedication1 of the respective plats thereof.” (Page 408.)
In volume 3 of Farnham on Waters and Water Rights, section 848, it is said:
“In case the river shifts its position so as to submerge land on one shore, the question is one of boundary. As seen in the preceding section, if the change in the river-channel is sudden, titles of the opposite proprietors are not changed, but if it is gradual and imperceptible, the middle thread of the river remains the boundary-line. ... It will be remembered that the rule that the thread of the stream remains the boundary regardless of changes is based on the fact that the law presumes that the river does not change. This presumption should not be permitted to overcome an obvious and well-established fact. Therefore, if the change does not come within the definition of gradual and imperceptible, but the land is rapidly washed away on one side and formed on the other, the fiction should give way to the fact, and the owner should not lose title to his property. The title to the land itself is of more importance than the riparian right of access to the water or convenience of having a natural, rather than a mathematical, boundary; and rules which were made for convenience should not be permitted to wrest the title to land from its true owner.” „'
These authorities are sufficient to show that the events of 1867 are clearly comprehended within the meaning of the term “avulsion,” and it is not necessary that time be spent refining upon the words “gradual” and “imperceptible,” or in framing new definitions to fit the varying facts of different cases. They further show that it is not necessary that the river should be “annihilated” in its old bed and “reproduced in its new bed” — borrowing an expression from Vattel.
If the earth where Doctor Wood’s house stood had not been swept away by the torrent, if his fences had not gone down the stream, if his corn-field had remained undisturbed, and that part of the Armstrong grant cut off by the new channel had not been stripped of its, vegetation, there would be no contention now that a portion of the land had not been partitioned. The fact of its submergence and the formation of new land on the old site makes no difference in the rights of the parties.
“If the sea swallow land, if the bounds can be ascertained the owner may have them again if they are subsequently left to dry or are regained by him. And if the former extent of land can be known, it shall be returned to the owner.” (Hale, De Jure Maris, ch. 4; 2 Rolle’s Abr. 168.)
“When the denudation of the soil by the water is sudden and perceptible, the title is not changed. . . . If navigable waters, owned by the crown or’ state, suddenly encroach upon private lands adjoining, and there are marks by which their limits can be determined, the title to the soil thus covered remains in the former owner, and upon the recession of the water it is restored as his property. Though the overflow continues for forty years, yet if the water recedes the owner has his land again.”- (Gould, Waters, 3d ed., § 158.) i
In volume 3 of Farnham on Waters and Water Rights, section 848, it is said:
“When the title to the bed of the water is in the public the sudden submergence of a parcel of land on the foreshore does not destroy the title of the private owner if within a reasonable time it can be reclaimed and the former boundaries established.”
These texts are supported by the decisions of the courts, and undoubtedly express the true rule of law. The case of Mulry v. Norton et al., 100 N. Y. 424, 3 N. E. 581, 53 Am. Rep. 206, is a leading one upon this subject. The syllabus reads:
“Land lost by submergence may be regained by reliction, unless the submergence has been followed by such a lapse of time as precludes the identity of the land from being established.
“If, after a submergence, the water disappears from the land either by its gradual retirement or the elevation of the land by natural or artificial means, the proprietorship returns to the original owner.
“No lapse of time during which the submergence has continued bars the right of the owner to enter upon the land reclaimed and assert his proprietorship when the identity can be established by reasonable marks, or by situation, extent of quantity or boundary on the firm land.
“And so if an island forms upon the land submerged, it belongs to the original owner.”
In the opinion it was said:
“It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner, or enables another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner’s boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership temporarily lost will be regained. . . . A case quite in point is referred to by the respondent’s counsel as arising in Delaware in 1815, decided by the court of common pleas upon a learned opinion by Judge Wilson, a copy of which is attached to the plaintiff’s brief. The case does not seem to be elsewhere reported. It arose over the ownership of an island called ‘Wilson’s Bar,’ which had been created by alluvion upon land formerly contained within the boundaries of an island called Little Tinnicum, but which at some time had been worn away by the ocean. The court say: ‘The right to the new island and also to land gained by alluvion or dereliction, all of which are governed by the same principle, follows the right to the soil which is covered by the water. Though the surface of the lower part of Little Tinnicum was de stroyed by the force of the winds and the waves, and it was consequently overflowed by the water of the river, yet the owner did not lose the propriety of the remaining land covered by the water if it was regained either by natural or artificial means, it continued to belong to the original proprietor.’ ‘The earth deposited on it became his by the right of alluvion, and of course this island formed on it by such deposit became his. And though it probably has extended beyond the limits of the old island, the addition is plainly alluvion.’ ” (Pages 434, 435.)
The Delaware decision referred to (Morris v. Brooke, Del. Com. Pl., July, 1815) has been printed in volume 53 of the American Reports, at page 215.
In the recent case of Hughes et al. v. Heirs of Birney et al., 107 La. Ann. 664, 32 South. 30, the principle under consideration was applied to land uncovered by the recession of the waters of “Lake Centennial” from a portion of De Soto point, opposite Vicksburg. The so-called lake was an enlargement of the Mississippi river which was formed by a cut made through the tongue of land in 1876. The water was drawn off, and the lake gradually filled up, by the river making another cut to a point further down the stream in 1898. The opinion was based on the standard authorities, and the syllabus reads:
“If, after submergence, the water disappears from the land, either by gradual retirement, or by the elevation of the land by natural or artificial means, and its identity can be established by reasonable marks, or by situation, extent, quantity, or boundary-lines, the proprietorship returns to the original owner.”
In the case of St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337, 34 L. Ed. 941, it was said:
“It is laid down by all the authorities that, if an island or dry land forms upon that part of the bed of a river which is owned in fee by the riparian proprietor, the same is the property of such riparian proprietor. He retains the title to the land previously owned by him with the new deposits thereon.” (Page 245.)
The same rule applies to titles held by the United States.
“Island No. 42 in the Missouri river, within the present state of Missouri, was surveyed by the United States in 1820, and then contained about fifty acres. Subsequently during floods it was submerged, and a portion of the surface was washed away; but on the subsidence of the waters a portion of it reappeared, and at no time was it washed away to the level of the bed of the river, a chánnel remaining between the island and the west bank of the river. About 1880 the river cut a new channel, commencing above the island, and returning to the old channel below it, making a curve to the eastward, which enclosed about 1100 acres, and leaving the old channel and the island dry. Thereafter plaintiff entered the island as public land, and received a patent therefor according to the original survey. Under the law of Missouri the title of riparian owners on a navigable stream extends only to the water-line. Held, that the title of the United States to the island was not lost by the erosion or submergence, and that, by fits conveyance after it reappeared on the reliction of the waters, plaintiff took title thereto with the additions made by alluvion and accretion.” (Widdicombe v. Rosemiller, 118 Fed. 295, syllabus.)
It is suggested that the right to reclaim submerged land can be asserted only when the riparian proprietor owns to the thread of the stream, but no reason is offered in support of the suggestion, and none is apparent. If through some catastrophe the river make its bed upon private land the burden should fall as lightly upon the private owner as possible. It is sufficient for the state that control be retained over the stream for the preservation of its public highway character. More than this the state ought npt to take. Whatever the riparian owner lost should not be withheld yvhen the water recedes and the need of public supervision is at an end. Whether originally he had or had not some land already under water cannot affect his rights. The land when restored is his own because avulsion affects neither boundaries nor titles. Proprie torship is not lost in the portion covered, and when it rises to the surface, whether by the deposit of alluvion or a change in the channel of the river, dominion reattaches as if it had never been suspended; and whatever accretions may have been added to the tract belong to its proprietor, as in ordinary cases. By a failure to discriminate between the effects of avulsion and ordinary erosion counsel for defendants have been led into an error respecting the prevalence of the doctrine of submergence and reappearance in the region through which the Missouri river flows. Nowhere has it been repudiated where the facts have required its application.
Such being the law and the facts, the avulsion of 1867 did not disturb the boundary between the state of Missouri and the state of Kansas, and the boundaries of the Armstrong grant as they existed when the partition suit was commenced were not changed. The land under the new channel of the river, the island and the shoals beyond the island still belonged to those who owned the soil before the flood. This land has been identifiable from the time the high water subsided, and the limits of the entire tract as they were known in 1867 have been proved in this action. The owners are entitled to reclaim it, and to have it partitioned, unless they have lost title to it in some manner or are debarred from asserting their rights upon some ground suggested by the defendants.
It is of course idle to assert that the partition proceedings conclusively prove the fact to be that the proprietors of the Armstrong grant had no more land in July, 1867, than the 200 acres which were divided. There is fair ground to argue that the allottees are estopped to claim title to more, but the physical existence of a portion of the earth’s surface cannot be annihilated by writing up a court record to that effect. It is plain that the surveyor measured a tract of land surrounded by three streams, two of them at least at flood stage, and found 200 acres of land out of water. The partition commissioners believed that the two rivers had permanently appropriated the remainder of the tract described in the petition, and in effect so reported. The retirement of the waters of the Missouri river and the restoration to its owners of a large body of land not included, in the report were not contemplated. The court and the parties acted upon the circumstances as they then appeared, and closed the case before the river went down.. Ordinary sagacity is to be imputed to them. They were mistaken, and the report, false in fact because based upon conditions erroneously believed to be perpetual, does not stand in the way of the truth.
It is the law that courts will not allow one cotenant to vex those having estates in common with him with a multiplicity of suits for partition, and ordinarily all the joint property must be included in one suit. But'if they own two tracts they may voluntarily divide one of them, or they may ask the court to divide one of them, without depriving themselves of the right or the court of jurisdiction subsequently to apportion the other. Nor will relief be denied them if acting in good faith they should overlook a tract.
“It is true that a petition for a partition of a part of an estate held by tenants in common will not be entertained against the objection of any person interested. Ordinarily, a petition of this kind should include the entire estate held in common; but it does not follow, if by mistake, or by the consent of all the tenants, a partition has been made of a portion of their estate, whether by order of the court or otherwise, that the court is powerless to divide the remainder on a petition of one or more of the tenants in common. It would be a harsh rule that, after a division of a part of an estate, partition of the remainder could never be ordered by the court. When parties have acted innocently and fairly in making or obtaining a division which does not cover all their estate, there is no reason why the law should not aid them when they ask for a. division of the remainder.” (Barnes v. Boardman, 157 Mass. 479, 480, 32 N. E. 670.)
(See, also, Adams v. Hopkins, 144 Cal. 19, 77 Pac. 712; Richardson v. Ruddy, 10 Idaho, 151, 77 Pac. 972.)
Likewise, if parties have acted innocently and fairly, and a portion of the estate described in the petition and ordered to, be partitioned has been omitted from the report of the commissioners under a mistake as to the facts, there is no reason why, upon discovery of the true state of affairs, they should not have the right to bring suit in equity to enforce the decree as to the remainder as the exigencies of the case and the interests of the parties require (Bank v. Kingman, 62 Kan. 571, 64 Pac. 65, and authorities there cited; Wadhams et al. v. Gay, 73 Ill. 415), or else be permitted to avail themselves of the more direct remedy of an ordinary suit for partition of the omitted part, in which the equitable right to relief may, under the practice in this state, be fully investigated. The enforcement of any other rule would breed deserved contempt for the formalism of the law, and prove it to be a tyrant over the fortunes of men rather than a servant in the accomplishment of their just and blameless desires. Conceding to the partition proceedings that for which the defendants argue — the effect of mutual deeds — still if parties are mistaken as to the quantity of' land they actually own, and the disparity is great enough to challenge the attention of a court of conscience, relief may be granted.
“Where plaintiff and his two cotenants attempted to partition their land under a mutual mistake that it only consisted of seventeen acres, when in fact they owned fifty-two acres, and one of them refused to execute deeds, and thereafter defendant purchased the land except plaintiff’s interest, claiming ownership of the entire fifty-two acres except the five and two-thirds acres first deeded to plaintiff, there was such disparity between the quantity of land believed by all the parties to exist and that which they actually owned that plaintiff was entitled to relief on the ground of mutual mistake, and hence a judgment in partition awarding plaintiff an equal one-third of the remainder of the land was proper.” (Cartmell v. Chambers, 54 S. W. [Tex. Civ. App.] 362, syllabus.)
The principle upon which this decision is based is fundamental in the law of contracts.
“In cases of mutual mistake going to the essence of the contract it is by no means necessary that there should be any presumption of fraud. On the contrary equity will often relieve, however innocent the parties may be. Thus if one person should sell a messuage to another, which was at the time swept away by a flood or destroyed by an earthquake without any knowledge of the fact by either party, a court of equity would relieve the purchaser upon the ground that both parties intended the purchase and sale of a subsisting thing, and implied its existence as the basis of their contract.” (1 Story’s Eq. Juris., 13th ed., § 142.)
The same principle should govern if the conditions were reversed and the parties innocently but erroneously believed the messuage had washed away. The head-notes to the report of the case of Ross v. Armstrong, 25 Tex. (Supp.) 354, in volume 78 of the American Decisions, page 574, give the gist of the decision as follows:
“Under joint adventure between holder of head-right certificate and locator to secure patent to government land,' and to divide the land when acquired, if, after securing the grant and dividing the land, it is discovered that part of the land which the government has thus granted had been previously appropriated by older title, the partition is one upon a mistake of facts from which equity will relieve.
“It is a general rule in equity that an act done or contract made under mistake or ignorance of material fact is voidable and relievable against in equity, when such mistake or ignorance constitutes a material ingredient in the contract, or the motive of the act done by the parties, and disappoints their intention by a mutual error.”
The obligation to abide a judgment and refrain from a second suit is affected by the same considerations:
“There is no doubt respecting the general correctness of the proposition expressed in the maxim, ‘nemo debet bis vexari pro una et eadem causa.’
“This rule, however, is not of universal application. The origin and object of the rule were the prevention, of the vexations incident to a multiplicity of suits, which the law, equally as much as equity, abhors.
“The principle above asserted finds more familiar expression in the statement that a party shall not split his cause of action.
“Now, it is quite obvious, that such prohibition presupposes knowledge of the constituent elements of the cause of action sought to be unwarrantably divided. If this be true, and it be true also that the law does not require what is impossible, then it must needs follow, that a party should not be precluded in consequence of a former action, if such action were brought in unavoidable ignorance of the full extent of the wrongs received or injuries done. Any other conclusion would be reached only through sanctioning the rankest injustice.
“In Farrington v. Payne, 15.Johns. 432, the question is asked: ‘Suppose a trespass, or a conversion of a thousand barrels of flour, would it not be outrageous to allow a separate action for each barrel?’ Undoubtedly it would. But in- such a case, where the owner is ignorant of the extent of-his loss, would it not be far more outrageous to allow a recovery of one barrel, to •prevent the recovery of the remaining nine hundred and ninety-nine?
“This question will meet with an affirmative response in every honest heart.” (Moran v. Plankinton et al, 64 Mo. 337, 338.)
(See, also, Alexander v. Bridgford, 59 Ark. 195, 27 S. W. 69; Gedney v. Gedney, 160 N. Y. 471, 55 N. E. 1.)
A mistake in a division line in a decree of partition originating in the report of the referees which was confirmed without objection will be corrected in equity. (Smith v. Butler, 11 Ore. 46, 4 Pac. 517.) Equity will likewise take jurisdiction to correct a decree of foreclosure from which a lot has been omitted by mistake. (Snyder v. Ives, 42 Iowa, 157.) And the fact that the cause in which a mistake occurs has been taken to the supreme court and the judgment affirmed will not defeat the exercise of such power. (Partridge & Co. v. Harrow and Harrow, 27 Iowa, 96, 99 Am. Dec. 643.)
It is true that the partition proceedings are conclu sive in reference to the nature and extent of the titles of the respective parties. The decree that they are tenants in common cannot be impeached to show that one or more of them owned in severalty. Nor can any of them take advantage of a second proceeding to make a claim for compensation for improvements which should have been asserted in the first instance. (Forder v. Davis, 38 Mo. 107; Bobb v. Graham, 89 Mo. 200, 1 S. W. 90; Spitts v. Wells, 18 Mo. 468; Burger v. Beste, 98 Mich. 156, 57 N. W. 99; Cane v. The Rock River Canal Company, 15 Wis. 179; Janes v. Brown, 48 Iowa, 568.) So, if the commissioners had established a right of way to some of the allotments another could not now be claimed, and if a strip of land had been left undivided for the purpose of furnishing to some of the allottees free access to their premises the fact could not now be disputed. (Carey v. Rae, 58 Cal. 159; Miller v. The City of Indianapolis et al., 123 Ind. 196, 24 N. E. 228; Turpin et al. v. Dennis, 139 Ill. 274, 28 N. E. 1065.)
In the ease of Miller v. The City of Indianapolis et al., supra, it was said:
“In their report to the court the commissioners reported that they had divided the land intended for partition into lots, blocks, streets, and alleys, and in their report of partition they informed the court that they had assigned to each of the parties interested in said land his or her share in the same in severalty. No person examining these proceedings would be led to believe that any portion of the land described therein was left undivided, but, on the contrary, when examining the plat- in connection with the report of the commissioners in partition, and the judgment of the court thereon, would be led to the belief that the strip in controversy was intended as a sixty-foot street, furnishing an outlet for the blocks abutting thereon. . . . The property adjoining this strip has pass.ed into the hands of third parties. ... To permit the appellant to say now that this strip was left by the commissioners as undivided land, and was not intended as a street, would be obviously unjust to those who purchased the property on the faith of the plat and the partition proceeding. We do not think the court erred in refusing to admit this offered testimony.” (Pages 206, 207.)
None of these cases, however, which are referred to because cited by counsel for defendants, reaches to the marrow of this controversy, which relates not to what the commissioners’ report includes but to what it disregarded. The report shows that 200 acres, and no more, of the land described in the petition were partitioned. A flood prevented the division of the remainder. The commissioners led the court and the parties to believe that the omitted territory had washed away. It was under water at the time, and remained so until the next year. The parties were not at fault in relying upon the statement of the commissioners as true. They were all, however, mistaken. The mistake involved the existence of a large portion of the subject-matter of the suit. Belief in its non-existence led them to take no further account of it. Therefore, under the ancient and well-established principles of equity jurisprudence, the plaintiffs are entitled to relief unless the defendants will be deprived of some right to the land; and under the liberal rules of procedure prevailing in this state the question may be determined in an action for the possession and partition of the tract excluded from the former report. ■
The defendants cite the leading authorities to the effect that when a private individual grants property belonging to him, and bounds it generally upon a stream, the' presumption is he- does not intend to reserve any land between the upland and the stream, and if his property extend beyond the water-line the presumption is the grant will carry title as far as he owns. The subject is discussed in volume 3 of Farnham on Waters and Water Rights, section 852. As stated by the author just referred to (section 855), the presumption ordinarily indulged is rebuttable, the question being purely one of intention. When the intention is ascertainable from the face of an instru ment or a record, other evidence is not admissible, and under the well-understood rule the court must make the interpretation and not the jury.
• The full intention of the court and the parties to the partition proceeding is clearly expressed. No land whatever north of the Miller survey line was partitioned or conveyed, for the stated reason that none remained. It had washed away. The meaning is as clear as ,if the line had been established at a granite escarpment instead of a navigable river. In the theory of the law one form of earth sculpture is as enduring as another. The bank of a river is a monument the same as the face of a cliff. The presumption is that it does not change, and dominion may be limited as conclusively by a river-bank as by any other natural object. The allotments were intentionally made proportional to a residue of 200 acres, and the proposition that the design was that the six allottees whose proportional shares touched the river should, because of that fact, receive some fifty acres more of unpartitioned common land is not worthy of discussion. No land was reserved between the partitioned land and the river. Lot 18 was first conveyed by a description limited as follows:
“As set apart to the Union Pacific Railway Company, Eastern Division, by the judgment and decree of court in the case of Thomas Ewing, jr., et al., v. William Weer et al., at the April term, 1867, of the first judicial district in and for the county of Wyandotte, Kansas, numbered on the appearance docket of said court 911, as remains of record and on plat in cause numbered 18.”
Lot 16 was first conveyed as “the same land designated as lot 16, as shown on the plat in case No. 911, Thomas Ewing, jr., et al., v. William Weer et al., in the first judicial district court, Wyandotte county, Kansas, and set apart to said Swope in said suit, the papers and records in which case are here referred to for description of said lot 16.” Lot 15 was first conveyed by deeds which limited the grant to a part of lot 15 in the plat in the partition suit of Thomas Ewing, jr., et al., v. William Weer et al., such plat being on file in the clerk’s office of the first judicial district of Kansas, in Wyandotte county. A further reference in these deeds to a plat of the city across the Kansas river, which by its own outlines and by the certificates of the surveyor and the dedicating party excludes this land, added no certainty to the specific description already given; and to say that the decorative sketch upon this.plat — no doubt satisfactory to the artistic taste of the draftsman — was seized upon by the grantor as the indisputable mark by which he could •evince a determination to give to James F. Joy land which Joy was trying to keep covered by the water of a navigable river involves a flight of faney which the court hesitates to attempt. Other primary conveyances of partition allotments are equally conclusive. No purpose to deed undivided interests in other land owned by numerous tenants in common can be interpolated.
Some of the defendants make no point that their deeds carried with them title to undescribed land by implication, and the position of the others is quite inconsistent with the very substantial and meritorious claim that they were purchasers of tracts bordering upon a navigable river whose bed belonged to the state, and hence that they took title only to its margin. (Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330; Peuker v. Canter, 62 Kan. 363, 63 Pac. 617.)
It. is entirely clear that several of the defendants made their purchases from a desire to secure a location-upon the main navigable channel of the Missouri river. Believing they had secured a permanent frontage of that character, they have expended fortunes in the improvement of their estates. To be cut off from the river is an incalculable hardship, and the plaintiffs will not be allowed to interfere in any wrongful way with the riparian rights of the defendants. What, then, are the riparian rights of the defendants? Manifestly those of access to the stream, accretions to their shores, and land left by the reliction of the water from ■such shores.
From the findings of the jury it fairly appears that the building of the water-works dike deflected the main channel of the Missouri river from the land of the defendants, and that none of their land protruded northward, either by accretion to it or by the recession of the water from it, beyond the line of the Miller survey. The little that is lacking in the findings is abundantly supplied by the evidence given in connection with that upon which the findings are based. It is to the effect that the water company drove a double row of piling across the main channel of the river flowing between the island and the riprap bank, obstructing the current and diverting it to the north side of the island. Sand and sediment settled below the dike and formed a bar across the channel, which then commenced to fill up. Because the current had always scoured the riprap bank the progress of accretion while the channel was filling was from the' island toward that bank, until a slough, and then pools of water next to that bank, were all that remained of the stream. After the water-works dike was constructed the city sewer was extended to reach flowing water. Later the harbor line was established at the end of the dike, to which an addition had meantime been made; considerable reclamation work and dumping of material into the stream helped to clog it, but much ■of plaintiffs’ land was uncovered by the initial work ■of' diversion.
It is useless to discuss the irreconcilable conflicts in the testimony bearing upon these important questions. They have been settled by the findings and verdict of the jury adversely to the defendants. All the evidence in the 3000 pages of the record favorable to the plaintiffs is brought to the aid of the findings and the verdict. It is abundant to support every claim the plaintiffs make, and the court is now concerned with nothing but the rules of law governing the case.
If the title to the bed of the river had been in the state, and had not remained in the plaintiffs because of the avulsion of 1867, the piling in question would have constituted a purpresture, abatable by a suit in equity at the instance of the state. (Revell v. The People, 177 Ill. 468, 52 N. E. 1052, 43 L. R. A. 790, 69 Am. St. Rep. 257.) As it is, it was an obstruction to navigation and a public nuisance. Besides this the deflection of the river by means of it invaded the private right of every individual entitled to the flow of the water past his land. The water company had the right to protect its land against inroads of the stream; it had the right to secure the 100 feet of accretion to its land; and it had the right to erect all improvements necessary to secure and promote commence,• navigation,. fishing, and other uses of the stream as navigable water. But it could not destroy the stream itself. All the courts agree that even wharves, which are indisr pensable to navigation, cannot be extended beyond the line of navigability and will not be endured if they constitute a nuisance in fact. (City of Madison v. Mayers and others, 97 Wis. 399, 73 N. W. 43, 40 L. R. A. 635, and note, p. 642, 65 Am. St. Rep. 127.)
The claim of the water company, stripped of all sophistry, reduces to the demand that it may remove the stream from its channel to some remote locality and then appropriate the plaintiffs’ land in order to obtain access to the water; and the claim of the other defendants, similarly denuded, is that because the water company has preyed upon them they are licensed to prey upon the plaintiffs. Manifestly such is not the law. The syllabus of Halsey v. McCormick, 18 N. Y. 147, reads:
“Where the water is diverted by artificial means, and not imperceptibly, from the land of a proprietor bounded by low-water mark, he acquires no title to the derelict bed of the stream.”
In the opinion it was said:
“McCormick deepened the bed of the stream on the south side, and placed stones along the center so as to confine the water in the channel thus deepened, and by this means the land in question was left bare. He may have been guilty, by these acts, of a violation of the riparian rights of the plaintiff or his grantors, but I know of no rule of law which would constitute an illegal act of the kind a transfer of the title.” (Page 149.)
In Leiuis v. Lumber Company, 113 N. C. 55, 18 S. E. 52, the area of an island in a swamp had been enlarged, by drainage. It was said:
“Such enlargement of the original island by artificial means was not an accretion that inured to the plaintiff’s benefit, and, if not, it was competent as in all such cases to show the original low-water line as defining the limits of the island when granted. Tiedeman, § 685 et seq.; Malone, Real Prop. 253.” (Page 61.)
In volume 1 of the third edition of Wood on Nuisances, section 494, the text reads:
“Every proprietor of land exposed to the inroads of the sea may erect on his own land groins, or other reasonable defenses, for the protection of his land from the inroads of the sea. . . . But a man has no right to do more than is necessary for his defense, and to make improvements at the expense of his neighbor.”
In the cases of Tatum v. City of St. Louis, 125 Mo. 647, 28 S. W. 1002, and Whyte v. St. Louis, 153 Mo. 80, 54 S. W. 478, the trustee of a riparian owner, and later the assignee of the rights of such owner, sought to recover from the city itself accretions formed by the acts of the city and by a railroad company over which the plaintiff had no control, and declarations of law in favor of the plaintiff were made. In the case of Steers v. City of Brooklyn, 101 N. Y. 51, 4 N. E. 7, a wrongful structure was given to the riparian owner, in front of whose land it had been, erected, as an accretion. The court said:
“The wrong-doer should gain nothing by his wrong, and justice cannot be done to the upland owner except by awarding to him, as against the wrong-doer, the-accretion attached to his soil as an extension thereof.. (Ledyard v. Ten Eyck, 36 Barb. 102, 125; Langdon v. Mayor, etc., 93 N. Y. 129; Mulry v. Norton, 100 N. Y.. 424, 3 N. E. 581; Gould, Waters, §§ 123, 124, 128, 148,. 158; Angelí, Tide-waters, 249.)”
It is equally clear that the defendants other than the water company cannot keep for their own use-accretions to plaintiffs’ land. Peter may not be plundered to recompense Paul. Especially is this true-since the other defendants had a right to redress, against the water company. . In the case of Fulmer v. Williams, 122 Pa. St. 191, 15 Atl. 726, 1 L. R. A. 603, 9 Am. St. Rep. 88, a riparian owner filled up the channel of a river running between an island and the land' of an opposite proprietor. The party wronged was awarded damages .for the injury special to himself,, the court holding the maxim, sic utere tuo ut alienum. non Isedas, to be clearly applicable. Upon a subsequent appeal -of the same case the court said:
“The diversion of the stream was an injury to his. land that was direct, peculiar, and not shared with the-general public. It was as clearly actionable as the diversion of a stream passing over his land. Whoever brought about such diversion so as to deprive him of the advantages of his location, whatever they were, inflicted a pecuniary wrong upon him. The manner in which the diversion is brought about is not important. It might be accomplished by .means of elaborate works arranged to carry the stream elsewhere, or it might be-effected by filling up the channel so as to compel it to seek another. The result accomplished and the injury inflicted would be the same. The lower riparian owner would be deprived of the natural advantages which ownership of the land at that point gave him, by the-unlawful act of another; and he would have a right to-call upon the wrong-doer to repair the wrong done him by restoring the stream to its channel or making com pensation for its loss.” (Williams [Appellant] v. Fulmer, Appellant, 151 Pa. St. 405, 414, 25 Atl. 103, 31 Am. St. Rep. 767.)
In the case of City of Georgetown v. The Alexandria Canal Company, &c., 37 U. S. 91, 9 L. Ed. 1012, the syllabus reads:
“The Potomac river is a navigable stream, or part of the jus publicum; and any obstruction to its navigation would, upon the most established principles, be a public nuisance. A public nuisance being the subject of criminal jurisdiction, the ordinary and regular proceeding at law is by indictment or information, by which the nuisance may be abated, and the person who caused it may be punished. A court of equity may take jurisdiction in cases of public nuisance, by an information filed by the attorney-general. ■ If any particular individual shall have sustained special damage from the erection of it, he may maintain a private action for such special damage; because, to that extent, he has suffered beyond his portion of injury, in common with the community at large.”
Citations of authority to the same effect might be multiplied. Therefore the fact that the navigable channel of the river has been diverted from alongside the defendants’ land by the means described gives them no right to appropriate the plaintiffs’ premises in order to preserve their riparian privileges. They must acquire title to the coveted tract in some manner recognized by law.
Upon their own theory of the case, the defendants’ purchases being bounded upon a navigable river, they took no title beyond the bank, the bed of the river belonging to the state. If so they could obtain title to no part of the bed of the stream, nor to any land formations upon the bed of the stream, except by grant, which they did not receive, or by the processes of accretion and reliction. It is a matter of no concern to the defendants who may own that which is not theirs; and' since the title of the plaintiffs was not taken away by the’catastrophe of 1867 the defendants are limited to precisely the same methods of acquisition as if the bed of the river belonged to the state.
Accretions must consist of deposits formed against, and added to, the bank. In Lord Hale’s treatise, “De Jure Maris et Brachiorum Ejusdem,” it is said:
“Let us now come to the marítima incrementa, viz.: Alluvio maris; recessus maris; et insula maris.
“(1) For the jus alluvionis, which is in an increase of the land adjoining by the projection of the sea casting up and adding sand and slubb to the adjoining land, whereby it is increased, and for the most part by insensible degrees.”
Chapters 5 and 6 of this valuable tract, from which the quotation is made, are reprinted in volume 16 of the American Reports, at page 54 et seq. The definition of Mr. Justice Gantt, given in Lammers v. Nissen, 4 Neb. 245, notes this characteristic:
“An accretion to land is the imperceptible increase thereto on the bank of a river by alluvion, occasioned by the washing up of sand or earth, or by dereliction as when the river shrinks back below the usual watermark; and land so formed by addition belongs to the. owner of the land immediately behind it.” (Syllabus.)
In the case of Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317, it was said:
“According to the cases we have cited, the high-water mark, as thus defined, being the boundary-line of the riparian owner in this state, is the point at which the formation of all lands acquired by him by accretion must begin. A formation of alluvion beginning at any other point would belong to the state or other party.” (Page 435.)
In the case of Holman v. Hodges, 112 Iowa, 714, 84 N. W. 950, 58 L. R. A. 673, 84 Am. St. Rep. 367, a bar formed on the bed of the Missouri river, which increased in size until it became fit for agriculture and finally joined the shore. The opinion reads:
“Without setting out the evidence in detail, it is enough to say that the formation of the bar or island has been entirely distinct from any accretion to the shore. It arose near the middle of the river, though probably east of the thread of the then main current, without any connection with the Iowa shore, and was gradually added to by accretion or reliction until an island of the proportions mentioned was formed. Not only is this true, but the conclusion seems inevitable from the circumstance shown that the additions to plaintiffs’ land, whether from accretion thereto or the receding of the waters, have resulted from the formation of the island. Its existence undoubtedly changed the main current of the river, and by its growth to the northeast gradually cut off the stream formerly flowing between it and the shore. Whether this be true, however, need not now be determined. It is enough for the purposes of this case that the land beyond the channel last mentioned was formed independently of plaintiffs’ land. It then never became part of their lots through the process of accretion or reliction. . . . It is said that, even though it [the state] may have owned the island when surrounded by water, that title moved from beneath it as the river receded, and the land became plaintiffs’ as soon as connected with shore. It is conceded that no authorities have been found announcing such a doctrine, and we have been unable to discover any case awarding a riparian owner land because connected to his own, save when this has occurred through the imperceptible accretion or the reliction thereof by the gradual receding of the waters.” (Pages 715, 716.)
In the case of Linthicum v. Coan, 64 Md. 439, 2 Atl. 826, 54 Am. Rep. 775, it was said:
“If the land in question was formed by gradual accessions extending from the shore into the river, it would belong to the riparian proprietor; and this would be the case notwithstanding the fact that by the influence of floods and freshets large deposits of mud. may have been made in the bed of the river. These deposits would, of course, materially contribute to the formation of land, and would hasten the time when it would appear above the surface of the water. But the leading characteristic of alluvion is the gradual extension of the land from the shore into the water; and when this is the case, it is irrelevant to consider the causes which, operating beneath the surface of the stream, have brought about the result. • On the other hand, if land was formed in the river, and extended inwards toward the shore, it would be the property of the plaintiff, with all its accretions.” (Page 454.)
The decisions in Posey v. James, 7 Lea (Tenn.) 98, and Hammond v. Shepard, 186 Ill. 235, 57 N. E. 867, 78 Am. St. Rep. 274, were based upon the same propositions. In the case of Glassell v. Hansen, 135 Cal. 547, 67 Pac. 964, the court had under consideration the rights of parties to an island which sprang up in the Sacramento river, originally a wide expanse of navigable water, and by its own accretions finally closed one of the channels that separated it from the shore. The patentees of the shore claimed it. In the opinion it was said:
“The accretions were to the island, and not to the lands described "in plaintiffs’ patent. It is a familiar doctrine of the common law that the owner of land bounded by a river, being exposed to the danger of loss from its floods, is entitled to the increment which, from the same cause, may be gradually annexed to it. . . . It is also elementary that if an island springs up in a navigable stream, it belongs to the sovereign, and not to the owner of the land on either of the banks of the stream. So in this case the principle is the same, whether the island existed at the time of the confirmation of the Mexican grant, or was afterward formed in the river. If the accretions had been to plaintiffs’ land, and had gradually extended to the island, ,the plaintiffs would have been the fortunate ones, and the accretions so added to theirs would have been theirs in law.” (Page 550.)
In King v. Young, 76 Me. 76, 49 Am. Rep. 596, holding that a mussel-bed over which the water flows at every tide cannot properly be called an island but should be denominated flats, under a colonial ordinance, it was said:
“It seems to be settled both in England and in this country that the land of a riparian proprietor may be increased by accretion. This is not denied by the defendant’s counsel. But he contends that the increase must be gradual, and from the shore outward; that if an island forms at a distance from the shore, and then, by its own growth, extends inward till it reaches the shore, such new-made land will not become the property of the owner of the shore; and in this we think he is correct. He then contends that a mussel-bed is an island, if it first commences to form at a distance from the shore, and there first shows itself above the surface of the water at ebb-tide, leaving sufficient water between it and the shore for boats to pass, although by its continued growth it subsequently extends to and connects with the shore, so as to leave no water between it and the shore at ebb-tide. In this we think he is wrong. We think a mussel-bed over which the water flows at every tide cannot properly be called an island. We think such formations constitute what are called flats; and, by virtue of the ordinance of 1641-’47 belong to the owner of the adjoining land, if within a hundred rods of high-water mark and so connected with the shore that no water flows between, them and the shore when the tide is out.” (Page 79.)
The principle under consideration holds in the case of reliction.
“The formation by accretion or reliction must be imperceptible, and must be made to the contiguous land so as to change the position of the water’s margin or edge.” (Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300, syllabus.)
(See, also, Cox v. Arnold, 129 Mo. 337, 341, 31 S. W. 592, 50 Am. St. Rep. 450.)
If the space between the mainland and an island be reduced to a slough, which fills up in such a manner that the two bodies of land join, the respective owners will be entitled to the accretions to their shores. If the slough fills up from the bottom, and the accretions do not begin at the sides, the boundary is the center of the slough, as it was before the water left it. (Buse v. Russell, 86 Mo. 209; Minton v. Steele, 125 Mo. 181, 28 S. W. 746.) If an island be separated from the mainland by the channel of a river which becomes dry the same rule obtains.
“It will be noted that refused instructions 4 and 5 announce the proposition that if the land in contro versy was originally formed in the Missouri river as an island or sand-bar with a channel between it and the mainland belonging to plaintiff, and that by accretions to said bar or island on the south side it finally extended to plaintiff’s land on the south bank, or if by the recession of the river from this intervening channel after the formation of the bar or island the bar and the mainland became connected, then plaintiff became the owner thereof as an accretion. This instruction was clearly erroneous in that it ignores the fundamental idea upon which the title to accretions is based, namely, that they must be the imperceptible or gradual accretions to the plaintiff’s lands, or the gradual receding of the river therefrom. If the accretions were to the island on the south side, and to .the mainland on its north side, and by a change of the river they were thus brought together, such a union of the two tracts did not make the island an accretion to the mainland.” (Hahn v. Dawson, 134 Mo. 581, 36 S. W. 233.)
“Suppose the channel of the river between an island and the mainland is left dry by the water, and entirely filled up with deposits of mud, and the island and mainland are at last one continuous tract of land, could the owner of either claim the entire tract? Certainly the newly formed land would belong to the United States, or it would be divided between the opposite owners, upon the common-law principle, applicable to non-navigable streams, of each going to the thread of the channel, as it was before it was deserted by the water. In the event supposed, the river might be regarded as ceasing to be a navigable one, pro hac vice, or rather as being converted, at the slough between the island and the shore, into a non-navigable one. In any event the owner of the shore could not claim both the alluvion and the island, nor, vice versa, could the owner of the island claim the tract on the bank, with its accessions by alluvion.” (Benson v. Morrow, 61 Mo. 345.)
.If the plaintiffs’ land had not been devastated by a violent and convulsive process whose operation was manifest to all who desired to gaze upon it, and its original banks had been worn away by ordinary erosion to the Joy deed line, the defendants could acquire title to it only in the manner described in Peuker v. Canter, 62 Kan. 363, 63 Pac. 617; that is, by the outward ex pansion of their shore-line across it. These principles hold whether the channel separating the plaintiffs’ land from that of the defendants’ filled on account of the water-works dike or from some other cause.
The defendants argue that the so-called island was a mere sand-bar; that an island, to be worthy of the name, must have become elevated above the bed of the stream far enough to make it fit for agricultural purposes; and that the riparian right of accretion can attach to nothing less dignified. It is not necessary to give a formation on the bed of a. river a specific name in order that proprietary rights may attach to it. In many states lands totally or partially submerged are made the subject of grant by the sovereign, - in order that they may be reclaimed for useful purposes. Islands that arise from the beds of streams usually first present themselves as bars. (Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Cox v. Arnold, 129 Mo. 337, 31 S. W. 592, 50 Am. St. Rep. 450; Perkins v. Adams, 132 Mo. 131, 33 S. W. 778; Hahn v. Dawson, 134 Mo. 581, 36 S. W. 233; Moore v. Farmer, 156 Mo. 33, 56 S. W. 493, 79 Am. St. Rep. 504; Glassell v. Hansen, 135 Cal. 547, 67 Pac. 964; Holman v. Hodges, 112 Iowa, 714, 84 N. W. 950, 58 L. R. A. 673, 84 Am. St. Rep. 367.)
Before it will support vegetation of any kind a bar may become valuable for fishing, for hunting, as a shooting park, for the harvest of ice, for pumping sand, and for many other well-recognized objects of human interest and industry. If further deposits of alluvion upon its borders would make it more valuable, no reason is apparent why the law of accretion should not apply. It is not before the court to say what primitive formation will carry the right to accretions, but the ability to support crops certainly is not the single test. In any event the rights of the parties to this litigation are to be determined as of the time the formation in the river and that against the shore came together.. Before then the defendants could not claim title. At that time there is no doubt such formations, whether sand-bar, island, restored land, or something else, were as properly the subject of dominion by the plaintiffs as by the defendants who seized them.
The supreme court of the state of Missouri, within whose jurisdiction the lower course of this river lies, has been called upon to deal with almost every phase of this subject. Its opinions are in full accord with the principles of law elsewhere recognized. Three brief quotations are quite pertinent:'
“If the island was washed away, in whole or in part, after it was surveyed and then reformed on the same bed, the owner of it, as it was before it was so washed, would be ehtitled to. it, but if it was washed away and the land sought to be recovered was made by deposits to and against the survey of the mainland, then such deposits became the property of the owner of the survey.” (Buse v. Russell, 86 Mo. 209, syllabus.)
“The sole issue made by the pleadings is whether the lands sued for were accretions to plaintiff’s shore-land. If they were and are, he is entitled to them without reference to whether they now extend beyond what was once the center line of the main channel. If they were not formed to his land on the bank of the river by gradual accretion of land thereto or by a gradual reliction of the adjoining bed of the river by the receding of the waters, then he is not entitled to recover, whether the lands be called an island or a sand-bar or by any other designation.” (Perkins v. Adams, 132 Mo. 131, 140, 33 S. W. 778.)
“In view of all this evidence it is plain that whether island 45 remained substantially as originally surveyed, or whether it was washed away and afterward reformed on its original site, it is too plain for discussion that what is termed ‘th.e island’ now is not an accretion to section 21 or section 16. The doctrine of accretion will scarcely admit of jumping a slough forty to sixty yards wide. In a word, there is nothing saltatory about accretion.” (Crandall v. Smith, 134 Mo. 633, 640, 36 S. W. 612.)
Of course the plaintiffs were obliged to recover upon the strength of their own title. This they did by connecting themselves with the allottees of the Armstrong grant under the partition proceedings of 1867. The views of the law herein expressed were substantially given to the jury by well-drawn instructions. The period of time within which an owner may reclaim land after it has been submerged is not a question for determination in this action. The plaintiffs show a title good against the defendants. The state has not intervened, and whether it has any rights is immaterial to the present decision. If it really holds the paramount title the defendants cannot take advantage of the fact. (McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822.)
One hundred and ninety-eight special questions were answered by the jury. The court has considered them all, and finds them to be harmonizable with each other and with the general verdict. Many pitfalls were prepared for the jury by using the terms “washing away” and “washed away,” but they made themselves entirely clear with reference to the precise effect of the action of the water upon the plaintiffs’ land. The argument that there was not sufficient land remaining when the partition suit was commenced from which an island could be cut off and leave 208 acres was doubtless submitted to the jury, the proper tribunal to determine the fact.
Eighty-eight instructions were given to the jury, and numbers of requests for instructions were refused. The' instructions given and those refused have been examined, and no error prejudicial to the defendants is discovered. In view of the findings of fact several matters argued relating to instructions become immaterial. Defenses were fairly submitted. The jury evidently gave the water company full benefit of its special defense that the accretion in front of its lot abutted upon the Kansas and not upon the Missouri River bank. Unwarranted assumptions of fact were not made in the instructions. It was the duty of the court, and not of the jury, to interpret the partition proceedings.
The petition names a large number of persons as plaintiffs, and describes them as cotenants of the tract sued for. The verdict was in favor of all these parties. The petition further names a number of persons as defendants who are described as cotenants with the plaintiffs. The verdict was also in favor of “those defendants who are tenants in common with the plaintiffs,” evidently meaning those named in the petition. The right to the possession of the land described was a matter of common interest to many persons. One tenant in common may recover the entire estate from a trespasser for the benefit of all. ' Any fractional interest in land is sufficient upon which to base a judgment of ouster • against a trespasser. This being true, the plaintiffs in error suffered no material injury because the jury did not catalogue the names of the prevailing defendants and specify the precise proportional share of each plaintiff and prevailing defendant. The plaintiffs in error are not at all solicitous because the names of some five or six persons appear to have been written in the judgment whose right to recover may not be supported by the record, but they seek to overturn the entire judgment because the verdict is in the form described. This they cannot do. Some of the plaintiffs below may be injured. The plaintiffs in error cannot be.
Those who were given acre quantities in the original partition suit had no interest in the unpartitioned common lands when their demands for specific measures were satisfied. Therefore they and their successors have no interest in the litigation. • The land recovered is sufficiently described in the verdict.
The 170 assignments of error in the briefs have been duly considered, and none of them requires the case to be tried again. The foregoing observations, which already transcend the proper limits of a written opinion, express the views of the court with reference to those which are of greatest importance.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enforce an attorney’s lien. J. L. Waymire brought suit against Ira Summerfield for the specific performance of a contract for the sale and conveyance of land, and he employed S. C. Holmes as an attorney to prosecute the same. Shortly after the commencement of the suit Holmes served on Summerfield a notice of an attorney’s lien on the land in controversy for his fee in the case, which he fixed at $150. Subsequently, and before a trial was had, Waymire and Summerfield compromised their differences and caused the suit to be dismissed without consultation with, or the consent of, Holmes. The latter then brought this suit against Waymire and Summerfield, and he also named as defendants A. F. Florence, an attorney for Summerfield, and a party to whom the land had been sold, in which he asked for the recovery of $150 against Waymire, and that his attorney’s lien be foreclosed and declared a first lien on the land which was the subject of the controversy, in. the suit for specific performance. Upon the testimony in behalf of Holmes the court gave him judgment against Waymire for $150, but determined that he had not acquired an attorney’s lien on the land in question.
The plaintiff’s right to a lien is determinable under section 395 of the General Statutes of 1901, which has been amended as to notice since the decision was made by the district court. (Laws 1905, ch. 68.) The section provided:
“An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment, upon money in his hands belonging to his client, and upon money due to his client, and in the hands of the adverse party, in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party.”
This section is a substitute for, and may be said to be a substantial enactment of, the common law upon the subject of attorneys’ liens. It provides, first, for a possessory lien upon any papers of his client which have come into the attorney’s hands in the course of his employment, and also upon any money in his hands belonging to his client. The second provision, which is sometimes called a charging lien, attaches to any money due to his client and in the hands of the adverse party in an action or proceeding in which the attorney is employed, providing the statutory notice has been given.
The plaintiff insists that the lien claimed by him falls within the second class, and that it attached to the land which was the subject of controversy. The lien is special in its character, and, being' statutory, can only attach to the things and upon the conditions prescribed by the statute. As will be observed, the attorney’s lien prescribed is not given upon the subject-matter of the action, but is restricted to money due the client and in the hands of the adverse party. Even under the common law an attorney who com menced a suit did not acquire a lien on the subject of action, nor was he allowed a lien on real estate where it was the thing in dispute. (Humphrey et al. v. Browning et al., 46 Ill. 476, 95 Am. Dec. 446; Martin v. Harrington, 57 Miss. 208; McCullough v. Flournoy, 69 Ala. 189; Higley v. White et al., 102 Ala. 604, 15 South. 141; Hanger and wife et al. v. Fowler, 20 Ark. 667; Rowe, Executor, &c., v. Fogel, &c., 88 Ky. 105, 10 S. W. 426, 2 L. R. A. 708; Keehn v. Keehn, 115 Iowa, 467, 88 N. W. 957; Randall v. Van Wagenen, 115 N. Y. 527, 22 N. E. 361, 12 Am. St. Rep. 828; McCoy v. McCoy, 36 W. Va. 772, 15 S. E. 973; 3 A. & E. Encycl. of L. 461.)
It is true, as is contended, that a judgment determining the amount of money due is not essential to the existence of a charging lien, and also that a collusive settlement and dismissal of a suit will not operate to defraud an attorney of his fee. Under the statute the lien is not upon a judgment, but is upon “money due.” In K. P. Rly. Co. v. Thacher, 17 Kan. 92, the court, in speaking of the statute, said:
“It does not specify for what the money must be due, nor limit the lien to any particular class of liability or form of action. Wherever an action is pending in which money is due, the attorney may establish his lien. And in an action the verdict and judgment do not create the liability, do not make the ‘money due.’ They are simply the conclusive evidence of the amount due from the commencement of the action.” (Page 101.)
But here money was not the subject of the litigation, nor can it be said that there was any money due Way-mire by the adverse party at any stage of the proceeding.-
In asking for a liberal interpretation of the statute plaintiff refers to Noftzger v. Moffitt, 63 Kan. 354, 65 Pac. 670. While that proceeding. involved property, the judgment rendered provided that the successful party should recover the property or its value. The property was in fact converted into money under an order of the court, and hence there was money due the client of the claimant, and it was in the hands of the adverse party.
No reasonable interpretation of the statute can make the lien extend to the land over which the parties were contending, and hence plaintiff must look to his client alone for his compensation. This was the view of the district court, and its judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
This is a proceeding in error from a judgment sustaining a demurrer to a petition in which is also involved a ruling of the court requiring plaintiffs separately to state and number the different causes of action stated in the petition. The motion was allowed to the original petition, and the demurrer sustained to the amended petition. The subject-matter of the controversy in this action has been before the court in Smith v. Becker, 62 Kan. 541, 64 Pac. 70, 53 L. R. A. 141, and New v. Smith, 68 Kan. 807, 74 Pac. 610. The original petition reads as follows:
“In the District Court of Greenwood County, Kansas.
“Emelia New, and Robert H. Clogston, as Trustee of Emelia New, a Convict, Plaintiffs, v. J. A. Smith and H. M. Brown, Defendants.
“PETITION.
“The plaintiff Emelia New is now and has been a convict in the state penitentiary, at Lansing, Kan., since the 25th day of January, 1898, having been sentenced on the 24th day of January, 1898, by the district court of Greenwood county, Kansas, for her natural life, upon a verdict of being accessory to the murder of her husband, Joseph New, who was shot and instantly killed on the evening of October 31, 1897. That afterward, and on the 7th day of January, 1899, the Honorable J. W. Leedy, then governor of this state, commuted her sentence to forty years, in lieu of ‘for her natural life,’ and the plaintiff Robert H. Clogston is her duly appointed, qualified and acting trustee of her estate, having been appointed by the probate court of Greenwood county, Kansas, on the 2d day of April, 1901.
“Plaintiffs further aver that they have the legal estate and the equitable estate in and to the following-described real estate, to wit: The west-half of the southeast quarter of section fourteen (14), township twenty-seven (27), range nine (9), also the southwest quarter of section fourteen (14), township twenty-seven (27), range nine (9), the same being 240 acres, situated in Greenwood county, Kansas, and are en titled to the immediate possession of the same; and the defendants unlawfully keep plaintiffs out of the possession of the same.
“Plaintiffs further state that the said defendant J. A. Smith has so unlawfully kept plaintiffs out of said possession for the past three years, and collected and used' for their [defendants’] own benefit during said time the rents and profits arising from said real estate, amounting to $1200.
. “Wherefore, plaintiffs pray judgment for the possession of said premises, and for the sum of $1200 for rents and profits, and for costs and all other proper relief. Emelia New,
By Robert H. Clogston, her Trustee.
John Stowell and Robert H. Clogston, , Attorneys for Plaintiffs.
“Robert H. Clogston, Trustee.”
The first error complained of is the ruling requiring that the two causes of action be separately stated and numbered. Counsel have argued at some length a question not at all involved, which is, that it is proper to unite in the same action a cause of action for ejectment and one for rents and profits. This is, of course, not denied by any one, but the motion which the court very properly allowed was not directed against the joining of the two causes of action. It was based upon the failure of the pleader separately to state and number them. Section 88 of the code of civil procedure (Gen. Stat. 1901, §4522) reads as follows: “Where the petition contains more than one cause of action, each shall be separately stated and numbered.” It has been held error for the court not to allow a motion of this kind. (Pierce v. Bicknell, 11 Kan. 262.)
The amended petition is the same as the original in all respects, except that the cause of action .for rents and profits is omitted. The demurrer which the court sustained contains six grounds, stated as follow:
“(1) That the plaintiff Emelia New has no legal capacity to sue.
“(2) That the plaintiff Robert H. Clogston, as trustee of Emelia. New, has no legal capacity to sue.
“(3) That several causes of action are improperly joined.
“ (4) That the amended petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against these defendants.
“ (5) That the amended petition does not state facts sufficient to constitute a cause of action in favor of Emelia New and .against these defendants. ’
“ (6) That the amended petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff Robert H. Clogston, trustee of Emelia New, a convict, and against these defendants.”
It is contended by defendants in error that as all the estate of the convict is vested in her trustee by virtue of sections 5780 and 5781 of the General Statutes of 1901, and as the trustee alone has power to sue, therefore she is without capacity to sue; and, as the trustee can only sue in his own name, he has no capacity to sue jointly with her. It is also urged that the petition sets up two causes of action — one for the convict and one for the trustee. Finally, it is said, under the fourth, fifth and sixth causes of demurrer, that the petition does not state a cause of action in favor of both plaintiffs, nor a cause of action in favor of Mrs. New, nor one in favor of the trustee. We can dispose of all these grounds of demurrer at once. In the General Statutes of 1901 are the following provisions:
“Sec. 2301. A sentence of confinement and hard labor for a term less than life, suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts, authority and power; and a person sentenced to such confinement for life shall thereafter be deemed civilly dead.”
“Sec. 5776. Whenever any person shall be imprisoned in the penitentiary for a term of less than his natural life, a trustee to take charge of and manage his estate may be appointed by the probate court of the county in which said convict last resided, or if he have no known place of abode, then by the court of the county in which the conviction was had, on the application of any of his relatives, or any relative of his wife, or any creditor.”
“Sec. 5780. Upon taking the oath and filing the bond required by this act, all the estate, property, rights in action and effects of such imprisoned convict shall be vested in such trustee, in trust for the benefit of creditors and others interested therein.”
The power of the trustee to maintain an action of this nature is provided for in the following section:
“Such trustee may sue for and recover in his own name any of the estate, property or effects belonging to and all debts and sums of money due or to become due to such imprisoned convict, and may prosecute and defend all actions commenced by or against such convict.” (Gen. Stat. 1901, § 5781.)
Under these provisions Mrs. New is the same as civilly dead; she has no capacity to sue or be sued. This is so plain from the statutes that we are disposed to consider all the allegations of the petition by which it is sought to make her a party in any way as mere surplusage, and redundant. The petition therefore is the same as though the words “the plaintiff” in the first line were stricken out, and then there appears a simple recital of the facts in much the same manner as though no attempt had been made to make her a party. This requires rather heroic treatment of the petition, but there can be no question as to the right of the trustee to maintain in his own name the cause of action wihich he sets up; and there is likewise-no possible way in which Mrs. New could be made a party, or set up a cause of action in her own name or jointly with the trustee.
The objection that the amended petition is bad because it is not signed by plaintiff Clogston has no force, for the reason that it is signed by the attorneys for plaintiff, which is all that is necessary under the code. (Code, § 107; Gen. Stat. 1901, § 4541.)
The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer.
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The opinion of the court was delivered by
Burch, J.:
The defendant in error moves to dismiss this proceeding for want of a lawful case-made. When the cause came on for trial in the district court a jury were impaneled and sworn, and the plaintiff made a statement of his case and of the evidence by which he expected to sustain it. The defendant moved for judgment in its favor upon the pleadings and the plaintiff’s •statement. The plaintiff then asked and obtained leave to amend his reply. The amendment having been made, the defendant renewed its motion for j udgment, and objected to the introduction of any testimony in the case. The motion and objection were both sustained, and judgment was rendered against the plaintiff for costs. On the same day a motion for a new trial was filed, which was denied some thirty days later. When the motion for a new trial was disposed of an order was made extending the time for making and serving a case-made. If no motion for a new trial was necessary the filiüg of such a motion did not enlarge the time within which an extension could be granted, and jurisdiction to make the order referred to was lost. (Atkins v. Nordyke, 60 Kan. 354, 56 Pac. 533.) Section 306 of the code of civil procedure (Gen. Stat. 1901, § 4754) contains the following provisions:
“A new trial is a reexamination in the same court, of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party.”
From this language it is plain that a motion for a new trial has no function to perform unless an issue of fact has been fully determined and the determination has been embodied in one of three specified forms. Not only must there have been a trial, a judicial examination of the issues of fact, but those issues must have been definitely settled by the verdict of a jury or its equivalent, final and conclusive upon .the facts unless vacated. Until that stage of the proceedings in an action has been reached the condition precedent to the filing of a motion for a new trial does not arise; the single circumstance capable of creating a field for its operation has not occurred; the only subject-matter vulnerable to its attack does not exist.
There is no such thing as a new trial of issues of law. Questions relating to the determination of those issues may be investigated by this court without previous reexamination by the trial court. Whenever there has been a trial and a verdict or report or decision on the facts, only those errors of law occurring at the trial which inhere in and vitiate the conclusion of fact need be called to the attention of the trial court by a motion for a new trial. If the facts have been agreed to, or if issues upon the facts have been eliminated, or if, for any reason, the controversy so shape itself that its determination depends upon a question of law, and the normal end of a trial of an issue of fact — a verdict; if tried by a jury, a report, if tried by a referee, a decision, if tried by the court — is not reached, there is no occasion to use a motion for a new trial. If it be claimed that error of law has been committed so that the proceeding has fallen short of a verdict, report or decision upon the facts, the aggrieved party may ask this court to secure' to him, not a new trial, but a trial in the complete sense of the term; not a reexamination of the issues of fact, but an initial examination of the issues of fact, which shall be continued until it reach the point of actual consummation for such proceedings. There must always be a “former” verdict, report or decision determinative of issues of fact to be vacated before there can be a new trial, or any necessity for a motion for a new trial.
When judgment is rendered on the pleadings there can be no trial of the issues of fact, no verdict, and no motion for a new trial is required. (Land Co. v. Muret, 57 Kan. 192, 45 Pac. 589.) When an objection to the introduction of evidence under the pleadings is sustained there can be no investigation, much less determination, of the issues of fact, and a motion for a new trial is not necessary. (Water-supply Co. v. Dodge City, 55 Kan. 60, 39 Pac. 219.) If in stating his case to the jury a party assert or admit some fact which leads his opponent to move at once for judgment or to object to the introduction of evidence, the question for determination is one of law precisely the same as if the fact had been pleaded. The purpose of the motion is to obviate calling the witnesses and proceeding with the examination of the issues of fact, if any remain, and if the motion be allowed there can be no verdict or decision on the issues of fact. Therefore no motion for a new trial is needed in such cases, and the party aggrieved may proceed at once to take the preliminary steps essential to a review of the decision by this court. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 48-50, 39 Pac. 718.)
It must be conceded that the cases of Gruble v. Ryus, 23 Kan. 195, Norris v. Evans, 39 Kan. 668, 18 Pac. 818, Lott v. K. C. Ft. S. & G. Rld. Co., 42 Kan. 293, 21 Pac. 1070, and others, holding that if a demurrer to evidence be sustained a motion for a new trial is necessary to sustain a proceeding in error here, are opposed in principle to this decision. The opinion in Gruble v. Ryus, supra, takes into consideration nothing except the fact that error of law occurring at the trial is ground for a new trial, it entirely overlooks the provision of the statute deferring a motion for a new trial in all cases until after a verdict, or its equivalent, has been returned. A demurrer to evidence raises nothing but a question of law, and it is impossible for its decision to be a decision of the issues of fact. If sustained, it not only leaves the issues of fact undetermined, but it deprives the party against whose evidence it is directed of any opportunity of having them determined by a verdict, report or decision; and it is only “after” a verdict, report or decision which, unless vacated, settles all controversy with reference to the issues of fact that a motion for the reexamination and settlement anew of those issues is in order. The suggestion in Gruble v. Ryus that an improper exclusion of evidence may have induced the ruling sustaining the demurrer to the evidence does not change the procedure which the statute plainly establishes. Both errors may be presented to this court without a preliminary motion for a new trial in the district court, because the abortive trial did not progress to a verdict, report or decision on the issues of fact.
The cases which follow Gruble v. Ryus as an authority do not discuss the question involved. Although they cannot he overruled in this proceeding, they appear to be contrary to the spirit of the statute and are incompatible with the present views of the court. The motion to dismiss is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In the second volume of Wigmore on Evidence, at page 1345, it is said that the law “assumes the objectivity of external nature; and,.for the purposes of judicial investigation, a thing perceived by the tribunal as existing does exist.” On the following page of the same work it is further stated:
“There is always a question as to the relevancy of a circumstance, or the qualifications of a witness; there can never be a question as to the relevancy of the thing itself, autoptically produced. Add to this that, since either sort of evidence, testimonial or circumstantial, is one step removed from the thing itself to be proved, the production of the thing itself would seem to be the most natural and efficient process of proof. If the question is whether a shoe is fastened by laces or by buttons, the testimony of one who has seen the shoe or the circumstance that a button has fallen from the shoe can at least be no more satisfactory than the inspection of the shoe in court. Accordingly, it might be asserted, a priori, that where the existence or the external quality or condition of a material object are in issue or are relevant to the issue, the inspection of the thing itself, produced before the tribunal, is always proper, provided no specific reason of policy or privilege bears decidedly to the contrary. Such ought to be, and such apparently is, the principle accepted by the courts.” (2 Wig. Ev. § 1151.)
In one of the cases cited in support of this text .it was said:
“There can be no objection to the other finding, to wit, ‘that the plaintiff Nanny is. a white woman.’ The j ury find this fact upon their own knowledge — in other words, by inspection. Was this improper ? . . • . If the plaintiff Nanny had not been before the jury, they must have found their verdict upon the testimony of others, which would have amounted only to a probability. But here, they have the highest evidence, the evidence of their own senses.” (Hook v. Pagee, 2 Munf. [Va.] 379, 384.)
This court has gone far enough to uphold a verdict for damages in a railroad right-of-way case for the expense of constructing and maintaining farm crossings although there was no evidence of the necessity of such crossings except the jury’s view of the land. (K. C. & S. W. Rld. Co. v. Baird, 41 Kan. 69, 21 Pac. 227.) These authorities control the decision of the first question presented.
There is no dispute concerning the manner in which the election board of Americus township disposed of the ballots cast in that precinct as they were counted and after they were counted. There is ample evidence to sustain the finding of the contest court in reference to the manner in which the ballots were kept and exposed after they were returned to the county clerk and before they were brought into court. The members of the contest court needed no witnesses to tell them what they saw when the gunny-sack containing th'e supposed ballots was brought before them, and when it was opened. The record is specific upon the point that they did inspect the sack and its contents at that time. However strange it may seem that the bag should have been tampered with, this court cannot contend with the judges of the contest court in reference to the report of their own senses. Therefore this court cannot declare to be unsupported an unequivocal finding that the receptacle in which the ballots were kept was fastened in a different manner from that in which it was sewed up and sealed by the election board, and that it contained matter which the election board did not place there. Besides, the finding under consideration is supported by the testimony of one of the attorneys for the contestee, and by an inference from the testimony of one of the election officials of Americus township, so that the rule, sometimes invoked, that evidence obtained by inspection must be supplemented by evidence capable of being embodied in a bill of exceptions, has been complied with. (See City of Topeka v. Martineau, 42 Kan. 387, 391, 22 Pac. 419, 5 L. R. A. 775.)
The proceeding in this court is one in error. The facts cannot be retried here. Disputed evidence cannot be weighed at all, and if an attempt were made to do so the most enlightening piece of information the contest court received — that afforded by an inspection of the bag and its contents — is unavailable.
The facts found bring the case clearly within the rule announced by the authorities cited and relied upon by the contest court, and the rejection by that tribunal of the ballots offered by the contestor as primary evidence to establish his claim must be sustained. The evidence was clearly sufficient to warrant- the contest court in adopting the official returns as the next best evidence of the result of the election in Americus township, and its conduct in that respect is approved.
The complaint that the question which was raised concerning the authenticity of the papers produced by the contestor as the ballots from Americus township is not referred to in the pleadings is clearly not ground for reversal. The objection was to the introduction of certain papers not the best evidence. The facts upon which the objection was based did not constitute a defense to the contestor’s claim, and would not have done so even if they had been stated in the answer. His causes of contest still might be true and easily provable, and certainly it is not permissible to plead in an answer facts merely as a foundation upon which to base objections to evidence which it is anticipated the moving party will use at the trial to sustain the allegations of his pleading. An answer subserves other purposes. Its function is limited to the definition of issues.
In this case the issue was the number of lawful ballots that had been cast at an election and the number which each of two candidates had received. The burden of proving that he had a majority rested upon the contestor. He offered in support of his claim certain papers taken from a bag produced by the county clerk. Then the inevitable question arose, What were those papers, and what persuasive effect ought to be conceded to them under the law? If they were genuine ballots they were important; if they were not genuine, or if they had been subjected to fraudulent manipulation, they possessed no evidential value. Therefore a preliminary investigation became essential in order to decide, not who was elected, but if this evidence tendered by the contestor in support of his claim could be admitted. This preliminary question was not different from innumerable others of analogous character constantly arising in the course of trials of questions of fact, and that it had no place in the pleadings, and no effect whatever to enlarge the issues, is too obvious to require further comment.
It is said that the record fails to note a specific objection to the reception in evidence as genuine ballots of the papers produced as such. ^ The parties examined and cross-examined many witnesses and filled many pages of the record with testimony bearing upon the authenticity of the. returns from Americus township in all respects as if some serious question regarding them had arisen. The record bears internal indications that the contestor was fully aware of the point toward which the investigation tended. He introduced evidence which to the mind of this court strongly supported the proposition that the returns were uncorrupted. Even if the contestee interposed no objection the contest court was not obliged.to count spurious returns. The action of. that court was clearly described in its written findings, and accident and surprise are not argued as grounds for a new trial. Therefore the parties are bound in all respects as if the record contained the formal verbal expression which the contestor insists should have been employed.
The objection that the contestee waived all questions relating to the identity and trustworthiness of the ballots from Americus township is not sustainable. If the same rule were applied to the contestor which he invokes against the contestee, the matter could not be considered. The objection of waiver now made was not urged upon the trial court. It is not necessary, however, to rest a decision upon such narrow ground. The contestor makes no attempt to.show that he was injured by the reopening of the case. He asked for no delay, claimed no change in circumstance or modification of condition rendering the inquiry prejudicial, produced witnesses in his own behalf, and participated in the proceeding until he voluntarily rested. Nor is there any element of estoppel in the case. The contestor was not induced to give up any rights on account of what the contestee did. Besides this, the public had an interest in the contest which the rival claimants to the office could not barter away. Arnold and Moor-head could not bind the contest court by an arrangement that one of them should be elected by a canvass of unidentified returns, and the court was not obliged to rest under the imputation that its findings were based upon a count of illegitimate ballots. It had the right to demand the production of further evidence if it saw fit, and to open the proceedings for that purpose. Upon the suggestion to it of suspicious facts it was not only authorized, but was under obligation, to take the steps necessary to ascertain the truth.
■ The propriety of the court’s conduct in opening the case is not to be determined by the result of the hearing, and the contestor really has no substantial complaint to make except that the court found against what he believes to be the weight of the evidence. If his position upon that subject be correct, the record is such that under the established rules of law this court can grant no relief. Therefore, the judgment of the district court is affirfiied.
All the Justices concurring. | [
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Per Curiam:
This is a companion case to Edwards v. Sourbeer, ante, p. 224, growing out of the same state of facts, and controlled by the conclusions there reached. The judgment is therefore reversed, and the same order directed as in that case. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The material facts in the case are not in dispute, but there is a contention as to the relation of J. A. Campbell to the drug business and his lia bility for the contracts made while he was conducting it. These depend mainly upon the interpretation and obligation of the McCormick-Ela contract, under which Campbell continued the business. At an early stage of. the litigation there appears to have been some claim that the contract created a partnership relation, but all parties now agree that McCormick and Ela were not partners, and Campbell therefore does not stand in such relation and cannot be held liable as a partner. He does contend that he was warranted in continuing the business, and that he did so without personal liability because Ela’s contract did not terminate with McCormick’s death.
It will be observed that it was a personal contract, which ended with the life of McCormick. It was expressly stipulated that McCormick should be the sole owner of both goods and fixtures, and, while Ela was given the management of the store, he was not to have any ownership or interest in it. Instead of receiving a fixed salary his compensation was to be regulated by the extent of the business done; that is, he was to receive as compensation all above a fixed amount of the earnings which was to be paid monthly to McCormick. Aside from this there was the specific provision that the contract could be terminated at any time by McCormick, and if McCormick was not bound to continue the relation with Ela it is certain that no obligation rested upon Campbell to do so. It is clear, therefore, that the contract was dissolved by the death of McCormick, and that it had no binding effect on Campbell. (Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370; Smith v. Preston, 170 Ill. 179, 48 N. E. 688; Schultz & Co. v. Johnson’s Ad’r, 5 B. Mon. [Ky.] 497; Dickinson v. Calahan’s Administrators, 19 Pa. St. 227; Bland’s Administrator v. Umstead, 23 Pa. St. 316; 2 Woerner, Am. Law of Adm., 2d ed., § 328.)
When Campbell renewed the contract with Ela for a continuance of the business he made himself individually liable for such obligations as his agent should contract. Upon his appointment as administrator the legal title of the stock of goods vested in him, and it became his duty to sell it and administer the proceeds as the statute provides. He had no authority to continue and carry on the drug business for the estate, and contracts made by him in the conduct of the business bind him personally, and not the estate. A representative expressly authorized by a will to carry on the business of the testator for a time may do so under the direction of the probate court. One so authorized is not bound to incur the hazard, but if he does the contracts made will be his own, and he will be individually bound by them. In volume 2 of the second edition of Woerner on the American Law of Administration, section 328, it is said:
“The executor carrying on the business under the will is personally liable to the persons with whom he deals as such, but they have a fight to indemnify themselves for the payment of debts thereby incurred, and an equitable right arises to the trade creditors to resort to the estate, if their remedy against the executor is unavailable.”
Here there was no will, and the administrator’s only duty with respect to the business was to wind it up. In volume 18 of the Cyclopedia of Law and Procedure, at page 241, it is said:
“The general rule is that neither an executor nor an administrator is justified in placing or leaving assets in trade, for this is a hazardous use to permit of trust moneys; and trading lies outside the scope of administrative functions. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law charges him with all the losses thereby incurred without on the other hand allowing him to receive the benefit of any profits that he may make, the rule being that the persons beneficially interested in the estate may either hold the representative liable for the amount so used, with interest, or at their election take all the profits which the repre sentative has made by such unauthorized use of the funds of the estate.”
(See, also, Willis et al. v. Sharp, 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493; Lucht, Adm’r, v. Behrens, 28 Ohio St. 231, 22 Am. Rep. 378; 1 Williams, Executors, 7th Am. ed., 791; Schouler’s Ex. & Adm., 2d ed., § 325; 11 A. & E. Encycl. of L. 974.)
Ela was not employed by Campbell to wind up the business of the estate, but to carry it on in the same manner and upon the same plan in which it had been conducted during McCormick’s lifetime. It was not carried on in pursuance of an order of the court or cither authority, and hence Campbell took the risk of any loss that might occur, and made himself individually liable for the purchases of goods and other contracts made by his agent.
We find no error in the record, and therefore the. judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
S. C. Strunk is the owner of lot 103 on Main street in the city of Wichita, and E. Mathis and others are the owners of lot 101, which adjoins it on the south. In 1888 the owner of lot 103 built a three-story brick building thereon, which he and his grantees have ever since occupied. In 1905 the owners of lot 101 asserted a claim that one-half of the south wall of the building stood upon their property and therefore belonged to them. Under color of this claim they were about to erect a building of their own upon lot 101, using for its north wall the south wall of the one already constructed. Strunk brought a suit to enjoin them from doing so, and upon a trial was granted an injunction restraining them from making use of the wall until they should have established their right thereto in a proceeding brought for that purpose. The defendants prosecute error from this judgment.
As the matter has been argued in this court some confusion exists as to the exact legal question involved. The defendant in error contends that, even if his wall stands in part upon the lot of his opponents, he has by adverse possession for more than fifteen years acquired a prescriptive right to the land actually occupied. This contention cannot be sustained, for there is nothing in the pleadings or the evidence to suggest that there was ever any intention on the part of an owner of lot 103 to assert a right to encroach upon lot 101, and the mere physical occupancy of a part of it through mistake as to the situation of the boundary-line could not set the statute of limitation in operation. (Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138.)
The defendant in error further claims that the district court could not have tried out in this suit the question of the true location of the boundary because upon that matter the parties were entitled to the deci sion of a jury. This point seems not to be well taken, for a dispute regarding a boundary does not in a proper sense involve the title to real estate (5 Cyc. 951, 952), and is not of that class of controversies for the determination of which a jury trial may be demanded as a matter of right. (Swarz v. Ramala, 63 Kan. 633, 66 Pac. 649.) The vital question in this regard is not whether the court in the injunction suit could have investigated and decided the true position of the boundary-line between the lots, but whether it. was obliged to do so at the instance of the defendants. The petition on its face seemed to invite the consideration and settlement of this matter, but in his opening statement the plaintiff made it clear that such was not his purpose but that he invoked the. aid of the court to prevent the defendants from interfering with his possession of the building until the line should be ascertained in some other proceeding. The answer contained no prayer for any specific affirmative relief,' and was essentially a denial of the averments of the petition. Although it claimed ownership of Pne-half of the wall, it gave the defendants no standing to insist upon the trial of the title thereto. If the allegations of the petition were sufficient to warrant the judgment rendered, the defendants cannot complain that they also authorized a further inquiry into the disputed facts. If necessary, the petition may be regarded as amended so as to conform to the position taken by the counsel for the plaintiff in the opening statement.
The precise question to be determined, therefore, is whether under the circumstances stated the plaintiff, being in the actual possession of the building, was entitled to the aid of a court of equity to protect that possession until the right of the defendants should be established in an action brought by them. This question must be answered in the affirmative. The plaintiff for the time being was in the peaceful occupancy of the building, claiming such occupancy to be rightful. If the defendants desired to challenge that right it was incumbent upon them to assume the burden of instituting some legal proceeding to that end. They could not by forcibly seizing the debatable ground deprive the plaintiff of the advantage his possession gave him and compel him to become the moving party in an action to determine the true boundary of his lot.
The case of Echelkamp v. Schrader, 45 Mo. 505, is very similar to the one at bar. There a double house was supposed to stand so as to be bisected by the dividing line between two adjoining tracts of land having different owners, each of whom occupied one-half of the building. It was discovered that the real boundary lay three feet to one side of the middle of the house, and the owner whose holdings were enlarged by this discovery began to tear down the building upon his side up to the dividing line as newly located. The other owner brought a suit to restrain such interference with his occupancy. It was held that he was entitled to such relief to the same extent to which it was granted in the present case.. The court said:
“It is usual in cases like this, where the title itself comes in controversy, to grant a temporary injunction to await the event of an action at law to be prosecuted by the plaintiff. But here the plaintiff is in actual possession, and has been for many years, and is therefore not in a position, nor has he any occasion,- to sue. The defendant is the proper party to bring an action and test the rights of the respective parties at law. If he neglects to do this in a reasonable time, he will have no just grounds of complaint if the injunction is made perpetual against him in consequence of his own negligence.” (Page 509.)
The right of the actual occupant of real estate to enjoin interference with his possession by one claiming title is affirmed under circumstances more or less analogous to those here presented in the following cases: W. U. Telegraph Co. v. St. J. & W. Ry. Co., 3 Fed. 430; La Chapelle v. Bubb, 69 Fed. 481; Pittsburg, S. & W. B. Co. v. Fiske, 123 Fed. 760, 60 C. C. A. 621; Jones v. Brandon, 60 Miss. 556; Penn. Coal Co. v. Savage, 1 Lack. Leg. N. 213. The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
This proceeding in error arises from a suit to quiet title brought under the provisions of section 594 of the code of civil procedure (Gen. Stat. 1901, § 5081). The answer admitted the allegation of the petition that the defendant claimed an adverse interest in the land, and described such interest as one created by a mortgage given by the plaintiff to secure his unpaid note held by the defendant. Facts alleged in the petitiqn not admitted by the answer were denied, and the prayer was merely that the defendant be allowed to depart from the court without costs being imposed upon him. The reply admitted the execution of the note and mortgage, but asserted that the defendant’s right to recover upon them was barred by the statute of limitations. A demurrer to the reply was overruled, and an objection to the introduction of testimony suffered the same fate. Evidence responsive to the plaintiff’s pleadings was demurred to without avail. A new trial was refused, and judgment was rendered for the plaintiff quieting his title against the defendant’s mortgage, and' order ing that instrument canceled of record. The legal propriety of these proceedings depends, of course, upon the use made of the statute of limitations.
Had the plaintiff been obliged to state the facts constituting his cause of action, he must have shown that the defendant was claiming an interest in the premises under a mortgage given by the plaintiff, that more than five years had elapsed since a cause of action accrued to the defendant upon such mortgage, and that no suit had been brought to enforce it — the legal conclusion being that, because it was barred by the statute of limitations and no longer could support an action, the plaintiff’s otherwise perfect title ought to be quieted against it. Such a petition would be demurrable because the statute of limitations would constitute an indispensable element of the plaintiff’s cause of action. The way to the relief demanded could not.be opened except through its aggressive instrumentality, and if relief were granted it would be upon the basis of a purely negative plea, permissible only for the purpose of resistance — protection from disturbance — defense. (Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844; Burditt v. Burditt, 62 Kan. 576, 64 Pac. 77.)
To avoid a direct assertion of the statute of limitations as a part of his cause of action the plaintiff filed a petition of the blind character which the law allows in this class of cases. He was, however, compelled to allege that the defendant claims an interest in the premises adverse to him, and that such interest is junior and inferior to his own rights. Under such a petition the plaintiff is bound to maintain the alleged superiority of his own title by proof, the question in a suit to quiet title being, Who has the paramount right? (Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862.) If the proof relied on should^ consist of facts showing that a mortgage held by the defendant and constituting the basis of his claim is barred by the statute of limitations, relief must be denied the same as if the facts creating the bar had been pleaded in the petition, since the plaintiff must use it affirmatively and constructively in order to make out his case.
By his answer the defendant did nothing to relieve the plaintiff of his embarrassment. He merely defined the nature and extent of the claim which the petition charged him with making by supplying a brief description of the instruments relating to it. He did this without indicating that any cause of action had ever accrued to him upon such instruments, without averring that they created any lien or are still enforceable, without asking for any affirmative relief in his favor upon them, and without praying that the plaintiff should be defeated on account of them. The answer did nothing more than discover the general character of the defendant’s claim, and the plaintiff was still left with the burden upon him of defeating that claim before judgment could go in his favor. He brought the suit for the purpose of determining (bringing to an end) the defendant’s adverse interest. He was under the necessity of producing facts sufficient to accomplish that purpose. Those furnished by the reply and by the evidence did nothing more than show that the bar of the statuté of limitations might be urged against the defendant if he were the moving party. He was not the moving party, and the demurrers ought to have been sustained.
Section 25 of the code of civil procedure (Gen. Stat. 1901, § 4453) provides that when a right of action is barred by the provisions of any statute of limitations it shall be unavailable either as a cause of action or ground of defense. Broadly speaking, a defense may be any kind of opposition to a plaintiff’s claim. In this sense the defendant’s special denial constituted his defense. Within the purview of the statute cited a defense is something which, after the plaintiff’s right to recover is admitted or proved, the defendant must affirmatively establish, to prevent judgment going against him. It should consist of new matter, and ordinarily should appear in the second subdivision of the answer, according to the form prescribed by section 94 of the code (Gen. Stat. 1901, §4528). Whenever new facts are brought upon the record and urged affirmatively against the .plaintiff, either as a basis of independent relief or to overthrow the plaintiff’s case, so that the position of the parties is reversed and the defendant himself becomes the aggressor, the plaintiff can resist the attack by pleading the bar of the statute of limitations.
In Donald v. Stybr, 65 Kan. 578, 70 Pac. 650, the defendant claimed that he had a superior lien which he sought to establish, and in any event claimed that the plaintiff held a title subject to a right of redemption which the defendant demanded an opportunity to exercise. A plea of the statute was allowed. In Hogaboom v. Flower, 67 Kan. 41, 72 Pac. 547, a defendant mortgagee undertook to foreclose a mortgage against a plaintiff seeking to quiet his title. He thereby exposed his right to the effective opposition of the statute and a judgment of impotency necessarily followed.
• But the law does not permit a mortgagor to quiet title against the holder of his mortgage on the naked ground that the right to foreclose the mortgage has become barred by the statute of limitations.
The judgment of the district court is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
This was an action of forcible entry and detainer. John H. West and D. C. Barnes were the owners of a hotel at Morrill, in Brown county. On March 26, 1903, they executed a bond for a deed to the defendant, by which they agreed to convey the property to him for $1600, payable in monthly payments. The bond was drawn at the request of both parties by a notary, who took the acknowledgment of the grantors. It was left in their possession, to be held for some purpose — plaintiffs claiming there was no delivery; defendant claiming that it was delivered to him and he consented that they should retain it in their possession. The evidence of the defendant shows that at the time the bond was executed the plaintiffs told him he could take possession of the hotel at any time, the sooner the better. Defendant took possession between three and five o’clock on the morning of April 6. Plaintiffs claimed that they had reconsidered the matter after signing the bond, and had notified him that he could not have the place. Upon his refusal to vacate, upon the three days’ statutory notice, this action was brought. The jury returned a verdict for the defendant, and answered several special questions. Plaintiffs’ motion for judgment on these findings was denied, a new trial refused, and they bring the case here for review.
The main contention of the plaintiffs was that the bond for a deed had never been delivered, and that before the defendant made the entry he was notified the trade would not be carried out and that he could not have possession. '
The general verdict was against the plaintiffs, and there was abundant evidence to support it. They insist that they were entitled to a judgment on the special findings. This claim is based upon the findings of the jury, in substance, that on March 20 the former tenant surrendered possession of the hotel to the ’ plaintiffs, and that the plaintiffs gave the statutory three days’ notice before bringing the action. Counsel then say in their brief:
“It stands out bold and clear all through the findings of the jury and the evidence as quoted herein that the defendant knew and was informed by plaintiffs that they did not intend to place him in possession of the premises and that they did not intend to abide by, or fulfil, the alleged contract for a deed; and notwithstanding this defendant entered the property in question, in the absence of the plaintiffs, and between three and five o’clock in the morning of Monday, April 6, 1903, and that he refused to surrender possession on demand, and that he was still in possession at the time of the trial of this action.”
The seventh question was asked and answered as follows :
“Did not D. C. Barnes, one of the plaintiffs herein, tell the defendant, Comeaux, that they were not going to let him have the property before he entered and took possession? Ans. No.”
This is the only finding in reference to this matter, and with the weight of the evidence we have nothing to do in considering a motion for judgment on the special findings. The claim that upon these findings the court should have rendered judgment in favor of the plaintiffs has no merit.
It is urged that the court committed error in admitting the bond for a deed, as the title was not involved. This was an action of forcible entry and detainer, and defendant claimed to have entered lawfully and peaceably by the verbal permission of the owners, who certainly had the right to authorize him to enter. In connection with the alleged verbal permission to enter it was competent to offer in evidence the bond for a deed, as explaining the verbal permission. It was proper for the purpose of showing the character of defendant’s entry as well as the character of his detention. (Conaway v. Gore, 27 Kan. 122, 126, 127; 13 A. & E. Encycl. of L. 754, 756.)
We have examined the instructions and find no error in them. They correctly state the law of forcible entry and detainer as applied to the facts in evidence. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
BURCH, J.:
This proceeding in error grows out of a suit brought to enforce tax liens under chapter 392 of the Laws of 1901 (Gen. Stat. 1901, §§7718-7724), providing a remedy by sale under decree of court. Under an order of the board of county commissioners the county attorney brought a large number of suits to foreclose tax liens, devoting a single suit to each unredeemed tract. A large number of defendants moved for a consolidation, and the refusal of the court to comply with their applications is assigned as error.
The statute relates to “cases” in which real estate remains unredeemed, and the commissioners are given authority to order proceedings against so much of the unredeemed real estate of _the county as they may direct. Separate proceedings therefore are permissible, although not required. In many instances, no doubt, a single suit for the foreclosure of the lien upon a single tract is the only proper method of procedure. In many other cases there should be a joinder, and the board of county commissioners always ought to exercise-great care when ordering proceedings not to multiply costs. Likewise when the matter of consolidating suits already commenced is presented to the district court it should manage the litigation in such ¿ way as to keep costs at a minimum.
One individual may be the owner of a large number. of tracts, all affected by the same tax proceedings. In such a case it would be unjust for the board of county commissioners to require separate suits, and it would be an abuse of discretion in the district court not to consolidate such suits after they had been started, unless some exceptionally important fact should control to the contrary. Other clear cases might be suggested. No very large amount of arbitrary power has been distributed among officers and tribunals of this state vested with .authority in public affairs, and if the ac tion of the board of county commissioners in ordering separate proceedings should result in oppression and palpable wrong the district court should remedy the injury by apportioning costs at the time of the decree.
The board of county commissioners has a discretion only as to the time and manner in which, it will act. When proceedings have been commenced it is merely a party, and the district court has jurisdiction to protect the rights of all concerned. The proceeding is equitable — for the enforcement of a lien — and the lien-holder may be required,to bear whatever unconscionable increase it may make in the costs. In this case the only reason given for the motions to consolidate is that the suits might have been joined. It cannot be said, therefore, that the district court abused its discretion.
The answers pleaded facts showing a fraudulent valuation, whereby the defendants’ taxes were greatly increased, but the defendants were not permitted to introduce evidence in support of this claim. The plaintiff contends that the remedy lay in an application to the board of equalization. The statute requires the court “to investigate and decide what taxes shall have been legally assessed and charged on such land, lot, or piece of ground, and to render judgment therefor, together with the interest and penalty thereon as provided by law.” (Gen. Stat. 1901, § 7720.) This does not mean that mere errors of judgment, mistakes or simple irregularities on the part of any of the officials may be corrected m the foreclosure suit. But an increment to taxes occasioned by fraud in the valuation of the property affected is so far illegal as to be within the'contemplation of the statute. Without the statute the courts have exercised jurisdiction to restrain the collection of taxes which were the result of conduct quite similar to that described in the answers in this case (C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781, 39 Pac. 1039), and the legisla ture evidently intended to give the court authority to eliminate the products of fraud, corruption and gross injustice from the amount of the claimed lien before entering a decree for the sale of the land.
The defendants claim that the liability of their land to sale for taxes under a decree of court is one created by statute, and hence that suit for that purpose must be brought within three years. Under the provisions of section 5 (Gen. Stat. 1901, § 7722) the board of county commissioners acts in a representative capacity. The proceeding is brought for the benefit of the state of Kansas and all of its municipal subdivisions interested in the taxes to be recovered. The proceeds of the foreclosure sale are distributed among the beneficiaries, including the state, ratably in proportion to their several interests. Under the well-known rule statutes of limitation do not apply to the state except by specific reference. The state is certain to be interested in almost every proceeding brought under the act. No discrimination having been made between those cases and others, it is plain the legislature did not intend that suit should be barred in any instance by lapse of time. Other considerations lead to the same interpretation, but it is not necessary to elaborate them.
For the error committed in rejecting evidence under the answers the judgment of the district court is reversed, and a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This action was brought to recover for extra work done on a gas-well. The plaintiff in error, a corporation, had a contract with the defendants in error by which the latter were to put down six wells at Humboldt, Kan. Five of the wells were completed. When the sixth well was at the depth where oil-sand was expected á stratum thereof was found, but the quantity and quality were not satisfactory. Under the direction of the secretary of the plaintiff in error the extra work was done which is involved in this case. It does not appear that the secretary was specially authorized to act for the company in this matter, and for this reason the company denies liability.
At a trial without a jury, in the district court of Allen county, the defendants in error recovered judgment against the company, and it brings the case here for review. No special findings of fact were filed by the court, and the record does not show upon what theory the judgment was based.
It is insisted that the secretary of a corporation cannot bind the company by contracts made for it, unless specially authorized so to do. In this contention we fully agree with the plaintiff in error. It is alleged in the petition, however, that the secretary was also manager and agent of the corporation, so far as this well was concerned, and there is evidence in the case tending to sustain this averment. If the evidence in the case satisfied the court that the secretary acted for the company in this matter, with its knowledge and consent and under circumstances which justified the defendants in error in recognizing him as the authorized representative of the company, or that he was expressly authorized to manage and superintend the well in question, the judgment was proper. The general presumption, which always obtains in support of the judgments of courts having general jurisdiction, requires us to assume that the court so found, and placed its judgment upon such finding.
There is evidence to support such a finding, and as the case comes to us we are unable to say that the evidence is insufficient. The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The only paper filed in this court is a document certified by the clerk of the court to be a copy of the information, warrant, and bill of exceptions. As no transcript of the record in the district court is presented this court has no jurisdiction, and the case is dismissed. | [
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The opinion of the court was delivered by
Graves, J.:
This suit was brought in the district court of Trego county to cancel a contract for the sale-of real estate which the plaintiff had executed to the-defendants, who had made default in payments due-thereon.
The contract sought to be canceled was executed June 13, 1903. By it the grantor agreed to convey 320 acres of land, upon payment by the grantees of $4505.10, as stipulated. Payment was to be made in instalments. Time was by express terms made of the essence of the contract. Under a prior agreement of sale the grantees had been in possession of the land one year, and had paid to the grantor $500. The balance remaining due on the sale of the land at the date of the contract sought herein to be canceled was the aggregate sum therein stated, $4505.10. Of this amount the grantees had paid $822.03. On May 1, 1904, an instalment of $133 became due; it was not paid; the grantor declared the contract at an end and demanded possession of the land, which being refused he brought this suit. Upon a' trial a decree was granted in favor of the plaintiff, and the defendants now ask that such decree be reversed.
By the terms of this decree the grantor retains $1322.03 paid on the purchase-price, and also recovers the possession of the land. The grantees have been in possession two years. Upon these facts the plaintiffs in error claim: (1) That the defendant in error is not entitled to a forfeiture, and (2) if he was entitled thereto, it has been waived.
This court, in the case of National Land Co. v. Perry, 23 Kan. 140, held that where parties to a contract for the sale of real estate make time of the essence of the contract a forfeiture will be upheld as stipulated, unless under the circumstances of the case it would be grossly inequitable. At the same time courts do not favor, but on the contrary they abhor, forfeitures, and will resort to very liberal rules of construction to avoid them. (English v. Williamson, 34 Kan. 212, 216, 8 Pac. 214; Hartley v. Costa, 40 Kan. 552, 559, 20 Pac. 208; Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718; Forest City Ins. Co. v. Hardesty, 182 Ill. 39, 55 N. E. 139, 74 Am. St. Rep. 161; Grigg v. Landis, 21 N. J. Eq. 494; Robinson v. Cheney, 17 Neb. 673, 24 N. W. 378.) In the case last cited, in speaking of a contract where time was made of the essence of the agreement, and provision was made for a forfeiture in case of default, the court said:
“A court of equity will not declare a forfeiture unless compelled to do so. It violates every principle of justice to take the property of one man and give it to another without compensation upon a simple failure to pay at the, day, where there had not been gross laches.” (Page 680.)
It seems to be a well-established rule in such cases that the party claiming the benefit of a forfeiture must show himself to be strictly within the terms of the instrument which confers that right. He must act promptly in asserting his claim, and his acts relating thereto must be positive, unequivocal, and inconsistent with the continuance of the contract. (Faw et al. v. Whittington, 72 N. C. 321; 29 A. & E. Encycl. of L. 677, 681; Boone v. Drake, 109 N. C. 79, 13 S. E. 724; Hipwell v. Knight, 1 Y. & C. Ex. [Eng.] 401.) In the case last cited Baron Alderson said:
“The result of the cases on this subject seems undoubtedly to be that, slight circumstances are sufficient in a court of equity to prevent a party from taking the benefit of such a stipulation; and that whenever a party has done any act inconsistent with the supposition that he continues to hold his opponent strictly to this part of his agreement, he is to be taken to have waived it altogether.” (Page 418.)
In addition to the facts before stated it appears that all payments had been made according to the contract prior to May 1, 1904. At that time interest to the amount of $133 became due. A short time before that date — on April 28 or 29 — defendant. C. E. Cue informed the plaintiff that he would be unable to pay promptly, asked for further time, and offered additional security for the delay. The plaintiff declined, stating that he needed and wanted the money when due.
On Monday, May 2, Cue saw the plaintiff and again reported his inability to' pay. They talked over the situation; plaintiff claimed that by the failure to pay the contract was forfeited, and Cue admitted such to be the case. The plaintiff stated to Cue that he wanted the money or the property. Cue then said he thought he could raise the money by Thursday or Friday of that week, and would be back Saturday with the money or the papers. At this time the plaintiff did not expressly consent to any further time, but he then intended to wait until Saturday and take the money if it should be offered at that time. Cue failed to come back on Saturday, and on the following Monday (May 9) the plaintiff went to the home of the defendants, who resided on the land in controversy. Upon arrival he said to the defendant C. E. Cue: “You did not come down Saturday as you agreed.” Cue replied: “No; I changed my mind.” Plaintiff then demanded possession of the land.
This suit was commenced May 14, 1904. On May 24 plaintiff filed an amended petition, in which for the first time he tendered back the unpaid notes given for the land; the defendants tendered the full amount then due to the plaintiff, which was refused, and the amount was deposited with the clerk, where it has since remained, for the plaintiff. During the trial, in October, 1904, the defendants tendered the further sum of $530, to apply upon the $614.54 which would become due November 1, 1904, and offered in open court to let judgment go against them at that time if the remainder of the amount which would then become due were not paid. The offer was refused.
We find that the plaintiff by his conduct at and about May 2, 1904, when the forfeiture is claimed to have occurred, waived his right thereto. When ,Cue informed the plaintiff that he was unable to pay and wanted more time, stating that he thought he could possibly raise the money by Thursday or Friday, and if he could would return with it on Saturday, the plaintiff, if then determined to insist upon the forfeiture, ought to have said so in positive and unequivocal terms. He ought to have informed Cue that he need not make any effort to raise money, as the time had passed and the money would not be received on Saturday if tendered. On the contrary, he carefully refrained from giving express consent to further time; but in his own mind did consent, and decided to wait until Saturday and then take the money if offered, and if not to take back the unexpressed consent and waiver formed in his own mind and insist upon the forfeiture. He permitted Cue to engage in another effort to raise the money in the belief that, if secured, the plaintiff would accept it. This attempt to hold on to the forfeiture, while at the same time seeming to waive it, does not show such candor and fairness as the circumstances demanded. He ought to be held to this waiver.
This makes it unnecessary to consider the question whether the amount paid by the defendant was so great as to make a forfeiture grossly inequitable or not. It is apparent, however, that the defendants are ready, able and willing to carry out their contract, and it would be a loss and hardship to them if deprived of the opportunity.
The judgment of the lower court is reversed, with direction to enter judgment for the defendants for costs.
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The opinion of the court was delivered by
Porter, J.:
In this case there is a motion to dismiss. The judgment from which this proceeding in error arises was rendered December 31, 1904. A motion for a new trial was denied on the same day, and an order entered extending the time sixty days to make and serve a case-made, with ten days thereafter for the suggestion of amendments, the case to be settled upon five days’ notice. The case was served on the 24th day of February, 1905, and settled and signed March 22, 1905. The term of the Honorable Charles A. Smart, the judge who tried the case, expired January 9, 1905. He succeeded to the office and his second term began on the same day. The sixty days’ extension expired March 1, 1905, and the ten days to suggest amendments, March 11, 1905. It will be observed that no definite time was fixed in the order of extension within which the case should be settled, but it was to be settled on five days’ notice, which meant at any time within the year, upon such notice. In Mowery v. Bank, 67 Kan. 128, 72 Pac. 539, it was said:
“When no time is fixed for the settlement of a case for this court at the date of the expiration of the regular term of office of the trial judge who tried the case, such trial judge does not have jurisdiction thereafter to settle the case, although by appointment he becomes his own successor in office.” (Syllabus.)
(See, also, Butler v. Scott, 68 Kan. 512, 75 Pac. 496; Insurance Co. v. Harn, 69 Kan. 249, 76 Pac. 822; Zinc Co. v. Dwight, 69 Kan. 852, 76 Pac. 1130; Robbins v. Mackie, 70 Kan. 646, 79 Pac. 170; St. L. & S. F. Rly. Co. v. Corser, 31 Kan. 705, 3 Pac. 569; K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 Pac. 331.)
It is insisted, however, that since these decisions were made the legislature has provided for cases falling within the facts here involved by section 4 of chapter 320, Laws of 1905. The part of the section referred to reads as follows:
“Provided, however, that the judge of the district court or judge pro tern, before whom a case has been or shall be tried shall have power to sign and settle a case-made within one year from the making of any final order or rendering any final judgment, if the same has been legally served upon the adverse party, notwithstanding that the term of office of any such judge or judge pro tem. may have expired after the rendition of such judgment or making such order and before such case-made may have been settled, provided such case-made has been served within the time previously fixed by such judge or judge pro tem. of such court.”
The main question involved in the motion to dismiss is, Does the law of 1905 operate retrospectively, so that a trial judge whose term of office expired prior to the passage of the act is given power to settle a case-made properly served within the time fixed by him in the order of extension, even where no definite time was fixed in the order of extension in which the case should be settled? Neither side has argued this question. Plaintiffs in error assume that the act of 1905 covers the case, and suggest that defendant in error must have overlooked this provision.
In some of the states the constitution provides that no law shall be given a retrospective operation. Our constitution is silent upon the subject. In the absence of any constitutional inhibition the legislature has the power to enact retrospective statutes in certain cases, provided such laws do not interfere with .vested rights. Whether vested rights are affected by such laws it is the province of the courts to determine. (Potter’s Dwarris, Stat. & Const. 166.) The rule is that they are not to be allowed a retroactive effect unless such intention upon the part of the legislature is so clearly expressed that no other construction can be fairly given. (Rogers v. Inhabitants of Greenbush, 58 Me. 395, 4 Am. Rep. 292.) Generally, a statute prescribes a rule for future action. (Prouty v. Stover, Lieut.-governor, 11 Kan. 235.)
In the case of Lawrence v. City of Louisville, 96 Ky. 595, 29 S. W. 450, 49 Am. St. Rep. 309, 27 L. R. A. 560, it was said:
“While retrospective legislation may, in some cases, be upheld, the words of a statute ought not to have a retrospective operation unless they are so clear and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.” (Syllabus.)
“The general rule is that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of action or suits, and especially vested rights, unless the intention that it shall so operate is expressly declared, and courts will apply new statutes only to future cases, unless there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. And although the words of the statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.” (Potter’s Dwarris, Stat. & Const. 162, note.)
To the same effect see Gerry v. Inhabitants of Stoneham, 83 Mass. 319; Garfield v. Bemis, 84 Mass. 445; Loring and another v. City of Boston, 78 Mass. 209; John O. Kinsman v. City of Cambridge, 121 Mass. 558; Atkinson v. Dunlap, 50 Me. 111; Bryant v. Merrill, 55 Me. 515; Bauer Grocer Co. v. Zelle, 172 Ill. 407, 50 N. E. 238; Dobbins et al. v. First Nat. Bank, 112 Ill. 553; Rock Island Nat. Bank v. Thompson, 173 Ill. 593, 50 N. E. 1089, 64 Am. St. Rep. 137. In the last-named case it was said, at page 607:
“Retrospective laws are not looked upon with favor. Statutes are usually construed as operating on cases which come into existence after the statutes are passed, unless- a retrospective effect is clearly intended. (Endlich, Interp. of Stat., §§ 271, 273, 275, 276.)”
The authorities are collated in section 642 of volume 2 of the second edition of Lewis’s Sutherland on Statutory Construction.
Keeping in mind the rule that a statute must be given a prospective instead of retrospective operation, unless the legislative intention to the contrary so clearly and imperatively appears that no other meaning can be attached to the terms, or unless the intention of the legislature cannot be otherwise satisfied, how can it be argued that this statute should be given a retrospective effect? Is it because the words “has been” are employed? These words apply to different classes of cases: (1) To a case to be tried in the future, of which it may be said at a future time that it “has been” tried; (2) to a case which at the time the act took effect had been tried, and of which the trial judge still had jurisdiction to settle; and (3) to a case which when the act took effect had been tried, but of which the trial judge, had lost all jurisdiction. Obviously, the first and second classes are within the purview of the act; but the third,, which is the class in which this case belongs, is not, unless we give to the statute a retroactive operation— which courts are loath to do — and also give to it sufficient force to breathe life into a dead thing. Moreover, if it were the intention to have it apply only to cases arising in the future, the very language used seems most appropriate. It must be construed as if it read: “At any time in the future; provided, however, that the judge of the district court or judge pro tern, before whom a case has been or shall be tried,” etc. If we do not lose sight of the rule that the words must be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed, we readily see that this statute cannot be given a retroactive operation without violence to this rule of construction.
In Dyer v. Belfast, 88 Me. 140, 33 Atl. 790, an act which provided that when any person aggrieved by the estimate of damages for land taken for a public way honestly intended to appeal therefrom, but by accident or mistake omitted to take his appeal within the time allowed by the law, he might at any time within six months have an appeal by applying to any judge of the supreme court, was held hot to apply to a case where the right of appeal had been fully barred before its enactment. It was held in Loring and another v. City of Boston, 78 Mass. 209, that a statute did not revive a claim for damages for land taken to widen a street, which claim was barred before the act was passed. In Kinsman v. City of Cambridge, 121 Mass. 558, it was held that a statute extending the time for a landowner to file a petition for a jury to assess damages for land taken for a street did not revive a cause of action barred by the statute of limitations before the passage of the act. A statute extending the time for filing a petition for review was held, in Atkinson v. Dunlap, 50 Me. 111, to be prospective in its operation. To the same effect see Pignaz v. Burnett, 119 Cal. 157, 51 Pac. 48; Albert C. Sammis v. James Bennett, 32 Fla. 458, 14 South. 90, 22 L. R. A. 48.
In the case at bar the difficulty lies in the fact that under the previous rulings of this court the jurisdiction of the trial judge to settle the case ended March 11, 1905. The act of 1905 took effect March 21, 1905. Whatever may be said of the power of the legislature to enact retrospective laws, an act will not be given a retrospective operation so as to infuse life into proceedings which have lapsed'and become absolutely void for want of jurisdiction unless such was clearly the intention of the legislature. If the intention of the legislature had been to have this statute affect cases where the jurisdiction of the judge who tried the case had been lost, apt words would have been employed to indicate such purpose.
Counsel in a similar case which is pending have called our attention to Johnson v. Higgins, 53 Conn. 236, 1 Atl. 616, as authority for holding that the legislature has the power to confer upon á former judge who has tried a cause authority to perform judicial powers necessary to permit a litigant to perfect an appeal. In that case a judge resigned his office March 7. On March 31 an act was passed which authorized a former judge to perform the acts in question. Subsequently he did so. The court upheld the constitutionality of the act. If the legislature has authority thus to confer upon a person who has been judge, but whose term of office has expired, the judicial power to perform the duties and functions of a judge, the question might arise, Why may not the legislature confer the same powers upon one who has never occupied that office, or upon any person they may deem suitable? Without deciding the extent of the power of the legislature to' confer such authority upon one who is no longer a judicial officer, the fact which controls us is that the act itself does not appear to have been intended to have any such purpose.
We have carefully considered the effect of the act of 1905, realizing that, aside from the importance to the parties and the public of the case at bar on its merits, there are pending other cases involving property rights in .which the jurisdiction of this court depends upon the construction placed upon this act. We are of the opinion that, inasmuch as the trial judge had lost all jurisdiction to settle the case before the act of 1905 took effect, that act was powerless to infuse life into the proceedings, or confer upon him authority to act further. The act cannot be given a retrospective operation. Its language nowhere indicates such an intention upon the part of the legislature. The motion to dismiss is allowed.
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The opinion of. the court was delivered by
Mason, J.:
The statute for the government of cities of the first class as it existed prior to 1905 authorized all such cities to issue bonds to cover the expense of improving streets. In 1905 an act was passed providing among other things that in cities of the first class having a population of over 50,000 such expenses should be met by the issuance of special tax bills against the property chargeable with the cost of such improvements. (Laws 1905, ch. 112.) After this- act took effect the Parker-Washington Company, under a contract with the city, constructed some pavement in Kansas City, Kan. By the terms of the act payment for this work should be made by tax bills, but the company now brings this proceeding seeking by mandamus to compel the city to make payment by bonds, under the provisions of the old law, upon the theory that the act of 1905 is void because it violates these several provisions of the state constitution: (1) That relating to the method of amending existing laws; (2) that forbidding the conferring of corporate powers by special act; and (3) that requiring laws of a general nature to have a uniform operation throughout the state.
The portion of section 16 of article 2 of the constitution invoked in support of the first proposition reads: “No law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” (Gen. Stat. 1901, § 134.)
It is argued that the act of 1905 amends various specific sections of the statute relating to cities of the first class, the language of which is closely followed in the corresponding sections of the new act, only such alterations being made as are necessary to accomplish the object already indicated — a change in the method •of paying for public improvements in cities having a population of over 50,000; that the new act contains no reference to the old one, does not accomplish its repeal, and is therefore within the letter and spirit of the prohibition quoted. It is needless at this time to go into a discussion of the purpose and effect of the. provision of the constitution referred to. That it has no application to amendments by implication is well settled. (Cooley, Const. Lim., 6th ed., 182; 26 A. & E. Encycl. of L. 708.) The act of 1905 in a sense amends various sections of the earlier act, but it does so by implication; it does not cover their entire subject-matter, and hence does not supersede them, but merely restricts the field of their operation; it is a.complete and in a sense an independent enactment, which requires no reference to any other statute to make its meaning clear. The objection made to it in this respect is therefore not well taken.
Section 1 of article 12 of the constitution provides that “the legislature shall pass no special act conferring corporate powers” (Gen. Stat. 1901, §210), and section 17 of article 2 that “all laws of a general nature shall have a uniform operation throughout the ■state.” (Gen. Stat. 1901, § 135.) Whether the act in ■question is to be regarded as special and whether its ■operation is uniform throughout the state depend upon whether population affords a fair basis for the classification of cities with reference to the matters to which it relates, and whether the result it accomplishes is in fact a real classification upon that basis, and not a designation of a single city to which alone it shall apply, under the guise of such classification.
“In order to determine whether or not a given law is general, the purpose of the act and the objects on which it is intended to operate must be considered. If these objects are distinguished from others by characteristics evincing a- peculiar relation to the legislative purpose, and showing the legislation to be reasonably appropriate to the former and inappropriate to the latter, the objects will be considered, as respects such legislation, to be a class by themselves, and legislation affecting such a class to be general. But if the characteristics used to distinguish the objects to which the legislation applies from others be not germane to the legislative purpose, or do not indicate some reasonable appropriateness in its application, or if objects with similar characteristics and like relation to the legislative purpose have been excluded from the operation of the law, then the classification is incomplete and faulty, and the legislation not general, but local and special.” (26 A. & E. Encycl. of L: 683.) .
That for many purposes the classification of cities according to population is a natural and proper one is clear, and we think has never been doubted. The statutes providing for municipal government in this state have always proceeded upon the theory that a system adapted to a small town might not be suitable for a larger one. The theory has nqt been attacked, and is not open to attack. This general principle reaches.the present case. Merely for illustration it may be suggested that the legislature was warranted in believing that in a large city there would be no difficulty in procuring all needed street improvements by issuing to the contractors non-negotiable. obligations running directly against the property specially benefited, while in a smaller city the same result could only be assured by pledging the credit of the whole municipality to the final payment of the cost by the use of negotiable bond's.
Granting the reasonableness of the principle of classification, its application rests with the legislature and is not subject to judicial review, although an extreme case could perhaps be imagined in which a court would be justified in holding that an ostensible classi fication upon the basis of population was only color-able, its real purpose and effect being to limit the application of an act to a single community or group of communities, not distinguishable from others by any differences having relation to the subject-matter involved. Counsel for plaintiff contends that the present instance is such a case. Judicial notice is of course taken that Kansas City is now the only city in Kansas having over 50,000 inhabitants. This is not determinative of the matter, however, for it is not only conceivable and probable but practically inevitable that other cities in the state will in time attain that size. As was said in The State v. Downs, 60 Kan. 788, 57 Pac. 962: .
“An act general in its provisions, but which can presently apply to only one city on account of there being but one of requisite population or other qualification, but which was designed to, and can in all substantial particulars, apply to other cities as they become possessed of. the requisite population or other qualification, cannot be regarded as a special act.” (Page 793.)
In the plaintiff’s brief much stress is laid upon the case of State, ex rel. Knisely et al., v. Jones et al., 66 Ohio St. 453, 64 N. E. 424, 90 Am. St. Rep. 592, where the court set. aside an act purporting to provide a general scheme for the government of all cities in the state by dividing them into a number of classes and subclasses or grades. The ground of the decision is clearly shown by this language of the opinion:
“In view of the trivial differences in population, and of the nature of the powers conferred, it appears . . . that the present classification cannot be regarded as based upon differences in population, or upon any other real or supposed differencés in local requirements. Its real basis is found in the differing views or interests of those who promote legislation for the different municipalities of the state.” (Page 487.)
The full force of this statement can be appreciated only from a consideration of the precise situation by which the supreme court of Ohio was confronted. The legislature had originally divided all municipal corporations, according to population, into cities of the first class, cities of the second class, incorporated villages, and incorporated villages for special purposes. Separate rules were made for the government of each kind of organization, but as each municipality attained a size entitling it to a place in the next higher class it was advanced thereto by virtue of the statute. Later, subdivisions were made of these primary classes by means of which single cities became in fact vested for the time being with peculiar powers, and were governed by what were' in fact charters for local government differing from those of any other city in the state. The court upon the view that this legislation fell within the rule already stated “reluctantly” upheld its validity.
Gradually the tendency toward the localization of municipal law increased, until at the time of the decision under consideration cities of the first class were divided into three grades, and cities of the second class into eight grades, and as a result each one of the eleven principal cities of the state was governed according to a plan different from that of any other. Moreover, during the time that Cincinnati was the most populous city of the commonwealth it was governed by a statute which in operation applied to it alone- and was sustainable only on the theory that the legislature believed such a statute to be required by, or at least to be peculiarly suitable to, a city of that size. But when the growth of Cleveland placed it in advance of Cincinnati in the matter of population, instead of its becoming endowed with those powers which had been determined to be appropriate the old plan for its government was perpetuated by the device of shifting the classification. This situation certainly forced upon the court the duty of seriously considering the difficult question of when, if ever, the limit of legislative discretion is reached— when, if ever, it may be judicially determined that a statute bears upon its face, or discloses in the light of all the information of which a court may avail itself, proof of the intention of the legislature, under color of the exercise of an undoubted right, to evade and in effect to nullify an express mandate of the constitution. But this was not all. Hitherto the pretext had been maintained that the classification was real — that as each city advanced in population and passed the boundary marked by the general law it would in virtue of that growth, either ipso facto, or by means' of machinery provided by the law, pass into the next higher grade and become amenable to the statute relating thereto. But the statute which was directly involved in that case, with the obvious purpose of preventing such a result, at least in respect to two cities, created a new grade — a fourth grade of the first, class, of which the court said:
“We are not aware that there is now in the state a city of the fourth grade of the first class, but the class is provided to the end that it may receive any city of the second class which may be advanced, and that such city may thus be excepted from the operation of these acts relating to Cleveland and Toledo, which are, respectively, cities of the second and third grade, of the first class.” (66 Ohio St. 453, 486.)
The conclusion of the court is thus expressed:
“The body of legislation relating to this subject shows the legislative intent to substitute isolation for classification, so that all the municipalities of the state which are large enough to attract attention shall be denied the protection intended to be afforded by this section of the constitution. The provisions of the section could not be more clear or imperative, and relief from the present confusion of municipal acts and the burdens which they impose would not be afforded by its amendment. Since we cannot admit that legislative power is in its nature illimitable, we must conclude that this provision of the paramount law annuls the acts relating to Cleveland and Toledo.” (Page 487.)
We see no just ground of criticism of this Ohio decision. We have stated the circumstances out of which it grew in some detail, for the purpose of showing the extreme length to which specialization of the law was permitted to be carried under the form of general enactments before the courts felt justified in interfering, and also of showing the wide difference between the facts of that case and of this. By the Kansas act under discussion the legislature in effect created a new class of cities. In doing so it did not approach near enough to the line which separates the legitimate exercise of legislative discretion from the illegitimate employment of a guileful device to accomplish an unconstitutional end by indirection to make it at all difficult for the court to sustain its action. The act is proof also against this attack.
A further objection is incidentally made to the statute because of a provision that all persons contracting with the city to make street improvements shall be required to secure the faithful performance of their contracts by the giving of bonds executed by some surety company authorized to do business in the state. It is argued that this tends to the creation of a monopoly in the business of making such bonds. The writing of such bonds is a form of insurance. There are reaspns why a bond given by a corporation over which the state exercises a certain cpntrol might be deemed preferable to any executed only by individuals. It would be competent for the legislature to authorize the municipality in its discretion to exact such a bond — that is, one signed by a surety company; and it is equally competent for it to exercise its own judgment in the matter, in the first instance and require that character of security.
The writ is denied.
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The opinion of the court was delivered by
Porter, J.:
Defendant in error contends that by filing a general denial, and failing to plead the statute of frauds, plaintiff in error waived any defense under the statute. The petition alleged a contract to convey lands, but was silent as to whether the contract was in writing or parol. Plaintiff offered evidence of a parol contract, and the case appears to have been tried upon the theory that the statute of frauds was a defense, except as certain facts relied upon by plaintiff served to avoid the statute. It was said in Wiswell v. Tefft et al., 5 Kan. 263, that the statute of frauds can be relied upon as a defense under a general denial. Without reviewing the authorities upon that question, or considering the claim of defendant in error that the statement in Wiswell v. Tefft et al. is dictum, it is sufficient to say that the objection in this case to the statute of frauds as a defense is raised for the first time in this court, and for that reason cannot be regarded with favor.
The principles governing the case are the same as though this were a suit for specific performance of an oral agreement to convey the land. Part performance is relied upon to take the contract out of the statute. It is elementary that the acts of part performance must be such that it would be a fraud upon the party seeking the decree for the other to refuse to perform. When a party has so altered his situation upon the faith, of an oral promise that a refusal to convey would result not merely in damages, not simply in the denial of what he was to receive, but also in inflicting upon him an injustice which the courts consider a constructive fraud, equity then lifts the oral contract out of the statute and compels a performance. (Browne, Stat. of Frauds, 5th ed., §§ 447, 448, 457.) It is likewise elementary that the acts of part performance relied upon must have been done in pursuance of the contract, and must be clearly, definitely and satisfactorily shown. (Lewis v. North, 62 Neb. 552, 87 N. W. 312, 314; Brown v. Hoag, 35 Minn. 373, 376, 29 N. W. 135; Browne, Stat. of Frauds, 5th ed., § 457.) It is also said that the acts of part performance are not confined to the doing of what the contract stipulates, although they must be related to, and connected with, the contract.
The acts which plaintiff claims amounted to part performance are: (1) The payment of the purchase-price, or the performance of the service contracted for, and (2) the entry into possession of the land. It is well settled that payment of the purchase-price alone is not sufficient part performance. (Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708; Barnes v. Boston & Maine Railroad, 130 Mass. 388, 390; Edwards v. Fry, 9 Kan. 417.) The only question we need consider is whether the court erred in instructing the jury that plaintiff was entitled to recover if he proved that the contract was entered into and the services were performed by him, so far as he was permitted to perform them, and that “under said contract he was placed in possession of the real estate.”
A distinction has been made by many of the authorities between the acts which are considered sufficient part performance in case of a parol gift of land and a parol agreement to convey, which distinction is without any substantial foundation. In the one case possession without valuable and lasting improvements or some other special facts is held not sufficient; in the other, it is said possession alone is all that is required.
“A parol gift of land, even from father to son, will not be enforced unless followed by possession and by valuable improvements made by the donee, or unless there are some other special facts which render the failure to complete the donation peculiarly inequitable and unjust.” (Pom. Cont. § 130.)
The same author says (section 133) “possession of the land is a sufficient act in case of an agreement; .possession and improvements in case of a mere parol promise or gift.” This distinction has been repudiated by a number of courts, for the very sound reason that in both classes of cases courts afford relief and compel specific performance upon exactly the samé equitable considerations. Aside from the contract in the one case and the gift in the other, the acts of the parties must have resulted in such a change in the situation or condition of the party seeking to compel performance that it would be unjust and inequitable to deny him relief. The enforcement is not based upon the contract or the gift. In Galbraith v. Galbraith, 5 Kan. 402, it was said:
“So far, we have considered the case as one arising out of pure contract as between strangers, because the petition alleges a direct and positive contract, but if it be considered as a gift without consideration, the conclusion will not be changed. The fundamental principle upon which courts obtain jurisdiction remains the same. It would as much be a hardship and fraud oil the donee to be put in possession, to be induced to make large improvements for the melioration of the estate, and then for the donor to refuse to execute the gift, as it would be in the case of a purchaser. . . . It is admitted, however, that on this point the decisions have not been as uniform and harmonious as in the case of a purchase for a valuable consideration, though the general current of authorities, as well as the reasons given, apply equally as well to a .gift as to a purchase. The same rule holds in the one as in the other. The possession and improvements must be under the gift and induced by it, or made in consequence of it.” (Pages 410, 411.)
In the same case the court, referring to the diversity of- opinion upon the sufficiency of possession alone, used the following language:
“It seems to be almost universally held that the delivéry of possession and the making of valuable improvements will be such part performance as will entitle the vendee to specific execution of the contract. While there is some diversity of views as .to whether the mere letting into possession alone, or possession and payment of the consideration money, in whole or in part, or some other acts, will constitute such part performance, there seems to be none where the possession is taken under the contract, in pursuance thereof, and continued, accompanied by lasting and valuable improvements of the premises.” (Page 409.)
In stating the general rule in reference to the effect of part performance upon a parol gift of land the language frequently adopted by this court and others seems to ignore any distinction between parol gifts and parol agreements to convey. In Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56, it was said:
“Equity protects and enforces a parol gift equally with a parol contract of the sale of land where possession is taken in -pursuance of the gift, improvements made, and the donee changes his situation or condition upon the faith of the. gift.” (Syllabus.)
The language used by the supreme. court of the United States in Neale v. Neales, 76 U. S. 1, 19 L. Ed. 590, is the same in substance, but it was said in Ed wards v. Fry, 9 Kan. 417, 423, that delivery of possession will take a case out of the statute, and the weight of authority supports this contention. If the question were a new one we should incline to hold that bare possession is not sufficient; and there is certainly no substantial reason for requiring valuable improvements in a case of a parol gift which does not apply with equal force to the case of a parol agreement to convey.
All the authorities agree, however, that when possession is relied upon as part performance it must be notorious, exclusive, and obviously in pursuance of the contract. (Browne, Stat. of Frauds, 5th ed., §§472-476; Baldwin v. Squier, 31 Kan. 283, 284, 1 Pac. 591.) It appears without contradiction that at the time the agreement is alleged to have been made in this case the old man was living on this land. The son brought his family there and moved into the house with his father, and this arrangement continued for three years. The son then built a house for himself on his adjoining land and removed there with his family. For some time afterward the old man continued to occupy his own house. The son claims that he farmed the eighty acres in connéction with his own land, but the character of his possession under the conceded facts could hardly be said to have been exclusive. At least, under all the circumstances in evidence and in view of the claim of defendant that he never surrendered the possession to his- son, but kept it himself and rented the land to others, the instruction with reference to the character of the possession which it was necessary for plaintiff to establish in order to recover was very meager. The jury were instructed that it was sufficient if plaintiff proved that “under said contract he was placed in possession of the real estate.” It is said in Browne on the Statute of Frauds, fifth edition, section 474:
“Secondly, it must be exclusive. Where the purchaser moves in upon the premises and remains there in company with the previous occupant, not as the ostensible and exclusive proprietor, or where the metes and bounds of the land alleged to be purchased are not fixed and recognized, and the purchaser occupies it in common with adjacent land of his own, it has been held that possession, as an act of part performance, was not sufficiently made out.”
The authorities also hold that the possession must be continuous. The instruction entirely ignores this element of possession, and, literally construed, would authorize a verdict for plaintiff if possession under the contract was delivered and afterward abandoned. We think that where possession is relied upon in a case of this kind the character of the possession is of the greatest importance; it must be open, notorious, exclusive, and continuous, and, as was said in Baldwin v. Squier, 31 Kan. 283, 284, obviously in pursuance of the contract.
It is also held that before specific performance of a parol agreement to convey lands will be enforced the facts relied upon must be established by clear and satisfactory proof. This rule rests upon solid grounds. The evidence in this case is conflicting. The jury found upon the issues in favor of the plaintiff, and, while we cannot consider the weight of the evidence with a view of reversing or affirming their verdict, it is proper to say that the evidence relied upon to establish the contract and the performance of it is not, in our opinion, clear or satisfactory.
For the error in the instruction, therefore, the judgment is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Frank M. Wade was employed, in June, 1901, in unloading a car of lumber standing upon a side-track of the plaintiff in error at Mineral, in Cherokee county. His duty was to pass the lumber out of the car to a person on the outside, who loaded it upon a wagon. Plaintiff in error was switching cars back and forth on the side-track, and backed some cars against the one in which Wade was thus engaged. The force of the contact shifted the lumber in the car, and his' ankle was caught and the injury for which he brought this action occasioned. He recovered a verdict and judgment for $1250, to reverse which the railway company brings this proceeding in error.
There is in the case no question of the liability of the plaintiff in error for whatever damages defendant in error sustained- There are but two errors relied upon. The first is with respect to the amount of the damages. It is claimed the amount is excessive. The testimony of several physicians showed that defendant in error sustained what is known as a green-stick fracture of the tibia. One of the physicians had made an examination of the fracture in the winter following the accident, by means of an X-ray instrument, and had found evidences of an injury which he .described as an indentation or depression on the tibia, with the surrounding flesh and nerves tender. He regarded the injury as permanent. Several witnesses, among whom were physicians, testified to the fact that at various times they had heard defendant in error give exclamations of then existing pain and suffering. This is com plained of, but under several rulings of this court such testimony was competent. (A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237, 59 Am. Rep. 609; Railroad Co. v. Burrows, 62 Kan. 89, 98, 61 Pac. 439.)
The testimony tended to show that for two years defendant in error had lost considerable time by reason of the injury; that he had suffered much pain — physical and mental; and that the injury was permanent in its character. Plaintiff in error submitted certain special questions to the jury, and the principal contention here is that the damages allowed are excessive for the reason that it is evident from the answers to these special questions that the jury allowed nothing at all for loss of time, medical attendance, or permanent injury, and allowed the entire amount of the verdict for mental suffering and anguish. Plaintiff in error sub-, mitted a number of special questions, but was careful to ask only the following, with respect to the damages sustained:
“(5) Ques. If you find for the plaintiff, what, if anything, do you find and assess his damages for mental suffering and anguish by reason of the injury which plaintiff claims was inflicted? Ans. Twelve hundred fifty dollars.
“(6) Q. If you find for the plaintiff, what, if anything, do you find and assess for doctors’ bills or compensation for physicians and surgeons for service to plaintiff, by reason of the injuries claimed to have been received? A. Nothing.”
It is conceded that it is well settled in this state that damages may be recovered for mental suffering or anguish of mind resulting from physical pain and suffering arising from the injury. (Railroad Co. v. Chance, 57 Kan. 40, 47, 45 Pac. 60, and cases cited.) It is clear that the jury allowed for this element of damages the sum of $1250. The contention is that because the jury allowed nothing for permanent injury, or for loss of time, or for doctors’ bills, there is, therefore, a want of any foundation or basis- for the allowance of damages for mental suffering. But before this court would be justified in setting aside a verdict as excessive it must appear from the amount allowed, or from some other fact or circumstance in the record, that the damages were given as the result of passion or prejudice. (Railway Co. v. Frazier, 66 Kan. 422, 427, 71 Pac. 831.)
Conceding for the purpose of the argument that the amount allowed for mental suffering was excessive, this alone is not sufficient to warrant the granting of a new trial. (M. K. & T. Rly. Co. v. Weaver, 16 Kan. 456; U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Railway Co. v. Frazier, supra.) There is nothing in these answers, however, to indicate passion or prejudice of the jury. The amount allowed for mental pain and suffering seems large only by reference to the omission to allow any damages for loss of time, physical suffering, and permanent injuries. The evidence, however, would have supported a verdict fqr a reasonable amount for all of these • additional elements of damages, which plaintiff undoubtedly suffered by reason of the injuries. The answer to the sixth question is supported by the evidence, for plaintiff’s testimony shows that he had never paid anything for doctors’ bills. But there is evidence of substantial elements of damages for which the jury apparently allówed nothing, perhaps because their attention was not directed to these other elements by the two questions asked. Is plaintiff in error in a position to take advantage of this somewhat technical oversight on the part of the jury? We think not. If the jury had allowed substantial damages for loss of time, for physical pain, for permanent injury, and, in addition, had allowed $1250 for mental pain, it might have shown such passion and prejudice as would warrant the setting, aside of the verdict; but we cannot say that, because of the absence of an allowance for substantial damages which were clearly established, the amount allowed is so excessive that it appears to have been given under the influence of passion and prejudice. The failure- of the jury to allow damages for the other matters, when they might well have done so, is something which, instead of being prejudicial, may have been beneficial to the plaintiff in error; at least it is no indication of passion or prejudice.
Finally, it is complained that one of the counsel for defendant in error was guilty of misconduct in his argument to the jury. Plaintiff in error submitted three special questions to the jury with reference to whether the defendant in error remained in the car while it was being moved by the switching crew. It is claimed that it became important for the defendant in error to establish by the findings that he was not .in the car at this time. It is said that Judge Skidmore argued to the jury that they must make their special findings harmonize with their general verdict; and it is contended that, as this court has held it to be error for the court to instruct the jury that their answers to special questions submitted should be consistent with their general verdict, therefore this argument of counsel was objectionable for the same reason. (Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064.) The record does not support the contention of the plaintiff in error in this respect. The incident is brought upon the record by the affidavit of R. W. Blue, counsel for plaintiff in error, filed in support of the motion for a new trial. The affidavit does not state that counsel argued that the jury must make their special findings consistent with their general verdict. It states the language of Judge Skidmore, as follows: “That if the jury answered the said special questions ‘yes,’ then their verdict must be for the defendant.” In our opinion this was legitimate argument, as well as a fair statement of the law. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
This proceeding. in error was commenced to procure a review of an order of the district court vacating a temporary injunction. The injunction was granted under the authority of chapter 334 of the Laws of 1905, the material portion of which reads as follows:
“That section 4700 of the General Statutes of 1901 be amended so as to read as follows: Sec. 4700. An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or.doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction. An injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance. The petition therefor shall be verified by the county attorney of the proper county, or by the attorney-general, upon information and belief, and no bond shall be required.”
This act the court held to be unconstitutional, in that it contains more than one subject. The purpose of the act was to amend section 253 of the code. That section is a part of the chapter of the code which treats of injunctions. The entire chapter relates to the single subject of injunctions. Before the amendment section 253 enumerated certain classes of cases in which injunctions might be granted. The amendment merely added to the list. The subject of the chapter is now, the same as before the amendment, the subject of each section it contains.
If the defendant’s view were correct, it might be argued that section 238 (Gen. Stat. 1901, §4685), embraced in the same chapter, is multifarious because it enumerates some three or four occasions upon which a temporary injunction may be granted. Clearly, however, the legislature does not there deal with waste, fraudulent transfers, and the like, but with temporary injunctions. So the burden of section 253 is not taxation, improvident public contracts, and nuisances, but the right to invade those fields with an injunction. If the principle of interpretation here applied were not the true one section 5 of the act relating to corporations (Gen. Stat. 1901, § 1249) would contain forty different subjects instead of one, and it would be impossible to pass a valid law of comprehensive scope.
By the terms of the act relating to injunctions a temporary injunction is a provisional remedy. Hence an order vacating a temporary injunction is reviewable under the second subdivision of section 542 of the code. (Gen. Stat. 1901, § 5019.)
The judgment of the district court is reversed; and the cause remanded.
All the Justices concurring. | [
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Per Curiam:
In the action on the note defendants pleaded a set-off. In submitting the case the court in one instance stated that the defendants claimed a credit on the note. The credit was in fact claimed in the action by reason of an alleged set-off, the character of which was fully stated. Defendants did ask- that 'the set-off should be applied on an acknowledged indebtedness, and therefore the statement that a credit was claimed on thp note was not prejudicial.
No error was committed in placing the burden of proof on the defendants to establish the claimed set-off.
There is no good reason to complain of the rulings on the admission of testimony, nor in denying the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in the court of Coffeyville, Montgomery county, Kansas, on the 29th day of August, 1900, by Henry Baden, a resident of that county, against R. B. Croan, a resident of the Indian Territory. The plaintiff recovered judgment May 11, 1901. The defendant took the case to the district court by petition in error, where the judgment was affirmed, and he now brings the case here for review-
The action was brought to recover on a promissory-note. The petition was in ordinary form, with a copy of the note attached as an exhibit. The note reads:
“$735. “Nowata, I. T., June 7, 1895.
“Sixty days after date we promise to pay to the order of Henry Baden, at Independence, Kan., seven hundred and thirty-five and no-100 dollars, with interest at the rate of ten per cent, per annum from date until paid; value received. Interest payable annually.
Emma M. Carey. Wm. V. Carey.
R. B. Croan.”
Apparently for the purpose of avoiding the statute of limitations it was averred “that the said defendants, and each of them, have for more than one year since said note became due and payable resided in the Indian Territory, and out of the state of Kansas, and beyond the jurisdiction of this court.”
The defendant was summoned in Montgomery county. He filed a verified answer, alleging: (1) A general denial; (2) that he had for more than eight years been a resident of the Indian Territory, and never had been a resident of Kansas; that the note was made, executed and delivered in the Indian Territory, and was barred by the laws of that place long before this action was commenced; (3) a failure of consideration.
The plaintiff for reply filed a general denial. The issues thus presented were tried to a jury of six men in the court of Coffeyville.
One of the material facts involved in the defendant’s third defense was whether or not Emma M. Carey signed the note in question. The defendant claimed that he signed the note as surety, in consideration of the promise that she would' also sign it; and that her name had been forged thereto. Special questions were submitted to, and answered by, the jury, which were in part as follow:
“Ques. State what the consideration [of the note] was ? Ans. The amount of note.
“Q. What was the'agreed consideration at the time' the note was given? A. $735.
“Q. Did Emma M. Carey sign the note in question? A. Do not know.”
It is claimed that the answer “do not know” is. equivalent to “no,” and the case of Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, is cited as authority for this contention. The decision, however, does not so hold. The rule established by that and other cases is that such an answer indicates that the party whose duty it was to establish the fact involved in the question has failed in his proof. Tested by this rule the answer under consideration means “yes.” The defendant alleged and undertook to prove that Emma M. Carey did not sign the note. The jury, after hearing all the evidence on the subject, were unable to say that she did not sign it, and therefore the presumption that she did is not overthrown. The execution of the note by the defendant is not controverted by the evidence.
This disposes of all the questions presented in favor of the plaintiff, Henry Baden, except the one relating to the statute of limitations. It is argued by the plaintiff in error that when it appears from the face of the petition that the cause of action is barred by the statute of limitations the plaintiff cannot recover, unless he affirmatively removes .the bar by his testimony. It is further claimed that this duty of the plaintiff does not depend upon any act or plea on the part of the defendant. We think otherwise. The mere fact that a promissory note is barred by the statute of limitations does not imply that the debt evidenced thereby is extinguished, nor that the defendant is not morally obligated to pay it. This statute was not designed to prevent the payment of such obligations. It only furnishes a defense théreto which the defendant may use or not at his option. The right to use this defense is regarded as a privilege which may be waived, and the failure affirmatively to assert it will constitute a waiver thereof.
In this case the defendant did not demur to the petition, object to the introduction of evidence, plead the statute of limitations in his answer, or otherwise claim the protection of the Kansas statute. It seems that the defendant did not rely upon the Kansas statute of limitations at the trial, but sought protection under the statutes of the Indian Territory, which were fully pleaded in his answer and established by the proof. He insists that a good defense was made out under section 4450 of the General Statutes of 1901, which so far as necessary reads:
“Where the cause of, action has arisen in another state or country, between non-residents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state.”
The defense as pleaded, however, omits the essential averment that the cause of action arose “between nonresidents of this state.” This omission makes the plea insufficient. It was shown by the evidence that the plaintiff, Henry Baden, payee of the note, was at all times a resident of the state of Kansas. This fact is not disputed. It seems, therefore, that this defense, both in plea and proof, falls outside of the provisions of the statute relied upon.
We conclude that the verdict and findings of the jury were fully justified, both by the law and the evidence. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
C. G. Staley employed Hufford & Napier, real-estate agents, to sell for a stated price a tract of land, a part of which was occupied by himself and wife as a homestead, or to arrange a satisfactory exchange of this for other property. The agents found a buyer, one C. A. Martin, who was ready and willing to take the land upon terms that were satisfactory to Staley; and Staley and Martin signed a paper purporting to be a contract for its sale or exchange. Staley’s wife did not execute this instrument or otherwise consent to the bargain. She refused to execute a deed, and the deal consequently fell through. Hufford & Napier sued Staley for a commission, and recovered a judgment, which it is the purpose of this proceeding to reverse.
The principal contention of the plaintiff in error is that inasmuch as the contract entered into by Staley and Martin was void for want of the consent of Mrs. Staley there could be no recovery for services in connection with it, Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431, being relied upon to support this view. The invalidity of that contract does not affect the matter. It was competent for Staley to employ Hufford & Napier to find a buyer for property which he had no power to convey, just as he might have employed them to get a bidder for property which he did not own but which he expected to be able to control. Having asked and received their services, no reason is apparent why he should not pay them therefor, they having done everything possible on their part, and their efforts to accomplish a sale having been rendered futile by the inability of Staley to procure a conveyance,' which resulted from no fault of theirs. The purported contract signed by Staley and Martin is of no importance in the matter except as evidence that the terms of sale or exchange negotiated by Hufford & Napier in fact met the requirements of Staley, and therefore that the agents had performed the duty they had undertaken. The case is within the reason of the rule that a real-estate broker’s claim for commission is not defeated where a sale is prevented by the fault of his employer.
A letter written by the agents contained an expression to the effect that they expected no pay unless they made a trade. This did not alter the essential character of their contract with Staley, or affect the application of the rule réferred to. (28 A. & E. Encycl. of L. 919, 920.)
Complaint is also made of the refusal of the court to permit the introduction of certain testimony, but the offer was made under such circumstances that it was clearly within the discretion of the court to refuse to consider it on account of the time of making it. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a proceeding in aid of execution. Joseph S. Bogle gave a promissory note for borrowed money, and procured his brother, John P. Bogle, and also Charles Schram and E. H. Hutchins, to sign the note as sureties. Default was made in the payment of the note, and on May 16, 1891, judgment was obtained before a justice of the peace against the principal and the sureties. For his own protection one of the sureties, Schram, paid the judgment and took an assignment of it. An abstract of the judgment was filed in the district court, and several executions were issued without substantial results.
On October 13,1903, Schram instituted this proceeding, and an order was issued by the probate judge requiring both of the Bogles to appear and answer concerning property of theirs which might be subject to the payment of the judgment. In that connection a subpoena duces tecum was issued, directed to S. A. Honce, a daughter of John P. Bogle, and to Chris Wirth, under which S. A. Honce produced a note for $300, executed by Wirth. On the part of Schram it was claimed that this note was the property of John P. Bogle, while Mrs. Honce stated that it had been given to her by her father for services rendered. After a hearing the probate judge found that the note and indebtedness were the property of John P. Bogle, and in order to' cover it up and to prevent Schram from collecting a share of the judgment from him he had attempted to transfer the note and indebtedness to his daughter, Mrs. Honce, and that the transfer was without consideration and fraudulent. An order was made by the judge appointing a receiver, and directing him to take charge of and collect the note and apply the proceeds upon the Bogle judgment. The probate judge, who had obtained possession of the note under the subpoena duces tecum, delivered it to the receiver.
Exceptions were taken to the rulings of the probate judge, a transcript of the proceedings was made, and the matter was taken before the district court upon what is designated as a “petition in error.” Schram moved to dismiss the proceeding for lack of jurisdiction in the district court, on the theory that a proceeding in error is not warranted in such cases. The district court denied the motion, reviewed the proceedings before the probate judge, and sustained his rulings. John P. Bogle died after the proceeding was begun, and the administrator of his estate, as well as his daughter, S. A. Honce, complain of the rulings of the district court. In a cross-petition in error Schram also complains of the refusal of the district court to dismiss the proceeding.
In a proceeding in aid of execution the jurisdiction of the district court to review and revise the action of the probate judge is original rather than appellate.
“While the proceedings were had before the probate judge, they were not an exercise of probate jurisdiction, nor was a record of them required to be kept in the probate court. The judge was exercising judicial functions in a case in the district court, and was in fact acting as a subordinate officer of that court, and under its supervisory control.” (Bowersock v. Adams, 55 Kan. 681, 685, 41 Pac. 971.)
(See, also, Young v. Ledrick, 14 Kan. 92; Sewing- machine Co. v. Wait, 24 Kan. 136; Code, § 499; Gen. Stat. 1901, § 4976.)
The proceeding, being in the district court, was of course subject to its supervision. Although irregularly brought to its attention, the court had jurisdiction to examine and, if necessary, to correct the proceedings of its subordinate officer. That jurisdiction was invoked, and a hearing had upon a full transcript of the proceedings. The consideration of the court was substantially what it' would have been if it had been invoked by an ordinary application, and, that being true, the name of the paper by which its jurisdiction was invoked is not very material. The transcript presented the doings of the probate judge more fully than if the requirements of the code had been strictly followed. The code provides that “the judge shall reduce all his orders to writing, which together with a minute of his proceedings signed by himself shall be filed with the-clerk of the court,” etc. (Code, § 499; Gen. Stat. 1901, §4976.) Since the court supervised the proceedings of the probate judge substantially as if there had been a formal presentation, it cannot well be said that its action was void, nor that any one suffered prejudice by reason of the informality.
On the other side, it is insisted that as a full transcript of the judgment of the justice of the peace was not filed in the district court there was no basis for the proceeding. An abstract of the judgment is sufficient. When an abstract, such as is prescribed in section 119 of the justices’ code (Gen. Stat. 1901, § 5352), is filed in the district court, the judgment is subject to the same' rules and has the same force within the county as though originally rendered in the district court. (Treptow v. Buse, 10 Kan. 170; Rahm v. Soper, 28 Kan. 529.) Where a judgment is to be transferred from one county to another a different rule applies, and the transcript of the journal entry of judgment is required. The distinction between such a transfer and the filing of an abstract within the county is pointed out, and the reasons given therefor, in Hubbard v. Jones, 61 Kan. 722, 60 Pac. 743.
The contention that Schram was not entitled to the benefit of the judgment to enforce contribution from his cosurety cannot be sustained. Under section 480 of the civil code (Gen. Stat. 1901, § 4926) a surety who has paid a judgment may have the benefit of such judgment, not only to compel repayment from the principal, but also to enforce contribution against any one jointly liable with him bn the judgment. In such a case a new proceeding would be wholly superfluous. The assignment of the judgment, when it was paid by Schram, was entered on the docket and embraced in the abstract of the judgment which was filed in the district court. The assignment did not operate as a satisfaction of the judgment as against the other judgment debtors, and under it, and the notice which the entry afforded, Schram was entitled to enforce contribution against his cosurety Bogle. (Harris v. Frank, 29 Kan. 200; Williams v. Riehl, 127 Cal. 365, 59 Pac. 762, 78 Am. St. Rep. 60; 17 Cyc. 1410.)
There is a contention that the judgment had not been kept alive and was therefore not enforceable. This is based on the discredited theory that no execution was issued on May 11, 1896. The entry on the judgment docket was that on the date named a praecipe for execution was filed and an execution issued. That execution appears to have been lost; but there is ample testimony that it was in fact issued, placed in the hands of the sheriff, and that he returned the writ unsatisfied. The oral proof of this fact is supplemented by an entry on the docket of June 2, 1896, that the execution was returned, entered, and filed, and that it wf,s unsatisfied.
It is next contended that the judge had no power over S. A. Honce, who was only a witness, and that his order can have no binding effect upon her, or upon Wirth, who owed the impounded debt. The judge did have power to inquire whether the debt was an asset of John P. Bogle, and, that being found, to order the application of it to the payment of the judgment. The note had been placed in the custody of the judge, and, so far as appears, it was surrendered without objection. If she had refused to yield possession, or had intervened as a party and claimed ownership of the note, the judge would probably have declined to proceed further until the dispute as to ownership had been settled. It is true, as contended, that an ultimate determination of a disputed ownership of property or of indebtedness cannot be made in this summary proceeding, and especially in a case where the claimant is not a party to the proceeding. However, the mere fact that an asset is in the hands of another than the judgment debtor does not preclude the application of it to the payment of the judgment. The statute provides that the judge may order the application of any property of the judgment debtor not exempt by law which is in the hands of any other person or corporation, or which may be due to the judgment debtor, upon the judgment, and may enforce the order by contempt proceedings. (Code, § 490; Gen. Stat. 1901, § 4966.) We have no statute, as do some of the states, providing that a dispute as to title or ownership ends the inquiry; and the statute would not be very effective if every dispute, colorable or otherwise, terminated the proceeding.
The statute is intended, however, to include only property of the judgment debtor, and is not operative upon the property of third persons; and a proceeding .under it can never conclude the rights of third parties where there is a substantial dispute as to title or ownership by such parties. A refusal to surrender the note might have made necessary an action by the receiver of the court to obtain possession of, and collect, the note.; but there was no refusal nor any intervention by Mrs. Honce. She was not a party to the proceeding, and her right to the note is not concluded by the action of the judge. She was a witness, and was brought into court by the compelling force of a subpoena, but this did not make her a party nor give her a day in court. The judge in this case has found, upon what appears to be sufficient evidence, that the indebtedness of Wirth was due to Bogle, and therefore the order of application is not without support. The order, however, is not binding upon a third party like Mrs. Honce, and if there is a real dispute as to the ownership of the asset she is entitled to a trial in accordance with the regular forms of law.
The fact that John P. Bogle did not give testimony before the judge does not invalidate the order. The statute contemplates that other witnesses may be examined, and that the order of the judge shall be based upon the whole testimony submitted in the proceeding. The absence of the judgment debtor, which in this case it is said was due to his illness, does not defeat the proceeding. (State, ex rel., v. Downing, 40 Ore. 309, 58 Pac. 863, 66 Pac. 917.)
We think the probate judge had judicial authority to make the inquiry and order of application; that there is evidence to support his order; and that'he correctly measured the liability of John P. Bogle as co-surety. The judgment is affirmed.
All the Justices concurring. | [
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The .opinion of the court was delivered by
Mason, J.:
Josie M. Sourbeer recovered a judgment against George M. Edwards for damages for the conversion of a crop of wheat, and Edwards prosecutes error.
The land upon which the crop was grown was sold under an order of court by a receiver in April, 1899. It was bought in by R. W. Griggs, a lawyer, for his own benefit, but as a matter of convenience the bid was made in the name of his son, J. R. Griggs. No receiver’s deed was made until some time later, but as there was some evidence tending to show that immediate possession was given to R. W. Griggs, and that he was recognized by all persons concerned as the owner, this consideration is not important, and the case may be treated as though he acquired a full title in April, 1899.
Edwards occupied the land for the season of 1899 under an oral lease made with J. R. Griggs, whom he paid in full, R. W. Griggs consenting to this arrangement. In May, 1900, a written lease to Edwards from April 1, 1900, to April 1, 1901, was executed by J. R. Griggs, who signed it, however, “R. W. Griggs by J. R. Griggs,” the rent named being $25. In September, 1900, Edwards sowed a crop of wheat. While he was engaged in the work R. W. Griggs had a conversation with him in which Griggs claimed the ownership of the land, denied the authority of J. R. Griggs to make a lease for it, and said that he wanted it himself. He also offered to pay Edwards whatever expense the latter had incurred in the matter.
The written lease by its terms expired April 1, 1901, but Edwards continued to hold possession with the obvious intention of harvesting the wheat crop. With the equally manifest purpose of preventing this, a proceeding for unlawful detainer was begun against him April 18, 1901, in the name of J. R. Griggs, R. W. Griggs acting as his attorney. A verdict was rendered for Edwards, but an appeal bond was filed and, approved. While matters stood in this shape Edwards and J. R. Griggs entered into a written agreement for the settlement of the controversy, providing in substance that the unlawful detainer proceeding should be dismissed and that Edwards should be relieved of any costs of the litigation, should retain the wheat, which he had already harvested, and should pay J. R. Griggs $52. Edwards made the payment and marketed the wheat.
In March, 1903, Josie M. Sourbeer, a daughter of R. W. Griggs, began this action against Edwards to recover the value of the wheat. She based her title upon the ownership of the land, claiming that in 1899 her father had told her she could have it (presumably for an agreed price), and that in July, 1900, she had paid him for it, although she received no deed until after her action was begun. Edwards for his defense relied upon his settlement with J. R. Griggs, claiming that whatever the rights of the different members of the Griggs family may have been among themselves their conduct worked an estoppel to assert against him that the compromise was unauthorized.
Before Edwards cut the wheat and before he made the adjustment with J. R. Griggs he received a notice from Mrs. Sourbeer, signed by her father, with others, as her attorneys, stating that she claimed to own the crop. - Mrs. Sourbeer relies upon this fact to charge Edwards with notice of whatever actual rights she had, and seeks to evade the effect of the settlement made with J. R. Griggs upon two theories, namely: (1) That in virtue of her contract with her father for the land, and of her payment to him of the price, she became its real owner in July, 1900, and that therefore nothing that either J. R. Griggs or R. W. Griggs, or .both of them, did after that time could affect her rights in favor of any one who had notice of her claim; (2) that at all events she was in effect an assignee of all the rights of R. W. Griggs, and as such entitled to maintain any action that he could have brought, and that he was not bound by the settlement with J. R. Griggs because Edwards when he made it knew that the father was the real party in interest and that the son had no authority to make an adjustment of the controversy.
As to the first contention, this court is of the opinion that Mrs. Sourbeer had no capacity to maintain the action for the conversion of the wheat otherwise than as the successor of whatever rights R. W. Griggs had in that regard. She claims title to the wheat only as the owner of the land. She had no deed until long after the crop had been harvested. While the payment of the purchase-price may have rendered her the equitable owner of the property, as between her father and herself, she had acquired no standing to be so considered by Edwards. R. W. Griggs had no paper title whatever; J. R. Griggs had no deed, but was shown by the court records to be the purchaser of the land at judicial sale. As to them the absence of formal title' is immaterial, because of their possession and of Edwards’s dealings with them. But it would be stretching the privilege of an equitable owner to sue for a conversion of a crop too far to extend it to Mrs. Sourbeer, who never had possession of the land and never had any contract with Edwards concerning it. Without attempting to frame any general rule as a test of the right of a mere equitable owner to maintain an action based upon the title to land, we are of the opinion that under the circumstances of this case Mrs. Sourbeer acquired no status as an independent claimant of the crop here in controversy, notwithstanding the notice that was given to Edwards in her name.
It remains to consider the claim of Mrs. Sourbeer in the same light as though it were urged by R. W. Griggs. In this aspect its validity depends upon whether the action of R. W. Griggs in conducting the unlawful detainer proceeding as attorney for his son created a conclusive presumption as against him that the plaintiff was authorized to contract for the settlement of the litigation and the adjustment of the subject-matter there in dispute, and thereby estopped him "to deny the validity of the compromise that was effected. It is to be said that Griggs, senior, was not merely an attorney in the case. It appears from his own testimony that the proceeding was brought by him for his own benefit, and that the name of his son was used as plaintiff merely because at the time he began it he had the mistaken impression that the lease had been executed in the name of J. R. Griggs. On the other hand, he claims that Edwards knew that the plaintiff was only a nominal party. The sole testimony in support of this contention was that before the ad justment was made the younger Griggs was overheard to tell Edwards that he had no interest in the land and could not settle the litigation. Edwards admitted that he had heard that the two Griggses had had a falling out. These considerations, however, cannot overcome the effect of the facts already recited. The pleadings in behalf of the plaintiff in the unlawful detainer action were drawn upon the theory that J. R. Griggs owned the real estate and that Edwards had entered it as his tenant. When R. W. Griggs, notwithstanding his former protest, elected to bring an action in his son’s name, alleging that the plaintiff was the owner and therefore entitled to possession of the land, he clothed him with authority not only to settle the litigation but to make an adjustment of the controversy it involved, and justified the defendant in relying upon that authority and entering into a compromise designed to end the whole matter. It is needless to inquire what circumstances might have changed- the situation of the parties so that Edwards would no longer have been protected by a settlement made with the younger Griggs. It- is enough to say that the facts already stated were insufficient to have that effect.
It is argued in behalf of the defendant in error that Edwards cannot rely for recovery upon equitable estoppel because he did not plead it. The record discloses, however, that the case was tried as though the question of estoppel was in issue, and the fact that it. was not formally presented by the pleadings is therefore unimportant.
It results from these conclusions that the judgment must be reversed. The cause is remanded for further proceedings in accordance with the views here expressed.
All the Justices concurring. | [
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Per Curiam:-
The defendants in error brought this action to recover for legal services alleged to have been performed by them for the Coffeyville ■ Gas Company upon its request. The defendant as an answer filed its general denial. Judgment was rendered for the plaintiffs.
The petition in error does not assign as error the denying of the defendant’s motion for a new trial; therefore no questions arising upon the trial of the cause can be considered by this court. (Struthers v. Fuller, 45 Kan. 735, 26 Pac. 471; Dryden v. C. K. & N. Rly. Co., 47 Kan. 445, 28 Pac. 153; National Bank v. Jaffray, 41 Kan. 691, 19 Pac. 626; Carson v. Funk, 27 Kan. 524; Clark v. Schnur, 40 Kan. 72, 19 Pac. 327; Binns v. Adams, 54 Kan. 615, 38 Pac. 792; Cogshall v. Spurry, 47 Kan. 448, 28 Pac. 154; City of McPherson v. Manning, 43 Kan. 129, 23 Pac. 109.)
The errors assigned raise questions arising upon the trial and cannot be considered by this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The title to the land sought to be subjected to the payment of the judgment against Benjamin Heilbrun was in his wife, Carrie Heilbrun, at the time of her death. While her ownership has not been exactly conceded, it is not seriously attacked. In one part of the answer there was a general statement that real and personal property of Benjamin Heilbrun was placed in his wife’s name for fraudulent purposes, but there is no allegation that the property in question had ever been owned by him, nor that it was fraudulently acquired or held by her. The case must be determined on the theory that she was the owner of the land when it was devised and until her death.
It is contended that the terms of the will betray a wrongful purpose; that they are such as to render the instrument ineffective, and therefore one-half of the land passed to Benjamin Heilbrun at his wife’s death. Nothing is found in the provisions of the will to avoid or discredit it. Large discretionary powers were conferred upon the trustee, it is true, but that was a matter for the testatrix, and after specifying particularly the purposes for which the estate should be devised she evidently deemed it advisable to leave the management of it to the discretion of the trustee.
One feature of the will is a provision that the trustee shall not be required to give bond or report his doings to a court. He is authorized to sell any of the real estate and invest the proceeds, and to sell and reinvest as he may deem best; to appropriate so much of the estate as he may think necessary for the support, maintenance and education of the children; and there is expressed .in the will an intention not to hamper his movements, but to give him full authority to sell and dispose of the property as his judgment may dictate, so long as the proceeds are applied to the purposes of the trust, that is, for the benefit of the children, and an equal division of the estate among them when the youngest child should arrive at the age of majority. The omission of a bond is not unusual, and the attempted waiver of a report of the trustee’s doings to a court does not destroy the will. The provision evinces a purpose of relieving the trustee of making reports that an ordinary executor would be required to make.
The trust is within the scope of equity jurisdiction, and the trustee is subject to the power and direction of the court whenever there might be an occasion for its exercise. Upon complaint of the beneficiaries that the estate was being mismanaged or the trust abused they could safely appeal to the jurisdiction of the court for the protection of the estate. Neither this provision nor those vesting great discretionary power in the trustee, nor even the possibility of the abuse of the power by the trustee, furnishes any reason for declaring the trust invalid. It has been said that, “as' a general rule, a court of equity will not interfere with or attempt to exercise discretionary powers conferred on trustees. But the court never loses its power to review the use of such discretion and to correct any abuse in its exercise. Moreover, equity will always so control a trustee that he shall not disappoint the true intent and purpose of the donor, as gathered from the instrument containing the power.” (28 A. & E. Encycl. of L. 991. See, also, page 985.)
The contention that the will is void because it violates the rule against the creation of perpetuities is not good. There is no remoteness in the vesting of the estate, and it is to be noted that, instead of providing for a suspension of alienation, the will itself authorizes the trustee to sell and convey the land at any time. The trust is to terminate and the property to pass to the children when the youngest child arrives at the age of twenty-one years. Having no statute on the subject the common-law rule prevails, under which the contingent interest must become vested within a life or lives in being and twenty-one years afterward, to which, under some circumstances, is added the period of gestation. (22 A. & E. Encycl. of L. 708; Gray, Rule against Perpetuities, 2d ed., § 201.) If the contingency on which the estate is to vest must certainly happen within the common-law period, it does not offend the rule. As the minority of the youngest child comes within the gross period added to a life in being there is no room for disagreement. It is held, too, that the term of twenty-one years may be taken in gross, without reference to infancy, and the devise is not too remote if the contingency must happen within that period. (Barnitz’s Lessee v. Robert Casey, 11 U. S. 456, 468, 3 L. Ed. 403; Potter v. Couch, 141 U. S. 296, 314, 11 Sup. Ct. 1005, 35 L. Ed. 721; Johnston’s Estate, Johnston’s Appeal, 185 Pa. St. 179, 39 Atl. 879, 64 Am. St. Rep. 621; Cadell v. Palmer, 1 Cl. & F. [Eng.] 372; Von Brockdorff v. Malcolm, 30 Ch. Div. 172; Gray, Rule against Perpetuities, 2d ed., §§ 186, 223; 22 A. & E. Encycl. of L. 709.)
The contingency, as we have seen, must happen within twenty-one years, and under any view the estate will vest within the common-law measure of time. The recent case of Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439, is quite closely in point. There a will was made giving an estate to children of the testator, but providing that the real estate should not be sold until the youngest child should reach majority. In the opinion it was said:
“It is finally contended that the limitation over, and the estate sought to be conferred thereby, is void for remoteness, and created a perpetuity prohibited by law. This claim is not well founded. Three of the testator’s children were living when the will was made; the other child was born prior to his death, and the fee to the proceeds of the property in question was to vest in them when the youngest child became of age.” (Page 45.)
The New York cases cited are based on a statute which does not conform to the common-law rule, and hence are not controlling.
The attack of the creditors of Benjamin .Heilbrun upon Mrs. Heilbrun’s will is collateral in character, and somewhat in the nature of a contest. The will is not open to contest, as it was probated and its validity established more than two years before the attack was made. Then, the matter of probate being within the jurisdiction of the probate court, its judgment in the premises is not open to collateral attack. (Calloway v. Cooley, 50 Kan. 743, 754, 32 Pac. 372; Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86; Watkins v. Mullen, 62 Kan. 1, 61 Pac. 385, 84 Am. St. Rep. 372.) The order of probate determined the due attestation, execution and validity of the will, and in the absence of a contest within the appointed time it is forever binding, except as to those under legal disability. (Stat. Wills, §§ 19-21; Gen. Stat. Í901, §§ 7956-7958.)
It is contended that the will is not effective, nor'the probate of it conclusive, because the consent of the husband that the wife might bequeath and devise all her property to her children was not presented to the probate court and probated. The statute does not declare that the consent is to be regarded as a part of the will, nor that it shall be probated. We cannot interpolate a clause that such consent shall be invalid unless it is proved and recorded. In the giving of consent such formalities are required as that it shall be in writing, and executed in the presence of two witnesses, and if the legislative purpose was that it should be filed, recorded, or probated, these things certainly would have been included with the other requirements.
It is contended,' also, that the consent must be to a particular will, and that the one in question is ineffectual because it is general. The statute controls, and it does not provide that the consent of husband or wife shall specify the particular piéces of property which the other may will away. On the other hand, it is general in its terms, stating that the husband or wife may consent “that the other may bequeath more that one-half of his or her property from the one so consenting.” (Stat. Wills, §35; Gen. Stat. 1901, § 7972.) In the present case, however, it appears that the will and consent bear the same date, and being contemporaneous in execution may well be considered as having been made with reference to each other.
After the death of his wife Benjamin Heilbrun went through the form of electing to take under the will. If the provision of the,statute in regard to a widow’s election applies to the widower, which we need not now determine, it is clear that the attempt made did not nullify or weaken the consent already given. The consent was sufficient for the purpose, and no further step was necessary. But probably it was not then within his power to revoke the consent previously given. With this consent Mrs. Heilbrun had a complete right to dispose of all her property by will. The will made is in due form, and the order probating it determined its due execution and validity.
Only interested persons can contest the will, and it may well be doubted whether .the creditors of the husband can be regarded as entitled to that right. In Lockard et al. v. Stephenson, 120 Ala. 641, 24 South. 996, 74 Am. St. Rep. 63, it was held that the words “any person interested therein” include only such persons as would take an interest in the estate of the testator under or by virtue of a provision of the will, and it was there said that “judgment creditors of the husband of a testatrix have not, under the statute, . . . such an interest as gives them a right to contest the probate of the will of the testatrix, by which a child is made the sole legatee and devisee and the husband is deprived of his distributive share in the property of his wife.” (Syllabus.) In Page on Wills, section 325, it is said that “the creditors of an heir of decedent cannot contest decedent’s will disinheriting such heir by reason of creditor’s hopes or expectations of being paid out of the heir’s share of decedent’s estate.” (See, also, Shepard’s Estate, Appeal of Shepard et al., 170 Pa. St. 323, 32 Atl. 1040; Cochran v. Young, 104 Pa. St. 333.) Even if the creditors could be substituted to the rights of Benjamin Heilbrun the time had passed in which he could have instituted a contest of the will, and in no event could his creditors have any better standing to contest than he had.
It follows from what has been said that no error was committed by the court in overruling the demurrers to the amended petitions, nor in sustaining the demurrers to several of the defenses of the answers. The evidence, including that relating to the acceptance of the trust by the trustee, abundantly sustains the judgment of the trial court, and, no error appearing in the records, the judgments in the several cases are affirmed.
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The opinion of the court was delivered by'
Burch, J.:
If the note in suit be a valid obligation enforceable against Mrs. Suggs, her absence from the state tolls the statute, and the plaintiff’s mortgage may be foreclosed. If not, his suit is barred.
It is claimed that Mrs. Suggs is not bound because she had no separate estate when the note was given, and it does not appear to be a contract made in connection with any trade or business conducted on her sole and separate account; that the so-called married women’s act permits contracts only in reference to these matters, and that, except as they are removed by statute, all the common-law disabilities of married women persist. The question for determination, therefore, is the measure of capacity to enter into contracts which a married woman possesses under the laws of Kansas. The legislative act referred to took effect October 31, 1868, and reads as follows:
“Section 1. The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.
“Sec. 2. A married woman, while the marriage relation .subsists, may bargain, sell and convey her real and personal property and enter into any contract with reference to the same in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property.
“Sec. 3. A woman may, while married, sue and be sued, in the same manner as if she were unmarried.
“Sec. 4. Any married womán may carry on any trade or business, and perform any labor or services, on her sole and separate account; and the earnings of any married woman from her trade, business; labor or services shall be her sole and separate property, and may be used and invested by her in her own name.” (Gen. Stat, 1901, §§ 4019-4022.)
Much stress is placed upon the words of the second section “enter into any contract with reference to. the same”; — that is, with reference to her real and personal property. In the case of Deering v. Boyle, 8 Kan. 525, 12 Am. Rep. 480, decided at the July, 1871, term, an action had been brought on a promissory note given by a married woman. She answered that when the note was given she was a married woman; that the note was given to the payee in satisfaction of her husband’s sole, separate and individual debt; and that it was given without any benefit or consideration whatever moving to her. The district court sustained a demurrer to this defense, and this court affirmed the judgment. In the facts of the case there can be found no intimation that the woman had ever possessed any property, trade; or business. There is no presumption of law that she had done so, and if such had been the case'the allegations of the answer show that her contract could not have had any possible connection with them or with her services or earnings. The note concerned a matter entirely outside of the statute, • and yet it was held that she had capacity to make it and that judgment might be rendered upon it.
In the' case of Wicks v. Mitchell, 9 Kan. 80, decided at the January, 1872, term, an action was brought on a promissory note executed by a married woman with others, one of whom was her husband. She answered that the note was given in liquidation of the debt of the other makers, and that she signed as surety only. Her answer also contained the following allegations:
“That said note was not given to the plaintiff for the benefit of this defendant, nor for the use and benefit of her sole and separate property, nor with reference to the same, nor for anything which might or could inure to its or her benefit; that this defendant did not nor has she charged her sole or separate property with the payment of said note, but at the time of its execution refused in any manner so to charge her sole and separate property, or any part thereof.” (Page 81.)
A demurrer was sustained to the answer, and judgment given for the plaintiff. This answer went beyond the one made in Deering v. Boyle, in that it pleaded the woman’s refusal to charge her separate property with the satisfaction of the contract. If the possession of a separate estate which may be bound is necessary in order to confer capacity to contract, the exclusion of such estate from benefit from the transaction and from liability for the satisfaction of the contract ought, it would seem, to be equivalent to the possession of no estate, so far as that contract is concerned. Nevertheless, it was held by this court that Mrs. Wicks had capacity to make the contract, that the answer stated no defense, and that the judgment upon it against her was authorized by law.
In the case of Larimer v. Kelley, 10 Kan. 298, decided at the July, 1872, term, it appeared that in 1864 Mrs. Larimer and Mrs. Kelley were captured by the Sioux Indians. They both escaped, and afterward entered into an agreement with each other to write and publish a book describing their experiences during captivity. The expenses of the work were to be borne by Mrs. Larimer, and the profits were to be divided equally. The petition of Mrs. Kelley alleged that when the manuscript was nearly completed Mrs. Larimer took possession of it, carried it to Philadelphia, and had it published in her own name, thereby depriving Mrs. Kelley of the credit and reputation of the authorship of the book and of her share of the profits of its publication. The answer alleged that at the time the agreement was made the defendant was a married woman and had no trade, business or property on her own account, had no earnings from any such trade or business or from the performance of any labor or services, was incapable of making the contract sued upon, was not authorized to do so by her husband, and that the plaintiff was also a married woman when the contract was made, and therefore incapacitated to enter into a binding agreement. A demurrer was sustained to this answer, and judgment was rendered accordingly.
The contract pleaded was made while the married women’s act of 1859 was still in force. (Comp. Laws 1862, ch. 141; Stat. of Kan. Ter. 1859, ch. 94.) Under that act, as under the act of 1868 (Gen. Stat. 1868, ch. 62) which supplanted it, the only express grant of power to make contracts was that contained in section 2, which related exclusively to property. The points of the argument made in support of Mrs. Larimer’s answer are identical with those made in opposition to the liability of Mrs. Suggs, namely, disability at common law to contract at all; capacity to contract now only to the extent to which the common-law disability has been removed; the letter of the married women’s act, which allows contracts only “with reference to the same” — that is, in reference to property. This court, speaking by Mr. Justice Brewer, made short work of this argument, and announced a capacity to contract which does not relate to real or personal property and which is not described in the statute. In connection with a citation of the statute he said:
“The third and fourth defenses are that a feme covert cannot make a contract such as is set forth in the petition. That contract is one for labor. Each is to furnish her skill and knowledge, her time and labor, in the production of a book. ... If she can perform labor and services on her separate account, she can contract for them. If she performs them, she can recover for them. The coverture of the parties did not therefore avoid their contract, and the demurrer to the third and fourth defenses was properly sustained.” (Larimer v. Kelley, 10 Kan. 298, 304.)
In the case of Tallman v. Jones, 13 Kan. 438, dec ided in 1874, a strict and literal' interpretation of the statute was rejected, and it was held that a married woman without any separate estate might purchase property on credit for the purpose of engaging in business, and that her note given for such property was a valid obligation.
In .the case of Miner v. Pearson, 16 Kan. 27, suit was brought to recover upon the note of Louisa B. Pearson and Walter C. Pearson, and to foreclose a mortgage securing it. The district court refused to render a judgment against Louisa B. Pearson on the ground, as counsel stated, that she was a feme covert. There is nothing in the case to show that she owned the land or had any separate estate when the note and mortgage were given, or that they were given with reference to any trade or business. This court ordered judgment against her, saying:
“A married woman may in this state bind herself by her contracts to the extent of her separate property. And a personal judgment may be rendered against her which will reach any or all of her separate property not exempt from execution .under the exemption laws.” (Page 28.)
In the case of Bolinger v. Brake, 4 Kan. App. 180, 45 Pac. 950, a married woman had joined in the covenants of a warranty deed of her husband’s land. Her capacity to bind herself by such a contract was denied, but both 'the trial court and the court of appeals held her liable, and the judgment was affirmed by this court. (57 Kan. 663, 47 Pac. 537; 58 Kan. 818, 51 Pac. 290.) Other significant decisions might be ad-, verted to.
This court has been organized some forty-four years, but counsel have cited no decision it has ever made in which any defense based on the common-law doctrine of coverture has been allowed to prevail against a married woman’s contract. It is true that in Deering v. Boyle, 8 Kan. 525, 12 Am. Rep. 480, and Wicks v. Mitchell, 9 Kan. 80, it was said that a married woman does not bind herself personally as a man does, and that her contracts bind her separate estate or not at all. These statements, however, did not control the decisions rendered, and were soon recognized to be of no special significance. In each case capacity to make a contract which was not and could not be connected with the maker’s separate property, trade, business earnings or services was recognized and the contract enforced, and in Deering v. Boyle the possession of a separate estate as an element of capacity was utterly ignored.
In Deering v. Boyle Mr. Justice Valentine undertook to show that the contract involved did relate to property in a sense sufficient to afford technical authority for it as a strictly statutory affair. He argued that a man contracts with reference to his property without mentioning it. The man makes his contract; the law says what shall be done with his property if he fail to perform. He contracts in view.of the law, and thereby relates the contract to his property and binds it. Under the statute a married woman may do as a married man may do, and hence her' promissory note given to pay the debt of her husband may be said to refer to her property in its obligation. A man’s contract, however, does not refer merely to property in present possession or ownership. Future acquisitions are within its obligation, and the reference of a man’s contract to his property may be to such future acquisitions. His contract is that if he do not pay his creditors may sue him, obtain a judgment against him, cafise execution to be issued and levied on his property, and cause such property to be sold to satisfy the execution. But he need not have the smallest item or article of property, real or personal, to make the contract, or to make it refer to his property, or to support a judgment upon it. The opinion concludes:
“This is a married man’s contract with reference to his property. A married woman may under said section 2 of the married women’s act contract ‘in the same manner, to the same extent and with like effect/ with reference to her property.” (Deering v. Boyle, 8 Kan. 525, 537.)
From the context it is plain that the expression used in that opinion, to the effect that unless a married woman’s contract bind her separate estate it is a nullity, referred to the source of satisfaction and not to capacity to contract. The argument is this: A married woman does not bind herself personally — that is, her body cannot be taken on a capias ad satisfaciendum; her husband is no longer liable for her debts and he is not bound; therefore, unless she bind her own property the obligation comes to naught.
The same expression was repeated in Wicks v. Mitchell, 9 Kan. 80, but the context there also shows that the ineffectiveness referred to does not arise from a lack of capacity altogether prohibiting any kind of an engagement, but that it results from the want of a fund to apply to the satisfaction of a contract entered into by one at all times competent to make it.
“A party is held obligated to do that which is the legal effect of the instrument he executes. The rule is as fixed and clear for married women as for any other persons. When they sign promises to pay, the law holds that they act in good faith, and that they intend to do what they have promised. It considers that instrument a válid instrument, and as it can be held valid only because enforceable against her separate estate it enforces it against such estate.” (Wicks v. Mitchell, 9 Kan. 80, 89.)
But the potentiality of property which, as the statute contemplates, may come to her by gift, descent, devise, or bequest, or which she may acquire through her own means, or in connection with her own trade or business, is sufficient to authorize the formation of the contractual relation.
From the foregoing it will be observed that there are no restrictions upon the authority of married women to contract generally. Whatever contract her husband can make she can make. The court availed. itself of the first opportunity presented to make this decision, and that the legislative intention was properly grasped is certain from the fact that the married women’s act of 1868 has remained unchanged to this day.
The statement in Deering v. Boyle and Wicks v. Mitchell that a married woman does not bind herself personally was merely a somewhat automatic enuncia-' tion of the old law found in all the unregenerated texts. Thus, in Reeve’s “The Law of Baron and Femme” it is said:
“It is a general rule that a wife cannot so contract as to bind herself; her contracts are' said to be void in law. The principles on which this doctrine is founded are two: (1) The right of the husband to the person of his wife. This is a right guarded by the law with the utmost solicitude; if she could bind herself by her contracts, she would be liable to be arrested, taken in execution, and confined in a prison; and then the husband would be deprived of the company of his wife; which the law will not suffer. (2) The law considers the wife to be in the power of the husband; it would not, therefore, be reasonable that she should be bound by any contract which she makes during the coverture, as it might be the effect of coercion. On-the first ground she is privileged for the sake of her husband; on the last, for her own sake.” (3d ed., p. 182, *p. 98.)
“No action at law can be maintained against her. For the judgment in that case would subject her person to imprisonment; and thus the husband’s right to the person of his wife would be infringed, which the law will not permit in any case of a civil concern.” (3d ed., p. 270, *p. 171.)
When the opinions noted were written imprisonment for debt except in cases of fraud already had been abolished, and by virtue of the very statute the court was considering the power of the husband over the wife in the matter of contracts and property had been destroyed. Therefore, as suggested in section 1045 of volume 2 of Cord on Legal and Equitable Rights of Married Women, the reasons assigned for the incapacity of the wife and for her exemption from personal judgments are destitute of force under our altered and amended law. In recognition of this fact, no doubt, the tone of judicial utterance soon changed, and in The State v. Hendricks, 32 Kan. 559, 564, 4 Pac. 1050, the justice who wrote the opinion in Deering v. Boyle said:
“In Kansas, women have all the rights and privileges that men have, except merely that they cannot vote at general elections. A married woman may sue and be sued, contract and be contracted with, buy, sell, barter, trade and carry on business in the same manner,, to the-same extent, with like effect, and as freely as any other person may. And all this she may do in her own name, and in the same manner as others not in her condition.”
For all those who feel that the reasoning of Deering v. Boyle is artificial, attenuated, and against the overwhelming weight of judicial opinion elsewhere, there is secure ground upon which to declare that the final conclusion reached was sound. The words feme covert no longer have for us anything more than a historical interest. The species is extinct in this state. This fact can best be brought into appreciation by standing for a moment with hand on mouth peering into the hole of the pit from whence we were digged.
•The common law relating to the rights and powers of married women was based upon a belief in the complete union of the married pair, which would be destroyed by allowing any opportunity for a divided will. It was assumed that conjugal affection would lead the husband to deal justly with his wife, and, if that motive were not sufficiently potent, that a realization of the fact that his wife’s interests were identical with his, fear of family discord, pride of appearance and other promptings would move him to eschew all arbitrariness. But it was believed that occasional lapses into despotism might better be suffered than to compromise the indivisibility and indissolubility of the matrimonial union. Hence, to the numerous and respectable audience present at his lectures Blaekstonesaid:
“By marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert, foemina viro cooperta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. (1 Black. Com., Cooley’s 3d ed., 441.)
In fact, the woman acquired nothing but a right to support. She was despoiled of all her goods, chattels, and money, which the husband might dispose of as absolutely as if they had always belonged to him, and which he might will away from her at his death. He was entitled to the possession and profits of her land during the marriage, and if he survived her, and a child had been born, the right continued until his death. If she acquired property she could not hold it — it went to him. She could not make a contract or a testamentary disposition of her property, because she had no independent will of her own. The making of a contract with her husband was inconceivable. He was guardian of her children, and was entitled to her earnings and her services. Whatever she did was presumed to be under his coercion. He could restrain her person, and could visit corporal punishment upon her for the purpose of restoring that concord and harmony which marital unity required. If the baron killed his feme it was an ordinary kind of homicide. If the feme killed her baron it was a species of treason, because she rebelled against the authority and supremacy of her lord, and she was disemboweled and burnt alive.
All this followed naturally, logically and inevitably from the ideal nature of the perfect union, with headship in the husband, which the sacramental ceremony of marriage at the common law established, but it sti fled the free growth and expression of that individuality which the laws of nature entitle a woman to display, and it resulted in unconscionable tyranny. Misfortune frequently overtook the matrimonial venture. Wives were reduced to poverty by the conduct of vacuous and profligate husbands. Rapacious creditors knew no distinction between property produced by the impecunious but domineering husband and that which the wife had surrendered when she passed in mcmum viri, and because she was a legal and economic nonentity she was obliged to suffer and submit in abject helplessness.
Courts of equity interposed their cumbersome makeshifts of trusteeships, uses, settlements', and equitable separate, estates; but equity follows the law, and unaided it could not overthrow the harsh and stern legal doctrines by which the degradation of married women was accomplished. Finally remedial legislation put in its tardy appearance. In Kansas a beginning was made with the territorial act of 1859, already cited. When the state constitution was framed it commanded ■the legislature to provide for the protection of the rights of married women in acquiring and possessing property — real, personal, and mixed — separate and apart from their husbands, and for their equal rights in the possession of their children, and created the homestead, which it exempts from forced sale for the payment of debts and which it prohibits the husband from encumbering or alienating without the joint consent of his wife. (Const., art. 15, §§ 6, 9; Gen. Stat. 1901, §§ 232, 235.)
These constitutional provisions themselves irretrievably broke down the common-law theory of marital unity, destroyed the notion of feminine subjection to baronial* authority, threw off the restraints of coverture, and installed the modern doctrine of the equality of man and wife before the law. Legislative acts based upon the same principles speedily followed, until not only does a married woman have the right to acquire, possess and dispose of her own property in her own way, free from her husband’s dictation and domination, possess the homestead equally with him and defeat its alienation, if such be her will, make and fulfil contracts for her services, keep her own earnings, conduct her own business and retain the profits, buy from her husband and sell to him as if he were a stranger, sue and be sued, make a will, educate and control her children equally with her spouse, and govern her own conduct free from his interference or restraint, but she is authorized to attend political caucuses and conventions, nominate candidates, vote at municipal and school elections according to her own independent judgment and inclination, and to hold public offices of profit, trust, and honor. What there is left of subjugation by her husband or subjection to him to incapacitate her to make any kind of contract she please is difficult to perceive..
All the legislation affecting the status of married women must be considered in order that the full virtue of each separate act may be appreciated, and it is noteworthy indeed that on the same day the married women’s act of 1868 became operative the following statute went into effect :
“The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state; but all such statutes shall be liberally construed to promote their object.” (Gem Stat. 1868, ch. 119, § 3; Gen. Stat. 1901, § 8014.)
The court, therefore, is not obliged to bend its efforts toward the preservation of the swollen autocracy of the baron over the feme, but it is at liberty to interpret acts of the legislature from the standpoint of the legislature itself, and according to the remedial purpose it had in view. This purpose clearly appears to involve a recognition of the fact that the exercise of rights which formerly attended marriage by capture is no longer to be tolerated; that in the family, as elsewhere in society, the finer relations of adult individuals are not fixed by status but flow from uncoerced consent and mutual agreement; that the wants, the interests, the capacities, the activities and the aspirations of a married woman cannot be incorporated and consolidated into those of her husband so that she performs everything under his wing and cover, as Blackstone would have; that the kernel of her life is herself, which conjugal love no more obscures in her than in a man; and that she is entitled.to the same untrammeled opportunity for the development and display of her womanhood that he possesses for the development and display of his manhood.
“The tendency in Kansas has always been toward an exact equality among the sexes under the law. The tendency has been to place all adult persons, male and female, upon the same legal plane so far as such a thing can be accomplished.” (Mr. Justice Valentine, in Miller v. Morrison, 43 Kan. 446, 449, 23 Pac. 612.)
“In Kansas a woman is in nearly all matters accorded civil and political equality with man; she is not his servant nor his slave. Here, the sexes may harmonize in opinion, and cooperate in effort; here, woman is no longer subordinate to man, but the two are coordinate together; here, the burden of a common prejudice and a common ignorance against woman has been wholly removed; here, the tyranny which degrades and crushes the wives and mothers in other countries no longer exists; here,'the coveted rewards of life forever forbidden them in some of the states are within their reach; here, a fair field for their genius and industry is open, and womanhood, with the approbation of all, may assert its divinely chartered rights, and fulfil its noblest duties.” (Chief Justice Horton, in The State v. Walker, 36 Kan. 297, 311, 13 Pac. 279, 59 Am. Rep. 556.)
Therefore the one-person idea of the marriage relation as expounded by the common-law authorities can no longer be made the touchstone of a married woman’s rights or capacities in this state. Her powers and responsibilities do not depend upon the principle of unity, but upon the principle of diversity. True, some adumbrations of the doctrine are shown by our law, and so far as they have become fixed and settled rules must be respected. But coverture is an obsolete relation. It flourished originally in the atmosphere of caste and privilege, and it has gone the way of the patria potestas and chattel slavery.
“In this state a husband and wife are two independent persons; and the husband has no more immediate interest or control over the property of the wife than any other person. Our system of marriage literally implies the equality of the husband and wife; the integrity and individuality of each; the mutual obligation in which love and duty find no bondage; the division of labor; and the multiplication and sharing of happiness.” (Baker v. Stewart, 40 Kan. 442, 459, 19 Pac. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213.)
There is no longer any reason for the common-law doctrine relating to the contracts of married women, and with the death of the reason for it every legal doctrine dies. Reeve applies this test to the case of married women’s contracts.
“The true criterion, by which we determine whether she is liable or not upon her contracts, is, whenever the aforesaid marital right [of the husband] can be affected, and whenever we can presume a possibility of coercion, her contracts are utterly void; but if we can find a case when no marital right can be affected, and every presumption of any opposite coercion is removed out of the way, the wife is bound. The words of that distinguished character, Lord Hardwicke, in 1 Ves. 305, are these: ‘The disability arising from coverture is not for want of discretion, but because she is under the power of the husband; this position I take to be correct, and the consequence is clear, that when she ceases to be under his power there is no solid objection to her managing her own estate as she chooses, if no marital right is affected by it.’ ” (Reeve, Bar. & Fern., 3d ed., p. 182, *p. 98.)
' This, court has had occasion to act upon the same principle:
“The laws of Kansas do not presume that a wife who unites with her husband in the commission of a crime acts under his coercion. On the contrary, the laws of Kansas presume that all persons of mature age and sound mind act .upon their own volition,_ and are responsible for their acts. . . . But, giving this presumption its fullest scope — supposing that it has operation at common law in murder cases, as well as in many others — still we do not thihk it can have any operation in Kansas; and this on account of the changed condition of our society and institutions. The' presumption was probably right, when first adopted, for the state of society which then existed. But it cannot be right now, under our present condition of society. And it is not the law. There was once a reason for the presumption; but that reason has long ago ceased to exist in Kansas; and when the reason for the presumption has ceased to exist the presumption itself must also cease to exist.” (The State v. Hendricks, 32 Kan. 559, 564, 565, 4 Pac. 1050.)
“Under the provisions of our statute the reasons assigned for the liability of the husband for the torts of his wife no longer hold good, and therefore, in our opinion, under the changes made by the statute the liability no longer exists. It is a part of the common law that, where the reason of the rule fails, the rule fails with it. . . . Again, in this state, the common-law power of correction of the wife by the husband is no longer tolerated. Under the common law the married woman’s legal existence was almost entirely ignored. She was sunk into almost absolute nonentity, and rested in almost total disability; but all of this has been changed by the statute, and to-day, in our state, ‘her brain and hands and tongue are her own, and she should alone be responsible for slander uttered by herself.’ . . . Our conclusion is that the provisions of our statute change the common-law rule, and thereby discharge the husband from liability for the torts of the wife committed when he is not present and with which he has no connection. In this state the wife stands upon an equality, in all respects, with the husband. She is alone responsible for her contracts, and should be alone responsible for her words and her acts.” (Norris v. Corkhill, 32 Kan. 409, 410, 412, 4 Pac. 862, 49 Am. Rep. 489.)
The conclusion must be that in Kansas coverture affords no ground for declaring invalid a married woman’s contract, even although she possess no separate estate or separate trade or business. This being true, the Suggs mortgage is a valid lien upon the real estate in controversy, and the plaintiff is entitled to have it foreclosed.
E. J. Lowe stands upon the proposition that Suggs and wife did not execute or deliver the instrument through which Mason claims title, and she verifies her pleading to this effect. But she alleges that if she should be mistaken the instrument is no more than a mortgage, upon which suit is barred, and hence that the receiver’s deed to Green is a nullity as a conveyance of land. Besides, she denies under oath the authority of the receiver to execute and deliver that deed. She is, therefore, thoroughly committed to the position that the title to the land passed to the Suggs heirs upon the death of James Suggs, and she cannot be allowed to assume antagonistic attitudes upon the record. The Suggs heirs could not have taken a yalid tax title to their own land. It was their duty to pay their taxes, and a purchase by them from the holder of a tax deed would have amounted to no more than a redemption. The same is true of their grantee, and Lowe acquired nothing by virtue of her acquisition of the Rundle tax title after she had bought out the Suggs heirs.
The district court found that the First National Bank deed was executed and delivered, and did not find that it was a mortgage. It was made subject to the plaintiff’s mortgage. The copy in the record shows a consideration of $1000. Soon after its execution and delivery Suggs and wife left the land, and the deed drew to the bank constructive possession. The bank made public claim to the land in its reports to the comptroller of the currency, paid the taxes upon it, and paid the interest upon the plaintiff’s mortgage. Finally it sold the land as its own to one not shown to have possessed any knowledge of the claimed defect, who in turn sold it to the defendant Mason. Under these circumstances James and Malinda Suggs would be estopped to deny, as against the present claimant under that deed, that it was ineffectual as a conveyance. The Suggs heirs would be estopped in the same manner, and their grantee, Lowe, possesses no right superior to theirs to dispute it.
The defendant Rand makes no claim that he acquired a good title to the land or that he was an innocent purchaser. He claims no higher right than those which Lowe possessed and could convey. Lowe cannot plead for him that he purchased innocently, for he hplds Lowe’s covenants that the title is good in fact.
Lowe acquired title by a quitclaim deed reciting only a nominal consideration. Inquiry at the treasurer’s office — one of the public-record offices of the county— would have disclosed the fact that the bank had paid the taxes on the land for a series of years. An inquiry at the bank or of its receiver would have discovered the bank’s title. Hence Lowe was not an innocent purchaser, and Rand’s title obtained through her altogether fails. The purchase-money mortgage given by Rand likewise fails for want of consideration.
The judgment of the district court is reversed, and the cause is remanded, with instruction to render judgment-on the findings of fact in accordance with the views expressed in the foregoing opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
This was an action in ejectment for the possession of a lot in the city of Dexter, Cowley county. In a trial to the court the plaintiff had judgment. The defendant brings error. Each claims title under a different tax deed.
In 1890 the title to the lot was in J. H. Serviss. The taxes for that year were not paid, and in September, 1891, the lot was sold and bid off by Cowley .county. Ten years later — in June, 1901 — the county treasurer assigned the certificate to William Greenwell, He assigned it to the plaintiff in error, and, on March 10, 1902, a tax deed was issued to the latter and recorded on the same day. In December, 1902, plaintiff in error also obtained a quitclaim deed from Serviss, the original owner. He claims to have entered into immediate possession of the premises at the time his tax .deed was issued.
The taxes for the year 1891 remaining unpaid, the lot was sold again at the regular sale in September, 1892, and the purchaser assigned his certificate to the National Bond and Debenture Company. A deed was issued to that company October 10, 1895, and recorded on the same day. By subsequent conveyances this tax title passed to the defendant in error, who claims by virtue thereof, and, on July 14, 1903, being then out of possession, he brought this action. By section 7654 of the General Statutes of 1901 it is provided that when lands or town lots are bid off by the county they shall not be sold for taxes levied subsequently until they shall have been redeemed or sold by the county, or the tax certificate assigned by the county. It is conceded that this tax deed was voidable. (Belz v. Bird, 31 Kan. 139, 1 Pac. 246; Flint v. Dulany, 37 Kan. 332, 15 Pac. 208.) But the defendant in error contends that as it was of record for more than five years, during which time he and his immediate grantors had been in possession of the lot, his title thereto cannot be assailed; that his possession was unlawfully disturbed by the plaintiff in error immediately before he brought this action.
Plaintiff in error contends, first, that the right based upon the statute of limitations is a personal one, and is waived unless expressly pleaded. The only issue was ownership and the right to the possession. Under the pleadings in ejectment provided for by the code it is not necessary for plaintiff to state in his petition how his title or ownership is derived. (Code, § 595; Gen. Stat. 1901, § 5082.)
The second contention raises a more serious question. The tax deed under which the defendant in error claimed was not void on its face, but merely voidable. With him and his immediate grantors in the actual possession, what was the effect of the five-year statute of limitations? Did it give the defendant in error a right which he could use affirmatively and assert for the purpose of recovering the possession of the premises; or was the-right which he thus acquired merely one that he might use as a defense in case his title and ownership should be assailed? It is contended that, having lost possession, he could not use the five-year statute for the purpose of seeking affirmative relief. The cases of Myers v. Coonradt, 28 Kan. 211, Walker v. Boh, 32 Kan. 354, 4 Pac. 272, Doyle v. Doyle, 33 Kan. 721, 7 Pac. 615, and Stump v. Burnett, 67 Kan. 589, 73 Pac. 894, are cited and relied upon. In the case last cited the authorities were reviewed, and it was held that notwithstanding the statute a tax deed valid on its face and recorded for five years may be impeached when used as a foundation for affirmative relief in an action brought by the tax-title holder. In that case, however, the land was vacant and unoccupied. The only possession relied upon was constructive possession. This was mentioned as a controlling circumstance. It was there said:
“It is perfectly plain that this is an action-to procure something which the plaintiff has never enjoyed. He never had actual possession of the land. He might have taken such possession but he neglected to do so. True, the tax deed, good on its face, cast upon its holder constructive possession, but constructive possession exists only in legal contemplation, and falls far short of the immediate occupation in fact which actual possession requires. The plaintiff therefore seeks to enlarge the scope of his actual proprietorship and add to the sum of enjoyment hitherto furnished by his tax deed the new, distinct increment of actual possession.” (Page 591.)
In the case at bar the party setting up the tax deed claimed to have had actual possession of the lot from a few months after the recording of the tax deed in 1895 until dispossessed by the plaintiff in error. There was evidence tending to support this claim, and the general finding of the trial court may be conceded to have -settled that contention in favor of the defendant in error.
An exception to the rule that a statute of limitations can only be used as a shield of defense and not as a weapon of attack is recognized where the person claiming under the statute has been wrongfully dispossessed after the prescribed period has run. He may be restored to his rights in an action for possession and base his claims upon the statute. Tiedeman, in section 740 of the second edition of his work on Real Property, says: “But in any ease a temporary recovery of possession by the original owner after the running of the statute of limitations will not affect the disseizor’s title, where there has been no voluntary surrender to the original owner.” To the same effect see Hinchman v. Whetstone, 23 Ill. 185; Angell, Lim. § 380.
Where one has held adverse possession of land for the prescribed period, under a claim of title other than a tax deed, his title becomes absolute. He is not required thereafter to continue his possession in order to protect his rights; and while they have been acquired under a statute which in terms only bárred the remedy, and made no provision for extinguishing the title of the original owner or casting it upon the adverse claimant, nevertheless that is the net result, and courts will grant him affirmative relief in an action based upon the title thus acquired. (Leffingwell v. Warren, 67 U. S. 599, 17 L. Ed. 261; Faloon et al. v. Simshauser et al., 130 Ill. 649, 22 N. E. 835; Alexander and others v. Pendleton, 12 U. S. 461, 3 L. Ed. 624; Angell, Lim., 6th ed., § 381.) The title acquired be comes as perfect as a title by deed. (1 A. & E. Encycl. of L. 883.)
If there is any reason why this rule should not apply to the title- acquired under a tax deed valid on its face, where the five-year statute has run, it must be found in the nature of the thing itself, and because tax deeds are not favored in the law. It has been said that after the five-year statute has run the holder of the tax deed may retain all that he is in possession of by virtue of it, but that he may not use it to obtain something more. (Walker v. Boh, 32 Kan. 354, 4 Pac. 272.) In that case the land was vacant and unoccupied, and the action was not in ejectment but one to quiet the title of the tax-deed holder. Here defendant in error seeks to regain something which he had, and was entitled' to, and which was wrongfully taken from him. We think that when a tax deed, valid on its face, has been of record for five years, and the tax-title holder is in possession, claiming by virtue of the tax deed, and one claiming adversely wrongfully dispossesses him by force, fraud, or stealth, the holder of the tax title may maintain ejectment to regain what was wrongfully taken from. him. He does not thereby seek to enlarge the scope of his original claim or to add to the sum of enjoyment furnished by his tax deed; but his cause of action arises by virtue of the wrongful dispossession, and the courts will permit him to base his claim upon his tax deed and former possession and the wrongful act of the other party. To hold otherwise would encourage reprisals and scrambling for possession, which the law discountenances.
Before the limitation has run the original owner may enter. His entry then is not wrongful, even though made against the will of the person claiming under the tax title. After the limitation has run the owner’s right to enter has lapsed. If section 141 of the tax law (Gen. Stat. 1901, § 7680) prevents him after five years from maintaining an action to regain possession from one holding either actual or constructive possession, how can it be said with reason that he can lawfully acquire any rights by a possession obtained by force, fraud or stealth against the person in actual possession? If he can acquire no rights by possession obtained wrongfully, the courts should be open to the one wrongfully dispossessed, and the parties should be restored to their original position.
There is no force in the claim that the two-year statute of limitations barred the action, or that the defendant in error waived any rights by failure to plead the facts relied upon to avoid the statute. As before observed, the petition was in the statutory form, and it was not necessary for the defendant in error to plead any of the facts relied upon to show his title. He claimed that the lot was in the actual possession of himself and his immediate grantors from 1895, shortly after the deed was recorded, until he was wrongfully dispossessed by the plaintiff in error. The judgment of the trial court settled these contentions in his favor. Under these facts the two-year statute has no application. (Thornburgh v. Cole, 27 Kan. 490.) The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was' delivered by
Smith, J.:
Several of the letters attached as exhibits to the petition seemed to acknowledge an indebtedness or obligation from Healey to Disney; probably the following, under the date of April 9,1900, less than five years before the commencement of this action, is the strongest, to wit:
“W. O. Disney, Russell Springs, Kan.: Dear Sir and Friend — Yours enclosing deed to execute received. You don’t say anything about canceling my note. I am willing to make the deed, but must have the note and mortgage released, and note returned to me.
Yours truly, T. J. Healey.”
We think this is a sufficient acknowledgment of an indebtedness to toll the statute, being, in effect, a proposition to deed land in consideration of the release of the note and mortgage and the return of the note. (Pracht v. McNee, 40 Kan. 1, 18 Pac. 925.) Healey had the legal title to the land at the time he acknowledged the indebtedness.
The question remains whether the defendant Jordan was bound by his alleged contract with Healey to assume and pay the latter’s indebtedness to the plaintiff. It was said by Mr. Justice Brewer, in Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765:
“Where a note and mortgage are once barred, a subsequent revivor of the note by part payment, promise, or acknowledgment of the payor, will revive the mortgage so far as it affects the interest of the payor in the mortgaged premises.” (Syllabus.)
The mortgage,' as well as the note, was therefore revived as to Healey at the time of the conveyance, by himself and wife, of the land to Jordan, and the latter took it subject to the mortgage lien, and agreed, in consideration, or in part consideration, of such conveyance, to pay the mortgage indebtedness. The mortgage was revived as to him, and the statute of limitations as to him commenced to run at the time of such conveyance. (Schmucker v. Sibert, supra.)
The judgment of the district court is reversed, and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by William G. Fairchild to recover from Henry Kruse lots 1, 2, 4, and 5, and the southwest quarter of the northeast quarter and the southeast quarter of the northwest quarter of section 5, township 30, range 17. It appears that Fairchild held the patent title to the land, and he also presented a tax deed issued in pursuance of a sale for the taxes of 1896, but it was conceded that the tax proceedings upon which that tax deed was based were illegal. Kruse rested his claim of title upon a tax deed executed to Clarence A. Farnum in 1894, and subsequent deeds purporting to convey the land to himself, but the trial court held the tax deed to be bad, and gave judgment for plaintiff. The validity of this tax deed is the main question in controversy.
It was attacked upon a number of grounds, including the uncertain and defective description of the land sold. In the tax deed the description of the property sold is: “The W. l/2> N. E. %, and the E. i/2, N. W. %, of section 5, township 30, range 17 west of the 6th P. M., situated in the county of Kiowa and state of Kansas." The contention is that the description does not fit the land for which Fairchild asked a recovery. The land is a fractional section, a portion of which is subdivided and described as lots, and in the government survey of the land, as well as in all the transfers, the northern part of the land is described as lots 1, 2, 4, and 5. In attempting to show that the land sought to be recovered by Fairchild had been sold for taxes, and was the same land included in the Farnum tax deed, Kruse offered in evidence a plan of the government survey, as shown by the official plats and field-notes. The fol lowing diagram shows the government plan of subdivision and description:
In other conveyances offered in evidence by Kruse the descriptions of the land do not conform to that of the tax deed under which he claims. The county clerks are required to obtain from the land-offices abstracts of government lands that have become taxable since March of the previous year, and of course these are certified as they have been surveyed and subdivided by the government. (Gen. Stat. 1901, § 7575.) The assessor is required to make out a pertinent and correct description of each piece, lot or parcel of real property, in numerical order as to blocks, lots, sections, or subdivisions, in his township or city. (Gen. Stat. 1901, §7569.) The taxing officers have the means of obtaining a correct description of the real property to be taxed, but it appears that the tax deed in question does not contain a correct or any recognized description of the land. Nor does it appear that the land had ever been described otherwise than as it had been subdivided and designated in the government survey. The patent, and every deed under which plaintiff claimed, described the land properly in accordance with the government plan. Even in the tax deed of plaintiff, which was conceded to be illegal, it was so described. All the intermediate instruments, from that of Farnum, the tax-title grantee, down to the defendant, accorded with the government survey, and there was nothing to show that there had ever been any other subdivision made of it.
A description is sufficient if it indicates the land with ordinary and reasonable certainty, but it should be so described that the owner may not be misled. It is important that he should be informed of the levy of a tax upon his land, and the amount of it, so that he may have the opportunity of paying the tax and saving the land from forfeiture and sale. It is equally important that he should have an opportunity to redeem the land after it has been sold for taxes. These opportunities are not afforded unless his land is identified by some pertinent description or designation. The one used in this instance is not pertinent or applicable to the land in question, and did not furnish the owner any fair means of identification. The description may have included some of the land in suit, but how much, or, if a part, what part of the whole, was taxed and sold cannot be determined from the inapt and indefinite description employed. The court ruled correctly in holding the tax deed to be invalid.
It may be noted, in passing, that there was omitted from the tax deed the county and state in which the assignee of the tax-sale certificate resided. This is a prescribed recital in the statutory form.
Another, objection made to the deed is that the seal of the county clerk, instead of the seal of the county, was affixed. There is a recital in the instrument that the county clerk has affixed the seal of the county. Under the authority of the recent case of Clarke v. Tilden, 72 Kan. 574, 84 Pac. 139, this must be deemed a sufficient authentication. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The Fields & Slaughter Company obtained a judgment against Forrester Brothers, to satisfy which they garnisheed the Kansas City Southern Railway Company. It answered that' it was not indebted. Upon this answer the Fields & Slaughter Company took issue. The jury returned a verdict for the garnishee. Upon application of the plaintiffs the verdict was set aside and a new trial ordered. The garnishee prosecutes error to reverse this order.
There were no pleadings; consequently the conten-, tions of the parties can only be ascertained from the statements made by counsel and the questions which appear to have been tried. From these it appears that the Fields & Slaughter Company claimed that Forrester Brothers were engaged in buying and shipping corn and oats; that about September 27, 1901, the latter entered into a contract with certain railroads running from Omaha and Council Bluffs and other common northern points to Kansas City, called the northern connecting lines, and the Kansas City Southern Railway Company, for the transportation of corn and oats from Council Bluffs and other common points on these roads to Kansas City and over the Kansas City Southern to Shreveport, Ala., and other common points in the south, at a rate of sixteen and one-half cents per hundredweight; that the Kansas City Southern agreed to accept as its proportion of this rate eight cents per hundred, and to ship the corn over its line from Kansas City at the rate of eight cents per hundred; that Forrester Brothers commenced to ship the corn about the 1st of October, 1901, and continued shipping until February, 1902; that the Kansas City Southern charged eight cents per hundred until October 31, after which time it raised the rate to ten cents, and subsequently to fourteen cents; that Forrester Brothers paid this excess, amounting to about $10,000, and therefore that the Kansas City Southern was indebted to Forrester Brothers for this excess. It was this alleged indebtedness of the Kansas City Southern to Forrester Brothers that the Fields & Slaughter Company were attempting to apply upon their judgment against Forrester Brothers.
The Kansas City Southern denied that it had ever made a contract with Forrester Brothers, or any one representing them, for the shipment of corn and oats from Kansas City to Shreveport or other common points at eight cents; but claimed that during the months of September and October, 1901, it had declared and published a rate of ten cents per hundred pounds on corn and oats from Kansas City to Shreveport, Texarkana, and other common southern points; that this rate had been filed with the interstate commerce commission at Washington, as required by the interstate commerce act, and was in force until October 31, about which time it changed its schedule and advanced the rate to fourteen cents, which rate was also published, and filed with the interstate commerce commission; that if any contract existed by which Forrester Brothers were to receive a special rate lower than that so declared and published, such contract would be in violation of the interstate commerce act, and void. It was also contended by the garnishee that its only agreement concerning the shipment of corn and oats coming to it over the northern connecting lines was made with one Shauffler, traffic agent for such lines, by which it agreed to divide the sum of the •two local rates with the northern connecting lines on a more advantageous basis for the northern lines than its proportion of the two local rates; that no time was fixed for the expiration of this agreement for the division of the two local rates from the northern points to the southern points; that before any grain was received by the Kansas City Southern the northern lines forwarded a statement or schedule of such division of rates to the Kansas City Southern, according to which the agreement was to terminate on October 31, 1901; and that none of the alleged overcharges were made by the Kansas City Southern prior to that date.
It was also contended by the garnishee that the contract relied upon by the plaintiffs as a basis for its liability to Forrester Brothers was so indefinite and uncertain, both as to the quantity of grain to be shipped and the time within which it should be actually shipped, that it was non-enforceable; and also that the alleged contract, if made as claimed by plaintiffs, would be void for want of mutuality, in that Forrester Brothers did not agree to ship any grain over its line, and were not bound so to do. Another contention by the •garnishee was that Forrester Brothers paid the rates charged without protest, complaint, or objection, and therefore that the payment was voluntary. All of these facts were passed upon by the jury, and they found for the garnishee. Upon a motion for a new trial the court was required to review all of the evidence produced on the trial tending to establish or refute these disputed facts.
We are not informed upon what grounds the court set aside the verdict and granted a new trial. The granting of a new trial is, however, not looked upon unfavorably by the law, and is a matter so largely within the discretion of the trial court that this court has seldom found it necessary to reverse such orders. The trial court, on a motion for a new trial, is not required to determine that the party applying-therefor has not had a fair trial, but if it entertains a reasonable doubt upon the question a new trial may be granted. It is the purpose of the law that every litigant shall have his right fairly and honestly adjudicated in accordance with its rules and forms, and, that no advantage may be taken, the matter of granting new trials is very largely a matter of judicial discretion. Upon an application for a new trial, where many material issues of fact have been involved and determined by the jury, the trial judge must review and weigh all the evidence passed upon by the jury, and also take into consideration everything transpiring on the trial. It may happen that incidents may take place at the trial which could not be put into a record and which would fully .justify the court in granting a new trial. Such incidents cannot be made to. appear to this court. For these reasons this court has not the opportunity of knowing what induced the trial court to grant the new trial, in the absence of a statement in the record.
It was said in the syllabus of the case of City of Sedan v. Church, 29 Kan. 190:
“The supreme court will not reverse the order of the trial court granting a new trial unless the supreme, court can see beyond all reasonable doubt that the trial court has manifestly and materially erred with respect to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made.”
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
John W. Reeves recovered judgment for injuries alleged to have been sustained by him through the negligence of the defendant, the Federal Betterment Company, a corporation. The facts alleged in the petition are, substantially, that the plaintiff was working for the Morehead Manufacturing Company in its factory, situated at Morehead, in Neosho county, Kansas; that the defendant was a corporation engaged in drilling for oil and gas and in the transportation of such products by pipe-lines to consumers; that it led a pipe from its main line into the Morehead Manufacturing Company’s place of business for the purpose of supplying that company with natural gas for fuel to operate its factory; that in doing so it attached thereto what is called a “Tobey meter,” but negligently failed to place any regulator between the meter and the high pressure in the main line, thus permitting the high pressure in the main line to come into the lateral line in the factory; that, through the negligent acts of the defendant in carelessly, negligently and unskilfully constructing and maintaining the pipe and meter, and in failing to place a regulator between its main pipe-line and the meter in the factory where the plaintiff was working, and in using a meter which was insufficient to restrain the high pressure of the natural gas in the main line, the pressure burst the meter, causing an explosion which hurled plaintiff the distance of a rod, knocking him senseless, or into such a dazed condition that he did not realize what had happened; that the concussion was so great as to injure his ear and hearing on the side next to the explosion, and permanently to injure his left side, shoulder, and chest; and that either by reason of the explosion of the gas upon him, or by reason of being struck on the left side of his head by some missile hurled against him by the explosion, he sustained concussion of the brain, resulting in acute mania, which lasted in a severe form for several weeks, during which time he required the constant care and attention of others. Other allegations as to the extent of plaintiff’s injuries were made.
Upon the filing of this petition in the district court of Neosho county, in which county the accident' occurred, a summons was issued, directed and delivered to the sheriff, upon which he made the following amended return of service:
“Received this writ May 24, 1904, and as I was unable to find the president, chairman of the board of directors or trustees, or other chief officer, or the cashier, treasurer, secretary or clerk, I served the same, as commanded therein, in my county of Neosho and state of Kansas, on the within-named defendant, the Federal Betterment Company, a corporation, as fol-’ lows: On May 21, 1904, by delivering to W. Kinney, managing agent of said Federal Betterment Company, by delivering to him personally a true and certified copy of the within summons, with all the indorsements thereon.
I. F. Yockey, Sheriff, Neosho County, Kansas.
By J. T. Smith, Deputy (who was specially requested to make said service)
The defendant appeared specially and filed the following motion to quash the summons:
“Now comes the Federal Betterment Company, appearing specially and for the purpose of this motion only, and moves the court now here to quash, vacate and set aside the pretended summons and the pretended service thereof in the above-entitled action, for the following reasons, to wit:
“(1) Because there has been no service of summons upon the said Federal Betterment Company.
“(2) Because there has been no service of summons upon the said Federal Betterment Company, or any authorized agent of said company.
“ (3) Because said action was improperly instituted in Neosho county, Kansas.
“(4) Because said pretended summons was improvidently issued.
“(5) Because said summons and the return thereof are void and of no effect, and the court has not by the issuance of such summons obtained any jurisdiction whatever over said Federal Betterment Company.”
In support of the motion defendant introduced a certified copy of its charter, showing that it was incorporated under the laws of West Virginia, which charter states that the principal place of business shall be located in the city of Topeka, Shawnee county, state of Kansas; and that its chief works shall be located in the city of Cherryvale, Montgomery county, Kansas, but that it is expected and intended by the company to have branches located at other points in the state of Kansas, and also in the state of Missouri, Indian Territory, and Oklahoma territory, and at numerous other places. It also caused to be read the affidavit of F. W. Freeman, as follows:
“Affiant is the secretary and treasurer of the Federal Betterment Company; that affiant resides in the city of Topeka, county of Shawnee and state of Kansas; that the said Federal Betterment Company is a corporation duly organized and existing under and by virtue of the laws of the state of West Virginia, and that said corporation now is, and has been for about one year last past, duly authorized to transact business in the state of Kansas, and that in said last-named state said corporation has an office at the city of Topeka, and that all the chief officers of said corporation are now and have for a long time been actual residents of Shawnee county, .in the state of Kansas; that said corporation has not now and never has had any office or place of business in the county of Neosho, in said state, and that none of its officers reside therein, but that affiant is informed and believes that in the above-entitled action service of summons was attempted to be made in the above-entitled action upon the said Federal Betterment Company in Neosho county, Kansas, by delivering a pretended copy of an alleged summons to one W. Kinney; but affiant avers that said W. Kinney was not at the time of such pretended service, had never theretofore been, and is not now, an officer or agent of said company, and said W. Kinney is not now and never has been the cashier, treasurer, secretary, clerk or managing agent of said Federal Betterment Company, and is not now and never has been a person in charge of any office of said compány.”
It also filed the certificate of the secretary of state of the state of Kansas showing that the charter board had authorized the Federal Betterment. Company to engage in the business of mining and other pursuits, as expressed in the application, in the state of Kansas, until the certificate should be revoked, or the authority canceled.
In refutation of the proofs offered on the motion the plaintiff introduced the affidavit of J. T. Smith, a resident of Morehead, Neosho county, Kansas, which reads:
“J. T. Smith, of lawful age, being duly sworn, on his oath says: That he resides at Morehead, Neosho county, Kansas, and that he is a user of natural gas,which he obtained from the Federal Betterment Company; that affiant is one of the proprietors of the Morehead Manufacturing Company, which said factory is located just west of Morehead, in Neosho county, Kansas; that affiant not only made contracts with said Federal Betterment Company or with its foreman and agent, W. Kinney, for the use of gas in his residence but also for gas for said factory; affiant knows that said Kinney employed all the hands and hired, worked and discharged all the men that put in the gas lines for said defendant company; that he, said Kinney, paid off all the company’s hands; that he, said Kinney, made all contracts with gas users; that he put in all pipe-lines and connected the defendant’s high-pressure line with- the buildings of all gas users; that said Kinney collected the gas rentals due said company each month and receipted for the same in the name of said defendant company, by ‘W. Kinney, its agent or managing foreman;’ that said Kinney did and performed all things for and in behalf of said company in Neosho county; that said Kinney was located a part of the time each month at Morehead, Neosho county, Kansas, in the discharge of his duties as agent and field manager of said defendant, and that he sold gas at Morehead, and collected same monthly in the name of said defendant, the Federal Betterment Company; that affiant has seen as many as twenty-five receipts given by said Kinney to Neosho county gas users prior and up to the injury of plaintiff herein, which receipts were signed in the name of the defendant company, by W. Kinney, agent and superintendent for said company.
“That said company has gas lines in Montgomery, Labette and Neosho counties, in Kansas, and affiant knows that said W. Kinney has always acted as the managing agent of said- defendant company in said counties, and that, save and except said Kinney, there never was any other authorized person to represent said defendant in Neosho county; that said Kinney, the agent and superintendent of said defendant company, is the person who put in the first meter in the shop where Reeves was injured, and that affiant notified him or some of his workmen that it would not work, when he came back and said to lead the joints and then turn in the gas, that it would then be ready to use; that after Reeves’s injury said Kinney came back to put in a regulator and a new meter and took out the scraps of the one that had been blown to pieces; that said Kinney always appeared as though the gas line was his or that he had supreme control of its affairs for said defendant, the Federal Betterment Company; that affiant was and is the duly appointed, qualified and acting deputy sheriff of I. F. Yoekey, and that he served the summons in this action upon said Kinney as agent, foreman and representative of said defendant company, as more fully set forth in the returns on said original summons now on file in this action; that at the time said I. F. Yoekey was and is the duly elected, qualified and acting sheriff of Neosho county, Kansas.”
The motion to quash was denied, to which ruling the defendant excepted. Thereafter it filed its answer, and the cause was tried by the court and a jury, a verdict was returned, and a judgment rendered thereon for the plaintiff. Defendant complains.
The first alleged error is the order of the court in denying defendant’s motion to quash the summons. It contends that there is but one way by which service can be had upon a foreign corporation that has been granted permission to do business in Kansas, and that is by having the summons directed and delivered to the secretary of state, as provided in section 1262 of the General Statutes of 1901. That section reads:
“Actions against any corporation organized under the laws of any other state, territory or foreign country, and doing business in this state, may be brought in any county where the cause of action arose or in which the plaintiff may reside. The summons shall be directed to the secretary of state, and shall require the defendant to answer by a certain day, not less than forty days nor more than sixty days from its date. Said summons shall be forthwith forwarded by the clerk of the court to the secretary of state, who shall immediately forward a copy thereof to the secretary of the corporation sued; and thereupon said secretary of state shall make return of said summons to the court whence it issued, showing the date of its receipt by him, the date of forwarding such copy, the name and address of the person to whom he forwarded said copy,, and the costs for service and return thereof. Such return shall be under his hand and seal of office, and shall have the same force and effect as a due and sufficient return made by the sheriff on process directed to him.”
To this contention we do not agree. Section 4504 of the General Statutes of 1901 provides that “where the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.” The defendant is a foreign corporation, and service of process may be had on such persons in any of the ways provided by statute. It might have been had, as contended by the defendant, by delivering the summons to the secretary of state; but this is not the only way. Service might possibly have been made in this particular case by delivering the summons to any of its officers residing in the state, under section 4483 of the General Statutes of 1901. Section 4504 provides an additional way. None of these provisions is exclusive of the others. Where there are several methods for obtaining such service the plaintiff may select any one. The corporation cannot complain that he did not select some other equally good way. Statutes which provide for service of process on foreign corporations should be liberally construed for the accomplishment of the purpose intended, namely, that of bringing such persons into court. They are permitted to enter the state by comity only, and in the methods of subjecting them to the jurisdiction of the courts they cannot insist upon a technical or strict construction in their favor. If, therefore, the non-resident defendant corporation had a managing agent in the county of Neosho, where the action was brought, service could have been had on the corporation by serving the summons on such managing agent in that county. The question then is, Was W. Kinney the managing agent of the defendant? This is a question of fact, and it must be determined from the affidavits of Freeman and Smith.
It will be observed that the affidavit of Mr. Freeman on the question of agency is very general in terms. The specific statement is: “But affiant avers that said W. Kinney was not at the time of such pretended service, had never theretofore been, and is not now, an officer or agent of said company.” This is but the statement of Mr. Freeman’s conclusion. It is not a detailed statement of what Kinney’s duties to the corporation were. The court was not given the facts as Mr. Freeman understood them, from which it could have arrived at a conclusion; instead of doing this the affiant gave his conclusion, and he may have believed that Kinney was not, as he expressed it, the “agent of said company.” He may have believed that it required the appointment of the board of directors to constitute Kinney a managing agent of the company, and being secretary he knew this had never been done. The affidavit of Smith was.a detailed statement of the acts performed by Kinney for the company, from which the court below concluded that Kinney was the managing agent of the company, within the meaning of the section of the statute authorizing the service of summons on a managing agent of a foreign corporation, and in this we think the court was correct.
Whether one is a “managing agent” of a foreign corporation on whom service of summons may be made must depend in every case upon the kind of business conducted by the corporation, what the general duties of the supposed “managing agent” are, and whether it can be fairly said, that service on such agent would bring notice to the corporation. Much discussion may be found in the cases upon this question, and it is one upon which there is some disagréement. It may be said, however, that the later decisions are more liberal in interpreting the term “managing agent” than were the earlier ones. While no general rule can be stated which will serve as a test, certain principles may be announced which will serve to assist in determining the matter. Such managing agent must be in charge, and have the management, of some department of the corporation’s business, the management of which requires of the agent the exercise of an independent judgment and discretion; not that he shall not be under the general direction of the corporation — all agents are subject to the general control of their principals —but in the management of his particular department he must have authority to manage and conduct it as his discretion and judgment direct. He must be in the exclusive and immediate control and management of that department, or of the entire works conducted at the place where he is in charge. In Porter v. The Chicago and Northwestern Railway Company, 1 Neb. 14, it was stated in the first subdivision of the syllabus:
“An agent invested with the general conduct- and. control, at a particular place, of the business of a corporation, is a managing agent, within the seventy-fifth section of the code, upon whom a summons may be served. It is immaterial where he resides.”
In Coler et al. v. P. B. Co., 146 N. Y. 281, 40 N. E. 779, the court said:
“It is not necessary that the office of the person to whom the summons is delivered, in a suit against a foreign corporation, should be precisely described as that of ‘a managing agent;’ because, as we think, from the language of section 432 of the code of civil procedure, it was intended that any person holding some responsible and representative relation to the company, such' as the term ‘managing agent’ would include, might be served with the summons.” (Page 283.)
In the case of American Express Company v. Thomas Johnson, 17 Ohio St. 641, the question came up on the alleged insufficiency of the service of the original summons. The court said:
“At the time of service the company had a general ‘superintendent’ for the state, residing at Cleveland, .and two or more ‘local agents’ in the county of Madison; one of whom resided at London; in said county, and kept an office there, where he received and forwarded packages for the company, and did all the business of the company usually transacted in such receiving and forwarding offices. Service was made upon the said agent at London alone; and the question is, whether he was the ‘managing agent’ of the company, within the meaning of the sixty-eighth section, of the code? We think he was such, managing agent, and that the service was sufficient.”
In Brewster v. The Michigan Central Railroad Company, 5 How. Pr. (N. Y.) 183, the court said:
“The managing agent upon which the summons may be served must be one whose agency extends to all the transactions of the corporation; one who has or is engaged in the management of the corporation, in distinction from the management of a particular branch or department of its business.” (Page 186.)
This language was referred to and criticized in Hat- sweat Manuf'g Co. v. Davis Sewing-machine Co., 31 Fed. 294, 295, as follows:
“The language quoted is much broader than that used in the subsequent cases, and was not necessary to the decision of the case; since it appeared that the alleged agent was employed with very limited powers, in connection with a very small part of the defendant’s business. . . . The adjudications in the state courts have not gone so far as to hold that no agent is a ‘managing agent’ who does not participate in the management and control of every part of the corporate business, and of every corporate act. Still less has such a construction of these words been given in any local action like this, where that construction would defeat justice, and enable a corporation systematically to violate the law with impunity. Such a construction, it seems to me, would be unreasonable, and presumably foreign to the intent of the statute, when the. words ‘managing agent’ are equally capable of including a case of the management and control of that department of the company’s business out of which the wrongs proceed.”
This question was before the court in Reddington v. Mariposa L. & M. Co., 19 Hun (N. Y. Supr. Ct.) 405, where it was said: ,
“It is quite clear that the legislature attached importance to the term managing agent, and employed it to distinguish a person who should be invested with general power, involving the exercise of judgment and discretion, from an ordinary agent or employee who acts in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of exécuting the same. The distinction thus attempted to be drawn we deem reasonable, and in harmony with the obvious purpose of the statute in regard to the service of process upon a foreign corporation.” (Page 408.)
A more serious question arises upon the objections to .certain testimony of Dr. C. C. Surber, who testified as follows:
“(9) Ques. Did you learn at that time from Reeves, or his attendants, that he claimed to have re ceived a violent injury to the left side of his head, about December, 1908, from the explosion of a gas-meter? Ans. Yes, sir.”
“(3) Q- Could such an injury as Reeves claimed to have received produce such a condition as you found at that time in his case? A. Yes, sir.”
“(6) Q. From the history of the case, as you learned it, and from your diagnosis of the case, taking into consideration Reeves’s age and his general condition, do you consider the injury to his left ear and the left side of his head of a permanent or temporary character? A. I would say a permanent.”
The witness was an expert who, under the rules of evidence, might give his opinions based either upon facts testified to by others or upon hypothetical questions put to him, or upon an examination of the patient, but he could not testify to conclusions arrived at from the history of the case given him by the patient or others. Such testimony would be as completely within the rule against hearsay evidence as if sworn to by one not an expert. Nor can a physician give his opinion based partially upon what he has been told of the case and partially upon what information he obtained by an examination of the patient. Questions and answers 9, 3 and 6 fall fairly under the objection that the answers were based partially upon a personal examination and partially upon the statements of others. (A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463; Heald v. Thing, 45 Me. 392.) A physician may testify to the condition of the patient as he found him, whether suffering from pain, and to utterances or exclamations of pain, and he may also give the patient’s statement as to the location of the pain causing such exclamations; and this because it can be said to be a part of his examination.
There are numerous assignments of error. Objections were made in some instances to nearly every question asked of a witness, many of which are frivolous. An examination of all of the assignments satisfies us that no error was committed, except as sug gested. For this reason the judgment is reversed, and the cause remanded.
Johnston, C. J., Burch, Mason, Smith, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Richard N. Dorr was the head brakeman on a freight-train of the Missouri Pacific Railway Company. On his fourth trip over the line he fell from the steps of the locomotive and the wheels passed over and crushed his legs, making it necessary to amputate one of them above, and one below, the knee. He brought this action, alleging that the injury was due to the negligence of the railway company. In his testimony he related the circumstances of the unfortunate occurrence, saying substantially that he was riding on the engine, and as the station of Freeport was approached it was suggested to him that he make ready to get off, which he proceeded to do; that he grasped the handhold of the tender and reached for the handhold of the cab at the opposite side of the passageway, and, it being considerably lower than the other handhold, he leaned over, and just as he was about to catch it there was a jar of the engine which threw him off his balance; and that he then placed his foot on the lower step, which, being defective, tilted him off, his handhold broke loose, he fell to the ground, and rolled under the wheels, receiving the injuries mentioned. In his petition the negligence imputed to the railway company was the sudden checking of the train, the improper position of the handholds, the defective step, and the condition of the ground upon which he fell, causing him to roll toward the track. The railway company alleged, and offered testimony tending to show, that the step was not defective, and its condition was the main point in dispute between the parties. It was insisted by the company that in any event Dorr knew of the existing conditions, and that his own negligence contributed to the injury. The trial resulted in a verdict for Dorr, and the jury awarded him damages in the sum of $35,000. There was no claim that the injury was malicious, wilful, or wanton, and hence no part of this exceptionally large award was exemplary damages.
It is earnestly contended that the evidence does not prove the alleged negligence of the railway company, and it is also argued that it affirmatively shows that the injury was due to a want of care on the part of Dorr. Of this branch of the case it may be said that in some respects the testimony is not satisfactory, but it cannot be held that the finding that the company was negligent is without support^ nor would the court be justified in saying, as a matter' of law, that a recovery by Dorr was barred by his own negligence.
The railway company insists that it is eptitled to judgment on the findings, claiming that they in effect acquit it of the charge of negligence. It appears from the evidence and the findings that the liability of the railway company is based principally'upon its negligence in maintaining a defective step. To question No. 18, which was, “If you find that said step was out of repair, state in answer to this whether you find plaintiff would have beep, injured if said step had not been out of repair,” the jury answered, “No.” To hold the company for injuries to an employee because of defective machinery or appliances it is necessary that the company should have had knowledge of the defect, or that it ought to have had such knowledge by the use of ordinary care. There was a finding by the jury that the step on the engine was out of repair at the- time of the injury, and in answer, to another question as to the nature of the defect the jury answered: “The stirrup was bent up in the center at the bottom —bolt was loose, and flanges broken.” To the special question, “What person or persons in the employ of the defendant are shown by the evidence to have had notice prior to the accident in question that said step was out of repair?” the jury answered, “No one.” The special interrogatory, “If you answer question No. 13 in the affirmative, state for how long a time said step had been out of repair,” was answered by the jury, “For some time.” The railway company moved the court to require the jury to answer the question more definitely, and the judge stated, “I presume they are entitled to a more definite answer to that, as to, how many days or weeks,” and allowed the motion. Later the jury returned with the enlarged answer, “For some time previous to the accident.” These findings do not warrant a recovery. Whether the defect existed for such a length of time as to charge the railway company with notice of the defect was an important consideration. Notice or knowledge cannot be presumed unless the duration and character of the defect were such as should have been discovered by the railway company by the exercise of ordinary care and diligence. In Harter v. A. T. & S. F. Rld. Co., 55 Kan. 250, 38 Pac. 778, it appeared that an injury to an employee was caused by a defect in a railway-track. The court remarked:
“This, however, is not enough to warrant a recovery against the defendant. There must be evidence fairly tending to show either that the defendant knew of the existence of the defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been1 discovered before the accident.” (Page 258.)
(See, also, A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204; A. T. & S. F. Rld. Co. v. Ledbetter, 34 Kan. 326, 8 Pac. 411; Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 40 Pac. 915; Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12; Railroad Co. v. Swarts, 58 Kan. 235, 48 Pac. 953.)
It has been found that Dorr would not have been hurt but for the defective step; that none of the employees of the railroad company knew of the defect; and that the step had been out of repair “for some time previous to the accident.” Was it out of repair long enough to charge the railroad company with constructive notice of the defect? How long a period is “some time” ? In the Century Dictionary the word “some”, is defined as “a certain indefinite or indeterminate quantity or part of; more or less. Often so used as to denote a small quantity or a deficiency.” The definition given in Webster’s International Dictionary is: “Consisting of a greater or less portion or sum; composed of a quantity or number which is not stated; used to express an indefinite quantity or number”; and, also, “not much; a little.”
In Lewis v. Jones, 17 Pa. St. 262, 55 Am. Dec. 550, a witness had testified about the purchase of “some hay” and “some grain” to feed stock, and the court was asked to base an instruction thereon, which was refused. In reviewing the case it was said that “ ‘some’ is a term too uncertain in its signification to sustain a verdict for any definite amount. It may mean a single ounce, or 10,000 tons — a single quart, or 20,000 bushels.” (Page 267.) In the same connection it was said that “nothing can more justly impair confidence in the administration of justice than the practice of encouraging, or even permitting, a jury to find facts of which there is no evidence.” (Page 267.) In Marq., Hought. & Ont. R. R. Co. v. Spear, 44 Mich. 169, 6 N. W. 203, 38 Am. Rep. 242, the court, in speaking of a promise to repair an engine “some time,” said that “the promise was wholly indefinite.” (Page 172.) In City of Lincoln v. Calvert, 39 Neb. 305, 58 N. W. 115, there was an instruction given in a personal-injury case to the effect that if the city permitted a defect in the street to continue for a “considerable length of time,” which rendered it unsafe and dangerous, a liability would arise, and it was held that a “considerable length of time” was so indefinite as to form no proper test for the guidance of the jury. (Page 312.) In St. Louis Paper-box Co. v. J. C. Hubinger Bros. Co., 100 Fed. 595, 40 C. C. A. 577, the court had before it a contract for the sale of a large number of articles, and there was a provision in it that if the vendee should receive “some” that were not up to sample he should return them to the vendor, who would replace them, and the court interpreted the word “some,” as used in the contract, to mean “a small or inconsiderable number.” To the same effect is Chase v. City of Cleveland, 44 Ohio St. 505, 9 N. E. 225, 58 Am. Rep. 843. In Railroad Co. v. Swarts, 58 Kan. 235, 48 Pac. 953, where the question was whether a certain hole had existed such a length of time that the railway company should have known of it, Chief Justice Doster discussed the matter of time. Among other things he said:
“What is meant by a ‘considerable time,’ as related to the duration of a defect in railroad-tracks which will charge the company with knowledge? Suppose the jury had found in plain terms: ‘The hole did not exist for a considerable time.’ Who would have been the wiser as to whether it had .existed long enough to enable the company’s responsible agents to discover and repair it? Such a finding would have been too indefinite to aid in the determination of the disputed question.” (Page 245.)
“Some time” is equally as indefinite as a “considerable time,” and certainly it is not a longer time. It is evident that the jury were unable to find from the evidence what length of time the defect did exist, and upon what basis could they have found that it did exist such a length of time that it should have been discovered and remedied by the railroad company? The finding is the equivalent of an answer that “the step was out of repair before the accident, but the length of time we do not know.” The jury were pressed for a specific answer to the question, but their second attempt added words but not definiteness to the answer. After the second effort to obtain a,definite answer to the question had failed there was no good reason to expect anything more explicit from the jury on the testimony submitted, and therefore no reason why the court should have been asked to send the jury back for a better answer.
It is argued that the necessary facts are presumably found in the general verdict. The general verdict had no other or better support than the special finding. The question was specific; it was controlling. A definite answer was required, and it must be presumed that the jury made as full and as definite an answer as the testimony would, warrant. How, then, can it be said that the general verdict helps out the special finding? The general rule is that the general verdict yields to the special findings. The purpose, in part, of special findings is to explain and test the correctness of the general verdict. Applying this test, it appears that the jury must have misunderstood or misapplied the law as to constructive notice of the defective step. The court, in effect, instructed that the company was not chargeable with constructive notice, “unless the defects were of such a nature, or had existed for such a length of time, that they should have been discovered and remedied by the defendant.” The jury’s answer as to the length of time was no more than a conjecture. If they could not approximate the duration of the defect, they could not intelligently find that it had existed so long that it should have been discovered and remedied by the railroad company. As was said in Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12, “a finding of negligence cannot rest on mere conjecture.” (Page 723.)
On account of this finding the verdict is set aside, the judgment reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
The plaintiffs’ children, one ten and the other five years of age, were sent by their parents to a neighboring town in a one-horse conveyance. While the older son was driving along the public highway the vehicle was turned over into a ditch, the younger child falling under it, in consequence of which he died. The parents recovered judgment in this action for damages against the township for the loss of their child on the grounds of negligence on the part of its officers in permitting the highway, at the place where the child was killed, to remain ,in such condition as to be dangerous to public travel.
An examination of thé errors assigned discloses nothing prejudicial to the township. The contention is made that the court should have taxed the costs to the plaintiffs because there is no evidence that the plaintiffs’ claim was presented to the township board for allowance before the action was commenced. This cannot be sustained. Counsel cite no such statutory requirement, and we know of none. The statute which requires all claims against cities to be presented to the council for allowance.or costs shall not be awarded in an action thereon does not apply to actions against townships. In the absence of such a statute the plaintiffs are entitled to their costs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
While Henry F. Fosha and Henry Quantic, residents of Riley county, were in Wyandotte county for the purpose of being present at the trial — the one as a defendant and the other as a material witness — of a case pending in the federal circuit court in which A. F. Underwood was the plaintiff, they were served with summons in a new action brought against them by Underwood in the district court of Wyandotte county upon a promissory note executed by Fosha and indorsed by Quantic. They appeared specially and moved that the service upon them be set aside upon the ground that while outside of the county of their residence in attendance upon a court in the capacities stated they were exempt from being sued. The motion was allowed, and the plaintiff prosecutes error.
It is a familiar rule of law, generally although not universally accepted, that apart from any statutory immunity ah non-residents of a county in which they are attending court proceedings, either as litigants or witnesses, are privileged from civil arrest or the service of summons while there upon that business. Cases bearing upon this question are collected in a note at page 721 of volume 25 of the Lawyers’ Reports, Annotated, and under the title “Process,” in volume 40 of the Century edition of the American Digest, sections 148 and 150. The reason of the rule is that the efficient administration of justice in the courts is promoted by encouraging the personal attendance upon trials not only of the parties in interest but of other witnesses as well, the removal of the risk of being put to the inconvenience of defending a lawsuit away from home being manifestly a substantial contribution to this end. In this connection it was said, in Ela v. Ela, 68 N. H. 312, 36 Atl. 15:
“The right to take the deposition of a non-resident witness does not answer the requirements of justice. It is often indispensable to a just decision of a cause, and is always desirable, that testimony shall be given orally in open court. The triers are more likely to understand the testimony fully and correctly. The appearance of the witness aids materially in forming a correct judgment of the credibility and weight of his testimony. All the issues of fact that may arise at the trial can seldom be foreseen. A fact within the khowledge of a witness may appear to be so foreign to the case when his deposition is taken that it is not deemed worth while to question him upon it, and yet the course of the trial may be such that it is the fact which will control the verdict. (See Metcalf v. Gilmore, 68 N. H. 174, 186-189.). Every reasonable facility should therefore be provided for obtaining the' attendance of witnesses in person.
“These and other considerations have led to the establishment, quite generally, of the doctrine that nonresident witnesses are privileged from liability to be sued while attending the trial, and going to and returning from it.” (Page 313.)
There is no doubt that the later and just tendency of the courts is to extend rather than to restrict the privilege referred to.' So far as the case of Quantic, the defendant in the first action, is concerned, the ruling of the trial court may be affirmed upon the authority of Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108. It was there held:
“A witness or suitor in necessary attendance in court, either in his own behalf or under process, outside the territorial judicial jurisdiction of his residence, is exempt from civil arrest and service of summons while in attendance upon such court and while going to or returning therefrom.” (Syllabus.)
It is suggested that that decision was affected by the fact that the conduct of the plaintiff, as stated in the opinion, amounted to an abuse of judicial process, inasmuch as the defendants when served with summons were in attendance upon the court not for the purpose of any trial upon the merits but merely to procure the setting aside of a wrongful service previously made upon them. This feature of the case, however, was only incidentally mentioned, and the conclusion reached was not based upon, any theory of bad faith or fraud.
The general rule stated, and the rule announced in Bolz v. Crone, supra, would be equally conclusive upon the question of the sufficiency of the service upon Fosha if he had been in compulsory attendance upon the court in virtue of having been served with a subpoena. Such, however, was not the case. He lived more than 100 miles from the place of trial, and his attendance as a witness could not have been compelled. The great weight of authority is to the effect that in the absence of an express statute controlling the matter the same protection is to be extended to one who comes voluntarily to give his testimony as to a witness brought in by process. (See the cases already referred to, and also those cited in 16 A. & E. Encycl. of L. 42.) Our civil code, however, contains this provision:
“A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning or attending in obedience to a subpoena.” (Code, § 337; Gen. Stat. 1901, § 4785.)
There is obviously plausible ground for contending-that this specific grant of immunity to a witness who is acting in obedience to a subpoena implies that a mere volunteer is to be excluded from the privilege. Such seems to be the interpretation placed upon the same statutory language in Kentucky and South Dakota. (See Currie Fertilizer Co. v. Krish, 74 S. W. [Ky.] 268, and Malloy v. Brewer, 7 S. Dak. 587, 64 N. W. 1120, 58 Am. St. Rep. 856.) In Kentucky, however, there are various other provisions of the statute relating to such exemptions, from which it may fairly be gathered that there was a legislative purpose to cover the entire subject-matter, while a necessary corollary of the doctrine announced in Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108, is that such is not the case here, but, as suggested in Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. Rep. 731, the section of the code quoted must be held “not to be an implied repeal of the common-law exemption, but a statutory declaration of it pro tanto.” The construction placed upon the statute by the South Dakota court in the case cited is influenced by other sections in terms making code provisions exclusive in all matters to which they relate. But even in that case it was held that the section referred to had no application to non-residents of the state, and that such persons were protected during their attendance as witnesses, although not under subpoena.
On the other hand, expressions made use of by the courts of Nebraska and of North Dakota, in the statutes of each of which states the section quoted is found, seem to suggest a contrary view, although the question appears not to have been directly passed upon. (See Linton v. Cooper, 54 Neb. 438, 74 N. W. 842, 69 Am. St. Rep. 727, and Hicks v. Besuchet, 7 N. Dak. 429, 75 N. W. 793, 66 Am. St. Rep. 665.) In the Nebraska case a non-resident of the state was held to be exempt from the service of summons while voluntarily attending court as a witness. In the North Dakota case the same •rule was applied to a resident of the state who was a non-resident of the county, but although spoken of as a voluntary witness the person concerned was also in fact a suitor. In neither case was this provision of the statute referred to.
In McAnarney v. Caughenaur, 34 Kan. 621, 9 Pac. 476, it was held that a good service of summons might be made upon one who was attending a hearing in a United States land-office contest in a county other than that of his residence, the action being for the recovery of damages for an assault and battery committed by him during such attendance. In the opinion reference was made to the fact that he was not under subpoena, but this consideration could not have been controlling, as the defendant was a suitor in the contest case as well as a witness. That the action was founded upon a wrong committed in the county where the action was brought, and during the period for which immunity was claimed, doubtless afforded sufficient ground for holding the service good. (See, in this connection, Mullen v. Sanborn and Mann, 79 Md. 364, 29 Atl. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421, and Iron Dyke Copper Min. Co. v. Iron Dyke R. Co. et al., 132 Fed. 208.)
We cannot believe that it was the purpose of the legislature in adopting the section in question to restrict, instead of to preserve, the privilege of a witness living in Kansas, by denying him all immunity from process while voluntarily attending a trial outside of his own county, when but for such enactment he would enjoy the same exemption as a non-resident of the state could claim under the same circumstances. The reason for the rule that persons living outside of the state cannot be sued while here to give testimony before a court is that they may be encouraged to come into the state for that purpose voluntarily, inasmuch as they cannot be required to do so. (Henry B. Sherman v. W. L. Gundlach, 37 Minn. 118, 33 N. W. 549.) In Christian v. Williams, 111 Mo. 429, 20 S. W. 96, this principle was held not to apply to the case of a resident of the state who attends as a witness a trial outside of his home county, for the reason that in Missouri a subpoena may be issued to any county in the state. But in Kansas it applies with full force, for under our statute no one can be compelled to leave the county of his residence in obedience to a Subpoena in a civil case. (In re Hughbanks, Petitioner, 44 Kan. 105, 24 Pac. 75.)
We conclude that the service of summons upon Fosha, as well as that upon Quantic, was properly set aside, and the judgment is affirmed.-
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
E. H. Eicksecker appeals from a conviction upon a charge of embezzling money that came into his hands as superintendent of the water-works system owned and operated by the city of Coffeyville. The defendant held that position from April, 1900, to May, 1903. After he had retired from the office the claim was made that he had failed to account to the city for all of the public funds that he had received in virtue of it. An investigation followed, as a result of which a prosecution for embezzlement' was begun July 12, 1904.
The information which was afterward filed, and upon which he was tried and convicted, contained thfee counts. The first charged him with embezzling as an officer of the city the sum of $4083.84, that evidently being considered the total amount of his shortage. Upon the theory that he might have converted a part of this to his own use more than two years before the criminal action against him was begun it was alleged that he had concealed the fact of his crime until April, 1903, this allegation being plainly intended to avoid the effect of the statute of limitations. The second count was like the first, except that the allegation of concealment was omitted and the amount embezzled was placed at $2600. It is clear that it was the purpose of the pleader in this count to declare only upon such conversion as had taken place within the period fixed by the statute of limitations. The third count set out the amount of the entire shortage, and was drawn under that part of the embezzlement statute (Gen. Stat. 1901, § 2081) which was first enacted in 1873, and which makes it a criminal offense for an agent under certain circumstances to fail to pay over upon demand money collected for his principal. Doubtless this count was added with the idea that it might evade any question of limitation, upon the theory' that the statute does not begin to run against proceedings under this part of the statute until a demand is made.
At the conclusion of the evidence a motion was made to require the state to elect upon'which count it would rely for a conviction. The motion was denied. The verdict returned merely declared the defendant “guilty of the crime of embezzlement, all as in manner and form charged in the information,” and that the value of the funds embezzled was $2366.65.
Under various assignments of error the defendant’s counsel complain of rulings relating to the first and third counts, or having some connection therewith. It is contended that an election between the counts should have been compelled; that the form of the verdict was insufficient, inasmuch as it did not refer to any specific count; that the allegation in the first count of the concealment of the crime was too indefinite to have any effect; that the court gave no sufficient instruction as to what acts could be regarded as constituting a concealment ; that the statute under which the third count was drawn had no application to the state of facts relied upon by the prosecution in this case; and that the instructions with regard to a demand were defective. All these complaints may be considered and disposed of together. It is manifest that the several counts in the information did not charge three separate and distinct offenses. They were obviously intended only as three different wáys of stating the same offense— namely, the converting to his own use by the defendant of that part of the funds of the city which came into his hands as superintendent of the water-works, and which, was otherwise unaccounted for. Under such circumstances a verdict of guilty is valid, although it contains no reference to any particular count.
“When but one offense is charged in various forms in separate counts of one indictment, a general verdict of guilty, or of guilty as charged, without mentioning the count on which it is based, is sufficient. The same rule is applicable, although several distinct crimes are charged in different counts, if they all arose out of the same transaction.” (12 Cyc. ,693.)
Such a verdict is regarded as a finding that the defendant is guilty upon each one of the several counts, and it can therefore be sustained even if some of the counts are bad, for it will be held to respond to any good count that the information contains.
“One good count in an indictment, if sustained by the proof, will support a general verdict of guilty, although there be other counts which are defective. So where there are two or more counts in the indictment, and but one offense in fact is charged, a general verdict of guilty is good if. one of the counts be good and the allegations in it are sustained by the evidence.” (12 Cyc. 694.)
For these reasons there was no necessity in this case for the state to elect upon which count it would rely, or for the verdict to refer in terms to any particular count. The same considerations make it needless to inquire whether the first count sufficiently charged a concealment of the offense, or whether the third count stated an offense within that part of the statute under which it was drawn. It may be conceded to the defendant that where the prosecution is compelled to show a concealment in order to convict the' facts relied upon as constituting concealment should be specifically pleaded (Jones v. The State, 14 Ind. 120); and also that the decisions of this court tend to support the view that the part of the statute which is the basis of the third count, and which makes a demand and refusal to pay essential features of the crime there denounced, does not apply to any case where the offense of embezzlement could be complete without such demand and refusal (The State v. Bancroft, 22 Kan. 170; The State v. Yeiter, 54 Kan. 277, 38 Pac. 320), and therefore cannot be invoked against a city officer with respect to money which it was his duty to turn over to the city without demand. Such concessions can avail him nothing. No question is made of the sufficiency of the second count. The first count is in substance the same as the second, except that a larger amount is named as the sum embezzled and the allegation of concealment is added; the third count is the same as the second, with the allegation of demand added. No evidence was admitted under the first or third count that would have been materially erroneous if the second count had stood alone, and the defendant was in noway prejudiced by their presence in the information.
An important feature of the case made by the state was the testimony of an expert accountant who undertook not only to give the total amount of the defendant’s shortage, which he fixed at $2366.65, but to separate this amount into two parts, the one ($1028.43) made up of items received more than two years before the prosecution was begun, the other ($1338.22) of those received within that period. As the jury found the amount embezzled to be $2366.65, it is clear that the verdict was based upon this testimony. It follows that the jury held the defendant criminally liable for all the money for which he failed to account, including that portion as to which he claimed immunity under the statute of limitations. But it also follows that they convicted him of embezzling that portion as to which no question of limitation could be raised. He was not convicted, however, of two offenses — of embezzling $1028.43 at one time and $1338.22 at another — but of the single offense of embezzling by one act the sum of $2366.65, which included $1028.43 that was collected more than two years before the prosecution was begun. The crime of embezzling $2366.65 differs neither in degree nor kind from that of embezzling $1338.22. It requires no greater or different punishment. If it was error for the jury to include the latter amount in their statement of the amount embezzled, it was harmless error. Inasmuch as the question of concealment was immaterial there is no occasion to consider whether the court should have given more-definite instructions concerning it. It may be remarked, however, that no ■special instruction in that regard appears to have been asked. Inasmuch as the instructions relating to a demand had no reference to the second count it is unnecessary to consider the criticisms made upon them, for the reasons already stated.
Specific complaint is made of the admission of evidence of the payment of several warrants issued to the defendant for water used by the city. It appears that the city, although owning its own water-works, kept the business done in that connection entirely separate from.the other affairs of the municipality, and paid for water used for public purposes the same as any other consumer. The evidence warranted the finding that the proceeds of these warrants came into the hands of the defendant in his official capacity.
Error is also assigned because of the admission of evidence having some tendency to show that the defendant had been accused of being short in his accounts in another capacity. The evidence objected to was not offered for the purpose of showing this fact, but had some bearing upon the legitimate issues, and the. fact that it incidentally suggested the commission of another offense did not bar its reception.
The information alleged that Coffeyville was a city of the second class, and complaint is made that while there was no proof of the fact the court assumed its existence. Under our statute a city of the second class becomes such in virtue of a public proclamation made by the governor, of which the courts take notice. (17 A. & E. Encycl. of L. 914; 16 Cyc. 903.) The case of The State v. Pittman, 10 Kan. 593, in which it was said that judicial notice cannot be taken of the incorporation of a city under a general law, was decided under a different statute. (See, also, The State v. Bowles, 70 Kan. 821, 79 Pac. 726, 69 L. R. A. 176; LaRue v. Insurance Co., 68 Kan. 539, 75 Pac. 494.)
It is contended in behalf of the defendant that he should have been granted a new trial because under the whole evidence if he was guilty at all he was guilty of several distinct acts of embezzlement, inasmuch as he was under a duty to turn over to the city at stated intervals the public funds then in his hands. The mere failure to perform this periodical duty, however, did not of itself render him guilty of a criminal offense. It is possible that he did upon several different occasions wrongfully convert to his own use the money then in his possession, but the evidence is consistent with the view that there was no criminal intent, and consequently no crime, until the entire missing amount had accumulated, and that he then wrongfully by one act embezzled the entire sum. This feature of the case appears to have been sufficiently covered by the instructions, and we are unable to perceive that the defendant has any just cause of complaint in connection therewith.
Other assignments of error have been examined, but are not thought to require separate discussion. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff in error brought this suit to enjoin an execution issued upon a judgment recovered in the city court of Wichita. From a judgment of the district court dissolving the temporary injunction he brings the case here for review.
The execution sought to be enjoined was issued upon a judgment against Briggs in an action of forcible entry and detainer, rendered by James A. Conly as judge pro tem. of the city court of Wichita, and it is claimed that he was neither a judge de jure nor de facto, and that the judgment for that reason was void. George H. Alexander was the regular judge, and Conly claimed to be acting by virtue of an appointment made by him. The statute creating the city court of Wichita (Laws 1899, ch. 130) provides:
“Sec. 13. In case of the absence, sickness or disability of the judge of said court, such judge may appoint a judge pro tem. of said court, who shall hold court for him and hear and determine any matter pending therein to the same extent that such absent or disabled judge might do if personally present, and such judge pro tem. shall fill such position until the judge of said court can be personally present.”
On account of failing health Judge Alexander left the city of Wichita December 7, 1904, and went to Arizona. February 23, 1905, he returned, but was never able after that to resume his official duties, and remained at his home until his death. On December 6, the day previous to his departure for Arizona, Judge Alexander appointed A. S. Houck as judge pro tem., under the provisions of section 13, supra, and, at the suggestion of Mr. Houck that occasions might arise when Mr. Houck would be absent or disqualified from acting, Judge Alexander signed thirty blank appointments, leaving the name of the judge pro tem. to be written in as occasion might require, and handed them to Mr. Houck. For a time Judge Houck acted as judge pro tem., and when he was unable to act he handed one of these blank appointments to James A. Conly, who filled in his name, took the oath of office, and acted as judge pro tem. On March 6, 1905, after the return of. Judge Alexander, Houck handed one of these blank appointments to Conly, and the latter wrote his name in the blank space and qualified by taking the oath of office before the clerk of the district court, as provided by section 15 of chapter 130, Laws of 1899. His oath of office as such judge was on file with the clerk of the district court, and he continued to discharge the duties of the office under this appointment from March 6 until after the trial of the forcible-entry-and-detainer action, which occurred March 16, 1905. He was recognized as judge pro tem. of the court by the officers of the city court, the clerk and marshal, and by litigants and attorneys. The parties in the forcible-entry-anddetainer case appeared before him, the case was tried, judgment rendered, and an appeal taken by plaintiff in error to the district court. The appeal was afterward dismissed and this action brought to enjoin the execution.
The one question here is whether James A. Conly was a de facto judge pro tem. at the time the judgment was rendered. He was exercising the duties of the office, claiming the right and authority to do so by an appointment regular on its face. So far as the public knew, this appointment was in all respects regular. There was the situation contemplated by the statute: the regular judge was sick and disabled from acting; he was present in the city with authority to appoint; and there was on file in the office of the clerk of the court what purported to be his written appointment of Conly, with the latter’s oath of office. The officers of the court recognized Conly as judge pro tem., and issued and served process in his name; the litigants and attorneys recognized him as such judge pro tem. These facts bring the case squarely within the rule laid down by this court in numerous cases.
Chief Justice Butler’s definition of a de facto officer in State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, is followed in Railway Co. v. Preston, 63 Kan. 819, 823, 66 Pac. 1050. The third subdivision of this well-recognized definition applies to this case, where the duties of the office have been exercised, “under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.” (Page 472. See, also, Ritchie v. Mulvane, 39 Kan. 241, 17 Pac. 830.)
While this is a direct attack upon the judgment, it is a collateral attack upon the acts of the officer. It was said in The State v. Williams, 61 Kan. 739, 741, 60 Pac. 1050:
“The acts of a de facto judge cannot be collaterally attacked, and his right to the office is not open to question except in a direct proceeding brought by the state; and this is true in a case where the officer is incapable of holding office.”
The principles which control these decisions are firmly established; they may be said to lie close to the foundations of law and order and the stability of government. It is clear that James A. Conly was the de facto judge pro tern, of the city court when the judgment was rendered, and it follows that his acts as such judge cannot be attacked in this collateral proceeding, and that the temporary injunction was properly dissolved. The judgment is affirmed.
All the justices concurring. | [
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Per Curiam:
The county attorney of Trego county filed an information which charged “that on the 14th day of February, 1903, . . . one J. Q. Thompson, in a certain frame building situated on the main street of Collyer, in said county, . . . did then and there unlawfully sell and barter spirituous, malt, vinous, fermented and other intoxicating liquors” without a permit. Thereupon a warrant was issued, the defendant arrested, and he gave bond in the usual form for his appearance on the first day of the next term of the district court of Trego county to answer the charge. Court convened October 6, 1903. Counsel for the defendant appeared and entered a plea of not guilty, and demanded a trial. The defendant did not appear in person. The county attorney then asked permission to file an amended information containing two counts, which was granted, to which the defendant by his counsel objected and excepted. The amended information contained the original count recopied, with the .exception that in the original information the offense was charged to have been committed in a building “situated on the main street, of Collyer, in said county,” while the amended information in this respect stated that the offense was committed in a building “situated on the west side of a certain street sometimes called Main street, in the town of Collyer, in said county of Trego.” The second count charged the' defendant under the prohibitory law with maintaining a nuisance.
After the filing of the amended information the defendant’s • attorneys announced to the court that they would not and did not appear ■ for the defendant to plead or answer to the said amended information; that they would appear and answer for him to the original information and none other. The court thereupon ordered the non-appearance of the defendant entered on the record and adjudged his recognizance forfeited. The cause was then continued for the arrest of defendant. Thereafter this action was brought upon the forfeited recognizance. The defendants demurred to the petition, which was overruled; and, the defendants not wishing to plead further, judgment was rendered against them for the amount of the face of the bond, to reverse which they prosecute error.
The defendant not having appeared either by counsel or in person to answer the charge in the amended information, it was the duty of the court to cause his non-appearance to be entered and to declare and enter a forfeiture of the recognizance. The petition contains all the facts and states a cause of action. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiffs in error are proprietors of a line of hacks and cabs operating at Coffeyville as common carriers of passengers and baggage between railway. depots and elsewhere in the city. On the 7th day of March, 1902, Mrs. Parkinson, defendant in error, who was seventy-two years of age, was a passenger in one of the cabs, on her way from one depot to another, and was injured in a runaway. She brought this action to recover damages for the injuries sustained. The jury returned a verdict in her favor for $400, of which they allowed $150 for expenses incurred by reason of the injuries, and the remainder for pain and suffering. Plaintiffs in error seek to reverse the judgment, and assign numerous errors.
Defendant in error at the time of the accident was traveling from her home at Pomona, in Franklin county, to visit her sons, who lived at Wagoner, in the Indian Territory. It was claimed in her petition, and established by the evidence, that she was the only passenger in the cab when the team started to run, and that she looked out and saw that the driver had dropped or in some way lost the lines. She says that he jumped from his seat and ran to the door of the cab, which was at the rear, and opened the door and held his hand to assist her in getting out; that while attempting to get out she was thrown down and received the injuries complained of. The answer set up contributory negligence. Upon the trial the driver testified that the horses becáme frightened at a large piece of paper which the wind carried into the street in front of them; that one of the tugs broke, and then one of the lines broke, and he jumped off. He denied that he opened the door for defendant in error, or. that he did anything to induce her to get out, but claimed that he was endeavoring to prevent her from doing so.
The injuries to Mrs. Parkinson were serious enough to prevent her from continuing her journey. She was carried into a private residence near by and cared for by strangers. Her sons came at once from Wagoner, and, while one remained to care for her, the other went back to Wagoner,. returning the next day with his family physician, who took charge of defendant in error. The court admitted evidence of the expense incurred by the sons in these trips, and in taking their mother from Coffeyville to Wagoner, where she remained several weeks, and also of the expense of one of the sons in taking her later to her own home. These expenses and the time of the sons in nursing and caring for defendant in error were allowed by the jury as a part of the expenses incurred. It is seriously contended that as the sons were in duty bound to care for their mother, and because it appeared from the evidence that the wages of one of the sons, who was employed as a clerk in a store, were paid him by his employer during the time he claimed to have cared for his mother, it was error for the jury to allow defendant in error for these items of expense.
If defendants below are liable at all they are liable for the necessary expense caused by the injury to the passenger, including traveling expenses made necessary by the circumstances in which defendant in error was left by the accident. It became necessary for her sons to come to her and take care of her to the end of her journey, and, again, for some one to travel with her to her home. Reasonable compensation for nurse hire and attendance was a proper item of recovery, notwithstanding the persons who performed the services were relatives who might have been bound to take care of her without compensation, if she paid or be came liable for the expense and the service was required. In Brosnan ei al. v. Sweetser, 127 Ind. 1, 26 N. E. 555, where the services were rendered by mem-' bers of the family, it was- said:
“If this be done by some good friend or member of the family, who donated his services, that is the good fortune of the appellee, and a matter with which the persons liable have no concern. If she had paid ten times the true value of such services she could only have recovered what such services were reasonably worth.” (Page 8.)
(See, also, Trapnell v. City of Red Oak Junction, 76 Iowa, 744, 39 N. W. 884; Kendall v. The City of Albia, 73 Iowa, 241, 34 N. W. 833; The Pennsylvania Company v. Marion, 104 Ind. 239, 3 N. E. 874; Varnham v. The City of Council Bluffs, 52 Iowa, 698, 3 N. W. 792.)
Error is claimed because the court refused to permit defendants to prove that the driver was a competent, experienced driver of horses, and that his reputation in that respect was good. As well might a railway company seek to defend an action for injuries to a passenger by proving that the.engineer whose negligence caused a wreck was a capable and experienced engineer, and that he bore a good reputation as such.
The theory of an unavoidable accident was not pleaded as a defense, and there was nothing in the evidence to warrant the court instructing in reference to 'it. The jury found in answer to a special question that the injuries were not the result of an unavoidable accident. It is complained that the court erred in refusing to give the following instruction:
“You are instructed that carriers are not liable for mistaken exercise of judgment on the part of their servants in an emergency, nor for a failure upon the part of their servants to act with the utmost promptitude when the circumstances are such as to afford no time for deliberation.”
This was properly refused; the negligence of the carrier in permitting the emergency to arise is lost sight of in the instruction. Moreover, it was not a correct statement of the law with respect to the liabilities of a common carrier for injuries caused to a passenger by the negligence of the carrier. In Sawyer v. Sauer, 10 Kan. 466, the trial court instructed the jury as follows:
“That a stage-coach proprietor who carries pas-. sengers for compensation is responsible for all accidents and injuries happening, to passengers which might have been prevented by human care and foresight. He is bound to furnish gentle and well-broke horses, skilful, prudent and sober drivers; and the smallest degree of negligence in these particulars will render such proprietor liable for any injury to passengers therefrom.”
This instruction was conceded to be correct in the abstract by counsel for plaintiff in error in that case, and was approved by this court, and afterward cited with approval in Topeka City Rly. Co. v. Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. Rep. 754. The law imposes certain duties upon the carrier, and it is from these that his liabilities flow. He is not an insurer against all defects. He is, however, liable for all injuries caused by his failure to provide suitable vehicles, safe horses and harness, and a competent, careful driver. It was said in Crofts v. Waterhouse, 3 Bing. (Eng.) 319, 321: “If there be the least failure in any one of these things, the duty of the coach proprietors is not fulfilled, and they are answerable for any injury or damage that happens.” (See, also, Budd v. United Carriage Co., 25 Ore. 314, 35 Pac. 660, 27 L. R. A. 279, and cases cited.)
The testimony of the driver established the carriers’ negligence. He testified that one of the horses “would run away if he got a chance.” The opportunity came, the horse -ran away, the harness broke in two impor tant places, the driver jumped off, and the passenger was injured.
The doctrine of unavoidable accident and the reputation of the driver were never seriously involved in this case. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This is the second appeal of this case to this court. The facts are set forth in the former decision, Harwi v. Klippert, 67 Kan. 743, 74 Pac. 254. Every principle of law set forth in the present appeal was therein decided. The judgment in favor of the plaintiff in error was therein held valid and the order of the court below modifying the same set aside although negotiable promissory notes of Henry Reh were outstanding for the same indebtedness for which the judgment was rendered against him on his answer as garnishee. The situation is not changed by the subsequently occurring fact that the notes have been paid to the legal holder thereof.
.“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of reexamination.
“This rule extends not merely to all questions actually presented by counsel, but to all questions existing in the record, and necessarily involved in the decision.” (Headley v. Challiss, 15 Kan. 602, syllabus.)
(See, also, C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, 42 Am. Rep. 163; Crockett v. Gray, 31 Kan. 346, 2 Pac. 809; The Western News Company v. Geo. O. Wilmarth, 34 Kan. 254, 8 Pac. 104; 26 A. & E. Encycl. of L. 184.)
Of course this is a hardship on Reh, but it is no greater than the hardship usually incurred by any plaintiff who submits his cause to the decision of a court without pleading or setting forth some right of recovery which in fact he has, or which occurs to a defendant where he submits his defense to the decision of the court without pleading or setting forth some valid defense which he in fact has. When the court is the final trier of the facts and renders a valid judgment upon the facts as presented, and no effort is made to correct the error or omission while such cause is within the jurisdiction of the trial court, the party who erred to his own prejudice is remediless unless the matter omitted may be made the basis' of an independent action. .
The order of the district court is reversed, and the plaintiff in error restored to whatever it may have lost by reason thereof. | [
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The opinion of the court was delivered by
Graves, J.:
On April 3, 1903, Susan Briekell was run over by one of the cars belonging to the plaintiff in error, and killed. The administrator of her estate brought an action in the district court of Geary county to recover damages for her death, and obtained a judgment for $2000. The defendant seeks to reverse the judgment by proceedings in error in this court.
Several assignments of error are presented, the principal and most important of which is the refusal of the court to sustain a demurrer to the evidence. It is urged that the demurrer should have been sustained for the reason that the evidence showed contributory negligence on the part of the deceased.
In substance, the evidence upon this subject was as follows: The defendant operated an electric railway in Junction City, Kan. The deceased resided on a street along which the railway ran, and was acquainted with the speed and power of the cars operated thereon. She was a poor, hard-working woman. She and her husband were addicted to the use of intoxicating liquor, but she is not shown to have ever been drunk. At the request of her husband she sometimes obtained liquor for him. Upon the evening of the injury she had been out on the street for some time, but it is not shown for what purpose. At the time she was struck by the car she was sitting or crouching on or near one of the rails of the track, at a place where there was a slight: down grade. How long she had been there, or why she did not move to avoid the car, are questions not very clearly answered by the evidence. She had a bottle of whisky with her, which was broken at the time of the accident. There was a feeble headlight on the car, and she might have seen it for a long distance before she was struck. The motor-man says she looked up at him about the time she was run over, and had a wild look in her eyes which he could never forget. She suffered from occasional attacks of pleurisy which rendered her temporarily helpless. It does not appear that she had any disposition to commit suicide; ordinarily she was in good health, and in possession of her faculties. The injury occurred about nine o’clock at night, when her husband was at home asleep. Upon these facts the defendant claims that, although the injury was caused by its negligence, the deceased was guilty of contributory negligence which bars a recovery, and the court erred in submitting that question to the jury.
Did .the deceased intend to commit suicide? Was she so drunk as to be unable to realize danger or to roll over and avoid it, or was she helpless on account of an attack of pleurisy? Was the “wild look in her eyes,” which will never be forgotten by the motor-man, the look of insanity, or the result of anguish from pain and terror at the terrible death about to take place? There was some evidence tending to answer each of these inquiries in the affirmative.- It seems eminently proper, therefore, that these questions should have been submitted to a jury. We are unable to say that the district court erred in overruling the demurrer.
It is further urged by the plaintiff in error that all of the evidence offered to show that the deceased had been subject to attacks of pleurisy, which at times rendered her helpless, was erroneously admitted. It is claimed that it was irrelevant and immaterial under the issues, and an attempt to base one presumption upon another. The defendant pleaded contributory negligence on the part of the deceased, and alleged, in substance, that she intentionally and deliberately placed herself on the track for the purpose of being run over, locating herself in a way to avoid discovery by the motor-man. The plaintiff replied with a general denial. That was the issue. Under a general denial any evidence may be given which controverts the facts denied. (1 Encyc. Pl. & Pr. 817; Davis v. McCrocklin, 34 Kan. 218, 8 Pac. 196.) The evidence objected to was intended to show that the deceased was not on the track intentionally, but was there involuntarily and in a helpless condition. This, if true, directly disproved the averments of the answer, and was admissible. We do not think the objection that this evidence had the effect of placing one presumption upon another is well taken.
It was shown that the deceased was on the track when injured, but this fact, unaided by any further fact or inference, proved nothing. She may have been there voluntarily, and remained there through indifference or reckless negligence. She may have been there involuntarily, and against her will. Being there, she may have been unable to move out of the danger, although fully realizing it. What the real fact was in this respect could only be determined by inference from the facts proved. To remove the presumption of negligence produced by inferences drawn from the evidence of the defendant, the plaintiff offered proof that the deceased was subject to attacks of pleurisy which rendered her temporarily helpless.' From this fact, when established, the jury were expected to infer that at the time of the injury the deceased was in a helpless condition from one of these attacks. If this fact were proved, and the inference justifiable, then from this evidence the legal deduction would follow that she was not chargeable with contributory negligence. The only presumption or inference in the proposition is based upon an established fact, and not upon another presumption.
It is also claimed that the court erred in refusing to require the jury to make'more definite their answers to certain questions submitted to them. The defendant presented thirty-five special questions to the jury, among which, with the answers thereto, were the following :
“(6) Ques. Was there any reason why she could not have got off the track in a second of time? Ans. Yes.
“ (7) Q. If you answer the last preceding question ‘yes,’ state what that reason was. ' A. She was mentally and physically unable to move.”
“(10) Q. Was there anything to prevent the de ceased from seeing the car approaching in time to have got off the track? If there was, state fully what. A. Either physical or mental ailment.”
The defendant moved the court to require the answers to Nos. 7 and 10 to be made more definite and certain, which request was as follows:
“Said defendant, in the presence of the jury and before they have been discharged from the consideration of this case, moves the court to require the jury to return to the jury-room and to direct the jury to answer questions Nos. 7 and 10 of the questions submitted by defendant more definitely, and so as to show whether it was a mental or physical ailment and disability which affected the deceased; and to show which it was.”
If the deceased was helpless at the time of the injury, it is immaterial whether such helplessness was the result of a mental or a physical cause. To have required the jury to specify which cause would have been useless. The result would not have been affected thereby, and, therefore, we cannot say that this refusal of the court was erroneous.
Finally, it is said the court erred in refusing to give an instruction to the jury which reads:
“You are instructed that the burden of the proof is on the defendant to prove the contributory negligence of the deceased, unless you .find the evidence of the plaintiff shows such contributory negligence, in which casé the burden of showing the same is not on defendant.”
The court did give an instruction which reads:
. “The court instructs the jury that the burden of proving contributory negligence on the part of the plaintiff is upon the defendant.”
It is claimed that the court, by refusing to give the instruction requested, left the jury to be misled by the supposition that the burden of proof, as defined by the court, meant that all the evidence to be considered upon the subject of contributory negligence must have been given by the defendant. If the court had hot fully met this complaint in its other instructions there would have been considerable force in the contention, but we think the instructions as a whole are unobjectionable. The court presented the question of contributory negligence quite fully and clearly to the jury, and stated repeatedly: “If you find and believe from the evidence” that Susan Brickell, etc. This was equivalent to saying that the jury must “find and believe” from the whole evidence in the case, and not from the evidence of either party.
After a careful examination of all the questions presented we are unable to find any material error. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This is one of several actions originating in the purchase of stock in the Wellington National Bank by John T. Stewart while he was the president and. manager of the bank. The sellers of the stock in each case claimed that Stewart, while president and in the actual management of the bank, fraudulently manipulated the assets and the books of the bank so as to cause the stock to appear to be of much less than its actual value, for the purpose of deceiving the stockholders and inducing .them to sell their stock to him for a sum greatly less than its true value. The plaintiffs in each of the actions sought to recover from Stewart the difference between what they received for the stock sold to him and its actual value when sold.
In this action, as in the others, the plaintiff recovered judgment. The defendant brings the case here alleging that the court erred in including certain items in its computation in determining the value of the stock at the time of the sale. In the case of Stewart v. Smith, 72 Kan. 77, 82 Pac. 482, these precise questions were involved, and it was held that such items should not have been included in making the estimate. For further facts of this case see Stewart v. Smith, supra.
In addition; it is now contended by the defendant in error that he was entitled to punitive damages on account of the fraud of Stewart, and, if it should be held that the items referred to should not have been included in estimating the value of the stock when Stewart purchased, that inasmuch as plaintiff was entitled to punitive damages the amount allowed by the court in excess of the actual value of the stock should be allowed to stand as such damages. The action was brought to recover the difference between what plaintiff received and the actual value of the stock, which is.alleged to have been worth $400 per share. The objectionable items were included for the purpose of fixing the value of the stock when sold, and not as punitive damages. There was no claim for punitive damages, and the court did not allow any.
The judgment of the court is reversed on the authority of Stewart v. Smith, supra, and the cause remanded. | [
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The opinion of the court was delivered by
Porter, J.:
The American Steel and Wire Company recovered judgment against S. L. Leonard upon three promissory notes. The plaintiff’s petition averred that it was a corporation duly incorporated under the laws of- the state of New Jersey, and that it was lawfully doing business in the state of Kansas. The answer, which was unverified, consisted of a general denial. Plaintiff’s motion for judgment on the pleadings was granted. Afterward, on the 25th day of April, 1904, and at the same term of court at which the judgment was rendered, defendant filed a motion to set aside and vacate the judgment upon the grounds: (1) That the district court of Finney county was without jurisdiction of the parties and the subject-matter, because the American Steel and Wire Company, a foreign corporation, was without authority of law to transact or do business within the state of Kansas under the provisions of article 3 of chapter 23, General Statutes of 1901; (2) because the answer put in issue the fact that the corporation had been granted authority to do business within the state; and (3) because defendant had been misled by the allegation of the petition to the effect that the corporation had been granted authority and was legally doing business within the state, when in fact no such authority had been granted or applied for by the corporation. The court denied the motion to vacate the judgment, and defendant brings the case here for review.
The only question to be determined is whether the answer raised an issue as to the authority of the corporation to carry on business within the state. In the case of Northrup v. Wills, 65 Kan. 769, 70 Pac. 879, the petition alleged that plaintiff was “a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Texas,” and was silent with respect to any authority to do business in Kansas. It was held that a demurrer to the petition was properly overruled, and further that, for the reason that the statements filed and acts performed by a corporation necessary to entitle it lawfully to engage in business are made and kept of record in a public office, the burden of proving that the requisites have not been complied with rests upon the party asserting the negative. In Jordan v. Telegraph Co., 69 Kan. 140, 143, 76 Pac. 397, it was said:
“The petition discloses that the plaintiff was a foreign corporation, but does not disclose that it had not complied with the requirements of the chapter cited. This was defensive matter, and to be availed of should have been pleaded.”
By pleading a general denial defendant admitted plaintiff’s capacity to maintain the action. The rule is that if the want of capacity to sue appear upon the face of the petition a demurrer will lie; otherwise, the defect must be specially pleaded or it is waived. (1 Encyc. Pl. & Pr. 10; Code, § 91; Gen. Stat. 1901, § 4525.) The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
M. J. Hurd, who owns real property in the city of Anthony, brought this suit against the Atchison, Topeka & Santa Fe Railway Company, the Kansas Southwestern Railway Company, the Anthony Wholesale Grocery Company and the city of Anthony to enjoin the construction of a switch across certain lots belonging to plaintiff, over a street and up an alley to the place of business of the Anthony Wholesale Grocery Company. It was alleged that the railway companies were cooperating in building the proposed switch, and that it was being done for the accommodation of the Anthony Wholesale Grocery Company, and for a purely private purpose. There were also allegations that a track built as proposed would greatly injure the plaintiff, and that the injury would be one for which there was no good measure of damages. A temporary restraining order was allowed by the probate judge, and upon notice the matter of dissolving the order was brought before the judge of the district court, at chambers. The question was submitted upon some agreed facts, and also upon testimony, with the result that the district judge dissolved the temporary restraining order. Application was then made to the district judge to grant a temporary injunction, and the testimony and facts used on the first hearing were submitted on this application, but the judge found them to be insufficient and denied the temporary injunction.
It is first insisted that there was no power in the district judge at chambers to dissolve the restraining order granted by the probate judge.- The argument is that prior to the amendment of 1901 section 239 of the civil code (Gen. Stat. 1889, § 4334) authorized probate judges to grant temporary injunctions, but that under the amendment only restraining orders may be issued by them, and that while there is express authority given to district judges to dissolve temporary injunctions the power to dissolve temporary restraining orders is not given. (Gen. Stat. 1901, § 4686.) In the amended section it is provided that the restraining order granted by the probate judge shall be of the same effect as a like order made by the district judge, and district judges have always exercised the power of setting aside their own restraining orders, as well as those granted by probate judges. Besides, the act concerning district courts provides that the judges at chambers and in vacation shall have power not only to vacate and modify injunctions but also to vacate all necessary interlocutory orders. (Gen. Stat. 1901, § 1924.) A temporary injunction and a temporary restraining order are each designed to afford temporary injunctive relief of the same general character, and if the power to vacate a temporary injunction is not of itself sufficient to vacate a temporary restraining order the language of the statute giving district judges the power to vacate interlocutory orders is certainly sufficient authority for that purpose. It • might be added that in the restraining order in question it was specifically prescribed that it should only be effective until a hearing before the-district court or a judge thereof. If the facts in the case justified the action of the district judge, there was no lack of power to make the order of dissolution.
It is contended, however, that under the facts the district judge was not warranted in either vacating the restraining order or refusing the temporary injunction. The judge found, and not without testimony, that the switch proposed to be built was for a public use, and was intended to be available to business houses along the line as well as to that of the Anthony Wholesale Grocery Company. Being a- public railroad, it follows that private property necessary for a right of way might be taken under the power of eminent domain. The fact that the company once condemned as much land at Anthony as was then deemed necessary did not ’exhaust the power. It may take as much more land as its increased business and the public convenience may require. (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 26 Kan. 669.) Prior to the selection of a route the company had a right to enter upon plaintiff’s ground to make examinations and surveys with a view of selecting the most advantageous route. (Gen. Stat. 1901, § 1816, subdiv. 1.)
It appears that representatives of the railway companies had made an examination in an endeavor to select a route for the switch, and a blue-print of a survey across the corner of plaintiff’s lots had been made. They had discussed the feasibility of this survey with the agent of the plaintiff, who suggested or inquired if the survey could not be made so as to take less of plaintiff’s land, and he was told that they might be able to get along with eight feet of it. These preliminaries were not illegal, nor did they necessarily indicate, that the plaintiff’s rights had been, or would be, invaded. From what was disclosed the plaintiff might well apprehend that the switch would soon be built, but we discover nothing showing an intention illegally to appropriate plaintiff’s land for that purpose. It-was not enough to allege and show that an appropriation of a right of way over plaintiff’s ground was contemplated, but it should further appear that there was a purpose to take wrongful possession of it. The defendants had no right to take possession of plaintiff’s ground, nor to begin construction of the switch over it, without acquiring the right to do so by purchase or condemnation; but the trial judge could not assume that the defendants would violate the law or the rights of the plaintiff. If a presumption were to be indulged it would be that of rightful action, and that the land would be taken by condemnation if it could not be obtained by negotiation and purchase. The survey of the railway company was a legal step necessary to a condemnation proceeding, and.it appears that on the day following the meeting with plaintiff’s agent and the negotiations had with him, and before there was any attempt to construct the switch, this suit was brought. In the granting or- continuance of a preliminary injunction the judge is vested with considerable discretion, and in this case the showing of a threatened invasion of plaintiff’s rights was so weak that it cannot be said that the refusal of the judge was an abuse of discretion. Mere apprehension or possibility of wrong and injury by a defendant is ordinarily not enough to warrant an injunction. There must be at least a reasonable probability of wrongful action and irreparable injury before a court will interfere and grant an injunction. It cannot be said that an intention wrongfully to appropriate plaintiff’s property or construct defendants’ track over - her land without obtaining a right to do so by negotiation or under the power of eminent domain was shown to be a reasonable probability.
No grounds for an injunction were shown as against either the city or the grocery company.
There appears to be no just cause to complain that the judge considered and determined the merits of the case on these motions. To determine whether plaintiff was entitled to a preliminary injunction matters were necessarily considered which would be involved in a final consideration of the case. The order made, however, is not a finality, and does not preclude the granting of such relief as the plaintiff may be entitled according to the, evidence presented on the final trial. The order of the district judge is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The final judgment which it is here sought to have reviewed, according to the petition in error in this case, was rendered in the district court of Haskell county on the 13th day of October, 1903. On the 12th day of October, 1904, the last day upon which the same could have been filed within the limitation fixed by section 556 of the code of civil procedure (Gen. Stat. 1901, § 5042), the plaintiff in error filed her petition in error in this court. She did not attach thereto or file therewith any transcript or case-made whatever setting forth or purporting to set forth any of the findings of the court below, but instead thereof filed an affidavit attempting to excuse the failure to file such transcript or case-made. Such affidavit, however, fails to show any diligence whatever for the acknowledged failure to comply with the statute. Section 546 of the code of civil procedure, then and now in force, having been reenacted in chapter 320 of the Laws of 1905, provides:
“The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified or the original case-made as hereinafter provided, or a copy thereof.” (Gen. Stat. 1901, § 5031; Laws 1905, ch. 320, § 1.)
We think this requirement of the statute is jurisdictional and mandatory, and that no degree of diligence will excuse the plaintiff in error from filing a transcript or case-made with the petition in error. A full year’s time is given for that purpose, and ordinarily a transcript could be- obtained or a case-made prepared within a few days.
Where a transcript is in fact filed with the petition in error, and there is a mistake or material omission therein, it is within the jurisdiction of this court to allow an amendment within the year at least (L. N. & S. Rly. Co. v. Whitaker, 42 Kan. 634, 22 Pac. 733); but we cannot disregard an entire failure to comply with the express requirements of the statute.
The motion of the plaintiff in error, filed April 27, 1905, to enlarge the record is denied, and the motion of the defendant in error to dismiss the case is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
On the showing made by plaintiffs as to the amount in controversy, the motion of defendant to dismiss is denied.
The first error .assigned is the striking out of three portions of the petition, viz.: (1) The description by subdivisions of all of a large tract of land (except one eighty-acre tract) which was alleged in the petition to belong to the defendant, “forming a tract which lies near and adjoining to the said property of these plaintiffs ;” (2) in the allegation that by its use and liability to explode the magazine was a common nuisance, a menace, etc., the words “a common nuisance;” (3) all of subdivision 8 of the petition. The first portion stricken out was the description of a large tract of land upon which it was alleged in subdivision 8 there were many locations, remote from highways and buildings, where a magazine could be erected with little danger to life or property.
In the determination of such a case a court of equity should consider just such facts as are here alleged. There is no claim that a cause of action was embraced in these allegations that was not in the original petition. If, as alleged, the building and the using of the magazine at the place intended would greatly endanger plaintiffs’ property and the lives of their family, and if, as alleged, the defendant owned other lands upon which, without great inconvenience, such magazine could be erected and used without danger or with much less danger to persons and property, a court of equity might well interfere by injunction. Also the allegation that the proposed building was, by reason of its use, a common nuisance seems entirely permissible, although the plaintiffs, to maintain the suit, would have to prove that they would be affected differently than the community in general by the alleged nuisance. So far we think the court was in error. If, as conceded, these facts were proper matter of proof, they were proper facts to plead. The latter part of subdivision 8, however, relating to the explosion of a magazine some time before, tendered no relevant issue and might well have been stricken out.
The court permitted Mr. Crane, who testified that he was an instructor in mining engineering in the University of Kansas, and who also testified to no inconsiderable amount of practical experience with explosives, to testify to many facts and numerous opinions relating to the effect of explosions of dynamite on persons and buildings at certain distances from the place of explosion. Many of these facts and opinions testified to were certainly matters of technical knowledge and science, and were proper matters of expert testimony; but the court afterward refused to consider this evidence, on the ground that the evidence was in effect a repetition of what the witness had read in books and was not based upon his personal observation and experience. In this there was error. The witness, in the main at least, did not undertake to repeat what any author or book said on a given subject, but gave his opinion from the weight of authorities as it appeared to him, necessarily calling his own experience to his aid in determining such weight.
Much space is devoted in the briefs to the discussion of the question whether the structure and the intended use thereof as alleged would make it a nuisance per se, or whether a careless or negligent use thereof would be requisite to make it a nuisance.
“A nuisance per se is an act, thing, omission, or use of the property which in and of itself is a nuisance, and hence is not permissible or excusable under any circumstances.” (21 A. & E. Encycl. of L. 683.)
A lawful business is not generally a nuisance per se, but may become so by being located in an inappropriate place or by being kept in an improper manner. (21 A. & E. Encycl. of L. 684, et seq.) It is therefore largely a question of fact whether the storing of a large quantity of dynamite in proximity to buildings is, when properly done, dangerous to the lives or property of persons located or living and passing within certain distances therefrom.
The evidence, or at least much of the evidence of the witness Crane, should have been considered and given such weight, if any, as it was entitled to in determining this question.
Other errors are assigned, but as the same questions are not likely to arise on a retrial they are not discussed. The judgment of the district court is reversed, with instructions to grant a new trial.
All the Justices concurring. | [
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Per Curiam:
In this case the facts are substantially .the same as those in the case of Surety Co. v. Brick Co., ante, p. 196, except that in this case the court sustained a demurrer to the fifth count of the answer of defendants. In the other case plaintiff did not demur to this defense, and the only question remaining in this case, therefore, is whether the court should have sustained the demurrer to the fifth defense or fifth count of the answer, which set up as a defense that for the purpose of procuring signatures to the petition for paving, and to prevent competition in the prices charged for the brick used, the Diamond Brick and Tile Company secretly and fraudulently hired and paid numerous resident owners of the lots fronting upon the street to sign the petition, whereby there was procured what could not otherwise have been procured — a pretended majority of the feet fronting upon the street belonging to resident owners — and that the proceedings were absolutely void. It was also alleged that'if the plaintiff sold any material to the contractor and delivered the same for the paving, such sale and delivery were made with full knowledge of the facts set up in this count of the answer. For the same reasons stated in the case of Surety Co. v. Brick Co., supra, we think this count of the answer stated a defense good against a demurrer.
The judgment is reversed. | [
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Per Curiam:
This is an original proceeding in quo. warranto by the state of Kansas, on the relation of C. C. Coleman, attorney-general, to oust the city of Kansas City and its officers from granting license to, or authorizing, persons to engage in selling intoxicating liquors in that city to be used as a beverage. The substantial allegations of the petition are that the officers ■of Kansas City are exercising and for more than two years have exercised the corporate power of making, entering into and carrying out agreements and contracts with such persons as the officers of the city may choose, by which such persons have" been, and are, granted the privilege of selling and keeping for sale within the city, and keeping and maintaining within the city, tippling-houses, and places for selling, and keeping for sale, habitually and as a business, intoxicating beverages to be at said places drunk as beverages. In consideration of such privileges such persons at stated intervals paid to the city a stipulated fine, which payments are required by the city and paid as a license for the privilege of conducting such business.
The city filed its answer, which upon the hearing was withdrawn, and consented that judgment might be awarded..
It is therefore ordered that judgment be entered as prayed for in the petition. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff in error is a fraternal beneficiary association chartered under chapter 23 of the Laws of 1898. On November 4, 1904, the defendants in error recovered a judgment against it on a beneficiary certificate issued by it to one Thomas M. Swift. A case-made for a review of the proceedings was properly and timely made, served, settled and signed, and, together with a petition in error, filed in this court May 24,1905. The defendants in error challenge the jurisdiction of the court to hear and determine the question presented in the record, and move to dismiss the petition in error for the reason that the proceeding in error was not commenced in this court within the time limited by section 13 of chapter 23, Laws of 1898 (Gen. Stat. 1901, §3580). The title of the act under which plaintiff in error was chartered reads as follows:
“An act providing for the organization and regulation of fraternal beneficiary societies, orders, and associations, and to provide penalties for violation thereof.”
That part of section 13 containing the provision under consideration is as follows:
“Any association authorized to do business under this act refusing or neglecting to make the reports provided for in this act, or which shall exceed its powers, or shall conduct its business fraudulently, or which shall take steps to remove any suit commenced against it in any of the courts in this state to any of the courts of the United States, or which shall fail to pay any judgment rendered against it in any court in this state, unappealed from, within sixty days of the rendition of such judgment, or which shall fail to comply with any of the provisions of this act, shall be excluded from doing business within this state.” (Gen. Stat. 1901, § 3580.)
The application of this section to a similar state of facts was considered by this court in Modern Woodmen v. Heath, 71 Kan. 148, 79 Pac. 1091, and the section applied, and the- cause dismissed. That decision is attacked on the ground that the section does not limit the time within which a beneficiary insurance company may perfect its proceedings in error, but is only an enumeration of acts for the violation of which proceedings shall be instituted by the proper authorities to oust it from doing business, and that until such proceedings have matured into a final judgment of ouster it may legally proceed with the transaction of its business.
The legislature determines what privileges shall be granted and what duties shall be imposed upon corporations created by it, and so long as these privileges or duties do not impinge upon any principles of the fundamental law the only duty of the court is to interpret and apply them. In the creation of corporations of the class to which the plaintiff in error belongs the legislature, for reasons of its own, deemed it expedient to limit the time within which such corporations should pay or appeal from judgments rendered against them. Under the provisions of the statute, if the judgment be not paid or appealed from within sixty days from its rendition the association confronts two conditions: It is denied the right of appeal frQm that judgment, and an action of ouster will lie-against-it. This was the .interpretation placed on the provision in Modern Woodmen v. Heath; supra, and we are satisfied that the statute was properly interpreted. -
The plaintiff in error challenges the constitutionality of section 3580 of the General Statutes of 1901, contending that it violates section 1 of the fourteenth amendment to the federal constitution. Under the general provisions of our statute relating to proceedings in error the petition in error may be'filed in this court at any time within a year after final judgment. In the present case, if the plaintiffs had been unsuccessful they could have prosecuted proceedings in error to this court at any time within one year, while under the construction placed.upon this section in Modern Woodmen v. Heath the plaintiff in error must commence its proceeding in this court within sixty days from final judgment. Therefore it is contended that the plaintiff in error is denied “the equal protection of the laws.”
The act under which the plaintiff in error was incorporated was passed for the purpose of chartering, regulating and controlling fraternal beneficiary associations. These organizations conduct a business entirely without capital. In this respect they differ from other business corporations. The usual and ordinary method of collecting judgments against natural persons or other corporations is unavailable against this class of organizations. The beneficiary of its certificate must accept whatever amount the members contribute, not exceeding the face value of a certificate, and neither the beneficiary nor the organization has any legal remedy against a non-paying member. Another difference is that they are exempted from the payment of a license tax by section 3589 of the General Statutes of 1901. In the creation of such corporations it was proper for the legislature to adopt some adequate and effective remedy different from the ordinary remedy for the collection of judgments. Having been created as a distinct class, with privileges, immunities and benefits not enjoyed by others, the legislature could provide special remedies to meet conditions arising out of, and made necessary by, the privileges granted. The contention, therefore, cannot be sustained. The plaintiff in error belongs to a class, and the restrictions of which it complains are imposed alike upon all persons belonging to that class. Mr. Cooley in his Constitutional Law, third edition, at page 249, says:
“The guaranty of equal protection is not to be un dersfood, however, as requiring that every person in the land shall possess precisely the same rights and privileges as every other person. The amendment contemplates classes of persons, and the protection given by the law is to be deemed equal, if all persons in the same class are treated alike under like circumstances and conditions both as to privileges conferred and liabilities imposed. The classification must be based upon reasonable grounds; it cannot be a mere arbitrary selection.”
Equal protection of the law is secured if the law operates alike on all of the same class, provided the classification is not arbitrary or unreasonable, and arises out of the business engaged in or the peculiar manner in which it is conducted, and, as expressed in Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150, 165, 17 Sup. Ct. 255, 41 L. Ed. 666, is based “on some difference which bears a just and proper relation to the attempted classification.”
One important distinction between this fraternal beneficiary association and individuals and other corporations is that its beneficiaries, as judgment creditors, cannot by the ordinary processes of law collect their judgments. They must look for satisfaction to the voluntary contribution of its members. This membership is varying and uncertain, and a great death-rate necessarily increases its liability, while the means of collection correspondingly decrease. This and other distinctions which the legislature has made are sufficient to authorize and uphold the provision of the statute of which complaint is made.
Under the statute of Oklahoma, which is a reenactment of the Kansas statute, it is provided that in an attachment proceeding against a resident the plaintiff is required to execute an attachment bond, but if the . defendant is a non-resident a bond is not required. It was held in Central Loan & Trust Co. v. Campbell, 173 U. S. 84, 19 Sup. Ct. 346, 43 L. Ed. 623, that the classification into resident and non-resident defendants was justified, and that the provision did not violate the con stitutional inhibition. The constitution does not require the same law to be applied to two distinct classes. It “only requires the same means and methods to be applied impartially to all of the constituents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances.” (Kentucky Railroad Tax Cases, 115 U. S. 321, 337, 6 Sup. Ct. 57, 29 L. Ed. 414.)
The subject of insurance and the creation, regulation and control of insurance corporations are matters over which the states have assumed to exercise a special supervision. This became necessary because of the many abuses arising out of the manner in which these corporations conducted the business; and all legislative enactments having this object in view should be - liberally construed by the courts to further this recognized policy. The time allowed fraternal beneficiary associations to prosecute proceedings in error is not so short as to deprive them of the right of appeal, and- in view-of the supervision justly exercised by the state over insurance companies for the protection of the-public from impositions it is a just and reasonable regulation, and does not violate any of the provisions of section 1 of the fourteenth amendment to the constitution of the United States.
The proceeding in error is dismissed.
All the Justices concurring. | [
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Per Curiam:
J. B. Leaman held the office of sheriff of Decatur county for a period of five years, from January 8, 1900, to January 9, 1905. Two days before his term of office expired he filed a claim against the county for $1250 for deputy hire at the rate of $250 for each of the five years. The claim was disallowed by the board of commissioners, and on appeal to the district court the cause was tried by the court without a-jury and Leaman was given judgment for $750, the court holding that the claim for deputy hire for the first two years was barred by the statute. The county brings error.
It appears from the evidence that during the five years Leaman was sheriff he presented claims against the county for the services of himself and deputy for each day and mileage for each mile either he or his deputy traveled, and these claims were from time to time allowed.
The peculiar claim is advanced by defendant in error in support of the judgment in this case that the conditions existing in Decatur county at the time he was so unfortunate as to be called upon to fill the office of sheriff were such as to authorize a special dispensation of justice. It appears that the court-house, sheriff’s residence and jail were all separated by a distance of several blocks, requiring extra help and assistance in caring for the prisoners. In addition, the sheriff’s own testimony discloses that the earnings of his office were small during the years he held it. In some years he thinks he only averaged about $900 as receipts. A former sheriff who immediately preceded him in the office testified that his earnings were on an average of $1700 a year.
Authorities are cited to the effect that when a party knowingly appropriates to its own use the property or services of another, there is an implied contract to pay for the same. It is argued that the county appropriated to its use the services furnished by the sheriff and should allow him for it. The claim is not based upon any testimony that in each year defendant in error hired a deputy and paid him $250. The amount claimed for each year appears to be a sort of estimate on the part of the sheriff that this amount would about square him with the county for that year.
The statute fixes the fees and allowances of sheriffs, and we know no way he can avoid rendering services to the county for an inadequate compensation except by resigning the office when dissatisfied with the emoluments fixed by the statute. To uphold this judgment would open the door to the allowance by the boards of county commissioners of innumerable claims which might with as much propriety be presented by county officers after their terms had expired for additional compensation for services claimed to have been rendered. There is no law that we know of or have been referred to which would sustain the judgment, and it is therefore reversed and remanded, with instructions to enter judgment for defendant below for costs. | [
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The opinion of the court was delivered by
Burch, J.:
August Roupetz was convicted of manslaughter in the first degree, and appeals.
Under the repeated decisions of this court juror Bourgoine was qualified. Threats of the deceased against appellant’s brother, and not involving the appellant himself in any way, were irrelevant. The testimony of witness Frank Kersenbrock that he heard shots fired while he and his father were passing appellant’s premises at night could not be prejudicial, especially after the court stated to the jury that the witness could not say appellant fired them.
Early in the progress of the trial, upon the occasion of striking out some testimony, the court said to the jury: “Gentlemen, when the court rules out any evidence you are not to consider it in the case. It is the same as not given; it should be out of your minds entirely.” Afterward all the testimony of a witness was withdrawn because his cross-examination developed the fact that he did not understand the nature of an oath or the effect of false swearing. When the evidence was closed the court instructed the jury upon the law of the case, and, referring to the duties of the jurors, said that in determining the intent of the appellant in doing any of the acts charged against him they should take into consideration all the evidence given by the witnesses tending to show what his intention was. It is now argued that the jury had the right to believe the court had taken back in writing what had been stated orally, and that all excluded evidence could be lugged into the case. The court is of the opinion that danger to the appellant from such a fatuity is discernible only by the red and roving eye of imagination. A special instruction, upon the final submission of the case, that the jury should disregard the excluded testimony was properly refused. Two instructions to disregard testimony would constitute a superfluity which even the liberal criminal procedure of this state does not indulge; and after testimony has been withdrawn and is no longer in the case an instruction to disregard it would virtually be an aberrance.
The fact that the deceased said appellant would have to walk over his dead, body before appellant should have any of his mother’s property was not a threat; was not pertinent to the issues, except that it might have furnished a motive for the homicide; and hence-the appellant was not harmed by its exclusion. Besides, the state of feeling between the parties was so abundantly proved, and so many direct and positive threats by the deceased against appellant’s'life were shown, that the omission of this item could not have affected the verdict.
The cross-examination of appellant with reference to the land difficulty was fairly invited by a number of questions put to him by his counsel. Independent of that fact, it was proper to fix an important date, and was pressed no further than seemed necessary for that purpose.
The cross-examination of appellant in reference to peace proceedings against him was clearly admissible to affect his credibility. The fact that he had been arrested, and after a trial had been put under bond to keep the peace because of threats to kill his father and mother, tended to discredit, disgrace and degrade him, within the rule announced in The State v. Greenburg, 59 Kan. 404, 53 Pac. 61, and other decisions of this court. .
The instructions of the court given at the time were' ample to protect the rights, of the appellant if the remarks of the county attorney infringed them. Erroneous instructions relating to murder are immaterial, appellant having been convicted of an inferior crime. Requested instructions fourth, eighth and twentieth invaded the province of the jury, and requested instructions twenty-fourth and twenty-eighth were arguments of the case to the jury from the appellant’s standpoint rather than statements of law. It is not the law that the presumption of good character stands until overcome beyond a reasonable doubt, as the sixty-first requested instruction states. It may be over thrown by evidence much less conclusive. The sixty-eighth requested instruction was wrong because some of the matters to which it referred did not have a bearing upon the case. The instruction given by the court upon the same subject was corrects Instructions refused and instructions given which are not printed in the brief are not considered. (Rule 10.)
The appellant had a fair trial. The jury apparently gave him the benefit of every doubt, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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On February 19, 1991, a complaint was received by the disciplinary administrator against Stephen B. Rhudy, of Lawrence, an attorney admitted to practice law in the State of Kansas. The complaint alleges that respondent’s client, in response to a billing from respondent, paid respondent $15,000 for the payment of trial expenses. Thereafter, respondent failed to pay for the trial expenses and converted the money to his own use.
On February 20, 1991, respondent, pursuant to Supreme Court Rule 217 (1990 Kan. Ct. R. Annot. 154), voluntarily surrendered his license to practice law in the State of Kansas.
The court, having examined the files and records of the office of the disciplinary administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
IT IS THEREFORE ORDERED that Stephen B. Rhudy be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of Stephen B. Rhudy from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by DeKalb Swine Breeders, Inc., from the trial court’s order denying its motion to revive a judgment and dismissing its garnishment action. DeKalb appeals, contending that a timely garnishment action was still pending when the trial court dismissed the action and that the motion to revive was timely filed.
DeKalb sued Denny Whitman, d/b/a Whitman Trucking Company, Canal Insurance Company (Canal) (one of Whitman’s insurers), and others for negligence in a motor vehicle accident. DeKalb did not name Hartford Fire Insurance Company (Hartford), Whitman’s cargo insurer, as a defendant. On June 14, 1982,. the trial court entered judgment in favor of DeKalb and against Whitman and Canal for $17,654.65 for damages to DeKalb’s hogs and $4,844.20 for damages to DeKalb’s trailer. The $4,844.20 has been paid and is not in dispute.
On January 7, 1983, DeKalb filed a request for the court clerk to issue an order of garnishment against Hartford. DeKalb requested that service of this order be made on both Hartford and Whitman. The order of garnishment against Hartford was issued on January 7, 1983, and service was had on January 11, 1983.
DeKalb’s arguments center around the fact that on the same date (January 7, 1983), the same form was issued to be served on Whitman. The caption lists Hartford as the garnishee. The title of the instrument is “Order of Garnishment.” The text begins, “The State of Kansas to said Garnishee: Denny Whitman, d/b/a Whitman Trucking Co., Kismet, KS.” (Emphasis supplied.) The return of service shows no service and that “subject lives in Plains, KS.” (Emphasis supplied.)
On January 27, 1983, another garnishment form, identical to the January 7, 1983, form, was issued to Whitman, except that it listed him as living in Plains, Kansas. Service was had on Whitman on January 28, 1983.
Hartford filed an answer denying it was holding money or property of DeKalb and denying that it was indebted to DeKalb. DeKalb filed a reply stating that, at the time of the accident, Hartford insured Whitman and specifically insured the cargo (DeKalb’s hogs).
Between 1983 and 1990, two sets of interrogatories were served and other miscellaneous pleadings were filed and depositions taken. Then, in 1990, a notice of substitution of attorney for DeKalb was filed.
DeKalb filed a motion to revive the judgment against Whitman and Canal on January 22, 1990. In it, DeKalb stated that, because a garnishment was pending, it did not believe that judgment was dormant but that it was filing the motion for purposes of clarification. Copies of this motion were mailed to attorneys for Canal and Hartford. A summons was issued for Whitman but was returned with no service because Whitman was no longer in Meade County.
Canal was served. Canal argued that because no garnishment was ever issued against it, the period for dormancy and revival had run. It also argued that because joint and several liability had been abolished, garnishment or execution must be made against each defendant in order to prevent dormancy.
Hartford filed a motion to dismiss the garnishment proceedings, arguing that the only true garnishment order was issued on January 7, 1983, and that the pending garnishment proceeding did not toll the running of the time limits. Thus, Hartford argues, the judgment became dormant five years from January 7, 1983, when garnishment was issued. Hartford contends that two years after the judgment became dormant (January 7, 1990) the judgment could no longer be revived.
In a memorandum opinion filed August 3, 1990, the trial court found that garnishment was issued on January 7, 1983, to Hartford. The trial court held that the other documents entitled “Order of Garnishment” (actually served on January 27, 1983) were merely notice that Hartford had been garnished. The trial court reasoned that January 7, 1983, to January 22, 1990, (when the motion to revive was filed) was over seven years and it was too late to revive the judgment. The trial court held that a pending garnishment proceeding does not toll the statute of limitations. On August 21, 1990, the trial court filed a journal entry denying the motion to revive and dismissing the garnishment against Hartford.
K.S.A. 1990 Supp. 60-2403(a) provides:
“If a renewal affidavit is not filed or if execution, including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment in any court of record in this state, including judgments in favor of the state or any municipality in the state, or within five years from the date of any order reviving the judgment or, if five years have intervened between the date of the last renewal affidavit filed or execution proceedings undertaken on the judgment and the time of filing another renewal affidavit or undertaking execution proceedings on it, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor. Except as provided in subsection (b), when a judgment becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.
“A ‘renewal affidavit’ is a statement under oath, signed by the judgment creditor or the judgment creditor’s attorney, filed in the proceedings in which the judgment was entered and stating the remaining balance due and unpaid on the judgment.” (Emphasis supplied.)
K.S.A. 1990 Supp. 60-2404 sets forth the period for revivor of a dormant judgment:
“A dormant judgment may be revived and have the same force and effect as if it had not become dormant if the holder thereof files a motion for revivor and files a request for the immediate issuance of an execution thereon if such motion is granted. Notice of the filing of the motion shall be given as for a summons under article 3 of this chapter. If the motion for revivor was filed within two years after the date on which the judgment became dormant or, in the case of a child support judgment, was filed during the period prior to the child’s emancipation, within two years after the child’s emancipation or within two years after the judgment became dormant, whichever is later, on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon the execution shall issue forthwith. On the hearing of a motion to revive a child support judgment, the court may enter an order to prevent the unjust enrichment of any party or to ensure that payments will be disbursed to the real party in interest. A judgment may also be revived by the filing of a written stipulation of revivor signed by all of the parties affected thereby. For the purpose of this section and K.S.A. 60-2403 and amendments thereto, attachment, income withholding or garnishment process shall have the same effect as the issuance of an execution.” (Emphasis supplied.)
The operation of these statutes has been explained as follows:
“In Kansas, under these statutes, a party may, by the issuance of an execution every five years, keep a judgment alive indefinitely. The judgment remains in force without execution for five years, and the plaintiff may revive it at any time within two years if it has become dormant thereafter, so that a plaintiff may neglect his judgment for seven years, lacking a day, and then revive it and put it in force for five years more.” (Emphasis supplied.) Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 407-08, 661 P.2d 1242, cert. denied 464 U.S. 936 (1983).
The initial question here is if seven years passed between issuance of garnishment and the motion to revive. The garnishment order to Hartford was issued on January 7, 1983. The motion to revive was filed January 22, 1990.
Black’s Law Dictionary defines garnishment as “A proceeding whereby a plaintiff creditor, i.e., garnishor, seeks to subject to his or her claim the property or money of a third party, i.e., garnishee, owed by such party to defendant debtor, i.e., principal defendant.” Black’s Law Dictionary 680 (6th ed. 1990). Garnishment, then, is directed at a third person, not the judgment debtor. The document sent to Whitman would not be an order of garnishment. As listed in the caption, the garnishee was Hartford.
Notice of post-judgment garnishment of a third party is not statutorily required to be served on the judgment debtor. K.S.A. 1990 Supp. 60-717(b) directs the procedure for service and return of a garnishment order:
“The order of garnishment shall be served on the garnishee, together with two copies of the form for the garnishee’s answer prescribed in K.S.A. 60-718 and amendments thereto and returned by the officer making service in the same manner as an order of attachment. If the order is served prior to a judgment on the plaintiffs claim, the order shall also be served on the defendant, if the defendant can be found, but failure to serve the defendant shall not relieve the garnishee from liability under the order.”
The judgment debtor receives notice when the garnishee files an answer and the clerk mails the judgment debtor a copy of the answer of the garnishee to the judgment debtor, pursuant to K.S.A. 1990 Supp. 60-718(c).
Because the notice to Whitman was not statutorily required and, in fact, had no legal effect, it was not an order of garnishment within the meaning of K.S.A. 1990 Supp. 60-2403 and the running of the time limit for dormancy was not extended by the notice served on Whitman.
Thus, unless the running of the time limit was tolled because a garnishment proceeding was pending from January 7, 1983, the judgment is dormant and not subject to revival after January 7, 1990.
The trial court relied, in part, on Long v. Smith, 125 Wash. 183, 215 Pac. 342 (1923), in which the Washington Supreme Court held that a pending garnishment did not toll the running of the dormancy statute.
The language of K.S.A. 1990 Supp. 60-2403 is such that the pending garnishment proceeding does not toll the time period. The statute uses the words “if execution, including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution, is not issued, ... or, if five years have intervened between the date of the last . . . execution proceedings undertaken on the judgment and the time of filing another renewal affidavit . . . .” (Emphasis supplied.) It also speaks of “undertaken” and “undertaking.”
The word “issue” is defined as:
“To send forth; to emit; to promulgate; as, an officer issues orders, process issues from a court .... When used with reference to writs, process and the like the term is ordinarily construed as importing delivery to the proper person, or to the proper officer for service, etc.” Black’s Law Dictionary 830-31 (6th ed. 1990).
The word “undertake” has a very broad meaning, but taken in context, as used in the statute, (“undertaken” and “undertaking”) it means “attempt.” Black’s Law Dictionary 1526 (6th ed. 1990).
In Saville v. Schroyer, 65 Kan. 303, 68 Pac. 1130 (1902), it was argued that because an execution was never returned, the judgment became dormant. The court said, “The statute . . . provides that it is the issuance, and not the return, of an execution that tolls the statute.” 65 Kan. at 304. Generally, “to issue” means to deliver process to the officer charged by law with its service. Marshall v. Matson, 171 Ind. 238, 244, 86 N.E. 339 (1908). See McIntosh v. Standard Oil Co., 121 Neb. 92, 103, 236 N.W. 152 (1931).
Holding that it is the issuance of garnishment that is relevant accords with the rules for statutory construction. Dormancy and revivor statutes are to be strictly construed. Wichita Fed. Sav. & Loan Ass’n v. North Rock Rd. Ltd. Partnership, 13 Kan. App. 2d 678, 684, 779 P.2d 442, rev. denied 245 Kan. 788 (1989); Clark v. Glazer, 4 Kan. App. 2d 658, 609 P.2d 1177 (1980).
DeKalb points to two older cases which stand for the proposition that when an action on a judgment is pending, the time limits do not run. In Bank v. Edwards, 84 Kan. 495, 499, 115 Pac. 118 (1911), the court said:
“Finally, it is argued that the lien of the appellee is lost because an execution was not issued upon its judgment for more than five years. This action to enforce the lien of that judgment was commenced in less than one year after it was rendered, and has been pending ever since. An execution to preserve the vitality of the lien was not necessary. (Treat v. Wilson, 65 Kan. 729.)”
In Treat v. Wilson, 65 Kan. 729, 732, 70 Pac. 893 (1902), this court had said of an action on a judgment:
“As the judgment was not dormant when the action was brought, it is elementary and axiomatic that no statute of limitations, or other statute, can intervene during the pendency of the action to prevent a recovery, and that the pendency of the action on the judgment obviated the necessity of the issuance of an execution on the judgment or other proceedings to preserve its vitality as a cause of action.”
In First National Bank v. Harper, 161 Kan. 536, 169 P.2d 844 (1946), this court considered whether an action to foreclose a mortgage restarted the five-year time limit to prevent a judgment from becoming dormant. This court held that, because the statute in effect at the time only mentioned executions and because the statute should be strictly construed, only issuance of an execution affects the life of a judgment and “[t]he commencement of an action is not enough.” 161 Kan. at 542.
Hartford argues that Harper overruled Treat and Edwards. DeKalb argues that Harper never reached the question of the effect of a pending action and that it merely held that a foreclosure action does not affect the dormancy statute.
There is a difference between an action on a judgment and an execution or garnishment. An action on a judgment is an original cause of action. An execution is not a cause of action. Brown v. Bell, 46 Colo. 163, 167, 103 Pac. 380 (1909); McCollum v. Gornto, 127 Fla. 792, 794, 174 So. 24 (1937). Likewise, a garnishment is not considered a cause of action—it is referred to as an ancillary or auxiliary proceeding. Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. 670 (1901); Whinery, Executrix v. Kozacik, 216 Ind. 136, 142, 22 N.E.2d 829 (1939). The earlier decisions of Treat and First National Bank are actions on judgments prior to the new statutory language and are not persuasive in interpreting current legislative intent.
DeKalb attempts to make an analogy between the time limit for dormancy and a statute of limitations for a cause of action. DeKalb argues: “A personal injury plaintiff who faces a two-year statute of limitations does not have to file a new suit every two years.” This argument is not compelling because DeKalb is talking about a true cause of action, while this case concerns keeping a judgment alive pursuant to statutory authority.
We conclude that, as far as execution and garnishment is concerned, the legislature intended that, in computing when a judgment becomes dormant, the time commences to run from the date garnishment or execution is issued and not from the date the garnishment or execution proceeding is completed. Thus, the trial court did not err in refusing to revive the judgment.
Having held the original judgment is not subject to revival, the remaining arguments are moot.
Affirmed. | [
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On January 25, 1991, a formal complaint was filed by the disciplinary administrator against Richard H. Ebersole, of Mulvane, an attorney admitted to practice in the State of Kansas.
On February 28, 1991, a hearing before the panel of the Kansas Board for Discipline of Attorneys was held, and, on March 18, 1991, the panel report was received by the disciplinary administrator’s office. The report reflected the panel’s finding that respondent had violated MRPC 1.3 (1990 Kan. Ct. R. Annot. 219), MRPC 3.2 (1990 Kan. Ct. R. Annot. 258), and MRPC 8.4(g) (1990 Kan. Ct. R. Annot. 290) and recommended that respondent be disbarred. The panel’s recommendation was based upon respondent’s failure to respond to prior discipline by the Board and this court, and respondent’s continued neglect of his client, even after having been disciplined for such neglect.
On March 1, 1991, respondent, pursuant to Supreme Court Rule 217 (1990 Kan. Ct. R. Annot. 154), voluntarily surrendered his license to practice law in the State of Kansas.
The court, having examined the files and records of the office of the disciplinary administrator,' finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It is Therefore Ordered that Richard H. Ebersole be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It is Further Ordered that the Clerk of the Appellate Courts strike the name of Richard H. Ebersole from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
Dated this 10th day of April, 1991.
It is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
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The opinion of the court was delivered by
Lockett, J.:
The Court of Appeals affirmed the trial court’s apportionment of the death taxes and administration expenses between the Joyce Evans Pickrell Trust and the Estate of Joyce Evans Pickrell. In re Estate of Pickrell, 14 Kan. App. 2d 375, 791 P.2d 41 (1990). Thomas Pickrell and Patricia Pickrell, son and daughter-in-law of Joyce Evans Pickrell, deceased, seek review of the Court of Appeals’ decision that where a conflict exists between a will and a later amended inter vivos trust, the last instrument expressing the deceased’s intent controls.
On June 9, 1982, Joyce Pickrell executed both her last will and testament and a trust indenture establishing the Joyce Evans Pickrell Trust. The trust indenture provided that upon Joyce Pickrell’s death the trust was to be divided into four equal shares among her son, Thomas Pickrell; her daughter, Patricia Pickrell Smith Beilis; and two nieces. Article IV, Section 12 of the trust indenture required the trustees to pay all taxes imposed on the trust.
Five years later, Joyce Pickrell amended Article IV, Section 12 of the Joyce Evans Pickrell Trust. The amendment to the trust stated that it was the settlor’s intent for the trust assets, the beneficiaries of the trust, and the estate beneficiaries to bear their proportionate share of the federal estate taxes, the state inheritance taxes, and the administration expenses.
Joyce Pickrell died on October 7, 1987. The will was admitted to probate on January 11, 1988. Her survivors are her son and daughter, five grandchildren, and the two nieces named in her inter vivos trust. Her taxable assets were $4,984,362.45. The federal and state death taxes paid at the time of appeal were $2,097,667.90.
The dispute is over the trustees’ interpretation of Article IV, Section 12 of the amended trust indenture which authorized and directed them to pay to the Joyce Pickrell estate the trust’s proportionate share of death taxes and administration expenses based on the ratio of trust assets to the total taxable estate. The only heir to disagree with the trustees’ interpretation is the son, Thomas Pickrell, and his wife. They argue that Article IV, Section 12 of the trust as amended is inconsistent with the second article of the will, which directs the executors to pay taxes and expenses out of the residuary estate and not to collect any part of taxes or expenses from any beneficiaries. They claim the will controls the payment of taxes and expenses.
As a result of the disagreement, the trustees filed a petition requesting construction of the trust. One week later Thomas Pickrell and his wife filed a petition for construction of the will. The district court consolidated the petitions. The district court found the language of the trust amendment was clear and concise and contained the latest expression of the settlor s intent as to the apportionment of taxes and expenses; therefore, there was no inconsistency between the will and the trust indenture. The district court ordered the trustees to distribute to the executors of the estate an amount representing the trust’s proportionate share of the death taxes and administration expenses.
Thomas Pickrell and his wife appealed, contending: (1) where there is a conflict between a will and a trust indenture, the will controls and the contrary instructions in the trust indenture are ineffective; (2) the district court’s decision allows the federal estate tax burden to be altered or shifted by an apportionment clause of an inter vivos trust, even though the trust indenture has not been executed with the testamentary requirements or safeguards required for a will; and (3) the district court’s decision is contrary to the Kansas rule that “in the absence of anything in the ioill to the contrary, the burden of federal estate taxes falls on the residuary estate.” Spurrier v. First National Bank of Wichita, 207 Kan. 406, 485 P.2d 209 (1971). (Emphasis added.) See In re Estate of Adair, 237 Kan. 773, 703 P.2d 793 (1985).
Although the Court of Appeals affirmed the district court’s decision that the trust as amended was the latest expression of the settlor’s intent, each panel member affirmed the district court on different grounds. Before reviewing the various reasonings of the panel members, it is necessary to state the pertinent provisions in the two documents used by Pickrell for her estate plan.
The pertinent parts of Joyce Pickrell’s will stated:
“SECOND: I direct that all Federal estate taxes, imposed upon or in relation to any property required to be included in my gross estate for Federal estate tax purposes, and all inheritance and succession or transfer taxes payable upon or resulting from or by reason of my death, whether or not attributed to properties subject to probate administration, and further, all expenses of administration of my estate, shall be paid out of the residue of my probate estate. My executors shall not be reimbursed for, nor collect, any part of such taxes or estate administration costs from any person, legatee, devisee, or beneficiary under this Will, nor shall there be any charge or recovery therefore upon the basis of proration, apportionment, contribution, distribution, or otherwise, against estates not included in my probate estate, or against persons not deriving benefits under this Will. [Emphasis added.]
“NINTH: I direct my executors to cooperate with the Trustees of that certain Trust Indenture dated June 9, 1982, to the extent that the purpose of said Trust shall be fully accomplished and satisfied.
“SIXTEENTH: Provisions in this Last Will and Testament for my children Patricia Pickrell Smith and Thomas Ross Pickrell take into consideration the generous provisions made for each of them under the Last Will and Testament by their father Lloyd R. Pickrell and subsequent gifts to each of them by the Testatrix during her lifetime and by the provisions of that certain Trust Indenture dated June 9, 1982, to which reference is made in Article Ninth hereof.”
The pertinent parts of the June 9, 1982, trust indenture are:
“ARTICLE II - REVOCARILITY
“The Settlor shall have the right at any time and from time to time to change, alter, modify or revoke the trust hereby created and/or to withdraw the trust estate in whole or in part by an instrument in writing, executed by the Settlor and delivered to the Trustees.” (Emphasis added.)
“ARTICLE IV - POWERS AND DUTIES OF TRUSTEES
“Section 12. The Trustees shall have the power to sue and be sued on or in respect of any matter connected with the trust estate, to compromise suits and claims, to pay all taxes and governmental charges of any kind or character, which may be imposed upon or on account of said trust estate; to appoint attorneys and to receive compensation and to pay all necessary and proper expense of said trust estate, and such other and further powers as may be necessary and incidental for the accomplishment of the purposes of this trust.”
Section 12 of Article IV of the Trust Indenture was amended on April 23, 1987, to include:
“. . . provided however, and notwithstanding any of the general powers hereinabove granted the Trustees, upon the death of Settlor, this Trust being then in existence, said Trustees are hereby directed and authorized to pay and distribute to Settlor s executors or administrators, as may be appointed, from the assets of the Trust, such portion of the total Federal estate, State inheritance taxes and administration expenses, determined to be due and payable by reason of Settlors estate, upon and by reason of Settlor’s death, in the share or proportion that the value of the assets of the Trust distributable upon the death of Settlor shall bear to the total value of all assets, including the value of the assets of this Trust, as included in Settlor’s estate in determining the taxes due and payable, and administration expenses payable by Settlor’s estate. It is Settlors intent by the preceding sentence that the Trust assets, the share of each beneficiary of the Trust, and the shares of the beneficiaries of Settlor’s estate outside this Trust, be charged with and bear respective their proportionate share of all Federal estate, State inheritance tax and expenses of administration determined to be due and payable by Settlor’s estate.” (Emphasis added.)
Judge Rulon, author of the Court of Appeals controlling opinion, correctly states the basic principle that when a will is challenged the trial or appellate court’s first duty is to determine whether the will is ambiguous. In re Estate of Brecklein, 6 Kan. App. 2d 1001, 1007, 637 P.2d 444 (1981). He points out that, when the testator’s intent is clearly and unequivocally expressed, the will must be enforced in accordance with its provisions. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 1, 596 P.2d 137 (1979). He then references the basic principles of will construction. Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975). Judge Rulon observes that the rules which govern will construction are also used for construing a trust, i.e., the settlor’s intent is to be determined from the four corners of the trust instrument. In re Estate of Sutcliffe, 199 Kan. 686, 692, 433 P.2d 389 (1967).
Judge Rulon agreed with the district court’s finding that both the will and the amended trust indenture were unambiguous. Therefore, he did not need to use judicial construction to determine the decedent’s intent. Judge Rulon noted that the language of the will did not specifically prohibit the executors from accepting the trustees’ proffer of the trust’s proportionate share of taxes and administration expenses.
Judge Rulon noted that K.S.A. 79-1564(d), which provides that each distributive share of estate assets will bear a proportionate share of the inheritance taxes, permits the decedent to avoid this statutory scheme by so directing in either a will or a trust agreement. Judge Rulon stated that an inter vivos trust, which is part of a coordinated estate plan, may include a provision instructing the trustee to pay the trust’s ratable share of the death taxes and expenses. See Nothern and Wachter, The Ultimate Burden of the Federal Estate Tax in Kansas—A Dilemma for Executors, 17 Washburn L.J. 231, 244-49 (1978).
Judge Rulon observed that, while better drafting could have made the tax provisions more coordinated between the two documents, they were still consistent with each other. Judge Rulon rejected the Pickrells’ argument that the trust amendment was ineffective, determining that such reasoning was not consistent with Joyce Pickrell’s last clear statement and would defeat the decedent’s directions for payment of inheritance taxes and administration expenses.
Judge Larson concurred, finding there was a direct conflict between the second article of the will and the subsequent amendment to the trust indenture. He stated that the use of shall rather than may in the will is to be construed as mandatory, directing the executors not to accept any “recovery” from any beneficiary. After noting the trust agreement, as amended, directs the trustees to pay to the estate the trust’s share of inheritance taxes, Judge Larson concluded that inconsistency between the will and the trust agreement is actual and existing, not perceived.
Finding no Kansas case on point, Judge Larson looked to other jurisdictions and legal authorities to determine which instrument controls when a conflict exists between an earlier executed will and a later amended inter vivos trust. Citing In re Estate of Strohm, 241 So. 2d 167 (Fla. Dist. App. 1970); Matter of Osborn, 8 Misc. 2d 859, 866, 166 N.Y.S.2d 446 (1957); Annot., 69 A.L.R.3d 122, 215; and 42 Am. Jur. 2d, Inheritance, Etc., Taxes § 352; for authority, Judge Larson determined where a conflict exists between the provisions of a trust agreement and the provisions of a will, the later instrument in time controls.
In his concurring opinion, Judge Larson acknowledged the Pickrells’ contention that the will’s provisions should control because “a will speaks from the time of the testator’s death, unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing,” citing In re Estate of Laue, 225 Kan. 177, 182, 589 P.2d 558 (1979). He points out that the rule making a will speak as though executed immediately before the death of the testor relates to the effect and operation of the instrument rather than to its construction. To determine the intent of the testator, the will is to be construed as of the date of execution. See In re Estate of Wernet, 226 Kan. at 106. Based on the court’s primary function to ascertain and carry out the decedent’s intent (In re Estate of Cline, 170 Kan. 496, 227 P.2d 157 [1951]), Judge Larson found that the last document executed by Joyce Pickrell, the amended inter vivos trust, clearly and plainly represented her intent.
Judge Rees concurred with Judge Larson that the will and trust indenture were inconsistent and in conflict and urged affirmance of the trial court based on a theory of last expressed intent. Judge Rees narrowly applied the rule, stating that the rule of last expressed intent as to determining responsibility for payment of death taxes should only be applied when there is a conflict between will and trust instruments, and not when another instrument later in time creates a conflict. He found that using the rule in this manner is in accord with provisions of the Kansas Inheritance Tax Act, K.S.A. 79-1537d and K.S.A. 79-1538.
Though all members of the panel agreed that Joyce Pickrell’s use of the will and an inter vivos trust was an integral part of her estate planning, no member of the panel agreed on the correct course of law in affirming the trial court. We are, therefore, required to select the course to be followed in this case.
The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). The will and the trust indenture must be considered and construed together to determine which document shall govern the apportionment of death taxes and the expenses of administration. Can an inter vivos trust, amended after the execution of a will, directing the trustee to pay to the estate’s executors the trust’s apportionment of taxes and administration expenses, be given effect where the will directs that taxes and administrative expenses must fall on the residuary estate?
The right of a testator to designate who or what portion of his or her estate is to bear the burden of estate or inheritance taxes has been recognized by the legislature. K.S.A. 79-1564(d), which governs inheritance taxes, provides:
“The taxes imposed under the provisions of this act shall be paid at the expiration of nine (9) months after the death of the decedent. Such taxes shall be payable from the assets of the estate or proceeds therefrom, in order, so far as practicable, that each distributed share of the estate shall bear a just and equitable proportion of said taxes unless otherwise directed by the will of the decedent or trust agreement.” (Emphasis added.)
Joyce Pickrell’s will requires that all taxes and costs of administration be paid from the residuary estate while, her inter vivos trust indenture as amended directs the trustees to pay the trust’s proratable share of the death taxes and costs of administration. These provisions of her will and trust indenture conflict. Though the directions in the will and the trust conflict with each other, they do not conflict with K.S.A. 79-1564(d). Both documents are integral parts of Joyce Pickrell’s estate planning. It is necessary to resolve the conflict between the will and the trust indenture.
The Pickrells argue that the Court of Appeals’ decision is not in accord with this court’s longstanding holding that in the absence of anything in the will to the contrary, the burden of the federal estate taxes falls on the residuary estate. In re Estate of Adair, 237 Kan. 773; Dittmer v. Schmidt, 235 Kan. 697, 683 P.2d 1252 (1984); Spurrier v. First National Bank of Wichita, 207 Kan. 406, 485 P.2d 209 (1971); In re Estate of West, 203 Kan. 404, 454 P.2d 462 (1969); Central Trust Co. v. Burrow, 144 Kan. 99, 58 P.2d 469 (1936). But cf., Wendland v. Washburn University, 8 Kan. App. 2d 778, 667 P.2d 915 (1983) (absent contrary directions, Kansas inheritance taxes to be paid from estate assets by distributive share). According to the Pickrells, the Court of Appeals’ decision allows the federal estate tax burden to be altered or shifted by an apportionment clause contained in an inter vivos trust, executed without following the statutory requirements mandated by Kansas law for a valid will. The Pickrells argue the decision elevates an inter vivos trust amendment to the level of a codicil to a will and abrogates the statutory requirement that the burden of federal taxes fall on the residuary estate. In re Estate of Adair, 237 Kan. 773, 703 P.2d 793 (1985). See Spurrier v. First National Bank, 207 Kan. at 409.
In construing a will courts must (a) arrive at the intent of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a prac ticable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed, determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite, and ambiguous in its terms. Russell v. Estate of Russell, 216 Kan. 730, Syl. ¶ 1.
Did Joyce Evans Pickrell in her estate plan use an amendment to the inter vivos trust to shift the burden of federal estate taxes from the residuary estate as required by her earlier executed will? If the text of the trust indenture is plain and unambiguous, the intent of the trustor (settlor) can be ascertained from the language used. In re Estate of Hauck, 170 Kan. 116, 223 P.2d 707 (1950); Bayless v. Wheeler-Kelly-Hagny Trust Co., 153 Kan. 81, 109 P.2d 108 (1941). Where construction is necessary the court must put itself in the situation of the trustor when the trustor made the trust instrument and, from consideration of the language used in the entire instrument determine the intention of the trustor. Dyal v. Brunt, 155 Kan. 141, 123 P.2d 307 (1942); In re Estate of Hauck, 170 Kan. 116. The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law. In re Estate of Sutcliffe, 199 Kan. at 692; In re Estate of Hauck, 170 Kan. 116; Calkin v. Wallace, 160 Kan. 760, 165 P.2d 224 (1946).
Since Kansas has no case on point, we will review decisions of other jurisdictions. As Judge Larson pointed out, the general rule from other jurisdictions is, in case of a conflict between the provisions of a will and an inter vivos trust, the later instrument in time controls. In re Estate of Strohm, 241 So. 2d 167 and Matter of Osborn, 8 Misc. 2d at 866. See 42 Am. Jur. 2d, Inheritance, Etc., Taxes § 352 and Annot., 69 A.L.R.3d 122, 215.
In Matter of Osborn, 8 Misc. 2d 859, the New York court found that, when there is a conflict between a trust agreement and a will, the instrument later in time would control. In Osborn, the decedent had executed an inter vivos trust in 1935 and executed a will nineteen years later. The issue in Osborn was which instrument would control when the trust agreement was clear and unambiguous and expressed a valid method of apportionment of taxes but was in conflict with provisions of the decedent’s later will. The court determined that the will—the later instrument— controlled.
In In re Estate of Strohm, 241 So. 2d 167, the Florida court reviewed whether a will or an inter vivos trust provision controlled the payment of federal estate taxes. In Strohm, the court found that the will executed after the trust controlled and directed that the federal estate taxes be paid as authorized by the will.
The Pickrells claim since both Strohm and Osborn found the will controlled, therefore, the will is always to be the controlling document. The emphasis placed by the Pickrells is flawed. The rationale of Strohm and Osborn is that the tax clause of the last instrument executed controls regardless of whether the instrument is a trust or a will. Acceptance of the Pickrells’ reasoning that only the will can direct payment of death taxes eliminates inter vivos trusts executed or amended subsequent to a will as part of estate planning.
An individual has the right to designate who or what portion of his or her estate is to bear the burden of the taxes and expenses of administration. An inter vivos trust, which is part of a coordinated estate plan, may include a provision instructing the trustee to pay the trust’s ratable share of the death taxes and administration expenses. Under the facts of this case, where a conflict exists between an earlier executed will and later amended inter vivos trust as to how the death taxes and the administration expenses are to be paid, the last instrument in time controls.
The judgments of the district court and the Court of Appeals are affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State of Kansas on a question reserved pursuant to K.S.A. 22-3602(b)(3). The question is whether a minor 17 years of age, who is convicted a third time for driving with a suspended license, a class E felony, is subject to the mandatory sentence of five days in prison, as required by K.S.A. 1990 Supp. 8-262(a)(3).
The facts are not in dispute. Defendant was arrested in March 1990 and charged with five traffic offenses, including driving with a suspended driver’s license, while having two prior convictions for the same offense. K.S.A. 1990 Supp. 8-262(a)(l). Defendant was bom January 13, 1973, making him a juvenile at the time of his arrest.
On May 23, 1990, defendant entered a nolo contendere plea to the charge of driving with a suspended license. The court accepted the plea and found defendant guilty of operating a motor vehicle while his driver’s license was suspended and while having two prior convictions for the same offense. The other charges were dismissed with prejudice. The court sentenced defendant to a period of incarceration with the Secretary of Corrections of the State of Kansas for not less than one year nor more than two years, suspended the sentence, and placed defendant on probation for one year with the specific condition that defendant serve five days in the Woodson County Jail.
On May 25, 1990, the State filed a motion to correct the illegal sentence because it did not impose five days’ mandatory imprisonment, as required by K.S.A. 1990 Supp. 8-262(a)(3). State v. Harpool, 246 Kan. 226, 229, 788 P.2d 281 (1990). On June 4, 1990, the district court modified the sentence. Complying with Harpool, defendant was sentenced to the custody of the secretary of corrections for a period of not less than one year nor more than two years. Defendant was ordered to report to the Woodson County Sheriff on June 30, 1990, to commence serving the sentence.
On June 12, 1990, defendant filed a motion to reconsider the decision of June 4, 1990, pointing out that he was under the age of 18 and could not be incarcerated at an adult facility. On August 2, 1990, the district court once again modified the sentence and sentenced defendant to 10 days in a juvenile detention facility, to be determined later by the court, but suspended sentence and placed defendant on supervised probation for a period of one year. The court noted that confinement of defendant would require placement in a juvenile detention facility and none was available in Woodson County. Defendant was assessed court costs and ordered to reimburse his attorney fees. The State, pursuant to K.S.A. 22-3602(b)(3), reserved for appeal the question of whether defendant should be sentenced pursuant to K.S.A. 1990 Supp. 8-262 and Harpool.
Because this was defendant’s third conviction for driving with a suspended license, he was guilty of a class E felony. K.S.A. 21-4501(e) fixes the term of imprisonment authorized for a class E felony to be “an indeterminate term of imprisonment, the minimum of which shall be one year and the maximum of which shall be fixed by the court at not less than two years nor more than five years.” K.S.A. 1990 Supp. 8-262(a)(3) also contains a specific penalty requirement that “every person convicted under this section shall be sentenced to at least five days’ imprisonment and fined at least $100 and upon a second or subsequent conviction shall not be eligible for parole until completion of five days’ imprisonment.” In Harpool, this court held that, although the defendant was eligible for a presumptive probation pursuant to K.S.A. 1989 Supp. 21-4606a, the specific requirement of 8-262(a)(3) imposing a mandatory five-day imprisonment was binding and had to be served before the defendant was eligible for parole. 246 Kan. at 229.
A juvenile offender is defined under K.S.A. 1990 Supp. 38-1602, which states in relevant part:
“(a) ‘Juvenile’ means a person 10 or more years of age but less than 18 years of age.
“(b) ‘Juvenile offender’ means a person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor . . . but does not include:
“(1) A person 14 or more years of age who commits a traffic offense in violation of chapter 8 of the Kansas Statutes Annotated or any city ordinance or county resolution which relates to the regulation of traffic on the roads, highways or streets or the operation of self-propelled or nonself-propelled vehicles of any kind.”
Defendant, who was 17 years old at the time of the offense, clearly meets the age qualification of the Juvenile Offenders Code (Code). A third offense under 8-262 makes the conviction a class E felony, which comes within the definition of “juvenile offender.” The exclusion of persons 14 years of age or older from the definition of “juvenile offender” applies only to the commission of “a traffic offense in violation of chapter 8 of the Kansas Statutes Annotated.” The definition of “traffic offense” is not within the Code. Instead, K.S.A. 1990 Supp. 38-1602(b)(l) excludes a person who commits a “traffic offense in violation of chapter 8.” The definition of “traffic offense” in chapter 8 is at K.S.A. 1990 Supp. 8-2117(d), which states:
“As used in this section, ‘traffic offense’ means a violation of the uniform act regulating traffic on highways or a violation of a city ordinance or county resolution which relates to the regulation of traffic on the roads, highways or streets or the operation of self-propelled or nonself-propelled vehicles of any kind.”
Pursuant to K.S.A. 1990 Supp. 8-2117(a), a court may hear prosecutions of traffic offenses involving any child 14 or more years of age but less than 18 years of age and, upon conviction, may order “that the child be placed in a juvenile detention facility ... for not more than 10 days.” In addition, subsection (c) of 8-2117 provides that, instead of imposing the penalties provided in subsections (a) and (b), the court “may place the child under a house arrest program . . . and sentence the child to the same sentence as an adult traffic offender under K.S.A. [1990] Supp. 8-2116.” At the third and final sentencing here, the district court relied upon K.S.A. 1990 Supp. 8-2117(a) to impose a sentence of 10 days’ incarceration in a juvenile facility, but then suspended the sentence and placed defendant on one year’s supervised probation.
The State argues that the district court erred in sentencing defendant pursuant to 8-2117, contending that the court should have imposed five days’ imprisonment as required by 8-262(a)(3) and Harpool. In Harpool, the trial court sentenced the defendant to 180 days in the county jail. The State appealed the sentence on a question reserved. We held the sentence was erroneous because the offense was a felony, and the sentence of confinement required that the defendant be committed to the custody of the secretary of corrections. 246 Kan. at 227.
The Kansas Legislature has determined that, under certain circumstances, a juvenile who would otherwise be subject to the Code is not. K.S.A. 1990 Supp. 38-1602(b)(1) exempts persons 14 or more years of age who commit traffic offenses in violation of Chapter 8 of the Kansas Statutes Annotated. Persons who do not have “juvenile offender” status pursuant to K.S.A. 1990 Supp. 38-1602(b) are not covered by the Code and, instead, are allowed to be tried as adults. State v. Lowe, 238 Kan. 755, 758-59, 715 P.2d 404 (1986). Cf. Ruebke v. State, 11 Kan. App. 2d 353, 720 P.2d 1141, rev. denied 240 Kan. 805 (1986), cert. denied 479 U.S. 1096 (1987) (only juvenile offenders as defined in the Code are guaranteed the right to appeal under K.S.A. 1985 Supp. 38-1681 from an order authorizing prosecution as an adult).
Pursuant to K.S.A. 1990 Supp. 8-2104(d), persons who are charged with felony traffic violations must “be taken without unnecessary delay before a judge of the district court.” The State must file a verified complaint or information for such felony traffic violations. State v. Fraker, 242 Kan. 466, 467, 748 P.2d 868 (1988). Furthermore, K.S.A. 1990 Supp. 8-2104(a) requires law enforcement officers to take people into custody who are charged with certain offenses not amounting to a felony, including violation of 8-262.
The State argues that 8-2117 merely sets out alternate sentences that a court may impose for persons convicted of traffic offenses who are at least 14 but less than 18 years of age. The State argues that one alternate sentence the court may impose in such a juvenile traffic offense is placing the child under house arrest and sentencing the child to the same sentence as an adult traffic offender under K.S.A. 1990 Supp. 8-2116. This statute, which the State points out describes misdemeanor offenses, provides that every person convicted of violating any of the sections listed in the uniform fine schedule at K.S.A. 1990 Supp. 8-2118 is guilty of a traffic infraction. Furthermore, except when another penalty or class of misdemeanors is provided by statute, every person convicted of violating any provision of the Uniform Act Regulating Traffic on Highways designated as a misdemeanor is guilty of a class C misdemeanor, except upon a second conviction within one year, a class R misdemeanor, and, upon a third or subsequent conviction committed within one year of the first such offense, a class A misdemeanor. K.S.A. 1990 Supp. 8-2116(b).
An adult convicted of a class A misdemeanor can be sentenced to one year in the county jail. The State argues that, because under K.S.A. 1990 Supp. 8-2117(c) a court may sentence a juvenile traffic offender the same as an adult traffic offender, a traffic offender under the age of 18 years could be sentenced to one year in the county jail. The State further argues that, because K.S.A. 1990 Supp. 8-2117(c) concerns possible sentences the court may impose for traffic offenses that constitute misdemeanors, the sentencing alternatives in 8-2117 for juvenile traffic offenders do not apply to traffic offenses that amount to felonies. The alternative sentences in 8-2117 for juvenile traffic offenders conflict with the clear language of 8-262 requiring a minimum of five days’ incarceration for persons convicted of driving with a suspended license three or more times. Therefore, according to the State, the mandatory language of 8-262(a)(3) requires the court to impose a minimum of five days’ imprisonment for this felony conviction.
Defendant counters that K.S.A. 1990 Supp. 8-262 does not fall within the definition of traffic offenses and, therefore, the State improperly charged defendant in an adult prosecution. If so, the district court was without jurisdiction to treat defendant as an adult to assess guilt. Defendant argues that, because the district court treated him as a juvenile for disposition, the end result is correct and, upon remand, the only correction will be to set aside any finding of “guilt” and, instead, adjudge defendant a juvenile offender.
Defendant notes that the Court of Appeals, in In re Hockenbury, 9 Kan. App. 2d 450, 452, 680 P.2d 561 (1984), compared a prior statute with the new Code, noting:
“Under the prior law, certain traffic offenses when committed by a child under the age of fourteen could only be addressed in juvenile proceedings. K.S.A. 38-802(e). These violations included driving with a suspended or revoked license (K.S.A. 8-262), driving after adjudication as a habitual violator (K.S.A. 8-287), reckless driving (K.S.A. 8-1566), fleeing or attempting to elude a police officer (K.S.A. 8-1568), vehicular homicide (K.S.A. 21-3405) and DUI (K.S.A. 8-1567). The new juvenile offender code [effective January 1, 1983] eliminates the special treatment previously shown these offenses and requires that all traffic offenders fourteen or more years of age be criminally prosecuted.”
Defendant asserts the general statement that the new Code eliminates special treatment for offenders of 8-262 is dicta because the issue decided in Hockenbury was whether the statute was retroactive. Furthermore, 8-2117 did not contain the definition of “traffic offense” until the July 1, 1986, amendments following the filing of the opinion in Hockenbury. L. 1986, ch. 161, § 7.
The decision of the Court of Appeals in State v. D.L.P., 13 Kan. App. 2d 647, 651-54, 778 P.2d 851 (1989), contains an extensive summary of the history of 8-2117. In D.L.P., the 17-year-old defendant appealed his first DUI conviction and 6-month sentence after his initially imposed probation was revoked. In his second case, he was convicted of DUI and driving with a suspended license. He was sentenced to 90 days on the DUI and placed on probation for one year after serving five days. He was sentenced to a full 90 days in the county jail for driving with a suspended license.
On appeal, the incarceration portions of the sentences were challenged. 13 Kan. App. 2d at 648-49. The Court of Appeals agreed that the sentences were illegal, holding that the provisions of 8-2117 applied exclusively to the punishment of traffic offenders who are at least 14 but less than 18 years of age, and that the maximum period of incarceration is 10 days in a juvenile detention facility. 13 Kan. App. 2d at 655. After reviewing the statutory history of 8-2117 and 38-1602, the court concluded:
“It is clear to this court that, beginning in 1978, the legislature made a determination that young people between the ages of 14 and 18 years should not be prosecuted in the juvenile court for traffic offenses. In implementing this decision, the legislature has used the definition section in the juvenile code to spell out which young people were not to be considered juvenile offenders’ and should, therefore, be made subject to the jurisdiction of the adult courts. At the same time, the legislature has been very consistent in making it clear that, while it was willing for these young offenders to pay the same fines as adults, lose their licenses as adults, and be tried as adults, they were not to be incarcerated as adults. If K.S.A. 1988 Supp. 8-2117 does not exist to limit the incarceration which can be imposed on a young traffic offender, then it has no purpose at all. We decline to nullify what appears to be a very clear expression of legislative intent by holding that, despite the specific language in 8-2117, a youthful traffic offender may be sentenced to the same term of incarceration and under the same conditions as an adult.” 13 Kan. App. 2d at 653-54.
Because the court in D.L.P. did not cite or discuss the definition of traffic offense contained in 8-2117, defendant argues that the court’s conclusion that 38-1602(b)(l) and 8-2117 exclude 8-262 from those acts subjecting a youthful offender to juvenile offender status is erroneous. Defendant argues that, under the legislature’s definition of “traffic offense” in 8-2117(d), the following are not traffic offenses that exclude treatment of 14- to 17-year-olds as juvenile offenders: driving with a suspended license, K.S.A. 8-262; operating a vehicle after having been adjudged a habitual violator, K.S.A. 8-287; and vehicular homicide, K.S.A. 21-3405. These offenses are outside the Uniform Act Regulating Traffic on Highways offenses and all constitute felony offenses, albeit in the case of 8-262, only when a third or subsequent conviction occurs. With the exception of fleeing a police officer, which upon a third conviction becomes a class E felony, those offenses found in article 15 of chapter 8 are misdemeanor offenses. Defendant argues that the language of 38-1602(b)(l), without reference to 8-2117(d), excludes violations of 21-3405 because it refers to “a traffic offense in violation of chapter 8.” Thus, the dicta in D.L.P., that youthful offenders are subject to adult treatment for vehicular homicide, must be discounted.
Because a third or subsequent conviction under K.S.A. 1990 Supp. 8-262 is a felony as defined by K.S.A. 21-3105, defendant reasons that a person under the age of 18 years committing such an act must be treated as a juvenile offender and not as an adult. According to defendant, following his plea of nolo contendere, he should have been adjudged a juvenile offender. K.S.A. 38-1634. The authorized disposition would then have been selected from K.S.A. 1990 Supp. 38-1663, which allows probation, placement in the custody of a parent or other suitable person, placement in the custody of a youth residential facility, placement in the custody of the secretary of social and rehabilitation services, or an appropriate combination. Only under certain circumstances, not applicable here, can the juvenile offender be committed to the state youth center. K.S.A. 1990 Supp. 38-1663(a)(6).
Under defendant’s argument, the State was incorrect in urging sentencing and incarceration as an adult, and defendant’s trial counsel was incorrect in seeking sentencing pursuant to K.S.A. 1990 Supp. 8-2117. Rut defendant’s trial counsel was correct in wanting defendant “sentenced” as a juvenile. Defendant asserts that, aside from the amounts of court and probation costs, which may be different for juvenile proceedings, the basic sentence of one year’s supervised probation was an authorized disposition pursuant to K.S.A. 1990 Supp. 38-1663. Therefore, the case should be remanded for the deletion of any references to the words “conviction,” “guilt,” “defendant,” or “sentence,” or for an order nunc pro tunc adjudging defendant to be a juvenile offender and restating the punishment as a disposition.
We find merit in defendant’s argument. In interpreting this criminal statute, it must be construed strictly against the State and in favor of the accused. In State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988), this court noted:
“[0]ur largest hurdle is that a criminal statute, with its punitive effect, cannot be construed liberally for the State. The rule of strict construction of penal statutes against the State and for the accused is, according to Justice Marshall, ‘not much less old than construction itself.’ United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 95, 5 L. Ed. 37 (1820). Whereas a tort statute may be construed liberally in order to give effect to its remedial purpose, we may not give a different meaning to a word in a criminal statute than that word usually possesses. The word should not be given a meaning which leads to uncertainty or confusion if it is possible to construe it otherwise. State v. Thompson, 237 Kan. [562,] 566 [, 701 P.2d 694 (1985)]; State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984). See [Comment, Criminal Law—Viable Fetus is Person for Purposes of Massachusetts Vehicular Horn-icicle Statute,] 19 Suffolk U.L. Rev. [145,] 148-49 [1985].”
As defendant points out, the provisions of K.S.A. 1990 Supp. 38-1602(b)(1) that remove traffic offenses from the Code specify commission of “a traffic offense in violation of chapter 8 of the Kansas Statutes Annotated.” The definition of traffic offense in chapter 8 appears at 8-2117(d). It defines “traffic offense” as “a violation of the uniform act regulating traffic on highways.” The Uniform Act Regulating Traffic on Highways, covering automobiles and other vehicles, “includes K.S.A. 8-1334 to 8-1341, inclusive, and all sections located in articles 10 and 14 to 22, inclusive, of chapter 8 of Kansas Statutes Annotated and K.S.A. [1990] Supp. 8-1,129, 8-1,130a, 8-1428a, 8-1742a and 8-2118.” K.S.A. 1990 Supp. 8-2204. K.S.A. 1990 Supp. 8-262 appears in article 2 and is not included in 8-2204. Under this analysis, one must conclude that a violation of 8-262 is not a violation of the Uniform Act Regulating Traffic on Highways. Consequently, a violation of 8-262 is not a “traffic offense” as defined in 8-2117(d). Recause it is not a traffic offense in violation of chapter 8 of the Kansas Statutes Annotated, it is not excluded from coverage of the Code under 38-1602.
In State v. D.L.P., 13 Kan. App. 2d 647, the sentencing challenged in that case dealt with a DUI conviction, which would be in violation of 8-2117. Chapter 21 is within the Uniform Act Regulating Traffic on Highways and, therefore, would be excluded from coverage under the Code under 38-1602(b)(l). Thus, the Court of Appeals’ conclusion that 8-2117 applied exclusively to punishment of youthful traffic offenders, who are least 14 but less than 18 years of age, would apply to the DUI convictions. D.L.P., however, was also convicted of driving with a suspended license. Therefore, Syl. ¶ 7 and the corresponding portion of the holding in D.L.P., to the extent that it indicated that driving with a suspended license was also covered by 8-2117, are disapproved.
We conclude that driving with a suspended license is not a “traffic offense” as defined in K.S.A. 1990 Supp. 8-2ll7(d) and, consequently, is not excluded from coverage under the Code as defined at 38-1602(b)(l). Therefore, we hold that the defendant should have been sentenced pursuant to the Juvenile Offenders Code and that he is not subject to the mandatory five-day sentence pursuant to K.S.A. 1990 Supp. 8-262(a)(3).
In light of the foregoing holding, the final point for determination is whether the case should be remanded. Although defendant did not appeal the decision of the district court, he argues the case should be remanded for the purpose of correcting the journal entry. In State v. Mayfield, 241 Kan. 555, 738 P.2d 861 (1987), the defendant was 17 years of age at the time of the alleged crime, but he was 18 at the time of his arrest. He was prosecuted as an adult based upon his initial misrepresentation of his age. Mayfield entered a plea bargain, pled guilty, and, after serving 30 days of a 1- to 10-year sentence, was placed on probation. His motion to set aside the conviction and for dismissal because he was a juvenile at the time of the offense was denied by the district court, and the denial was affirmed by the Court of Appeals. We found no basis for the conclusion that Mayfield had waived his rights under the Code or had waived jurisdiction. We reversed and remanded the case with directions to set aside Mayfield’s conviction, stating:
“Thus, we think it is abundantly clear that the Kansas juvenile code (and now the Kansas juvenile offenders code) established an exclusive procedure for those subject to its provisions and the district court did not have jurisdiction of the subject matter of the action against appellant. To obtain such jurisdiction the proceedings had to be instituted under the provisions of the Kansas juvenile code as it existed in 1978. Failure of the State to proceed in accordance with the code deprived the court of jurisdiction to accept appellant’s attempted plea of guilty to a crime when the acts complained of were done by appellant at a time when he was under the age of eighteen. The district court and the Court of Appeals were in error in concluding that as the acts of Mayfield would have constituted a felony if he had been an adult, the court had jurisdiciton of the subject matter. The subject matter of the action was not a criminal prosecution for a felony but a juvenile proceeding which was never commenced pursuant to the juvenile code.” 241 Kan. at 561.
In State v. Thomas, 239 Kan. 457, Syl. ¶ 4, 720 P.2d 1059 (1986), we held that an illegal sentence is “either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the stautory provisions, either in the character or the term of the punishment authorized; or a sentence which is ambigous with respect to the time and manner in which it is to be served.”
A juvenile subject to treatment under the Code cannot be incarcerated in a county jail or other adult facility. Although the sentence of one year’s probation is an authorized disposition pursuant to K.S.A. 1990 Supp. 38-1663, the district court did not have subject matter jurisdiction to accept defendant’s plea of nolo contendere, and thus the sentence imposed by the district court was an illegal sentence.
In Harpool, 246 Kan. 226, as here, the appeal was by the State on a question reserved. There, as here, we concluded the sentence was illegal. However, instead of denying the State’s appeal, we reversed and determined that the case should be remanded for imposition of a lawful sentence. Obviously, more than imposition of a lawful sentence is required on remand in the present case.
In State v. Puckett, 230 Kan. 596, 600-01, 640 P.2d 1198 (1982), this court held:
“[Although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights.”
We conclude this case presents exceptional circumstances and that remand is necessary to serve the ends of justice.
The judgment of the district court is reversed, and the case is remanded with directions to set aside the conviction. | [
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The opinion of the court was delivered by
Herd, J.:
This is a personal injury action in which Laura Schlobohm seeks damages for injuries sustained when she fell in the entranceway of the United Parcel Service (UPS) building in Emporia. Schlobohm alleged UPS and Smith Construction Company (Smith), the builder of the entranceway, were negligent, in part, in the construction and maintenance of the entranceway because it had an elevation differential of more than one inch. UPS and Smith asserted comparative negligence by Schlobohm. Following a trial to the jury, a verdict was returned assessing Schlobohm 88% fault, UPS 12% fault, and Smith 0% fault. The Court of Appeals affirmed and we granted Schlobohm’s petition for review.
The relevant undisputed facts are: On December 4, 1986, Schlobohm, a business invitee of UPS, arrived at the UPS premises with a package for shipment. A car parked too close to the building prevented Schlobohm from fully opening the door. Therefore, she held the door partially open with her hip, maneuvered to the other side of the door, and stepped into the entranceway. Before Schlobohm could completely enter the building, the door forcibly closed, causing her to fall and catch her right ankle between the door and the 27/s inch rise of the threshold. Schlobohm suffered a fractured and dislocated ankle that required several surgeries.
Prior to trial, Schlobohm proffered the testimony of a city building inspector, the 1976 Uniform Building Code (Code), and the city ordinance adopting the Code to show the threshold of the UPS entranceway violated the city ordinance and Code. The elevation differential between the outside landing and the top of the threshold was 27/s inches. The Code prohibited a differential of more than one inch. 1976 Building Code § 3303(h). The district court ruled the Code was not admissible to prove negligence or the standard of care. The district court additionally ruled that evidence of other entrance-ways in the community was admissible and that evidence on the lack of prior accidents in the entranceway was admissible on the issues of notice and relative safety of the entranceway. Schlobohm appeals the district court’s pretrial determination of legal issues regarding the admission of evidence.
Schlobohm first contends the district court erred in prohibiting admission of the Code as evidence of negligence per se or as a standard of care. For support, Schlobohm relies upon Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971).
In Noland, the plaintiff brought suit for personal injuries incurred when she fell down the stairs of defendant’s department store. It was an undisputed fact that the defendant violated the city code by failing to equip the stairway with handrails. The Noland court ruled that breach of a duty imposed by law or ordinance constituted negligence per se. Testimony provided at trial established that handrails were designed for the protection of persons using a stairway and that the plaintiff had nothing to hang onto when she lost her balance. Thus, the court held it was error not to submit the issues of negligence per se and proximate cause to the jury. 207 Kan. at 73-77.
The Court of Appeals rejected Schlobohm’s reliance on Noland for two reasons. First,, the court concluded Schlobohm was not a member of the class to be protected under the Code. Second, the Court of Appeals reasoned this court has not followed the Noland holding.
An examination of our case law subsequent to the Noland ruling reveals numerous cases in which we have repeated the general rule that violation of a statute or ordinance constitutes negligence per se and liability attaches where the violation is the proximate cause of damages. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 843, 610 P.2d 1107 (1980); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 25, 578 P.2d 1095 (1978); Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 7, 535 P.2d 865 (1975).
In Arredondo, an action to recover damages for personal injuries, the plaintiff premised liability upon the violation of a criminal statute. The plaintiff argued contributory negligence was not a defense because it would destroy the legislative intent to make sale of gunpowder to a minor a crime. 227 Kan. at 843. We concluded the primary purpose of the criminal statute at issue, K.S.A. 21-4209, was to protect the general public, with incidental consideration given to the protection of minors. 227 Kan. at 849. Violation of the statute, therefore, did not constitute negligence per se and the comparative negligence statute was utilized in determining damages. 227 Kan. at 850. We find Arredondo is distinguishable from Noland.
More recently, in Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 803, 740 P.2d 606 (1987), the plaintiff sought to recover damages for wrongful termination based upon violation, inter alia, of cash basis and budget laws. The sole issue presented questioned when a personal right of action arises as a result of a breach of statutory duty. We stated the test to determine whether an individual injured by violation of statute could recover damages depended on whether the legislature intended to give such a right. We directed that legislative intent could primarily be determined by the form or language of the statute, but consideration could also be given to the nature of the evil sought to be remedied and the purpose the statute was intended to accomplish. Finally, we stated that a statute which did not purport to establish civil liability but merely made provision to secure the safety and welfare of the public did not establish civil liability. 241 Kan. at 804.
In Greenlee, we examined the cash basis and budget statutes at issue and determined they were not intended to provide job security but were intended to protect the public from financial overspending. 241 Kan. at 807. Thus, statutes clearly for the benefit of the public at large did not provide the plaintiff with an individual right of action based upon breach of a statutory duty.
Review of our holdings in Arredondo and Greenlee shows that this Court has limited the general rule espoused in Noland. Violation of a statute or ordinance alone does hot establish negligence per se. In addition, Arredondo and Greenlee require the plaintiff to establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes or ordinances enacted to protect the public at large, therefore, do not create a duty to individuals injured as a result of the statutory violation and the doctrine of negligence per se is inapplicable. Restatement (Second) of Torts §§ 288 comments a and d, 288B comments a and d (1964).
The issue presented to this court, therefore, is whether that provision of the Code, adopted by ordinance, which limits the elevation differential between the floor and threshold of a doorway to one inch was intended to protect the public at large or was intended to provide protection for a special class of which Sehlobohm was a member.
Section 102 of the Code sets forth the purpose of the Code:
“The purpose of this Code is to provide minimum standards to safeguard life or limb, health, property, and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures within the city and certain equipment specifically regulated herein.”
Section 3303(h) provides:
“Change in Floor Level at Doors. Regardless of the occupant load, there shall be a floor or landing on each side of a door. The floor or landing shall be not more than 1 inch lower than the threshold of the doorway. Where doors open over landings, the landing shall have a length of not less than 5 feet.”
Sections 6-226 and 6-227 of the adopting ordinance provide that liability for injury is not relieved by the article and that violation of the Code may induce a fine or imprisonment.
Schlobohm contends § 102 of the Code establishes minimum standards of safety. She asserts § 3303(h) was enacted to protect the users of doorways from injury to life or limb. Thus, the legislative language of the Code indicates an intent to protect a special class, which includes Schlobohm, against the type of harm she suffered.
UPS and Smith, on the other hand, argue § 3303(h) is part of the general Code enacted for the benefit of the public at large and thereby does not give rise to a private cause of action. Appellees compare the Code provision to city ordinances concerning construction or obstruction of sidewalks.
In Pierce v. Jilka, 163 Kan. 232, 237, 181 P.2d 330 (1947), this court ruled a city ordinance prohibiting obstruction of a city sidewalk did not create personal liability for damages upon the adjoining landowner. In Harris v. McConnell, 194 Kan. 800, 801, 401 P.2d 908 (1965), the plaintiff brought suit to recover damages for personal injuries, alleging the defendant violated a city ordinance which required abutting landowners to maintain and repair sidewalks. We found the duty imposed by statute flowed from the abutting owner to the city and did not create an individual right of action against the abutting owner. 194 Kan. at 802.
Appellees also contend the Code is essentially an inspection law designed to promote public health, safety, and welfare. For support, appellees rely upon Siple v. City of Topeka, 235 Kan. 167, 173, 679 P.2d 190 (1984), wherein we ruled statutes and ordinances requiring inspections are enacted to secure benefits for the public at large and do not create a duty to the individual injured by violation of such statute or ordinance.
The language of § 102 of the Code states the purpose of the Code is to provide “minimum standards to safeguard life or limb, health, property, and public welfare.” This language indicates a legislative intent to provide for the safety of the public in general and not for any particular class of persons. On the other hand, the ordinance specifically states that civil liability is not relieved by the enactment, although criminal liability in the form of imprisonment, fine, or both can attach for violation of any of the provisions. In addition, the safety ordinance at issue in the present case is substantially similar to the ordinance violated in No-land, which we found protected the class of persons who used stairways. 207 Kan. at 75. Section 3303(h) of the Code protects those persons like Schlobohm who enter and exit doorways from injury caused by tripping over an improper elevation differential between the floor and threshold.
We hold the Code provisions were enacted to protect a special class of individuals, of which appellant is a member, and that the appellees’ violation of the Code was admissible evidence of negligence per se. Thus, the district court committed reversible error in refusing to admit the Code into evidence.
We point out that a jury finding of negligence per se by a defendant does not of itself incur liability unless such negligence is the proximate cause of the accident. We also note in this regard that negligence per se is not distinguishable from other negligence. Only the method of proving it varies. Negligence per se is therefore subject to the comparative negligence provisions of K.S.A. 60-258a unless gross and wanton negligence is pled and proved. See generally Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986).
Appellees argue, however, that even if the district court erred in not allowing the violation to be admitted as evidence of negligence per se, the issue of liability is moot because there was no evidence the greater elevation differential was causally related to Schlobohm’s injuries. We disagree.
At trial, Schlobohm testified she did not think her foot would have been caught between-the door and threshold if the landing and entrance had been flush. DeWald Wells, a construction consultant and building contractor, also testified at trial. In a hypothetical question, presenting factors similar to the case at hand, Wells stated it was doubtful Schlobohm’s foot could have been caught between the door and threshold without the 27/s inch elevation differential.
The evidence establishes that violation of the Code may have proximately caused Schlobohm’s injury. The issue, therefore, is one for consideration by the jury.
It is argued by appellees that Schlobohm failed to proffer evidence of the Code at trial and failed to request an instruction on negligence per se and that she therefore failed to preserve the issue for appeal. These arguments have no merit. The district court conducted a full pretrial hearing to determine questions of law. There, Schlobohm proffered the evidence of the Code and the court ruled it inadmissible to prove negligence per se or standard of care. Schlobohm abided by the court’s written order, as she was required to do, and did not again offer the evidence. As a result, there was no evidence of negligence per se of record and thus no reason to request an instruction. Appellees’ argument is without merit.
Schlobohm next contends the district court abused its discretion in allowing the introduction of evidence as to the design and construction of other entranceways in the community. This argument is irrelevant since we have found violation of the Code constituted negligence per se.
Finally, Schlobohm asserts the district court erred in its pretrial order allowing evidence of the nonoccurrence of prior accidents in the entranceway on the issues of notice and relative safety of the entranceway. Schlobohm argues notice is not a necessary element of proof required where the proprietor of a business creates a dangerous condition.
At trial, the manager of the UPS facility and a longtime employee at the UPS building both testified there had been no prior accidents in the entranceway. UPS and Smith argue the evidence was properly admissible to establish the safety of the doorway.
Although we find no recent case law on the admissibility of evidence to prove the absence of complaints or accidents, several cases in our history have dealt with the issue. Field v. Davis, 27 Kan. 400, 402 (1882), was an action to recover damages for personal injuries incurred when plaintiff s mules became frightened and backed off an elevator incline. The plaintiff alleged defendant was negligent in failing to provide a sufficient barrier. On appeal, plaintiff alleged the defendant erroneously asked three witnesses familiar with the elevator whether they knew of any similar accidents. 27 Kan. at 403. The court ruled the evidence was properly admitted because the nonoccurrence of prior accidents was evidence the elevator incline was reasonably safe—a material issue in the case. 27 Kan. at 405-06.
In Cook v. Railway and Bridge Co., 101 Kan. 103, 107, 165 Pac. 803 (1917), the plaintiff also alleged error in the admission of testimony that others had passed trains without accident on the bridge where plaintiff was injured. We held the evidence was competent as proof the bridge was safe under ordinary conditions. 101 Kan. at 108. See Timsah v. General Motors Corp., 225 Kan. 305, 316, 591 P.2d 154 (1979).
We conclude evidence of no prior complaints or accidents in the UPS entranceway was properly admitted on the issues of safety and comparative fault. The nonoccurrence of prior accidents is evidence tending to establish that a reasonably careful person could negotiate the doorway safely. Therefore, we find no abuse of discretion.
The judgments of the Court of Appeals and the district court are reversed and the case is remanded for new trial.
Abbott, J., not participating. | [
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The opinion of the court was delivered by
Six, J.:
A jury convicted Cory Glen Hamons, appellant, of first-degree murder (K.S.A. 21-3401). Hamons was sentenced to a term of life imprisonment.
Five separate issues are asserted as error in this appeal. We conclude that each presents a valid question for resolution. We note that the initial issue is one of first impression in Kansas.
The issues are: (1) whether an accused must be told that he or she has been formally charged before a post-complaint Sixth Amendment waiver will be valid; (2) whether the trial court erred in excluding evidence that other persons may have committed the murder absent direct evidence linking them to the crime; (3) whether the Sixth Amendment confrontation right extends to an ex parte material witness bond hearing regarding a State witness’ reluctance to honor a subpoena; (4) whether the trial court erred in its jury instruction on the element of premeditation; and (5) whether the trial court erred in refusing to instruct on the lesser included offense of voluntary manslaughter.
We find no prejudicial error and affirm. We have jurisdiction of this direct appeal under K.S.A. 1989 Supp. 22-3601(b)(l).
Facts
Julie Solaberry, a single parent, lived with her two-year-old daughter, Andrea. On October 12, 1988, Julie’s body was found in her apartment by her mother, Shirley Solaberry. Julie had been stabbed to death. Andrea, although apparently frightened, was physically unharmed. Andrea appeared to have been hiding in her bedroom until she recognized her grandmother. Shirley had last spoken with Julie at 9:00 p.m. on October 11, 1988.
Police, medical, and crime lab personnel arrived shortly after discovery of the body. Julie had sustained at least 163 cuts and stab wounds. Many of these wounds were described as “defense wounds”—wounds inflicted on Julie’s arms while she was attempting to defend herself.
Julie’s body was found lying just inside her bedroom walk-in closet. A bloody fingerprint was found on the back wall of the closet.
Julie’s sister, Theresa Solaberry, had been Hamons’ girlfriend for about two and one-half years before Julie’s death. On the afternoon of October 12, 1988, before Julie’s body had been discovered, Theresa stopped by Hamons’ place of employment. Theresa noticed some recent scratch marks on Hamons’ left arm. Later that day, she learned that Julie was dead. That evening, Theresa called Hamons and asked him to come over to her parents’ house to be with her. While Hamons was there, Shirley returned with Andrea. When Andrea saw Hamons, she appeared to be afraid and hid between her aunt and grandmother. Hamons subsequently left. Theresa called Hamons later that evening and asked him to return, Hamons declined but promised to call Theresa the next day. He did not call. Theresa felt that he wanted to avoid her.
Theresa believed that Hamons knew something about Julie’s death. Her suspicions were based upon the cuts on his arm, Andrea’s reaction tq Hamons, and Hamons’ behavior toward her (Theresa). Theresa told the Metro Squad, which had been activated to investigate Julie’s death, that she believed Hamons was a possible suspect.
The Metro Squad, acting on Theresa’s information, began investigating Hamons. The bloody fingerprint on Julie’s closet wall was identified as a print of Hamons’ left middle finger.
Hamons lived with his father. Hamons’ father told the police that his son owned.a butterfly knife. Hamons’ employer testified that Hamons had a butterfly knife that he used regularly at work and that he had seen Hamons with the butterfly knife on October 10, 1988.
On October 14, 1988, the police went to Hamons’ place of employment and asked Hamons to accompany them to the police department for questioning. Hamons did so voluntarily. When he removed his coat as requested, an officer noticed the cuts on Hamons’ left arm. Hamons was not placed under arrest at that time.
After arriving at the police department, an officer noticed what appeared to be blood on Hamons’ tennis shoes. The shoes were sent to the laboratory for testing. Tests indicated that the blood contained the same genetic factors as Julie’s blood and that only .086% of the population would have the same genetic factors.
Hamons was interviewed at the police department. Before questioning began, he was advised of his Miranda rights both orally and in writing. He signed a written waiver of rights.
Hamons told the detectives that he went to Julie’s apartment at about 2:00 a.m. on October 12, 1988, to see if she wanted to buy some cocaine. Julie answered the door. He was in the kitchen and living room areas of her apartment for five to ten minutes. Julie did not have any money for cocaine, so Hamons left the apartment, returned home, and went to bed. He told the detectives that the scratches on his arms occurred while fixing the gearshift on his car. Hamons denied owning a butterfly knife after he went into the Army (November 1987).
At trial, the State presented the testimony of Rhonda Wray, who lived in Julie’s apartment building. Wray testified that, during the month prior to Julie’s death, she frequently saw Hamons between 6:00 and 6:45 a.m., coming down the steps and walking past Wray’s sliding glass door. She saw Hamons walk past her door the morning Julie’s body was discovered. On cross-examination, Wray stated that she did not see where Hamons came from nor where he went. Wray also stated she saw Julie and Hamons kissing while sitting on the hood of a car.
James Bradshaw, a jail mate of Hamons at the Johnson County Jail, testified that Hamons had admitted killing Julie. According to Bradshaw’s testimony, Hamons and Julie were having a sexual affair. The night or early morning that Julie was killed, Hamons and Julie were “high” on cocaine. Julie told Hamons if he did not give her more cocaine, she would tell her sister, Theresa, about the affair. Hamons told Bradshaw he just “went off’ and stabbed Julie with the butterfly knife.
Hamons’ testimony at trial differed substantially from his October 14, 1988, pretrial statement. At trial, Hamons stated that he arrived at Julie’s apartment at approximately 2:00 a.m. and that the door was partially open. When no one answered his knock, he entered the apartment, called Julie’s name, and found her in the closet. He testified that he shook her and checked her neck for a pulse. Julie was dead. He explained the bloody fingerprint by stating he touched the wall while checking to see if Julie was alive. He did not call the police because he had cocaine on him. He “freaked out.” He was scared and did not want to get involved.
Hamons further testified that the next morning, he noticed blood on his shoes. He removed the shoestrings, washed them in the washing machine, and wiped off his shoes. Hamons said he lied to the police because he felt bad and was ashamed about not calling the police when he discovered the body. Hamons also admitted that he had a butterfly knife but claimed that he last had seen the knife on October 10, 1988. He explained that the scratches on his arm resulted from working on his car and from “messing around” with a razor blade.
The Motion to Suppress Hamons’ Pretrial Statement
Hamons moved to suppress his October 14, 1988, pretrial statement. The complaint charging Hamons with first-degree premeditated murder was filed by the district attorney on October 14, 1988, at 10:04 a.m., before Hamons’ interview at the Shawnee Police Department began. Approximately one minute into the interview, at 10:45 a.m., Hamons was advised of his Miranda rights. He also signed a waiver.
Hamons argues that his waiver was neither voluntary nor made with full knowledge of all relevant facts. Hamons was never advised that he had been charged with first-degree murder. The motion alleged that Detectives Walters and Langor, the detectives who interviewed Hamons, knew that charges had been filed when they commenced the interview.
At the hearing on the motion to suppress, Detective Walters testified that he did not learn of the charge until near the end of the interview, after he had left the room to locate a camera. Detective Langor did not learn of the charge until the interview was completed.
The trial court found that Hamons’ statement was given freely, voluntarily, and intelligently after he had been advised of his constitutional rights. The trial court reasoned that a requirement of continued contact during interrogation between investigators and the district attorney to determine the exact instant a charge is filed would be unreasonable. We agree.
The Fifth Amendment right against self-incrimination requires that suspects be accorded the assistance of counsel during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 469, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
The Sixth Amendment right to counsel arises when judicial proceedings have been initiated against a suspect “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972); see State v. Norris, 244 Kan. 326, 331-33, 768 P.2d 296 (1989). A defendant’s statement elicited without the presence or aid of a lawyer after attachment of Sixth Amendment protections, may not be used against the defendant at trial unless the State can show that the accused knowingly, voluntarily, and intelligently waived the right to counsel. See Brewer v. Williams, 430 U.S. 387, 404-05, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977).
In Patterson v. Illinois, 487 U.S. 285, 299-300, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988), the United States Supreme Court held: “So long as the accused is made aware of the ’dangers and disadvantages of self-representation’ during post-indictment questioning, by use of Miranda warnings, his wavier of his Sixth Amendment right to counsel at such questioning is ‘knowing and intelligent.’ ”
Because the defendant in Patterson was informed that he had been formally charged, the United States Supreme Court did not address the first impression question presented to this court in the case at bar: Whether an accused must be told that he or she has been formally charged before a post-complaint Sixth Amendment waiver will be valid. See Patterson, 487 U.S. at 295, n.8.
Hamons relies on United States v. Mohabir, 624 F.2d 1140 (2d Cir. 1980), and Carvey v. LeFevre, 611 F.2d 19 (2d Cir. 1979), cert. denied 446 U.S. 921 (1980). In those cases, the Second Circuit Court of Appeals held that an accused must be informed of the indictment before a post-indictment Sixth Amendment right to counsel waiver would be valid. The court in Mohabir and Carvey reasoned that waiver of the Sixth Amendment right to counsel required a “higher standard” than Fifth Amendment Miranda warnings. 624 F.2d at 1148; 611 F.2d at 22.
The United States Supreme Court in Patterson expressly rejected the Second Circuit’s rationale in Mohabir. 487 U.S. at 295, n.8.
In Riddick v. Edmiston, 894 F.2d 586 (3d Cir. 1990), the Third Circuit Court of Appeals addressed a claim similar to the one Hamons advances in this appeal. The court in Riddick rejected the reasoning of Mohabir and Carvey, observing that the United States Supreme Court had concluded in Patterson that there is no analytical distinction between the validity of a Fifth Amendment waiver and a Sixth Amendment waiver. 894 F.2d at 587-88. In Riddick, defendant validly waived his Sixth Amendment right to counsel when he was given Miranda warnings without being told that he had already been indicted for murder. 894 F.2d at 588.
In Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), the United States Supreme Court commented, “[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or to stand by his rights.” 475 U.S. at 422.
In the case at bar, the detectives testified, and the trial court found, that they did not know Hamons had been charged until the end, or near the end, of the interview. There is no indication that the detectives intended to deceive Hamons.
The Miranda warnings advised Hamons of his right to remain silent and of his right to counsel. Hamons was informed that any statement he made could be used against him and of the consequences of waiving his right to counsel. We hold that Hamons validly waived his Sixth Amendment right to counsel after he was given Miranda warnings but before he was told that he had already been charged with murder.
The trial court did not err in overruling Hamons’ motion to suppress his pretrial statement to police.
The Exclusion of Evidence That Other Persons May Have Committed The Murder
The State filed a motion in limine to exclude evidence that someone other than Hamons may have killed Julie Solaberry. The State asserted that, in the “absence of direct evidence linking such third party with the crime,” third-party evidence was improper.
At the pretrial hearing on the motion, Hamons’ counsel provided the court with three examples of suspicion-casting evidence. Only one example is pertinent to Hamons’ appeal.
On the afternoon of October 11, 1988, the day before her murder, Julie made a child abuse complaint to the police against her neighbor Becky Parker. The police came to Parker’s apartment on the day of the complaint and questioned her regarding the allegations of child abuse. Parker was angry about the complaint.
Hamons’ counsel stated that Angela Anthony would testify that Nancy Hickman, a neighbor and friend of Parker’s, called Anthony on October 12, 1988, and said: “Julie Solaberry is sticking her nose into people’s business. She is calling the SRS and making complaints about child abuse. She is going to get herself killed one of these days.”
The trial court ruled that (1) any positive ruling in advance of trial might be impossible; and (2) evidence that another person may have committed the crime was not admissible in the absence of direct evidence linking such third party with the crime.
At trial, Hamons again proffered Anthony’s testimony. Hamons’ counsel stated that, although Anthony had vacillated as to the precise time, she would testify that on October 12, 1988, at approximately 12:00 p.m., prior to Julie’s body being discovered, Hickman telephoned Anthony. Counsel stated that Anthony would testify that Hickman told Anthony that Hickman and Parker went to Julie’s apartment on the night of October 11, 1988, (the night Julie was killed) and had a confrontation or “something of an angry encounter” with Julie. Anthony would further testify that she had called the Metro Squad and informed them of this conversation.
The trial court reserved ruling on the admission of Anthony’s testimony until after Hickman and Parker had testified.
Hickman testified that she and Parker did not go to Julie’s apartment on October 11, 1988. Hickman admitted calling Anthony on October 12, 1988, at about noon. However, Hickman denied telling Anthony that she and Parker had gone to Julie’s apartment and had had a confrontation on the evening of October 11, 1988. Parker testified that she had not talked to Julie for a period of three months before Julie died.
Following Hickman’s and Parker’s testimony, Hamons again proffered substantially the same testimony of Anthony. He also proffered the testimony of the police officers who investigated the child abuse complaint.
The State took issue with Hamons’ version of Anthony’s testimony. The State asserted that “at best” Anthony would testify that she had thought Hickman told her that Hickman and Parker talked to Julie after Julie called the police and that Anthony would not remember anything about a confrontation.
Anthony’s testimony was excluded. The trial court found that the State’s case rested on direct evidence connecting Hamons to Julie’s murder. The trial court reasoned that: (1) the sole purpose of Anthony’s testimony would be to show motive of someone else to commit the crime absent evidence to connect Hickman and Parker to the crime; (2) Hickman was under oath at trial but not when she talked to Anthony; and (3) the evidence, if allowed, was not compelling or persuasive.
Hamons argues that the exclusion of this evidence was an abuse of discretion and violated his right to call witnesses in his own defense. We agree.
In excluding Anthony’s testimony, the trial court relied on State v. Calvert, 211 Kan. 174, 505 P.2d 1110 (1973); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970); State v. Potts, 205 Kan. 42, 468 P.2d 74 (1970); and State v. Neff, 169 Kan. 116, 218 P.2d 248, cert. denied 340 U.S. 866 (1950).
Hamons argues that the State’s evidence is not direct, but circumstantial. He distinguishes Calvert, Henderson, and Potts, all of which involved the testimony of eyewitnesses who saw the various defendants commit the crimes.
He also cites State v. Brown, 230 Kan. 499, 638 P.2d 912 (1982). The State’s case against Brown was based exclusively on eyewitness testimony. Brown proffered evidence of another robbery in Wichita on the same evening as the robbery for which Brown was charged. Brown wanted to produce the testimony of a sales clerk concerning the other robbery and the description of that robber, whose physical characteristics were similar to Brown’s.
We held that where the State’s case is built on direct evidence, circumstantial evidence that someone other than the defendant committed the crime is irrelevant in the absence of other evidence to connect such third person to the crime. 230 Kan. at 499-500.
Circumstantial evidence tends to prove a fact in issue by proving other events or circumstances which afford a basis for a reasonable inference by the jury of the occurrence of the fact in issue. Casey v. Phillips Pipeline Co., 199 Kan. 538, 550, 431 P.2d 518 (1967).
In the case at bar, the State relied on Hamons’ fingerprint, Julie’s blood on Hamons’ shoes, and testimony of Wray placing Hamons at the apartment complex on the morning of the murder. These facts prove that Hamons was at the murder scene after Julie was dead. An inference is necessary that Hamons committed the murder. This and other circumstantial evidence formed the major characterization of the State’s case.
The proffered evidence indicated a motive and the opportunity for Hickman and Parker to commit the murder.
We have found no abuse of discretion in the exclusion of similar proffered testimony where the State’s case was based either exclusively, or almost entirely, upon direct evidence for a conviction. State v. Brown, 230 Kan. at 500 (eyewitness identification testimony); State v. Henderson, 205 Kan. at 239 (eyewitness identification testimony); State v. Potts, 205 Kan. at 44 (eyewitness identification testimony); State v. Neff, 169 Kan. at 123 (a confession).
No eyewitness testified that Hamons killed Julie. Hamons denied his guilt.
The State relied, in part, on the direct evidence of Hamons’ confession to Bradshaw, his jail mate.
Anthony’s testimony, as proffered by Hamons, placed Hickman and Parker at Julie’s apartment on the evening before Julie was killed. Timely placement at the murder scene together with testimony about an “angry encounter” was linked with an inference of a threat that occurred on the day the victim’s body was discovered (“[Julie] is going to get herself killed one of these days”). Because the State relied heavily on circumstantial evidence, the trial court abused its discretion in excluding Anthony’s testimony. State v. Scott, 117 Kan. 303, 315, 235 Pac. 380 (1924).
However, the error was not prejudicial. A review of the record demonstrates that the State established an overwhelming case against Hamons. The exclusion of Anthony’s testimony was harmless error beyond a reasonable doubt. See State v. White, 246 Kan. 28, 37, 485 P.2d 950, modified 246 Kan. 393, 789 P.2d 1175 (1990).
The Ex Parte Material Witness Bond Hearing
The State filed a K.S.A. 22-2805 affidavit stating that Wray was a material witness. She would testify that Hamons was seen leaving the victim’s home at or near the time of the murder. The affidavit stated that Wray had been served with a subpoena but that she had informed the district attorney’s office that she would not appear. The State asked the trial court to require a bond to assure her attendance.
The trial court specifically found that the hearing initiated by the State’s affidavit was for the limited purpose of assuring attendance of a material witness at trial and did not require the appearance of Hamons or his counsel. The trial judge asked Wray if she would come to trial and testify truthfully. Wray stated that she would. The trial judge told her that if she violated the subpoena, she would be arrested and incarcerated. No bond was required.
Hamons argues that the bond hearing violated his Sixth Amendment and statutory rights of confrontation. Hamons cites K.S.A. 22-3405(1), which provides in part: “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.”
The right of confrontation under the Kansas and United States Constitutions includes the right of the accused to a face-to-face confrontation while the accuser is testifying against the accused. State v. Chisholm, 245 Kan. 145, 149-50, 777 P.2d 753 (1989). A primary interest secured by the confrontation clause of the Sixth Amendment is the right of cross-examination. Kentucky v. Stincer, 482 U.S. 730, 736, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987).
The record of the bond hearing indicates that no evidence or testimony regarding any aspect of the crime was discussed. The only issues at the hearing were whether Wray would honor the subpoena and whether she would be required to post a bond. The district attorney was not allowed to examine Wray. Hamons was afforded the opportunity at trial to cross-examine Wray.
We reject Hamons’ contention. His Sixth Amendment right to confrontation was not violated. We find no error in the conduct of the bond hearing.
Jury Instructions
(A) Premeditation
Hamons contends that the trial court erred in its instruction on premeditation. The trial court instructed the jury as follows:
“ ‘Deliberately and with premeditation’ means to have thought over the matter beforehand. However, to constitute deliberation and premeditation, no particular time need intervene between formation of the intention and the doing of the act. It is sufficient if they actually existed, with a full appreciation of the result likely to follow from the act, at the time the act was committed, however short the time of their existence may have been.”
Hamons argues that this instruction unduly emphasized and endorsed the State’s theory of deliberation and premeditation.
A trial court has discretion in giving instructions to the jury. On appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts. State v. Graham, 244 Kan. 194, 206, 768 P.2d 259 (1989).
The premeditation instruction in the case at bar is almost identical to the instruction we approved in State v. Broadus, 206 Kan. 766, 768-69, 481 P.2d 1006 (1971).
The autopsy revealed 163 stab wounds. The forensic pathologist estimated that it would take between 10 and 15 minutes to inflict all of these wounds.
The premeditation instruction given by the trial court properly states the law as applied to the facts of the instant case.
(B) Voluntary Manslaughter
Hamons requested a lesser included offense instruction on voluntary manslaughter. K.S.A. 21-3107(3). The trial court rejected the request and instructed only on first- and second-degree murder.
The evidence of a lesser included offense need not be strong or extensive as long as it presents circumstances from which a lesser offense might reasonably be inferred. Unsupported testimony alone, if tending to establish such inferior degree, is sufficient to require the court to instruct on a lesser included offense. State v. Guebara, 236 Kan. 791, 795, 696 P.2d 381 (1985).
“Where a person is charged with murder in the first degree (21-3401), the crimes of murder in the second degree (21-3402), voluntary manslaughter (21-3403), and involuntary manslaughter (21-3404) are considered to be lesser degrees of the crime charged.” State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977). K.S.A. 21-3403 defines voluntary manslaughter as “the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.”
In order to be entitled to a reduced charge of voluntary manslaughter because the defendant acted in the heat of passion, there must be provocation sufficient to cause an ordinary person to lose control of his or her actions and reason. This is an objective, not a subjective, test. Guebara, 236 Kan. at 796. Mere words or gestures do not constitute adequate provocation. 236 Kan. at 797.
Hamons contends that the testimony of Bradshaw provided evidence sufficient to require an instruction on voluntary manslaughter.
Bradshaw testified that Hamons “went off’ and stabbed Julie when she threatened to tell her sister that Hamons and Julie were having a sexual affair. There was no evidence of provocation other than Julie’s threats. The State argues that this evidence is insufficient to establish provocation. The State’s argument is persuasive. Mere words are insufficient provocation.
We also observe that Hamons claimed someone else murdered Julie before he arrived at her apartment.
There was insufficient evidence to warrant an instruction on the lesser included offense of voluntary manslaughter.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Dennis D. Perkins from his convictions for first-degree murder, aggravated robbery, and rape. Perkins pled insanity.
Perkins raises six issues on appeal. He contests the voluntariness of his confessions; claims he was incompetent to stand trial (and that he was denied his statutory and constitutional right to be present during an in-chambers discussion of his competency); argues he was entitled to an instruction that rape cannot occur after the victim is dead; argues a mistrial should have been granted because of his conduct during trial; claims he was entitled to an instruction on second-degree murder and on manslaughter; and argues the evidence was insufficient for the jury to find him other than insane at the time of the crimes.
The victim, Alice Pepperl, resided in and managed the Country Club Motel in Oakley, Kansas. Perkins was hitchhiking through Kansas and found himself stranded and broke in Oakley, Kansas. Mrs. Pepperl gave him a room at the Country Club Motel and employed him to paint and “fix up” rooms in the motel. Perkins had been in Oakley for one week when Mrs. Pepperl was killed. Perkins’ work at the motel was satisfactory and he had made acquaintances in local clubs.
At 8:30 a.m. on December 7, 1988, a friend of Pepperl’s found her at her residence in the motel lying naked on her bed with a coat hanger and electrical cord wrapped around her neck and a knife protruding from her stomach. The coroner, who arrived at 11 a.m., estimated the time of death as two to ten hours earlier.
An autopsy revealed that Mrs. Pepperl’s death was due to asphyxiation caused by the coat hanger wrapped around her neck. The knife wound occurred after her death. There were reddish markings on the opening of the victim’s vagina, indicating penetration by some object, although no semen was detected. A bloodstain found on the victim’s housecoat was determined to be consistent with Perkins’ blood type, and of a type found in 13.5 percent of the Caucasian (defendant’s) race. The bloodstain was not consistent with the victim’s blood.
The cash drawer in the office adjacent to Pepperl’s quarters was locked. When it was opened, it was found to contain 47 cents. It should have contained approximately $100.
Although police attempted to take fingerprints from the room, they did not find prints of Perkins. Pepperl always kept a quarter with a hole in it in the cash drawer for good luck and it was also missing. On the morning of December 7, Perkins gave a quarter with a hole in it to a clerk at a convenience store. The clerk testified that Perkins had scratches on his cheek that were a finger width apart.
Later on December 7, Perkins was picked up in a Scott City bar where he was drinking beer. Perkins had $77.60 in his possession when he was arrested.
Perkins was read his Miranda rights at the Scott City Jail by Gary Ledbetter, the chief of police in Scott City. He gave Perkins a waiver form with the rights printed on it, but Perkins indicated that he could not read or write. The police chief read each statement to him and asked him if he understood each right. Perkins replied “yes” to each right. The police chief asked Perkins if he wanted to waive his rights and talk. Perkins replied “yes”. The police chief showed Perkins how to mark the form and where to sign it.
Another Scott City police officer, Greg Davis, arrived at the police station and again advised Perkins of his rights, using the same procedure as Ledbetter. Perkins again waived his rights and agreed to talk.
During this interview, Perkins told Davis that he had a split personality, one being Dennis and the other “the Drifter.” Perkins said that the previous night he had been paid for his work at the motel and that later the Drifter told him to go to Scott City because he (the Drifter) had done something bad. Davis turned the tape recorder off at this point. Perkins then told Davis he was the Drifter and that he (the Drifter) “went into the motel office, and she was all hot and bothered for him, and she wanted some, and he was going to give it to her.” He told Davis he strangled Pepperl.
Mark Kendrick (Special Agent for the KBI) and Officer Danny Shanks (Chief of Police at Oakley) arrived at the Scott City police station. Perkins again was read his Miranda rights, and he signed a waiver form.
Perkins told these officers that he had a split personality, with one personality being Dennis, who tried to do good, and the other being the Drifter, who was evil. Perkins told the officers that on the night of December 6 he had gotten paid and had gone out for drinks. He told them he went back to the motel and met Pepperl at the front door of her office. He said she was wearing a nightgown, had on no bra, and was “swaying her ass.” He said he started choking her with a coat hanger. He told the officers that he did have intercourse with her, but that Pepperl did not “want to give it up” so he “took some anyway.” Perkins told the officers that Pepperl was dead when he had intercourse with her. He told the officers he had learned to have sex with dead bodies while working for undertakers in Pennsylvania. During this interview Perkins revealed to officers that he had spent time in mental institutions in California.
1. Voluntariness of Confession
Prior to trial, the defense filled a motion to suppress Perkins’ confessions, arguing that they were not voluntary. The trial court found Perkins’ confessions were voluntary. The trial court said:
“I think he effectively and of his own free will and without any coercion at all waived those rights before he gave those statements. He did sign the waivers; seems to me he was warned about his Miranda Rights at least three times about what his rights were, so your motion to suppress the statements, Mr. Fairbanks, will be denied at this time.”
We recently reviewed the law concerning voluntariness of confessions in State v. William, 248 Kan. 389, Syl. ¶¶ 11, 12, 13, 807 P.2d 1292 (1991). This court said that, in determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible shall be on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence.
At the motion to suppress hearing, Dr. Robert Schulman testified about Perkins’ mental capacity to confess. Dr. Schulman had examined Perkins for a total of three hours. He testified that Perkins had a verbal I.Q. of 67, which is categorized as mildly mentally retarded, although he admitted that he did not do a complete I.Q. test and that Perkins functions at a higher level. He testified Perkins was a primitive regressed person with a limited capacity to assess reality and with distortions of reality.
Dr. Schulman diagnosed Perkins as being schizophrenic, that is, being split from reality, rather than having true multiple personalities.
Dr. Schulman’s testimony does not establish that defendant did not know right from wrong. He did not testify that Perkins was hallucinating or suffering from a delusion at the time of his confessions. He did not testify that Perkins did not realize the words he was speaking. In fact, Dr. Schulman did say Perkins was competent to stand trial.
This still leaves the general questions of whether there was police coercion and how Perkins’ mental state interacted with any coercion.
The initial interview by Officer Davis shows no promises, threats, or coercion and that all officers went to great lengths to inform Perkins of his rights.
If anything, Davis was overly friendly. Perkins apparently got upset or reluctant to talk during the interview. Perkins started talking about his past and that he did not get any help when he needed it. The following exchange took place:
“DAVIS: But do you realize sometimes Dennis that that uh, we can, there’s only so much help people can give you alright? And a lot of it depends on the help that you’re willing to put out for yourself, right?
“PERKINS: Yeah.
“DAVIS: Just like what you mentioned to me a little while ago and you know, that’s by, by getting these things out by facing these things. That, that helps. That begins the first step.
“PERKINS: That’s what scares me too.
“DAVIS: I know it scares pardner, but we’re here. We’re here with you. Alright? You don’t have to go through it alone. That’s what I’m trying to tell you. Alright?”
This does not amount to coercion. It may be an emotional appeal to the defendant, but it is not an abuse of police authority. It is not a threat or promise. It is an attempt to calm an upset individual. This conduct does not make the confession involuntary. The defense would have us reweigh the evidence. That is something this court does not do. There is substantial competent evidence to support the finding that the confession was voluntary.
Dr. Schulman testified that Perkins was not competent to consent to make statements due to his severe emotional problems. Dr. Schulman’s conclusion was based on the premise that Perkins could not understand the significance of waiving his rights, and that Perkins just responded to the situation at hand. Dr. Schulman did not testify that Perkins felt compelled to make statements.
The officers interrogating Perkins, however, testified they were of the opinion he was behaving normally.
Perkins also argues that his waiver of his Miranda rights was not knowing. A waiver of Miranda rights must be knowing, voluntary, and intelligent. State v. William, 248 Kan. at 411. At the suppression hearing, Dr. Schulman testified that Perkins did understand what words mean. He also testified that Perkins functioned at a higher level than his measured I.Q. of 67.
Dr. Schulman did testify that Perkins did not fully understand the implications of waiver of his rights. He testified that, while Perkins could understand he had the right to have a lawyer, he might not understand that he needed one then. He also testified that Perkins would also understand the words, “You don’t have to tell us anything.” Further, Dr. Schulman admitted that, as to understanding the implications of Miranda warnings, a recent survey of college students showed even they did not understand the implications of waiving their Miranda rights.
Understanding that one has the right to a lawyer or to not talk is enough to show a knowing and intelligent waiver of Miranda rights. To require more would void most waivers. Again, there is sufficient evidence to support the trial court’s finding that the waiver was proper.
2. Competency to Stand Trial
Prior to trial, the defense filed a motion to determine Perkins’ competency to stand trial. The trial court considered two reports on Perkins’ mental health. Based on these reports, the trial court found him competent to stand trial. Perkins asserts that the trial court erroneously found him competent to stand trial. Following an outburst by defendant at trial, the trial court denied a motion for another competency evaluation. Perkins asserts this was also error.
On appeal, the reviewing court’s inquiry on a trial court’s determination that a defendant is competent is whether the trial court abused its discretion. State v. William, 248 Kan. at 415.
K.S.A. 22-3301 provides:
“(1) For the purpose of this article, a person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable:
“(a) To understand the nature and purpose of the proceedings against him; or
“(b) to make or assist in making his defense.”
See State v. Severns, 184 Kan. 213, 219, 336 P.2d 447 (1959).
The first report the trial court considered was prepared by Dr. Robert Dysart, a psychologist at High Plains Mental Health Center. His report is inconclusive. He found Perkins to be hostile throughout the entire interview and said a rapport never developed. He noted that Perkins displayed anger toward everyone and everything. He noted that Perkins seemed to have an unusually short attention span and difficulty concentrating. He determined that Perkins had an “antisocial personality disorder.” When Perkins was asked about the charges against him, he replied, “I’m not sure I understand it.” When asked what murder meant, he replied, “[P]ut em to sleep. Go to sleep.” When asked about his defenses, he replied, “Can’t use no defense. I don’t know what happened.” When asked about his attorney, Perkins . rambled on about how he did not have any rights. The report concludes:
“Because of Mr. Perkins’ lack of cooperation during this interview it cannot be concluded with certainty that he is competent to stand trial. As stated at the beginning of this report, it is felt that he probably is competent, however, based on the evidence presented, it would have to be concluded that he is not competent at this time.”
The second report is by Thomas Runge, a psychologist at the Lamed State Hospital. Perkins was admitted on January 13, 1989, and was evaluated for several days. The report says that Perkins exhibited no signs of psychotic disorder and that he was oriented to time, place, and identity. The report says that his memory is intact and that his cognitive functioning is good. Significantly, the report says:
“Although his intelligence is estimated to be within the borderline range (most likely due to very limited formal education), his comprehension and communications skills are quite adequate. He is, however, considered to be a very angry, hostile, manipulative, and impulsive individual who attempts to make himself appear worse off, clinically, and more pathological than he actually is.”
As to the specific legal requirements for competency, the report says that Perkins was well aware of the charges against him, knowledgeable about courtroom procedures, and understood the responsibilities of a defendant in regard to working with his attorney. The report concludes that Perkins understood the nature and purpose of the proceedings against him and was able to work with an attorney to prepare and present a legal defense and, thus, met the criteria to stand trial.
While Dr. Dysart’s report was, at best, inconclusive, this second report is quite clear. The inescapable conclusion is that Perkins simply was not cooperating with Dr. Dysart. Based on the second report, Perkins met the criteria for competency to stand trial, and the trial court did not abuse its discretion in so determining.
3. Denial of Mistrial and of a New Competency Hearing
At trial, Perkins suddenly made the following outburst:
“THE COURT: State’s Exhibits 4, 5 and 6 will be admitted at this time. You may publish those to the jury.
“MR. PERKINS: “. . . blow my goddamn brains out. Don’t stand a fuckin’ chance, man. I didn’t choke that damn woman. I didn’t rape that damn woman. I don’t care what the hell you do with me, just give me a fuckin’ gun, I’ll blow my fuckin’ head off. You guys got the wrong man. Judge, you denied everything I had. You denied my constitutional right for a new counselor. For no reason. You violated my right. I’ve got the rights as anybody else. I’m just a hitchhiker. I didn’t kill that woman. I seen the person that did it. But you people don’t want to fuckin’ believe me. I am what I am. I’m a blooming’ hitchhiker. That DA man had a pleasure. He knows he’s got an easy verdict, to find me guilty. People, I don’t really care. My ass is six feet under I go back to that jail, I guarantee it. I tried it once, I tried it twice. This ain’t right. This is not right. I passed into this town and this was what I get. A Kangaroo court. You’re worse than Louisiana. Send me back to jail, man. Send me back to jail. You violated my rights, man. I don’t care no more. This is not my rights. You don’t know what it’s called, man, to be a hitchhiker. You people don’t know what it’s like out there living under a street, diggin’ food out of a trash can. That woman was good to me, Why the hell would I want to hurt her? I feel sorry for the man that ever did this cause he’s a sick puppy and you guys won’t believe a fuckin’ word I say. I am what I am. Take it or leave it. Get me out of here, Leon. I don’t give a damn no more.
“THE COURT: Remove him from the courtroom.
“MR. PERKINS: I don’t give a damn anymore. A bunch of sick motherfuckin’ puppies.
“(The Defendant left the courtroom).”
After this, in chambers, the defense moved for a mistrial. Then, after the lunch break, the defendant refused to come to the courtroom and was crying and shaking. An in-chambers conference was held. The trial court expressed the opinion that Perkins was acting. The trial court then warned Perkins that he had to behave in court and Perkins asked to be taken back to jail in Colby and to let the trial proceed without him. This was done and the trial proceeded in his absence. The next morning, the defense, in an in-chambers conference, again moved for a mistrial and also moved for another competency evaluation. The trial court denied both motions, finding that Perkins was putting on an act.
The final part of the Lamed State Hospital report (prepared in advance of trial) provides: “It was noted that should Mr. Perkins become behaviorally or communicatively disruptive or uncooperative either with his attorney or during criminal trial proceedings, it would be volitional in nature and not the result of a major mental illness.” Based on the record before us, the trial court did not abuse its discretion in not ordering another competency hearing or in granting a mistrial.
The defense next argues that Perkins was denied his right to be present during the in-chambers discussions. The defense characterizes these in-chambers discussions as proceedings regarding competency.
K.S.A. 22-3302(7) provides that the defendant shall be present at hearings conducted to determine the defendant’s competency. In State v. Garcia, 233 Kan. 589, 594-96, 664 P.2d 1343 (1983), this court said that a defendant has a right to be present at all times when the jury is present in the courtroom and whenever the trial court communicates with the jury*
A defendant’s Sixth Amendment right to be present at criminal proceedings does not apply to proceedings involving only matters of law. State v. Baker, 236 Kan. 132, 136, 689 P.2d 803 (1984). Whether to declare a mistrial or let the defendant back in the courtroom are matters of law. Further, K.S.A. 22-3302 does not mandate that the defendant be present when the discussion concerns whether to hold a competency hearing. Baker, 236 Kan. at 137. No reversible error is shown.
4. Rape of a Dead Body
The defense argues that the trial court erred in failing to instruct the jury that rape must be committed while the victim is alive. Perkins’ statements regarding the crime are contradictory. In his own testimony, he indicated that he had sex with Pepperl while she was alive. However, his statements to police were that he had sex with her after she was dead.
The defense never requested that the jury be instructed that rape can only be committed against a living person.
“A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. [Citation omitted.] The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
Other jurisdictions have faced this problem also. Two jurisdictions have clearly decided that rape requires a living victim. See People v. Sellers, 203 Cal. App. 3d 1042, 1050, 250 Cal. Rptr. 345 (1988); Com. v. Sudler, 496 Pa. 295, 302-03, 436 A.2d 1376 (1981). The State asserts that one jurisdiction holds that rape may be committed against a dead body, citing Hines v. State, 58 Md. App. 637, 473 A.2d 1335, cert. denied 300 Md. 794 (1984). The State misconstrues the holding of Hines. In Hines, the deceased victim was found lying on her back with her legs spread apart. Speaking of the charge of attempted rape, the court said of the evidence, “[I]t is not necessary that the circumstances exclude the possibility that the victim was dead before any sexual touching or attempted rape occurred.” 58 Md. App. at 666. The court added, “An attempted rape occurs when the perpetrator forms an intent to rape and takes any action to carry out that intention.” 58 Md. App at 666. All the Hines court was saying was that if the intent to rape was formed prior to the killing, and the violence was in furtherance of the rape, then the attempt was complete prior to death.
In State v. William, 248 Kan. 389, 807 P.2d 1292 (1991), this court considered whether attempted aggravated criminal sodomy could be committed against a dead body. As a starting premise, this court said, “William correctly argues that criminal sodomy (or aggravated criminal sodomy) may not be committed on a dead body.” 248 Kan. at 400. Recause of the close analogy between aggravated criminal sodomy and rape, the same rule applies: Rape can only be committed against a living person.
Recause rape requires a live victim, the question then becomes whether the instruction was clearly erroneous—whether there was a real possibility the jury might have found Perkins not guilty of rape. There was no testimony about the physical evidence (redness around the vagina) that would indicate whether the victim was alive or dead when penetration was made. Perkins’ confessions all indicated the victim was dead. He specifically told the officers that he learned to have sex with dead bodies while working with undertakers.
The only time Perkins said the victim was alive was when he took the stand and testified that he had had sex with the victim while she was alive. However, Perkins’ testimony seems to have been an attempt to deny any wrongdoing. He denies killing Pepperl and his statements about sexual intercourse seem to be (at least in his mind) an attempt to claim the conduct was consensual.
K.S.A. 21-3502(1) begins, “Rape is sexual intercourse with a person.” “Person” implies a living person. The statute goes on to define the circumstances when sexual intercourse is rape (a) when the victim is overcome by force or fear; (b) when the victim is unconscious or physically powerless; (c) when the victim is incapable of giving consent because of mental deficiency or disease. All these circumstances require that the victim be living when the act of intercourse takes place.
Had a request for an instruction or a specific objection to the instruction given been made, the trial court should have instructed the jury that rape cannot take place after the victim is dead. However, we cannot say the instruction given was clearly erroneous. The instruction that was given required the jury to find that the victim had not consented to sexual intercourse and that she was overcome by force. Both “consent” and “overcome by force” presupposes that the victim is alive. Because it is implicit in the instruction given that the victim be alive, the instruction was not clearly erroneous.
5. Instructions on Second-Degree Murder and Voluntary Manslaughter.
The trial court only instructed the jury on felony murder. The defense requested that instructions on second-degree murder and involuntary manslaughter be given as lesser included offenses of first-degree murder and that an instruction on robbery be given as a lesser included offense of aggravated robbery. The trial court denied the request, saying of the lesser included offenses to felony murder that they would not be instructed upon because the evidence of the underlying felonies was strong rather than weak.
A trial court does have the duty to instruct on lesser included crimes. K.S.A. 21-3107(3) provides:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information . . . and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
Although the defense did not request an instruction on voluntary manslaughter, a trial court is under an affirmative duty to give an instruction on a lesser included offense if supported by the evidence, even if a defendant fails to request it. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).
Normally, the test of whether an instruction on a lesser included offense is required is where there is any substantial evidence tending to prove that offense. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 929 (1987). A corollary to this rule is that “an instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense.” State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 (1975). In reviewing the evidence to determine whether a lesser included offense instruction should have been given, this court must review the evidence in a light most favorable to the defendant. State v. Hill, 242 Kan. 68, 74, 744 P.2d 1228 (1987).
When the primary crime is felony murder, however, this court has used a stricter analysis. A trial court is only under a duty to instruct on a lesser included offense from felony murder when the evidence of the underlying felony is weak or inconclusive. State v. Sullivan and Sullivan, 224 Kan. 110, 121, 578 P.2d 1108 (1978). This court has explained that the reason for the rule was said to be “that the killer’s malignant purpose is established by proof of the collateral felony.” State v. Wilson, 220 Kan. 341, 345, 552 P.2d 931 (1976).
K.S.A. 21-3426 defines robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3427 defines aggravated robbery as “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.”
The evidence of robbery is strong. A quarter with a hole in it that was known to be kept in the victim’s cash drawer was given to a store clerk by Perkins the next day. Perkins, who earned $15 to $20 a day, was arrested with over $70 in his pocket. The cash drawer, which should have contained around $100, was empty. Further, the jury found that Pepperl was killed by Perkins. There is strong evidence of aggravated robbery.
Because there is strong evidence of aggravated robbery and of rape, and the defendant testified that he had sexual intercourse with the victim, an instruction on lesser included offenses was not necessary.
6. Insanity Defense
In Kansas, the test for insanity is the M’Naghten test, under which the accused is held to be not criminally responsible for his acts (1) where he does not know the nature and quality of the act, or in the alternative, (2) where he does not know right from wrong with respect to the act. State v. William, 248 Kan. at 407.
The standard of appellate review for sufficiency of evidence is well established:
“When the sufficiency of evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could- have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).
Dr. Schulman testified that Perkins was suffering from schizophrenia, paranoid type, and, consequently, had distortions of reality and poor judgment. Dr. Schulman further testified that, in his opinion, Perkins did not understand the nature of his acts or understand whether the acts were right or wrong. Dr. Schulman admitted, however, that Perkins understood that if he used drugs in front of a police officer that he would be locked up. Dr. Schulman also admitted that Perkins would not have killed and raped Pepperl if a police officer had been standing there.
This admission by Dr. Schulman not only defeats most of his other testimony, it goes a long way in proving Perkins was responsible for his acts. If Perkins understood that a police officer would have arrested him for the acts, Perkins knew both the nature of the acts and that they were wrong.
Dr. Schulman’s testimony that Perkins is legally insane was suspect for other reasons. In his written report, Dr. Schulman, who had examined Perkins for a total of three hours, was unable to determine whether Perkins was legally insane, but, by the time of trial, Dr. Schulman felt he was able to say Perkins was insane. (The only additional research Dr. Schulman had done was to listen to a 10-minute tape of a law clerk interviewing Perkins.)
If Dr. Schulman’s testing was not sufficient to prove Perkins was sane, the State’s experts’ testing was. Thomas Runge, a psychologist at Larned State Hospital who examined Perkins from August 21 to the beginning of September, said that on various standardized tests that have built-in safeguards to determine whether the patient is being honest, it was determined that Perkins was attempting to be a “faking bad profile,” i.e., trying to make himself appear worse than he really is. Runge, who gave Perkins a complete I.Q. test, determined that Perkins’ verbal I.Q. was 68, and his performance I.Q. was 78, for a combined score of around 72. Runge also testified that Perkins had no problems functioning at Larned.
Most significantly, Runge testified that, at the beginning of his stay at Lamed, Perkins claimed that the Drifter was another personality but later admitted that he had made this up. While Runge admitted that Perkins is a sick individual, Runge testified that Perkins could understand the nature of his acts and distinguish right from wrong.
A psychiatrist at Lamed, Dr. Anthony Troiano, testified that Perkins showed no signs of schizophrenia and that there was no evidence of hallucinations or of a paranoid delusional process. Dr. Troiano testified that Perkins’ real problem was that he had a low frustration tolerance and poor impulse control.
Perkins’ actions after the crime indicate that he was sane. After Pepperl was killed, Perkins left Oakley for Scott City, an act that could be construed as Perkins trying to avoid responsibility for the crime.
Based on a review of the record, there is sufficient evidence upon which a reasonable person could conclude, beyond a reasonable doubt, that Perkins knew the nature and quality of his act and that he knew right from wrong with respect to the act.
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The opinion of the court was delivered by
Herd, J.:
M. C. Mayberry directly appeals his jury convictions of first-degree murder, K.S.A. 21-3401, and aggravated burglary, K.S.A. 21-3716. Mayberry was sentenced pursuant to the habitual criminal act to two consecutive life sentences for the murder conviction and ten to forty years on the aggravated burglary conviction. The sentences run consecutively.
Early in the morning of May 4, 1989, thirteen-year-old Brandi Henks found her slain mother, Dixie Long. Reno County Sheriffs officers and Hutchinson police officers responded to a call for assistance and found the victim lying in her bed, slain by a shotgun blast to her head. Brandi Henks told police officers that, after she had awakened, she found the front door standing open and then found her mother’s body. Henks also stated she believed M. C. Mayberry, Long’s boyfriend, committed the murder because Long and Mayberry had recently been fighting. A broken window at Long’s beauty salon was also reported on the morning of May 4. There were no other signs of entry.
Bloodstain pattern analysis revealed Long was sitting up with a pillow held before her face at the time of death. No murder weapon was ever discovered. Shotgun pellets and wadding, however, were found in the victim’s bedroom. Police discovered telephone wires to the residence had been cut and found evidence of forced entry. Bloodstain directional analysis testing showed there was little likelihood the assailant’s clothing would be bloodied from back splatter.
Testimony produced at trial revealed that Mayberry had purchased a 12-gauge pump shotgun and ammunition on the afternoon of May 3. Friends of Long testified she had been having “problems” with Mayberry and that she suspected he might be involved with earlier burglaries at her residence. On May 3, Long had lunch with Mayberry. Later, the same afternoon, she arrived at work upset and worried that bruises on her neck would show. Long told others she and Mayberry had had a fight during the lunch hour and that he had hit her.
Long’s neighbor stated he saw Mayberry’s car parked in front of Long’s residence about 4:30 a.m. May 4. A friend of Mayberry testified he saw the defendant driving near Long’s residence at 4:00 a.m. on May 4.
A search of Mayberry’s bedroom produced a box of shotgun shells with seven shells missing. Shotgun pellets and wadding found at the crime scene were compared with and found to be consistent with shells in the box discovered at Mayberry’s residence. A pair of needlenose pliers was found in a toolbox in Mayberry’s automobile. Extensive research was conducted on a paint chip found on the pliers. The paint chip consisted of a fine layer of sand and two layers of paint, consistent with the known samples taken from the cut telephone wires.
Mayberry’s residence was placed under surveillance early May 4, and at 8:30 a.m. he left the residence. Police officers followed Mayberry several blocks before pulling him over. Mayberry was ordered from the car at gunpoint, patted down, handcuffed, and driven to the police station for questioning.
At 9:30 a.m. the first of four interviews began. Mayberry was informed he was not in custody but was questioned about Long’s death. Mayberry denied any problems existed in his relationship with Long. The interviewing officer, Detective Baxter, did not advise Mayberry of his Miranda rights until Mayberry provided answers inconsistent with the information possessed by Baxter. Mayberry continued to answer questions but denied striking Long, denied the relationship was breaking up, and denied owning any weapons. During the second interview, Mayberry denied fighting with Long at the May 3 lunch and stated he purchased shotgun shells for his father the previous week, but denied opening the box. During this interview, Mayberry’s clothes and samples of his hair and blood were taken for analysis. At the final interview at 4:50 p.m., Mayberry stated he purchased a shotgun the morning of May 3 and gave it to Long over the noon hour. Mayberry was formally arrested at 6:00 p.m.
At trial, Mayberry’s sole theory of defense was a denial of any involvement in Long’s slaying. On appeal, he asserts the warrantless arrest and the subsequent search of his residence and automobile violated his Fourth, Fifth, and Fourteenth Amendment rights. Mayberry argues the trial court committed reversible error in denying motions to change venue and to discharge the jury panel and in refusing to dismiss jurors challenged for cause. Mayberry also contends the trial court erroneously allowed evidence of gruesome photographs and hearsay testimony and committed reversible error in refusing to instruct on second-degree murder. Finally, Mayberry asserts abuse of discretion in sentencing.
The first issue we consider is Mayberry’s argument that he was arrested without probable cause, thereby violating the Fourth Amendment and tainting all evidence subsequently obtained. Mayberry alleges he was arrested when police officers handcuffed and transported him involuntarily to police headquarters, rather than at 6:00 p.m. when formal arrest occurred.
The Fourth Amendment to the United States Constitution provides that no warrant shall issue, except upon probable cause. Warrantless arrests are constitutionally valid, however, where the arresting officer has probable cause to believe a criminal offense has been committed. Beck v. Ohio, 379 U.S. 89, 96, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964); Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985); State v. Peterson, 236 Kan. 821, 826, 696 P.2d 387 (1985). Probable cause exists when the arresting officer has knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed an offense. Peterson, 236 Kan. at 826; State v. Costello, 231 Kan. 337, 338, 644 P.2d 447 (1982). Thus, the time of Mayberry’s arrest is essential in determining whether the police possessed sufficient information to constitute probable cause.
In Dunaway v. New York, 442 U.S. 200, 203, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), a police detective acquired information implicating the petitioner in murder. The information, however, was insufficient to obtain an arrest warrant so the detective ordered the petitioner “picked up” for questioning. The petitioner was taken into custody, driven to police headquarters, and placed in an interrogation room. The petitioner was not told he was under arrest but would have been restrained had he attempted to leave. Subsequent to the administration of Miranda warnings, the petitioner made incriminating statements.
The Dunaway Court ruled the petitioner was seized when he was involuntarily taken into police custody. The Court found petitioner’s detention was similar to a traditional arrest because he was transported to police headquarters and never was informed he was free to go. Thus, the Court ruled petitioner’s incriminating statements, made subsequent to an illegal arrest, were inadmissible evidence. 442 U.S. at 212-13, 216-19.
In the present case, Mayberry was actually seized when the officers ordered him from the automobile at gunpoint, handcuffed him, and transported him to the police station. Mayberry was not informed he was free to go and would have been physically restrained if he had attempted to leave. Mayberry was held in custody for six hours without being told he was under arrest. Under the circumstances, we conclude Mayberry was subjected to a warrantless arrest when he was taken into police custody at 8:30 a.m. on May 4.
Now, let us consider whether the police had sufficient information to constitute probable cause when Mayberry was taken into custody. At the hearing on the motion to suppress, Detective Baxter testified he possessed the following information when he directed Officer Henderson to bring Mayberry in for questioning. Baxter stated he investigated the crime scene beginning at 6:40 a.m. and spoke with other investigating officers. He learned that Mayberry was the victim’s boyfriend and lived part-time at Long’s residence. Baxter also discovered from Long’s friends that she and Mayberry had had a fight the previous day. Finally, Baxter knew Mayberry had been convicted of a prior murder of a girlfriend.
Mayberry contends Baxter’s information did not reach the level of probable cause, but merely cast suspicion on him. In addition, Mayberry asserts Officer Henderson did not possess independent knowledge and alleges the communication between Henderson and Baxter was too brief to impute Baxter’s knowledge to Henderson.
Detective Baxter advised Henderson that Mayberry was a suspect in Long’s murder and directed Henderson to continue surveillance of the residence and to bring Mayberry in for questioning if he attempted to leave. It is well established that an officer without a warrant, who possesses sufficient personal knowledge or collective information from other law enforcement officers to constitute probable cause, can direct a second officer to arrest the suspect. State v. Peterson, 236 Kan. at 826-27. Under the fellow officer rule, probable cause is determined by the collective information of the police involved in the investigation rather than the exclusive knowledge of the particular officer who made the actual arrest. Karr v. Smith, 774 F.2d at 1031; United States v. Ashley, 569 F.2d 975, 983 (5th Cir.), cert. denied 439 U.S. 853 (1978). See State v. Peterson, 236 Kan. at 827; State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981). Thus, Detective Raxter’s collective information was clearly imputed to Officer Henderson.
Evidence of probable cause need not reach the level to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. See State v. Boyle, 207 Kan. 833, 838, 486 P.2d 849 (1971). In determining whether probable cause exists, we consider all the information in the officer’s possession, the fair inferences drawn therefrom, and facts that might not be admissible on the issue of guilt. State v. Strauch, 239 Kan. 203, 209, 718 P.2d 613 (1986).
In State v. Strauch, we found probable cause existed for the defendant’s arrest for murder where an assistant district attorney testified that he had leads and information identifying the defendant as the principal suspect, that investigators had a picture of the defendant provided by a witness, and that investigators knew to look for a pickup carrying roofing equipment. We held a prudent person possessing this information and drawing reasonable inferences therefrom could believe the defendant had committed murder. 239 Kan. at 209.
In State v. Costello, 231 Kan. 337, we found probable cause existed for the defendant’s arrest where a detective viewed the bloody murder scene, had information that the defendant had been at the victim’s house the night before and had acted strangely, and found the defendant possessing a knife and blood-splattered shoes. 231 Kan. at 339.
In contrast, the United States Supreme Court determined probable cause was lacking for petitioner’s arrest in Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664 (1982), where the petitioner was arrested without warrant solely on the tip of an informant that petitioner was involved in a robbery. The petitioner was arrested and taken in for questioning. The Court found the arrest was made in the hope of eliciting further information, thereby constituting an illegal arrest. 457 U.S. at 689, 691.
In the present case, Detective Baxter investigated the crime scene and knew Mayberry was the victim’s boyfriend and had lived with her part-time. Detective Baxter also knew Long and Mayberry had had a fight the day before the murder, knew that Mayberry previously had been convicted of murder of a girlfriend, and had heard Brandi Henks accuse Mayberry of the killing. Given the above information and the reasonable inferences drawn therefrom, we conclude a reasonably prudent person would believe there was probable cause Mayberry committed the murder.
Next, Mayberry alleges the search warrants issued for his residence and automobile were issued without probable cause and without particularity and were not relied upon in good faith by the police. More specifically, Mayberry contends the affidavit in support of the search warrants was insufficient to establish probable cause that Mayberry committed the crime.
Before a search warrant may issue, there must be a finding of probable cause by a neutral and detached magistrate. The search warrant affidavit must set forth sufficient factual information to enable the magistrate to make an independent evaluation that probable cause exists. Mere conclusions and affirmations of belief are not sufficient. State v. Dunn, 233 Kan. 411, 414, 662 P.2d 1286 (1983); State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982).
Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984). See State v. Dunn, 233 Kan. at 414-15; State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972), rev'd in part on other grounds 225 Kan. 38, 587 P.2d 861 (1978). Probable cause has been described as “ ‘[b]its and pieces of information . . . fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been . . . committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.’ ” State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982) (quoting State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 [1977]). See State v. Williams, 229 Kan. 290, 291, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981).
The affidavit in the present case supplies information that the victim was found in her bedroom murdered by a shotgun blast. The affiant logically .concluded the assailant’s body or clothing might also be bloodied. The affidavit also supplies information that Mayberry had lived with the victim in the past, but had recently been ordered to move. Additionally, the affidavit states Mayberry and Long had been involved in a physical altercation the day preceding the murder. Finally, the affidavit informs of cut telephone wires outside the victim’s home and suggests that, the assailant may have broken into Long’s beauty salon to obtain a key to the residence.
The circumstantial evidence provided more than mere suspicion of Mayberry’s guilt. Personal observation of the crime scene logically led to the conclusion that the suspect’s clothing would be bloodied. Information that Mayberry had recently fought with the victim and struck her pointed the finger of suspicion toward Mayberry. The break-in at Long’s business, along with information that a key to her residence was kept there, raised an inference the assailant had knowledge of the whereabouts of the key. The cumulative circumstantial evidence, therefore, was sufficient for the finding of probable cause. Thus, the box of shotgun shells discovered in Mayberry’s bedroom and the needlenose pliers found in a toolbox in his automobile were admissible evidence in his trial.
Mayberry next contends the trial court erroneously denied motions to change venue. He argues it was impossible to obtain an impartial jury and fair trial due to substantial media coverage of the crime, which included numerous references to defendant’s prior murder conviction and mentioned a wrongful death suit commenced by the victim’s daughter against defendant. He also alleges that the trial court’s suppression of evidence concerning the prior murder conviction establishes that such evidence was prejudicial to his substantial rights. In addition, Mayberry asserts the trial court’s denial of expenses for a survey of community attitudes violated his due process rights.
The determination to change venue lies within the trial court’s discretion and will not be disturbed upon appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show community prejudice to such a degree that it is impossible to obtain an impartial jury, and the showing must be more than mere speculation. State v. Goss, 245 Kan. 189, 194, 777 P.2d 781 (1989); State v. Dunn, 243 Kan. 414, 424, 758 P.2d 718 (1988).
Extensive pretrial publicity has never been sufficient to establish prejudice per se. State v. Dunn, 243 Kan. at 424; State v. Hunter, 241 Kan. 629, 635, 740 P.2d 559 (1987). To determine whether a defendant’s right to a fair trial is jeopardized, we examine the jury selection process; the degree of pretrial publicity; the length of time which elapsed from dissemination of the publicity until the time of trial; the familiarity with the publicity complained of and its effect on prospective and actual jurors; the challenges exercised by the defendant in selection of the jury; and the severity of the offense charged. State v. Ruebke, 240 Kan. 493, 499-500, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
In the case at hand, jury selection took two and one-half days. Sixteen of the potential jurors were excused for cause. On the remaining venire 41 jurors possessed some knowledge of the crime through the media and 13 had knowledge of Mayberry’s prior conviction. Mayberry challenged all potential jurors for cause who knew about the prior conviction; however, only one was excused. Nine of the actual jurors possessed information from the media, two knew of Mayberry’s prior conviction, and one possessed no media information. One of the alternate jurors had obtained media information and the other alternate knew of the prior .conviction. During voir dire, the trial judge carefully questioned individual prospective jurors who had heard or read information about the crime. All of the actual jurors with knowledge of the prior conviction asserted that such information would not prevent them from being fair and impartial jurors.
Under these circumstances, we find Mayberry failed to show prejudice in the prospective jurors. Numerous veniremen were excused for cause and those who remained as jurors assured the trial court that outside information would not affect their ability to serve as jurors. The trial court did not abuse its discretion in denying Mayberry’s motions for a change of venue.
The authorization of funds for expert services necessary for án adequate defense in a criminal defendant’s case lies within the sound discretion of the trial court. K.S.A. 22-4508. We will not disturb the trial court’s ruling unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the court’s discretion. State v. Owens, 248 Kan. 273, 807 P.2d 101 (1991). State v. Dunn, 243 Kan. 414, 418, 758 P.2d 718 (1988). The trial court determined Mayberry failed to establish prejudice and thereby denied recovery of survey expenses.' We find the trial court did not err in denying the expenses.
For his next issue, Mayberry argues the trial' court erred in denying his motions to discharge the jury panel. Mayberry sought a mistrial based upon a potential juror’s statement, before the second panel of veniremen, which indicated he knew about May-berry from his previous conviction.
K.S.A. 22-3423(l)(c) authorizes the trial court to order a mistrial where prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. Declaration of a mistrial is a matter entrusted to the trial court’s discretion and that decision will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Ruebke, 240 Kan. at 506; State v. Rider, Edens & Lemons, 229 Kan. 394, 407, 625 P.2d 425 (1981).
In State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978), a prospective juror expressed a feeling in front of other prospective jurors that she believed the newspaper accounts of the murder were true. The speaker, a cousin of the defendant, was excused and the jurors were admonished to disregard statements by prospective jurors and information they read in newspapers. We found the statements were inadvertent and unintentional and held there was no showing of substantial prejudice to the defendant.
In the present case, the prospective juror who spoke of a prior conviction in front of other prospective jurors was excused, for cause. The improper comment was not precipitated by State action, and the prospective juror made no indication of the crime upon which the prior conviction was based. In addition, the trial court instructed the jury to disregard any information concerning the case other than that elicited at the trial.
We find Mayberry has failed to show substantial prejudice to his right to a fair trial and hold the trial court did not abuse its discretion in denying the motion for mistrial.
Mayberry contends the district court erred in failing to discharge the jury panel, which included only one black person. He alleges selection of the jury panel solely from a list of registered driver’s license holders constitutes knowing and purposeful discrimination and fails to provide a jury drawn from a fair cross-section of the community. This argument is without merit.
K.S.A. 43-162 provides that jury lists shall be prepared from voter registration records, lists of licensed drivers, lists of non-driver’s identification cards, or Census records. At trial, the district court judge recognized that Reno County was in the process of combining the voter registration and driver’s license lists, but that defendant’s jury panel was randomly selected from only the driver’s license list because computer programming had not been completed.
Clearly, the jury panel method of selection utilized by Reno County was within the statutory mandates of K.S.A. 43-162. In addition, we find Mayberry has failed to show that a recognizable and identifiable class, otherwise entitled to be jurors, was purposefully and systematically excluded from jury service. United States v. Bennett, 539 F.2d 45, 55 (10th Cir.), cert. denied 429 U.S. 925 (1976); State v. Reeves, 234 Kan. 250, 252-53, 671 P.2d 553 (1983). Failure to include the name of every qualified person does not provide grounds for reversal of a conviction, and the United States Constitution does not require a supplemental source of potential juror names merely because an identifiable group registers to vote or obtains driver’s licenses in a proportion lower than the rest of the population. United States v. Evans, 542 F.2d 805, 812 (10th Cir. 1976), cert. denied 429 U.S. 1101 (1977); See State v. Brothers, 212 Kan. 187, 189, 510 P.2d 608 (1973); Lopez v. State, 415 So. 2d 1204, 1209 (Ala. Crim. App. 1982).
Mayberry’s final contention concerning impartiality of the jury is the argument the trial court committed reversible error in refusing to dismiss jurors challenged for cause. He argues four jurors and an alternate with knowledge of his prior murder conviction should have been dismissed for cause.
K.S.A. 22-3410(2)(i) provides that a potential juror may be challenged for cause where his or her state of mind with reference to the case or parties prevents the juror from acting impartially and without prejudice to the substantial rights of any party. Determining the qualifications of a potential juror is within the sound discretion of the trial court and will not be disturbed absent a showing of prejudice. In re Estate of Minney, 216 Kan. 178, 184, 531 P.2d 52 (1975).
During voir dire, Mayberry challenged all potential jurors for cause who possessed information of his prior murder conviction. The challenge was denied for all but one of the potential jurors. Mayberry proceeded to exercise peremptory challenges to strike three potential jurors who possessed the challenged information but also utilized the peremptory challenges to strike persons without the prior conviction information. Thus, four jurors and one alternate who were challenged for cause and could have been peremptorily challenged actually sat on the jury.
We find no error in the trial court’s overruling of Mayberry’s challenges for cause. The entire jury panel was subjected to extensive voir dire and individuals with any outside information were individually questioned by the trial judge. The four jurors who were challenged for cause and actually sat on the jury clearly expressed their ability to disregard outside information. In addition, any error committed by the trial court in failing to discharge the challenged jurors could easily have been cured by Mayberry’s use of peremptory challenges. See Ross v. Oklahoma, 487 U.S. 81, 88, 101 L. Ed. 2d 80, 108 S. Ct. 2273, reh. denied 487 U.S. 1250 (1988); State v. Paxton, 201 Kan. 353, 358-59, 440 P.2d 650, cert. denied 393 U.S. 849 (1968). Mayberry failed to utilize his peremptory challenges to strike the challenged jurors. Since no argument is made that use of the peremptory challenges on the four knowledgeable jurors would have made Mayberry accept other objectionable jurors, we find he has no grounds for complaint.
Mayberry was not prejudiced by the information possessed by the jury and there is no showing of abuse by the trial court in failing to discharge jurors challenged for cause.
The next issue we consider is Mayberry’s assertion the trial court abused its discretion in admitting into evidence photographs of the slain victim and the crime scene. He argues the prejudicial effect of these photographs far outweighs the probative value they offer.
Four photographs were admitted into evidence over the defendant’s objection that depicted the bloody crime scene. The photographs, used by a KBI forensic examiner for bloodstain and directionality analysis, revealed close-up shots of bloodstains and the point of impact by shotgun pellets. Four other photographs were also admitted into evidence over Mayberry’s objection. These photographs were used by the coroner to explain the cause and method of death. The photographs show the victim lying in bed with a massive head wound.
The admission of photographs as evidence in a homicide case rests within the trial court’s discretion, and that court’s ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Prouse, 244 Kan. 292, 294, 767 P.2d 1308 (1989); State v. Lucas, 243 Kan. 462, 476-77, 759 P.2d 90 (1988). Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975). Nevertheless, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. Thus, in Ruebke, photographs of three victims mutilated by shotgun wounds were found admissible as tending to prove or disprove material facts. 240 Kan. at 516-17.
In the present case, the cause and method of death were not really in dispute. The coroner and several police officers testified the victim clearly died from a close-range shotgun blast to the top half of her head. The photographs utilized by the forensic examiner and coroner, however, were used to show the victim died while still in bed, thus indicating the murder was premeditated. However, one photograph could have served that purpose. The introduction of four gruesome photographs constitutes undue repetition even though the evidence had a reasonable tendency to prove a material fact. We admonish trial courts to be sensitive to the possibility of prejudice which can flow from such inflammatory evidence. However, we do not believe the admission of the photographs in this case rises to the level of abuse of discretion.
Mayberry next contends the trial court erroneously admitted hearsay testimony which was prejudicial and diminished his credibility as a witness.
At the trial, several of Long’s friends testified to conversations they held with Long in the days preceding her murder. Essentially, these witnesses all testified that Long claimed to be having problems in her relationship with Mayberry. Brandi Henks stated that Long told her she retrieved Mayberry’s key to her residence because she did not like getting hit. Lisa Griffith spoke with Long the day before the murder and was told that Long had broken up with Mayberry. Later that day, Long called Griffith crying and upset because Mayberry had hit her. Several others testified that Long said she had fought with Mayberry and he had hit her.
Mayberry’s assertion the testimony consisted of inadmissible hearsay is meritless. Evidence of a statement which is made other than by a witness testifying constitutes inadmissible hearsay. K.S.A. 1990 Supp. 60-460. On numerous occasions, this court has approved admission of statements by the deceased which demonstrate the deceased’s state of mind prior to the murder and show the existence of a rift between the deceased and defendant. State v. Wood, 230 Kan. 477, 479, 638 P.2d 908 (1982); State v. Phipps, 224 Kan. 158, 160, 578 P.2d 709 (1978). As a general rule, in the case of marital homicide, evidence of a discordant marital relationship and the defendant’s previous ill treatment of the spouse is relevant as bearing on the defendant’s motive and intent. State v. Taylor, 234 Kan. 401, 408, 673 P.2d 1140 (1983); State v. Fenton, 228 Kan. 658, 667-68, 620 P.2d 813 (1980).
In State v. Wood, we held that testimony by the murder victim’s mother that the victim stated the defendant had beaten her was not inadmissible hearsay, but constituted relevant evidence concerning intent. 230 Kan. at 478-80.
The testimony presented in the case at hand was not inadmissible hearsay because it was not introduced to prove the truth of the matter asserted. Rather, the testimony was properly admitted to show Long’s state of mind the day preceding her murder and the fact that a discordant relationship existed between Long and Mayberry. The testimony showed the relationship which existed between Long and Mayberry and the conduct of that relationship. Thus, we find no error in admission of the testimony.
Next, Mayberry asserts the trial court committed reversible error in failing to instruct the jury on the lesser included offense of second-degree murder. The trial court denied Mayberry’s request for an instruction on second-degree murder on the basis that the evidence presented supported a finding either of first-degree premeditated murder or of acquittal. Mayberry argues the jury could have reasonably inferred the murder occurred without premeditation since there was no direct evidence of such.
K.S.A. 21-3107(3) requires the trial court to instruct on all lesser crimes upon which the defendant might reasonably be convicted. Instructions on lesser included offenses must be given even if the evidence is weak and inconclusive and consists solely of the defendant’s testimony. State v. Hill, 242 Kan. 68, 73, 744 P.2d 1228 (1987). The affirmative duty to instruct arises, however, only where there is evidence under which the defendant may reasonably be convicted of the lesser crime. State v. Bishop, 240 Kan. 647, 654-55, 732 P.2d 765 (1987). Thus, before instructions on lesser included offenses are required there must be positive testimony presented by the defense to prove a version of the homicide contrary to the version presented by the State. State v. Garcia, 233 Kan. 589, 608-09, 664 P.2d 1343 (1983). See State v. Armstrong, 240 Kan. 446, 460, 731 P.2d 249, cert. denied 482 U.S. 929 (1987). When no evidence is introduced to indicate a lesser included offense has been committed, there is no error in failing to instruct on the lesser included offense. State v. King, 219 Kan. 508, 514, 548 P.2d 803 (1976).
Second-degree murder, K.S.A. 21-3402, is clearly a lesser included offense of first-degree murder, K.S.A. 21-3401. All the elements of second-degree murder are included within first-degree murder. First-degree murder, however, contains the additional element of premeditation.
Mayberry argues all evidence of premeditation presented at trial was circumstantial. He asserts there was no evidence which linked the cut telephone wire and damaged door lock to the shooting. In addition, he alleges evidence that he purchased a shotgun the day prior to Long’s murder is not conclusive evidence of premeditation. Finally, Mayberry contends the manner of death is also inconclusive evidence of premeditation because there is no evidence of what events occurred at the time of the shooting, and the jury could infer the perpetrator of the crime did not become angered until the time of the shooting.
We disagree with Mayberry’s arguments. The sole issue at trial was the identity of the perpetrator, and Mayberry’s only theory of defense was that he was not involved in the murder. Premeditation may be established by circumstantial evidence and can be inferred from the established circumstances. State v. Hill, 233 Kan. 648, 652, 664 P.2d 840 (1983).
Evidence presented showed that Mayberry and the victim had a stormy relationship which the victim believed had ended. There was no evidence the attack was provoked, as the victim was killed by a close-range shotgun blast while sitting in bed. Although no murder weapon was discovered, testimony established that May-berry had purchased a shotgun and shells the very day preceding the victim’s murder. We find, from the evidence presented, the jury could reasonably have concluded the murder was premeditated.
As for Mayberry’s theory that the killing may have occurred in a fit of anger, we recognize that no such theory or evidence in support thereof was presented at trial. Mayberry’s theory is mere conjecture and without substance to require an instruction on second-degree murder. Speculation and guesswork do not constitute the minimum evidence required to support a conviction. State v. Burnison, 247 Kan. 19, 28, 795 P.2d 32 (1990); State v. White & Stewart, 225 Kan. 87, 99, 587 P.2d 1259 (1978). Under the facts presented, we find there was no affirmative duty to instruct on second-degree murder and affirm the trial court’s ruling.
Next, Mayberry alleges the trial court erroneously enhanced the convictions for first-degree murder and aggravated burglary. He contends the sentences were not enhanceable under K.S.A. 1989 Supp. 21-4504(a).
At the time Mayberry, committed the murder and aggravated burglary, May 4, 1989, K.S.A. 21-4504 was in effect. Under the habitual criminal statute, the trial court was authorized to double the maximum sentence of a defendant convicted of any felony. Subsequent to commission of the crimes, but prior to the trial and sentencing of Mayberry, K.S.A. 1989 Supp. 21-4504 became effective on July 1, 1989. The amended statute provides:
“(a) If a defendant is convicted of a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated a second time, the punishment for which is confinement in the custody of the secretary of corrections, the trial judge may sentence the defendant as follows, upon motion of the prosecuting attorney:
“(1) The court may fix a minimum sentence of not less than the least nor more than twice the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
“(2) the court may fix a maximum sentence of not less than the least nor more than twice the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.”
Mayberry contends application of K.S.A. 1989 Supp. 21-4504 prevents enhancement of his sentences because aggravated burglary, an article 37 felony, is not within the statute’s scope. He also alleges the second-degree murder conviction under K.S.A. 21-402 (Corrick), upon which the sentence enhancements were predicated, falls outside the scope of K.S.A. 1989 Supp. 21-4504.
Mayberry’s arguments are misplaced. Criminal statutes and penalties in effect at the time of the criminal offense are controlling. See State v. Sylva, 248 Kan. 118, Syl. ¶ 4, 804 P.2d 967 (1991); State v. Ramos, 240 Kan. 485, 490, 731 P.2d 837 (1987); State v. Armstrong, 238 Kan. 559, 566, 712 P.2d 1258 (1986). Since the crimes were committed prior to the effective date of K.S.A. 1989 Supp. 21-4504, we find the sentences imposed were properly enhanced.
For his final argument, Mayberry contends the trial court abused its discretion in expressing its preference for the death sentence if it were available.
It is a well-settled rule of law that a sentence imposed by the trial court will not be disturbed on the ground it is excessive, provided it is within the statutory limits and is not the result of partiality, prejudice, oppression, or corrupt motive. State v. Doile, 244 Kan. 493, 503-04, 769 P.2d 666 (1989); State v. Dunn, 243 Kan. 414, 434, 758 P.2d 718 (1988). The two consecutive life sentences imposed for murder and the 10- to 40-year sentence imposed for aggravated burglary are clearly within statutory limitations. Given the violent nature of the crime committed and Mayberry’s prior conviction for second-degree murder, we find no abuse of discretion in imposing the maximum sentences. The district court’s gratuitous statement of preference for the death penalty does not, of itself, constitute abuse of discretion.
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Per Curiam:
This is a contested attorney disciplinary matter. A complaint was filed against LaVone A. Daily by her stepdaughter, Martha J. Bartlett. After investigation, the office of the disciplinary administrator filed a formal complaint.
The panel that heard the complaint found that Daily had violated DR 1-102(A)(3), (4), and (6) (1990 Kan. Ct. R. Annot. 165), and DR 9-102(B)(l) and (4) (1990 Kan. Ct. R. Annot. 204). The panel recommended that Daily be indefinitely suspended from the practice of law.
Daily filed exceptions to the report, findings, and recommendations of the hearing panel.
We adopt the hearing panel report and recommendations.
Facts
LaVone A. Daily was married to Kansas attorney William Scott for 15 years. Daily and Scott practiced law together in the firm of Scott and Daily, Chartered. Scott was killed in a pedestrian traffic accident on January 23, 1986, at a time when Daily and Scott were attending a seminar in Florida. Although Daily did not view the initial collision, she heard the impact and witnessed the extensive and severe crushing injuries suffered by Scott.
The complainant, Martha J. Bartlett, is Scott’s daughter. Highly summarized, the complaint alleges that, by deceit and trick, Daily caused Bartlett to endorse a draft representing life insurance proceeds payable to Bartlett as beneficiary. Daily is alleged to have deposited the draft in her personal account.
This matter came on for hearing before a hearing panel of the Kansas Board for Discipline of Attorneys on July 25, 1989. Daily requested a continuance, stating that her defense would be prejudiced because there was a civil case pending against her. (Martha J. Bartlett v. LaVone A. Daily, case No. CV 87-17679, Jackson County, Missouri.) The panel denied the request. At the hearing, Daily offered to stipulate to the Disciplinary Administrator s evidence. However, the Disciplinary Administrator introduced evidence and called witnesses for the benefit of the panel and of the court.
Daily handled certain matters regarding life insurance proceeds to be paid as a result of Scott’s death. Some of the proceeds came from the Veterans Administration. In addition, there were proceeds from a $25,000 policy issued by Imperial Casualty and Indemnity Co. (Imperial).
On March 5, 1986, approximately six weeks after Scott’s death, Daily wrote to Imperial requesting a claim form. In that letter, Daily referred to herself as the principal beneficiary of the policy. On March 10, 1986, an Imperial representative responded requesting further proof of claim. This response stated that Martha J. Bartlett was the beneficiary.
On March 13, 1986, Daily wrote to Imperial enclosing the requested proof of claim. In the March 13 letter, Daily again referred to herself as a beneficiary and requested immediate attention. On March 17, 1986, Imperial sent a letter to Daily and enclosed a draft for $25,000. The Imperial letter again stated that Martha J. Bartlett was the beneficiary. The draft was made payable to “Martha J. Bartlett, Daughter of William E. Scott.”
Daily had previously received two checks from the Veterans Administration. The checks were payable to Martha Bartlett and were in the amounts of $2,545.57 and $2,546.50. After Daily told Bartlett about the Veterans Administration checks, Bartlett went to Daily’s office, picked up the checks and signed a receipt for the checks on a Veterans Administration form attached to the checks.
Daily contacted Bartlett in April 1986 and said that she (Daily) needed Bartlett to sign another receipt for the Veterans Administration checks. Daily said the government wanted the receipt. Bartlett was told to come to Daily’s house to sign the receipt. Bartlett went to Daily’s house. The receipt was on the table and Bartlett signed it. Bartlett noticed that the receipt was stapled at the bottom with carbon paper under the original. Bartlett thought it was strange that the receipt was on plain paper with no letterhead.
Sometime after signing the receipt, Bartlett called Daily’s office. Bartlett talked to a secretary who asked how much money Bartlett had received from her father’s estate. Bartlett answered that she had received $5,000 from two Veterans Administration checks. The secretary then asked to meet with Bartlett.
The secretary testified that she had become suspicious of what had happened to the $25,000 Imperial draft. The secretary had typed the March 5, 1986, and March 13, 1986, letters from Daily to Imperial. She had also seen the responses from Imperial. The secretary said the draft came to the office. She had noticed that Daily’s letter referred to Daily as beneficiary while the letters from Imperial listed Bartlett as beneficiary. The secretary had asked Daily if Daily had the matter straightened out as far as who the beneficiary was. Daily responded yes. The secretary located a photocopy of the Imperial draft from an office file pertaining to Scott’s death. The copy had Martha Bartlett’s signature on it.
The secretary met with Bartlett and showed Bartlett a copy of the draft. Bartlett said that her signature was on the draft, but she had never seen the draft before.
Bartlett called Imperial and requested a copy of the draft. When she received the copy, she noticed that Daily’s signature was also on the draft.
Bartlett went to Daily’s home to talk to Daily about the draft. Daily was not home so Bartlett used her own key to enter the home. Bartlett discovered a file marked “Bartlett Farm.” In the file, Bartlett found the receipt she had signed for the Veterans Administration checks. She noticed that her signature appeared on the original but did not appear on the carbon copy. Bartlett then determined that Daily had placed the draft under the carbon in such a manner that when the receipt was signed, Bartlett’s signature was transferred to the endorsement line of the draft.
Dan L. McCarty, a forensic chemist and documents examiner, confirmed this determination.
Bartlett confronted Daily with the draft. Daily told Bartlett that the secretaries handled these matters and that she would check into it. A few days later Daily gave Bartlett a cashier s check for $25,000 dated May 19, 1986.
The $25,000 Imperial draft had been deposited in a personal account owned by Daily at Sun Savings in Kansas City, Kansas. At the time of the original deposit, only Bartlett’s endorsement was on the draft. Because the draft was being deposited in an account held by someone other than the payee, a bank employee called Daily and told her that she had to endorse the check. The check was then endorsed by Daily and deposited in her account.
Bartlett explained why she reported this incident to the Disciplinary Administrator. She went to a Kansas attorney to handle her dispute with Daily over ownership of a farm. They discussed the check incident. The attorney told her that when the facts were brought out in court, the incident would have to be reported and that he could be in trouble for not turning in the ethical violation. Bartlett stated: “And they were on me for quite a while to do it. I had to—it took a lot of thought and a lot of heartache to come to the conclusion that it had to be done. In fact, it took about a year.”
Daily did not testify or address the panel. The Disciplinary Administrator introduced a letter written by Daily to the attorney of the local Wyandotte County Bar committee investigating the complaint. Daily’s letter stated that a secretary, Gloria Jordan, took care of all matters regarding Scott’s death. This letter also stated that Daily was told the $25,000 draft was “inadvertently deposited” in Scott’s savings account at Sun Savings. Daily also alleged that whatever Bartlett needed to sign was signed at the office and that she had not represented Bartlett in any manner. The Disciplinary Administrator also introduced a portion of Daily’s deposition taken in unrelated litigation. In the deposition Daily denied under oath any knowledge of how Martha J. Bartlett’s signature was placed on the draft or how the draft was deposited in Daily’s personal account at Sun Savings.
Judge Herbert Walton, Judge Harry Miller (retired), and attorney J. Donald Lysaught testified on behalf of Daily. Judge Walton testified that he has known Daily since they were classmates in law school. Daily graduated from law school in 1957. Daily has practiced in Judge Walton’s court. Judge Walton stated that Daily has a reputation as a good lawyer and a good reputation for truthfulness and veracity. Judge Walton’s opinion of Daily concurs with her reputation. Judge Walton testified that he was only generally familiar with the allegations in the complaint. He had no knowledge of the evidence.
Judge Miller testified that he had known Daily since 1965. She had been in his court numerous times. He stated that Daily has a good reputation as a lawyer. His personal opinion is that she is an able, competent lawyer. Judge Miller was not familiar with the allegations in the complaint.
J. Donald Lysaught is a member of the Kansas Bar. He has known Daily since she was six years old as he grew up in the same neighborhood. He testified that he has never heard any criticism of her integrity or ethical standards. His personal opinion is that she is fit to practice law and is a woman of integrity and honesty.
Daily requested a continuance so that she could be evaluated by a psychologist. The continuance was granted.
The hearing reconvened on February 23, 1990. Daily had been evaluated by a psychologist, Marilyn A. Hutchinson, Ph.D. Dr. Hutchinson testified that Daily suffered post-traumatic stress disorder (PTSD), resulting from witnessing Scott’s death, with a high probability of some beginning stages of organic brain decline which was exacerbated by stress. She further testified that, if Daily did the acts alleged in the complaint, Daily did so in a dissociative state and that the act was not intentional or willful.
At the request of the Disciplinary Administrator, Daily was examined by Dr. Herbert Modlin, a psychiatrist at the Menninger Foundation. Dr. Modlin testified that, in April and May 1986, Daily had probably suffered from PTSD, mild presenile dementia, and depression. He disagreed with Dr. Hutchinson’s opinion that Daily was in a dissociative state at the time the alleged acts occurred. Modlin stated that a dissociative state is a sudden acute experience in contrast to the alleged acts in the present case which required planning and occurred over several weeks. He stated that a more likely explanation is that Daily suffered from “amnesia after the fact.” Modlin stated that this occurs when someone who is reasonably moral is appalled by what they have done, so they block it out to come to grips with their own conscience. He stated that it could have been that Daily did not want to steal the money but that she just did not think Scott would have wanted Bartlett to have it.
The panel unanimously concluded on clear and convincing evidence that:
“1. The respondent has violated D.R. 1-102(A)(3), (4) and (6) by fraudulently inducing the complainant to endorse a check which the respondent converted to her personal use.
“2. The respondent has violated D.R. 9-102(B)(1) and (4) in failing to promptly cause the insurance proceeds to be paid to Martha Bartlett.”
The panel further found that neither Daily’s physical nor mental condition excused her violation. Such factors, if proven, are mitigating factors. The panel found the psychological and psychiatric evidence furnished “little to mitigate the respondent’s scheme to defraud her stepdaughter.” The panel did find three mitigating factors: (1) Restitution was made; (2) there is an absence of previous violations; and (3) there is evidence of Daily’s good character by testimony of a prominent lawyer and two judges.
The panel noted that Daily refused to address the panel, thus, depriving it of information as to her present attitude. The panel noted the only evidence in that regard is: (1) Daily’s letter to the attorney of the local bar committee stating “she inadvertently deposited” the draft; and (2) her statement under oath in her deposition in which she denied any knowledge of how Bartlett’s signature got on the draft. The panel recommended that Daily be indefinitely suspended from the practice of law.
Daily takes exception to panel findings 18, 19, 20, and 21:
“18. It is the opinion of Dr. Hutchinson that ‘if the respondent induced the fraudulent endorsement, she did so in a disassociative state without intent or purpose as a result of a post traumatic stress disorder induced by her husband’s violent death.
“19. It is the opinion of Dr. Modlin that it is most unlikely the respondent fraudulently induced Ms. Bartlett to endorse the check in a disassociative state because the fraud required planning and took place over an extended period of time. The panel credits Dr. Modlin’s testimony.
“20. Dr. Modlin also testified, and Dr. Hutchinson concurred, that the respondent suffers mild pre-senile dementia which is described as an organic brain disease, minimal in nature which may cause depression and other overlapping symptoms with post traumatic stress disorder.
“21. Because no other act of the respondent evidences any mental or organic disease consistent with aberrational behavior, such as the commission of a crime, the panel finds the psychological and psychiatric testimony of little help in resolution of the issues of this case. Following her husband’s death, the respondent has practiced law actively and competently. It is clear that William Scott intended Martha Bartlett to be a beneficiary of the Imperial Life insurance policy because he designated her as the beneficiary and never changed that designation. The respondent’s suggestion to her psychologist, therefore, that Mr. Scott really did not want Ms. Bartlett to have the money is inconsistent with the action of a competent, practicing attorney such as Mr. Scott. Moreover, from the evidence there appears to have been no recognition of nor treatment of either a psychological or organic problem by the respondent or those around her until well after this hearing had commenced.”
Clear and Convincing Evidence
The panel found that Daily violated DR 1-102(A)(3), by engaging in illegal conduct involving moral turpitude; 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and 1-102(A)(6) by engaging in conduct that adversely reflects on her fitness to practice law, Supreme Court Rule 225 (1990 Kan. Ct. R. Annot. 165); and DR 9-102(B)(l) by failing to promptly notify client of receipt of funds and 9-102(B)(4) by failing to promptly deliver funds the client was entitled to receive, Supreme Court Rule 225 (1990 Kan. Ct. R. Annot. 205).
Daily does not deny that the Disciplinary Administrator proved by clear and convincing evidence that Daily did the acts alleged. Nor does she contend that the acts do not constitute violations of the sections of the Code of Professional Responsibility cited above. Daily argues that the conduct was caused by mild organic brain dysfunction exacerbated by PTSD and that the evidence negates any willful, intentional act to deceive. Daily contends that the Disciplinary Administrator failed to prove by clear and convincing evidence that Daily had specific intent to fraudulently induce complainant to endorse the draft.
The Disciplinary Administrator argues that the panel concluded that the psychological and psychiatric testimony was of little help in resolving the issues of the case. The disciplinary adminstrator argues that Daily carried out a planned, devious course of action which took place over an extended period of time, March 5, 1986, to May 19, 1986, and that the nature of the conduct could only be intentional. The Disciplinary Administrator’s arguments have merit.
Daily cites In re Holman, 297 Or. 36, 682 P.2d 243 (En Banc) (1984). In Holman, the accused attorney was a trustee to a client’s trust. He withdrew funds from the trust account and deposited those funds in his personal office account, commingling his personal funds with those of the trust. He then dissipated the funds such that the trust was approximately $40,000 short. During this time, the attorney was addicted to prescription drugs and alcohol. He began seeking psychological help. The attorney examined his financial records and discovered the $40,000 shortage. He instructed his wife to call the Oregon State Bar, closed his office, and withdrew from the practice of law. A professor of Otolaryngology and Pharmacology testified that Holman could have failed to recognize the wrongfulness of his act. The professor who testified did not know the attorney at the time of the misconduct.
Holman testified that his mental capacity was so impaired that he did not remember writing the checks or commingling the funds. This was the only evidence as to his mental condition at the time of the violations. The court noted that the bar failed to call witnesses who could have contradicted this testimony. See 297 Or. at 65. Thus, the Oregon Supreme Court held that the bar did not bear its burden to prove specific intent in taking and withholding money from the trust. See 297 Or. at 67.
Daily argues that both Dr. Hutchinson and Dr. Modlin agreed that Daily did not have willful, deceitful intent. Dr. Modlin’s testimony is unclear. First, he stated that this is not a case of malingering. Then he agreed that, in other words, this is not a case of willful deceitful intent. Malingering means to pretend incapacity. Webster’s New Collegiate Dictionary 696 (1973). Thus, it is not clear if Dr. Modlin meant that Daily did not have willful, deceitful intent to pretend incapacity or meant that Daily did not have willful, deceitful intent to deceive or defraud Bartlett. Dr. Modlin did testify that it could have been that Daily may not have wanted to steal the money but that she just did not think Bartlett should have it. This indicates that she might not have intended to steal but did intend to keep the money from Bartlett. In his report, Dr. Modlin states:
“The planned deliberateness of the check endorsement incident over a period of time argues against some kind of attack or spell. The incident is puzzling since it is at such variance with her lifestyle and her prior ethical legal and personal conduct. The patient knew Scott was temporarily angry with his daughter and did not want her to have the farm. She could have extrapolated from that to decide Scott would not have wanted Martha to get the insurance proceeds either.” (Emphasis added.)
Neither Dr. Hutchinson nor Dr. Modlin knew or examined Daily until the fall of 1989, over three years after the alleged acts took place. The panel specifically noted that no other act of Daily’s evidences any mental or organic disease consistent with this aberrational behavior. Additionally, the panel noted that there was no recognition or treatment of any mental or organic problem until well after the hearing commenced.
In State v. Martin, 231 Kan. 481, 646 P.2d 459 (1982), the respondent attorney testified that he was mentally and physically unfit to practice law at the time of the misconduct. We reasoned that personal misfortune of the attorney is a mitigating factor if such misfortune has contributed to violation of the code of professional responsibility. In Martin, we observed that mitigating factors will not excuse a violation and are to be considered only when determining the nature and extent of discipline to be administered. 231 Kan. at 486. See Annot., Mental Or Emotional Disturbance As Defense To Or Mitigation of Charges Against Attorney in Disciplinary Proceeding, 26 A.L.R.4th 995.
The Disciplinary Administrator proved that Daily implemented a detailed plan. She sent letters to Imperial naming herself as beneficiary. Her secretary specifically asked her whether she had cleared up who the beneficiary was. She created a device which caused Bartlett to unknowingly endorse the draft. She deposited the money in her personal account, which required a second trip to Sun Savings to endorse the draft. These acts occurred over a ten-week period. Dr. Modlin stated that these acts were deliberate. The nature of this conduct could only be intentional.
During oral argument, counsel for respondent was asked by a member of this court if Bartlett knew of the Imperial policy. Counsel responded that she did not. If the secretary had not alerted Bartlett, the carbon paper fake receipt deception might have remained undiscovered.
The Disciplinary Administrator has proven with clear and convincing evidence that Daily violated DR 1-102(A)(3), (4), and (6), and DR 9-102(B)(l) and (4).
Indefinite Suspension
The panel unanimously recommended that Daily be indefinitely suspended from the practice of law. Daily argues that this discipline is too severe.
The panel found that Daily’s conduct was covered by ABA Standards for Imposing Lawyer Sanctions § 5.1 (1986) which states:
“Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.”
This court has stated the factors to be considered in assessing punishment in attorney discipline cases: (1) whether restitution has been made; (2) previous violations or absence thereof; (3) previous good character and reputation in the community; (4) the present or past attitude as shown by his/her cooperation during the hearing and acknowledgment of the violation; (5) support from friends and members of the bar; (6) any statement by complainant expressing satisfaction with restitution made and requesting no discipline; and (7) personal misfortune of the attorney if such misfortunes have contributed to violation of the code. Martin, 231 Kan. at 486.
The panel found mitigating factors.
The panel seemed to be disturbed that Daily had failed to address the panel. Daily did not acknowledge the violation or show her present attitude regarding the violation. We are also disturbed by the absence of such acknowledgement.
The panel noted that the only evidence in the record in regard to Daily’s present attitude is the letter to an attorney of the local bar committee investigating the complaint and her deposition testimony taken in unrelated civil litigation.
In the deposition Daily denied any knowledge of the incident. The panel states in the Final Hearing Report that Daily contends in the letter she “ ‘inadvertently deposited’ the check.” The letter actually states: “I was told, after it was brought to my attention, that as part of the estate matter, a draft from Imperial Casualty & Indemnity Company was inadvertently deposited in a passbook savings account . . . .”
The panel did not consider the psychological testimony as a mitigating factor. The panel credited Dr. Modlin’s testimony that it was unlikely that Daily fraudulently induced Bartlett to endorse the draft in a dissociative state. The panel did not find that Daily’s personal misfortunes contributed to the violation. We agree with the panel.
We conclude the Board’s recommendation that respondent be indefinitely suspended from the practice of law is appropriate.
It Is Therefore Ordered that LaVone A. Daily be and she is hereby indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that LaVone A. Daily shall forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs of this action be assessed to the respondent.
Effective this 18th day of January, 1991. | [
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The opinion of the court was delivered by
McFarland, J.:
Stephan W. Sylva entered guilty pleas to one count each of attempted sale of cocaine (K.S.A. 1987 Supp. 65- 4107[b][5], K.S.A. 65-4127a, and K.S.A. 21-3301) and attempted sale of marijuana (K.S.A. 1987 Supp. 65-4105[d][13], K.S.A. 65-4127b[b][3], and K.S.A. 21-3301). He received sentences of two years to five years on each count, said sentences to be served concurrently. The offenses are class D felonies and the concurrent two- to five-year sentences do not constitute the minimum authorized sentences herein as neither offense is one specified in articles 34, 35, or 36 of chapter 21 of the Kansas Statutes Annotated. The lowest sentences which could be imposed are one year to five years on each count. See K.S.A. 21-4501(d).
In this direct appeal from the trial court’s denial of his motion to modify the sentences defendant contends he is entitled to probation as a matter of law pursuant to K.S.A. 1989 Supp. 21-4603(3)(a) and K.S.A. 1989 Supp. 21-4606a. The Court of Appeals affirmed the sentences on the grounds that both statutes operated prospectively, and defendant was properly sentenced under the law as it existed at the time of the commission of the offenses herein. State v. Sylva, 14 Kan. App. 2d 609, 795 P.2d 947 (1990). The matter is before us on petition for review.
In State v. Hutchison, 228 Kan. 279, 615 P.2d 138 (1980), we set forth the rules of statutory construction pertinent herein as follows:
“The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively.” Syl. ¶ 6.
“The foregoing rule of statutory construction is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties.” Syl. ¶ 7.
“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” Syl. ¶ 8.
The penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense. Kelsey v. State, 194 Kan. 668, 670, 400 P.2d 736 (1965).
We shall apply these rules to the two statutes before us.
K.S.A. 1989 Supp. 21-4603(3)(a)
K.S.A. 1989 Supp. 21-4603(3)(a) provides that at any time within 120 days of sentencing the district court shall modify a sentence imposed “if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” K.S.A. 1989 Supp. 21-4603 became effective July 1, 1989. The report filed by the State Reception and Diagnostic Center (SRDC) recommended Sylva “be considered a candidate for probation.”
Prior to the 1989 amendment, K.S.A. 21-4603(3) provided that the court may modify a sentence. As amended, the court shall modify a sentence if recommended by the SRDC unless the court makes the required findings.
This issue is controlled by State v. Sutherland 248 Kan. 96, 804 P.2d 970 (1991), wherein we held that K.S.A. 1989 Supp. 21-4603(3)(a) made a substantive change in the law and is to be applied prospectively. Inasmuch as the crimes herein were committed in 1988, the statute does not apply. Additionally, even if the 1989 amendment had been applicable, the trial court would not have been required to grant probation as the statute speaks in terms of modification by imposing a less severe penalty “in lieu of that originally adjudged within statutory limits.” The recommendation of the SRDC requires the court to reduce the term of incarceration unless the court makes the requisite findings.
K.S.A. 1989 Supp. 21-4606a
K.S.A. 1989 Supp. 21-4606a also became effective on July 1, 1989. It provides:
“The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class D or E felony or convicted of an attempt to commit a class D felony shall be probation, unless the conviction is of a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated or the crime is a felony violation of K.S. A. 65-4127b, and amendments thereto, which involved the manufacture, sale, offer for sale or possession with intent to sell such controlled substances. In determining whether to impose the presumptive sentence, the court shall consider any prior record of the person’s having been convicted or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult. If the presumptive sentence provided by this section is not imposed, the provisions of K.S.A. 1989 Supp. 21-4606b shall apply." (Italics indicates 1989 amendments.)
In applying the rules of statutory construction previously stated, it is clear that K.S.A. 1989 Supp. 21-4606a is substantive in nature. It concerns the penalty to be imposed for the offense to which it applies. Prospective application is, therefore, appropriate. Our rule that the penalty parameters for an offense are fixed as of the date of the commission of the offense is fair, logical, and easy to apply. Neither the State nor a defendant may maneuver a sentencing date to take advantage of or avoid a change in a statute.
The crimes herein were committed in March of 1988 and are class D felonies. K.S.A. 21-4606a, the presumptive sentencing statute in the form in effect in 1988, did not apply to class D felonies and, hence, is inapplicable to the offenses herein.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is affirmed.
Abbott, J., not participating. | [
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