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The opinion of the court was delivered by
Herd, J.:
Johnny Wiggins directly appeals his jury conviction of second-degree murder, K.S.A. 21-3402. Wiggins and Chris Brownfield were tried jointly for the murder of Lee Degraftenreed, a fellow inmate at the Kansas State Penitentiary. Brownfield was convicted of aggravated battery, K.S.A. 21-3414. Wiggins, charged with first-degree murder, K.S.A. 21-3401, was convicted of second-degree murder and sentenced to a term of fifteen years to life, to run consecutive to any sentence previously imposed. We affirm.
Wiggins and Brownfield were cellmates at the Kansas State Penitentiary. On September 7, 1988, both men went to work at the prison laundry. Upon returning from work, Brownfield discovered someone had entered their cell and stolen cigarettes, snacks, toilet articles, and three billfolds from a locked footlocker. Wiggins and Brownfield learned from other inmates that Lee Degraftenreed and several other inmates had been seen near the cell and that Degraftenreed had been observed carrying a stuffed pillowcase. Wiggins reported the theft to a unit team officer and several other officers but was informed his only remedy was to fill out a property claim form. Wiggins and Brownfield then asked another inmate, McCarther, to speak to Degraftenreed for them. Degraftenreed became angry with McCarther and stated he would not give anything back to Wiggins and Brownfield. Eventually, Degraftenreed came to Wiggins’ and Brownfield’s cell and threatened to kill them if he heard any more about the incident.
The same evening many rumors circulated throughout the prison concerning the theft. Wiggins and Brownfield were warned that something would happen to them in the morning.
The next morning, September 8, Wiggins and Brownfield reported to work at the laundry as usual. Wiggins testified that he saw Degraftenreed and a group of inmates observing the laundry and that he recovered a hidden knife to protect himself. When Degraftenreed entered the main gate of the laundry, Wiggins locked Degraftenreed inside. Wiggins testified that Degraftenreed laid down a laundry bag and came towards Wiggins. Wiggins told Degraftenreed there was no need for trouble but Degraftenreed claimed he would kill Wiggins. As Degraftenreed made his threat, Wiggins believed he was about to attack because Degraftenreed jumped back and reached under his shirt as if to retrieve a knife. Wiggins stated he stabbed Degraftenreed because he believed he was in a life and death situation. Degraftenreed ran to the back of the laundry and Wiggins, afraid that Degraftenreed would seize a weapon, chased him and continued to stab him until officers arrived at the scene. Brownfield came to Wiggins’ aid and hit Degraftenreed on the head with a metal bar. Wiggins testified he felt it was necessary to kill Degraftenreed before Degraftenreed killed him.
At trial several witnesses stated they had not seen a weapon in Degraftenreed’s possession, nor was any weapon ever discovered. A homemade knife and metal bar were found in the laundry. An autopsy revealed that Degraftenreed suffered eighteen stab wounds, one of which pierced the heart, and had six lacerations on the head from a blunt instrument.
Wiggins’ only defense at trial was that he acted in self-defense. He was convicted of second-degree murder. A motion for a new trial was denied and this appeal followed.
On appeal, Wiggins raises two issues. First, he contends the trial court erroneously instructed the jury on self-defense.
The jury was instructed on the defense of self-defense in accordance with PIK Grim. 2d 54.17 and K.S.A. 21-3211. The instruction provided:
“The defendants have claimed their conduct was justified as self-defense.
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief.
“A person may stand his ground and use deadly force if this reasonably seems necessary to save himself.”
Wiggins requested the following modification of the instruction: “Such justification requires both the belief on the part of a defendant and the existence of facts that would persuade a reasonable person, in the position of the defendant, to that belief.” (Emphasis added.)
The trial court determined that State v. Simon, 231 Kan. 572, 646 P.2d 1119 (1982), required the use of an objective standard to determine reasonableness and denied the use of a modified instruction.
Wiggins contends the modified instruction was necessary in order for the jury to consider the unique circumstances and environment of a prison.
In State v. Simon, this court adopted a two-prong test for justification of use of deadly force in self-defense. Deadly force is justified when the defendant subjectively believes such force is necessary and is subject to an objective standard of reasonableness. A reasonable belief is one which arises from the existence of facts which would persuade a reasonable person to that belief. See 231 Kan. at 575. Thus, we see justification of use of deadly force is measured by both a subjective and an objective standard.
In State v. Stewart, 243 Kan. 639, 763 P.2d 572 (1988), a battered wife was charged with the murder of her husband. The trial court instructed the jury on self-defense following the language of PIK Crim. 2d 54.17 and then added: “ ‘You must determine, from the viewpoint of the defendant’s mental state, whether the defendant’s belief in the need to defend herself was reasonable in light of her subjective impressions and the facts and circumstances known to her.’ ” 243 Kan. at 649.
We determined that, although expert evidence on the battered woman syndrome was relevant to a determination of the reasonableness of defendant’s perception of danger, the reasonableness of the defendant’s belief must be measured by an objective standard. We specifically stated the test to determine whether a defendant’s belief was reasonable was “whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary” and found the trial court’s instruction was erroneous. 243 Kan. at 649.
Upon close examination of our holding in Stewart, we find the trial court in this case did not err in refusing to give the modified instruction. There is a distinction with very little difference between the proposed instruction and the instruction given. In both instances the jury would be charged with viewing Degraftenreed’s actions as they appeared to Wiggins at the time of the attack.
At trial, Wiggins provided testimony from Dr. Glen Lipson, a psychologist from the Menninger Foundation. Dr. Lipson provided the jury with a description of the prison environment and the subculture and values of persons living within that environment. Dr. Lipson stated the code of behavior within a culture of fear was much different than the code of behavior accepted by others. Specifically, Dr. Lipson described the prison environment as a collection of predators where one was preyed upon by others unless one was “intimidating” or “crazy.”
In addition to Dr. Lipson’s testimony, Wiggins stated he knew he must kill Degraftenreed or be killed himself. Rrownfield testified he was panicky after the theft and wanted to seek protective custody before the thief returned.
The jury was adequately provided with evidence of the fears and unique circumstances of life within a prison environment. Wiggins has failed to establish, however, that the jury did not consider this evidence in determining whether a reasonable person would have believed deadly force was necessary in the incident between Wiggins and Degraftenreed. Therefore, we find the trial court properly instructed the jury on both the subjective and objective standards by which to gauge the justification of use of deadly force.
Wiggins next contends the trial court erred in not allowing cross-examination of a prison officer concerning a prior self-defense killing at the Kansas State Penitentiary.
Wiggins attempted to cross-examine Clyde Weems, an intelligence and investigative officer at the Kansas State Penitentiary, about another incident of one inmate stabbing another. Upon the State’s objection to the question, Wiggins argued the evidence was crucial to show the hostile environment which existed at the Kansas State Penitentiary. The trial court found the evidence irrelevant and limited further questioning on the subject.
Wiggins argues that testimony concerning the prison environment was highly relevant and tended to prove that Wiggins acted in self-defense. Thus, he contends the trial court erroneously suppressed relevant evidence tending to prove a material fact. K.S.A. 60-401(b); 60-407.
The scope of cross-examination is a matter within the sound discretion of a trial court and, absent a showing of clear abuse, the exercise of that discretion will not constitute prejudicial error. State v. Jones, 233 Kan. 112, 114, 660 P.2d 948 (1983); State v. Carr, 230 Kan. 322, 325-26, 634 P.2d 1104 (1981). Testimony concerning a prior unrelated homicide at the Kansas State Penitentiary was properly ruled irrelevant in the present case. We find no abuse of discretion by the trial court in limiting the cross-examination of Officer Weems.
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The opinion of the court was delivered by
ABBOTT, J.:
This is a direct appeal by defendant Mark Hupp from his conviction by a jury of first-degree murder based upon a killing committed in the perpetration of the abuse of a child, K.S.A. 1989 Supp. 21-3401(c).
Hupp contends that the trial court erred in failing to instruct the jury on lesser included offenses and that K.S.A. 21-3609 is unconstitutionally vague in that it does not reasonably convey a sufficient warning as to the conduct which is proscribed.
Michael Cloud was three and one-half months old when he died of a severe blow to his head. Michael was born on June 9, 1989, to Debbie Tenbrink. When Debbie was eight months pregnant, she started dating Mark Hupp. Mark and Debbie were married on June 30, 1989.
Mark was 21 years old at the time of Michael’s death. Mark had been a hyperactive child. At the age of 10 or 11, Mark was removed from his home by SRS and placed in a group home. He was then admitted to the Topeka State Hospital for about two years and then transferred to the Parsons State Hospital until he was 18.
On July 8, 1989, Michael was admitted to Stormont-Vail Regional Medical Center because of several unexplained bruises on his left shoulder and upper back and the left side of his neck. Mark initially told a social worker at the hospital that he was unable to explain how the bruises occurred, but later Mark said he supposed that Michael got pinched between the frame of the waterbed and the mattress where he and Michael had been sleeping the previous night. The social worker reported her suspicions of child abuse to the SRS.
Debbie testified that on July 7, 1989, she, Mark, and Michael had spent the night at Mark’s mother’s house. Michael woke up at 1:30 a.m. and was placed next to Mark on the bed. At approximately 3 a.m., Michael woke up crying again. Debbie testified she fixed Michael a bottle, returned, and gave it to Mark, who started feeding Michael. Debbie then noticed the bruises on Michael. She testified she had no idea how they occurred.
The doctor who examined Michael at the hospital for these bruises was of the opinion that the bruises were not accidental.
Michael spent several days in the hospital and was then placed in a foster home by SRS.
Dustin Koelliker, a friend of Debbie’s, who had lived with the Hupps at several different time periods, testified at trial that Debbie gave him inconsistent explanations for the bruises and why Michael was in SRS custody. He testified that at one point when Mark was present, she told him that Michael was injured in a car accident. He testified that Debbie later told him, while Mark was not present, that she had been in the room with Mark and Michael, had left, and returned to find Mark shaking the baby. Koelliker also testified that he had seen Mark “tap” Michael on his bottom too hard.
A number of people at the hospital testified that Mark’s behavior with the baby was inappropriate. Laurie O’Shea-Parsons, a social worker at the hospital, observed that Mark kept asking nurses, “When can we make him go to sleep?” and “Why is he crying?” Several nurses saw Mark repeatedly try to make Michael take the pacifier when he was already asleep. He would pat the sleeping baby hard enough to wake him up. The nurses had to tell him to leave the baby alone. When personnel were trying to draw blood from Michael, Mark yelled at Michael for crying.
When Michael was in the hospital on another occasion, one nurse saw Mark try to hold Michael’s head down in order to force him to go to sleep.
The Hupps were referred for psychological testing. The psychologist testified that when Mark came into his office, he picked up the padded arm which had broken off of a chair and said that it looked like “something that he could discipline his kids with.”
A resident in the Hupps’ apartment complex testified that he would hear a baby crying in the Hupps’ apartment, and then he would hear Mark telling the baby to shut up.
Michael died on September 28, 1989. Debbie testified that on the night of September 27, 1989, Michael slept in his crib in the bedroom. She testified that she and Mark stayed up all night playing cards and Nintendo. She testified that at 6:30 a.m., Mark went to rent videotapes. She testified that when he returned, they both watched one tape, and she watched half of another while Mark went to bed.
Debbie testified that she started to go to bed and stopped to check Michael’s heart monitor and noticed that it had gone off and was on “slow heart.” (Michael suffered from sleep apnea.) Debbie testified that Michael was okay, but that the alarm went off and Mark woke up. She testified she asked Mark if she should fix Michael a bottle and that she then went into the kitchen to do so. She testified that she heated the bottle by running it under hot water, so it took ten to fifteen minutes.
Debbie testified that while fixing the bottle, she did not hear any noises from the bedroom until Mark yelled her name and she returned to the bedroom. She testified that Mark told her he had picked up Michael from the crib and that he was wiggling around and had fallen to the floor. Debbie testified that something was obviously wrong with Michael, that there was a knot on the right side of his head that was growing larger. She testified that she saw Michael was not crying and that when she spoke to him he did not look up at her.
Debbie testified that because they did not have a phone, Mark ran to a nearby phone to call an ambulance while she fixed an ice pack.
An off-duty paramedic heard the call and was first to arrive. He testified Debbie was in the corner crying and that Mark repeated his story about dropping Michael. The paramedic said Michael’s condition was critical—that he was suffering from some form of a central nervous system dysfunction or a head injury. He noted a large hematoma on Michael’s head.
When Michael arrived at the hospital, he was in critical condition. His blood pressure kept dropping and he stopped breathing. A C.T. scan showed a depressed skull fracture. The physicians operated immediately to elevate the bone and take the pressure off of Michael’s brain. Michael was in a coma by the time the operation started, and suffered cardiac arrest repeatedly during the two-hour operation. Michael died soon after.
One of the physicians who treated Michael, Dr. Poulton, had intensively studied injuries to children resulting from abuse. He testified that the injury to Michael could not have occurred in the manner in which Mark claimed. The floor at the Hupps’ apartment was concrete and covered with padding and carpeting. Poulton testified that an infant’s skull is extremely flexible, and that a fall from three to four feet onto such a soft floor could not cause such an injury. He testified that a severe blow is required to fracture an infant’s skull.
The autopsy showed multiple fractures (severely depressed) to the skull and subdural hemorrhaging, including hemorrhaging at the back of the brain on both sides. The membrane covering the brain was torn loose on both sides. A piece of skull bone was broken away and attached only by a membrane. The pathologist who conducted the autopsy testified to the same points as had Dr. Poulton: that an infant’s skull is pliable; that it would take a strong blow to cause this type of injury rather than a fall of a few feet; and that, from the nature of the wound and the absence of cuts to the skin, he felt that the most likely weapon was a fist.
Mark testified that he had never hit Michael. He testified that Michael started wiggling and he dropped him.
Following Michael’s death, a social worker at the hospital told Mark that there would be an autopsy. Mark responded, “That means first degree murder. I didn’t mean to do it.”
A resident at the Hupps’ apartment complex testified that after the death she spoke to Debbie, who told her that Mark did not mean to do it, but that he just got tired of Michael’s crying and fussing all the time.
A friend of Debbie’s, Linda Graham, testified that after Michael’s death, Debbie told her that the night before Michael died she had been carrying Michael and had slipped and fallen, and Michael had hit his head on a doorknob. Graham testified, however, that Debbie’s stories about the incident varied and “just all kind of run together and changed every time you heard it.”
At trial, Debbie was asked about this incident. She testified that the incident did occur, but that she did not tell anyone about it until after Michael died.
Mark was charged with first-degree murder in connection with child abuse (contrary to K.S.A. 1989 Supp. 21-3401[c]). The statute includes, as a definition of first-degree murder, “the killing of a human being committed ... in the perpetration of abuse of a child, as provided in K.S.A. 21-3609 and amendments thereto.” K.S.A. 1989 Supp. 21-3401(c).
The jury was instructed on first-degree murder in connection with child abuse. The defense argued for an instruction on involuntary manslaughter, based on two underlying grounds. The trial court held that all evidence tending to negate first-degree murder, if believed, would show that the defendant was not guilty, rather than guilty of a lesser included offense. The trial court also found the evidence of the underlying felony of child abuse was strong rather than weak.
On appeal, the defense argues that the trial court should have instructed the jury on involuntary manslaughter, based on three different underlying theories. The defense argues that the judge should have instructed the jury on involuntary manslaughter based on “endangering a child in a wanton manner” (K.S.A. 21-3608), or involuntary manslaughter based on a “lawful act of disciplining a child committed in a wanton manner.” These two grounds were argued at trial. On appeal, the defense also argues for involuntary manslaughter based on simple battery.
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 instructions on involuntary manslaughter based on battery, a court is under an affirmative duty to give an instruction on a lesser included offense, if warranted by the evidence, even if a defendant fails to request it (and so long as he does not object to it). See K.S.A. 21-3707; State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987). This court will consider the battery argument even though it was not raised at trial in this case.
Involuntary manslaughter is a lesser included offense of murder. State v. Gregory, 218 Kan. 180, 181-83, 542 P.2d 1051 (1975). Normally, the test of whether an instruction on a lesser included offense is required is whether there is any substantial evidence tending to prove that lesser included offense. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 926 (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.” Gregory, 218 Kan. at 183. 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 of felony murder when the evidence of the underlying felony is weak or inconclusive. State v. Sullivan & 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, Syl. ¶ 2, 552 P.2d 931 (1976), overruled on other grounds 226 Kan. 308, 597 P.2d 1108 (1979).
We first must determine whether to apply this rule to first-degree murder by abuse of a child. This court previously held that felony murder could not be based on child abuse because of the merger rule. State v. Prouse, 244 Kan. 292, 767 P.2d 1308 (1989); State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), aff'd on reh. 244 Kan. 193, 767 P.2d 1308 (1989). The legislature then amended the first-degree murder statute to make a killing committed in perpetration of abuse of a child to be first-degree murder.
In Lucas, the legislature was invited by a majority of this court to adopt a felony-murder statute covering the death of a child occurring during the commission of child abuse. This court said: “If additional protection for children is desired, the Kansas Legislature might well consider legislation which would make the death of a child occurring during the commission of the crime of abuse of a child, or aggravated battery against a child, first- or second-degree felony murder.” State v. Lucas, 243 Kan. at 473. (Emphasis supplied.)
The legislature responded by amending the first-degree murder statute twice. We now have two first-degree murder statutes (K.S.A. 1990 Supp. 21-3401 and K.S.A. 1990 Supp. 21-3401a). The statutes are considerably different in other respects, but for the issues raised in this case, the salient parts are similar. Hupp was charged with violating K.S.A. 1989 Supp. 21-3401 (now K.S.A. 1990 Supp. 21-3401). The pertinent part of -3401 defines first-degree murder as “the killing of a human being committed: . . . (b) in the perpetration of or attempt to perpetrate any felony, or (c) in the perpetration of abuse of a child, as provided in K.S.A. 21-3609 and amendments thereto.”
When the legislature adopted child abuse murder as first-degree murder, it did so using the same language of felony murder as set forth in the same statute. The legislature intended felony murder and the rules concerning lesser included offenses in felony-murder cases to apply to child abuse murder.
In felony murder, premeditation and intent are transferred from the underlying felony; thus, the need for instructions on lesser included child abuse murder should be analyzed in the same manner as for other felony murder.
The analysis of whether the jury should have been instructed on lesser included offenses includes two steps. The first step in analyzing this issue is to determine whether the evidence of child abuse was so strong that no instruction on lesser included offenses was necessary. If the evidence of the underlying felony was strong, no instruction on the lesser included offenses need have been given. Then, if the evidence was not strong, this court would consider whether there was evidence on which a jury could have found the defendant guilty of the lesser included offenses. If there was not, no instruction on lesser included offenses need have been given.
The evidence in this case was entirely circumstantial; no one testified to actually seeing Mark hit Michael. The fact that the evidence was circumstantial, however, should not be determinative, as a conviction based on circumstantial evidence is permissible. In State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990), this court said:
“A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989). When the sufficiency of the 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. Smith, 245 Kan. at 392.”
Child abuse is defined by K.S.A. 21-3609 as “willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.”
The circumstantial evidence here shows that Debbie left a healthy baby in a crib. When Michael called out and she returned, the baby had a head injury that proved to be fatal. There is also a great deal of evidence to show that, in the past, Mark got angry and responded inappropriately when Michael cried; e.g., he yelled at him when nurses were drawing blood and witnesses heard Mark yelling at him while he was crying in the apartment. Further, there is evidence that Mark spanked Michael, although Michael was less than four months old. Additionally, there were statements made by Mark which, according to how one interprets them, are incriminating: “That means first degree murder. I didn’t mean to do it.”
There is also evidence to the contrary. First, Mark testified that he did not strike the baby. Second, Debbie testified that, at some point prior to this, she had slipped while holding Michael, and he had hit his head on a doorknob. However, Debbie’s statements about the doorknob were suspiciously ambiguous and contradictory. She told a friend different versions of the same story.
The evidence only presents the jury with two choices: either Mark hit Michael with such force as to crush his skull and kill him or there was an accident—Mark dropped Michael or Debbie hit Michael’s head on a doorknob when she slipped.
Child abuse includes a cruel beating or infliction of cruel and inhuman corporal punishment. K.S.A. 21-3609. In State v. Danforth, 125 Wis. 2d 293, 371 N.W.2d 411 (Wis. App. 1985), aff'd 129 Wis. 2d 187, 385 N.W.2d 125 (1986), the Wisconsin Court of Appeals considered whether intent to injure is an element of the Wisconsin child abuse statute. The court held that the word “cruel” does not establish malice as an element and that the section does not contain an element of intent to injure; it only requires an intent to do the act which caused injury. 125 Wis. 2d at 295.
An intent to injure is not implicit in “cruelly beating or inflicting cruel and inhuman corporal punishment.” It is the act of hitting and hurting that is made a crime.
The fact that Mark may have only intended to stop Michael from crying is irrelevant. Child abuse does not require more than one blow. A blow that crushes an infant’s skull and kills the child is, as a matter of law, a “cruel beating.”
If Mark hit Michael and crushed his skill, then the proper charge is felony murder by child abuse.
As to the proposed lesser included offenses, in battery, the only requirement is that a defendant intentionally touch or apply force and that it be done in a rude, insolent, or angry manner. Assuming, without deciding, that battery is a lesser included offense of child abuse, and, assuming involuntary manslaughter based on battery is a lesser included offense of first-degree child abuse murder, because the evidence here shows that Mark either cruelly beat Michael or he did not hit him at all, no instruction on. the potential lesser included offense of involuntary manslaughter based on battery was required.
Hupp argues that in 1944 this court, in State v. Severns, 158 Kan. 453, 148 P.2d 488 (1944), reversed a murder conviction of a man who beat a child to death for the trial court’s failure to give an instruction on involuntary manslaughter in the first degree under the theory that the defendant might have committed an unlawful act of misdemeanor battery in a wanton manner.
As we read State v. Severns, it first holds that the felony-murder instruction given was erroneous because it instructed the jury “ ‘[m]urder at the common law is also the unlawful killing of a human being committed in the perpetration of an [sic] attempt to perpetrate any crime or misdemeanor nor amounting to a felony ” (emphasis supplied) (158 Kan. at 456), and because the jury was instructed on first-degree premeditated murder. The jury was also instructed on second-degree murder and manslaughter in the second, third, and fourth degrees, but not on first-degree manslaughter.
At that time, G.S. 1935, 21-407 defined manslaughter in the first degree as:
“The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree. ”
Under this statute, when mansláughter was charged, an explanation of common-law murder was necessary. The instruction on common-law murder, however, made no sense when manslaughter was not charged. The court held that the felony-murder instruction was erroneous because it allowed a conviction when the underlying crime was a misdemeanor. The court also held that, under the facts, a first-degree manslaughter instruction should have been given.
In 1944, mistreatment of a child was a misdemeanor and there was no felony-murder statute covering the death of a child occurring during abuse of a child, contrary to K.S.A. 21-3609. A jury could have concluded that the killing was unintentional, in which case the greatest crime proven would have been manslaughter based on child abuse. Because child abuse is now a felony, State v. Severns does not serve as precedent to find error.
The same is true of any lesser included offense of involuntary manslaughter based on the lawful act of discipline done in an unlawful or wanton manner. Because the evidence shows that either Mark cruelly beat Michael or he did not hit him at all, no instruction on this lesser included offense is needed.
This still leaves for our consideration the defense’s suggestion of involuntary manslaughter based on endangering a child. K.S.A. 21-3608 provides:
“(1) Endangering a child is willfully:
“(a) Causing or permitting a child under the age of eighteen (18) years to suffer unjustifiable physical pain or mental distress; or “(b) Unreasonably causing or permitting a child under the age of eighteen (18) years to be placed in a situation in which its life, body or health may be injured or endangered.
“(2) Endangering a child is a class A misdemeanor.”
Subsection (l)(a) was held unconstitutionally vague in State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979).
The defense’s only argument for suggesting involuntary manslaughter based on endangering a child is that Mark did not look at Michael to see if he was hurt after Debbie allegedly told him that she had slipped and hit Michael’s head on a doorknob, thereby placing him in a situation in which his life was endangered. It is doubtful whether this even meets the definition of endangering a child, which contains the requirement that it be willful. At best, this action could be negligent. Even then, the testimony shows that Michael was acting normally prior to Debbie going to the kitchen and Mark allegedly dropping him. No reasonable jury could convict on this potential lesser included offense based on defendant’s theory of why endangering a child would be applicable.
By a motion for a new trial, the defense argued that the terms contained in K.S.A. 21-3609 “cruelly beating, and inflicting cruel and inhuman corporal punishment” are unconstitutionally vague. The trial court held they are not vague.
In determining whether a statute is constitutional, the constitutionality of the statute is presumed and all doubts must be resolved in favor of its validity. State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 (1980). Before the statute may be stricken down, it must clearly appear the statute violates the constitution. Huffman, 228 Kan. 186, Syl. ¶ 1. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Huffman, 228 Kan. 186, Syl. ¶ 1.
This court considered whether the predecessor to K.S.A. 21-3609 was vague in State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968). The statute provided:
“Any person who shall torture, cruelly beat or abuse any child under the age of sixteen (16) years or who shall willfully inflict upon such child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition shall be deemed guilty of a felony and upon conviction shall be subject to punishment by imprisonment for a term not exceeding two (2) years.” K.S.A. 1967 Supp. 38-714.
This court held:
“The fact that the trial court sees fit to define the language used in a statute by governing case law or common dictionary meaning does not indicate indefiniteness. It is only required that the phrase used provides reasonable definite standards which one reading the statute can understand and contemplate. [Citation omitted.] We hold that words like ‘beat,’ ‘abuse,’ ‘torture,’ ‘cruelty’ and ‘traumatic’ provide such standards.” Fahy, 201 Kan. at 370.
We see no reason to hold that Fahy was incorrectly decided. Hupp argues that the result reached in State v. Meinert, 225 Kan. 816, supports our overruling State v. Fahy. In State v. Meinert, a majority of this court held the phrase “unjustifiable physical pain,” 225 Kan. at 819, to be unconstitutionally vague because it could cover anything from a minor spanking or slapping to a severe beating, depending upon the personal beliefs of the individual hearing the case. We have no such problem concerning K.S.A. 21-3609 as the words used in it are more definite.
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Per Curiam:
This is an original proceeding in discipline filed by the disciplinary administrator against Willis Boyd Evans, Jr., of Wichita, Kansas, an attorney admitted to the practice of law in Kansas.
The complaint filed against respondent alleges violations of Canons 1, 6, 7, and 9 of the Code of Professional Responsibility, Supreme Court Rule 225 (1990 Kan. Ct. R. Annot. 164), and the Model Rules of Profession Conduct (MRPC) 1.3, 1.4, 1.15, and 1.16, Supreme Court Rule 226 (1990 Kan. Ct. R. Annot. 210).
The facts are not in dispute. In June 1987, respondent was retained by Ron Caron, the complainant, to collect a trade debt of $6,351.32. Respondent agreed to represent Caron for 25% of the proceeds collected.
In September 1987, respondent collected $500 on this debt and, on September 17, 1987, forwarded $375 to complainant. Respondent then received the following payments from this debt, which were deposited into his trust account:
11/20/87 ................... $ 500
12/31/87 ................... 1,500
9/28/88 .................... 500
During the time that these proceeds remained in respondent’s trust account, the balance of the account frequently fell below the amount of proceeds collected on the Caron debt.
Respondent informed complainant in August 1988 that proceeds had been received on the debt, but he failed to forward the money collected. Complainant wrote to respondent on September 27, 1988, expressing his dissatisfaction with respondent’s handling of the collection matter, and sought copies of all correspondence and court notices concerning the case.
In a letter dated January 5, 1989, respondent was advised that complainant had retained another attorney to represent him in the collection proceedings. In the letter, the attorney asked respondent to contact him to make arrangements to obtain the files and other records. An additional- letter to respondent, dated March 10, 1989, indicated that complainant’s new counsel had attempted unsuccessfully to contact respondent by phone. In the letter, the new counsel arranged to be at respondent’s office at a particular time to pick up complainant’s files.
A complaint was filed with the disciplinary administrator’s office in March 1989. A letter from the disciplinary administrator was sent to respondent on March 29, 1989, informing him of the complaint and advising him that the matter would be investigated. Attempts were made to contact respondent about the complaint, but respondent did not cooperate with the investigation.
On November 29, 1989, respondent paid $2,900 to complainant, which represented all the monies collected on the account, a refund of the $125 fee retained after receipt of the first payment, and interest.
The Kansas Board for Discipline of Attorneys held a hearing on the complaint and, on April 10, 1990, filed its report with the Clerk of the Appellate Courts. At that hearing, the parties stipulated to the alleged misconduct prior and subsequent to March 1, 1988. The panel unanimously concluded that, prior to March 1, 1988, respondent violated DR 1-102(A)(6) (1990 Kan. Ct. R. Annot. 165); DR 6-101(A)(3) (1990 Kan. Ct. R. Annot. 188); DR 7-101(A)(2) (1990 Kan. Ct. R. Annot. 193); DR 9-102(B)(1), (3), and (4) (1990 Kan. Ct. R. Annot. 204); and Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141). The panel further found that, after March 1, 1988, respondent violated Supreme Court Rule 226, MRPC 1.3 (1990 Kan. Ct. R. Annot. 219); 1.4 (1990 Kan. Ct. R. Annot. 220); 1.15(d)(2)(i), (iii), and (iv) (1990 Kan. Ct. R. Annot. 247); and 8.4(g) (1990 Kan. Ct. R. Annot. 290). The panel recommended that the respondent be suspended from the practice of law for two years. The panel further recommended the suspension be effective immediately because it believed respondent was suffering from a diminished ability to function.
We note that the panel found numerous mitigating factors, the most important being that the respondent remitted all funds collected, and that he was obviously suffering from a mental or emotional disability or impairment. The panel also found numerous aggravating factors, most of which revolved around respondent’s mental and emotional state at the time of the hearing. Specifically, the panel was concerned about his apparent functional disability and his failure to acknowledge the problems or to commence the treatment recommended by Dr. Theodore Moeller, a clinical psychologist.
Dr. Moeller conducted a complete psychological evaluation of respondent and diagnosed him as having major recurrent depression, alcohol dependency, and an adjustment disorder with mixed emotional features. Dr. Moeller described the depression as a narrowing of perception which made respondent unable to perceive as wide a spectrum of feelings or experiences as those who are not depressed. The behavior associated with this type of depression includes lack of motivation, procrastination, and lack of appropriate judgment at times, which creates an inability to deal with issues as they arise. Dr. Moeller assured the panel that respondent was not malingering. Dr. Moeller also noted that the depression caused diminished intellectual ability. The results of the overall tests indicated that, at times in the past, respondent’s I.Q. test results were much higher, and the doctor believed they could be higher again in the future.
Concerning the second diagnosis of untreated alcohol dependency, the doctor indicated that, although respondent had abstained from drinking for several months, adequate treatment to overcome the problems that arose from the drinking required some kind of rehabilitative effort, such as the widely accessible Alcoholics Anonymous.
The third diagnosis of “adjustment disorder with mixed emotional features” is an emotional disorder that occurs in almost every person’s life when some type of adjustment is required. Dr. Moeller noted that respondent was expending more energy and worry on the disciplinary complaint than on the adjustment disorder.
Dr. Moeller recommended a treatment plan requiring respondent to do a number of things. If these things were done, and if respondent was supervised by a peer, Dr. Moeller believed respondent could continue to practice law while learning to deal with his depression. These things included attendance at Alcoholics Anonymous meetings, psychotherapy, antidepressant medication as necessary, and family involvement.
Dr. Moeller testified that, assuming respondent did all the things recommended, his prognosis was favorable. The doctor indicated he thought respondent would be in group therapy at least 12 months, at which point he would have sufficiently recovered some awareness that would enable him to determine whether he was continuing to benefit from his participation. The doctor also believed that marital counseling should be continued on an as-needed basis and that AA participation should be on a regular basis, attending at least once a week forever. During the course of his testimony, the doctor asserted and reasserted his belief that respondent would be able to handle a legal practice if supervised by a peer.
The panel was obviously concerned with respondent’s ability to function as a practicing attorney while he is receiving treatment for his depression. The disciplinary administrator, on the other hand, endorsed the respondent’s proposed plan of supervision. The disciplinary administrator continues to support the plan. Although noting that respondent’s condition and appearance at the time of the hearing caused concern, the disciplinary administrator expresses his belief that respondent can practice law competently and honestly. He points out that the hearing on the disciplinary complaint was conducted in March 1990; since that hearing, the disciplinary administrator has been in contact with respondent’s counsel, who indicates that respondent seems to be functioning well, is attending AA meetings, and is receiving therapy. Based upon the information provided by respondent’s counsel and personal meetings with respondent, the disciplinary administrator expresses his belief that respondent should receive an opportunity to continue practicing law under the suggested plan.
After a careful review of the record, we are of the opinion that imposition of discipline should be suspended and that respondent be placed on probation.
It Is The Order Of The Court that imposition of discipline against respondent Willis Boyd Evans, Jr., be and is hereby suspended and that he be placed on probation for two years under the following conditions:
1. That he practice under the supervision of Ronald J. Wilkinson;
2. that he continue in regular AA meetings on a weekly basis;
3. that he continue in therapy sessions with Dr. Moeller until released by Dr. Moeller and, while in therapy, follow all of Dr. Moellers requests;
4. that respondent submit quarterly reports from Dr. Moeller to the disciplinary administrator reporting whether respondent is attending sessions regularly and following requests satisfactorily;
5. that two signatures be required on the respondent’s trust account, that of Evans and that of Wilkinson, and that monthly reconciliations of that trust account be completed by both; and
6. that he not violate any of the Model Rules of Professional Conduct.
Mr. Wilkinson, as supervising attorney, shall report respondent’s progress to the disciplinary administrator on a quarterly basis. The disciplinary administrator shall report to this court at the end of each year of respondent’s probation.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to the respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It Is Further Ordered that this order be published in the Kansas Reports and that respondent pay the costs of these proceedings. | [
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Now on this 11th day of January, 1991, the court finds that, on October 27, 1989, respondent Norman D. Wilks was disciplined by suspension for one year and directed to pay any applicable costs and to furnish proof of compliance with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155). In re Wilks, 245 Kan. 577, 781 P.2d 246 (1989).
Before resuming the practice of law, the respondent shall fulfill the court’s rules regarding registration, Supreme Court Rule 208 (1990 Kan. Ct. R. Annot. 143), and continuing legal education, Supreme Court Rule 801 et seq. (1990 Kan. Ct. R. Annot. 355).
The court further finds that the disciplinary administrator has verified that respondent has fully complied with the order of discipline entered by this court on October 27, 1989, that respondent should be discharged from any further obligation in this matter, except as set out above, and that this proceeding is closed.
It Is So Ordered. | [
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Starting September 2, 1988, and continuing through October 1, 1990, ten complaints alleging unethical conduct were filed with the disciplinary administrator’s office against respondent Howard Lee Lyden, of Topeka, Kansas, an attorney admitted to practice law in the State of Kansas. The complaints generally allege neglect, abandonment of clients, failure to communicate with clients, and conversion of various amounts of money belonging to several different clients.
Two of the complaints were set for evidentiary hearing on March 6, 1990. At respondent’s request, this court placed him on disability inactive status pursuant to Supreme Court Rule 220 (1990 Kan. Ct. R. Annot. 159) on March 28, 1990.
On November 23, 1990, pursuant to correspondence from the disciplinary administrator, respondent voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1990 Kan. Ct. R. Annot. 154).
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 Howard Lee Lyden 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 Howard Lee Lyden 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
Burch, J.:
The plaintiff obtained a judgment against the defendant for damages resulting from personal injuries which he alleged he sustained through the defendant’s negligence. His evidence tended to show that he was riding upon one of the defendant’s passenger-trains, claiming the rights and privileges of a passenger for hire. As he neared the station marking the end of his journey the conductor in charge of the train ordered and directed him to go out upon the platform of the car in which he was riding and to' get down upon the lower step, and then without stopping the train ordered and directed him to jump off, which he did to his injury.
The court gave the jury two separate instructions in which a comparison of the plaintiff’s negligence with that of the defendant was specifically authorized as a means of determining the case. The court did not stop with a recognition of degrees of negligence according to the classification of the Roman law, but adopted and presented to the jury the doctrine of comparative neg ligence. In a number of early cases this court yielded its assent to the'academic classification of care, diligence and prudence into three degrees, slight, ordinary and extraordinary, and the corresponding classification of negligence into the three degrees of slight, ordinary and gross. But the doctrine of comparative negligence has never been indorsed in this state. (K. P. Rly. Co. v. Pointer, 14 Kan. 37, 66; U. P. Rly. Co. v. Young, 19 Kan. 488 [concurring opinion of Valentine, J., p. 495]; K. P. Rly. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298; C. K. & N. Rly. Co. v. Brown, 44 Kan. 384, 24 Pac. 497; A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 501, 40 Pac. 919; Railroad Co. v. Henry, 57 Kan. 154, 45 Pac. 576.) In the Morgan case it was said:
“This instruction adopts the doctrine of comparative negligence, and is therefore erroneous. Under this instruction, if the plaintiff and the railroad company were both guilty of negligence contributing to injuring and killing the stock, the plaintiff would be entitled to recover damages if his negligence was less than that of the company. The law has not been thus announced by this court. We do not indorse the doctrine of comparative negligence. The rule is properly laid down in Sawyer v. Sauer, 10 Kan. 466. If the trial court had instructed the jury that if the negligence of the plaintiff was only slight, or the remote cause of the injury, he might still recover, notwithstanding such slight or remote cause, the instruction would be within the rule; but when the jury were instructed to compare the negligence of the plaintiff with that of the defendant, the direction passed beyond the authoritative line, and became misdirection. This court has recognized degrees of negligence in many cases, but has never sanctioned any instruction permitting a jury to simply compare the negligence of the parties.” (31 Kan. 80.)
This being true, the instructions referred to were wrong. Other instructions were given of which no complaint is made, but they did not cure the error, and it is impossible to say the misdirection was not prejudicial.
It is a noteworthy fact that for many years the sub ject of degrees of negligence has been accorded no consideration in the administration of the law of this state. Attorneys have avoided it in requests for instructions, the trial courts have ignored it, and this court has made no effective application of it as a determining factor in the rights of litigants. After long experience the old classification has been dropped as useless by the common consent of practical lawyers and practical judges, and the doctrine may as well be taken out of the law governing personal-injury cases here and now.
The question always is, Has the care, diligence or skill demanded by the peculiar circumstances of the particular case been exercised ? If so, there is no negligence. If not, there is negligence. In this case the defendant, in the transportation of its passengers, was bound to exercise the utmost caution for their safety. The standard of its duty involved the highest diligence. If it failed in this it was negligent, and that is all. Nothing can be gained by the theoretical division of the defendant’s diligence and negligence into degrees, and if it be done more than likely perplexity and confusion would result. The plaintiff was not negligent if he exercised reasonable care, and it is enough to tell the jury so, although it should be conceded he took some chance in jumping and would have been absolutely safe had he remained on the train. His conduct is to be estimated by what a reasonably prudent man would have done under the circumstances, and since the law takes no account of so-called “slight negligence” on his part it ought not to be introduced merely for the purpose of being ignored. Reckless disregard of security, wantonness or other equivalent of bad faith and the wilful or malicious disposition to injure all involve something else than negligence. The present state of the law upon the subject is well summed up in volume 21 of the American and English Encyclopaedia of Law, at page 459, as follows:
“While not infrequent references are still found in judicial discussions of the subject to the classification of negligence into degrees, the tendency of modern authority and the weight of the best-considered cases are now opposed to this view, holding that in every case negligence, however described, is merely a failure to bestow the care and skill which the situation demands, and hence it is more, accurate to call it simply negligence. Some decisions even go further, and declare that the classification of negligence into degrees is a matter of pure speculation and of no practical consequence; that it is useless and tends to confusion, and that, in fact, it is unsafe to base any legal decision on distinctions in the degrees of- negligence.”
Other errors assigned depend upon the evidence, and since this may not be the same at another trial they need not be considered.
The judgment of the district court is reversed, and the cause is remanded for a new trial.' | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enjoin the building of a sewer under a contract made between the city of Abilene and the Abilene Plumbing & Heating Company. It was brought by lot-owners to prevent the performance of the contract and the levy of special assessments upon their property to pay for the sewer, upon the alleged ground that a valid estimate of the cost of construction had not been made. It was shown that the city had procured Burns & McDonnell, of Kansas City, to act as engineers in making plans, specifications and estimates for a sewerage system in Abilene, that they made the estimate of the cost of construction under which the contract was made, and that the work was in progress when the suit was begun.
The principal objection to the estimate and contract was that the engineers employed to make the estimate were non-residents of Abilene, and that they were not regularly appointed and installed as city engineers. They were employed to act as engineers in behalf of the city to plan and supervise the building of a sewerage system in Abilene, and in the contract of employment it was provided that they should give a bond in the sum of $5000 for the faithful performance of their duties. They did not act generally for the city, nor perform any function as city engineers other than that connected with the construction of sewers. It appears that at the time they were designated and employed as engineers the city did not have a regularly appointed city engineer. Local engineers were designated by the city from time to time to look after sidewalks and other specific work. In the records of the city pertaining to the letting of the sewer contracts Burns & McDonnell are referred to as city engineer, and the estimate of the cost of the sewer as one made by them as city engineer. In the contract between the city and the Abilene Plumbing & Heating Company they are spoken of as consulting engineers. The trial court found “that the estimate of the cost of construction of sewers in sewer district No. 3 was not made by any person acting in the capacity of city engineer for the city of Abilene,” and it was therefore held that the estimate and contract were illegal. On this ground alone a permanent injunction was granted against the levy of any assessment or the collection of any tax upon the plaintiffs’ property to pay for the sewer.
Abilene is a city of the second class, and the statute relating to contracts for improvements in cities of that class provides:
“Before the city council shall make any contract for building bridges or sidewalks, or for any work on streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate.” (Gen. Stat. 1901, § 1009.)
The evident purpose of the provision is not only to enable the council to act with intelligence in making the contract for an improvement, but it is also for the protection of the owners of property who are subject to assessment for such improvement. When an estimate is filed an owner of property who may be assessed has an opportunity to inquire into the fairness and correctness of the estimate and the approximate amount of the burden which will be imposed on his property, and may then determine whether to favor or resist the improvement. There is also the further protection that no contract can be made at a price in excess of the estimate. The provision differs materially from most of those requiring an estimate for a proposed improvement in that -it does not require a detailed estimate or statement of the items which enter into the improvement and the cost of each, nor does it require the estimate to be made under oath.
It is true, as contended, that when the statute provides a method for imposing and collecting assessments it should be strictly pursued, and that the provisions for the protection of the taxpayer must be closely followed. (Hentig v. Gilmore, County Clerk, 33 Kan. 234, 6 Pac. 304.) It would appear, however, that there has been substantial compliance with the statute and the requirements for safe-guarding the interests of taxpayers in this case. The- estimate of the cost of the sewer was made by engineers chosen by the mayor, whose selection was ratified by the action of the council. -That they were efficient engineers and faithfully performed the task assigned to them is hardly a matter of dispute. The only ground of invalidity found by the trial court was that they were not acting in the capacity of city engineer. Although not regularly appointed and installed in the office of city engineer, they were de facto city engineers as to this improvement. While they did not assume to be in possession of the office for all purposes nor vested with all the powers and duties of a city engineer, they did act for the city in the matter of this improvement, including the making of the estimate; and their work was as efficiently and satisfactorily done as if they had been residents of the city and had all the qualifications of city engineers. The engineering done by them was a public function. The interests of the city required that a capable engineer should be chosen, and that the work should be done. No one was in possession of the office when the selection of the engineers was made. They were chosen by the mayor, who had authority to appoint a city engineer. In pursuance of the authority conferred by the mayor .and council these engineers acted for the city and were recognized by the authorities and others to be acting for the city. The official recognition is shown in the record of the proceedings of the council when the contract for the construction of the sewer was awarded. After reciting the opening and reading of the bids the following reference is made to the estimate in question:
“The city engineer’s estimate on sewer district No. 3, showing estimated cost of $5957, was then read by the city attorney and ordered placed on file.”
Then follows a motion, which was adopted, reciting that the Abilene Plumbing & Heating Company was the lowest bidder, and that it was awarded the contract for constructing the sewers for $4178.46. It is in evidence that the company performed the work and has been paid for it by the city. It thus appears that Burns & McDonnell assumed and performed the functions of the city engineer, that they were recognized by the mayor and council as acting in that capacity, and the mere fact that they were not regularly appointed and installed or that they were ineligible to appointment did not prevent them from becoming de facto city engineers, nor deprive their acts of validity when questioned by third parties. They might not be able to defend their title to the office as against an attack by the state, but the public is interested in the functions performed by these engineers in behalf of the city more than it is in the regularity of their appointment or their technical title to the office. The purpose of the statute in requiring an estimate appears to have been substantially accomplished, and, considering that the authority of the engineers emanated from those having a right to appoint, the manner in which their duties were performed, and the recognition which they received, we think that the estimate made by them can not be held invalid on the complaint of plaintiffs on the grounds stated by the district court; nor can plaintiffs avoid paying their proportionate share of the benefits resulting from the construction of the sewer-because of defects in the method of appointing the engineers or of the ineligibility of the persons chosen.
There is nothing substantial in the contention that there is inconsistency between the estimate and the contract, nor that the estimate is not properly itemized. As we have seen, the statute does not require an itemized or detailed estimate.
The judgment of the district court is reversed, and the cause remanded for further proceedings. | [
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Per Curiam:
The state of Kansas, on the relation of the county attorney of Sumner county, brought an action of quo warranto against Henry H. Nelson, L. J. Howerton, and Robert Downing, who claimed to be the clerk, treasurer, and director, respectively, of school district No. 114 in Sumner county, to oust them from the exercise oi the powers, duties and functions of the-board of directors of the school district named and to determine the validity of the corporate organization of such district.
The petition alleged that the defendants assumed to hold their respective offices and to exercise the functions pertaining thereto under and by virtue of chapter 370 of the Laws of 1907, entitled “An act disorganizing school districts Nos. 114 and 170, in Sumner county, Kansas, as now organized, and organizing and creating a school district of the territory which now constitutes said districts Nos. 114 and 170, and which district shall be known as district No. 114.”
The defendants answered that' district No. 114, created by the act referred to, was a lawful corporation created by law, acting and doing business as such; that they were first appointed to office by the county superintendent of Sumner county as the act provided; and that afterward they were lawfully elected to their respective offices, had duly qualified, and were acting officers of school district No. 114. Other facts were pleaded, which, however, constituted no defense to the action if the law under which they claimed official power is void.
On the trial the state introduced in evidence the act referred to, and rested. The defendants then made an offer to prove the immaterial facts stated in their answer, which offer was rejected, and the court found for the defendants on the ground that the act under which they claimed to hold office is a constitutional and valid act of the legislature of the state of Kansas. The state prosecutes error, claiming that the act is special and that a general law could have been made applicable to the subject.
Although it did so, it was not necessary that the state should allege in its petition that the act was void, and the introduction in evidence of the act itself amounted to nothing. Nor was it necessary for the state to plead and prove the conditions existing in the territory affected or in other school districts in the .state in order to question the constitutionality of the act on the ground that a general law could have been made applicable. The rules by which the courts will determine the question if a general law might have been made applicable to the subject of a special act. are stated in the case of Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583, and in the case of The State v. Nation, ante, p. 394. Under the'decisions just cited, and the decisions in Gardner v. The State, 77 Kan. 742, 95 Pac. 588, and Deng v. Scott County, 77 Kan. 863, 95 Pac. 592, the act assailed is void.
The judgment is reversed, and the cause is remanded with direction to enter judgment for the state on the pleadings in the cause. | [
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’The opinion of the court was delivered by
Benson, J.:
This is an action in quo warranto to ■oust the defendant from exercising the duties of judge ■of the city court of Chanute, on the ground that the act creating that court is in violation of the constitution. The act in question is chapter 179 of the Laws of 1907, entitled as follows:
“An act creating a court in the city of Chanute, Neosho county, Kansas, defining the jurisdiction thereof, providing officers therefor and defining their powers and duties, and limiting the jurisdiction of the justices of the peace of said city.”
The act purports to establish a court of record in the city of Chanute, with civil and criminal jurisdiction throughout the county of Neosho, and limited, in actions for the recovery of money and specific personal property, to the amount and value of $1000, and extending to other matters enumerated therein, with exclusive jurisdiction of offenses against the ordinances of the city. It also provides for the appointment of a judge, clerk, and marshal, prescribes the procedure and the details for the organization and maintenance of the court, and requires the city to furnish a court-room, pay the salary of the judge, and defray incidental expenses. The following facts are agreed upon:
“(1) That the city of Chanute is a municipal corporation, a city of the second class, situated in Neosho county, has a population of 8746, which does not include several additions adjacent to the city containing several hundred people; that at the time of the passage of the law referred to in the pleadings the said city had two justices of the peace, and still has, and one police judge, and still has, as provided by law.
“(2) That said Neosho county is a part of the seventh judicial district of the state of Kansas, which is composed of Neosho and Wilson counties; that there are three terms of the district court held in each county annually, as provided by law — at Fredonia, in Wilson county, and at Erie, in Neosho county, sixteen miles distant by railroad from Chanute; that the population of Neosho county is 23,414, and that of Wilson county 19,261, making a total population of said judicial district of 42,675.
“ (3) That the special act of the legislature creating the city court of Chanute, to wit, chapter 179, Session Laws of 1907, was duly and regularly passed, approved and. published; that the defendant has been a resident of the city of Chanute for and during the past five years, and is otherwise qualified, as provided in said act, was duly and regularly appointed judge of said court,, and duly qualified as such judge, as provided by said1, act, and has been exercising the rights and discharging the duties of judge of said court since about March 1, 1907.”
The plaintiff claims that the act in question is in conflict with several constitutional provisions; among; others, the following:
“All laws of a general nature shall have a uniform' operation .throughout the state; and in all cases where-a general law can be made applicable no special law shall be enacted; and whether or not a law enacted is. repugnant to this provision of the constitution shall be; construed and determined by the courts of the state.” (Const., art. 2, § 17.)
•The act being spécial, we must determine whether a. general law can be made applicable. The determination, of this question, since the adoption of the amendment, of 1906, which consisted in the addition of the last, clause to the section above quoted, rests upon the court. Several similar special statutes were enacted, before the amendment was adopted, by which city courts in. Kansas City, Topeka, Wichita, Leavenworth, Atchison, Fort Scott and Coffeyville were created, and also a. county court for Douglas county. The validity of the act establishing city courts in Kansas City was upheld in In re Greer, 58 Kan. 268, 48 Pac. 950. The act relating to the court of Topeka was held valid in Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993. These special laws were upheld on the ground that the legislature alone had the power to determine whether a general law could be made applicable. This is the power now given to the courts by the amendment (Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583), and in its; exercise the court must determine whether the legislature can by general laws provide for courts that will afford reasonable and proper facilities for the trans action of business of the nature cognizable in this and ¡similar tribunals.
It is urged that the situation is peculiar; that, ‘Chanute being so far from the county-seat, litigation in the district court is unduly expensive and burdensome to its citizens; that the greater part of the business of that court is from the city, which is a prosperous mining and manufacturing town, containing two-fifths of the population of the county. An examination •of the nine special laws enacted in the last six sessions of the legislature creating city courts shows a unity of purpose and general similarity, but reveals differences in jurisdiction, in provisions for maintenance, and in procedure. The salaries of two of the judges are paid by the city, and seven by the counties in which the ■cities are located. These salaries vary from $750 and fees to $2000 per year. The jurisdiction of these courts in ordinary actions for money and the recovery of specific personal property varies from $300 to $1000 in the amount demanded and value of the property claimed. One has jurisdiction in actions for damages to the person or to personal property to the amount of $600. Exclusive jurisdiction is given in two of these courts of all offenses against the city ordinances. In some of them writs and processes are required to be the same as those issued by justices of the peace; in others, the same as those issued by the clerk of the district court. Provisions for a change of venue to the district court are found in one of these statutes, and to a justice of the peace in several of them. In the act under consideration, relating to Chanute, and in the act establishing the city court of Coffeyville, seals are required, and provisions are made that the procedure ■of the district court not in conflict with the act shall apply. In other acts it is provided that the practice In justices’ courts shall prevail, except as expressly modified. These differences, and others not now referred to, indicate that such legislation mars the har mony of our judicial system, and tends to incongruities and evils in addition to those stated by Mr. Justice Porter in the Cloud county case.
A consideration of these special enactments may be useful for another reason: the frequent recourse to such legislation in the past indicates a probability that other cities in similar situations and with like conditions will apply for the same relief .in the future, and a general demand for these facilities would afford some support to the claim that they might be provided by general law.
The conditions peculiar to Chanute, set out in the agreed statement, are insisted upon to prove that a general law can not be made applicable. That it differs in these and in other respects from the cities where like courts have been established and other cities where similar tribunals may hereafter be required must be conceded, for no community is precisely like another, yet such differences in local conditions have not been considered an obstacle to the just operation of general laws in other governmental matters. For the various concerns of local government and administration cities in this state are classified, and when such classification is reasonable laws relating to a particular class are upheld. (Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781.) There are at this time three cities in the state with a larger population than Chanute (and others containing a population of over 6000) which áre not county-seats. All of these are flourishing towns, with extensive mining, manufacturing and commercial interests, and the list will increase with the natural growth and development of the state. It is difficult to perceive why the reasons based upon the peculiarity of local conditions, if sufficient to-uphold special legislation creating city courts, would not sustain special legislation upon other important affairs of local administration and government, among" which are the establishment and maintenance of schools; but this court has decided that a special act. establishing a high school for a particular county is invalid, as the end sought may be reached by a general law. (Deng v. Scott County, 77 Kan. 863, 95 Pac. 592.) It will be noticéd by referring to other acts creating city courts that the legislature has not deemed the fact, that the city is not a county-seat a controlling consideration, for seven of these courts are located at county-seats, and, presuming that such laws were enacted in response to the request of the locality affected, it is-seen that the demands were not based upon that ground; but in this instance the fact that'Chanute is-not a county-seat, and ‘ therefore does not have the benefit of sessions of the district court, is urged as one1 of the principal reasons why a general law could not be made applicable. ' We conclude upon this branch of' the case that a general law can be made applicable, giving to cities with like conditions, where the nécessity may exist, reasonable facilities for the transaction of' local judicial business of the nature attempted to be vested in the city court of Chanute by the act in question.
The defendant, however, argues with much force' that section 1 of article 3 of the constitution governs-in the creation of courts, and that the constitutional provision hereinbefore discussed has no application to the act in question. If this contention is sustained, the act is valid. Article 3 relates to the judicial department, and the section relied upon reads:
“The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to-the supreme court, as may be provided by law; and all courts of record shall have a seal to be used in the-authentication of all process.” (§1.)
The argument in brief is that as the act creates a-court inferior to the supreme court the above legislative-warrant is complete in itself, and not limited by any other provision. If it is not so limited the conclusion. is irresistible. This provision, however, is only declaratory of the power of the legislature to create such courts. In article 2 there is not only a general grant of legislative power, but regulations for, and restrictions upon, its exercise. It is a familiar rule that the different parts of the same instrument are to be construed together to arrive at the true sense. Wherever it is possible to do so each provision must be construed so that it will harmonize with all others. (8 Cyc. 730; 6 A. & E. Encycl. of L. 925; Cooley’s Const. Lim., 6th ed., 72, 73.) So reading the constitution, no difficulty is perceived. The legislature may create courts inferior to the supreme court (Const., art. 3, § 1), by general law where it can be made applicable. (Const., art. 2, § 17.) Otherwise we would be compelled to read an exception into the last-named section after this manner: “In all cases where a general law can be made applicable no special law shall be enacted, except to create courts inferior to the supreme court.” As we read these provisions together, no such violence is done to section 1 of article 3. That section establishes certain courts, and authorizes the legislature to create .others by law, i. e., by law constitutionally enacted. Thus construed, full effect is given to each provision in harmony with the context and with the natural meaning of the whole instrument. We can find no sufficient warrant for the assumption that the people in adopting the constitution intended to except acts creating ' local courts from the restriction against special legislation. Such an assumption would to a large extent paralyze the restriction to which the people sought to give efficacy by the recent amendment.
In the Cloud county case (77 Kan. 721, 733) it was suggested that the boundaries of judicial districts could only be changed by special law, and this is referred to as supporting the defendant’s position here. The difference, however, is obvious. District courts were created, and districts established, by the constitution itself, and authority given in express terms for changing them. In the nature of things such a law is special, and a general law to effectuate the purpose would be practically, if not absolutely, impossible.
In arriving at these conclusions we have given full consideration to the agreed statement of- facts, in connection with the nature of the subject and those matters of judicial notice proper in the determination of judicial questions, as stated in Anderson v. Cloud County, supra. Finding that chapter 179 of the Laws of 1907 is in violation of the state constitution, it affords no warrant for the powers exercised by the defendant, and judgment of ouster will be entered, as prayed for by the plaintiff. | [
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The opinion of the court was delivered by
Graves, J.:
The motion to dismiss was properly denied. The state is allowed three terms after the information is filed in which to bring a defendant to trial. In this case the information was not filed until November 9, 1906. The trial was had at the May term following. The information could have been filed at the October term, 1906, as the transcript from the justice of the peace who held the preliminary examination was filed September 18, 1906. If the defendant -desired to hasten the trial he should have made appli■cation to the court to require the information to be filed at the beginning of the October term.
The verdict in this case is too indefinite to indicate ■the offense of which the defendant was found guilty. 'It states that he is guilty of the crime of grand larceny as charged in the information. The information contains no charge of that offense. No facts are there stated which constitute such a crime, and no language therein indicates that the pleader had grand larceny in mind when the information was drawn. The facts which constitute the offense defined in the statute under which the information was drawn do not constitute larceny in any legal sense, but the newly created crime had to have a name, and larceny was selected. The word “robbery” would have served the same purpose. The only reference in this statute to grand or petit larceny is made for the purpose of fixing the punish ment for the crime, by reference to another statute, and was not intended to define or describe the offense there created. This sufficiently shows how disconnected and remote the words “grand larceny,” as used by the jury in the verdict, are from the offense charged in the information or as it is defined in the statute.
Again, the verdict furnishes no facts which would enable the court intelligently to pronounce sentence. The value of the property disposed of is not given. Unlike the offense of grand larceny, where the value of the property taken, if cattle, is immaterial, in this offense it is important. The extent of punishment depends entirely upon the value of the property disposed of, and may be either five or seven years. In the absence of a finding as to the acts committed by the defendant or the value of the property disposed of the court can not know with certainty what sentence to pronounce.
It has been said that by considering the verdict, information and the statutes which define the offense charged and fix the punishment for grand and petit larceny together it is possible by inference, construction and conjecture to ascertain what the jury intended by the verdict, and that the verdict, so interpreted, should be regarded the same as if it read: “We, the jury, find that the defendant, at the time and place named in the information, did wilfully, unlawfully, and feloniously, and with intent to cheat, wrong and defraud the First National Bank of Independence, Kansas, sell and dispose of the property described in the information, which was then and there of the value of more than twenty dollars, and upon, which the said First National Bank then held a mortgage lien of more than twenty dollars, all of which was done in manner and form as charged in the information.” We can not concur in such a view. If verdicts may be supplied with material and important findings omitted by the jury by this kind of conjecture and guesswork, then the security of trial by jury, which we have long supposed to be a shield and protection to persons charged with crime, will have received a serious blow. A person charged with a crime is supposed to be innocent until a verdict which is the result of a lawfully conducted jury trial has been found, and which states in language so definite and certain that different minds can not fairly disagree as to its meaning that he is guilty of such offense. There may be cases where, by a reasonable degree of inference and interpretation, a verdict which is in some degree indefinite and uncertain may be rendered clear and certain beyond a reasonable doubt. In such cases it may be proper by construction to sustain the verdict. All that we decide here is that in this case, as presented, the construction and inferences which the district court must of necessity have resorted to in order to sustain the conviction of this defendant are too robust and far-fetched to be upheld. (The State v. Reddick, 7 Kan. 143; In re Howard, 72 Kan. 273, 83 Pac. 1032.) The defendant should have been given a new trial.
The judgment of the district court is reversed, with directions to grant a new trial and proceed in accordance with the views herein expressed.
Johnston, C. J., Burch, Smith, Porter, Benson, JJ., concurring. | [
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•The opinion of the court was delivered by
Graves, J.:
This suit was commenced in the district, court of Montgomery county for the purpose of partitioning the rights held under an oil-and-gas lease among the owners thereof. Plaintiff Henry Beardsley owns one-half, plaintiff White one-eighth, and the defendant, the Kansas Natural Gas Company, three-eighths of the lease. B. L. and Josie Frost are the' grantors in the lease and the owners of the leased premises. They were not summoned, either in this or the district court, and have not entered an appearance' in the suit. The defendant demurred to the petition-The demurrer was sustained, and, the plaintiffs declining to plead further, the defendant received judgment for costs. Plaintiffs bring the case here for review.
A motion to dismiss the petition in error has been, presented by the gas company, upon these grounds: (1) It does not appear by the record that the amount, in controversy exceeds the sum of $100; (2) the transcript attached to the petition in error does not appear to contain the whole record; (3) the Frosts, having-been named as parties defendant, should have been brought into court. The first ground of the motion is. not well taken for the reason that the law limiting proceedings in error to cases which involve the sum of more than $100 was repealed, except in actions for the recovery of money, by chapter 256 of the Laws of 1907, which took effect March 14, 1907, before the judgment herein complained of was rendered. As to the second ground of the motion, the certificates of the clerk and judge appear to be in form sufficient to make the exhibit attached to the petition in error good, either as a transcript of the record or as a case-made. Both seem to be in conformity with the rules of this court and are sufficient to confer jurisdiction. As to the remaining ground, it is sufficient to say that B. L. and Josie Frost have no interest in the litigation, are not necessary parties, and their absence is immaterial. The motion to dismiss is denied.
The petition contains two causes of action — one in ejectment and the other in partition. It is not seriously insisted in argument that ejectment will lie except when the property is real estate and the adverse party is in hostile possession, neither of which is alleged in this petition. We shall assume, therefore, that the demurrer was properly sustained to the first cause of action. As to the second cause of action, it is insisted that the petition states a good cause of action for partition, even if the property be regarded as purely personal, without any of the peculiar elements of real estate. This constitutes the real point in controversy. The property sought to be partitioned is the rights which the lessees hold under an ordinary oil-and-gas lease, the granting clause of which reads:
“That the said parties of the first part . . . have granted, demised, leased and let, and by these presents do grant, demise, lease and let, unto the said second party, its successors or assigns, for the sole and only purpose of mining and operating for oil and gas, and of laying pipe-lines, constructing tanks, buildings and other structures thereon to take care of said, products, all that certain tract of land situated ... as follows, to wit [here follows description] : It is agreed that this lease shall remain in force for the term of ten years from this date, and as long thereafter as oil or gas, or either of them, is produced therefrom by the party of the second part, its successors, or assigns.”
This court has held in several cases that such a lease grants no estate in the land or in the oil or gas which it-may contain. It merely creates a license to enter and. explore for oil and gas, and to sever them if found. (Rawlings v. Armel, 70 Kan. 778, 79 Pac. 683; Gas Co. v. Neosho County, 75 Kan. 335, 339, 89 Pac. 750; Phillips v. Oil Co., 76 Kan. 783, 92 Pac. 1119.) That such property, or indeed any property of a personal character owned in common, may be partitioned among its-several owners, where the nature of the property is such that its division in kind is possible and practical, seems to be generally conceded. If the property is not susceptible of such a division, then a distribution will be made which seems to be most nearly equivalent to> possession in severalty. This may be effectuated by a. sale and an equitable division of the proceeds among the owners or by an actual division of the property or otherwise, as may be equitable. The power to make such partition or division of personal property belongs exclusively to courts of equity, and they have generally exercised such power where no other remedy is provided by statute. For a full consideration of these questions, see the following cases, where the authorities are cited: 21 A. & E. Encycl. of L. 1160, 1161; Freeman, Cotenancy & Part. §§ 428, 429; Knapp, Partition, 488; Donor v. Quartermas, 90 Ala. 164, 8 South. 715, 24 Am. St. Rep. 778; Pickering v. Moore, 67 N. H. 533, 32 Atl. 828, 31 L. R. A. 698, 68 Am. St. Rep. 695; Godfrey v. White, 60 Mich. 443, 27 N. W. 593, 1 Am. St. Rep. 537; Robinson v. Dickey, 143 Ind. 205, 42 N. E. 679, 52 Am. St. Rep. 417.
No provision for the partition of personal property has been provided by the statutes of this state. The statutory provisions relating to partition apply to real estate only. The first section upon that subject reads:
“When the obj ect of the action is to effect a partition. of real property, the petition must describe the property, and the respective interests of the owners thereof, if known.” (Civ. Code, § 614.)
The other provisions indicate that the whole chapter was intended to apply to real estate only. It is urged that these provisions are broad enough to cover personal property, and might well be applied thereto. Undoubtedly personal property could be partitioned, but such provisions, having been enacted for the partition of real estate only, can not be otherwise applied. It has been held that a tenant in. common of real estate is entitled to partition as a matter of right. (Kinkead v. Maxwell, 75 Kan. 50, 88 Pac. 523; 21 A. & E. Encycl. of L. 1146; Martin v. Martin, 170 Ill. 639, 48 N. E. 924, 62 Am. St. Rep. 411.) The statute seems to confer this right. It prescribes the necesary averments of the petition, and when the prescribed allegations are stated the pleading necessarily states a good cause of action. If the property sought to be partitioned is not real estate, then the petition must state facts showing sufficient reason for equitable interference.
The petition in this case appears to have been drawn upon the theory that a compliance with the statute was sufficient, and it merely states the kind of property owned by the parties and the interest of each therein. No facts are stated which indicate loss in value of the property, mismanagement, irreconcilable differences as to the disposition or control of the property, or other peculiar circumstances which justify equitable action. For the want of these facts we think the petition is insufficient, and the demurrer was properly sustained.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
A judgment for the bank in this action ivas reversed on a former hearing in this court. (Sykes v. Bank, 69 Kan. 134, 76 Pac. 393.) On the .second trial, in addition to the facts stated in the former ■opinion, the court found that the office of the payees, where the note was made payable, was in Missouri, and that by the law of that state the note is, and was, negotiable. By reason Of the recitals in the note making the time of payment uncertain it was held to be non negotiable by this court. The trial court, after an amendment of the petition, having found the additional facts above stated, again rendered judgment for the plaintiff. The defendants'now ask for a reversal upon the grounds, first, that the former decision of this court that the note is non-negotiable is a final adjudication of that matter, and, second, that the finding of the district court relative to the law of Missouri is not sustained by the evidence.
This note was made in Kansas by residents of this state, and was payable, as the evidence now shows, in Missouri. It. was indorsed by the payees, before maturity, to the Union Brokerage Company of Kansas, and was, indorsed by that company, in Kansas, to the plaintiff, a national bank of Iowa. The makers had no knowledge or notice of these transfers, and paid the note before maturity to the payees, who had no authority from the holder to receive such payment. Upon these facts alone'the judgment should be for the defendants, if we follow the former decision that the note was non-negotiable. It is claimed by the plaintiff, however, that the additional findings that the note was payable in Missouri and that it is a negotiable instrument warrant the judgment for the plaintiff.
The new issue presented upon an amendment allowed by the district court in its discretion had not before been adjudicated, and was properly tried: Therefore the first ground urged for reversal can not be sustained.
Subject to qualifications not necessary now to consider, the law of the place of performance of contracts governs in determining the liability of the contracting parties, and this principle applies to promissory notes. (1 Randolph, Com. Paper, 2d ed., § 31; 2 Parsons, Notes & Bills, 324; 1 Dan. Neg. Inst., 4th ed., § 879.)
“Matters bearing upon the- execution, the interpretation and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the. place where the suit is brought.” (Scudder v. Union National Bank, 91 U. S. 406, 412, 23 L. Ed. 245.)
We conclude that the negotiable character of this note must be determined by the laws of Missouri, where it was made payable. The question as to how this law is to be determined has been elaborately argued. Two views have been taken, both well supported by precedents. The federal court and the courts of New York, Iowa, Maine and Georgia have held that, as the law to be applied is the general commercial law, or law merchant, it must be sought for, not in the decisions of local tribunals, but in the general doctrines of commercial jurisprudence; that, while following the decisions of the courts of final resort of the state where the note is payable in the construction of its statutes, the courts of the state where the case is tried will be governed by their own precedents in expounding the general common law applicable to commercial transactions. (Oates v. National Bank, 100 U. S. 239, 25 L. Ed. 580; St. N. Bank v. S. N. Bank, 128 N. Y. 26, 27 N. E. 849, 13 L. R. A. 241; Roads v. Webb, 91 Me. 406, 40 Atl. 128, 64 Am. St. Rep. 246; Franklin v. Twogood, 25 Iowa, 520, 96 Am. Dec. 73; The National Bank of Michigan v. Green, 33 Iowa, 140; Pattillo v. Alexander, 105 Ga. 482, 30 S. E. 644.)
Notwithstanding the weight of the foregoing decisions, and the strength of the argument in their support, the rule adopted in a large majority of the state courts and announced by text-writers is that, when it becomes necessary to determine the common law of another state, the decisions of the courts of final resort of that state will be followed, regardless of precedents to the contrary in the state where the trial is held, and that this rule applies to the law merchant as well as to other branches of the common law. This rule is based upon the presumption that the.parties have contracted with reference to the law of the place of payment, and that law is applied in accordance with the doctrine of comity. This rule has been approved in this court in its application to other subjects, but it does not appear to have been directly invoked with respect to commercial paper. (St. L. & S. F. Rly. Co. v. Weaver, 85 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; Alexander v. Barker, 64 Kan. 396, 67 Pac. 829; Railroad Co. v. Johnson, 74 Kan. 83, 86 Pac. 156.) The opinion in Loan Co. v. Solomon, 71 Kan. 185, 79 Pac. 1077, clearly stated the principle upon which contracts solvable by the laws of another state are enforced here.
Following the rule generally prevailing, we should now hold the note in question to be a negotiable instrument if the law of Missouri is as the district court found it to be. That finding, however, is challenged upon the ground that it is not supported by the evidence, and as the evidence consists of the statutes of Missouri and decisions of courts of that state, pleaded as facts, the sufficiency of the proof to sustain the finding is fairly presented for review here. (Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580.) The statute pleaded and read in evidence is as follows:
“Every promissory note for the payment of money to the payee therein named, or order or bearer, and expressed to be for value received, shall be due and payable as therein expressed, and shall have the effect and be negotiable in like manner as inland bills of exchange.” (Rev. Stat. of Mo. 1899, § 457.)
The decision of the supreme court of Missouri, a part of which was set out in the petition and all of which was read in evidence, is the opinion in Stillwell v. Craig et al., 58 Mo. 24. The action was upon a promissory note payable “in instalments not to exceed ten per cent, on each share [of the stock for which it was given], at thirty days notice of call from the board of directors.” (Page 28.) The opinion said:
“Our statutory requisites for negotiable paper are fully met in this instrument. . . . But the defend ants insist that it lacks in two particulars, the certainty essential to make it a promissory note, viz.; As to amount, and ¡as to time of payment. . . . As to time of payment, the law is less exacting. . . . Contingencies in this particular must be exceedingly remote, in order to vitiate the paper for negotiable capacity. In Washington County Mut. Ins. Co. v. Miller, 26 Vt. 77, a note for twenty-one dollars, payable, ‘in such portions and at such time or times as the said company may, agreeably to- their act of incorporation, require/ was held to be a promissory note for the sum specified, so as to determine a question of jurisdiction; but a doubt was expressed whether it would be such in a commercial sense. The doubt, however, as it seems to me, is not justified by the reasoning of the opinion, or by the authorities which it cites.
“In President, Directors, &c. v. Hurtin, 9 Johns. 217, 6 Am. Dec. 273, a similar instrument was held to be a good promissory note, as being ‘payable in money, and payable absolutely, and not depending on any contingency.’ In the element of certainty as to time of payment, I can perceive no difference in principle between such a note and one payable on demand. Hence, if the note under consideration be transferable at all, I have no hesitation in saying that it is negotiable, at least to the extent of authorizing a suit jointly against makers and indorser.” (Pages 30, 31.)
The clause in the note in question here, upon which it was held by this court in the former decision to be non-negotiable, was this:
“The makers and indorsers hereof hereby severally waive protest, demand, and notice of protest and nonpayment, in case this note is not paid at maturity, and •agree to all extensions and partial payments, before or ■after maturity, without prejudice to holder.” (Sykes v. Bank, 69 Kan. 134, 76 Pac. 393.)
In the opinion in Bank v. Gunter, 67 Kan. 227, 72 Pac. 842, the precedent followed in the former decision of this case, it was said:
“In the note in question payment is first fixed at 182 days after the date, but, as will be observed, a later provision makes the time indefinite by stipulating that it.may be changed and extended either before or after maturity. If the time is to remain fixed until maturity, when another time is to be fixed by the parties, or if payment is made to depend upon events which necessarily must occur and the time of payment is ultimately certain, other considerations would arise; but here payment is not ultimately certain, for the time named in the paper is subject to change at any time at the volition of some of the parties to the paper.” (Page 231.)
In Stillwell v. Craig et al., 58 Mo. 24, the note was payable in instalments, which would not affect its negotiability (1 Dan. Ñeg. Inst., 4th ed., §48), and these instalments were to be paid in thirty days after a call by the board of directors of the payee; that is, in thirty days after demand. As was said of a like pror . vision: “It was, in effect, payable on demand, or in instalments on demand.” (White v. Smith, 77 Ill. 351, 353, 20 Am. Rep. 251.)
The language of the supreme court of Missouri quoted above — “I can perceive no difference in principle between such a note and one payable on demand” —is significant, showing the interpretation placed upon the language of that instrument, holding it to be in effect a demand note. The language of the note in this case will not bear that interpretation, and the opinion in Stillwell v. Craig et al., 58 Mo. 24, does not, in our view, sustain the finding of fact in this case with respect to the law of Missouri. It is true that it may indicate a trend in that direction, but this is not sufficient to prove the fact. pleaded. The same court in a recent case, in considering the effect of a decision of a sister state when offered in evidence to prove the common law of that state, said:
“A close analysis of the Arkansas cases cited leads us to conclude that the supreme court of Arkansas never went so far as appellant contends. The very most that can be said was that that learned court was ‘heading’ in that direction. But as seen by our own decisions, and pointed out in Grattis v. Railroad, 153 Mo. 380, 55 S. W. 108. 48 L. R. A. 399. 77 Am. St. Rep. 721, courts do not always go on the way they are headed, and it is not always safe to say that a court will reach a goal to which its face is turned and its steps directed. Indeed, we may allow to the supreme court of Arkansas the same right and disposition to establish a growth in the law or reconstruct its views that we arrogate to ourselves.” (Root v. K. C. S. Ry. Co., 195 Mo. 348, 372, 92 S. W. 621, 6 L. R. A., n. s., 212.)
The decision of the Kansas City court of appeals in City National Bank v. Goodloe-McClelland Com. Co., 93 Mo. App. 123, fully sustains the finding, but that is an intermediate court, and its decisions do not settle the law of that state. Its jurisdiction is limited, both in territory and amount in controversy, and its decisions involving an amount in excess of $2500 are subject to review in the supreme court. We have the highest respect for that tribunal; the great learning and ability of its judges is unquestioned; but we can not admit its opinions to determine that the common law of that state, as a fact, is different from what we have declared the common law to be here.
“The decision of the Kansas City court of appeals in City of Goodland v. Bank, 74 Mo. App. 365, is alone cited in support of this contention. A fixed and settled rule of decision in a state court of last resort establishes the law of the state in such manner as to bind the federal courts in all matters controlled by the state law; but the opinions of intermediate appellate courts, like the Kansas City court of appeals, while entitled to great respect and regarded as persuasive authority, are not controlling upon the federal courts, because they do not settle the law of the state.” (Anglo-American Land, M. & A. Co. v. Lombard, 132 Fed. 721, 741, 68 C. C. A. 89.)
(See, also, Hennessy v. Bavarian Brewing Company, 145 Mo. 104, 46 S. W. 966, 41 L. R. A. 385, 68 Am. St. Rep. 554.)
Other Missouri decisions read in evidence related to the effect of the mortgage security, and do not govern this question.
The statute quoted above (Rev. Stat. of Mo., 1899, § 457) is probably only declaratory of the common law (The First Nat. Bank of St. Charles v. Payne, 111 Mo. 291, 20 S. W. 41, 33 Am. St. Rep. 520), and does not materially differ from our own.
Upon a careful examination of the evidence offered upon the subject we conclude that the finding that the note sued upon was, and is, negotiable is not supported by the proof. In the absence of such proof it will be presumed that the law of Missouri is the same as our own.
The judgment is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff brought suit to enjoin W. I. Richards and the county surveyor of Pottawatomie county from making a proposed survey of certain lands. The court sustained a demurrer to the petition. The plaintiff, electing to stand upon the petition, brings error.
The petition is quite lengthy, but the material averments therein may be summarized as follows: The plaintiff is the owner of a farm of about 162 acres; defendant Richards is the owner of land adjoining it, in the same reservation. The lands are a part of Wyandotte' Reserve No. 6, township 9 south, of range 1' east, in Pottawatomie county. Long prior to April 19, 1893, there had been a contention between the plaintiff and. her grantors on the one hand, and defendant Richards and his grantors on the other, relative to the boundary-lines of .the two tracts of land; and, on the application of one Archibald Richards and defendant W. I. Richards, both interested parties, a full and complete survey of the lands was made on the 17th, 18th and 19th of April, 1893, by the county surveyor of Pottawatomie county. The surveyor at that time located and established the corners and boundaries of the two tracts of land, filed in his office a full and correct copy of the survey, deposited a copy thereof in the office of the register of deeds of Pottawatomie county, and performed all of the things necessary to be done to make a lawful and complete survey. Defendant W. I. Richards, Archibald Richards, at that time part owner of the lands now belonging to W. I. Richards, G. W. Washington, agent for the plaintiff and her grantors, and all of the interested parties-who owned land affected by such survey were present and participated therein, and the boundaries and corners indicated in the survey and plat were consented to by all of the persons present. No appeal was ever taken from the survey of 1893, as provided by law, and the same has become fixed and permanent and the boundaries of the two tracts of land have thereby been permanently established.
The petition then alleges that defendant Richards, a short time prior to the commencement of this suit, filed a notice with defendant Williams, present county surveyor, for the purpose of procuring a resurvey of the lands in question; that the county surveyor caused a notice to be served on the plaintiff that on the 5th of February, 1907, he would begin a survey of the lands; that, unless restrained, the defendants will cause another survey to be made in accordance with such notice; and that the plaintiff has no adequate remedy at law. The only relief sought is to enjoin and restrain the attempted survey.
The ground relied upon in the demurrer is that the petition fails to state a cause of action for the reason that the plaintiff has an adequate remedy at law, and if dissatisfied with the action of the county surveyor she may appeal. The plaintiff contends that she has not a full, complete and adequate remedy at law, and incidentally claims that section 1821 of the General Statutes of 1901, providing for an appeal, does not authorize the court to take into consideration the fact that a prior survey had been made which was permanent and a bar. to a subsequent one. The provision with reference to the procedure in such cases is as follows :
“The court shall hear and determine said appeal, and enter an order of judgment approving or rejecting said report, or modifying or amending the same, or may réfer the same back to the surveyor to correct his survey and report in conformity with the decree of the court, or may, for good cause shown, set aside the report and appoint one pi more surveyors, who shall proceed, at the time mentioned in the order of the court, to survey and determine the corners and boundaries of the land in question, and shall report the same to the court for further action.” (Gen.-Stat. 1901, § 1821.)
We are unable to agree with the contention of the plaintiff with respect to the construction to be placed upon the statute. The district court is, in our opinion, authorized to consider any lawful objection which might be raised to the report. But we have no hesitation in concluding that the demurrer to the petition should have been overruled for the reason that the remedy afforded by appeal is not full, complete and adequate.
To say nothing of the delays and annoyances of prosecuting an appeal, the final decision would still leave the matter open and the landowner subject to repeated attempts on the part of his neighbor to procure a new survey. There would be no permanency in landmarks, however ancient, and at the very moment when a landowner was about to complete a contemplated sale of his lands he might find his hands tied by the service of a notice, at the instance of an adjoining owner, calling for a survey of the boundary-lines. The statute is intended to make boundary-lines and land marks once established permanent and fixed, and to make it impossible for one landowner to be at the mercy or caprice of an adj oining proprietor. For these reasons the statute expressly provides as follows:
“The corners and boundaries established in any survey made in pursuance of an agreement, or in any survey where no appeal is taken from the surveyor’s report, and such corners and boundaries as are established by the decree of the court, shall be held and considered as permanently established, and shall not thereafter be changed.” (Gen. Stat. 1901, § 1821.)
We have upheld injunction as a remedy against a sale of lands under a void execution, notwithstanding there was a remedy at law by motion to set aside the execution, or in spite of the fact that the judgment or the execution based thereon was void on its face and a sale thereunder would not create a cloud upon plaintiff’s title. (Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630, and cases cited.) The defendants were proceeding to change that which the statute declares shall not be changed. No remedy can be suggested which is so practical and efficacious as injunction in such a case. The remedy of injunction is not defeated by the fact that the plaintiff has a remedy at law. (1 High, Inj., 4th ed., § 30.)
“It must be plain and adequate, or in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity.” (Boyce’s Executors v. Grundy, 28 U. S. 210, 214, reaffirmed in Watson v. Sutherland, 72 U. S. 74, 78, 18 L. Ed. 580.)
In volume 22 of the Cyclopedia of Law and Procedure, at page 770, it is said that the problem in any individual case is whether the remedy at law is adequate, and the modern rule with reference to injunctions is thus stated:
“To defeat the equitable jurisdiction, however, it is not sufficient that the law should merely afford some remedy; that remedy must be as practical and efficient as is the equitable remedy in rendering justice and as prompt in its administration.” (22 Cyc. 771.)
The permanency which the statute seeks to give to established boundaries and landmarks would be of little value to landowners if it lay within the power of any -one interested to disturb the boundaries by new surveys and if the remedy by injunction could be defeated because the landowner who relies upon the former survey must set up his defense to each new proceeding.
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The opinion of the court was delivered by
MASON, J.:
On January 27, 1899, William Calhoun deeded a tract of land owned by him in Kingman county, where he then resided, to seven of his eight children, "taking from them a note and mortgage on the property for $5000. His wife joined in the deed, and a mortgage for $2500 was also taken payable to her, but this was properly released and cuts no figure in the litigation. Humphrey Calhoun, one of the children, ac quired the interest of all the others by warranty deeds from them. On November 10, 1900, William Calhoun died intestate, while an inhabitant and resident of Sedgwick county. The 5000-dollar note and mortgage had been left by William Calhoun with a Michigan bank for safe-keeping. After his death his widow wrote te the banker asking that he send these papers to her. He answered declining to part with them until an administrator should be appointed. On March 2, 1901, an order was made by the probate court of Kingman, county, appointing her as administratrix. She then, again applied for the note and mortgage and received them. The affidavit of death, the petition for the appointment of an administrator (signed by Humphrey Calhoun) and the letters of administration all recited that William Calhoun died while an inhabitant and resident of Sedgwick county.
Humphrey Calhoun then filed in the probate court an application asking that- the administratrix be directed. to discharge the mortgage, for the reason that at the time of its execution the mortgagee had agreed that on his death it should be released and that payment should not be required of the mortgagors. On. October 26, 1901, a hearing was had on this application, and the court made an order reciting that Mrs. Calhoun was present and consented thereto and directing her to release such mortgage as administratrix. She at once executed a release in that capacity, and it. was made of record in the office of the register of deeds.
On December 15, 1902, Ed Anderson bought the land from Humphrey Calhoun, relying upon these proceedings, and receiving a warranty deed purporting to convey a clear title. On April 22, 1904, L. F. Walter was appointed administrator of the estate of William Calhoun by the probate court of Sedgwick county. On May 11, 1904, he brought an action to foreclose the mortgage.
The district court held that all the proceedings in the probate court of Kingman county were void for want of jurisdiction, because William Calhoun was at the time of his death a resident of Sedgwick county; that this jurisdictional defect showed on the face of the papers, and therefore Anderson was not- protected as an innocent purchaser of a good record title; but that the children of William Calhoun who had signed warranty deeds to the property were thereby estopped to assert any right under the mortgage. A decree was therefore entered foreclosing the mortgage for the benefit of any creditors of the estate, and of the widow and the one child who had not signed a warranty deed to the extent of their pro rata share as heirs of William Calhoun, the court in the exercise of its equitable jurisdiction assuming full control of the settlement of the estate in order to protect the .interests of all persons concerned. Anderson prosecutes error and asks that he be adjudged to hold the land free from the mortgage.
The jurisdiction for the appointment of an administrator of an inhabitant of Kansas is in the probate court of the county of which he is an inhabitant or resident at the time of his death. (Gen. Stat. 1901, § 2806; Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, 93 Am. St. Rep. 299.) And since the record of the appointment of Mrs. Calhoun showed affirmatively that her husband died an inhabitant and resident of Sedgwick county all the proceedings in the probate court of Kingman county were void upon their face, and of no force even when assailed collaterally. (See note on effect of non-residence of decedent in 81 Am. St. Rep. 548.) Therefore the decision of the trial court must be affirmed so far as it authorized the administrator to enforce the mortgage for the benefit of any creditors of the estate.and of any heirs who had not forfeited their right to share in the proceeds. The child of William Calhoun who had signed no deed to the property had done nothing to impair his standing as a beneficiary, and was therefore entitled to protection. The more difficult question is whether in virtue of her conduct in the matter the widow had not placed herself in the same category with the children who had warranted the title, and lost the right as against Anderson to have a lien on the land asserted in her behalf.
Mrs. Calhoun interposes a preliminary objection to this' inquiry on the ground that the defense of equitable estoppel was not pleaded against her. Anderson did not in terms plead that she was estopped by her conduct to deny the validity of the release which she had executed as administratrix; but in asserting that the release was effective he set out in his answer all the attendant circumstances. The facts upon which the claim of estoppel is founded therefore appeared in the pleading, and the rule that a defense of that nature must be specially pleaded was substantially complied with.
It might be argued that in taking the position that the proceedings of the probate court of Kingman county were absolutely void Mrs. Calhoun puts herself in the attitude of having voluntarily entered a statement on the public record that the mortgage was no longer in force, and that such voluntary declaration, not having been made as administratrix, is binding upon her personally. But it must be assumed that she acted in good faith and under the belief that she was required to do what she did, and therefore the situation is not entirely the same as though she had acted of her own motion and for her own purposes. However, the transaction amounted to something more than a naked entry of a release of a mortgage by an unauthorized person. What was done in the probate court, although utterly void as a judicial proceeding, and concluding no one as an adjudication, nevertheless exhibited the theory upon which the entry of release was made. This theory was that there had been an understanding between the parties to this family affair that the death of William Calhoun should terminate all. liability under the mort gage. This theory Mrs. Calhoun, as an inheritor of a half interest in her husband’s estate, was more than any one else concerned in resisting. But her conduct throughout amounted to an acquiescence ih it. Besides signing the writing acknowledging the satisfaction of the mortgage, when the question whether it was to be enforced was raised in what she must have supposed to be such a manner as to conclude her if she failed to assert her rights she not only failed to protest —she even consented to the order of release. This must be deemed to have been such an acceptance on her part of the truth of the contention that the mortgage had spent its force as to preclude her asserting the contrary against one who parted with his money in reliance upon it. The situation is somewhat analogous to that arising when one by merely standing silently by at a sale where a stranger buys property is precluded thereafter from asserting title in himself. The case is within the spirit of the familiar rule thus-expressed in volume 16 of the Cyclopedia of Law and Procedure, at page 791:
“Where a person with actual or constructive knowl- • edge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and that other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other’s prejudice.”
If instead of going into court Humphrey Calhoun, the owner of the land, had asked his mother to effectuate the purposes of William Calhoun by entering satisfaction of the mortgage as his widow, and she had consented, while a release so executed could not have validity as such no one can doubt that it would be binding upon Mrs. Calhoun. That the aid of the court was invoked to carry out what was already agreed to by the parties concerned, and that the formal entry of release was made in pursuance of a void order, does not greatly change the aspect of affairs. We conclude that Mrs; Calhoun, as well as the grantors'in the warranty deeds, should have been cut off from the right to participate in the proceeds of the foreclosure. The cause will be remanded, that the judgment may be modified in this respect. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by the plaintiff in error against the railway company to recover damages for partially tearing down and leaving in an unsafe condition a fence which was in part on plaintiff’s land and in part along the defendant’s right of way through plaintiff’s land, and which enclosed a feed lot in which plaintiff had a large number of cattle. The plaintiff claimed the cattle escaped from the feed lot through the negligence of the defendant’s workmen in leaving the fence, which they were repairing, in an unsafe condition. The defendant claimed that the plaintiff, knowing the condition in which the fence was left, was guilty of contributory negligence in.failing to mend the defect.
At the trial forty special questions were submitted to the jury. They returned a general verdict for. the plaintiff, and also returned answers to the special questions. Upon a motion of-the defendant the court set aside the general verdict and rendered judgment in its favor for costs. The plaintiff alleges error.
That the answers of the jury to the special questions submitted to them were utterly inconsistent and contradictory is apparent from the following questions and answers:
“ (4) Ques. Did the railroad employees change the said fence on the railroad right of way at the northwest corner of said feed lot in the first part of November, 1904, and run several wires diagonally across the northwest corner of said feed lot and attach to plaintiff’s gate or fence on the north side of said lot? Ans. Yes.
“(5) Q. If you answer‘yes’to the last above question, then were said wires so stretched diagonally across northwest corner of said lot wholly insufficient to keep ordinary domestic cattle from escaping from said lot? A. We consider said fence insecure.”
“(7) Q. If you answer the last above question in the affirmative, state whether about 200 head of plaintiff’s cattle did,' about dusk, pass out under said wires, while said wires were in the same condition in which they were left by the railroad men who put them up. A. Yes; went under, over or through.
“(•8) Q. If you answer the last above question in the affirmative, state if plaintiff himself did, about one o’clock P. M. of the day on which said cattle escaped, personally see the said wires across the northwest corner of said lot where said cattle made their escape and observe the condition and manner in which they were put up. A. Yes.”
“(33) Q. Would the escape of the cattle from the enclosure in question have been prevented if either the plaintiff or the defendant, the railroad company, had used any care or made any attempt on the afternoon in question to prevent said escape? A. Yes.”
“(36) Q. Was the plaintiff in the exercise of any care or prudence when, after seeing the fence and its condition on the day in question, he failed to take any steps toward preventing the escape of his cattle? A. Yes, by hauling feed as above stated.
“(37) Q. Was plaintiff in the exercise of proper care and prudence in leaving his cattle on the afternoon in question, in the enclosure in question, while the fence was in the condition it was in at about one o’clock of said afternoon, when he last observed said fence on said afternoon? A. No.
“(38) Q. Was it prudent for plaintiff to leave his cattle in the enclosure on the afternoon in question while the fence and gate at the northwest corner were in the condition which the evidence shows they were in about one o’clock of said afternoon ? A. Yes, owing to precautions previously mentioned.
“(39) Q. After plaintiff observed the condition of the enclosure on the day in question was it imprudent for him to leave his cattle in said enclosure thereafter without taking some step to mend said fence or prevent said cattle from escaping from the enclosure ? A. Yes, in a measure.
■ “(40) Q. After plaintiff observed the condition of said enclosure in the northwest corner thereof, about one o’clock on the afternoon in question, did he make any effort to mend said enclosure, or repair the defects therein, so as to prevent said cattle from escaping therefrom? A. No.”
The answer to question No. 33 is that both the plaintiff and- the defendant were guilty of negligence. The answers to questions numbered 36 and 38 are that the plaintiff was not guilty of contributory negligence, and the answer to question No. 37 is that he was guilty of contributory negligence. In the face of these special answers it is clear that the court did not err in setting aside the general verdict. It is equally clear that it did err in rendering judgment for the defendant thereon. It is a case in which the parties were, entitled to a verdict of the jury in favor of one and against the other, according as the jury should find the facts under the evidence and the instructions. The jury found the facts in'favor of both parties and against both parties. The special findings of course govern the general verdict, and only a new trial can give to either party his right to have the issues determined by a jury under the instructions of the court. The court is not authorized in such a situation to take the case from the jury and to determine the facts from the evidence.
The defendant maintains that the nature of the damages is not such that it, in any view of the case, is responsible therefor; in other words, that the petition does not state a cause of action. This question seems to be raised here for the first time, and, as has been frequently decided in this court, we can not consider it.
The judgment is reversed and the case remanded, with instructions to grant a new trial. | [
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Per Curiam:
The instructions fairly presented the opposing theories of the parties. We are unable to see how the defendant could have been prejudiced by the admission of the testimony of the payment of the Pushaw mortgage or by the statement of the witness as to the amount due thereon.
Campbell purchased the property of Mrs. Chase, through W. C. Stephenson & Co., of Topeka, who were her agents for the purpose of finding a purchaser. The agreed price was $8000, and he was to receive the title free of encumbrances. There is no evidence to show that Stephenson & Co., from the time the terms of sale were agreed upon, had any authority to represent Mrs. Chase any further. On the contrary, she sent the deed, to her attorney, H. G. Larimer, of Topeka, .and instructed him to deliver it on receipt of the purchase-price, and no person had her authority to agree upon a sale at a different price. Campbell discovered that a mortgage which the record showed amounted to $618 could be purchased for $295, and attempted by a subsequent memorandum, agreed to by Stephenson & Co.,, who purported to act as the agents of Mrs. Chase, to' make an entirely different contract, by which he was. to pay $7382 and assume the Pushaw mortgage. In the meantime Mrs. Chase had paid $200 on this mortgage, and there was in fact but $259.50 remaining due. Before consenting that Campbell should retain the $618 Larimer required Stephenson & Co. to agree in writing-that any sums paid by Mrs. Chase on the mortgage-should be refunded. We think the jury were justified, in finding that Stephenson & Co. represented Campbell in this latter transaction; but in any event his original contract with Mrs. Chase, which had not been modified,, required him to do the same thing.
There was a sharp conflict in the evidence as to what, occurred at the time the transaction was closed and the deed delivered, and particularly with reference to whether Larimer consented to the second contract. He denied that he ever heard of it until long after the deal was closed. The jury have settled this conflict against the plaintiff in error.
In our opinion the verdict is supported by evidence and is right. The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff claims to own certain valuable mining property in Cherokee county, which is located near Spring River. He alleged in his petition that the defendant erected a dam across Spring River, causing the water in that stream to'rise and stand about twenty feet above its normal height; that by reason of this condition the water finds an outlet from the river through the earth- composing the river bank, and “percolates and flows” through the ground to and into plaintiff’s mines, making it impossible to work them, and entirely destroying their value.
A demurrer to the petition was presented and overruled. The case was then tried upon the facts, and, when the plaintiff rested, a demurrer to the evidence was interposed. The court thereupon dismissed the* case.
The chief ground of the demurrer to the petition was-that it showed upon its face that the damage complained of was caused by percolating water, for which,, it is contended, no action can be maintained.
The chief reason assigned by the court for the dismissal of the case is that the evidence showed the plaintiff’s right to the land to be that of a lessee only, and therefore he could not maintain an action of this-nature. We think this is error. The plaintiff had a. right to have his claim adjudicated. Even if a mere lessee, he had rights there, which he is entitled to have protected. There was evidence, however, which tended to show that he owned the mineral at the time the injuries were received, and he was entitled to have this question determined and decided specifically. The judgment must therefore be reversed and the case remanded for a new trial.
It would be premature to consider the much-discussed question as to the law relating to percolating water, and we therefore refrain from expressing any opinion upon that subject, except to say that the words “caused ... to percolate and flow,” as used in the petition, are broader and mean more, as against a demurrer, than the word “percolating” as used in the opinions cited. When the plaintiff has had an opportunity to show how the water which he says floods his mines reaches them, and from where, we can better consider the question of percolating waters as applied to this case.
The judgment of the district court is reversed, with directions to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Benson, J.:
This was a suit by Thomas J. Barker against his father, J. T. Barker, his brother and his five sisters, and the husband of Ina May Doty, one of the sisters. The petition-in the first count, after stating the interests of the several parties, prayed for partition of eighty acres of land in Shawnee county. The second count, which alleged that Ina May was a trustee of this land for her mother, who had died, was, upon demurrer, held insufficient to constitute a cause of action. The answer of Ina May Doty and husband was a. general denial, and the cause was tried upon the first count of the petition, the answers of Mrs. Doty and husband, and the answers of the o.ther defendants setting up their interests in the land.
From the special findings it appears that on October 19, 1903, J. T. Barker, being the owner of the land in question, which was then occupied by his family as a residence, conveyed it to his wife, Alice Barker. The wife was not satisfied with this deed, and with her consent the name “Alice” was erased and the name “Ina May” was inserted as grantee, thereby conveying the land to their daughter, Ina May Barker. Thereupon the deed was executed by both husband and wife and placed of record. The daughter, Ina May, paid no consideration for the deed, and the intention of the husband and wife was to make her a trustee and that she should 'reconvey the land to her mother, Alice Barker. Mrs. Barker continued in the occupancy of the land with her minor children until her death, which occurred October 19, 1905. The brothers and sisters, of Ina May frequently requested her to convey the land to her mother, and about two weeks before the mother died Ina May requested W. H. Holmes, the attorney who represented her mother in a suit for divorce then pending against her father, to prepare a deed to convey the land to her mother, who was then sick in a hospital and not expected to recover. Mr. Holmes drew the deed as requested, which Ina May then executed. She was about to take it to her mother, when, at the suggestion of Mr. Holmes, she left it in his care. Shortly afterward Ina May again called and asked for the deed, but Mr. Holmes made some excuse and the deed was still left with him. When asked by other members of the family why this deed was not recorded, Ina May answered that it was because she did not have the money to pay for such recording.
The first year after the conveyance to the daughter the mother farmed the land herself. The next year, 1905, she leased the farm to George Doty and Ina May Doty, his wife, Ina May having married Mr. Doty shortly after the execution of the deed. Ina May knew that, the deed was made to her for the benefit and use of her mother, and did not, during her mother’s life,. claim to own the land, but admitted that it belonged, to her mother. She testified on the trial that she had made the deed conveying the land to her mother, and that if her mother lived the title passed, but if she died the title should not pass, because she did not want her father to have any part of it. This, she claimed, was. the status of the deed at her mother’s death. Shortly after her mother’s death she procured the deed from Mr. Holmes, and burned it. Ina May and her husband have entered into a contract with Mr. Holmes to convey to him a three-fourteenths interest in the land.
The conclusions of law were as follow:
“ (1) I find that the deed mentioned in finding No. 12 was delivered to W. H. Holmes, as the agent of Alice Barker; that delivery of said deed to him was delivery of the same to Alice Barker; and that said deed passed the title to Alice Barker.
“(2) I find that the plaintiff and the heirs are entitled to the relief prayed for, and that the land should be partitioned as the law requires.
“ (3) I find the title to the land in the heirs as mentioned in the petition, and that the deed from Barker and wife to Ina May Barker should be canceled and held for naught.”
The plaintiffs in error state the question to be decided thus:
“Under the rulings of the court on demurrers, the plaintiff was confined in his claim to the first count of the amended petition upon which the case was tried, and under the evidence that was admitted by the trial .court the only question in controversy in the case, and the one upon which the case was tried and decided, was whether the said instrument signed by Ina May Barker was ever delivered to her mother, Alice Barker, and ever became effective in such manner as to devest the-said Ina May Doty of the title to said property. . . . In the first conclusion of law the court states that the instrument signed by the said Ina May Barker was delivered to W. H. Holmes as the agent of Alice Barker, and that the delivery of said paper to him was delivery of the same to Alice Barker, and that the same passed the title to Alice Barker. There is nothing in the find ings of fact to the effect that the instrument from Ina May Doty to Alice Barker was ever delivered and became effective as a deed. The plaintiffs in error claim that there is no evidence to sustain the above conclusion, and, therefore, that the judgment should have been for the plaintiffs in error.”
If the conclusion that the deed was delivered and passed the title to Mrs. Barker is sustained by the evidence, the judgment must be affirmed, whether such conclusion is technically one of fact or of law. The rule of law applicable to this inquiry has been stated as follows:
“ ‘What constitutes a sufficient delivery is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby devest himself of title?’ (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.)” (Kelsa v. Graves, 64 Kan. 777, 779, 68 Pac. 607.)
It appears that a few months after the deed from the father and mother to Ina May had been made Mrs. Barker commenced a suit for divorce, retaining Mr. Holmes as her attorney, who thereupon called upon the register and received the deed. Mr. Barker left the family home soon after that deed was made, and did not live there afterward. Mrs. Barker, being sick, was taken to a hospital, and while she was in the hospital other members of the family requested Ina May to make a conveyance to her of the lands in question. In accordance with this request Ina May went to Mr. Holmes’s office for that purpose. She testified that one reason for making the deed was that she was about to be married. Testimony was given that she told Mr. Holmes that the members of the family had complained that her intended husband might lay claim to the property, and that she wanted to convey it herself before marriage. Her father testified that she told him that she had made the deed before she was married, and that when he told her it ought to have been recorded she said: “I did n’t have the money to put it upon record.” She was married to Mr. Doty in a few days after signing the deed, and her mother died in about three weeks after that time. Soon after her mother’s death she said, in speaking of the deed to her sister, as the latter testified, that she felt that it was a great responsibility to have the place, that she was glad the deed was made over to all alike, and that she did not want any more trouble over it; that it would be better never to mention the deed, but that she did not intend to hold the property; that she intended to divide it fairly among the heirs, as had been the wish of all.
Her brother testified that she told him she had made the deed to her mother and left it at Mr. Holmes’s office, where it was made, for her mother; that she was glad she did not have to bother about it any more, since she had made it over to her mother. After destroying the deed, which she did in a month after her mother’s death, Mrs. Doty refused to give to the plaintiff any note or memorandum to show that her brothers and sisters had an interest in the land. The testimony of Mrs. Doty and of her sister who accompanied her to Mr. Holmes’s office fairly tends to show that she went there for the purpose of conveying this land to her mother, comformably to the wishes of the family, and not merely to sign a paper that she might afterward deliver or not as she chose; and the sister’s testimony is to the effect that Mrs. Doty called at Mr. Holmes’s office the second time for the deed, in order to give it to her mother. The sister’s testimony concerning what took place at this second call is as follows:
“Ques. What did your sister tell him [Mr. Holmes] ? Ans. She said we had all wanted the deed, so we mentioned getting the deed, and he talked in a way to pacify her and we left the office and went home.
“Q. What did she tell him she wanted ? A. She said she wanted the deed, or our mother had wanted to see it, and all the girls had wanted it out of the office, and I especially had urged her .to take it from the office, so we went there for it.
“Q. You simply told him you wanted the deed; that your mother wanted to see it? A. Yes. But we were late anyway, so we were hurrying, and left the office and said that we would get it some other time.
“Q. What did Holmes say in regard to the request to get the deed? A. Well, I don’t remember; I don’t .suppose he could find it.”
The deed in question was left with Mr. Holmes, it seems upon his request. He already had the possession of the deed made by the father and mother to Ina May, and was then acting as attorney for the mother in the suit for divorce. Whether the deed was so executed by Ina May and left with him for her mother, with the intention thereby to devest herself of title and to vest .such title in her mother, was a question to be decided by the court upon the testimony referred to, and other evidence of a like nature. As stated in Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, the court was authorized to determine this question of delivery, which is largely a matter of intention, from the words and acts •of the grantor. The evidence of such words and acts, in the light of all the circumstances, was sufficient to warrant the conclusion reached by the court. The fact that some of the testimony referred to was contradicted is immaterial, for findings based upon conflicting evidence must stand if there is competent evidence which, if believed and acted upon, supports the findings.
The judgment is affirmed. | [
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Per Curiam:
William Juengling was injured by falling from a dray on which he was riding in a street of Emporia. He brought an action against the city for damages, claiming that his fall was occasioned by a wheel striking the cover of a manhole which had been negligently permitted to project about eight inches above the level of the highway. He recovered judgment, and the defendant prosecutes error.
It is contended that there was no evidence of negligence on the part of the city, but the argument in support of this contention goes rather to the credibility of the testimony given by one of the plaintiff’s witnesses. What the actual condition of the street was, and whether the city was negligent in permitting such condition to exist, were fair matters for the determination of the jury.
The plaintiff at the time of the accident was standing up in the dray, and it is urged that this fact constituted contributory negligence on his part, especially in view of his age — 68 years. It can not be said as a matter of law, however, that it is negligence for one to stand up while riding upon a dray in a city street.
The jury were allowed to view the place of the accident. Objections are made in this connection upon the following grounds: (1) That the officer placed in charge of the jury was not sworn; (2) that no person was appointed to show the jury the place; and (3) that some of the jurymen were guilty of misconduct during the view. To these in turn it may be said:
The statute (Civ. Code, § 277) does not require any additional oath to be administered to the officer selected to have charge of a jury under such circumstances.
The only purpose of having some other person accompany the jury is that he may show them the place to be viewed, and as they found and inspected the right place the omission was necessarily unimportant. (Coughlin v. C. I. & K. Rly. Co., 36 Kan. 422, 13 Pac. 813.)
The specifications of misconduct are that some of the jurors talked with an outsider about which way the •sewer ran, that one made measurements at the manhole, and that another dug into the earth near it with a knife and said that he had struck gravel or rock or something. It is apparent that no substantial prejudice could have resulted from any of these matters, and therefore there was no occasion for granting a new trial. (12 Encyc. Pl. & Pr. 550.) In the cases of The City of Indianapolis v. Scott, 72 Ind. 196, 205, and Hardin v. The State, 40 Tex. Crim. Rep. 208, 221, 49 S. W. 607, more serious misconduct was held nonprejudicial. In the former (an action for damages resulting from a defective sidewalk) a juror without authority examined a sleeper at the place of the injury, breaking off pieces and thrusting his knife into it. In the latter (a murder case) one juror stepped the distance from the point of the homicide to the place from which a witness testified that he had seen it; and another measured a bullet-hole in a neighboring wall.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This is an action for slander. The petition alleged the utterance of words which the plaintiff claims imputed to him the crime of adultery. The trial court sustained an objection to the introduction of any evidence for the reason that the petition failed to state facts sufficient to constitute a cause of action. In justification of this ruling two contentions are made: (1) That the language pleaded as defamatory did not charge an act of sexual intercourse; and (2) that, even if so, it did not charge adultery or any other public offense, because it failed to allege that the woman in the case was married. The petition contained several counts, only one of which — that designated as the third —need be considered. Its substantial allegations, so far as here important, were as follow:
“That all of the times, hereinafter mentioned the plaintiff was; and now is, a married man . . . that on or about June 24, 1905, . . . such .defendant . . . did, falsely, wantonly, and maliciously, speak frnd publish of and concerning the plaintiff, as follows : ‘Bashford,’ meaning the plaintiff, ‘was undoubtedly down the railroad track with some woman.’ T,’ meaning the defendant, ‘believe it,’ meaning that he, defendant, believed that the plaintiff was down the railroad track with some woman. ‘He,’ meaning the plaintiff, ‘is guilty,’ and T,’ meaning the defendant, ‘know he,’ meaning the plaintiff, ‘is,’ meaning that the plaintiff, on a certain night theretofore, had been down the railroad track of the Missouri Pacific Railway Company engaged in an act of adultery.”
It is argued that the words of the defendant are not capable of the meaning attributed to them; that in themselves and according to their ordinary significance they imputed to the plaintiff no conduct that was not perfectly proper and innocent; and that no facts are set out in issuable form giving them any other color. To this it may be answered that, while the words “Bashford was undoubtedly down the railroad track with some woman” are susceptible of an innocent construction, they might under some circumstances carry the suggestion of an illicit relation. And the expression “he is guilty” is entirely inconsistent with the idea that the speaker had in mind a harmless act. Of this expression the defendant says in his brief: “How does it imply adultery? He may have been guilty of fornication; simple assault; robbery; insult or indiscretion.” There is no difficulty in saying that the words complained of, taken together, might well imply a charge of unchastity. As they were capable of that meaning it was the proper office of the innuendo to present the issue whether they were in fact so used. (Henicke v. Griffith, 29 Kan. 516.)
“It is not necessary in order to constitute actionable slander that the words should amount to a directly affirmative charge of fornication, adultery, or unchastity; it is sufficient if the words were calculated to induce the hearers to suppose and understand that the person • against whom they were uttered was guilty of unchastity, charges of unchastity against men being within the application of the rule as well as imputations upon women.” (25 Cyc. 319.)
It is hardly necessary to cite further authorities on this question, but the following examples of words that have been held actionable as charging illicit sexual relations seem sufficiently like those under consideration to be pertinent:
“What a pity we have got such a man for a director. His moral character is not good. You must have heard about his being caught with the house-girl. I have got proof enough. I have been looking around and I know it’s so. He is vile.” (Lovejoy v. Whitcomb, 174 Mass. 586, 587, 55 N. E. 322.)
“Baden saw or told him that ... he either scared or drove Jane Owens and a man supposed to be Jo. Dearmond up from behind a log; . . . that they broke and run, and that he (Baden) got her parasol and handkerchief, and if anybody did not believe him he could come and see them.” (Proctor v. Owens, 18 Ind. 21, 81 Am. Dec. 341.)
“She is a dangerous woman, and inclined for men.” (Ronnie v. Ryder, 8 N. Y. Supp. 5, 6.)
“I knew her grandfather Link. He was a woman’s man, and Rose is just like him. Her mother, Henrietta Parkhurst, is like her father, and Rose is no better.” (Derham v. Derham, 123 Mich. 451, 452, 82 N. W. 218.)
“Paget left his wife at my father’s, and then went down to 'George’s with his horse and sleigh,, and wanted George to take care of his horse, and while he was gone, Paget and his wife went into the bedroom together, and when George came back from the barn, he found them both there.” (Sturtevant v. Root, 27 N. H. 69, syllabus.)
“She [a prostitute] is, I understand, under the patronage or protection of a Mr. More.” (More v. Bennett, 48 N. Y. 472, 475.)
“Augustus . . . caught them ... [a man and a woman] together in the packing-róom, and went home and told his mother.” (Catharine Evans v. Tibbins et uxor., 2 Grant’s Cases [Pa.] 451.)
“Complaints from outside parties were sent to the department, one asking for his dismissal on account of intimacy with a well-known young local elocutionist.” (Collins, Appellant, v. Dispatch Pub. Co., 152 Pa. St. 187, syllabus, 25 Atl. 546, 34 Am. St. Rep. 636.)
“I do not visit Mrs. Henicke . . . would be ashamed to be associated with her. . . . Mrs. Henicke keeps that grocer man, Broadwell- — -he calls two or three times a day; she . . .. thinks more of Broadwell than she does of her husband; Henicke . . . is a mere ornament which she keeps there for certain purposes; Broadwell remains in the house for hours when Henicke ... is away, alone with Mrs. Henicke.” (Henicke v. Griffith, 29 Kan. 516, 517.)
That no injustice is done the defendant by the interpretation suggested is shown by his answer, which, after a general denial, proceeded as follows:
“For a further defense in said cause defendant alleges the fact to be that on the 13th day of June, 1905, on the night of said date, between the hours of eight o’clock p. M. and half past ten o’clock P. M. of said night, in the county of Norton, state of Kansas, and near the town and village of Edmond, in said county, on or near the track of the railroad known as the Missouri Pacific railroad, a short distance east of said Edmond, to wit,' a -little more than one-half mile, the plaintiff was then and there in company with a woman whose name is to the defendant unknown, and then and there committed an act of sexual intercourse with such woman.”
No special damages having been alleged, doubtless the defamatory words were not actionable unless they did charge adultery. It is therefore necessary to decide whether illicit sexual intercourse with a single woman can constitute that offense, for if not the petition was probably defective in omitting to state that the woman referred to in the utterance complained of was married. (25 Cyc. 443.) There is a conflict of autnority upon this question, the origin of which is thus explained in volume 1 of the American and English Encyclopsedia of Law, at pages 747, 748:
“Adultery, by the common law, is criminal conversation with a man’s wife. The woman must be married; she must be another man’s wife; and whoever, married or single, has illicit intercourse with her, becomes guilty of adultery.
“The common law concerned itself with the act of •adultery only as it tended to expose an innocent husband to maintain another man’s children, and having them succeed to his inheritance. Hence adultery was limited to criminal conversation with a married woman; the connection of a married man with a single woman does not, by the common law, make him guilty of the offense. ... By the canon or ecclesiastical law adultery was sexual connection between a man and a woman, of whom one at least was lawfully married to a third person. The ecclesiastical law regarded adultery as a sin arising out of the marriage relation. And, as a violation of the marriage vow, it was equally great whether the offender was male or female. Hence the offense was broader than at common law, and was committed by a married man having connection with a single woman. ... In defining the crime of adultery under statutes of this kind the courts of some of the states have, it seems, adopted the definition of the common law. Thus it is held that the sexual intercourse of a single man with a married woman is adultery in the man. But it is considered that adultery can be committed only with a married woman, so that a man, though married, does not commit the crime by having intercourse with a single woman.
“Other authorities are more in accordance with the ecclesiastical law. They sustain the general proposition that an illicit sexual connection between two per sons, either of whom is married, is adultery in the married person. Consequently a married man commits-the crime by having intercourse with a single woman.”'
In volume 1 of the Cyclopedia of Law and Procedure, at page 953, it is said:
“Since the gist of the crime, independently of statutory enactments, is the danger of introducing spurious, heirs into a family, whereby a man may be charged with the maintenance of children not his own, it would seem to be the better doctrine that a man can not be guilty of adultery by sexual intercourse with an unmarried woman; and where he is criminally liable for the offense, the fact arises from some feature of the-statute which brings the act within the definition given of the crime.”
On the other hand, Mr. Bishop, in his work on Statutory Crimes, says (3d ed., §§ 654a, 656, 657) :
“Although adultery was not punishable in the English common-law courts, it was in the ecclesiastical; and it was ground also for the divorce from bed and board. The word, therefore, had acquired a precise legal meaning; and, for reasons already explained, the courts, in interpreting the new statute, should give it-this established meaning. ' It is: Adultery is the voluntary sexual intercourse of a married person with one not the husband or wife. ... In all cases where one of the parties to an act of criminal intercourse is married and the other is not it is adultery in the married party and fornication in the unmarried. Such,, by the superior weight of the adjudications, the doctrine is believed to be. . . . However men may differ in their speculations, our law, from its earliest periods down to the very time when these adultery statutes were enacted, has placed the incontinence of husband and wife on an exact level; granting the same remedy of divorce from bed and board — or, under statutes, from the bond of matrimony — for either; it has had constantly on.e definition, and no more, of ‘adultery.’ We have seen what the definition is. A court sits to administer the law which it finds, not the speculations of the incumbents of the bench or of anybody else. So that, whatever the private views of a judge may be, he should judicially give to the word 'adultery’ in the statutes under contemplation the meaning which the law has assigned to it, unless the legislature has indicated otherwise.”
The Kansas statute (Gen. Stat. 1901, § 2221) reads: "Every person who shall be guilty of adultery . . . shall on conviction be adjudged guilty of a misdemeanor.” The law in this form was enacted in 1869, amending a section adopted from Missouri, which read: "Every person who shall live in a state of open and notorious adultery.” (Rev. Stat. Mo. 1845, ch. 47, art. 8, § 8.) The Missouri courts seem not to have directly decided the force of the word in the original act. But in State v. Bess, 20 Mo. 419, it was said:
“It is not sufficient to charge that two persons did live in a state of open and.notorious adultery; it must be shown that one or both are married; adultery is a violation of the marriage bed.” (Page 420.)
This seems to imply that adultery is possible where either one of the parties is married. A similar expression occurs in Dameron v. The State, 8 Mo. 494; and in State v. Bonine, 85 Mo. App. 462, this language was used in interpreting a' statute making it a misdemeanor falsely to accuse a female of adultery:
“Adultery is defined as criminal intercourse between a married person and one of the opposite sex, whether married or single — sexual connection between a married woman and an unmarried man or a married man other than her husband.” (Page 467.)
Whatever the word may have meant in the original enactment we think it was employed in the amendment in its usual and ordinary significance, which we conceive to be an act of illicit sexual intercourse committed by a married person — its essential criminality consisting of the violation of the marriage vow. In the edition of Webster’s dictionary published in 1854 this definition was given:
“Violation of the marriage bed; a crime, or a civil injury, which introduces or .may introduce, into a family, a spurious offspring.
“In common usage, adultery means the unfaithfulness of any married person to the marriage bed.”
While this recognizes the etymological meaning, it points to the other as that more generally accepted. Worcester’s dictionary, in the edition of 1859, adopted Burrill’s definition, in these words:
“Criminal intercourse between a married person and one of the opposite sex, whether married or single; violation of the marriage bed.”
The following definitions are from the current editions of the works cited:
“The unfaithfulness of a married person to the marriage bed; sexual intercourse by a married man with another than his wife, or voluntary sexual intercourse by a married woman with another than her husband.” (Web. Inter. Diet.)
“Violation of the marriage bed; carnal connection of a married person with any other than the lawful spouse; in a more restricted sense, the wrong by a wife which introduces or may introduce a spurious offspring into a family.” (Cent. Diet.)
“The sexual intercourse of two persons, either of whom is married to a third person.” (Stand. Diet.)
“The voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” (Bouv. Law Diet.)
“In criminal law. Criminal conversation between a married person and one of the opposite sex, whether married or single, being in the former case sometimes called double, and in the latter single, adultery. In England it was anciently punished as a crime, but is now left to the coercion of the spiritual courts, the temporal courts taking no cognizance of it, otherwise than as a private injury; for which, in the case of adultery by a wife, the husband may have an action of trespass against the adulterer.” (Burrill’s Law Diet.)
The statement that at the common law the term “adultery” was confined to illicit sexual intercourse to which a married woman was a party is at least inaccurate. The word in English law has always been applicable to such an act where either participant is married. In Blount’s Law Dictionary (1717) it is said:
“Adultery is properly spoken of married persons; but if only one of the two, by whom this sin is committed, be married, it makes adultery; which was severely punished by the ancient laws of this land.”
This is repeated in substance in the law dictionaries of Crowell (1723) and Cunningham (1783). But as adultery was not a crime cognizable by the temporal courts the common law had to do with it only as affording a right of private action to the injured husband. The common-law courts gave no remedy of any character for the incontinence of a husband where his paramour was unmarried, not because his act was not adultery, but because it was not the kind of adultery of which they had jurisdiction; they afforded no punishment for unfaithfulness to the marriage bed by either spouse, not because it was not in each case adultery, but because adultery was not a crime.
The matter is very fully treated in volume 2 of the tenth edition of Wharton’s Criminal Law, where it is said (§§ 1717-1719, 1721) :
“Adultery is not cognizable penally by the English common law, its punishment being reserved in England to the ecclesiastical courts. As, however, in those portions of the United States which accept the English common law the ecclesiastical law is considered, so far as concerns the definition of the offense, to be in force, we must begin by inquiring what the ecclesiastical law in this respect prescribes.
“Adultery, by the Roman law, was confined to illicit sexual intercourse with a married woman, the woman and her paramour being principals in the offense. A married man who had illicit intercourse with an unmarried woman was not guilty of this specific crime. . . . But Christianity, speaking through the canon law, materially modified this feature of Roman juris prudence. . . . Hence the offense was committed by a sexual violation of the marriage vow, be the offender male or female. The married man having sexual intercourse with a woman other than his wife was as guilty of adultery as a married woman having sexual intercourse with another than her husband. . . . Adultery, according to the definition thus established, is sexual connection between a man and a woman, one of whom is lawfully married to a third person; and the offense is the same whether the married person in the adulterous connection is a man or a woman. The Roman law being in this respect superseded, this definition was accepted by every Christian state at. the time of the colonization of America, and is no doubt part of the common law brought with them by the colonists of all Christian nationalities. That it corresponds with a sound judicial philosophy is illustrated by the fact that it is incorporated in the codes of the principal continental European states. . . . Where there is a positive local statute defining adultery, of course such statutory definition must be accepted. But when ‘adultery’ simply is made indictable, then it must be remembered that, as just stated, the term is to be taken in the sense accepted at the time, of the settlement of America, and for many centuries internationally received, namely: sexual connection by a man and a woman, one of whom is lawfully married to a third person. And this definition alone meets the full evil, which is the contempt cast on the marriage state, and the misery and demoralization produced in families by marital disloyalty of either father or mother.”
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
In the year 1903 the legislature passed an act which reads as follows:
“Section 1. Whenever, in any city of the first or second class, a petition shall be filed with the clerk of any such city, signed by a majority of the resident owners of real estate fronting on any street or portion of street not less than two blocks in length, requesting the mayor and council of any such city to have said street or portion of street not less than two blocks in length sprinkled, setting forth the length of time during which the sprinkling is to be done, it shall be the duty of said mayor and council thereupon to provide for the sprinkling of said street or portion of street not less than two blocks in length named in said petition, by letting the contract to the lowest and most responsible biddér.
“Sec. 2. For the purpose of defraying the costs and expenses of said sprinkling, the- said mayor and council are hereby authorized and empowered to levy upon the real estate fronting upon said street or' portion of street not less than two blocks in length named in said petition a tax sufficient to defray the entire expense of said sprinkling, including cost of sprinkling intersections, which tax shall be apportioned according to the lineal front footage of property adjacent to said street or portion of street sprinkled, without regard to improvements thereon.
“Sec. 3. The amount of said assessments so levied shall be paid into the treasury of any such city on or before the 1st day of August in each and every year, and in case the same shall not have been paid within that time, the amount so levied shall be certified to the clerk of the county in which said city is located by the clerk of any such city at the same time and in the same manner as other city taxes, to which amount shall be added a penalty of fifteen per cent, thereof.” (Laws 1903, ch. 132.)
In May, 1906, a petition was filed with the clerk of the city of Abilene, a city of the second class, signed by a majority of the.resident owners of property fronting on certain streets, praying that such streets be sprinkled for the years 1906,1907, and 1908. Pursuant to the petition the mayor and council ordered the streets designated to be sprinkled for a period of one year, commencing June 6. Bids were invited, a responsive offer was accepted, and a contract was entered into accordingly. On July 6 an ordinance was passed levying a proportionate share of the cost and expenses of the year’s sprinkling upon real estate of the Union Pacific Railroad Company (which did not sign the petition), according to its foot frontage on some of the streets sprinkled. The ordinance was published on July 18, and the assessment not having been paid prior to August 1 the levy was certified to the county clerk. Upon the threat of the county treasurer.to collect the assessment the railroad company commenced a suit to enjoin him from so doing, the city being made a party défendant. Issues were framed and tried, an injunction was refused, and the plaintiff prosecutes error.
The chief contention in this court is that for various reasons the statute and proceedings ending in the levy are unconstitutional, and therefore void. The defendants claim that constitutional questions are not raised v the pleadings. The petition contains charges of illegality in general terms, among them' being the following :
“Said plaintiff further alleges that the city of Abilene has never had any jurisdiction or authority of law to make the above assessment; . . . that said city made the contract for sprinkling without any right or authority to do so; . . . that at no time has there been a legal determination that any tax was assessable against the property of the plaintiff above described.”
The subsequent pleadings do not limit the scope of these allegations. The answer recites the proceedings upon which the assessment was based, and the reply contains the following unchallenged assertions:
“Said plaintiff denies that said city of Abilene entered into any legal contract with Jay Harding for the sprinkling of streets described in said plaintiff’s petition, and said- plaintiff denies that the tracts of land described in said plaintiff’s petition were included in the ordinance referred to in said answer or made a part of any sprinkling district of said city of Abilene, and said plaintiff denies that any of the property described in said plaintiff’s petition was legally taxed or charged any amount whatever for sprinkling purposes.”
The defendant might have moved to strike from the petition and the reply the allegations quoted or might have moved for more definite and certain statements. Not having done so, the question'of the illegality of the assessment was opened as widely as possible and includes the unconstitutionality of the statute and of the proceedings under it. That constitutional questions were considered and decided in the district court is clear from the fact that the trial judge requested argument upon them at the conclusion of the evidence.
• The unconstitutionality of a statute or of proceedings ider a statute need not be pleaded with any greater initeness or certainty than other issues. General ements, and even conclusions which by fair intend- ■ are directed to the point, will be sufficient if not ■ed by motion. A general demurrer will raise the U. True, reluctance to hold an act of the legis lature void leads the court to refuse a hearing to one not injured by the statute, to enforce estoppels against a plea of unconstitutionality, to seek other grounds for the decision of causes, if full justice may still be accomplished, and to adopt a special code of rules of interpretation. But the determination of whether a material constitutional question is actually presented is to be made by construing the pleadings according to the usual methods.
The plaintiff argues that the assessment is void because of the arbitrary character of the statute, which controls the conduct of the mayor and council at all points and allows no opportunity at any stage of the proceedings for notice to property owners and a hearing with respect to their interests. The front-foot rule of apportioning special assessments which the statute requires the mayor and council to act upon is condemned as contrary to the constitution of the United States, and it is vigorously contended that street sprinkling is not a local improvement in the sense that special assessments may be levied against abutting real estate to pay its cost.
The last question'may be left one side. Courts of the highest authority differ in opinion respecting it, the rights of the parties to this litigation may be determined without deciding it, and for present purposes it may be assumed that the legislature may authorize special assessments against city property to pay the cost of sprinkling adjacent streets.
The front-foot rule of apportioning special assessments was definitely approved by this court in the case of Parker v. Challis, 9 Kan. 155, decided in 1872. The syllabus reads as follows:
“A city of the second class has power to stipulate in one contract for making sidewalks on several streets, and to assess the cost thereof upon the different lots fronting on such sidewalks, according to the front foot thereof.”
In the opinion it was said:
“They [the mayor and council] may sidewalk the whole city at once, and by a single contract. But the right to assess the lots fronting on the improvement to pay for the same is coextensive 'with the power to make it. Nothing in terms or by implication restricts the assessment to a single street. True, as urged, a sidewalk on one street may cost more than a sidewalk on another, and if both be united in one contract and one assessment the owner of a lot on the latter street may have to pay more than if his street only was side-walked. But the same is true not only of two streets but also of two blocks on the same street, or of two lots in the same block. Still, there is no injustice in apportioning the entire cost of a sidewalk upon the several lots fronting it. The value of a sidewalk depends greatly upon its extent. One in front of a single lot with none in front of the adjacent lots is of comparatively little benefit. One object of a sidewalk, as of grading or macadamizing a street, is to secure easy and convenient means of approach; and within certain limits the farther those easy and convenient means of approach are extended the greater the benefit to the lot. Injustice may be done by uniting in one contract and assessment streets in different parts of the city, not connected by sidewalks, and upon which the cost of construction is different. But almost any power may be abused. Still, that possibility is no argument against its existence.” (Page 161.)
The coürt has adhered to this doctrine ever since it was announced, and the legislature has continually acted upon it. It is sustained by the great weight of authority in the United States. For a time it seemed that the rule might be endangered by the decision of the supreme court of the United States in the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, but the scope of that decision has been limited and explained by the opinions in French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879, and subsequent cases, so that the position taken in Parker v. Challis, 9 Kan. 155, is still sound. The front-foot rule is a reasonable method of ascertaining and apportioning the benefits accruing to real estate from local improvements, and may lawfully be utilized by the legislature or any subordinate tribunal authorized to make the assessment. It may be abused, and palpable injustice may result, in which event equity may interfere. But if it be not patent and obvious that the burden imposed is entirely disproportionate to benefits received the claimed excess will not be enjoined, although the property owner has had no opportunity to contest the rule.
The fundamental fact upon which the validity of special assessments rests is an increment of benefit to the property taxed resulting from the improvement, and the property owner must at some stage of the proceedings have notice and opportunity to be heard, or the equivalent of such notice and opportunity, before a special assessment can become a valid charge against him. (Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781.)
If not forbidden by the constitution the legislature may assume complete control over the whole subject of a public improvement, from the fixing of the district boundaries down to the apportionment of the assessment, or control over one or more of the essential steps, and if it should do so the theory is that the property owner is given the equivalent of a notice and hearing by representation in the legislature. (Parsons v. District of Columbia, 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943; Gray, Lim. of Tax. Power & Pub. Indebt. § 1130.) In the work last cited it is said:
“According to the theory of constitutional government, the acts of the legislature in determining that a tax shall be laid, in fixing the boundaries of the district taxed, in determining the sum to be raised, the rate of the tax, and the rule of apportionment, are the acts of the whole state; the individual is not entitled to any notice at all of the legislative proceedings, and has no right to demand a hearing before the legislature. This proposition is derived from the nature of constitutional government. Each citizen is represented in the legislature; he is heard there through the voices of the popular representatives; the act of the legislature is his act.” (§ 1130.)
A distinction is made, however, when one or more essential features of a special-assessment proceeding are committed to some tribunal or body inferior to the legislature. In that event notice and opportunity to contest them must be allowed. The principle is illustrated by the case of Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 869. There the legislature committed the formation of an •irrigation district to a subordinate body. In the opinion it was said:
“The legislature by this act has not itself named any irrigation district, and, of course, has not decided as to the nature and quality of any specific lands which have Ibeen included in any such district. . . . The legislature, not having itself described the district, has not decided that any particular land would or could possibly 'be benefited as described, and, therefore, it would be necessary to give a hearing at some time to those inter•ested upon the question of fact whether or not the land -of any owner which was intended to be included would be benefited by the irrigation proposed. If such a hearing were provided for by the act, the decision of 'the tribunal thereby created would be sufficient.” (Pages 166, 167.)
Provision for notice and hearing need not be made "in the statute by express words. It may be implied. In reality the courts simply read the provision into the ¡■statute in order to uphold taxation schemes against the fourteenth amendment to the constitution of the United States, which forbids any state to deprive any person •of property without due process of law. This was done in the case of Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781. But the statute must be one which will ¡allow notice and a hearing to be interpolated. If it arbitrarily fixes the steps to be taken in a manner indicating that notice and a hearing upon some subject like benefits are excluded, it must be judged accordingly.
Turning to the statute it is clear that the sum to be apportioned against the propérty in the sprinkling district is the contract price of the work. The amount is fixed by the accepted bid, which the property owner can not reduce or controvert. The city authorities have no discretion over the rule of apportionment, and the property owner has no right to be heard upon that question. The legislature has exercised its lawful power to prescribe the front-foot rule. Exclusive jurisdiction over the necessity for the improvement, the extent of the sprinkling district and the question of benefit from the improvement to tracts of property in the district is conferred upon resident property owners. The power conclusively to determine all these matters is delegated unqualifiedly to them, and they may, at will, without any kind of notice, hearing or liability to revision irrevocably bind all the property in any expanse of territory greater than two blocks in which a majority can be secured to sign the petition. The language of the statute is that upon the filing of the petition “it shall be the duty of said mayor and council thereupon to provide for the sprinkling of said street or portion of street” ■ by letting a contract. The obligation is imperative, and it would be the duty of the courts to coerce the mayor and council by mandamus should they disregard the prayer of the petitioners. Neither the city officials nor the courts can listen to the complaint of an aggrieved property owner. This is not merely a delegation of' legislative power — it is the grant of a private license to disregard due process of law and tyrannize over other private individuals. Legislation of this character is discussed in Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and Hutchinson v . Leimbach, 68 Kan. 37, 74 Pac. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384. In Abbott’s case a statute directed the board of county commissioners to improve county roads upon private petition. In the opinion it was said:
“The first contention is that chapter 214 is unconstitutional because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes and special assessments on the property of others. The petitioners named in the statute are authorized, absolutely .and arbitrarily, to determine whether the improvement is necessary and shall be made. No discretion, exercise of judgment, or revisory or supervisory control, is vested in the board of county commissioners or any other tribunal or officer elected by or responsible to the people. When the petition is presented to the board of county commissioners demanding the improvement of a road, it is, in the language of the statute, ‘made the duty of such county commissioner to cause the same to be improved.’ The county commissioners have no discretion to refuse the improvement.” (52 Kan. 158.)
In Leimbach’s case a statute required tracts of land to be taken out of a city upon private petition. In the opinion it was said:
“Under the provisions of the act the will that the corporate boundaries shall be changed proceeds not from the legislature or from the council, but from the signers of the petition, who are under no official responsibility, and of whom no other qualification is required than that they desire the change. These provisions are therefore void.” (68 Kan. 46.)
It may be admitted that a landowner may go to a court of equity and show that his property does not lie in the taxing district, but the clear intent of the law is that the necessity for the improvement, the size of the district, the question of benefits to property in the district, the cost of the improvement and the rule of apportionment — all the factors of a lawful assessment but one — shall not be contested or reviewed.
The point that section 1 of the statute delegates legislative power to private parties is not specifically made in the brief for the plaintiff and the statute can not be .held void on that ground in this case. Since, however, the effect of the section is to forbid notice and a hearing-upon matters concerning which property owners have a constitutional right to be. heard, that specification of invalidity is sustained.
The judgment of the district court is reversed, and the cause is remanded with instruction, to grant a permanent injunction, as prayed for in the petition. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiffs executed an oil-and-gas lease of their land, which reads as follows:
“This agreement, made and executed in duplicate this 29th day of. October, A. D. 1902, between John Davis and Mary Davis, parties of the first part, and L. A. Lockwood and George F. Gurnsey, parties of the second part: .
“Witnesseth, That the said parties of the first part, for the consideration of one dollar in hand paid, the receipt of which is hereby acknowledged, and of other valuable considerations hereinafter mentioned, do hereby' lease, demise and let to the said party of the second part, its successors or assigns, for the term of ten (10) years, and as much longer as gas or oil may be found in paying quantities, from the date hereof, the following-described real estate situated in the county of Chautauqua and state of Kansas, to wit, S. % of N. W. 14, section 23, township 34, range 11, acres 80; containing 80 acres, more or less. The party of the second part agrees to deliver to the party of the first part one-tenth of the oil realized from these premises, in tafiks at the wells, without cost, or pay the market price therefor in cash, at the option of the first party. If oil or gas be found on these premises, all rights, benefits and obligations secured hereby shall continue so long as either can be produced in paying quantities.
“If gas is found in any well or wells, first party is- to have on demand sufficient gas from such well or wells for domestic purposes on said premises, free, provided there be more than is needed by said party of the second part on said premises. If, however, second party shall sell or market gas from any well producing gas only, it shall pay first party therefor fifty dollars per year for and during the time such gas shall be sold or marketed, said payment to be made on each well within sixty days after commencing to use the gas therefrom, and annually thereafter.
“Second party agrees to locate all wells so as to interfere as little as possible with the cultivated portion of the premises, to bury all gas and oil lines where they interfere with the use and cultivation of the land, and pay all damages to growing crops by reason of its. operation.
“The second party shall have the privilege of using sufficient water from the premises, and if necessary to drill therefor, to run all necessary machinery, but shall not use any water from private wells, cisterns or stock ponds without consent of party of the first part, and shall also have the right at any time to remove all machinery and fixtures placed on said premises.
“It is mutually agreed that the parties of the second part shall begin drilling within two miles of A. A. Spires’s farm within eight months from the delivery thereof, or in case of failure to do so, then and in that case this lease shall become null and void. In case no oil- or gas-well be drilled on said premises within twelve months from date hereof, it shall be at the option of party of the second part to pay twenty-five cents per acre annually thereafter, at their office in Independence, Kan., or lay pipes from mains or wells to within fifty feet of residence occupied by first party on above-described land, and furnish gas for two stoves and two lights, and no other or additional expense shall be incurred under this lease by second party, and this lease be binding so long as gas shall be thus furnished; provided, that if wells are sunk royalties shall be paid as above provided for, otherwise this lease shall be null and void, and no longer binding on either party.
“The second party shall have the right to erect, lay, maintain and remove all pipes, pipe-lines, machinery and structures necessary for the production, preservation and transportation of oil and gas produced on said premises.
“The second party shall have the right to discharge any encumbrance on said premises, and shall have a lien thereon for the amount so paid, together with all costs and expenses incurred.
“This contract shall extend to and be binding upon the heirs, assigns, successors and personal representatives of the parties hereto.
“Executed in duplicate the day and year first above written.”
The defendant, as the assignee of this lease, drilled a well in due time, which produced both oil and gas. Afterward the plaintiffs brought a suit to cancel the lease, claiming a forfeiture on the ground that the defendant did not pay oil royalties, did not furnish gas for domestic uses, and failed to pay $50 per year gas royalty. The case was tried by the court, and upon the conclusion of the plaintiffs’ evidence a demurrer to the evidence was sustained and judgment rendered against them.
After a careful canvass of the evidence the court is of the opinion the judgment was right, conceding that the lease is subject to forfeiture for the causes specified; but a more fundamental consideration is- determinative of the case. The right to claim a forfeiture depends entirely upon the proviso inserted in the paragraph limiting the time within which wells were to be drilled. The subject of royalties had been duly treated in other parts of the lease, and no reference had been •made to forfeiture as a penalty for the failure to pay them. The paragraph in question did not relate to royalties at all. It covered the subject of the drilling of wells and the consequences to attach in case no wells were drilled. If drilling did not begin within two .miles of the A. A. Spires farm within eight months from the delivery of the lease it was to be void. The lessees were then granted an option. They might drill a well on the leased premises within twelve months from the date of the lease; failing in this they might, in lieu of drilling such well, either pay twenty-five cents per acre annually for the land or pipe gas to it for two stoves and two lights; otherwise the lease was to be null and void. But if wells should be sunk on the leased land the provision for royalties should control, and not the provision relating to cash rent and gas piped from elsewhere. The proviso has no relation to the subject-matter of the paragraph, except to exclude the idea that anything could be substituted for the agreed royalties if wells were sunk, and has no more force than if it were the concluding sentence of the paragraph.
The question is not how one of the parties might have regarded the lease before it was executed, or what either of the parties now desires it to mean, but what the sense of the document is as it appears in the abstract. Parties are at perfect liberty to insert stringent forfeiture clauses in their oil-and-gas leases if they see fit to do so, but acting under the accepted canons of interpretation this court is constrained to say the lease under consideration does not provide for a forfeiture on account of the non-payment of stipulated royalties.
The judgment of the district court is affirmed.
Porter, J., not sitting. | [
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The opinion of the court was delivered by
Benson, J.:
An action for forcible entry and detainer was commenced by 'O. S. Gibson against W. G. Parker and J. J. Clark. On the return-day the defendants, by their attorney, answered that they did not desire to go to trial and that the plaintiff might take judgment for. restitution of the premises, and asked that the amount of a bond for appeal be fixed. Thereupon the parties offered proof of the rental value of the property and the justice fixed the amount of the appeal bond, and such bond was then given, filed, and. approved. The conditions of the bond were as follow, except the words in brackets, which were omitted:
“If, upon the further trial of the cause, judgment may be rendered against them, that they shall. pay double the value of the use and occupation of said property, [from the. date of the undertaking until the delivery of the property], pursuant to the judgment, and all damages and costs that may be awarded against them.”
The action having been docketed in the district court, the plaintiff moved to dismiss the appeal for want of jurisdiction, for the reason that “the appeal so attempted to be taken was not perfected in the manner prescribed by statute.” On the hearing of this motion the defendants tendered a good and sufficient bond, as required by the statute, to which the plaintiff obj ected. The objection was sustained, leave to file a new and amended bond was refused, and the action was dismissed. The defendants excepted, and, as plaintiffs in error in this court, ask for the reversal of the judgment of dismissal.
The defect in the appeal bond was the omission of the words “from the date of the undertaking until the de livery of the property.” (Justice’s Civ. Code, § 132a.) In Henrie v. Buck, 39 Kan. 381, 18 Pac. 228, it was held, in'an action against the sureties upon a bond in this form — the same words having been omitted — that the sureties were not liable for the use and occupation of -the premises. In that case, however, a new undertaking was filed, the authority of the court to allow it not being questioned. The opinion, therefore, is not decisive of the question here presented.
It is urgpd by the defendant in error that a bond as required by law was necessary to give the district court jurisdiction, and, as this bond did not contain all the statutory conditions, it gave no right of appeal. The justices’ civil code contains the provision, concerning such appeals, that when the undertaking is insufficient in form or amount the court may order a change or renewal of such undertaking. (§ 131.) This is ample authority to permit a new bond to be filed, if the defect is one to be cured by amendment. In Lovitt v. Wellington & Western Rld. Co., 26 Kan. 297, the bond had been given to a stranger to the record, not a party. The court said:
“Doubtless where an appeal bond is simply irregular or defective, under sections 139 and 140 of the code, and 131 of the justices’ act, the appellant should be permitted to supply a new in place of the defective bond; but the bond as filed in this case was an absolute nullity. It was not a bond to the party in interest, but one running to a stranger; not a bond to a trustee or one interested in or affected by these proceedings, but a bond to an absolute stranger to the record. The bond was not simply defective or irregular, or insufficient in amount, or insufficient in security, but a bond which, running to a party entirely a stranger to the record, was a perfect nullity.” (Page 298.)
It appears that section 131 of the justices’ act was construed in connection with sections 139 and 140 of the civil code. When thus considered it is readily seen that the power of amendment in furtherance of justice is quite broad. The bond was by no means a nullity; it afforded a remedy for waste, and for all costs and damage — all important statutory conditions. It was evidently given in good faith, and was approved by the justice, and the transcript certified thereon to the district court.
In the syllabus to the case of Skinner v. Holt et al., 9 S. Dak. 427, 69 N. W. 595, as reported in 62 Am. St. Rep. 878, it was said:
“An undertaking on appeal, not in the statutory form, but good as a common-law bond, gives the appellate court jurisdiction, including the power to allow a new undertaking to be filed upon seasonable application by one who appears to have acted in good faith.”
In St. L. K. & S. W. Rly. Co. v. Morse, 50 Kan. 99, 31 Pac. 676, it was held that the appeal bond was void, and that the district court did not have jurisdiction, but the court said:
“Probably if an appeal bond, when executed and filed, has any validity at all, it would sustain an appeal, so that the bond could be perfected with the leave of the court to which the appeal is taken. . . . An appeal bond not absolutely void would probably carry the case to the district court, however irregular it might be, and would probably constitute such an appeal as to enable the appellate court to take jurisdiction of the case and to do whatever might be right and proper in the case.” (Page 105.)
Where the undertaking is so defective as to impose no liability upon the sureties, or where, as in the Lovitt case, it is not made to or for a party to the action, it is void; there is nothing to amend, and jurisdiction is not conferred thereby on the district court. But where it is made to the proper party and imposes a substantial liability upon the sureties, and is filed in good faith, jurisdiction is given, although it is defective in some respects. In such a case the action should not be dismissed if the appellant applies seasonably for leave to file a good and sufficient bond. (St. L. & S. F. Rly. Co. v. Hurst, 52 Kan. 609, 35 Pac. 211.) As the abstract shows that such an application was made, we must hold that the court emed in dismissing the action, and in refusing to reinstate it upon a proper motion therefor.
The defendant in error also insists that the' action was not appealable for the reason that the judgment was entered by consent. It is true that the defendants stated that judgment might be taken, but at the same time, and as a part of that proceeding, they asked to have the amount of an undertaking for appeal fixed, which was then done. That the defendant in error understood that this consent was preliminary to an appeal is shown by his immediate production of testimony to show the rental value of the property in order to give the basis for fixing the amount of the undertaking. In his motion in the district court to dismiss this ground was not included. Both parties, and also the justice of the peace, considered the case appealable, and, we think, rightfully so.
The orders and judgment reviewed in these proceedings are reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case is one of fact. Was an application for appointment to office under the veteran’s preference law rejected in bad faith?
The office in question is that of county assessor of Harper county, under the tax law recently enacted.. By that law it was hoped to eradicate the chief evils- and abuses which had brought discredit upon the-former system of assessing property for taxation. To> carry out the beneficent purposes of the law much depends upon the county assessor, and competency for the-office includes a number of strongly marked attributes,, both of character and intellect.
The. time for making an appointment approached and there were no applicants. The board of county-commissioners became anxious over the matter and cast about for some suitable person to take the place. The members of the board discussed the subject among themselves and with others, and always the respondent,. Miller, a former county commissioner, stood out prominently as a desirable person. Commissioner Krider talked with Miller and obtained his promise to accept if appointed. Krider told him to see the other members, which he did, and the board as a whole was satisfied with him. One day the petitioner, Ray, and a friend saw Krider and told him Ray expected to be a candidate. They were advised that the board was committed to Miller, and Ray said if that were the case he would not interfere. After that, and on the morning of January 6, 1908, Ray made a formal application for appointment, accompanying it with recommendations generously signed by old soldiers and friends who said they regarded him as fully qualified to perform the duties and fill the requirements of the office.
On January 7 one member of the board, Herst, resigned, and his place was filled, so that the board was made up of Krider, chairman, Baird, and Schmidt, the new member. Two days later Miller was appointed.
No formal hearing of any kind was had and no formal investigation of Ray’s qualification for the office was entered upon at any time by the board as a board. A few minutes before the matter of the appointment was taken up Krider and Schmidt talked the subject over, and Krider requested Schmidt to present Miller’s name, which he did. Upon motion that Miller be appointed Krider and Schmidt voted in the affirmative and Baird in the negative. Baird then moved that Ray be appointed, and this motion was lost, Krider and Schmidt voting in the negative and Baird in the affirmative. There were no other applicants.
Krider testifies to the facts narrated above which occurred before Ray’s application was filed, and nobody disputes him, so that a truthful account of all that took place looking to Miller’s appointment before Ray applied must be disclosed. This account shows commendable solicitude, zeal and prudence on the part of the board of county commissioners of Harper county. No previous understanding, arrangement or agreement could stand against Ray’s appointment, however, when his application came in, if he was qualified. How did Ray come to lose? The plaintiff argues that it was because of a cut-and-dried scheme to put in Miller. What does the evidence show ? Schmidt testifies that he had a conversation with Herst the night the latter resigned and Herst said he was not in favor of either Miller or Ray. Evidently there was no Miller “combination” holding him. There is not a syllable of testimony printed in the abstract showing or tending to show that Schmidt ever talked with Miller or with any of Miller’s friends or with Krider or anybody except Herst, regarding the appointment of a county assessor, until the day the appointment was made. There is nothing whatever, therefore, to show any previous Miller contract on his part to be carried out regardless of Ray’s rights, and Schmidt testifies that at the time the appointment was made he had no personal reason for voting for Miller other than that in his judgment he was thoroughly competent to fill the office.
Baird voted for Ray. What were the reasons for Krider and Schmidt voting against Ray? They both testify that they Tad known Ray for some years, Krider’s relations with him having been very friendly at all times. They were both familiar with his work as an assessor. Krider knew, that this work had caused complaint. They both estimated his ability, his force of character, his energy, his judgment, and the likelihood and probability of his being able to discharge the duties of the office, and they both came to the conclusion that he was incompetent. They both testify that they entertained no feeling of ill will toward Ray, and that they were actuated by no motive and influenced by no consideration except that in their judgment'he was incompetent. This being true they would have violated their oaths of office had they voted for Ray.
The plaintiff says that Krider and Schmidt refused to consider the evidence of his competency attached to his application, which, as noted above, consisted of the naked statement that the petitioners regarded him as competent, but there is no evidence contained in the abstract to that effect. True, the statement in the petition was not allowed to overcome the facts known to the commissioners themselves and their own opinions respecting Ray’s competency based upon such facts; but in cases of this kind the appointing power must determine upon what it will finally rest its decision. Ray’s application, with the accompanying evidence, raised the question of his competency. That question was thoroughly, carefully and honestly considered, and that is what the law requires. It was not necessary that the commissioners should openly argue the question among themselves, although differences are usually adjusted in that way.
It must be remembered that in cases of this kind a charge of fraud, bad faith and disregard of law must be proved by evidence of facts which are inconsistent with official probity. The inquiry starts with the presumption that public officers do their duty, that they act fairly, from good motives, and with the purpose and intention of obeying the law. Suspicion, surmise, insinuation and innuendo are not enough to overthrow this presumption.
The court is unanimously of the opinion that the evidence fails to establish any violation of the law by the board of county commissioners of Harper county, and the writ is denied. | [
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Per Curiam:
The plaintiff, a lineman of the defendant, recovered damages from his employer on account of injuries sustained while cutting a live wire. The jury found specially that the right of recovery rested upon negligence in failing to turn off the current. The case was submitted under instructions which left the jury free to find that the negligence was that of a vice-principal, the negligence of a vice-principal combined with that of a fellow servant, or the negligence of a fellow servant. The jury found specially that the negligence causing the injury was that of a fellow servant. Under these circumstances the right to recover was negatived.
It is argued that the finding adverted to did not exclude other negligence, but it can not be so interpreted. It is further argued that the finding is a mere conclusion and not binding on the court. It is a conclusion only in the sense that it is an ultimate fact depending upon a synthesis of ■ several facts and relations. It is not a conclusion of law.
The judgment is reversed, and the cause is remanded with instruction to enter judgment for the defendant on the findings of fact. | [
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The opinion of the court was delivered by
Porter, J.:
The first question raised by the defendant to the petition — -that by virtue of chapter 325 of the Laws of 1905 the action can not be maintained by the plaintiffs because they are non-residents of the state — is easily answered. Without attempting to pass upon any of the provisions of the act'it is sufficient to say that it has no application, for the reason that this action was brought on the 29th day of March, 1905, and the act in question did not take effect until June 8, 1905.
It is contended that the demurrer to the petition should have been sustained because it appears upon its face that the action was barred by the statute of limitations, the petition averring that the plaintiffs first discovered in the month of June, 1900, that the statements contained in the bills of lading were false, and the action, therefore, should have been brought within two years. It is also contended that the petition shows an election of a different and inconsistent remedy by the commencement of the action in Missouri. These contentions both rest wholly upon the claim that the action is in tort and not on contract. If it is not an action based upon fraud the two-year statute of limitations has no application; if it is on contract the five-year statute controls, and as the action was commenced within that time it was not barred. Likewise, if it is an action on the contract the question of election of inconsistent remedies is not involved, because it is conceded that the action referred to in the petition as having been brought in Missouri was an action directly on the contract to recover the amount of money advanced on the bills, and therefore they would not be inconsistent.
The first question for us to determine, therefore, is whether this is an action ex delicto or ex contractu. By the common law a bill of lading conferred upon the assignee only the title to the property of which it was the evidence, and the shipper might sue the carrier for damage to the goods regardless of whether he had any property in them or not. When he assigned the bill of lading he parted with none of his original rights under the contract, except the right of possession of the goods. The assignee could bring no action against the carrier for damage to the goods on the contract of .shipment. (1 Hutch; Car., 3d ed., § 197.) The assignee could, however, have his action in trover or replevin, because of his right to possession. (Thompson v. Dominy, 14 M. & W. [Eng.] 402.) The English statute making bills of lading negotiable altered the common-law rule. In this country, wherever the assignment of a chose in action carries with it the right to sue thereon, the assignee may of course maintain an action in his own name for any breach of the contract. He may bring trover or sue for conversion or in replevin, and these would be actions in tort; but where he sues for money advanced on the faith of the bill of lading the action, we think, is an action on the contract.
In the petition in this case there are averments which are sufficient to set up a cause of action for a breach of contract; and there are averments that the bills were issued fraudulently, and that by reason thereof the plaintiffs suffered damage, but these latter may be regarded as merely statements averring a breach of the contract, for it sufficiently appears that the action is solely to recover the amount advanced upon the faith of the statements contained in the contracts. The doctrine is well settled that where a petition contains a good cause of action for a breach of contract the addition of words or averments which are appropriate to a cause of action for a wrong will not change the action from contract to tort. (2 Beach, Mod. Law of Cont. § 1679, note.) And in case of doubt the courts are inclined against construing the pleading as embodying a cause of action for a tort. (Goodwin et al. v. Griffs, 88 N. Y. 629; Austin v. Rawdon, 44 N. Y. 63.) This being an action on contract, the five-year statute applies; and both actions being on contract, and on. the same contracts — to recover the moneys advanced on the faith of the bills of lading — they are not inconsistent.
The main contention, however, raised by the demurrer to the petition is that the defendant can not be held liable because only the receipt of the goods, confers power on the agent to issue the bills. Two antagonistic doctrines prevail on this question. In the commercial country of England the rule contended for by the defendant is supported by an unbroken line of' authorities. (Grant v. Norway, 10 C. B. [Eng.] 665; Hubbersty v. Ward, 8 Ex. [Eng.] 330; Cox v. Bruce, 18 Q. B. Div. [Eng.] 147.) The same rule likewise obtains in the federal courts (Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998; Schooner Freeman, &c. v. Buckingham et al., 59 U. S. 182, 15 L. Ed. 341; Friedlander v. Texas &c. Railway Co., 130 U. S. 416, 9 Sup. Ct. 570, 32 L. Ed. 991; Missouri Pacific Railway v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 994) and,, according to the text-writers, is supported by an overwhelming weight of authority. The cases holding this’ view make no distinction between bills of lading issued', fraudulently or collusively, or by mistake. The reasoning upon which the doctrine rests is usually based on the.' question of agency, and the proposition that railway companies are not dealers in bills of exchange nor in bills of lading; but are carriers only. So, where a bill', of lading has been issued by. an agent of the carrier-without receipt of goods by the carrier, the argument, is that the extent of his authority, real or apparent, is; to issue such bills only for freight actually received, and that it is not within the scope of his authority to-issue a bill of lading except when the merchandise is; actually delivered. Referring to the characteristics; of a bill of lading, Mr. Justice Miller, in Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998, used this language :
“Notwithstanding it is designed to pass from hand’ to hand, with or without indorsement, and it is effica cious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasérs only applies to it in a limited sense.” (Page 8.)
The courts holding this doctrine say that the receipt for the goods may always be explained or contradicted the same as any other receipt; that the agent of the railway company or common carrier has been clothed by his principal with the power to issue bills of lading only for goods received for transportation; that he is .held out to the world by his principal as having this authority, and no other; and'that, where it is known that the authority of an agent can only be exercised upon the occurrence of certain conditions, the persons seeking to bind the principal by the acts of the agent must ascertain whether the facts exist which call into exercise the authority of the agent. Referring to the hardships of the rule, Mr. Chief Justice Fuller, in Friedlander v. Texas &c. Railway Co., 130 U. S. 416, 9 Sup. Ct. 570, 32 L. Ed. 991, used this language:
“The law can punish roguery, but can not always protect a purchaser from loss, and so fraud perpetrated through the devise of a false bill of lading may work injury to an innocent party, which can not be redressed by a change of victim.” (Page 426.)
The contrary doctrine may be stated as follows: The carrier is held liable upon the theory that the knowledge whether the goods have been received, and therefore the power in fact conferred, lies peculiarly with the agent of the carrier; that one of the purposes for which the agent is employed is to state in the bill of lading the fact of the receipt of the goods therein described; and, where the railway company or other carrier holds an agent out to the public as having authority to make a statement upon which innocent parties may rely, the company should not be permitted to deny the receipt of the goods as stated in the bill. The action of the carrier in thus holding its agents out to the public as having authority to issue such bills, and putting it in the power of the holder to treat with innocent purchasers on the representations of the bills, is held to constitute an estoppel in pais. The doctrine rests also for its support largely upon the quasi-negotiability of bills of lading and the commercial necessities for the rule growing out of the usual method of transacting business of this character, and the mutual advantages which the shipper, carrier and the public derive therefrom.
At a comparatively early period of its history this court, in Savings Bank v. A. T. & Santa Fé Rld. Co., 20 Kan. 519, announced its adherence to what may be regarded as the more modern doctrine, and the one which in our opinion accords with the better reasoning. In that case Mr. Chief Justice Horton, speaking for the court, said:
“Our state is a great producer of grain, large amounts of which seek markets outside of its boundaries. The means of its transportation are mainly limited to railroads, and commercial transactions by our grain dealers extend to millions each year. The great mass of these products, when started to eastern markets, are purchased and paid for through bills of lading. The custom of grain dealers is to buy of the producer his wheat, corn, barley, etc., then deliver the same to a railroad company for shipment to market. The railroad company issues to the shipper its bill of lading. The shipper takes his bill of lading to a bank, draws a draft upon his commission merchant, or consignee, against the shipment, and attaches his bill of lading to the draft. Upon the faith of the bill of lading, and without further inquiry, the bank cashes the draft, and the money is thus obtained to pay for the grain purchased, or to repurchase other shipments. In this way, the dealer realizes at once the greater value of his consignments, and need not wait for the returns of the sale of his grain, to obtain money to make other purchases. In this way the dealer with a small capital may buy and ship extensively; and while having a capital of a few hundred dollars only, may buy for cash, and ship grain valued at many thousands. This mode of transacting business is greatly advantageous both to the shipper and producer. It gives the shipper who is prudent and posted as to the markets almost unlimited opportunities for the purchase and shipment of grain, and furnishes a cash market for the producer at his own door. It enables the capitalist and banker to obtain fair rates of interest for the money he has to loan, and insures him, in the way of bills of lading, excellent security. It also furnishes additional business to railroad companies, as it facilitates and increases shipments of produce to the markets. A mode of business so beneficial to so many classes ought to receive the favoring recognition of the law to aid its continuance; and the later decisions have gone very far to strengthen the gwm'-negotiability of bills of lading, independent of any statutory authority.” (Page 522.)
The following, among other authorities, support this doctrine: Armour et al. v. Michigan Central R. R. Co., 65 N. Y. 111, 22 Am. Rep. 603; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 195, 12 N. E. 433, 60 Am. Rep. 440; Brooke v. N. Y., Lake Erie and West. R. R. Co., 108 Pa. St. 529, 1 Atl. 206, 56 Am. Rep. 235; S. C. & P. R. R. Co. v. First National Bank, 10 Neb. 556, 7 N. W. 311, 35 Am. Rep. 488; St. L. & I. M. R. R. Co. v. Larned, 103 Ill. 293. Other courts have approved the reasoning, although they have adopted the contrary view on account of their desire to follow the decisions of the federal courts and prevent a conflict of authority on questions of commercial law within their states. (National Bank of Commerce v. Chicago, Burlington & N. R. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566.)
It is insisted by the defendant that, while the case of Savings Bank v. A. T. & Santa Fé Rld. Co., supra, may rest upon the better reasoning, still in view of the fact that one of the greatest commercial nations of the world has approved the contrary doctrine, and especially because our federal courts have established a different rule, which is followed in so many of the states, therefore in the interests of uniformity the doctrine declared in that case should be changed. It is true that inconvenience and confusion frequently follow from having two conflicting rules on the same question in the same state, owing largely to the fact that the federal courts refuse to follow the decisions of the state courts on questions of so-called general commercial law, but determine the law according to their own views •of what the law is. The conflict, however, is irreconcilable. No uniform rule with respect to commercial law can be gathered from the decisions of the courts of this country or of England. Some of the ablest state courts refuse to recognize any distinction between the binding effect of decisions on commercial law and decisions construing statutes, and hold that the so-called commercial law derives whatever force it has from its adoption by the state as part of the common law and that a rule of law declared by the state courts to govern contracts made within their jurisdiction is conclusive •everywhere, just as it is universally conceded that the decisions of state courts construing their own statutes .are binding on all other courts.- In the case of Forepaugh v. Railroad Co., 128 Pa. St. 217, 18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672, the Pennsylvania court said that “the departure made by the United States courts is to be regretted and certainly not to be followed.” (Page 230.)
The argument advanced by defendant furnishes a number of very substantial reasons for supporting the ■efforts being made by prominent members of the English and American bars to secure the adoption by foreign countries and in the several states of the Union ■of a universal bill of lading, and for uniform legislation ■defining the rights and obligations of the parties to such instruments; but it comes far from convincing us that it is our duty to change a rule of law affecting so widely the commercial interests of the state, adopted thirty years ago, founded upon mature and careful reasoning, with which we are entirely satisfied and which has been followed and approved by many courts of last resort. It follows that the demurrer to the petition was not well taken.
It only remains to consider the ruling sustaining the demurrer to the ninth and tenth defenses of the answer. These defenses were pleaded together by appropriate words, and will be considered as one defense. Briefly, the defense is that the bills were issued in the state of Missouri, were Missouri transactions, and are to be governed solely by the laws of Missouri; that the bills of lading were issued by some clerk who was without any authority whatsoever to issue or deliver them, no wheat having been actually delivered to the company at that time or thereafter, and that the bills were issued in violation of the laws of the state of Missouri; that by sections 739 to 748, inclusive, of the Revised Statutes of Missouri of 1889, which are set out in the answer in full, it is provided in substance that no railroad company or common carrier shall issue any bill of lading for any merchandise or property unless the same shall have been actually delivered to the carrier for shipment; that all bills of lading are by the provisions of the same statute made negotiable by written indorsement thereon and delivery in the same manner as bills of exchange and ^promissory notes, and no written or printed conditions therein shall in any way limit the negotiability thereof or impair the rights and duties of the parties thereto; that the aforesaid statute provides a penalty not exceeding $5000 or imprisonment in the penitentiary of the state not exceeding five years, or both, for the violation of its provisions, and further provides that any person or persons aggrieved by the violation of any of the provisions of the act may have and maintain an action at law against the person or corporation violating any provision of the statute to recover all damages, immediate or consequent, which he may have sustained by reason of such violation.
The answer then alleged that the statutes were, and ever since their passage had been, in full force and effect in the state of Missouri, and define the rights and duties of the parties to this action at the time the bills were issued; that the statute aforesaid has been construed by the highest court of the state to render bills of lading issued as the ones in question absolutely void, and that such bills convey no title to the property mentioned therein, nor do the recitations contained therein estop the railway company from denying the truth thereof, and that an assignee can not recover by virtue thereof, either by way of estoppel or in any other way, against the railway company whose agent issued the same.
The answer pleaded the three-year statute of limita-' tions of Missouri on an action for a statutory penalty or forfeiture (Rev. Stat. of Mo. 1889, §§ 6773, 6776), and our own statute of limitations (Civ. Code, § 22) providing that no action shall be maintained in this state upon a cause of action which has arisen in another state between non-residents of this state when the same is barred by the laws of the other state.
In actions against a common carrier based upon contract, where no question is raised with respect to the right of the carrier to limit its common-law liability, the rule seems to be well settled that, whatever obligation arises out of the contract is created by the law of the place where the acts are to be performed out of which the' obligation sought to be enforced arises. (1 Hutch. Car., 3d ed., §§ 200, 201. To the same effect-see C. M. Ins. Co. et al. v. Force et al., 142 N. Y. 90, 36 N. E. 874, 40 Am. St. Rep. 576; First Nat. Bank of Toledo v. Shaw et al., 61 N. Y. 283; W., St. L. & P. Ry. Co. v. Jaggermam et al., 115 Ill. 407, 4 N. E. 641; Palmer v. Atchison, etc. R. R. Co., 101 Cal. 187, 35 Pac. 630.) In First Nat. Bank of Toledo v. Shaw et al., 61 N. Y. 283, the bills of lading were issued upon grain purchased at Toledo, Ohio, and shipped to consignees in New York. The bills were assigned to the bank to secure advances to pay for the purchase. A question arose with respect to the meaning of certain notations written on the face of the bills. Evidence was offered of their commercial meaning alt Toledo. . The objection was made that the bills of lading were New York, and not Ohio, contracts. The court said:
“The general principle is that the law of the place where the contract is made is to govern, unless it is positively to be performed elsewhere. The fact that acts are to be done abroad under a contract does not necessarily make it a contract to be performed there, in a legal sense.” (Page 294.)
The objection was not sustained, and the contract was held to be governed by the law of Ohio, “even though the goods were to be sent to another state, and ultimately sold there if the advances were not repaid.” (Page 294. To the same effect are W., St. L. & P. Ry. Co. v. Jaggerman et al., 115 Ill. 407, 4 N. E. 641; Palmer v. Atchison, etc. R. R. Co., 101 Cal. 187, 35 Pac. 630.) In C. M. Ins. Co. et al. v. Force et al., 142 N. Y. 90, 36 N. E. 874, 40 Am. St. Rep. 576, it was said that the obligation of the shippers of the cargo were to be determined by the law of the place where the contract was made, not by the “law of the flag.” (Page 100.) Referring to actions on bills of lading, it was said in Dike v. Erie Railway, 45 N. Y. 113, 6 Am. Rep. 43;
“Whether the actions are régarded as actions of assumpsit upon the contracts, or as actions upon the case for negligence, the rights and liabilities of the parties must be judged by the same standard. The form of the action concerns the remedy, but does not affect the legal obligations of the parties. In either form of action the liability of the defendant, and the rights of the plaintiffs, are based upon the contracts. The defendant owed no duty to the plaintiffs except in virtue of the contracts, and the obligations for the violation and breach of which an action may be brought are only coextensive with the contracts made.” (Page 118.)
(See A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, where the action was for negligence and based upon the common law of Texas.)
If the law of Missouri is as the answer alleged it to be, then the demurrer was improperly sustained, for the facts pleaded constitute a sufficient defense to the action, and the demurrer admits the truth of every fact alleged. But the contention is made that while the answer sufficiently pleaded the statute of Missouri the defendant, in attempting to aver as a fact the construction given to the statute by the courts of that state, has tied itself squarely to one, and but one, question of fact, which is that in a certain decision of the supreme court of Missouri, giving the title, volume and page of the report, such and such construction was placed upon the statute; so that the further contention is made that inasmuch as this one question of fact is, in its last analysis, a question of law, it is the duty of this court to examine the particular decision referred to and determine whether it is a fact that the court so held; and we are assured that an examination of the particular decision will demonstrate that it contains ho reference directly or indirectly to the aforesaid statute. It may be observed that the answer also alleged a certain decision by the Missouri court of appeals to the •same effect, but this can not aid the other averments of •the answer, inasmuch as we are not bound by any construction placed upon the statute by that court, for 'the reason that it is a court of limited jurisdiction. (Sykes v. Bank, ante, p. 688.) The argument concedes the main point, however, which is that the answer does plead as a fact that the statute has been so- construed by the highest court of that state as to prevent the plaintiffs from maintaining this action, if the same construction is to be given by the courts of this state. Whether the averment of the answer is true, or how far its restricted language may limit the defendant’s proof, are matters with which we need not at this time concern ourselves. It is only as questions of fact that the laws of another state can affect the rights of parties in an action in this state, and, when pleaded, they are alleged as facts. In the absence of an express statute authorizing us to do so we can not take judicial notice of the laws of another state, except for the purpose of aiding us in ascertaining and interpreting our own law upon the particular subject. (Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462; Heim v. Gimber, 67 Kan. 834, 72 Pac. 859.) In this case the circumstance that the .pleader, who relies upon a particular decision of the supreme court of Missouri, has referred to the same by volume and page of the reports does not alter the situation nor change the rule. The law on this point is well settled. (See note to Cherry v. Sprague, 187 Mass. 113, in 67 L. R. A. 33.)
The judgment is therefore reversed and the cause remanded, with directions to overrule the demurrer.
Benson, J., not sitting, having been counsel in the court below. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The disposition of this case depends mainly upon the construction of the first instrument, which in terms grants and conveys the land to Margaret L. Brady. The character and validity of the instrument were determined by its recitals, as the trial court, without inquiry as to the competency of the grantor to convey or whether the conveyance had been procured by undue influence, held that the deed was void on its face. This ruling was based on the view that the instrument was testamentary in character, and that, as it had not been executed in conformity with the law relating to wills, it was invalid. If under a fair construction of its terms the instrument can be upheld and the intention of the parties carried out it should be so construed. There is little, if anything, in its language to indicate a purpose to make a will or that it should not take effect until the death of Sarah E. Brady. On the contrary it is in the form and possesses the essential characteristics of a deed conveying a present interest. In the granting portion of the instrument the grantor used the ordinary language of a deed, reciting that she grants, bargains, sells and conveys the property to her daughter. The clause reserving a life-estate proceeds on the theory that there is a present grant, as she recites that the estate reserved is “in and to the premises hereby conveyed.” The reversion clause indicates the same purpose where it provides that in a certain contingency “the estate hereby conveyed” shall revert to the grantor. The instrument is acknowledged as a deed, and the recording and delivery of the same manifests an intention to convey a present interest. All these things evince a purpose to make the deed effective at once instead of at the death of the grantor.
It is contended that the reservations give the instrument a testamentary character. After expressly granting and conveying the premises the grantor reserves an estate in the land during her natural life. It is to be observed that she does not undertake to reserve all that is granted, but only an estate for life in the land conveyed. The reservation of an estate for life is not inconsistent with the conveyance of a present interest and does not render the instrument testamentary. (Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334; Powers v. Scharling, 64 Kan. 339, 67 Pac. 820; Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Pentico v. Hays, 75 Kan. 76, 88 Pac. 738, L. R. A., n. s., 224; Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, 9 L. R. A., n. s., 317.)
In Durand v. Higgins, supra, the instrument involved was in the form of a deed, but the grantor took back an agreement that the grantees would not convey the land during the lifetime of the grantor without his consent; that the land should be his so long as he lived; that he should have the right to convey it the same as If no deed had been given; and, further, that the grantees should reconvey to him upon his request. The deed and agreement were treated as a single transaction, and construed to be an irrevocable conveyance to the grantees, encumbered with a life-estate in the grantor. In Nolan v. Otney, supra, the instrument was in form a warranty deed, except for a provision that it should not take effect until the death of the grantor. The instrument was placed in the hands of a third person, to be delivered to the grantee when the grantor died, and it was construed to be a conveyance passing title immediately to the grantee, but postponing the possession and enjoyment of the property until the death of the grantor.
It is said that the clause following the one excepting a life-estate and reserving to -the grantor the power “to mortgage, encumber, sell, lease, convey or otherwise dispose of said real estate at any time upon such terms and conditions and for such sums as to her, the said party of the first part, may seem meet and proper” is inconsistent with a grant in prassenti, and indicates that the instrument is testamentary in character. This clause, as we have seen, follows others which clearly import a present grant — the vesting of a present interest in the grantee. If it should be interpreted as a reservation of the power to convey it would necessarily fail because of repugnance to the preceding grant. If, after conveying the property, the grantor undertook to keep a string upon the land and retain the power to mortgage, control and convey it, we would, as was said in Durand v. Higgins, 67 Kan. 110, 72 Pac. 567, “be bound to disregard that clause and hold that it did not serve to defeat the conveyance of the fee.” (Page 125.) However, under a fair interpretation of the clause it may be given effect and made to accord with the preceding clause importing the conveyance of a present interest. It will be noticed that the claim follows directly after the reservation of a life-estate in the property conveyed, and it is not unreasonable to infer that in the second reservation the grantor referred to the control and disposition of the life-estate. The reservation, it is true, was not necessary to her right to mortgage, lease and convey the life-estate excepted from the conveyance, but she may have feared that the language employed to convey a life-estate meant a mere occupancy only, and so, to put her rights beyond doubt, she made an express reservation of the power to lease, encumber, sell or otherwise dispose of her reserved interest. It is more reasonable to infer that she was providing for something which could be done, and was reserving a right she could exercise, rather than one which was beyond her power, and which, if made, must be treated as a nullity.
In the clause near the end of the instrument where it is provided that the estate conveyed shall revert to the grantor in case the grantee shall die before the grantor she appears to have proceeded on the theory that she could vest the title of the property in the grantee and take it back again at will or upon a certain contingency. Evidently it was her notion that she could convey the land to her daughter and retake it if she should thereafter change her mind about its disposition or in the event that she should outlive the grantee, but under the authorities cited it is clear that she could not take back that which had been expressly granted. This clause does not furnish much support to the theory that the instrument was testamentary in character. As will be seen, the provision is not that the gift or transfer shall take effect at the death of the grantor, but that the interest conveyed is to be re-vested in the grantor on the death of the grantee, if such should occur before the death of the grantor. Instead of a posthumous effect, the language indicates a purpose that the instrument should take effect at once, and that it should operate as a deed.
Much reliance is placed on Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, and Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 86. The instrument involved in those cases did not use such terms as “give, grant, bargain, sell or convey,” or any other words of like signification indicating an intention to convey a present estate. It only provided for the passing of an interest or title upon the death of the owner. In Reed, Ex’r, v. Hazleton, the rule applied here was correctly stated, it being said:
“If an instrument of writing passes a'present interest in real estate, although the right to its possession and enjoyment may not accrue until, some future time, it is a deed or contract; but if the instrument does not pass an interest or right until the death of the maker, it is a will, or testamentary paper.” (Page 325.)
Attention is called to the fact that other deeds were subsequently made by the grantor, and that these acts repelled the idea of an intention to convey in the first instance. The question for decision is what the intention of the grantor was when the first deed was executed and delivered, and not her state of mind two or four years after that time. If, by the first instrument, it appears that she intended to convey a present interest to the grantee, the deed can not be revoked or impaired by the execution of other deeds at a later time, and hence the later instruments, executed as they were, can throw but little light on her purpose in 1901, when the first conveyance was made.
We conclude that the deed executed in October, 1901, to Margaret L. Brady operated as a conveyance and not as a will, and hence the judgment of the district court is reversed and the cause remanded, with instructions to proceed with the case in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the validity of a deed conveying real estate to a husband and wife as joint tenants.
The appellant, Ermon F. Albaugh, is the son, and the appellant, Nadine Kidwell, is the daughter of a deceased son of Ina M. Ewers, deceased wife of the decedent, James Lloyd Ewers. Ina M. Ewers and James Lloyd Ewers were married in 1942, both having been previously married and both having children by their prior marriages.
At the date of the marriage of Ina M. Ewers and James Lloyd Ewers, Ina was the owner of the real estate commonly known as 1023 Ellis, Wichita, Kansas. In August, 1944, Ina sold the property and purchased the real estate known as 3851 South Broadway, Wichita, Kansas, and took title thereto in the name of Ina M. Ewers. In July of 1945, she sold the Broadway property and on the 11th day of August, 1945, she purchased 80 acres of land in Butler County, Kansas, and took title thereto in the name of Ina M. Ewers. In June of 1947, she sold the Butler County land and purchased the property commonly known as 3711 Porter, Wichita, Kansas, and took title thereto in the name of Ina M. Ewers. In August of 1949, she sold the Porter Street property and on September 3, 1949, she purchased the property known as 931 West 51st Street, Wichita, Kansas, and took title thereto in the name of Ina M. Ewers. On the 1st day of April, 1961, the West 51st Street property was sold and the proceeds of said sale were used to purchase the property in question, the title thereto being taken in the names of J. L. Ewers and Ina M. Ewers, husband and wife, as joint tenants with the right of survivorship.
James Lloyd Ewers had executed his Last Will and Testament on May 23,1944, wherein he bequeathed to his wife, Ina, the sum of $1,000.00, and the rest and residue of his estate was bequeathed to his children of the former marriage.
On the 8th day of April, 1953, Ina M. Ewers executed her Last Will and Testament wherein, after making a couple of small bequests, bequeathed to her husband, James Lloyd Ewers, a one-third interest in the rest and residue of her estate if he survived her.
Ina M. Ewers died on the 2nd of February, 1965. She would have been 85 years of age the following June. No attempt was made to probate her will.
James Lloyd Ewers continued to reside in the property in dispute until his death July 20, 1966. His will was admitted to probate October 25, 1966.
The claim from which this appeal stems was not filed until April 3,1967. This was more than two years following the death of Ina M. Ewers. The claim charges generally—
“That the title to the aforedescribed property [homestead in question] is now in the name of the above named decedent as a result of the incompetency of Ina M. Ewers and the violation of the confidential relationship that existed between the above named decedent and Ina M. Ewers and fraud on behalf of the above named decedent.
“Wherefore, petitioners pray that the deed to the last above described real estate be set aside and held for naught and that the interest of Ina M. Ewers therein be distributed to this petitioner, her son, and Nadine Kidwell, her granddaughter, share and share alike, together with any and all further relief that the Court deems just and equitable.”
The claim was transferred to the district court for hearing and determination. At the close of claimants’ evidence the administrator filed a motion for judgment of dismissal on the ground that claimants had shown no right to relief.
The trial court took the motion under advisement and made findings of fact and conclusions of law. In addition to the above stated facts, the trial court found:
“Thereafter, on February 2, 1965 Ina M. Ewers died, being survived by James Lloyd Ewers, her husband, a grantee in the aforementioned joint tenancy deed and the entire ownership thereof devolved upon the said James Lloyd Ewers by operation of law as the result of the joint tenancy relationship of the parties.
“Prior to April 1, 1961 and continuing from said date and until her death, the said Ina M. Ewers was in poor health. She was 84 years of age at the time of her death and her mental capacity had deteriorated to the extent that she was often incapable of handling ordinary household details. She had become very forgetful, was highly emotional and cried quite often. A doctor who attended her prior to April 1, 1961 and for some time thereafter testified that she was incompetent, in his opinion, to transact business affairs, but also testified that at times she was better than at other times.
“Petitioners evidence failed to show or establish a fiduciary relationship or the creation of a constructive trust. Petitioners failed to show that decedent, James Lloyd Ewers ever suggested that he be made a grantee under the deed of the real estate or that he attempted to exert any influence to that end, or that he was in fact a domineering person in the habit of exerting influence on his wife.
“There was no evidence to the effect that James Lloyd Ewers ‘had his name put on the deed’ except the naked legal conclusion of witnesses who failed to cite any instances, conversation or circumstances which might have justified such a conclusion.
“Ina M. Ewers had sufficient mental capacity that she could have, in lucid moments of sufficient duration, understood the effect and nature of a joint tenancy deed and to have preferred that the deed taken by the parties be drawn in that manner.
“The taking of the real property on April 5, 1961 in the names of both parties as joint tenancy was reasonable and perhaps desirable under all the existing facts and circumstances at the time of said transaction.
“Conclusions of Law
“Claimants have failed to make a sufficient evidentuary showing to justify the court in finding the existence of a fiduciary relationship necessary to overcome the legal result of the operation of the joint tenancy deed existing at the time of the death of Ina M. Ewers.
“Petitioners have failed to carry the burden of proof necessary to establish their claim and it is denied.”
Judgment was rendered in harmony with the findings and conclusions and the claimants have appealed.
Appellants first contend that in considering a motion for voluntary dismissal under the provisions of K. S. A. 60-241 (b) the court does not weigh conflicting evidence but accepts all of plaintiffs’ evidence as true together with all reasonable inferences to be drawn therefrom. The provisions of K. S. A. 60-241 (b) insofar as material here read:
“. . . After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in section 60-252 (a). . . .” (Emphasis supplied.)
The appellants cite Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575, in support of their contention. The language did support appellants’ position. However, the Dennis case was overruled in Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, where it was held in paragraph 7 of the syllabus:
“Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiffs case pursuant to the provisions of IC. S. A. 60-241 (h), based on the ground that upon the facts and the law the plaintiff has shown no right to relief, the trial'judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case, overruling Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575.”
Appellants also cite Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518. The Casey case was tried to a jury and a different rule applies than where a case is tried to the court. Our later expressions on this matter .will be found in Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445; Razey v. Unified School District, 205 Kan. 551, 470 P. 2d 809; Wiley v. Board of Education, 205 Kan. 585, 470 P. 2d 792.
The appellants next contend that a husband enjoys a confidential relationship with his wife raising a presumption that a gift or voluntary conveyance from the wife to the husband was brought about by undue influence and the burden is upon the husband to show that the transaction was fairly conducted and not tainted by undue influence.
We have applied such a rule, as to presumption and burden of proof, where a fiduciary or confidential relationship existed between a grantor and a grantee. However, we have never applied the rule to a transaction simply because of the husband and wife relationship.
In Stanley v. Stanley, 131 Kan. 71, 289 Pac. 406, we stated:
“. . . So far as concerns the deed to Virginia, there was nothing about this case which required her to justify the gift on the theory of a fiduciary relationship. It would indeed be a hard rule to hold that when a man in failing health and weighted with years conveys the title to his home or home farm to the woman who has been his faithful wife for forty years that the law will impose a burden on her to show that the conveyance was not effected by any improper act or conduct on her part, but was the voluntary and unconstrained act of her husband.” (p. 75.)
We also believe that it would be a harsh rule to place such a burden upon a man who has been a faithful husband for over twenty years.
We have also stated in Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878, at page 212 as follows:
“. . . Where the relationship of the parties is such that the donee has a natural claim on the generosity of the donor, the courts look with favor on the claim of gift and, generally speaking, less evidence is required to support a gift to a close relative than would be necessary to sustain one to a stranger. The rule favoring claims of gifts to persons having a natural call on the generosity of the donor finds frequent application where gifts are made by a parent to a child.
We see no reason why the same rule should not be applied to a husband and wife where a satisfactory marriage has existed for a period of twenty years.
We do not believe that, under modern conditions, the relationship of husband and wife would be enhanced by placing a presumption of undue influence on every transaction between them and require independent advice to support the validity of such a transaction.
We do not mean to infer that there cannot be a breach of the relationship between husband and wife and undue influence exerted. Whether or not a fiduciary relationship exists and whether or not it has been abused depends upon the facts and circumstances of each particular case. In Wilkinson v. Cummings, 194 Kan. 609, 400 P. 2d 729, we quoted with approval from a previous case as follows:
“ ‘Whether or not a fiduciary relationship exists and whether or not it has been abused does, to a great extent, depend on the particular facts and circumstances of each individual case. This court has refused, for that reason, to give exact definitions or fix definite boundaries for that class of human relations commonly known as fiduciary which, based on principles of common honesty, require fair dealing between parties.’ . . .” (p. 612. See, also, Cersovsky v. Cersovsky, 201 Kan. 463, 441 P. 2d 829.)
The trial court found there was no evidence that James Lloyd Ewers ever suggested that he be made a grantee under the deed— the deed was executed by a third party, not Ina M. Ewers — or that he attempted to exert any influence toward that end. The trial court also found that there was no evidence that James Lloyd Ewers had his name put on the deed.
A careful examination discloses no basis for challenging the trial court’s findings.
We are forced to conclude that under the facts and the law that the appellants have shown no right to relief, and the motion for an involuntary dismissal was properly sustained.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an action for the recovery of damages to crops and trees arising from defendant’s oil operations on plaintiffs’ land. After trial without a jury, the district court rendered a judgment in favor of plaintiffs, and defendant has appealed.
Two items of damages are the subject of controversy: (1) Loca tion and site damages for four oil wells drilled on plaintiffs’ land, and (2) Loss of thirty-six trees in a shelter belt surrounding plaintiffs’ farmstead caused by escaping salt water.
The evidence on the first item of damages is not in serious dispute. In the early 1950’s defendant took over an existing oil and gas lease on plaintiffs’ land, hereinafter referred to as the Fast lease. At the time, there were two producing oil wells on the property. Shortly thereafter, one of these wells ceased production. Defendant intended to drill several new wells, but before doing so, plaintiffs requested him to release the existing lease and take back a new lease in order to eliminate the outstanding mineral interests. On the advice of his attorney, defendant declined to comply with the request.
The lease under which defendant conducted his operations contained the following provision:
“. . . Lessee shall pay for all damages caused by its operations to growing crops on said lands . . ."
In 1963 defendant proceeded to drill four wells on the east side of the Fast property, and paid plaintiffs the sum of $150 for each well as location and site damages. Written receipts executed by plaintiffs recited the payments were in full satisfaction and settlement of all rights and claims plaintiffs had for “damages to any lands or crops, fences, buildings or other improvements” resulting from the drilling of the specific wells. According to defendant, the basis of his paying the $600 for the four wells was that “the wells were drilled in the fall of the year and quite a bit of ground was torn up, and also due to the fact that he felt badly because he was unable to accommodate the Fasts in release of the old lease.” All parties concede there was no express agreement or understanding at the time that defendant was to pay the sum of $150 per well for crop damages in tire event additional wells were drilled.
One or two years later, defendant drilled four more wells on the-west side of plaintiffs’ property. Plaintiffs demanded $150 per well site as damages to growing crops on the theory that since-defendant paid that sum for each of the first four locations he should pay a like amount for each of the last four wells. When defendant refused to pay, this action was instituted.
The trial court found that the written lease provisions quoted above had been modified by the conduct of the parties and awarded plaintiffs $150 per well, or a total of $600. The essence of the lower court’s holding was that the parties, by their acts, declarations and conduct, indicated a settlement figure of $150 per well site as damages for all future wells drilled on plaintiffs’ land.
The decision of the lower court is challenged on the ground it is contrary to the law and the evidence. We are inclined to agree.
As we inteipret the trial court’s memorandum decision, the judge found the terms of the written lease ambiguous, and applied the rule that where ambiguous terms of a contract have been'construed and acted on by the parties, such construction will be adopted even though the language used may more strongly suggest another construction. (See, Rolander v. Sanderson, 141 Kan. 809, 43 P. 2d 1061; Mosher v. Kansas Coöp. Wheat Mkt. Ass’n, 136 Kan. 269, 15 P. 2d 421; Brick Co. v. Bailey., 76 Kan. 42, 90 Pac. 803.) While we have no quarrel with the rule as a general statement of law, it has no application here.
Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper one. (Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 470 P. 2d 821; Schnug v. Schnug, 203 Kan. 380, 454 P. 2d 474.) The fallacy of the position taken by the court below is that the language of the written lease relating to the payment of crop damages is susceptible to only one possible interpretation. The provision in question is commonly found in oil and gas leases. It is plain, unambiguous, and means just what it says. Hence, there is no room for application of rules of construction. (Shunga Plaza, Inc. v. American Employers’ Ins. Co., 204 Kan. 790, 465 P. 2d 987.) A cardinal principle of contract law is that in the absence of fraud or mutual mistake, a clear and unambiguous contract must be enforced according to its terms. (In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286.)
It is well settled that the terms of a written contract may be varied, modified, waived, annulled or wholly set aside by any subsequently executed contract, whether such subsequently executed contract be in parol or in writing. (Gibbs v. Erbert, 198 Kan. 403, 424 P. 2d 276; Bailey v. Norton, 178 Kan. 104, 283 P. 2d 400.) One party to a contract cannot unilaterally change the terms thereof. Modification requires the assent of all the parties to the contract. Their mutual assent is as much a requisite in effecting a modification as it is in the initial creation of a contract. Mutual assent may not only be shown by an express agreement, but also may be implied from the circumstances and conduct of the parties. In either case, however, there must be a meeting of the minds with respect to the proposed modification. (See, Guy Pine, Inc. v. Chrysler Motors Corp., 201 Kan. 371, 440 P. 2d 595; Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305; Ely v. Jones, 101 Kan. 572, 168 Pac. 1102; 17 Am. Jur. 2d, Contracts § 465; 17A C. J. S., Contracts § 375.)
When measured by the foregoing principles of contract law, the evidence fails to establish a modification of the damage provision in the written lease. Certainly, there was no oral agreement or understanding that the payment of $150 per well by defendant was to be the measure of damages for all future well sites. The only evidence upon which plaintiffs rely to establish a modification by conduct of the parties is payment of the money by defendant. This act alone is not sufficient to imply mutual assent of the parties to the claimed modification. Defendant fully explained his reasons for making the payment. His explanation was consistent with the language of the written receipts executed by the parties. The most that can be said about the entire transaction is that the parties agreed the payment of $600 constituted a bona fide settlement of claims for the first four well sites. The payments, however, cannot be construed as a modification of the lease provision with respect to defendant’s liability for damages in future drilling operations. There simply was no mutual assent or meeting of the minds beyond the transaction for which payments were made.
The cases relied on by plaintiff to sustain their position are not particularly helpful. None of them involved a contract provision relating to damages. Moreover, where a modification was found to have occurred, the parties had adopted a course of conduct to their mutual satisfaction different from that expressed in the original contract. For example, Alexander v. Flick, 154 Kan. 446, 119 P. 2d 464, was an action between two law partners for an accounting. The partnership contract provided in detail how annual settlements were to be made by the partners, but from the inception of the partnership the partners adopted another and wholly different means of settlement. This court held:
“. . . [I]t is clear that the parties actually modified the contract as far as the accounting features were concerned. Courts should be slow to hold that written contracts have been modified by acts of the parties, but here there is no dispute as to what the parties did for 1936, 1937 and 1938. The modifica tion was made to their mutual satisfaction. We hold that the trial court should have followed the method of accounting that was followed by the parties, rather than that provided for in the contract.” (p. 451.) (Emphasis added.)
We conclude that under the terms of the lease, defendant was liable for only actual damages to growing crops resulting from the drilling of the four wells in question. There having been no evidence of crop damages introduced, that portion of the district court’s judgment cannot be sustained.
The second item of damages about which defendant complains pertains to the loss of thirty-six trees located on plaintiffs’ land. The contention is made:
“The trial court erred in holding as a matter of law that Defendant was personally liable for the loss of 36 shelterbelt trees resulting from the overflow of salt water from a salt water disposal line owned by the North Burrton Salt Water Disposal Association, of which Defendant was only the operating agent.”
The evidence discloses the North Burrton Salt Water Disposal Association, hereinafter referred to as the association, was organized in the late 1930’s under the authority and regulations of the state corporation commission and department of health; that the association is composed of some thirty members, including the defendant; that nineteen of these members constitute an operating committee, and defendant is the operating agent of the association. The association owns and maintains salt water storage tanks, pipe lines and disposal wells throughout the Burrton field. The purpose of the association is to dispose of salt water from the 212 wells owned by the various members. Inasmuch as the Fast lease had always been a part of the association, defendant became an association member and the operating agent when he took over the lease. The association has one full-time employee whose job is to maintain the association’s lines and equipment. In the event of a break in any of the disposal lines, the employee, with the help of defendant’s employees, or outside workmen, makes the necessary repairs. The employee’s salary, plus the wages of any of defendant’s employees for the time chargeable to association work, is paid by defendant as operating agent and charged back to the association members who pay their proportionate share based upon their individual oil production.
The association had a salt water receiving tank located on the Fast lease from which water collected from defendant’s wells was discharged into a line leading to the nearest disposal well. Early in 1965, a leak developed in the line leading from the tank, permitting salt water to escape into a ditch alongside a shelterbelt protecting the farmstead on plaintiffs’ property. The line, having broken on a prior occasion, had been repaired by the association’s full-time employee in such a manner as to place a strain on it, causing it to break again. As a result, thirty-six Chinese Elm trees at one edge of the shelterbelt were destroyed.
The district court awarded damages in the sum of $450 for loss of the trees and held defendant personally liable, presumably, under the doctrine of respondeat superior. While we have considerable difficulty comprehending the theory of the lower court, we believe that its decision must be upheld.
The defendant, as a member of an unincorporated association, is individually liable for tortious acts committed by the association’s agents acting within the scope of their employment. The rule is well stated in 7 C. J. S., Associations § 32c, P. 79.
“Although the mere fact of membership in an association is not of itself sufficient basis for a tort liability of individual members for the wrongful acts or omissions of an association or its agents, the members are responsible for tortious acts committed by the society, where it can fairly be assumed that they were within the scope of the purposes for which the organization was formed, or where they aided and abetted in the commission of the tort; and they are liable for torts committed by the association’s agents, acting within the scope of their employment.
“Where liability exists, the liability of the members has been held several for the whole amount of damages incurred by a third party and not limited to a numerical or aliquot part thereof.”
Also see, 6 Am. Jur. 2d, Associations and Clubs § 48.
Defendant strenuously urges that since he was acting only as operating agent of the association, the association itself was liable for the tortious act in question. Thus, he contends plaintiffs’ proper remedy was to institute an action against the members collectively, or against one or more members as representatives of the class (K.S.A. 60-223 [a]; K.S.A. 1970 Supp. 60-223 [b]). The argument is procedural in nature and would have some validity had plaintiffs chosen to sue the association as such. (See, Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P. 2d 891.) Here, however, defendant was sued as an individual, and liability, if any, must be predicated on his being a member of the association. Even in those states where statutes have been enacted permitting unincorporated associations to be sued eo nomine, it has generally been held not to preclude a plaintiff from pursuing any remedy available to him at law or in equity against the individual members. (Lyons v. Am. Legion Realty., 172 Ohio St. 331, 175 N. E. 2d 733, 92 A. L. R. 2d 492; Anno. 92 A. L. R. 2d 499.)
The record reveals that the tortious conduct of which plaintiffs complain was committed by the association’s employee, acting within the scope of his employment and for the purposes for which the association was formed. Furthermore, as operator of the lease upon which the tort occurred and for whose benefit the association’s employee was acting, defendant, in effect, had agreed to the course of action from which the wrongful act arose. Under all the facts and circumstances, defendant is severally liable as a member of the association for damages resulting from the escaping salt water from the association’s disposal lines. That portion of the lower court’s judgment is sustained, even though we believe it was arrived at through a process of erroneous reasoning. (See, Paul v. Topeka Township Sewage District, 199 Kan. 394, 430 P. 2d 228.)
An additional point is advanced about the measure of damages applied by the .court in determining the value of the trees destroyed. After carefully examining the argument, we have concluded that defendant has not sustained his burden in affirmatively showing there was any error or irregularity prejudicially affecting his substantial rights. (See, Phillips v. Fisher, 205 Kan. 559, 470 P. 2d 761.)
That portion of the judgment awarding damages for the four well sites is reversed and the case remanded with directions to enter judgment for defendant; the judgment for damages for loss of trees is affirmed. | [
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The opinion o£ the court was delivered by
Price, C. J.:
This was an action by parents to recover for the wrongful death of their son (K. S. A. 60-1901).
The narrow question presented is whether the doctrine of immunity from tort liability — heretofore extended to agencies of the state and to municipalities when engaged in governmental functions — is to be abolished.
The trial court adhered to the long established rule of immunity.
Plaintiffs have appealed.
We affirm the judgment.
Highly summarized — the petition alleged this tragic sequence of events.
Plaintiffs’ son, Thomas E. Daniels, a University of Kansas student, was employed as a night clerk at a motel in Lawrence. At about 1:00 o’clock in the morning of June 27, 1967, while at work, he was accosted by two armed robbers — Sparks and Lynch — who had just committed several armed robberies in Lawrence and had shot one or more persons in the commission thereof. At gun-point, and under threats of death, they abducted Daniels and forced him to drive his blue 1964 model car west out of Lawrence.
Shortly, an alarm was sounded and the Lawrence police department alerted law enforcement agencies — including the Kansas Highway Patrol and the police department of the City of Salina — of the abduction, description of the car, and of the fact Daniels might be a hostage. In the meantime the car was speeding westward with Daniels at the wheel and a gun at his head. Roadblocks were set up on the main highway east of Salina — but to no avail. Upon reaching the east city limits of Salina the car turned off the highway so as to avoid further roadblocks — with the Kansas Highway Patrol and Salina police cars in hot pursuit.
Finally, after numerous shots had failed to halt the car, a Salina policeman drove his police car into the left side of the fleeing car and opened fire point-blank on Daniels, striking him in the head and causing the car to go out of control and strike a building. The abductors — Sparks and Lynch — were apprehended at the scene.
Daniels was removed to a hospital where he died the next day.
Plaintiffs brought this action against the Kansas Highway Patrol, the City of Salina, and certain named individual patrolmen and policemen who were participants in the chase and apprehension— alleging that their son’s death was caused by the negligent, wrongful and unlawful actions of the officers in that they knew, or should have known from the information relayed to them that Daniels was a hostage in the car, and that they owed him the duty to protect him and save him from injury.
Motions to. dismiss the action against them were filed by the Kan sas Highway Patrol and the City of Salina. These motions to dismiss were sustained on the ground the doctrine of immunity from tort liability extends to law enforcement agencies of the state and municipalities.
We are not advised as to the status of the action against the individual defendants, and no question concerning it is involved in this appeal.
Counsel for plaintiffs frankly concedes that it has been held many times that — absent a statute imposing liability — the state (and agencies thereof) and municipalities (cities) are immune from tort liability when engaged in a governmental function — but contends the doctrine — being of ancient and somewhat doubtful origin— should be abolished as not being in the best interests of the public in these modem times.
The historical background of the doctrine — together with the reasons advanced as to why it should be abolished — have been discussed in decisions of this court and there is no occasion to repeat. Contentions made here are identical to those previously made — and consistently have been rejected.
It has been held many times that the operation of a police department by a city is a governmental function (Wommack v. Lesh, 180 Kan. 548, 305 P. 2d 854), and that a city is not liable for the negligence or misconduct of its police officers when engaged in the performance of governmental functions (Gardner v. McDowell, 202 Kan. 705, 451 P. 2d 501). Also, see Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347. It logically follows that the maintenance and operation by the state of the Kansas Highway Patrol as a law enforcement agency also is a governmental function and that neither the Patrol — as such — nor the state, is liable for the negligence or misconduct of its officers when engaged in the performance of governmental functions.
Throughout the many decisions dealing with the immunity doctrine it often has been said that the rule is so firmly imbedded in our law that it has become the public policy of the state — and that if it is to be abolished it is a matter for legislative determination. In response to this — the contention frequently has been made that as the doctrine itself was “court-made” — courts should not hesitate to undo the “wrong”.
Although not directly in point on the question before us — attention is called to the fact that in July, 1969, this court — in Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21 (syl. 6) abolished the doctrine of immunity as applied to all governmental bodies of the state when engaged in proprietary activities as distinguished from governmental activities. The decision did, however, (syl. 4) recognize the authority of the legislature to control the entire field of governmental immunity — including matters covered by judicial decisions. The broad-sweeping effect of the decision was of short duration, however, for, as pointed out in Woods v. Kansas Turnpike Authority, 205 Kan. 770, 773, 472 P. 2d 219, the next session of the legislature promptly accepted the challenge by enacting Chapter 200, Laws of 1970, now appearing at K. S. A. 1970 Supp. 46-901 et seq., effective March 26,1970.
Rut, in the case before us we are not directly concerned with the Carroll case or the subsequent legislation above mentioned, for here it cannot be denied that under all the facts heretofore related, officers of the Kansas Highway Patrol and of the police department of the City of Salina, were at the time engaged in law enforcement activity — a strictly governmental function — and as to those two defendants this action was correctly dismissed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover a workmen’s compensation lump-sum judgment pursuant to K. S. A. 44-512a. The appeal is from the district court’s order sustaining the respondent-employer and its insurance carrier’s motion to dismiss the action. The employer and its insurance carrier are referred to as the respondents.
The facts are not in dispute. On August 16, 1969, the examiner entered a workmen’s compensation award in favor of the claimant. Thereafter, the respondents made timely written request to the director of workmen’s compensation for review of the award pursuant to K. S. A. 1969 Supp. 44-551.
On November 13, 1969, the director entered his order approving the examiner’s award and filed the same in his office. In addition to the payment of medical expense, the award directed payment of temporary total disability at the rate of $49 per week for 415 weeks in the amount of $20,335. The director found that as of August 16, 1969, the claimant was entitled to 65 weeks of compensation at the rate of $49 per week in the amount of $3,185 of which $1,568 had been paid leaving a balance of $1,617 due and owing, which was ordered paid in one lump sum. The remaining compensation in the amount of $17,150 was ordered paid at the rate of $49 per week for 350 weeks, or until the further order of the director.
Six days later, and on November 19, 1969, the respondents perfected an appeal to the district court of Douglas County from the directors award of compensation in favor of the claimant.
On the following day, November 20, 1969, the claimant served a statutory demand upon the respondents pursuant to 44-512a for payment of all due and unpaid weekly compensation benefits and for all unpaid medical expenses then due and unpaid.
The respondents last paid compensation to the claimant on October 5, 1969, and they failed to comply with the claimant’s statutory demand to pay the portion of compensation due under the award for the ten-week period preceding the director’s award.
On December 10, 1969, the claimant commenced this action to recover the entire amount of compensation and medical expenses awarded, less any payment previously made to him.
Thereafter, the respondents filed a motion to dismiss the action. On March 3, 1970, the district court entered its order sustaining the motion,
“. . . [¡Inasmuch as no payments were due at the time Claimant’s demand was served, such demand was as has been held: ‘premature and ineffectual to authorize an action for a lump sum judgment.’ (See: Hunter v. General Motors Corporation, 202 K. 166, at 170.)”
The sole question presented is whether a statutory demand for payment of compensation served upon the respondents after they perfected an appeal to the district court pursuant to K.S. A. 1969 Supp. 44-556, and within twenty days after the director made and filed his award, is premature and ineffectual to authorize an action under the provisions of 44-512a. In other words, was compensation awarded the claimant due and payable under 44-556 when he served his statutory demand upon the respondents on November 20, 1969? For reasons hereafter stated, we conclude no compensation was due or payable under the director s award when the claimant served his statutory demand.
Section 44-512a has been construed and applied by this court in many cases. In Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511, the statute’s purpose and effect were stated. In the opinion it was said:
“. . . Without deviation, it has been held that if any compensation awarded shall not be paid when due, then, following service of the written demand provided for, continued nonpayment for twenty days thereafter accelerates the entire amount of compensation awarded, which immediately becomes due and payable, and the person entitled thereto may maintain an action to recover the specific amount in like manner as for the collection of a debt . . .” (1. c. 431.)
A statutory demand under 44-512a can only be effective for compensation awarded the claimant then due and unpaid. (Damon v. Smith County, 191 Kan. 564, 382 P. 2d 311.) When payment of compensation is not delinquent, either under the provisions of 44-556, or by reason of payment or tender of payment on the part of the employer or his insurance carrier, there can be no valid statutory demand upon which to predicate a 44-512a action.
K. S. A. 1969 Supp. 44-556 provides in part that an appeal to the district court may be taken by any party to the proceeding within twenty days after the director files his award, and in addition provides:
“. . . That no compensation shall be due or payable until the expiration of such twenty (20) day period and then the payment of past due compensation awarded by the director shall not be payable, if within such twenty (20) day period notice oí appeal to the district court has been filed and the right to appeal shall include the right to make no payments of such compensation until the appeal has been decided by the district court if the employer is insured for workmen’s compensation liability with an insurance company authorized to do business in this state or, if the employer is a self-insurer, and has filed a bond with the district court in accordance with K. S. A. 44-530: Provided, however, That the perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal . . .”
While the statute appears to contain conflicting provisions with respect to the payment of compensation pending an appeal to the district court, its provisions have been construed in our recent cases of Hunter v. General Motors Corporation, 202 Kan. 166, 446 P. 2d 838, and Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, 466 P. 2d 344. In the Hunter case, referring to 44-556, it was said:
. . This statute substantially provides . . . that an appeal may be taken from an award of the director by filing a notice of appeal with the director within twenty days after the award has been made and filed, and that no compensation shall be due or payable until the expiration of such twenty-day appeal period.” (1. c. 169.)
In the Kissick case, it was said:
“. . . K. S. A. 1969 Supp. 44-556 provides in substance that any party may appeal from the director’s decisions, rulings and awards to district court within 20 days after the same have been made and filed, that no compensation shall be due or payable until expiration of such 20-day period, and that past due compensation shall not be payable if within such period notice of appeal has been filed; provided, however, that perfection of the appeal shall not stay payment of compensation due for the period of ten weeks next preceding the director’s decision and for the period between the director’s decision and the decision of the district court on appeal.” (1. c. 851.)
For discussion of the statute see, also, Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 220, 223-225, 404 P. 2d 165.
In the instant case, the statutory demand was served upon the respondents within the twenty-day period after the director filed his award, and the fact it was served after the respondents perfected their appeal to the district court did not accelerate the entire amount of the compensation awarded the claimant. Under the express terms of the statute, no compensation was. due or payable for twenty days after the director filed his award, and no valid effectual demand may be made within that time upon which to predicate a 44-512a action. Clearly, the statutory demand was premature and ineffective since it was served within the twenty-day period. In the Hunter case, it was held:
“A demand made under K. S. A. 44-512a for payment of compensation awarded by tire workmen’s compensation director is premature and ineffectual where the same is made within the twenty-day period during which an appeal from the director’s award may be taken to district court under the provisions of IC. S. A. 1967 Supp. 44-556.” (Syl. ¶ 1.)
Under our cases construing the provisions of 44-556, it may be said that for a written demand to be effective under 44-512a it must be served upon the delinquent employer after the expiration of the twenty-day period following the filing of the director s award. (Hunter v. General Motors Corporation, supra; Kissick v. Salina Manufacturing Co., Inc., supra.) This is not to say, however, that pending an appeal to the district court the claimant is without remedy to compel payment of the compensation awarded. The point was covered in the Rissick case, and it was said:
“Our conclusion does not leave a claimant without remedy should his employer fail or refuse to pay compensation due pending the appeal. The statute, K. S. A. 1969 Supp. 44-556, clearly directs that an appeal from the director’s award shall not stay payment of compensation due for the ten-week period next preceding the director’s decision and during pendency of the appeal. If compensation is not paid when due, the workman has been provided with a handy and effective tool to force compliance, namely, the procedure outlined in K. S. A. 44-512a. Use of this statute, in our opinion, is the means by which the legislature intended all compensation due and payable should be enforced, including that which is due pending appeal. In Griffith v. State Highway Commission of Kansas, supra, this view finds expression in syllabus 2:
‘K. S. A. 44-512a is the declared public policy of the state that compensation awards shall be promptly paid, and is the means selected by the Legislature to insure their enforcement, and applies to all awards or judgments without the slightest qualifications.’ (1. c. 855, 856.)”
The district court did not err in dismissing the claimant’s action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a conviction of murder in the first degree by a sixteen year old youth who participated in a gang-style slaying. After waiver of jurisdiction by the juvenile court, the defendant was tried in the district court, and upon conviction was sentenced to life imprisonment in the State Industrial Reformatory at Hutchinson, Kansas.
The specifications of error primarily involve the admission into evidence of a recorded statement made by the defendant prior to trial and the giving of instructions.
On the night of August 29, 1968, James Edward Hinkle (defendant-appellant) and three of his friends participated in a gang-style slaying of another teenage boy who was unknown to them. The appellant and his friends were armed with a sawed off automatic .22 caliber rifle and a knife when they picked up a hitchhiker by the name of Robert Wayne Wood in the area of the K. U. Medical Center in Kansas City, Kansas. Wood had voluntarily accepted their offer of a ride in an automobile and participated in drinking beer they supplied to him. It was late at night and as the group traveled through Wyandotte County in the automobile, they proceeded to rob Wood at knife point, following which they drove out to an isolated area, parked the automobile, and after fighting with Wood fired the .22 caliber rifle a number of times into his body.
The other defendants also charged with first degree murder were Mike Coleman, age sixteen; Mike Murphy, age eighteen; and “Pepper” Jackson, age twenty.
It was while Jackson and Wood were fighting, going down an embankment away from the car into a field, that Murphy cut loose with his automatic rifle and began shooting into Wood, according to the record. Jackson then stabbed Wood with a seven-inch knife. Murphy at the instruction of Jackson handed the gun to the appellant and Jackson ordered the appellant to shoot Wood, whereupon the appellant took the rifle and at close range fired into the body of Wood. (The appellant in his statement said he shot over the body, not into it.) When the gun was empty it was reloaded and Jackson and Murphy shot into the body several more times. The body was then dragged a few feet to weeds, covered over and left. The knife, gun and possessions belonging to Wood were thrown out of the automobile on the way home. The gun was thrown out while crossing the bridge over the Kaw River, but was recovered during the investigation and used as evidence in the trial.
Approximately ten days after the incident the wife of Pepper Jackson notified the state highway patrol at Willow Springs, Missouri, of a conversation she had overheard relative to the killing. Thereafter the Johnson County sheriff’s office was notified by telegram.
Neither the sheriff’s office of Johnson County nor the sheriff’s office of Wyandotte County, upon receiving word of the incident, had prior information that a murder had been committed within the past two weeks. At the time it was uncertain from the information received in the telegram whether the alleged murder took place in Johnson County or in Wyandotte County. The telegram merely described the area of Inland Drive and mentioned Holliday, Kansas, an area at the boundary line of the two counties.
An investigation pursued with approximately six or seven officers who went out to search the area. They were unable to find a body or anything in the areas described, or in an area from which an odor had previously been reported on Inland Drive.
Officers from both Johnson and Wyandotte Counties then proceeded to the home of the appellant who was mentioned in the telegram. Upon their first call the appellant was not at home, but his parents advised the officers they would call upon their sons arrival. Shortly thereafter the parents notified the authorities the appellant was home, and the officers returned to the home and asked for the appellant. They showed the telegram to the appellant’s parents and told the parents what they wanted to talk to him about. The parents gave their consent for the officers to talk to the appellant, and he thereupon came into the front room of the home with the officers.
Officer Kielman then testified as follows:
“Q. All right. Then what, if anything, happened?
“A. We — I don’t remember exactly which one of the officers it was that started talking to him and identified ourselves to the young man, and told him that we wanted to talk to him on a serious matter.
“Q. Then what happened, sir?
“A. He stated to us that — he more or less broke down and said that he knew what we wanted to talk to him about, and that he wanted to get it off his chest.
“Q. All right. Now at any time there at the home, Mr. Kielman, was this individual — where were the parents, by the way, at this time?
“A. The parents were in the front room — all of us were in the front room.
“Q. That’s you and your partner, Mr. Patton, and the two officers from Johnson County, is that correct?
“A. Yes, sir.
“Q. And the parents and the boy?
“A. Yes, sir.
“Q. And at any time — what, if anything, did you tell this boy concerning his constitutional rights?
“A. One of the officers — I don’t remember which one it was — stopped the boy in the middle of him starting to talk and advised him of his rights at this time, and—
“Q. (Interrupting.) Was that in the presence of the parents, officer?
“A. Yes.
“Q. What, if anything, was said about constitutional rights there at the home?”
Officer Kielman thereupon answered that the appellant was fully advised of his constitutional rights, testifying in detail to show full compliance with Miranda.
Two of the officers present at the home then took the appellant in their automobile to search for the body of Wood, and after approximately a one-half hour search gave it up without success. They returned to the sheriff’s office in Johnson County with the appellant. The appellant’s parents proceeded with the other officers to the sheriff’s office in Johnson County.
Officer Geurian testified after they arrived at the sheriff’s office in Johnson County that he advised the appellant of his rights in accordance with Miranda in the presence of the appellant’s parents, and that the appellant and his parents all understood their legal rights. He then testified:
“Q. After you advised him of his rights, what then took place?
“A. He talked it over with his parents and asked them what they thought he should do, and they told him to do whatever he thought was right. It was his decision to make, and he should make the — do whatever he thought was right.
“Q. And what was his decision, if you know?
“A. He stated he would give us a statement.
“Q. All right. Then what happened?
“A. Then we took the boy, along with the court reporter and Captain Lane and myself, to another office where we took a statement, after having advised him of his rights again.
“Q. All right. Were you present when his rights were advised again?
“A. Yes. I was.
“Q. And who advised him this time?
“A. Captain Lane.
“Q. All right. And was his rights explained to him a further time?
“A. They actually were explained, then, in the statement also. Before the statement, we read him a waiver of rights form, another one, and it was read into the statement.
“Q. You read one while the court reporter was taking the statement?
“A. Yes.
“Q. So he was advised how many times?
“A. At least three times.”
The statement of the appellant was then taken by Captain Lane and Detective Geurian conducting the interrogation, and everything was recorded by a certified shorthand reporter. In substance the statement revealed information in accordance with the facts heretofore related.
While the statement was being taken the appellant was in a room alone with the interrogating officers. His parents were waiting in an adjoining room, but they were not specifically excluded from the room where the statement was taken.
Throughout the trial and on appeal to this court the appellant was represented by retained counsel.
The appellant contends the trial court erred in admitting the written statement of the appellant into evidence because it was the result of an interrogation of a sixteen year old juvenile outside of the presence of his parents and/or juvenile officer.
On this point the appellant relies upon K. S. A. 1970 Supp. 38-815 (b) for the proposition that the officers, upon realizing that the appellant was a person of juvenile age, were required to take him immediately before the proper juvenile authorities and/or his parents. The foregoing provision of the statute reads:
“(b) When any peace officer takes into custody a child under the age of eighteen (18) years, with or without a warrant or court order, such child shall not be taken before a justice of the peace, police judge, magistrate or judge of any other court now or hereafter having jurisdiction of the offense charged, but shall be delivered into the custody of the probation officer or be taken forthwith before the juvenile court; and it shall be the duty of such peace officer to furnish such juvenile court with all of the information in his possession pertaining to said child, its parents, guardian or other person interested in, or likely to be interested in, the child, and all other facts and circumstances which caused such child to be taken into custody.”
We fail to see the application of the foregoing statute to the situation here presented. It does not state that a juvenile under the age of eighteen years cannot be questioned by police officers. All it states is that he is to be taken before the juvenile court prior to being taken to any other court having jurisdiction of the offense charged.
Here neither the Wyandotte nor the Johnson County authorities were aware that this particular crime had been committed until both authorities received a teletype from the Missouri highway patrol office in Willow Springs, Missouri. The teletype stated that a girl in Willow Springs, Missouri, reported a gang murder in Kansas, and that the appellant participated in the killing. No body was found after a search of the area described in the teletype. Officers from the sheriff’s office in both counties then contacted the appellant, since he was named in the teletype, to see what he knew of the incident. The officers were met by the appellant’s parents at the home and were allowed to talk to the appellant at his home. When the appellant stated he wanted to get it off his chest he was immediately advised of his rights before any further questioning. His parents were present at all times at the home. Since the location of the alleged crime appeared to be in Johnson County, Kansas, the officers from the Johnson County sheriff’s department took the appellant and both of his parents to the Johnson County sheriff’s office to obtain a statement. At this time no body had been found and no statements had been obtained. While at the Johnson County sheriff’s office and in the presence of both parents, the appellant was again advised of his constitutional rights several times before he gave his recorded statement with the consent of his parents.
While his statement was being obtained, two officers from the Wyandotte County sheriff’s office were talking to another boy in Wyandotte County, Kansas. This boy, who also participated in the slaying, led them to the crime scene where the body was discovered. The location of the body revealed that the crime scene was in Wyandotte County, Kansas.
After the appellant’s statement was taken and after the body was' found in Wyandotte County, Kansas, the appellant was then taken to the Wyandotte County juvenile court where on the 7th day of September, 1968, one day after his statement was obtained, he was charged by petition in the Wyandotte County juvenile court with murder in the first degree.
No question whatever is raised by the appellant on appeal concerning the waiver of the juvenile court’s jurisdiction and the certification of this case to the district court for the prosecution of the appellant as an adult. (See In re Templeton, 202 Kan. 89, 447 P. 2d 158; and In re Long, 202 Kan. 216, 448 P. 2d 25.)
The record is clear, that when the sheriff’s officers delivered the appellant to the juvenile authorities in Wyandotte County, he had never been taken to any other court of any jurisdiction.
Police officers are authorized to investigate and obtain information from a juvenile relative to a crime, and when diere are sufficient grounds to believe a. crime has been committed and the juvenile committed the crime, they must then deliver the juvenile into the hands of the proper juvenile authorities along with all information in their possession.
A confession is not inadmissible merely because the person making it is a minor. (United States v. State of New Jersey, 323 F. 2d 146 [3rd Cir. 1963]; and United States v. Lovejoy, 364 F. 2d 586 [2nd Cir. 1966], cert. denied 386 U. S. 974, 18 L. Ed. 2d 135, 87 S. Ct. 1168.) Age of the minor, however, in conjunction with other extenuating circumstances, is a factor to be considered in determining the voluntariness and admissibility of his confession in evidence. (Haley v. Ohio, 332 U. S. 596, 92 L. Ed. 224, 68 S. Ct. 302 [1948]; Reck v. Pate, 367 U. S. 433, 6 L. Ed. 2d 948, 81 S. Ct. 1541 [1961]; and Gallegos v. Colorado, 370 U. S. 49, 8 L. Ed. 2d 325, 82 S. Ct. 1209, 87 A. L. R. 2d 614 [1962], reh. denied 370 U. S. 965, 8 L. Ed. 2d 835, 82 S. Ct. 1579.) Cases holding admissible the confession of a sixteen year old defendant where the confession was freely and voluntarily given are: People v. Magee, 217 C. A. 2d 443, 31 Cal. Rptr. 658, cert. denied 376 U. S. 925, 11 L. Ed. 2d 620, 84 S. Ct. 688, reh. denied 376 U. S. 967, 11 L. Ed. 2d 985, 84 S. Ct. 1126; State v. Francois, 197 So. 2d 492 (Fla. 1967); and People v. Stephen J. B., 23 N. Y. 2d 611, 298 N. Y. S. 2d 489, 246 N. E. 2d 344 (1969). An extended annotation on the “Voluntariness and admissibility of minors confession” appears in 87 A. L. R. 2d 624-633; and in A. L. R. 2d Later Case Service, supplementing 85-91 A. L. R. 2d, at page 174.
Here the voluntariness of the appellant’s written statement was determined by the trial court on a motion to suppress prior to trial. Upon a full hearing, which the appellant does not challenge, the trial court overruled the motion to suppress and determined the written statement to be admissible in evidence, finding that it had been freely and voluntarily given after the appellant had been fully apprised of his rights pursuant to Miranda.
The guidelines set forth in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974 (1966), apply to confessions and admissions. These guidelines are the measure for courts to apply in. determining whether a confession or statement is voluntarily made and admissible.
On the facts in this case there is a distinction between the investigatory stage of the case, wherein the appellant said he wanted to get it off his chest, and the custodial interrogation which ensued thereafter.
In Miranda the court said:
“Our decision is not intended to hamper tire traditional function of police officers in investigating crime. . . .” (p. 477.)
The record here discloses that once the appellant stated he wanted to get it off his chest, the investigating officers stopped him from saying anything further, and he was immediately advised of his constitutional rights. His parents were present at all times, fully aware of the situation, and consented to the interrogation.
In State v. Phinis, 199 Kan. 472, 430 P. 2d 251, it was said:
“We hold the trial court properly determined that any statements made by defendant at the cabin were elicited by the officers in the investigatory stage of the inquiry before the investigation had begun to focus on the defendant. We further hold that defendant was advised of her constitutional rights before the accusatory stage within die purview of Miranda. Any statements made by her in response to custodial interrogation were made after she was properly advised of her rights, were made voluntarily and knowingly and were properly admitted in evidence by the trial court.” (pp. 480, 481.)
Confessions or admissions voluntarily made are not inadmissible because made at a time when the accused in a criminal action did not have counsel. (State v. Weinman, 201 Kan. 190, 193, 440 P. 2d 575; and cases cited therein.)
Here the appellant, after having been fully informed of his constitutional rights in accordance with Miranda, which both he and his parents understood, waived his right to have counsel present when his statement was taken, and freely and voluntarily made a statement thereby waiving his right to remain silent.
The appellant contends the trial court erred in refusing his request to instruct the jury on first, second and third degree manslaughter.
The trial judge instructed on murder in the first degree and murder in the second degree, but refused to instruct on manslaughter, stating in his comments:
"... I considered manslaughter instructions, because I know that the ordinary rule is that all lesser degrees of any crime must be submitted to the jury if there is any evidence to support any of them. And I went through the provisions in the crime act relative to manslaughter, and I couldn’t find a single degree of manslaughter — -and some of those degrees, of course, have several aspects' — I couldn’t find any degree of manslaughter, as defined in our statutes, that would support a conviction on such degree in this case. It just had to be murder in the first degree, murder in the second degree, or not guilty. . . .”
All degrees of manslaughter as defined by the statutes here applicable require that the killing be accomplished “without a design to effect death.” (K. S. A. 21-407; 21-411; and 21-413.) The record does not support the appellant’s contention that the shooting was without a design to effect death. The evidence discloses the victim was shot over twenty times with the modified automatic rifle placed in evidence, that he was stabbed once in the side, and that the appellant stood over him and fired a number of times into the victim’s body.
In State v. Gray, 189 Kan. 398, 369 P. 2d 330, the court treated a similar contention by the appellant and said:
“. . . When this defendant stood over his wife at such close range with a loaded pistol and proceeded to shoot her six times, once in the neck and five in the area of the head, he cannot be heard to claim that the killing was without a design to effect death, or that any other element of manslaughter in any degree was present. . . .” (p. 403.)
Our court has consistently adhered to the rule that in a prosecution for first degree murder, failure to instruct the jury on any lesser degree is not error if the evidence at the trial excludes the theory of guilt on any lesser degree of the crime. (State v. Hoy, 199 Kan. 340, 430 P. 2d 275; State v. Noble, 175 Kan. 398, 264 P. 2d 479; and State v. Germany, 173 Kan. 214, 245 P. 2d 981.)
Here the requested instructions on manslaughter were properly refused because there was no evidence of any nature disclosed in the record to warrant an instruction on manslaughter.
Other contentions advanced by the appellant in his motion for a new trial have either been abandoned on appeal, or they have not been shown to be of sufficient gravity to say the appellant was prejudiced in the trial of his case.
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The opinion of the court was delivered by
Hatcher, C.:
This action stems from a controversy over the amount to be paid for building dikes and drains on certain land.
Defendant was the owner of 492 acres of land in Linn County, Kansas. Early in the year 1967, he entered into an oral contract with plaintiff, a heavy equipment operator, to drain some twenty acres of bottom land, remove an old dam and rebuild a new dike or levee at the lower end. The purpose of the work was to create a condition where defendant could drain the bottomland for planting for grain in the spring, then close the drain and flood the area for duck hunting in the fall.
The plaintiff was to do the work and be compensated on an hourly basis. The compensation per hour and the hours spent on the project are not in dispute.
The work was completed September 30, 1967. The plaintiff submitted his bill. The defendant refused to pay. This action was brought and tried to the court. Judgment was rendered against the defendant in the amount of $17,265.80 with interest at six percent per annum until paid.
Defendant has appealed.
Appellant contends that the judgment in the amount rendered is not supported by the evidence. We quote the appellant’s chief contention on this point.
“There is no doubt that the parties were working under an oral contract to do certain work at so much an hour. The main quarrel is that too many hours were spent getting the job done, in fact, more than double what appellant was led to believe the job would cost. Further, the job was not properly done as the field created doesn’t drain.”
The trial court made findings of fact on the controlling issues. We quote:
“The court finds that plaintiff C. L. Brohan is engaged in soil conservation and earthmoving work; that defendant Ralph L. Nafziger, Jr., is the owner of certain land in Linn County, Kansas, described as follows: [Detailed description omitted.] and the court further finds that early in 1967, Nafziger engaged Brohan to do certain earthmoving and clearing work on his Linn County land, Brohan to be paid for the work on an hourly basis; that Brohan estimated the cost of a portion of the work, based on normal weather conditions, at seven or eight thousand dollars, but that prior to the start of the work it was agreed that Brohan would proceed on an hourly and not on a job basis; that during the course of the work, Nafziger insisted that the work proceed when the land was wet and Brohan did not think it best to work the equipment, because Nafziger was anxious to have the dike completed in time for duck season; that the major portion of the work was done in low-lying clay or gumbo soils, some of it having been part of an old lake bed; that there was heavy rainfall during the period of time in question; that plaintiff, the witness Craigmiles, and others told Nafziger that he wasn’t getting his money’s worth, working the tractors in the mud, and that he should park the cats,’ but Nafziger insisted on proceeding with the job, with the result that the work took many more hours than would otherwise have been required; that Nafziger was advised weekly by Mrs. Brohan of his total accrued bill, and he made no objection thereto until the work was completed; that Nafziger told Adrian Craigmiles, a banker from Rich Hill, Missouri, in late July or early August, 1967 that Nafziger was then indebted to Brohan for work done between thirteen and fourteen thousand dollars, and the whole job would run twenty thousand dollars or so; that under the circumstances the charges are reasonable for the work and services performed at Nafziger’s request; that there is due plaintiff from defendant Nafziger the sum of $17,265.80, together with interest thereon at the rate of six percent per annum from September 30, 1967, until paid, . . .”
There was ample competent evidence to support the trial court’s findings. We note briefly:
Mrs. Charles Brohan kept books for appellee and during all the time the work progressed appellant knew exactly the amount of his bill.
During the latter part of July or the first of August, appellant told witness Craigmiles that his bill at that time was around $13,000 or $14,000, and that he thought the whole thing was going to run $20,000.
Mr. Northern, a witness for appellant, testified that under ordinary dry conditions the work done, not including material furnished, would cost $9,877.05. Mr. Northern further testified that wet conditions would add to the cost of the job, and also, to rebuild a defective levee would cost more than to build a new one.
Appellee told appellant that he shouldn’t be working in the mud, that it would cost two or three times as much to work in the mud as under ordinary conditions, but appellant insisted that the work go ahead.
We must conclude that when findings of fact are attacked for insufficiency of evidence, or as being contrary to the evidence, the power of this court begins and ends in determining whether there is any competent substantial evidence to support the findings. This court will not weigh the evidence or pass upon the credibility of the witnesses. (State v. Lyon, 203 Kan. 78, 452 P. 2d 838; Schnug v. Schnug, 203 Kan. 380, 454 P. 2d 474.)
The appellant next contends that the trial court erred in charging the entire 492 acres of land owned by him with the payment of the judgment. On this issue the trial court found:
“. . . And the court further finds that the work was performed in clearing part of the land, in building a dike or levee, and in building extensive roads; that the work extends over a large area, and make all of the land more accessible, and all of the land benefited by the work; therefor the lien should be against the entire acreage.”
This finding was also supported by substantial competent evidence. On cross-examination appellee stated that he cut a corner off a hill and made a parking lot or trailer park; built one-half to-three-quarters of a mile of road across the tract of land, and cored and rebuilt a dike or levee down one side and across the end of an old lake. Appellant testified as to the clearing of eight acres on the hill and clearing along the roadway and around the trailer camp grounds.
A witness, testifying for the appellant, stated that he walked a lot of miles and spent about four hours inspecting the work done by appellee, including trees that had been pushed out on the hillside, that he saw a road that had been built, the side of a hill that had been cut down, a pond dug and some dike work done.
The principle upon which a lien is given for improvements upon land is that it adds to the value thereof. (Windmill Co. v. Baker, 49 Kan. 434, 30 Pac. 472.)
We must conclude, as did the trial court, that all of the land benefited from the improvement.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This case is now here for the third time. A brief chronicle of its odyssey through the courts is advisable.
On January 2, 1962, the defendant, George William Daegele, appeared before the district court of Douglas County, Kansas, accompanied by counsel, and there entered a plea of guilty to a charge of forcible rape. On January 13, after evidence was introduced of a previous Missouri conviction in 1942, Daegele was sentenced as a second offender to serve a term of not less than ten nor more than forty-two years in conformity with the provisions of the Kansas Habitual Criminal Statute, which was then K. S. A. 21-107a.
Daegele appealed from that conviction pro se and on December 2, 1962, this court dismissed the appeal for reasons appearing in the opinion set forth in State v. Daegele, 190 Kan. 613, 376 P. 2d 807. The United States Supreme Court subsequently granted certiorari and on October 14, 1963, that court remanded the case for reconsideration in light of Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814. The order of the Supreme Court remanding the case can be found in 375 U. S. 1, 11 L. Ed. 2d 44, 84 S. Ct. 89.
Appellate counsel was thereafter provided for Daegele and his appeal made its second appearance in this court. In an opinion filed July 14, 1964, and reported in State v. Daegele, 193 Kan. 314, 393 P. 2d 978, the judgment of the trial court was affirmed.
Some time later, the exact date not being shown by the record, the defendant instituted habeas corpus proceedings in the United States District Court for the District of Kansas, in which he challenged the validity of the sentence pronounced under the Habitual Criminal Act. In that lawsuit Daegele attacked the validity of the Missouri conviction used to enhance the penalty, asserting that he had not been represented by counsel. (See Burgett v. Texas, 389 U. S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258.)
On March 3, 1969, the federal district court sustained the defendant’s claim that the 1942 Missouri conviction was void and ordered that Daegele be returned to the custody of the warden of the Kansas State Penitentiary pending resentence proceedings. The court further ordered that in the event Daegele was not resentenced within 120 days from May 5, 1969, he then be discharged from custody.
On August 1, 1969, a date well within the time allotted by the federal court’s ukase, a hearing was held before the Douglas County District Court at which Mr. Daegele again appeared personally and by counsel. Prior to the hearing Daegele was notified that the state intended to present evidence of one previous conviction and would ask that the new sentence be pronounced pursuant to K. S. A. 21-107a.
The prior conviction introduced by the state at the hearing on resentence was a 1956 conviction from Lafayette County, Missouri. The trial court overruled Daegele’s objection to its admission and proceeded to sentence Daegele once again to a term of not less than ten nor more than forty-two years.
The present appeal raises this question: Under the law existing in this jurisdiction when the defendant was resentenced on August 1, 1969, was the 1956 Lafayette County conviction admissible for the purpose of invoking the provisions of K. S. A. 21-107a? Our own precedents require a negative response.
In State v. Cox, 194 Kan. 120, 397 P. 2d 406, we held that where a sentence has been set aside and proceedings for resentence are held, the state may not for the first time introduce evidence of prior convictions for the purpose of increasing the punishment imposed against the defendant. The rationale of this case was followed and the doctrine somewhat expanded in Bridges v. State, 197 Kan. 704, 421 P. 2d 45, which deserves a paragraph of its own.
In the Bridges case the defendant was sentenced in Ness County under K. S. A. 21-107a as a third offender on the basis of two previous Reno County convictions. Subsequently, the sentence was set aside as violating the Habitual Criminal Act and the defendant was returned for resentencing. The state thereupon re-introduced one of the two Reno County convictions used in sentencing the defendant the first time and, in addition, introduced a third prior conviction from Russell County. Among the points raised by the defendant on appeal was a contention that the trial court had erred in admitting new evidence of a previous conviction (the Russell County conviction), and this court agreed. The principle under-girding our decision was expressed in this wise:
“. . . [T]he district court, in a proceeding to correct a void sentence which has been partially served, has no authority to receive additional evidence upon which to base a new sentence. When the defendant appears before the court for resentencing the authority of the trial court is limited to a consideration of the identical facts and conditions existing at the time of the imposition of the original sentence. . . (p. 706.)
The foregoing passage was quoted with approval in Davis v. State, 198 Kan. 271, 424 P. 2d 471, in which case the Labette County District Court, in enhancing the sentence against Davis under 21-107a, had relied on a Michigan conviction, later set aside. Thereafter, Davis filed an action under K. S. A. 60-1507, in response to which the state alleged, and the trial court found, that at the time he was sentenced Davis had actually been the recipient of two prior convictions.
On appeal, however, this court said:
“The record of the criminal proceeding in Labette County does not disclose that evidence of two prior felony convictions was introduced. Under these circumstances the trial court is without power to resentence the petitioner using another prior felony conviction as the basis for invoking the habitual criminal act.” (p.272).
The present case cannot, in our opinion, be distinguished in principle from either Bridges or Davis, and attempts by the state to differentiate between them are not convincing. The so-called evidence of the Lafayette conviction, which the state contends was before the court, was peripheral at best, and of hearsay character.
K. S. A. 21-107a provides that judgment shall not be given for an increased penalty unless the court shall find from the record and other competent evidence the fact of former conviction. Moreover, K. S. A. 62-1516 requires that the record contain a statement of each previous conviction showing the offense, the date, the court, and a brief statement of the evidence relied on. None of these requirements were met, so far as the Lafayette conviction was concerned, when the original sentence was imposed against Daegele, and it cannot be said that competent evidence of such conviction was then before the court within the purview of 21-107a.
Before concluding, it may not be amiss to point out a recent change in the Habitual Criminal Act (now K. S. A. 1970 Supp. 21-4504.) The statute now provides, in subparagraph (4), that in the event any part of a sentence imposed is determined to be invalid because a prior felony conviction was itself invalid, the resentencing court may consider evidence of any other prior conviction which might have been used at the time of the original sentence, whether or not it was then introduced. This provision was not in effect when the new sentence in this case was imposed.
Our conclusion requires that we disapprove of and hold to be invalid that portion of the sentence imposed on August 1, 1969, which exceeds “not less than five nor more than twenty-one years,” and the sentence is hereby corrected to be “for a term of not less than five nor more than twenty-one years” as provided by K. S. A. 21-424.
The trial court is hereby directed to inscribe the corrected sentence upon its records. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is a workmen’s compensation case wherein the employee, Garvin Lee Odell, claims loss of vision in his right eye as the result of an accident occurring October 18, 1965. Compensation was denied by the examiner, director, and district court, and claimant has appealed.
Two questions are presented: (1) Was claim for compensation timely filed? and (2) Did the district court err in considering only the medical testimony in making its determination there was no causal connection between claimant’s loss of vision and the accident of October 18,1965?
The evidence discloses claimant was employed by Unified School District No. 259 as chief engineer at West High School in Wichita. While working on the job he sustained three separate injuries involving his eyes. The first injury occurred October 18, 1965, when he was walking through a tunnel and struck his head on a pipe, resulting in a lump and abrasion above his right eye. He was given first-aid treatment by the school nurse. The next day claimant commenced seeing spots, or floaters, in his eye. He telephoned his doctor, explained what had happened, and was advised that he was having a “sort of floating vision” which, normally, would clear up in a few days. On January 31, 1966, claimant got some boiler compound in his eyes and was treated at a hospital as an out-patient for caustic burns. After this occurrence, the spots, or floaters, in his eye seemed to be larger. Finally, on Friday, May 27, 1966, a small piece of wire or rust became lodged in claimant’s right eye when he was using a steel brush in his work. The object was removed by the school nurse. During the Memorial Day weekend, claimant completely lost the vision of his eye. He immediately consulted Dr. Jack Weaver, an ophthalmologist, who diagnosed his condition as a retinal separation and referred him to Dr. James T. Robison, Jr., an ophthalmologist and surgeon at the University of Kansas Medical Center. Dr. Robison confirmed the diagnosis and operated the eye June 7. The operation not being successful, the eye was reoperated June 14. Claimant was dismissed from the hospital June 19, and Dr. Robison last saw him December 19, at which time he classified the condition of claimant’s eye as “industrial blindness.”
Mr. Millikan, claimant’s Immediate supervisor, was aware of each of the three accidents at the time or shortly after they occurred but did not report the accident of October 18, 1965, to his employer inasmuch as he “assumed it was taken care of at the school.” A report of the January 31 accident was received in the employer’s personnel office on the day of its occurrence. The accident which occurred May 27 was reported May 31 to the employer, who in turn filed a “Report of Accident” with the workmen’s compensation director June 7.
Refore going to Dr. Robison, claimant gave a written statement June 3 to Jack Noll, an adjuster for the respondent insurance carrier, in which he told about the injury to his right eye on May 27, as well as the two earlier injuries. He stated that he seemed to have had trouble with his eye since running into the pipe in October. Thereupon, the adjuster authorized treatment by Dr. Robison, and the insurance carrier commenced paying compensation for temporary total disability as of June 4, 1966. Each of the drafts issued to claimant for disability benefits showed the accident date on the face of the draft to be May 27, 1966. During the summer of 1966 the insurance carrier continued paying weekly benefits and medical expenses incurred by claimant.
On August 16, Mr. Noll wrote Dr. Robison enclosing a copy of claimant’s statement given June 3 and inquired whether the surgery performed was “a direct result and required because of the incidents” described in the statement. Dr. Robison responded by letter dated September 8 advising that the injury of May 27 had absolutely nothing to do with the retinal detachment. He stated, however, the injury received in October, although remote in time, might conceivably have been a precipitating event leading to the detachment. On September 16, Mr. Noll forwarded a copy of Dr. Robison’s letter to claimant. After receiving the doctor’s letter, the insurance carrier declined to make further payments of compensation or medical expenses. Payments for temporary total disability were concluded as of September 6, 1966, when claimant returned to work.
Apparently, on the theory his employer may not have had knowledge of the October accident, claimant verbally reported it to his employer’s personnel office September 19, 1966, and the employer’s “Report of Accident” was filed with the workmen’s compensation director September 23. Written claim for compensa tion for the October 18, 1965, accident was filed (or served) on the employer January 10, 1967, and the following day claimant filed his application for hearing with the director.
After hearing all the evidence, the examiner found, in substance, that (1) the three accidents involving injury to claimant’s eye arose out of and in the course of his employment, (2) the employer had notice of all three accidents as required by law, (3) medical expenses were paid by the insurance carrier for the accident of May 27, 1966, and not for the October 18, 1965, accident, (4) written claim for the October accident was not filed in time, and (5) an award should be entered denying compensation. Upon review by the director, the examiner’s award was sustained. The district court, on appeal, adopted the findings of the examiner and affirmed the director’s order.
The finding that the employer had notice of all three accidents as required by law has not been challenged. The record discloses Mr. Millikan, claimant’s supervisor, had knowledge of the October accident within three or four days after it occurred. Knowledge of the accident by the employer, or his duly authorized agent, or notice to the employer within ten days of the accident is all that is required by K. S. A. 44-520. Notice to an immediate supervisor constitutes notice to the employer. (Phillips v. Helm's Inc., 201 Kan. 69, 439 P. 2d 119.)
Notwithstanding timely notice of the injury, the employer did not file a report of the accident with the workmen’s compensation director until September 23, 1966, long past the seven-day requirement of K. S. A. (now 1970 Supp.) 44-557. In such case, the time for filing a claim (commencing proceedings before the director) was extended to one year from date of the accident, or last payment of compensation. (Riedel v. Gage Plumbing and Heating Co., 202 Kan. 538, 449 P. 2d 521; Magers v. Martin Marietta Corporation, 193 Kan. 137, 392 P. 2d 148; Asp v. McPherson County Highway Dept., 192 Kan. 444, 388 P. 2d 652; Ricker v. Yellow Transit Freight Lines, Inc., 191 Kan. 151, 379 P. 2d 279; Kronig v. Nolan Motor Co., 186 Kan. 534, 351 P. 2d 1; Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235.) A proceeding for workmen’s compensation is commenced when the workman serves notice upon the employer of his claim for compensation. (Ricker v. Yellow Transit Freight Lines, Inc., supra.)
While we have held that the question of whether a claim for compensation has been filed within the time fixed by statute is primarily one of fact (Riedel v. Gage Plumbing and Heating Co., supra), such is not the case here, where the facts are undisputed. (Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P. 2d 172.) Claimant began receiving compensation for temporary total disability June 4, 1966 — prior to expiration of one year from date of the October accident. He received benefits and was furnished medical treatment until September 6, 1966. It is conceded that not until Dr. Robison s letter of September 8, 1966, did claimant or respondents learn that there was a possible causal relation between the retinal detachment and the October accident.
Claimant contends that within the factual context presented, his written claim for compensation filed January 10, 1967, was timely— within one year after the last payment of compensation. Respondents, on the other hand, contend that since compensation and medical expenses were paid on the May accident by mistake, the claim, not having been filed by October 18, 1966 (one year after date of the accident), was barred.
Although a case precisely in point has not been found, we believe that claimant’s position is sound, and that proceedings for compensation were commenced within the time required by K .S. A. 44-557.
This court is firmly committed to the rule that the provisions of the workmen’s compensation act are to be liberally construed in favor of the workmen and compensation awarded where it is reasonably possible to do so. Ry failing to file a report of the October accident within the time prescribed by K. S. A. 44-557, the employer set in motion the one-year time limitation provided in the statute for commencement of proceedings. During the limitation period, claimant made full disclosure of all three accidents involving injury to his eye. He made clear to Mr. Noll, the adjuster, that the blow to his head in October marked the onset of his eye problem, and his symptoms continued until the retinal detachment was diagnosed by Dr. Weaver in May 1966, after the third accident. Without making any effort to determine whether the retinal detachment was related to any particular one of the three accidents, the insurance carrier began paying compensation and furnishing medical treatment. The only employer’s accident report on file at the time was that pertaining to the May injury.' Obviously, compensation and medical expenses were paid by the carrier through the summer of 1966 upon the belief that the retinal detachment was in some way related to the May accident.
We should note that had the employer filed an accident report for the October accident within the time prescribed by K. S. A. 44-557, a claim for compensation thereon would have to have been filed within 180 days after the accident; otherwise, it would have been barred. (K. S. A. 44-520a). In such case, the right to file a written claim would not have been revived by subsequent payment of compensation or the furnishing of medical treatment. (Rutledge v. Sandlin, 181 Kan. 369, 310 P. 2d 950.) The situation here, however, differs in that employer’s accident report was not timely filed and compensation began and medical treatment furnished during the one-year limitation period provided by statute. Although it later developed the injury for which payments were made was not attributable to the May accident, but instead may have been related to the October accident, we do not believe, on that basis, claimant should be denied his right to file a claim within the time allowed after compensation and medical payments ceased. Claimant had the right to rely on the insurance carrier’s action and was relieved of filing a claim during the time he received compensation and medical treatment. (See, Johnson v. Skelly Oil Co., supra.) Under the circumstances, the fact that compensation was paid for the wrong accident cannot be taken advantage of by respondents to restrict the limitation period for filing a claim to one year from the date of the accident.
We therefore hold that the district court erred in finding written claim for compensation was not timely filed.
The second question for our consideration pertains to the district court’s finding:
“. . . [T]he medical testimony failed to establish that claimant’s loss of sight was related to the accident of October 18, 1965.”
As previously indicated, the examiner found that the three accidents involving injury to claimant’s eye arose out of and in the course of his employment.
Under the settled law of this state, the claimant had the burden of proving that the injury complained of arose out of his employment; that is, there must be some causal connection between his loss of vision and the accident of October 18,1965, which admittedly occurred in the course of his employment. (Meyers v. Consolidated Printing & Stationery Co., 201 Kan. 806, 443 P. 2d 319; Lyon v. Wilson, 201 Kan. 768, 443 P. 2d 314; Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205; Jacobs v. Goodyear Tire & Rubber Co., 196 Kan. 613, 412 P. 2d 986.) An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. (Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796 and cases therein cited.) An accidental injury is compensable even where the accident only serves to aggravate a pre-existing condition. (5 Hatcher’s Digest, Workmen’s Compensation § 16.)
As we view the finding of the lower court, the inference is that only the medical testimony was considered in resolving the question. Dr. Robison testified that in his opinion the blow sustained by the claimant in October could have been a precipitating force leading to a retinal tear in an eye that was predisposed with degenerative changes to have such a thing occur, but that the blow itself was not sufficient to have produced the tear. The doctor stated that most retinal detachments or tears are not caused by trauma. He further acknowledged that while the blow may have been a precipitating factor, by the same token, it may not have been. Dr. Weaver, who testified for respondents, stated that claimant’s myopia or near-sightedness made him more susceptible to having a retinal separation, and such separations are usually caused by degenerative changes. In Dr. Weaver’s opinion, claimant’s retinal separation was probably not due to the blow to his head. Both doctors tended to agree that there was no test or examination in the field of medicine that would determine whether or not the tear or separation could have been caused by the trauma.
We have said that a trial court, or a fact-finding body, in determining factual issues such as whether the injury arose out of the employment, is not required to limit its consideration to the testimony of expert medical witnesses, but may consider lay testimony in the case as well. (Lyon v. Wilson, supra; Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457; Hanna v. Edward Gray Corporation, supra. See, Mein v. Meade County, 197 Kan. 810, 421 P. 2d 177.) By the same token, we are of the opinion that where, as in this case, the testimony of the doctors was arguably uncertain and inconclusive, it was error for the district court to have looked solely to the medical evidence in making its factual determination. For that matter, circumstantial evidence also may properly be considered in determining whether or not a claim has been established. (Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 73 P. 2d 1120.)
In the present posture of this case, the district court has before it the complete transcript of the proceedings had before the director, and from the record is authorized to make its own independent adjudication of the facts. Our conclusion that the court erred in considering only the medical testimony on the issue of causation is not to be construed as indicating an opinion one way or the other on the question. Responsibility for resolving that issue lies within the exclusive province of the lower court after reviewing and weighing all of the evidence.
The judgment of the district court is reversed and the case remanded with directions to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
O’Connor, J.:
The petitioner, Larry E. Wood, has appealed from an order summarily denying his motion for post-conviction relief filed under K. S. A. 60-1507.
In October 1965 Wood was convicted by a jury in the district court of Sedgwick county on two counts of burglary in the second degree (K. S. A. 21-515), two counts of grand larceny (K. S. A. 21-524), and one count of possession of a firearm after previous conviction of a felony (K. S. A. 21-2611). The judgment and sentence were affirmed by this court in State v. Wood, 196 Kan. 599, 413 P. 2d 90.
In his pro se motion, petitioner alleged as grounds for relief that: (1) he did not confess to the crimes with which he was charged because he was innocent; and (2) if he did make the oral confession as disclosed by the state’s evidence at trial, he was not advised prior to or during interrogation of his right to counsel, nor did he waive the right to have counsel present.
The first ground is patently without merit for the reason that the question of guilt or innocence is not properly justiciable in a K. S. A. 60-1507 proceeding. (Wolfe v. State, 201 Kan. 790, 443 P. 2d 260 and cases therein cited.) The defense of alibi being asserted was presented and determined during the trial and affords no basis for post-conviction relief.
By the second ground of his motion, petitioner attempts to raise a trial error affecting his constitutional rights. Although conceding no objection was registered at trial, petitioner now contends that the testimony pertaining to his oral confession was erroneously admitted, and further, that he was not accorded a Jackson v. Denno, (378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774) hearing on the issue of its voluntariness.
Under Rule 121 (c) (3) (Rules of the Supreme Court, 205 Kan. xlv) trial errors are to be corrected by direct appeal, unless they affect constitutional rights and there were exceptional circumstances excusing the failure to raise the alleged errors in the direct appeal, in which case they may be considered in this type proceeding. (Eaton v. State, 206 Kan. 187, 476 P. 2d 694; Baker v. State, 204 221. Also, see, Tuscano v. State, 206 Kan. 260, 478 P. 2d 213; Hannon v. State, 206 Kan. 518, 479 P. 2d 852; Jackson v. State, 204 Kan. 841, 466 P. 2d 305; Barnes v. State, 204 Kan. 344, 461 P. 2d 782.) In his direct appeal (State v. Wood, supra) petitioner made no effort to question the admissibility of his confession. This presents a different situation than in Holt v. State, supra, and Baker v. State, supra, where the petitioner in each instance was thwarted in his attempt to present a trial error affecting constitutional rights in his direct appeal because of an appellate procedural rule which had since been abrogated. In those cases we held exceptional circumstances existed. Here, however, there has been no showing of any exceptional circumstances excusing petitioners failure to raise the point in his direct appeal. (Eaton v. State, supra.)
For the foregoing reasons, petitioner’s motion failed to disclose any substantial issue of fact or question of law. Hence, the sentencing court was not required to appoint counsel and hold a full evidentiary hearing with petitioner present. (See, e. g. Perry v. State, 200 Kan. 690, 438 P. 2d 83; Patterson v. State, 198 Kan. 507, 426 P. 2d 42; Coates v. State, 196 Kan. 607, 413 P. 2d 81.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a conviction of burglary in the second degree. (K. S. A. 21-520.) The appeal was first heard in March, 1970, and the opinion was filed April 11, 1970. See State v. Stuart, 205 Kan. 174, 468 P. 2d 240.
On May 25, 1970, a rehearing was granted on motion of the appellant. For purposes of rehearing, the parties were requested to file briefs in answer to special questions submitted by the court. Only the appellant filed a brief in conformance. Reargument was had by both parties before the court in the October 1970 Session.
Upon further consideration of the case, the court is now of the opinion that under the facts and circumstances of the case, the appellant did not receive a fair trial, and the opinion filed April 11, 1970, should be and is hereby withdrawn, vacated and set aside.
Only the facts pertinent to the issues discussed in the reargument are stated, and the reader is referred to the prior opinion for additional facts of the case.
First, appellant urges reversal for the reason that of the 24 jurors passed for cause, nine were either Elks, Lady Elks, or former members and closely associated with the Elks Club. The 24 jurors were passed before any peremptory challenges were made.
Under the provisions of K. S. A. 62-1412, the court shall cause enough jurors to be called, examined and passed for cause before any peremptory challenges are required, so that there will remain sufficient jurors, after the number of peremptory challenges allowed by law for the case on trial shall have been exhausted, to enable the court to cause twelve jurors to be sworn to try the case.
Absent a request by either party, no specific number must be passed for cause before a defendant exercises his peremptory challenges, however, prospective jurors who are not free from bias, prejudice or interest and who may have admitted to having an opinion in the case should not be passed for cause.
An information alleging an offense against the person or property of another renders that person incompetent as a juror. (K. S. A. 62-1406.) A challenge of a juror for cause may be tried by the court if he is alleged to have been injured by the crime charged. (K. S. A. 62-1410.)
It is fundamental that every litigant is entitled to have his rights fairly and impartially determined, and it is the duty of a trial court to see that a jury of competent, fair and impartial persons is impaneled. (50 C. J. S., Juries, § 208 a, pp. 944, 945.)
Statutes which enumerate certain causes as disqualifying a prospective juror (K. S. A. 62-1406) are not exclusive of other causes which may imply disqualifying bias or prejudice of the prospective juror, and such statutes do not deprive courts of their inherent right to declare that such other causes also require dismissal of a prospective juror in order to insure that litigants will have a fair and impartial trial. (50 C. J. S., Juries, §208 b, pp. 945-947.)
In determining if an implied cause exists for disqualification of a juror, the facts and circumstances of each case must be considered. Of the twelve jurors hearing the case, two ladies (Lady Elks) had connection with the Elks Club although no member of the Elks Club sat on the jury. Those persons remained on the jury which tried the case after appellant had exercised the six peremptory challenges allowed by law. It is urged that nine persons of the initial 24 should not have been passed for cause for the reason they had connection with and interest in the outcome of the case.
There is no doubt but that the Elks Club had an interest in the outcome of the prosecution. The state’s case was presented on behalf of the Elks Club, in part, by a special prosecutor who was in fact employed and compensated by the Elks Club. Evidence introduced at the trial was discovered and presented by members of the Elks Club and the case was tried by two persons connected with the Club, from which it may be inferred the Elks Club had an interest in the prosecution.
In a community such as Hill City, the Elks Club serves as a community meeting place and social center. In such a situation, connection with an organization may be so close as to constitute an interest which would prevent an impartial determination of a legal issue in which the organization is interested.
Burglary is a crime against property, and ownership of the property burglarized gives rise to an interest in the outcome of the case. We think under the facts and circumstances here presented, the rule is applicable that in a prosecution for burglarizing the property of an association, membership in the association constitutes a disqualifying interest on the part of prospective jurors. (State v. Thomlinson, 78 S. D. 235, 100 N. W. 2d 121, 77 A. L. R. 2d 1229; Sovereign Camp W. O. W. v. Ward, 196 Ala. 327, 71 So. 404.) The same may be said of persons so closely connected with the organization that they may not be in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party and such bias may be inferred from interest in the result of the case where the interest is not too minute or too remote. To this end, the juror is not the judge of his own qualifications. (Kendell v. Prudential Insurance Co. of America, 327 S. W. 2d 174, [Mo.].)
The object of the law is to secure jurors whose minds are wholly free from bias or prejudice for or against the accused. This is the very basis for the great weight and sanctity given to their verdicts. Those who administer the law must respect its wise and salutary rules of procedure, in order that like respect for law and order may be inspired in others. So basic and fundamental are our traditional requirements of fair trials of criminal cases by impartial juries that we should not split hairs and construct legal bases lacking in substance in determining qualifications of jurors for trials of such cases. The power of the court to reject jurors is not limited to a decision of the strict legal question of qualifications of the jurors, or confined to the enumerated grounds of challenge; but the court’s power may be exercised for any cause which the court in its discretion deems sufficient to render the juror unfit to serve. (50 C. J. S., Juries, § 249, p. 1006.) The jurors complained of should have been dismissed for cause upon the objection of the appellant made before the voir dire of the jury.
There exists other circumstances giving rise to prejudice to the appellant. The alleged crime occurred on December 3, 1967, but a complaint was not filed until February 20, 1968. During the interim, negotiations were had with the appellant for purposes of settlement and repayment of sums of money it was thought appellant had taken at times previous to his entrance of the Elks Club on December 3. One member of the Elks Club testified he did not know how much appellant had taken from the Club, but certain sums were mentioned, payment of which would insure appellant would not be prosecuted. Testimony reveals the amounts in settlement ranged from $150 to $15,000.
The evidence indicates appellant was induced during the meetings to admit to the taking of certain sums in exchange for a promise that he would not be prosecuted if the matter was settled. Members of the Elks Club were sure they could recover money from the appellant and unless he did something to meet the demands, he would be prosecuted.
In a criminal proceeding against an accused, a previous statement by him relative to the offense charged is inadmissible if the judge finds the statement was made under threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same. (K. S. A. 60-460 [/] [2].)
Under the circumstances and because of the apparent sanction given the action of Elks members by the county attorney, the appellant was justified in believing he would be criminally prosecuted if he did not admit to the taking of money. All evidence collected by Elks members was received by the county attorney and used in the prosecution of the appellant. The effect of the entire series of events was that the Elks did all which is usually done by persons whose duty it is to enforce the criminal laws of the state.
The duty evolves upon the state and not private individuals to instigate criminal prosecutions. Private parties are not prohibited from giving aid or assistance in the prosecution of criminal matters, but where, as here, prejudice results, the appellant, under the total circumstances of the case, did not receive a constitutionally fair trial.
The judgment of the district court is reversed with directions to grant the appellant a new trial.
It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
This action was instituted by Annie Lou Muntzert under the Workmen’s Compensation Act for the recovery of compensation claimed due for the death of her husband, Roy H. Muntzert, who died from a heart attack occurring approximately an hour and a half after he left his place of employment. The workmen’s compensation examiner entered an award of $16,500 in favor of the claimant and this award was sustained by the director. On appeal from the director’s decision, the district court of Barton County, Kansas, denied all compensation, and Mrs. Muntzert has brought an appeal to this court.
In denying compensation, the district court found there was no causal relationship between the decedent’s employment and the coronary occlusion which caused his death. Thus, the issue before us is whether the court’s findings, and the judgment based thereon, are supported by substantial competent evidence.
A review of the record discloses, without substantial dispute, that the decedent was employed as a pharmacist by the respondent, A. B. C. Drug Company; that on August 14, 1967, the day of his death, Mr. Muntzert had been left in charge of the drug store because of the manager’s absence; that he went to work about 8 a. m. — being some half horn earlier than usual — and left the store at approximately 6:30, about fifteen minutes later than usual, having filled more prescriptions during the day than was average; on arriving at his home he was perspiring and complained of being “beat”, that it had been “kind of a rat race”; that he cleaned up but did not eat supper as he and his wife were due at a church function at 7:30; that Mr. Muntzert was called to the pulpit to give the devotionals for the evening program after which he returned to his seat, expiring a short time thereafter.
As frequently happens in cases of this character, the medical experts were not in perfect agreement in assessing causation — in fact they were at odds. Basing his opinion on a recitation of the decedent’s job-related activities on the date of his death, one of the experts saw no causal connection between the decedent’s work and the vascular incident which took his life. On the other hand, a second doctor took the opposite view, assigning a causal relationship between Mr. Muntzert’s employment and his sudden demise.
On this state of the record we are compelled to conclude that the trial court’s finding of no causal connection is supported by substantial competent evidence. Accordingly, the finding will not be overturned on appellate review. (See 1 Hatcher’s Digest [Rev. Ed.] Appeal & Error, §§ 507, 508.)
The main thrust of the claimant’s argument is directed against the trial court’s finding that the evidence did not establish any “unusual activity” on the decedent’s part, within the contemplation of K. S. A. 44-501. This statute, which defines the obligation under the Workmen’s Compensation Act, was amended in 1967 by the addition of the following language:
“Compensation shall not be paid in case of coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.”
As we understand her argument, the appellant contends that the term “unusual activity” has a dissimilar connotation than the phrase “more than the workman s usual work.” She suggests, and would have us imply, that “unusual” implies a greater variance from the norm than “more than usual.”
Whatever might be the semantic basis for the appellant’s claim, we believe it would be fruitless for us at this time to engage in learned discussion as to what, if any, practical distinction exists between “unusual” and “more than usual.” We simply do not reach the point of construing the 1967 amendment. The trial court found, on what we deem sufficient evidence, that there was no causal relationship between the decedent’s employment and the coronary occlusion suffered after he left work, and that the occurrence did not arise out of and in the course of the decedent’s employment. Thus, whether the decedent’s work on the day in question was more than his usual work becomes entirely irrelevant, and we need not now become involved in the thicket of semantics.
For her second point, the appellant argues that it was error for the district court to substitute its judgment for that of the director of workmen’s compensation. This argument is premised on the assumption that the functions performed by the director are basically administrative in nature and that his decision may not be set aside on appeal, absent a showing of fraud, caprice or arbitrariness. To permit the district court to hear the case de novo, so the argument runs, would violate the doctrine of separation of powers by assigning essentially administrative duties or functions to the judicial branch of government.
By a somewhat rare coincidence the same postulate was advanced in an appeal coming before this court just last month, Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966. In a comprehensive opinion authored by Justice Schroeder (the perusal of which is recommended) this court rejected contentions identical to those now presented by this appellant.
We need not here repeat all that was said so effectively in Gawith. It is sufficient, for present purposes, to affirm the rationale of that case by reiterating that on an appeal from a decision of the workmen’s compensation director, the district court is empowered, under K. S. A. 1967 Supp. 44-556, to hear the matter de novo on the record made below, and to substitute its judgment for that of the director, and in so doing the court does not exercise administrative functions in violation of the constitutional separation of powers doctrine.
The judgment of the district court is affirmed. | [
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ORDER OF PUBLIC CENSURE
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaints of alleged professional misconduct by Robert Louis Marietta, and,
Whereas, Following a full hearing as to such complaints the State Board of Law Examiners found that said Robert Louis Marietta was guilty of three (3) violations of Canon No. 9 and one (1) violation of Canon No. 6 of the Canons of Professional Ethics (198 Kan. xvh), see DR 7-104 (A) (1) and DR 5-105 (B) of the Code of Professional Responsibility (205 Kan. lxxxv), and violation of the provisions of K. S. A. 78-101, and,
Whereas, The State Board of Law Examiners has made a written recommendation to this court that said Robert Louis Marietta be disciplined by “Public Censure” as provided by Rule No. 205 (m) (2), (205Kan. lxh), and,
Whereas, The said Robert Louis Marietta, pursuant to subdivision (n) of Rule No. 205, above, has in writing elected to accept such recommended discipline and to pay the costs of the proceeding, and,
Whereas, Upon consideration of the record and being fully advised in the premises, the court accepts the recommendation of the State Board of Law Examiners.
It is, therefore by the court Considered, Ordered and Adjudged that the said Robert Louis Marietta be, and he is hereby Censured by this court and that he pay the costs of the proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports.
By order of the court, dated this 12th day of December, 1970. | [
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The opinion of the court was delivered by
Fromme, J.:
The plaintiffs-appellants are residents and taxpayers of Unified School District No. 346, Linn county. They filed a petition seeking to enjoin the school district officers from issuing bonds and constructing a school building.
The bonds were authorized by a special bond election in the district. The validity of that election was upheld by this court in West v. Unified School District, 204 Kan. 29, 460 P. 2d 103.
The school district and its officers (appellees) filed a motion to dismiss the petition to enjoin issuance of the bonds for the reason it failed to state facts sufficient to constitute a claim against the defendants. The trial court sustained the motion and the resident taxpayers have appealed.
The appellees in their brief question the authority of the taxpayers to prosecute this action. (See Bobbett v. State, ex rel., Dresher, 10 Kan. 9 and Gormley v. School Board, 110 Kan. 600, 204 Pac. 741.) However, the motion and the order dismissing the claim were based upon a failure to state facts sufficient to constitute a claim. Therefore we will proceed with the merits of the motion.
Omitting the paragraphs of the petition which identify the parties and pray for the relief sought, the petition reads:
“3. That said board proposes to issue bonds as the result of an election held in said district on June 14, 1968, and to use the proceeds obtained from the issuance of such bonds to construct a school building within said district; that prior to the election held in said district on June 14, 1968, the defendant board did widely advertise and circulate among the resident electors of said district a brochure, a copy of which is hereto attached and made a part hereof, wherein a particular building was pictured and described and that such information was widely contained in newspapers circulated within said district; that such information was relied upon by these plaintiffs and other resident electors in determining the way they would vote in such election; that these plaintiffs are informed and believe that said defendant board now proposes to construct a building with funds received from the sale of such bonds, which building is of an entirely different type of construction, size and of less durable and functional construction and is a complete departure from the building advertised at the time of the bond election.
“4. That at the time of said bond election, interest rates were considerably lower than now and were regulated by statute to a maximum of five and one-half (5K%) per cent per annum; that these plaintiffs and others similarly situated were informed by defendants at the time of the election as to the amount of probable interest on said bonds; that now interest rates are much higher and the statutory ceiling has been raised, none of which was anticipated or considered at the time of election.
“5. That said board is without authority to issue said bonds wherein the proceeds derived will be used to construct a building radically different from that which the voters considered at the time of the election, or upon which the interest rate is considerably greater, and that if said board proceeds to sell the bonds and enter into contracts for the construction of such building, these plaintiffs and others similarly situated will be irreparably damaged and have no adequate remedy at law.”
The appellants’ claim for relief appears to be based upon two areas of concern. First, they are informed and believe the appellees now propose to construct a school building which is different in construction and size from the building represented in a brochure touting the election. Second, they object to the issuance of the bonds because the maximum statutory rate of interest is now more than when the election was held.
The legislature conferred power upon the school district board in general terms to select a site, acquire, construct, equip and furnish a school building whenever the board determined it to be necessary, (K. S. A. 72-6761). The required special bond election was held and the bonds were authorized.
It should be noted that until the bonds are sold the board has no funds to pay architects for plans and specifications. The details of the construction cannot be finalized until plans and specifications are obtained. The brochure used to promote the bond election in the present case is general in nature. It designates a site for the proposed school building, the general type of materials (concrete, masonry and steel) and the arrangement of classrooms.
Discretion and responsibility for construction of the school building are vested by the legislature in the school board. Discretion and responsibility for construction of the building are not vested in the appellants and not in this court. (See Warner v. City of Independence, 121 Kan. 551, 558, 247 Pac. 871.)
In Warner a trial court had ruled it had no jurisdiction to hear and determine the kind or quality of street paving, and this court on appeal said:
“We note what plaintiffs have to say about defendants’ plans and specifications for the improvement. It will be a pity, indeed, if plaintiffs’ prophecy comes true that the specifications are so defective that the street and road will have ‘to be repaved within five years,’ but discretion and responsibility on such matters must be vested somewhere. Under this statute they are vested in the city and county governing bodies, not in these plaintiffs, and not in the courts. The courts cannot interfere with the exercise of that discretion and responsibility where, as here, no substantial showing of fraud is disclosed by the record.” (p. 558.)
In State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620, the acts of public officials in the construction of another road were questioned. It was said:
. . When the legislature confers power in general terms upon an official body, without prescribing the details for the exercise of that power, the courts will not be officious to interfere with the official body’s discretionary methods of performing the public duty intended by the legislature in granting such powers.” (p.639.)
In Kansas Power Co. v. City of Washington, 145 Kan. 962, 67 P. 2d 1095, it was held that minority electors and taxpayers cannot enjoin the necessary and normal result of a bond election by contending that the amount of bonds authorized is insufficient for the proposed purpose.
In Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P. 2d 51, taxpayers sought to enjoin the city officials from exercising their judgment in regard to construction of a waterworks system. This court after considering the speculative prediction of the taxpayers, which was to the effect that plans and specifications about to be adopted were impractical and hazardous, dismissed the petition and said the petition did not present an issue which the court had jurisdiction to decide in the absence of bad faith or fraud.
In Williams v. Holt, 180 Kan. 308, 303 P. 2d 208, an action was filed to enjoin the issuance of rural high school bonds because portions of the original territory of the district had been detached from the district after the election and before issuance of the bonds. An injunction was denied and the rule of non-interference with administrative discretion was again applied by the court. Another exception was recognized but not applied. When the purpose for which the bonds were voted has ceased to be necessary, or has been abandoned, or the conditions have so changed to make issuance inequitable the court may then enjoin issuance of the bonds.
There is no allegation in the present petition of bad faith and no claim of arbitrary, capricious or unreasonable conduct by the board. No facts are alleged in the petition from which any of these may be inferred. No illegal acts are charged. The purpose for which the bonds were voted still exists, has not been abandoned and there is no change of conditions alleged which might render the issuance of the bonds inequitable. In the absence of such allegations the petition fails to state sufficient facts to constitute a justiciable claim. Discretionary acts of administrative officials are not subject to control by the courts in the absence of bad faith or unreasonable conduct amounting to fraud. When the issuance of bonds by a municipality has been authorized by a valid election the issuance of the bonds will not be enjoined by the courts unless it clearly appears the purpose for which the bonds were voted has ceased to be necessary, or has been abandoned, or that conditions have so changed it would be inequitable to allow issuance of the bonds.
The petition does allege that the maximum statutory rate of interest on the bonds was raised by the legislature after the election and before issuance of the bonds. K. S. A. 1969 Supp. 10-103, which controlled at the time of the election, provided for interest at a rate not to exceed 5K% per annum. K. S. A. 1970 Supp. 10-1009 (a), effective March 21, 1970, provides for interest on the bonds at a rate not to exceed 1% per annum.
Appellants argue that the obligation of the electors is fixed by the applicable laws of the state when the election is held and the vote is cast. They urge this court to declare that K. S. A. 1970 Supp. 10-1009 applies only to bonds issued as a result of elections held after March 21,1970, the effective date of the act. The statute reads:
“(a) No bonds constituting a general obligation of and backed by the full faith and credit of any municipal or taxing subdivision of the state of Kansas and issued under any act of which this act [See Chap. 64 of the Laws of 1970] is amendatory shall bear interest at a rate exceeding seven percent (7%) per annum.
“(c) The maximum rates of interest specified herein shall be applicable to obligations issued after the effective date of this act pursuant to proceedings initiated either before or after the effective date of this act.”
The plain wording of the statute makes the increased maximum rate of interest applicable to bonds issued after the effective date of the act regardless of when the bond election proceedings are held.
This bond election was held pursuant to notice required by K. S. A. 1967 Supp. 72-67,114 (/). The election notice should advise the electorate of the nine items listed in the statute. The rate of interest anticipated is not required by this statute to be stated in the notice. It was not mentioned in the present election notice. (See West v. Unified School District, supra, p. 31.)
The rate of interest cannot be accurately determined when the election is held. The purchase price of bonds under K. S. A. 1969 Supp. 10-106 is required to be not less than par and accrued interest. The bond market, current when the bonds are sold, will generally control the interest rate or rates. In Kansas the bidders compete for the purchase of the bonds by specifying the lowest rate or rates of interest to be paid on the bonds. (In the cases relied on by appellants from other states this is not true by reason of statutory differences.)
The statutory limitation on the amount of bonded indebtedness a municipality may legally incur in Kansas is determined as of the date the bonds are issued and not the date of authorization. (Jaeger v. City of Hillsboro, 164 Kan. 533, Syl. ¶ 6, 190 P. 2d 420.)
Municipal bonds are not issued until they are sent out, delivered or put into circulation. (Steinbruck v. Milford Township, 100 Kan. 93, 163 Pac. 647; State, ex rel., v. Woodruff, 164 Kan. 339, 343, 189 P. 2d 899.)
In Gray v. Joint Rural High School District No. 9, 178 Kan. 387, 286 P. 2d 147, it was said:
“. . . [I]t is not debatable but that whether the elections were properly held depends on the facts obtaining as of the date of tile elections.” (p. 393.)
Later in the opinion it is pointed out a valid election authorizing the issuance of bonds is not rendered invalid by a statute limiting the amount of statutory indebtedness of the district. In such case the board is authorized to issue and sell only that portion of the bonds below the limitation then in effect.
It would appear that statutory limitations on rates of interest fall within a similar sphere of municipal action having to do with issuance of the bonds.
We hold the limitation on the maximum rate of interest to be paid on municipal bonds as specified in K. S. A. 1970 Supp. 10-1009 is applicable to all bonds issued after the effective date of the statute even though said bonds may have been authorized by an election held prior thereto. The law in effect at the time of the issuance becomes a part of the contract (64 C. J. S. Municipal Corporations § 1947) and in such case the statute providing the maximum rate of interest is given only prospective application when applied to the bonds being issued.
Accordingly, the petition failed to state sufficient facts to constitute a claim and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a negligence action brought by an architect against a general contractor and a subcontractor for personal injury sustained on a construction job. Following presentation of plaintiff’s evidence before a jury the trial court sustained both defendants’ motions for directed verdict and for involuntary dismissal. Plaintiff appeals.
Plaintiff’s evidence revealed the following:
Plaintiff, an architect with about fifteen years’ experience, was a partner in an architectural firm which had been employed by the Catholic Diocese of Wichita to design and oversee construction of the Madonna High School in Wichita. Defendant Dondlinger and Sons Construction Company, Inc., was employed as the general contractor to construct the building. Defendant Cecil E. Jordan was employed as a subcontractor to install ceiling lath throughout the building.
Plaintiffs responsibilities included design and preparation of plans and specifications and inspection of the building and work in progress to see that the work was being properly done. He was required to make routine unsolicited inspections and also, when the contractor contacted him about particular problems, to inspect and consult with the contractor. On April 5, 1966, plaintiff was called to the construction site by defendant Dondlinger to make such a requested inspection and, while making that inspection, suffered the injury to his eye which is the basis of this suit.
At the time of the incident, the project had been seventy-five per cent completed. The building had been enclosed but its interior had not been finished and doors and trim had not yet been installed. The auditorium where the incident occurred was rectangular with a flat roof. The ceiling had a contour, the front portion being flared with the low point at the space between the stage and the seating area. There had been scaffolding erected under the ceiling on a contour the same as the ceiling so that the various workmen could stand on the scaffolding while working on the ceiling. The scaffolding was constructed by placing 4 X 4’s upright and nailing 2 X 8’s or 2 X 10’s across them to lay planking on. The planking consisted of 2 X 10’s with two to four inch spaces between the planks.
Defendant Jordan’s employees had installed metal lath on the ceiling over part of the auditorium, commencing at the rear and working toward the stage. The lathing work entails the hanging of metal channel bars from cross-bars on the underside of the roof and the wiring of sheets of metal lath to the bottoms of the channel bars. The metal lath is a black mesh-like material which comes in sheets eight feet long and twenty-eight inches wide. When it is being tied by wire to the channel bars, it is overlapped an inch on the sides and is also overlapped on the ends. The channel bars are thirteen and one-half inches apart so that a sheet of metal lath is attached to eight channel bars crossing the seven spaces between such bars. The metal lath is later covered and impregnated with plaster to form the finished ceiling of the interior portion of the building.
According to the testimony of a metal lather employed by defendant Jordan, produced as a witness for plaintiff, the customary method of attaching laths is to wire partially a complete row of sheets overlapping on the sides before starting on the next row; when a new row is started it must be overlapped with the ends of the previous row; the specifications require the overlapping; for this reason, the ends of the metal lath sheets toward which the work is progressing are left unwired and hanging until the next row is wired; in this matter the wiring of the laths to the channel bars at the ends of the laths, where they overlap, is done only once; the metal lath is flexible material and tends to hang down from its own weight until firmly wired on all channels above it. Plaintiff testified that in his experience of inspections he did not normally encounter metal lath hanging down.
Jordans employees had to terminate their work at the end of March, 1966, because the scaffolding was not up over the front half of the auditorium. They had installed the lath as far toward the stage as they could with the scaffolding provided. They left the last twenty-seven inches of lath hanging down so it could be lapped over the next sheets to be put up after scaffolding was provided. This lath hung down one to two feet below the ceiling level.
Some time between March 31 and April 5, 1966, the scaffolding had been moved toward the stage by Dondlinger employees for the purpose of enabling the lathers and other tradesmen to complete their work in the ceiling area of the auditorium. The lathers and other workers in the auditorium had previously used strings of temporary electric lights. Retween March 31 and April 5 the electric company was in the process of installing permanent electrical conduits and connections and for this reason electricity was not available for either temporary or permanent artificial light in the auditorium and no artificial lighting was in operation at the time of the incident. Natural light entered the auditorium through four double door spaces at the back of the auditorium, one door on each side of the auditorium at the juncture of the stage and the auditorium, a door at the rear of the stage, and a smoke-hatch opening in the ceiling over the stage. There was a low level of illumination from the light entering those sources and though the lighting was inadequate for workmen to work by, plaintiff, at the time in question, could see the decking adequately and sufficiently to traverse the scaffolding to any point necessary. The stage area of the auditorium was lighter than other areas and the light grew progressively dimmer as one moved away from the stage area.
On April 5, 1966, plaintiff went to the construction site and was met by Dondlinger s vice-president and its construction superintendent. The vice-president requested plaintiff to accompany him to the auditorium to check the manner in which the channel bars for the metal lath ceiling had been hung by the lathers. The vice-president led plaintiff through the auditorium and up a ladder near the stage area to the top of the scaffolding with the superintendent following immediately behind. Upon reaching the top of the scaffolding plaintiff began inspecting the suspension system as requested. He inspected the area immediately adjacent to where the ladder was and then proceeded toward the back of the auditorium. He made no request for any kind of lighting. The vice-president remained near the ladder while the superintendent followed immediately behind plaintiff. After taking about five steps from where the vice-president was standing, plaintiff encountered the hanging metal lath, which punctured his eye.
The black ceiling lath could not be seen against the darkened ceiling and though the superintendent knew the metal lath was hanging down, neither he nor the vice-president gave plaintiff any warning whatsoever.
The foregoing evidence consisted of testimony by plaintiff, a metal lather employed by Jordan, and that of the two men who were with plaintiff on the scaffold at the time of his injury. An examining physician testified plaintiff stated to him that it was dark at the time his eye was injured.
In sustaining the motions for dismissal and for directed verdict at the conclusion of plaintiff’s evidence the trial court held that as a matter of law plaintiff, by admissions in his own testimony, had convicted himself of contributory negligence and he had assumed the risk of injury. The principal question upon appeal is the propriety of that ruling.
For our purposes here the rules applicable to a motion for involuntary dismissal under K. S. A. 60-241 (b), as amended, where a case is being tried to a jury, are the same as those applicable to a motion for directed verdict under K. S. A. 60-250. They have been stated many times. In Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 433 P. 2d 558, we find this:
“This court has consistently followed the rule that in reviewing the properiety of an order sustaining a motion for a directed verdict this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury.” (Syl. §6.)
In Smithson, Executor v. Dunham, 201 Kan. 455, 441 P. 2d 823, we stated:
“The instances are relatively rare when the facts are such that a court should say that negligence has been established as a matter of law by summary j'udgment or at any other stage of the litigation. It is only when conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person that the question of contributory negligence may be taken from the jury and determined by the court. . . .
“Usually, questions as to negligence or contributory negligence are not subject to determination on summary judgment because the evidence and inferences, which might be implied therefrom, construed in the most favorable light against the movant, as required, leave in question a genuine issue as to some material fact.” (p. 458.)
Defendants’ contention, simply stated, is that plaintiff without request voluntarily moved fifteen to twenty feet south into an area of darkness where he knew he might encounter hazards, and therefore is barred from recovery both by contributory negligence and assumption of risk.
Plaintiff testified he was in the building by request to inspect the suspension system for the ceiling, that is, to check that the framework, suspension wires, channels and ties were properly made and spaced. He knew there was mesh work in the area but could not see it because of the darker ceiling and did not expect it to be hanging down. He was closely escorted by two of the general contractor’s employees. He had to place his steps carefully and was watching the scaffold as he walked so he would not step into the spaces between the planking. He had walked five steps when he encountered the wire mesh. There was varying testimony as to the light condition on the scaffold although unquestionably it was poorer away from the stage area. Light conditions were described as “fairly good”, “enough light you could see on all this scaffold” and “sufficient to traverse the scaffolding to any point that was necessary”. Plaintiff testified he had begun inspecting the suspension system and there was enough light for him to see the channels and supporting structures he had been asked to inspect, although he could not see into the upper recesses of the auditorium ceiling.
We have not detailed the entire testimony but have stated sufficient to indicate variance in it as to the amount of light at the scene of injury. Defendants’ interpretation of that evidence is a picture of almost total darkness — plaintiff’s is one of light sufficient to do that which he set out to perform. The amount of light was a factor relevant to an appraisal of plaintiff’s duty to anticipate peril and would figure strongly in determining whether he acted as a reasonably careful person under the circumstances — the standard by which his conduct is to be measured. There was also conflicting testimony regarding the practice of permitting loose ends of metal lath to hang down while installation was in progress.
Defendants rely on cases such as Kurre v. Graham Ship By Truck Co., 136 Kan. 356, 15 P. 2d 463, and Thompson v. Beard and Gabelman, Inc., 169 Kan. 75, 216 P. 2d 798, in which injured plaintiffs who had ventured into dark unfamiliar areas were held to be guilty of contributory negligence as a matter of law. But manifestly there is a difference in proceeding blindly into an unlighted area with which one is unfamiliar as the plaintiffs in the cited cases did, and proceeding into a dimly lighted area with which one is sufficiently familiar to entertain a reasonable belief he is aware of existing hazards and can avoid them (see Huxol v. Nickell, 205 Kan. 718, 721-722, 473 P. 2d 90).
Plaintiff did know of possible protrusions and obstructions in the area in which he was working but he disclaimed anticipation of the hanging metal lath. When a person has put himself in a dangerous situation and while there is injured by the negligence of another, it is not always easy to determine whether his physical presence at the time and place was one of the proximate causes contributing to the injury or merely the opportunity or occasion for it. In Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649, this court stated:
“It is not in every instance where one exposes himself to a known danger and injury results that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence under like circumstances would not subject himself to it. Danger may lurk within every defective condition, and yet may not be of such character that men of ordinary prudence would hesitate to expose themselves thereto. The defect and danger therefrom must be such that knowledge, or imputed knowledge thereof, would cause an ordinarily prudent person to appreciate the risk therefrom. The principle is too well established to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. Mere knowledge of the offending instrumentality does not constitute contributory negligence as a matter of law.” (p. 413.)
The trial court also determined plaintiff assumed the risk. (The parties do not here dispute availability o£ that defense as distinguished from its applicability.) A person does assume the ordinary risks of employment known to him or which by the exercise of reasonable care he should have known. Assumption of risk is founded on knowledge and appreciation of danger. (Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042). Here again plaintiff testified he had not in his experience encountered metal lath hanging down and had no reason to expect it to be in his path. Much of that which has been said respecting contributory negligence is likewise applicable to the defense of assumption of risk and need not be repeated.
Contributory negligence and assumption of risk become questions of law only when plaintiff’s evidence so clearly establishes them that no other reasonable inference may be drawn therefrom. Although the question is a close one, we believe the evidence, viewed as it must be in the light most favorable to plaintiff, was such that reasonable minds could reach different conclusions on the issues of contributory negligence and assumption of risk; therefore those issues should have been submitted to the jury, and we so hold.
Each defendant strenuously advances in support of the trial court’s judgment the contention plaintiff failed to produce any evidence of negligence by it. The trial court made no ruling on that issue although it might be argued that implicit in its finding of contributory negligence was a ruling of negligence on the part of defendants. Neither defendant has cross-appealed from such a ruling and upon that state of the record on appeal we do not reach the issue.
Two further items remain which should be mentioned since retrial must be had. Plaintiff complains of the trial court’s ruling excluding two photographs offered by him. The photographs were of the scene of plaintiff’s injury, taken the next day through the use of artificial light. They depict the scaffolding, suspension system, ceiling and metal lath hanging down. In addition to portraying a difference in illumination of the scene the pictures also show some additional channeling put in position by Jordans employees the day plaintiff was injured but after that incident. Plaintiff tendered the pictures with a request the jury be appropriately advised as to the circumstances of their taking.
Ordinarily admission of photographic exhibits rests within the sound discretion of the trial judge. (McDonald v. Bauman, 199 Kan. 628, 433 P. 2d 437; Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567). In view of the matters at issue here we cannot declare abuse of discretion in the exclusion of the exhibits.
Plaintiff further complains of trial error in the court’s exclusion of the construction contracts entered into by both defendants, offered by him to show the extent of the duty owed him. We find no prejudicial error. Plaintiff’s claim for relief was pleaded in his petition as one based upon ordinary common law negligence. At pretrial conference the issues were likewise defined with specific charges of negligence against each defendant. No mention was made of liability based upon contract, although it must be stated some ambiguity crept into the pretrial order eventually made with respect to undetermined issues of law, possibly by reason of doubt whether plaintiff should be treated as a business invitee or mere licensee. The contracts were listed as possible exhibits, purpose not stated. Prior to trial plaintiff sought to amend his petition so as to allege a claim for relief arising out of contract. This request was denied. Plaintiff was given the election to dismiss without prejudice and refile his action but he chose not to do so. No appeal was taken from the denial order.
We have examined the contracts. They are couched in general terms and provide no additional or different duty from that arising from common law. No specific method of protection is prescribed. Prejudicial error in the exclusion does not appear.
The judgment of the trial court sustaining defendants’ motions for directed verdict and involuntary dismissal is reversed with directions for further proceedings consistent with the views herein expressed.
approved by the court. | [
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The opinion of the court was delivered by
Fontron, J.:
In September, 1964, the plaintiff, or petitioner, one Peter Paul Tuscano, was tried and convicted by a jury on charges of second-degree burglary and larceny. He was sentenced, pursuant to the provisions of the Habitual Criminal Act (K. S.A. 21-107a), to serve consecutive sentences for the two offenses. The present action, instituted under K. S. A. 60-1507, collaterally challenges the sentences thus imposed. The district court, after conducting an evidentiary hearing, denied relief on the ground that Tuscano had not sustained his burden of proof. Plaintiff now appeals from that decision.
We are not favored with a copy of the plaintiff’s petition for relief, but it appears from the journal entry filed in the case that plaintiff based his right to relief on two propositions: (1) That his counsel was ineffective in some eight particulars, and (2) that he was denied due process for the reason that the trial judge did not advise him of his right to appeal. We will discuss ground (1) somewhat later in this opinion but can dispose of the second ground at this point by saying we have frequently held the right to appeal is a privilege or matter of grace, and is not guaranteed by either the Kansas or Federal Constitutions. The corollary is that the failure to advise a convicted defendant of his right to appeal is not a denial of due process. (Ware v. State, 198 Kan. 523, 426 P. 2d 78; Allen v. State, 199 Kan. 147, 429 P. 2d 598; State v. Dobney, 199 Kan. 449, 429 P. 2d 928.)
Somewhat different grounds, however, are contained in plaintiff’s statement of points which are, in order: First, ineffectiveness of ■counsel, who appears, from the record, to have been privately retained; second, the evidence properly admitted was insufficient to support the verdict and the court erred in admitting evidence; and third, sentence was pronounced under 21-107a without proper notice. The first two of these points are presented in plaintiffs brief without change, but appellate counsel now includes as part of the third point, a contention that proof of prior felony conviction was not established by competent evidence.
The points raised in the plaintiff’s brief will be considered in ■order, the first being ineffective assistance of counsel. In this connection let us say at the start we have long recognized that where defense counsel conducts his client’s case with such gross ineptitude as to amount, for all practical purposes, to no defense whatever, the accused has been denied the rudiments of a fair trial and should be granted relief. On the other hand, we have also pointed out that the constitution does not guarantee a defendant the assistance of the most brilliant counsel. (Smith v. State, 199 Kan. 293, 429 P. 2d 103, and cases cited therein.)
Judged by such standards, concerning which this court elaborated in the recent case of State v. Wright, 203 Kan. 54, 453 P. 2d 1, we are unable to say that the plaintiff, Tuscano, was entirely without representation at the tidal of his criminal case, although complete candor compels us to concede that his defense was somewhat less than brilliant. Much, if indeed not most, of what is assigned as ineffectiveness on counsel’s part can reasonably be attributed to trial tactics or strategy, which must necessarily depend in large measure on the discretion and judgment, as well as the expertise, of the attorney trying a case. Moreover, the record made in the ■criminal case shows that Tuscano’s counsel conducted a vigorous ■cross-examination of all prosecution witnesses, and that his direct ■examination of Tuscano himself was thorough and painstaking.
It is true that on cross-examination of Mr. Tuscano, information was elicited that he had been in the Connecticut reformatory for using a motor vehicle without the owner’s permission. This evidence was apparently brought out by the state for the purpose of affecting Tuscano’s credibility and, under the provisions of K. S. A. 60-421 which became effective January 1, 1964, was inadmissible for that purpose, for Tuscano had introduced no evidence to support his credibility.
While it is true that counsel’s failure to object to the introduction of this testimony shows a lack of alertness in that particular respect, we are not prepared to say it establishes such incompetence on his part as to have denied Tuscano a constitutionally fair trial. Neither are we disposed to declare that the impermissible evidence was sufficiently prejudicial to taint the trial with constitutional infirmity.
Without going into further detail on this aspect of the case we are impelled to conclude the trial court did not err in holding that Tuscano had not sustained his burden of proving such incompetence on the part of counsel as to have denied him his constitutional right to a fair trial.
The second ground of error is, essentially, that there was insufficient evidence, apart from that improperly admitted at the trial, to support the verdict. This particular ground was not set out, as such, in plaintiff’s petition for relief, but we are inclined to mention it briefly since it is related to the charges of incompetence leveled against counsel.
Before going further we should make clear that the instant appeal is not from the conviction itself. Although the trial judge who presided at the 60-1507 hearing did suggest that plaintiff apply to this court for leave to appeal from the conviction out of time (the six-month appeal time prescribed in K. S. A. 62-1724 having long since expired) the appellant never did follow this suggestion. Consequently, the present appeal is simply an appeal from the decision entered in the present post-conviction proceedings, in which type of action trial errors are not ordinarily taken into account. It is only where constitutional rights have been impaired that trial errors may be considered in a 60-1507 action, and then only where exceptional circumstances are found to exist. (Jackson v. State, 204 Kan. 823, 465 P. 2d 927; Minor v. State, 199 Kan. 189, 428 P. 2d 760; Rules of the Supreme Court No. 121 [c] [3], 203 Kan. xl.)
Without going into the question of whether a claim of insufficiency of evidence is cognizable in proceedings under K. S. A. 60-1507, we may state unequivocally that our examination of the evidence convinces us there was substantial competent evidence apart from that challenged, albeit such evidence was circumstantial, from which the jury could reasonably imply guilt. The plaintiff’s second point, in our view, is not well taken.
In his petition for relief under K. S. A. 60-1507, plaintiff has alleged he was not advised of his privilege against self-incrimination by the judge who tried the case, and that he was thus denied due process. The record discloses, however, that plaintiff was advised concerning the privilege by his own counsel, who testified he was sure he informed Tuscano of his right to testify or not to testify, and they had quite a discussion. Where counsel has discussed with his client the constitutional privilege against self-incrimination, we fail to understand how the client’s constitutional rights have been infringed by a failure on the part of the court to advise him in respect thereto.
The final specification of error goes to the validity of the sentence imposed under the provisions of the Habitual Criminal Act. First, it is said that notice of intention to invoke the Act was not given by the state. We think it is fairly revealed by the record that notice was filed in the case by the state two days prior to pronouncement of sentence and a copy was deposited in the mail addressed to defense counsel. It is also disclosed in the record that Tuscano’s counsel had not received his copy at the time sentence was imposed, and the state’s announcement came as a surprise to him. We are not required, however, to solve the dilemma respecting notice, since we believe the increased sentence under K. S. A. 21-107a was unauthorized for another and wholly unrelated reason.
The only documentary evidence proffered by the state to establish a prior conviction, and hence to justify a sentence under 21-107a, was orally identified by the prosecuting attorney as a copy of the United States Department of Justice, Federal Bureau of Investigation rap sheet which, he said, disclosed a second conviction in Connecticut for using a motor vehicle without the owner’s consent. The record does not show that this “rap sheet” was ever admitted by the court. Moreover it was neither certified nor identified by any witness and hence, under the rationale of our decision in State v. Taylor, 198 Kan. 290, 299, 424 P. 2d 612, it was not admissible to establish a previous conviction.
In addition to the “rap sheet”, attention of the trial court was called to an admission by Tuscano during his testimony, which has previously been referred to, that he had served time in the Connecticut reformatory for using a motor vehicle without the owner’s consent. (The county attorney, in his argument before the trial court, erroneously referred to this as an admission of a second conviction.) While it is true that conviction of a prior felony can be established by admission of the accused himself, (Darling v. Hoffman, 180 Kan. 137, 138, 299 P. 2d 594; Cunningham v. Hoffman, 179 Kan. 609, 612, 296 P. 2d 1081) Tuscano’s disclosure in this case falls far short of doing so.
The Connecticut statute defines a felony as “any crime punishable by death or imprisonment for more than one year”, while other crimes, unless designated felony by statute, are defined as being misdemeanors. (Vol. I, General Statutes of Connecticut Revised, § 1-1, p. 77.) Section 14-229, Vol. Ill, General Statutes of Connecticut Revised defines the offense of unauthorized use of a motor vehicle and provides penalties therefor. For the first offense, confinement is not more than one year, while for subsequent offenses longer periods of imprisonment are authorized. Thus, under Connecticut law a first offense of unauthorized use of a motor , vehicle is only a misdemeanor, for the statute itself does not designate it to be a felony.
Tuscano’s admission does not refer to a “second” offense. So far as it goes, his reference to confinement in the reformatory may just as reasonably refer to confinement for a first offense of unauthorized use as to confinement for a second offense, unless perhaps it be that only convicted felons may be committed to the Connecticut reformatory.
We have checked the Connecticut statutes to determine what place its reformatory occupies within the penal system of that state and we find that commitment thereto is not restricted to' persons convicted of felony. Vol. IV, General Statutes of Connecticut Revised, § 18-73 provides in pertinent part as follows:
“Any male person between the ages of sixteen and twenty-one years who is convicted in the superior court of an offense for which he may be punished by imprisonment for a shorter period than life, either in the State Prison or in a jail, may be committed to the reformatory if he appears to the trial court to be amenable to reformatory methods. . . (Emphasis supplied.) (p.225.)
It is clear to us, from the statute, that any convicted miscreant who can qualify for commitment to the Connecticut reformatory by reason of age and amenability may be sentenced to and confined in that institution upon a misdemeanor conviction as well as on conviction for felony.
Drawing on what has been said, we conclude there was no competent evidence of any kind before the court to establish a prior felony conviction against Tuscano. The final sentence of K. S. A. 21-107a (the Habitual Criminal Act) reads:
“Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
The tone of this provision is mandatory; an increased sentence is not to be pronounced against a defendant under K. S. A. 21-107a unless the court finds from the record and other competent evidence the fact of former felony conviction. No such evidence was before the court in this case. The “rap sheet” is not shown to have been admitted and, indeed, was not admissible under the rule in State v. Taylor, supra. Neither does the record contain any admission by Tuscano of a former felony conviction — only that he had been in the reformatory “for using a motor vehicle without the owner’s permission.” As we have heretofore illustrated, this admission does not afford any basis for a finding that Tuscano had a former felony conviction.
Concededly, no point was raised in plaintiff’s 1507 petition with respect to the validity of the sentence. Hence, the question was not presented to the trial court and the judge was afforded no opportunity to pass upon the issue. Normally this would preclude us from considering the point, for we have often said this court will heed no matters not first presented to the trial court. (See 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 304.)
However, we believe the present case illustrates one of the exceptions to the general rule. The sentencing judge was without authority to pronounce an increased sentence under 21-107a in the absence of any evidence of previous conviction. The present sentence was void within the purview of McCarthy v. Hudspeth, 166 Kan. 476, 201 P. 2d 658, where we held that an increased sentence imposed under the Habitual Criminal Act was void where it was predicated on void prior convictions. Hence, a sentencing judge lacks authority to pronounce sentence under 21-107a in the absence of competent evidence of a valid prior conviction.
In State v. Minor, 197 Kan. 296, 416 P. 2d 724, we held that where the record in a criminal appeal discloses a jurisdictional defect in the trial court, this court will raise the question on its own motion and rests under a duty to give it consideration. In the course of that opinion we said:
“It is essential to the validity of a sentence in a criminal action that the court pronouncing the sentence be an existing one, lawfully in session at the time of rendition, with jurisdiction over the person and the offense charged, and having power to pronounce the sentence imposed. (24 C. J. S., Criminal Law, § 1559, p. 389) . . (p.299.)
Here, the trial court no doubt had authority to sentence the defendant under the burglary and larceny provisions of the statute but, in our view it possessed no power to impose an increased sentence under 21-107a, absent proof of a valid prior conviction for felony.
In conclusion, we announce our decision as follows: (1) The trial court did not err in holding that the plaintiff failed to sustain his burden of proving ineffective assistance of counsel or that he was denied due process of law during the course of his.trial, and its judgment in such respect is affirmed. (2) The sentence pronounced, against the plaintiff under K. S. A. 21-107a is void for reasons heretofore set forth and the sentence is hereby vacated, and this case is returned with directions that plaintiff be re-sentenced according, to law without regard to the provisions of K. S. A. 21-107a.
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The opinion of the court was delivered by
Lockett, J.:
The Department of Social and Rehabilitation Services of the State of Kansas (SRS) appealed the district court’s finding that Barbara J. Clear (Finnigan) relinquished parental rights to her minor children pursuant to K.S.A. 38-125 et seq., and, as a result, her obligation to pay child support terminated as a matter of law. The Court of Appeals first determined that the issue before it was one of law and thus subject to unlimited appellate review. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). Second, it found a different issue was determinative of the case, and that issue had to be considered to prevent a denial of fundamental rights. The Court of Appeals then concluded that SRS had not accepted the surrender of the children; therefore, as a matter of law, there was no relinquishment pursuant to K.S.A. 38-125 et seq. and it need not determine the issue raised on appeal. The Court of Appeals reversed the district court and remanded the matter for further proceedings. Pursuant to Supreme Court Rule 8.03 (1990 Kan. Ct. R. Annot. 40), Clear petitioned for review, claiming that the Court of Appeals had improperly decided the matter. We accepted review.
SRS recognizes that a termination of parental rights initiated by the State relieves that parent of future child support obligations, but contends that a voluntary relinquishment of parental rights by a parent pursuant to K.S.A. 38-125 et seq. does not terminate the parent’s liability to repay SRS for any assistance expended upon the child’s behalf under K.S.A. 1989 Supp. 39-718b. On the other hand, Clear contends, and the trial court so held, that her voluntary relinquishment of parental rights to the children terminated her obligation to repay SRS for the assistance expended for the children.
Barbara Clear, now Barbara Finnigan, was divorced from Steven Clear in 1978 and awarded custody of their four minor children. Steven Clear was ordered to pay $200 a month in child support. In November 1986, the four children were determined to be children in need of care and were placed in the custody of the maternal grandmother, Mildred Burk, who then received AFDC payments for the four children. The father is not a party to this action, and the oldest child has now reached the age of majority.
While Barbara Clear had custody of the children from June 1978 until November 1986, the father paid only $50 of the court-ordered child support. In January of 1989, SRS filed a petition pursuant to K.S.A. 39-755 seeking reimbursement from Barbara Clear for the money paid to Burk in AFDC payments since 1986. At the hearing on April 11, 1989, Barbara Clear claimed that, since she was originally not ordered to pay child support by the district court, if she relinquished her parental rights to the children pursuant to K.S.A. 38-125 et seq., she would be relieved of supporting the children in the future. The trial court found that, although the original decree of divorce did not order her to pay child support while the children were in her custody, State ex rel. Secretary of SRS v. Castro, 235 Kan. 704, 684 P.2d 379 (1984), did not apply because the original support order was later modified and the custody of the children was given to the maternal grandmother by the district court. The trial court found that, subsequent to modification of the support order, Barbara Clear had a common-law duty to support her children and then determined that, under K.S.A. 1989 Supp. 39-718b, Clear owed SRS $3,904 for unreimbursed assistance paid to the maternal grandmother by SRS for the support of the minor children since 1986.
At the hearing before the district court, SRS provided the written consent form necessary for Clear to relinquish and surrender her children to SRS. After questioning Clear about her relinquishment of the children to SRS, the district court found that her consent was freely and voluntarily given, without the influence of any other facts or circumstances, and granted her request to relinquish her parental rights to the children. The record of the hearing shows that counsel for SRS did not object to the district court’s granting Clear’s voluntary relinquishment of her parental rights, but only objected to the district court’s finding that, after a voluntary relinquishment of her parental rights, Clear was not liable to reimburse SRS for any assistance expended on the children after the relinquishment. SRS claimed that relinquishment of parental rights pursuant to K.S.A. 38-125 et seq. does not relieve a parent of his or her obligation to reimburse SRS for the assistance expended on the child’s behalf until the child is adopted and SRS is relieved of its obligation to support the child. After reviewing the record on appeal, we find that the Court of Appeals’ determination that there was no evidentiary record of an acceptance of the children by SRS is incorrect. We will therefore determine the issue raised in the appeal.
K.S.A. 38-125 provides:
“Any parent or parents or person in loco parentis of a child may relinquish and surrender such child to the department, and if the department shall accept said child in writing, the department shall thereupon stand in loco parentis to such child and shall have and possess over such child all the rights of a natural parent or legal guardian, including the power to place such child for adoption and give consent thereto. Minority of a parent shall not invalidate such parent’s relinquishment and surrender of said child.” (Emphasis added.)
K.S.A. 38-126 provides:
“All relinquishments and surrender to the department under this act shall be in writing and executed by: (a) Both parents of the child; (b) one parent, if the other parent is deceased; (c) the mother, if the father’s consent is found unnecessary under K.S.A. 38-1129; or (d) a person in loco parentis.” (Emphasis added.)
K.S.A. 38-127 provides:
“The relinquishment provided by this act shall be signed and acknowledged before the court by the person or persons by whom it is executed and shall sufficiently identify the child or children so relinquished. It shall be the duty of the court, in all such cases of relinquishment so executed, to advise the parent or parents or other person in loco parentis of such children of the consequences of the act of relinquishment.”
K.S.A. 38-128 provides:
“In all cases where a parent or person in loco parentis has relinquished and surrendered his child to the department pursuant to this act, and the judge before whom the relinquishment was executed shall have stated on the relinquishment document that the parent or the person in loco parentis had been advised by him of his rights and that the act of the parent or person in loco parentis was voluntary, all the rights of the parent or person in loco parentis shall thereupon be terminated, including the right to receive notice in a subsequent adoption proceeding involving said child.” (Emphasis added.)
For support of its position, SRS relies on our language in Leach v. Leach, 179 Kan. 557, 296 P.2d 1078 (1956).
Leach was originally a divorce case. Approximately two years after the father had been granted custody of the children, the mother signed and acknowledged an instrument entitled “Relinquishment” in which she consented to the court awarding full custody of the children to the father. The father then filed a motion to modify the custody order. Based on the consent by the mother, the district court awarded the father full custody of the children. Subsequently, the mother requested that the district court set aside the custody order. After the district court refused, the mother appealed. We determined that the instrument could only be considered as a written statement of what the mother believed to be in the best interests and welfare of her son and not a contract between the parties. The Leach court recognized that children are not subject to gift as is property. The court then noted nothing short of a finding of unfitness in a divorce action (G.S. 1949, 60-1510 [1955 Supp.]), a valid adoption decree (G.S. 1949, 59-2101 et seq.), or a juvenile court proceeding which determines a child to be dependent or neglected (G.S. 1949, 38-401 et seq.) will deprive a parent, by the parent’s own act, of the right or permit the parent to escape his responsibility to his or her minor children. 179 Kan. at 559.
We find SRS’s reasoning flawed. First, we note that when Leach was decided there were other statutory procedures that affected the relationship between the parent and a child. G.S. 1949, 38-301 et seq. provided another method of protecting children who were dependent or neglected. G.S. 1949, 38-113 permitted parents who were unable to support their children to relinquish the children, in writing, to a corporation organized for the care and maintenance of destitute and friendless children. If the corporation accepted the parents’ relinquishment of the children, it had legal custody of the children and all rights of a natural or legal guardian. Second, and more important, the relinquishment statute, K.S.A. 38-125 et seq., was not enacted until 1968, 12 years after the Leach decision.
Roth SRS and Clear rely on Roelfs v. Wallingford, Inc., 207 Kan. 804, 486 P.2d 1371 (1971), as authority for their positions. In Roelfs a child, who was bom blind, was turned over by the parents to the county social welfare department immediately after her birth. Later, the parents were found to be unfit persons and their parental rights were terminated. Subsequent to the termination of parental rights, the natural father was killed in a work-related accident. The issue in Roelfs was whether the judicial severance of parental rights terminated the child’s right to receive workers compensation benefits upon the death of her natural father. We noted that the rights and duties or obligations arising from the relationship of parent and child are generally held to be reciprocal. Roelfs, 207 Kan. at 810. We determined that deprivation of parental rights in a child pursuant to K.S.A. 1970 Supp. 38-824(c) terminated the parental obligation of support, and, within the meaning of the Workers Compensation Act, a child was no longer a dependent of a worker whose parental rights had been terminated. The child was not entitled to workers compensation. 207 Kan. at 811.
A general rule of duty is stated in 67A C.J.S., Parent & Child § 49:
“It is generally the rule that the parents of minor children have the duties to support and maintain them. The parents have also been given the duty to educate them, and this duty has been held to be primary, imperative, and legal. The duty of parents to provide necessary support and maintenance may be said to rest on the inability of the children to care for themselves, and arises out of the natural relationship, and on the implied promise of the parties to a marriage to support any children bom into the family. Thus, the obligation is a fundamental one arising out of the relationship of marriage and does not rest on a theory of preventing the children from becoming a charge on society, and it derives from natural law.”
Another rule regarding parental duties is stated in 67A C.J.S., Parent & Child § 51: “Various circumstances affect the duty of parents to support their children, but generally the welfare of the child is of paramount consideration in the determination thereof. . . . Where parental rights are terminated in dependent and neglected child proceeding^], no obligation to support the child remains.”
In Roelfs, we noted that during the termination of parental rights the focus is “a final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other and by replacement of the natural parent by another guardian or adoptive parent.” 207 Kan. at 811. In Roelfs, we quoted from Anguis v. Superior Court, 6 Ariz. App. 68, 429 P.2d 702 (1967), that parental rights are construed to “include both parental rights and obligations.” 207 Kan. at 810.
SRS relies on cases from other jurisdictions for authority that, when there is a voluntary relinquishment of parental rights, the relinquishing parent’s obligation of support does not terminate. SRS cites Kimble v. Kimble, _ W. Va. _, 341 S.E.2d 420 (1986), where a father relinquished visitation rights and executed a consent to adoption of the child by the mother’s current husband in exchange for a release of his obligation to support the child. The adoption was never consummated. A year later, the mother sued the father for delinquent support payments. The court found that an agreement between former spouses to terminate child support alone is insufficient to terminate parental duties as to child support, although in some circumstances such an agreement between parents could later be approved and enforced by the courts. The West Virginia court remanded the case for determination of the best interests of the child and the reasons for the failed adoption.
SRS refers to Wasson v. Wasson, 92 N.M. 162, 584 P.2d 713 (Ct. App. 1978), where the mother petitioned the court to terminate the divorced father’s parental rights to their two children. Although the divorced father had abandoned his children, the court refused to terminate his parental rights because termination would deprive the children of the protections of inheritance, social security benefits, or veteran’s benefits upon the father’s death.
Based on the reasoning of these cases, SRS argues that since the mother has not been declared unfit her duties to the children should not be terminated and the children are entitled to maintain the status quo in the parent-child relationship. We find that these cases are factually different from our case. Here, the mother has pursued a statutory method to relinquish her parental rights.
Three statutory methods for termination of parental rights are: (1) adoption, K.S.A. 59-2101 et seq.; (2) termination of parental rights, K.S.A. 38-1581 et seq.; and (3) relinquishment of rights, K.S.A. 38-125 et seq. Our adoption statutes contemplate a complete severance of the child’s ties and relationship with his or her natural parents. The natural parent is relieved of all duties and obligations to the child. The effect of a decree of adoption is to confer a legal status of parent and child upon adoptive parents and adopted children, including the legal consequences, obligations, and incidents that arise out of the status of parent of the child. K.S.A. 59-2103.
The purpose of termination of parental rights is to provide stability to the life of a child who must be removed from the home of a parent. The State’s primary goal for all children whose parents’ parental rights have been terminated is placement in a permanent family setting. K.S.A. 1989 Supp. 38-1584. After parental rights have been terminated, the court may grant custody of the child for adoption proceedings or for long-term foster care, if it does not appear that adoption is a viable alternative. If the adoption of a child has been accomplished, the court shall enter an order discharging the child from the court’s jurisdiction. The termination of parental rights by the State severs the child’s ties with the natural parent. A parent whose parental rights have been terminated is relieved of all duties and obligations to support the child and the burden is placed on the State until the State is legally relieved of the obligation.
Any parent may voluntarily surrender a child to SRS, and if SRS accepts the child in writing, the department stands in loco parentis to the child and possesses all the rights of a natural parent, including the power to place the child for adoption. SRS claims that a parent who relinquishes parental rights pursuant to K.S.A. 38-125 et seq. is still liable to pay for the assistance expended on the child’s behalf under 39-718b. We disagree.
The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, we should give words in common usage their natural and ordinary meaning. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985). K.S.A. 1989 Supp. 38-1502(d) defines “parent,” when used in relation to a child or children, as including a guardian, conservator, and every person who is by law liable to maintain, care for, or support the child. K.S.A. 1989 Supp. 39-718b(a) clearly states that “a child’s parent, parents or guardian shall be liable to repay to the secretary of social and rehabilitation services any assistance expended on the child’s behalf, regardless of the specific program under which the assistance is or has been provided.” A person who has relinquished parental rights through adoption, a voluntary termination of parental rights, or an involuntary severance of parental rights is no longer a parent. These statutory procedures contemplate a complete severance of the child’s ties and relationship with his or her natural parents. The parent whose rights have been severed is relieved of all duties and obligations to the child.
The effect of a voluntary termination is to confer upon SRS the legal consequences, obligations, and incidents that arise out of the status of parent of the child. Clear is no longer a parent and is not liable under K.S.A. 1989 Supp. 39-718b to repay SRS for any services or assistance expended on the children’s behalf.
The Court of Appeals’ determination that SRS did not voluntarily accept the surrender of the children and thus there was no relinquishment of parental rights is reversed; the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
This is a consolidated appeal by Oliver K. Smith, Jr., who was convicted by a jury in Geary County of felony murder (K.S.A. 21-3401) and rape (K.S.A. 21-3502). He claims that (1) his constitutional right and his statutory right to a speedy trial under K.S.A. 22-3402 were violated; (2) the State violated his right to equal protection in using two of its peremptory challenges to strike blacks from the jury panel; and (3) the trial court erred in admitting DNA profiling evidence. Smith appeals both his conviction and the court’s denial of his habeas corpus petition.
At 6:30 p.m. on October 26, 1986, Robert Prine returned to his rural Marion County home from duck hunting. When Prine entered the unlocked and darkened house, he saw his wife, Shelly, lying on the living room floor in a pool of blood. Except for a shirt and bra pushed up over her breasts, she was naked. Though shot twice in the head, Shelly Prine was still alive. Robert Prine went to a neighbor, Dana Gleason, to call for medical help. Gleason, who accompanied Prine back home, observed a small- caliber firearm shell casing near the victim. At 6:42 p.m. Gleason notified the sheriffs office of the shooting.
At the St. Francis Medical Center in Wichita, Dr. Gary Porter performed a rape ldt examination of Shelly Prine. The victim was pronounced dead at 8:36 a.m. on October 27, 1986. On October 28, 1986, an autopsy performed by Dr. William Eckert, a forensic pathologist, revealed the cause of death was two small-caliber gunshot wounds, which resulted from bullets fired at close range between the victim’s eyes. There were no exit wounds. Four bullet fragments removed from the victim’s body were deformed and not suitable for ballistics testing. The pathologist observed the victim had fresh bruises on her left shoulder and fresh scratches on her right biceps, and opined that she had been raped.
On October 26, 1986, the KBI searched the Prines’ premises and outbuildings. The search revealed no forced entry, indicating the doors had been unlocked. The broken legs of the coffee table indicated a struggle had occurred. The KBI found a spent brass-colored .22 caliber shell casing on the living room floor where the victim’s body had been lying and a pair of the victim’s jeans stuffed under a small stool in the kitchen. In addition, the KBI collected carpet samples from the area where the victim was lying and blood samples from various areas of the house. From St. Francis Medical Center the KBI obtained the rape kit, bullet fragments, blood, and body and pubic hairs that were retrieved from the body of the victim at the time of the autopsy. All the evidence was sent to the KBI laboratory in Topeka.
The investigation revealed that none of the neighbors had observed anyone at the Prines’ residence during the afternoon of October 26. However, one neighbor testified he had seen a motorcycle leave the Prines’ house at approximately 5:15 p.m. Another neighbor stated she had heard and seen either a motorcycle or a three-wheeler at approximately 5:30 p.m. Based on the neighbors’ reports and the shell casing, the KBI compiled a list of local residents who owned a motorcycle and a .22 caliber firearm.
Defendant Oliver K. Smith, Jr., was a friend of the Prines who worked with Robert Prine. Smith had visited the Prines’ home on two occasions in September 1986. Smith owned a motorcycle, a .22 caliber rifle, and an AMT Lightning .22 caliber semiautomatic pistol.
On November 4, 1986, Smith voluntarily test-fired his .22 caliber rifle and AMT Lightning pistol for the KBI agents so they could compare the spent shell casings from his guns with the shell casing found near the victim’s body. Weapons belonging to four other individuals were test-fired for comparison. The shell casing from Smith’s .22 caliber AMT Lightning pistol matched the shell casing found in the Prines’ home.
On November 14, 1986, the KBI obtained a search warrant for Smith’s residence and vehicles. The KBI found the AMT Lightning pistol in a shoulder holster ring in Smith’s pickup truck and his Yamaha Enduro 500 motorcycle in the garage. On November 20, 1986, the KBI obtained a search warrant to gather blood, saliva, hair samples, and fingerprints from Smith.
On December 18, 1986, the KBI, after Mirandizing Smith, interviewed him while his attorney was present. At that interview, Smith stated he had never loaned the AMT gun to anyone. Smith said he had been to the Prines’ house three times and on two of those occasions had been in the house. A KBI agent noted the distance between the Smiths’ and Prines’ residences was thirteen miles.
Bill Mueller, the KBI agent who interviewed Smith on October 26, 1986, testified Smith stated that he had gone deer hunting in the morning and in the afternoon had visited his cousin in Newton. Smith told Mueller he then had driven his Yamaha motorcycle to his friend’s home in Newton and had stayed for three to four hours before returning to his home between 7:00 and 8:00 p.m.
A forensic examination revealed semen stains on the victim’s jeans as well as on a blanket discovered near her body. At trial Eileen Burnau, a criminalist with the KBI forensic laboratory in Topeka, testified that, although Prine was excluded as a contributor to the samples taken from the jeans, he could have contributed the semen taken from the vaginal swabs and the blanket samples. Her test indicated that Smith was included in the approximately 20 percent of the black population that could have contributed the semen found on the victim’s jeans.
Burnau testified about the tests conducted on Smith’s AMT gun and holster for the presence pf blood. There were bloodstains in three places on the holster. Human blood was found on the edge of the holster. The blood samples on the gun were insufficient to determine whether the blood was human or animal blood.
Phillip Aviles, KBI laboratory criminalist, found two Negroid body hairs on the carpet samples. Prine testified Smith was the only black person that had been in his home. Prine further testified that his wife had vacuumed the carpet between Smith’s visits in September 1986 and the October 26, 1986, shooting.
After the State offered its forensic evidence on the blood typing, a Frye-type hearing was held on the defense’s motion to exclude DNA profiling evidence. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The trial court denied Smith’s motion to exclude the DNA evidence.
The State’s DNA experts informed the jury that the DNA test excluded all but .2 percent of the white population and .4 percent of the black population as donors of the semen found on the vaginal swabs. According to the State’s three experts, there was more than a 99 percent probability that Smith was a contributor of the semen found on the swab.
On January 11, 1989, after deliberating for more than an hour, the jury found the defendant guilty of rape and murder in the first degree. Smith’s appeal raises three claims of trial error. Relevant facts as to each claim will be stated as necessary.
SPEEDY TRIAL
It is the State’s obligation to insure that an accused who is in custody is provided with a speedy trial. Delays which are the result of application or fault of the defendant are not to be counted in computing the 90-day statutory speedy trial period. State v. Prewett, 246 Kan. 39, Syl. ¶ 2, 785 P.2d 956 (1990). Was Smith denied his right to a speedy trial required by K.S.A. 22-3402 or the Constitution of the United States?
Smith was arrested and taken into custody on September 16, 1987, and arraigned on January 20, 1988. After Smith’s motion for change of venue was granted, his trial was scheduled to commence on February 29, 1988, but was rescheduled at the request of the State. On March 22, 1988, Smith’s request for a contin uance was granted. The time from March 22, 1988, until April 27, 1988, was charged to Smith by the district judge. On April 27, 1988, the State requested a continuance to determine whether there was a sufficient sample for a DNA test. After it was determined there was a sufficient sample for the DNA test, on May 17, 1988, the State obtained a continuance pursuant to K.S.A. 22-3402(3) to obtain a DNA test of the samples. The time assessed by the trial judge to the State from Smith’s arraignment until its request pursuant to K.S.A. 22-3402(3)(c) was 82 days.
Smith argues the May 17 continuance was not authorized under K.S.A. 22-3402(3). He asserts the time from May 17, 1988, through July 6, 1988, the 50 days required for the DNA testing, should be charged against the State under K.S.A. 22-3402(1). If Smith’s claim is correct, 132 days between his arraignment and trial are chargeable to the State and K.S.A. 22-3402(1) would require that Smith be discharged.
K.S.A. 22-3402 provides in part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delays shall happen as the result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the State on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date.”
Smith contends that the State’s request for the continuance to determine whether there were sufficient samples to test was not authorized by K.S.A. 22-3402(3)(c). Smith argues that the DNA evidence was available to the State before he was arraigned and it was the duty of the State during the early stages of the prosecution to determine whether evidence was sufficient for DNA testing. The State claims it did not become aware of the availability of DNA testing until April 20, 1988.
The record reflects the prosecutor first learned of the possibility of a DNA test on April 20 and moved for a continuance on April 27. In granting the continuance in order that the DNA profiling test could be completed by Lifecodes Corporation, a New York-based company specializing in DNA identification, the trial judge reasoned if the evidence was tested, the test results could produce either exculpatory evidence material to the defense or evidence material to the identity of the defendant as the murderer. Did the trial judge abuse his discretion by granting a continuance to the State?
The standard of review for abuse of judicial discretion is whether the judge’s ruling was arbitrary, fanciful, or unreasonable. Leeper v. Schroer, Rice, Bryan, & Lykins, P.A., 241 Kan. 241, 248, 736 P.2d 882 (1987); Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. at 562. See State v. Hood, 245 Kan. 367, 375, 780 P.2d 160 (1989). Under the facts, the trial court’s ruling that the DNA test results were unavailable material evidence and the granting of a continuance requested by the State under K.S.A. 22-3402(3)(c) was proper.
On June 29, by phone, Lifecodes informed the State of the test results. The State immediately conveyed that information to Smith’s lawyer. Lifecodes’ written report is dated July 6, 1988. Smith does not allege that the State delayed in conveying the information to him.
On July 6, 1988, the trial court denied Smith’s request for dismissal. After his motion for dismissal was denied, Smith requested a continuance. Smith asked that the continuance be charged against the State because the written report from Life-codes had not yet been received by him; therefore, the request for a continuance was not the result of the defendant’s “application or fault.” Smith reasons when new forensic technology forces the State to obtain a continuance under K.S.A. 22-3402(3)(c), any continuance required by the defense in response to the new forensic test results must be charged to the State. Under Smith’s reasoning, the time from July 6, 1988, to September 14, 1988, (the day the defense requested a continuance because of delays that its expert was incurring in the evaluation of the DNA evidence) should be charged to the State. The trial court disagreed with this reasoning and denied Smith’s motion to dismiss. The district court’s July 6, 1988, refusal to discharge Smith was the basis for the defendant filing a habeas corpus petition, which was denied by Judge Melvin Gradert on October 19, 1988.
It is ironic that Smith complains that he should not be charged time due to the newness of DNA profiling, yet complains that the State’s unfamiliarity with DNA profiling is not grounds for a continuance. When Smith chose not to pursue independent testing on May 17, 1988, he assumed the risk of the test results being inculpatory. Smith’s need for a continuance to obtain an independent DNA test of the samples was not necessitated by the State’s actions. The trial court did not abuse its discretion in charging that time to Smith from July 6, 1988, to September 14, 1988. Because of the extension allowed by K.S.A. 22-3402(3)(c), from Smith’s arraignment to trial, 82 days were properly charged to the State. Smith was brought to trial within 90 days as required by K.S.A. 22-3402(1). There was no violation of the defendant’s statutory right to a speedy trial.
At the habeas corpus hearing and subsequently at trial, Smith contended that his constitutional right to a speedy trial had been violated. At both hearings each of the judges found there had been no violation of Smith’s constitutional right to a speedy trial. On appeal, Smith characterizes his incarceration, from his arrest in September of 1987 until his trial in 1989, as so prejudicial that his constitutional right to a speedy trial was violated and his convictions must be overturned.
For authority Smith relies on Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), which established a four-factor test to determine whether a violation of a defendant’s constitutional right to a speedy trial had occurred. The four factors are: (1) length of the delay; (2) reason for the delay; (3) defendant’s assertion of the right; and (4) prejudice resulting to the defendant. The Barker test was adopted by this court in State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972). In Otero, we acknowl edged that the primary burden to assure that defendants are properly brought to trial is on the courts and the prosecutors. Otero, 210 Kan. at 536.
Applying the four factors adopted in Barker, we find that (1) the length of delay was not unreasonable as the DNA profiling analysis required extensive testing time; (2) the DNA test results would indicate if the defendant was either included or excluded as a member of the group who could have committed the murder, and the delay to determine if there was enough sample to test was charged to the State; (3) Smith did assert his right by objecting to the continuances; (4) there is no evidence that Smith’s right to a speedy trial was prejudiced by the delay. Smith was not denied his constitutional right to a speedy trial.
PEREMPTORY CHALLENGES
Smith, a black man, claims that the State’s use of two of its peremptory challenges to strike two of the three black persons available for the jury selection was not race neutral. Smith argues that the State’s explanations for striking two blacks from the jury did not establish a clear, reasonably specific, and legitimate neutral reason for use of the peremptory challenges.
The State did not individually question any of the potential jurors. During the jury selection, all the potential jurors were asked several questions as a group. The prosecutor observed the jurors respond to the questions by raising their hands. During the examination of the potential jurors the State asked whether they:
1. knew Shelly Prine or her parents;
2. understood the concept of circumstantial evidence;
3. believed in expert or scientific evidence or could render a conviction based on expert or scientific evidence;
4. had an open mind;
5. could follow the instructions as to the law;
6. had read anything to affect their impartiality or judgment;
7. had had an unfortunate experience with a law enforcement officer or the criminal justice system;
8. had scheduling conflicts as to the time needed for the trial;
9. had physical or health problems; or
10.had moral, philosophical, or religious beliefs that would interfere with their exercise of judgment at trial.
When no hands were raised by the potential jurors in response to the prosecutor’s questions, the State passed the jury panel for cause.
Smith, like the State, asked several questions of the jurors as a group. Then a direct question was asked of all six of the black potential jurors by the defense. The question was whether the fact that the victim was white and that the defendant was black would affect their judgment. All six responded negatively and stated that the victim’s and defendant’s race would not affect their judgment. Smith passed the venire for cause.
When jury selection began, there were six blacks in the panel of potential jurors. A random selection agreed to by both the State and Smith resulted in 36 individuals, including three blacks, remaining in the venire from which the jury would ultimately be selected. The three blacks were Barbara Wright, Joan Bryant, and Mary Seldon. When exercising its twelve peremptory challenges, the State removed Mary Seldon by use of its sixth peremptory challenge and Barbara Wright by use of its ninth peremptory challenge. Smith timely objected to the removal of two blacks from the jury.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), during the selection of the jury in a criminal trial where a black defendant was charged with second-degree burglary and receipt of stolen property, the prosecutor used the State’s peremptory challenges to exclude blacks from the jury. On certiorari, the United States Supreme Court reversed the defendant’s convictions and remanded the case for further proceedings.
The Supreme Court determined that, although a criminal defendant has no right, under the equal protection clause of the Fourteenth Amendment, to a jury composed in whole or in part of persons of his own race, a State’s purposeful or deliberate exclusion of persons of defendant’s race, on account of their race, as jurors violated the equal protection clause of the Fourteenth Amendment. 476 U.S. at 89. It noted, as in any equal protection claim, the burden is on a criminal defendant who alleges discrimination to prove the existence of purposeful discrimination. In deciding if the defendant has carried his or her burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Criminal defendants may make a prima facie showing of purposeful racial discrimination in selection of the jury venire by relying solely on the facts concerning the selection of the venire in their case. See 476 U.S. at 96.
The Supreme Court determined that once a defendant, who claims to have been denied equal protection of the laws through the prosecution’s use of peremptory challenges to exclude members of his race from the petit jury, has made a prima facie showing of purposeful discrimination, the burden shifts to the prosecution to come forward with a clear and reasonably specific neutral explanation for challenging such jurors that relates to the particular case to be tried. This explanation need not rise to the level of justifying the exercise of a challenge for cause, but the prosecutor may not rebut a prima facie case of discrimination merely by stating that he challenged jurors of the defendant’s race on the assumption, or intuitive judgment, that such jurors would be partial to the defendant because of their shared race, or merely by denying that he had a discriminatory motive or by affirming his good faith in individual selections. After the prosecutor has offered such an explanation, the trial court will have the duty to determine if the defendant has established purposeful discrimination. See 476 U.S. at 96-98.
In State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987), we adopted the rule established in Batson.
Here, Smith has shown that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Under Batson and Hood, Smith is entitled to rely on the fact, about which there can be no dispute, that the use of a peremptory challenge constitutes a jury selection practice which allows those to discriminate who are of a mind to discriminate. Smith has shown facts and other relevant circumstances which raise the necessary inference that the prosecution used its peremptory challenges to exclude certain veniremen from the petit jury on account of race.
Because Smith has made his prima facie case, the burden shifts to the State to provide a neutral explanation for its exercise of the challenge for removing veniremen that belong to the same race as Smith, and the State’s explanation must be determined by the court to be race neutral. Batson, 476 U.S. at 97; Hood, 242 Kan. at 119-121, 123.
The State came forward with explanations for removal of the two black jurors. As to juror Wright, the prosecutor stated:
“First of all, I’m personally familiar with Mrs. Wright to some degree. I know her husband, Paul; I know them both well; I know that they were both social workers; I knew their background, I had occasion to work with them, or my office, over the years. I don’t know how they perceive that relationship with my office. I revealed this to Mr. Wheeler [special prosecutor] ; Mr. Wheeler feels that he doesn’t want a social worker on the jury. And that’s the reason the strike is being made, the reasons I’ve stated.”
As to juror Seldon, the prosecutor stated:
“I can respond to that. Her jury questionnaire stated she did not want to be a juror. We paid particular attention when we were asking the questions; she seemed unresponsive to some degree, and it’s our opinion she does not want to be a juror, and, therefore, should not be.”
The court upheld the State’s explanations of its use of both peremptory challenges.
The State points out that its use of a peremptory challenge to remove Seldon is similar to the elimination of a black from the jury in State v. Hood, 245 Kan. 367, 780 P.2d 160 (1989) (Hood II), where the prosecution relied upon a juror’s body language for exercising one of its peremptory challenges. We found that body language can be used by the State as a race neutral explanation for the use of a peremptory challenge. 245 Kan. at 374. However, this court cautioned that the trial judge must be particularly sensitive when body language alone is advanced as a reason for striking a juror of the defendant’s race. 245 Kan. at 374. In Hood II, the black juror’s appearance of hostility toward the prosecutor and partiality to the defense counsel, coupled with body language, supported the State’s use of its peremptory challenge. Under the facts of Hood II, we found that the removal of the black man as a prospective juror was not based solely on the individual’s race.
In State v. Belnavis, 246 Kan. 309, 787 P.2d 1172 (1990), we reviewed the prosecutor’s use of peremptory challenges in selecting the jury and the prosecutor’s explanation to determine whether the removal of prospective jurors was race neutral. There the prosecutor stated that he used a peremptory challenge to eliminate a black female from the jury panel because she was young and a single parent, with a seven-month-old child, and might be easily distracted. Because the record revealed that a white female juror who was retained had similar characteristics to the black female, we found that the prosecutor’s proffered reason for the use of the challenge did not withstand judicial scrutiny. Also, in Belnavis we noted that in U.S. v. Garrison, 849 F.2d 103, 106 (4th Cir. 1988), the appellate court upheld the prosecutor’s explanation that the two black veniremen removed had chatted during the voir dire, and this indicated to the prosecution that they were bored and did not care to be involved in the process. 246 Kan. at 313.
Here, the State relied not only on its observance of Seldon’s body language, but also considered her response to the jury questionnaire that she did not want to be part of the jury process. Neither Smith nor the record provides information that any of the other jurors had given a similar reply in their questionnaire. Based on the record, the State offered the trial court a sufficient race neutral explanation to exclude Seldon from the jury.
As for Wright, one of the prosecutors knew Wright personally, had worked with her, and did not want a social worker on the jury. The record does not indicate that any of the white jurors who were not challenged had a job similar to Wright’s. Prior to selection of the jury, one of the potential jurors volunteered that she knew the prosecutor, had worked with his office, and as county treasurer she did not feel that she could be neutral. She was released from serving as a juror.
The prosecutor’s neutral explanation for challenging each juror need not rise to the level of justifying an excuse of a challenge for cause. Batson, 476 U.S. at 97; Belnavis, 246 Kan. at 311; Hood, 242 Kan. at 120. Here, we find no abuse of discretion by the trial judge in accepting the State’s explanations for use of its peremptory challenges to remove two blacks from the jury. Under the facts of this case, there are sufficient neutral reasons given by the State for use of the peremptory challenges to remove Wright and Seldon from the jury.
DID THE TRIAL COURT ERR IN ADMITTING DNA EVIDENCE?
Prior to DNA profiling, forensic experts used other DNA techniques to determine paternity and as a means of identification in criminal cases in Kansas. State ex rel. Hausner v. Blackman, 233 Kan. 223, 662 P.2d 1183 (1983) (evidentiary value of blood grouping test in paternity action); State v. Pioletti, 246 Kan. 49, 51, 785 P.2d 963 (1990) (DNA analysis of blood on door of crematory identified as that of the offspring of the victim’s parents).
In recent years however, a new method of DNA profiling is used to identify the human source of blood, semen, tissue, or hair samples. DNA profiling can inculpate criminal suspects by matching the suspect’s genetic material with genetic material obtained from a sample of human tissue left at the scene, on a murder weapon, or on the suspect’s clothes. This technique is useful in sexual assault cases where the DNA print of semen taken from the victim’s body is compared with a DNA print taken from the suspect’s blood. Although traditional forensic methods exist for comparing blood, hair, and semen, DNA profiling has the advantage of being performed on much smaller tissue samples than traditional tests.
The initial case to accept DNA profiling was Andrews v. State, 533 So. 2d 841 (Fla. Dist. App. 1988), rev. denied 542 So. 2d 1332 (Fla. 1989). In Kansas, the admissibility of DNA profiling is an issue of first impression. Because of the advances made in scientific identification, it is necessary for us to review relevant scientific principles of DNA testing and those laboratory methods that are now used in DNA profiling.
DNA THEORY
In People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989), an extensive Frye test as to legal admissibility of DNA profiling was conducted. In its review of the scientific background of DNA theory, the trial court stated:
“DNA, deoxyribonucleic acid, is the fundamental natural material which determines the genetic characteristics of all life forms. Humans have human form and elephants have elephant form because of differences in the makeup of their respective DNA.
“Every cell that contains a nucleus contains DNA. There are approximately 10 trillion cells in the human body and most contain DNA. Red blood cells, which do not have nuclei, are a significant exception. Although the DNA is much too small to be seen by even the most powerful microscope, if it were stretched out to its full length, it would be about six feet long. Within humans, as a species, much of the DNA is identical. It is this identity of DNA that makes all humans look like humans, rather than dogs or trees. We humans create human offspring by transferring our DNA to our children. The science of genetics studies how and why this happens.
“DNA’s fundamental structure, however, does not vary regardless of the type of genetic creature it creates. DNA is composed of a long double helix, which looks like a spiral staircase. The backbone of this molecule (i.e., the handrails and balustrade of the staircase) consists of repeated sequences of phosphate and deoxyribose sugar. Attached to the sugar links in the backbone are four types of organic bases: adenine (A), guanine (G), cytosine (C) and thymine (T). The steps of the staircase are formed by pairs of these bases, (hereinafter, base pairs). A single DNA molecule consists of approximately three billion base pairs. Because of the chemical nature of the bases, only A and T can bond together, and only C and G can bond together. A cannot bond with G, and C cannot bond with T. Thus, the only possible combinations which can form the steps of the staircase are A-T, T-A, C-G, and G-C.
“The sequence of the three billion base pairs along the handrails of the DNA is the key to the information represented by the DNA. This sequence is responsible for producing arms, legs, kidneys or brain cells.
“Of this sequence, approximately 3 million sites vary from person to person. There are enormous differences between individuals because of the manner in which the base pairs are arranged. These variations, called polymorphisms or anonymous sequence, occur in different regions of the DNA. Polymorphisms are the basis of DNA identification. They are readily detectable when their lengths are altered by the action of restriction enzymes, thereby giving rise to ‘restriction fragment length polymorphisms’ (hereinafter RFLP). The length of the fragment (or molecular weight) is measured by the distance it moves through an electrophoresis gel.
“Each individual’s DNA is apportioned into 46 discrete sections within the nucleus of each cell. These sections are called chromosomes. Twenty-two of these chromosomes come from the mother and 22 come from the father. These are genetically arranged in pairs. Additionally, two sex-typing chromosomes, denominated ‘X’ and ‘Y’, are present.
“During reproduction the chromosome pairs of the mother and the father split apart and then recombine—one chromosome from the mother and one chromosome from the father—to create the ‘new’ 22 chromosome pairs of their child. Females have two ‘X’ chromosomes, and males have one ‘X’ and one ‘Y’ chromosome, thus giving each human a total of 46 chromosomes.
“A portion of DNA which is responsible for certain traits is .called a gene (e.g., each person has a gene for the production of eyes). All humans have thousands of genes located on the 46 chromosomes. Each gene is located at a specific site, or locus, upon a specific chromosome. Alternate forms of genes are called alleles (e.g., blue-eyed allele, green-eyed allele). This total pool of genetic information is known as the human genome.
“In chemical terms, the difference in alleles is explained by the difference in the ways the nucleotides, i.e. base pairs, arrange themselves along the DNA molecule. . . . All are slightly different. Each is an allele. In actuality, however, each allele is much longer, i.e. on the order of 1,000-10,000 base pairs. Each base pair consists of a single nucleotide, that one bond between A and T or C and G. However, a very small variation in the order in which these base pairs occur on the DNA molecule can make huge differences. Sickle-cell anemia, for example, is caused by a single base pair on a single chromosome occurring out of order. If that single aberrant base pair were placed properly, the afflicted would not suffer from the disease.
“Obviously, if a DNA profile examined all three million sites of variation, each person’s DNA could be individualized. Such an undertaking would be unduly burdensome in terms of time, labor, and cost. As an alternative to this approach, it is accepted that scientists can, in relative terms, discriminate between various people’s DNA by examining several of these polymorphic sites. At a particular site or locus, a person may have a substantially unique pattern. For instance, a particular fragment size may occur in a small percentage of the population. By examining the sizes of a sufficient number of fragments at different sites on different chromosomes, statistical procedures permit enough discrimination to establish the unique configuration of any one person’s DNA pattern.” 144 Misc. 2d at 961-63.
The Georgia Supreme Court in Caldwell v. State, 260 Ga. 278, 282-83, 393 S.E.2d 436 (1990), discusses the discovery of the DNA structure and its recent uses in the scientific community. That discussion includes the following information:
“The discovery of the structure of DNA by Watson and Crick, recognized as one of the major scientific events of the Twentieth Century, caused an explosion in biochemistry, molecular biology and related sciences, and the technology thereof. Among its vast biological implications are mindboggling applications to medical diagnostics and forensic identification.
“Now knowing the structure of DNA, and its immutable rules, and knowing that genetic information and instructions are transmitted by varying sequences of matched base pairs, molecular scientists were able to decipher much of the genetic codes. In 1970 there was isolated the first enzyme, known as a restriction endonuclease, or restriction enzyme, that cuts DNA molecules at specific sites. A flood of other restriction enzymes were thereafter identified and used to segment the strands of the DNA molecule. . . .
“Other major developments in DNA technology occurred, leading to enhanced methods of sequencing or fragmenting DNA and enabling the examination of specific fragment lengths of the DNA molecule.
“DNA researchers were soon able to identify and map the location on the chromosomes of many genes and alleles (alternative forms of genes, as, for example, alternative genes that determine eye color pursuant to Men delian rules of inheritance). Every two years a prestigious group of international scientists meets in a body known as the Human Gene Mapping Conference, receives applications for the acceptance, mapping and publication of gene sites newly-discovered since the last meeting of said body. The Human Gene Mapping Conference is uniformly recognized by the scientific community as the official registrar of gene sites. . . .
“The Human Gene Mapping Conference assigns a locus for every gene site accepted by it. A locus is the specific position occupied by a particular gene or alternative forms of a gene on a chromosome.”
In Thompson and Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va. L. Rev. 45, 60-61 (1989), it is stated:
“There is nothing controversial about the theory underlying DNA typing. Indeed, this theory is so well-accepted, that its accuracy is unlikely even to be raised as an issue in hearings on the admissibility of the new tests. . . . The theory has been repeatedly put to the test and has successfully predicted subsequent observations.”
DNA PROFILING FORENSIC LAB TECHNIQUES
At the present time, commercial laboratories and the FBI perform the DNA profiling test to aid in identifying criminal suspects. Lifecodes Corporation uses “restriction fragment length polymorphism analysis” (“RFLP analysis"). As the evidence in this case was analyzed by Lifecodes, the eight basic steps of RFLP analysis will be discussed briefly.
“[(1) DNA extraction.] DNA must be chemically extracted from the sample to be tested. The forensic sample is often dried blood or semen which must be washed from various surfaces such as clothing. Technicians then treat the sample with enzymes to release the DNA from the cells.
“[(2) Fragmentation by restriction enzymes.] A particular restriction enzyme will recognize a base sequence from four to eight bases long which appears throughout the DNA. The enzyme acts as a scissors and cuts the DNA only where that specific sequence occurs. A particular restriction enzyme will produce the same number and length fragments of DNA in a particular individual each time. If each individual’s DNA were the same, the enzymes would cut everyone’s DNA in the same place.
“However, everyone’s DNA is not the same. RFLP analysis focuses on areas of the DNA that are highly polymorphic due to ‘length polymorphisms.’ Length polymorphisms occur at a site on the DNA where a particular sequence of bases, sometimes referred to as a ‘mini-satellite,’ is repeated a variable number of times. At that site, then, different individuals will tend to each have a different number of mini-satellites occurring between the restriction sites recognized and cut by the enzyme. This causes the length of the segments of DNA cut by the enzyme to vary among individuals.
“[(3) Gel electrophoresis.] Gel electrophoresis separates the DNA fragments by length. The DNA sample is placed in a hole at one end of the gel. An electric current is applied to the gel. Because DNA has a negative charge, the fragments will migrate toward the positively charged pole at the far end of the gel. The distance each fragment travels depends upon its size. The smaller the fragment, the faster and farther it travels. Smaller fragments will thus cluster toward the far end of the gel and larger fragments toward the near end.
“[(4) Southern blotting.] Prior to this step, the DNA is ‘denatured,’ a chemical process which unzips the molecule so that it is single-stranded, separating each base from its complement. Southern blotting transfers the DNA fragments to a nylon membrane. This process occurs by capillary action: Buffer solution is pulled through the gel and the membrane and absorbed into paper towels, bringing DNA fragments with it. The DNA fragments bind to the membrane in the same positions as they were in the gel.
“[(5) Hybridization.] For the purposes of distinguishing between individuals through a DNA profile, the only fragments of interest are those from the highly polymorphic area of the DNA. A radioactive DNA ‘probe’ is used to locate and visualize those fragments on the membrane. The probe is a single-stranded section of DNA manufactured by genetic engineers that is designed to complement a single-stranded base sequence that appears in or adjacent to the highly polymorphic site. The probe seeks out and binds to the DNA fragments from that site. The probe is marked with a radioactive tag in order to locate the positions of those fragments.
“Lifecodes, Cellmark, and the FBI use the same type of probe in criminal cases, known as a single-locus probe. Cellmark, however, also uses a multilocus probe in civil cases. While the multi-locus probe seeks out DNA sequences that occur at several polymorphic loci in the DNA, the single-locus probe seeks out a specific sequence that occurs in only one polymorphic locus. The multi-locus probe thus results in a more specific, but more complex and more difficult to interpret, banding pattern, whereas single-locus probes produce simpler banding patterns that are easier to interpret. . . .
“[(6) Autoradiography.] The blot is placed in contact with a piece of x-ray film, where the radioactivity of the probe exposes the film. Thus, bands will appear on the film where the probe has bound to the DNA. The pattern created has been repeatedly referred to as resembling a supermarket bar code; however, this is an extremely misleading analogy, since the bands are usually very fuzzy. This banding pattern is what has become known as the ‘DNA fingerprint.’ The position of the bands reflects the length of the DNA fragments produced by the cutting of the DNA by restriction enzymes at the polymorphic site. . . .
“[(7) Interpretation of the results. ] The pattern of bands produced by the suspect’s or victim’s DNA is compared to the pattern created by the unknown sample retrieved from the crime scene to see if there is a match. One method of declaring a match is simply by visual determination. . . .
“[(8) Conversion into a statistical probability.] Once the examiner declares a match, the next step is to assess the commonness of the particular DNA profile, i.e., the frequency of the alleles in the relevant population. The statistic is generated by consulting a database of results obtained by using the same probe on many individuals. The final statistic is usually expressed in terms of the odds of this match occurring at random in the relevant population. If more than one probe is used, the probability of a coincidental match becomes smaller.” Note, The Dark Side of DNA Profiling: “Unreliable Scientific Evidence Meets the Criminal Defendant,” 42 Stan. L. Rev. 465, 472-474 (1990).
See People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989).
As a new forensic tool, DNA profiling presents concerns. First is “bandshifting,” which is the tendency of DNA fragments to migrate during electrophoresis at different rates at different times, which may produce erroneous results. Another concern is that the quality of the forensic samples from the crime scenes may be degraded, contaminated, or available in limited quantities, affecting DNA testing accuracy. Another concern is the absence of data on the extent to which DNA is inherited in a population, which makes questionable statements regarding the probability that two people would have matching DNA prints. In response to its concerns, the National Academy of Science has established a committee of noted scientists to study DNA profiling. See Davis and Tonkovich, DNA Printing: Recent Developments, 38 Kan. L. Rev. 65, 66 (crim. proc. ed. 1990); see generally Thompson and Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va. L. Rev. at 87-88.
FRYE HEARING
In response to Smith’s motion in limine, the trial court held a hearing outside the presence of the jury to determine the admissibility of DNA profiling results. According to Lifecodes’ test, the sample of DNA from Smith’s blood matched a sample retrieved from the rape kit vaginal swab taken from Shelly Prine. At the in limine hearing, Smith conceded that the science of DNA identification was not the thrust of his challenge. Rather, Smith was concerned with Lifecodes’ use of the gene database for its probability calculations and the general scientific acceptance of Lifecodes’ laboratory technique to declare the match. Specifically, Smith relies on the fact that, after his expert contacted Lifecodes, Lifecodes eliminated one of the loci used in its July 6 report and that Lifecodes’ probability population figure was changed in its November 3 report.
In general, Smith claims the trial court erred in admitting DNA profiling evidence that did not meet the test for a new scientific principle as enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test requires that, before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. If a new scientific technique’s validity has not been generally accepted as reliable or is only regarded as an experimental technique, then expert testimony based on its results should not be admitted into evidence. State v. Washington, 229 Kan. 47, Syl. ¶ 1, 622 P.2d 986 (1981).
The use of the Frye test to determine the admissibility of a lie detector examination was considered by this court in State v, Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). We also applied the Frye test to determine the admissibility of the Multi-System method of blood analysis of polymorphic enzymes in State v. Washington, 229 Kan. 47, Syl. ¶ 2. Whether the battered woman syndrome had sustained sufficient scientific acceptance to warrant admissibility under the Frye test has been discussed. See State v. Hodges, 239 Kan. 63, 71, 716 P.2d 563 (1986).
Smith argues that this court should follow People v. Castro, 144 Misc. 2d 956, and not admit DNA profiling evidence. In Castro, the State sought to introduce DNA evidence to prove that a bloodstain found on Castro’s wristwatch was the victim’s blood. Lifecodes performed the DNA profile test; however, the trial court found that Lifecodes had failed to use generally accepted techniques and had not followed its own procedures for obtaining reliable results. The trial court held a Frye hearing over a twelve-week period which was at that time the most extensive legal examination of DNA profiling. Castro, 144 Misc. 2d at 957, 978. The court used a three-pronged analysis:
(1) Is the DNA theory generally accepted in the scientific community?
(2) Are the techniques or experiments capable of producing reliable results in DNA identification that are generally accepted in the scientific cornmunity?
(3) Did the testing laboratory itself perform accepted scientific techniques in analyzing the forensic samples? 144 Mise. 2d at 959.
The Castro trial court determined that the Frye standard was satisfied in that DNA theory and DNA identification techniques and experiments are generally accepted in the scientific community and can produce reliable results. 144 Mise. 2d at 969-73. However, the trial court found that the State did not meet the requirements of the third prong as Lifecodes had “failed in several major respects to use the generally accepted scientific techniques and experiments for obtaining reliable results, within a reasonable degree of scientific certainty.” 144 Mise. 2d at 980. Based on these facts, the trial court refused to admit the evidence showing that the DNA in the blood on the defendant’s watch matched the blood of the victim.
Since Castro, another New York trial court conducted a Frye hearing and found evidence of DNA printing admissible but limited testimony to the lowest figure of probability because the defendant offered no expert testimony to contradict Lifecodes’ Chinese statistical data base sample. People v. Shi Fu Huang, 145 Misc. 2d 513, 546 N.Y.S.2d 920 (1989).
Also subsequent to Castro, the Supreme Court of South Carolina in State v. Ford, _ S.C. _, 392 S.E.2d 781 (1990), found that DNA theory and DNA forensic testing were generally accepted by the scientific community under the Frye standard. It also held that a Frye-type hearing will not be necessary in the future as the initial burden of proving general acceptance in the scientific community has been established and that DNA analysis may be admitted in court proceedings in the same manner as other scientific evidence such as fingerprint analysis and ABO blood tests. The Supreme Court of South Carolina noted:
“The admissibility of any such evidence remains subject to attack. Issues pertaining to relevancy or prejudice may be raised. For example, expert testimony may be presented to impeach the particular procedures used in a specific test or the reliability of the results obtained. See e.g. People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (1989). In additional, traditional challenges to the admissibility of evidence such as the contamination of the sample or chain of custody questions may be presented. These issues relate to the weight of the evidence. The evidence may be found to be so tainted that it is totally unreliable, and, therefore, must be excluded.” Ford, _ S.C. at _, 392 S.E.2d at 784.
Smith, like the defendant in Ford, did not raise any of the issues described in Ford that would affect the admissibility of DNA test results into evidence. Furthermore, Smith’s reliance on Castro is misplaced as the Castro court specifically found that DNA theory and forensic testing is generally accepted in the scientific community, but excluded the DNA test results from evidence because Lifecodes had not followed its own testing procedure.
Smith did not use an expert to challenge the reliability of the specific tests performed by Lifecodes as did the defendant in Castro. Smith did not challenge the qualifications of the State’s three expert witnesses or refute their testimony. He offered no evidence that Lifecodes’ tests were unreliable or that the tests were not generally accepted by the scientific community.
During the Frye hearing, Smith cross-examined the State’s witnesses as to the statistics used by Lifecodes on its population studies. All three expert witnesses testified that the changes in the population figures did not affect the statistics and the changes only give Smith the benefit of the doubt. Even with the change, Smith still remained a possible contributor. Statistics based on population studies are admissible and any challenge to the reliability of the testing goes to its weight, not its admissibility. State v. Washington, 229 Kan. at 58-59. We find no error by the trial court under the Frye test in admitting the DNA profiling evidence into trial.
DNA print testing and the process of RFLP analysis have been recognized as reliable, have gained general acceptance in the scientific community, involve scientifically and professionally established techniques, and, thus, meet the criteria for admissibility under the Frye standard. While DNA print testing and the process of RFLP analysis meet the standard of general acceptance in the scientific community and thus are admissible on that basis, such test results may be inadmissible on grounds of relevancy or prejudice as well as under traditional challenges to admissibility of evidence such as contamination of sample or chain of custody questions. State v. Ford, _ S.C. at _, 392 S.E.2d at 784.
We agree with the trial court that: (1) The experts’ testimony in this case established that there is sufficient acceptance of DNA profiling; (2) Lifecodes’ techniques and procedures are accepted by the scientific community; (3) the DNA profiling evidence was admissible; and (4) Smith did not establish that the amendments to the reports affected the reliability of Lifecodes’ procedures. The trial court did not abuse its discretion by admitting the results of DNA testing into evidence. It should be noted our decision is in accord with other appellate courts that have reached the same conclusion that DNA profiling results can be admissible. See Martinez v. State, 549 So. 2d 694 (Fla. Dist. App. 1989); Andrews v. State, 533 So. 2d 841 (Fla. Dist. App. 1988), rev. denied 542 So. 2d 1332 (Fla. 1989); Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); Cobey v. State, 80 Md. App. 31, 559 A.2d 391 (1989); People v. Shi Fu Huang, 145 Misc. 2d 513; People v. Castro, 144 Misc. 2d 956; People v. Wesley, 140 Misc. 2d 306, 533 N.Y.S.2d 643 (1988); State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990); State v. Ford, _ S.C. _, 392 S.E.2d 781; Glover v. State, 787 S.W.2d 544 (Tex. App. 1990); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied _ U.S. _, 107 L. Ed. 2d 1073 (1990); Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied _ U.S. _, 107 L. Ed. 2d 775 (1990); State v. Woodall, _ W. Va. _, 385 S.E.2d 253 (1989).
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The opinion of the court was delivered by
Six, J.:
The issue for resolution in this real property case deals with the contested priority of purchase money mortgages and mechanics’ liens. The priority issue is raised by an action to foreclose mechanics’ liens and mortgages.
The Court of Appeals affirmed the trial court in an unpublished opinion. We granted the mechanics’ lienholders’ petition for review.
We resolve the priority contest in favor of the mechanics’ lien-holders, overrule Noll v. Graham, 138 Kan. 676, 27 P.2d 277 (1933), and reverse the Court of Appeals and the trial court.
Plaintiffs/mechanics’ lienholders, Dale B. Shade, d/b/a Shade Construction Company (Shade), the general contractor, and William H. Younger, d/b/a Younger Electric (Younger), the electrical contractor, appeal from the judgment granting the purchase money mortgages priority over the mechanics’ liens, which had attached before the mortgages were recorded. The other mechanics’ lienholders, M&V Floor Covering, Inc., (M&V) and Jim Rohr, d/b/a Russell Drapery & Carpet (Rohr), have not appealed.
The defendant City of Gorham (City) cross-appeals from the judgment granting defendant Diversified Financial Planners Inc.’s (Diversified) purchase money mortgage priority over the City’s purchase money mortgage.
Diversified cross-appeals from the judgment denying it equitable assignment or subrogation of the purchase money mortgage rights of the City.
Diversified was substituted for the FDIC because Diversified had acquired the Home State Bank mortgage from the FDIC. (The FDIC had accepted appointment as receiver for the Bank.)
The trial court, prior to trial, granted judgments to Shade, Younger, M&V, and Rohr (the mechanics’ lienholders) and to Diversified and the City (the two mortgagees). The priority issue involving purchase money real estate mortgages and mechanics’ liens was reserved for determination at trial.
Facts
The parties stipulated to the facts and agreed to submit the case to the trial court on the briefs without presentation of evidence or oral argument.
Stipulation
The stipulation of facts provided:
“1. This is a foreclosure action against the following described real estate, to-wit [legal description of 32-acre tract].
“2. This is also an action to foreclose security interests against the following described personal property of Wheatcraft Industries, Inc., to-wit [various personal property].
“3. Wheatcraft Industries, Inc., is a closely held corporation owned entirely by Joyce Banbury of Russell, Kansas.
“4. Sometime in 1987, Joyce Banbury set out to find financing for the purpose of acquiring the subject real estate and office equipment and further for the purpose of expanding her business, known as Wheatcraft Industries.
“5. Wheatcraft Industries, Inc., applied for and obtained a community development block grant loan from the State of Kansas through the City of Gorham.
“6. Under the community development block grant program, the State of Kansas granted money to the City of Gorham, and the City of Gorham loaned that money to Wheatcraft Industries, Inc.
“7. To qualify for the loan, however, Wheatcraft Industries, Inc., was required to acquire additional money from a private source.
“8. In order to obtain the private source money, Wheatcraft Industries, Inc., applied for a line of credit at The Home State Bank, Russell, Kansas.
“9. The Home State Bank approved a line of credit in the sum of $77,000. The conditions upon which said line of credit were approved are outlined in a letter dated May 19, 1987, from W. R. Shaffer, Chairman of the Board of the Home State Bank, Russell, Kansas, and addressed to Joyce Banbury, President, Wheatcraft Industries, Inc. A copy of said letter is attached hereto as Exhibit 1.
“10. As part of its application for a community development block grant loan, Wheatcraft Industries, Inc., prepared a project budget form showing a total project cost of $315,000. The project budget form shows the expected source of funds for the Wheatcraft Industries, Inc., expansion project and the intended disposition of said funds. A copy of the project budget form is attached hereto as Exhibit 2.
“11. Prior to approval by The Home State Bank of the $77,000 line of credit for Wheatcraft Industries, Inc., Joyce Banbury provided W. R. Shaffer with a copy of the block grant proposal which included the specifications for the construction of a building on the subject land prepared by Shade Construction.
“12. The first project funds received by Wheatcraft Industries, Inc., came from The Home State Bank, Russell, Kansas. These first funds in the sum of $45,460 were delivered to Wheatcraft Industries, Inc., on June 16, 1987.
“13. On June 24, 1987, $29,400 of The Home State Bank loan funds were used by Wheatcraft Industries, Inc., to purchase the metal building which was moved to and erected upon the subject real estate.
“14. On or about September 2, 1987, the first block grant loan money was delivered to Wheatcraft Industries, Inc., in the sum of $68,172.52. Thirty Thousand Dollars of the block grant loan money was used to purchase the subject land.
“15. The deed to the subject land granting the property to Wheatcraft Industries, Inc., and a mortgage from Wheatcraft Industries, Inc., to The Home State Bank covering the subject real estate was delivered to The Home State Bank on or about the 2nd day of September, 1987; however, the mortgage was not recorded because it contained an incorrect legal description.
“16. A survey of the subject land was conducted thereafter and on or about the 22nd day of December, 1987, a new real estate mortgage was signed with the correct legal description and delivered to The Home State Bank. The new mortgage was then recorded on January 12, 1988.
“17. The plaintiff Dale B. Shade, d/b/a Shade Construction, has a mechanic’s lien against the subject real estate in the principal sum of $27,982.13. A copy of said mechanic’s lien is attached hereto as Exhibit 3.
“18. The plaintiff M & V Floor Covering, Inc., has a mechanic’s lien against the subject real estate in the principal sum of $1,458.66. A copy of its mechanic’s lien statement is attached hereto as Exhibit 4.
“19. The plaintiff William H. Younger, d/b/a Younger Electric, has a mechanic’s lien against the subject real estate in the principal sum of $8,131.00. A copy of its mechanic’s lien statement is attached' hereto as Exhibit 5.
“20. The defendant Diversified Financial Planners, Inc. , is the owner and holder of a real estate mortgage against the subject real estate in the principal sum of $75,223.00. A copy of its mortgage is attached hereto as Exhibit 6.
“21. The defendant Diversified Financial Planners, Inc., is the owner and holder [of] a security interest in the property described in paragraph 2 above. A copy of its security agreement is attached hereto as Exhibit 7.
“22. The defendant City of Gorham, Kansas, is the owner and holder of a real estate mortgage against the subject real estate in the principal sum of $200,000.00. A copy of its mortgage is attached hereto as Exhibit 8.
“23. The defendant City of Gorham, Kansas, is the owner and holder is [sic] a security interest in the property described in paragraph 2 above. A copy of its security agreement is attached hereto as Exhibit 9.
“24. The defendant Jim Rohr, d/b/a Russell Drapery & Carpet Company, has a mechanic’s lien against the subject real estate in the principal sum of $1,799.20. A copy of its lien statement is attached hereto as Exhibit 10.
“25. It was the intention of Wheatcraft Industries, Inc., to give The Home State Bank a first mortgage on the subject real estate and to give the City of Gorham, Kansas, a second mortgage on the subject real estate. The City of Gorham consented that its mortgage would be second to the mortgage in favor of The Home State Bank.
“26. Dale B. Shade, d/b/a Shade Construction Company, commenced its work on the subject real estate on October 27, 1987. This work consisted of site preparation and concrete work. Shade Construction Company commenced construction of the metal building on November 18, 1987. William H. Younger, d/b/a Younger Electric, commenced its work on the subject real estate on October 28, 1987.
“27. The work and materials provided by the mechanic’s lienholders was commenced and partially paid for as shown in their respective lien statements.”
The Trial Court Decision
The trial court found that $29,400 of the loan secured by the Diversified mortgage was used to purchase the metal building and that $30,000 of the loan secured by the City’s mortgage was used to purchase the 32 acres. Each lender respectively held a purchase money mortgage in the amount stated. Relying on Noll v. Graham, 138 Kan. 676, 27 P.2d 277 (1933), the trial court reasoned that “a purchase money mortgage has priority over judgments in all other existing and subsequent claims and liens of every kind against a property.”
The trial court noted that all parties intended the City’s mortgage to be second to the Diversified mortgage. However, the trial court concluded: “The Court is unable to find from the stipulated facts and the documents that the City of Gorham agreed to assign its purchase money rights and priorities to the Home State Bank [predecessor of Diversified].” Therefore, the trial court held that Diversified has first priority in the amount of $29,400 and that the City has second priority in the amount of $30,000.
The trial court ruled on the mechanics’ lienholders’ claims and granted judgments in the full amount of each lien: (1) Shade, $27,982.13, third priority; (2) Younger, $8,131, fourth priority; (3) Rohr, $1,799.20, fifth priority; and (4) M&V, $1,458.66, sixth priority.
The trial court granted Diversified seventh priority for $45,833, the balance due on its mortgage, and the City eighth priority for $170,000, the balance due on its mortgage.
Priority
The trial court and the Court of Appeals relied on Noll v. Graham, 138 Kan. 676, in awarding priority to Diversified and the City, who were characterized as purchase money mortgagees.
The Court of Appeals was frank in expressing its difficulty reconciling our holding in Noll with K.S.A. 58-2223 (which provides that an unrecorded mortgage is valid only between the parties until it is recorded) and with K.S.A. 60-1101 (which pro vides that a mechanic’s lien has priority over all liens or encumbrances which are subsequent to the commencement of the mechanic’s work). The Court of Appeals reasoned it was bound by our precedent in Noll, and that if Noll was to be overruled, the task was for this court.
When a case is submitted to the trial court on stipulated facts, as was the case at bar, we are afforded the same opportunity as the trial court to consider the evidence and to determine de novo what the facts establish. H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 162, 717 P.2d 1049 (1986).
The mechanics’ lienholders argue that Noll is not supported by statute and should be overruled. They rely on the statutory triad of K.S.A. 60-1101 (the mechanics’ lien priority statute), K.S.A. 58-2223 (the recording statute addressing the effect of unrecorded mortgages), and K.S.A. 58-2305 (priority of a purchase money mortgage).
K.S.A. 60-1101 provides, in part, that a mechanic’s lien “shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, materials or supplies.”
K.S.A. 58-2223 states: “No such instrument [affecting real estate] in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.”
K.S.A. 58-2305 provides: “A mortgage given by a purchaser to secure the payment of purchase money shall have preference over a prior judgment against such purchaser.”
The mechanics’ lienholders contend that the purchase money mortgages were not valid against the lienholders because the mortgages were recorded after the mechanics’ liens attached. The mechanics’ lienholders were not parties to the mortgage. K.S.A. 58-2223. Consequently, as to the mechanics’ lienholders, the mortgages are subsequent encumbrances to the commencement of the furnishing of labor, material, and supplies and should be subordinate to the mechanics’ liens. K.S.A. 60-1101.
The mechanics’ lienholders argue that K.S.A.. 58-2305 only grants preference over prior judgments against the purchaser and that mechanics’ liens are not prior judgments against the purchaser. We agree.
The mechanics’ lienholders also advance a policy argument. Noll, they contend, creates an incentive for purchase money mortgage holders not to record. Subsequent mortgagees and mechanics’ lienholders will operate at their peril. Purchase money mortgage holders may improve their collateral positions by allowing the owner to improve the property at the expense of the mechanics’ lienholders.
Diversified counters with the assertion that Noll is controlling and should be followed. Diversified argues that Noll is not in conflict with the three statutes relied on by the lienholders because a mechanic’s lien can only attach to the interest of the property owner. In the case at bar, the purchase money mortgage was valid as to the property owner, Wheatcraft, before the commencement of work by the mechanics’ lienholders. Diversified reasons the mechanics’ liens attached to the property subject to the purchase money mortgage.
Noll was decided by this court in 1933. Diversified contends that the legislative history of K.S.A. 58-2305 and K.S.A. 58-2223 indicates legislative approval of Noll. Diversified reasons that the legislature has failed to amend the statutes, leaving the impression that the legislature agrees with Noll. The City argues that Noll properly protects the expectations of purchase money lenders. Diversified and the City assert arguments that carry a degree of merit.
Diversified contends, in response to the lienholders’ policy argument, that: (1) the purchase money mortgage was recorded as soon as the legal description was corrected; and (2) the mortgage was not withheld from being recorded to gain an unfair advantage.
A mechanic’s lien attaches from the date work or construction commences. K.S.A. 60-1101. Lenexa State Bank & Trust Co. v. Dixon, 221 Kan. 238, 241, 559 P.2d 776 (1977). A mechanic’s lien is an encumbrance in the nature of a statutory mortgage founded upon consent under which the holder parts with valuable consideration. 221 Kan. at 241. A mechanic’s lien is superior to a mortgage where construction commences after execution of a mortgage but before the mortgage is recorded and where the mechanic’s lienholder had no actual notice of the prior mortgage. See Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 202, 336 P.2d 463 (1959) (applying G.S. 1949, 67-223, the predecessor to K.S.A. 58-2223). It is clear that a mechanic’s lien, that attaches before a nonpurchase money mortgage is recorded, has priority over the mortgage.
The question presented in the case at bar is whether a purchase money mortgage loses its priority to a mechanic’s lien that attaches after execution of the mortgage but before the purchase money mortgage is recorded. If the mechanics’ lienholders had no actual notice of the prior mortgage, the answer is, “Yes.”
We register the reversal of case precedent in the real property area with care and caution. We acknowledge judicial discomfort in our effort to reconcile the conflicting thrusts of the mortgage recording statute, K.S.A. 58-2223, and the mechanic’s lien preference statute, K.S.A. 60-1101, on one hand, and our decision in Noll on the other. We reason that the statutory signal of legislative intent indicated by K.S.A. 58-2223 and K.S.A. 60-1101 suggests that it is as much the duty of a purchase money mortgagee, as of any other mortgagee, to record promptly to preserve priority over innocent mechanics’ lienholders. The lender structuring a loan to be secured by a purchase money mortgage controls the release of funds to the borrower. A timely recording of the mortgage is not an onerous requirement for the protection of priority.
In Noll, Graham purchased two lots with the intentions of building houses on them. Graham borrowed the purchase money from an investment company and granted mortgages to secure the loan on July 9, 1931. The mortgages were recorded on July 10, 1931. Construction of the houses commenced on July 7, 1931, before the purchase money mortgages were recorded. We stated that a purchase money mortgage takes precedence over all other existing and subsequent claims and liens of every kind against the mortgagor and held that the investment company’s purchase money mortgages had priority over the mechanics’ liens.
This court first considered the priority of an unrecorded purchase money mortgage in Jackson v. Reid, 30 Kan. 10, 1 Pac. 308 (1883).
“By statute a mortgage for the purchase-money has preference over a prior judgment. (Comp-. Laws 1879, p. 555, § 4.) But the fact that a mortgage is given for purchase-money does not place it outside the provisions of the registry act, or give it a priority to which it would not be entitled under said act.” 30 Kan. at 14-15.
In Kuehn v. National Bank, 117 Kan. 717, 232 Pac. 1060 (1925), we qualified the rule stated in Jackson.
“The weight of authority seems to support the view that a purchase-money mortgage because of its character as such has priority over another, which is not defeated by the mere circumstance of the other reaching the register first, where the purchase-money mortgage is recorded without any unnecessary delay after its delivery. But if the holder of a purchase-money mortgage voluntarily withholds it from record and in the meantime money is lent to one having no notice of it, upon another mortgage, no reason is apparent why the mortgage first recorded should not have priority in accordance with the ordinary rules with regard to recording instruments affecting real estate.” 117 Kan. at 719..
Under Kuehn, the question is whether the purchase money mortgage was recorded without “any unnecessary delay.” Any delay in recording is a question of fact.
The stipulated facts in the case at bar provide that the deed and the mortgage were delivered to the Home State Bank on September 2, 1987. The mortgage was not recorded because it contained an incorrect legal description. A survey of the land was conducted and a corrected real estate mortgage was delivered to the Bank on December 22, 1987, and recorded on January 12, 1988.
We need not determine whether 4 months and 20 days constitutes unnecessary delay under the Kuehn rationale. Our overruling of Noll controls.
Real estate texts suggest the prevailing view is that a purchase money mortgage may lose priority under the recording acts. See Nelson & Whitman, Real Estate Finance Law § 9.2, pp.680-81 (2d ed. 1985); Kratovil & Werner, Modern Mortgage Law and Practice § 19.04, pp. 254-55 (2d ed. 1988). See Annot., 72 A.L.R. 1516, supplemented by Annot., 73 A.L.R.2d 1407, and Annot., 137 A.L.R. 571.
We have previously expressed doubt on the priority of an unrecorded purchase money mortgage over a mechanic’s lien. Home State Bank v. P.B. Hoidale Co., 239 Kan. 165, 718 P.2d 292 (1986). In Home State Bank, Save-Time Stores, Inc., mortgagor, executed three mortgages to Home State Bank, mortgagee, one in May 1982 and two in August 1982. The mortgages were not recorded until May 1983. Hoidale furnished materials and labor to Save-Time between November 1982 and January 1983 before the mortgages were recorded. Home State Bank filed an action to foreclose its mortgages in June 1983. The trial court found that two of the Home State Bank mortgages were purchase. money mortgages entitled to priority over Hoidale’s mechanic’s lien. Hoidale appealed. We held that Hoidale had waived its right to enforce its lien. We observed:
“Finally, we do not reach Hoidale’s contention that the Bank’s mortgages come within the provisions of the Kansas recording acts, K.S.A. 58-2222 and 58-2223, and being unrecorded for so many months do not have priority over subsequently arising and perfected mechanics’ liens. We have doubt about the priority of unrecorded mortgages, but we do not decide the issue.” 239 Kan. at 169.
We note that, under K.S.A. 58-2223, unrecorded mortgages would be valid against mechanics’ lienholders if the lienholders had actual notice of the mortgages. Neither Diversified nor the City asserts that the lienholders had actual notice of mortgages.
Estoppel
Shade and Younger, the mechanics’ lienholders, argue that Home State Bank and the City had knowledge of the improvements to be made on the property, which estops the mortgagees from asserting priority over the mechanics’ liens.
Neither the trial court nor the Court of Appeals specifically addressed this issue. Because of our disposition of the case, there is no need for us to do so.
The Diversified/City Agreement
The City argues that Diversified’s mortgage is not a purchase money mortgage because $29,400 of the Diversified mortgage was used to purchase a metal building which was moved tó and erected upon the land. Funds from the Diversified mortgage were used to purchase personal property, not real estate. The City contends that its purchase money mortgage should be given priority over Diversified’s mortgage.
Diversified counters with the observation that the real estate to be sold upon foreclosure consists of a metal building and 32 acres purchased for $29,400 and $30,000 respectively. Consequently, its mortgage is a purchase money mortgage.
We need not resolve the City’s contention. The City agreed to subordinate its mortgage to Diversified’s mortgage. The City’s purchase money mortgage' should not be prior to Diversified’s mortgage.
All parties intended that the City’s mortgage would be second to the mortgage in favor of Home State Bank (stipulation, para. 25). The City consented to this second position.
The trial court concluded it was “unable to find from the stipulated facts and the documents that the City of Gorham agreed to assign its purchase money rights and priorities to Home State Bank.”
We do not agree. The City agreed to subordinate its mortgage to Home State Bank. The City’s mortgage was included in the stipulation. The mortgage recites, in part, “This is a second real estate mortgage subject only to a first real estate mortgage to The Home State Bank, Russell, Kansas, as recorded in Book 114, at page 77, in the office of the Register of Deeds of Russell County, Kansas.” The City should not now be able to assert a priority over Home State Bank. The City’s agreement to subordinate its mortgage to Home State Bank was unqualified. The unqualified subordination agreement was sufficient to subordinate all of the City’s mortgage and not just the portion that was not a purchase money mortgage. Diversified’s mortgage is prior to all of the City’s mortgage. The City is bound by its stipulation. The City is precluded on appeal from contradicting the stipulation placed before the trial court. Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, Syl. ¶ 4, 662 P.2d 1195 (1983), disapproved on other grounds Wichita Sheet Metal Supply, Inc., v. Dahlstrom & Ferrell Constr. Co., 246 Kan. 557, 792 P.2d 1043 (1990).
We have acknowledged the priority of the mechanics’ lien-holders; consequently, it is necessary for us to address the status of M&V and Rohr, mechanics’ lienholders who did not appeal.
The trial court entered judgment for all mechanics’ lienholders in stated amounts and then assigned sequential priority. We hold that the nonappealing mechanics’ lienholders, M&V and Rohr, benefit from our ruling on priority.
The judgment priority rank order, assigned by the trial court, was as follows:
First, Diversified, $29,400; second, the City, $30,000; third, Shade, $27,982.13; fourth, Younger, $8,131; fifth, Rohr, $1,799.20; sixth, M&V, $1,458.66; seventh, the balance of the Diversified mortgage, $45,833; and eighth, the balance of the City’s mortgage, $170,000, all with interest as specified.
We assign first priority to the mechanics’ lienholders, including Rohr and M&V, on a pro rata basis. K.S.A. 60-1101.
We recognize the general rule that a nonappealing party is bound by the decision of the lower court. 5B C.J.S., Appeal and Error § 1952. We also recognize an exception and conclude that the exception is applicable to the case at bar. When there are multiple plaintiffs or defendants in an action and when the rights of all parties are interwoven, or when the ruling of the trial court, reversed on appeal, affects the rights of all parties, a nonappealing party is entitled to the benefit of the appellate holding. Shelter Mut. Ins. Co. v. Briggs, 793 S.W.2d 862, 864 (Mo. 1990); Kuhn v. Kuhn, 301 N.W.2d 148, 151 (N.D. 1981).
In the instant case, the interests of the nonappealing mechanics’ lienholders are so interwoven with those of Shade and Younger and with the mortgagees, Diversified and the City, that they are inseparable.
The trial court is directed to enter judgment: (1) for the four mechanics’ lienholders, a first priority, for the full amount of their liens with distribution to be made on a pro rata basis; (2) for Diversified, a second priority, for the full amount of its mortgage; and (3) for the City, a third priority, for the full amount of its mortgage.
The priority holding, announced herein, between a purchase money mortgagee and a mechanic’s lienholder who had no actual notice of the prior mortgage and whose lien attached after execution but before recording of the purchase money mortgage, shall apply prospectively from the date of this opinion.
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The opinion of the court was delivered by
Holmes, C.J.:
Gilbert Walbridge, Sr., appeals from an order of the district court requiring him to serve four months in the Cloud County jail as a condition of probation. The Court of Appeals affirmed the action of the trial court in State v. Walbridge, 14 Kan. App. 2d 483, 794 P.2d 316 (1990), and we granted the defendant’s petition for review. We reverse and remand the case for further proceedings.
Although the issue before us is strictly a question of law, we will briefly set forth the underlying facts. On May 8, 1989, the defendant and two of his friends severely beat the fifteen-year- old son of the defendant. At sentencing the court, in addressing the defendant, described the events and stated:
“Gilbert Walbridge, Jr. . . . was pummeled in a manner that this court can find inconceivable. Not only that, you couldn’t bother to do it yourself, you had to get a couple of buddies to help you beat your son to a pulp. There is nothing in God’s world that can justify what you did to this child.”
On May 12, 1989, the defendant was charged with aggravated battery (K.S.A. 21-3414) against his son, Gilbert Walbridge, Jr. On May 30, 1989, defendant signed a tender of guilty plea form which contained a plea agreement to the effect that defendant would plead guilty to attempted aggravated battery and the State would make no recommendations at sentencing. On June 1, 1989, the defendant pled guilty to the reduced charge and was sentenced to two to four years’ imprisonment, but then was placed on supervised probation for four years. The probation was subject to most of the conditions contained in K.S.A. 21-4610, and in addition the defendant was ordered to serve four months in the custody of the Sheriff of Cloud County, Kansas, in the county jail. It is this latter condition that is the subject of this appeal.
Defendant makes a number of arguments in support of his contention that the court does not have the authority to require a defendant to serve time in the county jail as a condition of probation in a felony case. We need only consider one of defendant’s arguments as we deem it dispositive of the issue before us. It is the position of the defendant that, based upon the applicable statutes, the terms probation and incarceration or confinement are not only mutually exclusive but that the statutory definition of probation precludes confinement in a county jail as a condition of probation.
A determination of the issue before us requires the application and construction of several statutes. K.S.A. 21-4602 defines probation as follows:
“21-4602. Definitions. As used in K.S.A. 21-4601 through 21-4621, and amendments thereto:
“(3) ‘Probation’ means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment, subject to conditions imposed by the court and subject to the supervision of the probation service of the court.” (Emphasis added.)
K.S.A. 1989 Supp. 21-4603 sets forth the dispositions a trial court may utilize when a person has been convicted of a crime. The statute provides in part:
“(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(a) commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
(b) impose the fine applicable to the offense;
(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(e) assign the defendant to a community correctional services program subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(f) assign the defendant to a conservation camp for a period not to exceed 180 days;
(g) assign the defendant to a house arrest program pursuant to K.S.A. 21-4603b and amendments thereto; or
(h) impose any appropriate combination of (a), (b), (c), (d), (e), (f), or (g).” (Emphasis added.)
K.S.A. 1989 Supp. 21-4603c, also effective July 1, 1989, omits assignment to a conservation camp and adds the following disposition: “(g) order the defendant to attend and satisfactorily complete an alcohol or drug education or training program as provided by subsection (3) of K.S.A. 21-4502 and amendments thereto.” The court’s authority to impose conditions is further detailed in K.S.A. 21-4610, which provides in part:
“(1) Except as required by subsection (4), nothing in this section shall be construed to limit the authority of the court to impose or modify any general or specific conditions of probation, suspension of sentence or assignment to a community correctional services program, except that the court shall condition any order granting probation, suspension of sentence or assignment to a community correctional services program on the defendant’s obedience of the laws of the United States, the state of Kansas and any other jurisdiction to the laws of which the defendant may be subject.
“(2) The court services officer or community correctional services officer may recommend, and the court may order, the imposition of any conditions of probation, suspension of sentence or assignment to a community correctional services program. . . .
“(3) The court may impose any conditions of probation, suspension of sentence or assignment to a community correctional services program that the court deems proper, including but not limited to requiring that the defendant: [conditions listed].” (Emphasis added.)
Confinement in a county jail is not one of the listed conditions.
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
We have consistently recognized that probation is a privilege granted by the sentencing court and that the court has broad power and authority in imposing conditions of probation so long as such conditions do not violate statutory law or constitute an abuse of discretion by the court. In State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986), we stated:
“Probation from serving a sentence is an act of grace by the sentencing judge and is granted as a privilege, not as a matter of right. The judge, when granting probation, has broad powers to impose conditions designed to serve the accused and the community.”
The Court of Appeals, in affirming the trial court’s action, relied upon the broad statutory and inherent powers of the trial court to determine and impose conditions of probation. It also relied upon several cases in which this court has impliedly recognized that a trial court may require a defendant to serve a specified length of time in the county jail as a condition of probation. In doing so, the Court of Appeals seized upon certain broad statements which, under the facts of the cases, did not directly involve the issue now before us. See State v. Fowler, 238 Kan. 326, 338, 710 P.2d 1268 (1985); In re McClane, 129 Kan. 739, 741, 284 Pac. 365 (1930). Nothing in the cases cited by the Court of Appeals specifically authorized or condoned confinement in the county jail as a condition of probation.
We also recognize that the practice of requiring a defendant to serve time in jail may well be a very appropriate condition of probation if it is within the power of the court to impose such. As stated by the Supreme Court of Nevada, “That a short and definite term of confinement imposed as a condition of probation may have a substantial rehabilitative effect in certain cases has come to be widely recognized.” Creps v. State, 94 Nev. 351, 363, 581 P.2d 842, cert. denied 439 U.S. 981 (1978). We note further that the learned trial judge in this case was following a practice and procedure which has been used in Kansas for many years. See Bullock, Decisions, Decisions, Decisions, 17 Washburn L.J. 26, 26-27 (1977).
Regardless of the reasoning of the Court of Appeals and past practice, we are of the opinion that there is an irreconcilable conflict between the statutory definition of probation and incarceration in the county jail as a condition of that probation. As pointed out earlier, K.S.A. 21-4602(3) defines probation as a procedure under which a defendant is released “without imprisonment.” There can be no doubt that confinement in a county jail constitutes imprisonment. Black’s Law Dictionary 757 (6th ed. 1990).
In People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970), the trial court ordered the defendant to serve 90 days in the county jail as a condition of probation. In rejecting the trial court’s authority to impose such a condition, the Colorado Supreme Court stated:
“By its very nature and definition, probation means and signifies liberty under certain imposed conditions. Its basic purpose is to provide a program which offers an offender the opportunity to rehabilitate himself without confinement. This is to be accomplished under the tutelage of a probation officer and under the continuing power of the court to impose a sentence for his original offense in the event he abuses this opportunity and violates the conditions of probation. See the discussion of probation in Roberts v. United States, 320 U.S. 264, 64 S. Ct. 113, 88 L. Ed. 41; Yates v. United States, 308 F.2d 737.
“When an accused is granted probation, he is also granted his liberty and freedom from confinement in a jail or penitentiary. Unless there is specific statutory authority to the contrary, a trial court may not on the one hand grant probation and on the other hand impose institutional confinement or a jail sentence as a condition of that probation. Trial courts have a wide discretion in imposing certain conditions upon a probationer, but not included within its discretionary power is the authority to impose jail confinement as a condition.” 173 Colo, at 196.
K.S.A. 21-4602(3) further provides that the definition of probation shall be applicable to K.S.A. 21-4601 through 21-4621 and all amendments thereto. We agree with the defendant that the definition of probation as being released “without imprisonment” is mutually exclusive with confinement in a county jail. The specific definitional statute, which must be read as a part of the statutes giving the court its powers of probation, precludes a requirement that a defendant serve time in the county jail as a condition of probation. The Court of Appeals apparently concluded the broad power given the trial court in K.S.A. 21-4610 controlled over the specific definitional language of K.S.A. 21-4602(3), or the term “imprisonment” means confinement in the custody of the Secretary of Corrections. We reach the opposite conclusions. Any reference to probation, and the power to invoke it, in K.S.A. 21-4610 must be read in light of the language in K.S.A. 21-4602(3), which expressly applies to K.S.A. 21-4610. The provision “without imprisonment” is clear and unequivocal. “[W]ords in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute.” Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983).
While we recognize the beneficial effect a period of time in the county jail may have upon some defendants, it is for the legislature to provide for such a procedure and not the courts. Having determined that K.S.A. 21-4602 is controlling upon the issue before us, there is no need to consider the defendant’s other arguments.
One final determination remains, however. The defendant urges that we hold the condition of jail time to be illegal and continue the defendant’s probation on the other terms and conditions which were properly imposed by the trial court. This we will not do. As we said in State v. Adams, 218 Kan. 495, 505, 545 P.2d 1134 (1976), “[T]he granting of probation is exclusively a function of the trial court.” It is for the trial court to determine whether this defendant, who brutally participated in the beating of his young son, should be placed on probation given the limitation imposed by this opinion.
The judgments of the Court of Appeals and the district court are reversed, and the case is remanded for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the defendant, State Farm Mutual Automobile Insurance Company (State Farm Mutual), from a judgment awarding $99,621.55 in underinsured motorist benefits to Robert Harding (defendant/cross-claim plaintiff). Robert Harding cross-appeals from the judgment of the district court denying attorney fees as not appropriate in an underinsured motorist action.
UNDERLYING AUTOMOBILE ACCIDENT
The underlying facts were not disputed by the parties. Kevin Gordon, a 16-year-old, ran a stop sign and collided with a truck driven by Orville West. West’s wife, Willa West, was a passenger in his vehicle and received personal injuries. West’s truck collided with a vehicle driven by Harding. As a result of the collision, Harding received serious injuries to his right ankle and left hip, causing permanent disability. In the future, he will probably need to have a fusion of his ankle and a hip replacement. At the time of the accident, Harding was acting within the scope of his employment as a laborer with a roofing crew and, therefore, received workers compensation benefits through State Farm Fire & Casualty (State Farm Casualty).
DISTRICT COURT PROCEEDINGS
Gordon’s insurer, Allied Mutual Insurance Company (Allied), filed an interpleader action against all the parties who might have claims against Gordon and tendered the policy liability limit of $60,000 into court for apportionment among the parties. Harding answered the interpleader petition and cross-claimed against Gordon and West, alleging their negligence. Harding also filed a cross-claim against his automobile insurer, State Farm Mutual, alleging that under his policy he was entitled to receive under-insured motorist benefits “in an amount equal to $100,000 less the amount of personal injury damages he received from Kevin Gordon.”
State Farm Mutual answered the interpleader, alleging that State Farm Casualty had a subrogation interest because it provided workers compensation benefits and, therefore, “is subrogated to all or part of any recovery which Mr. Harding may have as a result of this accident.” An amended petition was filed in the interpleader action, joining State Farm Casualty under its subrogation lien. State Farm Casualty filed a cross-claim against Gordon and West, claiming a subrogation lien on all recovery by Harding from Allied or any defendant pursuant to K.S.A. 1990 Supp. 44-504(b). This statute provides that if an injured worker who has received workers compensation benefits recovers
“by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien.” K.S.A. 1990 Supp. 44-504(b).
Section III of Harding’s policy with State Farm Mutual concerning uninsured motorist coverage provides: “We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” The definition of uninsured motor vehicle includes an “underinsured” vehicle, which is a motor vehicle that is insured for bodily injury liability at the time of the accident, but has a liability limit of less than the limit the insured carries for uninsured motor vehicle coverage under this State Farm Mutual policy. Because Harding’s policy provided a $100,000 uninsured motor vehicle liability limit for each person, while Gordon’s policy had a liability limit of $60,000, Gordon is an underinsured motorist.
Under the limits of liability pertaining to underinsured vehicles, the policy provides that the amount of coverage for each person is “the amount of coverage for all damages due to bodily injury to one person.” The policy then states:
“b. The maximum total amount payable to all insureds is the difference between the ‘each accident’ limit of liability of this coverage and the amount paid to all insureds by or for any person or organization who is or may be held legally liable for the bodily injuries. “Subject to the above, the most we pay any one insured is the lesser of:
“(1) the difference between the ‘each person’ limit of liability of this coverage and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury, or
“(2) the difference between the amount of the insured’s damages for bodily injury and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury.”
An additional limitation on liability for uninsured/underinsured motorists provides:
“3. Any amount payable under this coverage shall be reduced by any amount paid or payable for the same damages to or for the insured: “a. for bodily injury under the liability coverage; or “b. under any worker’s compensation law.”
The policy lists several circumstances when coverage is excluded, including the following:
“THERE IS NO COVERAGE:
I. FOR BODILY INJURY TO ANY INSUBED WHO OR ON WHOSE REHALF ANY PERSON SHALL ACCEPT A SETTLEMENT OR SECURE A JUDGMENT THAT PREJUDICES OUR RIGHT TO RECOVER OUR PAYMENT. This does not apply if we have given our written consent to the settlement agreement or judgment.
4. TO THE EXTENT IT RENEFITS:
a. ANY WORKER’S COMPENSATION INSURANCE COMPANY.”
If an underinsured motorist coverage insurer pays benefits under such coverage, the insurer is subrogated to any cause of action in tort that the person receiving the benefits may have “against any other person or organization legally responsible for the bodily injury or death because of which such payment is made.” K.S.A. 40-287. This statute further provides:
“[T]he insurer shall be subrogated, to the extent of such payment, to the proceeds of any settlement or judgment that may thereafter result from the exercise of any rights of recovery of such person against any person or organization legally responsible for said bodily injury or death for which payment is made by the insurer.” K.S.A. 40-287.
The procedure for enforcing these subrogation rights is set forth at K.S.A. 1990 Supp. 40-284®, as follows: “If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured.” The insurer has 60 days to substitute its payment for that of the tentative settlement amount to be subrogated to the insured’s right to recover such payment and any settlement. If the insurer fails to pay within 60 days, then the insurer has no right to subrogation for any amount paid under the underinsured motorist coverage. K.S.A. 1990 Supp. 40-284®.
To comply with 40-284(f), counsel for Harding mailed a certified demand letter, dated September 24, 1987, informing State Farm Mutual that Allied had tendered its policy limit of $60,000 to the court, amounting to a tentative offer of policy limits and triggering the 60-day time limit to allow the tentative settlement or substitute payment under 40-284(f). Harding mailed State Farm Mutual two additional certified demand letters. State Farm Mutual did not intervene in the interpleader action and did not substitute payment of any amount to Harding. On June 6, 1988, defendant Gordon filed an amended offer consenting to judgment under K.S.A. 60-2002(b). Gordon offered to allow judgment to be entered in favor of Harding and State Farm Casualty against Gordon for $180,000. This figure represented the itemized estimate of $200,000 total compensatory damages, with 90% fault attributed to Gordon and 10% to West. This offer was accepted by Harding on June 6, 1988.
By letter dated June 8, 1988, Harding informed State Farm Mutual of a settlement agreement with Farmers Insurance Company (Farmers), Orville West’s insurer, to pay Harding a $20,000 liability payment and to waive West’s and Farmers’ interest in the interpled $60,000. The letter further advised State Farm Mutual that a hearing on the offer of judgment and its acceptance was scheduled for June 17, 1988. State Farm Mutual responded in a letter dated June 15, 1988, noting that it chose not to intervene in the interpleader action and did not approve the proposed settlement, but believed its approval was not necessary for entry of the judgment in favor of Harding against Gordon.
Harding accepted the $20,000 settlement offer from West and his insurer, Farmers. As part of the settlement, West and Farmers disclaimed any interest in the $60,000 interpled by Allied, and Harding released his claims against West and Farmers, who were dismissed from the suit with prejudice. Farmers issued its check in the amount of $20,000 payable to State Farm Casualty, showing Harding as claimant.
On June 16, 1988, a hearing was conducted concerning the workers compensation settlement between Harding and State Farm Casualty. This settlement required the $20,000 received from West and Farmers, and the amount interpled by Allied on behalf of Gordon, to be paid to State Farm Casualty under its subrogation lien.
The hearing on the acceptance of the offer of judgment between Gordon and Harding occurred on June 17, 1988. At this hearing, the court entered judgment against Gordon in favor of Harding.
On July 1, 1988, the court ordered the interpled funds of $60,000 and interest paid to State Farm Casualty. Counsel for State Farm Mutual received notice of the hearing but did not attend. On July 6, 1988, the journal entry of dismissal of Harding’s claims against West was filed. On July 7, 1988, the clerk of the district court, using a cashier’s check, paid the interpled funds and interest totaling $62,267.81 directly to State Farm Casualty.
A pretrial statement for the bench trial between Harding and State Farm Mutual designated the following issues:
1. How should State Farm Mutual’s policy be construed regarding underinsured motorist coverage?
2. Was Harding “paid” $60,000 and $20,000 from Gordon and West, respectively?
3. Did Harding lose his claim to underinsured motorist benefits by settlement with West without the knowledge or consent of State Farm Mutual?
Harding contended that he was not “paid” $80,000 from Gordon and West because those payments went directly to State Farm Casualty under its workers compensation subrogation lien; that he was entitled to underinsured motorist benefits in the full amount of $100,000; and that the workers compensation payment to State Farm Casualty was not for the “same damages” as he sought to have paid by underinsured motorist coverage. State Farm Mutual contended Harding did receive $80,000 from Gordon and West before passing that money to State Farm Casualty, which should reduce the amount of underinsured motorist benefits recoverable by Harding to $20,000. Alternatively, State Farm Mutual alleged that Harding could not recover any underinsured motorist benefits because Harding failed to properly notify State Farm Mutual of his settlement with West, thus forfeiting his right to those benefits.
DISTRICT COURT DECISION
The district court made 32 findings of fact and 21 conclusions of law, including the following:
“1. At the time of the West/Farmers settlement, State Farm Mutual had made no uninsured or underinsured motorist payment, and thus had no subrogation rights. [Citation omitted.]
“3. State Farm Mutual waived its subrogation rights against Kevin S. Gordon by failing to respond to the various K.S.A. 40-284(f) demands made by Robert L. Harding.
“10. That a subrogated underinsured insurer could collect liability benefits owed the insured for separate damages owed by an insured person other than the underinsured motorist runs contrary to the purpose of underinsured motorist insurance and the public policy of the state of Kansas.
“11. . . . Gordon is the legally responsible person whose negligence caused ‘such payment’ to be made and Kevin S. Gordon is the sole person against whom subrogation rights may exist.
“15. State Farm Mutual Automobile Insurance Company’s ‘consent-to-settle’ exclusion is not authorized by K.S.A. 40-284(e)(5) and is unenforceable as an unauthorized limitation of the mandated underinsured motorist coverage. [Citations omitted.]
“16. After receiving notice of the pending settlement with [West and Farmers,] June 8, 1988, . . . State Farm Mutual raised no claim to UIM subrogation rights to the West/Farmers tort settlement, but rather on June 21, 1988, . . . caused a change in the settlement documents and attempted to cause a change in the manner of payment of proceeds from the settlements and judgments. This conduct was ‘written consent’ to the West settlement and constitutes a waiver of any claim that the settlement voided the underinsured motorist coverage under its ‘consent-to-settle’ exclusion. State Farm Mutual is by its conduct estopped from claiming a forfeiture of underinsured motorist benefits.
“17. After notice was given to State Farm Mutual under Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199, State Farm Mutual had the option to intervene which they chose not to exercise. Having not intervened, State Farm Mutual Automobile Insurance Company is bound by the settlements made by Robert L. Harding.
“[19.] Roth the Gordon interpled funds and interest, $64,267.81, and the West settlement funds, $20,000.00, were ‘paid’ to State Farm Casualty and no money was ‘paid’ to Robert L. Harding, the defined ‘insured.’ ”
The court concluded that $99,621.55 of Harding’s damages were not “the same damages” as those paid under workers compensation benefits based upon the following calculations:
“1. Pain and suffering, disabilities (other than wage loss), disfigurement, and mental anguish $67,522.07
“2. The reasonable expenses of necessary medical care, hospitalization and treatment received to date 20,692.88
“3. The reasonable expense of necessary medical care, hospitalization and treatment reasonably certain to be needed in the future Ankle arthrodesis (fusion)
Surgical fee 1,200.00
Hospital charges 5,000.00
Total hip replacement
Surgical fee 2,750.00
Hospital charges 10,000.00
18,950.00
“4. Loss of time or income to date by reason of your disabilities to date
67 weeks at $264.60 17,728.20
“5. Loss of time or income which you are reasonably certain to lose in the future 19 weeks (6-6 to 10-16-88)
260 weeks (5 years)
279 weeks at $264.60 73,823.40
Less workers comp, past medical -20,095.00
Less workers compensation recovery (TT) -7,520.00
Less workers compensation recovery for TT and future medical -71,480.00
Total Non-duplicative Personal Injury Damages $99,621.55”
The court entered judgment in favor of Harding “for $99,621.55, plus interest, attorney fees, and cost” but, one paragraph later, stated that the motion for attorney fees is “disallowed because attorney fees are not appropriate in an underinsured motorist case.”
COURT OF APPEALS DECISION
The Court of Appeals rejected State Farm Mutual’s argument that the findings of fact were inadequate, noting that the district court’s findings were sufficient to apprise the parties of its reasons for reaching the result it did, as required by K.S.A. 60-252(a). The Court of Appeals also rejected State Farm Mutual’s argument that the district court decided issues not contained in the pretrial order when it concluded that State Farm Mutual waived its subrogation rights against Gordon by failing to respond to the K.S.A. 1990 Supp. 40-284(f) demands by Harding. The application of 40-284(f) was specifically listed as an issue in the pretrial order and the parties had submitted the entire case for a decision. The Court of Appeals also rejected State Farm Mutual’s argument that the district court should not have allowed prejudgment interest or considered the issue of attorney fees. The Court of Appeals found that the district court did not abuse its discretion in awarding prejudgment interest from the date judgment was entered on the unliquidated claim against Gordon. Neither Harding nor State Farm Mutual sought review of the above issues, and we find the above disposition by the Court of Appeals to be correct and it is affirmed.
The Court of Appeals then considered State Farm Mutual’s claim that the district court erred in interpreting its insurance policy to allow underinsured motorist coverage without deducting the amounts paid to State Farm Casualty from Gordon and West. The court interpreted the policy to mean that “the insured is entitled to underinsured motorist benefits of $100,000 less any money paid to the insured by any person legally liable for the bodily injury the insured sustained in the accident.” The Court of Appeals rejected Harding’s argument that he did not receive the $80,000 because it was paid to State Farm Casualty under its subrogation lien, concluding that, in this case, State Farm Casualty “stepped into Harding’s shoes to accept payment from the tortfeasors.” The court found that payment to State Farm Casualty was páyment to Harding. Because the tortfeasors owed a debt to Harding and Harding allowed the payment to go to State Farm Casualty, the debt to Harding was erased with the payment.
Having concluded that the $80,000 was “paid to” Harding, the court also found that the payment was for the “same damages” payable under State Farm Mutual’s uninsured motorist coverage. The court reasoned that one accident occurred, and Harding sought to recover from three different groups: his employer for workers compensation benefits, the tortfeasors for damages, and his insurance company for uninsured motorist coverage. The Court of Appeals found no reason to conclude that the workers compensation benefits were not paid for the same damages as those available from traditional tort recoveries. Therefore, under the terms of the policy, Harding was paid $80,000 for the same damages, even though those payments were directed to State Farm Casualty. The Court of Appeals concluded that Harding was entitled to the difference between the $80,000 payment and his policy limit of $100,000, leaving a balance of $20,000. This decision reversed the finding of the district court on this issue.
Third, the Court of Appeals agreed with the district court’s finding that Harding’s settlement with West did not bar recovery of underinsured motorist coverage. Discussing this court’s decision in Bartee v. R.T.C. Transportation, Inc., 245 Kan. 499, 781 P.2d 1084 (1989), the Court of Appeals concluded that the tortfeasor causing State Farm Mutual to be liable for underinsured motorist coverage was Gordon, not West. The parties agreed that Gordon was 90% at fault in the accident. Therefore, the settlement with West did not interfere with the rights of State Farm Mutual to obtain subrogation from the party responsible for the damages State Farm Mutual paid. The Court of Appeals pointed out that the district court determined that the total damages suffered by Harding was $200,000, with fault apportioned at 90% to Gordon and 10% to West. This determination was accepted by the district court. Because the $20,000 paid by Farmers on behalf of West represents his total liability, State Farm Mutual would not be entitled to additional recovery from West and, therefore, was not prejudiced by the settlement.
Finally, the Court of Appeals considered whether the district court erred in denying attorney fees, which were requested by Harding before the district court and now on appeal. The Court of Appeals correctly pointed out that the district court erred in concluding that attorney fees are not appropriate in an under-insured motorist case. No statute prohibits the awarding of attorney fees in underinsured motorist insurance cases, and therefore attorney fees are available under K.S.A. 40-256 in an appropriate case.
The Court of Appeals found, however, that State Farm Mutual’s denial of payment was not “without just cause or excuse,” and therefore the district court did not err in failing to grant attorney fees. Even though the district court relied upon the wrong ground or assigned an erroneous reason for its decision, the Court of Appeals concluded that the judgment of the district court was correct and should be upheld. The Court of Appeals also concluded that a good faith controversy existed about State Farm Mutual’s liability on the appeal and denied Harding’s request for attorney fees during the appeal.
We first consider whether the money that was paid by a tortfeasor’s insurer under a workers compensation lien should be deducted from the insured’s underinsured motorist coverage policy limits. Under the policy in question here, State Farm Mutual promises to pay damages “for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” As defined by the State Farm Mutual policy, Gordon is an underinsured motorist and the uninsured motor vehicle coverage applies in this case. This was the finding reached by the district court and the Court of Appeals and is not contested in this appeal.
Where the motor vehicle is underinsured, the State Farm Mutual policy provides that, subject to the maximum total amount payable to all insureds, the most State Farm Mutual will pay to any one insured is the lesser of:
“(1) the difference between the ‘each person’ limit of liability of this coverage and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury, or
“(2) the difference between the amount of the insured’s damages for bodily injury and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury.”
The next provision of the policy provides that any amount payable under this coverage “shall be reduced by any amount paid or payable for the same damages to or for the insured . . . under any worker’s compensation law.”
Harding argues that the State Farm Mutual policy could have provided that its liability limitation would apply to any amount recovered from a tortfeasor; instead, subsection 2(b) of the limits of liability states that the amount of coverage would be reduced by an amount paid under workers compensation law applied to “the same damages to or for the insured.” Harding argues that the term “paid to the insured” requires Harding to actually receive money, which admittedly did not occur because the sub rogation lien of State Farm Casualty required that the amounts be paid directly to it. We do not agree.
It is undisputed that State Farm Casualty claimed the money under its workers compensation subrogation lien because of workers compensation benefits paid to Harding. The Court of Appeals recognized that the extent and nature of subrogation rights of an employer under the Workers Compensation Act are matters for legislative determination. (Quoting Negley v. Massey Ferguson, Inc., 229 Kan. 465, 469, 625 P.2d 472 [1981].) The statute in question, K.S.A. 1990 Supp. 44-504(a), provides that an injured worker who has received workers compensation benefits under circumstances creating a legal liability against a person other than the employer or any person in the same employ has the right to “take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.” K.S.A. 1990 Supp. 44-504 further provides:
“(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a hen therefor against such recovery and the employer may intervene in any action to protect and enforce such lien. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker’s dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid.”
In reviewing this statute, the Court of Appeals notes that it repeatedly refers to the phrase “such recovery,” meaning the tort recovery available to the injured worker. By construing this statute to give the words their natural and ordinary meaning in common usage, the Court of Appeals concludes that subsection (b) specifies that no right of subrogation arises until a worker recovers from a tortfeasor. Thus, the court reasons that Harding had to recover the money from tortfeasors Gordon and West before State Farm Casualty’s subrogation right could attach and be enforced against the funds. The Court of Appeals states:
“Since Harding acknowledges State Farm Casualty had a valid subrogation claim to the $80,000 paid on his behalf, he necessarily must acknowledge that he recovered the $80,000 from the tortfeasors. If we were to accept Harding’s position that he was never ‘paid’ the $80,000, it would be the same as saying Harding never recovered $80,000 and the tortfeasors’ insurance companies paid a total of $80,000 to State Farm Casualty gratuitously.”
The Court of Appeals states that Harding’s counsel clearly considered the settlement a two-step procedure, with Harding collecting the recovery and using this to satisfy the subrogation claim. Subrogation contemplates one person’s stepping into the shoes of another, and here, State Farm Casualty stepped into Harding’s shoes to accept payment from the tortfeasors. State Farm Casualty took over the debt that was owed to Harding which, in turn, erased Harding’s debt to State Farm Casualty.
In addition, the policy limits the liability for bodily injury by reducing an amount payable under the coverage for uninsured motor vehicles by an amount paid or payable for the same damages “to or for the insured.” This language indicates the coverage is to be reduced whether the amount is paid directly to the insured or payable on behalf of the insured to a third party. The same language is used throughout the section limiting liability under the uninsured motor vehicle coverage section. Further, it was Harding who negotiated and accepted the settlements with State Farm Casualty and the offer of judgment with Gordon and West that required the $60,000 interpled to be paid to State Farm Casualty.
The Court of Appeals also rejected the district court’s conclusion that the workers compensation payments were for different damages. Instead of considering the total amount of damages suffered by Harding, which would be subject to compensation by both workers compensation and underinsured motorist coverage, the Court of Appeals viewed the events as involving one accident and applied the recovery under workers compensation directly against the underinsured motorist coverage. The Court of Appeals noted that Harding involved three groups in his effort to collect these damages: his employer for workers compensation damages; the tortfeasors for damages; and his own insurance company for additional damages. It saw no logical reason to conclude that the benefits were not for the same damages, and found that the $80,000 paid to Harding was for the same damages as those he was entitled to receive under the underinsured motorist coverage. We agree with the Court of Appeals as to the $60,000 interpled by Gordon and conclude that amount should be set off directly against the underinsured motorist coverage available to Harding as the insured.
We next determine if the limitation of coverage provision, which reduces underinsured motorist coverage by all sums paid by any person who is or may be legally liable for bodily injury, is enforceable as to the $20,000 paid by West’s insurer. The parties agree that Gordon was the tortfeasor who caused this automobile accident. His vehicle collided with West’s vehicle which, in turn, collided with Harding’s. West had $50,000 liability coverage, but Harding’s damages attributable to West were $20,000. West paid Harding $20,000 and thus fully compensated Harding for any damages for which West was liable.
The problem created by the Court of Appeals’ decision is well illustrated by the facts of this case. Harding obtained a judgment against Gordon for $180,000. Harding received approximately $60,000 in damages from Gordon, resulting in an outstanding judgment of approximately $120,000. This uncompensated judgment against Gordon, who was an underinsured motorist, qualifies Harding for benefits under 40-284(b) regardless of the $20,000 payment from West. Harding hypothesizes an even more dramatic situation by slightly modifying the facts. If recovery from a fully insured tortfeasor, such as West, had been $40,000 or more, and if Harding continued to receive $60,000 from Gordon, then Harding would not be allowed to recover any underinsured motorist benefits even though his uncompensated judgment against the underinsured motorist Gordon of $120,000 qualified him for benefits under 40-284(b).
Harding asserts that this court’s recent decision in Stewart v. Capps, 247 Kan. 549, 802 P.2d 1226 (1990), addresses this issue. Capps’ insurance policy had limits of $25,000 per person with a limit of $50,000 per accident under the bodily injury coverage, and similar limits of $25,000 per person with $50,000 per accident policy limits for the uninsured motorist coverage. The insurance company sought to set off the payment of $25,000 for Capps’ liability against the amount of compensation due for the negligence of the uninsured motorist under the provisions of the policy that stated: “Any payment under this [uninsured motorist] coverage to or for a covered person will reduce any amount that person is entitled to recover under the Liability Coverage of this policy.” The language in the liability and uninsured motorist coverage sections of the contract were similar. Reversing the trial court, the Court of Appeals found the setoff provision in the liability and uninsured motorist sections of the policy void and unenforceable, in violation of 40-284(e), and against public policy. In Stewart, this court stated:
“The statutory provisions of K.S.A. 40-284(e), which govern the terms of the automobile policy, are incorporated into the coverage and preempt any terms or clause of a policy that have a contrary meaning. See Simpson v. Farmers Ins. Co., 225 Kan. 508, 511, 592 P.2d 445 (1979). K.S.A. 40-284 is to be liberally construed to carry out its remedial objectives to provide financial protection to the named insured for injuries caused by a negligent uninsured motorist. Any term of an insurance policy that limits the statutorily required uninsured motorist coverage must be strictly construed.” 247 Kan. at 555.
In Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354 (1976), this court struck down a provision of an insurance policy that attempted to reduce uninsured motorist coverage by the amount of the recovery of any workers compensation benefits, finding that it was an unauthorized attempt to limit or dilute the statutorily mandated coverage. After this decision, the legislature amended 40-284(e) to allow reduction of uninsured motorist coverage by workers compensation benefits. Following the rationale in Van Hoozer, this court in Stewart concluded that a setoff provision must be an exclusion under 40-284(e) to be valid and enforceable. 247 Kan. at 555. Because the setoff provision contained in the policy was not an enumerated limitation of 40-284(e), it was unenforceable. This court stated:
“Where uninsured motorist coverage in an automobile liability policy is purchased pursuant to K.S.A. 40-284, an injured covered passenger has available the total of the liability and uninsured motorist coverage limits in the event of an accident involving his or her negligent driver and a negligent uninsured driver. The injured covered passenger may recover proven dam ages up to the combined limits of the liability and uninsured motorist coverages.” 247 Kan. at 556.
Uninsured motorist coverage was developed to protect non-negligent motorists where the tortfeasor is uninsured. Van Hoozer, 219 Kan. at 600. Typically, the policy provides rights against a motorist’s insurance company equal to those against an uninsured tortfeasor. 219 Kan. at 600. Permissible exclusions and limitations are listed in K.S.A. 1990 Supp. 40-284(e). Attempts by insurance policy provisions to otherwise condition, limit, or dilute the unqualified uninsured motorist coverage mandated by statute are void and of no effect. Van Hoozer, 219 Kan. at 607; Clayton v. Allied Mutual Cas. Co., 212 Kan. 640, 647, 512 P.2d 507, reh. denied 213 Kan. 84, 515 P.2d 1115 (1973).
Harding argues that neither the statutory definition of under-insured motorist contained in 40-284(b) nor the limitations or exclusions listed in 40-284(e) permit the provision in State Farm Mutual’s policy that reduces the amount payable to an insured by “the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury.”
This court described the purpose of mandating the availability of uninsured motorist coverage in Winner v. Ratzlaff, 211 Kan. 59, 63-64, 505 P.2d 606 (1973), as follows:
“The purpose of legislation mandating the offer of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages [citation omitted]. As remedial legislation it should be liberally construed to provide the intended protection. ”
In support of his argument, Harding asserts that K.S.A. 1990 Supp. 60-258a makes each tortfeasor responsible for his share of damages based on a proportion of fault. Because joint and several liability no longer applies to negligence in Kansas, defendants cannot seek contribution or indemnification from other tortfeasors. Because each tortfeasor is liable for those total damages caused by his percentage of comparative fault, the liability for damages owed by one tortfeasor does not affect payment by another. Be cause the tortfeasor’s obligations are separate, Harding argues that the application and reduction of underinsured motorist benefits should also be applied separately.
In its opinion, the Court of Appeals ruled that the Harding settlement with West’s insurance carrier did not violate State Farm Mutual’s policy that prohibited settlement, noting that Gordon was the tortfeasor causing State Farm Mutual to be liable for underinsured motorist coverage. The subrogation provision of 40-284 gave State Farm Mutual the right to recoup payments made on underinsured motorist coverage from parties responsible for the damages State Farm Mutual paid, which was Gordon. Harding argues that, although the Court of Appeals recognized and applied the concept correctly in concluding that settlement with West did not forfeit Harding’s right to recover underinsured motorist coverage, it failed to use that concept when it reduced underinsured motorist benefits by the amount of West’s settlement. According to Harding, only payments by Gordon’s liability carrier qualified to reduce underinsured motorist benefits. Harding’s underinsured motorist coverage limit is equal to his liability limit of $100,000. K.S.A. 1990 Supp. 40-284(b). The only permissible exclusion or limitation to this coverage is an exclusion listed in 40-284(e) or a reduction by “the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” K.S.A. 1990 Supp. 40-284(b). None of those limitations applies to payments made by another fully insured tortfeasor.
State Farm Mutual argues that this case is both factually and legally dissimilar to Stewart because the reduction attempted in Stewart involved payment of sums under two provisions, liability coverage and uninsured motorist coverage, of the same policy. In contrast, this case involves an insured’s attempt to collect underinsured motorist benefits from his carrier after collecting sums from two underinsured drivers of other automobiles. State Farm Mutual asserts that its policy here is not “limiting” but is actually less restrictive than it could be under the statute. K.S.A. 1990 Supp. 40-284(b) requires underinsured motorist coverage “to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” Gordon had a limit of $60,000; West had a $50,000 limit; Harding had a limit of $100,000. State Farm Mutual asserts that because Gordon’s and West’s combined underinsured motorist limits were $110,000, Harding’s limit of $100,000 did not “exceed” the limits of coverage available to him from the other drivers’ policies and the State Farm Mutual policy was not required to provide coverage. The problem with this argument is that the language of 40-284(b) does not indicate that the policies of the other drivers should be combined to determine the amount of liability. Instead, both 40-284(b) and the policy use the singular “owner or operator” when referring to the driver of the other automobile. This suggests that the individual policies should be compared separately with the underinsured motorist coverage.
The comparative fault statute abolished joint and several liability. K.S.A. 1990 Supp. 60-258a. Each tortfeasor is responsible only for his percentage of comparative fault and not for the comparative fault of other joint tortfeasors who are not his agent. Teepak, Inc. v. Learned, 237 Kan. 320, 325-26, 699 P.2d 35 (1985).
The right to collect uninsured motorist benefits is based on the fault of the uninsured motorist without regard to negligence and liability of others. K.S.A. 1990 Supp. 40-284(a) specifically requires automobile insurance liability policies to provide coverage equal to liability coverage that the insured “shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle . . . sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicles, or providing for such payment irrespective of legal liability of the insured or any other person or organization.” The question of joint and several setoff was not an issue raised below because the district court concluded all monies paid by the two tortfeasors’ liability carriers were paid to State Farm Casualty and not set off against underinsured coverage. The judgment of $180,000 against Gordon, the underinsured motorist, was not altered by payment of $20,000 for separate damages caused by West, a fully insured tortfeasor.
In contrast the Court of Appeals, following the language of the policy, in effect, applied joint and several liability rules to reduce the $100,000 underinsured motorist coverage by payments by “any person or organization who is or may be held legally liable for the bodily injury.” The Court of Appeals, interpreting the policy, stated that “[t]he clear meaning of the policy language is that the insured is entitled to underinsured motorist benefits of $100,000 less any money paid to the insured by any person legally fiable for the bodily injury the insured sustained in the accident.” The Court of Appeals then reduced the amount of liability available to each person, $100,000, by the amount paid by any person (here, Gordon and West), $80,000, to conclude that the net benefits due were $20,000.
Pursuant to K.S.A. 1990 Supp. 40-284(b), the State Farm Mutual policy was required as a minimum coverage to provide the amount of damages for bodily injury or death that Harding was legally entitled to receive from Gordon ($180,000) to the extent that State Farm coverage ($100,000) exceeds the limits of the bodily injury coverage carried by Gordon ($60,000). This statute requires State Farm Mutual to provide underinsured motorist coverage of no less than the difference between Harding’s policy limits of $100,000 and Gordon’s policy limits of $60,000. Here, the difference is $40,000. The provision of State Farm Mutual’s policy that requires reduction of monies paid by the other fully insured tortfeasor, West, violates the mandatory minimum underinsured motorist coverage that must be included in the policy.
Stewart v. Capps is not directly on point; however, the central issue here is the ability of insurance policy provisions to condition, limit, or dilute the unqualified underinsured motorist coverage mandated by 40-284. This court has repeatedly held that insurance policy provisions that are not authorized by statute but which purport to condition, limit, or dilute the broad, unqualified underinsured motorist coverage mandated by K.S.A. 1990 Supp. 40-284 are void and unenforceable. The setoff provision here attempts to limit the underinsured motorist coverage mandated by 40-284 by deducting the amount received from other persons or organizations who may be legally liable for the bodily injury regardless of whether they trigger the underinsured motorist coverage at issue in this case. Such a setoff provision is not listed within the exclusions or limitations of coverage found at 40-284(e). Therefore, this limitation is void and unenforceable. The Court of Appeals’ decision on this issue is reversed.
Harding next argues that the Court of Appeals improperly deducted the amount of itemized damages attributable to property damage, towing, and storing from the underinsured motorist coverage. Harding asserts that the policy limitation does not reduce underinsured motorist coverage by Harding’s itemized judgment for property damage, $1,200, and towing and storage, $83.45, because those damages do not involve bodily injury.
State Farm Mutual responds that the record contains no evidence or finding that Harding was reimbursed by the workers compensation carrier for $1,283.45 for property damage, towing, and storage. It further notes that the amount of interpled funds paid to the workers compensation carrier was $62,267.81 and not $60,000.
State Farm Mutual is correct in its assertion that the record does not establish that this reimbursement was made. Harding is arguing that, if the Court of Appeals’ decision stands, then State Farm Mutual should not receive full credit for the $80,000 (actually $82,267.81) received from both tortfeasors; instead, this amount should be reduced by $1,283.45 that was received for property damage and not for personal injury. Because the record does not establish that part of the recovery by the workers compensation carrier went to reimburse Harding for property damage, we cannot say that this reduction should be made.
The final issue is whether attorney fees should have been awarded. K.S.A. 40-256 provides:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201 . . . if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs.”
The statute contains a proviso that does not allow costs if the insurance company makes a tender before commencement of the action, and the amount recovered does not exceed that tender. K.S.A. 40-256.
In its decision, the Court of Appeals noted that no case law excepts the awarding of attorney fees in underinsured motorist insurance cases. Therefore, the district court erred in ruling that K.S.A. 40-256 did not apply to underinsured motorist cases. Attorney fees can be awarded in underinsured motorist cases pursuant to K.S.A. 40-256 if the facts and circumstances warrant.
However, the Court of Appeals concluded that no attorney fees should have been awarded, and therefore the district court’s ruling was correct even though made for the wrong reason. The Court of Appeals’ decision was based upon its conclusion that State Farm Mutual’s denial of payment was not “without just cause or excuse” as needed to justify an award of attorney fees under K.S.A. 40-256.
Whether an insurance company has refused to pay a claim without just cause depends upon the facts and circumstances of a particular case. If a good faith legal controversy exists as to liability, attorney fees must be denied. Further, if a bona fide and reasonable factual ground for refusing to pay a claim exists, attorney fees are not awardable. Harper v. Prudential Ins. Co. of America, 233 Kan. 358, 372, 662 P.2d 1264 (1983); Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 493-94, 608 P.2d 903 (1980). Denial of payment that is not arbitrary, capricious, or in bad faith will not give rise to an award of attorney fees. Clark Equip. Co., 227 Kan. at 494.
Because State Farm Mutual had a legitimate argument to present to the court, its refusal to provide coverage was not without just cause or excuse. Therefore, the Court of Appeals correctly upheld the judgment of the district court, even though the district court relied upon an improper ground or assigned an erroneous reason for its decision. Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985).
The judgments of the Court of Appeals and the district court are affirmed in part and reversed in part, and the case is remanded to the district court to enter judgment for Harding against State Farm Mutual for $40,000, with interest from the date and at the rate previously determined by the district court.
Abbott, J., not participating. | [
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Per Curiam:
This is an original attorney discipline proceeding filed by the Office of the Disciplinary Administrator against Brad L. Keil, of Wichita, Kansas.
At the formal hearing herein, held November 12, 1990, the respondent admitted the factual allegations contained in the five-count amended formal complaint and the violations of disciplinary rules set forth therein (cases Nos. B4527, B4563, B4568, B4579, and B4582). The complained-of conduct is very similar in each case. In each, respondent agreed to represent a client, accepted a retainer for such representation, and failed to perform the professional services. The specific facts in each case, as set forth in the amended formal complaint, are as follows:
“COUNT I: File No. B4527
“7. In the summer of 1988, Respondent Brad L. Keil was retained by Martin B. Todd to investigate possible tort claims against the Secretary of Corrections and to pursue an appeal of Todd’s convictions of burglary and theft in Sedgwick County District Court Case No. 87-CR-1487.
“8. One Karen Holloway and/or her father paid $600.00 to Respondent Brad L. Keil to pursue the appeal.
“9. Respondent Brad L. Keil did not pursue the appeal nor communicate with his client and further Respondent Brad L. Keil did abandon his client Martin B. Todd without performing any meaningful legal activity on his client’s behalf.
“10. Respondent Brad L. Keil failed to account for the $600.00 paid to him to represent Martin B. Todd.
“11. The facts alleged in this count violate Model Rules of Professional Conduct 1.3 [1990 Kan. Ct. R. Annot. 219]; 1.4 [1990 Kan. Ct. R. Annot. 220]; 1.15 [1990 Kan. Ct. R. Annot. 247]; and 8.4(a) and (d) [1990 Kan. Ct. R. Annot. 290].
“COUNT II: File No. B4563
“12. In May 1988, Respondent Brad L. Keil was retained by John S. Bloomquist to contest extradition proceedings initiated by the State of Texas and to pursue an appeal from Mr. Bloomquist’s criminal conviction.
“13. John S. Bloomquist paid Respondent Brad L. Keil $200.00 as a retainer to pursue the appeal.
“14. Respondent Brad L. Keil did not pursue the appeal, nor did he communicate with his client and subsequently Respondent Brad L. Keil did abandon his client, John S. Bloomquist, without doing any meaningful legal work on the appeal.
“15. Respondent Brad L. Keil failed to account for the $200.00 retainer.
“16. The facts alleged in this count violate Model Rules of Professional Conduct 1.3; 1.4; 1.15; and 8.4(a) and (d).
“COUNT III: File No. B4568
“17. On July 1, 1988, Respondent Brad L. Keil was retained by Michael Groves to assist Mr. Groves in enforcing child visitation rights.
“18. Michael Groves subsequently paid $350.00 to Respondent Brad L. Keil for this proposed legal work.
“19. Respondent Brad L. Keil did not pursue any legal activity in regard to Mr. Groves’ child visitation rights nor did he communicate with Mr. Groves and subsequently Respondent Brad L. Keil abandoned his client, Mr. Groves, without doing any legal work.
“20. Respondent Brad L. Keil failed to account for the $350.00 retainer paid to him by Mr. Groves.
“21. The facts alleged in this count violate Model Rules of Professional Conduct 1.3; 1.4; 1.15; and 8.4(a) and (d).
“COUNT IV: File No. B4579
“22. Respondent Brad L. Keil was retained by Danny C. Beckwith in the summer or fall of 1988, to assist Mr. Beckwith with certain real estate transactions.
“23. Danny C. Beckwith delivered certain papers he had concerning the real estate transaction to Respondent Brad L. Keil.
“24. Subsequently, Respondent Brad L. Keil failed to pursue any legal activity for Danny C. Beckwith; failed to return the papers belonging to Danny C. Beckwith; failed to communicate with Danny C. Beckwith; and abandoned his client, Danny C. Beckwith.
“25. The facts alleged in this count violate the Model Rules of Professional Conduct 1.3; 1.4; 1.15; and 8.4(a) and (d).
“COUNT V: File No. B4582
“26. Respondent Brad L. Keil was appointed to represent Gerald D. Chapman on a criminal appeal while Respondent Brad L. Keil worked in the Kansas Appellate Defender’s Office.
“27. Subsequently, when Respondent Brad L. Keil left employment with the Kansas Appellate Defender’s Office, Gerald D. Chapman retained him to continue his criminal appeal.
“28. Respondent Brad L. Keil failed to appear at the oral argument of Mr. Chapman’s case before the Kansas Court of Appeals.
“29. Respondent Brad L. Keil failed to account for any unearned retainer to Gerald D. Chapman.
“30. The facts alleged in this count violate Model Rules of Professional Conduct 1.3; 1.4; 1.15; and 8.4(a) and (d).”
Respondent’s professional misconduct arose from alcoholism. On July 21, 1989, his petition to be placed on disability inactive status was granted by this court. He subsequently entered St. Joseph’s Hospital Alcohol Treatment Unit, in Wichita, and was discharged therefrom on November 28, 1989. On October 23, 1990, this court entered an order directing “that respondent Brad L. Keil be restored to active status and temporarily suspended from the practice of law pending the resolution of the five pending disciplinary actions, which are hereby reinstated.”
The disciplinary panel found:
“3. The respondent is remorseful for the transgressions he has committed.
“4. The respondent was a practicing alcoholic incapable of managing his life or professional affairs when these disciplinary violations occurred.
“5. The respondent has undergone treatment for alcohol abuse and has succeeded for over a year to remain free of alcohol.
“6. The respondent has been employed as a law clerk for Robert A. Schartz since June, 1990.
“7. The respondent is now married and twenty-nine years of age.
“8. The respondent has volunteered to make financial restitution in full to those wronged by his transgressions.”
The panel then recommended that respondent be reinstated to the practice of law subject to being on probation for two years and compliance with the recommended conditions. After careful consideration, we accept the panel’s recommendations subject to some minor modifications.
It is the Order of the Court that Brad L. Keil is hereby reinstated to the practice of law in the State of Kansas upon the following terms and conditions:
1. Respondent will be on probation for a period of two years;
2. respondent’s practice will be supervised by an individual member of the Wichita Bar Association’s Impaired Lawyers Committee. The panel recommended that Mr. Cliff W. Ratner be appointed to serve in this capacity, and he has agreed to so serve. Mr. Ratner is appointed as respondent’s supervising attorney;
3. Respondent’s supervising attorney shall meet with the respondent as frequently as said supervising attorney deems necessary, and the supervising attorney shall file a written probationary report with the Disciplinary Administrator’s office semiannually;
4. respondent will remain drug and alcohol free;
5. respondent will continue to participate in Alcoholics Anonymous and St. Joseph Hospital’s Alcohol Treatment Unit After Care Program;
6. respondent shall make full and complete financial restitution to those injured by his professional misconduct, as set forth in the factual allegations contained in the amended formal complaint.
It is Further Ordered that this order be published in the Kansas Reports and the respondent pay the costs of this proceeding. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was a proceeding commenced in the probate court to determine whether the decedents’ joint will was contractual.
On October 2, 1929, Newell A. and Bertha O. Thompson, husband and wife, executed a joint will, which, omitting the attestation clause, reads:
“Joint Last Will and Testament of Newell A. Thompson and Bertha O. Thompson, Husband and Wife.
“We, Newell A. Thompson and Bertha O. Thompson, Husband and Wife, of Geary County, Kansas, being of sound mind, memory and discretion, and being — under no restraint, do make, publish and declare this, as and for our joint Last Will and Testament:
“First: We direct that out of our estate our funeral expenses, expenses of last sickness and all other of our just and lawful, debts be paid.
“Second: In the event of the death of either of us, the survivor shall take all of our property, real, personal and mixed, whether the same be owned by us, jointly or severally.
“Third: We make no provision for our children, Ray Thompson and Fern Thompson, leaving it to the survivor of us to make such provision as he or she sees fit.
“Fourth: Upon the death of either of us, the survivor shall pay the funeral expenses and expenses of the last sickness of the deceased one, and all — lawful debts of the one deceased.
“Fifth: In the event of the death of either of us, the survivor shall act as executor or executrix, and it is our request that no bond shall be required of such executor or executrix, for the execution of his or her trust.
“Sixth: We hereby revoke all former wills or codicils thereto, made by us or either of us.
“In Testimony whereof we have hereunto subscribed our names, at Junction City, Kansas, this 2nd day of October 1929.
“/s/ Newell A. Thompson
“/s/ Bertha O. Thompson”
On October 12, 1966, Newell executed a subsequent will purporting to revoke the former will. Bertha, although living, did not join in executing the subsequent will, or consent thereto.
On December 30, 1967, Newell died and his will dated October 12, 1966, was admitted to probate. The probate court elected on Bertha’s behalf to take under the law and not under the terms of Newell’s October 12, 1966, will, she being incapacitated.
On May 18, 1968, Bertha died and the joint will she and Newell executed on October 2, 1929, was admitted to probate.
On November 12, 1968, the administrator c. t. a. of Bertha’s estate filed a petition for allowance of claim in Newell’s estate alleging that the will entered into and executed on October 2, 1929, between Bertha and Newell was a joint, mutual, and contractual will whereby the survivor of either of them should take all of the property owned by them jointly or severally, and that Newell breached such contract by the execution of his subsequent will not in accordance with the provisions of the joint, mutual, and contractual will of October 2, 1929. The prayer was for judgment in a sum equal to the entire residue of Newell’s estate remaining after payment of all his debts, and after deducting the portion theretofore set aside by the probate court to Bertha and her estate.
The executor of Newell’s estate denied that the joint will of October 2, 1929, was a mutual and contractual will of Bertha and Newell.
When the action was heard in the district court no testimony was presented or offered by the parties to the proceeding. Upon consideration of the joint will of October 2, 1929, the district court made findings of fact and conclusions of law. The court’s findings are substantially in accord with those factual recitations heretofore set forth. Conclusions 8 and 9 of the court read:
“The court finds that the will executed October the 2d, 1929, is contractual in nature. The court further finds that paragraphs 1, 2, 4, 5 and 6 are paragraphs included in most wills, if not all, and do, because said will is joint, use the plural pronouns in referring to the parties to the will, and this is done without exception.
“The court then looked at the third paragraph of said will, which states as follows: ‘We make no provision for our children, Ray Thompson and Fern Thompson, leaving it to the survivor of us to make such provision as he or she sees fit.’ The court believes and finds that by the exclusion of the children of the parties hereto, these being their only children, that agreement had to be reached between the parties prior to the will’s being executed.’’ (Emphasis supplied.)
In harmony with the foregoing conclusions, the district court directed the probate court of Geary County to act in accordance with its findings and conclusions with respect to the petition filed in Newell’s estate. Thereafter, Newell’s executor perfected this appeal.
The sole issue before this court is whether the joint will was made pursuant to- a contractual agreement. Joint execution of a will does not render the will irrevocable. The making of a will so as to render it irrevocable must be on the basis of a contractual agreement. Such contractual agreement may be shown by extrinsic evidence (In re Estate of Wade, 202 Kan. 380, 449 P. 2d 488), or such agreement may be shown or implied to exist by the terms of the will itself. The terms of a will may show an implication that its execution was the product of a preexisting agreement. (In re Estate of Chronister, 203 Kan. 366, 454 P. 2d 438.) The fact a will contains no reference to an agreement is not conclusive. A contract may be implied from the known circumstances under which the parties execute a joint will, such as their family relationship as reflected by the will itself, its terms and its execution, and the intention of the testators as gathered from the four corners of the instrument itself. In such a case, extrinsic evidence is not admissible for the purpose of proving otherwise.
In In re Estate of Chronister, supra, this court, after a painstaking review of the many cases of this state in which wills were claimed to be contractual, Mr. Justice Fontron, speaking for the court, stated the following basic rules:
“. . . (1) Whether a will is contractual, be it a joint will or one of separate wills, is a question of fact which must be established by proof. (2) The mere fact that a will is joint does not in and of itself establish it to be the result of a preexisting agreement. (3) A joint and mutual will and the terms and provisions thereof, may be considered sufficient as circumstantial evidence to establish that it was executed pursuant to an agreement. (4) Where a joint will shows on its face by the terms and provisions thereof that it is contractual in character, extrinsic evidence is not admissible for the purpose of proving otherwise. (5) Where there is ambiguity from the language used in a joint will as to whether or not it is based on a contract, extrinsic evidence is admissible to establish either the existence or nonexistence of a contract.” (1. c. 372.)
We are of the opinion that the will itself, based upon an examination of its terms, and its execution, evidences Bertha and Newell reached a full understanding and agreement as to the terms of their joint will prior to its execution. The use of plural pronouns, the identical disposition of their property to the survivor, the mutual exclusion of heirs, devisees and legatees, the provision for ultimate disposition of their property by the survivor “as he or she sees fit,” and their joint revocation of all former wills or codicils thereto, sufficiently evidences an understanding between the joint testators by which they intended to bind themselves. (In re Estate of Chronister, supra, p. 373.)
The appellant argues that the third provision of the will was merely to acknowledge the existence of the children, and was not evidence of an agreement or understanding between Bertha and Newell. The district court did not so find, and we believe its determination to be correct. Ray and Fern Thompson were the only children of the parties and under the will they were to be provided for by the survivor “as he or she sees fit.” We ask the same question as was asked in Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421:
“. . . How could such a will be voluntarily executed if there was no agreement or understanding that it would be made? The will itself, its terms, and its execution, are evidence that such a contract was made . . .” (1. c. 273.)
And so here. We do not presume, under the attending circumstances, that a father and mother would disinherit their only children by written instrument, unless they had a prior agreement or contract with each other that the survivor would make such provision for their benefit as he or she saw fit.
The intention of the testators can be gleaned from the four comers of the instrument and it may be said the will was executed pursuant to a contractual agreement. The parties reached agreement as to the disposition of their estate upon the death of either of them, that the survivor be left free to make such provision for the children as he or she might see fit. Such a provision could only have been reached by agreement of the parties. (In re Estate of Tompkins, 195 Kan. 467, 407 P. 2d 545; Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276.)
Bertha survived Newell, and thereby performed her part of the contract, but Newell breached their agreement when he executed his subsequent will in October, 1966.
Under the facts and circumstances, the district court was justified in finding the terms of the will showed a contractual agreement was reached between the parties when the joint will was executed, on the basis of the factors enumerated in the Chronister case. The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money and for an accounting. The defendant’s demurrer to plaintiff’s petition was overruled and the defendant has appealed.
The demurrer was directed at the amended petition. On account of the argument made by the defendant, however, attention will first be paid to the original petition.
After stating the residence of the parties, the petition alleged the defendant had been engaged in the business of drilling for oil and gas and owned strings of drilling tools; that about the first of May, 1944, defendant and plaintiff entered into an oral contract, by which plaintiff agreed to act as the general superintendent of the operations of the defendant and from the revenue realized plaintiff, was to receive a working salary of twelve dollars a day and one dollar a day for expenses and ten percent of the net earnings and defendant was to receive ninety percent; that defendant was to keep the books and duly account to the plaintiff; that the plaintiff was skilled in the management of rotary drilling operations and performed the agreement and defendant purchased three additional strings of tools; that plaintiff began to work under the terms of the agreement May 1, 1944, and continued so to work until June 30, 1948; that from the early part of 1945 plaintiff requested an accounting from the defendant and defendant failed to comply with these requests but in January, 1946, defendant orally stated to plaintiff that his share of the profit for 1945 had been $8,000; that during 1946 the plaintiff made many requests of defendant for an accounting and on March 12, 1948, defendant advised plaintiff that the two of them had made a profit of $39,000 for 1945 and lost $70,000 for the years following 1945; that the plaintiff demanded an itemized accounting and defendant advised him that he had an agreement drawn up which would show the relationship of the parties, but that he never showed it to plaintiff; that following the 12th of March, 1948, plaintiff demanded an accounting of the defendant and was refused and on June 30, 1948, plaintiff severed his connection with defendant; that plaintiff discovered during March that statements made to him by defendant were not true and had been made with the intent of defrauding plaintiff; that the defendant was acting in a fiduciary capacity toward plaintiff and the books and records have always been in his possession.
Plaintiff alleged he believed defendant to be indebted to him in the amount of $50,000 and he prayed for an accounting of all the drilling operations and for a judgment in that amount.
To this petition the defendant leveled a motion to strike and a motion to make definite and certain.
At the argument of this motion, counsel for the defendant argued the petition was not based upon a definite theory because it could not be told from the petition whether it was an action for wages on account of a contract between master and servant or for a dissolution of a partnership and an accounting or whether it was an action for fraud. Counsel for the plaintiff made a statement, as follows:
“I stated here that it was my conclusion from the facts stated and the facts of the deal it did constitute a joint adventure, and that is the theory upon which we are proceeding. I state it again. I presume that it is a matter of law for the court to determine whether or not it did constitute a joint adventure or a partnership. From what I stated, our theory of the case is that they entered into an arrangement and agreement, and it was not a contract of employment as such, that Mr. Wakefield was to furnish the operating capital and equipment, and that Mr. Grannell was to manage and do the work in their drilling all the way through their drilling operations.”
Before the trial court ruled on this motion the plaintiff filed an amended petition. Its allegations were substantially the same as those of the original. The defendant leveled a motion at this amended petition to require plaintiff to state the theory of his case and to strike and to make the petition definite and certain.
As to the motion to strike, defendant asked that some eight separate statements be stricken because they were immaterial or stated evidence. The trial court overruled this motion except in two particulars. The matter ordered stricken is not important to us now.
As to the motion to make definite and certain, the defendant asked that plaintiff be directed to state at what times and when defendant was to advance funds for the purchase of equipment, when and how often the defendant promised to pay plaintiff the salary alleged; what items were included in the work that was to be done for individuals and to set forth what interest, if any, the plaintiff claimed he was to own in the equipment or other property belonging to the defendant at the time the contract was made and whether plaintiff was to share in any losses sustained by the alleged partnership. The motion also stated that the defendant be directed definitely and distinctly to state his theory of the case by specifically alleging whether he claimed that,plaintiff and defendant were joint adventurers or were partners or were employer and employee.
In ruling on this motion the court sustained that part which asked that plaintiff be required to state how often and when the salary and expenses were to be paid and overruled the rest. The plaintiff by interlineation at a subsequent time amended his petition by alleging that defendant was to draw the sum of $150 a month for expenses and that this was to be charged against the expenses of the operation of the partnership and that all these items had been fully paid.
Subsequent to the defendant’s demurrer being filed the plaintiff asked permission to amend the amended petition by inserting at the proper place “intending thereby to enter into a partnership or joint adventure relationship” and at another point by inserting “and capable of and able to earn by reason thereof his share of the profits hereinafter mentioned.”
The defendant later moved to strike these allegations from the petition and also to direct the petition to be made more definite and certain in some twelve particulars. This motion was overruled, as well as the demurrer of the defendant to the petition.
The defendant appealed from the order overruling his demurrer, the order overruling his motion to strike filed on July 15, 1949, and the order overruling his motion to make definite and certain made on July 19,1949.
The specifications of error are that the court erred in overruling defendant’s demurrer, in overruling the motion to strike, and in overruling the motion to make the amended petition more definite and certain.
The defendant first points out that plaintiff declared in open court he was basing his action upon a partnership or joint adventure. The defendant then argues the petition should be construed strictly against the plaintiff because of the overruling of the motion to make definite and certain and then points out that the amended petition must be'framed upon a distinct and definite theory; that since the amended petition of the plaintiff showed the contract pleaded was actually that of employee and employer rather than a joint adventure or partnership, it did not state a cause of action and his demurrer to it should have been sustained.
Defendant points out his efforts to require plaintiff to state what interest he was to own in the equipment and whether plaintiff was to share any losses. He argues that when this motion was denied and the information was not in the petition, the petition then failed to state a cause of action for an accounting. This argument is not good. Whether plaintiff is entitled to an accounting depends on the contract between the parties. Such a contract is not always stated in formal terms.
The agreement may be found in the mutual acts and conduct of the parties. (See Curtis v. Hanna, 143 Kan. 186, 53 P. 2d 795; National Bank v. Hoover, 114 Kan. 394, 218 Pac. 1003.) The absence of a specific agreement on the part of the parties to share losses is not necessarily fatal to the right to an accounting. (See Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043; also Davidson v. Shaffer, 153 Kan. 661, 113 P. 2d 90.) The same may be said of the argument of defendant that it was necessary for plaintiff to plead he was to own part of the equipment. Joint ownership is not essential. It is only a circumstance which should be considered along with other circumstances. (See 47 C. J. 666; Grantham v. Conner, 97 Kan. 150, 154 Pac. 246; Matter of Rosenberg, 251 N. Y. 115, 167 N. E. 190. See, also, Yeager v. Graham, 150 Kan. 411, 94 P. 2d 317.)
Defendant next argues that a contract which provides for the payment of a part of the employer’s profits as part compensation for services does not create a partnership or joint adventure. For the purpose of deciding whether this petition states a cause of action we do not care to place a case in any definite category, whether partnership, joint adventure or contract of employment. The petition here is a great deal like that in Potts v. Lux, 161 Kan. 217, 166 P. 2d 694. There Potts had sued Lux and other alleged partners for an accounting and for money. The contract pleaded was substantially like the contract here. The plaintiff argued in the trial court that the relationship pleaded was a partnership. The defendant had demurred and argued in the trial court the agreement pleaded was not such a contract. Wé, on appeal, stated the legal points involved turned upon the proposition of whether the agreement between the parties disclosed a relationship in the nature of a partnership. We pointed out that the question depended in each instance upon the intention of the parties. We held that for the purposes of consideration of a demurrer the petition did state such a cause of action. The action was sent back to the district court and tried. At the trial and on appeal it was argued by plaintiff that the relationship was a partnership. The trial court held it was not a partnership but the contract was one of employment with profit sharing features, which entitled plaintiff to an accounting. We affirmed. (See Potts v. Lux, 168 Kan. 387, 214 P. 2d 277.) In this action it cannot be stated at this point just what the evidence will show the relationship to be. In the first Potts’ case we said:
“Numbered among the often approved tests to which we have referred are the following: Intention of parties to the contract; sharing in profits and losses; charging of losses against accumulated profits; community of control over management and direction of the business; active participation in management of the affairs of the enterprise; joint control and exercise of ownership over all or part of the business assets; participation in division of the net earnings; sharing in payment of expenses of operation; fixing of salaries by joint agreement; investment in the business of undistributed profits for the purpose of building up a substantial cash reserve; division of undistributed profits in the event of liquidation contingent upon repayment to one of the parties of cash originally invested in capital.”
Many of the elements of the relationship, whatever it is, may be showed by proof of surrounding facts and circumstances.
We are familiar with the rule that a petition must be framed on some definite theory. The statute with reference to what a petition must contain is G. S. 1935, 60-704. It provides, in part, as follows:
“The petition must contain: ... A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.”
This petition stated the facts upon which the plaintiff relied, to call upon defendant to render an account, that is, the relation of the parties and a statement of the matters pertaining to which the accounting was sought. It was not necessary that it state evidence upon which plaintiff relied. Many of the matters defendant argues should be in the petition are within the sole knowledge of the defendant. Under such circumstances the petition stated a good cause of action for an accounting.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal by defendant from a conviction on five separate counts of disturbing the peace. The defendant on various dates between November 29 and December 17, 1948, while riding along the Leavenworth city streets in an automobile, approached, talked to, and made attempts to pick up-various school girls between the ages of ten and thirteen years, by soliciting them to get in the car and show him where certain school buildings were located or to get in the car and he would take them to their destinations. When his offer was refused, as it was in each instance, he would either follow the girl or reiterate his offer to give her a ride.
The complaint as originally filed in the Leavenworth City Court contained ten counts, and defendant was there found guilty on counts 1, 2, 4, 5, 6, 8, and 10. On appeal to the district court, defendant entered a plea of not guilty, waived a jury and consented that the case be tried by the court; and was found guilty on counts 1, 2, 4, 5 and 8. The pertinent part of count 1 of the complaint reads:
“John H. Murray, County Attorney, being duly sworn says that at said county and state aforesaid, on or about the 17th day of December, A. D. 1948, the said . . . [defendant] . . . then and there being did unlawfully and willfully disturb the peace and quiet of Freda Adams and of the neighborhood.
“All of which the said . . . [defendant] . . . did in violation of the laws of Kansas.”
Counts 2, 4, 5 and 8 were drafted in the same manner except as to the date the alleged act was committed and the name of the school girl whose peace and quiet was disturbed; and counts 4, 5 and 8 did not contain the words “and of the neighborhood” at the end of the first paragraph.
The facts as to each count as adduced by the evidence may be briefly stated. Count 1: On December 17, 1948, Freda Adams, 13 years of age, was accosted by the defendant while alone on her way to school. He inquired where she was going and offered her a ride, but she kept on walking; shortly thereafter he again drove up and offered her a ride and opened the car door, then drove away as police came on the scene.
Count 2: On November 29, 1948, Barbara Reed, 11 years of age, while alone on the way to school, was accosted by the defendant. He called to her and asked if she wanted a ride; she did not answer, and defendant drove on. After she had walked two blocks farther, defendant drove past again; he said his name was “Benny”, asked her name, and if she wanted a ride. She told him she did not want a ride; he said: “You might as well come on”, but she refused and walked hastily on south. Defendant opened the car door when he asked her to ride the second time. He was alone in the car, and she had never seen him before.
Count 4: On November 29, 1948, Dee Ann Jess, age 12 years, while walking alone on her way from school, was accosted by the defendant. He drove his car to the south side of Vine Street and as he did so she crossed to the north side of the street to avoid him; the defendant then drove his car to the north side of the street and stopped and inquired of her where the Third Avenue School was; she directed him and he said, “hop in and show me the way”. She replied, “No, my mother doesn’t want me to and I will walk on”, which she did, and again defendant stopped her and asked where the Sacred Heart School was and she gave him directions. He drove to the corner, stopped his car and looked back. She became fright ened and started to run. She had not seen the defendant before that day.
Count 5: On December 1, 1948, Marcia Holman, age 10, walking alone on the way to school, was accosted by the defendant and asked to show him the way to the Third Avenue School. She pointed it out to him, and he said, “Well, would you ride and show me?” She refused and continued walking. She had never seen the defendant before that day.
Count 8: On December 16, 1948, Shirley Haddock, 11 years of age, while walking alone from her home to the grocery store"* was accosted by the defendant and asked if she wanted a ride, to which she answered “no” and kept on walking. Defendant was alone in his automobile and did not ask her where she was going. She had not seen him before that day.
Defendant first argues that the court erred in overruling his motion to dismiss, on the ground the complaint failed to designate any definite or particular act or acts constituting the offense of disturbing the peace punishable under G. S. 1935, 21-950, and that the opening statement by the state to the court failed to cure this defect. Material provisions of G. S. 1935, 21-950 are:
“Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall upon conviction thereof, be fined . .
It is conceded that the offense in each count of the complaint is charged in the language of the statute defining the offense, but appellant contends this is not sufficient — that the particular facts and illegal acts should be charged in order that the defendant may be better enabled to prepare his defense. While in some jurisdictions this has* been held requisite, in this state the practice of charging misdemeanors in the language of the statute which defines the offense has been recognized and held to be sufficient. We find no reason for abrogating this rule. There might be cases in which a defendant was left in doubt as to what act or acts of his were claimed to be a violation of the law by such a charge, but this is not such a case. (State v. McGaffin, 36 Kan. 315, 13 Pac. 560; State v. Craddock, 44 Kan. 489, 24 Pac. 949; State v. Brower, 75 Kan. 823, 88 Pac. 884.)
Error is next assigned in the court’s order overruling defendant’s demurrer to the state’s evidence and motion to dismiss on each count at the close of the state’s case. In support of defendant’s contention, he asks four questions: (1) Does asking a child if she wants a ride to school and nothing more constitute a breach of the peace under G. S. 1935, 21-950? (2) Does the simple repetition of such question a second time, and nothing more, constitute a disturbance of the peace? (3) Does asking a child the direction to two schools and asking if she wants a ride that way and point them out to him and nothing more, constitute a disturbance of the peace? (4) Does asking a child carrying a sack of groceries if she wants a ride and nothing more, constitute a breach of the peace?
What constitutes a disturbance of the peace and quiet of a person or neighborhood, or what constitutes rude behavior or disorderly conduct, depends upon the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances. All these elements are proper issues for the trier of the facts. (City of Fort Scott v. Arbuckle, 164 Kan. 49, 187 P. 2d 348.) The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquillity'. It includes not only violent acts, but acts and words likely to produce violence to others. Stopping each little girl once and asking directions to a certain school or to ride might in some circumstances be considered proper or an act of kindness, but under the circumstances disclosed by the record in this case, it cannot be said the court was not justified in finding that a repetition of such approaches was a course of conduct amounting to molestation and a breach of the peace of the innocent children involved. This invasion of the privacy of innocent children and this disturbance of the peace of mind of parents to whom a civilized government should give unmistakable assurance of the safety of their loved ones in going to and returning from school, cannot have escaped the attention of the legislature in the passage of the law now under consideration.
A careful examination of the record discloses that the court's findings on each count of the complaint were sustained by the evidence. The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This action began in the probate court where Lois Greenleaf Christenson, hereinafter called plaintiff, filed her petition for demand against the estate of her father, John O. Greenleaf, to have it adjudged that 'she was entitled to all of the real property owned by decedent at the time of his death. The claim was founded ■upon a written instrument made and entered into on or about February 12,1945, prior to the marriage of the decedent, John O. Green-leaf, and his widow, Myrtle Greenleaf, hereinafter called defendant, between John O. Greenleaf, Lois Christenson, the petitioner, and Myrtle Greenleaf, then Myrtle Spegal, relative to the property of John O. Greenleaf, and providing for its disposition and the settling of the rights of the other parties with respect thereto. The written instrument relied upon, attached as Ex. “A,” reads:
“Feb. 12-1945
“This is an Agreement made between
John O Greenleaf
Lois Christenson Daughter
Myrtle Spegal
In case that I pass away first. House and Land goes to Lois. Deed was made out for same in July 1944.
“To Myrtle all Livestock on hand at that time.. Furniture. Household goods. Shop tools and car if I have one. Any Money on hand At that time is to be equally divided between' Lois and Myrtle. After my last expenses are paid.
I want Connie to have the Piaña
as long as I live all Property and Holdings are to remain mine to handle as I see fit
“I know there are some personal belonging’s of Mother’s that Lois shall have Will'let you both decide on that. Have already given the Poney Betsey to Connie. John O. Greenleaf
Lois Christenson
Myrtle Spegal.”
Upon plaintiff’s request the case was transferred to the district court for trial. There the court heard the evidence, found generally for plaintiff and rendered judgment in her favor and filed written findings of fact and conclusions of law. Defendant has -appealed.
In the district court defendant filed a motion that plaintiff be required to make her petition more definite and certain by alleging the specific character of the instrument relied upon by plaintiff and what consideration, if any, had passed between the respective parties, and more particularly describing and setting out the deed made in July, 1944, referred to in the alleged agreement. This motion was overruled. Defendant filed a demurrer to the petition, which was overruled, .and later filed an answer' in which defendant specifically denied that decedent and defendant entered into any agreement relative to the property of the decedent on or about February 12, 1945, and specifically ■ denied that the. instrument* relied upon by plaintiff was signed by her prior to the marriage of decedent and defendant. The answer admitted that on or about February 15, 1945, decedent and defendant signed an instrument similar to that relied upon by plaintiff, but alleged that defendant does not know and is unable to allege the wording or substance thereof, or whether the instrument was the same as that relied upon by plaintiff; alleged there was no consideration for the alleged agreement or for the execution of the same as between decedent and defendant, or between decedent and plaintiff, or as between plaintiff and defendant, by reason of which there was no valid contract; that if, in fact, the instrument was executed by decedent it was an ineffective attempt by him to make a testamentary disposition of a portion of his property and was void for the reason that it was not executed and attested in accordance with our statute (G. S. 1947 Supp. 59-606) governing the execution of wills, and that if the instrument relied upon by plaintiff had any valid or binding effect as a contract or will, or otherwise, which defendant denies, the same was revoked, canceled and rescinded by mutual agreement of decedent and defendant made and entered into by them orally on or about July 8, 1947, whereby decedent agreed to make a will devising to defendant a part of the real property and all his personal property for her lifetime, with power of disposal, and devising to plaintiff 10.58 acres of land in Linn county; that defendant agreed to accept and consented to the terms of such will and both parties agreed that their agreement and the will to be executed pursuant thereto should supersede and revoke any former provisions made or attempted to be made by decedent of the disposition of any of his property; that pursuant to this agreement decedent, on July 9,1947, duly made, executed and published and declared his last will and testament in writing, and that defendant on the same date did consent in writing to the will; that the will was duly admitted to probate as the last will and testament of the decedent by order of the probate court of Linn county, dated November 14,1947, and that there is now pending in the above matter in the probate court of Linn county a petition by defendant, as surviving spouse of the decedent, requesting the court to set apart to her certain realty of the decedent as a homestead and certain personal property as her statutory allowance; that if plaintiff has any rights under the agreement alleged in her petition they are subject to the rights of the widow in and to the homestead and statutory allowances, and any judgment or order purporting to determine the rights of the parties pursuant to the alleged agreement should be made subject to the determination and setting apart of such homestead and statutory allowances.
Plaintiff replied to the answer with a general denial and a demurrer to certain paragraphs of the answer as not stating any defenses.
After hearing the evidence the court made findings of fact and conclusions of law, the pertinent portions of which are as follows:
“FINDINGS OF FACT.
“1. John O. Greenleaf died in Mound City, Kansas, on the ............ day of ........................, 194........, at the age of ............ years. He left surviving him his wife, Myrtle Spegal Greenleaf, and a daughter, Lois Greenleaf Christenson, who was adopted when a small child by John O. Greenleaf and his first wife. After the death of his first wife, he employed Myrtle Spegal to keep house for him and she came to the home and lived in the house and acted as housekeeper for John for some years.
“2. On February 12, 1945, John O. Greenleaf and Myrtle Spegal and the daughter, Lois Greenleaf Christianson, signed a paper denominated an agreement, written in the handwriting of John O. Greenleaf, a copy of which is attached to the petitioner’s petition, the original of which was introduced in evidence. The writing was in two or three copies and one copy was handed to the daughter, Lois, in an envelope endorsed in the hand of John O. Green-leaf ‘agreement between John O. Greenleaf, Lois and Myrtle’. This is the copy that was introduced in evidence.
“3. The only property owned by John O. Greenleaf was a small tract of land upon which he made his home, a few head of livestock, furniture and household goods, shop tools and some money. . . .
“4. On February 16, 1945, John O. Greenleaf and Myrtle' Spegal were married and continued to live in and occupy the residence, living together as husband and wife until his death.
“5. About May, 1946, John Greenleaf suffered a slight stroke and had some resulting paralysis and difficulty with his mind, from which he probably never entirely recovered.
“6. In July, 1947, John O. Greenleaf made and executed a will which was consented to by Myrtle Greenleaf, his wife, by which substantially all his property was devised to his wife. The terms of this will were in contravention of the terms of the agreement. The daughter was not consulted and gave no consent to the will or any revocation of the contract.
“CONCLUSIONS OF LAW.
“1. The agreement in controversy is an antenuptial agreement.
“2. Lois Greenleaf Christianson being a daughter of' John O. Greenleaf and being specifically a party to the contract, was within the consideration of marriage which made the agreement binding.
“3. She being a party to the contract and within the consideration, the agreement could not be revoked without her consent. . . .”
Defendant,in due time filed a motion for a new trial upon most of the statutory grounds and also filed a motion to correct, modify and vacate the findings and conclusions made by the court. These motions were heard by the court and denied. The court rendered-judgment in which it found generally for the plaintiff, allowed-her petition, and decreed she had right and title to all the real estate belonging to John O. Greenleaf at the time of his death.
Defendant has appealed and contends the court erred in the admission of evidence. On this point appellant contends the court erred in permitting plaintiff, as a witness, to testify to transactions or communications had with her father, since deceased, in violation of G. S. 1935, 60-2804. We have read this evidence carefully and find the court was exceedingly careful in its ruling to see that this statute was not violated. In fact, few of the questions were framed in such a way as to permit the witness to violate it. However, some of the answers did tend to do so and each of such answers was stricken out on motion of defendant.
Appellant next contends that the court excluded competent, material evidence offered by defendant, and on the hearing of the motion for a new trial presented an affidavit of defendant as to what she would have testified to if objections to her testimony had not been sustained. We have checked this affidavit with her testimony and find that practically all included in the affidavit was testified to by her. Questions were asked her about the conversations she had with Mr. Greenleaf shortly before she signed Ex. “A.” Objections to them were sustained upon the well-known ground that such testimony is not competent to vary the terms of an agreement. We think that ruling was proper in view of the fact that defendant had not pleaded fraud or anything akin to it of any one part with respect to the execution of the instrument. We think this point is not well taken.
Appellant argues that the findings of fact and conclusions of law are contrary to the evidence. Plaintiff and defendant were the principal witnesses. It is true there is some conflict in their testimony. In deciding the case the court was required to resolve that conflict. He did so more in keeping with that of plaintiff than with that of defendant,, and with the trial court’s action in that matter this court is not concerned. It is clear the evidence of each of them was that the instrument was written by John O. Greenleaf, that it was signed by each of the parties whose names appear thereon, and that it was executed either the day before, or a few days before, the marriage of Mr. Greenleaf and Myrtle Spegal.
The principal legal questions presented here pertain to the nature of the instrument relied upon by plaintiff, Ex. “A,” whether there was consideration for it, and whether defendant and John O. Green-leaf could revoke it, as appellant claims they did, or attempted to do, by their oral agreement made in July, 1947, under which he would make a will disposing of the property differently and more favorably to defendant than provided for her in Ex. “A” without plaintiff’s knowledge and consent.
The trial court concluded Ex. “A” was an antenuptial agreement. It was executed shortly before and in contemplation of the marriage of plaintiff’s father and defendant. Frequently there are only two parties to an antenuptial agreement — the man and the woman who contemplate marriage. But the fact other interested parties join in the agreement does not prevent it from being an antenuptial agreement. (See 26 Am. Jur. pp. 896, 897, and cases there cited.)
Appellant stresses the fact that the instrument contains some language appropriate to a will, or normally found only in a testamentary instrument. The fact that it did so does not change it from an antenuptial agreement to a will. Indeed, some language of that character may be found in many antenuptial agreements, and when so found the court will still treat the instrument as an antenuptial agreement if other facts and circumstances make it clear it should be so treated. (See 26 Am. Jur. p. 900.) It is not unusual for one whose first wife has died and who has a child or children by the first wife, when he contemplates a second marriage, either to dispose of some of his property to the children of the first wife, or to make some provision for them in an antenuptial agreement or other instrument. The testimony disclosed that John O. Greenleaf was a man who thought out the.problems of his business, and when he concluded what should be done was very firm in his convictions. He no doubt knew that if he died intestate, without marrying again, his daughter would inherit all of his property, but if he did marry and leave surviving him his widow and his daughter that his daughter would get only half of it, and that they might have different views as to how it should be divided. So he wrote a statement in his own language and his own handwriting as to how the property should be divided “In case that I pass away first,” and provided that in such a case the daughter should have his real property and his widow should have his personal property. The instrument in that regard is not difficult to understand. There is no contention now by either the plaintiff or the defendant that she did not understand it.
As to consideration for the agreement it may be said the fact bíiat it was in writing imported consideration (G. S. 1935,16-107). Since it was an antenuptial agreement in contemplation of marriage, which marriage was consummated within.a few days, the marriage itself completed any lack of consideration in the instrument. In addition to that, each of the parties thereto had either an actual or a prospective financial interest in the subject matter of the agreement.
It was appropriate that all of them should sign it, and they did. It was appropriate to have copies of it made and one given to each of the parties, and that was done. The testimony discloses there was no ill feeling between plaintiff and defendant. The plaintiff visited her father’s home before the marriage, thought they were getting along very well, and that it was possible they might marry. She visited in the home perhaps every two months after the marriage. Plaintiff knew nothing of the will of July, 1947, nor of any effort of her father or of defendant to revoke the agreement, Ex. “A,” until after the death of her father.
Antenuptial agreements may be revoked with the consent of all the parties to it. (See 26 Am. Jur. 902, 41 C. J. S. 583, and cases there cited.) But where there is an antenuptial agreement, executed by three or more parties, we have found no authority which would authorize two of them to revoke it without the knowledge or consent of the other and to his or her disadvantage. Indeed, such authority as we find is to the contrary. (See authorities last cited.) Even agreements made between members of the family, for the benefit of some one of them who did not sign the agreement, cannot be revoked by the parties executing the agreement without the knowledge and consent of the party for whose benefit it was made. (See Hagerman v. Hagerman, 160 Kan. 742, 165 P. 2d 431; French v. French, 161 Kan. 327, 167 P. 2d 305.)
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an original proceeding in habeas corpus. Lee Kamen, petitioner, seeks' to be discharged from the custody of respondent sheriff, by whom he is detained awaiting trial on a criminal charge. He claims that his imprisonment is unlawful and that he is being deprived of his liberty in violation of federal and state constitutions and laws.
The following proceedings were had in the district court of Sedgwick county, prior to institution of these proceedings in habeas corpus. Petitioner, defendant below, was — after a preliminary hearing before the city court of Wichita on May 9, 1949 — on January 16, 1950, placed on trial before a jury in the district court of Sedgwick county on a charge of receiving stolen property, having •waived arraignment and pleaded not guilty. The state introduced evidence of seven witnesses — the seventh being Detective Reeves of the police department — concerning a police report and alleged changes in the report, which report was offered in evidence and, over defendant’s objections, admitted and read to the jury. Defendant again objected to admission of said report and asked the court to declare a mistrial because of prejudice to defendant by its erroneous admission, but was overruled by the court. The state then rested its case and the court called for introduction of the case for the defense, whereupon counsel for the defense asked that the jury be excused while he argued some motions to the court. Before the jury was excused, counsel for the state explained for the record and to the jury the purpose for which the police report in controversy was offered in evidence. The jury having been excused, counsel for defendant moved for a directed verdict of not guilty and discharge of defendant for the reason the state had failed to prove the allegations and averments alleged in the second amended information, which motion was argued by counsel and taken under advisement by the court; Court was recessed, and on reconvéning, argument on the motion to dismiss continued for some time, whereupon the court on its own motion ruled that "I am declaring a mistrial, and that ends the trial of this case. . . . I . . . will require a new information totally. ... If the defense has any objections?”
Defense Counsel: “We will even assist them, if they want us to, in the description of the property.”
On inquiry by counsel for the state as to grounds for the declaration of a mistrial, the court said: “Oh, there is so much prejudicial error went to the jury with respect to Exhibit 12 (the police report) and there are some details of the defendant’s complaint that are substantial.”
On March 10, 1950, the state filed a third amended information to which defendant, petitioner herein, filed a motion to quash and a plea in bar on the premise that he cannot be twice put in jeopardy for the same offense. Said motions are pending, dependent upon the outcome of this habeas corpus proceeding.
The question to be determined here is whether defendant was placed in jeopardy in the proceeding before the district court resulting in declaration of a mistrial by the court so as to preclude trial in that court on the third amended information. The contention of the state is that defendant cannot now complain of the court’s ruling (declaration of the mistrial) because of his own motion for a mistrial, eventually sustained and resulting in discharge of the jury, and also because defendant failed to object to such ruling and in fact stated “we will even assist them, if they want us to, in the description of the property”; that the relief sought (discharge in habeas corpus) is therefore not available when petitioner’s cause is still pending in the lower court. Petitioner, on the other hand, argues that his motion for a mistrial was overruled and no longer before the court and no further motion for declaration .of a mistrial in the case was interposed by him; that the defendant was placed in jeopardy when charged with commission of the crime, brought to trial, the jury empanelled and sworn to try the cause, and trial begun before a court of competent jurisdiction upon an information sufficient to sustain a conviction.
G. S. 1935, 60-2914 provides:
“The jury may be discharged by the Court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.”
Petitioner contends that the court cannot arbitrarily discharge the jury before a verdict is returned and a discharge in such case, unless for an absolute necessity or for a reason provided by statute, will operate as an acquittal providing defendant has not waived his right to claim double jeopardy and has not joined the state in requesting a mistrial.
It is true that the discharge of a jury after the trial has begun without an overruling necessity or without the consent of the defendant will ordinarly operate as a bar to further prosecution (State v. McKinney, 76 Kan. 419, 91 Pac. 1068; In re Rockwood, 146 Kan. 386, 69 P. 2d 703, and cases cited therein). However, the record in the instant case discloses that the defendant requested the court to order the mistrial. After Exhibit 12 had been offered and received in evidence, the defendant interposed an objection the pertinent part of which reads:
. . we now ask the Court to declare a mistrial of this case on account of the error and prejudice that has been engendered in the minds of the jury by the reading of the report of this case by the detective and police officers, . . . for the reason it is wholly incompetent . . . and it contains hearsay of the rankest sort ... all of which is highly prejudicial and altogether incompetent, and we ask that you declare a mistrial at this time.”
During argument on defendant’s motion for a directed verdict of not guilty, the court stated: “I am declaring a mistrial, and that ends the trial of this case.” When questioned by counsel for the state as to the reason for the court’s ruling, the court stated among other things: “Oh, there is so much prejudicial error went to the jury with respect.to Exhibit 12 . . .”
It will be noted that the reason given by the court was the basis of the defendant’s earlier request for a mistrial. It is well settled that if a jury is discharged at the instance of a defendant himself, he cannot set up that fact as a bar to a subsequent prosecution. (State v. McKinney, supra; State v. Arnold, 142 Kan. 589, 50 P. 2d 1008.) Defendant argues that the court had previously overruled his request for a mistrial and no further request was made by him or the state and that his motion for a directed verdict of not guilty was pending before the court. His former objection to proceeding further in the case on account of the error and prejudice engendered in the minds of the jury by the reading of the police report was the very ground on which the court based its later declaration of a mistrial. The discharge of the jury was the necessary result of sustaining defendant’s request and he has no right to com plain that the court took the action which he had requested and to which no objection was made; his actions amounted to a consent.
The above rule was followed in the case of State v. Arnold, supra, in which the defendant was charged upder a forgery statute. Defendant was tried and at the close of the state’s evidence moved for a directed verdict of not guilty because the state had failed to prove an offense charged or any offense. The court overruled that motion but sustained an earlier motion of the defendant on the ground of variance between the information and proof. Defendant was rearrested, tried under another forgery statute, and convicted. Before the second trial, the defendant filed a special plea in bar on the ground of former jeopardy. The court pointed out that an inconclusive result in the former trial had been reached (at the instance of the defendant) and said:
“It is finally contended that defendant’s special plea in bar on the ground of former jeopardy should have been sustained. This plea is not available when an inconclusive result had been reached in a former criminal trial at the instigation of the defendant himself. State v. McKinney, 76 Kan. 419, 420, 91 Pac. 1068; State v. Reynolds, 140 Kan. 269, 36 P. 2d 323, and citations; 16 C. J. 254, and note in 135 A. S. R. 70-73.” (p. 594.)
Defendant relies principally on the case of State v. Stiff, 117 Kan. 243, 234 Pac. 700, rehearing 118 Kan. 208. We do not believe this case is controlling under the facts in the instant case. In the Stiff case, Stiff filed a motion to quash the information before he had entered his plea of not guilty and before the jury had been sworn to try the case. At this point, jeopardy had not attached. His motion was overruled, the jury was sworn, and the state made a request to amend the information, which request was denied by the court, and the court thereupon sustained the motion to quash the information which previously had been overruled, as stated. This court held the jury was discharged without the request or consent of defendant Stiff and he could not thereafter be tried. We distinguished the Stiff case in the case of State v. Reynolds, 140 Kan. 269, 36 P. 2d 323. Reynolds claimed he was in former jeopardy in a case where, after the jury was empanelled and sworn, he objected to the introduction of evidence for the reason the information failed to charge a public offense. The court sustained his objection and discharged defendant and jury. Defendant Reynolds claimed this was without his consent and relied upon the authority of State v. Stiff, supra. The court stated:
“The facts on. which this opinion (Stiff case) was based are very different indeed from those in the case at bar. In the latter we have the defendant objecting to the introduction of evidence after having been put in jeopardy, and his attorney pointing out the insufficiencies of the information, which go far towards making it invalid and such as might not sufficiently charge an offense as to sustain a judgment on a verdict of guilty. We also have the trial court sustaining the defendant’s objection to the introduction of evidence, which of necessity disposes of the first case at the request and insistence of the defendant, instead of overruling the defendant’s motion to quash, as in the Stiff case, and later reversing that ruling without any request from the defendant.
“Appellant cites authorities to the effect that mere silence of the defendant, or his failure to object or protest against the discharge of the jury, does not constitute a consent to such discharge of the jury or in any way waive his constitutional rights against being subjected to a second jeopardy. To this we fully agree, but we can readily see a distinction between such conduct and the active pressing of an objection the sustaining of which will produce the same result.”
It is our conclusion that the petitioner by his request for the court to declare a mistrial waived his constitutional right of jeopardy if such existed after the jury was empanelled and sworn.
The state contends that habeas corpus did not lie in this case for the reason that the petitioner’s cause is still pending and undetermined in the lower court. However, this court held many years ago that if the petitioner was entitled to his discharge in the district court, he ought to be released in his proceeding by habeas corpus, as that proceeding is the only one which affords him a speedy remedy. If his only remedy is by appeal, he must continue wrongfully restrained of his liberty until the case is finally determined by the district court, as an appeal can be taken by the defendant only after judgment. It would be a palpable violation of the bill of rights, and also of the statute, to require an accused who is entitled to his discharge, so far as relates to the offense for which he was committed, to be restrained of his liberty indefinitely at the instance of the state, or upon the order of the court, to await a final trial, or determination of the case against him. (In re McMicken, 39 Kan. 406, 409, 18 Pac. 473; In re Lewis, 152 Kan. 193, 102 P. 2d 981.)
In view of what has been said, the writ will be denied. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover for personal injuries and property damage sustained by plaintiff, alleged to have been a result of a collision involving plaintiff’s automobile and a freight train occupying a crossing of defendant company’s railroad tracks and a public highway. Trial was by a jury which failed to agree upon a verdict and was discharged. Defendant appealed to this court charging error of the trial court in (1) refusing to sustain defendant’s demurrer to plaintiff’s evidence, and (2) refusing to direct the jury to return a verdict in favor of defendant.
Plaintiff alleged defendant was negligent in that there were no warning signals or signs of any kind on the approach to the railroad crossing involved in this action except one cross-arm sign; the peculiar location of this particular grade crossing made it imperative that some sign or warning signal be placed sufficiently far back from said crossing to apprise travelers on the road that there was a railroad crossing located below the brow of the hill; the location of said railroad crossing below the brow of a sharp incline was particularly dangerous in that the lights of approaching motorists would be unavailing to pick out the railroad crossing until they were directly on or at said crossing; by reason of the lack of any warning signs or signals, this plaintiff drove into, upon and against one of defendant’s freight trains then on the crossing; and the collision was caused by the peculiarly dangerous location of this particular crossing coupled with the failure of defendant to put up proper signs, signals or warning devices.
Consideration of the first specification of error necessitates a review of plaintiff’s evidence to determine whether under the interpretation thereof most favorable to plaintiff required on demurrer, a prima facie case for recovery was made.
Plaintiff’s evidence, in brief, demonstrated that the crossing was approximately 250 feet west of the crest of an elevation in the highway; immediately before the accident plaintiff was driving west upon the county highway some time after 11:00 p. m. in a 1930 Model A coach at a speed of thirty or thirty-five miles per hour; the headlights of his automobile threw a beam of light for a distance of approximately 150 feet down the highway; as plaintiff crossed the crest of the elevation in the highway and started down the reverse slope, the beam of light was appreciably shortened and plaintiff failed to see a train of freight cars upon defendant’s track; as plaintiff approached within some forty or forty-five feet of the tracks he saw defendant’s train upon the crossing moving in a southwesterly direction; thereupon plaintiff turned his car sharply to the right, or northeast, to avoid hitting the train; and there was a “crash” and plaintiff was found a few minutes later in his car upon the Santa Fe track which parallels the defendant company’s track fifteen feet to the east. Evidence was also admitted which tended to show that the frame and engine of plaintiff’s automobile had borne the brunt of the damage. Plaintiff further adduced evidence showing the presence of a standard cross-arm warning sign to the east of the right of way, and establishing the absence of all other warning signs and safety devices.
In determining whether defendant company was guilty of negligence, there must be a showing that it failed to perform some duty or committed some act which caused plaintiff’s injury. Plaintiff’s evidence showed that the standard cross-arm signal required by statute was present at the crossing, but he claims that such statutory warning signal was not sufficient under the circumstances involved. G. S. 1935, 68-509 provides for erection of suitable safety devices at dangerous or obscure railroad crossings upon request of the proper public authorities. The exercise of pertinent provisions of the statute would occur only after a determination by local authorities of the dangerous character of the crossing within their jurisdiction. The record in the instant case presents no evidence of such determination. No other signal or safety device was installed either upon the crossing or at the top of the hill east of the crossing. In the absence of any determination of the dangerous character of the crossing by the proper public officials, it may be fairly concluded that the crossing was not considered so “dangerous and obscure” as to warrant such determination by those local authorities charged by statute with such responsibility. The rule is that the question of whether a railroad crossing is unusually dangerous is a matter of law unless substantial, competent evidence of its dangerous character is introduced (Bledsoe v. M-K-T Rld. Co., 149 Kan. 741, 90 P. 2d 9, and authorities cited therein). The evidence does not disclose that the crossing was unusually dangerous. We believe the logical conclusion to be drawn from the fact that no warning signs other than the statutory cross-arm signal were installed at the crossing, is that the proper officials did not consider the crossing “dangerous or obscure.”
This court has repeatedly distinguished between the duty owed by railroads to warn travelers upon a highway of approaching trains and the obligation to apprise travelers of trains rightfully occupying the crossing. The purpose of crossing signs or signals is to warn of approaching trains and not of trains already occupying the crossing. (See Shepard v. Thompson, 153 Kan. 68, 109 P. 2d 126; Sheets v. Baldwin, 146 Kan. 596, 73 P. 2d 37; Bledsoe v. M-K-T Rld. Co., supra.) In Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593, this court upheld an order sustaining an objection to the introduction of evidence on the ground that the petition failed to state a cause of action. In disposing of the appeal it was said:
“Under ordinary circumstances a freight train standing across a highway on a dark and foggy night will sufficiently reveal itself to travelers exercising due care in the operation of auto vehicles which are equipped with proper lights and which are driven at a proper rate of speed under the conditions.”
The railroad company’s duty extended no farther than to exercise reasonable care and it may assume, while occupying the highway crossing in proper movement of its train, that travelers on the highway approaching the crossing will exercise the same amount of care.
A careful examination of plaintiff’s evidence fails to disclose that defendant company violated any duty it owed to the plaintiff, and in view of what has been said, we conclude that plaintiff’s evidence was insufficient to establish his cause of action and that the demurrer thereto should have been sustained. This conclusion makes it unnecessary to consider appellant’s other contentions.
The case is reversed and remanded with directions to sustain defendant’s demurrer to plaintiff’s evidence. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a ruling sustaining defendants’ demurrers to the pleadings and evidence in an action to enjoin defendant labor unions from interfering with the contractual relationship subsisting between appellant and certain of its employees, members of appellee union and fellow tradesmen of the members of appellee association, Local No. 297.
The record discloses that appellant, Radio Station KFH Company, hereafter referred to as KFH, on October 11, 1949, filed its petition to restrain appellees from interfering with the contractual relationship existing between KFH and certain named employees, and from doing any act prejudicing those employees in their relationship with the appellee labor organizations. On the same day KFH obtained an ex parte restraining order which enjoined the international and local groups from doing any act directly or indirectly interfering with the contractual and employment relationship between KFH and the named employees and further enjoined any act directly or indirectly to the prejudice of the employees as members in good standing of the appellee, the American Federation of Musicians. The appellee, Local No. 297, and persons acting upon its behalf were restrained pending the hearing for a temporary injunction from acting or purporting to act with respect to the issuance of membership cards, work permits, or any other evidence of rights granted by the labor organizations in Kansas. An order for a hearing for a temporary injunction was made in conjunction with the ex parte restraining order. KFH, in its petition for a perpetual injunction— disregarding the purely formal allegations — alleged it had sponsored various groups of musicians who have been known in Wichita and adjacent trade territory as the Ark Valley Boys, and that name is well known throughout the states of Kansas and Oklahoma; that the name “Ark Valley Boys” has been promoted throughout Kansas at great expense incurred through newspaper advertising, radio announcements, window cards and personal appearances.' On September 23, 1949, KFH was notified by the six members of the group then constituting the Ark Valley Boys that they were resigning, effective October 7, 1949; that .upon receipt of the notice the manager of the radio station, desiring to obtain union musicians, called upon the local organization for names of its members available for such placement who were similar in character, or as known to the trade, “folk musicians, western and hillbilly,” although no contractual relationship existed between KFH and the union. The local informed KFH that it was unable to make replacement of the type and character desired. Thereupon the radio station contacted one Tex Ferguson in St. Joseph, Mo., a member in good standing with the American Federation of Musicians, and a member in good standing of its local No. 50. Arrangements were made for the appearance of Ferguson and his group of four other musicians in Wichita on the programs of the station under the name of the Ark Valley Boys. The Ferguson group arrived in Wichita October 9, and the following morning presented their transfer cards.to an officer of Local 297, in accord .with the usual practice and custom of the association, and offered to pay ten percent of the local scale to the local chapter or to join outright on a transfer basis. The officer refused to honor the transfer cards and refused to permit the Ferguson group to accept the engagement and threatened them with fines and suspension by the American Federation of Musicians, thus coercing and intimidating the Ferguson group iñ the enjoyment of their legal rights; that as a result of the threats and coercion the Ferguson group refused to fulfill their contractual obligations with KFH. It was further alleged that the labor organizations had not complied with the pertinent sections of chapter 44, G. S. 1947 Supp., which provide for the licensing of certain officials of labor organizations' and the filing of the constitutions of and reports by those organizations; that by reason of the described acts the labor organizations are coercing and intimidating the employees of KFH in the enjoyment of their legal rights and are discriminating against them in violation of G. S. 1947 Supp., 44-809 (14); that the violations by the labor organizations of the laws of the state of Kansas are causing irreparable damage to KFH and it is without an adequate remedy at law. Allegations were also made to the effect that the labor organization by its acts was preventing KFH from fulfilling its contractual obligations with advertisers and sponsors. A prayer for relief followed as previously set out herein.
The defendant American Federation of Musicians appeared specially and moved to quash the service and was overruled; the defendant Local 297 filed a motion to dissolve the ex parte restraining order, which was modified by the district court in respect to the order’s effect upon the local’s power to act on behalf of its members and in connection with the issuance of membership cards, work permits and other evidence of rights granted by labor organizations.
Answers in the form of general denials were filed by all defendants. Plaintiff’s petition was filed on October 11, 1949, alleging that the defendants had failed to comply with the pertinent statutes, G. S. 1947 Supp., 44-804, et seq. Subsequent thereto and on October 17, the defendants complied with the mentioned statutes and on the 19th day of October, motions to dissolve the temporary restraining order and motions to quash the summons were heard and the order was modified as heretofore related. The case was heard on plaintiff’s petition for a temporary injunction on November 21, 1949, and after the matter was fully presented, the defendants interposed demurrers to the evidence which were sustained by the court.
A brief review of plaintiff’s evidence discloses that appellant’s manager of promotion and publicity had been connected with appellant radio station for nineteen years and had been a member in good standing of the American Federation of Musicians since 1913; that at considerable expense it had since 1939 sponsored and promoted a group of musicians and entertainers under the copyrighted name of “Ark Valley Boys” whose membership fluctuated from time to time and whose performance was in the nature of a hillbilly band. On September 23 the personnel then comprising the group tendered its resignation to the appellant. The station was under no contract to hire members of the union, but its practice was to hire only musicians who were union members in deference to the station’s musical director who was a member of the union. Upon the resignation of its current “Ark Valley Boys,” appellant contacted the local labor organization with respect to similar groups of performers who might be available; one group was suggested but was not available for full-time employment, and appellant was advised there were no others in the jurisdiction. He then contacted a group of performers in St. Joseph, Mo., who were members of defendant union, and asked them to come to Wichita; they arrived on Sunday, October 9, and were hired on a six-months contract to start with a performance the following morning as the “Ark Valley Boys.” After the initial broadcast on October 10, the performers went to the office of the local union to deposit their transfer cards, and were there advised the cards would not be accepted, that each member would be subject to a fine of $1,000 if they remained in Wichita; that they would have to be in Wichita for six months before they could work and now that they had played a program they could be suspended from working for twelve months, all being under provisions of the union bylaws and constitution, introduced in evidence and pertinent provisions of which are as follows:
Article 14, section 8: A member cannot, before depositing his transfer card with a Local and before obtaining the quarterly due card from the Secretary of same, solicit, accept or fill an engagement in the jurisdiction of a Local unless it is otherwise provided for by the laws of the Federation.
Article 14, section 9: A member who has his transfer card on deposit in a Local is not entitled, without the consent of the Local, to solicit, accept or play any steady engagement, nor can he substitute on such engagement, during a period of three months after the date of deposit and where a Local maintains a law defining a steady engagement as one consisting of three or more days per week, for one particular employer, for two or more consecutive weeks, then transfer members coming within the provisions of this paragraph cannot, with out the consent of the Local, accept such steady engagement, nor can they substitute on such engagement, for a period of three months from date of depositing transfer card; but otherwise he is entitled to all privileges of the Local, including voice, but not to vote or hold office, but said member shall not be entitled to any sick or death benefits or full membership until the full amount of the initiation fee as provided in the Constitution and By-Laws of the said Local has been paid.
Article 2. Object, The object of the American Federation of Musicians shall be to unite all local unions of musicians, the individual musicians who form such local unions of the American Federation of Musicians into one grand organization for the purpose of general protection and advancement of their interests and for the purpose of enforcing good faith and fair dealing, as well as consistency with union principles, in all cases involving or of interest to members and Local Unions or the Federation.
Other sections of the bylaws provide for procedure in hearings and trials and the imposition of penalties upon the member found guilty of violation.
The transfer cards presented by the members had endorsed upon the backs thereof the substance of the first two bylaws set out above. The members were also told by the business manager of the local union that under the bylaws they would be subject to fine and other punishment for their acts. However, no formal charges were preferred or filed against them in accordance with the bylaws. Immediately after the transfer cards were refused by the local union, Ferguson and other members of the band returned to appellant station and stated they were leaving Wichita; that they could not fulfill their contract with the station because they wanted “to stay in good standing with the union . . . wanted to be a member. You have to be a member to work . . . From my experience, you can’t work unless you carry a card.” Ferguson further testified: “In my nine years of playing as a musician I have traveled in a lot of states. I have always had to go to the local where I was working and get a transfer to where I was going to move to, and there were no questions asked. If I lived there any length of time I took my card in and showed them I was in good standing; showed them I had a transfer. Most of the time I would work a week and then go down. I have never had a reception like I got in this local in all my nine years of playing.” And on cross-examination he testified: “I am familiar with the fact that the American Federation of Musicians have constitutions and bylaws which govern the operations of the union. To some extent I am familiar with them.”
There was testimony to the effect that KFH had spent consid erable money in advertising and sponsoring the “Ark Valley Boys”; that they had contracts to fulfill with local and national advertisers; and that the contract between KFH and the Ark Valley Boys was of great value to the station.
It is well settled'that upon a demurrer to plaintiff’s evidence, his petition and evidence are accepted as true and will be construed favorably for the plaintiff. It remains then to ascertain whether plaintiff here, in the light of this favorable construction, has stated a cause of action for injunctive relief.
Many questions are raised by appellant on this appeal. However, 'for the sake of brevity they may be summed up as follows:
1. Can a party aggrieved at the action of a voluntary association, which action so far as direct effect is concerned expends itself wholly upon the members of the association, interfere in the internal management and discipline of the association to prevent such action because of the indirect injurious effect it has on the aggrieved party? Under the facts in the instant case, we think not.
No real purpose would be served by an extensive review of the history of the labor movement in the state of Kansas. It is sufficient to say that its progress has been charged with difficulty and, recently, touched with some degree of success. In the face of economic and social pressures, labor and its organizations have attained a status equivalent to that of other voluntary associations and organizations; their purposes and objectives have been recognized and classified, and it is the rule today that when the purposes and qbjectives of labor organizations are otherwise lawful, though they have the effect of inducing breaches of contract between employer and employee or employer and customer, the public interest in improving working conditions is of sufficient social importance to justify such peaceful labor tactics. (Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 112 P. 2d 631; Parkinson Co. v. Bldg. Trades Council, 154 Cal. 581, 98 Pac. 1027, 21 L. R. A. (NS) 550; Pierce v. Stablemen’s Union, 156 Cal. 70, 103 Pac. 324; O’Keefe v. Local 463 of Assn. of Plumbers, 277 N. Y. 300, 14 N. E. 2d 77; Cline v. Insurance Exchange of Houston, Tex. Civ. App., 154 S. W. 2d 491; affirmed in 140 Tex. 175, 166 S. W. 2d 677.)
It is settled doctrine that injuries remote and indirectly attributable to an originating cause cannot be made the subject of a legal action. (Downes v. Bennett, 63 Kan. 653, 66 Pac. 623.)
The law, gives .the defendants a right to sell their labor to whom they please, when and under such conditions as they'may fix, indi vidually or in combination. They may make rules and regulations, passed in good faith, providing for what they deem to be an economic advantage to themselves. If, in the enforcement of such rules and regulations they violate no law, but act solely for the declared purpose, the courts ought not and cannot legally enjoin them from such concerted action, simply because such action may affect some employers. (H. Lipman & Sons, Inc., v. Brotherhood, 63 Ohio App. 157, 25 N. E. 2d 853.) The articles of agreement of a benevolent association, whether called a constitution, charter, bylaws or any other name, constitutes a contract between the members which the courts will enforce if not immoral or contrary to public policy or the law of the land. (Brown v. Stoerkel, 74 Mich. 269, 41 N. W. 921, 3 L. R. A. 430, quoted with approval in McLaughlin v. Wall, 86 Kan. 45, 119 Pac. 541. See, also, 7 C. J. S. 33, § 11a; Lake of the Forest Club v. Buttles, 142 Kan. 538, 51 P. 2d 18; Bush v. International Alliance, 55 Cal. App. 2d 357, 130 P. 2d 788.)
Voluntary associations have the right to make their own regulations as to admission or expulsion of members, and one who becomes a member assents, by his membership, to the constitution and rules of procedure adopted by such an association. The constitution, rules and bylaws, knowingly assented to, become in effect a civil contract between the parties whereby their rights are fixed and measured. The constitution, rules and bylaws of a voluntary, unincorporated association constitute a “contract” between the association and its members and the rights and duties of the members as between themselves and in their relation to the association in all matters affecting its internal government and the management of its affairs are measured by the terms of such constitution and bylaws. (Bush v. International Alliance, supra; State of North Dakota v. North Central Ass’n, etc., 236 Fed. Supp. 694; Grand International Brotherhood, etc., v. Couch, 236 Ala. 611, 184 So. 173.)
In the instant case it is obvious that the pertinent provisions of the constitution and bylaws of the appellee organizations are not immoral or unlawful; we cannot say they are contrary to public policy. We do not now decide that the exercise or application of appellees’ bylaws and rules of procedure governing its power to discipline its members meets the requirements of the public policy of the state of Kansas. That question is not before us; there is nothing in the record to suggest that any action, other than a threat of expulsion and fine, was taken on behalf of the appellee, and that threat was made by an officer incapable of carrying it out under the pertinent bylaws and rules of procedure of the union. Appellant’s employees were free either to carry out their oral agreement with the appellant and accept the disciplinary action provided for by the bylaws of the union, or to comply with the terms of their agreement with the union in respect to employment in the jurisdiction of Local No. 297. It is true that a witness testified to the effect that .to secure employment it is necessary to be a member of the union. That is a so-called “fact of life” that we in organized society must accept. Certainly it has long been recognized that organization is a legitimate labor objective and the enforcement of the bylaws of a labor organization, if not illegal, immoral or contrary to public policy, is a reasonable corollary of that objective.
2. Appellant justifies its employees’ action in not presenting their membership cards to the local union for transfer prior to the time of any performance and the making of a contract, on the plea of custom in contravention of the bylaws. Ferguson testified that in other states he was permitted to engage in performances and make contracts prior to presenting to the local unions his card for transfer. He further testified he had no previous experience in making membership transfers in Kansas. We have held that to constitute a custom which tacitly attends the obligation of a contract, the habit, mode or course of dealing in the particular trade, business or locality, must be definite and certain; must be well settled and established; must be uniformly and universally prevalent and observed; must be of general notoriety; and must have been acquiesced in without contention or dispute so long and so continuously that contracting parties either had it in mind or ought to have had it in mind, and consequently contracted, or presumptively contracted, with reference to it. The requisites of a good custom must all be established by evidence which is clear and convincing. The very nature of the subject is such it is not enough that the evidence on the side of the existence of the custom merely preponderate — merely overbalance in some degree the weight of evidence on the other side. It must be of such cogency as to satisfy the mind and generate full belief. (Manufacturing Co. v. Merriam, 104 Kan. 646, 180 Pac. 224.) In order that it may be binding, a custom or usage must be known to the party sought to be charged or must be so notorious that knowledge of it will be presumed. (McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121.) The evidence construed in its most favorable light does not bring appellant within the mentioned rule.
Appellant cites many cases in support of his invocation of the injunctive process; all may be distinguished upon the facts. In Imperial Ice Co. v. Rossier, supra, an injunction was issued to restrain a competitor from inducing one who had contracted with plaintiff to refrain from engaging in the ice business in a specified area to breach that contract. There it was said that the interest of labor in labor conditions was sufficient justification for the inducement of a breach of contract by otherwise lawful means. In California G. C. Bd. v. California P. Corp., 4 Cal. App. 2d 242, 40 P. 2d 846, an injunction was granted restraining defendant competitor from inducing signatories of an agreement with plaintiff which contemplated the purchase and sale of grapes to breach the agreement. In American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 36 N. E. 2d 123, the controversy was between two labor groups and an injunction restraining defendant from exercising sanctions against the member of the rival group was affirmed. In New England Cement Gun Co. v. McGivern, 218 Mass. 198, 105 N. E. 885, an injunction was granted restraining a union from applying sanctions against an employer. That rule was followed in Harper v. Brennan, 311 Mich. 489, 18 N. W. 2d 905. Martin v. Luster, 85 F. 2d 833, cited by appellant, is completely irrelevant. Shine v. Fox Bros. Mfg. Co., 156 Fed. 357, in which the union was enjoined from sanctions against third parties, was decided in 1907, and is not the law today. Auburn Draying Co. v. Wardell, 227 N. Y. 1, 124 N. E. 97, decided in 1919, is subject to the same criticism as the Shine case, supra.
Appellant cites the case of Russell v. Bovard, 153 Kan. 729, 113 P. 2d 1064, as authority for the proposition that it is tortious conduct to induce one to breach a contract with another. The court announced the rule in its syllabus but made an important qualification; to quote: “Generally it is an actionable wrong for a third person without justification to induce one to breach a contract . . .” (Emphasis supplied.) To restate the instant case briefly: Appellant alleges that the appellee induced Ferguson to breach his contract with appellant; to fall within the rule sought for, it must be assumed that appellee was without justification. The record discloses that Ferguson was a member in good standing of the union; a voluntary association, and therefore bound contractually by its constitution and bylaws. The contract he made with appellant constituted a breach of his prior contract with the union. Can it be said that the union is not justified in invoking, or rather threatening to invoke, the penal clauses of its contract with Ferguson? We think not; upon review of authorities cited by appellant we find nothing that would lead us to reach a different conclusion.
In view of the foregoing, it is apparent that appellant has failed to state and prove a cause of action for injunctive relief, and the judgment of the trial court should be affirmed.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries alleged to have been caused by the negligence of defendant. The appeal is from an order overruling defendant’s demurrer to plaintiff’s petition as amended and supplemented and from orders sustaining plaintiff’s motion to strike portions of the defendant’s answer.
In his petition, filed March 4, 1949, plaintiff alleged the place of his residence; that defendant is a corporation organized under the laws of Kansas, with its principal place of business in Wichita; that on July 22, 1948, plaintiff was in the employ of Ebasco Services, Inc., a corporation, hereinafter called Ebasco, which was engaged in the construction of a compressor plant for the Kansas Gas and Electric Company at Ripley; that at the same time and place defendant, The Martin K. Eby Construction Company, Inc., a corporation, hereinafter called Eby, was engaged in doing certain work in connection with the construction of the building as a subcontractor of Ebasco; that about 10:30 a. m. of that day plaintiff was working in a ditch on the premises of the Kansas Gas and Electric Company, above mentioned, and defendant was engaged in masonry work on an overhead scaffold; that as plaintiff was so engaged in the course of his employment for Ebasco in digging the ditch the defendant, by and through its authorized agents, servants and employees, whose names are unknown to plaintiff but well known to defendant, negligently and carelessly dropped from the scaffold, which was located approximately forty feet above the ground, two bricks, one of which struck the plaintiff on the head, rendering him unconscious and throwing him forward in the ditch which he was engaged in digging; that plaintiff was removed to the hospital, but did not regain consciousness until the next day, and that he was confined in the hospital from July 22 to August 2, 1948. In paragraph 6 of the petition plaintiff’s injuries were described and his weekly wages and doctor and hospital bills were stated. In the next paragraph plaintiff alleged that his injuries were the direct and proximate result of defendant’s negligence in certain particulars, which were stated. In the prayer of the petition plaintiff asked judgment for $20,227.50. Defendant attacked the petition by motions and other pleadings, but the rulings of the court thereon are not presented here for review.
On October 3, 1949, before defendant had filed an answer, plaintiff filed an amendment and supplement to his petition in which the allegations originally made in paragraph 6 respecting plaintiff’s injuries were extended to show injuries greater than those stated in the original petition, and the sum prayed for was increased in the prayer to $30,227.50.
This petition as amended and supplemented was attacked by motions and other pleadings, but the rulings of the court thereon are not presented for review here, and defendant filed an answer and plaintiff filed a reply, but these instruments are not before us for review.
On December 17, 1949, at a pretrial conference, authorized by chapter 318, Laws of 1949, plaintiff was given leave to file an additional amendment and supplement to paragraph 6 of the petition, which alleged further injuries to plaintiff than had been alleged in the original petition or in the first amendment and supplement thereto, and the amount prayed for was increased to $52,267.50. On the same date defendant was given ten days to plead to the petition as amended and supplemented, and twenty days to answer.
On December 30, 1949, defendant filed two motions. The first was a motion to strike the amendment and supplement to the petition upon the ground that it was filed more than a year after plaintiff’s injuries and was barred under G. S. 1947 Supp. 44-504. The other was an alternative motion to make as parties defendant Ebasco and the Travelers Insurance Company, its insurance carrier, upon the ground that under the petition as amended the sole and proximate cause of plaintiff’s injuries were the acts, omissions, commissions and negligence on the part of plaintiff’s employer, Ebasco, and in support of this motion and the reasons therefor defendant alleged that the plaintiff is not the sole real party in interest entitled to prosecute the action, as required by G. S. 1935, 60-401; that the Ebasco is a foreign corporation doing business in Kansas, as is also the Travelers Insurance Company; that each of them has or claims to have an interest in the subject of the action and in obtaining the relief demanded, which claim of interest is adverse to plaintiff, and that they are indispensable parties under G. S. 1935, 60-410 and 60-411; that Ebasco and .this defendant were each engaged in construction work, operating subject to our workmen’s compensation law; that plaintiff made a claim against Ebasco under the workmen’s compensation law, and received an award. Attached to this motion was an exhibit containing all of the proceedings before the workmen’s compensation commissioner in that proceeding and a letter from Ebasco’s insurer to Eby, advising Eby the amount of the insurance paid as the award and expense and a claim of subrogation in the event of Eby’s liability.
Defendant’s motion to strike the amendment and supplement to plaintiff’s petition, and also its alternative motion to make additional parties plaintiff or defendant, were considered by the court and denied. Defendant then filed an answer which contained a general denial, except as to matters specifically admitted, then admitted the allegations of the first three paragraphs of the petition relative to the parties and their employment, pleaded that any damages sought to be recovered under a pleading filed subsequent to July 22, 1949, were barred by the provisions of G. S. 1947 Supp. 44-504, and in the third paragraph alleged that if plaintiff suffered any injuries, as alleged in his petition, the same occurred at a time and place where plaintiff and defendant were each engaged in the course of employment as employees and subcontractors of Ebasco, which was operating under the workmen’s compensation act, which act afforded plaintiff an exclusive remedy, and that the district court had no jurisdiction; in the fourth paragraph alleged that plaintiff and defendant were engaged as co-workers or fellow servants for Ebasco at the time of plaintiff's alleged injury, and that any right of action plaintiff had is limited by the workmen’s compensation law, and that the district court was without jurisdiction. The fifth paragraph contained allegations to the effect that Ebasco and its insurer were necessary parties to the action. The sixth paragraph alleged that on July 22, 1948, the plaintiff was engaged in common employment with defendant in the construction of the building, described the nature of the work, and alleged negligence on the part of Ebascó and the plaintiff which barred plaintiff’s recovery, and the seventh paragraph alleged the assumption of risk. The prayer of the answer was that plaintiff be denied any recovery under the allegations contained in the amendment and supplemental petition filed subsequent to July 22, 1949, for the reason that any action thereunder is barred by the statute of limitations; that the action be dismissed for the reason that the court is without jurisdiction, or in the alternative that Ebasco and Travelers Insurance Company be made parties; that plaintiff have and recover nought from defendant by reason of his alleged cause of action; that defendant recover its costs, and that defendant recover such other and further relief to which it may be entitled.
Plaintiff moved to strike the third, fourth, fifth, sixth and seventh paragraphs of defendant’s answer, and this motion was in substance sustained by the court. Defendant then demurred to plaintiff’s petition on practically all of the statutory grounds. The demurrer was considered by the court and overruled.
On February 20, 1950, J. O. Wilson filed a motion in which he advised the court that plaintiff was on that date adjudged incompetent by the probate court of Sedgwick county and that he had been appointed guardian of the estate of the plaintiff, and asked that he be substituted as party-plaintiff for Charles L. Davison, an incompentent person, and be permitted to file an amendment to the petition showing that appointment. The amendment to the petition was duly made. No complaint is made of this. Defendant timely appealed and specified the following errors:
“First: The Trial Court erred in overruling appellant’s motion to strike Amendment and Supplement To Petition filed December 20, 1949, by appellee, which was in effect a demurrer to said amendment and supplement to petition.
“Second: The Trial Court erred in overruling appellant’s Alternative Motion to Make Additional Parties Plaintiff or Defendant to said action as amended by Amendment and Supplement to Petition filed December 20, 1949, by appellee.
“Third : The Trial Court erred in overruling appellant’s demurrer upon the statutory grounds therein stated, to the appellee’s petition, as amended.
“Fourth: The Trial Court erred in sustaining appellee’s motion to strike paragraphs Third, Fourth and Fifth from appellant’s Amended Answer to Plaintiff’s Answer as Amended and Supplemented, which was in effect a demurrer to said paragraphs of appellant’s answer and defenses to said cause of action as amended.”
Under the first error assigned counsel for appellant argue that the second aménded petition, which included allegations of additional injuries from those previously stated and asked for an increased sum in damages, stated a new cause of action which was barred by our statute of limitations (G. S. 1935, 60-306, third). The point is not well taken. The general rule applicable is well stated in 54 C. J. S. 340, as follows:
“An amendment enlarging the prayer or the relief sought, as by seeking increased damages, does not introduce a new cause of action subject to the plea of limitations.”
See, also, Contracting Co. v. Railway Co., 102 Kan. 799, 172 Pac. 527. Our statute (G. S. 1935, 60-759) authorizes the court to permit an amendment to the pleadings by inserting other allegations material to the case which do not change substantially the claim or defense. The court did not err in permitting the second amended petition to be filed.
The second and fourth errors assigned may be treated together since they pertain to the same matter, raising, first by motion and later by answer, the question whether Ebasco and its insurer should be made parties defendant and the proceedings in the claim of plain tiff against Ebasco for compensation should be set out as a defense!* The pertinent portion of the applicable statute (G. S. 1947 Suppi 44-504) reads: ,.- •' *
“When the injury ... for which compensation is payable under this act was caused under circumstances creating a legal liability against sonie per-! son other than the employer to pay damages, the injured workman -f ■ ....:. shall have the right to take compensation under the act and pursue his . ’,,. remedy by proper action in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured wdrkman, ... by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him, to date of such recovery and shall have a lien therefor against such recovery, and the employer may intervene in any action to protect and enforce such liep. Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury, . . . Failure bn the' part of the injured workman, ... to bring such action within the tiine herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman . . . may have against any other party for such injury . . . and such employer may enforce same in his own name or in the name of the workman, dependents or personal representative for their benefit as their interest may appear by proper action in any court of compe-' tent jurisdiction.” 1
Under this statute Davison had a right to claim compensation from Ebasco and its insurer and to maintain his action against Eby’ for damages. The action against Eby was brought within a year, hence there could be no assignment of Davison’s claim in tort against' Eby. Since Davison recovered on his claim against Ebasco and its'’ insurer for compensation, Ebasco was entitled to subrogation for the’ amount his insurer paid for him, and that claim of subrogation was' made in a notice given by the insurer to Eby. ' '
Since Davison had authority under the statute above mentioned to receive compensation from Ebasco, and at the same time maintain' an action in tort against one not his employer, the fact that he did claim and receive compensation under the compensation act from Ebasco is of no concern to Eby in this action. The trial court correctly ruled in striking his alternative motion and also in striking the portions of the answer which pertained to plaintiff’s recovery of' compensation from Ebasco. This view is sustained by a long line of our decisions:
Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; Riddle v. Higley Motor Co., 122 Kan. 458, 252 Pac. 231; Jolley v. United Power & Light Corp., 131 Kan. 102, 105, 289 Pac. 962; Early v. Burt, 134 Kan. 445, Syl. 6, pp. 453, 455, 7 P. 2d 95; Acock v. Kansas City Power & Light Co., 135 Kan. 389, 394, 10 P. 2d 877; Cooke v. Bunten, 135 Kan. 558, 561, 11 P. 2d 1016; Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P. 2d 829; Long v. American Employers Ins. Co., 148 Kan. 520, 525, 83 P. 2d 674; Pattrick v. Riggs, 148 Kan. 741, 84 P. 2d 840; Krol v. Coryell, 162 Kan. 198, 203, 175 P. 2d 423; Clifford v. Eacrett, 163 Kan. 471, 476, 477, 183 P. 2d 861; Elam v. Bruenger, 165 Kan. 31, 193 P. 2d 225.
The section of our workmen’s compensation act (44-504) was amended more than once since originally written, and some of the cases cited deal with the specific amendments. The last amendment in 1947 leaves the statute substantially the same as it was when Moeser v. Shunk, supra, and Riddle v. Higley Motor Co., supra, were written.
Under the third error assigned counsel for appellant argue two propositions. The first is whether under the allegations of the petition was the “injury” for which plaintiff seeks to recover “caused under circumstances creating a legal liability against some person other than the employer to pay damages,” as those terms are used in G. S. 1947 Supp. 44-504. Counsel propose a “new” issue under the workmen’s compensation act which, they say, under the facts of this case has never received conclusive consideration by this court. The crux of the proposition, briefly stated, is: A building was being constructed; part of the work was being done by Ebasco and part of it was being done by Eby; each of them had employees working on the job; all such employees were co-workers and fellow-servants constructing the building, and, under the spirit and intent of the workmen’s compensation act, none of such employees should recover either from Ebasco or from Eby, except under the provisions of the workmen’s compensation act. The argument of counsel on this point is lengthy and involved. They cite and rely somewhat upon the following of our cases, none of which is directly in point:
In Bell v. Hall Lithographing Co., 154 Kan. 660, 121 P. 2d 281, plaintiff was a special employee of defendant, which was operating under the workmen’s compensation act. Here Davison was not any kind of an employee of Eby. In Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701, defendant, operating under the workmen’s compensation act, was the principal contractor. Bailey was an employee of a subcontractor. That is not the situation here. In Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613, defendant was operating under the workmen’s compensation act and contracted with the telephone company to do certain electrical work in its plant, which was a part of its trade or business. Defendant was treated as the principal contractor and the telephone company as a subcontractor to whom defendant was liable only under the workmen's compensation law. In Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78, defendant was operating under the workmen’s compensation act. Plaintiff’s wife met her death by accident while working for defendant. His children recovered compensation under the act. Thereafter plaintiff brought a common law action against his wife’s employer. That is not the situation here. In Winkleman v. Boeing Airplane Co., 166 Kan. 503, 203 P. 2d 171, defendant was operating under the workmen’s compensation act. The sole question in the case was whether plaintiff’s injury was the result of an accident for which defendant would be liable under the act.
Although there appears to be no case in this state in which' an employee of the principal contractor sued the subcontractor for injuries caused by his negligence, such cases have arisen in other states having statutes similar to our own, in which the plaintiff was permitted to recover. We list a few of them: Dillman v. John Diebold & Sons Stone Co., 241 Ky. 631, 44 S. W. 2d 581; Sloan v. Harrington, 117 Neb. 809, 223 N. W. 663; Parkhill Truck Co. v. Wilson, 190 Okla. 473, 125 P. 2d 203; Robinson v. Atlantic Elev. Co., Aplnt., 298 Pa. 549, 148 A. 847; Standard Acc. Ins. Co. v. Pennsylvania Car Co., 49 F. 2d 73 (construing a Texas statute); Bagnel v. Springfield Sand & Tile Co., 144 F. 2d 65 (construing a New York statute).
Indeed, there are a number of cases in which plaintiff has maintained a common-law action for damages against his fellow-employee or his foreman, but we shall not take time to go into those.
We think the question presented is governed by the plain language of our statute, which need not be again quoted. If the injury for which damages are sought is caused by someone other than the employer of the workman, the common law action may be maintained.
The second contention made by counsel for appellant under the third error assigned is that the petition on its face shows plaintiff to be guilty of contributory negligence. The argument on that point is that plaintiff knew Eby’s men were working above him, laying brick, and that he should have kept watch to see that they did not negligently permit bricks to fall, or that he should in some way have erected something over him to keep any bricks which might fall from striking him. We think this argument lacks merit. Plaintiff could not keep digging in the ditch where his employer had placed him to work and keep a constant lookout above him for falling bricks; neither was he required to anticipate the negligence of defendant in permitting bricks to fall.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a judgment of the lower court setting aside the appointment of an administrator de bonis non as void, thereby nullifying all acts of the administrator in such capacity. Briefly the facts are as follows: After the death of the executrix, who was one of two heirs sharing equally in the estate, the attorney who had represented the estate filed a petition in the probate court to be appointed administrator de bonis non and, without giving notice or filing written waiver thereof as required by G. S. 1947 Supp. 59-2222 and 59-2223, was so appointed by the court and letters of administration were issued to him. Thereafter the administrator de bonis non petitioned the court for an order authorizing him to sell at private sale all real estate belonging to the estate and also a forty-acre tract which was not a part of the assets of the estate, for the purpose of paying debts of said estate and the costs' of administration; subsequently the order was entered and sale duly made to named purchasers, although at the time the petition was filed for authorization to sell the real estate, no valid claim was pending against the estate, no claim had been allowed, and the time for filing claims had expired. This action was filed in probate court by two sons and heirs of the deceased executrix, who were in military service at the time of appointment of the administrator de bonis non, asking that the administrator’s sale of real estate belonging to the estate be set aside. After denial of their petition by the probate court, the case was appealed to the district court and tried de novo; the court made findings of fact and conclusions of law which were excepted to by the respondents (appellants here), the administrator de boms non and the executors and heirs of the estate of the purchasers of said real estate at the administrator’s sale. The exceptions were overruled and judgment was entered by the district court setting aside the order of the probate court appointing the administrator de bonis non and nullifying all his acts in such capacity. Motions for new trial filed by all appellants were overruled by the lower court.
The case comes to this court on what is termed a notice of appeal which, omitting the formal parts, reads as follows:
“You and each of you, are hereby notified that . . . [appellants herein] ... do hereby appeal to the Supreme Court of the State of Kansas from the judgment and decree of the Court, made and entered in the above entitled cause on the 16th day of April, 1949.”
On appeal, appellants set forth the following three specifications of error:
1. The Court erred in overruling exceptions to Findings of Fact and Conclusions of Law of respondents.
2. The Court erred in overruling Motions for New Trial of respondents.
3. The Court erred in rendering judgment in favor of petitioners and against respondents.
The first specification of error challenges the findings of fact and conclusions of law. These trial errors must be first raised on a motion for new trial, and may be reviewed here only on appeal from the lower court’s order on that motion. There was no such appeal in this case.
The second specification of error complains that the court below overruled the motions for new trial. However, this appeal is only from “the judgment and decree of the court” and we have held that an appeal perfected only from a judgment and decree does not constitute an appeal from an order overruling a motion for new trial and this court has no jurisdiction to review errors in such judgment (Salt City B., L. & S. Ass’n v. Peterson, 145 Kan. 765, 766-7, 67 P. 2d 564, and cases therein cited).
In regard to the third specification of error, this court has repeatedly held that an assignment of error to the effect that the trial court erred in rendering its judgment amounts to nothing more than a statement that the decision is wrong; it does not specify any error, and presents no reviewable ruling to an appellate court (Hamilton v. Binger, 162 Kan. 415, 418, 176 P. 2d 553, and cases there cited; Cimarron Co-operative Equity Exchange v. Warner, 166 Kan. 190, 192, 200 P. 2d 283; Bisagno v. Lane, 168 Kan. 153, 157, 211 P. 2d 85).
Since the record presents no question which is open to appellate review, the appeal must be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order sustaining a demurrer to plaintiff’s evidence in an action to recover for damage to plaintiff’s automobile sustained in an intersection collision with the automobile of defendant.
The petition alleged that at the time of the collision plaintiff’s automobile was being driven by his son Tom and it was framed on the theory that the two automobiles collided as a result of the concurrent negligence of defendant and plaintiff’s son in that defendant’s negligence consisted in not maintaining a proper lookout; not slowing down his vehicle before entering the intersection; not having proper lights, and in driving at a high and dangerous rate of speed; and that plaintiff’s son’s negligence consisted in failing to have plaintiff’s automobile under control so that he could avoid the collision. It was further alleged:
“ • . . that the acts of negligence of the defendant and of Tom Rork hereinbefore mentioned were concurring acts of negligence which were the proximate cause of the damage which resulted to the plaintiff.”
The defendant filed a motion to make the petition more definite and certain by setting out in more detail the acts of negligence of plaintiff’s son. This motion was overruled. Defendant then filed his answer in which he admitted plaintiff’s son was guilty of negligence as alleged in the petition, and denied his own negligence.
Trial was commenced before a jury and in his opening statement counsel for defendant admitted that plaintiff’s son was negligent in the operation of plaintiff’s car at the time of the collision.
Briefly summarized, plaintiff’s evidence showed that in the nighttime plaintiff’s son was driving plaintiff’s car west on Sixth street in the city of Topeka; that as he approached the intersection of Sixth street and Gage boulevard he slowed down in order to turn south on Gage boulevard, and that as the car entered the intersection it was struck by the car driven by defendant which was proceeding north on Gage boulevard. The evidence further showed that there was no stop sign at either corner of the intersection and that defendant was driving at a high rate of speed and without lights. Plaintiff’s son disclaimed any negligence on his part and testified that he had the car under control.
Plaintiff was not a passenger in his car and his son was not engaged in any undertaking for plaintiff at the time in question.
At the conclusion of plaintiff’s evidence defendant demurred as follows:
“Comes now the defendant and demurs to the evidence of the plaintiff for the reason that the evidence fails to show the plaintiff and defendant, driver of plaintiff’s car and defendant, were both guilty of concurrent negligence: for the further reason that the evidence fails to show the defendant was guilty of any negligence which would permit the plaintiff to recover in this case.”
Following argument on the demurrer the trial court discussed the matter at length and sustained it on the ground that since the action had been brought on the theory that it was the concurrent negligence of both drivers which was the proximate cause of the collision, and that as plaintiff’s evidence absolved his son of any negligence and merely established negligence on the part of defendant, plaintiff would be precluded from recovering from defendant. In other words, the trial court took the position that plaintiff’s failure to establish concurrent negligence, as alleged in his petition, was fatal to his cause of action against defendant, and the correctness of that ruling is the question before us for review.
In support of the lower court’s ruling defendant argues that plaintiff chose to bring his action on the theory of concurrent negligence as being the proximate cause but then very carefully established that his son was without fault and therefore is precluded from recovering from defendant, and cites language in our decisions to the effect that the negligence charged must be the proximate or legal cause and that negligence, no matter of what it may consist, cannot create a cause of action unless it is the proximate cause of the injury of which complaint is made. (Kinderknecht v. Hensley, 160 Kan. 637, 164 P. 2d 105; Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; Flaharty v. Reed, 167 Kan. 319, 205 P. 2d 905.)
On the other hand, plaintiff contends that in a case of alleged joint tort-feasors the injured party may sue any one or all and recover from any or all whose negligent acts are shown to have been a sole or concurring proximate cause of the damage or injury sustained.
Just why plaintiff elected to bring his action on the theory that he did is not shown by the record, but be that as it may we believe that the trial court took too narrow a view of the question before it.
The general rule is that where two or more persons concurrently participate in a wrong which operates in causing injury to another, all wrongdoers are jointly and severally liable. Substantially concurrent negligent acts of two or more persons render all liable as joint tort-feasors where the act or acts of each contribute as a proximate cause to the injury. (Swayzee v. City of Augusta, 113 Kan. 658, 216 Pac. 265; Acock v. Kansas City Power & Light Co., 135 Kan. 389, 10 P. 2d 877; Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614; Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924.)
In the case before us plaintiff did not elect to make his son, an alleged joint tort-feasor, a party defendant, but even had he done so and then established negligence only on the part of the other defendant we do not understand the rule to be that he would thus be barred from recovering against such defendant merely because of his failure to establish liability on the part of such other alleged joint tort-feasor. The general rule is that in such a situation a plaintiff is entitled to recover against any defendant joint tort feasor on whose part negligence amounting to a proximate cause of the damage or injury is established. Joint or concurrent action is necessary to establish joint liability, but if any one of several defendat tort-feasors was not negligent that defendant is not liable. In the case of Lenfestey Broom Works v. Atchison T. & S. F. Rly. Co., 123 Kan. 104, 254 Pac. 343, recovery was sought against three alleged joint tort-feasors. The proof failed as to one of the defendants but was established against the others and this court held that the demurrer to the evidence should have been sustained as to the one and overruled as to the remaining two. (See, also, Webb v. City of Chanute, 118 Kan. 505, 235 Pac. 838.)
Plaintiff calls our attention to the fact that a party to an action is not required to prove allegations which his adversary admits to be true, and that since defendant admitted plaintiff’s son was negligent it was unnecessary for plaintiff to establish negligence on the part of his son. However, we prefer to base our decision on what we consider to be the real issue involved, and, as has been said, the rule is well settled that where two or more defendants are sued as joint tort-feasors failure of proof ágainst one of them does not relieve the other of liability provided the proof establishes actionable negligence on the part of the latter. While in the case before us the other alleged joint tort-feasor was not made a party defendant, yet the same rule would apply. Here the plaintiff’s evidence, as tested by the demurrer, established actionable negligence on the part of defendant and we think the demurrer was erroneously sustained.
It therefore follows that the judgment of the lower court is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Wedell, J.:
The original opinion in this case appears as Shafer v. State Highway Commission, 168 Kan. 591, 215 P. 2d 172.
Plaintiff obtained a judgment in a damage action involving our defective highway statute. (G. S. 1935, 68-419.) This coürt'reversed the judgment. The nature of the action, a general summary of the material facts then presented and the contentions of the'-fe* spective parties are fully set forth in the original opinion and ále hereby referred to without repetition.
Only two other factors are to be considered on this rehearing. Thiey pertain to additional evidence on the question of what constituted the alleged defect and whether such defect occasioned the injuries coinplained of. A rehearing was granted to appellee on a showing material evidence in support of the former judgment was not included in the abstracts originally presented to this court, the absence of which affected this court’s decision. The absence of certain evidence now presented did affect our decision. The findings of the jury fully set forth in the former opinion included question and answer No. 2, which reads:
“ ‘2. Q. If you answer question No. 1 in the affirmative describe fully and in detail such defect or defective condition. A. Depression in roadway 18 feet East by West — 20 feet North and South, with chuck hole approximately ZVz or 4 inches deep by 30 inches across.’ ” (p. 594.) (Our italics.)
In the former opinion this court said:
“A search of the record discloses no evidence the driver of the motorcycle struck the chuckhole. We, therefore, need not determine whether such a chuckhole in a blacktop road constitutes a defect within the purview of G. S. 1935, 68-419.” (p. 595:)
In view of that situation this court proceeded to consider and determine only whether the depression without the chuckhole constituted a defect within the purview of the defective highway statute and concluded it did not. In the supplemental testimony furnished to this court by appellee in support of his petition for rehearing there is testimony indicating the motorcycle struck one of the chuckholes located in the tracks of the traveled portion of the road.
We would not be inclined to consider the evidence now presented to this court except for the fact appellant did not originally contend in its brief the motorcycle did not run into the chuckhole. It appears that in view of appellant’s failure to so contend appellee did not abstract the testimony showing the motorcycle did strike the chuckhole. The absence of such evidence in the former abstracts was first noticed when this court on oral argument of the case directed attention to the fact the abstracts did not appear to show the motorcycle struck the chuckhole. When that occurred counsel for appellee promptly should have asked leave to supply the testimony instead of permitting this court to decide the appeal without it. We are considering the supplemental testimony only because failure to do so would deprive a client of having a judgment in his favor fairly reviewed.
. Having concluded to reconsider the appeal with the supplemental evidence we shall determine whether the condition constituted a defect in the highway. In doing so we are now confronted with the question whether the condition of the highway, namely, the depression, or sunken place, three and one-half to four inches deep, as shown by the evidence analyzed in our former opinion, when combined with a chuckhole also three and one-half to four inches deep located in the depression and in the tracks of the traveled portion of the road, constituted a defect within the meaning of the statute.
The jury apparently intended to say the two conditions combined constituted the defect. In finding No. 2, previously quoted, the jury’s answer was, “Depression . . . with chuckhole. . . .”
It will serve no useful purpose to again review our previous decisions and to make a factual comparison of cases in which recovery was allowed or denied. Our previous decisions have all been reviewed in cases' cited in the original opinion in this case and we shall not repeat that review.
In the former opinion we said:
“There is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition constitutes a defect. Some conditions may be so patently dangerous as to clearly constitute a defect while others may be so trifling as to be clearly outside the purview of the statute. (Collins v. State Highway Comm., 134 Kan. 278, 283, 5 P. 2d 1106; Douglas v. State Highway Comm., 142 Kan. 222, 226, 46 P. 2d 890.) It is, therefore, the policy of courts to handle each case separately and to either include it in or exclude it from the operation of the statute. (Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P. 2d 834.) Where the circumstances are such 1hat an alleged defect cannot be excluded from the operation of the statute as a matter of law it presents a case for a jury. (Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051; Collins v. State Highway Comm., supra; Cheney v. State Highway Comm., 142 Kan. 149, 153, 45 P. 2d 864.)” (p. 597.)
Certainly the lawmakers never intended mere irregularities, rough spots, slight depressions or small broken places in a blacktop highway should constitute defects within the meaning of the defective highway statute. If that were intended damage actions might easily exhaust the funds designed to build and maintain a highway system.
On the other hand we think the facts in this case bring it within our decisions which hold that whether the conditions constituted a defect presented a jury question.
In view of the general verdict and the findings in his favor appellee, of course, is entitled to have the evidence considered in the light most favorable to him. (Dinsmoor v. Hill, 164 Kan. 12, 14, 187 P. 2d 338.) So considered the jury may have believed the sunken place or depression was four inches deep. It is common knowledge such a depression across a highway often is not easily discernible and may cause a vehicle to flip considerably in passing over it. Here, however, that depressed condition of the highway was augmented by chuckholes three and one-half to four inches deep on each side of the culvert located in the regular tracks made by the wheels of vehicles. There was evidence by both appellee’s and appellant’s witnesses that a chuckhole existed along the north side of the roadway immediately east and west of the culvert and that similar chuckholes were located on the south side of the road. The jury was justified in believing the bottom of the particular hole which the motorcycle struck was eight inches below the top surface of the surrounding portion of the road. There was evidence the chuckholes were the same color as the surface of the blacktop. There was also evidence farmers using the road at times had difficulty observing the chuckholes in time to prevent the wheels of their vehicles from dropping into them.
Appellant argues appellee was guilty of contributory negligence.' This depends upon whether we can say, as a matter of law, appellee, a guest on the motorcycle, should have seen the defect and warned his brother in time to avoid it. We have already commented on the difficulty other drivers had in observing the defect. Appellant argues appellee admitted he did not always hold onto the vehicle with his hands and that he had waved to people along the highway. Appellee did so admit but he did not admit doing so in the immediate vicinity of the accident. The jury expressly found he was not guilty of negligence at the time and place of the accident. (Finding 11.) A review of the evidence convinces us we cannot say appellee was' guilty of negligence as a matter of law. (Houser v. Nelson, 133 Kan. 142, 147, 298 Pac. 777.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Otis Bradford was prosecuted under an information charging him with an offense under G. S. 1935, 21-435. He was found guilty as charged, his motion for a new trial was denied, and he was sentenced under the statute. In due time he perfected his appeal to this court.
The gist of the information filed was that defendant Bradford struck one McGill on the head with a shovel, maiming, disfiguring and causing great bodily harm to and endangering the life of McGill, in such case and in such circumstances which would constitute murder or manslaughter if death had ensued, contrary to the provisions of G. S'. 1935, 21-435. The abstract of the record contains none of the state’s evidence, and appellant does not complain there is no evidence to sustain the verdict. There is a showing of defendant’s evidence bearing on the question of self-defense. The abstract fails to show that defendant made any objections to the instructions given or that he requested any further or additional instructions. The state’s counter abstract shows that defendant did request an instruction substantially identical with instruction 7 hereafter quoted in full.
As most of appellant’s claims of error are directed to the trial court’s instructions to the jury, we shall review those instructions sufficiently to discuss the contentions made concerning them.
Instructions 1 and 2 set out the substance of the charge and the defendant’s plea of not guilty! Instruction 3 stated the information was filed under G. S. 1935, 21-435, which is quoted in full. Instruction 4 advised the jury that if they did not find defendant guilty of the principal offense charged in the information they should consider whether he was guilty under G. S. 1935, 21-436, which is set out in full. Instruction 5 advised the jury that where an information sets out facts to constitute the offense charged in G. S'. 1935, 21-435, and the facts set forth also constitute the offense of simple assault as set forth in G. S. 1935, 21-436, then the jury may find the defendant guilty of either of said offenses as the evidence may justify. Under instruction 6 the jury was advised that in connection with the offense charged in the information it was the court’s duty to define the following terms, and then follows definitions of “unlawfully,” “feloniously,” “assault,” “murder,” manslaughter” and “malice aforethought” following which the court stated the definitions were given, not because murder or manslaughter was the charge but because the terms were used in the statutes which had been quoted. Instruction 7 reads as follows:
“Gentlemen of the jury, you are further instructed that when a person is threatened with an immediate attack by another who is in striking distance and has the apparent means and ability to at once execute the' threat, the person thus threatened with attack may act upon what are then the appearances of the situation and may graduate the force of his resistance to the apparent threat of attack, and if he acts in good faith upon what are then the appearances of the nature of the threat he will be justified in using reasonable force to protect himself.”
The remainder of the instructions need not be reviewed as the contentions of the appellant do not bear thereon.
Appellant presents his contentions in the form of ten questions, which will be treated in the order set forth in his brief.
1. Did the trial court err in instruction 6 in defining murder and manslaughter? Under this heading he presents no argument nor any citation of authorities. As applied to the facts of this case we discern no prejudicial error.
2. Did the trial court err in instruction 6 in defining malice and malice aforethought? The argument is that malice is not involved in the crime charged and the definitions should not have been in- eluded. Appellant does not contend that the definitions are inherently wrong. We think it clear the definitions were given to amplify the definitions of and distinguish between murder and manslaughter, both of which words were used in the information and in the statute upon which the prosecution was founded. Appellant did not object to the instruction when it was given, it is not inherently wrong and there is no showing that it prejudiced the appellant, and the answer to this question is in the negative.
3. If instruction 6 was correct, did the trial court err in failing to instruct on the different degrees of murder and manslaughter and on justifiable and excusable homicide? In our opinion it did not. Defendant was not being tried for murder or for manslaughter. Under the statute for which appellant was being tried it was immaterial as to what degree of murder or of manslaughter he would have been guilty if death had ensued, and instructions .as to degrees would have been improper. Insofar as justifiable and excusable homicide are concerned, again it is to be remembered that appellant was not being tried for any homicide. “The question of appellant’s right to an instruction on self-defense is treated later.
4. Did the trial court err in failing to give sufficient instructions on self-defense? Directing attention to instruction 7, appellant argues the instruction does not go far enough; that it is too limited in its over-all content; that it does not direct specific attention to the natural right of every man to protect himself; that he is not compelled to retreat or flee from his adversary, and when attacked he may stand his ground and use such force as at the time reasonably appears to be necessary, and our attention .is directed to State v. Bohan, 19 Kan. 28; State v. Keehn, 85 Kan. 765, 118 Pac. 851; and State v. Snow, 121 Kan. 436, 247 Pac. 437. There is no doubt but that in a trial for a felony the court must state to the jury all matters of law which are necessary in giving their verdict (G. S. 1935, 62-1447). In the instant case the appellant requested an instruction which was almost word for word, and certainly in substance was identical, with the instruction given. No other or further request was made, nor was there any objection that the instructions given did not fully cover the matter of self-defense. It would be idle to say that the instruction could not have been more lengthily stated, and the various elements included treated in more detail, but we are of the opinion that the instruction given, in very terse language included every element which appellant urges should be included. It has been held on more than one occasion that the failure in a criminal prosecution to give more ample and explicit instructions, not requested, where correct instructions on the law of the case were given, is not error. See, e. g., State v. Peterson, 38 Kan. 204, 16 Pac. 263; State v. Estep, 44 Kan. 572, 24 Pac. 986; State v. Taylor, 119 Kan. 260, 237 Pac. 1053; State v. Brown, 145 Kan. 247, 65 P. 2d 333. As was said in State v. Wilson, 108 Kan. 433, 436, 195 Pac. 618:
“If the defendant desired an elaboration of the instruction or that a particular feature of it should be emphasized he should have requested such an instruction, but it was not asked.”
The contention of the appellant is not sustained.
5 and 6. Did the trial court err in failing to give an instruction that if the jury found that appellant was assaulted on his own premises by McGill, without fault on his part, he was not required to retreat but might stand his ground and use such force as was necessary to repel the attack, and did the trial court err in failing to give an instruction with reference to the provocation of the assault with which appellant was charged? With respect to these two questions appellant refers to his argument under question 4. What is said under that heading suffices here.
7. Did the trial court err in failing to instruct the jury as to the nature, character and propensity of the shovel for maiming, wounding, disfiguring and causing great bodily harm to and endangering the life of McGill? No request for such an instruction was made and what has been said heretofore in that particular has application here. Appellant’s only contention is that he had been in an automobile accident and was unable to use his right hand and arm, could not grip with his hand and used the hand merely as a brace when he held the shovel in his hands. No citations of authority are given in support. Appellant has not seen fit to include in his abstract any of the state’s evidence and we are not advised as to any of the details of the altercation between appellant and McGill. We have difficulty in learning the exact point of argument. The statute makes no reference to dangerous instruments or weapons, and it seems somewhat immaterial, whether appellant used a shovel, a club, a broom or what not if, in fact, he maimed, wounded or disfigured McGill. In any event, it has not been made to appear that failure to give an instruction of the kind indicated prejudiced appellant.
8. Did the trial court err in denying appellant’s motion for a new trial? The only argument made is that if the trial court erred in its instructions, a new trial should have been granted.
9. Did the trial court err in failing to give an instruction that the offense of simple assault is an offense less than a felony? In the absence of a request for a more explicit instruction we think that instruction 4 sufficiently covers the matter.
10. The substance of this question is a claim the trial court erred in permitting the jury to separate. The appellant’s brief recognizes there is nothing in the record to support the contention. For that reason it will not be discussed.
An examination of the entire record as abstracted discloses no error prejudicial to the appellant and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
Plaintiff brought this action against thirteen different defendants to recover damages both actual and punitive, alleged to have been sustained by him as a result of their action in permitting salt water and other mineralized liquids to escape and flow upon his lands from certain of their oil and gas operating leaseholds.
Issues having been joined, by pleadings which are not in controversy and hence require no further reference, the cause was tried by a jury. At the close of plaintiff’s case each and all of the de fendants demurred to his evidence. All such demurrers, except those interposed by defendants The Texas Company, a corporation, Atlantic Refining Company, a corporation, and Joseph S. Kantor, an individual, were sustained. No appeals- were taken from those rulings and the trial then proceeded against the three defendants last named.
At the end of a spirited trial the cause was submitted to the jury which eventually returned two general verdicts, together with its answers to special questions submitted by the trial court, in favor of plaintiff and against the two defendant corporations, one for the sum of $10,000 actual damages and the other for the sum of $4,000 as punitive damages. No verdict of any kind was returned against the defendant Kantor although the undisputed evidence was to the effect that during a portion of the period of time in controversy he had an interest in and actually operated the lease for which the jury held Atlantic entirely responsible.
Following the return o| the verdicts the defendants, The Texas Company and the Atlantic Refining Company, filed a motion to set aside such verdicts and the answers to the special questions, a ’motion for judgment non obstante and a motion for a new trial. Thereafter the trial court announced the defendants’ motion for new trial should and ought to be sustained on the ground the verdicts were excessive and stated that by reason of that conclusion no other or further ruling was deemed necessary upon defendants’ remaining posttrial motions. It then granted the motion for new trial and set aside the verdicts and answers to the special questions.
Subsequently plaintiff filed a motion to set aside the order granting a new trial and the other orders made by the court in connection therewith. In due course this motion came on for hearing. While it was being heard the trial court ■ stated that if it had deemed the verdicts excessive it could and would have ordered a remittitur without granting a new trial but that since it also felt and believed they were brought about through the passion and prejudice of the jury it could not in good conscience do anything but grant a new trial. It then overruled plaintiff’s motion. After doing so it pointed out that'the journal entry reflecting its original action, and which it had theretofore signed, failed to correctly recite its reasons for granting a new trial and directed that it be corrected and amended to read “that the verdicts found and rendered by the jury are excessive and were rendered under the influ ence of passion and prejudice.” This was done and the journal entry now so reads.
Plaintiff then perfected this appeal and now, under proper specifications of error, contends the trial court erred in granting defendants a new trial and in denying his motion to set aside the order granting them that relief.
The established rule in this jurisdiction is that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside and grant a new trial (Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; Myers v. Wright, 167 Kan. 728, 208 P. 2d 589). The presumption in the instant case, as in all cases, is that the court performed that duty, exercised its independent judgment and determined whether the verdicts should be approved (Bateman v. Roller, 168 Kan. 111, 114, 211 P. 2d 440).
Another rule of universal application is that an order of a trial court allowing a motion for new trial will not be reversed unless this court is satisfied its action was wholly unwarranted and clearly amounts to abuse of discretion. (Simon v. Simon, 69 Kan. 746, 77 Pac. 571; Fritchen v. Jacobs, 138 Kan. 322, 26 P. 2d 448; Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20.) Still another, particularly applicable here is that the granting of a motion for new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error on appellate review unless it can be said the party complaining thereof has clearly established error with respect to some pure, simple, and unmixed question of law. (Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518; McCauley v. A. T. & S. F. Rld. Co., 70 Kan. 895, 79 Pac. 671; Railway Co. v. Fields, 73 Kan. 375, 85 Pac. 412; Cronk v. Frazier, 86 Kan. 879, 122 Pac. 893; Rowell v. Gas Co., 81 Kan. 392, 396, 105 Pac. 691; Bateman v. Roller, supra.)
No useful purpose would be served by a detailed review of the factual situation presented by the record in the case at bar. It suffices to say that when carefully examined it clearly reveals the trial court was dissatisfied with the verdicts, otherwise it would not have felt and believed, as it repeatedly announced, that they Were brought about by passion and prejudice. In such a situation, in the absence of any claim or affirmative showing — and there is none —that that court’s action in granting a new trial was arbitrary) capricious, or influenced by bias or prejudice, any one or all of the rules to which we have heretofore referred precludes this court from sustaining or upholding appellant’s claim the order granting the mo-' tion for new trial should be set aside and the trial court directed to render judgment on the verdicts as returned by the jury.
We are advised that since the cause was argued in this court the trial court has directed the filing of a journal entry nunc pro tunc stating that its order granting a new trial was limited to certain defendants. A certified copy of such journal entry has been filed with the clerk of this court. On a second trial the district court can and will take cognizance of its own orders on this phase of the case and it is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from a conviction of murder in the first degree.
The appeal is from a judgment rendered on the third trial of the same case, the first two prosecutions having resulted in mistrials. The appellant, George Neff, was charged in two separate counts of the same information with the murder of his wife, Jessie Neff, on November 17, 1947, by means of poisoning, and with the murder of Kenneth Wynn by means of a shot from a rifle approximately one month later, December 16, 1947. This trial resulted in a verdict of guilty on the count charging him with the murder of Wynn and a hung jury on the other count.
Kenneth Wynn was appellant’s-brother-in-law, the appellant and Wynn having married sisters. After two previous oral confessions the appellant on January 10,1948, signed a single written confession in which he admitted having committed both murders. In this third trial appellant admitted he voluntarily signed the confession but in his oral testimony on the witness stand attempted to repudiate the truth of his confession and various statements therein contained.
Appellant lists twenty-five specifications of error and argues fourteen under separate headings. The latter will be treated and the others regarded as abandoned.
Appellant’s first contention is the information should have been quashed in response to his motion which alleged duplicity and the joinder of unrelated offenses not arising out of the same transaction. His next complaint is the court, after the state rested its case in chief, should have sustained his motion to require the state to elect on which count it would rely for conviction. The latter motion was on the ground the state’s evidence showed the alleged offenses were unrelated and that a trial on both counts would result in appellant’s prejudice.
Appellant argues the two motions together. Before considering the question whether the offenses were related we pause to state that part of appellant's motion to quash the information on the ground it was duplicitous was not good as no two offenses were charged in any single count of the information. Even if from an examination of the counts on their face it appears unlikely a joinder cannot be sustained it is not error for the court to deny a motion to quash on the ground the offenses are unrelated. A court may wait until the testimony discloses the relationship or want of relationship between the two offenses before ruling on that question. (State v. Hodges, 45 Kan. 389, 26 Pac. 676; State v. Thompson, 139 Kan. 59, 60, 29 P. 2d 1101.)
But what about the merit of appellant’s motion to require the state to elect after the state’s case in chief was concluded? The state’s theory of joinder was that both murders were part of one comprehensive plan, purpose, scheme and design on the part of the appellant to eliminate his wife and Kenneth Wynn in order that he might be with Olevia Wynn as much as possible without interference.
Appellant’s confession introduced in the state’s case in chief in part disclosed: He and Olevia Wynn had carried on a clandestine sexual relationship for a period of over twenty years with an average of such relations about every ten days; appellant and his wife had been on very unfriendly terms for many years and it gave appellant “the blues” and he got “despondent over it”; he said he determined he would not be happy until she was dead; he had placed the strychnine in the capsule she took, thinking it was medicine, for the purpose of killing her; he had always cared more for Olevia Wynn than for his own wife.
In this third trial it was admitted Mrs. Neff met her death by means of strychnine poisoning although it previously had been contended she had died from tetanus.
In the voluntary confession signed by appellant he was asked and answered as follows:
“Q. And did you arrive at the stage where you apparently had more affection for Mrs. Wynn than for your wife because of this relation? A. I always had.
“Q. Did you keep company with Olivia before her marriage with Kenneth or not? A. Yes, we had one date.
“Q. Was it because of this affection for this Mrs. Kenneth Wynn that caused you to be very resentful when you found that she was away from home and away from you? A. That’s correct.”
“Q. You had a very strong affection for Mrs. Wynn, is that correct? A Yes.
“Q. You did feel resentful with her being away with some one other than you, even with her husband? A. That’s correct.
“Q. You had a strong desire to be with her as much as you could, is that correct, George? A. That’s right. ■
"Q. You still, at this time have a strong affection for Mrs. Wynn? A. Same as ever.”
In the same confession appellant narrated the fact he had gone to the farm home of Olevia Wynn the morning of the day he later shot Kenneth Wynn with Wynn’s own rifle; that he removed the rifle from Wynn’s home that morning. Here again his confession disclosed his deep resentment by reason of the fact Olevia was away that morning in the company of her own husband. It was that night he shot Wynn in the head with Wynn’s rifle while the latter, was milking in the cow shed. He threw the rifle into the shed through the window from, which he had shot Wynn.
In the foregoing statements we have cautiously omitted all reference to testimony developed after the state's case in chief which was indicative of the degree of estrangement existing between appellant and his wife, as disclosed by his wife the night of her tragic death when she said to appellant, “Get out of this room, George; get out of here.”
We have no doubt the state’s case in chief disclosed evidence and reasonable inferences from which the court properly could conclude both offenses were related and inspired by the same thought; that they were the product of the same identical motive, the same purpose; that appellant believed such purpose and objective could not be realized by the commission of one offense but that both were necessary.
Furthermore the state’s direct evidence consisted of a single written confession. The state could not prove one offense without proving a confession of the other. Where offenses constitute one comprehensive plan, transaction, or one offense is a corollary to the other they may be joined and this is true whether they be of the same general character or not. (State v. Odle, 121 Kan. 284, 246 Pac. 1003; State v. Thompson, supra; State v. Eason, 163 Kan. 763, 186 P. 2d 269; 1 Wharton’s Criminal Procedure, 10th ed., § 343, p. 393-394.)
While some general guides may be prescribed it is unwise to attempt to lay down a hard and fast, or comprehensive rule, governing the joinder of all possible offenses. In harmony with such modern view this and many other courts now prefer to determine the question of proper joinder on the peculiar facts of each case as it arises. (State v. Thompson, supra, p. 62.) Ordinarily the question of proper joinder of offenses rests in the exercise of sound judicial discretion. (State v. Hodges, supra; State v. Thompson, supra; 42 C. J. S., Indictments and Informations, §§ 183, 189; 27 Am. Jur., Indictments and Informations, § 134.) Absent a clear showing of abuse of such discretion appellate courts do not reverse for failure to require an election. Under the circumstances narrated the trial court did not abuse its discretion.
Appellant, however, also overlooks our 1935 legislative enactment relied on by the state, G. S. 1935, 62-1449. Had the state filed separate informations on these offenses and introduced the confession, evidence covering both offenses, in the first trial a later prosecution on the other count not included in the information of the first case tried would have been barred by virtue of that statute. (State v. Momb, 154 Kan. 435, 119 P. 2d 544; Claflin v. State, 154 Kan. 452, 119 P. 2d 540.) The state was not compelled to pursue a course which precluded a trial of both offenses. Separate instructions were given covering each count. Separate verdicts were submitted thereon to the jury. The jury rendered a separate verdict of guilty, as previously indicated. The complaint of misjoinder cannot be sustained.
Appellant argues the court erred in refusing to permit his counsel to examine Olevia Wynn, the complaining witness, whom appellant had subpoenaed as his own witness in the instant case and attempted to interrogate her with respect to her sexual relations with other men than Neff. At that time a charge was pending against the witness for adultery. Her attorney objected to the inquiry on the ground her answers might incriminate her. Appellant’s counsel argue the rule does not apply to a complaining witness but without citation of authority. The objection of her counsel was sustained and we think properly on the ground she was not compelled to incriminate herself.
Appellant next argues the court erred in refusing his request to introduce a portion of Olevia Wynn’s testimony at the second trial of this case. Olevia Wynn had been a witness for the state in the second trial. Under pressure of cross-examination by appellant’s counsel in that case Olevia Wynn finally admitted sexual relations with other men than appellant. After the court sustained the previously mentioned objection in the instant third trial counsel for appellant sought to have the testimony of Olevia Wynn on cross-examination in the second trial introduced in evidence. An objec tion-by her counsel was sustained and appellant argues the ruling was erroneous, citing State v. Stewart, 85 Kan. 404, 116 Pac. 489; State v. Reidie, 142 Kan. 290, 46 P. 2d 601. In both of those cases it was conceded the testimony of the witnesses at a preceding hearing was voluntarily given. We shall not labor the question whether the same rule applies where testimony at a previous hearing was elicited under pressure of cross-examination. We prefer to rule the point on its merits rather than dispose of it on what might be regarded as a technicality. We therefore turn directly to the controlling question whether the record testimony of Olevia Wynn at the former trial was' competent for the purpose appellant sought to introduce it in this trial. For that purpose we shall assume, without deciding, that the testimony could not have been excluded on the ground of incrimination.
It was appellant’s contention evidence of Ole-via Wynn’s sexual relations with other men than appellant was competent for the reason such other men would have the same motive for committing the crimes attributed to appellant. Of course, such evidence had no relationship whatever to the murder of appellant’s wife. Was it competent to show other men, third parties, had the same motive to kill Kenneth Wynn as appellant had? Appellant cites no authority supporting its competency for that purpose.
There was no evidence such other men possessed the same or a similar devotion to Olevia Wynn as did the appellant. This was not a circumstantial evidence case but one founded on direct testimony, a confession. There was not the slightest testimony or the remotest inference such other men, wholly unidentified, had any possible connection with the murder of Kenneth Wynn. Under such circumstances the only effect the excluded testimony could have had would have been to confuse the jury, to permit it to indulge in speculations on collateral matters wholly devoid of probative value relative to who committed the murder and to divert their attention from the main issue they were sworn to try.
There is a general rule supported by numerous decisions that evidence of the motive of one other than the defendant to commit the crime will be excluded where there is no other proof in the case which tends to connect such other person with the offense with which the defendant is charged. See anno, on this subject in 121 A. L. R. 1362; 20 Am. Jur., Evidence, § 265; State v. Smith, 35 Kan. 618, 11 Pac. 908; State v. Scott, 117 Kan. 303, 315, 235 Pac. 380. In view of this established principle we need not pursue appellee’s contention appellant failed to make a valid proffer of the evidence adduced at the former trial.
Appellant states it was error to permit certain rebuttal testimony of the state contending it should have been introduced in the state’s case in chief. It is emphasized such evidence was introduced in the state’s case in chief in the former trials. Of course, whether it was so used in the former trials is not decisive of the question. It is always desirable there should be an orderly presentation of proof. Rules pertaining thereto, however, are directory, not mandatory. An alteration in the prescribed customary order rests in the sound discretion of the courts. Whether such discretion was abused here requires consideration of the record, which has been thoroughly scrutinized.
Without narrating the detailed cross-examination of the appellant or the state’s evidence in rebuttal thereto it should be stated at the outset the evidence in both instances pertained to material and not to merely collateral issues.
Although in the third trial appellant admitted his voluntary written confession of both murders he attempted in his oral testimony on the trial to repudiate the truth of the confession generally and to deny the correctness of certain specific admissions therein contained. When he took the stand in his own behalf for such purpose he placed his veracity squarely in issue. It is elementary that rebuttal evidence of an impeaching character as to wholly collateral matters is not competent; that the state is bound by answers to such inquiries on cross-examination but that impeaching evidence as to subject matter pertaining to a defendant’s guilt and to his admissions thereof is entirely proper.
The fact rebuttal evidence employed by the state may have been entirely admissible in its case in chief for the purpose of corroborating the confession generally or some detailed statements therein contained did not render it inadmissible as rebuttal evidence for impeachment purposes when appellant undertook to repudiate the substance of his confession or details thereof in his oral testimony. The state was not compelled to anticipate appellant would attempt to repudiate the effect of his confession or details thereof on the third trial or, if so, to what extent. Whatever defenses appellant advanced in his oral testimony to his former written voluntary confession were proper matters for rebuttal. The use of evidence on rebuttal and the extent of the rebuttal rested in the sound discretion of the trial court. Touching these subjects see State v. Reich, 43 Kan. 635, 637, 23 Pac. 1076; State v. Curtis, 108 Kan. 537, 196 Pac. 445; State v. Lawn, 132 Kan. 523, 524, 296 Pac. 696; State v. Parker, 166 Kan. 707, 710, 204 P. 2d 584; 53 Am. Jur., Trial, §§ 118, 120, 121, 128, 129; 6 Wigmore on Evidence, 3d ed. §§ 1867, 1873.
The trial court gave appellant the privilege of surrebuttal. He does not contend there was any restriction on his generous exercise .of the privilege. Nor was appellant taken by surprise by the rebuttal testimony. He concedes these witnesses were endorsed on all informations and used in the state’s case in chief in the former trials where appellant had full opportunity to cross-examine them at length. No cases relied on by appellant are inconsistent with the views herein stated.
Appellant asserts the trial court erred in refusing to give instruction 18 or its substance on the subject of a confession. The instruction had been given in the first trial, was requested by appellant on both the second and third trials but was refused. The court instead gave instruction 19. The merit of instruction 19 is argued under one of appellant’s subsequent contentions pertaining to instructions given and that subject will be treated later. The point appellant seeks to make presently is to the effect that instruction 18, being, in his view, a correct instruction and that having been given in the first trial, it should have been given in the third trial. The portion of the contention that the same instruction should have been given on the third trial because it was given in the first trial is tantamount to a contention the .instruction became the law of the case. That particular contention is untenable and appellant cites no authority to support it. Instructions given at the first and second trials did not become the law of the case when those prosecutions resulted in mistrials. There was no appeal from either of the first two trials. This left the case wholly undecided. The third trial, a new trial, was a trial de novo. The case proceeded as though it had never been tried before. See G. S. 1935, 62-1601, 62-1602; 23 C. J. S., Criminal Law, § 1426; 39 Am. Jur., New Trial, § 217.
Appellant contends the court gave a coercive instruction after the jury had failed to agree following almost two days of deliberation. In determining whether an instruction given at that time constitutes reversible error the instruction, the circumstances existing at the time it was given and its probable effect in the light of the en tire record must be considered. (State v. Pyle, 143 Kan. 772, 57 P. 2d 93.)
It appears the jury deliberated about an hour before 5:00 p. m. on May 4, also the 5th of May and until noon of May 6. At the latter time the foreman upon inquiry by the court indicated they were not making much progress and were not evenly divided. The view of the majority was in nowise indicated. Following the lunch hour the jury deliberated until 3:55 p. m. on May 6 when the court again inquired as to progress and the foreman, in substance, said:
They were not having difficulty with the instructions but had made no progress and there had been no change in the position of the jurors since noon.
It appears copies of the instruction in question were at that time given to counsel for the respective parties and it was agreed objections by either party would be considered as having been made before the instruction was given. The instruction was read to the jury. The jury continued its deliberation until 5:00 p. m. of that day, May 6. Upon inquiry by the court at that time whether the jury had made progress the forfeman said, “I doubt it.” The jury was allowed to separate for the night and on the next day, May 7, deliberated from 9:30 a. m. until 11:50 a. m. when it reached a verdict of guilty on the count charging the murder of Kenneth Wynn. Defense counsel asked to have the jury polled. Each juror upon being asked, in substance, if the verdict of guilty was his verdict, replied, “It is.” The court finding that agreement on the other count was impossible discharged the jury.
The instruction reads:
“Gentlemen, of the Jury: It appearing at this time that it is hardly possible that a misunderstanding or disagreement among you as to the law or the interpretation of the instructions should exist in view of the fact that the Court has quite fully instructed you as to the law of the case, that your deliberations have already been prolonged too long without an agreement being reached, I deem it necessary to the administration of justice that this further instruction relative to your duties as jurors be given.
“You should consider that this case must at some time be decided; that you have been selected in the same manner and from the same source as any future jury must be; that there is no reason to suppose that the case will ever be submitted to twelve more intelligent, more impartial, or more competent persons to. decide it, or that more or clearer evidence will be produced on the one side or the other;.that in order to bring twelve minds to a unanimous conclusion you must examine the questions submitted to you with candor and a proper regard and deference to the opinion of each other; that you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s argument. If a majority of your number are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression on the minds of so many men equally honest and intelligent with himself, who, under the sanction of the same oath, have heard the same evidence, with the same attention and an equal desire to arrive at the truth. On the other hand, if a majority of you are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment from which so many of their number dissent and distrust the weight or sufficiency of that evidence which fails to carry conviction' to the minds of their fellows. And while at last each juror must act upon his own judgment concerning the evidence in the case, and not upon the judgment of his fellows, it is your duty, guided by the foregoing and by all of the instructions heretofore given in this case, to decide the case, if you can conscientiously do so.
“It is, accordingly, ordered by the Court that you be returned to your jury room for further deliberation.”
Appellant contends the instruction amounted to telling the jury it had already deliberated too long and that it must agree on a verdict; knowing there was a majority and a minority view the instruction constituted an attempt to coerce the minority into submitting to the will of the majority. Appellant cites no cases in support of the contention. Appellee refers to the last two decisions of this court pertaining to alleged coercive instructions. (State v. Pyle, supra; Eikmeier v. Bennett, 143 Kan. 888, 57 P. 2d 87, both being decided May 9, 1936.) These decisions will be mentioned later.
Appellee reminds us this case had been tried twice before, substantially the same instruction was given without objection by appellant and it did not result in coercion in those trials. Those facts did not preclude appellant’s objection to the instruction at the third trial.
It should be said at the outset that although the statement in the instruction to wit: “You should consider that this case must at some time be decided . . .”, cannot well be said to be coercive, it was not an accurate statement. While a jury should reach an agreement if possible it is not legally obliged to do so. This fact, however, was recognized by the court in the concluding part of the instruction which told the jurors it was their duty to decide the case “. . . if you can conscientiously do so.”
It is true the court knew there existed a majority and minority view. How the majority leaned nobody knew. We think it must be conceded the language of the instruction was at least as fair to appellant as to the state irrespective of whether the majority then leaned towards acquittal or conviction. In other words the instruction did not discriminate against appellant.
The real questions are whether the language employed was actually coercive in character as to the minority and whether it reasonably can be said to have had that effect. These questions will be treated in that order.
The instruction first directed every juror to fairly consider the views of every other juror. It then stated the members of the minority should consider whether a doubt they entertained was a reasonable one. In the same instruction the court, however, further informed the jury that in the final analysis “. . . each juror must act upon his own judgment concerning the evidence in the case¡ and not upon the judgment of his fellows . . .” (our italics) that it was their duty to be guided by all the instructions given and to decide the case, if they could conscientiously do so. The court in two other separate instructions directed the jury that each and every one of them must be convinced beyond a reasonable doubt of defendant's guilt before they could convict him.
We turn now to a consideration of facts and circumstances after the instruction was given. We first notice the instruction had no immediate coercive effect and none during the remainder of that day. Thereafter the jurors retired to their homes and had an opportunity to. reflect privately that evening and the next morning until 9:30 a. m. They deliberated further together until five minutes before the noon hour. The verdict was not reached until approximately twenty hours after the instruction was given. Although not in conference that entire period it cannot well be said the decision constituted hasty action. When each juror was polled separately and asked whether this was his verdict each of them replied, “It is.” Nor can we lightly brush aside the persistent thought the instruction did not coerce a conviction on the other count, concerning which the confession was likewise clear and positive.
We shall not endeavor to again review our numerous previous cases touching the subject of belated instructions. Such review was carefully made in Eikmeier v. Bennett, supra, and referred to in the case of State v. Pyle, supra. In the Eikmeier case the jury returned its verdict within less than two hours after the alleged coercive instruction was given. In the Pyle case the jury deliberated one full day after such instruction was given when the presiding judge, in substance, repeated the same instruction and a verdict was reached four hours later. The belated instructions in the Eikmeier and Pyle cases are found in the respective opinions and need not be restated here. They have some features similar and some dissimilar to those in the instant instruction. Although this court disapproved the instruction in the Pyle case it refused to reverse the judgment on the ground the record revealed nothing approaching the gravity of prejudicial error and that the court had no misgiving as to the justice of the result. It was said:
“Our reports are laden with cases bearing on this subject. An exhaustive review of them by Mr. Justice Thiele appears in one of our current decisions, Eikmeier v. Bennett, post, p. 888, 57 P. 2d 87. The general tenor of our decisions over a long period of years is one of disapproval, although we have seldom held that such instructions, belatedly given, were so prejudicially erroneous as to compel a reversal of the judgment. In each of them this court has endeavored to get a comprehensive view of the situation, the circumstances and the entire record and to rule accordingly.” (p. 781.)
In view of the total record in this case and in harmony with the views expressed in the Pyle case we are persuaded we would not be justified in reversing the judgment in the instant case.
Counsel for appellant argue appellate courts should make no distinction between error and prejudicial error. This court indeed would be relieved of many troublesome problems were it permitted to adopt that policy. The point counsel for appellant overlook is that this court is not permitted to ignore a plain legislative mandate in order to make its burdens less difficult. G. S. 1935, 62-1718 of our criminal code provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
The statute is not permissive but mandatory. It does not say the court may give judgment without regard to technical errors or defects, etc. It says, . . the court must give judgment. . . .” (Our emphasis.) See numerous cases collected under this statute.
We now turn to appellant’s complaint concerning instruction 19 on the subject of the confession. It is argued the instruction was erroneous in that it failed to correctly state the law relative to the weight and effect to be given to confessions. The pertinent part of the instruction given reads:
“In deciding the question of the weight .to be given to the confession of the defendant you should take into consideration all of the evidence in the case, the possibility or impossibility of the wrongful acts therein set forth, the probability or improbability of such acts, as well as any evidence that has been received by you which tends to corroborate or deny the matters set forth in the written confession of guilt, according to the rules given you in the other instructions.”
We discern nothing wrong or inadequate with that part of the instruction nor is it out of harmony with what was said on the subject in State v. Seward, 163 Kan. 136, 181 P. 2d 478, cited by appellant. The argument is the instruction should have stated the jury should give the confession whatever weight the jury believed it was entitled to. That is the effect of the instruction and the other instructions to which instruction 19 expressly refers.
It is also argued the instruction placed too great emphasis upon the fact a confession was a statement against interest. That is precisely what a confession freely and voluntarily made is. Such a confession is evidence of the most satisfactory character and is deserving of the highest credit. (Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 267, 4 S. Ct. 202.) The fact a voluntary confession is a statement against interest of the person making it was not overemphasized in the instructions.
It is further urged the instruction should have advised the jury it might believe all, a part, or none of the confession. At the end of the instruction first quoted on the subject presently under consideration the jury was expressly referred to the rules given it in other instructions. In other instructions the jury was advised they were the sole and exclusive judge of the facts proven, of the weight of the evidence and the credibility of the witnesses; that all instructions were to be considered by the jury in their entirety. The instructions as a whole were entirely adequate and the particular instruction on the subject of a voluntary confession was probably more favorable to appellant than the law required. Touching the particular complaint the instruction pertaining to a confession did not expressly tell the jury they might believe all, a part, or none of the confession it is noted appellant’s own requested instructions- did not contain that statement.
Counsel for appellant complain the instruction given did not require the state to prove that all the statements and declarations contained in the voluntary confession were made and were true. As previously indicated in a former portion of this opinion the trial court had given such an instruction (No. 18) in the first and second trials but refused to give that portion of the instruction on the third trial. We think the trial court was entirely correct in refusing to again give that portion of the instruction. It was ad mitted on the third trial the written confession was voluntarily made.
It, however, was and is appellant’s contention there were some discrepancies in the statements contained in the confession. There were no discrepancies in the voluntary confession with respect to the actual commission of the crimes. Assuming, however, there were discrepancies in the confession, some as to nonessential matters, the state did not have the burden of proving the correctness of such matters in order to sustain a conviction. The jury may have believed appellant did not tell the exact truth with respect to some of such matters and yet believed he was entirely truthful relative to the commission of the crimes. It frequently occurs there are some discrepancies in confessions and there was testimony in this case that this does happen. In any event the state had the burden of proving beyond a reasonable doubt appellant committed the crimes. The jury was clearly so instructed. The complaints with respect to the instruction on the confession are not well taken.
Appellant argues he was entitled to be tried by a jury selected from a panel containing both men and women. This panel contained only the names of men. Appellant makes five contentions, the substance of which will be treated. It may be well to note, and it is conceded, women were not deliberately excluded from the jury lists for this particular trial. It is admitted women had not served on Sumner county juries for twenty years or more. Due to facilities in connection with jury service deemed inadequate for women jurors by the district judge and, by reason of the fact women could not be compelled to serve under our law, the district judge concluded it was unnecessary to list them as jurors. Appellant says the district judge directed the assessors not to list them. Accurately speaking, the district judge did not act in his official capacity but outside of it. He had no authority to advise the assessors. They failed to inquire of women whether they desired to serve, as they were required to do by G. S. 1935, 43-117, and accordingly their names were not placed on the assessors’ reports. Insofar as the record discloses there is no indication the local bar previously had not been in sympathy with the practice. This statement, however, is not to be interpreted as legal justification for a failure of the officers to comply with the law.
Other irregularities appeared in the selection of the jury panel in that some jurors had been selected from enumeration lists instead of from assessment rolls as required by statute and jurors had been selected from the assessment rolls for the current year rather than from the assessment rolls of the preceding year, as required by G. S. 1935, 43-102.
Appellant’s counsel, as they had done in the previous trials, moved to quash the panel by reason of such irregularities. In State v. Snyder, 126 Kan. 582, 270 Pac. 590, it was held:
“Where the jurors constituting the panel have been legally returned, drawn and summoned, it is not error to overrule a challenge to the array made on the ground that the township trustee did not return the names of women electors to serve as jurors, and had not raised the question with the women electors in his township whether or not they desired jury service.” Syl. ¶[ 1.)
In the instant case counsel for appellant introduced women witnesses in support of his motion to quash the panel. They testified they would not have claimed their exemption had they been asked whether they would serve. In the Snyder case, supra, the county attorney admitted there were qualified women electors whose names were on the assessment rolls and who would not have claimed exemption from jury service if they had been asked that question by the assessor. In that case this court said:
“We are of opinion that the failure of the township trustee to return the names of women electors was not a sufficient reason to sustain the defendant’s challenge to the array. True, the officers should have been more diligent in the performance of their duties, but it does not appear that a fair jury was not obtained or that the defendant was in any way prejudiced. The record discloses that the defendant waived his last peremptory challenge, and there is no showing that any juror retained in the case was disqualified or that the defendant was in any way prejudiced by the retention of any juror. Other than as stated, there was no showing that the panel of jurors drawn for the term of court in question was not fairly returned, drawn and summoned.” (Our italics.) (p. 584.)
In the instant case, however, the trial court nevertheless found the irregularities vitiated the panel and quashed the panel pursuant to appellant’s motion. Naturally the question then arose concerning the proper procedure for providing a new jury. The trial court believed G. S. 1935, 43-128, provided the procedure and ruled accordingly. That statute reads:
“That whenever it shall be made to appear to the court that the township trustees and mayors of cities, as provided for in the act to which this is an amendment, have failed to make the lists from the assessment rolls of the previous year, or that from any other cause the lists furnished by them to the county clerk or the names taken therefrom and deposited in the jury box have been so returned or deposited as to vitiate a panel drawn therefrom, it shall be the duty of the judge of such court to forthwith select a sufficient number of jurors for the term, and cause a venire to issue for the same, naming-the jurors so selected therein.” (Emphasis supplied.)
Appellant argues the action of the court constituted error, that the court should have followed the procedure prescribed in G. S. 1935, 43-129, citing State v. Jenkins, 32 Kan. 477, 4 Pac. 809; A. T. & S. F. Rld. Co. v. Davis, 34 Kan. 199, 8 Pac. 146; and State v. Edwards, 64 Kan. 455, 67 Pac. 834. The point has been decided adversely to appellant’s contention. (State v. Schmidt, 74 Kan. 627, 87 Pac. 742 [in which the two statutes under consideration were cited and the appropriate function of each discussed]; State v. Allen, 98 Kan. 778, 785-786, 160 Pac. 795; State v. Snyder, supra.) The principal cases relied on by appellant are discussed in State v. Snyder, supra, and State v. Allen, supra. In the Allen case the court said:
“There is a complaint that the jury was not selected according to law. The court sustained the defendant’s challenge to the array, and discharged the panel because the original names in the jury box had not been selected from the assessment rolls of the previous year. Thereupon the judge proceeded to select a jury for the term, following the provisions of section 4624 of the General Statutes, of 1909, which requires the judge to select a sufficient number of jurors for the term and to name those selected, whenever for any cause the lists have been improperly returned. It is contended that the township trustees should have been summoned and required to select the lists of jurors. Aside from the fact that such a method would have been cumbersome and the cause of unnecessary delay, the procedure which the court followed is authorized by the section of the statute just cited. It was so decided in the case of The State v. Schmidt, 74 Kan. 627, 87 Pac. 742. In the opinion in that case the distinction between the situation here and that involved in The State v. Edwards, 64 Kan. 455, 67 Pac. 834, cited in support of defendant’s contention, was pointed out. Moreover, there is nothing to indicate that defendant suffered any prejudice by the manner in which the jurors were selected.” (Our italics.) (p. 785-786.)
Even though the court had followed the suggestion of appellant’s counsel and pursued the procedure under G. S. 1935, 43-129 the trustees and mayors therein mentioned could not have included women as prospective jurors because there were no lists of eligible women who had not claimed exemption. The court called this fact to the attention of appellant’s counsel.
It will be noted G. S. 1935, 43-128 states that in the event the designated officers “. . . failed to make the lists from the assessment rolls of the previous year, or that from any other cause the lists furnished by them to the county clerk or the names taken therefrom and deposited in the jury box have been so returned or deposited as to vitiate a panel drawn therefrom, it shall be the duty of the judge of such court to forthwith select a sufficient number of jurors for the term. . . .” (Our italics.) The statute in nowise directs whom the judge shall select as jurors or what method he shall employ in making the selection. It was not claimed there was anything- inherently wrong with the jurors individually composing the quashed panel. The court appointed substantially the same jurors who composed the original panel, after eliminating those who had been excused for various reasons. The state reminds us none of such jurors was challenged for cause on the voir dire examination by appellant’s counsel as they had a right to do. (G. S. 1935, 62-1410, 62-1412, 60-2906.) Appellant’s right to now complain concerning those jurors may have been waived but we prefer not to determine the question before us on that ground, under all the existing circumstances. Neither the liberty of a citizen nor the rights of society should turn on a technicality especially where fundamental principles of justice have charted a clear course.
Unlike the experience in the first and second trials the jury panel was exhausted on the third day. The trial judge made an order directing the county clerk in the presence of the sheriff, the clerk of the district court and the register of deeds to draw the names of 175 persons from the jury box provided for the drawing of a regular panel of jurors, to be submitted to the judge for final selection and approval. Thirty-seven names were drawn and the jury box was found to be exhausted. The judge ordered the same county officials to list 138 more persons from the county tax rolls possessing the qualifications of jurors. The record discloses the order to such county officials was made “. . . as an aid to this Court in making the selection of qualified veniremen. . . .” The list of jurors was submitted to and approved by the trial judge. The sheriff was directed to serve them with summons, did so and made his return.
Appellant asserts the trial judge could not delegate his power to select the jurors. The point is not good. The county officials did not select the jurors. They simply served as an aid to the trial judge in providing a list for selection. The record shows he ordered the list of names to be submitted to him for his own approval and that he gave it his independent approval. That was his duty. He exercised it under proper authority. (Moore v. Nation, 80 Kan. 672, 103 Pac. 107; Walker v. United States, 93 F. 2d 383.) There is no evidence the officers who aided the court acted otherwise than in good faith. Speculation to the contrary is entirely devoid of factual support.
The difficult problem presented by the lack of available appropriate accommodations for the two sexes frequently has been treated as a material factor in determining whether women and men should be called for jury duty. Decisions of trial courts to exclude women from jury service by reason of inadequate facilities have been sustained frequently. (Hale v. Kentucky, 303 U. S. 613, 82 L. ed. 1050, 1058, 58 S. Ct. 753; People v. Parman, 14 Cal. 2d 17, 92 P. 2d 387; People v. Shannon, 203 Cal. 139, 263 Pac. 522; Commonwealth v. Garletts, Appel. (No. 2), 81 Pa. Superior Ct. 271; Commonwealth v. Duca, Appellant, 312 Pa. 101, 165 A. 825; anno. 9 A. L. R. 2d 661, 670, 671.)
The courtroom in Sumner county is located in a public building but it is not in a courthouse. The trial court had the responsibility of determining whether the facilities would be adequate for women jurors in the event it should at some stage of the- proceedings conclude that safeguards for a fair trial required the jurors should be kept together. Statutory authority exists for keeping the jury together. The trial court may exercise its judicial discretion in determining the matter. (G. S. 1935, 62-1448, 62-1603; State v. McNeil, 59 Kan. 599, 53 Pac. 876; State v. Howland, 157 Kan. 11, 138 P. 2d 424.)
Appellant undertook to show the court erred in concluding the facilities were inadequate for women jurors. The only evidence appellant introduced to overthrow the court’s judgment in the premises, that we are able to find in the record, is there were toilet facilities for women jurors if the women left the jury room and passed through the office of the clerk of the district court. Appellant made no showing whatever of any facilities for feeding the jurors together or of sleeping facilities in the courthouse, or adequate feeding and sleeping facilities in the hotels in case the jury were kept together. There is no contention any of such facilities existed. Under these circumstances an appellate court cannot well say the trial court abused its judicial discretion and acted arbitrarily with respect to the exclusion of women jurors.
Appellant argues the jury was not kept together in this case. That is not the answer. As indicated a situation might have arisen at any moment requiring the court, in the exercise of sound judicial discretion, to keep the jury together. This is particularly true in a case such as this which had extended over two long previous trials and had resulted in hung juries. In any event' we are convinced there was no attempt to discriminate against appellant in the exclusion of women jurors. There is not the slightest indication appellant was prejudiced by their absence from the jury.
Appellant also contends the systematic exclusion of women from the jury panel violated his rights under the state and federal constitutions and amendments thereto, citing, Glasser v. United States, 315 U. S. 60, 86 L. ed. 680, 62 S. Ct. 457; Thiel v. Southern Pacific Co., 328 U. S. 217, 90 L. ed. 1181, 66 S. Ct. 984; Ballard v. United States, 329 U. S. 187, 91 L. ed. 181, 67 S. Ct. 261. Those decisions will be noted presently.
We shall first consider our own constitution. It makes no provision for women jurors. Appellant concedes all our state constitution provides is a public trial “by an impartial jury.” (Bill of Rights, § 10.) It already has been demonstrated appellant’s motion to quash the original jury panel was sustained and that a new panel was selected as provided by law. Appellant does not contend a state legislature is without power to provide the procedure for the selection of a jury in the event the former selection of a jury list was, for any cause, not made by the designated officers in the manner provided by law. The procedure provided by our legislature in such a situation was followed. The statutory procedure contravenes no provision of our state constitution. Appellant offered no testimony on the motion for a new trial, and we find no contention now, any juror who served was biased or for any other cause was not an entirely fair and impartial juror.
Did the exclusion of women jurors infringe on any provision of our federal constitution? It likewise makes no mention of women jurors. The only possible applicable provision in the federal constitution is the due process clause of the fourteenth amendment. Do the decisions of the Supreme Court of the United States, previously cited, determine the practice of state courts on the subject under consideration? We do not so read them.
Federal rules with respect to the exclusion of women jurors are set forth in the Ballard case, supra. That rule is confined strictly to federal juries and not to juries in state courts. That on appeals-from state courts the federal rule does not apply is clearly demonstrated in the last published pronouncement of the United States Supreme Court on the subject in Fay v. New York, 332 U. S. 261, 91 L. ed. 2043, 67 S. Ct. 1613, (1947). Manifestly we have no quarrel with rules governing the federal practice with respect to women jurors. In substance that practice is now followed without rules in various judicial districts of this state. Women jurors are properly recognized as rendering a service fully equal to that of men. In some districts, however, where facilities are wholly inadequate for women jurors in case it should be considered protection of the judicial process required jurors to be kept together, an entirely different practical problem arises.
The Fay case, in our opinion, makes it indelibly clear the federal rule stated in the United States Supreme Court cases previously cited does not and is in nowise intended to govern the practice in state courts. The opinion in the Fay case, after reviewing the history of including women on juries, states:
“It would, in the light of this history, take something more than a judicial interpretation to spell out of the Constitution a command to set aside verdicts rendered by juries unleavened by feminine influence. The contention that women should be on the jury is not based on the Constitution, it is based on a changing view of the rights and responsibilities of women in our public life, which has progressed in all phases of life, including jury duty, but has achieved constitutional compulsion on the states only in the grant of the franchise by the Nineteenth Amendment. We may insist on their inclusion on federal juries where by state law they are eligible but woman jury service has not so become a part of the textual or customary law of the land that one convicted of crime must be set free by this Court if his state has lagged behind what we personally may regard as the most desirable practice in recognizing the rights and obligations of womanhood.” (p. 289.)
And. in the same opinion it is further said:
“Well has it been said of our power to limit state action that ‘To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequenses to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’ Mr. Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 US 262, 311, 76 L ed 747, 771, 52 S Ct 371.” (p. 296.)
and
“As there is no violation of a federal statute alleged, the challenge to this judgment under the due process clause must stand or fall on a showing that these defendants have had a trial so unfair as to amount to a taking of their liberty without due process of law.” (p. 296.)
Appellant complains women were excluded from the panel. He is not a member of the excluded class. In the Fay case, supra, the Supreme Court of the United States said:
“This Court, however, has never entertained a defendant’s objections to exclusions from the jury except when he was a member of the excluded class.” (p. 287.)'
The great weight of authority is in harmony with this rule. It is that a male defendant cannot complain concerning the exclusion of women from a jury panel, unless he has actually been prejudiced thereby. (Bailey v. State, 215 Ark. 53, 219 S. W. 2d 424, 9 A. L. R. 2d 653, [1949].) See the very recent and exhaustive A. L. R. annotation following the Bailey case, p. 661.
In the Bailey case the Arkansas court carefully noted the United States Supreme Court decisions heretofore cited. It referred to the exclusion of women under the federal rule and said:
“. . . but this rule has not been extended to state court trials — and certainly there are no expressions indicating that the discretion permitted commissioners under a State constitution such as ours would be controlled without a showing of conduct resulting in prejudice. See State v. Taylor, 356 Mo. 1216, 205 SW 2d 734, 738.”
We have considered the grounds of the motion for a new trial. They present nothing of consequence not already treated. There are voluntary 'confessions a defendant should not expect an impartial jury and the ablest of counsel to overthrow. An examination of the entire record leaves us fully convinced there is ample competent evidence to support the conviction and that appellant had a fair trial by an impartial jury.
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order overruling a demurrer to plaintiff’s amended petition in an action to recover the purchase price paid for an Aberdeen Angus bull calf and for special damages.
The only question presented is whether the amended petition states a cause of action.
The plaintiff was a resident of Arkansas and the defendant resided in Cherokee County, Kansas. Briefly summarized, the amended petition alleges that in August, 1946, the parties entered into an oral agreement whereby defendant agreed to sell to plaintiff and plaintiff agreed to pay to defendant the sum of $2,000 for a certain bull calf, provided it was free of tuberculosis; that it was agreed defendant should submit the calf for an examination to determine its condition in this respect; that at the time of the agreement plaintiff paid defendant $250 to apply upon the purchase price, it being further agreed that in the event the calf failed to pass the tuberculosis test defendant would return such down payment to plaintiff. That on October 1, 1946, plaintiff called defendant by long distance telephone to inquire as to the condition of the calf and was told by defendant that it was “all right,” and plaintiff then advised him that he would come and get it on October 13, 1946. That on this latter date plaintiff came to Cherokee county for the calf and was told by defendant that the calf had been tested for tuberculosis and had passed; that relying upon such statement and believing it to be true he paid defendant the balance of the purchase price in the amount of $1,750, whereupon defendant delivered the calf to him. That on October 27,1946, the calf took sick and it became necessary for plaintiff to employ a veterinarian who treated it until January 3, 1947, at an expense to plaintiff in the amount of $80. That in January, 1947, plaintiff called defendant over the telephone, during which conversation defendant told Him that the mother and sire of the calf had been tested and both found to be tubercular; that plaintiff then inquired as to the papers on the calf purchased by him, whereupon defendant admitted and stated that he had not had it tested. That on January 20, 1947, plaintiff had the calf, together with the rest of his herd, tested, which test showed it to be tubercular and the remainder of his herd to be free from the disease, and that as a result of the calf’s condition he was required to sell it to the government for a nominal sum.
It further alleges that as of the date of delivery of the calf to plaintiff, October 13, 1946, it was infected with tuberculosis; that if defendant had had a proper test made, as he stated he had done, the test would have shown the true condition, in which event, under their agreement, defendant would have been compelled to return the down payment of $250 theretofore paid by plaintiff and that plaintiff would not have completed the sale.
It further alleges that the upkeep of the calf during the time it was in plaintiff’s possession amounted to $250, and the prayer seeks recovery in the amount of $2,280.
This amended petition was filed on April 21, 1948. The original petition was filed June 8, 1947, and against it defendant filed a motion to strike, or in lieu thereof that it be made more definite and certain in a number of respects, which for our purposes need not be detailed. Plaintiff confessed that portion of the motion which requested him to allege whether the contract was written or oral and successfully resisted the balance thereof. Both parties concede that, with the exception of the addition of a few words concerning the nature of the agreement and that it was oral, in the amended petition, the two petitions are substantially identical.
Defendant therefore contends that the well-established rule, that where a motion to make more definite and certain is successfully-resisted a pleading must thereafter, when tested by demurrer, be strictly construed against the pleader as to all matters covered by the motion, should be applied.
Plaintiff argues that the rule has no application here for the reason that no motion to make more definite and certain was leveled at the amended petition, but defendant counters with the argument that since the trial court had already overruled his motion filed against the original petition it would have been a futile and useless gesture to file an identical motion against the amended petition. With respect to this point we agree with defendant and concede that for purposes of the demurrer in question the amended petition should be strictly construed.
In support of his contention that the amended petition fails to state a cause of action defendant argues that nowhere is it alleged that he failed to have the calf tested or that he did have it tested and the test showed it to be tubercular; that if the amended petition shows he did have it tested and the test was negative then certainly the plaintiff has no right to recover, for it is not claimed that defendant insured the calf or guaranteed it would never' contract the disease, and that strictly construed this amended petition fairly shows that the defendant did have it tested according to the agreement and the test showed it to be free of tuberculosis. He further argues that the allegation that the defendant “admitted and stated over the telephone that he had not had him tested” is a mere allegation of evidence rather than an allegation of fact showing a breach of the contract on his part.
We find ourselves unable to agree with defendant’s contentions. A careful reading of the amended petition leaves no doubt as to the agreement entered into between the parties. Plaintiff was to buy the calf for $2,000, and both parties clearly understood that the sale was made upon the express understanding that it did not have tuberculosis. It had not been tested and defendant agreed to have that done. Plaintiff made a down payment of $250 and later defendant told him the calf was “all right.” At the oral argument it was con-, ceded that both parties understood the words “all right” to mean that the calf was not tubercular. Plaintiff then took the calf and paid the balance of the purchase price. Shortly afterwards it became sick and in a telephone conversation defendant admitted to plaintiff that its mother and sire had been found to be tubercular and that he had not had the calf tested. Plaintiff then had it tested and this test showed it to be tubercular. This suit is to recover the resulting damages to plaintiff and we think the amended petition states a cause of action. What the proof may show is another thing, but we think the allegation that the defendant admitted and stated over the telephone he had not had the calf tested, when considered with all other allegations, sufficiently alleges a breach by defendant of the agreement of the parties.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to dissolve a partnership, for an accounting, and the appointment of a receiver. The appeal is from the final order and judgment.
In the petition, filed August 28, 1942, in the district court of Sedgwick county, A. Milner and W. M. Lewis were named as defendants. Since then Lewis has died and the action as to him has been revived in the name of his personal representative. It was alleged the parties were residents of Texas and were copartners engaged in the real estate brokerage business under the name of The Milner Company, also sometimes known as The Milner-Schaefer Company; that the partners owned large interests in real estate in Kansas, particularly Sedgwick county, which was being sold on small weekly or monthly payments; that the partners were in disagreement to the extent the business could not be successfully carried on. Plaintiff prayed that the partnership be dissolved; that an accounting be had; that the interests of the partners be partitioned, and that a receiver be appointed pending the action. On the same day, on plaintiff’s ex parte application, Tom Komhaus was appointed receiver pending the determination of the action, with authority to manage the property owned by the partners in Sedgwick county and to collect the rents. His bond was fixed at the sum of $2,000, which was filed and approved on September 3. On September 16 plaintiff applied, ex parte, to amend the order appointing the receiver, and it was amended by including the partnership property in Reno county, and the receiver was given more specific directions concerning his duties.
On October 9, 1942, Cyrus Hackstaff, as the primary receiver, filed an intervening petition, in which he alleged that on May 28, 1942, Milner (the defendant herein) filed an action in the district court of the city and county of Denver, Colorado, against Schaefer and Lewis (the other party to this action) for the dissolution of the partnership of The Milner Company, for an accounting, and for a receiver; that the principal business of The Milner Company partnership was the subdivision of tracts of real property and the sale of lots and tracts therein under contracts of sale in the states of Colorado, Texas, Kansas, Arizona and Ohio, and that the principal office of The Milner Company was in Denver; that Schaefer and Lewis, the defendants in that action and parties to this action, duly entered their appearances in that action, one of them on July 25 and the other on July 28, 1942, and that on September 2, 1942, the intervening' petitioner was appointed as receiver for.The Milner Company; that he duly qualified and that at all 'times since has been so acting. The petition contained other' pertinent allegations, which need not -be specified. The prayer of the intervening petitioner was that the court set aside its order of August 28, 1942, purporting: to appoint'Tom Kornhaus as receiver for The Milner Company and that he 'be dischatged as such receiver; that the court make an order appointing the intervening petitioner, or some other suitable person, as ancillary receiver in Kansas for the property of The Milner Company and recognizing - the intervenor as the duly appointed, qualified and acting primary receiver of the property and assets of -The Milner Company and the rights.of the respective parties thereto, except such matters as may be ancillary thereto and subject to the jurisdiction of the court-in this action. On October 10, 1942, Milner filed an answer admitting some of the allegations of plaintiff’s petition and denying others and otherwise making as a part of his answer the intervening petition of Cyrus Hackstaff as principal receiver, and prayed for the appointment of a receiver ancillary to the principal receiver, and for such other and further relief as he might be entitled to. On November T9, 1942, Lewis filed an answer in which he admitted the allegations made in plaintiff’s petition; alleged that the interests of the partners in the business and assets of the partnership are equal, each entitled to one-third; that the partnership has no -outstanding indebtedness except the current bills, which the income of the partnership is more than ample to pay; that he desired an immediate hearing of the cause and final disposition thereof, and prayed that the receiver appointed continue to act as such receiver until the final disposition of the case; that the partnership be dissolved, and that the interests of the partners be partitioned.
Schaefer and Lewis opposed the application of Cyrus Hackstaff to intervene and be recognized as a primary receiver, and upon a hearing the court denied the request of the intervenor. An appeal was taken from that order by Milner and by the intervenor and this court reversed the decision of the lower court (see Schaefer v. Milner, 156 Kan. 768, 779, 137 P. 2d 156), and remanded the case with directions for the trial court to set aside its ex parte order of the appointment of Tom Kornhaus as receiver “and to name some suitable person- — whether that person be Hackstaff, Kornhaus, or someone else — as ancillary receiver.” Apparently the mandate of the court was carried out and Tom Kornhaus was appointed ancillary receiver for the properties of the partnership situated in Sedgwick and Reno counties. The record does show that Kornhaus, as ancillary receiver, collected payments due under the contract for the sale of real property in Kansas and performed other duties in connection with the business of The Milner Company in this state and made reports to the district court of Sedgwick county. There is no indication, however, in this record that he made any reports to Hackstaff, the primary receiver, in Denver. Kornhaus, as ancillary receiver, on April 1, 1943, filed an inventory which listed numerous lots owned by the partnership in five named additions to Wichita in Sedgwick county and in two named additions to Hutchinson in Reno county. On March 25,' 1944, Kornhaus, as ancillary receiver, filed a report and an itemized account showing receipts and disbursements to January 31, 1944, with a balance on hand as of that date of $40,029.32. On August 16, 1944, upon the motion of the plaintiff Schaefer to disburse funds in the hands of Kornhaus, as ancillary receiver, and after a hearing, at which the plaintiff Schaefer and the primary receiver Hackstaff appeared by counsel (attorneys for none of the other parties appearing), the court made an order directing Kornhaus, as ancillary receiver, to pay the court costs to date in the sum of $118.46 and to issue a check payable to the plaintiff, Sam H. Schaefer, in the sum of $27,048.50 and to issue a check in the same amount payable to W. J. Lewis, one of the defendants herein.
On December 3, 1948, plaintiff filed a supplemental petition in which he alleged that heretofore a partnership existed between plaintiffs, Lewis and Milner, in which each had an equal interest, which partnership was dissolved May 28, 1942, by the withdrawal of Milner; that this action was brought for the partition of the partnership assets in Kansas; that Tom Kornhaus was appointed receiver of such assets, and has been so acting under the direction of the court; that the defendant Milner brought an action for the dissolution of the partnership in the district court of the city and county of Denver, Colorado, in which a receiver was appointed, and the receiver appointed in Kansas has been held to be ancillary to the receiver appointed in Colorado; that on January 21, 1944, plaintiff Lewis, and Milner, entered into an agreement for the partition of all the assets of the partnership and for the settlement of their partnership affairs insofar as Milner was interested and concerned; that under the terms of the agreement and the judgment of the Colorado court the Kansas property — except the Reno county real estate — was to go to Schaefer and Lewis, including the cash on hand and thereafter received in the Kansas receivership; that on January 21, 1944, the Colorado court entered a final judgment requiring the parties to comply with this agreement, upon which a copy of the judgment had been entered, and that on June 21, 1946, the court, having ordered Milner to sign certain documents, to carry out the agreement and judgment, found Milner guilty of contempt; that in the district court of Bexar County, Texas, sitting at San Antonio, in an appropriate proceedings, appointed a receiver for the partnership property in Texas and thereafter enforced the agreement and judgment of the Colorado court insofar as it affected the partnership assets in Texas, which judgment was affirmed by the Texas civil court of appeals, and the supreme court of Texas denied Milner a writ of error. Plaintiff prayed for an order authorizing and directing the receiver to convey the Reno county real estate to Milner; that the ■action be dismissed as to Milner, with prejudice, and that all the costs and expenses of the receivership incurred herein be taxed against the defendant Milner and decreed to be a lien upon the Reno county real estate. Attached to and made a part of this motion and supplemental petition was a copy of the agreement of January 21, 1944, made and filed in the case in the Colorado court, which reads:
“Agreement
“The undersigned hereby agrees to enter into a contract in settlement of all controversies among themselves, embodying the terms as set forth in the Memorandum re Contemplated Milner-Schaefer-Lewis Settlement, dated January 21, 1944, attached hereto and by such reference incorporated herein.
“The undersigned further agree that such Agreement shall, at the request of any party, be incorporated in an appropriate decree by any of the courts wherein the said properties and business of the parties are now in receivership.
“In Witness Whereof, the parties hereto have hereunto subscribed their names at Denver, Colorado, this 21st day of January, 1944.”
This was signed by A. Milner, W. M. Lewis, Sam H. Schaefer, and the signature of each of the parties was witnessed by his attorney. ■ •
Following the signatures, and upon the same sheet of- paper, the following was written:
“1-21-44
“The written stipulation and agreement of all the parties hereto being now presented to the Court for approval. It is Ordered by the Court that the terms of same being mutually agreeable to all the parties thereto who are also all the litigants named and involved in the case hereby affected by this agreement are ordered approved and directed to be carried out as set forth as a complete and final settlement of said causes of action in issue in said case. Further the present case ordered continued to Feb. 21st, 1944 for further disposition and orders of the Court. The Court retaining jurisdiction of the same. Chaeoes C. Sackmann, Judge.”
Submitted to the court with the above “Agreement” was a document (5 pages) entitled “Memorandum re Contemplated Milner-Schaefer-Lewis Settlement.” This classified the . properties and stated which of the parties should receive designated portions thereof and contained certain covenants, set out in lettered subheads. We quote or summarize those portions of the instrument deemed pertinent:
“A. Assets Other Than Cash.” All Texas property and all Kansas property except Hutchinson, Kansas, go to Schaefer and Lewis. Hutchinson subdivisions and contracts go to Milner.
“B. Cash Now in Hand and Hereafter Received. All cash in the Kansas receivership case,” and in the Texas receivership case “goes to Schaefer and Lewis,” and in the Colorado receivership cases to Milner.
“C. Receivership Expenses. (1) Expenses incurred by the Texas and Kansas receivers now unpaid or hereafter incurred, are to be paid by Schaefer and Lewis. (2) Expenses incurred by the Colorado receiver now unpaid or hereafter incurred are to be paid by Milner.”
“H. The parties agree in good faith to do all acts and execute all instruments necessary to carry out the intent of the agreement outlined, and valid transfers in support of the agreement are to be procured.” Their wives are to join.
“J. Business Personal Property.” In Texas and Kansas, and Alameda office, to go to Schaefer and Lewis; in the downtown Denver office to go to Milner.
K. Deeds, abstracts of title and records to be delivered to party receiving the property.
“L. Upon the request of any of the three parties to this agreement, said agreement shall be incorporated in appropriate court decree, or decrees.
“M. The parties shall join in all requests, petitions and stipulations necessary to enable the prompt closing of the existing receiverships upon the carrying out of this agreement.”
N. Provides for delivery of lithographs, cuts and prints pertaining to any property to the party-receiving it.
O. Schaefer shall deliver to Milner customer deposits and ledger sheets pertaining to certain property, not here involved.
P. Pertains to Oklahoma property, not here involved.
Q. The agreement to be carried out within thirty days, unless the court should extend the time.
This instrument was dated at Denver, Colo., January 21, 1944, but it was not signed by anyone.
On January 19, 1949, Milner filed an answer to plaintiff’s supplemental petition in which he admitted a partnership theretofore existed between the parties to the action in which their interests were equal; that he had brought an action for the dissolution of the partnership in the district court of the city and county of Denver, Colo., in which a receiver was appointed; that plaintiff had brought this action and obtained the appointment of a receiver, which receivership had been held to be ancillary to the Colorado receivership; and denied all other material allegations of the supplemental petition not later specifically admitted. He admitted signing the one page of the “Agreement” of Exhibit A, attached to the supplemental petition, but denied that the five-page memorandum part of Exhibit A was the Memorandum referred to in the “Agreement,” and alleged that prior to May 28, 1942, the parties to this action were partners in various real estate brokerage businesses, one of which was constituted under the name of “The Milner Company,” the assets of which included real estate, contracts and other personal property situated in Kansas, Colorado and other states; that the office of the company was maintained in Denver, Colo.; that on May 28, 1942, he filed an action against Schaefer and Lewis in the district court of the city and county of Denver for an accounting and a dissolution of The Milner Company, in which action a receiver was appointed; that issues were joined and the case proceeded to trial and was partially tried on January 17, 18 and 19, 1944, when the trial was recessed until January 21, and the court suggested that during the recess the parties should endeavor to effect a settlement of all their controversies; that the parties had conferences with their respective attorneys and through their attorneys consulted with each other during the evening of January 19, all day and the evening of January 20 until the early morning of January 21; that they were unable within that period to agree upon a full and final settlement of their controversies, but did agree on a broad outline; that when approaching the end of the trial recess the parties executed the one page tentative agreement, shown on Exhibit A, as an assurance to the court that progress was being made and that the parties would endeavor in good faith to formulate a full final contract of settlement; that the memorandum was not attached to the agreement when it was signed; that there was no agreement, either oral or in writing, that it would be filed in court or presented to the court for its approval; that such was not authorized by Milner and was all done without his knowledge or consent; that no final judgment or decree has ever been entered by the Colorado court; that under Colorado rules of procedure 58 (a), 79 (C) (d) a judgment to be effective must be entered on the judgment docket, and that no order or purported judgment of the Colorado court has ever been so entered in that action; that no final settlement has ever been made in the Colorado action for the reason that Schaefer and Lewis have refused to negotiate further, contending the agreement of January 21, 1944, and the endorsement of the court thereon constituted a final contract of settlement; that Milner’s petition for writ of error to the Colorado supreme court was dismissed without opinion, presumably for the lack of a final judgment (Rule 111 [A], Colorado Rules of Civil Procedure). It was further alleged that upon the failure of the parties, after January 21, 1944, to negotiate and effect a final settlement the subsequent proceeding of the court was without meaning or effect. It was further alleged that except for the filing of an answer Milner had not participated in the proceedings in that court, nor been represented by counsel, except for the limited purpose of determining the character of the receivership, whether primary or ancillary.
On February 8, 1949, plaintiff filed a reply to Milner’s answer in which it was alleged that all material allegations and claims set out in the answer should or could have have been presented in the Colorado action; that the ruling and judgment of the Colorado court are res judicata, and that Milner is estopped by that record; that all material allegations and claims in Milner’s answer should or could have been presented by him in the action in the district court of Bexar county, Texas. Copies of the pleading and judgment of the Texas court were attached. It was alleged that in this case Milner previously requested that the Colorado court be recognized as having jurisdiction of all matters at issue; that such adjudication has been recognized and given full faith and credit by the Texas court and held to be res judicata, and that by reason thereof Milner is now estopped to oppose the recognition by this court of any of the orders, rulings or judgments of the Colorado court.
On February 14,1949, there was filed a motion to revive as to the defendant W. M. Lewis, which recited that he died testate May 21, 1944, a resident of Bexar county, Texas, where his will was duly admitted to probate, and that on November 17, 1944, it was duly admitted to probate in Sedgwick county, and that Tom Kornhaus was duly appointed and that he qualified as. administrator with the will annexed, and that he is still acting as such. This motion to revive was consented to by the plaintiff and by the defendant Milner, and on February 17, 1949, a proper order of revivor was made.
When the case was called for trial on March 23, 1949, it was stipulated that Tom Kornhaus, ancillary receiver, was being paid compensation at the rate of $150 per month and that since January, 1944, he had been paid approximately $9,300, and that his attorney had been paid through the same period the sum of $9,750.
The plaintiff offered in evidence Exhibits 2 to 19, inclusive, covering the proceedings in the Colorado and Texas receivership cases. Counsel for Milner objected to them upon the ground that they were immaterial, and specifically as to Exhibits 19 and 19A — being excerpts from testimony — as being incomplete. These objections were overruled. The defendant Milner offered in evidence Exhibits A, B and C, being portions of the record of the Colorado case, which were objected to by plaintiff as being self-serving and incomplete. The objections were overruled. Defendant then called as a witness Henley A. Calvert of Denver, who had been Milner’s attorney in the latter part of the proceedings in the Colorado case. Counsel for plaintiff and counsel for Kornhaus, administrator c. t. a., objected to any oral testimony upon the ground that the documentary evidence offered clearly disclosed what judgment and decree should be entered for plaintiff, and that any oral testimony would be incompetent. The trial court took time to examine the documentary evidence. On March 28 there were hearings before the court as to the assessment of costs and receivership expenses, at which time written suggestions, not a part of the record, were submitted to the court and there was oral argument. The court announced it would consider the suggestions and within a day or two notify counsel of its decision. The court did so by letter on March 30 to the effect that the costs which had accrued since June 11, 1946, should be assessed against the defendant Milner. These were later computed by the attorneys to be $13,804.22.
In its judgment and decree the court found that the “supplemental petition of Sam H. Schaefer should be granted, except, that the receivership costs up to June 11, 1946, should be taxed against the plaintiff, Sam H. Schaefer, and defendant, Tom Kornhaus, administrator, c. t. a., and the receivership costs after June 11,1946, should be taxed against the defendant, A. Milner.”
We may remember the prayer of plaintiff’s supplemental petition was for an order authorizing and directing the receiver to convey all the real property of the partnership in Reno county to Milner; that the action be dismissed with prejudice as to Milner, and that all costs and expenses of the receivership be taxed against Milner and decreed to be a lien upon his Reno county real estate.
The decree of the court was that the receiver convey all the right, title and interest of the partnership and of the parties in and to the Reno county real estate to Milner, and that Schaefer, the record title holder, execute to Milner a quitclaim deed to the Reno county property; that any and all the right, title and interest of the defendant Milner to the property inventoried by the receiver, except •the Reno county property, be and the same is divested out of the defendant Milner and is hereby vested in the plaintiff Schaefer and the defendant Kornhaus, administrator, c. t. a., in equal shares; that the action be dismissed with prejudice as to the defendant Milner when there has been full compliance with the decree; that the receiver make a final report within thirty days; that upon approval by the court he is ordered to transfer and assign, convey and deliver all the property in his hands as receiver to the plaintiff Schaefer and the defendant Kornhaus, administrator, c. t. a., one-half to each, except the Reno county property; that upon those matters being carried out the receivership should be terminated and the receiver and his sureties on his bond be discharged. It was further ordered that the plaintiff Schaefer and the defendant Kornhaus, administrator, c. t. a., have judgment and recover from the defendant Milner all costs of court incurred and accrued after June 11, 1946, including receiver’s fees and expenses, which amounted to $13,-804.22, for which sum judgment was entered, and that all costs of court that had accrued prior to such date, including the receiver’s fees and expenses, be and they are taxed against the plaintiff Schaefer and the defendant Kornhaus, administrator, c. t. a., for all of wlpch execution should issue against the respective parties liable therefor. It was further ordered that the costs accruing subsequent to the date of the decree be taxed against the defendant Milner and the court retain jurisdiction to determine the amount of such costs and to( enter judgment for the same.
The receiver’s report of May 18, 1948, covering his receipts and disbursements from January 21, 1944, to May 18, 1948, and his supplemental final report, filed May 5, 1949, covering the period from May 18, 1948, to April 12, 1949, were before the court. These reports show that the total collections covered by the two reports to April 12, 1949, amounted to $162,793.93, and that the total expenditures covering the same period amounted to $120,646.98 (this included the disbursements to Schaefer and Lewis upon the ex parte applications of Schaefer, aggregating $60,097.00), leaving a> balance on hand of $42,146.94. The reports also show that the total collections from Reno county amounted to $6,611.38 and the total expenses paid out on the Reno county property amounted to $1,628.34, leaving a balance of receipts above expenditures on the Reno county real estate of $4,983.04. Counsel for Milner argued that all the expenses of the receivership should be borne by Schaefer and Kornhaus, administrator c. t. a.; also that Milner should be paid out of funds in the hands of the receiver the collections from the Reno county property, less the expenses paid by the receiver thereon; while counsel for plaintiff and Kornhaus, administrator, c. t. a., argued that Milner should pay all of the expenses of the receivership, and that they were entitled to the balance in the hands of the receiver. It will be seen that the court did not follow either contention fully.
Counsel for Milner filed a motion for a new trial, and upon the hearing reargued all matters previously argued. They also introduced an affidavit of Henley A. Calvert, which included the testimony he would have given if he had been permitted to testify as a witness, to the effect that he had made a personal examination of the records of the district court in the Milner receivership in Colorado and found that no final judgment or decree had ever been entered in the records of the court, as required by Rules 58 (a) and 79 (C) (d) of the rules of civil procedure, effective April 6, 1941. They also filed an affidavit of the defendant Milner which pertained to the Colorado court action. The motion for a new trial was overruled. The defendant Milner has appealed from all adverse rulings in the decree of the court and from the order overruling the motion for a new trial. The plaintiff and the defendant Kornhaus, administrator, c. t. a., filed a cross-appeal from that part of the decree wherein the court refused to enter judgment against Milner for the receivership costs incurred from February 21,1944, to June 11,1946.
Much of the argument in this court pertains to whether the order of the judge of the district court of Colorado as written on the “Agreement” with the memorandum attached on January 21, 1941, constitutes a final judgment or decree of, the court of which we must take judicial notice under the provisions of the federal constitution. (Article 4, section 1.) As we read this record there never has been a final judgment or decree entered in the records of the district court of the city and county of Denver in this case in harmony with the provisions of the Colorado statute 58 (a) and 79 (C) (d). So far as the records before us disclose the case is still pending in the district court of Colorado and the primary receiver appointed by that court never has been discharged.. The receivership in this state was adjudged to be ancillary to that in the Colorado district court (Schaefer v. Milner, 156 Kan. 768, 137 P. 2d 156), and so far as we know that relative status never has been changed.
Counsel for appellees argue that in the suit brought by Schaefer against Milner and Lewis in the district court of Bexar county, Texas, wherein Milner appealed, and the decision of the Court of Civil Appeals of Texas, San Antonio, as found in 211 S. W. 2d 600, the court recognized the order of the Colorado court entered on the “Agreement” January 21,1944, as being such a judgment of another state as the Texas court was bound to recognize and follow under the federal constitution. Counsel for appellees place too much weight upon that point in the decision. The statutes of Colorado had not been pleaded nor introduced in evidence in that ease, and the court had not been asked to take judicial notice of them under the Texas statute (Rule 184a, Texas Rules of Civil Procedure). Therefore, the court considered the statutes of Colorado to be the same as those of Texas, and construing the Texas statute and decisions held the Colorado order was to be regarded as final. It was further held that even if they were not, the “Agreement” approved by the order of the trial court on January 21, 1944, was one that could be enforced with respect to the property of the partnership in Texas.
However, it is clear that the order of the trial court of Colorado of January 21, 1944, is exactly what it purported to be, namely, an interim order of a trial court upon an important matter in a case then and still pending before it. We think it should be followed in this case as it pertains to the property of the partnership in Kansas. If that should prove to be inaccurate as to the division of the Kansas property, perhaps it may still be corrected in Colorado when the ancillary receiver in Kansas makes his report to the primary receiver in Colorado.
Since the “Agreement” with the accompanying memorandum, approved by the Colorado court on January 21,1944, is to be the basis of the decree in the present action we turn directly to it. Under assets other than cash it provides: “All Kansas property, except Hutchinson, Kan., go to Schaefer and Lewis. Hutchinson subdivisions and contracts go to Milner.” In the decree of the court before us this provision was carried out, that is to say, all title and interest in the Kansas property (other than the Hutchinson subdivisions and contracts) not previously disposed of was “divested out of the defendant” Milner and “vested in the plaintiff, Sam H. Schaefer, and the defendant, Tom Kornhaus, administrator c. t. a., the estate of W. M. Lewis, in equal shares.” Since this was fixed in the contract the decree might have been made promptly after January 21,1944. As far as the respective rights of the parties to the property is concerned they should be considered as being effective as of that date rather than of the date of the decree from which this appeal is taken.
The memorandum further provided: “All cash in the Kansas receivership case goes to Schaefer and Lewis.” We construe that to mean the cash in the hands of the Kansas receiver on January 21, 1944. Naturally, if the receivership continued, Schaefer and Lewis or his personal representative, would be entitled to the cash received after January 21, 1944, from the sale of the Kansas land which went to them under the memorandum. We do not construe it as meaning that if Milner’s land and contract at Hutchinson, Kansas, were kept in the receivership that the moneys from such land received after January 21, 1944, should go to Schaefer and Lewis or his personal representative. The result of this is that whatever moneys were collected by the receiver in the Kansas case from Milner’s Hutchinson, Kansas, property, less expenses paid by the receiver with respect to such property, after the date of January 21,1944, should now be paid to Milner. The receiver’s reports in this case show that the receiver collected $6,611.38 from Milner’s land and contracts in Reno county subsequent to January 21, 1944, and paid out for taxes and other expenses on that land during the same period the sum of $1,628.34, leaving a balance in the receiver’s hands from Milner’s Reno county property of $4,983.04.
The memorandum approved by the Colorado court January 21, 1944, respecting the receivership expenses provides: “Expenses incurred by the Texas and Kansas receivers now unpaid or hereafter incurred, are to be paid by Schaefer and Lewis.”
In plaintiff’s supplemental petition he asked that all of the costs . of the receivership be taxed to Milner. That view was strongly pressed upon the court by plaintiff’s counsel and strongly opposed by counsel for Milner, with the result that the court divided the costs of the receivership, taxing to plaintiff and Lewis or his personal representative, the costs to June 11, 1946, and taxing all subsequent costs to Milner. Both parties have appealed from that order. Appellees contend that Milner should be taxed with all the costs of the receivership in Kansas notwithstanding the statement in the memorandum approved by the Colorado court because he was not cooperative in carrying out that “Agreement” in respect to the execution of papers pertaining to the Kansas property, for which he was adjudged guilty of contempt on July' 11, 1946. From the material contained in the abstracts and briefs a lengthy discussion might be made on this point, but we deem it unnecessary to do so. We do note that the finding of the contempt shown by the record would not be valid under our statutes and decisions. (See G. S. 1935, 20-1201 to 1207, particularly 1204, and In re Gambrell, 160 Kan. 620, 164 P. 2d 122; 161 Kan. 4, 165 P. 2d 760.) We express no view of its validity under Colorado statutes and procedure and shall indulge in the presumption that it was valid. But even with this view we think it did not justify the assessment of costs to the amount of more than $13,000 against Milner. Assuming that Milner was bound by the provisions of the memorandum approved by the Colorado court on January 21, 1944, that did not prevent the court in this case from divesting him of all of the title and interest in the Kansas property, other than the Reno county property, and vesting the title in Schaefer and the personal representative of Lewis, which as we formerly observed could have been done much earlier. While counsel for appellees severely criticize Milner for his attitude, the record discloses facts that would justify serious criticism of the appellees, particularly Schaefer. With the action brought by Milner pending in Colorado to dissolve The Milner Company partnership, for an accounting and distribution of its assets and the appointment of a receiver, Schaefer brought this suit and on an ex parte application had a receiver appointed without mentioning the fact that the Colorado suit was pending; and for that he was specifically criticized in our former decision (Schaefer v. Milner, 156 Kan. 768, 779, 137 P. 2d 156). Other things might be pointed out, but we shall not take the trouble to do so. We note the record shows that Schaefer is a son-in-law of Milner, that he was taken into the partnership some years ago, and with the foresight, industry and cooperation of the partners the assets of the partnership were greatly increased. When they disagreed and Milner sought to dissolve the partnership it would appear from the record that maybe some conduct on both sides indicate the parties were governed more by their feelings than by their good judgment. The duties of the Kansas receiver pertain almost entirely to the property of the appellees. Judging from the receipts of the receiver, less than five percent of them was from the Kansas property set off to Milner. The work of the receiver consisted largely in collecting money on contracts for the sale of lots. There was a large number of these contracts, particularly in the Sedgwick county addition to Wichita, upon which the parties were paying weekly or monthly. In the receiver’s final report he stated that all of the property had been sold and that there were still sixty-eight outstanding contracts. If there had been no receiver and the property had been turned over to appellees shortly after January 21, 1944, the appellees would have had to have someone make those collections and when deeds were due, get abstracts of title and close the transactions. In such á situation none of that expense would have fallen upon Milner. It seems inherently unjust that Milner should have to pay any part of what normally was the expense of the conduct of business by the appellees.
Since appellees rely upon the contract and memorandum approved by the Colorado court on January 21, 1944, to receive title to the property of the partnership in Kansas, other than that' of the Reno county property, there is no reason why they should not be required to comply with the provisions of the memorandum with respect to the payment of the costs of the receiver. Milner did not appeal from that portion of the decree of the court which vested title in him of the Reno county property and directed Schaefer to execute a quitclaim deed for that property to Milner. Schaefer had the same duty under the memorandum approved by the Colorado court to execute instruments to convey to Milner the property set off to him that Milner had to execute similar conveyances to the appellees. It appears he had not done so at the time of the decree in this case. Whether he has done so now is not shown by the record before us.
At the request of appellees the court dismissed the action with prejudice as to Milner. We think that should not have been done. Since Milner had property rights determined in the decree we see no reason for dismissing the action as to him; but if such dismissal were made, it should have been without prejudice.
Counsel for the respective parties have cited a large number of authorities on a variety of questions. We have examined all these questions and most of the authorities cited in support of them, but we find it unnecessaiy to comment upon them here more than we have done. For, after all, if we take the “Agreement,” with the accompanying memorandum approved by the judge of the Colorado court on January 21, 1944, as our guide, there is not much difficulty in determining the rights of the respective parties here.
From what has been said the judgment of the trial court must be reversed with directions to authorize and direct the receiver to pay from the money in his hands the sum of $4,983.04 to the appellant Milner and to assess all of the costs of the receivership which have accrued, or may accrue, to the plaintiff Schaefer and the defendant Kornhaus, administrator c. t. a., of the estate of Lewis, and that the receiver be directed to make an appropriate report to the primary receiver appointed in the action in the district court of the city and county of Denver, Colo.
It is so ordered. | [
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The opinion of' the court was delivered by
Wedell, J.:
The state appeals from an order quashing count three of a complaint filed under the new Kansas liquor control a.ct. (Chapter 242, Laws 1949.)
Count three charged the defendant, Ronald Paul (Buck) Sumner, with unlawfully and willfully having and keeping in his possession on May 11, 1949, alcoholic liquor in an amount exceeding one case (three wine gallons) upon which the tax imposed by the Kansas liquor control act had not been paid and upon the containers of which each' mark and stamp required • by the act had not been affixed.
Defendant was convicted in the county court of Greenwood county and appealed to the district court. It appears no information had been filed in the latter court. The motion to quash was directed against the original complaint on the ground it failed to state facts sufficient to constitute a cause of action against the defendant and the facts alleged therein did not constitute a violation of the laws of this state.
The validity of the court’s ruling depends on the proper interpretation of certain sections of the new liquor control act. The pertinent portion of section 4 of that act reads:
“No person shall . . . possess any alcoholic liquor for beverage purposes, except as specifically provided in this act: Provided, That nothing contained in this act shall prevent: (1) The possession and transportation of alcoholic liquor for the personal use of the possessor, his family and guests except that the provisions of section 112 of this act relating to transportation and the provisions oj section 50 of this act shall be applicable to- all persons. . . .” (Our italics.) >
The pertinent portion of section 50 provides:
“It shall be unlawful for any person (1) to evade, or attempt to evade, the payment of tax or duty on any such alcoholic liquor, in any manner whatever, and ... (2) to- have in his possession any cask or package of such liquor, without having thereon each mark and stamp required therefor by law; and such cask or package not having the mark or stamp as aforesaid, shall be forfeited to the state of' Kansas . . . Provided, That nothing contained in this section shall make it unlawful for any person to possess or transport not to exceed two quarts of alcoholic liquor for the personal use of the possessor, his family and guests upon which the tax imposed by this act has not been-paid or on the containers of which each mark and stamp required by this act has not been affixed: Provided further, That until thirty (30) days after the governor shall issue the proclamation provided for by section 112 of this act, nothing contained in this section shall make it unlawful for any person to possess or transport not to exceed one case (three wine gallons) of alcoholic liquor for the personal use of the possessor, his family and guests upon which such tax has not been paid or on the containers of which have not been affixed such marks and stamps. Any person who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor. . . .” (Our italics.)
The pertinent part of section 112 states:
“Upon the taking effect of this act, the possession and transportation of alcoholic liquor fot personal use only shall be legal: Provided, That until such time as the governor shall issue a proclamation declaring that the tax and licensing provisions of this act are in full operation and being administered by the director which proclamation shall be issued by the governor on or before July 1, 1949, it shall be unlawful for any person to transport more than one case (three wine gallons) of alcoholic liquor at any one time for any use or purpose whatsoever. . . .” (Our italics.)
The new law became effective March 9, 1949. The complaint charged the offense was committed May 11, 1949. As provided in section 112 the governor had until July 1, 1949, to issue his proclamation declaring the tax and licensing provisions of the act were in full operation and were being administered by the director. The governor’s proclamation was issued June 6, 1949.
In quashing count three the trial court indicated the theory upon which it did so. In commenting on its decision the trial court appears to have placed particular emphasis on section 112. It said:
“That Section of the Statute says it is legal to possess liquor. Possession and transportation for personal use only shall be legal. It makes no reference whatever to the three wine gallons except as to the transportation of three wine gallons. To me that would indicate that he could make a dozen trips to Missouri if he wanted to if he didn’t haul more than three gallons at one time.”
The issue here pertains solely to possession and not to transportation. It may be conceded the act is not a model of clarity. It is true the first sentence of section 112, standing alone, would indicate the possession of alcoholic liquor was legal after the effective date of the act, March 9, 1949. It is also true that sentence, standing alone, contains no limitation or restriction relative to the quantity of alcoholic liquor a person might possess on May 11, 1949, for the personal use of himself, his family and guests. That the act was intended to ultimately make possession for personal use legal is not questioned by either party to this action.
The precise question presented here, however, is not what quantity of alcoholic liquor a person might possess for the personal use of himself, his family and guests after the governor’s proclamation became operative but what quantity he might possess for such use before the governor’s proclamation became effective, that is, before the tax and licensing provisions of the act were in force and effect.
Before leaving section 112 of the act we pause to note that particular section prohibited the transportation of more than one case (three wine gallons) for any purpose until the governor’s proclamation was issued. In the instant case, as previously stated, we are not concerned with the subject of transportation but only with possession.
We now turn to section 4 of the act as that appears to be the proper starting point for determining the precise question before us. It will be noted that section starts with a direct prohibition of the right to possess alcoholic liquor for beverage purposes. It then qualifies that prohibition by a proviso which in effect says nothing contained in the act. shall prevent possession of alcoholic liquor for personal use, except that the provisions of section 50 shall be applicable to all persons.
What is the provision of section 50, if any, with respect to possession? Since the charge here is not that appellee had possession of more than two quarts but more than one case of alcoholic liquor we need not determine whether the first proviso of section 50 is applicable. The second proviso of that section pertains to possession of more than one case. The second proviso, in effect, states that until thirty days after the governor shall issue his proclamation nothing contained in section 50 shall make it unlawful for any person to possess “. . . not to exceed one case (three wine gallons) of alcoholic liquor for the personal use of the possessor. . . .” etc., upon which the tax has not been paid or on the containers of which the stamps have not been affixed. (Our italics.)
Although it is true, as appellee contends, the last quoted portion of section 50 alone does not affirmatively state it shall be unlawful for one to possess for the personal use of himself, his family and guests more than one case (three wine gallons) during such period, we think that was the legislative intent. Unless the proviso is so construed then it, the first part of section 50, to wit, “It shall be unlawful . . .” and the first part of section 4, to wit, “No person shall . . . possess . . .,” etc., are all rendered entirely meaningless.
In order to ascertain the legislative intent courts are not permitted to consider some one isolated part of an act but are required to consider and construe together all parts thereof in pan materia. (Rausch v. Hill, 164 Kan. 505, 190 P. 2d 357.)
It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained. (Iola B. & L. Ass’n v. Allen County Comm’rs, 152 Kan. 365, 103 P. 2d 788; Rausch v. Hill, supra.)
When the interpretation of a statute according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the statute should be construed according to its spirit and reason, disregarding so far as may be necessary, the strict letter, of the law. (Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042.) The same rule, of course, applies to various sections of the same act.
Studious analysis of all pertinent provisions of the 1949 liquor control act convinces us the legislature intended to limit, as therein indicated, the quantity of untaxed and unstamped alcoholic liquor which might be possessed by any person for the personal use of himself, his family and guests between the effective date of the act and thirty days after the issuance of the governor’s proclamation. We, therefore, conclude count three states an offense under the new act.
Appellant directs our attention to the large stock of liquor found in appellee’s possession on May 11, 1949. While that fact may tend to show appellee intended to make other than personal use of the liquor we are not now concerned with evidence which might support some other charge but only with the sufficiency of the complaint to charge an offense of unlawful possession on the designated date.
The judgment of the district court is reversed and the action remanded with directions to set aside the order quashing count three of the complaint. | [
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The opinion of the court was delivered by
Wedell, J.:
This action involves the title to an airplane.
The controversy is between the plaintiff, Jack Marshall, and an intervenor, Ray Anderson. Judgment was for the latter and plaintiff appeals. The defendants made no appearance in the action.
December 4, 1947, appellant instituted an action against certain defendants to recover the balance of money claimed to be due and attached the airplane as the property of the defendants, L. E. Bardin and Joseph Slager, partners doing business as Central Air-parts Company. The original petition of appellant is not set forth but the foregoing facts are undisputed.
May 10,1948, intérvenor filed a verified amended interplea. In the journal entry of judgment the court found the allegations of that interplea were true. Appellee relies upon facts therein contained and We shall, therefore, set out the interplea in full. It follows:
“COMES NOW Ray Anderson, Interpleader herein, and for his amended cause shows the court:
“1. That he is a resident of the State of Missouri and his correct post office address is Berkshire Hotel, Kansas City, Missouri.
“2. That on the 4th day of December, 1947, he was the owner of and in possession of one Cessna aircraft, serial No. 6103 (NC-5663N), having acquired such ownership and possession as follows:
“a. On October 9, 1947, the said aircraft was in the possession of the Mississippi Valley Aircraft Service, Fletcher Field, Clarksdale, Mississippi, subject to a mechanic’s lien in the amount of $3,057.53 for labor, materials and service-performed by the Mississippi Valley Aircraft Service as shown by the attached statement marked Exhibit ‘A’ and made a part hereof by reference; and
“b. Between October 9, 1947 and October 18, 1947, L. P. Bardin advised this Interpleader that the said aircraft was subject to the lien of the Mississippi Valley Aircraft Service; that neither he nor the Central Air Parts, Inc., desired to discharge such lien, and that this Interpleader could have the §kid aircraft if he would pay the Mississippi Valley Aircraft Service the full amount of their claim; and
“c. On October 18, 1947, this Interpleader purchased from the Bank of North Kansas City their cashier’s check No. 6759 in the amount of $3,057.53, payable to the Mississippi Valley Aircraft Service for the purpose of discharging said mechanic’s lien; a photostatic copy of said check and an affidavit of the assistant cashier of said bank are attached as Exhibit ‘B’ and made a part hereof by reference; and
“d. Within a day or two following October 18, 1947, your Interpleader sent his employee, Fielding Schultz, to Clarksdale, Mississippi, to deliver the check and to take possession of the said aircraft; said employee did deliver the said check and did take' possession of the said aircraft and returned the said aircraft to this Interpleader at Kansas City, Missouri, where it remained until December 3, 1947; and
“e. No written evidence of title-other than those documents referred to above were executed or delivered to this Interpleader; and
“3. That on December 3, 1947, this Interpleader telephoned Mr. Charles Toth of the Toth Aircraft and Accessories Company and requested permission to hangar said aircraft in the hangars of the Toth Aircraft and Accessories Company on Fairfax Airport in Wyandotte County, Kansas; such permission was granted and this Interpleader directed Mr. Fielding Schultz, his employee, to fly said aircraft to Fairfax Airport and to store it in the hangars of the Toth Aircraft and Accessories Company; Mr. Schultz did fly the said aircraft to Fairfax Airport and did store it in the hangars of the Toth Aircraft and Accessories Company. No written agreement or memorandum was entered into between this Interpleader and the Toth Aircraft and Accessories Company; the aircraft was stored under an oral agreement in accordance with the custom of the trade to pay the usual storage charge's. The affidavits of Mr. Fielding Schultz and Mr. Charles Toth are attached as Exhibits ‘C’ and ‘D’ and made a part hereof by reference; and
“4. That on the 4th day of December, 1947, the Plaintiff herein filed a petition and affidavit and caused an order of attachment to be issued to the Sheriff of Wyandotte County, Kansas; and pursuant to the said order of attachment the Sheriff of Wyandotte County attached the said aircraft; and
“5. That this Interpleader is not indebted to the Plaintiff herein and the Plaintiff has no claim of any kind against this Interpleader, and this Inter-pleader is entitled to immediate possession of said airplane.
“6. That the said aircraft was owned and possessed by this Interpleader as set forth above on the 4th day of December, 1947, at the time it was attached by the Sheriff of Wyandotte County, Kansas; that the attachment was wrongful and should be dissolved.
“Wherefore, Interpleader prays that the court ordered the attachment heretofore issued and levied in this case be dissolved and that the above described aircraft be returned to the possession of this Interpleader.”
On May 25, 1948, appellant demurred to the interplea. The ruling thereon was reserved until final judgment when the demurrer was overruled. Before judgment was rendered and on July 26,1948, appellant filed his unverified answer to the verified amended inter-plea, previously set forth, admitted paragraphs 1 and 4 and denied all other allegations of the interplea. January 4, 1949, appellant filed an amended petition and had a new attachment issued. In the latter petition appellant made Central Airparts, Inc., an additional party defendant. He alleged that about November 1, 1947, the defendants employed him to make repairs on three airplanes owned by them (other than the plane in question) located at Clarksdale, Miss.; he made the repairs at the agreed price of $7,500 plus expenses; the balance due was $2,622.90 for repair work done at Clarksdale; defendants on demand refused to pay the balance due.
As previously stated, defendants filed no pleadings. The issues between plaintiff (appellant) and intervenor (appellee) were, tried and the court found:
“First, that the statements contained in the interpleader’s Amended Inter-plea are true;
“Second, that at the time the attachments herein were issued, interpleader was the owner of and in possession of the aircraft described as Cessna serial No. 6103 (NC 5663N).”
The principal questions argued in this case are (1) whether there was an actual bona fide sale by defendants to intervenor; (2) whether Bardin had authority from defendants to sell the plane; and (3) whether appellant had notice of appellee’s purchase prior to the attachment.
This is essentially a fact case. This court, of course, does not try the facts de novo. It cannot determine the credibility of witnesses or reweigh the evidence. The only concern of this court under our practice is whether there is substantial evidence to support the findings made by the trier of the facts and not whether there is substantial evidence to support contrary findings if they had been made.
The parties argue about where the burden of proof rested. That is not very material in this case now. Much depended on what witnesses the trial judge believed and on what weight he attached to their testimony. If he believed appellee’s witnesses, and an examination of the record indicates he must have, this court cannot say the proof was insufficient to sustain the findings made.
While some of the evidence on the subject of Bardin’s authority to make the sale may not have been competent on the single theory of agency, apart from ownership, portions of it were competent on that theory. It must, however, be remembered appellant’s amended petition alleged Bardin and Slager were partners; that the partnership and Central Airparts, Inc., defendants, • were indebted to appellant on the contract appellant made with the defendants. Following the filing of appellant’s amended petition he joined Central Airparts, Inc., as a party defendant and attached the property as the property of the. defendants.
The entire record considered, this court cannot disturb the judgment. It is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
These two direct criminal appeals were consolidated for consideration by this court after a “Motion To Consolidate” was filed stating that the same question is presented in each case.
In case No. 45,845 defendant was charged with two counts of robbery in the first degree and with one count of attempted robbery in the first degree.
In case No. 45,846 defendant was charged with the offense of embezzlement by a bailee.
On May 19, 1969, defendant appeared before the trial court in person, and with his respective counsel in each case, and entered pleas of guilty to each of the charges. After allocution, the pleas were accepted by the trial court and sentences were pronounced. On recommendation of the respective deputy county attorneys, all of the sentences imposed were directed to run concurrently with each other.
Following the imposition of sentences in each case, defendant’s counsel requested the trial court to enter an order directing the sheriff to transport defendant to the Kansas State Reception and Diagnostic Center for examination and evaluation and that a report thereof be made to the court within one hundred days.
On September 15, 1969, the defendant, pro se, filed a motion in each case for leave to appeal in forma pauperis.
Defendant’s motions were granted; counsel was appointed, and these appeals were perfected.
Defendant now contends the trial court erred in accepting his pleas of guilty without further inquiry as to his mental competency, although he filed no motion to withdraw his plea in either case.
Defendant does not challenge the voluntariness of his pleas— his sole argument in each appeal is that, since two different attorneys requested that defendant be sent to the diagnostic center, the trial court should not have accepted his pleas. The issue presented is fully resolved by our decision in McQueeney v. State, 198 Kan. 642, 426 P. 2d 114, wherein a like assertion was considered and held to be without merit. (See, also, State v. English, 198 Kan. 196, 424 P. 2d 601; State v. Childs' 198 Kan. 4, 422 P. 2d 898; and Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197.)
The judgments appealed from are affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This appeal involves the duty of a liability insurance carrier to' defend, and its liability to pay any judgment rendered against, a particular defendant in an automobile negligence action. The single issue is the applicability of a “fellow employee” exclusionary clause in the carriers policy.
From an adverse judgment following trial to the court on this limited aspect, the insurance carrier, Pacific Insurance Company of New York, has appealed.
The background of the action will be briefly stated.
Raymond St. Aubyn, a sixteen year old boy, was on October 25, 1966, a regular employee of Edward Myer. Myer was a contract carrier for the Kansas City Star, using a motor vehicle in the daily delivery of newspapers in Kansas City, Kansas. Myer owned the vehicle and normally drove it along the route while two teen-aged boys threw papers from it. An automobile liability insurance policy issued by Pacific covered the Myer vehicle.
On the day in question Myer had gone on a hunting trip and Frank Engler was driving the vehicle in his stead and at his request in the morning delivery of papers. (Engler’s status is the crux of this action, about which more anon). St. Aubyn was in the delivery truck for the purpose of throwing papers. The truck collided with an automobile driven by Susan Brownfield Thogmartin, injuring St. Aubyn as a result.
St. Aubyn commenced this action by filing his petition for damages against Thogmartin, Myer and Engler. Myer and Engler filed separate answers. Thereafter, Engler, through his own automobile liability insurer, commenced a third party proceeding against Pacific. In this third party suit Engler alleged that Pacific under its policy covering the Myer vehicle was obligated to defend him (Engler) and to pay, within policy limits, any judgment obtained against him by St. Aubyn, and Engler sought declaratory judgment for this relief.
In due course Pacific filed an answer asserting its coverage did not extend to appellee Engler by reason of an exclusionary clause in the policy which provided that it was not applicable:
“(†) to bodily injury to any fellow employee of the insured injured in the course of his employment if such injury arises out of the use of an automobile in the business of his employer. . .
The trial court heard the third party suit in advance of trial of the negligence action upon its merits. It made findings of fact and conclusions of law favorable to Engler’s position, and, as indicated, rendered judgment as requested against Pacific, which has appealed. Engler is the only other party to this appeal, although his own insurance carrier is interested in the outcome.
To clarify and pinpoint the precise issue upon appeal, we may state:
Appellant Pacific concedes appellee Engler is, by definition in its policy, an additional insured therein inasmuch as he was operating the vehicle with Myer’s permission. The parties agree St. Aubyn was an employee of Myer and both concede the dispositive factor in this proceeding is whether appellee was an employee of Myer at the time in question. As the issue is submitted to us, if appellee was not an employee of Myer, appellee has insurance protection as an alleged tortfeasor by reason of being an additional although unnamed insured; if appellee was an employee of Myer, appellee has no coverage where another employee of Myer is seeking judgment. (The policy also contains an “employee” exclusionary clause which is of no present concern.)
The evidence at trial upon appellee’s status in its most favorable aspect toward him as the prevailing party revealed the following:
Appellee formerly was a contract earner for the Kansas City Star but had retired several years prior to October 25, 1966. He and Myer had been friends, and he had, prior to the occasion in question, driven Myer’s route for him an average of two or three times a year. When he had done this there had never been any agreement for compensation. Sometimes Myer would give appellee varying amounts for taking the route but always what he (Myer) wanted to; upon occasion Myer gave appellee no payment at all; sometimes appellee would give back all or some of the money given him by Myer. When Myer asked appellee to take his route for him on October 25, 1966, so that he could go hunting, there was no talk or suggestion of pay. Subsequently Myer did give appellee $5.00 for driving the route on that day. While appellee was driving the route the two boys who were throwing papers told appellee where to drive as he was not acquainted with the route. In .the summer of 1968 Myer took ten days off from his work and he had another driver take his place on the route; He paid that relief driver $100.
When asked how he would characterize his friendship with appellee Myer testified:
“I would say very close; I’d help him whenever I could and he helps me whenever he can, and it’s a mutual friendship, no business friendship.”
Appellee gave the following testimony:
“Q. All right. Now, if there wasn’t any understanding as to salary, why would you do this for Mr. Myer?
“A. As a favor.
“Q. As a favor. And had you done this for him in the past?
“A. I have, yes.
“Q. Approximately how often do you do this favor for him?
“A. Oh, maybe twice a year, somewhere in that neighborhood, if I am free.
“Q. And when you have driven the truck for him on these prior occasions, was there ever any talk or discussion about any money to be paid to 3'ou for this?
“A. None whatsoever.
“Q. Now, you have been present during Mr. Myer’s testimony, and he stated that he gave you a certain amount of money after you have completed—
“A. I have refused it from him sometimes and haven’t even taken it. I ■didn’t do it for what I would get out of it, I done it for a favor to Mr. Myer.
“Q. In other words, sometimes he gave you a little money and sometimes he didn’t give you any?
“A. That’s right.
“Q. All right, and you did this—
“A. Sometimes he insisted, in other words, that I take something for it and I would say, ‘O.K., if that’s the way you feel about it.’
“A. Well, I know that as far as him requesting me, he never requested me, he asked me and I volunteered to do it.
“Q. You volunteered?
“A. But under no pay.”
The trial court, in rendering judgment for appellee, made the following findings of fact and conclusions of law:
“3. That at the time and place of the accident on October 25, 1966, Edward Myer was a contract carrier for The Kansas City Star and was required to deliver a morning and evening newspaper. Engler had volunteered to drive the vehicle for his friend Myer on the day in question. There was no agreement for payment of compensation to Engler. Engler could have reneged on his offer to drive or he could have quit halfway through the route ■on the day in question and Myer would have had no recourse against him. Engler didn’t know the route. He was merely driving the delivery vehicle and following a route as given him by St. Aubyn and Hood. St. Aubyn and Hood were throwing the papers and directing Engler where to drive. Subsequently, Myer paid Engler $5.00 for the trip of October 25th. This was a gratuity.
“1. That at the time of the accident described in the plaintiff’s petition, Frank Engler was not an employee of Edward Myer nor a co-employee of Raymond St. Aubyn.”
Appellant valiantly urges insufficiency of the evidence to support the trial court’s finding and conclusion that appellee was not an employee of Myer. It stresses many factors which it asserts established the contrary — ownership of the vehicle; that appellee was at Myer’s request furthering the latter’s business at the time; Myer’s implicit retention of the right of control over appellee in the handling of the vehicle, which right was actually exercised when Myer’s other employees, the boys throwing papers, told appellee the exact route to follow. It asserts absence of agreement as to any amount of compensation is immaterial and likewise the length of employment.
Much of appellant’s argument is cast in terms of whether ap pellee’s role was that of employee or independent contractor— indicia of each vis-a-vis the other are emphasized. Much of its cited authority deals with the applicability of either the workmen’s compensation act as an exclusive remedy for personal injury or of the Fair Labor Standards Act but our problem here is not to determine whether a person falls within a definition in a statute enacted for a particular purpose and pertinent to a special situation. Moreover, the trial court did not find, and there is no contention here, that appellee was an independent contractor. The court found appellee had “volunteered” to drive the vehicle without any agreement for compensation and that the subsequent payment of $5.00 was a gratuity.
We are not without precedent on the subject. In Bean v. Gibbens, 175 Kan. 639, 265 P. 2d 1023, the question was whether a deceased boy was an employee of an insured within the meaning of a liability insurance policy excluding employees from coverage. The boy was helping his father when the insured came along and asked the boy if he would drive a truck to town for him. Nothing was said about any pay. No pay was offered him. There was no understanding on the part of the father there would be any pay. The boy was killed while guiding the truck as it was being towed. It was undisputed that the insured had instructed the boy how to manage the truck and the trial court so found. The trial court also found:
“The task performed by said Wilbur Leroy Bean for defendant was occasional, incidental, casual and a neighborly act.” (p. 640.)
It concluded as a matter of law the boy was not an employee within the meaning of the exclusionary clause. Upon appeal the insurer argued that since the insured had the right of control and did in fact exercise it, the boy had to be his employee as a matter of law.
This court stated that whether a person was an employee of an insured within the meaning of a policy exclusionary clause is a question to be decided from consideration of all the surrounding facts and circumstances. After examining various definitions of the term “employee”, and other authority, the court rejected the contention of the insurer and held the finding made by the trial court as to the nature of the task rendered the exclusionary clause inapplicable.
In 12 Couch on Insurance 2d, § 45.610, under the general heading of risks covered by automobile liability insurance contracts, the principle is stated thus:
“A person is not an employee by virtue of the fact that he does work or performs services for another when he does so merely as a favor for such other person. . . ” (p. 560.)
Supporting cases may be found in the cited work. See, also, anno. 50 A. L. R. 2d 78, and Later Case Service, Vol. 49-55, A. L. R. 2d §3.
In the case at bar there is substantial support in the testimony for the proposition that appellee was, as he had done in the past, doing the work as a favor for an old friend. This being true we cannot disturb the finding and conclusion of the trial court.
The judgment is affirmed.
approved by the court.
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The opinion of the court was delivered by
Fatzer, J.:
This is a criminal appeal from a jury verdict finding the appellant guilty of attempted burglary in the second degree as provided in K. S. A. 21-101 and K. S. A. 21-520.
The appellant’s car was found on the premises of a service station shortly after 1:00 a. m. on March 24, 1969, by Dean Strickland, the owner and operator, who was alerted by an electric alarm system operating between the station and his home located about one-half mile west of the station. The service station is located in a rural area on U. S. Highway 75, two miles east of Havana, Kansas.
It was approximately three minutes from the time the alarm sounded until Strickland could view the station from the highway. After arrival at tire station, the appellant’s car was found within a few feet of the back door of the station, with the motor running and the left door open. It was discovered the back door of the station had been beaten on with some type of object and the wood around the lock had been splintered. The door was open about two inches, but entry had not been gained. The appellant’s car was disabled by the removal of the wire between the coil and distributor, and after searching the area for about ten minutes, Strickland and his companion returned home to call the sheriff.
After Strickland returned to the station, and upon the arrival of a deputy sheriff, the appellant appeared at Strickland’s car and inquired as to who “screwed up my car.” The appellant was taken into custody, and a visual inspection was made of his car.
Ry shining a flashlight into the car a red handled claw hammer was discovered lying on the front seat. The hammer was marked by the deputy sheriff for identification. The car was parked about 23% feet from the damaged station door, and about 100 feet from an outside toilet.
The appellant was taken to the Montgomery County jail and booked for vagrancy, and was told by the deputy sheriff he would be charged with attempted burglary, which was confirmed by appellant at the trial.
At the trial, appellant moved to suppress the introduction into evidence of the claw hammer alleging it was obtained by an illegal search and seizure. He relied on Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881, to support his contention, and here advances the same argument. In the Preston case the defendant was charged with vagrancy, placed in jail, and his car after being taken to a garage, was searched without warrant. The supreme court held that to be a search not incident to the arrest, and a search warrant was therefore necessary.
The present case is quite different. Here, the appellant’s car was allegedly searched at the time of his arrest and at the place he was arrested — the scene of the crime. The purpose of the arrest was not to enable a search of the car, as in Preston.
A search implies prying into hidden places for that which is concealed and it is not a search to observe that which is in open view. Looking into a parked car through the windows does not constitute a search, even though it is nighttime and the items can be seen only with the aid of a flashlight. (The People v. Exum, 382 Ill. 204, 47 N. E. 2d 56; State v. McMillin, 206 Kan. 3, 7, 476 P. 2d 612, Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992.)
The eye cannot commit a trespass condemned by the Fourth Amendment, and observation of that which is in plain view is not a search. (State v. Blood, 190 Kan. 812, 378 P. 2d 548.) The hammer observed in and taken from appellant’s car at the scene of the crime was marked for identification by the deputy sheriff and then returned to the car seat on which it was found. For a statement of the rule for the search of a vehicle after it has been taken into custody and removed to the police station, see State v. McMillin, supra, and Chambers v. Maroney, 396 U. S. 900, 26 L. Ed. 2d 419, 90 S. Ct. 1975.
It is difficult to imagine facts and circumstances which more clearly give rise for an officer to have reasonable cause to believe the contents of the appellant’s vehicle offended against the law. The deputy sheriff was aware from Strickland’s telephone call the burglar alarm had gone off a few minutes before. He knew it was approximately 1:00 a. m. when he arrived at the station in a rural area, and that the appellant’s car was parked near the back door of the station which obviously had been damaged to a great extent by the person attempting the burglary. He was also aware from information given by Strickland that he (Strickland) had arrived within a matter of minutes after the burglar alarm sounded, only to find the appellant’s car with its motor running, but not the appellant. The deputy sheriff observed the appellant was muddy down the front of his clothes and he gave no explanation of his presence at the station that early in the morning. He saw a hammer lying on the front seat of the car, which was in plain view, and could have been the instrument used for smashing the station door. He was also aware that when Strickland first arrived he searched the area for approximately ten minutes and had been unable to find the appellant. Not only do those facts support the authority to search the car, but also give rise to the appellant’s subsequent arrest for attempted burglary. The fact the deputy sheriff advised the appellant he was arresting him for vagrancy, but would later ask that a warrant be issued for attempted burglary, is immaterial, and is persuasive to show the officer’s intent to make an arrest for die latter crime. In State v. Zito, 54 N. J. 206, 254 A. 2d 769, an officer made an arrest under a disorderly person statute when he had independent knowledge of another offense and probable cause to make an arrest therefor. The court said:
“. . . It would be a windfall to the criminal, and serve no laudable end, to suppress evidence of his guilt upon the fortuitous ground that the arresting officer, who knew of several bases for the arrest, selected one a judge later found inadequate. ... In terms of the Fourth Amendment, a search cannot sensibly be called ‘unreasonable’ when ample cause existed for the arrest and was known to the arresting officer.” (1. c. 213.)
The appellant contends the district court erred in permitting cross-examination of him concerning his failure to explain his presence at the scene of the crime. He relies on State v. Bowman, 204 Kan. 234, 461 P. 2d 735, where an accused without the aid of an attorney refused to talk when confronted by incriminating statements of an alleged accomplice during custodial interrogation to which fact the investigating officer testified at the trial. The case is not in point.
Here, the appellant took the witness stand in his own behalf and attempted to explain his presence at the scene. He testified he was traveling on U. S. Highway 75 when he became ill and stopped at the station to use the outdoor facilities; that he parked his car near the back door of the station and walked in the rain and mud to the toilet rather than drive to the facility on a graveled driveway; that he was in the toilet about three minutes, and while there he heard a car come in and stop, remain a short time, and leave; that when he returned to his car, the motor was no longer running, and that he got into the back seat to lie down, and put the hammer in the front seat.
The state, on cross-examination, had the right to refute appellant’s reasons and explanations. The state could properly test his credibility, his integrity and character, and appellant cannot complain because he was subjected to the same inquiries as other witnesses. The right to remain silent is a procedural safeguard to secure the privilege against self-incrimination during custodial interrogation, and has no application when appellant takes the witness stand and places his credibility in issue. (State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019.)
During the cross-examination complained of, the appellant answered that he did not offer any explanation of why he was at the service station, and that he remained silent because he had been in trouble before. It was not improper to inquire of appellant on cross-examination as to why he did not explain his conduct prior to the trial. In State v. Jackson, supra, it was said.
“The state had the right to test the credibility of the witness and impeach the testimony. This is a time when ‘silence speaks louder than words.’ The question immediately arose — if the appellant had such a positive defense why had he not so informed the law enforcement officers during or after his arrest? Normally an innocent man would take the first opportunity to state the fact. Silence until the time of trial casts a serious doubt upon appellant’s testimony and the state had a right to refute any reason he gave for his claimed abnormal conduct. . .” (1. c. 798.)
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The opinion of the court was delivered by
Fromme, J.:
This is a claim on an insurance policy covering a dwelling house. The trial court sustained the insurance company’s motion and entered judgment against the homeowners.
Only one question is presented by the appeal. Was the loss .arising from the collapse of the house excluded from coverage by a clause in the policy excluding loss caused by earth movement including but not limited to earth sinking? The house sank into a pre-existing mine shaft underlying the property.
A stipulation of facts was entered into by the appellant homeowners and the insurance company. For the purpose of this appeal the pertinent facts stipulated are as follows:
“(1) Homeowners Policy No. H 10 89 16, the form of which is attached hereto and marked Exhibit ‘A’, was issued by the ‘Company to the ‘Plaintiffs’ on or about July 21, 1964 and was in full force and effect on the date of the loss, January 21, 1965.
“(2) The home in question was owned by the ‘Plaintiffs’ and was located at 2035 South 38th Street, Kansas City, Kansas.
“(3) At or about 11:20 a. m. on January 21, 1965, when the ‘Plaintiffs’ were engaged in their employment away from said premises, the supporting soil under and around the foundation of .said home gave way and sunk into a pre-existing cavern or shaft area of a mining operation underlying ‘Plaintiffs’' property; as a result of which said home was totally destroyed as a residence by reason of portions thereof sinking into said cavern or shaft thereby causing the whole of said dwelling to be tilted to various angles, and portions thereof to collapse.”
The policy provisions pertinent to the loss of the home are as follows:
“Perils Insured Against
“This policy insures under Section I against direct loss to the property covered (and additional living expense resulting from such loss) by the following perils as defined and limited herein:
“14. Collapse (Not Settling, Cracking, Shrinkage, Bulging or Expansion) of Building(s) or Any Part Thereof, but excluding loss to (a) outdoor equipment, gutters and downspouts, cloth awnings and fences, all except as the direct result of the collapse of a building; (b) fences, pavements, patios, swimming pools, foundations, retaining walls, bulkheads, piers, wharves or docks, when such loss is caused by freezing, thawing, or by the pressure or weight of ice or water whether driven by wind or not; all except as the direct result of the collapse of a building.”
“Special Exclusions
“This Company Shall Not Be Liable:
“(a) as respects Perils ... 14 ... : for loss caused by, resulting from, contributed to or aggravated by any earth movement, including but not limited to earthquake, landslide, mud flow, earth sinking, rising or shifting; unless loss by fire or explosion ensues, and this Company shall then be liable only for such ensuing loss; . . .” (Emphasis added.)
At the outset we note certain issues raised by a third party petition and the answer of the third party defendant are of no concern in this appeal. Likewise any facts alleged in the third party petition and answer cannot be considered when not included in the stipulation of facts. Accordingly we are not at liberty to accept appellants' statement that the American Rock Crusher Company had created the subterranean cavity and negligently failed to leave sufficient subjacent support or that it failed to maintain the supporting structures in the mine. We cannot say that the collapse was proximately caused by the wrongdoing of the American Rock Crusher Company. The most we can say under the facts stipulated by these parties is that the supporting soil under and around the foundation of the house gave way and sank into a pre-existing shaft area of a mining operation underlying the property. (See stipulation, paragraph [3].)
In contracts of adhesion, where the insurance company selects the language and the insured is “stuck with it”, this court has adhered to the rule that any uncertain language in an insurance policy should be construed strictly against the company and liberally in favor of the insured. (Fire Association v. Taylor, 76 Kan. 392, 91 Pac. 1070; Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P. 2d 264.) When an insurance contract is not ambiguous courts will not make another contract for the parties but will enforce the contract as made. (Braly v. Commercial Casaulty Ins. Co., 170 Kan. 531, 227 P. 2d 571; Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P. 2d 157.) Clear and unambiguous words in a contract of insurance are to be taken and understood in their plain, ordinary and popular sense. (Bennett v. Conrady, 180 Kan. 485, 305 P. 2d 823, Braly v. Commercial Casualty Ins. Co., supra.)
The thrust of appellants’ argument is that the exclusionary clause in the policy appears to be ambiguous in that it excludes loss from “earth movement” including “earthquakes, landslides and earth sinking.” They say since the exclusion appears to them to be ambiguous we should apply the formal rule of construction, ejusdem generis, defined recently in Keller v. Ely, 192 Kan. 698, 391 P. 2d 132. That rule is when specific things named in an instrument are followed by a general term, the general term is deemed to be restricted to and refer only to those things similar in nature to those specifically enumerated.
Applying that rule to the exclusionary clause in this case the appellants insist the enumerated events, earthquake, landslide and earth sinking are all events which have their origin in nature, are “acts of God” and that the loss of appellants’ home was not in that category. Accordingly they argue the loss was not excluded.
Although their argument is an ingenious one we cannot accept their reasoning and must reject the argument. Before the rule of ejusdem generis can be applied the clause must be ambiguous. (See Keller v. Ely, supra.) The term “earth movement” taken in its plain, ordinary and popular sense means any movement of earth whether it be up, down or sideways. The words “earthquake, landslide, mud flow” and the term “earth sinking, rising or shifting” all refer to vertical or horizontal movements of earth or soil, wet and dry. We fail to see how the exclusionary clause can be considered ambiguous. The words used may not reasonably be understood to have two or more possible meanings. (See Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799.)
In addition we cannot agree that landslides, mud flows, earth sinking, rising or shifting are natural phenomena or “acts of God.” An “act of God” as known in the law is an irresistable superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent. (See Lee v. Mobil Oil Corporation, 203 Kan. 72, Syl. ¶ 1, 452 P. 2d 857.) For the most part the events enumerated in the exclusionary clause originate from the negligence or carelessness of man in failing to follow proper conservation practices. When earthquakes, which fall within the legal definition of an “act of God”, are included along with landslides, mud flows and earth sinking there is no apparent basis for the restriction urged by appellants under the rule of ejusdem generis.
When we consider the stipulation of facts entered into by the parties it appears the supporting soil or earth under and around the foundation of the house gave way and sank. The exclusion covered loss caused by earth movement including earth sinking. We find no ambiguity in the exclusionary clause.
We have examined each case cited by appellants and have made independent research in an effort to discover a case in which a similar exclusionary clause has been examined by the courts. We know of no case considering a similar clause which has reached the courts.
We were informed on oral argument that this clause is generally found in the more recent homeowners policies. Recent cases in this area are collected in 13 Couch on Insurance, 2d Supp. under “What constitutes a collapse of building” (§ 48:173), under “What constitutes a landslide” (§48:174) and under “Exception as to settling, shrinking, expansion, etc.” (§48:175).
Many of the cases cited and examined, including our own case of Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P. 2d 417, turn on what constitutes “collapse of building(s) or any part thereof”. The present case is not concerned with that question for a collapse of the house was stipulated.
The exclusionary clause in Anderson v. Indiana Lumbermens Mutual Ins. Co. (La. App.) 127 So. 2d 304, was quite limited in scope. It excluded loss caused “directly or indirectly by earthquakes or other earth movements, except landslides.” It was held in that case the term “earth movements” was limited in application to loss caused by earthquakes and did not exclude loss caused by expansion and contraction of soil which damaged the house.
The exclusionary clause in the present case is really quite specific. It excludes loss caused by any earth movement including but not limited to earth sinking. The term “earth movement” is specified and then further explained to include earth which sinks, rises or shifts.
In conclusion appellants make a strong argument that the exclusionary clause is all inclusive and, if not construed as they have urged, the peril of collapse insured against in paragraph fourteen is completely negated. They insist this to be the case because any other instance giving rise to collapse of the building appears to be covered by the other eighteen perils insured against in the policy. Generally these perils include fire, lightning, cost of removal of personal property, windstorm, hail, explosion, damage from the malfunctioning of the heating system or plumbing or water heater or electrical system, riots and civil commotion, aircraft, vehicles, smoke damage, vandalism and malicious mischief, theft, falling objects, weight of ice or snow or sleet, glass breakage and accidental freezing of pipes.
A collapse of a building may occur absent any of the above perils and absent any earth movement. Buildings may collapse from their own weight if not properly planned and constructed. In addition the ravages of time and dry rot may well result in a collapse of a wooden structure absent any external force. It is true that the collapse coverage extended is severely limited by the exclusionary clause. However, when the insurance contract is not ambiguous, and we so find, this corut will not make another contract for the parties but will enforce the contract as made.
Accordingly we hold the loss of the house was excluded from coverage under the policy when the supporting soil under and around the foundation of the house gave way and sank into a preexisting shaft area of a mining operation underlying the property, the loss being caused by the earth sinking.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order of the district court sustaining the defendant-administrator’s motion for a directed verdict at the close of the plaintiff’s evidence.
The action was commenced by Viola Reynolds, the mother and next friend of Judy A. Reynolds, to recover damages from the estate of Paul Stanosheck, deceased, for personal injuries sustained as a result of an automobile accident in Marysville, Kansas, on November 8, 1964. The decedent was driving his automobile, and was killed in the same accident. We shall refer to the decedent as Paul, or Stanosheck.
Stanosheck was eighteen years of age, and drove his 1958 two-door Oldsmobile sedan to Marysville from his home in Odell, Nebraska, for the purpose of visiting a girl friend. He, along with several other young people ranging in age from fifteen to seventeen, drove to the “Blue Lounge” dance hall about twelve miles west of Marysville on U. S. Highway 36. Paul and his friends returned to Marysville about midnight. The streets were dry; the weather was cold and it was slightly foggy in Marysville; the car windows were up, and the radio was playing popular music. There were three young people in the front seat besides Paul, and three young people in the back seat, one of whom was Judy Reynolds.
After entering Marysville, Paul turned off of U. S. Highway 36 and proceeded south for two blocks to Elm Street, a residential street, and then proceeded east on Elm. This route was taken by him because there was a curfew in effect, and the driver and the other young people in the automobile were less likely to be seen and stopped by the city police.
Elm Street is an east and west street, and is crossed by the Union Pacific Railroad at Seventh Street — a north and south street. The crossing is not hidden, obstructed, or difficult to see. There is a railroad crossbar sign; the tracks are in plain sight; the terrain is level, and there is nothing to prevent anyone approaching the crossing from looking to the south, or having a clear view in all directions.
As Paul proceeded to cross the tracks, he drove his car into the right front of the diesel engine of a freight train, inflicting damage and causing his death and the death of another, and severely injuring Judy Reynolds who was asleep in the back seat. There was evidence from Janet Wege McKinsey, Paul’s date that evening who was seated beside him, that she did not know whether Paul looked to his right when he approached the tracks, but that she was not looking, and was not “watching for a train.”
The engineer of the train testified that as the train proceeded through Marysville its headlight was on; the bell was ringing continuously; the whistle was blown at every street crossing, and when the train reached the Elm Street crossing, it was going twelve miles-per hour.
It was stipulated that the status of Judy Reynolds, while riding in Stanosheck’s automobile, was that of non-paying guest.
A guest of an operator of a motor vehicle does not have a cause of action against his host unless he can show his injury resulted from the “gross and wanton” negligence of the operator. (K. S. A. 8-122b.) Hence, we are concerned only with whether the district court erred in directing a verdict in favor of the appellee for the reason that appellant failed to establish a prima facie case of wantonness on the part of Stanosheck.
The test to be followed in evaluating evidence on a motion for a directed verdict is set out in Fox v. Massey-Ferguson, Inc., 206 Kan. 97, 476 P. 2d 646, where, quoting from 3 Vernon s Kansas Statutes Annotated, Code of Civil Procedure [Fowks, Harvey, Thomas], Sec. 60-250.3, p. 219, it was 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, §1975.’” (1. c. 100.)
In directing a verdict for the appellee, the district court concluded there was no evidence to show gross and wanton negligence on the part of Stanosheck upon which reasonable minds could differ, and there was no issue of fact for the jury to determine. We are of the opinion it did not err.
In Srajer v. Schwartzman, 164 Kan. 241, 188 P. 2d 971, it was held:
“ ‘Gross and wanton negligence’ within the meaning of such statute means wantonness, or willful and wanton conduct. There must be a realization that danger of injury to another is imminent, and conduct indicating an indifference to whether such injury results.” (Syl. ft 3.)
In Frazier v. Cities Service Oil Co., 159 Kan. 655, 666, 157 P. 2d 822, it was held:
“. . . [T]o constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. If the actor has reason to believe his act may injure another, and does it being indifferent to whether it does or not, he is guilty of wanton conduct.” (Syl. ft 5.)
In Muhn v. Schell, 196 Kan. 713, 413 P. 2d 997, it was held:
“The mental attitude of the wrongdoers, rather than the particular negligent act or acts, tends to establish wantonness, and whether the necessary elements are present to constitute wantonness must of necessity depend on the facts and circumstances of each particular case.” (Syl. ft 2.)
To overcome the requirement of wantonness, the appellant contends that Stanosheck had knowledge of and realized he was approaching a railroad crossing, since he had visited Marysville on numerous occasions prior to the night of the accident, and that this was the danger which is contemplated by the language “realization of the imminence of danger.” The appellant claims Stanosheck should have been aware that the railroad tracks presented an imminent danger of injury. The contention cannot be sustained.
The record convincingly demonstrates that Stanosheck drove his automobile squarely in front of a slowly moving train when the whistle was blowing and the bell was ringing. He was proceeding east slowly, and the train was coming from the south. There was nothing to obstruct his view to the south. The crossing was not a dangerous one — the police chief testified that in 21 years there had not been a previous train-car collision at the crossing. There was no evidence that Stanosheck either heard or saw the train before the crash. As he approached the crossing, he slowed down to less than twenty miles per hour. He had his automobile under control, and he was not dozing, or sleepy. There was evidence he drove safely back to Marysville, and no witness testified otherwise. No one in the car heard or saw the train, or sounded a warning, or realized there was any danger of being hit by the train until a split second before the impact. All persons in the car and who testified at the trial, stated they were moving very slowly — Stanosheck was driving about twenty miles per hour. At no time during the evening did anyone complain of wild, reckless or irresponsible driving. There was no evidence Stanosheck was angry, frustrated, showing off, speeding, had been drinking, or was acting with indifference for the safety of his guests. In short, there is no evidence in the record to indicate he realized the imminence of danger, or upon which a reasonable inference could be based that he possessed an attitude of reckless disregard and complete indifference for the well-being of his close friends. The most that can be said from the evidence in the record is that he failed to keep a proper lookout. He had a duty to look before proceeding over the crossing (Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P. 2d 748), and he will be conclusively presumed to have seen what he could and should have seen. (Mies v. Twietmeyer, 193 Kan. 97, 99, 392 P. 2d 118.) At most, Stanosheck’s failure to keep a proper lookout constituted lack of due care, which is ordinary negligence, and less than gross and wanton conduct.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is a sequel to Thurman v. Trim, 199 Kan. 679, 433 P. 2d 367 and arises from a dispute over option rights created by the same farm lease.
After our opinion was filed in the former case, lessee Veryl L. Thurman sought to exercise an option to purchase the property leased. The lessors, Melvin Trim and Eilene Trim, refused to comply with the option agreement. An action was filed by Thurman and the district court ordered specific performance of the option agreement contained in the lease but excepted the land on which the house is located. The lessors appeal from that judgment. The lessee cross-appeals from that part of the judgment which excepts from the option to purchase the land on which the house is located.
Additional facts are necessary to understand the course of the litigation below and the contentions raised on appeal.
The lease was entered into on January 25, 1964. The Trims hold no deed to the property. They hold an agreement to purchase the property from the defendant Clara Graham. The correct description of the property covered by the lease and described in the purchase agreement is as follows:
“Fifty (50) acres off the East side of the East Half (E/2) of the Northwest Quarter (NW/4); lots One (1) to Four (4), both inclusive, less the railroad right-of-way; and the Northeast Quarter of the Southwest Quarter (NE/4 SW/4), all in Section Eighteen (18), Township Twenty-nine (29) South, Range Nineteen (19) East of the 6th P. M., Neosho County, Kansas.”
The original purchase agreement between Graham and the Trims was entered into on January 31, 1949. It was renewed September 1, 1954, and renewed again on November 15, 1959. The final renewal contract called for payment in full by November 15, 1964. Final payment was not made and a balance of $1400 remains due and owing.
The farm lease from the Trims to Thurman was dated January 25, 1964, and contained the following option to purchase:
“The parties of the first part hereby grant to the parties of the second part the option, during the term of this lease or renewal thereof, to purchase the above-described property for the sum of $125. acre V. L. T. M. F. T. Ninety days notice will be given to the parties of the first part by the parties of the second part if the option to purchase is used.”
A trial of the issues between Thurman and the Trims resulted in a judgment in favor of Thurman for specific performance of the option to purchase. Thereafter Thurman moved to the court for an order permitting him to file a supplemental petition and bring Clara Graham into the action for the reason that a complete determination of the controversy could not be had without her presence. The motion was granted and a supplemental petition was filed seeking specific performance against Clara Graham. She answered and filed a cross claim against the Trims alleging failure to make payments and seeking cancellation of the purchase agreement.
After a trial of the issues the court decreed specific performance of the option to purchase against Clara Graham, determined the amounts remaining unpaid under the contract and directed that such amounts be paid to her. The purchase price had been paid into court by Thurman during the pendency of the proceedings. Mrs. Graham has not appealed from the decree.
We turn now to the points raised on appeal. Melvin Trim and Eilene Trim, the lessors, will be referred to as the appellants. Veryl L. Thurman, the lessee, will be referred to as the appellee.
The district court ruled that questions of fraud and misrepresentation in obtaining the lease were res judicata as a result of the previous appeal. (Thurman v. Trim, supra.) The appellant contends the court erred in this ruling.
On reading our prior opinion there can be no doubt that questions of fraud and misrepresentation in obtaining this lease were placed in issue and determined in the prior case. The parties operated under the lease agreement for nearly two years before the rescission was attempted by the appellants. At p. 685 of the opinion it was said:
“It is well established that if a party desires to disaffirm a contract for fraud, he must act promptly after discovery of the fraud or lose the right of rescission. If by words or conduct he treats the contract as binding after having knowledge of the fraud, he thereby affirms the contract and cannot rescind. . . . Trim’s repudiation of the lease agreement came too late, for he, by his previous conduct, had treated the agreement as binding. The trial court properly excluded the parol evidence for the reason that fraud as a defense had been waived.” (199 Kan. 679.)
The issue of fraud and misrepresentation in the inducement to lease was laid to rest in the prior case and the doctrine of res judicata applies. When a court has jurisdiction of the parties to an action and of the subject matter thereof, and renders a judgment within its competency, such judgment is final and conclusive and cannot be relitigated in a new proceeding. (McFadden v. McFadden, 187 Kan. 398, 357 P. 2d 751; Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P. 2d 342; Adamson v. Hill, 202 Kan. 482, 487, 449 P. 2d 536.)
Appellants contend the court erred in excluding parol testimony relating to Trim’s understanding of the option when the lease was entered into by the parties. The trial court refused to receive or consider such testimony on the ground the testimony would tend to vary the terms of the written lease which were clear and unambiguous. Proffer of the testimony was made by the affidavits of Melvin Trim and Clara Graham. The affidavit of Trim alleged a lack of understanding of the option provision when he signed the lease. Both affidavits alleged that Thurman knew of the outstanding interest of Clara Graham when he obtained the lease from the Trims. The affidavit of Clara Graham stated she advised Thurman that whatever he could work out with the Trims concerning the lease would be satisfactory to her.
The option provision in the lease appears clear and unambiguous. The testimony proffered concerned negotiations prior to execution of the lease and concerned a party’s understanding of what was to be written in the lease. The relevant evidence proffered would tend to vary the terms of the written lease. The proffers were properly excluded.
When a contract is complete, unambiguous and free from uncertainty, parol evidence of a prior or contemporaneous agreement or understanding, tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissable. (Brown v. Beckerdite, 174 Kan. 153, 254 P. 2d 308; Williams v. Safeway Stores, Inc., 198 Kan. 331, 338, 424 P. 2d 541.)
The appellants contend that Thurman failed to exercise his option to purchase in a proper manner. They argue that a letter mailed to them on November 30, 1967 was insufficient for that purpose as it merely expressed the intention to exercise the option.
The present action was filed January 15, 1968. The court after hearing the evidence made the following finding:
“2. The plaintiff [Thurman] did exercise the option. His letter to defendants [Trims] of November 30, 1967, constituted a notice of intent, and thereafter he did everything possible for him to do to bring about consummation of a sale and purchase. Defendants’ actions and failures to act, after such notice, were not based upon a non-exercise of the option but upon their claim that plaintiff did not have any option right. Plaintiff was not obligated to perform a futile act.”
During the trial of issues between Thurman and the Trims, Thurman paid the entire purchase price of $28,750 into court. The cashier’s check was dated September 24, 1968. This tender and payment into court was made during the renewal term of the lease and constituted a proper exercise of the option to purchase.
Appellant’s contention that Thurman breached his lease before exercising the option to purchase was decided adversely to the appellants in the court below. The trial court specifically found the balance of rents due had been paid into court, that time of payment was not of the essence, that the pasture had not been overgrazed and that the water well on the premises had not been destroyed by Thurman. There is substantial evidence in the record to sustain these findings of the trial court. It is not the function of this court to weigh conflicting evidence on appeal or to substitute its judgment for that of the trial court. (Preston v. Preston, 193 Kan. 379, 381, 394 P. 2d 43.)
Appellants next contend that specific performance was not a proper remedy when the evidence disclosed the property was owned by Clara Graham.
The record indicates that the appellants held a contract to purchase these premises from Clara Graham and that the balance due thereon had been reduced to $1400. Clara Graham was brought into the action and appeared with her own separate attorneys. Specific performance was decreed against her and no appeal has been taken by her from that order. Her rights under the contract of sale appear to have been fully and satisfactorily protected by the court.
Generally the existence of outstanding liens which can be discharged out of the purchase-money will not constitute a bar to an action by a vendee to enforce specific performance of a contract for the sale of real estate. (Sewell v. Dolby, 171 Kan. 640, 237 P. 2d 366; Guild v. Railroad Co., 57 Kan. 70, 45 Pac. 82 and Keepers v. Yocum, 84 Kan. 554, 114 Pac. 1063.) The appellants cannot justify their refusal to perform their agreement because a small balance remains due under then' contract of purchase with Mrs. Graham. The rights under that contract were assignable. Mrs. Graham was a party to the action, subject to the jurisdiction of the court, and her rights could be adequately protected by payment of the amounts remaining due.
We have examined the remaining points raised by appellants and find them to be without merit.
The final matter to be considered relates to the cross-appeal by Veryl L. Thurman. He appeals from those portions of the decrees which except the land on which the house is located from the 230 acres of land he elected to purchase.
As the decree of the district court now stands the house and the land on which it rests is to be conveyed to Melvin Trim and Eilene Trim and the balance of the 230 acres surrounding the house is to be conveyed to Veryl L. Thurman. The judgment of the trial court is based upon its interpretation of what this court said in our opinion in Thurman v. Trim, supra.
In the former appeal the parties agreed that the description of property set forth in the lease was erroneous. We held under the facts narrated in the opinion the trial court could resort to parol evidence to determine the correct description. It was pointed out that the Trims actually owned or possessed 230 acres of land and after the lease was given Thurman took possession of the entire 230 acres, except for the house which the Trim family continued to occupy. The correct description of land covered by the lease was determined to be that description previously set forth in this opinion. The fact that the Trim family continued to occupy the house after the lease was given did not change the legal description of the land being leased nor would it detract from the rights which Thurman bargained for in the option to purchase. The option to purchase covered the entire 230 acres which were owned by the Trims. The land occupied by the house was not excluded.
The former action was brought to compel performance of an implied covenant of quiet peaceable enjoyment of the leased premises. (See Thurman v. Trim, supra, p. 682.)
A covenant of quiet enjoyment of the premises by a lessor may be implied in a lease which is silent on the subject from circumstances which attend the leasing of land. (Stewart v. Murphy, 95 Kan. 421, Syl. ¶ 2, 148 Pac. 609; Wallace v. Carter, 133 Kan. 303, 299 Pac. 966.)
The lease with which we are concerned contained no express covenant of quiet peaceable enjoyment. In Thurman v. Trim, supra, we determined that a covenant of quiet peaceable enjoyment should be implied except for the house which the Trims had continued to occupy from the inception of the lease.
When such an implied covenant is determined and enforced against the lessor the expressed terms and conditions of the lease are not changed thereby.
Our holding in Thurman v. Trim, supra, with respect to occupancy of the house related solely to the extent to which the implied covenant of peaceable enjoyment should be enforced against the lessor. The option to purchase was a covenant expressed in the lease. It remained unchanged by the limitation imposed by this court on the implied covenant of peaceable enjoyment. The option to purchase covered the 230 acres including the house.
Accordingly those portions of the judgments and orders of the trial court which direct a conveyance to the Trims of the land on which the house is located are reversed and set aside. The remaining portion of the judgments and orders which decree specific performance in favor of Veryl L. Thurman are affirmed and should cover the entire 230 acres of land described in this opinion.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from an order denying petitioner’s motion for post-conviction relief (K. S. A. 60-1507) after a full evidentiary hearing.
Petitioner Hannon was convicted of first degree murder on December 18, 1959, and was sentenced to the state penitentiary for life. No direct appeal was attempted from the conviction and sentence.
Now, ten years after his conviction, petitioner has filed the present motion for post-conviction relief. His specifications of error concern the admission of evidence during the original trial. His first contention concerns a deposition of a doctor who was unavailable at trial. The doctor’s testimony corroborated other testimony relating to the cause of death. The doctor’s deposition was obtained at the request of petitioner’s trial counsel and was introduced during the trial while petitioner was present. There was no objection to its introduction. The state previously had requested that testimony of the doctor at a preliminary hearing be used at the trial but, after objection by petitioner’s counsel, the state consented to the taking and to the use of the deposition in lieu of the testimony at the preliminary hearing. (See State v. Terry, 202 Kan. 599, 451 P. 2d 211 and State v. Washington, 206 Kan. 336, 479 P. 2d 833.)
The second error specified by petitioner is in the admission of a confession in writing taken by police officers after petitioner was fully advised of his constitutional rights, including the right to have counsel present. (See State v. Hinkle, 206 Kan. 472, 479 P. 2d 841.)
Constitutional rights, such as the right to be confronted by witnesses against you at the trial and the right to be represented by an attorney during interrogation, may be knowingly, intelligently and effectively waived. (See Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822; Henry v. Mississippi, 379 U. S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564 and Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357.)
The matters about which petitioner now complains involve alleged trial errors which occurred ten years before the present proceeding was instigated. We have reviewed the record presented by petitioner and find no facts or circumstances which excuse a failure to appeal from the conviction. Present counsel makes no attempt to point out exceptional circumstances which might excuse the failure to appeal.
The post-conviction remedy provided by K. S. A. 60-1507 cannot be used as a substitute for a direct appeal involving mere trial errors. If trial errors affect constitutional rights it is required that exceptional circumstances be shown excusing the failure to appeal before such errors will be considered in collateral post-conviction proceedings.
Supreme Court Rule No. 121 (c) (3) (205 Kan. xlv) provides:
“(3) a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.”
The requirement that exceptional circumstances excusing the failure to appeal be shown has been recently iterated in Barnes v. State, 204 Kan. 344, 350, 461 P. 2d 782; Jackson v. State, 204 Kan. 841, 843, 466 P. 2d 305 and Eaton v. State, 206 Kan. 187, 188, 476 P. 2d 694.
In the present case ten years have elapsed since the evidence was introduced and admitted at the trial. No exceptional circumstances excusing the failure to appeal have been suggested to this court. In the absence of such a showing the post-conviction remedy provided by K. S. A. 60-1507 cannot be used to obtain an examination on appeal of these alleged trial errors.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Edward J. “Eddie” McClain was convicted by a jury of the offense of robbery in the first degree. Sentenced under the habitual criminal act, he now appeals.
Briefly, evidence for the prosecution revealed the following: About 9:20 a. m. on January 29, 1969, three men entered the office of McEntire Brothers, Inc., a mattress and bedding company at 400 Jefferson street in Topeka. One man remained in the front part of the building. The other two went to the counter in the rear, first inquiring about a mattress, then producing revolvers and announcing a holdup. Mrs. McEntire, bookkeeper and wife of one of the owners of the company, identified appellant as one of these two. The bandits forced the three employees present to lie on the floor face down. One of them struck Mrs. McEntire when she raised up. They then took currency from a desk and a change box and a large paper sack from an unlocked safe. The sack contained a savings bond, some envelopes and a coin collection. The men left, going east toward the Santa Fe depot.
About one hour later two police officers, who had received notice of the robbery, saw a blue Ford automobile, bearing a Missouri license tag, parked in the Santa Fe parking lot near the McEntire plant. Although a heavy snowfall had occurred that morning, the vehicle had no snow upon it, and its motor was warm. Looking through the windows, the officers observed on the back seat coin collection books, a large brown bag, and an envelope with the name “McEntire” upon it; on the floor behind the seat they saw a small open money box full of silver. The officers made no search of the vehicle but called Mrs. McEntire to view it. She identified the coin collection, change box and the envelope as articles taken in the robbery about an hour before. The officers then had the automobile towed to the impounding area of the Topeka police department, obtained a search warrant for it and made a thorough search. In addition to the articles mentioned the officers seized a billfold from the glove compartment of the vehicle bearing the initials “E. M.” Inside it were a business card of McEntire Brothers, Inc., and several pieces of paper bearing names and addresses. A girl whose typewritten name and address appeared on one of the slips of paper identified the slip as one she had given to appellant on January 14, 1969. Another girl identified a similar piece of paper containing her name and address as one upon which she had written and had given to appellant either on January 19 or January 26,1969.
Another witness testified that around 1:45 a. m. on January 29, 1969, appellant and another individual came to the home of the witness in a blue Ford automobile bearing'Missouri tags, and that appellant stayed all night at this home. When the witness arose about 10:00 a. m. appellant had already left. The witness, while an inmate of the Kansas penitentiary, had made the billfold in question as a present for appellant’s sister, Evelyn McClain.
Appellant served notice of alibi and in support thereof a girl friend testified that on January 29, 1969, appellant was with her at her home in Topeka from about 3:30 a. m. to about 11:45 a. m. Appellant testified to the same effect, denying he had been at the McEntire place of business; he had lost the billfold in question on January 21 and did not know how it and the items purloined from McEntires came to be in the unidentified blue Ford.
Appellant first argues the prosecution’s evidence was insufficient to convict him and that the jury’s verdict was contrary to the evidence. He makes much of the fact two of the McEntire employees were unable to identify him as a participant in the holdup. This failure hardly exonerates him as these two, when their attention was drawn to the robbers, were compelled immediately to lie face down on the floor. On the other hand, Mrs. McEntire conversed with appellant and had opportunity to view him and she positively identified him as one of the persons displaying a revolver and the one who told her to lie on the floor. Appellant also argues that Mrs. McEntire upon viewing several photographs including one of appellant, failed to identify him. Appellant misconstrues her testimony. She stated she had been “pretty sure” but not positive as to appellant’s photograph being that of one of the robbers and, later, that to her appellant did not look exactly like his picture.
Appellant also would dismiss the incriminating evidence linking him to the billfold, but this evaluation was strictly jury work. His contention the verdict is contrary to the evidence is based on his assertion the testimony of his alibi witness was uncontradicted. This testimony was in fact completely contradicted by the prosecution witness who testified appellant had spent the night with him and by Mrs. McEntire’s eyewitness statement that appellant was one of the robbers. The evidence amply supported the conviction;
Appellant complains the trial court erred in admitting Mrs. McEntire’s identification of appellant because of unfair procedure employed at a lineup, relying on the Wade-Gilbert-Stovall rules. Appellant particularly emphasizes the witness’s lack of complete certainty at the time of viewing the photographs, arguing then' use must have been unnecessarily suggestive. The facts do not justify the complaint. Appellant did appear in a pretrial lineup at which he was identified by Mrs. McEntire as one of the robbers. This occurred about two and one-half weeks after she had identified his picture from a group of photographs. Appellant had counsel at the lineup. At trial, when objection was made to Mrs. McEntire’s testimony, the trial court held a separate hearing out of the presence of the jury on the issue. Mrs. McEntire testified she was making her trial identification upon appellant’s appearance at the time of the robbery as a participant therein and not from the photographs, and that the same was true as to her lineup identification. Thus it affirmatively appears her in-court identification came from a source independent either of her viewing of appellant or his photograph. The lineup and the photo viewing appear to have been fairly conducted. There was no showing either was unnecessarily suggestive or that Mrs. McEntire’s identification was in any way tainted by an invalid confrontation as denounced by the rules relied upon by appellant. We see nothing respecting the lineup identification which was prejudicial to appellant and must hold his constitutional rights were not in any way infringed.
Appellant complains generally of an illegal search and seizure in the removal of the items from the blue Ford automobile. Although he disclaims any connection with or knowledge of this vehicle and the state questions his standing to complain, a complete answer to the contention of illegal search is that probable cause existed for the officers to procure a search warrant, or even to have made an on-the-spot warrantless search (see State v. McMillin, 206 Kan. 3, 476 P. 2d 612). The regularity of the search warrant is not in anywise challenged. The complaint here seems bottomed more on the fact appellant testified he had no connection with the vehicle or its contents but credible evidence offered by the state indicated otherwise.
We have considered other matters raised by appellant, including the fact one juror momentarily took notes until stopped by the trial judge and that another was seen to nod, but find nothing approaching reversible error.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action for injunctive relief. The trial court, in sustaining the plaintiffs’ position, entered a permanent injunction against the defendants and they have appealed.
There is no material dispute as to the relevant facts. On December 27,1965, the Board of County Commissioners of Barber County, Kansas (hereafter designated as the Board) employed the J. M. Cleminshaw Company, Incorporated, of Cleveland, Ohio, (herein after referred to as Cleminshaw) to appraise all taxable real property and certain tangible personal property located within Barber County.
The contract of employment was somewhat long and its provisions quite detailed. For present purposes, however, we need only say that under the contract Cleminshaw was obligated as follows: (1) To give ten days’ notice to all affected owners of the values which had been set on their respective properties by the Cleminshaw appraisers and advising such owners of the time and place at which they could appear for a review of the appraisals placed on their properties; (2) to deliver all property record cards to the County upon completion of the appraisal; and (3) to complete the contract on or before November 1, 1968.
Cleminshaw had not completed its task of appraisal, which included the holding of hearings, by the time required, i. e., November 1, 1968. For that reason an extension of the completion date to December 1, 1968, was secured from the Board and hearings were held from November 18 to November 27, 1968, on the valuations Cleminshaw had come up with. The record does not clearly disclose whether or not Cleminshaw actually completed its appraisal work by December 1, but it does suggest that trouble arose over Cleminshaw’s performance under the contract and that certain litigation ensued which, for all we know, may still be pending.
Be that as it may, the defendant, Ronald F. Dwyer, who was and is now the Director of the Property Valuation Department of the State of Kansas, issued a directive to the County Clerk of Barber County on January 15, 1969, requiring that officer to use the Cleminshaw appraisal in assessing taxes for 1969. What may have preceded and given rise to the issuance of this ukase must be left to conjecture so far as the record discloses, even though a perceptive reader might have a faint inkling of what had transpired.
On February 10, 1969, the present action was filed against Dwyer as the Director of Property Valuation and against R. E. McCarty as County Clerk and ex-officio assessor of Barber County, (to whom we shall refer jointly as defendants) seeking to enjoin them from entering the Cleminshaw appraisal on the Barber County assessment rolls for the year 1969. The plaintiffs in this action allege themselves to be owners of non-exempt real estate in Barber County, Kansas, and they profess to bring the action for themselves and other similar taxpayers of the County. They predicate their lawsuit on the fact that the Cleminshaw appraisal was not completed on or before November 1, 1968, and thus could not be used as a basis for assessing the 1969 taxes. Accordingly, the plaintiffs contend that Dwyer was without authority to direct use of the Cleminshaw appraisal in computing 1969 taxes.
As we have previously pointed out, the trial court sustained the plaintiffs’ position and entered judgment, permanently enjoining the defendants from using the Cleminshaw appraisal for the tax year of 1969.
At the threshold of this appeal we are met by a motion on the part of plaintiff taxpayers to dismiss the defendants’ appeal as being moot. This motion must receive our first attention.
It is conceded by the litigants on both sides of this controversy that the Cleminshaw appraisal cannot be resurrected and given life at this late date so far as taxes for 1969 are concerned. The defendants themselves say in their brief:
“It is true that when April 25, 1969 passed, the enjoined directive became ineffectual and that directive cannot now be reinstated.”
The significance of the April 25 date is simply that such is the date on or before which the county assessor, by statutory command, must complete and verify the assessment rolls for the ensuing year and deliver the same to the county clerk. (See K. S. A. 79-408.)
Moreover, on oral argument, counsel for the defendants frankly admitted that the taxes for 1969 have already been collected in Barber County on the basis of the old appraisal, not on the appraisal figures contained in the Cleminshaw report.
In view of these concessions, as well as statements to like effect by plaintiffs’ counsel, we are bound to conclude that events have transpired since this appeal was taken which would, indeed, make ineffectual any judgment of reversal this court might pronounce. In more popular vernacular the train has passed by — the appeal has become moot.
Inasmuch as numerous cases dealing with the principle of mootness are to be found within the Kansas Reports we are not now inclined to engage in protracted discussion of the subject. A lucid and well documented discourse upon this topic appears in Andeel v. Woods, 174 Kan. 556, 258 P. 2d 285, to which the inquisitive reader may, if the spirit moves, refer. In Andeel this court quoted with approval the following passage taken from Diehn v. Penner, 169 Kan. 63, 216 P. 2d 815:
“This court is committed to the rule that it will not consider and decide a question raised on appeal where it clearly appears that between the trial of an action and the submission of such question there has been a change of circumstances which would make any judgment it might render with respect thereto of no consequence to the particular issue litigated in the court below. (Citing cases.) ” (p. 64.)
The most recent of our several decisions adhering to the principle enunciated in Andeel, Diehn, and other cases, is Griffith v. State Highway Commission, 203 Kan. 656, 456 P. 2d 32. In that case we held:
“This court will not review a case on its merits where a judgment of reversal would be wholly ineffectual.” (Syl.)
Plowever the defendants, while acknowledging our many precedents, assert that vital rights of the Director of Property Valuation and of many assessing officials will be affected by this judgment and that it is in the public interest that a determination be made of the issue involved in this appeal. In support of this proposition the defendants cite Connell v. Reno Construction Co., 192 Kan. 368, 388 P. 2d 830. We have carefully examined the Connell opinion and fail to find any reference whatever to the public interest. Indeed, the essence of the Connell holding is accurately reflected in the passage beginning on page 369:
“The petition sought relief only in the form of injunction. This court is, by a long line of decisions, committed to the rule that a case will not be reviewed on its merits where only injunctive relief is sought and the need for that relief has ceased to be a justiciable issue.”
Furthermore this court, quite contrary to the defendants’ contention, has specifically held that the doctrine of mootness is applicable to cases where the public interest is concerned. In Andeel v. Woods, supra, the following statement is made:
“The rule that this court will not on appellate review decide a moot question in a situation where it cannot make its judgment effective has been applied not only in cases pertaining to private controversies but in those actually involving die public interest. (Citing cases.)” (p.558.)
Like language was used by this court, and a similar decision rendered, in State, ex rel., v. Eastin, 179 Kan. 555, 297 P. 2d 170, where an appeal taken by the state was dismissed on the ground that the same had become moot.
In our opinion the question raised in the appeal has become moot. Thus, judicial action ceases. The appeal is dismissed. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, John William Souza, resides in the western reaches of Wichita. His property, in Westlinlc 5th addition has been included within a benefit sewer district created to pay for the construction of a sewer designated as Submain 2, Westlink Sewer. The West Wichita Homeowners Association, Inc., likewise a plaintiff in this action, is composed of residents and taxpayers of the benefit district created to pay for the sewer, and is headed by Souza as its president. Mr. Souza and the association have joined hands in bringing a class action on behalf of the property owners in the benefit district.
This action seeks to enjoin the spreading and levy of special assessments against the benefit district to pay for the construction of Westlink Submain 2. The trial court denied injunctive relief and entered judgment in favor of the city. The plaintiffs have appealed.
By way of background, we glean from the record that the West-link Sewer System was designed in 1955 when the area was outside the city, and that an improvement district was formed to pay for the entire system, including a sewer line leading to the disposal plant at the southwest comer of the district. The cost of this sewer line, which is sometimes referred to in the evidence as a submain, was assessed to and born by the property within the original West-link Benefit District created at that time. None of the property represented in the present action was ever a part of or included within the original benefit district.
At a subsequent date Westlink 5th Addition came into being, and the several properties involved in this lawsuit were temporarily connected to and served by the sewer line, or submain, constructed and paid for as part of the original Westlink Sewer System. However, this happy situation could hardly be expected to continue indefinitely, and it came to end in 1968 with the construction of Westlink Submain 2 and the creation of a second benefit sewer district to pay for its construction.
After Submain 2 was completed, the flow of sewage from properties in the newly created Westlink Benefit District 2 was diverted or transferred from the old submain to the new one. The result is that now Souza and his neighbors are no longer served by the old sewer line originally constructed and paid for by others, but by the new line, Submain 2, which empties into an interceptor or trunk-line sewer which leads directly to the treatment plant.
In challenging the creation of the new benefit district, and the validity of the assessments levied against it, the plaintiffs’ con tentions center largely around terminology. They object specifically to the use of the term “submain,” arguing that the word is not found in the legislation relating to sewers and they reason, accordingly, that no statutory authority exists for charging a benefit district with the cost of building such a hybrid creature as a submain.
■ The statute involved in the semantic dispute is K. S. A. 13-1013, which in general governs the construction of municipal sewerage and drainage systems, provides for the creation of districts to construct the same and authorizes the levy of special assessments against property within said districts to pay the costs of construction. The statute is somewhat long and will not be quoted verbatim. It is sufficient for our purposes to say it classifies sewers and sewer districts into three categories, interceptor, main and lateral, and authorizes cities of the first class to create sewer districts to build ■and construct sewers of each classification and to assess the cost thereof against lands within the respective districts. A limiting ■provision prohibits the transfer of any property which has already ■paid its full proportion for either a main or lateral sewer to another main or lateral sewer district by which it would become liable for the construction of another main or lateral sewer.
In presenting their case, the plaintiffs point out that a submain is not one of the three types of sewer mentioned in the statute; that a submain is not a main, as such (and never the twain shall meet); and thus a submain falls beyond reach of the statute. In short, plaintiffs insist that the construction of a submain sewer and the assessment of its cost to property within a sewer district can not be said to come within the scope of K. S. A. 13-1013.
We believe that plaintiffs’ argument lacks substance. In our opinion it was answered effectively by the trial court in its second conclusion of law:
“Where a municipality has mislabeled a main sewer line as a ‘submain, the function and use will determine the legal classification of such sewer, and in this set of facts, the Court concludes that Submain 2, Westlink Sewer, is a main sewer and is the proper subject for special assessment under K. S. A. 13-1013.”
Judging from tire record, we believe it evident that members of the civil engineering profession who practice in the area of municipal water and sewage control employ a variety of terms, when speaking of sewers, which are not found in K. S. A. 13-1013. The divergency between the scientific jargon of the engineer and the somewhat broader and less technical terminology used by the legislator in drafting legislation should not blind us, however, to the legislative purpose behind K. S. A. 13-1013. That purpose, as we conceive it to be, is to provide for the construction of, and payment for, every type of sewer main required for a complete and comprehensive sewerage and drainage system.
While it might have been less confusing, so far as this case is concerned, for the legislature to have been more specific in its use of technical engineering phraseology in drafting the statute or, on the other hand, for the city to have followed more closely the statutory language in drafting its ordinances, we experience no difficulty in saying that Westlink Submain 2 comes within the purview of 13-1013. As the record clearly reveals, the function of Submain 2 is to serve as a conduit for the effluent from several laterals to a large interceptor sewer, the laterals being, in this connection, small sewer lines to which the house connections are attached.
The instant case does not represent the first occasion on which Wichita’s sewer problems have surfaced before this court. In Lacey v. City of Wichita, 180 Kan. 323, 304 P. 2d 558, certain property owners and taxpayers living within a benefit district created to pay for constructing a sewer known as Dry Creek Sub-Main No. 2, filed suit to enjoin the city clerk from certifying a special assessment for the cost of building the same. In their petition the plaintiffs alleged their properties were connected with Sub-Main No. 1, and that they had paid assessments for its construction (although the latter allegation proved to be false). In holding that the plaintiffs had not proved a cause of action, this court stated that before they would be entitled to relief they must show either (1) that they had participated in paying for Sub-Main 1 or (2) that Sub-Main 2 would be of no benefit to them. Since the evidence failed to establish either one of those two alternatives, said the court, the plaintiffs had not proved their right to injunctive relief.
It is quite true that Lacey does not go into the intricacies of engineering terminology differentiating between mains and sub-mains, for that issue was not raised. Nonetheless, the case establishes guidelines for the recovery of relief in this type of an action. The proof required, as expressed in those guidelines, has not been met in this case. The record affirmatively shows, by Souza’s own admission, that although he had previously been assessed for laterals, lie had not been assessed for — nor had he paid for — additional sewers of any kind, with the sole exception of Submain 2. The city engineer also testified that Souza and other property owners in Westlink Benefit District 2 had been assessed previously for laterals but not for submains, although they had temporarily used a submain for which they had not been assessed. The trial court’s finding that Souza and his fellow taxpayers had not previously paid special assessments for a main — or submain— was fully supported by the evidence.
Respecting benefits, although this topic was not strongly stressed either before the trial court or here, there was evidence that the original Westlink Sewer System was not designed to handle the area now served by Westlink Submain 2; that use of the old or original submain by persons living in what is now the Submain 2 area was permitted on a temporary basis only; that the old sub-main will become overloaded in the future; that “health and sanitation problems require a design containing a large safety factor due to the fact sewers will last 80 years or more”; that Submain 2 will drain a couple of square miles or more; and that the interceptor sewer into which it drains will have future sub-mains connecting with it. This evidence sufficiently supports the trial court’s general finding in favor of the city. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, §§417, 418.)
An additional point need be clarified, even though it was not greatly emphasized in the appeal. The plaintiffs have asserted, particularly before the trial court, that as a matter of municipal policy, the cost of constructing sewer mains, such as Submain 2, had always been assessed against and paid by the city of Wichita itself. Thus they argue that the assessment against their properties rather than against property in Wichita at large, constitutes unlawful discrimination. Counsel for the city conceded during the trial that if Westlink Submain 2 were to be classified as a main line, then it would be paid for by the city at large rather than by assessments levied against property in the benefit district. However counsel explained that in maldng the concession, which was done by stipulation, he did not intend to admit the city lacked authority to levy two assessments — one for laterals and one for mains.
There was a good bit of jockeying between counsel over the meaning of words and descriptive terms, and we would only add to the general confusion by delving deeply into their confrontations. 'Out of the welter of words we believe it may safely be said the following picture emerges: It has been the policy in Wichita that ¡the city at large will bear the cost of constructing the big trunk line or interceptor mains, which gather sewage from large areas in the city and carry it to disposal plants. However, it is also ■city policy to assess against property within benefit districts the ■cost of constructing lesser lines, be they denominated laterals, mains, submains, branches or otherwise, and that the same property may be assessed for the construction of both laterals and submains.
Construing concessions and assertions on the part of counsel in -conjunction with the evidence of record, we are convinced that no pattern of discrimination or arbitrary action has been shown. The plaintiffs are being charged with their proportionate share of the •construction costs of two types of sewer, i. e., the laterals which empty into a larger gathering main or submain, and the main or •submain itself, which in turn leads to and deposits its load in a large interceptor or trunk main which takes the sewage to the -disposal plant. The cost of building the sewers which fall within the first two categories has been properly assessed against the property of Souza and his fellow property owners, while the expense of constructing the interceptor sewer into which Submain 2 •empties, comes within the classification for which the city of 'Wichita pays.
We perceive nothing irregular or pernicious in such a division •of costs between a city and its citizens. In our judgment the plan -does not contravene either the letter or the spirit of K. S. A. 13-1013.
No error has been made to appear and the judgment of the ■court below is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action wherein the defendant was charged with the first degree murder of his wife pursuant to K. S. A. 21-401. He was convicted by a jury of second degree murder pursuant to K. S. A. 21-402 and was sentenced in accordance with K. S. A. 21-403 and K. S. A. 76-2306 to the Kansas State Industrial Reformatory for a term of twenty years. Appeal has been duly perfected.
The appellant contends the trial court erred in three particulars: (1) In allowing the appellant’s confession to police officers to go to the jury; (2) in failing to give an instruction on insanity; and (3) in permitting certain rebuttal testimony to go to the jury.
The facts disclosed from the evidence are that in the early morning hours of December 1, 1968, Roy Harden (defendant-appellant) called the Wichita police officers to his residence at 3544 Munger Lane in Wichita, Kansas. Officer Hampton was the first to arrive and as he approached the appellant, who was standing at the north front door of the duplex, he asked, “Roy, did you call the police?” The appellant replied, “I shot my wife.”
Officer Hampton placed the appellant in a police vehicle and then went into the house to ascertain the condition of Katie J. Harden, the appellant’s wife. Katie was found lying face up in the back yard approximately six feet from the back porch. She had a gunshot wound to her left eye bordering near the bridge of the nose directly between the eyes. The projectile entered her brain.
Shortly thereafter the appellant was taken by police officers to the Wichita police department. At approximately 1:25 a. m. on December 1, 1968, Detectives Gerald Skelton and Karl Triplett interviewed the appellant at the police department. The interview was commenced by advising the appellant of his' constitutional rights in accordance with Miranda. The appellant acknowledged that he understood his rights and would speak to the detectives. He thereupon related to the detectives his activities from Thanksgiving Day, 1968, up to and including the time of the shooting of his wife. His recollection of such activities was specific and clear.
On the evening of November 30, 1968, Floyd Meade and his wife, Lois, came to the home of the appellant at about 8:00. Floyd Meade was a staff sergeant at the McConnell Air Force Base employed with the appellant who also worked at the air base. They were friends and spent the evening visiting and drinking from a half gallon bottle of Jim Beam liquor until approximately 11:30 p. m., at which time the Meades left and went to their home. The Meades testified on direct examination for the defense at the trial that the appellant was drunk when they left his home on the night of November 30, and was in a condition incapable of reporting for work or driving a car. On cross-examination, however, they admitted having made a statement to the police officers which was tape-recorded on December 1,1968. Lois Meade in the the tape-recorded statement said, “He didn’t seem drunk to me. . . . No, he wasn’t staggering. He wasn’t slurring words or anything that would show drunkenness.” Sgt. Meade in the tape-recorded statement said, “I wouldn’t say he appeared drunk, no.” These tape recordings were introduced in evidence and heard by the jury.
The appellant in his statement at 1:25 a. m. on December 1, 1968, informed the detectives that after the Meades had left at approximately 11:30 p. m. on November 30, 1968, he started to argue with his wife, the decedent, as to her treatment of his friends; that he then went to the night stand in the bedroom and removed a loaded revolver and went back in the kitchen where his wife was standing, and while holding the gun beside his leg he cocked it by pulling back the hammer. When asked why he did this, he replied that in the past when his wife started getting upset the sight of the gun would calm her down.
The appellant further informed the detectives that his wife went running out the back door and he gave pursuit. When he caught up with her the argument resumed. The appellant stated he started waving the pistol and while he was waving it the pistol discharged. He said he saw blood on her face and he ran into the house and called the police. He then sat in a chair and waited until the officers arrived.
Testimony from a ballistics expert of the Wichita police department indicated the absence of nitrates on the person of the decedent. In his opinion, based on this fact, the shot when fired at the decedent was fired from a distance exceeding three feet.
The police detectives took another statement from the appellant at 11:50 a. m. December 1, which confirmed almost word for word the appellants previous statement. Twice, however, the appellant refused to permit his statement to be tape-recorded. But according to the officers the appellant at no time requested an attorney.
The appellants evidence centered on the testimony of a psychiatrist, Dr. C. J. Kurth. In Dr. Kurth’s opinion, because of the enormous consumption of alcoholic beverage by the appellant and its effect on his mental condition, the appellant could not formulate the necessary criminal intent at the time of the shooting of his wife.
The appellant testified at the trial and his testimony virtually confirmed most of the statements he had previously made to the detectives at 1:25 a. m. on December 1,1968, and later at 11:50 a. m. the same day. By his testimony and that of his friends, the Meades, the appellant sought to establish that he had consumed an enormous amount of alcoholic liquor on the night of November 30, 1968, and that he was not aware of his surroundings.
Was the appellant’s statement given to the police detectives in the early morning hours of December 1, 1968, properly admitted in evidence?
Counsel for the appellant contends the appellant could not have consumed liquor all evening, shot his wife, coupled with the existing mental condition, and then knowingly, voluntarily and intelligently waive his constitutional rights and confess.
It is argued the appellant’s testimony at the trial discloses that he can only remember certain things during his purported interrogation.
Relying upon the testimony of Dr. Kurth it is argued:
“Only a competent and qualified Doctor of Psychiatry can look into the mind of the appellant, only then after a battery of tests and examinations and be able to say if the appellant was or was not able to intelligently, knowingly and voluntarily waive his constitutional rights and the Doctor’s statement was that the appellant could not knowingly, intelligently and voluntarily waive his constitutional rights.”
It is further argued on behalf of the appellant:
“There is more to consider in this case than the alcoholic intake of the appellant. We must bear in mind, ‘the guilt’ complex and ‘shock’ that was weight upon the appellant’s mind of having just shot his wife and seeing the result of the projectile from his weapon.”
Whether a confession was freely or voluntarily given is based upon a consideration of the totality of the circumstances, and where there is a genuine conflict in the evidence great reliance must be placed upon the finder of fact. (Andrews v. Hand, 190 Kan. 109, 117, 372 P. 2d 559, cert. denied 371 U. S. 880, 9 L. Ed. 2d 117, 83 S. Ct. 152, and cases cited therein.)
The trial court in the instant case in hearing a motion to suppress the confession of the appellant followed the procedure required by the law of this state in determining the admissibility of a confession, which in all respects conformed to the requirements of Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205. (State v. Milow, 199 Kan. 576, 433 P. 2d 538.) The trial court found “the defendant was fully advised of his constitutional rights by the officers. That the defendant at the time of making each of his statements had the full capacity and that his judgment was not impaired. The court will further find that the defendant was under no coercion, duress or compulsion at the time the statements were made.” It considered the totality of the circumstances surrounding the statements made by the appellant, and found the appellant’s statements to have been “freely, knowingly, intelligently and voluntarily given” and admissible in evidence. The motion to suppress was overruled.
At such hearing in the absence of the jury all of the evidence presented by the state and by the defense was heard. Needless to say, the evidence was conflicting as to the degree of the appellant’s intoxication.
The police detectives called on behalf of the state, who took the appellant’s statement at 1:25 a. m. on December 1, 1968, acknowledged that it appeared the appellant had been drinking because they could smell the odor of alcohol, but they could not detect that the drinking had in any way interfered with his response to questions or his understanding of the questions they were propounding. They testified his answers were veiy precise and he appeared to be normal.
The officers testified they re-interviewed the appellant at 11:50 on the morning of December 1, 1968, and the statement he made at that time coincided with the statement the appellant had made earlier that morning; that the appellant at all times appeared to be rational and did not appear to be under the influence of intoxicating beverages.
Dr. Kurth formulated his opinion six months after the shooting occurred by examining the appellant on three separate occasions, approximately one-half hour on the first, forty-five minutes on the second, and one hour on the last occasion. The opinion given by Dr. Kurth was premised upon the following suppositions: (1) That the appellant had consumed a considerable amount of alcoholic liquor (a disputed fact); and (2) that the appellant could not specifically remember the events leading up to the shooting of his wife.
In none of the three interviews Dr. Kurth had with the appellant did he examine the appellant under circumstances in which the appellant was inebriated as alleged on the night in question. Dr. Kurth, although not a toxicologist, testified that a person consuming alcoholic beverages would reflect the highest alcoholic content within his body three to five hours after the last intake.
The evidence disclosed at 3:01 a. m. on December 1, 1968, approximately one hour and forty minutes after the beginning of the officers’ interrogation, a breathalyzer test was administered to the appellant which disclosed a blood alcohol content of 0.16 percent by weight. (See K. S. A. 1969 Supp. 8-1005 [£].) Dr. Kurth on cross-examination admitted it was quite possible that at 3:01 on the morning in question the appellant’s alcoholic content in his blood was at its peak, and that it could have been lower at 1:25 a. m. and prior to that time when the shooting occurred.
This court has recognized medical science is not an exact science, and that it 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 formulation of expert opinion on the mysterious functioning of the human body. (Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205.) This recognition has led courts to adopt a rule which permits consideration of lay testimony, together with the testimony of expert medical witnesses, to resolve issues in workmen s compensation cases relating to the injury of workmen and the causal relation of such injury to the employment. (Hanna v. Edward Gray Corporation, supra.)
The rule has also been applied when the mental capacity of a testator to make a will is under attack. In the case of In re Estate of Millar, 185 Kan. 510, 345 P. 2d 1033, the heirs attacked the validity of a will on the ground that the testatrix was mentally incompetent to make the will. There it was held on the issue of the testatrix’ mental capacity to make the will that nonexpert testimony was competent on the question, and the trier of the facts was not bound to adopt the views and opinions of a physician qualified as an expert in psychiatry and neurology to the exclusion of nonexpert testimony.
The same rule was followed in the case of In re Estate of Roberts, 192 Kan. 91, 386 P. 2d 301, where on the issue of the testator’s mental capacity to make a will nonexpert testimony was held competent, and the trier of the facts was not bound to adopt the opinions of three medical experts to the exclusion of nonexpert testimony.
(For other cases bearing on the subject see State v. Coltharp, 199 Kan. 598, 433 P. 2d 418; and State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44.)
The same rule applies to the evidence heard by the trial court in the instant case. The trial court was not bound to adopt the opinion testimony of Dr. Kurth to the exclusion of the testimony given by the police detectives concerning the mental condition of the appellant and his degree of intoxication when advised of his constitutional rights and interrogated in the early morning hours of December 1,1968.
Clearly, the evidence offered by the state and the appellant on the admissibility of the appellant’s statements was conflicting, but the trial court resolved this conflict against the appellant, as it was privileged to do. (State v. Pittman, 199 Kan. 591, 433 P. 2d 550.) In giving consideration to the totality of the circumstances the trial court was within its prerogative in finding the confession of the appellant to have been freely and voluntarily given and admissible in evidence.
A similar situation was presented in State v. Hansen, 199 Kan. 17, 427 P. 2d 627, where the appellant had been taking insulin for a diabetes condition and was arrested for an offense. After being advised of his rights he confessed to the officers. It was there contended by the appellant that for lack of insulin he was mentally affected when he gave his confession. On conflicting evidence the trial court found Hansen’s statement to have been freely and voluntarily given. Since the finding was supported by substantial evidence, it was not disturbed on appeal.
In State v. Kimmel, 202 Kan. 303, 448 P. 2d 19, the appellant challenged the admission of a confession made shortly after his arrest on the ground it fell short of the Miranda requirements. The appellant there claimed intoxication at the time he executed a written waiver of his constitutional rights and made his statement. The evidence at the hearing to determine the admissibility of the confession was conflicting as to whether Kimmel was inebriated. The trial court found the confession admissible and submitted to the jury an instruction allowing it to determine what weight, if any, should be given to the confession. No objection was made to the instruction of the court in this regard. In the opinion the court said:
“Here the trial court, after hearing all of the testimony, concluded that the waiver and statement should be submitted to the jury with proper instructions. The conclusion was supported by competent evidence and will not be disturbed on appeal. The applicable rule is found in State v. Jenkins, supra [197 Kan. 651, 421 P. 2d 33], where it is held:
‘Where the trial court conducts a hearing in the absence of the jury to determine the admissibility of defendant’s written statement, the determination that the statement was voluntarily made, is entitled to the weight commonly accorded findings of trial courts and if supported by competent evidence will not be disturbed on appeal.’ (Syl. f 1.)” (pp. 307, 308.)
In the instant case a similar instruction, without objection, was given by the trial court, thereby submitting to the jury for determination what weight, if any, the statements of the appellant were to be given.
The appellant next contends the trial court erred in failing to give an instruction on insanity to the jury.
It must be conceded the parties in a criminal case are entitled to instructions on their respective theories, if supported by competent evidence and if germane to the issues. The instructions, however, must be confined to the evidence, regardless of the theories proposed. In State v. McDermott, 202 Kan. 399, 449 P. 2d 545, cert. denied 396 U. S. 912, 24 L. Ed. 2d 187, 90 S. Ct. 226, this court stated:
“The instructions in a criminal case are to be confined to the issues in the case as determined by the charge in the information and the evidence adduced at the trial. . . .” (p. 401.)
If there was evidence presented by the appellant in the case at bar that placed in issue the sanity of the appellant at the time of the commission of the offense charged, then an instruction on insanity was warranted.
At the trial in this case Dr. Kurth testified on redirect examination:
“Q. Would you feel Doctor, in your opinion, was the Defendant sane at 12:00 o’clock on the night of December 1st?
“A. No, sir.
“Q. Was he rational about or knew his position, location, whereabouts, at that time?
“A. He could have been.”
Dr. Kurth had previously testified at some length on both direct and cross-examination concerning his examination and the effect of alcohol upon the appellant. He concluded that in his opinion the appellant was not able to form an intent by virtue of loss of emotional, rational control due to alcoholism.
Prior to making the statement heretofore quoted on redirect examination, Dr. Kurth on cross-examination testified:
“Q. All right, sir. Now, Doctor, you spoke that under the influence of intoxicating beverage, the Defendant would not know or could not formulate intent. Now, Doctor, what degree of under the influence are we speaking about?
“A. Well, we grade these as Grade 1, 2, 3, and 4, 4 being the depth at which you can perform surgery, so he would not have been under the 4th degree. The 1st degree of intoxication, I understand it as loss of some judgment and control. The 2nd would be increasing loss of judgment and control with beginning loss of some muscle coordination. And the 3rd possibly would increase from there, so I am required to put it in what degree. I would say somewhere between 2nd and 3rd. He had lost sufficient emotional control that rational control would have gotten himself in the circumstances that led up to the act.
“Q. In other words, Doctor, it would be fair, if I may break it down, that you are speaking of maybe between a .20 and .30?
“A. That is possible, yes.
“Q. Now, you would assume then, Doctor, under the opinion you gave, sir, that he would have had to have been between .20 and .30; is that correct?
“A. That is an assumption I would have no way of knowing for sure.
“Q. All right. Now, if the reading were less than that, Doctor, then it would seem to me it would affect your opinion somewhat. Let’s put it this way. If the reading were less than .20, in the neighborhood of .16, this would certainly affect your opinion as to what you state?
“A. It would aifect his degree of intoxication which would mean he would have more emotional control than at .20.”
The test of criminal responsibility in this state and in the majority of states is what is commonly referred to as the M’Naghten rule. An accurate statement of the law of this state on the point was quoted in the form of an instruction in State v. Andrews, 187 Kan. 458, 357 P. 2d 739, at page 465 of the official report. (Further discussion will proceed on the assumption the reader has familiarized himself with the M’Naghten rule.)
An examination of the appellant’s evidence adduced at the trial in the instant case reveals he was not entitled to an instruction on insanity. By his evidence the appellant attempted to show that he had consumed considerable alcoholic liquor throughout the evening of the fatal shooting of his wife. The testimony of Dr. Kurth was to the effect that the appellant could not have formed an intent by virtue of loss of rational control due to alcoholism. Dr. Kurth gave no indication as to his definition of insanity when the term “sane” was used in a leading question put to him. At no point in his testimony did Dr. Kurth state the appellant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was committing, or if he did know what he was doing that he did not know it was wrong.
Our decisions have previously shown that the temporary loss of one’s physical and mental faculties due to voluntary intoxication is not equivalent to an excuse for criminal responsibility when tested by the M’Naghten rule. (See State v. Andrews, supra; and State v. Coltharp, supra.)
A case in point is State v. Rumble, 81 Kan. 16, 105 Pac. 1 (1909). There the defendant Rumble was convicted of murder in the second degree after admitting that he shot and killed the decedent. He defended on the theory of insanity, but the state maintained he was merely intoxicated. On appeal this court reversed for failure of the trial court to give instructions on degrees of manslaughter. However, in its opinion the court discussed the relationship of voluntary drunkenness to the test of insanity as follows:
“. . . It necessarily follows that drunkenness so extreme as to prevent the forming of a purpose to kill might under our statute reduce what would have been murder at the common law to manslaughter, and in a proper case instructions to that effect should be given. (See cases cited in subdivision 5 of note in 36 L. R. A. 470, under subhead ‘Intent,’ and 12 Cyc. 172.) It is to be borne in mind, however, that ‘the fact of intoxication, no matter how complete and overpowering, is not conclusive evidence of the absence of an intent to take life’ (The State v. White, 14 Kan. 538, syllabus), and, as said in Zibold v. Reneer, 73 Kan. 312, ‘for a person to be too drunk to entertain an intent to kill it would seem that he would have to be too drunk to entertain an intent to shoot.’ (Page 320.)
“The court also gave this instruction:
“ ‘If the defendant shot said Frank J. Emery, as charged in the information, and at the time of said shooting he was intoxicated, the mere fact that he may have been intoxicated at said time furnishes no excuse for the killing of said Frank J. Emery, unless his intoxication was of such a degree that he was incapable of knowing the nature and quality of the act of shooting said Emery, or of distinguishing between right and wrong.’
“This was too favorable to the defendant.
“ It can make no difference, where no specific intent is necessary, that the defendant was so drunk as to have no capacity to distinguish between right and wrong.’ (12 Cyc. 172.)
“Mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the criminal offense, is no excuse therefor, or defense to a prosecution therefor. . . . The test of insanity as affecting criminal responsibility, that the accused must have labored under such a defect of reason as not to know the nature or quality of the act, or, if he did know it, that he did not know he was doing wrong, does not apply to drunkenness.’ (36 L. R. A. 466, note.)
“ 'Temporary insanity immediately produced by intoxication does not destroy responsibility for crime where the accused, when sane and responsible, voluntarily made himself drunk. To constitute insanity caused by intoxication a defense to an indictment for murder it must be a settled insanity, and not a mere temporary mental condition.’ (17 A. & E. Encycl. of L. 405.)” (pp. 21-23.)
The law as set forth in State v. Rumble, supra, above, was reaffirmed in State v. Moffitt, 199 Kan. 514, 431 P. 2d 879.
Voluntary intoxication was also discussed in State v. Guthridge, 88 Kan. 846, 129 Pac. 1143.
Here the appellant’s evidence did not overcome the presumption of sanity. In a criminal case the state may rest upon the presumption of sanity in establishing a prima facie case. It is then incumbent upon the defendant to overcome that presumption by competent evidence and to reasonably substantiate his plea of insanity. Such evidence must reasonably tend to show that at the time of the commission of the crime the defendant was incapable of distinguishing right from wrong to excuse him from the legal consequences of his acts. (State v. Penry, 189 Kan. 243, 368 P. 2d 60.)
The record here does not disclose the appellant entered a plea of not guilty by reason of insanity.
It is apparent from the language in the Rumble and Guthridge cases that the voluntary intoxication of the appellant could have been considered by the jury in weighing his criminal intent, and such voluntary intoxication could have been considered in ascertaining the degree of the offense committed by the appellant. On this point the trial court properly instructed the jury with regard to intoxication by its instruction No. 18, and no objection was made to this instruction.
In addition to the instruction on voluntary intoxication the trial court instructed the jury on second degree murder and manslaughter in the first, third and fourth degrees. No objection was made to these instructions.
We conclude that the trial court did not err in its refusal to instruct the jury on the issue of the appellant’s insanity. There was no evidence to support such instruction.
The appellant next complains the trial court erred in allowing certain rebuttal testimony to go to the jury.
The state called as a rebuttal witness Jeanne Hackenburg to rebut the testimony of the appellant as to his drinking and “blackouts” after drinking. On redirect examination of this witness, over the appellant’s objection, Jeanne Hackenburg was permitted to testify she had been dating the appellant and the appellant had been staying with her.
It is contended this was not proper rebuttal because it tended to show the jury the appellant was void of any love or affection for his wife, and that it should have been presented by the state as direct evidence. It is further argued this very clearly prejudiced the minds of the juriors because the appellant was of the negro race and this witness was of the white or Caucasian race, which was apparent to the jurors in the trial of the case.
We fail to see merit in the argument advanced by the appellant concerning the rebuttal testimony of Jeanne Hackenburg. On direct examination she testified concerning her frequent dates with the appellant at the NCO Club on Saturday nights and at other places, indicating that he drank “Scotch on the rocks,” and that he did not appear to change too much when he had been drinking. She further testified that when he was with her he would not lose control of his emotions when he drank.
On cross-examination, however, she took a different position with respect to the manner in which drinking affected the appellant, inconsistent with statements she had previously made to police detectives.
On redirect examination the state questioned her relative to the black-out periods of the appellant concerning which she testified on cross-examination. She was then asked whether she had spoken to the appellant, and after some questioning admitted that she spoke to him the previous night.
The record discloses the appellant was at liberty on a $2,000 bond pending trial.
The state thereupon pursued Jeanne Hackenburg’s interest in the appellant by questions which produced the answers of which the appellant complains.
The inconsistent position of the appellant justified the state in showing to the jury the interest and bias of the witness on behalf of the appellant. The testimony elicited was relevant to show the interest and bias of Jeanne Hackenburg and her opportunity to discuss the case with the appellant. It was also proper to show the close relationship between the witness and the appellant by their living together for a period of time, including the time during the trial. The propriety of the state in examining this rebuttal witness for the purpose of impairing her credibility is supported by K. S. A. 60-420, which reads:
“Subject to sections 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.”
(See, also, State v. Jones, 202 Kan. 31, 446 P. 2d 851.)
The examination of the rebuttal witness tended to explain her reversal or change of testimony. Under the circumstances the appellant has no standing to complain of the trial court’s admission of Jeanne Hackenburg’s testimony.
Finding no reversible error, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of burglary in the second degree and grand larceny.
The Hurst Firestone Store of Columbus, Kansas, was burglarized early the morning of May 20, 1969. An assortment of hand guns and rifles totaling sixteen in number were stolen from the store. An assortment of fishing lures, which had been on display cards, were also missing. The store was in general disarray. Display tables had been knocked over and racks containing fishing lures were knocked to the floor.
A police officer was on routine patrol at about 1:00 o’clock the morning of the burglary. He was driving without his car fights when he observed two people in a parking lot across the street from the Hurst Firestone Store. When the officer turned on his car fights the two people started to run. One ran in an easterly direction. The other, after dropping an arm load of firearms, ran to the south. He was pursued on foot by the officer, overtaken, subdued after some struggle and placed under arrest.
After making the arrest the officer was unable to find his hand cuffs. He radioed for help and soon two other police officers and the sheriff arrived on the scene. The firearms and fishing lures were found in the vicinity where the chase began. At least three fishing limes were sticking in the pants of the defendant at the time of his capture.
The defendant was tried to a jury and convicted of second degree burglary and grand larceny. He has appealed claiming numerous trial errors.
The appellant first contends that the trial court erred in admitting into evidence an admission of guilt without first determining its voluntariness.
The appellant relies on cases cited in Baker v. State, 204 Kan. 607, 464 P. 2d 212, where we stated at page 616 of the opinion:
“. . . Thus, foundation proof testing the admissibility of a confession must be heard outside the presence and hearing of the jury, even though no request for such hearing is made, unless, of course, there has been a knowing and intelligent waiver of that right by the accused — 'an intentional relinquishment or abandonment of a known right or privilege.’ (See, Fay v. Noia, [372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822] supra, and Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357.) . . .”
We do not believe that the rule is controlling here. The sheriff, Dayton Evans, after describing the condition of the Hurst Firestone Store and identifying the stolen firearms, was questioned as follows:
“Mr. Duncan: Sheriff, did William Glen Denny make any admission of guilt to the burglary and larceny to you?
“Yes, sir.
“CROSS-EXAMINATION OF [Sheriff] DAYTON EVANS
“Questions by Mr. Armstrong [Defendant’s attorney]:
“Q. What was that?
“A. He told me he broke into Firestone.
“Q. Sheriff, did you advise Mr. Denny of his constitutional rights?
“A. I never questioned him any.
“Q. You never did?
“A. No, sir.”
Implicit in the testimony, particularly that elicited by appellant’s attorney, is the conclusion that the statement was volunteered by the appellant, and it was part of the trial strategy of appellant’s counsel not to stress further the established positive fact that the appellant volunteered the information. We have not as yet gone so far as to require an arresting officer to gag a suspect to prevent a possible voluntary spontaneous expression of guilt. The fact that the statement was given without solicitation on the part of the sheriff was established by appellant’s cross-examination before the trial court had an opportunity to take the initiative.
Appellant next complains that he did not have effective assistance of counsel. Appellant was represented by a member of the bar with twenty-six years of practical experience. He had been county attorney or deputy county attorney for a period of fourteen years.
Appellant complains of counsel’s failure to object to leading questions. Every lawyer is entitled to his own method of trial strategy. The number of objections which a defending attorney should lodge without the risk of offending the jury is always debatable.
We have announced the rule that adequacy of services rendered by an attorney to his client is to be measured by the sum total of his representation. Effective assistance of counsel is not to be equated with successful assistance of counsel. It must also be remembered that “hindsight is better than foresight.” After the trial of a case is completed another lawyer can always pick flaws in the trial lawyer’s strategy. The factors to be used as a guide in determining effective assistance of counsel are discussed in our recent cases. (See, State v. Cushinberry, 204 Kan. 65, 460 P. 2d 626; State v. Wright, 203 Kan. 54, 453 P. 2d 1; Smith v. State, 199 Kan. 293, 429 P. 2d 103; Craig v. State, 198 Kan. 39, 422 P. 2d 955; State v. Calhoun, 194 Kan. 378, 399 P. 2d 886.)
We find no grounds for complaint because of ineffective assistance of counsel.
The appellant contends that the verdict was not sustained by sufficient evidence, as the only evidence of guilt is the testimony of the sheriff who stated that the appellant admitted the commission of the crime. We must suggest that the circumstantial evidence of appellant’s guilt was quite impressive. We need not repeat the facts already stated or add thereto.
This court does not consider whether the evidence is incompatible with any hypothesis except guilt. That is a question for the finder of fact. Our function is limited to ascertaining whether or not there was, from the evidence, a basis for reasonable inference of guilt. (State v. Wood, 197 Kan. 241, 416 P. 2d 729; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.)
If the conviction is supported by the evidence, the verdict is not to be set aside because the jury failed to believe the defendants version of the facts. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287.)
We have reviewed appellant’s long list of alleged trial errors but find nothing that would indicate the appellant’s rights were prejudicially affected.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
The defendant, Arthur L. Hamrick, appeals from a conviction by a jury of burglary in the second degree (K. S. A. 21-520 [now K.S.A. 1970 Supp. 21-3715]). Defendant presents two principal contentions: (1) He was required to stand trial when he was in such mental condition that he was not capable of comprehending his position or assist in his defense and (2) the trial court erred in failing to instruct the jury concerning the defense of entrapment.
On the evening of December 25, 1967, defendant had a conversation with James E. Dickerman and Gerald Coffman in a Salina tavern. As a result, a plan was formulated whereby the three would burglarize a service station. A sledge hammer and other burglary tools, were procured and placed in Dickerman’s automobile. Dickerman left Coffman and defendant at the tavern and proceeded to the. Salina Police Station where he advised Captain John Woody, a detective, that he'tiiought they were going to rob a Hi-Quality Lo-Cost Sérvice Station in Ellsworth County. The only Hi-Quality Lo-Cost Service Station that Woody knew of was located in southern Sáliné County.
Following his conversation with Dickerman, Captain Woody informed the sheriff and other law enforcement officers that he had been informed a robbery would take place at the service station in southern Saline County. Captain Woody, the sheriff and other officers proceeded to a bridge that overlooked the service station where they kept the station under surveillance. About 12 p. m. Dickerman stopped on the highway near the service station. Defendant and Coffman got out of the Dickerman automobile and walked toward the station. Dickerman then drove his automobile south down the highway approximately four or five miles. The sheriff observed defendant and Coffman pry open and enter the front door of the station. At that point, the officers converged on the service station, defendant fled but after a warning shot was fired he stopped and was apprehended.
Defendant was charged and, following a preliminary hearing, an information was filed in the district court on February 8, 1968. On defendant’s motion, filed on March 8, 1968, the trial court appointed a sanity commission, comprised of three physicians — a psychiatrist; a general practitioner, and a surgeon. The commission examined defendant and reported on March 11, 1968, that it had investigated, inquired into and determined the mental condition of defendant. The commission concluded: “That the defendant, Arthur L. Ham-rick is Able to comprehend his position and to make his defense in this case.”
Thereafter, on March 14, 1968, defendant’s counsel filed a petition requesting a reexamination of defendant’s mental condition. Counsel alleged that defendant on the preceding day, March 13, made an attempt on his own life by projecting a sharp instrument into his abdomen and that defendant had stated numerous times to counsel that he intended to take his own life. Defendant’s counsel asked the court to have the previously appointed commission reexamine the present mental condition of defendant and determine whether defendant was able to comprehend his position.
On the following day, March 15, a hearing was had before the trial court on counsel’s petition for a reexamination. Defendant was present with his counsel. The jailer was called as a witness and testified that on the afternoon of March 13 he found defendant “sitting on a toilet stool” in the cell “and he had a blood spot on the front of his T-shirt.” The jailer called the sheriff and defendant was taken to the hospital where he was treated by Dr. Donald L. Goering, who was a member of the examining commission. Defendant was returned to jail and during the afternoon of March 14 the jailer again found defendant “sitting on the toilet stool” in his cell with a portion of the handle of a spoon sticking out of the wound, which had been inflicted the previous day. The jailer immediately called the undersheriff and defendant was taken to the hospital where he was again treated by Dr. Goering.
In the course of the hearing on defendant’s motion for a reexamination, Dr. Goering was called as a witness and examined at length by the county attorney, defendant’s counsel, and the trial judge. Dr. Goering testified that as a member of the court-appointed commission he participated in the examination of defendant on March 11, 1968, and at that time all of the members of the commission decided that defendant was capable of assisting and preparing his defense. Dr. Goering further testified that it was possible that defendant’s situation could have changed after March 11, although he was not prepared to state that definitely.
On cross-examination by the county attorney Dr. Goering testified as follows:
“Q. Has anything happened since your examination of March 11 that would change your mind as to the finding of the commission that this man is able to comprehend his position and aid his counsel?
“A. Nothing as far as I am aware of. I’m not prepared, however, to make a definite statement on this since we have not really examined him in this light.”
Following the examination of Dr. Goering by counsel he was examined at length by the court. In response to a question by the court Dr. Goering testified as follows:
“We are aware of the fact that Mr. Hamrick has some tendancies toward physical violence toward himself and possibly toward others. As a commission we were aware of this. However, I have not witnessed any confusion in Mr. Hamrick’s thinking, although I have been told that he has been so tense that he is unable to assist his attorney during the past three days. I really can’t answer that because I haven’t examined him for this particular problem since March 11. I do not personally feel that the fact that he has attempted violence to himself means that he is now not capable of standing trial. This incident in itself does not mean this to me. I know that he is more tense because of other things that have happened since the commission met and undoubtedly more depressed.”
On further recross-examination by the county attorney Dr. Goering testified as follows:
“Q. Another question, Doctor: Is Mr. Hamrick well-orientated to time and space?
“A. To my knowledge, he is and was on the 11th.”
At the conclusion of the hearing on the motion for reexamination, tire court noted, that in addition to the testimony of Dr. Goering and other witnesses, it had observed the conduct of defendant and his conversation with counsel and his demeanor in the courtroom during the course of the hearing. The court announced that it would consider all of die evidence, together with its observation of defendant, and announce its decision the following Monday, March 18, when the case was set for trial; at which time the court announced its decision as follows:
“As the Court has indicated to counsel last Friday at the hearing on that date, you should continue to prepare for trial; however, the Court did not formally announce its findings at that time. The Court at that time did roughly review the evidence before the Court and/or the opportunity for observations that the Court had had.
“The Court finds that the defendant is not an insane person or an idiot nor an imbecile; that he is able to comprehend his position and make his defense.”
Defendant contends the trial court erroneously overruled the petition for reexamination and proceeded with the trial of defend ant. He also argues the findings of the sanity commission were incomplete and should not have been accepted by the trial court.
The duty of the trial court under K. S. A. 1969 Supp. 62-1531 [now K. S. A. 1970 Supp. 22-3301 to 3304], to ascertain the mental competency of an accused to stand trial has been the subject of consideration by this court on many occasions. A thorough discussion of the subject, and leading cases dealing therewith, is found in our opinion in Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197. The test of insanity of an accused, which would preclude his being put on trial for a criminal offense, was put in these words in paragraph four of the syllabus:
“The test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and conduct his defense in a rational manner. If the defendant in a criminal action is capable of understanding the nature and object of the proceedings pending against him, if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.”
See, also, State v. Severns, 184 Kan. 213, 336 P. 2d 447, and State v. Collins, 162 Kan. 34, 174 P. 2d 126.
Manifestly, it is the policy of the law not to try persons while they are insane. (State v. Collins, supra, and State v. Badders, 141 Kan. 683, 42 P. 2d 943.) The rule is justly designed for the protection of persons to be tried for crimes when they are incapacitated to properly defend themselves. On the other hand, the rule was not intended to furnish a technical means of invalidating just verdicts reached by judicial process. In order to reverse the trial court on the instant contention we would be obliged to hold, as a matter of law, the record compelled the trial court to entertain a real doubt with respect to defendant’s capacity to make a proper defense. The question of such doubt is addressed to the sound discretion of the trial court.
It is true, as defendant points out, the finding of the commission was brief. However, the determination that defendant “is able to comprehend his position and to make his defense in this case” constitutes a complete answer to the question before the commission. Moreover, there was much more information before the trial court before it made the final determination that defendant was competent to stand trial.
The ruling shows on its face the trial court carefully exercised its discretion in resolving the matter by considering not only the report of the commission in the first instance, but also the testimony of the jailer and Dr. Goering at the hearing on the petition for reexamination, as well as the court’s own observation of the conduct and demeanor of defendant who was present. The trial court was fully aware of defendant’s conduct concerning the self-inflicted wound. The court also had the advantage of Dr. Goering’s testimony in this connection:
"... I do not personally feel that the fact that he has attempted violence to himself means that he is not capable of standing trial.”
The provisions of K. S. A. 1969 Supp. 62-1531 authorize the determination of the accused’s capacity to stand trial by three alternative methods: (1) A finding by the trial court in which such indictment or information is filed; (2) a finding by a commission; or (3) a finding by another jury empaneled for the purpose of trying such question.
In the instant case, in addition to the determination by the commission, the trial court made specific findings of its own. (See State v. Anderson, 202 Kan. 52, 446 P. 2d 844.)
In the light of the evidence before it, we cannot say, as a matter of law, the trial court erred in failing to direct a reexamination of defendant or in ordering him to stand trial.
In support of his second contention, defendant argues that entrapment was one of the defenses relied upon and the trial court erred in refusing to submit an instruction covering the law in connection therewith.
Defendant cites a number of holdings of this court to the effect that in a criminal action a defendant is entitled to an instruction, setting out his theory of defense, where there is any evidence whatsoever to support it; the weight of such evidence being for the jury. The rule suggested by defendant has been consistently adhered to by this court. It was restated in the recent case of State v. Runnels, 203 Kan. 513, 456 P. 2d 16, where it was held:
“It is the duty of the trial court to instruct the jury on the law applicable to the theory of both the prosecution and the accused so far as they are supported by any competent evidence and are germane to the issues raised on the charge in the information.” (Syl. ¶ 1.)
See, also, State v. Ringler, 194 Kan. 133, 397 P. 2d 390; State v. Barnes, 164 Kan. 424, 190 P. 2d 193; and State v. Severns, 158 Kan. 453, 148 P. 2d 488.
This court has also recognized entrapment as a defense in a criminal action. (State v. Wheat, 205 Kan. 439, 469 P. 2d 338, State, ex rel., v. Leopold, 172 Kan. 371, 240 P. 2d 138; and State v. Stickney, 53 Kan. 308, 36 Pac. 714.) The trouble with defendant’s position is that in this case there is no evidence of entrapment, as that term is defined in an instruction approved by this court in State v. Wheat, supra. The instruction referred to was said to correctly state the general rule relating to entrapment. It reads:
“ In considering the defense of entrapment, the court advises you that the law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement, and where a crime is committed as a consequence of such entrapment, no conviction may be had with a person so entrapped as his acts do not constitute a crime.
“ ‘When law enforcement officers are informed that a person intends to commit a crime, the law in the interest of law enforcement and the suppression of crime permits the officers to afford opportunity for the commission of the offense and to lend the apparent cooperation of themselves or of a third person for the purpose of detecting the offender. When such a practice is followed by peace officers, if the suspect himself originally and independently of the officers intends to commit the acts constituting a crime, and if in the pursuit of such intent he personally does every act necessary to constitute a crime on his part, his guilt of the crime thus committed by him is not affected by and he has no defense in the fact that when the acts are done by him an officer is present and provides the opportunity for the commission of the offense.
“ ‘In other words, a defendant can rely on the defense of entrapment when he is induced to commit a crime which he had no previous intention of committing, but cannot rely on the defense when he has a previous intention of committing a crime and is merely afforded the opportunity to complete the crime by the peace officer.’ ” (pp. 440, 441.)
In the instant case, defendant does not even suggest that he was entrapped by any law enforcement officer. The only evidence offered by defendant was the testimony of accomplice Coffman who claimed that Dickerman, with a gun in his hand, forced Coffman and defendant to commit the burglary. Dickerman’s testimony, relating to the events leading up to the burglary, was in direct conflict with Coffman’s description of the affair. The trial court fully instructed on the issue of intent and specifically informed the jury if it found from the evidence that the defendant entered the premises out of fear of bodily harm and without felonious intent he must be acquitted.
The record discloses that Captain Woody testified at length and in detail concerning the circumstances under which he became aware that a crime was going to be committed and what action he took to apprehend the burglar. We are unable to find any suggestion in Captain Woody’s testimony that he or any other law enforcement officer in any way induced defendant to commit the burglary. Since there was no evidence of entrapment, the trial court properly refused to submit defendant’s requested instruction. (State v. McDermott, 202 Kan. 399; 449 P. 2d 545, cert. den. 396 U. S. 912, 24 L. Ed. 2d 187, 90 S. Ct. 226; State v. Ringler, supra; and State v. Clark, 117 Kan. 133, 230 Pac. 318.) The identical question was presented in State v. Clark, supra, where it was held:
“When the evidence viewed most favorably for defendant does not disclose a case of entrapment by an officer or detective, the court is justified in refusing a requested instruction on entrapment.” (Syl. f 2.)
Defendant has included in his brief a section which he denominates “petition to vacate judgment and discharge the defendant.” Defendant contends that there has been an inordinate delay in perfecting this appeal, which constitutes a violation of his right to due process of law under the Kansas and Federal Constitutions. This complaint, of course, has not been presented to the trial court for a determination of the facts involved. It is a matter to be presented under the provisions of K. S. A. 60-1507 at the proper time. Rule No. 121 (c) (2) (205 Kan. xliv, xlv) provides:
“. . . a motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected, . . .”
Nevertheless, we have examined the allegations and arguments set out in defendant’s brief in this connection, as well as the complete record in this court. It appears the delay was caused primarily by two changes of counsel subsequent to defendant’s trial.
A motion for a new trial was argued by defendant’s trial counsel on April 12, 1968. The motion was overruled and sentence pronounced on that date. Apparently, defendant’s trial counsel was called to active military duty and on April 16, 1968, another attorney, Frank C. Norton, who was specifically requested by defendant was appointed. The defendant submits correspondence with Mr. Norton, indicating that he was working on the appeal and experiencing difficulty in finding support for defendant’s contentions in the transcript. For some unexplained reason, notice of appeal was not filed — a matter which came to light by reason of a letter by defendant addressed to the clerk of this court and received on December 30, 1969. On March 27, 1970, Mr. Norton made application to withdraw as counsel for defendant and present counsel was appointed. Thereafter, the appeal was expeditiously processed by defendant’s counsel and heard by this court on December 10, 1970.
On the showing made it cannot be said the delay in the appeal process was constitutionally excessive. It is evident the bulk of the delay was attributable to causes beyond the state’s control. (See Prescher v. Crouse, 431 F. 2d 209, [10th Cir., 1970]).
Lastly, defendant makes a broad assertion that the trial court erred in approving the jury’s verdict and overruling defendant’s motion for a new trial. No argument is made in support of this assertion. There is ample evidence to support the verdict and we find no trial error shown in the record which would warrant a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal'from a conviction and sentence for possession of marijuana. (K. S. A. 65-2501, 65-2502 and 65-2519a.)
In August, 1969, information was received by the Wichita Police Department from an informant as to the location of a stash of marijuana. Investigation disclosed two brown paper sacks full of marijuana at the location described. The stash of marijuana was under observation from time to time for two days, and it was not approached. On the third day, August 15, 1969, two police officers went to the area to check the stash. Shortly after 9:00 p. m. they heard an automobile approaching, and concealed themselves in tall weeds to observe.
Two young men came to the river bank, one of whom was the appellant. The appellant stated to his companion, “[d]o you want to come with me to get the stuff?” His companion replied, “[n]o, you go I will wait.”
The appellant walked directly to' the marijuana and proceeded to fill a small plastic bag from one of the brown sacks. One of the officers who was concealed about ten feet away, approached the appellant and informed him he was a police officer. The appellant then tried to escape but was caught, wrestled to the ground, and the plastic bag was taken from his hand.
The sole question presented is whether the appellant was denied a fan trial by reason of the district court’s failure to permit his counsel on cross-examination to inquire as to what was communicated by the informer to police.
On cross-examination appellant’s counsel asked Detective Brown who received the telephone call from the informant, “[n]ow, was the informant who advised you in this case the same one who advised you in the other cases, or was this someone new to you,” and “[d]id this person know Mr. Grider?”
Objection was made, and the district court ruled the informant in the case was not material to the issue. Appellant’s counsel explained he sought to discover what was communicated by the informant to the police and not the identity of the informant. The questions clearly asked who the informant was.
K. S. A. 60-436 protects the identity of an informant unless the judge finds that identity has already been disclosed, or disclosure is necessary to assure a fair determination of the issues. The statute is to encourage those who have knowledge of crime to come forward and disclose information to officers in the field of criminal investigation without fear of disclosure. Thus, under the statute and public policy, disclosure is not favored without just cause.
It is a matter within the sound discretion of the district court as to whether the identity of an informant should be disclosed, and that determination will not be disturbed in the absence of an abuse of discretion. (K. S. A. 60-436; State v. Robinson, 203 Kan. 304, 454 P. 2d 527.)
It is noted the informant’s information did not furnish the probable cause in this case for an arrest, or a search. There was probable cause for an arrest independent of what the informant told the officer. The officers were directed to a certain spot on a river bank where there was contraband. Marijuana was found at the spot indicated. The informant’s information was so far correct, but the officers did not arrest anyone on that basis. They waited. The probable cause for appellant’s arrest was his committing a felony in the presence of police officers. It is really immaterial how the officers happened to be on the river bank. They were in a place where they had a right to be, and they observed a crime being committed, and they arrested the appellant — the perpetrator. This case is quite different from situations where the informant’s information provides all, or a great part, of the basis for the arrest, or a search. (Spinelli v. United States, 393 U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.)
The district court limited the police officers’ testimony regarding the information given by the informant, to that which directed them to the spot on the river bank. It struck the statement concerning the connection between the marijuana on the river bank and the appellant, and admonished the jury as follows:
“The Court: The objection is sustained. And there was a statement made by one of the witnesses as to what an informant might have said concerning the involvements of this defendant. That statement is to be disregarded by the jury. It was improperly brought into the case, and the jury may not consider it in any degree in determining guilt or innocence here. The answer to that question concerning what an informant said which may have implicated this defendant is hearsay and is stricken from the record.”
There was no error. Moreover, the statement of the witness stricken by the district court was elicited by appellant’s counsel and it has been repeatedly held that a litigant may not by his own act invite error and take advantage of the district court’s ruling on appeal. (State v. Cantrell, 201 Kan. 182, 187, 440 P. 2d 580.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, John Boyd, was convicted of first degree robbery and, as a three-time offender, was sentenced to serve a term of 45 years, pursuant to the Habitual Criminal Act. (K. S. A. 21-107a.) He has appealed the conviction.
Mr. Boyd, who will be referred to herein either by name or as the defendant, was originally tried jointly with his co-defendant, Jack Lloyd McCarty, and both defendants were found guilty of the robbery which is the subject of this appeal. This court upheld the convictions against both McCarty and Boyd in State v. McCarty, 199 Kan. 116, 427 P. 2d 616.
On June 10, 1968, the United States Supreme Court granted certiorari with respect to Boyd, vacated the judgment as to him and remanded his case for further proceedings in the light of Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. At the same time McCarty’s petition for a writ of certiorari was denied. (McCarty et al. v. Kansas, 392 U. S. 308, 20 L. Ed. 2d 1115, 88 S. Ct. 2065.) On remand of his case, Boyd was tried a second time and, as we have already related, was convicted of robbery a second time. Hence this appeal.
A number of points are raised and require comment. First, the defendant maintains the trial court erred in refusing to instruct the jury as to the offense of accessory after the fact, as defined by K. S. A. 21-106. This presents no new question. Similar arguments have been made before this court on numerous occasions and have consistently been rejected. The issue was central to our decision in State v. Phillips, 136 Kan. 407, 15 P. 2d 408, where the defendant was charged with and convicted of robbery. In sustaining the conviction it was held:
“Where the information charges robbery it does not include being an accessory after the fact, which is a separate and distinct offense, and the court properly refused to give an instruction on an offense not included in the information. (Syl. f 2.)
See, also, State v. McAlister, 139 Kan. 672, 33 P. 2d 314, where the defendant was charged with stealing an automobile, and State v. Turner, 193 Kan. 189, 392 P. 2d 863, where the charge was first degree murder.
In the recent case of State v. Jolly, 196 Kan. 56, 410 P. 2d 267, the offense alleged was robbery in the first degree. On appeal from conviction, the defendant contended the jury should have been instructed with respect to the offense of accessory after the fact, as defined in 21-106. In rejecting that contention we again said that such an offense was not included within the charge of robbery.
A second claim of error pertains to the admission of certain physical evidence which had been obtained in a search of some living quarters above a Topeka tavern. To put this claim in proper perspective we should point out that shortly after the holdup a car driven by Boyd, and with McCarty crouching in the back seat, and which at the time was being pursued by police officers, drove up to and stopped at the tavern. McCarty jumped out of the car and, being fleet of foot, dashed into the building and rushed upstairs, while Boyd was apprehended behind the steering wheel of the car.
The upstairs lodgings were searched, after McCarty had given his written consent, and a trench coat and hat were found, described as having been worn by McCarty during the robbery, as well as a sawed-off shotgun and shells. The shotgun corresponded to the weapon carried by McCarty at the time of the robbery. All these items were admitted in evidence over Boyd’s objection.
Boyd’s objection is two pronged. In the first place, he contends that McCarty’s confession having been held inadmissible against Boyd in the joint trial, the articles found in the search and attributable to McCarty are likewise inadmissible against him in the instant case.
The logic of this approach entirely escapes us. As to Boyd, McCarty’s confession, in which he implicated his co-defendant, was hearsay and hence inadmissible at the joint trial to prove Boyd’s guilt, and so prejudicial was the hearsay evidence, said the court in Bruton, that its damaging impact could not have been cured by instructing the jury to disregard it as to Boyd. However, it does not follow from the rule laid down in Bruton that the physical evidence found in Boyd’s lodging was likewise inadmissible. Such an inference would constitute a classic example of non sequitur. The conclusion at which Boyd would have us arrive, in following his attempted syllogism, would be fallacious in the extreme because his minor premise is untrue. Physical evidence clearly is not hearsay evidence. K. S. A. 60-460 defines hearsay evidence as “Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.” Physical evidence is not encompassed within this definition and the defendant’s tortured attempt to equate the same with hearsay must fail.
Secondly, the defendant asserts that the search based on Me-
Carty’s written consent was invalid and hence the evidence obtained therefrom was inadmissible. In support of this theory, Boyd first says that McCarty’s consent was not voluntary. We believe a sufficient answer to this argument is that McCarty has not claimed that his consent was involuntary, although he might have advanced such a contention, if it were the fact, when the case against him was tried. (State v. McCarty, supra.)
Boyd further contends that his own consent was essential to a valid search, claiming that he and McCarty did not occupy the lodgings jointly but that he, himself, was solely in control. In a hearing held by the court outside the jury’s presence, Boyd testified that he and McCarty occupied living quarters at the address in question; that he, Boyd, paid the rent and had control of the entire building; that he considered the place McCarty’s as well as his own to a certain extent; that McCarty slept there and could bring his friends there, but that he thought his own right was different as he paid the rent.
To support his assertion of sole proprietorship, Boyd introduced as an exhibit a so-called rent receipt written on tablet paper, purportedly signed by Walter Bugg, the landlord. The authenticity of this piece of paper was severely tarnished by expert testimony that the signature on the alleged receipt was not that of Mr. Bugg. The record discloses that the trial court gave no weight to the exhibit and concluded the search was validly made on McCarty’s consent.
We believe the court’s conclusion stands on solid ground. There was ample evidence to support an inference of joint occupancy. The rule is that where two or more persons jointly occupy living quarters, the consent of one of them is sufficient to form the basis for a valid search. (State v. McCarty, supra, and cases cited therein; People v. Terry, 57 C. 2d 538, 21 Cal. Rptr. 185, 370 P. 2d 985.)
On the morning after the jury had retired to deliberate, the trial court submitted a so-called Allen type instruction, patterned after the instruction which was upheld in Allen v. United States, 164 U. S. 492, 41 L. Ed. 528, 17 S. Ct. 154. We shall not quote the instruction here, for it follows, for the most part, the instruction set out verbatim in State v. Oswald, 197 Kan. 251, 417 P. 2d 261, where the curious reader may easily find it.
More than once in recent years this court has criticized the giving of coercive charges of this character after the jury has received the case for its determination. (State v. Oswald, supra, Bush v. State, 203 Kan. 494, 454 P. 2d 429; State v. Basker, 198 Kan. 242, 424 P. 2d 535; State v. Ingram, 198 Kan. 517, 426 P. 2d 98.) We reiterate our warning: The practice of submitting a forcing type instruction after the jury has reported its failure to agree on a verdict is not commended and may well lead to prejudicial error. (See State v. Earsery, 199 Kan. 208, 428 P. 2d 794.) If such an instruction is to be given, trial courts would be well advised to submit the same before the jury retires, not afterward.
It is quite unnecessary in the present case, however, to delve into the details which surrounded the giving of the instant instruction in order to determine whether it resulted in prejudicial error. We need only point out that the record clearly reveals the defendant expressed satisfaction with the instruction, waived any objections thereto and consented to its being given. Under such circumstances he cannot claim prejudicial error at this stage of the case.
Boyd next contends the sentence pronounced under the Habitual Criminal Act was void. First, he says that insufficient notice was given. This contention is without merit. Notice of the state’s intention to invoke the Act was given 21 days before sentence was pronounced. No reason is suggested why that time was insufficient for defendant to prepare his defense, nor has prejudice been shown in that regard. (State v. Peterson, 198 Kan. 239, 424 P. 2d 552; State v. Cruitt, 200 Kan. 372, 436 P. 2d 870.)
It is next urged that proof of prior convictions may not be made by means of certified copies of penal records. This question was determined adversely to Boyd’s contention in State v. Hall, 187 Kan. 323, 356 P. 2d 678.
In addition, the defendant argues he was entitled to eight rather than six peremptory jury challenges. The basis for this assertion lies in Boyd’s interpretation of K. S. A. 62-1402 Second, which provides that where an offense is punishable by imprisonment for not less than a number of years and no limit is set for the duration of the imprisonment, an accused is entitled to eight peremptory challenges.
The defendant’s theory is that since a third-time offender is subject to a sentence of not less than 15 years with no maximum limitation, he comes within the purview of the statute and should be allowed eight challenges. This contention was laid at rest in State v. Butler, 131 Kan. 680, 293 Pac. 756, wherein we held that the penalty for the offense charged furnishes the sole guide for determining the number of peremptory challenges.
Finally, the defendant says the verdict was contrary to the evidence. This is completely without merit. We shall not undertake to summarize the evidence here. It is available for all to see in State v. McCarty, supra.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages to an automobile damaged in a fire while in defendant’s garage where plaintiff had left it to be repaired. The appeal is from an order overruling defendant’s demurrer to plaintiff’s evidence and from the action of the trial court in discharging‘the jury and entering final judgment against defendant.
The petition, after the formal allegations, alleged ownership by plaintiff of a car of the value of $1,084.42; that on July 22, 1947, he delivered it to defendant for repairs; was given a claim check and defendant agreed to deliver the car to plaintiff after it was repaired; that defendant did repair it and on August 6,1947, while the car was still in defendant’s possession it was destroyed by fire and plaintiff was damaged in the amount of $1,422, which damages were caused by the negligent acts of defendant, in that the building and certain dangerous and inflammable instrumentalities were in the exclusive possession and control of defendant, its agents and employees, and defendant, its agents and employees had the duty toward the plaintiff of operating its place of business so that it would be in condition at all times to perform this function of storing defendant’s customers’ cars and that in ordinary instances no injurious occurrences, as detailed in the petition, were to be expected unless from the careless maintenance or operation of the building and equipment and that all the facts and circumstances surrounding the installation, maintenance and operation of the building and equipment were exclusively within the knowledge of the defendant and plaintiff’s car would not have been burned if due care had been used by the defendant; that its burning was due to some negligent act or acts of the defendant, the exact nature of which was unknown to plaintiff; that plaintiff’s car before the fire was worth $1,422 and afterwards worth only $30 as salvage when it was returned to plaintiff. '
The defendant answered first with a general denial. It then admitted receiving the car for repairs and that it was destroyed by fire but denied the fire was caused by its negligence.
The reply was a general denial.
The plaintiff testified about leaving his car with the defendant and presenting his claim check and being told his car had been damaged by a fire that destroyed the building where it was stored; that the defendant occupied the entire building at 301 South Topeka, in Wichita; that someone named Dick Price had the south end of the building; that there was no dividing line between the two.
On cross-examination, he testified that many other cars were destroyed in the fire.
Called as a witness for the plaintiff, Mr. Price, the manager of the defendant, testified the only gasoline in the place was used in the automobiles that were stored there, and that some distillate was stored in the building; that there was no one else in charge of the building than the Price Auto Company and its agents; that it had been in the building since 1916 and no other fire had occurred.
At this point the parties agreed a named witness would testify the value of the car was $1,350 on the day before it was damaged in the collision. The plaintiff had testified it was worth $1,050 to $1,110.
At this point plaintiff rested and the defendant demurred to the evidence for the reason that it failed to show a cause of action in favor of the plaintiff and against the defendant. The defendant also moved for judgment. The court asked defendant if it was admitting the Price Auto Sales Company had full control of the building. Counsel stated it was not but was going to stand upon the demurrer. Court was then adjourned until 2 p. m., at which time the demurrer was argued. At the conclusion of this argument, which occurred on January 30,1948, the court took the demurrer under advisement and dismissed the jury. On June 28, 1948, the court advised counsel it would hold the demurrer was not good, and directed a journal entry to be prepared. A journal entry was submitted for approval overruling the demurrer and entering judgment for plaintiff in the amount of $1,154.42. The parties were unable to agree upon this journal entry and a hearing was had by the court. While negotia tions were going on about this journal entry almost two months had elapsed since the court advised counsel it was overruling the demurrer, so defendant filed a notice of appeal from that order. On December 27, 1948, the court having heard arguments signed a journal entry reciting the steps in the trial; that defendant demurred to evidence of plaintiff because it failed to prove a cause of action and announced in open court that whether the demurrer was sustained or overruled it would not introduce any evidence but would stand upon its demurrer; that no objections being made the jury was discharged and after argument of counsel the demurrer to the evidence was taken under advisement; that thereafter the demurrer was overruled. Judgment was entered for the plaintiff in the amount of $1,020.
The defendant has appealed from that judgment.
The above accounts for the two appeals. They were consolidated in this court.
The defendant’s specifications of error are the overruling of the defendant’s demurrer to plaintiff’s evidence and holding that the doctrine of res ipsa loquitur was applicable, in holding that proof of the mere fact a fire of unknown origin destroyed defendant’s garage and plaintiff’s automobile required the entry of judgment against the defendant in the absence of evidence introduced by defendant; in rendering final judgment in favor of plaintiff and against the defendant without submitting the issues of negligence and damages to the jury and without making any finding of negligence.
Defendant states its position thus: Plaintiff was the bailor, defendant the bailee; plaintiff had the burden throughout the trial of proving negligence of defendant; he failed to sustain the burden of proof even though he had made out a prima facie case by proving defendant’s failure to deliver because his own proof showed defendant’s inability to return was due to a fire which destroyed defendant’s building and its contents, including plaintiff’s car, and since fires commonly occur without negligence res ipsa loquitur was inapplicable and there was no presumption of negligence. Plaintiff states his position, as follows: The bailor delivered his car to bailee who returned it in a damaged condition. He states the question is— Did the fact there was additional proof of destruction by fire in his case in chief constitute a complete defense to the action so as to make a demurrer to his evidence good or did the bailee, defendant, have the duty at that point of going forward with evidence to prove circumstances of the fire sufficient to show at least prima facie that it exercised due care?
Defendant directs its argument to demonstrating that plaintiff did not prove a case under either the doctrine of res ipsa loquitur or the law of bailments. It cites opinions dealing with each theory. In many of these opinions the two theories are confused somewhat. We have concluded to deal with the appeal under the law of the duty owed by a bailee for hire to the bailor or to state the matter another way, the liability of a bailee for hire when the property of the bailor is damaged while in the bailee’s possession and under his care.
There is no question here but that the plaintiff, bailor, proved the bailment and failure to return the property on demand, except as greatly damaged, and of value only as salvage and that this failure to deliver was caused by fire which destroyed the building. It may be stated at the outset that a bailee is not the insurer of the bailed property. He owes the duty to exercise due care only. It may also be stated in an action such as this the burden of proof of negligence is on plaintiff and never shifts. The real question is whether the bailment presumption when applied to the facts in this case required the defendant when plaintiff had established the above to go forward with the evidence sufficient to establish prima facie the fire was not caused by its negligence. The defendant offered no evidence whatever. It rests its defense on the fact that plaintiff’s evidence established loss by fire.
We dealt with the question in Wiley v. Locke, 81 Kan. 143, 105 Pac. 11. That was a case where household goods had been received by the defendant for storage for hire. There was evidence in the case that the bailee represented they would be stored in a wooden building. The court, however, instructed the jury that it was the duty of the bailee to furnish a building which would be reasonably safe for storage and if the building was unsafe and the property stored therein damaged or destroyed by fire, the bailee should be held liable for the loss if he failed to exercise due care in furnishing the building. Defendant argued this was error. In dealing with that argument, we said:
“When the appellee proved that he had intrusted his goods to the appellants, who were unable to return them because they were burned, it then devolved upon the appellants to show that the loss did not occur through any want of care on their part.”
We also considered the question in Caldwell v. Skinner, 100 Kan. 567, 164 Pac. 1166. That was a case where goods had been stored in a warehouse and were destroyed by fire. The plaintiffs alleged the storage of the goods and the failure of the defendants to redeliver them on demand. The defendants answered that the goods stored in defendant’s warehouse were totally destroyed by fire. Plaintiffs demurred to this answer. The court mentioned what is known as the Warehouse Act. It is now G. S. 1935, 82-101 to 82-209. With many of these sections we are not concerned. We are, however, concerned with section 82-108. That section provides, as follows:
“A warehouseman in the absence of some lawful excuse provided by this act, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor, if such demand is accompanied with (a) an offer to satisfy the warehouseman’s lien; (6) an offer to surrender the receipt, if negotiable, with such endorsements as would be necessary for the negotiation of the receipt; and (c) a readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if feuch signature is requested by the warehouseman. In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal.”
It should be noted the section first provides that a warehouseman is required in the absence of “some lawful excuse” to return the property. It should be further noted that at the end of the act in order to excuse failure to deliver, the burden .is upon the warehouseman to establish the existence of a “lawful excuse.” After mentioning the latter part of the above quoted section, we stated in the Caldwell case, supra:
“Cases are cited by defendants which tend to sustain their view, and there is a conflict of authority on the question, but the legislature has provided a different rule for establishing claims of this character. . . . Under the statute, if it be shown that goods were delivered to the warehouseman in good condition and destroyed, lost or returned in a damaged condition, it then devolves upon him to acquit himself of negligence; that is, to show a lawful excuse for his failure or refusal to deliver the goods in compliance with the demand. Doubtless the legislature considered that the warehouseman who had control of the premises and the goods entrusted to his care was better situated than the depositor to know the facts and circumstances under which the destruction, loss or damage occurred, and is best able to prove them.”
Counsel for appellant argue strenuously that this changed the common law rule as to the duty upon warehousemen. It should be noted, however, in Wiley v. Locke, supra, which was the law at that time, we held the duty devolved upon the bailee to go ahead with the evidence and show that the fire was not caused by its negligence. In Caldwell v. Skinner, supra, we held the showing of fire did not in and of itself constitute showing a lawful excuse.
The plaintiff cites and relies on many authorities upholding this argument.
Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P. 2d 498, is a case where a bailor’s automobile was totally destroyed by fire. The trial court held in agreement with the theory contended for by defendant here. In that case plaintiff had showed the leaving of the car with the defendant; that it was destroyed by fire and some circumstances about the fire. On appeal the supreme court reversed and said:
“Where the property is in the sole and exclusive possession of the bailee and is lost or damaged, a prima facie case is made by the plaintiff when he shows the property was bailed to the bailee and has not been returned on demand, or has been damaged. It is then incumbent upon the bailee to show that such loss or damage was without negligence upon his part. . . . It is sufficient to say that the failure of the bailee to return the property with the admission that it had been destroyed by fire, made out a prima facie case for appellant, and imposed upon respondents the duty of going forward with proof that it had discharged its duty of proper care while-entrusted with the custody of appellant’s automobile. From the evidence introduced it became a proper subject of inquiry which appellant was entitled to have investigated by the jury, and it was error to grant the motion for nonsuit where, as here, appellant had made a prima facie case.”
In Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N. E. 2d 658, a car was stolen from a parking lot. The bailee contended that once it had been shown that the car was stolen it was not responsible for its loss. The plaintiff explained in its case in chief the loss of the automobile by theft and the defendant argued this was entirely consistent with due care on the part of the defendant. The plaintiff alleged no negligence and proved none. The court said:
“The rule supported by the weight- of authority may be stated thus: A bailee may ordinarily rebut the presumption of negligence or lack of due care by proof of loss arising from theft or fire. Where, however, the bailee proves loss of the bailed article by theft but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not rebut the presumption of negligence arising from his failure to return the bailed property.”
The court further referred to Commercial Corp. v. N. Y. Barge Corp., 314 U. S. 104, 86 L. Ed. 89, 62 Sup. Ct. 156, where it was said:
“The burden of proof in such a case does not shift with the evidence, but remains with the bailor, who must prove his case by a preponderance of all the evidence.”
The court further said, in Ins. Co. v. Constantine, supra:
“It- is therefore our conclusion that in an action brought by a bailor against a bailee for hire, a prima facie case is established where the bailor proves delivery of the bailed property in good condition and the failure of the bailee to redeliver upon legal demand. Upon proof of such state of facts the burden of proceeding with the evidence shifts to the bailee to explain his failure to redeliver, and where the bailee proves loss of the bailed property by theft but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not thereby rebut the presumption of negligence or want of due care arising from his failure to redeliver. The burden of proof remains upon the bailor to prove by a preponderance of all the evidence that the bailee was guilty of negligence or failure to exercise due care.”
In Nichols v. Union Stock Yards & Transit Co., 193 Ill. App. 14, cattle had been destroyed by fire. In an action to recover damages the defendant showed that the cattle had been destroyed by fire. The court instructed the jury that the evidence did not show any negligence on the part of the defendant and the jury found for the defendant. The court of appeals stated the plaintiff’s position, as follows:
“The plaintiff contends that proof of the loss or destruction of the cattle while in the custody and possession of the defendant as such bailee raised a presumption of negligence on the part of the defendant and cast upon it the burden of showing that it exercised ordinary care of the cattle and that the loss of the same resulted without its fault.”
The court stated defendant’s position, as follows:
“The defendant further contends that as it appears from the declaration of the plaintiff and from the evidence introduced in its behalf in its original case that the cattle were destroyed by fire, such fact prima facie rebuts the presumption of negligence that ordinarily arises in cases of bailments of this character, and casts upon the plaintiff the burden of showing negligence on the part of the defendant, and that the plaintiff has failed to successfully carry this burden.”
The court further said:
“All the authorities seem to agree that the rule that there shall be a presumption of negligence in bailment cases like the present one, where there is a default in its delivery or accounting for the goods, is a just and necessary one, and we think that it works a destruction of this wholesome rule to permit the presumption to be overcome by mere proof that the goods were destroyed by fire. But we must enforce the law as we find it, and we are therefore compelled to hold that the position of the defendant on the question now before us for consideration is sustained by the authorities.
“As the plaintiff tried its case upon the theory that the presumption of negligence applied in this case and introduced no proof touching the care exercised by the defendant as to the cattle, the court would have been justified under the law in sustaining the defendant’s motion to direct a verdict for it at the close of the plaintiff’s evidence, but the defendant did not see fit to rest its case on the plaintiff’s evidence, and it introduced proof in its defense, and the question for us to decide is, was there any evidence in the entire record from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that the defendant had not exercised ordinary care for the preservation of the cattle? If there was, the court had no right to direct a verdict for the defendant at the conclusion of all the evidence.”
Corrao v. Dewey Garage Corporation, 24 N. Y. S. 2d 592, was a case where an automobile was stolen while it was stored in a garage. The same argument was made there as was made here. The court said:
“Any exercise of dominion over another’s goods to his loss, is a conversion, and a bailee is liable to the owner for their value if he negligently delivers the goods to the wrong person. The bailee is bound, on request, to redeliver the thing bailed to its lawful owner, and while he may escape liability by showing that the goods had been lost without negligence on his part, he must so explain the loss. When there is a theft he is required, to evade liability, to show that the loss was ‘by occurrence beyond his control’, giving ‘proof ... of the circumstances of the loss, and at least prima facie evidence of due care on his part’; if he cannot return the property, he must ‘explain the loss in some satisfactory way.’ ”
Threlkeld v. Breaux Ballard, Inc., 296 Ky. 344, 177 S. W. 2d 157, 151 A. L. R. 708, was a case where the plaintiff had left her automobile with a garage company to be repaired. When she returned for her car she was informed it had been destroyed by fire. On the trial of her action she proved that she left her' car to be repaired and that it had been damaged and the extent of the damages. The court directed the jury to return a verdict for the defendant. The defendant contended that under the law of bailments the plaintiff had to prove that the damage to her automobile was caused by the negligence of defendant. The court pointed out the conflict in the authorities and the court quoted from a former decision, that is, Smith-Hager Ice Co. v. Reid, 228 Ky. 489, 15 S. W. (2d) 504, where it has been said:
“. . . ‘but this contract created the relationship of bailor and bailee, and in such cases it is the general rule that the burden of proof is on the bailor to show that the loss or injury to goods was due to the negligence or other fault of the bailee. It is sufficient, though, if he proves facts from which such negligence or fault may be inferred so as to make a prima facie case. If it is shown that the goods were delivered to the bailee in good condition, he will be liable for any loss or injury to them while in his custody, unless he affirmatively establishes that such loss or injury was not due to his failure to. exercise due care.’ ”
The court proceeded to discuss the whole question and during the course of the opinion pointed out it was common knowledge that fires often resulted from negligence and that property in the custody of a bailee may be damaged or consumed by fire caused by the negligence of the bailee as well as other negligence and pointed out how the tendency had been not to permit the bailee to escape liability by saying the loss was caused by fire. The opinion is of rare persuasiveness in this case. Fires of the type that destroyed plaintiff’s car sometimes are caused by the negligence of an employee or agent of the owner of the building. Evidence of such is usually more readily available to the bailee than to the bailor. While investigations of fires of that sort in this state are made ordinarily by the local police or by the state fire marshal’s office, the information thus obtained is not necessarily made public. It would be questionable if it would be made available to a plaintiff in a case of this sort. At least there would be no doubt the defendant would have it always within its power to ascertain the cause of the fire, whether or not it was due to negligence for which it was liable. It is thus within its power to rebut the case of the bailor, if there be such evidence.
Here the bailee, defendant, was in a better position than plaintiff to know the cause of the fire and to show it was not caused by his negligence, if such were actually the case. At the stage of the case where plaintiff rested the duty was on defendant to go forward with the evidence sufficient to show at least prima facie that there was no want of due care on its part. The case made by plaintiff did not fail, with the proof alone that the failure to return was caused by fire. The court ruled correctly in overruling defendant’s demurrer to evidence. Were this the only question in the record the above conclusion would require affirmance of the judgment.
As we have stated, when the demurrer was argued the trial court took it under advisement and discharged the jury. Some months later it was overruled and the court gave judgment for the plaintiff for substantially the amount asked. Under the view of the case most favorable to plaintiff there still was undetermined as a question of fact the question of negligence of defendant and the amount plain tiff had been damaged. The order in which a trial is carried on is .provided in G. S. 1935, 60-2909. Under those provisions when a demurrer to the evidence is interposed the trial court ordinarily rules upon it during the course of the trial and holds the jury until the defendant is afforded an opportunity to offer what evidence it cares to introduce. Here the orderly process of .trial may be stated thus — plaintiff proved delivery of his car to defendant and its return to defendant on demand in a damaged condition on account of a 'fire which destroyed the defendant's building and damaged the contents.
The trial court at that time, as we have demonstrated, should have overruled the demurrer. Then the defendant would have been offered an opportunity to go forward with whatever evidence was available to it to establish prima facie that the fire was not caused by its failure to exercise due care. If it had been offered this opportunity and had stated that it had no such evidence to offer, then the proper course would have been for the trial court to submit the case to the jury under proper instructions. Had the defendant furnished evidence prima facie that the fire was not caused by its failure to exercise due care, then the burden would have been on the plaintiff to show that the fire was caused by the negligence of the defendant. The action could then have been submitted to the jury under proper instructions for the determination of the questions of fact presented.
On account of the above, the judgment of the trial court is reversed with directions to proceed with the trial of the cause.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for a divorce. Judgment was entered granting the plaintiff husband a divorce and decreeing a division of property. The plaintiff has appealed from that part of the judgment relating to division of the property.
The plaintiff husband commenced the action by filing his petition, in which he charged the defendant with extreme cruelty and gross neglect of duty. He alleged the marriage in 1929; that through his own efforts he had accumulated 200 acres of land during his married life, together with farming equipment and household goods; that he had paid defendant $5,500 as a partial division of property and given her out of the home, household equipment worth $175, an automobile and such was more than her fair share of the property.
He prayed for a divorce and that he be adjudged to own all the property he then had.
Defendant filed her answer and cross petition denying the allegations of the petition, charging plaintiff with gross neglect of duty and extreme cruelty, asking for a divorce and an equitable division of property.
The answer and reply of plaintiff was a general denial. She asked for and received $500 for support and $150 for her attorneys. The action was set for trial on January 19, 1949, and upon January 18 was continued on the motion of defendant on condition that she pay all the costs to that date. It was tried in March, 1949.
Both parties filed requests for findings of fact and conclusions of law. Plaintiff requested a conclusion of law that he was entitled to a divorce and to all the property then in his possession except the piano in his home. At that time he was in possession of 200 acres of land and the farming equipment, livestock and household goods. The defendant requested findings and conclusions granting her a divorce, giving her the money and property she then had and asking that the property be divided equally. She also asked $5,000 alimony and additional attorney fees. On June 11 the trial court filed its findings of fact and conclusions of law.
In its findings the court found in substance that the couple were married on September 17, 1929, and had no children; that they had acquired a quarter section in Ottawa county worth $8,000, also forty acres in Saline county worth $9,500, in addition a cemetery lot, value not stated, and that plaintiff owned farming machinery worth $2,605, an automobile worth $1,110, a pickup truck, valued at $1,200, and thirty calves valued at $1,800; that the motor vehicles and livestock were acquired by plaintiff subsequent to the separation of the parties and subsequent to the institution by defendant of an earlier divorce action, which later was dismissed.
The trial court then found defendant to be guilty of various acts of extreme cruelty and gross neglect of duty, which we do not deem it necessary or seemly to set out in detail in this opinion except that among them was a refusal to bear children. The court further found that the parties purchased a 40-acre tract in Saline county in 1940 and began residing on it immediately; that the house on this tract was improved with plumbing and bathroom and was wired for electricity; that in 1946 plaintiff and defendant divided $6,000 between them, each receiving $3,000, and defendant had retained her portion thereof. The court then found that in 1947 defendant separated from plaintiff without fault on his part; sued him for a divorce upon the ground of extreme cruelty and gross neglect of duty; that a written property settlement was entered into whereby in the event a divorce was granted she was to receive the quarter section and $5,000; that $2,500 was actually paid her at that time; that shortly after receiving the $2,500 she changed attorneys and dismissed her action, this dismissal not being contemplated by the parties; that in addition to the $2,500 so paid plaintiff was ordered to pay and did pay for defendant’s support $500; paid her attorneys $475 and paid his own attorneys $375.
The court made conclusions of law that defendant was guilty of extreme cruelty and gross neglect of duty and plaintiff was entitled to be divorced from defendant for defendant’s fault; that defendant was not entitled to be divorced from plaintiff on account of anything alleged in her cross petition or appearing in the evidence in support thereof; the trial court then made a conclusion of law that defendant should have as her separate property the quarter section in Ottawa county; that plaintiff should pay defendant $500 in thirty days and $2,000 without interest within six months; that she should also have the piano that was in the house, her automobile and a paid-up' life insurance policy with cash surrender value of $896; that the 40-acre tract in Saline county, the cemetery lot, the household goods and livestock, farming equipment, automobiles and growing crops should be set aside for plaintiff; that defendant should pay her own attorney fees and the plaintiff pay the costs.
The plaintiff filed a motion for a new trial; that two findings of fact be amended, for additional findings and for a conclusion of law providing the property division be set aside; that one conclusion of law be amended. The motion as to the findings of fact was allowed and the findings were amended in detail, not now important. In the motion of the plaintiff for additional conclusions of law he asked that the property division be set aside because it was arrived at upon consideration of incompetent evidence; that the conclusion as to costs be amended so that defendant be ordered to pay the costs incurred on account of a last minute continuance; that the motion also asked that the trial court make a conclusion of law, considering the $3,000 paid defendant when the parties divided the $6,000 in 1946,.the $2,500 paid defendant at the time the former divorce case was filed, the $100 she was alleged to have taken with her when she left home, $225 she checked out of the bank, the automobile, the insurance policy with a paid-up value of $896, other articles of personal property worth $125, the $475 paid her attorneys and the $375 paid his attorneys in the former action; the motion asked the trial court to order that $2,000 plus what she had already received be defendant’s full share. In response to this motion the trial court made a conclusion of law that defendant should pay the costs accrued up to the time of the continuance on January 19, 1948, and amended conclusion of law No. 3 by reducing the cash payment to be made from $2,500 to $1,250, $500 to be paid within thirty days and $750 to be paid in six months without interest and ordering that defendant should have the piano, the automobile and a paid-up life insurance policy with a cash surrender value of $419. Thereafter the plaintiff filed a motion for a new trial upon the issue of division of property, on account of abuse of discretion of the trial court, misconduct of the defendant, erroneous rulings of the court and that the division of property was not fair and equitable. This motion was overruled. Hence this appeal.
The defendant made no complaint about either the findings of fact or conclusions of law.
The journal entry of judgment gave defendant the quarter section, the piano in the plaintiff’s home, the automobile in defendant’s possession, the paid-up life insurance with a cash surrender value of $419, and plaintiff was directed to pay defendant $500 within thirty days and $750 within six months, these sums to be a lien on the real property set aside for plaintiff; plaintiff was given the forty acres, the farming machinery, the household goods except the piano, all the livestock and other personal property and all money then in his possession and the cemetery lot. The costs were divided as provided in the conclusions of law. Defendant was restored to her maiden name. No attorney fees were ordered paid by plaintiff.
Plaintiff filed another motion for a new trial, which was overruled.
The specifications of error are the admission of incompetent evidence and exclusion of competent evidence, overruling plaintiff’s motion for a new trial, not a fair and equitable division of property, overruling plaintiff’s motion for findings of fact; that defendant on numerous occasions drew checks on the bank account of plaintiff, overruling plaintiff’s motion to set aside conclusions of law and overruling motion of plaintiff that the quarter section be allotted to him.
Notwithstanding this imposing list of specifications of errors counsel devote their brief to a discussion of the evidence. This argument may be summed up by the concluding sentence of the plaintiff’s brief, as follows. “With the findings of fact of the trial court as they stand, and with them final as they are upon the appellee, we see no reason why this court should not now render final judgment herein providing for a fair and equitable division of property herein.”
The plaintiff does not favor us with the citation of authorities. There is little we could learn from our opinions in appeals of this sort except that each case must be decided on its own merits, considering all the surrounding facts and circumstances, the station of the parties, the efforts made by each in the accumulation of property, the comparative conduct of the parties, and all the other minutiae and sordid facts brought out when a married couple find they can no longer live together.
We shall here consider upon this appeal the court’s findings of fact and conclusions of law. On that account we have no trouble about the facts. They are settled in the court’s findings as far as defendant is concerned because she made no objection and the plaintiff finally asks us to consider the appeal from these findings.
At the outset it is clear the divorce was granted by reason of the fault or the aggression of the wife. The pertinent statute is G. S. 1947 Supp. 60-1511. That section provides, as follows:
“. . . If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her of the whole of her property, lands, tenements and hereditaments owned by her before, or by her separately acquired after such marriage, and not previously disposed of, and also the court may award the wife such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable; and she shall be barred of all right in all the remaining lands of which her husband may at any time have been seized. And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. . . .” ,
Our question is — Was the division of property made by the trial court just and equitable? The matter rests in the discretion of the trial court but the discretion is judicial, not arbitrary. (See Walno v. Walno, 164 Kan. 620, 192 P. 2d 165; and cases cited.) Our question is really whether the trial court abused its discretion.
It seems the trial court gave undue consideration to the property-settlement the parties agreed to on the occasion of the former action that was dismissed. It seems also that the trial court failed to give due consideration to payments made to defendant before the present difficulties arose. It seems the court failed to consider the conduct of defendant as stated in its findings and how little help defendant must have been to plaintiff in building up their little fortune. It seems plaintiff has done remarkably well starting with $2,000 in 1929 and having accumulated something like $28,000 by now, largely through his own efforts.
Counsel for the parties each attempt to strike a balance. But little would be added to this opinion by printing these figures. Suffice it to say we have concluded that the trial court abused its discretion in rendering the judgment rendered. The division of the property was not fair and equitable. This judgment should be modified as follows: The quarter section of land in Ottawa county should be allotted the plaintiff instead of the defendant; plaintiff should be ordered to pay defendant $5,000, $1,000 to be paid within thirty days of the date when the mandate from this court is spread on the records of the trial court and $500 to be paid every six months thereafter until the balance of $4,000 has been paid, all to be without interest, all these sums to be a lien on the Saline county land, defendant to have in addition the piano, the automobile in her possession and the paid-up insurance policy with a cash surrender value of $419, plaintiff to have in addition to the quarter section in Ottawa county the forty acres in Saline county, the farming machinery, the household goods, except the piano, all livestock and other personal property, all money in his possession and the cemetery lot, defendant to pay her own attorney fees in this court.
As so modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action in the nature of a creditor’s bill to subject certain real estate standing in the name of Leila M. Snyder to the satisfaction of a judgment obtained by the plaintiff against her husband, J. R. Snyder.
The pleadings are not in controversy and need not be detailed. For purposes of this appeal the essential and controlling facts disclosed by the record can be stated thus:
Leila M. Snyder and J. R. Snyder are, and on all dates in question were, husband and wife. In 1926 they acquired title to the real estate in controversy as tenants in common. They failed to pay the taxes assessed against it with the result it was sold for taxes at the end of a tax foreclosure action instituted by Bourbon county and bid in at tax foreclosure sale by Leo W. Bohon and wife for the sum of $1,010. At that time the total taxes and expenses of the action were $658.49. The purchasers paid the amount of their bid into the court and on June 30, 1943, pursuant to judicial order, the land was deeded to them by the sheriff of Bourbon county and the deed was duly recorded in the office of the register of deeds of such county. On the same date the Snyders filed a motion in the foreclosure suit challenging the validity of the sheriff’s sale on grounds they had no knowledge of the pendency of the action and had not been served with summons. The sale was never set aside and the judgment on which it depends is in full force and effect. July 22, 1943, without ever taking possession of the property Bohons conveyed the title to Mrs. Snyder for an agreed price of $1,085. The purchase price was paid by a draft which Mrs. Snyder testified had been obtained from the First State Bank of Pittsburg and paid for by her with her own personal funds. Thereafter, and on June 30, 1943, a check was issued by the clerk of the district court of Bourbon county for $351.52 to the Snyders jointly and cashed by them. The amount of this check represented the difference between the Bohons bid and the amount of the judgment in the tax foreclosure action.
On March 1, 1946, the Snyders entered into a written contract to sell the real estate to the defendants, Harry and Grace M. Grimm, for the sum of $4,725 and they took over possession thereof in April, 1946. It is conceded this lawsuit was instituted before they had fully paid the consideration.
The plaintiff, who in October, 1943, had obtained a judgment against J. It. Snyder upon a simple promissory note for the sum of $497.24 with interest and costs but had failed to collect such judgment after the issuance and return of two executions in the latter part of 1945, commenced this action on October 22, 1946.
After hearing the evidence the trial court made findings of • fact and conclusions of law and rendered judgment in favor of the plaintiff in which it held the proceeds of the property sold to the Grimms was amenable to the satisfaction of the plaintiff’s judgment.
No useful purpose would be served by setting forth the findings of fact or the conclusions of law. It suffices to say that while the findings disclose the factual situation heretofore related they are wholly silent as to any facts which would warrant a conclusion that any part of the purchase price paid by Mrs. Snyder to the Bohons for her deed to the involved property was advanced by or came from funds belonging to her husband, or that there was any understanding between them the title to the real estate should be taken in her name and jointly owned by them, or that in taking the deed and acquiring such title she was guilty of any fraud or collusion. It can be added the same holds true of the conclusions of law.
Prom a careful examination of the record it is crystal clear the trial court’s judgment was based upon the theory that under the facts and circumstances heretofore related Mrs. Snyder did not acquire title to the property because of the rule that a cotenant in possession cannot acquire title to the common property and that when it is purchased by such a person the purchase is presumed to have been made for the common benefit of all cotenants. Indeed the first and in fact the all decisive conclusion of law upon which such judgment was based expressly so states. It reads:
“The re-purchase of the real estate involved by Leila M. Snyder from the purchaser at the tax sale amounted to a redemption in behalf of the co-tenant, John R. Snyder.”
That the statement last mentioned is correct and entirely justified by the record is evidenced by the principal contention advanced by counsel for the plaintiff in defense of the judgment. The brief filed by them in this court states:
“J. R. Snyder and Leila M. Snyder, his wife, were co-tenants and by the purchase of the property by Mrs. Snyder by way of a quitclaim deed from the holders of a tax deed that all rights under it inured to their benefit as eo-itenants and that in procuring the said quitclaim deed that it amounted to no more than a redemption receipt or payment of the taxes, hence the relationship of co-tenancy continued to exist.”
We pause here to note that this lawsuit is really between the plaintiff and the defendants, J. R. Snyder and Leila M. Snyder, and that the rights of the defendants, Harry Grimm and Grace M. Grimm, under the judgment, although they are appellees herein, depend entirely upon whatever disposition is made of the cause as between the parties first named. On that account we shall refer to the plaintiff as the appellee and the Snyders as the appellants.
It is true, as appellee points out, that in this jurisdiction the general rule is that if a cotenant in possession purchases the common property, either directly or indirectly, at a judicial sale, the purchase will be deemed to have been made for the benefit of all the cotenants (Hayden v. Hughes, 147 Kan. 511, 77 P. 2d 938). That, however, is not the situation which confronts us here.
In the instant case the Snyders, as cotenants, had permitted the taxes on their property, to become delinquent. In due course Bourbon county, as authorized by the provisions of chapter 79, article 28, G. S. 1947 Supp., providing for judicial foreclosure and sale of real estate on which taxes are delinquent, had foreclosed such property and sold it at judicial sale to the Bohons who, after confirmation of such sale and the execution of a sheriff’s deed conveying title thereto; promptly placed such deed of record in the office of the register of deeds. Under express provisions of the statute under which the foreclosure was had (see G. S. 1947 Supp. 79-2804) when that deed was filed for record the Bohons became vested with a fee simple title to the real estate in question and the Snyders were divested of all right, title or interest therein.
There is absolutely nothing in the record of the case at bar which warrants a conclusion, even by inference, that the Bohons were acting for anyone but themselves in bidding in the property at the sale; in paying into the court the amount of the bid; in obtaining the deed or in filing it for record, or that they had any understanding or agreement whatsoever with Mrs. Snyder or her husband that title to such property was to be reconveyed to the Snyders or any of them after the Bohons had acquired it.
Thus it appears that Mr. and Mrs. Snyder were not cotenants at the time she negotiated for and repurchased the real estate from the Bohons and that she did not purchase it either directly or indirectly at judicial sale. The result is there is no room for application of the rule to which we have heretofore referred and the trial court erred in concluding as a matter of law that the repurchase of such real estate by Mrs. Snyder from the purchasers of the tax sale amounted to a redemption in behalf of her cotenant, John R. Snyder.
The conclusion just announced is supported by Hayden v. Hughes, supra. In the opinion of that case, even though the cotenancy rule was applied under the facts there involved because of collusion between the parties, it is said:
“After a cotenancy is actually dissolved there is nothing which forbids a former tenant from acquiring title to the entire property for himself (7 B. C. L. 861), and it would follow that if there were no collusion, and a third person purchased the property and ultimately received the sheriff’s deed, a purchase by one of the cotenants from the previous purchaser would convey full title and the other former cotenants could claim no interest. . . .” (pp. 516, 517.)
It is also recognized in Watson v. Jones, 103 Kan. 327, 175 Pac. 96, where, although we held the purchase of a tax title by a cotenant (Campbell), with all the rights attending it, inured to the benefit of the purchaser’s cotenants, we said:
“If Campbell had taken and held title under such circumstances that redemption . from him became foreclosed, and the title of all former owners became completely extinguished, a different question would be presented. He held title just six days.” (p. 329.)
It also finds support in 62 C. J. 465 § 91, where the following statement appears:
“Where a cotenancy has been extinguished by a judicial sale of the property, as upon foreclosure and expiration of the period of redemption, it has been held that the rule precluding a cotenant from acquiring a title to the common property for his own benefit does not apply in the absence of fraud or agreement to acquire it for the common benefit, . . .”
See, also, 14 Am. Jur. 126, § 55, which reads:
“On the other hand, however, it is held that if, without collusion, a third person purchases the property at a judicial sale for the debt of all, and after-wards conveys the title to one of the former cotenants, the latter takes a good title as against his erstwhile cotenants, since the acquisition of title by the third person operates to terminate the cotenancy. But where the third person merely acts in behalf of his grantee, the situation is different; in such a case the deed to him will be regarded merely as a matter of form and the general rule will be applied.”
Appellee places much weight upon our decisions (see Muthersbaugh v. Burke, 33 Kan. 260, 6 Pac. 252; Delashmutt v. Parrent, 39 Kan. 548, 18 Pac. 712; Watson v. Jones, supra) all holding that as a general rule a tenant in common will not be permitted to assert against his cotenant a tax title acquired by him for taxes imposed on the joint property. We have no quarrel with the rule announced in those decisions. The trouble is they have no application here for the simple reason the cotenancy theretofore existing between the appellants had been terminated and Mrs. Snyder did not purchase the property at a tax sale, either directly or indirectly, but acquired it without collusion from third persons who were the absolute owners thereof.
What has been heretofore stated and held requires a reversal of the judgment with directions to grant a new trial.
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Th.e opinion of the court was delivered by
Thiele, J.:
This appeal arises from a ruling on a demurrer to a single pleading entitled “Objections to the Petition for Final Settlement and Petition for Appointment of Special Administrator,” which was originally filed in the probate court. For convenience the pleading will be referred to as the objectors’ petition.
John West, a resident of Sheiman County, died intestate and on March 29, 1947, his nephew Ora West was duly appointed and qualified as the administrator of his estate. Notice of appointment was first published on April 3, 1947. Later he filed an inventory listing, among other assets, the following real estate: The southeast quarter of section 10, township 9, range 39, and the southeast quarter of section 39, township 9, range 39, in Sherman county, Kansas. On April 17,. 1948, the administrator filed his petition for final settlement, which the probate court set for hearing on May 15, 1948. Due notice of the hearing was given.
On May 14, 1948, John E. West and Lawrence E. West, for the benefit of themselves and all of the heirs of the decedent filed the objectors’ petition in which they alleged they were heirs of- the decedent, and that decedent at the time of his death left as a part of his estate not only the real estate described in the inventory but also five quarter sections of real estate which were not included; that the administrator had filed a petition for final settlement without full administration being had and the heirs objected to final settlement before all of the assets had been collected; that the administrator was personally interested in property belonging to the estate and adversely to the estate and was disqualified to take any further action or be continued longer in his official position of administrator; that the administrator had failed to include the five quarter sections of real estate for the reason that he and members of his family claimed adversely to the estate and that he and his children owned said real estate, following which was a detailed statement as to the tracts claimed by the administrator and each of his children by reason of deeds recorded May 7, 1947. It was then alleged that decedent had a safety deposit box in a named bank and after his death the administrator and others procured the key and found therein an envelope marked “Don’t open until after death,” and in the envelope were found deeds purporting to convey the five quarter sections to the administrator and his children; that the purported deeds were in possession and under control of the decedent at the time of his death and had never been delivered to any one of the named grantees or to anyone else for them and that the deeds were void and of no effect and did not constitute valid conveyances; that because of the above, the administrator was making no effort to have the purported deeds set aside or the lands therein described made a part of decedent’s estate, and in. that respect was failing to perform the duties and obligations required of him by law, and the objectors opposed a final settlement until it was finally determined by a court of competent jurisdiction whether or not the five quarter sections, and the rents therefrom, were a part of the decedent’s estate. 'Further allegations as to the administrator’s incapacity to perform his duties and that some other suitable, competent and qualified person should be appointed to collect all of the assets of the estate and reduce the same to possession, and for final settlement need not be further detailed. The gist of the prayer was that Ora West be dismissed and discharged as administrator for failure to fully and faithfully discharge his duties; that a special or general administrator be appointed, and that he be directed and ordered to bring actions to set aside the deeds above mentioned and do all other things requisite and proper to recover the assets of the estate.
On May 15, 1948, and on the day set for the hearing of the petition for final settlement of Ora West as administrator and at a time when he was present, the objectors’ petition above outlined was heard and denied in the probate court, following which the objectors perfected their appeal to the district court. In the district court, Ora West, as administrator, moved the court for a dismissal of the appeal, and that motion being denied, the administrator attempted to appeal to this court. We dismissed that appeal for the reason the overruling by the district court of a motion to dismiss an appeal from the probate court was not a final order. See In re Estate of West, 167 Kan. 94, 204 P. 2d 729.
Thereafter, in the district court, the administrator filed his demurrer to the objectors’ petition on five grounds: (1) That the district court had no jurisdiction of the subject matter. (2) That facts sufficient to state a defense to the petition for final settlement were not stated. (3) That the petition for appoinment of a special administrator did not state sufficient grounds therefor. (4) That the objections stated are in the form of a claim and are barred by the nonclaim statutes. (5) That no notice of the hearing of the petition was ever given to the persons entitled. This demurrer was heard and denied, and from that ruling the administrator has appealed to this court, where the questions involved are stated as in the demurrer.
In his brief appellant discusses grounds 1, 2 and 4 together. Directing attention to the fact that he was appointed administrator on March 29, 1947, and that he gave notice of his appointment on April 3, 1947, he argues that the objectors’ petition constituted a claim against the estate and not having been filed within nine months, it was barred by reason of G. S. 1947 Supp. 59-2239.
In support of his contention that the statute of nonclaim has run, appellant directs our attention to the fiye cases next mentioned. In Felton v. Rubow, 163 Kan. 82, 179 P. 2d 935, administration had been commenced on the estate of Rubow in the probate court, the inventory filed listing no real estate. Ignoring the probate court, the daughter brought an action in the district court for partition of real estate allegedly belonging to the decedent. The district court held it was without jurisdiction and dismissed the action, and on appeal to this court the ruling was affirmed. In that case it was said that 'if anyone thinks property has been omitted from the inventory he may file a petition for disclosure (G. S. 1947 Supp. 59-2216) and have a hearing thereon. Reference to the statute mentioned will show no limitation of time when such a petition may be filed.
In Houdashelt v. Sweet, 163 Kan. 97, 180 P. 2d 604, it appeared that Asbery Houdashelt died, that an administrator was appointed for his estate, who filed an inventory listing no real estate, and that subsequently the estate was closed. Thereafter certain heirs brought an action in the district court against another heir to set aside a deed made by the decedent, for reasons set forth in the opinion, and to have partition of the real estate. The defendant’s demurrer challenging the jurisdiction was sustained and on appeal that ruling was affirmed. Appellant here says that the facts of that case are very similar to those presently involved. The similarity is more apparent than real, for in the case before us the estate had not been closed and the proceeding was in the probate court and not by independent action in the district court. In that case it was said that before the plaintiffs could acquire a part of the land, they had to dispose of the deed, and that the probate court had exclusive jurisdiction to determine the validity of any contention that was necessary to make a just and proper distribution of the decedent’s estate except where the probate code expressly provides otherwise, and that the case was not one in which an heir might by mere operation of law and without action on his part acquire his distributive share under the law of intestate succession, in which case there would be no need of filing a claim or demand, but was one where the plaintiffs were obliged to set aside the deed to land which was an asset of the decedent’s estate before they could hope to be decreed distributive shares as heirs at law. That case involved no question of the non-claim provision of the probate code.
In In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879, the action was instituted in the district court by an executor to compel specific performance of a contract for the sale of real estate and division of the proceeds from the sale. Defendants contended that since the contract involved title to real estate, the proceeding should have been commenced in the probate court, a contention denied in the trial court and on the appeal by this court. In that opinion is an exhaustive review of our decisions dealing with a general classification of cases wherein the effort was to get something out of the estate and of cases where an administrator or executor sought to bring property into the estate, and reference is made thereto. It was held the action was of the latter class. There was no question as to the nonclaim provision of the probate code.
In Gebers v. Marquart, 166 Kan. 604, 203 P. 2d 125, the plaintiff commenced an action in the district court to set aside deeds executed by a decedent to his daughter in his lifetime, and for partition of the involved real estate. Defendants’ demurrer, that the court was without jurisdiction, was sustained and on appeal to this court the ruling was affirmed, it being held that:
“An action by some of the heirs at law of a deceased person to set aside a deed from the decedent to another of his heirs at law which conveyed a fee simple title to the grantee therein named is tantamount to a claim or demand to a portion of such decedent’s estate and as such must be filed in the probate court within the time specified in G. S. 1947 Supp. 59-2239.” (Syl. 112.)
It is noted, however, that by reason of the action’s having been filed in the wrong court there was no question as to the nonclaim provision of the probate code.
Appellant also makes a reference to Hoppas v. Bowman, 167 Kan. 761, 207 P. 2d 950, but does not point out wherein he believes it decisive here. The action there was one commenced in the district court by the guardian of the grantor and against the heirs of the deceased grantee, to cancel a deed and to quiet title in the plaintiff. The answer alleged administration had been had on the estate of the deceased grantee and that no claim had been made against his estate and was then barred and that the district court was without jurisdiction to determine the plaintiff’s claim. The district court ruled it was without jurisdiction and on appeal this court affirmed. That opinion is not presently in point on any question of nonclaim.
Neither party directs attention to Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010, although it covers another phase of the matters discussed in the cases relied on by the appellant. In that case the action was one to enforce a trust relating to real estate. The defendants filed a motion to dismiss for the reason the district court had no jurisdiction of the subject matter. That motion, treated as a demurrer, was denied and upon appeal this court reversed with instructions to dismiss. Reference is made to the opinion for details, but it was alleged in substance that May Wright, then in an enfeebled condition, and under circumtances amounting to a confidential relation, was induced by their representations to convey real estate to the defendants, who held the same in trust for her or her heirs at law after her death. This court said that since the parent case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, this court, in interpreting the probate code enacted in 1939, has held that probate courts have exclusive original jurisdiction over all matters incident and ancillary to the settlement of estates of deceased persons except where such code otherwise expressly provides, and that any attempt to bring back into an estate lands which had been conveyed by a decedent in his lifetime and of which he was not in possession at the date of his death, must be initiated in the probate court. Not because it is decisive, but because of analogies to be drawn therefrom, we note the following statement from the opinion:
“It is true that in some of our decisions (e. g., Houdashelt v. Sweet, 163 Kan. 97, 180 P. 2d 604, and Gebers v. Marquart, 166 Kan. 604, 203 P. 2d 125), in order to uphold the purposes of the probate code and plain legislative intent in its enactment to unify administration and expedite the closing of estates, we have held that an action by heirs-at-law to set aside a deed, containing no limitations or restrictions, from a decedent to another of his heirs-at-law on grounds of fraud, where that instrument has been placed of record and the claiming heirs knew or in law were bound to know of the conveyance, is tantamount to a claim or demand to a portion of the decedent’s estate and must be filed in the probate court within the time specified in the nonclaim section of the code (G. S. 1947 Supp. 59-2239). Even so, the decisions above cited, and others not mentioned but susceptible of the same construction, do not go to the extent or have the force and effect indicated by appellees. In the interest of clarity we feel impelled to point out that none of them goes so far as to hold, that where assets of an estate with or without administration and absent knowledge express or implied on the part of heirs-at-law, have been fraudulently concealed and secreted or for any other reason have escaped administration because not known to be a part of the assets of an estate, there cannot be an opening up of administration proceedings in an estate that has been administered and closed or administration of an estate on which there has been no administration at all to the end that all assets thereof can be ascertained and determined. This notwithstanding there has been no administration of the involved decedent’s estate within one year after the date of his death.” (l. c. 302.)
We think it clear under the above decisions that the objectors’ petition was.properly filed in the estate proceedings pending in the probate court and, ignoring for the moment ground 3 of the demurrer which will be discussed later, that in view of the appeal the district court had jurisdiction of the subject matter. We think it clear also that, subject to whether or not the objectors’ petition constituted a claim which was barred, and which is next discussed, the objectors’ petition stated facts sufficient to constitute a defense to the petition for a final settlement. The question remaining for discussion is whether the objectors’ petition constituted a claim against the estate which was barred by th'e statute of nonclaim (G. S. 1947 Supp. 59-2239). In presenting this last question, appellant treats the objectors’ petition as though the only purpose was to present an issue as to whether the five quarter sections of land were part and parcel of the decedent’s estate and whether the assertion by the petitioners that they were, constituted a claim that must have been presented within nine months from the date of the publication of notice to creditors. Without discussing whether that method of division of the issue presented by the objectors’ petition is permissible, we proceed directly to an answer to the contention .as presented.
In view of the fact the objectors’ petition was attacked by demurrer, the allegations of fact therein are assumed to be true. Under those allegations certain facts exist which present a situation not discussed in any of our decisions relied on by the appellant or appellees nor disclosed by our research.
At the time of the death of the decedent he had title and possession of the five quarters of real estate involved, and at that time he had not delivered any deed to any person for any part of the real estate. Any correct inventory of his estate then made would have included the real estate. As of the date of death of the decedent no heir needed to make any assertion that he was entitled to a distributive share of the entire estate in order that he might inherit. After the decedent’s death, the administrator, having access to the decedent’s safety deposit box, found the envelope containing deeds which had never been delivered, and almost three months after decedent’s death caused the deeds to be made a matter of record. At an undisclosed date the administrator filed an inventory in which the real estate described in those deeds was not included. It is obvious that if the situation above disclosed might be said to have given rise to a “claim,” such a “claim” did not exist at the date of decedent’s death nor until after the deeds had been recorded and the inventory filed. The statutory notice of appointment of the administrator was first published on April 3, 1947. Under the statute that was a notice to the creditors to exhibit their demands within nine months (G. S. 1947 Supp. 59-2236). At the time of this publication the appellees were not creditors in any sense of the term nor does the record disclose they had any demand of any kind or character against the estate.
Appellant argues however that what appellees now seek is to have the real estate included in the assets of the estate in order that they may share in the distribution thereof and that the effect is a claim or demand which was not timely asserted. Appellees argue, in effect, that what they seek and are entitled to have, is a full and complete administration of the estate; that until all of the assets are collected, there can be no final settlement, and that although the effect if they prevail may increase their share of the estate, they are seeking to bring something into the estate. There may be good reason for holding that had the decedent conveyed the real estate in his lifetime to a grantee who had placed his deed of record, any person otherwise entitled to inherit and contending that the deed was fraudulent or void must make timely assertion in the probate court in the decedent’s estate or be barred, a question not presently before us, but that reason ought not and will not be recognized as applying to the facts of the instant case. In our opinion, limited to the contention being discussed, the purpose of the objectors’ petition was to bring assets of the estate, concededly a part of the estate on the death of the decedent, into possession and for administration, and is not to be denominated as a claim or demand which must be asserted within nine months as provided in the nonclaim statute. • Although it has been stated in some of our decisions that an object of the probate code is to provide for a speedy determination of the assets and liabilities of an estate so that it may be settled and a distribution made to the beneficiaries, it is of primary importance that all of the assets be collected and reduced to possession for such distribution and a contention by a beneficiary that all assets have not been collected ought not to be held barred in the absence of a specific statutory provision to that effect.
Another reason for holding the objectors’ petition as not too late is the language of the probate code providing for final settlement. Under G. S. 1947 Supp. 59-2247 the administrator must file his petition for final settlement which shall contain: “(1) A statement of the account;” and “(3) a description of the real estate and the interest of the decedent therein at the time of his death.” Under 59-2249 on the hearing of that petition the administrator may be examined relative to the account and the distribution of the estate, an indication there is no finality as to all matters simply because nine months have passed since publication of notice of appointment of the administrator.
Furthermore, it may be questioned whether an administrator charged with dereliction of his official duty, may raise the statutes of limitation of action where the effort is to inquire into that dereliction. That question is not briefed and will not be discussed.
With reference to ground 3 of the demurrer, we are of the opinion however that the objectors’ petition of the appellees goes further than a mere effort to bring assets into the estate. It clearly appears that objection is made to final settlement for the reason the administrator was remiss in his duty and, because of his personal interest as a grantee in one of the deeds, has failed to institute an action in the proper court to have all of the unlawfully delivered deeds de dared void and of no effect. Appellees are entitled to be heard on the issue thus presented.
Under ground 5 of his demurrer appellant contends that under G. S. 1947 Supp. 59-2401 there could be no appeal to the district court from the order of the probate court. That section of the statute provides for appeals to the district court from “ (2) An order appointing, or refusing to appoint, or removing or refusing to remove, a fiduciary other than a special administrator” (emphasis supplied). Appellant stresses a part of the prayer for appointment of a special administrator, and urges that no appeal may be taken from the order of the probate court. The allegations of the objectors’ petition are for discharge and removal of the administrator and for appointment of a “special or general administrator” and the prayer is to that effect. If the present administrator should be discharged by the probate court for dereliction of duty, his successor would be a general and not a special administrator. Such an order would be appealable. It would likewise be appealable if the relief sought were denied. The contention cannot be sustained.
A further contention of the appellant is that no appeal lay from the order of the probate court to the district court for the reason the record does not disclose that notice was given to the administrator of the hearing of the objectors’ petition. We shall not discuss this complaint at length, nor whether any notice was required. The objectors’ petition was heard on the day fixed for the hearing of the final settlement, and the record discloses that the administrator was present. If he made any objection the record does not disclose it. If it be assumed that any notice to the administrator was necessary, it was only to advise him to be present. He was present. The contention is not good.
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The opinion of the court was delivered by
Wedell, J.:
The original opinion is reported in 169 Kan. 41, 216 P. 2d 812. The parties, the nature of the action, the pleadings, findings of fact made and the judgment of the trial court are all set forth in the original opinion and are made a part hereof without restatement.
A few preliminary statements, however, may be helpful. The appellant Marshall filed his original action December 4, 1947, and had the instant airplane attached as the property of L. F. Bardin and Joseph Slager, partners doing business as Central Airpart Company. On January 4, 1949, appellant made Central Airparts, Inc., an Ohio corporation, an additional party defendant and had a second attachment issued on that date. Appellant admits the latter defendant, the corporation, and not the partnership was and is the registered title owner of the airplane. It follows appellant reached nothing as a result of the first attachment. Approximately eight months before the second attachment issued against the corporation the intervenor, Anderson, filed a verified amended interplea. (For interplea see original opinion.) Neither the defendant partnership nor the corporation made an appearance in the case. The action was tried solely on issues joined by the appellant, an attaching creditor, who sought to satisfy his claim against the defendant corporation for repairs made on other airplanes and appellee, the intervenor, who claimed to have acquired title to the instant airplane under an oral agreement with the defendant corporation that intervenor could have the plane if he would pay a claim for labor performed and materials furnished in the repair of the instant airplane by a Mississippi concern, the owner corporation believing the repair bill was highly exorbitant.
On the testimony adduced on the trial the court found the allegations contained in intervenor’s interplea were true. The trial court also expressly found the intervenor was the owner and in possession of the airplane on the dates of both attachments.
On his motion for rehearing appellant reiterates his contention there was no evidence he had actual notice of intervenor’s claim of title prior to the attachments. Touching the factual issues we previously said:
“The parties argue about where the burden of proof rested. That is not very material in this ease now. Much depended on what witnesses the trial judge believed and on what weight he attached to their testimony. If he believed appellee’s witnesses, and an examination of the record indicates he must have, this court cannot say the proof was insufficient to sustain the findings made.” (p. 44.)
We also might have said the district court, in order to reach its decision, could have placed little, if any, credence on material portions of evidence adduced by and on behalf of appellant. What credence the trial court should have given the testimony was a matter which rested in its province, a field we do not invade. We, therefore, adhere to our former opinion with respect to the facts.
Appellant leans heavily on Penrose v. Cooper, 88 Kan. 210, 128 Pac. 362, and other similar cases in which there was no substantial conflict in material portions of the evidence and in which only a question of law on the undisputed evidence was involved. Such cases are not in point. Here the material evidence was highly conflicting. In rendering our former decision we believed the court’s findings settled the issues in this case and so stated. Appellant thought otherwise.
Our real purpose in granting a rehearing was to permit the parties to give us additional assistance, if possible, relative to the question whether actual notice to appellant, an attaching creditor, of intervenor’s claim of title prior to the attachments enabled appellant to obtain possession of the attached airplane free and clear of intervenor’s interest, under the provision of the Civil Aeronautics Act. 49 U. S. C. A. § 523 (c) (Pocket part) provides:
“No conveyance the recording of which is provided for by subsection (a) (1) of this section made on or after August 22, 1938, and no instrument the recording of which is provided for by subsection (a) (2) of this section or subsection (a) (3) of this section made on or after June 19, 1948, shall be valid in respect of such aircraft, aircraft engine or engines, propellers, appliances, or spare parts against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administrator. For the purposes of this subsection, such conveyance or other instrument shall take effect from the time and date of its filing for recordation, and not from the time and date of its execution.” (Our italics.)
Appellant relies on the following cases decided since the Civil Aeronautics Act became effective: Wilson v. Barnes, 359 Mo. 352, 221 S. W. 2d 731; In re Veterans’ Air Express Co., 76 F. Supp. 684; United States v. United Aircraft Corporation, 80 F. Supp. 52; Blalock v. Brown, 78 Ga. App. 537, 51 S. E. 2d 610, and on prior decisions rendered under R. S. 1873, § 4192, now 46 U. S. G. A. § 921, of the Federal Ship Mortgage Act. Cases under that act relied on by appellant are: Hitchings v. Olsen, 184 Fed. 305; Secrist v. The German Ins. Co., 19 Ohio St. 476; Dize v. Beacham, 81 Md. 603, 32 A. 243.
Appellee contends none of the cases cited by appellant is controlling under the particular facts of this case. He admits he has found none squarely in point under the Civil Aeronautics Act but contends the question has been determined under the Federal Ship Mortgage Act. The parties concede it has been held the provision of the statute here involved is almost identical under the two acts. (Blalock v. Brown, supra, p. 615.) Appellee relies on Bank v. Williams, 94 La. 418; Hobbs, et al. v. Interchange, 1 W. Va. 57; Moore v. Simonds, 100 U. S. 145, 25 L. ed. 590.
Appellee also relies on the established doctrine an attaching creditor acquires no greater right in the property seized than the defendant debtor in the attachment owned. (Julian v. Oil Co., 83 Kan. 440, 111 Pac. 445; Federal Trust Co. v. Ireland, 132 Kan. 615, 296 Pac. 704; Howard v. Howard, 149 Kan. 223, 86 P. 2d 510.)
Appellant rests his case primarily on the factual basis he had no actual notice of intervenor’s claim of title prior to the attachments and the purported sale to intervenor was void. If the factual basis on which appellant rests his case were in his favor the cases he cites would be in point. Unfortunately for him, as previously stated, there was evidence he had actual notice of intervenor’s claim of title prior to both attachments. As previously indicated, however, the last attachment is the only one of any consequence now.
Appellant argues the trial court did not find he had actual notice of intervenor’s claim prior to the attachments. We think the findings of the court that the allegations of the interplea were true and that intervenor was the owner in possession of the airplane at the time of the attachments covered that issue.
A careful examination of the cases cited by the parties and our own research has disclosed no case squarely in point. A review of the cases cited, in our opinion, does disclose it was the intent and purpose of the Congress in enacting the Civil Aeronautics Act to require the recording of conveyances affecting title to airplanes as directed in the act in order to protect persons who have dealt on the faith of the recorded title. We have found no better statement of the purpose of the recording provision than is contained in the early case of Bank v. Williams, supra, where it was said concerning the Federal Ship Mortgage Act:
“On the other hand, we are referred to sundry decisions, Federal and State, which strongly intimate that the object and effect of the statute are simply to protect persons who have dealt on the faith of the recorded title, and as to whom it would he a fraud to give effect to unrecorded titles to their detriment.” (Our italics.) (p. 422.) '
It is well to bear in mind appellant was not a purchaser of this, aircraft for value on the strength of the record title. He had acquired no mortgage or other lien on the aircraft in question. The indebtedness of the defendant corporation did not arise out of any dealings appellant had with it in connection with work on this particular airplane. The failure of intervenor to have his title recorded did not defraud or mislead appellant in his dealings with the defendant corporation out of which its debt to appellant arose. That debt arose out of work appellant had done on other planes of the defendant corporation. Appellant merely had an attachment levied on this airplane which he might have procured on a truck, automobile, office furniture or any other property of the defendant corporation subject to attachment for the purpose of satisfying the unpaid claim he had against it.
It is true the defendant corporation did not deliver its bill of sale to intervenor. All his pilot obtained when he delivered intervenor’s cashier's check to the concern in Mississippi which had done work on this particular plane were the papers disclosing the plane was properly registered in the name of the defendant corporation. It is true that not having received a bill of sale from the defendant corporation the sale was not actually completed. Intervenor, however, had paid the claim against the airplane and had it in his possession until it was first attached approximately a month and a half later. There was an implied contract upon the part of the defendant corporation to deliver to intervenor a good record title as required by the Civil Aeronautics Act. (Parsons Company v. Hall, 319 Mich. 240, 244, 29 N. W. 2d 676.) Of course, until intervenor received a bill of sale he could not record it. Intervenor could not lawfully operate the aircraft until a conveyance was delivered to him and was registered in his name. (In re Veterans’ Air Express Co., supra, p. 686; Parsons Company v. Hall, supra, p. 245,) To say that intervenor, under these circumstances, is to be deprived of his rights in the aircraft to an attaching creditor does not seem fair or logical. Nor does it appear to us to be in harmony with the intent and purpose of the Civil Aeronautics Act.
Manifestly the defendant corporation, appellant’s debtor, could not have acquired possession of the airplane from intervenor without at least first reimbursing him for the $3,057.53 ,he had paid to discharge the defendant corporation’s debt for repairs on the plane, a debt which otherwise would have ripened into a perfected lien. Appellant’s rights as an attachment creditor were not superior to those of the defendant corporation, appellant’s debtor. In Bank v. Williams, supra, involving the Federal Ship Mortgage Act it was said:
“It is claimed, however, that, as attaching creditors, they have acquired rights superior to those of their debtor, and can maintain his title though he himself could not.
“This is contrary to the general principles of attachment, which gives to the attaching creditor no higher or better right than his debtor had to the property attached. [Citations.]
“ ‘It takes effect only on such interest as the debtor has in the property at the time of the levy, and does not per se affect the title at all.’ 1st Am, Encyc. of Law, p. 930.” (p. 422.)
In Julian v. Oil Co., supra, this court said:
“An attachment creditor acquires no greater right in the property seized than the defendant in the attachment owned. (N. W. Forwarding Co. v. Mahaffey, Slutz, & Co., 36 Kan. 152; Bank v. Fleming, 63 Kan. 139. See, also, Johnson v. Brant, 38 Kan. 754.) The attachment bound the interest of the defendant only, whether that interest was shown by the record or not. The attaching creditor is not a purchaser for value buying upon the strength of a record title. (Markley v. Investment Co., 67 Kan. 535.)” (p. 440, 441.)
To the same effect are Federal Trust Co. v. Ireland, supra, and Howard v. Howard, supra. This principle is in harmony with the general doctrine.
In 5 Am. Jur., Attachment and Garnishment, § 820, it is said:
“The general rule is that an attachment or garnishment is binding upon the attached or garnished property to the extent. of the defendant’s interest in the same, but not to any greater extent. Consequently, it does not generally have the full effect of a bona fide assignment for value. An attaching or garnishing creditor does not stand in the position of a bona fide purchaser for value, and the attachment lien does not displace prior equities or rights, but is subject to all equities to which the property was liable in the debtor’s hands, and therefore, if a debtor has done any act or entered into any agreement which precludes him from asserting an equity that he once had, his creditor will likewise be precluded. It is the duty of the courts to protect every equity belonging to other persons.”
Even though' the defendant corporation delivered no bill of sale to intervernor the equitable title, as between those parties, vested in intervenor. Under such circumstances appellant, as an attaching creditor, could not oppose the equitable title which was valid against his debtor. (Bank v. Williams, supra, a decision under the Federal Ship Mortgage Act.) See, also, Hobbs, et al. v. Interchange, supra, and Moore v. Simonds, supra.
We think the judgment must be affirmed. The original opinion is adhered to. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal by defendant, State Highway Commission, from an order overruling its demurrer to the amended petition in an action to recover damages for personal injuries alleged to have been sustained as a result of a defective condition in a state highway.
The demurrer was based on two grounds:
“(1) That the plaintiff has no legal capacity to sue or maintain this action;
“(2) That the petition of the plaintiff filed herein does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant herein.”
The amended petition alleges:
“Comes now Doradeen Perry, an incompetent, plaintiff above named, by Alva B. Berry, her father and next friend, and for her cause of action against the above-named defendant, alleges and says:
“1. That as a result of injuries sustained as hereinafter alleged, the said Doradeen Perry, plaintiff herein, is incompetent and incapable of managing her affairs; that the incompetency of the said Doradeen Perry has not been adjudged and no legal guardian for her has been appointed; that Alva B. Perry is the father and next friend of the said Doradeen Perry and as such brings this action for and on behalf of the said Doradeen Perry, and for her benefit.
"... and plaintiff has been rendered a mental incompetent, and totally incapacitated physically; that said injuries and the resulting afflictions are permanent and said plaintiff will require constant and continuous medical and nursing care for the rest of her life.”
Defendant Commission contends that this action, being brought under and by virtue of the provisions of G. S. 1935, 68-419, is strictly a statutory proceeding; that the express provisions of the statute cannot be enlarged or diminished; that only those persons enumerated therein can maintain such an action, and that it does not contemplate an action being brought by a “next friend.”
The pertinent portions of the statute are:
“Any person who shall without contributing negligence on his part sustain damage by reason of any . . . defect in a state highway, . . . may recover such damages from the state of Kansas; . . .”
Counsel for defendant Commission have furnished us with an extensive brief in which are cited many cases dealing with remedies created by statute, the distinction between common law remedies and those of statutory origin, and the strict construction to be given the latter. No good purpose would be served by taking up and discussing them in detail. All have been examined and we concede the rules therein announced to be the law under the facts and circumstances of the particular cases to which they are applied.
But the question before us is whether a person in the status of the injured party here, as alleged in the amended petition, can maintain this action by her “next friend.”
We believe that counsel for defendant Commission have failed to differentiate between remedy and procedure. It is true that the right of action, that is, the remedy in this case, exists solely by reason of the statute (G. S. 1935, 68-419). It simply gives a right of action under stated conditions, but nowhere in it do we find that it attempts to make any change in the well-established procedure in this state or prescribe a separate procedure in actions of this kind. Apparently this precise question has never previously been before this court. However, our reports are not wanting in authority on the general proposition of one bringing an action by his “next friend”. In the case of Talbot v. Wulf, 122 Kan. 1, 251 Pac. 438, the action was one to recover shares of stock and was commenced by C. W. Talbot by his next friend, Mrs. C. W. Talbot. The petition alleged that C. W. Talbot was a person of unsound mind but had not been adjudged incompetent and no guardian for him had been appointed. In affirming an order overruling a demurrer to the petition on the ground plaintiff had no capacity to sue, this court in a very able opinion reviewed the statutes and earlier authorities dealing with the question and held:
“An action may be maintained by an incompetent person by a next friend, when the incompetent is not insane but is incapable of managing .his aífairá, and incompetency has not been adjudged and no guardian has been appointed.” (Syl. H 1.)
In the course of the opinion it was said:
“There is no statute which in terms forbids commencement of an action by an incompetent by his next friend, when incompetency has not been adjudged and no guardian has been appointed. Under these circumstances, the court is of the opinion the common law permitting such a person to sue by his next friend has not been abrogated.” (p.2.)
Counsel for both parties to this action rely on the decision in that case, but we think it is authority for plaintiff’s position rather than defendant Commission’s. The real gist of that holding is that in the absence of a statute abrogating the common law right of an incompetent to sue by next friend when incompetency has not been adjudged, the right exists in this state without regard to the character of the remedy sought. Certainly the statute (G. S. 1935, 68-419) does not abrogate the right and neither do we find any other statute which does.
And there is still a further reason why we think the action may be so maintained. The code (G. S. 1935, 60-401) provides that every action must be prosecuted in the name of the real party in interest (with certain exceptions not here material). The statute here involved (G. S. 1935, 68-419) provides that:
“Any person who shall . . . sustain damage . . . may recover such damages from the state of Kansas; . . .”
The plaintiff here is Doradeen Perry, the injured party, and it is she, not her father and next friend, who is really bringing the action. She is the real party in interest and not her father.
“Moreover, it will be presumed, wherever suit by a next friend has been instituted, that such consent to the bringing of the suit as the alleged incompetent is capable of giving has been given, and that it is in fact his suit.” (28 Am. Jur., Insane and Other Incompetent Persons, § 104, p. 738.)
“A suit brought by a next friend is substantially that of the insane person.” (44 C. J. S., Insane Persons, § 144, p. 311.)
(See, also, Prosser v. Prosser, 159 Kan. 651, 157 P. 2d 544.)
We hold that the action is properly .maintainable in the manner in which it was brought.
With respect to the second ground of the demurrer, that the amended petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant Commission, the argument of counsel is that the allegations do not show the highway to be defective within the meaning of the statute; that they do not show that such alleged defect was the proximate cause of the injury, and that it affirmatively appears that both plaintiff and the driver of the car in which plaintiff was riding as a passenger were guilty of contributory negligence which was the proximate cause of the injury.
Rather than attempt to summarize the allegations of the amended petition in this respect we set them out in full, and they are as follows:
“4. That a part of said highway between the said cities of Greensburg and Kinsley runs from east to west and along the north side of Section 13, Township 26 South, Range 19, in Edwards county, Kansas, and is improved with bituminous surface approximately 18 feet in width which is divided into two lanes of traffic by a white center line; that said part of said highway is not level but traverses a rolling terrain. That in a valley, commencing about four-tenths of a mile east of the northwest corner of said section 13 and for about 250 feet west, said highway was, on July 17, 1948, and since about the first day of March, 1948, had been in a defective and dangerous condition in the following particulars, to wit: that proximately four-tenths of a mile east from the northwest corner of said section 13 and'about six feet north of said center line there was a hole in the bituminous surface of said highway approximately two feet wide, three feet long and eight to ten inches deep; that immediately to the west of said hole there were hundreds of holes ranging in area from one to four square feet each, and in depth from three to six inches each; that said holes were from two to three feet apart and covered the north five to six feet of said bituminous surface for about 300 feet-west from the hole first above mentioned and described; that opposite from said area and on the south side of said bituminous surface, the south five to six feet of said bituminous surface was full of holes of approximately like number, size, depth and distribution as those on the north side of said highway and extended for a like distance of about 300 feet, all of which rendered said highway dangerous for the public traveling over the same; that there were no lights, reflectors, signals or warning signs whatsoever at or near the holes above mentioned to warn users of said highway of the defective and dangerous condition thereof.
“6. That on the 17th day of July, 1948, in the nighttime and about 10:00 o’clock p. M., of said day, said plaintiff was riding in a Ford tudor sedan automobile on said highway 183 en route from Greensburg, Kansas, to Kinsley, Kansas; that said plaintiff was riding in the front seat and on the right-hand side thereof; that said automobile was driven by one Nina Finlay and was owned by one P. E. Holland; that said automobile was equipped with two lawful headlamps which were lighted; that because of the inherent character of the defects in said highway as hereinbefore described and alleged, said defects were extremely difficult to see and could not in the exercise of due diligence be seen or discovered by the driver of said Ford automobile or by said plaintiff until they were immediately upon the same, notwithstanding said lawful headlamps; that said automobile was being driven from east to west and on the right-hand side, or north lane of said highway and at a speed of approximately 35 to 40 miles per hour, and that when said automobile, driven as aforesaid, reached a point in said highway approximately four-tenths of a mile east from the northwest comer of said section 13, township 26 south, range 19, in Edwards county, Kansas, the right front wheel of said automobile struck and dropped into the hole in said highway hereinbefore described as being about six feet north of the center line of said highway and as being about two feet wide and three feet long and from eight to ten inches in depth, and this was instantly followed by the right rear wheel striking said hole and by said automobile striking other holes hereinbefore mentioned and described, immediately to the west thereof, causing said driver to be jostled severely in said car and to lose control of said automobile and said automobile to overturn and said plaintiff to be violently thrown out of the same, as the result of which said plaintiff sustained the following severe, lasting and painful injuries, to wit: :
. . and that said damages were proximately caused by said defective highway as hereinbefore alleged.”
Cases involving actions for damages on account of 'alleged defective highways have been before this court many times since the enactment of the statute (G. S. 1935, 68-419). Our reports contain numerous decisions having to do with various types of alleged defects. In some the conditions have been held to be defects within the meaning of the statute — in others not. Nothing would be added to the body of our law on the subject by a detailed discussion and analysis of those decisions. They are cited in the annotations under the statute number in G. S. 1935 and G. S. 1947 Supp. In passing on demurrers to petitions in actions such as this, appellate courts should be careful to refrain from saying anything which would in any way tend to prejudice either of the parties in the trial of the-case. Here, however, defendant Commission asks us to hold that as a matter of law the allegations of the amended petition do not allege a defective condition in the highway, within the meaning of the statute, which was the proximate cause of the injury, and, further, that the allegations affirmatively show contributory negligence on the part of plaintiff and the driver of the car in which she was riding as a passenger. That we cannot do. What the proof may show on the trial of this case is another matter, but we have no difficulty in agreeing with the lower court that the allegations of the amended petition state a cause of action within the purview of the statute.
The demurrer to the amended petition was properly overruled and the judgment of the lower court 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 the city officials of Wichita to accept and examine petitions under G. S. 1935, 12-107, calling for adoption of or a referendum upon a proposed ordinance repealing two resolutions adopted by the city of Wichita on August 14, 1945, and a third resolution adopted on April 22, 1947, all pertaining to flood control works in the city of Wichita and for incidental relief.
In a preliminary way it may be said that prior to 1943 United States army engineers had made a study of flood control problems in Sedgwick county, including the city of Wichita, resulting in two plans. After conferences which need not be noted, the city of Wichita and Sedgwick county agreed upon the plan referred to at times as the Big Ditch or Army Plan, and for the performance of flood control work thereunder within the city by the city of Wichita, and without the city by Sedgwick county. Under date of August 14, 1945, the governing body of the city of Wichita adopted resolutions to proceed under the above plan and to make the commitments authorized by Laws 1945, chapter 391, which as amended appear as G. S. 1947 Supp., chapter 19, article 33. After some further negotiations, the city adopted its resolution of April 22, 1947, which reiterated and affirmed its former action. Under date of June 22, 1948, the governing body of the city enacted its ordinance No. 15-270 which declared the work to be a public necessity, found the improvement to be for the general benefit of the city and directed issuance of bonds to pay the costs to be borne by the city. The county had meanwhile adopted requisite resolutions and made commitments for performance of the project outside the city. Shortly thereafter the city, as well as the county, issued temporary notes to pay costs and submitted them to the state auditor for registration, which was denied, and mandamus actions were commenced in this court by the city and by the county, the principal question being the constitutionality of G. S. 1947 Supp., chapter 19, article 33, under which the flood control projects were being performed. Constitutionality was upheld in an opinion filed November 13, 1948, and reported in Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P. 2d 530. An appeal to the Supreme Court of the United States was dismissed on April 25, 1949, for want of a substantial federal question. On May 24,1949, the state on the relation of the county attorney of Sedgwick county commenced an action in this court against the governing body of the city to compel a referendum on repealing Ordinance No. 15-270 above mentioned. This court held that ordinance to be administrative and not legislative in character and therefore not subject to referendum under G. S. 1935, 12-107, the opinion being filed July 9, 1949, and appearing as State, ex rel., v. Salome, 167 Kan. 766, 208 P. 2d 198. In that opinion may be found copies of the two resolutions of August 14, 1945, which are involved in the action now before us and reference is made thereto. Thereafter on October 5,1949, another action was commenced in this court by the state on the relation of the county attorney of Sedgwick county to compel a referendum on the question of repeal of the above mentioned resolutions of August 14, 1945, and April 22, 1947. This action was dismissed on October 19, 1949, as being prematurely instituted. On December 8, 1949, the state on the relation of the attorney general commenced the present action in this court. It is rather clear from all the litigation mentioned and from the arguments made from time to time that the controversy is not so much whether there be a flood control project, but what plan should be followed.
It is not necessary that we set forth in detail the allegations of the petition. For our purposes the petition alleged the adoption of the resolutions of August 14, 1945, and of April 22,1947, heretofore mentioned and that eighty-five petitions signed by qualified electors of the city, requesting the adoption of an ordinance repealing and rescinding the three resolutions, were filed with the city clerk on October 3, 1948, in pursuance of G. S. 1935, 12-107; that the petitions were signed by 6,575 qualified electors which number exceeds twenty-five percent of the entire vote cast for all candidates for commissioner at the last general municipal election; that it became the duty of the defendant commissioners to require the city clerk to certify as to the sufficiency of the petitions, and if the petitions contained 6,102 signatures of qualified electors, it then became the duty of the city commissioners to pass the proposed ordinance without alteration within twenty days or to call a special election; that the city commissioners met October 4, 1949, in regular session and notwithstanding the filing of the petitions ignored the duties imposed on them by the above statute. Then follow allegations concerning the second action of State, ex rel., v. Salome, previously referred to, an attempt to file additional petitions on October 18, 1949, on which date the city clerk certified to the city commissioners that the petitions were numerically insufficient; then follow allegations concerning the tender of additional petitions, the refusal of the city clerk to receive them, the failure of the city commissioners to refer the petitions to the city clerk; the studied efforts of the city commissioners to prevent a vote on the proposed ordinance, and other allegations which include requests for declaratory judgments as to filing additional petitions and as to identification of signers with the registration lists will be referred to later if necessary. The prayer is that the city commissioners be ordered to direct the city clerk to accept and examine all of the petitions submitted and certify whether they are sufficient and contain the names of 6,102 qualified electors, and to issue his certificate as required by G. S. 1935,12-107, and if the clerk shall issue his certificate of sufficiency that the city commissioners pass the proposed ordinance or cause an election to be called as provided by law. Other portions of the prayer will not be noticed here.
The title of the proposed ordinance is “An Ordinance Relating to Flood Control, Repealing and Rescinding,” three resolutions later mentioned, and the gist of the ordinance is that the board of commissioners of the city now determines that the city should not be subjected to the “onerous, expensive, wasteful, unnecessary and immaterial Big Ditch or Army Plan” of so-called flood control which would take about 6,500 acres of valuable land out of production and entail future damage actions, and that the board sees fit to refuse to proceed with any and all contracts involving flood control, sees fit to refuse to proceed with any and all contracts it may have entered into under and by virtue of G. S. 1947 Supp. 19-3301 to 19-3307, preferring to answer in damages, if any, for any resulting loss to the other party to any such contract, rather than to carry out a course which it now determines not to be for the best interest of the city and which it now determines would be much more expensive than any damages which might be assessed against it, not admitting by such action the federal government, or any person, corporation or governmental unit will sustain any damage, and by other sections states each of the resolutions of August 15, 1945, and of April 22, 1947, previously mentioned, are to be “repealed, set aside and held, for naught.”
The answer of the defendants made admissions not necessary to set forth, alleged that the city clerk prior to October 17, 1949, compared 1,649 of the signatures on the petitions filed on October 4, 1949, with the registration records and found that 709 were not signatures of qualified electors and since the remaining 5,864 signatures on the petitions were numerically insufficient on any theory to constitute twenty-five percent of the entire vote cast at the preceding general municipal election the city clerk executed his certificate to that effect and delivered it on October 17, 1949, to the mayor; that on October 18,1949, further petitions were tendered the city clerk who refused to accept the same for the reason he had previously executed and delivered his certificate of insufficiency and by reason thereof the petitions filed October 4, 1949, had become functus officio and the petitions filed October 18, 1949, were obviously insufficient as original petitions. We note also allegations that the petitions tendered on November 19,1949, were accompanied by a letter demanding that they be filed as supplemental petitions; that the city clerk refused such a demand and offered to file them as original petitions and that they were not so filed. Other allegations concerning the petitions will not be here noticed. It was further alleged that in State, ex rel., v. Salome, supra, it was adjudicated that by the acceptance by the United States of America on February 25, 1946, the resolutions of August 14, 1945, became a contract between the city and the United States and that when the resolutions ripened into a contract on February 25,1946, they ceased to be legislative in character and ceased to be subject to the provisions of G. S. 1935, 12-107, the referendum act; that on March 22, .1948, in reliance upon the contract between the city and the United States of America, the board of county commissioners of Sedgwick county by resolution duly adopted agreed that as to a portion of the project the board would-make the statutory commitments under G. S. 1947 Supp. 19-3301, et seq., and that thereafter and on March 30, 1948, the board of commissioners of the city adopted a further resolution of commitment, the details of which need not be set forth, and that pursuant to those commitments the city and the county had each expended thousands of dollars for engineering work, surveys, legal expenses and the acquisition of easements and rights of way for the flood control project, and that if the city of Wichita be permitted to repudiate the contracts by the proposed initiative ordinance all expenditures made by the city, county and the United States of America will be completely lost, and injury and damage would be sustained by the county and the United States of America; that the proposed initiative ordinance is illegal and void as a violation of article 1, section 10, of the Constitution of the United States of America as impairing the obligation of a contract, and in no event could the contract be altered, invalidated or nullified in any proceeding to which the United States of America is not a party. After alleging dates when the resolutions were adopted and the contract resulted, defendants alleged the petitioner was precluded by laches.
Plaintiff’s reply to the answer consumes 24 pages of his abstract. It contains much argumentative matter, as well as a denial of some facts alleged in the answer, and some allegations expanding and explaining allegations in both the petition and answer.
The board of county commissioners of Sedwick county was permitted to intervene and filed its answer in which is some review of the flood control project and that the county and the city had given the assurances and entered into the agreements authorized by G. S. 1947 Supp. 19-3301 to 19-3307, inclusive; that such agreements were consummated on February 25, 1946, and pursuant thereto the county had acquired title to easements and rights of way for the construction of the project at an expense of over $487,000 and incurred other expense of approximately $25,000; that the county could not devote the property thus acquired to any other purpose than flood control and unless it is so devoted not only will the flood control project be defeated and the contracts between the county, the city and the United States of America broken, but the county will also lose all of the money and property and for the redress of said injuries, would have no adequate remedy at law and would suffer irreparable and incalculable loss. In a summary way it may be said the intervenors also pleaded laches; that the resolutions, by reason of subsequent contracts and undertakings had passed into an administrative state; that the city was without power by resort to the referendum statute to repeal or cancel the contract; that the legislation embodied in the flood control statutes (G. S. 1947 Supp. 19-3301, et seq.) supersedes and renders inapplicable the prior general provisions of G. S. 1935, 12-107, and that the efforts of the signatories on the referendum petitions mentioned in the plaintiff’s petition to induce the city to repudiate and repeal its agreements with the county and the United States of America are contrary to equity and good conscience applicable in equity proceedings.
The plaintiff’s reply to the intervenor’s answer in effect is a denial of the legal propositions asserted in the answer.
In their briefs the parties discuss the character of relief sought and the issuance of mandamus as a matter of right; whether the plaintiff is guilty of laches; the nature of the resolutions sought to be repealed or subjected to vote, and whether the legislative phases thereof passed when the contracts of the city and the county with the United States of America were made so that now the resolutions have only an administrative character; whether the flood control statutes call for an exercise of the police power which cannot be bargained away, or whether those statutes, under which the city, county and the United States of America have contracted, are paramount to any statutory right to invoke a referendum so far as the city is concerned; whether the petition discloses a showing of a legal duty and a failure to perform or an effort by the plaintiff to compel a breach of contract, and whether the proposed initiative ordinance will impair the obligations of contracts entered into between the various parties, as well as matters upon which a declara-, tory judgment is sought. In support of some of these propositions our attention is directed to many citations of authority. A full and complete discussion of each proposition would extend this opinion beyond any reasonable length, and in view of our conclusions presently to be stated such a discussion is not necessary.
The facts hereafter related, and on which we base our decision, are undisputed. As is disclosed by the pleadings, on August 22, 1945, the city adopted two resolutions, both being set out in full in State, ex rel., v. Salome, supra, page 772, one declaring the construction of flood control works was a public necessity, the other declaring that the city would meet the requirements of what is now G. S. 1947 Supp., chapter 19, article 33; that the corps of engineers of the United States army had developed alternative plans, which had been submitted to the responsible officers of the city and county, and after full and complete discussion the city had agreed that a named plan was most desirable and best met the needs of the city and that the city had directed its city manager to notify the army engineers of its acceptance provided that the Big Slough Floodway be modified in particulars, and resolving that the city agree to the undertakings provided by the above statute. Thereafter negotiations continued and arrangements were made for carrying out the total plan both within and without the city, the city and the county each adopting resolutions making the commitments required by the statutes mentioned. Under date of April 27, 1947, the city passed a resolution reiterating its previous assurances. Financial commitments were made by both the city and the county and the improvement had been under way for some months before the instant action was commenced in December, 1949, and the city and the county, each carrying out its part of the whole project, had each expended large sums of money, the great part of which would be wasted or lost if one of the parties to the arrangement could or would be permitted to withdraw.
The state urges that the resolutions which the referendum petitions seek to have rescinded or put to vote are legislative in character, and there being no exceptions in the statute, that if the petitions are sufficient such a referendum must follow while the city urges that the resolutions lost their legislative character when commitments, agreements and contracts were made, and for that reason the resolutions may not now be rescinded. In our opinion it is not necessary that we isolate and decide the question so propounded, for its basis depends on the effect to be given the fact that the flood control project by reason of such commitments and agreements, is and has been under way and each party to them has expended large sums of money which it may lose if the city may ir any manner defáult.
The state contends that a statute that has the effect of violating or repudiating ah incompleted contract previously made with the state does not impair the obligation of a contract, that the obligation remains and measures the damages to the other party (Hays v. Port of Seattle, 251 U. S. 233, 64 L. Ed. 243, 40 S. Ct. 125); and that a simple breach of a contract does not amount to an act impairing the obligation of a contract (Shawnee Sewerage & Dr. Co. v. Stearns, 220 U. S. 462, 55 L. Ed. 544, 31 S. Ct. 452); and applying that reasoning to the case before us argues that if the governing body of the city enacts the proposed ordinance, or if it is submitted and adopted the .remedy of Contractors and third parties affected is a suit in damages against the city and that the proposed ordinance recognizes such a remedy. In support of its contention that the city may repudiate its contracts and agreements the state relies on Construction Co. v. Sedgwick County, 100 Kan. 394, 164 Pac. 281. In that case bonds had been voted for the erection of a jail, and a contract was thereafter made with the plaintiff who started performance by purchasing materials and equipment. Two newly elected commissioners took office, and the board then notified the plaintiff it had cáncelled. the contract. Plaintiff sought to compel performance by mandamus. Reference is made to the opinion for consideration of other contentions entering into the final result, but upon the question of the fight of repudiation this court held:
“Wheré.public officers who have entered into a contract in that capacity re fuse to recognize its obligations solely by reason, of a mistaken view of a pure question of law, their compliance with it may be enforced by mandamus; but it does not follow that where the controlling body of a municipality, in the exercise of its judgment as to public policy, sees fit to refuse to proceed with a contract, preferring to answer in damages, it can be held to specific performance by a writ of mandamus.” (Syl. U 1.)
A reading of the above decision will disclose that no consideration was given to repudiation of a contract as affecting rights of third parties or of any comprehensive plan of public improvement in which the right of another municipality was involved.
We here note that in State, ex rel., v. Linn County, 113 Kan. 203, 213 Pac. 1062, where the rule of the last cited case was recognized, it was held:
“Where a highway is being improved, federal aid being granted for the purpose, and a contract is entered into by the county for the construction of a bridge thereon costing over $2,000 and therefore requiring to be constructed under the bridge law, the county commissioners are under a duty to carry out such contract which they cannot escape by undertaking to revoke it, provided the necessary steps were taken to give it validity.” (Syl. ¶ 1.)
The state also directs attention to State, ex rel., v. Charles, 136 Kan. 875, 18 P. 2d 149. In that case at a special election held August 30, 1932, bonds for construction of a natural gas system were voted and at an undisclosed date a contract was made. On September 10, 1932, a petition calling for a referendum was filed, and on September 17, another petition was filed. The governing body ignored the petitions and mandamus was sought to compel an election. The writ was allowed. The case is an authority on the right to the writ under similar facts. There was no question in the case as to right of repudiation of the contract made, and obviously the right of another governmental body was not involved. It is worthy of note that the action was promptly filed.
The city and the county concede that mere failure to perform a contract does not of itself impair its obligation but on the contrary argue that the purpose of the proposed ordinance is not merely to direct a nonperformance but by the proposed legislative act to destroy the contract itself and they direct attention to the language used that the three resolutions be “repealed, set aside and held for naught,” and that the repeal of a law which constitutes a contract is an impairment of its obligation (12 C. J., § 702, p. 1057; 12 Am. Jur. § 390, p. 19; and Carondelet Canal Co. v. Louisiana, 233 U. S. 362, 58 L. Ed. 1001, 34 S. Ct. 627). They further contend that re peal of the resolutions and the destruction of the contracts would destroy the rights of way and easements already acquired and paid for by the county, because such rights of way and easements cannot be used for any other purpose than that for which it was acquired, the flood control project, and that the attempted repeal would divest or impair vested rights, a thing that may not be done. See 12 C. J., § 486, p. 956, and §§ 488 and 489, p. 957, as well as State, ex rel., v. State Highway Comm., 139 Kan. 391, Syl. ¶ 2, 32 P. 2d 493. The city and the county also contend that if the ordinance be held to be separable, so that section 1 repudiating “any and all contracts involving flood control” might be separately considered, that section may not be upheld, as contracts between individuals and corporations are impaired within the meaning of the Constitution whenever the right to enforce them by legal process is taken away. We shall not pursue this contention for two reasons. We do not think the ordinance separable in view of its title and in view of the fact the whole content is that refusal to proceed with the contracts is upon the assumption the resolutions are to be repealed. Further, the matter of repudiation of the contracts or refusal to proceed with any contracts involving flood control is not referred to in the title of the ordinance and must be treated as surplusage or void. See G. S. 1935, 13-1421 and 13-2901; West’s Kansas Digest, Mun. Corp., § 112; and Hatcher’s Kansas Digest, Mun. Corp., § 44.
It is hardly debatable that the intention of the signers of the referendum petitions and the purpose of the state is to cause the base on which the entire flood control project rests, that is the three resolutions, to be done away with by the process of repeal. What will be the result if a writ of mandamus issue and as a consequence there is repeal? When it is borne in mind that following the adoption of the resolutions, the city, county and the United States of America, agreeing among themselves, divided the entire flood control project into two segments, one within, the other without the city, and that neither segment could be performed unless the other was; that statutory assurances were given the United States of America by -the city and the county to furnish lands, rights of way and easements without cost to the United States and to hold the United States free from all claims due to construction costs and to maintain the works after completion; that contracts were let and rights of way and easements acquired, and that each party acted upon the agreement of the other to participate, to now permit the- city to destroy the contract by a so-called change in legislative policy, by repealing the resolutions that stood as the basis for its subsequent acts, would, in our opinion, impair the obligations of its contracts.
Limited to the matters just discussed it appears that there is not only a lack of a clear legal duty which the city officials should have performed, but on the contrary it appears that the end sought by the petitioners for a referendum and by the state is to compel performance of an act by such officials which they may not legally perform.
Were we in doubt as to the above conclusion we would still have for consideration whether in any event a writ of mandamus should issue. Without elaborating, it may be said that the writ is a discretionary one and does not issue as a matter or right, nor unless the defendant’s legal duty is clear, and if it is not clear the writ should not issue, the burden of showing the right to relief being on the plaintiff. Even though we should hold that the attempted repeal of the resolutions was otherwise proper, before granting the writ we would have to consider the over-all effects and consequences ; take note that if an election may be compelled to rescind the resolutions another similar referendum could rescind that action and reinstate the original plan; give consideration to what has been done by the city in carrying forward the project and the effect of its being stopped, give consideration to what has been done by the county, not as a matter of contract or impairment, but from the standpoint of over-all effect, give consideration as to whether a right to recover damages would constitute any adequate remedy to the county or anyone else adversely affected, and whether, over four years after inception of the project, in law and in equity, there should be interference in carrying out the plan adopted, where it appears, as it does here, that the controversy swings, not on whether there should be a flood control project, but what particular plan should be followed. Taking these matters into consideration, we are of the opinion the writ of mandamus should not issue.
We conclude that the plaintiff petitioner is not entitled to a writ of mandamus. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to construe a deed to plaintiffs covering a described forty acre tract of land in Ellsworth county, to have one clause of the deed held to be invalid; to set aside a later deed by the same grantor to defendants; for possession of the property, and for a decree quieting title. The case was tried by the court, the facts were stipulated in writing, and judgment was rendered for plaintiffs. Defendants have appealed.
The record discloses that under date of November 7, 1939, James A. Yordy, a single man, executed a general warranty deed to the plaintiffs herein (his nephew and niece) in which he reserved the use, rents and benefits from the land during the term of his natural life. The deed also contained the following:
“Said party of the first part also reserves absolute power with full right to revoke this deed of conveyance at any time during his natural life time. — ”
The consideration named in the deed was one dollar, love and affection. On the same day, November 7, 1939, the grantor of the deed took it to the office of the register of deeds of Ellsworth county and filed it for record, and it was duly recorded, and he paid the recording fee. The register of deeds duly entered the deed of record in Book 40, at page 372, of the records of his office, and thereafter delivered the deed to one J. L. Yordy, who in turn delivered the same to the grantor; who continued to receive the income from the property until his death, November 6, 1945. Soon thereafter the deed came into the actual possession of plaintiffs.
Under date of July 19, 1943, James A. Yordy, a single man, executed a general warranty deed to Dwight A. Yordy and Irma, his wife, for the same forty acre tract of real property and other real estate. This deed contained the following:
“Said party of the first part reserves the use, rents, and benefits from said lands during the term of his natural life, and has heretofore revoked conditional instrument dated November 7, 1939, which issued to Earl and Velma Yordy, — with all the appurtenances, — and all the estate, title and interest of the said party of the first part therein. — ”
This deed was filed for record in the office of the register of deeds of Ellsworth county on December 11, 1943, and recorded in Book 41 of Deeds at page 430.
The principal questions raised by the pleadings and the stipulated facts were whether the deed of November 7, 1939, to plaintiffs was duly delivered; whether the clause therein by which the grantor attempted to reserve the power to revoke the deed at any time during his lifetime is valid, and if valid whether the deed from the same grantor of July 19, 1943, to the defendants herein had the effect of revoking the earlier deed of November 7,1939. The trial court found all issues in favor of the plaintiffs and rendered judgment for them as prayed for in their petition.
Counsel for appellants submit the following questions of law for our determination: (1) Was there an effective delivery of the deed dated November 7, 1939; (2) is the clause in the deed of November 7,1939, by which the grantor reserved the power and right to revoke the deed valid; and (3), if so, is the clause in the deed of July 19, 1943, an effective exercise of such power and right?
Respecting the first question counsel for appellants and for appellees have cited a large number of our cases and other authorities upon the question of what constitutes a valid delivery of a deed or other important instrument, and dealing with a large variety of circumstances. From the authorities cited counsel adduce the following rules: Whether there was a valid delivery of the instrument is primarily a question of fact to be determined by the trier of the facts. When the grantor executes and acknowledges a deed in the nature of a gift the grantee is presumed to have accepted the gift even though he did not know about it, since it was one for his benefit; that while these matters are presumptions and may be overcome by proof, the burden of proof is upon the party who contends there was no effective delivery. The trial court did not find that the defendants presented evidence to overcome those presumptions. It is not argued by counsel for appellants that since the facts are all stipulated in writing this court should exercise its independent judgment upon the question. But if we were required to do so we would see no just reason to reach a different conclusion from that of the trial court.
More than that, the grantor reserved the use, rents and profits from the land during his lifetime. He could have had those benefits without making a deed; so he must have intended that the title of the real property pass to the grantees subject to his reservation of the use and benefits of the property during his lifetime. The result of these conclusions is that the grantor intended not only to deliver the deed but to pass title to the grantees, subject to his life use.
The next question presented is the validity of the clause in the deed by which the grantor attempted also to reserve the power and right to revoke the deed at any time during his lifetime. There is authority to the effect that this clause is repugnant to the grant and is therefore void. (Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Brady v. Fuller, 78 Kan. 448, 454, 455, 96 Pac. 854; Newell v. McMillan, 139 Kan. 94, 101, 30 P. 2d 126.) Passing that for the moment, the clause in the deed is unusual, to say the least. Perhaps the only way it could be revoked would be by a suit in equity to enforce the provision and to set the deed aside if the grantees would not voluntarily reconvey to him. This was not done.
The clause in the deed of July 19, 1943, recites that the grantor “has heretofore revoked conditional instrument dated November 7, 1939.” The statement is, of course, inaccurate. He had not in fact done so. The clause is not open to the interpretation that he intended to revoke it by the instrument of July 19, 1943. Even if that construction were given it we think it would be ineffective for the reason that the grantees in the deed of -November 7, 1939, had title to the property subject to the grantor’s life use, which title was vested in them. Vested rights in real property may not be taken away by a simple declaration and without the owners of such vested rights having an opportunity to be heard.
The result is that 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
Harvey, C. J.:
Plaintiff brought this action May 12, 1948, for a decree that she is the owner of an undivided one-half interest in a described residence property in the city of Frontenac and for partition of the property. The trial court heard the evidence, found all issues in favor of the plaintiff, and rendered judgment accordingly. Defendants have appealed and rely upon our statute of limitations (G. S. 1935, 60-306, ¶¶ 2 and 3) and upon G. S. 1935, 67-401 of our statute of trusts.
The facts shown by the record, which are not controverted, may be summarized as follows: In 1939 plaintiff was a registered nurse employed in a hospital. She became acquainted with the appellant, Louis Papish, and began keeping company with him. Sometime in 1940 he went to the hospital at Norton (maintained by the state for tubercular patients). She got employment in that hospital and went there to nurse him and other patients until sometime in 1942, when he was discharged. They continued to keep company and early in 1943 they became engaged to be married and began to think about a home. Lots were purchased, a building was started and completed in 1946. In December, 1946, when the residence was about completed, the parties disagreed and their engagement was broken in the spring of 1947.
The testimony after their agreement about purchasing the property and building a home was in conflict. Plaintiff testified, and other witnesses supported material portions of her testimony, that when they talked about acquiring lots and building a home she was employed and earning $250 per month; that he was employed and earning from $100 to $125 per month; that they agreed to buy the lots and take the title in the names of both of them and that they would each contribute to the cost of the residence; that she gave him $50 for the down payment on the lots; that as the work progressed she gave him money to pay the laborers, sometimes $50 and at other more frequent times $100, and that she also paid material bills aggregating about $1,000; that altogether she paid as much as $2,000 toward the construction of the house; also that she bought Venetian blinds for the windows, which cost $89. He denied that they agreed to take title to the lots in the names of both and that she paid him anything on the purchase of the lots or for the construction of the building. Respecting this parol testimony and the credibility of the witnesses, these were matters to be passed upon by the trial court, and its conclusion thereon, favorable to plaintiff, cannot be disturbed here. When the lots were purchased a deed, executed March 11, 1943, and recorded April 17, 1943, was taken in the name of Louis Papish and his mother, Jennie Papish, as the sole grantees. Plaintiff testified that she never saw that deed nor had actual knowledge of the fact that her name was not included as a grantee until in August, 1946. This was not denied by Louis Papish. She testified not only that the agreement was that the deed was to be taken in the names of both of them, but that he had told her it had been taken that way and that they owned the property together. His testimony was to the contrary. She further testified that when she learned the deed did not have her name as a grantee she asked him about it and he told her that he had “legal advice” that the deed could not be in her name until after their marriage, and that notwithstanding the form of the deed her interest in the property was protected. She talked with him and his mother when they were all together and both of them told her that her interest in the property would be protected.
On March 24,1948, Louis Papish executed a quitclaim deed to his mother, Jennie Papish, of “All of my undivided interest to” the lots in question. The consideration named in the deed was “Love and affection.” This deed was duly recorded on the same day it was executed. Soon thereafter this action was brought.
In the judgment of the- court, rendered July 21, 1949, the court found that the plaintiff and the defendant Jennie Papish each was the owner in fee simple of an undivided one-half interest in the property and made an order for its partition between them, appointed appraisers, and provided for further procedure in harmony with our partition statutes (G. S. 1935, 60-2101 et seq.).
Counsel for appellants in their brief do not rely upon paragraph Second of G. S. 1935, 60-306, hence we regard any claim based upon that paragraph in the petition as having been abandoned. They do rely heavily upon a portion of the third paragraph of the section. We quote the pertinent portions of the section relied upon:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: . . .
“Third. Within two years: ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
The point argued here is when plaintiff discovered the fraud of omitting her name as one of the grantees in the deed executed March 11, 1943, and duly recorded on April 17, 1943. Counsel rely heavily upon the rule laid down in Black v. Black, 64 Kan. 689, 68 Pac. 662, where it was held:
“The phrase, ‘until discovery of the fraud,’ in subdivision 3 of section 18 of the code (Gen. Stat. 1901, § 4446; now G. S. 1935, 60-306, paragraph Third-), which provides the limitation of two years in case of ‘action for relief on the ground of fraud,’ . . . does not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed, for constructive notice of the fraud is sufficient to set the statute in motion even though there may be no actual notice. Where the means of discovery lie in public records required by law to be kept, which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set the statute in motion.” '
They cite a number of other cases in which the rule announced in Black v. Black, supra, has been followed: Hamill v. Hamill, 134 Kan. 715, 8 P. 2d 311; Smith v. Rector, 135 Kan. 326, 10 P. 2d 1077; Kittel v. Smith, 136 Kan. 522, 16 P. 2d 538; Malone v. Young, 148 Kan. 250, 81 P. 2d 23; Herthel v. Barth, 148 Kan. 308, 81 P. 2d 19; Axe v. Wilson, 150 Kan. 794, 96 P. 2d 880; Simmons v. Clark, 151 Kan. 431, 99 P. 2d 739, and cases cited therin.
The rule stated in Black v. Black, supra, while correctly stated as applied to that case, has not been held all-inclusive either before or since the case was decided. In Duffitt v. Tuhan, 28 Kan. 292, where a tenant in actual possession of real estate fraudulently acquired title by taking a tax deed in his own name, the recording of the deed was held not to be constructive notice of the fraud. In Perry v. Wade, 31 Kan. 428, 2 Pac. 787, it was held that the recording of the deed was not constructive notice of the fraud that would start the statute of limitations because there was not only concealment, but fraud and breach of trust and confidence. These cases were cited and followed in Hinze v. Hinze, 76 Kan. 169, 90 Pac. 762, where it appeared that during the transaction of obtaining the deed the husband acted as the agent of his wife and concealed from her the fact that the title was not taken in her name. In Causemaker v. DeRoo, 153 Kan. 648, 113 P. 2d 85, the question of when the recording of the deeds puts a party on notice, the court stated:
“The recording of conveyances which are regular on their face, although given for the purpose of defrauding creditors, ordinarily constitutes constructive notice of their execution and contents, but not of the fraudulent purpose of the transfer. (Citing cases.) However, if the circumstances are such that the very making of the transfer and the terms of the instrument are of the essence of the cause of action for fraud, or are otherwise of such a character as to put a person of ordinary prudence upon inquiry as to the presence of fraud, the recording of the instrument also imparts notice of the fraudulent intent. (Citing casés.) On the other hand, where no obligation to examine the public records exists, or where a party participating in the fraud has led the defrauded party to forego an examination of the records, .the recording of the instrument may not constitute constructive notice even as to its execution and contents, or the party guilty of the fraud may not assert such constructive notice. (Hutto v. Knowlton, 82 Kan. 445, 449, 108 Pac. 825.)”
In Mundell v. Franse, 143 Kan. 139, 53 P. 2d 811, it was held the statute did not apply where the grantee in a deed obtained possession of it against the wishes and express request of the grantor and placed it of record without his knowledge. In Cox v. Watkins, 149 Kan. 209, 87 P. 2d 243, the statute was held not to apply to a deed which had been forged and placed of record without the knowledge of the owner of the real property; and in Gates v. Kansas Farmers’ Union Royalty Co., 153 Kan. 459, 111 P. 2d 1098, it was held:
“The phrase, 'discovery of the fraud,’ which would start the statute (G. S. 1935, 60-306) of limitations to running, means the discovery by the person defrauded of such facts indicating he had been defrauded as would cause á reasonably prudent person to investigate, and which, if investigated with reasonable diligence, would lead to the knowledge of the fraud.”
The court further held:
“The recording of a deed, in which the grantor intended to name but one grantee and which fraudulently included the name of an additional grantee, is not constructive notice of the fraud to the grantor of the deed.”
Many cases supporting the holding are recited in the opinion at page 465.
Considering the statute in question in the light of our decisions above cited the trial court was justified in holding that the recording of the deed did not impart notice to the plaintiff that her name as a grantee had been omitted.
Under the evidence in plaintiff’s behalf, which the court was at liberty to believe, here were young people engaged to be married. They had the worthy desire of having their own home and apparently planned to build it largely from their own earnings. The earnings of the plaintiff were about double those of the defendant. They planned to use the earnings of both in purchasing the lots and constructing a home. The oral agreement was that the title to the property should be taken in the names of both of them. She relied upon him, as she had a right to do. He did not have that 'done, but took the title in his own name and in the name of his mother, had the deed recorded, and did not show it to her until about three and one-half years later. In the meantime she had furnished a large part of the cash cost of the building. Under these circumstances she had no occasion to go to the county seat and examine the records. When she did discover it she was told the deed was taken that way upon the advice of an attorney, but that her interest in it was fully protected. To have the statute in question bar her rights under such circumstances would be to assist him in committing a fraud.
Appellant argues that plaintiff’s evidence disclosed she saw this deed as early as May, 1946, possibly a month or two before that. On that point we have examined the evidence carefully and conclude, as obviously the trial court did, that she was then talking about having seen the deed sometime in the months of March, April or May from plaintiff to his mother. This deed was dated March 24, 1948, and recorded the same day. She stated that sometime in March, April or May she had seen the deed which had for its sole consideration “Love and affection.” The deed from Louis Papish to his mother was the only one of the two deeds which contained those words. Plaintiff testified that after she saw that deed both Louis and his mother assured her that it would not affect her interest in the property. We think that assurance was correct.
This opinion might close here were it not for the fact that in-their answer defendants allege that the oral agreement relied upon by plaintiff is void under our statutes pertaining to trusts and powers (G. S. 1935, 67-401 et seq.), citing specifically the first section, which reads:
“No trust concerning lands except such as may arise by implication of law shall be created', unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.”
We think sections 406 and 408 are applicable and must be taken into account. The former reads:
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.”
Section 408 reads:
“The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration Was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the convey anee was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.”
Counsel quote a portion of plaintiff’s testimony to the effect that the purchase price of the property was $500; that Louis Papish told her he would have to borrow the money from a bank; that she knew he did not have any money of his own and that she knew he borrowed money from the bank. This overlooks her other testimony that he told her he would have to have $50 to make a down payment, and that she gave him the money to make that payment. The record clearly shows the down payment was $50. Plaintiff also testified she gave Louis Papish other sums — $50 to $100 at a time, as he told her he needed money. The record further shows that he borrowed only $205 from the bank. The court was justified in reaching the conclusion in harmony with her testimony that she paid at least the $50 down payment, and perhaps some of the other money which she gave him went toward the purchase of the property. If she made any payment which went to the purchase price of the property, the title to which was to be taken in the names of both of them, the amount of her payments upon the property compared with the cost is not material. The statute says “the purchase money or some part thereof.” It was for the trial court to be satisfied from the evidence that plaintiff paid part of the purchase price of the property when it was purchased. (See Taylor v. Walker, 114 Kan. 614, 220 Pac. 518; Kull v. Pearl, 147 Kan. 329, 76 P. 2d 790.)
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from a conviction of murder in the second degree.
On the morning of April 22, 1949, Grace Nutt, who was thirty-six years of age and living with her husband, William H. Nutt, was murdered in her farm home on highway No. 160, 10 miles east of Parsons, Kan., in Labette county, between the hours of 8:20 a. m. and 10:20 a. m. Her death, which occurred at 1:20 p. m. on that day, was the direct result of two shots fired from a 38-caliber pistol. Under the evidence there can be no question but what the person who killed her came to the home and found Mrs. Nutt in the kitchen at a time when the screen door of that room precluded ready entrance because it was fastened by a hook. The first shot, which grazed Mrs. Nutt’s right temple and knocked her down, was fired through the screen door before an attempt was made to enter the kitchen, Thereafter, whoever fired it forcibly opened the door, entered the kitchen, and then at close range fired a second and fatal shot into the back part of her head. There were no eye witnesses to the crime and Mrs. Nutt who remained unconscious until she died was unable to identify her assailant.
What has just been related is not in controversy. We turn now to facts that are, pausing as we do so to state that extended reference to the sordid factual situation disclosed by the evidence will neither benefit posterity nor add anything to this opinion and point out that for that reason our review of the record will not only be summarized but is intended only to include such facts as are absolutely essential to a discussion of errors assigned as grounds for reversal of the judgment.
Within a short time after Mrs. Nutt’s death the law enforcement officials of Labette county issued a pickup order to take the defendant, William S. Fouts, who was a married man, fifty-three years of age, living in Parsons, and engaged in the gasoline transport business, into custody for questioning concerning the murder. He was apprehended about 4 p. m. of the day of the tragedy at his home where he had changed the clothes he had been wearing earlier in the day. Later he was charged with the crime of murder in the first degree to which charge, when arraigned, he entered a plea of not guilty.
In due time the cause came on for trial. A fair statement of the essential facts disclosed by the record, limited as we have heretofore indicated, can be stated as follows:
Beginning sometime in 1940, and continuing up until the day before the murder, the defendant and the deceased had been carrying on what they thought was a secret affair. Meetings between the two in the country and elsewhere in the community were frequent and concededly illicit. Apparently the relationship was congenial and restricted to the two until sometime in 1948 when Mrs. Nutt commenced to tire of the arrangement and bestow some of her affections upon other and younger men. The defendant became aware of the situation and commenced to trail the decedent. At times he complained of her conduct. On the afternoon of April 21, 1949, the day before the murder, and between the hours of 4 p. m. and 5 p. m., he caught her and a truck driver, one Vermillion, parked along a country side road several miles distant from her home. He drove up and engaged the pair in conversation. Twice Vermillion told the defendant, who appeared nervous and upset, to go away and leave the woman alone but he did not go. After some argument, during which Mrs. Nutt became somewhat nervous and agitated, and was observed to have been crying, the truck driver drove away leaving her alone with the defendant. There can be no question but what a quarrel ensued. However, it is apparent there was a reconciliation for later in the afternoon the defendant got into Mrs. Nutt’s car and they were observed there by another neighboring farm lady, who drove by and saw them in each other’s arms. Thereafter Mrs. Nutt went to the home of her sister in Parsons for the purpose of obtaining some tomato plants for her garden. Her sister testified that she appeared to be nervous and excited. Later on, and. on the same evening, her husband testified she appeared to be nervous and apprehensive. These facts had been communicated to the officers of Labette county before they issued the pickup order for the defendant.
When taken into custody for questioning the defendant was interrogated at considerable length. He denied all knowledge of the crime and finally signed a verified statement wherein he (1) stated that his truck driver Anderson was with him all the time on the morning of the homicide from 7:15 a. m. to 12:20 p. m., (2) denied he had ever had intimate relations with Mrs. Nutt, and (3) stated the only time he had seen her on the day preceding her death was at the hour of 10 o’clock in the morning. At the trial he repudiated his statement about having been with Anderson all of the morning of April 22 and admitted that he left the latter in Parsons that morning and proceeded alone past the Nutt home shortly after 7 a. m. in his gasoline transport truck to Bronson’s Service Station north of McCune, located about four miles east and two miles north of such home, and that in returning to Parsons, also alone, he drove back past the Nutt home again, reaching Parsons in time to put in a telephone call at his own home to the Nutt home at 9:24 a. m. He said no one answered the call. His explanation for the call was that things did not look right at the Nutt home as he drove by it and that Mrs. Nutt had told him any time they did not she wanted him to check and then notify her sister, Mrs. Gunter. However, it is significant that when he received no answer to his call he made no attempt to investigate further and did not call the deceased’s sister as he said he had agreed to do. On cross-examination he admitted he had had intimate relations with Mrs. Nutt on many occasions. During the trial he also admitted his statement to the effect he had seen her but once on April 21, and then in the morning, was false and, while he continued to deny there had been any quarrel between them, admitted he was present and participated in the Yermillion, Eouts, Grace Nutt incident to which we have heretofore referred.
The day following the homicide the defendant was advised the officers were going to take a paraffin test of his hands for the purpose of ascertaining whether such test would reveal gunpowder nitrate burns. While preparations were being made to make this test, and after he had been advised of its nature and purpose, he volunteered the statement that recently he had engaged in target practice at his brother-in-law’s place at Edna where he had fired a pistol and a rifle. Nevertheless the officers proceeded with the test which, according to the testimony of persons who had experience in making such tests, disclosed nitrate on the defendant’s right hand. Thereafter the officers investigated his target practice story and found it to be false. In fact at the trial he admitted its falseness.
In addition to the facts heretofore set forth the record reveals: That the defendant made divers other statements pertaining to his whereabouts on both April 21 and 22 which he later admitted were untrue; that one Garrettson, a witness for the state, testified that while fixing a flat tire on his automobile the defendant passed him on the highway between 9:30 a. m. and 10 a. m. on the morning of the murder driving east in the direction of the Nutt home which was located slightly more than a half mile on down the road; that another witness, Maude Mullen, a neighbor who lived a short distance from the Nutt home, testified that on the morning of the murder she saw an oil truck headed west standing, not traveling, on the north side of the highway near the Nutt home and that while she could not swear as to the hour she saw it there, her judgment was that it was between 10 a. m. and 10 :30 a. m. although it might have been before; and that a chemical analysis disclosed at least one spot of human blood on the trousers the defendant was wearing on the morning of the murder.
In the face of the foregoing evidence and other testimony supporting it, purposely omitted for reasons heretofore stated, the defendant demurred to the state’s evidence on the ground it did not prove or tend to prove any violation of any of the criminal laws of the state. When this demurrer was overruled he introduced his evidence. Thereafter at the close of all the evidence he moved for a directed verdict on the ground such evidence failed to prove a violation of the law on his part beyond a reasonable doubt and was not sufficient to support a verdict of guilty if one was returned by the jury. This motion was also overruled. Thereupon, the trial court prepared and submitted to counsel its proposed instructions, included in which was an instruction dealing with the crime of mur der in the second degree. Defendant then requested the court to eliminate such instruction and objected to any instruction whatsoever having to do with, or making reference to, murder in the second degree. This objection was also overruled and the cause was submitted to the jury which, as has been heretofore indicated, returned a verdict finding the defendant guilty of murder in the second degree. Ultimately the trial court approved such verdict and rendered judgment thereon. Defendant then perfected this appeal.
Appellant’s first claim of error is that the trial court erred in overruling his demurrer to the state’s evidence and in denying his motion for a directed verdict. This claim is based entirely upon the proposition the evidence relied on for conviction was circumstantial and not sufficient to uphold a verdict of guilty.
The instructions of the court relating to the weight to be given this type of evidence by the jury are not included in the record, hence we must assume it was properly advised with respect thereto. In fact no claim is made to the contrary. Under such circumstances the rule in this jurisdiction is well established.
Long ago in State v. Hunter, 50 Kan. 302, 32 Pac. 37, we held:
“A conviction may rest upon circumstantial testimony alone, but the facts and circumstances must be such as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused. However, where such testimony fairly tends to show the guilt of the defendant, the weight of the same is for the jury; and where the jury has found, after being properly instructed, that the defendant is guilty, and the verdict has been approved by the trial court, it will not be disturbed because of the insufficiency of the evidence.” (Syl. f 1.)
See, also, State v. Murphy, 145 Kan. 242, 65 P. 2d 342, which holds:
“When considering on appeal the sufficiency of circumstantial evidence to sustain conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That was a question for the jury and the trial court, and the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt, following State v. Brizendine, 114 Kan. 699, 220 Pac. 174.” (Syl. ¶ 4.)
Under the facts and circumstances disclosed by the record in this case we have little difficulty in holding there was basis in the evidence for a reasonable inference of guilt on the part of the appellant. It follows the trial court did not err in overruling either the demurrer or the motion for a directed verdict.
One of appellant’s defenses was that someone else committed the crime. It is suggested that because the state failed to conclusively establish that other persons, particularly the deceased’s husband and other truck drivers with whom she had been having affairs, did not commit the crime the evidence does not sustain either the verdict or the judgment. The suggestion has little merit. See People v. Spaulding, 309 Ill. 292, 141 N. E. 196; State v. Aiken, 215 N. C. 317, 1 S. E. 2d 821, holding the mere possibility the deceased might have been killed by someone other than the defendant need not be negatived by the state in a prosecution for murder, and other authorities (Smith v. Commonwealth, 185 Va. 800, 40 S. E. 2d 273; Price v. State, 207, Miss. 111, 41 So. 2d 37; 26 Am. Jur. 351, § 285; 40 C. J. S. 1130, § 218) supporting the doctrine therein announced. We know of and have been cited to no decisions holding that in order to convict a defendant of murder on circumstantial evidence the state must first eliminate all other persons as possible perpetrators of the crime. Indeed, adherence to any such rule as that suggested by the appellant would simply mean that conviction of crime based upon circumstantial evidence would be impossible.
The next error assigned is that the trial court erred in submitting the jury an instruction on murder in the second degree over the appellant’s objection.
Our statute (G. S. 1935, 62-1447) requires the trial court in a criminal action to charge the jury respecting all matters which are necessary for their information in giving their verdict. Under our decisions, construing its terms, we have repeatedly held that in prosecutions for homicide it is the imperative duty of the trial court to instruct the jury not only as to the offense charged — -in this case murder in the first degree — but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced. This, we might add, is the rule, even though the court may deem the evidence supporting the lesser offense to be weak and inconclusive and notwithstanding a request for such an instruction has not been made. See State v. Severns, 158 Kan. 453, 148 P. 2d 488; State v. Phelps, 151 Kan. 199, 97 P. 2d 1105; State v. Gloyd, 148 Kan. 706, 710, 84 P. 2d 966; State v. Cunningham, 120 Kan. 430, 243 Pac. 1006.
In the instant case it must be conceded that murder in the second degree is a lesser offense of which the appellant might be found guilty under the information on which he was tried. There were no eye witnesses to the crime. Under the existing facts and circumstances the jury might well have concluded the murderer of Mrs. Nutt went to her home without premeditated intention of killing her but that after a quarrel in which he was refused admission to the kitchen he became angry and did so without deliberation and premeditation. In such a situation we think it was the trial court’s duty to instruct the jury on the crime of murder in the second degree and that its failure to do so would have constituted reversible error: In this connection see State v. Smith, 161 Kan. 230, 167 P. 2d 594, where it is said:
“In those cases where self defense is invoked by the proof we conclude it is the duty of the court to charge the jury on that issue irrespective of whether there has been a request for an instruction, regardless of whether counsel has been called upon and failed to formulate a theory on which it could bé given, and notwithstanding such counsel has stated he believes its submission rests in the court’s discretion.” (p. 237.)
The third contention advanced by the appellant as grounds for reversal of the judgment relates to the admission of incompetent testimony and presents a far more serious question than any of those heretofore disposed of.
Maude Mullen, a neighbor lady who lived one-half mile from the Nutt home and who, except for the decedent’s husband, was the first person to reach the home after the shooting, was called as a witness for the state. She testified fully as to what she saw and found there. Just at the close of her testimony the county attorney asked her this question “Did you notice anything unusual there at the Nutt home that morning of April 22?” She replied:
“Well, it is very difficult to have a clear vision of their home because there is a creek between our places, and there are some trees, and we can’t see the porch, but we can see down the highway.”
Without further interrogation attorneys for the appellant were advised they could cross-examine. The following questions and answers appear at the very beginning of Mrs. Mullen’s cross-examination:
“Q. You didn’t see any cars or trucks or automobiles there, that morning, at the Nutt home? A. I did see a truck — an oil truck on the north side of the road that morning, headed west.
“Q. It was headed west? A. It was headed west.
“Q. And traveling west? A. It wasn’t traveling; it was standing.”
Obviously surprised at the answers made to the questions he had propounded to Mrs. Mullen the attorney who was cross-examining her then inquired whether or not she had not been asked a similar question at the inquest and failed to make such a reply. Her answer was she had not been asked the question in that way. Later on redirect examination in response to further interrogation she stated in substance that if she had been asked such a question she did not understand it and added, “I wasn’t asked directly like he [referring to counsel for appellant] did ask me, if I saw a truck there, and there wasn’t any way of dodging it.” Still later upon recross-examination she was asked the time of day it was when she saw the truck to which she had referred. Her reply was:
“I don’t know the exact hour, but I estimate it sometime in the middle of the forenoon. It was some place toward the middle of the forenoon. Maybe I call it forenoon, and you don’t, but I should think, probably 10:00 or 10:30, sometime along about that time. I couldn’t swear what time it was, because I didn’t look at the clock, but just according to my word about it.”
Following this statement the following question and answer appears in the record:
“Q. In other words, you saw a truck down the road there about 10:00 or 10:30, according to your best judgment? A. It could have been before. I wouldn’t swear to a certain hour.”
For some reason unexplained by the record, the state was not content to allow Mrs. Mullen’s testimony to stand alone. Following her appearance it called her husband Alfred Mullen as a witness. After preliminary questions and answers, not here material, he was asked this question:
“Answer this question ‘Yes’ or ‘no’, and no other way: After you learned of the death of Mrs. Nutt did your wife, on that same day, tell you about seeing a transport truck on the road in the vicinity of that house?”
Appellant’s counsel immediately objected to the question on grounds it pertained to a conversation between two people who had no connection with the case and outside the presence of the accused and asked that the witness not be permitted to answer it. On inquiry by the court counsel for the prosecution, apparently conceding the question called for an answer based on hearsay, stated the question was in the same category as a verbal act and therefore proper. Thereupon the trial court sustained the appellant’s objection. Notwithstanding this ruling the state reframed the question and asked it again. Appellant objected on the ground it called for hearsay. The state then requested the court hold its ruling on the question in abeyance until it could be argued to the court without the jury being present. This request was granted and the court ad journed for the day. The next morping the state still persisted in its position and, after considerable argument, the trial court reversed its former ruling and indicated it would permit the question to be asked and answered by the witness. Thereafter counsel for the state asked Mr. Mullen the following question:
“Did your wife, on the day of the alleged murder of Mrs. Nutt, mention to you the subject of having seen an oil truck parked in the vicinity of the Nutt heme? Answer that ‘Yes’ or ‘No’.”
Counsel for the appellant made the following objection which was overruled by the trial court.
“Now, if the Court, please, we object to the form of this question on the grounds that it is calling for hearsay testimony on the part of this witness, and was in a conversation which took place between he and his wife privately. It forms no part of the res gestae in this action, and is highly prejudicial to the interests of the plaintiff (sic) in this case, and it is a conversation which took place outside the presence of Mr. Fouts, and is not relating to the subject matter of this action.”
The witness’s answer to the question was “yes.” Immediately thereafter counsel for appellee stated “you may cross-examine.” In response to this statement counsel for appellant announced there would be no cross-examination.
We pause here to state a careful and painstaking examination of the record reveals Mrs. Mullen had not been impeached at the time her husband was permitted to testify as heretofore related. Nor was there any attempt made to impeach her thereafter. The very most that can be said from the standpoint of impeachment is that counsel for appellant by further questions endeavored to weaken the force and effect of her statement about having seen an oil truck parked in front of the Nutt home. However, it is clear no attempt was made to establish the statement as made was fabricated or untrue or that the witness making it was unworthy of belief.
In its attempt to uphold the trial court’s ruling in permitting Mr. Mullen to answer the question heretofore quoted the appellee inferentially concedes, if in fact it does not actually admit, that his answer to such question was based on hearsay and therefore incompetent under well established rules of evidence unless within exceptions to the hearsay rule which excludes in general statements made out of court offered as proof of asserted facts. Indeed, without the concession, under rules so elementary and well established they hardly require citation of authorities, we would be obliged to so hold. See, e. g., 31 C. J. S. 919, 940, §§ 193, 200; 20 Am. Jur. 400, 460, 467, 473, §§ 452, 544, 555, 559; Kelly’s Criminal Law and Procedure (4th Ed.), 231, § 274; Underhill’s Criminal Evidence (4th Ed.), 739, § 386; 2 Bishop’s New Criminal Procedure (2d Ed.), 927, § 1081; Stirn v. Nelson, 65 Kan. 419, 421, 70 Pac. 355.
Appellee seeks, as -it did at the trial, to justify the admission of the testimony in question on the ground it was admissible as a verbal act. Apparently, appellee has an erroneous conception of what constitutes a verbal act. Under the verbal act doctrine, as we understand it, utterances are never to be regarded as verbal acts unless they accompany the conduct to which it is desired to attach some legal effect (See 6 Wigmore On Evidence [3d Ed.], 190, 197, §§ 1772, 1776; 20 Am. Jur. 557, § 664). It is clear from the record in this case the statement made by Mrs. Mullen to her husband was not a verbal act as that term is defined in the foregoing authorities. Mr. Mullen was working in the field at the time his wife claims to have seen the oil truck in front of the Nutt house and it is undisputed her statement to him with respect thereto was made several hours thereafter.
In its briefs and on oral argument in this court appellee contends Mr. Mullen’s testimony was admissible for another reason, namely, that there was an attempt made by the appellant to impeach Mrs. Mullen, hence her husband’s testimony was admissible for the purpose of rehabilitating her status as a witness.
Before disposing of this contention it will be well to turn to the authorities for the purpose of determining just when hearsay testimony is admissible for the purpose of rehabilitating a witness.
The general rule is that prior statements of a witness, consistent with his testimony at the trial, are not admissible in corroboration of his testimony unless the witness has been impeached and then only for the purpose of rehabilitating him.
The rule is well stated in 28 R. C. L., Witnesses, § 236, where the following statement appears:
“At ene time the prior statements of a witness consistent with his testimony on trial were received generally in all eases, even where the witness had not been discredited in any way, but in the early part of the 18th century the courts began to-see the inconsistencies of this practice, and at the present time, in almost all cases, trials for rape and assaults with intent to ravish being conspicuous exceptions, the courts are virtually unanimous in holding that until a witness has been impeached in some way — until some attack cn his credibility has been made — proof of previous statements by him consistent with and corroborative of his testimony is utterly incompetent and inadmissible in all circumstances. . . .” (p. 652.)
In 70 C. J., Witnesses, § 1369, the rule is stated as follows:
“Although proof of such statements has been held admissible where the witness has, in some way, been impeached or his credibility impaired, as a general rule a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony; . . .” (p. 1183.)
See, also, 22 C. J. S., Criminal Law, §§ 746, 752, which read:
“As a general rule, the conversation- and statements of third persons which were not made in accused’s presence or hearing, and which are not the declarations of a co-conspirator nor a part of the res gestae, are not admissible either for or against accused.” (p. 1281.)
“In accordance with the rule discussed in C. J. S. title Witnesses, § 648, also 70 C. J. p. 1184 note 85, that as a general rule a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony, declarations of a witness out of court are not competent for the purpose of corroborating his testimony. . . .” (p. 1287.)
What has been related is sufficient to demonstrate the general rule is as heretofore stated. However, it is interesting to note what other textbooks and legal treatises have to say on the same subject. Mr. Wigmore in his work on Evidence has this to say:
“When the witness has merely testified on direct examination, without any impeachment, proof of consistent statements is unnecessary and valueless. The witness is not helped by it; for, even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it. Such evidence would ordinarily be both irrelevant and cumbersome to the trial; and is rejected in all Courts . . .” (4 Wigmore on Evidence [3rd Ed.], § 1124.)
In 20 Am. Jur., Evidence, § 458, it is said:
“.. . . Prior statements of a witness are not admissible in corroboration of his testimony, at least until an attack has been made on his credibility. . . .” (p. 405.)
Mr. Wharton in his work on Criminal Evidence states:
“. . . The admissibility of previous statements by a witness to corroborate him depends upon whether the witness has been impeached or his credibility impaired. . . .” (Wharton’s Vol. 3, Criminal Evidence [11th Ed.], § 1409, p. 2306.)
In 70 C. J., Witnesses, § 983, it is said:
“Where a witness has not been impeached, it is not permissible to support his testimony by showing that he had made previous statements or identifications out of court in conformity to his testimony, that his testimony is consistent with that given by him in a previous proceeding, or before, the grand jury, or that he had never made any statements contradictory to his testimony. . . .” (pp. 789, 790.)
See, also, 58 Am. Jur., Witnesses, §§ 819, 821, which read:
“The general rule announced in practically all jurisdictions is that until a witness has been impeached in some way he cannot, except under certain circumstances, be corroborated or his testimony bolstered up or supported by showing that he has made statements out of court similar to and consistent with his testimony on the witness stand. . . . The foregoing rule of exclusion is not confined to civil cases, but is applicable to criminal cases as well. . . . The circumstances that a party has laid the predicate for the impeachment of an opposing witness does not authorize the party proffering the witness to introduce declarations previously made by him in conformity with his testimony. And the fact that a witness has been impeached as to one portion of his testimony does not render admissible prior statements in corroboration of other portions of his testimony not attacked.”
“An exception to the general rule that prior consistent statements of a witness are not receivable in evidence to corroborate or support him is generally recognized in the case of an impeached witness, at least where the impeachment takes the form of recent fabrication, bias, interest, or motive to falsify, as distinguished from impeachment by prior inconsistent statements. The common sense of this exception is too strong for the formal objection that the evidence thus received is hearsay. It has been characterized as an exception to the hearsay rule, although some authorities declare this position unsound. ... It is said that the rule which admits prior consistent statements of ah impeached witness should be applied strictly and should not be extended.” (pp. 458, 459, 460.)
And, see, 10 R. C. L., Evidence, § 134, which reads:
“Statements made by a witness to other persons are no exception to the hearsay rule. A witness cannot be asked whether she did not say to her sister that a certain person had committed suicide, such testimony being hearsay. Nor can evidence of what a witness has said out of court be received to fortify his testimony. It violates a first principle in the law of evidence to allow a party to be affected, either in his person or his property, by the declarations of a witness made without oath. And, besides, it can be no confirmation of what the witness has said on oath, to show that he has made similar declarations when under no such solemn obligation to speak the truth. . . .” (p. 960.)
Heretofore we have stated that Mrs. Mullen was not impeached and, under the foregoing authorities, conclusively established that under such circumstances it was improper for the trial court to permit Mr. Mullen’s testimony relating to what she had told him about the oil truck in front of the Nutt home to go to the jury. Notwithstanding, we pause to give consideration to appellee’s contention Mrs. Mullen was impeached by the questions asked her on cross-examination to which we have heretofore referred.
Merely assailing a witness’s testimony by cross-examination does not afford an opportunity to corroborate him by proof of previous consistent statements (See 3 Wharton on Criminal Evidence 2308, § 1410). 70 C. J., Witnesses, § 982, states that a rigid cross-examination does not justify corroborative evidence bearing on the credibility of the witness. The effect of 58 Am. Jur., Witnesses, § 819, heretofore quoted, is that the mere laying of the foundation for impeachment, without following it up and actually impeaching the witness, does not warrant corroboration of the witness by hearsay testimony. See, People v. Jung Hing, 212 N. Y. 393, 403, 106 N. E. 105, and State v. Watson, 159 La. 779, 106 So. 302. Mr. Wigmore (See 4 Wigmore on Evidence [3rd Ed.], §1131) states the broad rule in a few courts is that consistent statements may be admitted after impeachment of any sort — in particular after any impeachment by cross-examination. However, he carefully points out that there is no sound reason for such a loose rule. When tested by the foregoing principles we find nothing in the cross-examination of Mrs. Mullen which would warrant us in holding that examination resulted in her impeachment.
Appellee insists that under our own decisions when an attempt is made to impeach a witness the one offering that witness may rehabilitate him, citing State v. Pitts, 126 Kan. 784, 271 Pac. 296, as authority for its position. We do not agree with its position or give the decision on which it relies the import it places upon it. It clearly appears from both the syllabus and the opinion in that case that the witness was actually impeached by evidence showing she had made contradictory statements regarding the identity of her assailant. We have no such situation here. When carefully analyzed we think all our decisions, even those (State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; Cloud County v. Vickers, 62 Kan. 25, 61 Pac. 391, and Cereal Co. v. Alexander, 75 Kan. 537, 89 Pac. 923), where corroborating evidence was held to have been properly received, uphold the doctrine that it is error to admit evidence based on hearsay and tending to rehabilitate a witness when such witness has not been impeached. See State v. Petty, 21 Kan. 54; Chapman v. Blakeman, 31 Kan. 684, 3 Pac. 277; State v. Keefe, 54 Kan. 197, 38 Pac. 302; Stirn v. Nelson, 65 Kan. 419, 70 Pac. 355, and State v. Henson, 105 Kan. 581, 185 Pac. 1059.
The only remaining question is whether the error in admitting Mr. Mullen’s testimony was so prejudicial as to'require a reversal of the judgment. We have little difficulty in concluding that it does. One important question in this case, under the existing facts and circumstances, was whether appellant was at the Nutt home on the morning in question and during the hours the crime was committed. Mrs. Mullen, while she did not identify the oil truck,' practically placed him there. For all practical purposes the admission of her husband's testimony gave the state two witnesses on that all important question instead of one. In that situation we are forced to conclude the testimony was highly prejudicial and compels -a reversal of the judgment.
The books are full of cases supporting the conclusions just announced. Quotations from two of them will suffice to demonstrate the basic theory on which other courts have reversed judgments of conviction because of the erroneous admission of testimony similar to that here in question. People v. Jung Hing, 212 N. Y. 393, 106 N. E. 105, holds:
“Where, upon a trial for murder, the issue of identification was close, not because the testimony pro and con was doubtful or uncertain, but because it was so direct and positive as to leave no alternative but to accept it as true or reject it as untrue, evidence that witnesses who testified as to the defendant’s identity had given similar testimony in the police station was nothing more than the unsworn confirmation of the testimony of witnesses who had not been impeached except by the usual contradictions inherent in the differing versions of the opposing witnesses, and its reception constituted error of such serious import that it is a sufficient ground for reversal, even though it was allowed to pass at the trial without objection or exception. The evidence improperly admitted had no probative effect upon the credibility of the witnesses, but bore directly upon the all-important issue of identity and may have been so harmful as to support witnesses who without it might not have been believed.
"Assuming that a witness has been so far impeached on cross-examination as to render it proper to resort to her prior consistent statements for corroboration, it is still necessary to show that they were made under circumstances which preclude the probability of their being inspired by others, and where this has not been done, testimony to the effect that prior to the trial the witness had told the same story that she narrated in court is incompetent.” (Syl. IT If 1, 2.)
In Rogers v. State, 88 Ark. 451, 115 S. W. 156, the court held:
“In a prosecution for robbery the prosecuting witness cannot be corroborated by proof that two hours after the robbery he stated to a police officer that defendant committed the robbery, nor is such testimony admissible as part of res gestae.” (Syl.)
And in the opinion said:
“The subject of prior consistent statements was recently considered by this court in Burks v. State, 78 Ark. 271, where one phase of it was discussed and the authorities reviewed. The court said: ‘After all, the effect of proof of previous consistent statements could only be to corroborate the statement of the witness under oath by his own words uttered on another occasion. It would add nothing to his statement upon the witness stand, either as to his testimony on the main issue, or as to his denial of the contradiction. We are of the opinion that the admission of the testimony by the court was improper and prejudicial, and should not have been allowed’.
“Applying the principles here, it is plain to be seen that the prior consistent statements were inadmissible; and, as their tendency was naturally to reinforce the testimony of the witness prior to an attack upon it, by incompetent testimony, it would ordinarily be prejudicial. It is necessarily so in this case, as the conviction depends solely upon the testimony of Fielder, as against the testimony tending to prove that the defendant was at another place, and could not and did not commit the robbery.”
For other decisions to the same effect see State v. Braniff, 105 Wash. 327, 177 Pac. 801; Connor v. The People, etc., 18 Colo. 373, 33 Pac. 159; W. R. Newton v. The State, 147 Tex. Crim. Rep. 400, 180 S. W. 2d 946; Gholar v. State, 203 Miss. 371, 35 So. 2d 706; Adams v. The State, 87 Tex. Crim. Rep. 67, 69, 219 S. W. 460; McKnight v. The State, 50 Tex. Crim. Rep. 252, 95 S. W. 1056; Walker v. The State, 72 Tex. Crim. Rep. 536, 163 S. W. 71; People v. Collier, 125 N. Y. S. 725; Ranck v. Brackbill, 209 Pa. 499, 58 A. 884; Mellon v. United States, 170 Fed. 2d 583; Hubbard v. Commonwealth, 174 Va. 493, 6 S. E. 2d 760; Fuller v. The State, 196 Ga. 237, 26 S. E. 2d 281; Boyd v. State, 84 Miss. 414, 36 So. 525; State v. Watson, 159 La. 779, 106 So. 302; Bennett v. The State, 160 Ala. 25, 49 So. 296; Key v. State, 29 Ala. App. 435, 197 So. 360; Kerr v. The State, 31 Ala. App. 203, 14 So. 2d 256.
Appellant’s final assignment of error is predicated upon the premise the trial court erred in refusing to grant him a new trial on ground of newly discovered evidence. Since a new trial is required because of error in the admission of evidence it would serve no useful purpose to pass upon that question.
For the reason herein stated the judgment is reversed with directions to grant the defendant a new trial.
It is so ordered. | [
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Greene, J.:
Steven Enterprises, LLC (Steven) appeals the judgment of the district court in favor of Southwest and Associates, Inc. (Southwest) based upon a contract indebtedness, claiming error in determining a contract existed between these parties and arguing that the only enforceable contract for the aluminum siding work on Steven’s building was between Southwest and Steven’s general contractor, Lien Enterprises, Inc. (LEI), now bankrupt. We affirm.
Factual and Procedural Background
Steven sought to remodel certain facilities in Wichita for an upscale used car dealership. Southwest was first contacted by Steven’s design consultant, Tony Blake, who requested that Southwest bid aluminum siding for the building. After at least two meetings between Southwest and Blake, Southwest submitted its initial bid to Blake for the work. Blake responded by phone, suggesting that the bid was high and that Southwest would have to deal directly with Brandon Steven of Steven.
After Southwest was unsuccessful in reaching Steven, it revised its bid, removing certain aspects of the work and lowering the overall price. The revised bid was communicated to Steven in a letter addressed to both Brandon Steven and Blake. Shortly after its receipt, Brandon Steven called Southwest to conclude the deal by phone. The conversation as related by a Southwest vice-president, Clinton Hageman, was as follows:
“A. [Brandon Steven] said, ‘I’m sitting here’—or ‘I’m here by Gary [Lien]’ like on speakerphone. I said hello to him. And he said, ‘I want to get this aluminum job’— Brandon said, ‘I want to get this aluminum job done. I want’—okay. He said, ‘Gary [Lien], he’s going to pay you,’ and I said, ‘Okay, as long as—it doesn’t matter, as long as I get paid.’ I asked for his billing address, and he gave that to me, and that was the end of the conversation.”
As related by Brandon Steven, the conversation was as follows:
“A. I told him the deal that I got faxed, the quote, $13,766, was okay, that Gary [Lien], who is my contractor, he’s paying it; I’m paying him; bill him for that.”
The only writings in existence among the parties are the initial bid and the revised bid; there is no completed written agreement. The only involvement of LEI was the presence of Gary Lien in the phone conference reflected above; the Southwest vice-president testified that there were no further conversations with LEI and no oversight or supervision by LEI, but that all further conversations regarding details of the work were directly with Brandon Steven. The work was completed, and Southwest billed LEI as directed. LEI filed for bankruptcy protection before Southwest was paid.
Southwest not only filed this suit against Steven alleging the existence of a binding contract and unjust enrichment, Southwest also filed a mechanic’s hen against the real property and a claim in the LEI bankruptcy. After a bench trial in the contract action, the district court found and concluded that “Mr. Steven was acting directly to negotiate the contract with Southwest and Associates and, therefore, is liable.”
Steven appeals.
Standard of Review
Whether a binding contract was entered into depends on the intention of the parties and is a question of fact. Reimer v. The Waldinger Corp., 265 Kan. 212, 214, 959 P.2d 914 (1998). Where the district court has made findings of fact and conclusions of law, we must determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the conclusions of law. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). Substantial competent evidence is such legal and relevant evidence as to provide a substantial basis of fact from which the issues can reasonably be resolved. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Appellate review of legal conclusions is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
Is the District Court’s Finding of a Contract Between Southwest and Steven Supported by Substantial Competent Evidence?
In order to find that Southwest and Steven Enterprises entered into an enforceable contract, Southwest is required to show a meeting of the minds as to all essential terms. Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107 (1981). In determining intent to form a contract, the test is objective, rather tiran subjective, meaning that the relevant inquiry is the “manifestation of a party’s intention, rather tiran the actual or real intention.” 17A Am. Jur. 2d, Contracts § 27. Put another way, “the inquiry will focus not on the question of whether the subjective minds of the parties have met, but on whether their outward expression of assent is sufficient to form a contract.” 1 Lord, Williston on Contracts § 4:1, p. 241 (1990).
We recognize that Steven had a general contract for the remodeling project with LEI and that this general contract apparently included a projected cost for aluminum siding. We also acknowledge that Brandon Steven’s version of the facts included an introduction of Gary Lien of LEI as his “contractor.” Finally, we realize that the Southwest billing was expressly directed to LEI. Steven may have believed that Southwest was a subcontractor of LEI and that the work was a part of Steven’s general contract with LEI, but it appears that the district court properly focused not upon Steven’s unstated perceptions or beliefs but rather upon the “outward expressions” of contractual assent.
Southwest was contacted by Steven’s design consultant Blake, not by LEI. The job description and further negotiations with Southwest were conducted with Steven absent any involvement by LEI. The phone conference to finalize the agreement was conducted by Brandon Steven, who undoubtedly introduced Gary Lien of LEI, but merely specified that billing and payment would be routed through LEI, a fact not inconsistent with an independent contract between Southwest and Steven. See Stewart v. Cunningham, 219 Kan. 374, 378, 548 P.2d 740 (1976). The progress of Southwest’s work was discussed directly with Brandon Steven, and LEI apparently never became involved as one would expect if LEI had been the general contractor and Southwest had been the subcontractor. In contrast, there is no evidence whatsoever that LEI manifested to Southwest an assent to be contractually obligated for payment. To the extent there is any written evidence among the parties, it is between Southwest and either Steven or Steven’s design consultant; there is no written evidence of a contractual relationship between Southwest and LEI.
Steven argues that Southwest’s claim in bankruptcy avers a contract for “goods and services” with LEI, and that this is entirely inconsistent with any direct contract with Steven. Even if inconsistent, this fact is but one of many to be considered and weighed by tire factfinder. It is not our function to reweigh the evidence; we are restricted by our standard of review even if we might have weighed the evidence differently than did the district court. Reimer v. The Waldinger Corp., 265 Kan. at 214.
Substantial competent evidence supports the district court’s finding that the only enforceable contract was between Southwest and Steven.
Is the District Court’s Conclusion that There was an Independent Contract Between Southwest and Steven Contrary to Law?
Steven argues that the district court’s finding of a separate and independent contract direcdy with a mere subcontractor (Southwest) and beyond or “outside” its general contract with LEI, is contrary to law. Steven acknowledges that Kansas law contemplates that there can be more than one contractor employed by a property owner to perform labor or furnish material on a construction project, citing Stewart v. Cunningham, 219 Kan. at 377 (see K.S.A. 60-1101), but Steven contends that Stewart requires & written contract between the erstwhile subcontractor and the owner in order to establish any independent contractual obligation outside a general contract.
The facts in Stewart are similar to those before us, and the issue was whether the enforceable contractual relationship with a plumbing, heating and air conditioning (HVAC) contractor on a hotel project was exclusively with the general contractor or directly with the owner. The initial bid had been submitted to and accepted by the owner prior to any general contract. The HVAC contractor was later advised of the existence of a general contract and payments were made to that contractor by the general contractor. The court noted, however, that change orders were negotiated between the HVAC contractor and the owner. 219 Kan. at 376. In holding tire owner liable, our Supreme Court stated:
“We hold that if an owner of property negotiates and signs a contract direcdy with a contractor to furnish plumbing, heating and air conditioning for construction of a motel such contract should be considered that of a contractor under the mechanic lien statute, K.S.A. 60-1102, and the fact that payments are channeled through another general contractor does not change the nature of that relationship. Accordingly no notice to the owner was required to perfect the lien and the trial court was correct in this regard.” 219 Kan. at 378.
Although a written contract with the owner was inherent in the Stewart facts, we disagree with Steven’s reading of the decision as explicitly requiring a written contract in order to contractually obligate an owner. Here there was no written contract involving Southwest, either with Steven or with LEI. Where no writing manifests a contract between a supplier to a construction project and either the owner or a general contractor, we decline to impose a presumption that all contracts related to the construction project obligate only the general contractor. The better rule is to apply classic principles of contract law in order to determine whether any enforceable contract exists and between which of the parties. This appears to have been the approach of the district court, and we conclude that there was no error of law.
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Greene, J.:
On a question reserved, the State appeals whether and to what extent a district court should, for purposes of determining the existence of prior convictions for violation of K.S.A 8-1567, give deference to ambiguous findings or recitals in prior jour nal entries. We conclude that the district court erred in disregarding such findings, and we sustain the State’s appeal.
Factual and Procedural Overview
The State charged Troy Allen Kralik with driving under the influence (DUI) alternatively under K.S.A. 8-1567(a)(3) and K.S.A. 8-1567(a)(2), but charged the DUI as a felony on the basis that Kralik had two prior DUI convictions. The only evidence of two prior convictions was a single journal entry from a 1991 conviction, which contained the following reference: “The court further finds that the defendant had a prior DUI in 1988.” The State was unable to locate any other evidence of a DUI conviction in 1988.
Prior to trial, in response to a question raised by Kralik on the matter, the State moved for a determination of whether the 1991 journal entry was sufficient to establish Kralik had two prior convictions of DUI. The district court refused to accept the 1991 journal entry as proof of two prior DUI convictions, finding without elaboration that it constituted evidence of only one prior DUI — the 1991 conviction. Accordingly, the court ordered that the pending DUI offense be classified as a class A misdemeanor. See K.S.A. 8-1567(e) (second conviction of DUI is class A misdemeanor.)
Kralik pled guilty to a second-time DUI and received a sentence of 180 days’ imprisonment. The court then suspended all but 10 days of the sentence and placed Kralik on probation.
The State filed a timely notice of appeal pursuant to K.S.A. 2002 Supp. 22-3602(b)(3), contending that the question reserved is one of statewide interest.
Standard of Review
The narrow question framed by this appeal requires only that we construe language contained within a journal entiy of judgment. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001); see State v. White, 23 Kan. App. 2d 363, 368-73, 931 P.2d 1250, rev. denied 261 Kan. 1089 (1997).
Threshold Issue on Reserved Question
An appeal on a question reserved by the prosecution will not be entertained merely to demonstrate that errors have been committed by the trial court. The question must be of statewide interest and vital to a correct and uniform administration of the criminal law. City of Overland Park v. Povirk, 262 Kan. 531, 532, 941 P.2d 369 (1997). The State contends that our prior cases fail to provide adequate guidance on the question reserved and that, given the importance of criminal history in sentencing, guidance on the question “would be welcomed by judges, prosecutors, and defense attorneys in all 105 counties.” Although appellee disagrees, we elect to hear this appeal and address the question in the interest of achieving a correct and uniform administration of the criminal law in Kansas. See State v. Hernandez, 29 Kan. App. 2d 522, 523-24, 28 P.3d 1031, rev. denied 272 Kan. 1421 (2001).
Overview of Prior Case Law Addressing Proof of Criminal History
The State has the burden of proving a disputed criminal history and must do so by a preponderance of the evidence. K.S.A. 21-4724(c)(4); K.S.A. 2002 Supp. 21-4715(a). When a'defendantproperly contests the accuracy of his or her alleged criminal history and the State attempts to establish criminal history with copies of official documents, those documents must satisfy the requirements of authentication under K.S.A. 60-465 to be admissible as an exception to the hearsay rule. State v. Strickland, 23 Kan. App. 2d 615, 618, 933 P.2d 782, rev. denied 262 Kan. 968 (1997). Such authentication may be proven under any of the applicable statutory subsections and need not necessarily be certified or attested under 60-465(3) or (4). State v. White, 23 Kan. App. 2d 363, 368-70, 931 P.2d 1250, rev. denied 261 Kan. 1089 (1997).
A certified copy of a journal entry of conviction is the best evidence of a prior conviction for purposes of determining criminal history. State v. Presha, 27 Kan. App. 2d 645, 646-47, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). When such a document is from a Kansas court, certification of the copy suffices to meet the authentication requirements under K.S.A. 60-465(3). Strickland, 23 Kan. App. 2d at 618. When such copies are offered from courts of other states, however, we have held that they need to be certified or attested and accompanied by the certificate.required by K.S.A. 60-465(4) in order to meet the requirements for authentication under subsections (3) and (4). 23 Kan. App. 2d at 618; see State v. Baker, 237 Kan. 54, 55, 697 P.2d 1267 (1985). All of these rules apply when the identity of the defendant has not been questioned; where identity is properly questioned, the better practice would dictate that the State should offer evidence showing that the defendant is the same person who was referenced in documentation of the prior convictions. State v. Cippola, 202 Kan. 624, 629-30, 451 P.2d 199 (1969).
Two previous cases have addressed more difficult issues in proof of criminal history. In State v. Hankins, 19 Kan. App. 2d 1036, 880 P.2d 271 (1994), journal entries of prior convictions for burglary failed to specify whether these were residential burglaries and could be counted as prior person felonies. Because the State supplemented evidence of the prior convictions with certified copies of the complaints, a panel of this court held that there was adequate proof of the prior person felony convictions. 19 Kan. App. 2d at 1050. In State v. Humphrey, 258 Kan. 372, 905 P.2d 664 (1995), a certified copy of a judgment and commitment order was admitted, but the offense was not labeled as a felony within the four comers of the documents. The Supreme Court held that where tire applicable criminal code in effect at the time of the offense clearly established that the offense was a felony, there was no deficiency in the proof of the prior felony conviction. 258 Kan. at 373.
The Question Reserved in This Appeal
Here, the 1991 journal entry unquestionably proved the prior DUI conviction in 1991 but merely mentioned a 1988 “prior DUI.” The obvious problem is that in the absence of any other proof, this does not establish a prior conviction and could .mean only (no matter how unlikely) that the defendant was merely arrested and received diversion or was acquitted of a “prior DUI.” This is undoubtedly the basis for the district court’s refusal to accept the ambiguous reference as evidence of a prior conviction for purposes of criminal history. In the absence of the additional information provided within the journal entry as discussed below, we would likely have affirmed the district court.
Following the rationale of Humphrey, however, we have examined the balance of the 1991 journal entry to determine whether there is additional information that may establish that the 1988 reference is to a prior conviction. K.S.A. 8-1567 has been amended numerous times, but the law in effect on April 9,1991, the date of the prior DUI, was L. 1990, ch. 47, sec. 3, requiring a sentence of not less than 48 hours’ nor more than 6 months’ imprisonment for a first conviction. K.S.A. 1990 Supp. 8-1567(f). For a second conviction, the sentence was not less than 90 days nor more than 1 year of imprisonment. L. 1990, ch. 47, sec. 3; K.S.A. 1990 Supp. 8-1567(g). Since the 1991 journal entry itself states that Kralik was given a sentence of 1 year for his April 9, 1991, conviction, we conclude that the journal entry alone is proof that this was his second conviction. Accordingly, the district court erred in refusing to find that the 1991 journal entry was adequate to prove two prior DUI convictions.
We hold that where examination of applicable law in effect on the date of a journal entry, together with all information within the four comers of a certified journal entry, serves to resolve any ambiguity regarding a prior conviction, the district court should consider the journal entry as adequate proof of the prior conviction for purposes of criminal history.
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MALONE, J.:
This is a claim against an insurance company and its agent for denial of insurance coverage following a fatal car accident. The plaintiffs have appealed the dismissal of some of their claims in district court. We find that this court is without jurisdiction and dismiss the appeal.
We will review only the procedural history of the case. On April 4, 1996, Dawn Lansing was .driving a 1985 Jetta when she ran a stop sign and crashed into a vehicle driven by Wilma Bourquin. Bourquin was killed in the accident. Douglas Lansing, Dawn’s husband, notified his insurance' agent, Pat Hewitt, of the accident, under a belief that the Jetta was covered by an insurance policy issued by Mid-Centuiy Insurance Company (Mid-Century). Hewitt informed Lansing there was no coverage.
The Lansings sued Hewitt and Mid-Century, claiming breach of contract, fraudulent misrepresentation, and negligent failure to procure insurance. Bourquin’s heirs were joined as plaintiffs. The district court granted the defendants’ motion for summary judgment on the breach of contract claim and the fraudulent misrepresentation claim. The claim of negligent failure to procure insurance survived, but the district court limited the damages to the amount of the policy, which was $50,000.
The plaintiffs made no attempt to seek the entiy of a final judgment on any of the claims which the district court dismissed pursuant to K.S.A. 2003 Supp. 60-254(b). However, the plaintiffs filed a motion pursuant to K.S.A. 60-2102(b) for an interlocutory appeal. The district court denied the motion, stating that “the court sees no controlling questions of law in the orders that the court has previously entered.”
After the district court denied the motion for an interlocutory appeal, the plaintiffs filed a motion to dismiss without prejudice the remaining negligence claim pursuant to K.S.A. 2003 Supp. 60-241(a)(2). The district court granted the motion to dismiss, over the defendants’ objection. The district court noted that the plaintiffs were anxious to prosecute an appeal, and the district court wished to avoid a piecemeal trial of the various claims.
The plaintiffs filed their notice of appeal. Thereafter, the plaintiffs refiled in district court their claim of negligent failure to procure insurance which had been previously dismissed without prejudice. The defendants filed a motion with this court to dismiss the plaintiffs’ appeal for lack of jurisdiction. At the time of oral argument before this court, the plaintiffs’ negligence claim was pending in district court.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002). “The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. [Citation omitted.]” Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003).
According to the docketing statement, K.S.A. 60-2102(a)(4) is alleged to provide the jurisdictional basis for this appeal. K.S.A. 60-2102(a) provides that appellate jurisdiction may be invoked as a matter of right from “(4) [a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law.” An order is considered final when all the issues in the case have been determined. See Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964). A final decision generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. American Trust Administrators, Inc. v. Sebelius, 267 Kan. 480, Syl. ¶ 1, 981 P.2d 248 (1999).
The plaintiffs argue that the voluntaiy dismissal of their remaining negligence claim ended the proceedings in district court. According to the plaintiffs, this resulted in a “final judgment” of the district court’s prior rulings which could then be appealed to the Court of Appeals. Since the dismissal of the negligence claim was without prejudice, the plaintiffs assert it could be refiled in district court without affecting jurisdiction over the appeal.
The plaintiffs cite Smith v. Welch, 265 Kan. 868, 967 P.2d 727 (1998), wherein the district court had granted the defendant’s motion for summary judgment on several of the claims asserted against him. The plaintiff then voluntarily dismissed the two remaining claims in order to pursue an appeal. The Supreme Court reached the merits of the plaintiff s appeal without specifically addressing the jurisdictional issue presented. See 265 Kan. at 869-70, 883. This pattern is repeated in other Kansas appellate court cases where a similar procedural history resulted in the court hearing the merits of the case without specifically ruling that a “final decision” had been reached. See Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987); Rieke v. Kansas Dept. of Revenue, 28 Kan. App. 2d 476, 18 P.3d 243 (2001); Turner and Boisseau, Chtd. v. Lowrance, 18 Kan. App. 2d 332, 852 P.2d 517 (1993).
In the cases cited favorably by the plaintiffs, there is no indication in the opinions that the plaintiffs refiled the dismissed claim in district court while their appeal was pending. Here, the plaintiffs admit that they have refiled the remaining negligence claim in district court.
In Bain v. Artzer, 271 Kan. 578, Syl. ¶ 2, 25 P.3d 136 (2001), the court held: “A trial court’s order granting a motion for voluntary dismissal without prejudice Is not a final order and, as such, an appellate court is without jurisdiction to consider an appeal of that order.” See Brower v. Bartal, 268 Kan. 43, 46, 990 P.2d 1235 (1999); Hodge v. Hodge, 190 Kan. 492, 492-93, 376 P.2d 822 (1962); Scott v. Craft, 145 Kan. 172, 173, 64 P.2d 10 (1937). The plaintiffs correctly point out that the above-mentioned cases involved appeals from the orders of dismissal. Since the plaintiffs are not appealing the district court’s decision to grant the dismissal without prejudice, the above cases are not on point.
In State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983), the court was confronted with a jurisdictional challenge by the defendant. The defendant alleged that the State had erroneously appealed the dismissal of several counts of a multiple-count complaint while other counts remained pending before the district court. The court noted that there were two prior opinions where the court had allowed the State to appeal partial dismissals, but in both cases the court did not specifically address the jurisdictional issue. The court noted that in neither of the previous cases “was the jurisdiction on appeal raised or considered by the court and we do not consider the decisions in those cases to be binding precedent for the issue which is now squarely before the court.” 234 Kan. at 281. The court held there was no statutory authority for the State to appeal from the dismissal of some of the counts of a multiple-count complaint. 234 Kan. at 282. The court noted: “The district court and the appellate courts cannot both have jurisdiction of a pending case at the same time.” 234 Kan. at 282.
In AMCO Ins. Co. v. Beck, 258 Kan. 726, 907 P.2d 137 (1995), a declaratory judgment action involving an insurance coverage issue, the district court entered a judgment against the plaintiff on only one of three claims. The plaintiff appealed this determination. The court, ■ on its own motion, questioned its jurisdiction, noting that the case “ ‘appears to be an attempted interlocutory appeal which is not in compliance with the requirements of K.S.A. 60-254(b).’ ” 258 Kan. at 727. The plaintiff was unable to convince the court that there was jurisdiction, and the appeal was dismissed. 258 Kan. at 730. The court noted: “There is a strong policy against piecemeal appeals in Kansas.” 258 Kan. at 728.
The Tenth Circuit Court of Appeals addressed this issue in Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147 (10th Cir. 1992). In Cook, one of three claims for relief was dismissed with prejudice. The plaintiff dismissed without prejudice her two remaining claims and brought an appeal on the claim which had been dismissed with prejudice. The Cook court held that “a plaintiff cannot be allowed to undermine the requirements of [Fed. R. Civ. Proc.] 54(b) by seeking voluntary dismissal of her remaining claims and then appealing the claim that was dismissed with prejudice.” 974 F.2d at 148. The Cook court directly addressed the definition of a “final order” and held: “[Wjhen a plaintiff requests voluntary dismissal of her remaining claims without prejudice in order to appeal from an order that dismisses another claim with prejudice, we conclude that the order is not ‘final’ for purposes of [28 U.S.C.] § 1291.” 974 F.2d at 148; see Ryan v. Occidental Petroleum Corp., 577 F.2d 298 (5th Cir. 1978).
Here, the district court dismissed some of the plaintiffs’ claims but allowed one claim to proceed to trial. The plaintiffs did not request findings for the entry of a final judgment pursuant to K.S.A. 2003 Supp. 60-254(b). However, they filed a motion for an interlocutoiy appeal pursuant to K.S.A. 60-2102(b), which was denied by the district court. The plaintiffs then requested dismissal of their remaining claim without prejudice to pursue an appeal. They compounded the potential jurisdictional problem by refiling their negligence claim in district court with the appeal pending.
To allow the plaintiffs to proceed in this fashion would render meaningless the statutory provisions invoking the jurisdiction of this court. Since a “final decision” must dispose of the entire merits of the case, it is impossible to conclude that a final decision has been rendered in district court to allow this appeal. Part of this case is pending in district court, while the remaining claims are before this court. Although the district court sought to avoid a “piecemeal trial,” the plaintiffs have created the potential for a “piecemeal appeal.” Under the facts presented, we conclude that this court is without jurisdiction to consider the appeal pursuant to K.S.A. 60-2102(a)(4).
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Brazil, J.:
Alayna Cobb appeals from the trial court’s order dismissing her negligence action against Westaff, Inc. (Westaff).
Alayna Cobb was injured when she and Danny Corbett collided in a car accident in November 2000. In November 2002, Cobb brought a negligence action against Corbett, Farmer’s Insurance Company, Inc. (Farmer’s), and Westaff. Cobb’s action against Westaff, Corbett’s employer, was based on the theory of respondeat superior.
Cobb subsequently settled with Corbett and Farmer’s for the sum of $50,000 and executed a release in their favor. In the release, Cobb agreed to discharge Corbett and Farmer’s from “any and all rights, claims, demands and damages of any kind, known or unknown, existing or arising in the future, resulting from or related to bodily injury arising” from the November 2000 accident. Lan guage in the release also provided that $50,000 was all the money Cobb would receive from Corbett and Farmer s “for any and all of my claims as a result of this accident.” An addendum to the release provided that Cobb would not be prohibited from pursuing her claims against other legally responsible parties, including Corbett’s employer.
In February 2003, Cobb filed an amended petition against Corbett and Westaff. Again, Cobb’s action against Westaff was based on the theory of respondeat superior. In its answer to the amended petition, Westaff set forth several defenses, including that the petition failed to state a claim upon which relief could be granted and that Cobb’s claims were barred by the law of release and satisfaction. In August 2003, Westaff moved to dismiss the action, alleging Cobb’s petition failed to establish a claim against Westaff. Westaff asserted that releasing an employee in exchange for settlement proceeds also releases the employer when the action is based on respondeat superior. Thus, Cobb’s action of releasing Corbett from the case effectively released Westaff.
The trial court conducted a hearing in August 2003. The trial court noted that the action against Westaff was based solely on a theory of respondent superior and there was no independent liability of Westaff. The trial court found as a matter of law that when a plaintiff settles with and gives an absolute release to a particular defendant, the plaintiff cannot then sue and recover from the defendant’s employer based on a respondeat superior theory. The trial court relied on our Supreme Court’s decisions in York v. InTrust Bank, N.A., 265 Kan. 271, 962 P.2d 405 (1998), and Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 763 P.2d 1085 (1988). The trial court granted Westaff s motion to dismiss. In November 2003, Corbett was dismissed as a defendant in the case.
We agree and affirm.
This appeal arises from the trial court’s grant of Westaff s motion to dismiss. The trial court granted the motion to dismiss based on Cobb’s settlement and release of her claim against Corbett. In Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 885, 9 P.3d 1251 (2000), our Supreme Court noted that when matters outside the pleading are presented to and not excluded by the court, a motion to dismiss for failure to state a claim shall be treated as one for summary judgment. Because tire evidence relating to Cobb’s settlement and release of her claim against Corbett was a matter outside her pleading, we apply a summary judgment standard of review.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to tire conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
The sole question on appeal is whether the trial court erred in its conclusion that the settlement and release of Cobb’s claim against Corbett barred any further action against Westaff based on a respondeat superior theory. “The effect of a release or covenant not to sue is a legal question, over which we have unlimited review.” York, 265 Kan. 271, Syl. ¶ 1.
In reaching its conclusion, tire trial court relied on Atkinson and York. Atkinson involved facts similar to those in the instant case in that the plaintiffs sued both the doctor and the doctor’s employer for medical malpractice. The suit against the employer was based solely on the theory of respondeat superior. The plaintiffs subsequently settled with the doctor but explicitly reserved their right to proceed against die doctor’s employer. The plaintiffs agreed to hold the doctor harmless for any obligations of the employer to them. Upon a motion to dismiss, the trial court dismissed the claim against the clinic. In affirming the trial court’s decision, our Supreme Court noted that die employer’s liability was based solely on the doctor’s acts and not on any independent acts of negligence. Our Supreme Court held that although die plaintiffs intended to preserve their action against die employer by executing a covenant not to sue instead of a full release, tire settlement with the doctor combined with the hold harmless agreement removed any basis for imputing liability to the employer for the doctor s acts. 243 Kan. at 714.
Included within our Supreme Court’s decision in Atkinson was a discussion of Jacobson v. Parrill, 186 Kan. 467, 351 P.2d 194 (1960). There, the plaintiffs were the surviving wife and children of Jacobson, who had been killed in an automobile collision. The plaintiffs brought separate suits against Cochran, who was the driver of the other car, and Parrill, who was the owner of.the other car. The claim against Parrill was based solely on a respondeat superior theory. The plaintiffs subsequently settled with Cochran’s estate and insurance company but reserved their right to proceed against Parrill. The plaintiffs agreed to indemnify and hold harmless Cochran’s estate for any claims arising from Jacobson’s death. Parrill sought dismissal of the claim against him, arguing this settlement barred any further action against him. The trial court dismissed the action. Our Supreme Court affirmed the trial court’s decision, finding that the plaintiffs’ acceptance of full satisfaction of the judgment against Cochran’s estate effectively extinguished their claim against Parrill. 186 Kan. at 469-72, 476. In making this decision, our Supreme Court stated:
“It does not appear this court has previously decided the question, but by the weight of authority of courts of this country which have considered the matter, a judgment against an active tort-feasor establishes the full limit of liability against other persons who are only derivatively hable as under the doctrine of respondeat superior for the active tort-feasor’s wrongful act [citations omitted], and the satisfaction of such a judgment extinguishes any right of action for derivative liability. [Citations omitted.]
“Clearly, under the allegations of the petition, Parrill did nothing to cause the plaintiff to suffer any more damages than were caused by the alleged active tort of Cochran, and the amount of those damages were established by the judgment against Cochran’s estate. The admitted full satisfaction of that judgment fully extinguished the cause of action for Cochran’s wrongful act, which is a bar to the plaintiffs prosecution of the present purely derivative liability action against Par-rill. Our cases dealing with the release of joint, concurring or successive tortfeasors and the reservation of rights against the others [citations omitted] are inapplicable to the question presented in this appeal.” 186 Kan. at 474-75.
Both Jacobson and Atkinson were cited in York, 265 Kan. at 284. In York, our Supreme Court set forth the rule that “[a] release or covenant not to sue an agent also releases a principal who is purely vicariously liable for imputed negligence under a theory of respondeat superior.” 265 Kan. 271, Syl. ¶ 3. This rule did not apply to the facts in that case, however, because defendant InTrust had independently engaged in tortious conduct. 265 Kan. at 286-87.
The holdings in Jacobson and Atkinson, which are further supported by our Supreme Court’s discussion of these cases in York establish that when a plaintiff sues an employee, and an employer on a respondeat superior theory, and subsequently settles with, releases, and agrees to hold harmless the employee, the employer is also effectively released from the case. Applying these holdings to the instant case, Cobb’s settlement with Corbett and Farmer’s, coupled with the agreement to discharge Corbett and Farmer’s from any claims for Cobb’s injuries from the accident, operated to bar Cobb’s respondeat superior claim against Westaff.
Nevertheless, Cobb believes that reliance on these cases is misplaced. Cobb asserts that Atkinson refers to cases, including Jacobson, which were decided prior to the enactment of the comparative negligence statute, K.S.A. 60-258a, in 1974. In addition, Cobb points out that York is factually distinguishable. Cobb asserts that since the adoption of comparative negligence in Kansas, the courts have moved away from theories that would bar recovery from a principal based on vicarious liability after the injured party has released the agent.
Cobb cites to Luther v. Danner, 268 Kan. 343, 995 P.2d 865 (2000), where our Supreme Court discussed the rule to be applied in Kansas when a release is executed in favor of one or more parties in a comparative negligence case. It is important to note that Luther did not involve the same issue as that in the case at hand. Instead, the issue on appeal in Luther was whether the general release of one party effectively released other parties who were comparatively at fault. In Luther, our Supreme Court discussed the flat bar rule, the specific identity rule, and the intent rule. Under the flat bar rule, the release of one tortfeasor operates to release all others. This rule stems from the concept “of the indi visible wrong of joint and several liability.” 268 Kan. at 347-48. In contrast to the flat bar rule, the specific identity rule discharges only the parties that are named in the release. Between the flat bar rule and the specific identity rule is the intent rule, which allows the parties’ intentions to govern.
Luther quoted a significant portion of this court’s decision in Geier v. Wikel, 4 Kan. App. 2d 188, 603 P.2d 1028 (1979), which discussed the effect of releases under comparative negligence principles in Kansas:
“ ‘An injured party whose claim for damages is exclusively subject to the Kansas comparative negligence statute may now settle with any person or entity whose fault may have contributed to the injuries without that settlement in any way affecting his or her right to recover from any other party liable under the act. The injured party is entitled to keep the advantage of his or her bargaining, just as he or she must live with an inadequate settlement should the jury determine larger damages or a larger proportion of fault than the injured party anticipated when the settlement was reached. It follows that the type of release given will have no effect on any party not specifically named in the instrument.’ 4 Kan. App. 2d at 190.
In addition, the Court of Appeals quoted from a similar resolution to a similar question in Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 748-49 (D. Kan. 1978):
‘ “ ‘[Sjince a given defendant in a case governed by K.S.A. 60-258a can be held liable in any event only for that percentage of injury attributable to his fault, a release of that defendant cannot inure to the benefit of potential co-defendants. Under former rules of joint liability, to release one defendant unconditionally may have been viewed as relinquishment of the right to recover one’s entire damages from a party liable, and thus as extinguishing the action as to potential defendants who stand as third-party beneficiaries to the release. This cannot be the case in an action under K.S.A. 60-258a.’ ” ’ 4 Kan. App. 2d at 190.” 268 Kan. at 350-51.
The Luther court went on to adopt the specific identity rule set forth in Geier, stating that:
“Once comparative fault principles replaced those of joint and several liability, the earlier rule that ‘boilerplate universal release language’ could extinguish rights no longer fit the theory of wrongdoing. Because the boilerplate language continued to appear in release instruments, our courts formulated an approach that harmonizes with the current tort theory. The approach, moreover, affords protection to the settling party by creating a presumption against wholesale discharge and affords protection to the nonsettling tortfeasors by making it rebuttable.” 268 Kan. at 351-52.
In Mulroy v. Olberding, 29 Kan. App. 2d 757, 30 P.3d 1050 (2001), rev. denied 273 Kan. 1036 (2002), a respondeat superior case, this court applied the reasoning in Luther. The court ultimately found that the release of the employee from the lawsuit did not operate to release the employer. Under the facts, Mulroy sued Olberding after they were involved in an automobile accident. Mulroy also sued Olberding’s employer, Western Resources, Inc. (Western), on a respondeat superior theory. At a hearing regarding jury instructions on the day before trial, there was a suggestion by Mulroy that a particular jury instruction be given. Western’s counsel suggested that Olberding be taken out of the case so that Mulroy could get his instruction. When the hearing resumed after the noon recess, Mulroy asked the trial court to dismiss Olberding. Mulroy advised he would proceed solely against Western. When the trial court asked for comments, Western’s counsel said that he would comment after the ruling. The trial court dismissed Olberding with prejudice. Western’s counsel immediately moved for dismissal, arguing that Mulroy could no longer proceed on a claim of vicarious liability once Olberding was dismissed. The trial court agreed and granted the dismissal with prejudice. 29 Kan. App. 2d at 757-61.
Mulroy appealed the trial court’s decision, and this court determined that because Kansas applies the specific identity rule in negligent tort cases, there was no general release. 29 Kan. App. 2d at 763. This court went on to state:
“Western, in essence, is arguing the dismissal with prejudice of Olberding is a general release of all tortfeasors. Such an interpretation attempts to breathe life back into the flat bar rule in comparative negligence cases. Although tire liability of Western is premised upon respondeat superior, the controlling fact in Mulroy’s cause of action was the comparative negligence of Olberding and Mulroy. Thus, the specific identity rule for releases in comparative negligence cases applies.” 29 Kan. App. 2d at 766.
The Mulroy court noted that Atkinson and York are factually distinguishable because the plaintiffs in those cases received actual settlements from the released tortfeasors. In contrast, Mulroy received no settlement from Olberding for the dismissal. 29 Kan. App. 2d at 766.
The instant case is also factually distinguishable from Mulroy. Cobb settled her claim against Corbett for the sum of $50,000. She agreed to discharge Corbett from “any and all rights, claims, demands and damages of any land, known or unknown, existing or arising in the future, resulting from or related to bodily injury” from the November 2000 accident. In addition, Cobb agreed she would not receive any additional money from Corbett “for any and all of my claims as a result of this accident.” Different from the facts of Mulroy, Cobb received satisfaction of her claim against Corbett before extinguishing his liability.
As discussed previously, the facts of this case fit squarely within our Supreme Court’s decisions in Atkinson and Jacobson. Specifically, these holdings establish that when a plaintiff brings a negligence action against an employee and an employer on a respondeat superior theory and subsequently settles with, releases, and agrees to hold harmless the employee, the employer is also released from the action. Atkinson was decided after comparative negligence liability was adopted in Kansas and also after this court set forth the specific identity rule in Geier, 4 Kan. App. 2d 188. This court in Mulroy, although applying the specific identity rule, did not change the rule set forth in Atkinson. Because Mulroy was decided on different factual circumstances, the holding is inapplicable to the facts of this case.
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Johnson, J.:
James Kirby appeals his sentence for burglary, complaining that the district court erroneously applied the presumptive prison provision of K.S.A. 2003 Supp. 21-4704(1). Finding the enhancement provision was correctly applied, we affirm.
A detailed factual recitation is unnecessary. The issue involves two burglary cases. The first, Case No. 02 CR 35, prosecuted acts committed between April 6 and May 9, 2002. The second, Case No. 02 CR 60, prosecuted acts committed August 8, 2002, which was after Kirby had pled guilty in Case No. 02 CR 35, but before sentencing on either case. The timeline of the two burglaries is as follows:
April 6-May 9, 2002—Case No. 02 CR 35—burglaiy committed
August 2, 2002—Case No. 02 CR 35—guilty plea entered ,
August 8, 2002—Case No. 02 CR 60—burglary committed
September 18, 2002—Case No. 02 CR 60—burglary conviction
January 17,2003—Case No. 02 CR 35—sentencing, followed by Case No. 02 CR 60 sentencing
Kirby stipulated to his criminal history score and to the order of restitution. This appeal only concerns Kirby s prison sentence for the burglary in Case No. 02 CR 35. Kirby complains of the district court’s application of the enhancement provision of K.S.A. 2003 Supp. 21-4704(1), which states: “The sentence for a violation of subsection (a) of K.S.A. 21-3715 and amendments thereto when such person being sentenced has a prior conviction for a violation of subsection (a) or (b) of K.S.A. 21-3715 or 21-3716 and amendments thereto shall be presumed imprisonment.” Specifically, Kirby contends that “prior conviction” in 21-4704(1) does not include his Case No. 02 CR 60 burglary, which was committed after his Case No. 02 CR 35 conviction.
We perceive our task is to interpret the temporal significance of “prior conviction,” i.e., must the enhancing conviction be prior to: (1) the commission of the subject burglary; (2) the conviction for the subject burglary; or (3) the sentencing on the subject burglary. Interpretation of a statute is a question of law, granting this court unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
At first blush, the district court’s use of the Case No. 02 CR 60 conviction to enhance the Case No. 02 CR 35 sentence, followed by using the Case No. 02 CR 35 conviction to enhance the Case No. 02 CR 60 sentence, appears circuitous. Also, one could assert that the presumptive sentence for Case No. 02 CR 35 should not be driven by whether Kirby was able to effect his sentencing on that case, prior to his trial in Case No. 02 CR 60. However, Kirby does not address the logistical problem of his serving a presumptive probation sentence in Case No. 02 CR 35, while consecutively serving the presumptive prison sentence in Case No. 02 CR 60. See K.S.A. 21-4608(d) (sentence for crime committed while on felony bond shall be imposed consecutively). Nevertheless, we perceive our role to be the interpretation of statutory language, utilizing established rules of construction, without ruminating upon any policy considerations. Cf. O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575-76, 56 P.3d 789 (2002).
Kirby promotes our consideration of the strict construction rule applicable to criminal statutes. A fuller recitation of that rule is:
“Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legis lative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
The State argues that we should be guided by the language of K.S.A. 21-4710(a):
“A prior conviction is any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
However, that provision is specific to criminal history. It was presumably applied by the sentencing court to calculate Kirby s criminal histoiy score, which is not being appealed. Arguably, if the legislature intended to apply the 21-4710(a) criminal history definition of “prior conviction” to file enhancement provisions of K.S.A. 2003 Supp. 21-4704(1), it would have been a simple matter to have said so. We are not persuaded by tire criminal history definition.
We resolve the matter by applying the most basic rule:
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Stripped down, K.S.A. 2003 Supp. 21-4704(1) says that “[t]he sentence for [burglary] when such person being sentenced has a prior conviction for [burglary] shall be presumed imprisonment.” (Emphasis added.) Plainly, the inquiry into whether the burglar has a prior burglary conviction is made at the time the person is being sentenced, ie., at the sentencing hearing. Here, at the sentencing hearing in Case No. 02 CR 35, Kirby had another conviction, in Case No. 02 CR 60, which was prior to the date of sentencing. Therefore, the district court correctly applied tiie enhancement provision of K.S.A. 2003 Supp. 21-4704(1) by imposing a presumptive prison sentence in Case No. 02 CR 35.
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Green, J.:
This appeal arises from a decision of the Workers Compensation Board (Board) to deny death benefits to Barbara Tate, the surviving spouse of Howard Tate. Howard was killed in a single-car accident on his way to work overtime for the City of Junction City (City). The Board determined that because Howard was killed on his way to assume the duties of employment, Howard’s death did not occur in the course of employment.
The single question on appeal is whether the facts of this case fall within an exception to the general rule that injuries incurred while the employee is on the way to assume the duties of employment are not covered under the Workers Compensation Act (Act), K.S.A. 44-501 et seq. Barbara cites two recognized exceptions to this rule: (1) When the employee is an emergency services provider and is responding to an emergency and (2) when the employee’s journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed. Under the facts of this case, we find that neither exception applies. As a result, the Board was correct in its determination that Howard’s death did not occur in the course of employment and in denying workers compensation benefits. Accordingly, we affirm the Board’s decision.
Facts
Howard died on Saturday, Februaiy 9, 2002, while he was on his way to work for the City. Howard and Barbara lived in White City, which is approximately 24 miles from Junction City. Howard’s normal employment hours were Monday through Friday, 7:30 a.m. to 4:30 p.m. He worked as an equipment operator II in the street department and performed general maintenance tasks to keep the streets functional. Some of the “essential duties and responsibilities” of his job included repairing streets and pavement, trimming trees, clearing storm drains, changing out traffic light bulbs, and operating a snowplow to clean the streets during snow and ice storms.
Barbara testified that when Howard arrived home on Friday, February 8, 2002, he said he needed to stay around the house because they were expecting a front and he was on call for Saturday. Nevertheless, Ray Ibarra, director of public works for tire City, testified that there was no such thing as “on call” and that overtime work was done on a voluntary basis. He further testified that when there was a storm moving into the area, the employees were told to be around if they wanted some overtime. Ibarra stated the employees would not be disciplined if they chose to be unavailable for overtime work. Erie Bergstrom, street foreman for the City, testified that the employees were not required to perform overtime work but that “ordinarily everybody always came in” because they wanted the overtime.
On Saturday, February 9, 2002, Bergstrom noticed that it had started snowing and attempted to call Howard, along with four other employees, to come into work. Howard and Barbara did not have a telephone during this time, and the City would call Nancy and Bobby Clemons if they needed to contact Howard. When Bergstrom attempted to contact the Clemons, the telephone line was busy. Bergstrom went outside to get his truck going and told his wife, Phyllis, to continue calling. Phyllis eventually spoke with Nancy and asked her to leave a message for Howard to see if he could come into work.
Nancy testified that she went across the street to Howard’s house and told him, “Howard, your work called and they wanted to know if you wanted to come into work.” She further testified that Howard said he was going to stick around and get a cup of coffee before he left. Different from Nancy’s testimony, Barbara said that Nancy came over and said, “Guess what, you just got called in.” At the time, she and Howard were drinking coffee and he said that he was going to finish his coffee before he left for work.
Howard left his house at approximately 3 p.m. on Saturday but never reported to work. Ibarra testified that Howard would have reported to the City’s public works department, at which time he would have been assigned the roads he was supposed to clear. It was later discovered that Howard had been traveling on Highway 77 when his car slid off the road and into a ditch that contained water. Howard’s body was discovered in the water outside of his car. The autopsy report indicated that Howard had struck his head, had been thrown from the car, and had died by drowning. Officer Nate Sparks determined that sleet and snow had contributed to Howard’s accident. Sparks testified that he recovered from Howard’s clothing a snow route map of the city streets. After finding this list and speaking with Phyllis and some of Howard’s coworkers, Sparks concluded that Howard was on his way to work when he was involved in the accident.
After Howard’s death, an action for death benefits for Barbara was initiated under the Act. The City contested the claim and argued that Howard’s injury did not arise out of or occur within the scope of employment. The City pointed to the “going and coming rule” which, as a general rule, excludes commuting workers from receiving workers compensation benefits for injuries that were sustained while in transit to their place of employment. On the other hand, Barbara argued that Howard’s injuries were compensable as his trip to work fell within an exception to the going and coming rule, as recognized by our Supreme Court in Estate of Soupene v. Lignitz, 265 Kan. 217, 960 P.2d 205 (1998). Barbara asserted that Howard’s trip was made under a special degree of inconvenience or urgency and was a substantial part of his employment and, therefore, was excepted from the going and coming rule. The administrative law judge (ALJ), after considering the Soupene case, determined that Howard’s accident arose out of and in the course of his employment. As a result, the ALJ awarded workers compensation death benefits to Barbara.
The City appealed this award to the Board. On appeal, the Board looked at the emergency services exception of K.S.A. 44-508(f). This exception essentially provides that an employee who is a provider of emergency services and is responding to an emergency is excepted from the going and coming rule. The Board also looked at Soupene, where a volunteer firefighter was killed in a car accident while responding to a fire call. In that case, our Supreme Court determined that the going and coming rule did not apply to volunteer firefighters responding to an emergency. 265 Kan. at 226-27. The Board determined that Howard’s death did not fit the emergency services exception. The Board determined that unlike firefighters, policemen, and ambulance drivers, Howard’s employment did not fit the emergency services exception.
The Board concluded that because Howard was killed on his way to assume the duties of his employment, Howard’s death did not occur in the course of his employment. Accordingly, the Board denied death benefits to Barbara and reversed the ALJ’s decision.
Standard of Review
Barbara contends that the Board erred in denying death benefits to her under the Act. She argues that Howard’s trip to work came within two recognized exceptions to the general rule that injuries incurred while the employee is on the way to assume the duties of employment are not covered under the Act. Barbara cites to (1) the emergency services exception of K.S.A. 44-508(f) and (2) the “journey as a substantial part of the service” exception recognized by our Supreme Court in Soupene, 265 Kan. 217, Syl. ¶¶ 1, 3.
Our Supreme Court in Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995), set forth the appropriate standard of review of the Board’s decisions:
“Review of the Board’s decision is now by the appellate courts in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See L. 1995, ch. 1, [sec.] 3.
“Under K.S.A. 77-621, appellate review is explicitly limited to questions of law. That statute states, in relevant part:
‘(c) The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole . . . ; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.’ ”
In this case, we must determine whether the Board’s factual findings were supported by substantial competent evidence and whether the Board erred in its determination that the exceptions to the going and coming rule did not apply to the facts of this case.
“Although this court may substitute its judgment for that of the Board on questions of law, on disputed issues of fact an appellate court must view tire evidence in the light most favorable to the prevailing party and determine if there is substantial competent evidence to support the Board’s determinations.” Brobst v. Brighten Place North, 24 Kan. App. 2d 766, 770, 955 P.2d 1315 (1997).
Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 191-92, 62 P.3d 236 (2003).
“The Kansas Workers Compensation Act, K.S.A. 44-501 etseq., is to be liberally construed for the purpose of bringing employers and employees within its provisions to provide protection of the Act to both. [K.S.A. 44-501(g)].” Graff v. Trans World Airlines, 267 Kan. 854, Syl. ¶ 1, 983 P.2d 258 (1999). “In proceedings under tire workers compensation act, the burden of proof shall be on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which tire claimant’s right depends.” K.S.A. 44-501(a).
Going and Coming Rule
The relevant portion of K.S.A. 44-508(f) sets forth the going and coming rule as follows:
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, die proximate cause of which injury is not the employer’s negligence.”
Consequently, an employee will be denied compensation under the Act if his or her injuries come within this general rule. The rationale behind the going and coming rule is that “ ‘the injury does not arise out of the nature, conditions, obligations or incidents of the employment, while the employee is on his way to assume his duties or after leaving his duties, which is not proximately caused by the employer’s negligence.’ ” Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 436, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984).
Emergency Services Exception
The emergency services exception to the going and coming rule states: “An employee shall not be construed as being on the way to assume the duties of employment, if the employee is a provider of emergency services responding to an emergency.” K.S.A. 44-508(f).
Barbara contends that Howard’s death came within this exception as he was lulled while responding to an urgent call from the street department to clear snow from the streets. She asserts that street department employees, such as Howard, have no set hours with respect to clearing snow and assume the duties of employment when they respond to the call to come in and work.
Barbara attempts to characterize Howard’s employment as that of an emergency services provider. The evidence, however, does not support such a conclusion. Howard was employed as an equipment operator II for the City. Although one of his job responsibilities was to clear snow from the city streets during snowstorms, Howard had other job responsibilities. Some of his other job tasks included operating a grader and backhoe, driving trucks of various sizes, and performing routine inspections and maintenance on equipment. Howard’s regular work hours were from 7:30 a.m. to 4:30 p.m., Monday through Friday.
Although the street department employees were expected to clear snow during regular working hours, they were not required or expected to come into work on their days off. Both Ibarra’s and Bergstrom’s testimonies indicated that clearing snow off the city streets outside of regular working hours was done on a voluntary basis. Although Barbara testified that Howard stated he was on call for that Saturday, Ibarra testified drat there was no such thing as on call. In addition, Ibarra’s testimony revealed that Howard was not required to be in a place where he could be reached for overtime work. When Howard was contacted on the Saturday in ques tion, he was not ordered into work. Rather, Phyllis left a message asking if Howard could come in and help clear snow.
The Board determined that unlike policemen, firefighters, and ambulance drivers, Howard’s employment did not fit within the emergency services exception. The Board listed the following reasons for its decision. First, responding to emergency calls was not an integral and necessary part of Howard’s job. Second, Howard’s job “did not entail a special degree of inconvenience and urgency.” Third, there was not a sense of urgency when Howard responded to the request for overtime as he did not leave immediately. Fourth, the evidence failed to show that Howard had to drive at a fast speed or use emergency lights to get to the overtime work. Fifth, Howard was not required or expected to work overtime. Sixth, the acceptance of overtime was completely voluntary. Seventh, Howard was not on call and was not expected or requested to be at a place where he could receive the overtime call. Finally, Howard was not paid until he reported to his supervisor at his place of employment for the City.
The Board did not err in its determination that Howard’s employment did not fit within the emergency services exception. The evidence in this case simply did not establish that Howard was an emergency services provider within the meaning of K.S.A. 44-508(f). Howard was not an emergency services provider but rather was a street department employee with regular working hours. The fact that he chose to work overtime during a snowstorm did not convert his employment into an emergency services job. The Board’s findings were amply supported by the evidence. Furthermore, the Board’s findings sufficiently established that the facts of this case did not fit within the emergency services exception of K.S.A. 44-508(f).
Journey as Substantial Part of Service Exception
Barbara next cites to the following exception that was recognized by our Supreme Court in Soupene, 265 Kan. 217, Syl. ¶ 1:
“The going and coming rule of K.S.A. 44~508(f), excluding off-premises injuries during travel to and from work from coverage under the Workers Compensation Act, does not apply if the making of the journey, or the special degree of incon venience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed.”
In order to understand tire above statement, it is necessary to briefly review the facts of Soupene. In that case, a volunteer firefighter was killed in a car accident while responding to a fire call. Soupene’s estate sued Lignitz, the driver of the other car who was also a volunteer firefighter. Our Supreme Court affirmed the trial court’s grant of summary judgment and its holding that both Soupene and Lignitz were covered under the Act. 265 Kan. at 225-27.
After Soupene’s accident but during the course of the case, the legislature enacted the emergency services exception. One of the arguments on appeal was that this exception changed existing law and that volunteer firefighters on their way to the station were not previously covered under the Act. Our Supreme Court disagreed with this argument and determined that the going and coming rule did not apply to volunteer firefighters responding to an emergency. 265 Kan. at 220-26. In determining that Soupene’s accident occurred in the course of employment, our Supreme Court reasoned:
“Responding to emergency calls is an integral and necessary part of a volunteer firefighter’s duties, which entails a special degree of inconvenience and urgency. When an emergency call is received, volunteer firefighters are expected to report either to the fire station or to the site of the fire. Volunteer firefighters have no set hours of employment, but rather are on call and assume the duties of their employment when they receive an emergency call and begin to respond.” 265 Kan. at 225.
Our Supreme Court went on to determine that Soupene’s accident occurred in the course of his employment as Soupene had assumed the duties of his employment when he began responding to the emergency call. 265 Kan. at 225.
It is apparent that the facts of Soupene are very different from the facts of this case. In contrast to Soupene’s irregular schedule as a volunteer firefighter, Howard had regular working hours. While Soupene was required to urgently respond to a call from whatever location he was at, Howard’s decision to work overtime was voluntary.
In order to fit within the journey as a substantial part of the service exception recognized in Soupene, it must be shown that Howard’s trip to work, or the special degree of inconvenience or urgency under which it was made, must have been a substantial part of the service for which he was employed.
Barbara contends that the Board erred in failing to consider and apply the Soupene exception to the facts of the instant case. Barbara’s contention that the Board did not consider this exception is simply not true. Although the Board did not differentiate the exception recognized in Soupene from the emergency services exception, it is apparent that the Board considered the Soupene case and applied its reasoning to the facts of this case. Specifically, the Board determined that Howard’s job “did not require him to regularly respond to emergency calls and, therefore, that was not an integral and necessary part of his duties.” The Board further determined that Howard’s job did not entail a “special degree of inconvenience or urgency.” In addition, the Board found that there was not a sense of urgency when Howard responded to the request to work overtime as he finished having a cup of coffee before leaving for work.
Substantial competent evidence exists in the record to support diese findings made by the Board. Furthermore, these findings were sufficient to conclude that Howard’s death did not come within the Soupene exception. As discussed previously, Howard’s normal working hours were Monday through Friday, 7:30 a.m. to 4:30 p.m. His job as an equipment operator II did not require him to come in to clear snow on a Saturday. He could accept or refuse the opportunity to work overtime. Howard was not paid for his overtime work until he reported to his place of employment for the City. Consequently, Howard’s trip to report to work to clear snow on a Saturday was not a substantial part of his services with the City. As a result, he does not fit within this exception.
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Pierron, J.;
In this declaratory judgment action involving a commercial real estate lease, appellants Paul Z. Moses and Ruth E. Moses appeal the trial court’s decision that they were estopped and/or waived their right to assert a breach of contract and that appellee Concrete Accessories Company, Inc., properly exercised its option to purchase the property under the lease agreement. Appellants argue appellee did not have an option to purchase due to its status as a holdover tenant and the trial court’s conclusion on estoppel and waiver is not supported by substantial competent evidence. We affirm.
The facts in this case are for the most part undisputed.
On January 18,1996, appellants entered into a written lease with appellee for commercial real estate and buildings commencing on March 1, 1996, and terminating on February 28, 1999. Rent for the property, which was divided into two parcels, was a combined amount of $4,700 per month for the first year, $4,800 per month for the second year, and $4,900 per month for the third year. The lease also provided that appellee would pay all the real estate taxes at the 1995 assessment levels and appellants would be responsible for any tax amount in excess of the 1995 assessment levels. Appellee had the right to make any additions or improvements at its expense.
The parties contemplated possible renewal of the lease for three additional 3-year periods. Paragraph 2(h) provided:
“Lessee will have the option to renew this lease, for three additional periods of three years, upon 90 days written notice to Lessor. The rental rates for the combined Parcels 1 and 2 for the option periods are as follows:
Option period 1 $5,000 per month
Option period 2 $5,250 per month
Option period 3 $5,500 per month
“All other terms and conditions remain unchanged.”
The lease also allowed appellee an option to purchase the subject property. Paragraph 17 provided:
“Lessor does hereby grant to Lessee, solely as additional consideration for the rent to be paid by Lessee hereunder, the exclusive option to purchase both Parcel 1 and Parcel 2 for the aggregate sum of $400,000.00 In addition to Lessee’s purchase option, Lessee is also hereby granted by Lessor a right of first refusal regarding any sale of Parcel [sic] and Parcel 2.”
On January 20, 1999, the accountant for appellee sent a letter to appellants concerning the payment of real estate tax provisions in the lease and appellants3 failure to timely pay certain back taxes. Appellee stated it would pay the back taxes and then offset the amount by reducing its rent payment by a proportionate amount over the next 9 months. The letter contemplated a continuation of the lease:
“Our proposed solution to this situation would be to withhold an amount from your lease payment every month, beginning March of 1999 until the amount is resolved. We would withhold $600 in March, and $1,000 each month until the end of 1999 (9 months) which would satisfy the $9,600.00 overpayment. We propose that, in the future, we will pay the full amount we owe for each year, $6,347.21 directly to you prior to December 20 of each year, and you will be responsible for paying the tax to the county.”
Appellee gave no other formal written notice that it was extending the lease for the first 3-year option period. On February 28, 1999, the original 3-year term expired without comment by any party. Beginning with the rent due in March 1999, appellee paid the increased rental amount of $5,000 due under tire first 3-year option period with no objection by appellants. Appellee continued to deduct the amount of back taxes owed by appellants.
Gregg Fuson, appellee’s financial manager, testified that he did not have any problems understanding the renewal provisions of the lease and that he did not give the required notice to renew the lease. Fuson stated it was his understanding of local practice with regard to commercial leases that written notice, even though called for in the lease, was not sent. Instead, he believed that payment of the first rental payment in the renewal period would create a renewal of the lease.
From 1999 through 2001, the parties continued the relationship of increased rent payments and a deduction of back taxes. On January 18, 2002, appellants, through their attorney, sent a certified letter informing appellee that the lease had expired on February 28, 1999, that appellee had failed to exercise the option to renew the lease, and that appellee was a tenant at will. The letter stated the tenancy would be terminated as of midnight on February 28, 2002. On January 29, 2002, appellee, through its attorney, sent a letter informing appellants that the parties had been acting in accordance with the lease agreement throughout the first option period and that appellants had continually accepted the benefit of the lease agreement and could not now deny the existence of the terms of the lease.
On February 21, 2002, appellee filed a petition for declaratory judgment seeking a finding that the lease agreement was valid and binding and that appellee had either exercised both the first and second option periods or that appellants had waived any requirements for notice of renewal. On February 26, 2002, appellee gave notification that it was exercising its option to purchase the prop erty for $400,000 pursuant to the terms of the lease. The trial court established an escrow account for $400,000.
Appellee filed a motion for partial summary judgment seeking a ruling that appellee properly exercised the option to purchase in the lease agreement and it was enforceable as a matter of law even if appellee was only a month-to-month tenant as asserted by appellants and/or was a year-to-year holdover tenant pursuant to K.S.A. 58-2502. The trial court stated in its ruling from the bench:
“And that means the question for the court this afternoon — and Counsel are in agreement, it’s a question of first impression in Kansas — is, where you have a holdover tenant on a year to year basis and the holdover tenant is a holdover from a written lease, do all of the terms of that lease continue to be in effect.
“I find under the terms of this lease that they do. The lease itself recognizes that part of the consideration for the lease payments or rent, as it’s called, is the option to purchase the two parcels, and I find that that distinguishes it from most of the case — well, actually, all the cases cited by the parties. There are no cases that are exactly [on] point, unless they’re covered by a statute, and that takes them out of point, I guess.
“But I find as a matter of law that paragraph number 17 of the January 18,1996 lease remained in effect . . . on . . . February 26th of 2002.”
Following the ruling on summary judgment, the trial court conducted a hearing on issues surrounding whether appellee exercised the first option to renew and whether appellants were estopped or waived any objection to appellee’s failure to properly exercise the option.
The trial court found appellee did not strictly comply with the option to renew for the first 3-year option period. The court concluded that both parties ignored some terms of the lease agreement but there was no offsetting clean hands doctrine because appellee invested substantial funds into the renovation of the property, appellee paid the real estate taxes which were appellants’ obligation, and appellee paid the increased rent amount consistent with the first option to renew lease period. The court held appellants were estopped and waived their right to assert a breach 2 years and 11 months into the first 3-year option to renew period and that appellee properly exercised its option to purchase the property under the lease agreement.
Appellants argue there was not substantial competent evidence to support the trial court’s waiver and estoppel conclusions of law.
The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support tire trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001).
Appellants argue it is undisputed that appellee did not give the proper notice of renewal pursuant to the lease and that the first time appellee gave actual notice that it had exercised the first renewal option was on January 29, 2002. Appellants state they had no obligation to remind appellee of its right to renew, or to inform appellee that it had not given the proper notice to review, or to notify appellee that it was a holdover tenant, or upon receipt of the increased rental check to inform appellee that it was not pursuant to the first renewal option. Appellants also argue there is no substantial evidence in the record of any dates or costs of renovations made to the subject property.
Appellants contend their acceptance of the increased rent does not constitute wavier or estoppel of their right to assert any breach of lease issues. They cite Hudson Oil Company of Mobile, Inc. v. McLeod, 424 F.2d 1269 (5th Cir. 1970); Vuci v. Nathans, 357 So. 2d 561 (La. App. 1978); Dyer v. Ryder Student Transp. Services, 765 A.2d 858 (R.I. 2001). Appellants state that appellee never told them if they accepted the increased rent that it constituted a renewal of the first option period of the lease and appellants believed appellee was paying the additional rent as a holdover tenant. Appellants state there was confusion about which party would pay the taxes, but apparently argue they were not required as a result of all the correspondence about the taxes to notify appellee they did not consider the correspondence to be a notice of renewal.
Appellants’ authority concerning acceptance of increased rent is unconvincing. In Dyer and Vuci, the courts did not even discuss the increased rent and, in fact, the court in Vuci stated there was some testimony that the lessee did not wish to extend the lease and that his continued occupancy was under a new verbal agreement. The court in Hudson stated that “[wjaiver cannot be implied from the facts here, including acceptance of increased rent. It must be manifested in some unequivocal manner not found here.” 424 F.2d at 1271. The court in Hudson cited McIntyre v. Coker, 274 Ala. 457, 150 So. 2d 220 (1963), which is more in line with the waiver facts presented in the case at bar.
In McIntyre, Coker was the lessee of property under two leases with primary terms expiring on December 31, 1956. Both leases contained provisions allowing for renewal for two additional 5-year periods if written notice were given at least 30 days prior to the expiration of the primary term and again at the end of the first renewal term. Coker did not give written notice, but the lessor continued accepting rent after the end of the primary term without mentioning the failure of notice to renew. On December 8, 1960, the lessor sold the property to McIntyre, who demanded possession of the property from Coker. Coker filed a declaratory judgment action, and the trial court held that both leases had been legally extended to December 31, 1961, and that Coker had the right to a second 5-year extension provided for in the lease.
The Mclntrye court affirmed the trial court, stating:
“In so far as we are advised, this court has not been called upon heretofore to pass on the question as to whether a holding over and payment of rent is sufficient to constitute a renewal of the lease for the additional term, at the same rental, when the lease provides for the lessee to give to the lessor written notice of the lessee’s intention to renew.
“The courts of other states are not in agreement, but we believe the better view to be that where there is no distinction between a ‘renewal’ provision and one for the extension of the lease, as is the rule in this state, a lessee who enters into possession of the demised premises under a lease for a fixed term, with the privilege of renewing it by giving written notice to the lessor, and continues in possession after tire fixed term has expired, paying the rent therefor as it becomes due, thereby elects to exercise the option for a renewal, although no written notice was given. In such a lease the requirement of a written notice may be waived by the parties, and a waiver may be implied when the lessee remains in possession and pays the rent to the lessor. [Citations omitted.]” 274 Ala. at 461.
Appellants also argue the trial court’s decision conflicts with Duffy v. Casady, 29 Kan. App. 2d 549, Syl., 28 P.3d 1040 (2001), wherein the Duffy court stated: “[Ejquity could not be invoked to extend or renew a commercial lease that has already expired by its express terms.” There, the lessee gave proper notice of renewal for several renewal periods, but when the lessee mistakenly missed the date for proper notice, the lessor immediately terminated the lease. The facts in Duffy are not similar to the present situation.
Whether there is a waiver of timely notice of exercising an option is a question of fact to be determined from the circumstances indicating the intention of the parties. Waiver may be inferred from the conduct of the parties. 49 Am. Jur. 2d, Landlord and Tenant §§ 186, 187 (1995); see Wharf Restaurant v. Port of Seattle, 24 Wash. App. 601, 609, 605 P.2d 334 (1979).
Appellants argue estoppel does not apply because there is nothing they did upon which appellee relied to its detriment. Appellants argue waiver does not apply because appellee did not produce any evidence proving they waived the provisions in die lease requiring 90 days’ written notice in order to renew the lease.
A party asserting equitable estoppel must show that another party, by acts, representations, admissions, or silence when he or she or it had a duty to speak, induced the party asserting estoppel to believe certain facts existed. The party asserting estoppel must also show that the party rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny tire existence of such facts. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The trial court’s decision that appellants waived their right to challenge appellee’s failure to give proper notice is supported by substantial competent evidence. Appellants cannot claim they did not contemplate an extension of the written lease. This case does not involve a lease without any renewal options. Rather, it involves a written lease with three additional option or renewal periods. Prior to the expiration of the primary term of tire lease on February 28, 1999, appellee sent appellants a letter dated January 20,1999, detailing how the property taxes would be subtracted from the rent payments through the end of the year, which time frame continued into the first renewal option period. The parties continued through the first option period in compliance with an apparent renewal of the lease. Appellants accepted, without objection, the timely rent payments for 35 of the 36 months in the first option period before alleging a default in the notice of renewal. Appellee paid its monthly rent and increased the rent payment in line with the increases contemplated in the written lease.
We agree with the trial court that appellants waived any breach of the lease through their acceptance of material or substantial performance of die first renewal option.
Further, appellants do not dispute the improvements made to the property, only that the evidence does not indicate the exact date of the improvements and their cost. The testimony at trial included evidence that appellee improved the property by stuccoing one of the buildings, paving the parking lot, fencing portions of the property, remodeling the interior of a building, and repainting all six large buildings on the property.
There is also substantial competent evidence, based on undisputed evidence, that appellee exercised its option to purchase on February 26, 2002, prior to the expiration of the first 3-year renewal period. Appellee gave written notification that it was exercising its option to purchase the property for $400,000 pursuant to the terms of the lease. Appellee was in the third year of the first 3-year renewal period. The first 3-year option period would have expired on February 28, 2002. There is substantial competent evidence to support the trial court’s decision that appellee properly exercised its option to purchase.
Appellants argue that appellee, as a holdover tenant, does not have the option to purchase the property. Appellants state the option to purchase expressly expired upon the termination or expiration of the lease and in this case the lease expressly terminated on February 28, 1999. They argue that by definition to be a holdover tenant the underlying lease has to terminate or expire. Appellants argue the trial court erred in construing the unambiguous terms of this lease to create a wholly unexpressed option to purchase by a holdover tenant.
Appellants further argue the option to purchase is not available to holdover tenants. They cite multiple jurisdictions that have held that a holdover tenant cannot exercise an option to purchase. See generally 49 Am. Jur. 2d, Landlord and Tenant § 418; Annot., 15 ALR3d 470.
Kansas has a holdover statute, but it does not specifically address the option to purchase. See K.S.A. 58-2502 (“When premises are let for one or more years, and the tenant with the assent of the landlord continues to occupy the premises after the expiration of the term, such tenant shall be deemed to be a tenant from year to year.”); compare Wis. Stat. § 704.25(3) (2001) (“A periodic tenancy arising under this section is upon the same terms and conditions as those of the original lease except that any right of the tenant to renew or extend the lease, or to purchase the premises, or any restriction on the power of the landlord to sell without first offering to sell the premises to the tenant, does not carry over to such a tenancy.”). The problem for appellants in this case is that appellee was not a holdover tenant. Instead, as seen above, appellee occupied the subject property pursuant to the first 3-year renewal option of the written lease.
The issue facing the court is whether the option to purchase carries over to the renewal period under a written commercial lease. An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
Contrary to the holdover situation suggested by appellants, courts as a general rule hold that where an original lease or agreement to lease provides for an extension or renewal of the lease at the tenant’s election and where the tenant elects to renew the lease or extend its term, the time for exercising a purchase option contained in the lease and exercisable during the term of the lease is likewise extended. See Thomas & Son Transfer Line, Inc. v. Kenyon, Inc., 40 Colo. App. 150, 154, 574 P.2d 107 (1977); Ardito v. Howell, et. ux., 29 Del. Ch. 467, 473, 51 A.2d 859 (1947); Sisco v. Rotenberg, 104 So. 2d 365, 374 (Fla. 1958); 49 Am. Jur. 2d, Landlord and Tenant § 416, p. 357.
The court in III Lounge, Inc. v. Gaines, 217 Neb. 466, 472, 348 N.W.2d 903 (1984), stated:
“We hold that absent words of express limitation, when a lease confers on the lessee an option to purchase the property at any time during the term of the lease, and the lease is thereafter extended upon the same terms and conditions, the option to purchase is also extended for the period of the extended term.”
Appellants contend the trial court erred in construing the lease by focusing solely on the language that the option to purchase was granted “solely as additional consideration for the rent to be paid by Lessee [appellee] hereunder.” Although the trial court was analyzing the additional consideration in the context of a holdover tenant, that language is equally applicable as additional consideration for the option to purchase. This language of the lease also indicates the inseparable nature of the option and the leasehold. See Country Club v. Hinckley, 229 Mich. 291, 201 N.W. 190 (1924); compare Carter v. Frakes, 303 Ky. 244, 197 S.W.2d 436 (1946) (leasehold and option were separate and option did not carry into renewal period); Pettit v. Tourison, 283 Pa. 529, 129 A. 587 (1925).
We note the language of the lease stated that when the lease was extended, except for the rent, “[a]U other terms and conditions remain unchanged.”
We hold appellee occupied the subject residence under the renewal options of the written lease and appellee properly exercised its option to purchase the property before expiration of the first 3-year renewal period.
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Johnson, J.:
Christopher and Jodi Maxon were each convicted of two counts of theft and one count of mistreatment of a dependent adult. They appeal, challenging the sufficiency of the evidence and the imposition of Christopher s upward dispositional departure sentence. We affirm the mistreatment of a dependent adult convictions but reverse the theft convictions, thereby rendering the sentencing question moot.
The scenario presented is one in which the defendants took unfair advantage of the vulnerability of an elderly, recently-widowed woman for the defendants’ personal and financial gain. The difficult legal questions presented emanate from the State’s charging the defendants with felony thefts for conduct that appears to fit squarely within the definition of misdemeanor mistreatment of a dependent adult.
The victim, Bea Bergman, lost her husband, Paul, to a heart attack in January 1999. Bea and Paul had lived modestly and accumulated substantial assets valued in the millions of dollars. Bea had relied on Paul to handle all their major financial decisions and, at his death, was even relying exclusively on him for transportation. After Paul’s death, Bea was “[vjeiy confused and veiy lost”; she experienced several episodes of anxiety for which she summoned emergency medical assistance. The month following Paul’s death, Dr. Yvette Crabtree of the Kenyon Clinic examined Bea and prescribed an anti-anxiety medication and an antidepressant.
Also in the month following Paul’s death, Bea called Maxon Moving to arrange for the hauling of Paul’s personal effects to the Salvation Army. Maxon Moving was a family-owned operation and had been one of Paul’s regular customers since the 1940s. Further, Paul and Bea had hired Maxon Moving to move their belongings on a number of occasions. Bea talked with Joyce Maxon and mentioned that she intended to give her husband, Ron Maxon, Sr., a marble-top table that Ron Sr. had admired during previous moves. The next day Ron Sr. went to Bea’s house. Bea gave him the table, as well as a thank you card containing a $2,000 check.
Shortly thereafter, Joyce became a frequent visitor at Bea’s house. She would transport Bea to antique shops, to the grocery store, to the doctor’s office, and to church. Eventually, Joyce was spending weekday nights at Bea’s house, and Bea would spend tire weekend at Joyce’s house. Bea became progressively integrated into the Maxon family, which, in addition to Ron Sr. and Joyce, included Ron Maxon, Jr., Christopher Maxon, Jodi Maxon, and Sharyl Ledom. Bea attended Maxon family functions and wanted the Maxons to call her “Aunt Bea.” Coincidentally, as Bea was being welcomed into the Maxon family circle, she began writing checks to and purchasing property for the various Maxon family members.,During the approximately 8-month long feeding frenzy, Bea dispersed over $600,000 to or for the benefit of the Maxons. However, during this same period, Bea also wrote checks to her daughter, her granddaughter, and a niece.
Specifically, the theft charges in this case involved: (1) the sale of Bea’s house to Christopher and Jodi; and (2) Christopher’s purchase of a new truck. In May 1999, Bea had listed her house for sale with her real estate agents, Linda and Charles Stanfield; tire listing price was $177,500. Shortly after the listing, Bea moved into an apartment. The listing was cancelled in June 1999, and Christopher and Jodi moved into the house. In July, the new occupants fenced the yard, installed a hot tub, and built a new deck, albeit Bea footed the bill. In late July or early August, Christopher and Jodi contracted with Bea to purchase the house for $100,000, financed in part with a $99,500 promissory note which was to balloon upon the Maxons’ sale of their La Cygne, Kansas, house. The note was paid in full within 3 or 4 months. There was some testimony that Bea had offered to give the house to Christopher and Jodi.
In October 1999, Christopher picked out a new Ford truck at a dealership in Olathe. He asked the salesman for permission to drive the truck to show his mother, because if she approved of the vehicle, she would give him the purchase money. Christopher drove to Bea’s apartment, gave her a ride, and presented her with the bill. Bea wrote a $38,745.34 check, payable to Olathe Ford, and gave it to Christopher to purchase the truck. Bea was not sure, but she thought Jodi accompanied Christopher when this transpired. The truck was titled solely in Christopher’s name.
In November 1999, Bea reconciled with her estranged son, Paul Thorpe. Thorpe and his wife subsequently moved into an apartment down the hall from Bea.
During the Christmas season of 1999, Bea severed her relationship with the Maxons. The rift was precipitated by the Maxons’ Christmas gifts to Bea, which she considered to be miserly responses to her Christmas gifts to them of $25,000 checks. She was hurt by the Maxons’ failure to reciprocate her generosity and had no further contact with the Maxons.
Subsequently, Bea’s son examined her financial records and noted the checks that had been written to the Maxons. Bea and her son met with the attorney that was acting as Paul’s executor, who referred them to another attorney, Harry Wigner. Wigner sent Bea to a psychiatrist for an examination and contacted the district attorney’s office about the possibility of filing criminal charges.
The psychiatrist, Dr. Everette Sitzman, diagnosed Bea as suffering from bipolar disorder with episodes of hypomania and prescribed a mood stabilizing agent. The doctor opined that people with Bea’s affliction are vulnerable to influence by others and often require a protective trust or conservatorship to protect their assets.
After a year-long investigation, the Johnson County District Attorney’s office filed charges against Ron Sr., Joyce Maxon, Jodi Maxon, Christopher Maxon, Sharyl Ledom, and Ron Maxon, Jr. All of the defendants, except for Ron Jr., were tried together. The case before us involves the charges against Christopher and Jodi which were identical: (1) one count of felony theft of Bea’s house; (2) one count of felony theft of United States currency (used to purchase tire Ford truck); and (3) one count of misdemeanor mistreatment of a dependent adult. The thefts were charged in the alternative, alleging that they were committed by obtaining or ex- erring unauthorized control over the property or that they were committed by obtaining the property through deception. Further, the jury was given an aiding and abetting instruction. Christopher and Jodi were convicted on all counts; the jury found the thefts were committed in both alternative manners. The district court granted the State’s motion for an upward dispositional departure sentence in Christopher’s case based on Bea’s vulnerability and sent him to prison for 38 months. Jodi received a presumptive probation sentence.
Appellants structure their appeal to first challenge the sufficiency of the evidence to support a conviction based upon K.S.A. 2002 Supp. 21-3701(a)(l), arguing they did not obtain or exert unauthorized control over any of Bea’s property, i.e. no theft occurred. As a sub-issue, appellants assert that they could not have aided or abetted a theft that did not occur. Next, the Maxons argue the absence of any evidence to establish that any false statements or representations were made to induce Bea to transfer her property, negating the sufficiency of the evidence to support the theft by deception convictions under K.S.A. 2002 Supp. 21-3701(a)(2). Again, as a sub-issue, appellants assert that the aiding or abetting instruction could only have been applicable to Jodi, if at all, but that no evidence exists that she advised, counseled, procured, or encouraged Christopher to commit a crime. The third issue presented challenges the sufficiency of the evidence to support the convictions for mistreatment of a dependent adult, asserting that Bea was not a “dependent adult” in 1999 and that appellants did not mistreat her. Included in the third issue is a multiple acts argument. Finally, appellants challenge the constitutionality of Christopher’s upward dispositional departure sentence, as well as the existence of substantial and competent evidence of a substantial and compelling reason to depart. We will take the liberty of addressing the issues in a different order than that presented.
MISTREATMENT OF DEPENDENT ADULT
In deciding appellants’ challenge to the sufficiency of the evidence to support their convictions for mistreatment of a dependent adult, we review all of the evidence, viewed in the light most fa vorable to the prosecution, to determine if a rational jury could have found the defendants guilty beyond a reasonable doubt. See State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001). We are to refrain from the temptation to weigh the evidence or pass on the credibility of the witnesses. State v. Sanders, 272 Kan. 445, 455, 33 P.3d 596 (2001).
The statute creating this crime is K.S.A. 21-3437, the relevant portions of which are:
“(a) Mistreatment of a dependent adult is knowingly and intentionally committing one or more of the following acts:
(2) taking unfair advantage of a dependent adult’s physical or financial resources for another individual’s personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person ....
“(c) For purposes of this section: ‘Dependent adult’ means an individual 18 years of age or older who is unable to protect their own interest.”
The elements instruction given in these cases informed the jury that it had to find, inter alia, that the defendants “knowingly and intentionally took unfair advantage of Bea Bergman’s financial resources for another individual’s financial advantage by the use of undue influence, coercion, deception, false representation, or false pretense” and that Bea Bergman was a “dependent adult.” The elements instruction provided the statutory definition of dependent adult; a separate instruction provided definitions of undue influence, coercion, deception, and false pretense.
Christopher and Jodi present two arguments: (1) The evidence does not establish that Bea was a dependent adult; and (2) no evidence was presented to establish undue influence, coercion, deception, or false pretense. To the extent appellants’ arguments require statutory interpretation, our review is de novo. See Thomas v. Hannigan, 27 Kan. App. 2d 614, 616, 6 P.3d 933 (2000).
Was the Victim a Dependent Adult?
Following the definition of dependent adult, K.S.A. 21-3437(c) provides a list of factual circumstances which are included within the definition, e.g., any resident of an adult care home. None of the illustrations is applicable here. Appellants argue the evidence did not establish that Bea was dependent upon Christopher and Jodi or that she was unable to handle her own financial affairs.
The State did not have to prove that Christopher and Jodi were the persons on whom Bea was dependent. The statute specifically prohibits the taking of unfair advantage of a dependent adult “by a caretaker or another person.” (Emphasis added.) K.S.A. 21-3437(a)(2). Persons other than a caretaker can mistreat a dependent adult, if the victim is unable to protect herself or himself.
In arguing the insufficiency of the evidence to establish Bea’s inability to protect her own interest, appellants acknowledge that Dr. Sitzman provided direct testimony on that question. However, appellants urge us to discount Dr. Sitzman’s testimony and look to the other evidence supporting their contention that Bea was a confident, assertive individual. Our standard of review precludes our making an assessment of Dr. Sitzman’s credibility or weighing his testimony against that of the other medical professionals, no matter how qualified or persuasive the others might appear on the record. The jury viewed the witnesses firsthand and its factual determination must be respected.
Evidence of Mistreatment
Appellants persuasively argue that the evidence did not support a finding that they utilized coercion, deception, false representation, or false pretense to obtain money and property from Bea. However, the statute is drawn in the disjunctive; evidence of undue influence is sufficient to support a conviction.
Christopher and Jodi point to his mother, Joyce, as the source of influence over Bea and contend that “appellants cannot be held responsible for any influence which may have been exercised by persons other than themselves.” Appellants omit any discussion of the aiding and abetting juiy instruction.
The evidence was sufficient to establish that the Maxon family systematically preyed upon Bea’s mental and emotional vulnerability to obtain her money. Joyce orchestrated the transfers, timing the gift requests to coincide with Bea’s manic or “giving” periods and deciding who would be the next recipient of Bea’s bounty. However, all family members, including Christopher and Jodi, participated in the scheme. Indeed, the siblings apparently squabbled about who should get the next distribution and the inequities in the amounts each was receiving.
The legislature, by enacting K.S.A. 21-3437, intended to criminalize the conduct in which Christopher and Jodi engaged in conjunction with other Maxon family members. The evidence was sufficient to support the convictions for mistreatment of a dependent adult.
Multiple Acts
Appellants complain that the evidence depicted several acts which could each constitute the crime of mistreatment of a dependent adult and, therefore, they were deprived of their right to a unanimous verdict because the verdict forms did not require the jury to specify an underlying act. The State alleged that Bea had given checks and property to Christopher and Jodi with a value in excess of $200,000, including several items other than the house sale and Ford truck purchase which were the subjects of the theft charges. The State was relying on these other transfers to support the mistreatment of a dependent adult charge.
Appellants acknowledge that the jury was given two unanimity instructions; one for Christopher and one for Jodi. Those instructions specifically told the jury that “[i]n order for the defendant to be found guilty of . . . mistreatment of a dependent adult in Count III, you must unanimously agree upon the same underlying act.”
In a multiple acts case, the jury must be unanimous as to which act or incident constitutes the crime. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The State may either elect the particular act upon which it is relying or the court must provide a unanimity instruction. See State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). Here, the State opted for a unanimity instruction. Appellants got what they were entitled to have, and there was no error.
THEFT BY DECEPTION
Appellants’ challenge to the sufficiency of the evidence to support their theft convictions under the K.S.A. 2002 Supp. 21-3701(a)(2), theft by deception, alternative is subject to the same standard of review as cited above. State v. Fritz, 261 Kan. 294, 299, 933 P.2d 126 (1997), summarized the elements of theft by deception:
“To establish the offense of theft by deception, the State must prove: (1) The victim was the owner of tire property, (2) the defendant obtained control over the property by means of a false statement or representation which deceived the property owner and upon which he or she relied, and (3) the defendant intended to deprive the owner permanently of tire use or benefit of the property.”
Appellants note that the record contains no evidence that they made an express or implied false statement or representation in conjunction with the house sale or the truck purchase. Further, they argue that Bea did not rely on any false statements or representations that may have been made. We agree.
The State’s brief emphasizes the circumstances surrounding the two transactions but fails to identify any falsity upon which Bea relied. The representations which might have induced Bea’s actions are either true or not shown to be false. As examples: Christopher’s statement that he needed a new truck because the transmission was out of his existing truck is not refuted in the record; the representation that Christopher and Jodi were having difficulty selling their La Cygne house is supported in the record.
The only arguably false statement referred to by the State involved comments that certain Maxon family members had seen or heard from Bea’s dead husband. While such statements may have been calculated to endear the Maxons to Bea or to further the general exploitation of the vulnerable widow, any inference of a causal connection between the statements and the specific transactions being prosecuted is too nebulous to support a criminal conviction.
The evidence was insufficient to support the convictions for theft by deception, and those convictions are reversed.
THEFT BY OBTAINING OR EXERTING UNAUTHORIZED CONTROL
Alternatively, Christopher and Jodi were alleged to have committed theft by the more commonly understood means of simply taking Bea’s property without her permission. In statutory parlance, they were charged with “[o]btaining or exerting unauthorized control over property.” K.S.A. 2002 Supp. 21-3701(a)(l). The elements instruction identified the stolen property as: (1) the house and property at 11412 Flint, Overland Park, Johnson County, Kansas; and (2) United States currency in connection with the purchase of the Ford F-350 pickup.
The appellants point us to the obvious problem with defining their acts as a traditional theft, i.e. they obtained control over the property with Bea’s permission. Bea not only authorized Christopher and Jodi to take control of the property, but she actively participated in effecting the transfers. Bea signed and acknowledged the execution of the warranty deed to transfer the residential real estate; Bea wrote the check, payable to Olathe Ford, and gave it to Christopher.
In State v. Greene, 5 Kan. App. 2d 698, 702, 623 P.2d 933 (1981), this court examined the phrase “obtaining or exerting unauthorized control” in connection with the criminal deprivation of property statute, K.S.A. 2002 Supp. 21-3705. The court noted that the term “unauthorized” is not defined by the Kansas Statutes and then adopted the following definition: “ ‘ “Unauthorized control means control exercised over property of another without the consent of the owner.” ’ ” 5 Kan. App. 2d at 703 (quoting Wilson, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385, 395 [1972]).
Based on that definition, the theft convictions cannot stand if Bea consented to the property transfers. On appeal, the State does not contend that Bea did not consent to the defendants’ control over the property, but rather the argument is that Bea’s consent was ineffective because she did not possess the necessary mental capacity to give her property to the defendants.
The State acknowledges tire absence of any Kansas case addressing whether a donee can be convicted of theft for accepting a gift from a mentally impaired donor. We are directed to decisions from other states to persuade us that such a prosecution should be permitted in this state. See Gainer v. State, 553 So. 2d 673, 679-80 (Ala. Crim. App. 1989); State v. Calonico, 256 Conn. 135, 155-56, 770 A.2d 454 (2001); Deranger v. State, 652 So. 2d 400, 401 (Fla. Dist. App. 1995); Lucas v. State, 183 Ga. App. 637, 641, 360 S.E.2d 12 (1987); People v. Camiola, 225 App. Div. 2d 380, 381, 639 N.Y.S.2d 35 (1996).
The State relies heavily on Gainer, in which the Alabama Court of Criminal Appeals noted that several other states had adopted specific “statutory provisions vitiating consent obtained from one whom the defendant knows or should know lacks the mental capacity to voluntarily and intelligently give such consent.” 553 So. 2d at 679. The court further commented:
“There is no such provision in Alabama law with regard to offenses involving theft. . . . However, we are of the opinion that, even without an express statutory provision to that effect, mental deficiency on the part of the victim, which is known or should be known to the defendant, can render ineffective the apparent consent by that victim in a prosecution for theft [by knowdngly obtaining or exerting unauthorized control over the property of another].” 553 So. 2d at 679.
Like Alabama, our statutes do not contain a specific provision that negates an individual’s consent when the defendant knows or should know the donor lacks the mental capacity to give consent. See Colo. Rev. Stat. § 18-l-505(3)(b) (2003) (assent does not constitute consent if “given by a person who, by reason of immaturity, mental disease or mental defect, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense”); Tex. Penal Code Ann. § 31.01(3)(C) (2003) (consent is not effective if “given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions”). On appeal, the State urges us to judicially create a definition of “unauthorized control” that includes a consensual transfer from a donor who has insufficient mental capacity to give a voluntary or intelligent consent.
The initial dilemma presented by the State’s argument is determining the legal standard that should be applied to determine the level of incapacity that would vitiate the transferor’s consent. Without some standard, a donee would not have a sufficiently adequate warning that his or her acceptance of a gift is a theft and the law would not adequately guard against arbitrary and discriminatory enforcement. See State v. Bryan, 259 Kan. 143, Syl. ¶ 2, 910 P.2d 212 (1996). Does a transferor have to possess tire capacity to contract? See Mills v. Shepherd, 159 Kan. 668, Syl. ¶ 1, 157 P.2d 533 (1945) (“The test of mental capacity to contract or to convey property is whether the person possesses sufficient mind to understand, in a reasonable manner, tire nature and effect of the act in which he is engaged.”). Would the State have met its burden of proving an unauthorized transfer by proving Bea fit the definition of a “disabled person” under the involuntary conservatorship statutes in effect at the time of transfer? K.S.A. 59-3002 (“ 'Disabled person’ means any adult person whose ability to receive and evaluate information effectively or to communicate decisions, or both, is impaired to such an extent that the person lacks tire capacity to manage such person’s financial resources or, except for reason of indigency, to meet essential requirements for such person’s physical health or safety, or both.”). Alternatively, we could be guided by the current act for obtaining a guardian or conservator, K.S.A. 2002 Supp. 59-3050 et seq., which refers to an “ 'adult with an impairment in need of a guardian or a conservator, or both’ ” and defines such a person to be one
“whose ability to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assistive technologies or other supports, is impaired such that the person lacks the capacity to manage such person’s estate, or to meet essential needs for physical health, safety or welfare, and who is in need of a guardian or a conservator, or both.” K.S.A. 2002 Supp. 59-3051(a).
Or, do we look at the rather minimal capacity needed to make a testamentary disposition? See In re Estate of Walter, 167 Kan. 627, Syl. ¶ 3, 208 P.2d 262 (1949) (“to prove testatrix did not have testamentary capacity it must be established either that she did not know the amount of her property; that she did not know to whom she wished her property to go, or that she did not understand who were the natural objects of her bounty”).
The jury was not instructed on the State’s unique theory. Closing arguments do not appear in the record so that we do not know how the State’s theory of unauthorized control was presented to the jury. On appeal, the State suggests that a theft conviction is appropriate “if a victim is incapable of giving a voluntary or intelligent consent to transfer money.”
“All crimes in Kansas are statutory, and the elements necessaiy to constitute a crime must be gathered wholly from the statute.” State v. Christiansen, 258 Kan. 465, 466, 904 P.2d 968 (1995). In gathering the requisite elements of a crime from a statute, we are not imbued with unlimited creativity.
“The fundamental rule of statutory construction is that a court should interpret a statute to give it the effect intended by the legislature. [Citation omitted.] In Kansas, all crimes are established by statute, and a court should not extend a criminal statute to embrace acts or conduct not clearly included within the statutory prohibitions. [Citations omitted.]” State v. Arehart, 19 Kan. App. 2d 879, 881, 878 P.2d 227 (1994).
The argument that the legislature intended felony theft, committed by obtaining or exerting unauthorized control over property, to be extended to embrace the act of obtaining a consensual transfer from a person with mental, emotional, or personality problems would be more persuasive if the legislature had not created the specific crime of mistreatment of a dependent adult to encompass that act. The State recognized that the mistreatment of a dependent adult crime applied to this scenario by prosecuting the Maxons for that crime for all of Bea’s transfers, except for the two selected to be charged as felony thefts. Precedent teaches us that it is improper to prosecute a defendant for a general crime when the facts establish the violation of a specific statute. See, e.g., Carmichael v. State, 255 Kan. 10, Syl. ¶ 5, 872 P.2d 240 (1994) (specific offense of aggravated incest must be charged instead of general crime of rape); State v. Wilcox, 245 Kan. 76, 79, 775 P.2d 177 (1989) (welfare fraud must be prosecuted under the specific statute, K.S.A. 39-720, and not the general statute of making a false writing). “ ‘ “A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or tilings of a class is special.” ’ Seltmann v. Board of County Commissioners, 212 Kan. 805, 810, 512 P.2d 334 (1973) (quoting 82 C.J.S., Statutes § 163, p. 277).” State v. Montgomery, 14 Kan. App. 2d 577, 580, 796 P.2d 559 (1990). Obviously, the theft statute is general while the mistreatment of a dependent adult statute is specific. Therefore, we decline to find that the legislature intended to make those acts constituting the specific crime of mistreating a dependent adult part of the general theft statute definition of obtaining or exerting unauthorized control.
Even if we were to redefine the theft statute, we would require that the victim’s impairment be more than the poor business judgment exhibited by those suffering from mild hypomania. The evidence presented does not support a finding that Bea lacked the capacity to contract, lacked testamentary capacity, or was amenable to an involuntary conservatorship as a disabled or impaired person. At best, there was substantial competent evidence that Bea suffered from emotional, mental, or personality disorders that made her vulnerable to the Maxons’ influence.
During the time frame of the alleged thefts, Bea was conducting her own business and apparently entering into contracts, e.g., she executed a listing agreement on her house and leased an apartment. She made gifts to her daughter of approximately $177,000 in 1999, as well as making substantial gifts to a granddaughter, a niece, and her son. None of these recipients were named as co-defendants with die Maxons. Logically, if Bea had sufficient mental capacity to make gifts to her family, then she could consent to the transfers to the Maxons.
We are particularly concerned with the evidence to support the convictions for felony theft of the residential properly. One of the State’s own exhibits is the house deed, containing an acknowledgment which recites that Bea executed the document in the presence of the notary public and that the deed “was executed as a free and voluntary act and deed for the uses and purposes therein set forth.” Further, the Maxons bought the property; they paid Bea $100,000. The elements instruction told the jury that it had to find that the Maxons obtained or exerted unauthorized control over the entire property. At most, the Maxons cheated Bea out of the difference between the sale price and the value of the property, whatever that might have been. At what point is a purchase price so inadequate that a good deal becomes a felony? The evidence was insufficient to support the charge that the Maxons exerted or obtained unauthorized control over the entire residential property, as per the jury instructions.
The mistreatment of a dependent adult convictions are affirmed; the felony theft convictions are reversed. Given our decision on the theft convictions, we need not reach Christopher’s issue regarding his upward dispositional departure sentence.
Affirmed in part and reversed in part. | [
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Pierron, J.:
Charles D. Green appeals his conviction for possession of cocaine after a prior conviction, a severity level 2 drug felony, in violation of K.S.A. 65-4160(b). Green argues the trial court erred in failing to suppress evidence obtained after the police allegedly illegally arrested him and pumped his stomach. He also argues there was insufficient evidence to convict him of possession of cocaine. We affirm.
On August 17, 2001, Green drove to the Surf Motel in Wichita to pick up Chantel Cruz, a friend of his fiancee, Angela Taylor. Cruz had called Angela to ask if she could come stay with her. Cruz testified the motel room she called from was not hers, but was the room of “one of the girls on the street,” who let Cruz use the phone to call Taylor. Cruz was going to live with Green and Taylor until she was able to get her life straightened out.
Green testified that when he arrived at the motel, Cruz was not ready to go. He became upset because Cruz had plenty of time before he got there, the motel was not in a good neighborhood, and there were drugs in the motel room. Cruz testified there was marijuana and drug paraphernalia in the room. Green said he left the motel room and was at his car when he met the police officers.
Wichita Police Officers Michael Dean and Chris Welsh were at the Surf Motel at 11:20 p.m. on the evening in question to assist undercover narcotics agents in identifying some individuals in the motel. At the motel, they heard someone yelling profanities and they discovered Green shouting into a motel room. The officers saw the object of Green’s yelling was Cruz, who was crying and hysterical. The officers were wearing black T-Shirts with “Police” printed in large white letters on the front.
Concerned about a possible domestic violence situation, the officers approached Green in order to speak with him and attend to the situation. Green responded, “Fuck you; I don’t need to talk to the police,” and ran into the motel room and slammed the door. The officers ran to the door and broke it down. Both officers testified they were concerned about the escalation of an apparent domestic violence situation. Officer Dean testified that when they entered the room Green was heading into the bathroom looking over his shoulder. He went into the shower and was doing something with his hands around his waist area. Officer Dean grabbed Green from behind and both officers were eventually able to force Green to the ground. As they struggled, Officer Dean saw Green put his hands to his face. Green refused all commands to stop resisting, and because of his size and strength, it took a number of officers to subdue him.
During a search of Green, officers found a large amount of cash and a white pill bottle in his pockets. There was a white, powdery residue inside the pill bottle which tested positive for cocaine. During a search of the motel room, Dean found an empty baggie with the comer tom off in the shower where the stmggled began. The baggie had a white, powdery residue. Dean hypothesized that when he saw Green put his hands to his face, he was probably ingesting whatever drugs were in the baggie.
After his arrest, Green began sweating profusely and became unresponsive. The police called in paramedics and told them Green may have ingested cocaine. He was then taken to the hospital. At the hospital, Green was combative, spitting on and trying to bite people, and had to be restrained by medical personnel and police officers. Dr. Martin Selberg, the emergency room physician on duty when Green arrived, testified Green was completely non-communicative and was fluctuating between absolutely quite and still and random, violent movements. He found Green’s history of possible cocaine intoxication and cocaine ingestion was consistent with his current condition. Dr. Selberg stated it was necessary to pump Green’s stomach in order to deal with a potentially lethal ingestion of cocaine.
Dr. Selberg examined the contents of Green’s stomach and noticed what he believed were cocaine rocks or crack rocks. Officer Long Nguyen filtered the stomach contents and found small white specks or very small items. Dean field-tested the items and they tested positive for cocaine.
Green was charged with possession of cocaine after a prior conviction and attempted aggravated battery of a law enforcement officer. Green filed a motion to suppress based on an illegal arrest and requested suppression of any evidence obtained after the arrest and the alleged illegal pumping of his stomach. The trial court denied the motion to suppress, finding the police officers had a duty to investigate the possibility of domestic violence and then had probable cause to pursue and arrest Green based on their observations in the room. The trial court also held it was more probably true than not true that the decision to pump Green’s stomach was made by hospital personnel.
The jury acquitted Green on the charge of attempted aggravated battery on a law enforcement officer but convicted him of possession of cocaine after a prior conviction. The trial court sentenced Green within the presumptive sentencing range to a term of 64 months’ incarceration.
Green first argues the trial court erred in failing to grant his suppression motion.
When reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).
Green argues tire police lacked probable cause to arrest him because they did not witness him commit any crime. He states that his screaming and demeanor would have been insufficient to obtain a warrant and no evidence existed that he would harm Cruz. Green argues any evidence obtained after the arrest was the fruit of an illegal arrest and should be suppressed.
In his pi'o se brief, Green argues the entry into the motel room was illegally based on Green’s use of vile and profane language. Green also challenges the warrantless pumping of his stomach and the intrusion into his body. He contends the officers had plenty of time to request a search warrant while they were at the scene that could have easily been acted upon by die time they arrived at the hospital. He maintains it is highly unlikely a magistrate would have issued a warrant since the officers did not witness Green ingest anything, nor did they see the baggie in his possession. Green also argues the police should have obtained a warrant before conducting more extensive searches and tests on the contents of his stomach. He claims tire results of the tests performed on his stomach contents carry a taint of illegality because Officer Nguyen searched through the contents while alone in a utility closet.
“If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony.”
“Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances. Probable cause exists when the prac tical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed.”
“In determining whether probable cause to arrest exists, all the information in the officer’s possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.” State v. Aikins, 261 Kan. 346, Syl. ¶ ¶ 2, 3, 6, 932 P.2d 408 (1997).
The trial court correctly relied upon K.S.A. 22-2402 for authority, which allows the police to stop a person in a public place for an explanation of the person’s actions when the police reasonably suspect the person is committing, has committed, or is about to commit a crime. See State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999). The court also addressed the domestic violence situation by relying upon K.S.A. 2003 Supp. 22-2307 for authority that Officers Welsh and Dean had an affirmative duty to make an arrest in a domestic violence situation if they had probable cause to believe that a crime was being committed or had been committed. See State v. Whittington, 260 Kan. 873, 880, 926 P.2d 237 (1996).
When confronted with violent situations, police must often act quickly without complete information as to the facts. In determining if their actions violate the Fourth Amendment to the United States Constitution, we look to all the circumstances surrounding the situation. We will suppress evidence seized as a result of police actions when those actions were unreasonable under the facts.
We believe the police made a legal entry into the motel room. Cruz never objected to the officer’s intrusion into the room. Neither did anyone else besides Green, who had no dominion over the room. Green had no legal ability to challenge the entry under these facts. “The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States, 394 U.S. 165, 171-72, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969); accord State v. Sanders, 5 Kan. App. 2d 189, 192, 614 P.2d 998 (1980). The basic test to determine whether a person has standing to challenge the validity of the search is not whether the person had a possessory interest in the items seized, but whether he or she had a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980).
Under the circumstances of this case, it is clear that Officers Dean and Welsh had probable cause to believe that a domestic violence situation, or simply a violent situation, was occurring and escalation of the matter was quite possible. They heard the yelling and saw the possible victim, who was hysterical. They could also rely on Green’s statement, “Fuck you; I don’t need to talk to the police,” and his hurried action back into the motel room and slamming of the door as raising further suspicion. It was reasonable for the officers to believe that further violence might occur if they left the scene without making sure that everyone in the motel room was safe. It was necessary to enter the motel room to make sure that no further assistance was needed and that the potential for violence had ended. No one who had any lawful control over the room objected to the actions of the police.
When in the motel room, the issue quickly turned to one of officer safety. Officer Dean testified that when they entered the motel room, they saw Green go into the bathroom shower and start digging in his pants. Dean stated he was concerned that Green had a weapon and was trying to retrieve it. Dean grabbed Green from behind and from this point on, Green resisted eveiy order to surrender and all police action to subdue him. After he was restrained, the police found a large amount of cash in his pocket and a pill bottle containing cocaine residue. The police had sufficient evidence to arrest Green based on the search of his person.
We also agree with the trial court’s decision not to suppress the evidence obtained as a result of pumping Green’s stomach.
The first case to review in matters such as this is Rochin v. California, 342 U.S. 165, 166, 96 L. Ed. 183, 72 S. Ct. 205 (1952), where the police directed a doctor to administer an emetic solution to the defendant to induce vomiting after he swallowed two capsules that had been on a night stand in his bedroom. The officers had information that the defendant was selling narcotics and had forced their way into his bedroom without a warrant. The United States Supreme Court held that the officers’ conduct violated the Due Process Clause of the Fourteenth Amendment, writing:
“[T]he proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.” 342 U.S. at 172.
The case at bar is not comparable to Rochin. The original actions by the police in this case were lawful, as set out above. The original actions by the police in Rochin were apparently unlawful. The emergency room physician in our case made a medically sound decision to pump Green’s stomach based on patient history and Green’s condition at the time. Dr. Selberg’s decision prevented a potentially lethal ingestion of cocaine and may well have saved Green’s life. Pumping Green’s stomach in this situation does not offend normal sensibilities. See also People v. Jones, 20 Cal. App. 3d 201, 210, 97 Cal. Rptr. 492 (1971) (the court approved a stomach lavage performed by a doctor at the request of the police because there was clear evidence justifying a reasonable belief that defendant had swallowed a lethal dosage of barbiturates and was in danger of death).
Green also argues there was insufficient evidence to convict him of possession of cocaine. He contends neither the results of the tests taken from the pill bottle or his stomach amounted to possession of cocaine sufficient for capacity for use. He states the pill bottle contained only traces of cocaine and the cocaine found in his stomach had already been consumed and could no longer be considered possession.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
Green concedes that possession of any amount of a controlled substance is sufficient for conviction on a possession charge, even if that amount is so minute as to be unusable or immeasurable. The amount found in the bottle would suffice. See State v. Brown, 245 Kan. 604, 613-14, 783 P.2d 1278 (1989); State v. Lundquist, 30 Kan. App. 2d 1148, 1151, 55 P.3d 928 (2002). Green also argues that the cocaine pumped from his stomach cannot be used to establish possession because it was already consumed in his body.
The major Kansas case in this area of criminal law is State v. Flinchpaugh, 232 Kan. 831, 834, 659 P.2d 208 (1983). In Flinchpaugh, the defendant was involved in an automobile collision and charged with possession of cocaine based solely on the results of blood tests taken following the collision. The State presented no evidence of how or when the chemicals were introduced into the defendant’s system, and the trial court dismissed the charges. The Kansas Supreme Court affirmed, finding that because a person no longer has the requisite power to control a drug once it is within his or her system, evidence of a controlled substance after it is assimilated in a person’s blood does not establish possession or control of that substance. 232 Kan. at 834. At the same time, the court recognized:
“Discovery of a drug in a person’s blood is circumstantial evidence tending to prove prior possession of the drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt. The absence of proof to evince knowledgeable possession is the key. The drug might have been injected involuntarily, or introduced by artifice, into the defendant’s system. The prosecution did not establish that defendant ever knowingly had control of the cocaine. ... In the narrow holding of this case, we find that evidence of a controlled substance assimilated in one’s blood does not establish possession of that substance as defined by K.S.A. 65-4127a, nor is it adequate circumstantial evidence to show prior possession by that person. Other corroborating evidence combined with positive results of a blood test could be sufficient evidence to prove guilt beyond a reasonable doubt depending on the probative value of the corroborating evidence.” 232 Kan. at 835-36.
The court in State v. Myers, 258 Kan. 51, 56, 899 P.2d 1036 (1995), explained the limited reach of Flinchpaugh: “The narrow holding of Flinchpaugh applies to cases in which tire only evidence is evidence of a controlled substance after it is assimilated in the blood. In such cases, the necessary elements of knowing and intentional control over the substance are lacking.”
Green’s reliance on Flinchpaugh is misplaced. First and foremost, we are not dealing with evidence of a controlled substance after it has been assimilated in the blood. Drugs sitting in the defendant’s stomach have not been assimilated into the body. Rather we are dealing with ingestion of drugs through the mouth and into the stomach in hopes of avoiding detection by law enforcement officers. See State v. Thronsen, 809 P.2d 941 (Alaska App. 1991) (cited in Myers, 258 Kan. at 58—defendant injected drugs with a syringe, defendant charged with possession of cocaine “in his body,” court concluded that a defendant could not be convicted of possession of cocaine in his or her body because the person has no control over die cocaine at that point and therefore does not have possession).
Officer Dean testified that when he entered the motel room, Green was digging in his pants, and then later as they struggled, Green put his hands to his face. After the arrest, officers discovered the baggie with the tom corner containing white residue. The theory of Green’s ingestion of cocaine became very likely with Green’s physical symptoms after the arrest. This theory was confirmed by medical professionals in the emergency room at the hospital. Although the results of a search cannot justify the search, the resulting cocaine roclcs/specks pumped out of Green’s stomach confirmed the reasonable suspicions of the police officers and medical professionals that Green had swallowed cocaine.
We find there was sufficient evidence to support Green’s conviction for possession of cocaine.
Affirmed. | [
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