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Greene, J.:
Ronald Paul appeals the district court’s modification of his child support obligation, claiming that imputation of estimated child care expenses when imputing income to the custodial parent is in violation of the Kansas Child Support Guidelines (Guidelines). We affirm.
Factual and Procedural Overview
Ronald (Father) and Lucy Paul (Mother) were divorced in 2000, and Father was ordered to pay monthly child support of $700. In January 2002, SRS filed on behalf of Mother a motion to modify child support, claiming a material change of circumstances. The motion indicated that Mother’s part-time employment monthly income had declined to $893 and Father’s monthly income had increased to $3,834. The district court modified Father’s child support accordingly, ordering monthly support of $906.
Father then moved for relief from the order, claiming that Mother was “deliberately unemployed” and that annual income consistent with Mother s prior earnings history and ability should be imputed to Mother. The district court then modified its prior order, imputing income to Mother based on full-time employment at her current hourly wage.
Father then moved for reconsideration, claiming that the imputed income was insufficient; Mother responded with the suggestion that “[i]f we are to assume that [Mother] is capable of earning a significantly higher income, isn’t it also appropriate to assume that she would be faced with much higher day care costs?” The district court once again modified its prior order, imputing annual income of $25,000 to Mother, and ordering the parties to submit new worksheets reflecting this ruling.
When the parties were unable to agree upon “new worksheets,” the matter was set for an evidentiary hearing. Following the hearing, the district court filed its memorandum decision imputing to Mother an annual income of $25,000 together with monthly estimated child care expenses of $601, the midpoint between amounts suggested by the parties. The court reasoned that “[i]t just appears logical to treat the situation where a Court says a party could be earning a certain amount of money in a way where the expenses normally associated with earning that money, like child [care] costs, are also calculated into the equation.”
Father appeals.
Standard of Review
Generally, we review an order modifying child support for an abuse of discretion. In re Marriage of Shannon, 20 Kan. App. 2d 460, 462-63, 889 P.2d 152 (1995). Where, as here, the issue requires interpretation and application of the Kansas Child Support Guidelines, our review is unlimited. In re Marriage of Hoffman, 28 Kan. App. 2d 156, 158, 12 P.3d 905 (2000), rev. denied 270 Kan. 898 (2001).
Should Child Care Expenses Be Imputed to Custodial Parent When Imputing Income that Cannot Be Earned Absent Child CareP
The Guidelines allow “[fincóme [to] be imputed to the custodial parent in appropriate circumstances.” See Guidelines, Supreme Court Administrative Order No. 128 § II.E.2 (2003 Kan. Ct. R. Annot. 102). However, the Guidelines are silent on imputed child care costs. The Guidelines state under the heading of work-related child care costs:
“Actual, reasonable, and necessary child care costs incurred to permit employment or job search of a parent should be added to the support obligation. The monthly figure is the averaged annual amount, including variations for summer. Projected child care expenses should be reduced by the anticipated tax credit for child care or child care reimbursement before an amount is entered on the worksheet, adjusted using Table 1 in Appendix VIII, page 147.
“The court has the discretion to determine whether proposed or actual child care costs are reasonable taking into consideration the income and circumstances of each of the parties.” Guidelines, § V.D.5 (2003 Kan. Ct. R. Annot. 109).
Father argues that the Guidelines are specific in allowing only “[ajctual, reasonable, and necessary child care costs incurred to permit employment or job search of a parent” to be considered, and that imputation of fictitious child care expenses, which are neither “actual” nor “incurred,” is a deviation from the Guidelines that should not be permitted. Mother argues that the Guidelines do not expressly prohibit consideration of such expenses and that imputation of expenses under these circumstances should be considered a permissible deviation from the Guidelines. We agree.
Although the Guidelines do not specifically address the issue framed by this appeal, Mother argues that they contemplate consideration of “proposed” as well as “actual” child care expenses. We agree with Mother that the Guidelines’ language does not restrict the court to consideration of only those child care expenses that are actually incurred, but rather contemplates consideration of “proposed” child care expenses where circumstances warrant, and requires discretionaiy adjustment for reasonableness.
We conclude that the district court did not err in imputing child care expenses that were a necessary incident to the income imputed to Mother. Where income is imputed to the custodial parent and the generation of such income would necessitate child care expenses, the court may impute such reasonably necessary child care expenses for purposes of determining support obligations of the noncustodial parent. To impute fictitious income without an estimation of the expenses necessary to its generation would defy common sense and work an injustice to the custodial parent. Obviously, where child care is not necessary to the income imputed, such costs may not be considered whether incurred or estimated. See In re Marriage of Scott, 263 Kan. 638, 642, 952 P.2d 1318 (1998). Moreover, only such expenses appropriate for consideration are those required for a child or children for which the parent has legal responsibility. See In re Marriage of Jones, 23 Kan. App. 2d 858, 861, 936 P.2d 302 (1997).
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Greene, J.:
Four Wyandotte County school districts and 10 individual parents of Wyandotte County students appeal the district court’s denial of their motion for a temporary injunction to prohibit the distribution of revenues from a Johnson County sales tax to Johnson County school districts, arguing that the distribution and receipt of such sales tax revenues violate the School District Finance and Quality Performance Act (the Act), K.S.A. 72-6405 el seq., and the Kansas Constitution. The district court concluded that the standards for issuance of a temporary injunction had not been met. We question plaintiffs’ standing and remand for further proceedings, but we affirm the district court’s denial of a temporary injunction.
Factual and Procedural Background
In June 2002, four of six Johnson County school districts enacted resolutions requesting the Johnson County Board of County Commissioners (BOCC) to submit to tire electorate the question of imposing a countywide retailers’ sales tax in the amount of Va of one cent, with the revenues to be distributed
“as required by law, 64% to the County and 36% to the cities of Johnson County, and the County share to be used to fund and award economic development and public benefit grants to public school districts located within Johnson County, Kansas . . .
Upon receipt of these resolutions, tire BOCC submitted the question to the electors of Johnson County pursuant to K.S.A. 12-187, and on August 6, 2002, the question was approved by approximately 61% of voters. The new local sales tax became effective January 1, 2003, and was expected to raise $42 million for six Johnson County school districts.
On March 4, 2003, the Wyandotte County plaintiffs filed an action in district court against the Johnson County school districts, tire BOCC, and the State Treasurer, seeking declaratory and injunctive relief to suspend distribution to and receipt by Johnson County school districts of revenues from the new sales tax. Specifically, the petition alleged that use of local option sales tax revenues for public education was (i) contrary to the Act, K.S.A. 72-6405 et seq., (ii) violative of Article 6, §§ 1, 6 of the Kansas Constitution, and (iii) violative of § 1 of the Bill of Rights of the Kansas Constitution; alternatively, the petition sought a declaration that the subject tax revenues should be deemed “local effort” for purposes of K.S.A. 72-6410(c), thus affecting the Johnson County school districts’ entitlement to state financial aid pursuant to K.S.A. 72-6416.
Contemporaneous with the filing of their petition, plaintiffs filed a motion for temporary injunction, requesting that sales tax revenues not be paid to or received by Johnson County school districts. In their response to this motion, defendants argued that the standards for temporary injunctive relief had not been met and challenged plaintiffs’ standing to maintain the action. After briefing and argument, the district court declined to issue a temporary injunction, concluding that (i) plaintiffs had not demonstrated a substantial likelihood of success on the merits; (ii) plaintiffs failed to establish a probability that they would suffer irreparable financial harm; (iii) the balance of harm to both parties was equal; and (iv) the issuance of a temporary injunction would be adverse to the public interest. The district court did not explicitly address the issue of plaintiffs’ standing, noting that the issue was “not directly related to the issuance of a temporary injunction.”
The Wyandotte County plaintiffs appeal pursuant to K.S.A. 60-2102(a)(2). The Johnson County defendants do not cross-appeal, but the BOCC challenges plaintiffs’ standing on appeal as a jurisdictional issue.
Do Wyandotte County Plaintiffs Have Standing To Challenge Distribution of Johnson County Local Sales Tax Revenues?
Although the district court chose not to address standing, we consider the issue critical to the jurisdiction of the district court and this court as well. See Families Against Corporate Takeover v. Mitchell, 268 Kan. 803, 806, 1 P.3d 884 (2000); Dillon Stores v. Board of Sedgwick County Commr's, 259 Kan. 295, 303, 912 P.2d 170 (1996). It has long been recognized that standing imparts justiciability and must be determined as a threshold issue. See, e.g., Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 (1987). The question of standing requires us to determine whether these plaintiffs have a sufficient stake in the outcome of this controversy to justify the exercise of the court’s remedial powers on their behalf. Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996).
Plaintiffs essentially argue three alternative bases for their claims of standing: (i) They construe K.S.A. 60-907 as “open[ing] the courthouse doors” to anyone challenging the illegal levy of any tax; (ii) they contend that the parent plaintiffs are “persons whose property is or may be affected or whose taxes may be increased” since they shop in Johnson County and therefore pay the tax; (iii) they contend that they have sustained special damages different in kind from that of the public generally because they have children attending public schools in Wyandotte County and have been placed at a competitive disadvantage by the Johnson County schools’ receipt of new sales tax revenues. For reasons discussed below, we reject bases (i) and (ii) as a matter of law, but we remand for an evidentiary hearing to address basis (iii).
Applicability of K. S.A. 60-907
K.S.A. 60-907 addresses injunctive relief against illegal levy or collection of a tax but does not expressly address relief against illegal distribution of tax revenues. K.S.A. 60-907 provides in relevant part:
“(a) Illegal tax, charge or assessment. Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.”
This statute has been construed broadly by Kansas appellate courts to permit actions against levy and collection of illegal taxes, but the courts have carefully limited its use to cases where the act to be enjoined was either a levy or collection of a tax. See Schulenberg v. City of Reading, 196 Kan. 43, 48-51, 410 P.2d 324 (1966). Our courts have been clear in permitting no application of the statute to arguably related controversies that posed no specific challenge to a levy or collection of taxes. See, e.g., Bodine v. Osage County Rural Water Dist. #7, 263 Kan. 418, 428-29, 949 P.2d 1104 (1997) (statute cannot be used to challenge a water purchase contract despite claims that it resulted in an illegal tax); J. Enterprises, Inc. v. Board of Harvey County Comm'rs, 253 Kan. 552, 558-61, 857 P.2d 666 (1993) (statute not applicable where plaintiff had not exhausted administrative remedies); Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381-82, 834 P.2d 1344 (1992) (statute cannot be used to challenge county authority to spend proceeds from bonds and notes previously declared lawful and valid); DeForest v. Herbert, 204 Kan. 516, 520-22, 464 P.2d 265 (1970) (statute cannot be used to question the legality of corporate existence of political subdivisions).
Here, plaintiffs do not seek to enjoin the levy or collection of the sales tax; instead, their motion for temporary injunction seeks to “enjoin the public school districts in Johnson County from receiving, and Johnson County and the State Treasurer from paying to them, the receipts of the one-fourth of one cent countywide retailers’ sales tax that takes effect on January 1, 2003.” The authority of the BOCC to levy and collect a sales tax pursuant to the applicable statutory scheme has not been challenged directly by the motion for temporary injunctive relief. Moreover, defendants note that plaintiffs were too late to seek injunctive relief against the levy or collection of the tax because injunctive relief is available only to future events, citing Mid-America Pipeline v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990).
Although plaintiffs have argued in their appellate brief that their initial petition sought a declaration that the sales tax was void, these allegations are not determinative of the applicability of K.S.A. 60-907 since they are unrelated to any claim for injunctive relief. Moreover, these claims appear to have been abandoned or reserved given the scope and focus of plaintiffs’ temporary injunction pleadings. In any event, we limit our review to the motion for temporary injunction, which failed to challenge levy or collection and which restricted the relief sought to that quoted above. We decline to address whether plaintiffs have standing to seek declaratory relief since that issue is not before us. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
We conclude that K.S.A. 60-907 is inapplicable where plaintiffs do not seek exclusively to enjoin the levy or collection of a tax but rather seek to enjoin the distribution and receipt of revenues from a sales tax that has already been levied and partially collected.
Absent Statutory Authority, Have Wyandotte County Plaintiffs Demonstrated Standing to Enjoin the Johnson County Sales Tax?
Kansas has long recognized that a private person, merely by virtue of being a citizen and taxpayer, may not maintain an action against a public board or its members unless the person pleads and proves that as a result of the action complained of, he or she has or will suffer special damage distinct in kind from that of the public generally. Asendorf v. Common School Dist. No. 102, 175 Kan. 601, 607-08, 266 P.2d 309 (1954); Haines v. Rural High School Dist. No. 3, 171 Kan. 271, Syl. ¶¶ 1, 2, 232 P.2d 437 (1951); Nixon v. School District, 32 Kan. 510, Syl., 4 Pac. 1017 (1884); Winters v. Kansas Hospital Service Ass’n, Inc., 1 Kan. App. 2d 64, 69, 562 P.2d 98 (1977).
This general principle is particularly applicable where an action seeks to enjoin a public official relative to the use of public funds. Weinlood v. Simmons, 262 Kan. 259, 267, 936 P.2d 238 (1997); Robinson v. Board of County Commissioners, 210 Kan. 684, 687, 504 P.2d 263 (1972). As stated by our Supreme Court:
“The longstanding general rule in Kansas is that a taxpayer may not challenge the expenditure of county funds unless he is peculiarly damaged by tire county’s actions. [Citation omitted.]
“. . . [Plaintiff s] objection is to the use of tax funds. Absent a showing he was injured differently than other members of the public, [plaintiff] has no standing to raise the issue.
“[Plaintiffs] remedy, if any, is in the political arena rather than the courts . . . .” Crow v. Board of Shawnee County Commr’s, 243 Kan. 287, 289-90, 755 P.2d 545 (1988).
Actions to protect the public at large must be brought by the proper public official. See, e.g., Weinlood, 262 Kan. at 267; State, ex rel., v. Cruzan, 120 Kan. 316, 320-21, 243 Pac. 329 (1926).
Given our conclusion that K.S.A. 60-907 is inapplicable to plaintiffs’ action, we must analyze their claims of standing under this longstanding rule in Kansas: Have plaintiffs shown that they will suffer peculiar damages from the distribution of revenues from the new Johnson County sales tax or are their purported damages identical to that of the public at large? We conclude that, as a matter of law, plaintiffs have no standing by reason of their claim that they shop in Johnson County and pay the sales tax at issue. We then conclude that the record is incomplete on whether they have standing by reason of “competitive disadvantage” to their schools, and we remand for an evidentiary hearing on this claim.
First, plaintiffs claim that they have standing because they shop in Johnson County and therefore are obliged to pay the new sales tax. This claim of standing fails for three reasons: (i) As noted by defendants, plaintiffs are under no compulsion to shop in Johnson County; we hold that plaintiffs cannot acquire legal standing by submitting themselves unnecessarily to a purported injury (volenti non fit injuria); (ii) this claim of injury is not unique to plaintiffs; in fact, payment of the new sales tax is precisely the injury suffered by anyone who shops in Johnson County and can only be redressed by the proper public official; (iii) payment of the tax is not an injury caused by the acts complained of; payment of the tax is an injury resulting from the levy and collection of the sales tax (which is not the subject of plaintiffs’ challenge), not the distribution and receipt of the revenues generated by the tax (which are the subject of plaintiffs’ challenge). Plaintiffs’ first claim of standing fails as a matter of law.
Second, plaintiffs’ claim that each of the plaintiff groups—parents and school districts—have standing because of the competitive disadvantage created by the additional revenues to the Johnson County schools. Their precise claims are:
“[U]nlike members of the public in general, [plaintiff parents] have children attending public schools in Wyandotte County, and to the extent the schools attended by their children are placed at a disadvantage, including a competitive disadvantage for attracting and retaining teachers and other professional personnel, those parents are harmed because their children have lesser access to tax revenue for public education than do the children who attend public schools in the neighboring county. The school district plaintiffs have alleged harm in a manner different from the general public because drey have the responsibility to provide educational opportunities for the students in their districts, and that responsibility is more difficult to meet when the neighboring jurisdictions have an additional source of tax revenue.”
Defendants suggest that these claims were completely unsupported by any evidence at the hearing on the motion for temporary injunction and are “dependent upon a chain of assumptions that stretches far beyond the bounds of particularized injury and deep into the territory of rank speculation.” Notwithstanding the potential difficulty of establishing their claim of competitive disadvantage—especially since there were disparities already existent prior to this sales tax—if these parents and school districts are successful in showing that they have been uniquely injured by distribution of the sales tax revenues, they may have adequate standing for their challenge.
We conclude that plaintiffs’ claims of standing based on competitive disadvantage do not fail as a matter of law and that the record does not permit final determination of the issue due to its factual incompleteness. We remand for a complete evidentiary hearing and legal determination of plaintiffs’ claims of standing based on competitive disadvantage, applying principles not inconsistent with this opinion. We contemplate that on remand the district court will examine plaintiffs’ claims in detail and that its analysis will include consideration of defendants’ responsive argument that there is no legal impediment to the Wyandotte County school districts enacting similar resolutions and seeking countywide ap proval of a similar supplemental local sales tax for their school districts.
Did the District Court Abuse Its Discretion in Denying Plaintiffs a Temporary Injunction?
We review the district court’s denial of a temporary injunction for an abuse of discretion. General Building Contr., L.L.C. v. Board of Shawnee County Comm'rs, 275 Kan. 525, 541, 66 P.3d 873 (2003). The burden is on an appellant to show that the district court abused its discretion. Comanche County Hospital v. Blue Cross of Kansas, Inc., 228 Kan. 364, 367, 613 P.2d 950 (1980). To the extent that the denial of injunctive relief is based upon statutory construction, our review of the district court’s statutory interpretation is unlimited. See General Building Contr., 275 Kan. at 533.
The district court correctly applied the four-factor test for temporary injunctive relief adopted by this court in Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986). This test requires that the party seeking such relief establish:
“ ‘(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing parties; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. [Citations omitted.]’ ” 11 Kan. App. 2d at 462.
On appellate review, these four factors guide our analysis of the district court’s findings and conclusions. See General Building Contr., 275 Kan. at 542.
Substantial Likelihood of Success on the Merits
In finding no demonstration of a likelihood of success on the merits by plaintiffs, the district court summarized its rationale as follows:
“After reviewing the interplay of K.S.A. 12-187 (which permits the County to levy and collect sales taxes), K.S.A. 19-4101 through 4103 (which permits the County to promulgate economic development programs), and K.S.A. 72-8210 (which permits a school district to receive donations), the Court cannot find that the plaintiffs have demonstrated a substantial likelihood of success.”
Plaintiffs argue that “two key flaws” in this rationale demonstrate an abuse of discretion by the district court: (i) The court failed to recognize the role played by the defendant school districts in imposing the new sales tax, and (ii) characterization of locally generated sales tax revenues instigated by tire school districts as a permissible “donation” is a misconstruction of applicable statutes. For reasons discussed below, we disagree and find no abuse of discretion in the district court’s findings of fact and conclusions of law in analyzing the likelihood of success.
With regard to the first purported “flaw,” we note that the district court found that the record did not reveal the full extent to which the Johnson County school districts were instigators of the subject sales tax but “assumed that they played a major role in urging the BOCC to take its action.” The question is whether the assumed major involvement of these school districts was unlawful or rendered the subsequent actions of the BOCC unlawful. Plaintiffs cite no authority whatsoever to support their implication for the unlawfulness or impropriety of the school districts’ involvement in enacting the resolutions that triggered the ballot question, and we find none. We view the school districts’ involvement as being akin to solicitation for financial assistance; even if the BOCC was required to submit the ballot question, the electorate had every opportunity to “just say no.” Based upon the limited record developed for purposes of the motion for temporary injunction, we conclude that the district court’s rationale was not analytically flawed in this regard and there was no abuse of discretion.
With regard to the second pui-ported “flaw,” we do not conclude that the district court’s acceptance of defendants’ characterization of the manner of the subject revenue distribution as a permissible donation was an abuse of discretion. Clearly, the BOCC was permitted to transmit sales tax revenues to the school districts; indeed, it has long been recognized that county commissioners have exclusive control over county expenditures, including donations of public property to private concerns. See Crow, 243 Kan. at 290; Ullrich v. Board of Thomas County Commr's, 234 Kan. 782, 788-90, 676 P.2d 127 (1984); Hackler v. Board of County Commissioners, 189 Kan. 697, 698, 369 P.2d 782 (1962). Given the adoption by the electorate of the special question expressly characterizing the purpose of the tax as being “to fund and award economic development and public benefit grants to public school districts” (emphasis added), plaintiffs’ efforts to defy this characterization must fail. If the transaction is not characterized as a donation, it would be difficult if not impossible to characterize the transaction in some other manner and remain consistent with the authorizing resolution.
With regard to the school districts’ receipt of such funds, plaintiffs concede that there is no express statutory prohibition against such receipt, but plaintiffs argue that receipt would violate the purpose or “spirit” of the Act, which they argue
“carefully limits the extent of ad valorem property taxation (K.S.A. 72-6431), names other sources of local tax effort (e.g., K.S.A. 72-6410), and specifies the limited extent to which local school district authorities may augment their budgets locally (K.S.A. 72-6433). The District Court erred in finding in the ‘donation’ provision of the statute a loophole that would permit school districts to receive an unlimited amount of local sales tax revenue, utterly regardless of the impact on funding equity for public education across the state.”
Plaintiffs also contend that the district court’s construction and application of the statute has constitutional implications.
Although certain aspects of the school finance statutory scheme were intended to achieve funding equity or at least reduce disparities among school districts, such equity was not intended to be rigidly inviolate. See U.S.D. No. 229 v. State, 256 Kan. 232, 272, 885 P.2d 1170 (1994), cert. denied 515 U.S. 1144 (1995) (“One of the basic purposes of the Act is to reduce the disparity among the districts.”). In fact, we note that the legislature has expressly permitted various funding vehicles and adjustments that are not consistent with this purpose or “spirit,” including: (i) weighting factors (K.S.A. 72-6411 et seq.); (ii) limited local option budgets (K.S.A. 72-6433 et seq.); (iii) local capital outlays (K.S.A. 72-8801 et seq., unlimited by K.S.A. 2003 Supp. 79-5040); (iv) miscellaneous revenues, unlimited if properly designated (K.S.A. 72-6427); and (v) bequests and donations, unlimited if placed in separate funds (K.S.A. 72-8210).
Plaintiffs may consider these local option funding vehicles and adjustments as loopholes, but we view them as manifestations of legislative intent to preserve some degree of local autonomy at the expense of statewide equity; plaintiffs’ efforts to be relieved from any such loophole as an obstacle to statewide funding equity among school districts should be directed to the legislature, not the courts. Defendants argue and the record supports that Wyandotte County schools have received multimillion dollar grants from private foundations that would have been prohibited if the statutes were strictly construed by adherence to the purported purpose or spirit of equity among school districts. We agree. Based upon the limited record before it, the district court’s construction of the statutory scheme and its characterization of the sales tax revenue distributions were not flawed and there was no abuse of discretion.
We are similarly unimpressed with plaintiffs’ constitutional claims. We do not agree that our Supreme Court has held that “disparities in funding” are infirm under the Education Clause of Article 6 of the Kansas Constitution or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In fact, in U.S.D. No. 229, 256 Kan. at 274, our Supreme Court acknowledged the lack of uniformity of funding among school districts, yet upheld the constitutionality of the Act. Although U.S.D. No. 229 did not immunize more recent revisions of the Act from constitutional challenge, see Montoy v. State, 275 Kan. 145, Syl. ¶ 3, 62 P.3d 228 (2003), we are disinclined to predict the outcome of Montoy v. State (Montoy II), No. 92,032, which is pending before our Supreme Court, especially in the mere context of reviewing the denial of a temporary injunction. Since this matter must be remanded in any event, it is likely that our Supreme Court’s decision in Montoy II will be available for the district court’s analysis before any final decision on the merits is made in this litigation. We conclude that plaintiffs did not demonstrate a likelihood of success on their constitutional claims.
Demonstration of Irreparable Injury Absent Injunction
In finding that plaintiffs failed to sustain their burden to show irreparable harm unless the injunction issued, the district court concluded: (i) Even if the sales tax revenues were declared part of the “local effort,” this would not increase funds received by Wy andotte County school districts; (ii) if plaintiffs ultimately prevail, there exists a statutory mechanism in K.S.A. 72-6418 to remit over-payments to the state treasurer; (iii) any diminution in any statewide effort to force legislative remedies to school financing due to Johnson County’s sales tax solution was far too speculative to support a temporary injunction.
Plaintiffs argue on appeal that their irreparable harm is the competitive disadvantage resulting from the excess funding to Johnson County schools. They argue:
“[T]he defendant school districts are receiving millions of dollars in the current school year that permit them to compete more effectively for high quality teachers and other personnel. N o monetary compensation to die plaintiffs at the conclusion of this case can malee up to the school district plaintiffs for what could be several years of being at a disadvantage, not contemplated by the School Finance Act or the Kansas Constitution, in providing the same quality of educational opportunity to their students as the neighboring districts . . . . As for the plaintiff parents of children in Wyandotte County public schools, no later remedy can make up for years of schooling that do not measure up to that experienced by their peers in the county next door.”
We conclude that the district court did not abuse its discretion in finding no irreparable harm sufficient to enjoin revenue distributions. First, we note that plaintiffs will have a full and complete opportunity to develop their competitive disadvantage evidence on remand for purposes of standing and this evidence will serve to build a complete record for final determination on the merits. Second, we agree that there is a statutory mechanism for repayment in the event that plaintiffs ultimately succeed on the merits and this may serve as an adequate remedy at law. See K.S.A. 72-6418. We view plaintiffs’ claims of the loss of educational momentum due to delay in this remedy as insufficient for a showing of irreparable injury. See Merrill Lynch, Pierce, Fenner & Smith v. de Liniere, 572 F. Supp. 246, 249 (N.D. Ga. 1983), quoted with approval in Wichita Wire, 11 Kan. App. 2d at 465. Third, plaintiffs’ claim that the Johnson County sales tax will diminish the statewide effort for remedial school finance legislation is entirely too speculative to support a temporary injunction.
We conclude that the district court properly analyzed plaintiffs’ claims of irreparable injury and did not abuse its discretion in finding no such injury.
Balance of Harm Analysis
In finding the balance of harm “equal” the district court reasoned:
“Since the plaintiffs would receive no extra funding if the temporary injunction issues, but the Johnson County districts would be hampered in their efforts to budget for next year and to negotiate with prospective teachers, does the potential harm to the movants outweigh tire potential harm to the defendants?
“Both parties make good arguments regarding the harm that their budgeting process and teacher negotiation process will suffer. However, the balance of harm seems absolutely equal.”
The only argument offered by plaintiffs on appeal is that the district court failed to consider that plaintiffs are purportedly suffering violations of statutory and constitutional provisions, citing O Centro Espirita Beneficiente Uniao v. Ashcroft, 342 F.3d 1170, 1187 (10th Cir. 2003), and Johnson v. Miller, 929 F. Supp. 1529, 1560 (S.D.Ga. 1996). Since plaintiffs have failed to demonstrate that they have a likelihood of success on these claims, we disagree that the purported violations should tip the balance of harm analysis. We conclude that there was no abuse of discretion by the district court in concluding that the balance of harm was equal, thus supporting the denial of temporary injunctive relief.
Public Interest Analysis
The district court found that temporary injunctive relief would be adverse to the public interest principally because of the need to uphold public elections and defer to legislative determinations, citing and quoting from Lambeth v. Levens, 237 Kan. 614, 621, 702 P.2d 320 (1985); State ex rel. Tomaste v. City of Kansas City, 237 Kan. 572, 579, 701 P.2d 1314 (1985); and Ullrich, 234 Kan. at 789.
Again, plaintiffs’ only challenge to the district court’s conclusion is that the court failed to consider that it was adverse to the public interest to permit the purported statutory and constitutional violations to continue for the duration of the case. We treat this ar gument here in the same fashion it was treated in reviewing the balance of harm: If plaintiffs have failed to demonstrate a likelihood of success on the merits of such claims, we see no need to consider the purported violations as adverse to the public interest. We conclude that the district court did not abuse its discretion in finding that the issuance of temporary injunctive relief to plaintiffs would be adverse to the public interest.
Summary and Conclusion
In summary, we have concluded that the issue of plaintiffs’ standing to maintain this action must be addressed as a threshold issue, and we remand for an evidentiary hearing and legal determination of this issue. We conclude that the district court did not abuse its discretion in denying temporary injunctive relief to plaintiffs.
We remind the parties that our review has been conducted solely on the record generated through the temporary injunction proceedings and has been limited in scope to a review for abuse of discretion, applying the standards for temporary injunctive relief. We do not intend this opinion to be a final determination on the merits of plaintiffs’ claims. See Wichita Wire, 11 Kan. App. 2d at 464. We contemplate that a full development of the record, together with the inevitable evolution of case law construing applicable statutory and constitutional provisions, will enable the district court to achieve a comprehensive, final determination that may or may not be at variance with the views expressed in its opinion denying temporary injunctive relief.
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Hill, J.:
In America, the foundation of our liberty is due process of law. Underpinning that foundation, for those accused of crimes, are the twin rights of being present at all critical stages of a criminal prosecution and being free to retain counsel of choice. Because Robert M. Carver was denied both of those rights, we must reverse his convictions and remand the case for a new trial.
We briefly list some of the facts about the crimes involved and then show how the case was handled by the district court.
FACTUAL BACKGROUND
Richard Carver and Kimberly Buttel lived together in Wichita until they had a fight in September 2000. Carver then moved to a new residence in October of that year. Theirs has been a tempestuous relationship. A series of arguments and attempts at reconciliation followed.
Around Thanksgiving 2000, Carver broke into Buttel’s residence where he found her in bed with Jason Ciasen. Threatening both with a hammer, he hit Ciasen in the head. Ciasen fled to another bedroom, threw a speaker through the window, escaped out the window, and stood naked on the second stoiy ledge. Meanwhile, Carver grabbed Buttel, dragged her from die residence, and fled with her in his car. They eventually checked into a motel. While at the motel, Buttel talked to her mother, Donna Billionis, on the telephone. Carver also spoke with Billionis. Carver finally turned himself over to the police.
Eventually, Carver was convicted of aggravated battery, misdemeanor assault, aggravated burglary, and kidnapping.
PROCEDURALRACKGROUND
At Carver s first appearance, his trial was set for February 26, 2001. Prior to trial, the State moved to sever all of Carvers visitation, phone, and mail privileges at the jail because of a violation of a no contact order regarding Buttel. The court allowed Carver to retain his visitation privileges but opted to cut off his phone privileges and directed that all of Carver s mail go through his attorney.
About 1 week before Carver’s first trial date, assistant district attorney Alice K. MacBeth told Carver’s retained counsel, Robert Rumsey, that she was drafting a motion to remove him as counsel due to a conflict of interest stemming from Rumsey’s representation of Buttel’s mother 5 years earlier. Rumsey suggested that they should proceed immediately to see a judge. Following an unrecorded meeting in chambers without die defendant, Judge Clark V. Owens II disqualified Rumsey from representing Carver. Judge Owens then appointed the public defender’s office to represent Carver even though Carver had neither requested court-appointed counsel nor filled out a financial affidavit for the appointment of counsel.
Two days after the date set for the trial, assistant public defender John Henderson finally introduced himself to Carver at the jail as his new court-appointed counsel. Carver immediately responded that he wanted Rumsey to represent him. Henderson advised Carver to file a pro se motion if he desired to raise his concerns regarding Rumsey’s removal from his case. After Carver drafted the motion, Henderson distributed copies of the motion and filed it with the court.
In his motion, Carver alleged that Buttel’s mother was using her position as director of the adult probation department to prejudice his case. Carver pointed out that Rumsey had not represented ei fher of the alleged victims, Buttel or Ciasen, in his case and that Rumsey had been his private attorney for over 15 years. He stated that he had remitted $15,000 to Rumsey in partial payment of a retainer fee for his defense. Alternatively, Carver sought to hire another attorney from Rumsey’s firm or to select an “attorney of my choice who is on [Sjtate’s attorneys list”; he did not want a public defender to represent him. Carver wrote: “Your honor, all I am asking for is for this motion to be heard and the opportunity to seek counsel myself with what I would consider to be adequate representation of my defense.”
Carver’s trial was scheduled for Judge Rebecca L. Pilshaw on April 30, 2001. Near the end of March or the beginning of April, Carver’s family contacted local counsel to represent Carverwithout success. Finally, on April 19, 2001, Carver’s brother and a family friend contacted attorney Christopher Magaña who agreed to represent Carver if the case could be continued.
On April 25, 2001, assistant district attorney MacBeth, the three defense attorneys connected to Carver’s case (Rumsey, Henderson, and Magaña), and Carver himself appeared before Judge Pilshaw. Rumsey informed the court that he did not voluntarily withdraw but that he was removed from the case by the court. Regarding the absence of a record of the proceeding wherein Rumsey was removed, MacBeth attempted to explain:
“Unfortunately, Mr. Carver wasn’t present for the conversation in Judge Owens’ chambers, and I think to add to that, I mentioned, ‘Do we need to have a record on this?’ Judge Owens says, “We need a record if Donna’s going to waive it because we need to have that on the record. But if not, Rob’s going to get off the case and we’ll appoint someone else.’ I think that’s how we went down just so you know why we didn’t have a record and why Mr. Carver wasn’t available.”
Assistant public defender Henderson informed Judge Pilshaw that Carver’s pro se motion seeking Rumsey’s reinstatement had not yet been placed on Judge Owens’ docket. Henderson had tracked the motion, indicating it was scheduled for a hearing a few days following the hearing they were having that day. No hearing or ruling was ever made on Carver’s motion. Henderson maintained:
“I suppose the theme that I’m projecting is [Carver] was unable to communicate either by mail or telephone with any family members. . . . But at any rate, it does appear that he has made eveiy consistent effort to try to get an attorney, even given his limited abilities to communicate. And I don’t think anyone could suggest at this point Mr. Carver was sitting on his rights in this regard and trying to delay.”
Judge Pilshaw noted the absence of an accurate record of the proceedings where Rumsey had been removed as Carver s counsel and that the defendant had been without counsel for at least 1 week. She astutely observed:
“This thing has been messed up from the very beginning. No. 1, we have a rule, a district court rule, Rule 131 that says if you want — if you have a motion that you want to have heard, then you have to give seven days’ notice.
“Ms. MacBeth, granted, you may have called Mr. Rumsey. Mr. Rumsey may be accepting the blame for how that came down, et cetera, but you have a requirement to notify not just Mr. Rumsey but to notify his client when you’re trying to remove his lawyer from the case. Mr. Carver has a right to be present at all critical stages of the proceedings, and I would say that when someone is talking about removing his lawyer from a case, that's a critical stage of the proceeding.
“I’m not criticizing what Judge Owens has done. He has handled it in the way diat he felt was the best in the exercise of his discretion as the presiding judge in his department. But the fact remains that as Mr. Henderson just pointed out, Mr. Carver was never given notice that - well, he did point this out, Mr. Carver was never given notice that you were seeking formally to have his lawyer removed from tire case. He never requested that the public defender’s office be appointed to represent him.
“Finally, when Mr. Rumsey eventually gets over there to tell Mr. Carver and when Mr. Henderson gets over there to talk to Mr. Carver — because let’s remember, at your request, Ms. MacBeth — I didn’t allow Mr. Carver — and he deserved it. I’m not apologizing for one minute for removing his privileges, but he’s over there in the jail now and has absolutely no way to communicate basically with anyone other than via kites in order to even try and obtain another attorney. Not only that, but he appropriately files a motion. Maybe it’s not with merit. It doesn’t have any merit. Your motion, I mean, once — the motiqn may or may not have much merit, but on March 19, as early as March 19, over a month ago he filed a motion to get in front of the judge basically to talk about the issue of who his lawyer was going to be, and then our clerks’ office apparently messes up there and it’s never even heard.” (Emphasis added.)
The judge could have heard Carver’s motion or taken testimony about the alleged conflict of interest. Instead, the court moved in the same direction, thus confirming the prior judge’s actions that were taken in the absence of the defendant:
“I understand and yesterday was fully willing to overrule the motion for a continuance, but it is not as if Mr. Carver has been resting on his laurels in attempting and just waited for the last moment to bring this before the Court. In my opinion at this particular stage it appears to me that the Court system has let Mr. Carver down, and while I sympathize with the concerns that you have, Ms. MacBeth, especially about your witness — that’s my biggest concern is about your witness. While I sympathize with that concern, I feel that I must grant the continuance in order to enable Mr. Carver to hire Mr. Magaña.”
Magaña requested 6 weeks to prepare for Carver’s trial. That was denied, but Judge Pilshaw granted a 30-day continuance or the case would go to trial the next week with court-appointed counsel.
Posttrial, the court denied Carver’s motion for new trial in which he argued, in part, that he had been denied counsel of his choice.
We first review the fundamental due process rights afforded defendants so they can participate meaningfully in their own defense, the rights to counsel of choice and to be personally present at the proceedings. Next, we examine the record to see if there really was a conflict of interest for Carver’s attorney and then decide if all of this is harmless error.
FUNDAMENTAL RIGHT TO COUNSEL
Under the Sixth Amendment to the United States Constitution, the right to the assistance of counsel for one’s defense is a fundamental right. Kimmelman v. Morrison, 477 U.S. 365, 374, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986). We must point out that “[u]nlike a civil defendant, a criminal defendant’s choice of his counsel is protected by the [Sjixth [Ajmendment. In Powell v. Alabama, 287 U.S. 45, [77 L. Ed. 158, 53 S. Ct. 55] (1932), the Supreme Court stated: Tt is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.’ 287 U.S. at 53.” United States v. O’Malley, 786 F.2d 786, 789 (7th Cir. 1986); see also United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979), aff'd 667 F.2d 365 (3d Cir. 1981), where the court stated that the de fendant’s selection of counsel has been labeled as “the most important decision a defendant makes in shaping [a] defense.”
Significantly, the Sixth Amendment right to counsel is “designed to assure fairness in the adversary criminal process.” Wheat v. United States, 486 U.S. 153, 158, 100 L. Ed. 2d 140, 108 S. Ct. 1692, reh. denied 487 U.S. 1243 (1988). Therefore, a court may restrict the defendant’s right to retain counsel of his or her choice if the defendant insists on an attorney he or she cannot afford, the attorney declines to represent the defendant for other reasons, the attorney is not a member of the bar, or counsel has a “previous or ongoing relationship with an opposing party, even when the opposing party is the Government.” 486 U.S. at 159.
FUNDAMENTAL RIGHT TO BE PRESENT
Our Supreme Court has ruled that a
“defendant’s constitutional right to be present during criminal proceedings stems from the Sixth Amendment to the United States Constitution right to confront witnesses and the Fifth and Fourteenth Amendments to the United States Constitution due process right to attend critical stages of a criminal proceeding in which the defendant is not actually confronting witnesses or evidence against him or her. [Citations omitted.]” State v. Mann, 274 Kan. 670, 680, 56 P.3d 212 (2002).
“[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure. [Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987).] To be present’ requires that a defendant be more than just physically present. It assumes that a defendant will be informed about the proceedings so he or she can assist in the defense. United States v. Mosquera, 816 F. Supp. 168, 172 (E.D.N.Y. 1993).” State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000).
In United States v. Treadway, 328 F.3d 878 (6th Cir.), cert. denied 540 U.S. 860 (2003), Treadway maintained he had been denied due process when the district court failed to ensure his presence at a hearing where the withdrawal of his attorney was addressed. Shortly after Treadway retained his attorney, Agee, the State raised a potential conflict of interest regarding Agee when it indicated it would be calling one of Agee’s former clients to testify against Treadway. Agee opted to withdraw; the district court entered an order granting the withdrawal. The same day, Treadway retained another attorney who remained Treadway’s attorney through conclusion of sentencing. In addressing Treadway’s claim of a denial due process, the Sixth Circuit Court of Appeals stated:
“The Due Process of the Fifth Amendment states that ‘[n]o person shall ... be deprived of life, liberty, or properly, without due process of law.’ U.S. Const, amend. V. The Supreme Court has identified notice and an opportunity to be heard as the hallmarks of procedural due process. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, [94 L. Ed. 865, 70 S. Ct. 652] (1950). Treadway cites no authority, nor can we find any, for his proposition that a hearing is required whenever an attorney seeks to withdraw from representation. Nevertheless, we do believe that, in the ordinary course, a criminal defendant should have notice and an opportunity to be heard when his attorney of choice seeks to withdraw from representation. Cf. Anders v. California, 386 U.S. 738, 744, [18 L. Ed. 2d 493, 87 S. Ct. 1396] (1967) (requiring an attorney, attempting to withdraw because an appeal is frivolous, to seek permission to withdraw from the court and to file a brief directing the court to anything in the record that might support the appeal) [Citations omitted.]. However, an oral hearing is not the only way to ensure that defendants receive notice and an opportunity to be heard. For example, counsel could serve the defendant with a motion of withdrawal and allow him an opportunity to file a response.” Treackvay, 328 F.3d at 887-88.
As in Treadway, the State here sought the withdrawal of the defense attorney. Likewise, Carver was not notified of the hearing. Further, he was not presented with a motion by the State informing him of the pending action or provided with an opportunity to respond. However, Carver’s situation is even more egregious in that Rumsey did not voluntarily withdraw; he was removed. Carver’s pro se motion seeking an opportunity to appear before the court was never heard or ruled upon.
In addition, K.S.A. 2003 Supp. 22-3405(1) provides that “[t]he defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.”
Carver had a constitutional and statutory right to be present at the proceeding where the district court removed his retained defense counsel for an alleged conflict of interest. The court erred when it denied him that right.
REMOVAL OF COUNSEL FOR CONFLICT
When a trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to ensure that the defendant’s right to effective assistance of counsel is not violated. State v. Jenkins, 257 Kan. 1074, 1080, 1083-84, 898 P.2d 1121 (1995); State v. Lem'Mons, 238 Kan. 1, 9, 705 P.2d 552 (1985) (Trial court should hold an in-depth hearing to determine existence of conflict of interest where there is a question of divided loyalty.). A trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and client. State v. Taylor, 266 Kan. 967, 978, 975 P.2d 1196 (1999).
The determination of whether an attorney has a conflict of interest requiring disqualification is governed by an abuse of discretion standard. In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 566-67, 781 P.2d 731 (1989), cert. denied 494 U.S. 1070 (1990). A determination of disqualification will be sustained where the court, in its sound discretion, finds either an actual conflict or a serious potential for conflict. Wheat, 486 U.S. at 164.
NO CONFLICT
The absence of any written or oral ruling or transcript of the trial court’s hearing to address the claimed conflict of interest stands in contravention of Supreme Court Rule 165 (2003 Kan. Ct. R. Annot. 202), which states: “In all contested matters submitted to a judge without a jury, including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.” See also K.S.A. 2003 Supp. 60-252(a) which provides: “In all actions tried upon the facts without a jury or with an advisory jury or upon entering summary judgment or involuntary dismissal, the judge shall find, and either orally or in writing state, the controlling facts and the judge’s conclusions of law thereon.”
The Kansas Rules of Professional Conduct (KRPC) (2003 Kan Ct. R. Annot. 317) establish a two-part test to be used to determine if a conflict of interest may exist between a lawyer’s present representation and representation of a former client. See Hoang, 245 Kan. at 565-66. The party alleging a conflict of interest violation has the burden of proof. State v. Drach, 268 Kan. 636, 643, 1 P.3d 864 (2000). KRPC 1.9 (2003 Kan. Ct. R. Annot. 381) provides that a lawyer who has formerly represented a client in a matter shall not thereafter:
“(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
“(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.”
The Comment to KRPC 1.9 focuses on whether the lawyer has changed sides and is using just generally known information:
“The scope of a ‘matter’ for purposes of Rule 1.9(a) may depend on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client .... The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
“Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawiyerfrom using generally known information about that client when later representing another client.” (Emphasis added.) 2003 Kan. Ct. R. Annot. 381-82.
That comment also refers to the Comment to KRPC 1.7 (2003 Kan. Ct. R. Annot. 372) that gives some cautionary advice to courts ruling on motions to disqualify made by adversaries:
“Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.” (Emphasis added.) 2003 Kan. Ct. R. Annot. 375.
The scant facts presented to Judge Pilshaw indicate that Rumsey did not represent Billionis in a substantially related matter in which Carver s interests were “materially adverse” to those of Billionis as contemplated by KRPC 1.9(a) (2003 Kan. Ct. R. Annot. 381). Rumsey told Judge Pilshaw that he had previously represented Billionis in an action to obtain custody of Buttefs children. Judge Owens had previously told Rumsey that he could continue to represent Carver if Billionis “waived the confidentiality,” and when Billionis refused, Rumsey was removed. The State indicated to Judge Pilshaw that Rumsey’s account accurately reflected the events leading to Rumsey’s removal.
Additionally, Rumsey would not have been required to use information relating to Billionis’ representation in his defense of Carver other than perhaps what had become generally known. Billionis obtained custody of two of Buttel’s four children 5 years prior to Carver’s trial. We do not see how Rumsey’s representation of Billionis in a child custody proceeding 5 years earlier could be used to Buttel’s disadvantage in Carver’s trial, especially since the State had filed a motion in hmine requiring the defense to refrain from:
“mentioning, alluding to, commenting upon, posing questions in regard to or malting any reference whatsoever to the following:
“(1) Any character or credibility evidence in the form of specific instances of conduct regarding Kimberly Buttel.
“(2) Any reputation or opinion testimony regarding any character trait or credibility of Kimberly Buttel without first allowing the State to challenge the witness outside the juiy’s presence to test the foundation of the evidence.
“(3) Any evidence regarding any and all child custody actions involving Kimberly ButteVs children.” (Emphasis added.)
At a hearing on the motion, defense counsel argued that he wanted to convey to the jury that the fear Buttel expressed to Billionis during a telephone conversation they had while she was with Carver during the kidnapping may have been attributed to Buttel’s fear that Billionis would take her other two children rather than Buttel being fearful of Carver. In order to establish this point, the defense maintained it was important to show that Billionis already had custody of two of Buttel’s children. The trial judge responded, “I’m not going to allow this jury or anyone else to be distracted by matters that have nothing to do with this case -1 can assure both parties of that - and that includes relationship of the parties evidence and it includes anything to do with child custody.” (Emphasis added.) The trial judge reserved ruling on the State’s motion, instructing counsel to approach the bench outside the presence of the juiy should evidence concerning child custody become relevant or if the door was opened through the course of the trial. These facts demonstrate that there was no real possibility of Rumsey using confidential information as contemplated by KRPC 1.9(b) (2003 Kan. Ct. R. Annot. 381).
The State does not contend that an actual conflict of interest existed which prevented Rumsey from continuing to represent Carver. See Mickens v. Taylor, 535 U.S. 162, 172 n.5, 152 L. Ed. 2d 291, 122 S. Ct. 1237, reh. denied 535 U.S. 1074 (2002) (“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.”) However, the State indicates that “apparently” a “possibility of a conflict” existed precluding Rumsey from continuing to represent Carver. The State suggests Hoang was the precedent relied on by the district court in disqualifying Rumsey.
In Hoang, the public defender informed the State on opening day of trial that another attorney from his office had defended the key prosecution witness, Tran. The trial court was alerted to the possible conflict of interest when the State filed a motion in limine to bar defense counsel from bringing out the prior representation. The trial judge concluded that Hoang’s attorney would face a conflict of interest when cross-examining Tran, having imputed knowledge of confidential communications from Tran. Subsequently, the trial judge disqualified defense counsel and declared a mistrial.
The public defender’s office had handled Tran’s case while Hoang’s case was on appeal. Here, Rumsey’s representation of Billionis dated back 5 years; Carver and Billionis had moved in together less than 2 years before the trial. It is unlikely that Rumsey had received any confidential communications from Billionis during his representation of her which would relate to Carver’s case.
Moreover, the facts in Hoang indicate that Tran “was a key prosecution witness against Hoang.” 245 Kan. at 561. One cannot characterize Billionis as a key prosecution witness as she was not a conspirator, an aider or abettor, and not even an eyewitness to the events. For the most part, Billionis’ testimony was simply used to provide background information.
In summary, “the decision to disqualify an attorney in a criminal case requires an evaluation of the interest of the defendant, the [Gjovernment, the witness and the public in view of the circumstances of each particular case. See United States v. James, 708 F.2d 40, 44 (2d Cir. 1983); United States v. Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982). Accord United States v. Garcia, 517 F.2d 272, 273 (5th Cir. 1975).” United States v. O’Malley, 786 F.2d 786, 790 (7th Cir. 1986).
Carver expressed his desire to retain his chosen counsel by filing a pro se motion seeking reinstatement of Rumsey. Carver told Judge Pilshaw that he did not see a conflict of interest requiring Rumsey’s removal. In his motion for a new trial, Carver argued that he had been denied the counsel of his choice. In addition to Carver’s continued desire to have Rumsey represent him, Carver had also paid Rumsey a substantial retainer fee for the work completed on his case, covering at least 2 months of trial preparation. The State charged Carver in November 2000 but did not seek to remove Rumsey until 1 week before Carver’s trial scheduled for February 2001.
Also, the State had appropriately filed a motion in limine, alerting the court of its intent to protect its witness, Buttel, regarding the child custody issue that was the subject matter of Rumsey’s prior representation of Billionis. Therefore, the State had the necessaiy tool to ensure that the possibility of a conflict had no effect on the trial.
In the absence of a journal entry setting forth the required findings of fact and conclusions of law and with a record demonstrating that the potential for a conflict of interest was nonexistent, we believe the trial court did abuse its discretion in disqualifying Rumsey from representing Caiver. This is especially true in light of the fundamental right Carver has to counsel of his choice.
NOT HARMLESS ERROR
The State contends any error was harmless in that Carver attended a subsequent hearing and was ultimately allowed to retain counsel “which represented him so well the defendant was acquitted of two charges and convicted of a lesser offense on a third charge.” The determination of whether an error is structural or harmless involves a question of law over which an appellate court exercises unlimited review. State v. Hill, 271 Kan. 929, 934, 26 P.3d 1267 (2001).
In State v. Mann, 274 Kan. 670, 680-83, 56 P.3d 212 (2002), our Supreme Court reviewed decisions that considered harmless error when the defendant has been denied the opportunity to be present at a critical stage of proceedings. The court then stated:
“In Calderon, this court addressed the issue of whether harmless error could prevent reversal once a defendant’s constitutional right to be present during a critical stage of the proceeding had been violated. Calderon was found to have been denied his constitutional right to be present at a critical stage when the trial court ordered the interpreter, necessary for Calderon to understand the proceedings, not to translate closing arguments for Calderon. The court examined the distinction between trial errors, which are subject to a harmless error analysis, and structural errors, which require a new trial. In reversing Calderon’s conviction, the majority of the court concluded that the failure to translate the closing arguments implicated a basic consideration of fairness and that a harmless error analysis was inappropriate under the circumstances. 270 Kan. at 253.” Mann, 274 Kan. at 682-83.
However, the Mann court went on to consider the result in State v. Lopez, 271 Kan. 119, 134, 22 P.3d 1040 (2001), where the court determined a harmless error analysis should be applied. In Lopez, the defendant complained that the judge conversed with counsel outside his-presence prior to voir dire regarding the qualification of potential jurors and that the judge, both counsel, and a juror met outside the defendant’s presence on the second day of trial. The Lopez court found it was not structural error because, although Lopez had been denied a meaningful presence at a critical stage of his trial, “his absence did not implicate a basic consideration of fairness or undermine the function of a criminal trial. 271 Kan. at 134.” Mann, 274 Kan. at 683.
Here, the issue is not only Carvers absence at the hearing where his counsel of choice was removed, compounded by the lack of a record of the proceedings and any written or oral rulings, but also the fact that removal of his counsel does not appear to have been necessary. Arbitrary removal of defense counsel can be a determinative factor for whether the defendant is entitled to a new trial. For example, in Harling v. United States, 387 A.2d 1101 (D.C. Ct. App. 1978), the District of Columbia Court of Appeals reversed and remanded for a new trial after finding the trial court unnecessarily interfered with the defendant’s right to counsel.
In Hading, defense counsel informed the court that he could not be effective after a motion for discovery was summarily denied. The trial judge disqualified defense counsel after charging that counsel was attempting to establish a record of ineffective assistance of counsel for appeal. Counsel responded that he was simply trying to bolster his argument in favor of the motion being granted. The appeals court found that the trial court’s “response to counsel’s persistence was both intemperate and unwise.” The “obduracy” of the trial judge was further noted when he refused to reinstate the defense counsel on appellant’s request which was filed 11 days after his removal. 387 A.2d at 1105.
The Government argued that reversal was not required because the defendant eventually received competent defense counsel. The court rejected this argument, determining that it was irrelevant that substitute counsel had not been proven ineffective. Instead, the court noted the difference between “an arbitrary infringement on the right to assistance of counsel and interference with the attorney-client relationship” and a claim of ineffective assistance of counsel:
“The claimed deprivation is an arbitrary infringement on the right to assistance of counsel and interference with the attorney-client relationship, not a claim of ineffective assistance of counsel. Reversal is required even though no prejudice is shown. ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’ Glasser v. United States, 315 U.S. 60, 76, [86 L. Ed. 2d 680, 62 S. Ct. 457] (1942). See also Holloway v. Arkansas, [435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978)]; English v. State, [8 Md. App. 330, 259 A.2d 822, 826 (1969)]; Smith v. Superior Court of Los Angeles County, [68 Cal.2d 547, 68 Cal. Rptr. 1, 440 P.2d 65 (1968)].” 387 A.2d at 1106.
In United States v. Treadway, 328 F.3d 878, 888 (6th Cir.), cert. denied 540 U.S. 860 (2003), the Sixth Circuit Court of Appeals found that;
“the failure to provide Treadway an opportunity to be heard on Agee’s withdrawal was error and that it was plain. [Citation omitted;] cf. Guenther v. Commissioner, 889 F.2d 882, 884 (9th Cir. 1989) (noting that an ex parte communication violates a party’s right to due process if the party was denied the ‘opportunity to participate in determination of the relevant issues’ and thereby suffered prejudice).”
Thus, the Treadway court went on to determine whether the defendant had suffered any prejudice. See State v. Flournoy, 272 Kan. 784, 795, 36 P.3d 273 (2001) (“ ‘The Kansas harmless error statute encompasses the federal harmless error and plain error rules.’ ” [Citations omitted.]) The court considered it important that Treadway had never objected to the removal of Agee or to the substitution of his replacement attorney and he had not indicated the replacement attorney provided unsatisfactory representation. 328 F.3d at 889. Thus, the court concluded that Treadway had failed to show how the removal of Agee had “affected his substantial rights or the ‘fundamental fairness, honesty, or public reputation’ of his judicial proceeding.” 328 F.3d at 889.
Neither Treadway nor Carver contended that they received ineffective trial representation, but the rest of the facts in Treadway are distinguishable from those in Carver’s case. Carver was not made aware of the possibility of a conflict of interest before the hearing. Rumsey, his attorney, did not withdraw; he was removed. Carver did not retain replacement counsel the same day; instead, he was appointed a public defender even though he had neither requested one nor filled out a financial affidavit. Carver’s pro se motion seeking reinstatement of Rumsey was not placed on the trial judge’s docket. The curtailment of Carvers communication privileges in jail intensified the difficulties he encountered in procuring retained counsel. Only through the assistance of a family member was Carver able to locate counsel to represent him. Carver’s retained counsel proceeded to trial after being granted a 30-day continuance, even though he requested 6 weeks to prepare. Obviously, the trial court’s errors affected the fundamental fairness, honesty, or public reputation of Carver’s judicial proceedings.
The State says the error should be deemed harmless because Carver’s attendance was ensured at a subsequent hearing. However, at that hearing the court never ruled upon tire conflict of interest forcing Rumsey’s removal from the case, and the court did not offer Carver the option of such a hearing where he would be apprised of the complexities of a possible conflict of interest, as well as the opportunity to waive any such conflict.
Further, the State contends that Carver was provided counsel of his choice. This argument should be viewed in light of the nearly insurmountable difficulties Carver endured to obtain counsel of his choice. His appointed public defender, Henderson, described to the court that lack of attention paid to Carver’s case initially as Carver was so intent on obtaining other counsel. Additionally, Henderson pointed out to Judge Pilshaw that Magaña entered as Carver’s third representative. Henderson stated the case files had been organized in different ways by different people on two occasions. Previous representation by other counsel made subsequent representation more difficult. Out of concern for Carver’s representation, Rumsey also expressed to the court the complexity of Carver’s case and the need for adequate time for Magaña to prepare for Carver’s trial. Further, Judge Pilshaw made it clear that the continuance was contingent on Magaña agreeing to represent Carver; otherwise, Carver’s trial would begin the following week.
We cannot deem the deprivation of Carver’s right to defense counsel of choice under these circumstances as a harmless error. Carver is entitled to a new trial with counsel of his own choosing.
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Greene, J.:
Edward Coburn appeals his convictions of three counts of aggravated indecent liberties with a child (J.W.), three counts of aggravated indecent liberties with a second child (S.W.), and one count of sexual exploitation of a child. He frames 11 specific points of error and cumulative error. We reverse and remand for new trial due to a clearly erroneous jury instruction, and we attempt to narrow issues for remand.
Factual and Procedural Overview
S.W. and J.W. are minor granddaughters of Coburn’s wife, Rose. The girls lived with their mother, C.W., about 2 blocks from the home of Coburn. The girls would frequent Cobum’s home, sometimes for parties, during which Coburn would play “tickling games” with the girls, according to Rose. At some point, C.W. became suspicious that something was wrong. Specifically, the girls told her that Cobum was touching them on their bottom and making comments about their chests. After her suspicions were aroused, C.W. did not permit further contact.
Unfortunately, her intervention apparently came too late. After S.W. had trouble at school, she confided to her mother that Coburn had put his hand in her pants. J.W. was then questioned and ulti mately stated that Coburn had also touched her. C.W. then reported these matters to the police.
On March 19, 2000, Cobum reported for work at the Apple Market quite early and was seen shortly thereafter leaving with a satchel under one arm. The safe was found unlocked, and the receipts from the previous business day were missing. When Rose awakened that morning, she found a note from Cobum stating, in part:
“My leaving is going to be the best for everyone. Since everytime I do something I am being accused of doing something like [J.W.] and [S.W.]. I AM NOT A child molester. . . . At least I’ll have fun the last years of my life—the money will help me settle down—I am sorry honey it didn’t work out. Love, Ed.”
In order to investigate where Cobum might have gone, C.W. and her husband went to Cobum’s computer the day after he left and found a train schedule that showed a stop in Las Vegas, and they also found pornography involving young girls. When they reported the pornography to the authorities, the computer was seized.
S.W. and J.W. both testified at trial. S.W. testified that she first met Cobum before he moved to Kansas, and that in the summer of 1998, Cobum touched her in her genital area. After Cobum moved to Kansas, S.W. recalled one incident that occurred in the basement of Rose’s house where Coburn touched her with his hand in her genital area, and she recalled two such incidents that occurred in the living room of Rose’s house. She also saw Cobum touch her sister, J.W. J.W. testified that Cobum would begin the physical contact by tackling and then tickling her, but he would then move his hands to the area of her genitals. She recalled at least three incidents where Cobum either made his clothed genital area have contact with her or he tried to touch her genital area with his hand.
The testimony of S.W. and J.W. was corroborated by other girls who had attended the parties or been present at Rose’s house and observed Coburn’s conduct. These witnesses testified as to their observations but also testified regarding conversations they had with J.W. wherein J.W. told of Cobum’s inappropriate conduct in “sticking] his hand inside her pants” or “down to her vagina.”
The State called FBI computer specialists to describe what was found on Coburn’s computer. Over the objection of the defense, some of the names of the websites were listed, including “Sex-hound,” “Teenysex,” “Teen-eroticism.com/yteens,” and “Lolitasnude-young.com.” When a sampling of the documents saved on Cobum’s hard drive was printed, among the documents were 20 photos of young, unclothed girls. An expert pediatrician and director of child abuse services at the Kansas University Children’s Center testified that the girls in at least five of the photos were under the age of 18.
The jury found Coburn guilty of all charges, and he was sentenced to a controlling term of228 months’ imprisonment. He then perfected this appeal.
The Trial Court Erred in Instructing the Jury that Coburns Flight Could be Considered in Determining Guilt.
The State requested a separate instruction on flight pursuant to State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967), overruled in part on other grounds. State v. Underwood, 228 Kan. 294, 615 P.3d 153 (1980). Cobum objected to the instruction, but the State told tire trial court that there were a number of cases since Mojfitt holding that the flight instruction is proper. The court overruled tire objection and gave the following instruction:
“If you find from the evidence that the defendant, soon after the commission of the offenses alleged in the information, fled to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence. His flight, if he did flee, is not sufficient in itself to establish guilt, but a circumstance which you may consider in determining the probabilities of his guilt or innocence. The weight to which that circumstance is entitled is a matter for the Jury to determine in connection with all the facts brought out in the case.”
Both the State and the defense failed to cite for the trial court or for this court on appeal the controlling authority of State v. Cathey, 241 Kan. 715, 730-31, 741 P.2d 738 (1987), which departed from Mojfitt and held that such a flight instruction is clear error.
“The purpose of instructing the jury is to guide the jurors in their dehberations and to aid them in arriving at a legally proper verdict. It is the trial judge’s duty to explain to the jury the law of the case and to point out the elements necessary to be proved by the State in a criminal case. Instructions which are erroneous and misleading can constitute grounds for a new trial. When instructing a jury, a trial judge may not single out and give undue emphasis to particular evidence, even though the instruction states the correct principle of law.
“It is clearly erroneous for a judge to instruct the jury on a defendant’s consciousness of guilt by flight, concealment, fabrication of evidence, or the giving of false information. Such an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury. The flight instruction was clearly a grave departure from the accepted form. By giving the flight instruction, the trial judge violated the McCorgary prohibition. This violation and other trial errors require that Cathey’s conviction be reversed and the case be remanded for a new trial in accordance with this opinion.” (Emphasis added.)
The instruction disapproved in Cathey was nearly identical to that at issue in this appeal. This instruction no longer appears in PIK, and was apparently removed sometime after the Cathey decision. We find it curious if not misleading for the prosecution to have been unaware of Cathey but to suggest that “a number of cases” since Mojfitt held the instruction proper. The instruction employed was specifically disapproved by our Supreme Court more than 15 years ago, and the rationale for prohibiting such an instruction is that it emphasizes and singles out certain evidence rather than leaving to the jury the significance and weight of all evidence presented. See State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976).
This court is duty bound to follow controlling Supreme Court precedent, absent some indication that the court is deviating from its prior holding. State v. Horn, 20 Kan. App. 2d 689, 692, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995). The State cites no indication of an impending deviation from Cathey, and we know of none. Based upon this ground alone, we have no alternative other than to reverse Cobum’s conviction.
The Convictions for Six Counts of Aggravated Indecent Liberties With a Child are Supported by Sufficient Evidence.
Because we have decided that the instruction error requires a reversal, we must also address Coburn’s sufficiency of the evidence arguments. A reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permis sible under the Double Jeopardy Clause. State v. Pabst, 268 Kan. 501, 512, 996 P.2d 321 (2000) cert. denied 123 S. Ct. 384 (2002).
Coburn argues the State presented insufficient evidence to sustain the jury convictions of aggravated indecent liberties with a child as to J.W. and S.W. The following standard of review applies:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all of 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. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003).
Aggravated indecent liberties with a child is defined in part at K.S.A. 21-3504(a)(3)(A) as engaging in any of the following acts with a child who is under 14 years of age: “Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” Here, the trial court— consistent with Kansas Supreme Court precedent—defined “lewd fondling or touching” as follows:
“The term lewd fondling or touching1 means a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or the offender or both. Lewd fondling or touching does not require contact with the sex organ of one or the other.”
See State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977).
We have conducted a comprehensive review of the evidence in support of Counts I-VI, and conclude that there was more than adequate evidence to support conviction for at least six separate incidents of aggravated indecent liberties. The victims testified to at least six incidents where Coburn either touched them in their genital areas or touched them with his genital area, and this testimony was corroborated by three neighbor girls or friends, the girls’ mother, and two social workers. Although Cobum complains that the girls often employed vague terminology in referring to parts of their anatomy, the girls described the areas as: (i) the part of the body used “to go to the bathroom”; (ii) “inside her pants”; (iii) “down past my bellybutton”; and (iv) “vagina.” We disagree that this evidence was too “vague,” especially since lewd fondling or touching does not require contact with the sex organ of one or the other. Wells, 223 Kan. at 97-98. We are convinced that a rational factfinder could have found Coburn guilty of all six counts of aggravated liberties with a child, as defined by K.S.A. 21-3504(a)(3)(A), beyond a reasonable doubt.
The Conviction for Sexual Exploitation of a Child is Supported by Sufficient Evidence.
Cobum also challenges the sufficiency of the evidence on his conviction for sexual exploitation of a child, K.S.A. 2003 Supp. 21-3516(2), although the challenge is made within his claim of error for an improper joinder of charges. The joinder issue will not be considered because it is raised for the first time on appeal.
Coburn argues that the evidence was insufficient for exploitation because the photos possessed within his computer “are of nude females engaged in no sexually explicit activity.” He cites State v. Zabrinas, 271 Kan. 422, 431, 24 P.3d 77 (2001), for the proposition that “a child or infant in a harmless moment could never be considered to be [engaged in sexually explicit conduct].”
Our court had occasion to apply Zabrinas in State v. Liebau, 31 Kan. App. 2d 501, 67 P.3d 156 (2003), where a conviction for sexual exploitation of a child was reversed because the video made and possessed was of a 16-year-old girl who was completely unaware that she was being videotaped by her father. The court reasoned:
“As we consider the phrase ‘exhibition in the nude’ in the context of the entire definition of ‘sexually explicit conduct,’ we must conclude that it means more than mere nudity. Webster’s Dictionary defines ‘exhibit’ as: T. To show externally: DISPLAY. 2. a. To present for public view. b. To show or enter in an exhibition or contest.’ Webster’s II New Riverside University Dictionary 452 (1984).
“While we can assume under the facts of this case that Liebau made and possessed the videotapes with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest, the nudity depicted on the videotape is that of a child in a ‘harmless moment.’ Clearly, a 16-year-old girl, unaware that she is being videotaped in the nude while using the bathroom, cannot be said to be engaging in sexually explicit conduct or an exhibition of nudity.” 31 Kan. App. 2d at 505.
We embrace this discussion in Liebau and note that the photos possessed by Cobum did not depict models who were “unaware” of the camera, but rather were clearly posing for the camera. These photos depicted “exhibition in the nude” because they were more than mere nudity—the models posed for display or public view, just as the court in Liebau defined the phrase. For this reason, Coburn’s sufficiency challenge to the conviction for sexual exploitation of a child is rejected.
Given our conclusions that the flight instruction was clearly erroneous and that die convictions were supported by.sufficient evidence, we remand for new trial. We discuss additional claims of error only to narrow the issues and to assist the parties and trial court on remand.
The Trial Court Did Not Err in Defining “Sexually Explicit Conduct” As Including Exhibition in the Nude. ”
Cobum objected at trial to an instruction defining “sexually explicit conduct” because it included the phrase “exhibition in the nude” wifliin die definition. Coburn argues on appeal that the phrase should have been removed “to comply with the narrowing of the statute by die Zabrinas court.” See Zabrinas, 271 Kan. at 426-33. We disagree that Zabrinas “narrowed” 21-3516 or required removal of a phrase expressly utilized in the statutory definition.
In Zabrinas, the court faced squarely a constitutional challenge to 21-3516, specifically, whether the phrase “exhibition in the nude” made the statute overbroad because it could include innumerable nonsexual depictions of child nudity, which are common in the media, the arts, and homes of Kansas citizens. The court upheld the statute, stating:
“We construe the language to apply only to those situations when a child has been employed, used, persuaded, induced, enticed, or coerced into the nude display of the statutorily defined areas while engaging in sexually explicit conduct, also as statutorily defined, for purposes of appealing to the sexual desires or the prurient interest of the offender, die child, or another. The statute prohibits anyone from possessing a visual depiction of a child engaged in this type of conduct. The phrase ‘exhibition in tire nude’ does not malee die statute unconstitutionally overbroad.”
We do not understand the court in Zabrinas to disapprove the statutory phrase “exhibition in the nude”; moreover, the court’s discussion of constitutionality did not address appropriate juiy instructions, and certainly did not direct trial courts to alter the statutory definition for these purposes. The jury instruction in question tracks the statutory language, and Cobum’s argument therefore fails.
The Trial Court Did Not Err in Its Unanimity Instruction.
Coburn challenges the court’s unanimity instruction on appeal even though his attorney at trial argued in favor of the unanimity instruction and did not object to the specific language used. Generally, a party may not claim error in the failure to give an instruction without first objecting thereto, unless such failure is clearly erroneous. K.S.A. 2003 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
The following principles guide this court’s analysis:
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
The court in Instruction No. 17 gave the following unanimity instruction.
“The State claims distinct multiple acts which each could separately constitute the crime of Aggravated Indecent Liberties with a Child. In order for the defendant to be found guilty of any of the counts, you must unanimously agree upon the same underlying act.” (Emphasis added.)
Cobum complains of the emphasized language in the preceding quotation and argues that the jury could have believed that the same underlying act would be sufficient to support all of the counts. The court, however, also instructed the jury with Instruction No. 8 that each count was a separate and distinct offense:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime must be stated in a verdict form signed by the Presiding Juror.”
Cobum begins his argument with an analysis of State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001). Hill has limited usefulness in this case because it contains the analytical framework for cases where tire unanimity instruction is not given. Here, the instruction was given and the error claimed is one of language used.
Coburn too narrowly focuses on Instruction No. 17 without considering the other instructions, especially Instruction No. 8. See Mitchell, 269 Kan. at 355. Instruction No. 8 told the jury that each charge is a separate and distinct offense, and that the evidence may support some of the counts but not others. The jury would have to ignore Instruction No. 8 to believe that evidence of the same act could support all the counts.
Coburn suggests the court should have substituted the language of “aggravated indecent liberties with a child” in the place of “any of the counts” in the instruction, which would result in the following: “In order for the defendant to be found guilty of aggravated indecent liberties with a child, you must unanimously agree upon the same underlying act.” This instmction would have been unsatisfactory because it would have suggested to the jury that it must convict Coburn of all counts or none at all. The State persuasively argues that Coburn’s proposed instruction ignores the fact that there were multiple counts of aggravated indecent liberties charged. Because multiple counts of aggravated indecent liberties with a child were charged in this case, the court was required to avoid this result by inserting the language “any of the counts.”
Coburn’s reading of the instructions is entirely unreasonable. The court’s instructions properly and fairly stated the law, and the jury could not reasonably have been misled by them. Cobum’s argument is rejected.
The Trial Court Did Not Err in Admitting Evidence of the Vulgar Names of Websites Visited by Cobum.
Coburn argues the court erred in admitting evidence of the vulgar names of websites he visited because that evidence was not relevant and unduly prejudicial. The admission and exclusion of evidence lies within the sound discretion of the trial court. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Leitner, 272 Kan. 398, 408, 34 P.3d 42 (2001). Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401. “Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact.” State v. Wimbley, 271 Kan. 843, 853, 26 P.3d 657 (2001). Where the probative value, however, is substantially outweighed by the risk of unfair prejudice, relevant evidence may be excluded. Leitner, 272 Kan. at 415.
As an element of sexual exploitation of a child, the State had to prove that Cobum possessed the images with an intention to “arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another.” K.S.A. 2003 Supp. 21-3516(2). The vulgar names of the websites had probative value for this element. They were especially probative given Cobum’s argument that the images on his computer’s hard drive were innocent pictures. The names of the websites, however, belie his claims that the images were innocent. We find no abuse of discretion in the admission of this evidence.
The Trial Court Did Not Err in Admitting Evidence of Theft, Flight, and Prior Crimes.
Cobum argues that evidence of his theft and flight, and evidence of uncharged allegations of sexual misconduct, were improperly admitted by the trial court contrary to K.S.A. 60-455. The State argues the evidence of the theft and flight and of the uncharged allegations was admissible under the doctrine of res gestae.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The following must be satisfied for evidence to be admitted under K.S.A. 60-455: The trial court must find that (1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice. State v. Rucker, 267 Kan. 816, 824, 987 P.2d 1080 (1999).
Res gestae evidence is admissible despite the prohibition of K.S.A. 60-455:
“Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction and is not rendered inadmissible because it may disclose other or independent offenses. The law allows the admission of evidence as part of the res gestae of acts made before, during, or after the principal event. [Citation omitted.] If the evidence is a part of the res gestae of the offenses for which a defendant is being tried, such evidence maybe introduced independent of K.S.A. 60-455. [Citation omitted.]
“Acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of die crimes charged is admissible if there are some natural, necessary, or logical connections between the evidence and the inference or result which it is designed to establish. [Citation omitted.]” State v. Spresser, 257 Kan. 664, 667-68, 896 P.2d 1005 (1995).
Res gestae evidence can be admitted to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.” State v. Edwards, 264 Kan. 177, 200, 955 P.2d 1276 (1998).
On appeal, the admissibility of prior crimes is reviewed under an abuse of discretion standard. Rucker, 267 Kan. at 823. Discretion is abused only when no reasonable person would take the view adopted by the trial court. 267 Kan. at 823. Cobum bears the burden of proving the abuse of discretion. See 267 Kan. at 823. “Wide latitude is given to the district court in determining whether evidence constitutes part of the res gestae.” Edwards, 264 Kan. at 200.
Flight and Theft
While the flight instruction, as discussed above, was clearly er roneous, the admissibility of that evidence was not. See State v. Bowman, 252 Kan. 883, 891, 850 P.2d 236 (1993) (“This court has-held evidence of flight or attempted flight is admissible'to establish the defendant’s consciousness of guilt.”) Once it is established that evidence of the flight itself was admissible, it follows that the evidence of the theft was not in error, since the theft was necessarily inextricably connected to the flight. Without the money, the flight would not have been possible. We find no abuse of discretion in admitting this evidence. .
Additional Incidents Involving S.W. and J.W.
Cobum also complains, without citing any specific authority, that the trial court erred in admitting evidence that he touched S.W. and J.W. on more than three occasions. The Kansas Supreme Court recently addressed the issue of continuous conduct between an adult and a child in a similar context in State v. McHenry, 276 Kan. 513, 78 P.3d 403 (2003). The evidence of additional uncharged incidents of sexual touching is admissible to “ ‘establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness to the act charged,’ ” independent of K.S.A. 60-455. 276 Kan. at 520 (quoting State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 [1981]).
Here, the evidence of additional incidents involving J.W. and S.W. was admissible to establish the continuing relationship between Cobum and the girls, to show the continuing course of conduct between Cobum and the girls, and to corroborate the girls’ stories. The evidence is particularly relevant given Cobum’s assertion that his tickling and wrestling with the girls was harmless. The evidence buttresses S.W.’s and J.W.’s testimony that the wrestling was not innocent, but was rather designed to facilitate Coburn’s inappropriate touching. We find no abuse of discretion in admitting this evidence.
Additional Incidents Involving L.C.
L.C. specifically testified that when Coburn touched her, he did it while pretending to be “wrestling around.” This evidence was admissible under K.S.A. 60-455 as evidence of Cobum’s plan. J.W. and S.W. consistently testified that Coburn would touch them while pretending to be wrestling around. Cobum himself admitted to wrestling with the girls. To prevent the jury from believing that the wrestling was an innocent game, the State was entitled to admit evidence to show that Cobum engaged in similar acts with other girls with similar results. See State v. Clements, 252 Kan. 86, 90, 843 P.2d 679 (1992) (finding a pattern of approach to seducing young boys that is “similar enough to show a common approach that is tantamount to a plan”); State v. Damewood, 245 Kan. 676, 679-80, 783 P.2d 1249 (1989) (permitting evidence of prior use of beekeeping ruse to engage boy in sexual activity). We find no abuse of discretion in admitting this evidence.
Remaining Claims of Error
Coburn’s remaining claims of error, including his constitutional challenges, merit no discussion at this time since resolution of these issues would be of little or no assistance to the trial court on remand and consideration of the constitutional issues prior to remand is not necessary to serve the interests of justice or to prevent a denial of fundamental rights. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
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Pierron, J.:
Marcus T. Brown appeals from the district court’s denial of his motion to correct an illegal sentence pursuant to K.S.A. 22-3504. We affirm.
While serving sentences for burglary' and obstructing legal process, Brown escaped from the work release unit at the Hutchinson Correctional Facility on July 18, 2000. A day later, he turned himself in to authorities.
On September 12, 2000, Brown pled no contest to attempted aggravated escape from custody. The charging information did not include either of the crimes for which Brown was in custody at the time of his escape. Brown’s criminal history included four nonperson felonies and four misdemeanors, which equated to a criminal history score of E. Brown objected to his criminal history, but this was overruled.
On May 20, 2002, Brown filed a motion to correct an illegal sentence pursuant to K.S.A. 22-3504. A hearing was held May 24, 2002; Brown’s motion was denied.
Brown argues that his criminal history score was incorrectly determined to be E because his prior convictions should not have been included in his criminal history score pursuant to K.S.A. 21-4710(d)(ll). Specifically, Brown contends his prior crimes could not be included in his criminal history score because they are elements of attempted aggravated escape from custody.
This issue involves interpretation of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., and this court’s review is unlimited. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
“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 legislative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
Central to the analysis of this issue is the statutory subsection under which Brown was convicted. Both the complaint and journal entry of conviction indicated that Brown was charged and convicted under K.S.A. 2002 Supp. 21-3810 but provided no section or subsection. However, a close inspection of die record strongly suggests that Brown was convicted under K.S.A. 2002 Supp. 21-3810(a)(7). This was verified by Brown in his brief.
Brown’s presentence investigation (PSI) report lists the violated statute as K.S.A. 2002 Supp. 21-3810(a)(2) and (7). K.S.A. 2002 Supp. 21-3810(a)(2) does not appear appropriate because that section pertains only to individuals in custody due to juvenile charges or adjudications. The crimes for which Brown was incarcerated at the time of his escape were adult nonperson felonies.
Also, severity level 7 was indicated on the complaint, journal entry, and PSI report for the attempted escape charge. Because Brown was convicted of attempted aggravated escape, the severity level of his crime of conviction was required to be lowered two levels from that indicated for the completed crime. K.S.A. 21-3301(c). The only subsections for which a severity level 5 is indicated are (a)(2), (a)(7), (b)(2), and (b)(7). K.S.A. 2002 Supp. 21-3810(c)(2), (4). K.S.A. 2002 Supp. 21-3810(b) does not pertain to the present case, as it requires tire use or threat of violence to effectuate escape, which is not indicated within the record. As mentioned, subsection (a)(2) also does not apply. Finally, subsection (a)(7) requires that the escapee be incarcerated at an institution listed under K.S.A. 75-5202. Hutchinson Correctional Facility satisfies this requirement. Hence, it is reasonable to conclude Brown was convicted under K.S.A. 2002 Supp. 21-3810(a)(7).
K.S.A. 2002 Supp. 21-3810 provides: “Aggravated escape from custody is: (a) Escaping while held in lawful custody . . . (7) upon incarceration at a state correctional institution as defined in K.S.A. 75-5202 and amendments thereto, while in the custody of the secretary of corrections.”
K.S.A. 21-4710(d)(ll) provides:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)
In support of his argument, Brown cites State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997). Although Taylor is helpful in the disposition of the present case, it does not appear to be controlling. Taylor was charged with aggravated escape from custody under K.S.A. 21-3810(a). The Taylor court held that all charges listed in the information for the new crime used to fulfill the element of “in lawful custody” could not be used to enhance a defendant’s criminal history pursuant to K.S.A. 21-4710(d)(ll), but that all other crimes could, and in fact should, be used to compute the criminal history score under that same statute. 262 Kan. at 479-80.
The key to the rationale in Taylor appears to be a portion of the aggravated escape statute that does not pertain to the present case due to amendment. At the time of Taylor, K.S.A. 21-3810(a) required, inter alia, that the escapee be “in lawful custody upon a charge or conviction of a felony.” (Emphasis added). K.S.A. 21-3810(a); 262 Kan. at 479. The statute was later amended to the current version, the version in effect at the time of Brown’s escape, in which there are seven alternative scenarios that are to be considered within the ambit of aggravated escape without the use of violence or the threat of violence. See K.S.A. 2002 Supp. 21-3810(a).
The language “upon a charge or conviction of a felony” is indeed still included within K.S.A. 2002 Supp. 21-3810(a)(l) but only as one of the seven alternative scenarios under K.S.A. 2002 Supp. 21-3810(a). K.S.A. 2002 Supp. 21-3810(a)(7) does not contain this language; instead, it merely requires the escapee to have been incarcerated and in the custody of the secretary of corrections.
“ ‘In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.’ ” State v. Smith, 245 Kan. 381, 396, 781 P.2d 666 (1989)(quoting State v. Jackson, 239 Kan. 463, Syl. ¶ 4, 721 P.2d 232 [1986]).
It follows that under K.S.A. 2002 Supp. 21-3810(a)(l), at least one crime for which an alleged escapee was convicted or charged must serve as an element of aggravated escape per Taylor. Since substantially different language was used in K.S.A. 2002 Supp. 21-3810(a)(7) and the seven scenarios presented under section (a) are all connected using the conjunction “or,” it would belie the plain meaning of that section to require proof of conviction when criminal elements must be derived only from the statute.
It appears that proof of Brown’s in-custody status was required by K.S.A. 2002 Supp. 21-3810(a)(7), not proof of a conviction that created that status. Hence, all of Brown’s prior convictions were correctly included in his criminal history score. The district court did not err in denying Brown’s motion.
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Greene, J.:
Hallmark Cards, Inc. (Hallmark) seeks judicial review of a decision of the Kansas Department of Commerce & Housing (Department) that found Hallmark ineligible for an income tax credit pursuant to K.S.A. 79-32,160a(e), the Kansas High Performance Incentive Program (HPIP) for tax years 1995 and 1996. Hallmark contends generally that both the Department and the district court misconstrued or misapplied the statutory requirements for HPIP participation and that Hallmark received disparate treatment when compared to other applicants. We reverse and remand to the district court with directions to remand to the Department for certification of Hallmark for HPIP tax credits, holding that the Department’s failure to promulgate objective regulatory requirements for program eligibility coupled with the Department’s practice of employing unduly subjective and inconsistent criteria for eligibility fail to support the denial of Hallmark’s certification for the program.
Factual and Procedural Overview
Hallmark applied retroactively in 1999 with the Department for certification of HPIP participation necessary to receive tax credits for certain qualified business facility investments made during tax years 1995, 1996, and 1997. The Department granted certification for tax year 1997 but denied Hallmark’s eligibility for tax years 1995 and 1996, stating:
“With respect to the investment in question, your client was unaware of HPIP tax incentives. Therefore company decisions to expand the scope of the investment cannot have been influenced by the existence of HPIP benefits. With this in mind, HPIP certification cannot be extended to the company, prior to the point when it became aware of the program. For these reasons, we are rejecting this request for HPIP certification for calendar 1995 and calendar 1996.”
Hallmark filed its first petition for judicial review upon receipt of the Department’s action, contending that it was indeed aware of HPIP prior to making the capital investments at issue and that the Department had exceeded its statutory authority and discriminated against Hallmark in creating eligibility criteria beyond the statute and the regulations. The district court held that the Department had statutory authority for requiring both prior knowledge of HPIP and reliance thereon as prerequisites for eligibility under the statutoiy scheme. The court remanded the matter to the Department for development of a record on Hallmark’s program eligibility.
On remand, Hallmark moved for summary judgment, framing three issues: (1) whether the Department’s interpretation of the statutory authority for the HPIP was erroneous; (2) whether the foreknowledge requirement was applied equally to all other applicants; and (3) whether Hallmark in fact was aware of the HPIP prior to making investment decisions in 1995 and 1996. The Department’s hearing officer found that Hallmark was ineligible for HPIP benefits because “[t]here is no evidence that those at Hallmark with authority to authorize capital expenditures had foreknowledge of HPIP in 1995 and 1996.”
Hallmark then filed its second petition for judicial review, contending that the Department’s hearing officer continued “to deny Petitioner tax benefits to which it is entitled under K.S.A. 79-32,160a(e).” The district court affirmed the hearing officer, and Hallmark appeals all administrative decisions and both district court orders.
Standard of Review
Our standard of review, as specified in K.S.A. 77-621, requires this court to grant relief where, inter alia, the agency has erroneously interpreted or applied the law, has engaged in an unlawful procedure or has failed to follow prescribed procedure, or has made a determination of fact that is not supported by evidence that is substantial when viewed in light of the record as a whole. K.S.A. 77-621(c)(4), (5), and (7). The statute also requires us to grant relief where the agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(8); see Zinke & Trumbo, Ltd. v. Kansas Corporation Comm'n., 242 Kan. 470, 474, 749 P.2d 21 (1988).
Interpretation of a statute is a question of law over which this court exercises unlimited review. Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 250-51, 21 P.3d 985 (2001). As this appeal involves in part the interpretation of statutory language by an administrative agency, the doctrine of operative construction is applicable. Under this doctrine, “the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference.” 271 Kan. at 250. The doctrine is not without limits because the prior agency determination, “while persuasive, is not binding on the court.” 271 Kan. at 250.
In reviewing the district court’s actions in such matters, we must first determine whether the district court observed the requirements and restrictions placed upon it by the statute and then apply the same standards as the district court in reviewing the administrative tribunal’s action. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, Syl. ¶ 2, 630 P.2d 1131 (1981).
The Statutory Scheme for HPIP Tax Credits
When Hallmark filed its applications in 1999 for HPIP certification, the operative statute was K.S.A. 1999 Supp. 79-32,160a(e), which provided:
“(e) Notwithstanding the foregoing provisions of this section, any taxpayer qualified and certified under the provisions of K.S.A. 1999 Supp. 74-50,131, and amendments thereto, and that has received written approval from the secretary of commerce and housing for participation and has participated, during the tax year for which the exemption is claimed, in the Kansas industrial training, Kansas industrial retraining or the state of Kansas investments in lifelong learning program or is eligible for the tax credit established in K.S.A. 1999 Supp. 74-50,132, and amendments thereto, shall be entitled to a credit in an amount equal to 10% of that portion of the qualified business facility investment which exceeds $50,000 in lieu of the credit provided in subsection (b)(2) or (c)(2) without regard to tire number of qualified business facility employees engaged or maintained in employment at the qualified business facility. The credit allowed by this subsection shall be a one-time credit” (Emphasis added.)
K.S.A. 1999 Supp. 74-50,131 contained extensive threshold eligibility criteria for certification and also provided:
“(g) The secretary of commerce and housing shall certify annually to the secretary of revenue that a firm meets tire criteria for a qualified firm and that the firm is eligible for the benefits and assistance provided under tire act. The secretary of commerce and housing shall publish rules and regulations for the implementation of this act.” (Emphasis added.)
The regulations promulgated by the Department in 1993 pursuant to this statute remained in effect in 1999 and specified eligibility criteria and application procedures at K.A.R. 110-6-1 etseq. Although the statutory criteria and the regulatory criteria for certification are both detailed and extensive, neither contains an express or implied requirement for eligibility that an applicant show foreknowledge of the HPIP and reliance on the program at the time of the relevant investment. The Department argues, however, that any such express requirement was unnecessary given the obvious legislative intent for the HPIP to be an “incentive” program.
The statutory scheme was amended in 2000 at the behest of the The amendments consisted of isolated revisions to both K.S.A. 74-50,131 and K.S.A. 79-32,160a(e). See L. 2000, ch. 157, secs. 8 and 9. First, the Department sought to “clarify that benefits are not intended for investment which occurred prior to knowledge of the program” by the following italicized revision to K.S.A. 79-32,160a(e):
“(e) Notwithstanding the foregoing provisions of this section, any taxpayer qualified and certified under the provisions of K.S.A. 1999 Supp. 74-50,131, and amendments thereto; which, prior to making a commitment to invest in a qualified Kansas business, has filed a certificate of intent to invest in a qualified business facility in a form satisfactory to the secretary of commerce and housing; and . . . .” L. 2000, ch. 157, sec. 9.
Second, the legislation amended both K.S.A. 79-32,160a and K.S.A. 74-50,131 to add language “[commencing after December 31, 1999,” thus, apparently limiting the revisions to prospective application. See L. 2000, ch. 157, secs. 8 and 9.
The Department argues that the 2000 revisions were intended to clarify existing law, but Hallmark argues that they must be presumed to have changed prior law, citing American Trust Administrators, Inc. v. Sebelius, 273 Kan. 694, 701, 44 P.3d 1253 (2002). Hallmark also suggests that the revisions provide “compelling evidence that the Department was exceeding its statutory authority for tax years 1995 and 1996 when it imposed its prior knowledge and reliance standard without the benefit of statutory or regulatory authorization.”
With this statutory framework and legislative history firmly in mind, we analyze the arguments of the parties.
Did the Department and the District Court Misconstrue the Statutes in Requiring Foreknowledge and Reliance for HPIP Eligibility?
In interpreting statutes, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Courts are not limited to a mere consideration of the language used but may also look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions urged. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749-50, 973 P.2d 176 (1999). Although the heading or title given an act of the legislature forms no part of the statute itself, the language of the title cannot be ignored as an aid in determining legislative intent. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 846, 610 P.2d 1107 (1980).
When enacted in 1993, the legislation first establishing the HPIP was titled: “An Act relating to economic development to increase the competitiveness of Kansas firms and foster increased investments in worker training and education; providing business assistance and income and sales tax incentives for certain qualified firms...(Emphasis added.) L. 1993, ch. 172. A primaiy advocate for the HPIP legislation explained the purpose of the legislation in written testimony, as follows:
“The proposed legislation would provide a new and innovative approach toward business incentives and assistance for existing and new Kansas firms to provide substantial support to firms that strive toward high performance. We.are not aware of any comparable, precedent legislation in other states. This would be accomplished by rewarding ‘qualified firms’ with significantly higher levels of tax credits and other direct business assistance. The concept is to encourage firms that adopt a dual investment strategy of simultaneously increasing their levels of technology and upgrading their workforce.” Minutes, Senate Comm, on Commerce, January 25,1993 (S.B. 73).
“Costs are dependent on the number of firms that qualify and the dollar size of their investments and profits. It is clear that this bill will stimulate additional investment by Kansas firms—investments unlikely to occur without this legislation. Costs of the proposal should be considered against the increased revenues that will be received from the business retention and expansion that will occur as a result of the program.” (Emphasis added.) Minutes, House Comm, on Taxation, March 24, 1993 (Sub. S.B. 73).
Additional legislative histoiy is quite compelling on the issue of intent to create an incentive program rather than an entitlement program. Witnesses further testified before the legislative committees that the program would authorize “tax incentives” to businesses and would “provide a valuable tool to retain existing businesses to help them expand, to encourage them to invest in their workforce and to pay higher wages.”
Notwithstanding legislative histoiy, Hallmark argues that the statutes should be construed in pari materia with a host of other tax credit statutes, none of which require foreknowledge and reliance. In support of this argument, Hallmark cites K.S.A. 74-8301 et seq. (Venture Capital Credit); K.S.A. 79-32,153 et seq. (Job Expansion and Investment Credit Act of 1976); K.S.A. 79-32,160a (Enterprise Zone Income Tax Credits); K.S.A. 79-32,175 et seq. (Handicapped Accessibility Credit); K.S.A. 79-32,182 (Research and Development Credit); K.S.A. 79-32,190 (Child Day Care Credit); K.S.A. 79-32,192 (Postconsumer Waste Credit); K.S.A. 79-32,194 et seq. (Community Service Contribution Credit); K.S.A. 79-32,202 (Credit for Adoption Expenses), all of which contain similar tax credit provisions but none of which has been administered to require foreknowledge or reliance for eligibility. The Department argues that the doctrine of in pari materia is only applicable to statutes relating to the same subject matter and that this is not the case in comparing pure tax credit schemes administered by the Kansas Department of Revenue to the certification process that is a prerequisite to eligibility for the HPIP. We conclude that Hallmark’s in pari materia argument is of little assistance since the certification requirements of K.S.A. 79-32,160a(e) are unique, thus obviating any need to reconcile or bring into workable harmony the plethora of similar tax credit legislation. See Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001); Graham v. Corporon, 196 Kan. 564, 570, 413 P.2d 110 (1966).
Finally, we turn to the 2000 amendments and conclude that it is very difficult to ascertain whether they were intended to clarify existing law or to change prior law. See L. 2000, ch. 157. When the legislature revises an existing law, it is generally presumed that the legislature intended to change the law. Board of Sedgwick County Comm’rs v. Action Rent to Own, Inc., 266 Kan. 293, 304, 969 P.2d 844 (1998). This presumption, however, may be weak according to the circumstances and may be wanting altogether. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). When a statute is ambiguous, an amendment may indicate a legislative purpose to clarify the ambiguities in the statute rather than to change the law. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 773, 69 P.3d 1087 (2003).
As noted above, the Department sought the legislative change in 2000. Minutes of the House Committee on Economic Development, March 14, 2000 (H.B. 3010), reflect the following summary of the Department’s position:
“[A]nd secondly this bill addresses the department’s concern regarding inquiries from those that they feel want to access the program on a retroactive basis, when we have had no knowledge of their interest or investment until after the fact. This program is meant to be an incentive and awarding credits after the fact defeats the purpose.”
We understand that the Department’s efforts may be viewed as rather self-serving, since the dispute with Hallmark was already brewing, but it is difficult for us to square the legislative history in both 1993 and 2000 with Hallmark’s position that the later amendments were intended to change existing law. We conclude that the presumption of change rather than clarification either should not be applied or is overcome by the strength of legislative history in this case. We conclude that the 2000 amendments made explicit the implicit intent of the prior version.
Although the original statutes and all amendments until the 2000 revisions failed to specify any express eligibility requirements of program foreknowledge and reliance in the investment decision, we believe that such requirements would have been entirely consistent with the purpose of the legislation. Accordingly, if such requirements had been set forth as objective eligibility criteria in the implementing regulations, such regulations would clearly have been within the authority of the Department. Unfortunately for the Department, no such regulations were ever promulgated even though the statute contained a clear command to promulgate regulations.
Since we have concluded that the legislation was not inconsistent with additional regulatory requirements of this nature, we must examine the record to determine whether the Department consistently and uniformly applied internal policy or unwritten standards requiring such a showing for eligibility, see In re Tax Appeal of Morton Thiokol, Inc., 254 Kan. 23, 30-33, 864 P.2d 1175 (1993), and whether the Department’s application of such standards was discriminatory to Hallmark.
Did the Department Consistently and Uniformly Apply an Internal Policy Requiring Foreknowledge and Reliance for HPIP Certification Eligibility?
Hallmark claims drat even if the statute is construed as the Department urges, Hallmark was denied certification while other applicants who made a similar showing were certified by the Department and that the absence of consistent and uniform application of the Department’s unwritten and informal standards has constitutional implications.
Obviously, the preferred approach to establishing criteria for licensing or certification by an agency is through formal rules. When an agency is charged with implementing or interpreting legislation, especially when the agency is administering a licensing or certification statute, fundamental fairness and due process generally dictate that any “standard” or “statement of policy” be expressed in a rule or regulation filed and published pursuant to law. K.S.A. 77-415 et seq. Members of die public, and others affected thereby, should not be subjected to critical agency rules and regulations that are known only by agency personnel. Clark v. Ivy, 240 Kan. 195, 206, 727 P.2d 493 (1986).
Notwithstanding this general preference for rulemaking, there can be no rigid requirement for an administrative agency to promulgate rules to fill all the interstices of statutes so administered, since this would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise. Securities Comm'n v. Chenery Corp., 332 U.S. 194, 203, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947). In determining whether an agency may proceed absent rulemaking, it is critical that informal standards are a natural interpretation of the statute, are applied with consistency, and do not reflect a change in policy of general application. See Morton Thiokol, 254 Kan. at 32-33. An agency must always proceed by rulemaking if it seeks to change the law and establish rules of widespread application. See K.S.A. 77-415 et seq.; Bruns v. Kansas State Bd. of Technical Professions, 255 Kan. 728, 733-37, 877 P.2d 391 (1994). Any rule or regulation as defined by K.S.A. 77-415(4) “shall be of no force and effect” absent filing and publication pursuant to the Act. K.S.A. 77-425.
In the absence of rules, however, due process requires the agency to demonstrate that its internal and written standards of eligibility for statutory benefits are objective and ascertainable and that they are applied consistently and uniformly. See White v. Roughton, 530 F.2d 750, 753-54 (7th Cir. 1976); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Baker-Chaput v. Cammett, 406 F. Supp. 1134, 1139-40 (D.N.H. 1976). Where disparity in outcome among applicants for administrative certification or licensing is the result of intentional systematic unequal treatment by the agency, the Equal Protection Clauses of the federal and state Constitutions are implicated. In re Tax Appeal of City of Wichita, 274 Kan. 915, 920-22, 59 P.3d 336 (2002). Accordingly, we believe that both due process and equal protection concerns require that an administrative agency charged with administering a statutory certification program must demonstrate that any unwritten standards which have not been made explicit in the statute or regulations are applied consistently and uniformly.
Some courts have held that where the statute itself contains a clear command that the agency proceed by rulemaking, failure to promulgate regulations specifying comprehensive and complete standards coupled with an application of informal standards on a case-by-case basis, may lead to the agency action being stricken as arbitrary, capricious, and otherwise not in accordance with law. See, e.g., Ethyl Corp. v. E.P.A., 306 F.3d 1144, 1149-50 (D.C. Cir. 2002). Here, the legislature has explicitly directed that the Department “shall publish” rules and regulations to implement the statute. Given this clear legislative mandate, we must hold the Department to an even higher level of scrutiny in determining whether its internal and unwritten standards have been consistently and uniformly applied.
Having determined the required legal analysis, examination of the record reveals the following key uncontroverted facts or admissions by the Department that are critical to our inquiry:
(1) The Department had no written standards for what constituted sufficient evidence of foreknowledge.
(2) To establish foreknowledge, the Department accepted statements from attorneys, certified public accountants, controllers, special project managers, supervisors, case managers, and individuals from accounting departments. We note that the Department’s willingness if not preference to accept applications from independent consulting firms seems inconsistent with the Department’s insistence that Hallmark establish specific reliance by those making the investment decision.
(3) The Department admitted that its standards to determine eligibility were “subjective decisions.”
(4) Deposition testimony clearly established that, with the exception of Hallmark, the Department never required an independent showing of specific reliance and merely assumed reliance on a showing of foreknowledge, by indicating: “There is really no way to prove that a company has relied on the program.”
(5) Even though the statute contemplates an “annual” certification, the Department determined at some time in 1997 that it was acceptable to certify retroactively. The Department admitted that when it realized that this was “a stupid error” and probably not required by the statute, it decided to “go ahead and process” such retroactive application “because they had been submitted in good faith.”
(6) The record established that in at least two cases, as late as 1997, the Department certified firms for HPIP absent any requirement of foreknowledge upon a “mistaken belief’ by Department officials.
(7) The Department admitted that until the Hallmark application the required demonstration of foreknowledge was “not a high priority matter in administering the program” and the information required to satisfy this showing was “minimal.”
(8) Deposition testimony clearly established that the Hallmark tax manager had foreknowledge of the HPIP program due to his service on the Executive Tax Committee for the Kansas Chamber of Commerce and Industry.
(9) In its initial denial letter to Hallmark, the Department failed to mention or reference in any way whatsoever the reliance requirement; the exclusive basis for denial was Hallmark’s failure to demonstrate “awareness” of the program.
(10) The Department admitted that if it had initially received the same information from Hallmark that was ultimately received, “there is some likelihood” that Hallmark would have been certified, presumably under the same “minimal” standard applied to other firms.
(11) The Department admitted that Hallmark was certified for tax year 1997 based on a contact with the Department demonstrating knowledge of the program in March of 1997, but that contact did not establish or even suggest reliance.
From these key facts, we are compelled to conclude that the Department’s internal standards for determining statutory eligibility for HPIP certification were not reasonably objective, ascertainable standards, nor were they consistently and uniformly applied since program inception, thus rendering diem constitutionally suspect. Especially since the legislature gave the Department a clear command to promulgate regulations to establish eligibility criteria, we decline to endorse the Department’s inconsistent application of unwritten and subjective standards that proved discriminatory as to Hallmark. Such agency conduct, although perhaps not a “systematic” disparity required for a clear violation of equal protection mandates, appears entirely lacking in consistency and uniformity required to comport with due process under these circumstances. See Holmes, 398 F.2d at 265; Sun Ray Dairy v. Oregon Liquor Control Comm’n., 16 Or. App. 63, 517 P.2d 289 (1973).
We need not ground our decision solely on this constitutional basis, however, since we also conclude that relief is required by K.S.A. 77-621(c). Here the Department was directed to promulgate regulations and failed to include some of the eligibility criteria that were only “implicit” for statutory certification. See K.S.A. 74-50,131; K.S.A. 79-32,160a(e). Moreover, tire Department admitted that Hallmark’s proof of the unwritten eligibility requirements was as good as that generally accepted from other applicants, but Hallmark chose to challenge the requirements, thus, provoking higher standards of eligibility than were applied to others. Under these circumstances, we conclude: (i) that the Department’s failure to promulgate regulations was a failure to “follow prescribed proce dure,” see K.S.A. 77-621(c)(5), and (ii) that the Department’s action in refusing to certify Hallmark for HPIP benefits for tax years 1995 and 1996 was arbitrary, capricious, and unreasonable. See K.S.A. 77-621(c)(8); Blue Cross & Blue Shield of Kansas, Inc., v. Praeger, 276 Kan. 232, 275, 75 P.3d 226 (2003).
Under the facts of this case and pursuant to K.S.A. 77-622(b), we vacate the Department’s actions in denying certification, reverse the Department’s hearing officer, reverse the district court, and remand to the district court with directions to remand to the Department for certification of Hallmark for HPIP benefits for tax years 1995 and 1996.
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Per Curiam:
The action of the district court from which this proceeding in error arises related to a boundary which it was claimed had been fixed by parol and acquiesced in so as to bind the parties and their subsequent grantees. The only question is if the evidence supports the judgment of the trial court. A careful canvass of the record leads to the conclusion that the evidence is sufficient for that purpose, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
There is but one point necessary to consider in this case: Did the board of county commissioners have authority to make the contract in question? The county is a qtiasi-municipal corporation, and as such can exercise only those powers expressly conferred and such others as are necessarily or fairly implied in, or which are incidental to, the powers expressly granted. Beyond these it takes nothing by implication. It was said in City of Leavenworth and others v. Norton and others, 1 Kan. 432, 436, that the authorities to this effect are too numerous and too well known to need citation. (See, however, 7 A. & E. Encycl. of L. 926, 942; Felker v. Elk County, 70 Kan. 96, 78 Pac. 167.) The powers of the county generally are stated in section 1603 of the General Statutes of 1901, as follow:
“That each organized county within this state shall be a body corporate and politic, and as such shall be empowered for the following purposes: First, to sue and be sued; second, to purchase and hold real and personal estate for the use of the county, and lands sold for taxes as provided by law; third, to sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed conducive to the interests of the inhabitants; fourth, to make all contracts and do all other acts in relation to the property and concerns of the county, necessary to the exercise of its corporate or administrative powers; fifth, to exercise such other and further powers as may be especially conferred by law.”
And in section 1605 it is provided that “the powers of a county as a body politic and corporate shall, be exercised by a board of county commissioners.” The express powers of the board are enumerated in section 1621. It is not claimed by plaintiffs in error that there is found anywhere in the statutes the express power to make the contract in question, but it is claimed that the power is necessarily implied from the general and express powers conferred upon the board, and Commissioners of Leavenworth Co. v. Keller, 6 Kan. 510, is relied upon. There the authority of the board to make a contract with the register of deeds for the compilation of a tract-index of deeds was upheld, but the court found the power necessarily implied from the express power conferred by the first clause of section 1621 of the General Statutes of 1901, which reads: “To make such orders concerning the property belonging to the county as they may deem expedient.” The records in the office of the register of deeds are county property. If by long use they should require rebinding the power to contract for that purpose would be clearly implied. If by long use the indexes should become worn so that the convenience of the public required new ones, or if the records had never been properly indexed, the board would have the implied power to provide what should be necessary. The contract here was not made with reference to any “property belonging to the county,” and we must therefore look elsewhere for the implied power to make it.
In Grannis v. Board of County Comm’rs, 81 Minn. 55, 83 N. W. 495, a contract made by the board of county commissioners by which a person was employed to discover unassessed and untaxed personal property in such county, for which he was to receive one-half of all taxes paid into the county treasury as the result of his labors, was held ultra vires and void. The powers of counties and county boards in Minnesota appear to be much the same as in this state. There the county board has general charge and supervision of the county affairs, and general authority over its finances, and care of its property and rights. It was held that while the county was interested and concerned in the matter of the collection of taxes it was not charged with the duty of seeing to it that all such property was assessed and placed upon the tax- rolls, because those duties devolved upon other officers. The court said:
“The matter of unearthing and discovering property which has escaped taxation is not only not necessary to the exercise of the corporate powers of a county, but is beyond its express or implied authority.” (Page 58.)
The supreme court of Iowa, in the case of Disbrow v. Supervisors of Cass County, 119 Iowa, 538, 93 N. W. 585, held a similar contract to be valid and binding upon the county. There was a statute,, however, expressly providing that the board of supervisors should have power to appoint an attorney to prosecute an action to recover omitted taxes.
There is much conflict in the decisions with respect to the authority of county boards to contract for the ferreting out of unlisted property and for recovering taxes thereon, but the cases in general are of little assistance in determining the question here, for they often turn upon the existence of a special statute or upon powers of the county board granted by express provision of law. If the power existed here it must be implied from the general power referred to in the fourth clause of section 1603, taken in connection with the fifth clause of section 1621 and section 1646 of the General Statutes of 1901. The fourth clause of section 1603 reads as follows: “To make all contracts and do all other acts in relation to the property and concerns of the county, necessary to the exercise of its corporate or administrative powers.” The fifth clause of section 1621 is as follows: “To represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law.”
Section 1646 gives the board “exclusive control of all expenditures accruing, either in the publication of delinquent tax-lists, treasurer’s notices, county printing, or any other county expenditures.” These are the sections of the statute which plaintiffs in' error mainly rely upon, except certain sections of the general tax laws which will be referred to hereafter.
The fourth clause of section 1603, supra, authorizes the county “to make all contracts and do all other acts in relation to the property and concerns of the county.” The contract entered into did not relate to any property of the county. Did it relate to the “concerns of the county, necessary to the exercise of its corporate or administrative powers”? If it did the board had power to make it, unless limited by section 1621 or some other statutory provision, for the powers conferred upon the county are to be exercised by the board. It may be said that the county is greatly concerned that all citizens shall correctly list their personal property for. the purpose of taxation, and this is true; and it is also true that the duty of citizens in this respect is often flagrantly disregarded and that the interests of the county suffer thereby. This general power conferred upon counties by the fourth clause of section 1603 must be construed, however, in connection with the fifth clause of section 1621, by which it is provided that the board . shall have the “management of the business and concerns of the county, in all eases where no other provision is made by law.”
By reference to section 7599 of the General Statutes of 1901 we find that “other provision” has been made for correcting this evil, and that certain duties are imposed upon the board of county commissioners, and certain express powers conferred upon it in relation thereto. That section provides that after the assessment rolls have been returned the board of county commissioners is given certain' powers for the correction of assessments, if it shall have reason to believe that any person has given a false statement to the assessor or that the assessor has. not returned the full amount required by law to be assessed against such person; and it may well be argued that if the legislature intended to confer upon the board the power to make a contract like the one in question, long prior to the time the duties devolved upon the board to act with reference to assessments of personal property, it would have been found in section 7599, and in clear, unmistakable terms. The provisions of this section cover the whole subject of the inadequate listing of personal property, as well as all the duties and powers conferred upon the board of county commissioners in reference thereto, and necessarily must be held to limit the powers of the board in respect to these particular “concerns of the county.”
In Coal Co. v. Emlen, 44 Kan. 117, 24 Pac. 340, it was held that the county commissioners, sitting as a board of equalization, have no power to add to a personal-property statement as returned by the assessor any property not already listed, for the reason that there is no express power given them so to do; and the court in the opinion comments upon the fact that “there was no want of power properly lodged to enable the proper authorities to secure an assessment of all the personal property of the plaintiff.” (Page 122.) The same power referred to is still in existence and provided for in section 7599. The fact that the subject is one otherwise fully provided for takes it out of the scope of the fifth clause of section 1621, because that clause has no application to cases where provision is otherwise made by law.
Section 1646 of the General Statutes of 1901 gives the board “exclusive control of all expenditures accruing, either in the publication of delinquent tax-lists, treasurer’s notices, county printing, or any other county expenditures.” The contract was ■ not made with reference to delinquent tax-lists or treasurer’s notices, and whether it is embraced in the term “county printing” or “other county expenditures” is the question involved in this case. If the board had authority to make the contract, it was a lawful “county expenditure” and would naturally be classed in that case as “county printing.” We conclude, therefore, that it does not fall within the implied powers of the board, necessary or incidental to any power expressly granted, for the reason that it does not involve the care, or management of any property belonging to the county or any business or concerns of the county, except those for which provision has been otherwise made. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This is a suit to redeem real estate from what is claimed to have been void foreclosure proceedings. The defendant in error owned the real estate, which is located in Lincoln' county, Kansas, where he resided with his family. He became insane some time before March 3, 1897, and wandered away from his home. Soon afterward he appeared at the governor’s office in Topeka, armed with two revolvers, and demanded of that official the redress of some imaginary wrong. He was arrested and tried for insanity in the probate court of Shawnee county, adjudged a lunatic, and committed to the state asylum for the insane, where he remained continuously until August 18, 1904, when he was discharged as restored to his right mind.
A duly certified copy of the inquisition proceedings whereby he was committed to the asylum was filed in the probate court of Lincoln county, and application was made there for the appointment of a guardian for Healy’s person and estate, and the court appointed John F. Linker as such guardian April 19, 1897. Linker took immediate possession of the estate, returned an inventory thereof, sold personal property under orders of the court, paid the debts and generally managed the estate as guardian, and made reports to the court. The real estate had been mortgaged by Healy and his wife in 1891 — the land mortgaged consisting of 160 acres, the north half of which was owned by the wife. She died leaving five children and her husband as her heirs. Afterward, and on March 13, 1897, one Fitzpatrick, the then owner of the mortgage, began a suit of foreclosure in Lincoln county. Service of summons upon Linker as guardian was the only service or notice given to Healy. All the other interested parties were duly and properly served with summons.
On August 27, 1897, more than four months after the appointment of Linker, the probate court of Shawnee county, Kansas, appointed one Strauss', of that county, guardian of the estate of Healy. Strauss qualified as guardian, but did nothing whatever under his appointment except make a final report when he was discharged after the restoration of Healy to sanity.
In the foreclosure suit the land was duly sold to the plaintiff, Fitzpatrick. The sale was confirmed and a' sheriff’s deed executed. Fitzpatrick retained possession of the land until January 18, 1900, when he sold it to the plaintiff in error, who bought in good faith and for full value.
Healy claims the right to redeem upon the ground that the probate court of Shawnee county, where he was adjudged to be insane, had the exclusive power under the statute to appoint a guardian, and therefore the appointment of Linker in Lincoln county and the service of summons upon him were void and the court did not acquire jurisdiction of Healy in the foreclosure suit. This presents the principal question in the case, and the only one if the appointment of Linker was valid.
The sections of the statute bearing most directly upon this question are sections 3941 and 3945 of the General Statutes of 1901, which so far as applicable read:
“Sec. 3941. If information in writing is given to the probate court that any one in its county is an idiot, lunatic, or person of unsound mind, or an habitual drunkard and incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury.”
“Sec. 3945. . . . Upon the return of the verdict the same shall be recorded at large by the probate judge, and if it appear that the person is insane, and is a fit person to be sent to the insane asylum, the court shall enter an order that the insane person be committed to the state insane asylum.....And if it be found by the jury that the subject of the inquiry is of unsound mind, or an habitual drunkard and incapable of managing his or her affairs, the court shall appoint a guardian of the person and éstate of such person.”
It is claimed that the words “the court,” used near the close of the section last quoted, refer exclusively to the court in which the inquisition was held, and. that this language is clear, specific, and conclusive. In support of this contention sections 3948, 3977 and 3978 of the General Statutes of 1901 are cited, which read:
“Sec. 3948. The court may, if just cause appears at any time during the term at which an. inquisition is had, set the same aside and cause a new jury to be impaneled to inquire into the fact.”
“Sec. 3977. If any person shall allege, in writing, verified by oath or affirmation, that any person declared to be of unsound mind . . . has been restored to his right mind, .• . . the court by which the proceedings were had shall cause the facts to be inquired into, either by a jury or without a jury, as may seem proper to the court.
“Sec. 3978. If it shall be found that such person has been restored to his right mind ... he shall be discharged from care and custody, and the guardian shall immediately settle his accounts, and restore to such person all things remaining in his hands belonging or appertaining to him.”
It is urged that the probate court of Lincoln county could not appoint a guardian for the person of Healy without having personal jurisdiction of him, which it did not have, as he was then in an asylum outside of that county and received no notice of the application for the appointment. On the other hand, it is insisted by the plaintiff in error that section 3941 of the statutes was enacted to provide for a special purpose, and should not be permitted to interfere with the operation of other sections of that chapter according to their apparent design; and that this section was intended to give jurisdiction over insane persons in counties where they do not reside, but are merely found, so that the public might thereby be protected from the danger and annoyance of such persons. In other words, it was intended to meet the very contingency shown by the facts of this case.
In the organization of oúr courts it seems to have been intended that all proceedings relating to real estate and the settlement of estates should take place where the subject-matter of such proceedings are located. This purpose is indicated by the various statutes to such an extent that it may be regarded as the settled policy of the state. Statutes relating to these subjects should therefore be construed so as to harmonize with this policy, where a contrary purpose is not clearly expressed.' In discussing the question whether or not a guardian for minor children should be appointed where the minors reside, Mr. Justice Atkinson, in the case of Connell v. Moore, 70 Kan. 88, 78 Pac. 164, said:
“It is the policy of the law to give to the individual a near-by and convenient court. Save in exceptional cases, hardships have not been visited upon the citizen by requiring him, at the expense of time and means, to respond over long distances to the process of the courts. The jurisdiction of tribunals having judicial powers has wisely been limited in that particular. In pursuance of this policy of the law there has been established by the legislature a probate court in each county of the state. The undoubted purpose of the legislature in so doing was to give the inhabitants of each county a near-by and convenient tribunal having jurisdiction of probate matters. It will hardly be urged that an exception to these favors- in the law was intended by the legislature to be made against the resident minors. ...
“The mere fact, that the legislature failed to designate specifically, in the act relating to guardians and wards, what probate court should acquire jurisdiction of the persons and estates of minors will not be presumed to have been intended to operate against the minor; nor should it be construed to his disadvantage, if equally susceptible of two constructions. If, as in the case at bar, the county adjoining that of the minor’s domicile had jurisdiction of the person and estate of the minor, as was sought to be exercised by the probate court of Elk county, then any county in the state, no matter how remote, especially where, there chanced to be property belonging, to his estate, would have, or could acquire, jurisdiction. This might not only result in much inconvenience, and be also used to the minor’s disadvantage in administering the affairs of the estate, but the distance would necessitate added and unnecessary expense.” (Pages 94, 95.)
In that case, there being no place designated by statute, the court, in harmony with this general policy of the law, held that jurisdiction belonged to the county where the minors resided.
In this case, however, there is more difficulty, as the language of sections 3941 and 3945, when construed together, furnish softie reason for the contention of the defendant in error that the words “the court,” as used in the last clause of section 3945, refer to the court holding the inquisition. We appreciate this difficulty, but think it more apparent than real. We feel satisfied in holding that section 3941 is in the nature of a police regulation, intended to protect the people of every county from the annoyance and danger incident to the presence of strange, homeless lunatics wandering about without restraint. With this disposition of that section, the whole act is in harmony with the general policy of the state, and the rule announced in the case of Connell v. Moore, 70 Kan. 88, 78 Pac. 164, applies to its provisions and fixes the jurisdiction of the person and estate of Healy in the probate court of Lincoln county. This preserves the general symmetry of the statutes as a whole, and eliminates many difficulties and incongruities which would otherwise result.
This very case illustrates some of the mischievous consequences which might result under a different rule. Healy was found to be insane, a resident of Lincoln county, and without an estate in Shawnee county. No necessity appearing for the appointment of a guardian, none was appointed until several months after the appointment of Linker in Lincoln county. Why the appointment was made in Shawnee county does not appear. This guardian took no steps to find or administer upon the Lincoln county estate of his ward, or to do anything whatever as such guardian.
Healy left his family, a farm and personal property in Lincoln county. He might have wandered into a county where the court could not have ascertained even the place of his residence. In such a case the guardian would not have known where to look for the property or family, and the family would not have known where to apply for the service of a guardian. Many difficulties might be suggested which would make such a rule very inconvenient and objectionable. It may be said that these considerations belong to the legislature rather than to the court, and this would be true if the legislature had spoken in unmistakable terms upon this subject,-but, as it has not done so, courts in choosing between interpretations of the statute may well consider such matters in determining the legislative intent. We conclude that Healy had a permanent residence, a home, family, and estate, real and personal, in Lincoln county. Becoming insane there, he could not change his residence.
The probate court of Shawnee county had juris diction of the person of Healy for the purpose of determining the question of his sanity only. Its adjudication of this question was final and conclusive everywhere and upon all persons. Under these circumstances the probate court of Lincoln county had jurisdiction to appoint a guardian to take possession of the estate, real and personal, belonging to such lunatic, and to represent his interests therein. Service upon such guardian, in any suit or proceeding in which the estate of such lunatic was involved, is binding upon such lunatic.
SYLLABUS BY THE COURT.
1. Insane Persons — Jurisdiction of Probate Court. Except as limited by the statutes, probate courts in this state have the same power over the person and estate of lunatics that was formerly possessed by courts of chancery under the common law.
2. -Appointment of a Guardian — Notice. In the absence of a statutory requirement no notice is necessary to confer authority upon a probate court to appoint a guardian for a lunatic who has been duly ,adjudged to be a person of unsound mind.
The fact of lunacy gives jurisdiction to the probate court where the lunatic resides and has an estate to appoint a guardian to represent the interests of such lunatic, but this jurisdictional fact of lunacy need not necessarily be first adjudicated by such court. It will be sufficient to accept and act upon any valid adjudication thereof.
The district court had jurisdiction of Healy in the foreclosure proceedings, and he is bound thereby. This conclusion makes it unnecessary to consider the other questions presented.
The judgment of the district court is reversed, with direction to .enter judgment for the defendant, Timothy Foran, for costs. .
All the Justices concurring. | [
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Per Curiam:
This is an appeal from a conviction under a city ordinance the validity of which is assailed under the rule announced in In re Van Tuyl, 71 Kan. 659, 81 Pac. 181. The city has filed- no brief, from which fact we assume that it is admitted that the ordinance is void under that decision. The judgment appealed from is therefore reversed. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmen s compensation case, and the city of Emporia has appealed from the allowance of an award.
Briefly, the material facts are:
The claimant was a regular employee of the street department of the city. This department did not operate under the provisions of the workmen’s compensation act. The water department of the city was under the act. From time to time the water department received shipments of lime by railroad for use in its filter plant. The water department owned only a flat-bed truck and it had been customary for street department employees to haul the lime from the railroad cars to the filter plant of the water department in trucks owned by the street department.
On the date in question claimant was directed by the foreman of the street department to haul lime for the water department from the railroad siding to the filter plant. In performing this work he met with accidental injury while lifting on a heavy conveyor. At the time in question he was working with two employees of the water department but was not being “directed” by them or by the foreman of the water department.
Both the commissioner and district court found that claimant’s accidental injury arose out of and in the course of his employment with the water department when he was performing the work of that department, and that the relationship of employer and workman existed at the time of the accident inasmuch as he was a “loaned” employee.
No contention is made as to the amount of the award, and the only question is whether claimant is entitled to an award at all— that is, was he covered by the act at the time of his accidental injury?
In the main, it may be said the city’s contentions are that claimant’s accidental injury did not arise out of and in the course of his employment with the water department for the reason that such department was neither a general nor a special employer of claimant at the time of the injury, that such department was not a principal as defined by G. S. 1949, 44-503, and that the street department was not a contractor or subcontractor as contemplated by that section of the act so as to render the city liable.
In our opinion the facts of this case and the question presented do not call for an extended discussion of the authorities bearing on the matter. In Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494, it was said that in order to determine the actual relation of the parties under any employment courts do not regard a single fact as conclusive but will look to all of the facts and circumstances of the particular case, and that the first test to be applied is the determination of whose work was being performed at the time of the injury. It was further said that the real test whether one becomes a special employer is whether he has the right to control and direct the particular activity as a consequence of which the injury occurred, and not merely whether he exercised the power of direction.
In the case before us it is clear that at the time of the accidental injury claimant was performing work for the water department and that he was subject to the control and direction of that department even though, as a practical matter, such right to control and direct was not actually exercised.
In addition to what was said and held in the Bright case, above, we call attention to the following cases as having a bearing on various contentions made by the city: McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471; Swift v. Kelso Feed Co., 161 Kan. 383, 386, 168 P. 2d 512; Lessley v. Kansas Power & Light Co., 171 Kan: 197, 231 P. 2d 239, and Coble v. Williams, 177 Kan. 743, 282 P. 2d 425.
We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover on an account for goods sold and delivered under contract for use in an oil and gas lease drilling operation in Oklahoma.
At the outset, we are confronted with appellee’s motion to dismiss this appeal. The journal entry of judgment, which was approved by counsel for appellant, recites that, among other things, the action was tried to the district court on May 29, 1957, and taken under advisement until July 19, 1957, when judgment was rendered in favor of appellee. On July 26, 1957, more than three days after judgment was rendered, appellant filed a motion for a new trial, which was overruled on -September 11, 1957. On November 7, 1957, more than two months after judgment was rendered, but less than two months after the motion for a new trial was overruled, the appellant perfected this appeal, and assigned six specifications of error.
The appellee asserts that, both in its motion to dismiss the appeal and in its brief on the merits, all of the specifications of error assigned by appellant are trial errors and that since the motion for a new trial was not filed until July 26, 1957, more than three days after judgment was rendered on July 19, 1957, it was a nullity and nothing is presented for appellate review, and cites and relies upon Myers v. Kansas Stone Products Co., 174 Kan. 111, 254 P. 2d 270, and cases cited therein; also its companion case, Smith v. Kansas Stone Products Co., 174 Kan. 108, 254 P. 2d 272.
There is merit in the appellee’s contention. Without setting out appellant’s specifications of error in their entirety, suffice it to.say we have carefully examined each of them and conclude they are all trial errors for which redress could be obtained only by filing a timely motion for a new trial pursuant to G. S. 1949, 60-3003. Consequently, the motion having been filed out of time, the appeal from the order overruling it presents nothing for appellate review. In Myers v. Kansas Stone Products Co., 174 Kan. 111, 254 P. 2d 270, this court said:
“This court has long adhered to the rule that in the absence of a motion for a new trial mere trial errors are not open to appellate review. (See Billups v. American Surety Co., 173 Kan. 646, 251 P. 2d 237; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553; Rasmussen v. Tretbar, 170 Kan. 184, 224 P. 2d 1010; Erskine v. Dykes, 158 Kan. 788, 150 P. 2d 322, and numerous other authorities cited in West’s Kansas Digest, Appeal & Error, § 281; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 366). It is also committed to the rule that a motion for a new trial, such as is here involved, filed out of time is a nullity and of no avail to the defeated party. For decisions squarely in point see Bennett Grain Co. v. Davis, Director-general, 114 Kan 800, 220 Pac. 1031; Oliver Farm Equipment Co. v. Foster, 134 Kan. 654, 8 P. 2d 364; Balandran v. Compton, 141 Kan. 321, 41 P. 2d 720; City of Leavenworth v. Pennington, 146 Kan. 459, 72 P. 2d 78; Gates v. Gates, 160 Kan. 428, 437, 163 P. 2d 395. Other decisions dealing generally with the subject and to the same effect may be found in West’s Kansas Digest, New Trial, § 119, and Hatcher’s Kansas Digest [Rev. Ed.], New Trial, § 47.
“Based on the foregoing authorities we have little difficulty in concluding that appellant’s failure to file its motion for a new trial within the time prescribed by statute (60-3003, supra) warranted the trial court in overruling the motion for a new trial and that the question it now seeks to have determined in this court is not open to appellate review. It necessarily follows the order overruling the motion for new trial must be affirmed.” (1. c. 113, 114.)
On the hearing of the motion for a new trial no evidence was presented which indicated, or tended to indicate, unavoidable casualty or misfortune preventing appellant from filing the motion for new trial in time. In view of the foregoing, it follows that appellee’s motion to dismiss this appeal must be sustained.
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order denying a motion by the Forestry, Fish and Game Commission to dismiss and abandon condemnation proceedings as to certain lands. Appellees are the landowners involved, and they join appellant commission in seeking reversal of the trial court’s order.
The background of the matter under consideration is found in State v. Boicourt Hunting Ass’n, 177 Kan. 637, 282 P. 2d 395, and Ottawa Hunting Ass’n v. State, 178 Kan. 460, 289 P. 2d 754, (cert. denied 352 U. S. 804, 1 L. ed 2d 38, 77 S. Ct. 31) and need not be repeated here.
Pending the final determination of the litigation in the two mentioned cases, further proceedings with respect to the five tracts of land here involved were held in abeyance. On April 1, 1957, the district court entered an order directing the appraisers, theretofore appointed, to conclude their appraisement and to file their report within thirty days.
On April 20, 1957, the commission adopted a “Resolution of Partial Dismissal” in which it was resolved to dismiss and abandon without prejudice the condemnation proceeding theretofore instituted with respect to the five tracts here involved.
On May 2, 1957, the commission, through the attorney general, filed a “Motion for Partial Dismissal and Abandonment of Condemnation Proceedings Without Prejudice.” This motion related to the tracts as to which on April 20th the commission had resolved to dismiss and abandon.
At the time of oral argument on this motion counsel for the owners of the five tracts involved consented to the motion for dismissal and abandonment and joined in the request that it be granted. The court took the matter under advisement, and on June 6, 1957, entered an order denying the requested dismissal and abandonment. At the time of its ruling the court filed a written memorandum in the nature of “findings of fact and conclusions of law” setting forth its reasons for denying the motion. As will later appear, however, it is unnecessary to discuss in detail the basis of the ruling.
As we view the matter before us, the question presented is very simple and is governed by statute and a prior decision of this court.
G. S. 1949, 32-213, confers upon the commission the same rights of eminent domain as are conferred by law upon cities in the acquisition of land or water for waterworks. In State v. Nelson, 126 Kan. 1, 266 Pac. 107, this statute was interpreted as meaning that the procedure for acquiring property by condemnation is found in what now appears as G. S. 1949, 26-201 to 26-210. G. S. 1949, 26-206, provides that the governing body of a city may, by resolution adopted within ten days after the filing of the report of appraisers, abandon the condemnation of any lot or tract of land.
In the Nelson case the Forestry, Fish and Game Commission had sought condemnation of certain property. The appraisers made their appraisement and assessment of damages and .filed in court their written report. Within ten days thereafter the attorney for the commission filed in court a notice that the commission deemed the appraisement excessive and for that reason sought abandonment and dismissal of the condemnation proceeding. It was conceded that no resolution for abandonment and dismissal had been adopted by the commission. In holding there had been no abandonment by the commission, this court said:
“. . . Outside of an agreement between the parties to abandon the condemnation proceedings — and it is not contended there was any such agreement in this case — the only way the forestry, fish and game commission could abandon the condemnation proceedings was by the method provided by the statute, and that is by resolution adopted by the commission within ten days after the filing of the report of the appraisers.” (p. 5.)
In the case before us the appraisers had not appraised the property and, of course, no report had been filed. The commission’s action of April 20th was by resolution. Under the above-mentioned statute it could have, by a resolution adopted within ten days after the appraisers’ report, abandoned the condemnation as to the tracts involved. Of a certainty, therefore, it possessed such power and authority prior to the filing of such report, and that is precisely what it did.
In passing, it is noted that the trial court gave as one of its reasons for denying the motion to dismiss and abandon, the fact that the resolution of the commission was not by a unanimous vote. The resolution was adopted by a four to two vote.
G. S. 1949, 74-3301, creating the Forestry, Fish and Game Commission, provides that it shall be composed of six members and that four members thereof shall constitute a quorum for the trans action of business. Here, however, all six members of the commission participated in the resolution. G. S. 1949, 77-201, Fourth, provides that:
“Words giving a joint authority to three or more public officers or other persons shall he construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.”
The resolution in question, having been adopted by a majority of the entire commission, clearly was valid and binding. The status of the condemnation proceeding being what it was, the commission was within its rights and had authority at that stage of the proceeding to dismiss and abandon as to the tracts in question. In view of our conclusion, other contentions as to why the ruling of the trial court was erroneous require no discussion.
The judgment is therefore reversed with directions to sustain the motion to dismiss and abandon as to the tracts in question. | [
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The opinion of the court was delivered by
Price, J.:
This is an action by a property owner to recover damages from defendant city alleged to have resulted from a change of grade of a street in front of his property.
Plaintiff appeals from an order sustaining in part defendant’s motion to strike certain allegations of the petition and to make other portions thereof definite and certain.
Plaintiff frankly concedes that the ruling in question ordinarily would not be an appealable order (Parrack v. Wittman, 180 Kan. 193, 302 P. 2d 1005; Nausley v. Nausley, 181 Kan. 543, 545, 313 P. 2d 302), but contends that in this instance the trial court abused its discretion, and that in effect the order is a final order which affects plaintiff’s substantial rights and in reality determines the action.
We are unable to agree with this contention and feel compelled to dismiss the appeal.
In view of this disposition of the case we consider it unnecessary to set out the allegations of the petition and the portions thereof attacked by defendant’s motion. The most that may be said for the petition is that it contains numerous conclusions unsupported by allegations of facts, and it is very difficult, if not impossible, to determine precisely upon what specific theory plaintiff is proceeding. The petition is unlike that in the recent case of Bob May Chevrolet Co., Inc., v. City of Hugoton, 181 Kan. 546, 313 P. 2d 259.
In no sense of the word may it be said the ruling here involved is a final order within the meaning of G. S. 1949, 60-3303. The effect of it merely is to require plaintiff to proceed upon a definite theory and to allege the facts upon which he relies for recovery.
He was granted thirty days in which to file an amended petition, but, instead of amending, perfected this appeal.
We have examined all contentions but are forced to the conclusion that, standing alone, the trial court’s ruling is not an appealable order and that the appeal must be dismissed.
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Knudson, J.:
Edward C. Johnson has been committed to the Lamed State Security Hospital as a sexually violent predator under the Sexually Violent Predator Act (Act), K.S.A. 59-29a01 et seq. In this appeal from the commitment order, Johnson challenges the district court’s findings and conclusions that (1) res judicata or collateral estoppel does not apply; (2) there was no violation of the 60-day trial requirement imposed under K.S.A. 2000 Supp. 59-29a06; (3) a conviction of a sexually violent offense based upon a no contest plea may be used by the State to establish the defendant is a sexually violent predator under K.S.A. 2000 Supp. 59-29a02(a); and (4) the defendant’s convictions were properly admitted as evidence at trial. After initial briefing, at this court’s request, the parties filed supplemental briefs addressing whether the 2003 amendments to K.S.A. 59-29a06 could be applied retroactively.
We affirm after concluding the district court did not err in its findings and conclusions. Consequently, the issue of retroactive application of 2003 amendments to K.S.A. 59-29a06 is moot.
Factual And Procedural Overview
In March 2000, Johnson was the subject of a clinical services report requested by the Department of Corrections (DOC). At the time, Johnson was incarcerated after pleading no contest to sexual exploitation of a child and possession of child pornography. The purpose of the report was to plan for Johnson’s release from the DOC and to recommend whether Johnson should be identified as a potential risk under the Act. The report concluded Johnson scored very high on a psychological test assessing risk of future violence. The report’s preparers recommended Johnson be required to complete an approved sex offender treatment program in a structured, secure environment.
Shortly thereafter, the State initiated a commitment proceeding against Johnson under the Act in Sedgwick County; this case was docketed as Case No. 00 P 650. In December 2000, the district court dismissed the action for lack of subject matter jurisdiction based on the decision of In re Care & Treatment of Goracke, 27 Kan. App. 2d 837, 9 P.3d 595 (2000). The district court found a probable cause hearing was held in the case on June 15, 2000, but no continuances had been granted and no trial had been held within the 60-day period required in K.S.A. 2000 Supp. 59-29a06. This was the sole basis for the dismissal. The State apparently did not appeal from this dismissal. Johnson was thereafter released from custody.
On December 28, 2000, the DOC filed a report that Johnson violated his postrelease supervision conditions by being discharged from a halfway house program. It noted Johnson was discharged after being fired from his employment for making inappropriate comments to a female coworker and for propositioning several male members of the halfway house’s kitchen staff. Because of these violations, Johnson’s postrelease supervision was revoked, and he was returned to a DOC facility. This revocation occurred less than a month after the dismissal of the sexual predator action and his resulting release from custody.
Johnson was scheduled to be re-released from the DOC on April 3, 2001. In February 2001, Johnson underwent another predis charge psychological assessment. The clinical services report referred to the report generated prior to Johnson’s release in 2000, but it also included information from events occurring after the 2000 report. The additional information included incidents which allegedly occurred during Johnson’s 2000 sexually violent predator evaluation at Larned and his alleged actions while on postrelease supervision. Again, Johnson was determined to be a high risk to reoffend in a sexual manner.
Before Johnson’s re-release, the State filed a second sexually violent predator petition in Sedgwick County District Court, which was docketed as Case No. Ol-P-266. The petition alleged Johnson was confined at the Hutchinson Correction Facility and that the DOC had certified he might be a sexually violent predator based on this 1996 conviction for sexual exploitation of a child. The State requested Johnson be determined to be a sexually violent predator.
The district court scheduled a probable cause hearing for March 15, 2001, and appointed Johnson counsel. Following that hearing, the district court concluded there was probable cause to conclude Johnson was a sexually violent predator and ordered he be sent to Lamed for an evaluation. Juiy trial was scheduled for May 14, 2001. On May 11,2001, Johnson filed a motion for an independent evaluation and a motion to dismiss. Johnson referred to the first sexually violent predator action brought against him in 2000 and asserted the State was barred from bringing the present case due to collateral estoppel, res judicata, the statute of limitations, and lack of jurisdiction. Johnson also argued that his no contest plea to the charges for which he was incarcerated could not be used as a basis for a sexually violent predator action. Both motions were considered by the district court on May 14, 2001. The court denied Johnson’s motion to dismiss but granted his motion for an independent evaluation. Over Johnson’s objection the court then continued the trial for good cause shown until June 18, 2001.
At juiy trial, Robert Huerter, a licensed clinical psychotherapist from Lamed, testified. Huerter testified that Johnson was a psychopath—he had no social or moral compass and could engage in illegal activity without any sense of remorse. According to Huerter, Johnson scored high on the Rapid Risk Assessment for Sex Offense Recidivism. Huerter diagnosed Johnson with hebephilia, pedophilia, a bipolar II disorder, and antisocial personality disorder with narcissistic traits. Huerter testified that Johnson was likely to commit further acts of sexual violence or predatory acts.
The State also presented the testimony of Dr. J.L. Fernando, a staff psychiatrist at Lamed. Fernando’s testimony was similar to Huerter s and confirmed the diagnoses listed by Huerter. Fernando also agreed that Johnson met the criteria of a sexually violent predator.
Johnson called Robert Barnett, a clinical psychologist, as a witness. Barnett saw Johnson on several occasions dating back to the time his underlying criminal case was pending. He gave Johnson several psychological tests, although none of these tests measured factors which would indicate whether Johnson was a sexual predator. Barnett confirmed that Johnson suffered from a bipolar disorder of a hypomanic nature, which meant he was manic most of the time but never reached a peak where he was absolutely out of control. Such a disorder can be readily treated by medication. With medication and counseling, Johnson’s prognosis would be fair to good. Barnett opined that Johnson was not a pedophile and did not think he qualified under the statute as a sexually violent predator.
Johnson also testified on his own behalf. He testified about his earlier Minnesota conviction involving allegations involving a 15-year-old girl Johnson worked with at a carnival. As a result of these allegations, Johnson pled guilty to a gross misdemeanor charge and a felony charge was dropped.
Johnson also testified about his 1996 Sedgwick County conviction. He indicated he was feeling well so he stopped taking his bipolar medication. He began surfing the internet for pornography and downloaded several files of what he thought involved adult pornography. When he opened some of the files, however, he found pictures including young children. Someone saw one of these pictures on his computer and reported him. His house was searched, and his computer was seized. About one-fourth of the 40 photos found on Johnson’s computer had children estimated to be under the age of 16. Johnson asserted he was only looking for adult pornography.
Johnson testified he did not want to return to any prison-type setting and Usted a number of things he thought would help him stay out of trouble. On cross-examination, Johnson admitted having a disciplinary report while in prison for possessing pornography. This charge was based, in part, on pictures Johnson had of young children in various stages of dress. He also admitted self-reporting a relationship he had with a 14-year-old male when Johnson was in his mid to late 20’s. He essentially denied or downplayed the alleged incidents that lead to the revocation of his parole.
After hearing this evidence, the jury returned a verdict finding Johnson was a sexually violent predator. Consequently, the court ordered Johnson be committed to the custody of the Secretary of Social and Rehabilitation Services (SRS) for control, care, and treatment.
Johnson filed a timely motion for judgment of acquittal and motion for new trial. The district court treated the motion for judgment of acquittal as a motion for judgment notwithstanding the verdict; it then denied both posttrial motions.
Applicability of Res Judicata or Collateral Estoppel
Johnson argues the district court erred in not dismissing the second sexually violent predator action brought against him under the doctrines of res judicata or collateral estoppel. Whether the doctrine of res judicata or collateral estoppel applies is a question of law over which an appellate court has plenary review. Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 485, 988 P.2d 755 (1999).
“An issue is res judicata when four conditions concur: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and [4] identity in the quality of persons for or against whom claim is made. [Citation omitted.] The requirements of collateral estoppel are: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” Regency Park v. City of Topeka, 267 Kan. 465, 478, 981 P.2d 256 (1999).
K.S.A. 2003 Supp. 60-241(b)(l) pertains to the effect of an involuntaiy dismissal by the court and states:
“For failure of the plaintiff to prosecute or to comply with these sections or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under K.S.A. 60-219 and amendments thereto, operates as an adjudication upon the merits.” (Emphasis added.)
Based on the plain language of the statute, granting a defendant’s motion to dismiss for lack of jurisdiction does not constitute a judgment on the merits. Moreover, courts have repeatedly recognized that a dismissal for lack of subject matter jurisdiction generally is not a dismissal on the merits for claim preclusion purposes. Mitchell v. Chapman, 343 F.3d 811, 820 (6th Cir. 2003).
While granting a motion to dismiss for lack of subject matter jurisdiction is not a decision on the merits, however, it does have a res judicata effect on the question of jurisdiction. State Farm Mut. Auto Ins. Co. v. Dyer, 19 F.3d 514, 518 (10th Cir. 1994) (citing Baldwin v. Iowa State Traveling Men's Association, 283 U.S. 522, 75 L. Ed. 1244, 51 S. Ct. 517 [1931]); see Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023-24, 58 P.3d 1284 (2002) (a prior determination on the question of jurisdiction is conclusive as to that issue, whether it is jurisdiction of the subject matter or of the parties; if a court is competent to decide whether the facts confer jurisdiction and it decides that jurisdiction exists, its unreversed and unvacated judgment is binding and cannot be collaterally attacked).
Thus, we must consider whether the district court’s jurisdiction is based upon factual considerations that have arisen after the first commitment proceeding was dismissed. Under the Act, any agency, including SRS or the DOC, with custody of a person “serving a sentence or term of confinement” who may qualify as a sexually violent predator must give notice of that person’s impending release to local prosecutors. K.S.A. 2000 Supp. 59-29a03; K.S.A. 2000 Supp. 59-29a02(f). The prosecutor then has the option of filing a petition seeking that person’s commitment under the Act. K.S.A. 2000 Supp. 59-29a04. To qualify for a sexually violent predator action, the person must have “been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” (Emphasis added.) K.S.A. 2000 Supp. 59-29a02(a). Sexual exploitation of a child is explicitly included in the statutory definition of a “[s]exually violent offense.” K.S.A. 2000 Supp. 59-29a02(e).
The authority to initiate a sexually violent predator commitment proceeding is based on the imminent release of any person “serving a sentence or term of confinement.” K.S.A. 2000 Supp. 59-29a03; K.S.A. 2000 Supp. 59-29a02(f). At the time of the initiation of the second sexually violent predator action, Johnson was in custody of the DOC due to violations of his postrelease supervision conditions tied to his 1996 sexual exploitation conviction.
Under tire sentencing guidelines, any person convicted of a felony after July 1, 1993, must be sentenced to a determinate sentence based on the guidelines. K.S.A. 2003 Supp. 21-4704(d). In presumptive prison cases, the complete sentence includes the prison sentence, the maximum good time credit allowance and a period of postrelease supervision. K.S.A. 2003 Supp. 21-4704(e)(2). Postrelease supervision is mandatory and is a component of the underlying prison sentence. State v. Walker, 275 Kan. 46, 47, 60 P.3d 937 (2003).
By violating the terms of his postrelease supervision and being returned to prison, Johnson was again in the custody of the DOC “serving a sentence or term of confinement.” See K.S.A. 2000 Supp. 59-29a03; K.S.A. 2000 Supp. 59-29a02(f). Under the plain language of the Act, the State had the discretion to pursue a commitment action under the Act. The district court did not err in concluding this commitment proceeding was not barred under the doctrines of res judicata or collateral estoppel.
Was Johnsons Trial Commenced in a Timely Manner
Johnson contends the district court erred in ordering a continuance of trial from May 14, 2001, until June 18, 2001, without complying with the requirements of K.S.A. 2000 Supp. 59-29a06. He argues:
“The order continuing the trial date made no findings of fact to establish a showing of good cause as required by [59-29a06] for the continuance of the trial date, the court did not state in its order that the continuance was on the court’s own motion in the due administration of justice, or any finding that [Johnson] would not be substantially prejudiced, all as required by [59-29a06].”
K.S.A. 2000 Supp. 59-29a06 states, in material part:
“Within 60 days after the completion of [a probable cause hearing], the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.”
In In re Care & Treatment of Brown, 26 Kan. App. 2d 117, Syl. ¶ 3, 978 P.2d 300 (1999), we held that the 60-day requirement specified in K.S.A. 1995 Supp. 59-29a06 is mandatory and jurisdictional. In the opinion, the court explained:
“The language of K.S.A. 1995 Supp. 59-29a06 is clear. The use of the term ‘shall’ indicates the legislature mandated that the commitment trial be held within 60 days after the probable cause hearing. The inclusion of the language ‘[t]he trial may be continued’ does not render the term ‘shall’ discretionary. Additionally, continuance is conditional. A continuance (1) must be considered upon a motion; (2) must be granted for the purpose of due administration; and (3) cannot substantially prejudice the defendant. Neither the court nor the parties in this case filed a motion for continuance of trial. We hold that the 60-day requirement specified in K.S.A. 1995 Supp. 59-29a06 is mandatory and jurisdictional.” 26 Kan. App. 2d at 120.
In our opinion, Johnson’s argument is formalistic and disregards the facts of the case. Having granted Johnson’s untimely request for an independent medical evaluation, the district court had no alternative but to order a continuance of trial to facilitate that request. We can think of few circumstances that would better support a continuance in the due administration of justice and not substantially prejudice the defendant. We hold Johnson’s jurisdiction claim to be without legal merit.
Conviction Based Upon No Contest Plea
Johnson argues he cannot be shown to be a sexually violent predator because his 1996 Sedgwick County conviction for sexual exploitation of a child was based on a no contest plea. This argument is without legal merit. K.S.A. 2000 Supp. 59-29a02(a) explicitly provides that a sexually violent predator is any person convicted of or charged with a sexually violent offense, and sexual exploitation of a child is a predicate crime under K.S.A. 2000 Supp. 59-29a02(e). Thus, the fact Johnson’s conviction was based upon a no contest plea would not affect admissibility of the conviction. Cf. State v. Shaffer, 14 Kan. App. 2d 282, 284-85, 788 P.2d 1341, rev. denied 246 Kan. 770 (1990) (conviction based on no contest plea is prior conviction under habitual violator statutes).
Evidentiary Rulings
The admission of evidence lies within the sound discretion of the court. Moore v. Associated Material & Supply Co., 263 Kan. 226, 244, 948 P.2d 652 (1997). An abuse of discretion must be shown by the party attacking the evidentiary ruling and exists only when no reasonable person would take the view adopted by the district court. Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000).
Johnson seemingly attempts to supplement his previous argument by raising as an evidentiary issue whether the State should have been allowed to introduce testimony regarding his prior conviction for sexual exploitation of a child. This argument is only raised incidentally, and we are not provided with citations to the record or supportive legal authorities. Consequently, we need not consider this additional argument. See Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551 (2000); Campbell v. City of Leavenworth, 28 Kan. App. 2d 120, 126, 13 P.3d 917 (2000), rev. denied 270 Kan. 897 (2001).
Moreover, Johnson failed to object to evidence of his conviction during the trial. When Robert Huerter testified that he discussed with Johnson his conviction and the subsequent revocation of post-release revocation, there was no objection to the admissibility of the evidence. The only time Johnson objected was after the fact, when the State at the conclusion of its case asked the district court to take judicial notice of the journal entry and criminal complaint in the underlying criminal case. A party cannot raise an issue on appeal where no contemporary objection was made and where the district court did not have an opportunity to rule. State v. Whitesell, 270 Kan. 259, 283-84, 13 P.3d 887 (2000).
Johnson also contends the district court erred in admitting evidence regarding a prior Minnesota conviction without foundation testimony establishing the conviction is a sexually violent offense under K.S.A. 2000 Supp. 59-29a02. Johnson did object initially to attempts to bring in the Minnesota conviction. However, when the State cross-examined a defense witness about this conviction, no objection was lodged. Thus, it is not clear this issue has been properly preserved for appeal. However, Johnson has misconstrued the State’s use of the Minnesota conviction. The State did not claim the Minnesota conviction was a “sexually violent offense” which was a predicate for a sexually violent predator conviction. Instead, the State presented the evidence, claiming it was relevant to the jury in determining whether Johnson posed a risk of future dangerousness. In order for evidence to be relevant, it must have some tendency in reason to prove a material fact; to establish relevancy, there must be some material or logical connection between the asserted facts and the inference or result that is sought. State v. Meinert, 31 Kan. App. 2d 492, 496, 67 P.3d 850, rev. denied 276 Kan. 972 (2003). We conclude the evidence was relevant and admissible for the purpose offered, and the district court did not err.
Application of2003 Legislative Amendments
We will not address this issue rendered moot as a result of our holdings on the issues raised by the parties. See In re T.D., 27 Kan. App. 2d 331, 333, 3 P.3d 590, rev. denied 269 Kan. 933 (2000).
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Knudson, J.:
This appeal follows the district court’s grant of summary judgment to Katrina Hershaw (plaintiff), against her automobile insurance company, Farm & City Insurance Company (defendant). The district court concluded that as a matter of law coverage was provided to the plaintiff and her claim was denied without just cause or excuse. The plaintiff was granted a judgment of $1,383.31 for damages to her automobile and an additional $30,000 for attorney fees. On appeal, the defendant contends the district court erred as coverage had lapsed before the underlying automobile accident had occurred. The defendant also contends the district court erred in refusing to join the potential tort claimant as an additional party, dismissing its counterclaim for attorney fees, and granting the plaintiff s claim for attorney fees.
We conclude the district court did not err in refusing to join the potential tort claimant as an additional party or in denying the defendant’s request for attorney fees; however, we also conclude summary judgment was improvidently granted. Thus, we affirm in part, reverse in part, and remand for further proceedings.
Factual and Procedural Overview
Both plaintiff and defendant filed motions for summary judgment. The following circumstances are disclosed from pleadings and memoranda filed under Supreme Court Rule 141 (2003 Kan. Ct. R. Annot. 191). In early September 2001, the plaintiff telephoned American Insurance Agency (American Insurance), an independent insurance agency, and spoke with one of its agents, Dick Hadley, concerning quotes on automobile insurance for a 1995 Saturn SL that she was considering buying. The plaintiff claims she told Hadley she had one ticket for driving on the wrong side of the road in May 1999. The plaintiff claimed she only had to give her driving history for the previous 2 or 3 years, based on her previous experiences buying insurance.
On September 10,2001, the plaintiff purchased the 1995 Saturn SL. Also on September 10, 2001, she met with Hadley. Hadley determined the least expensive insurance would be the defendant’s. The plaintiff signed the application for insurance and gave Hadley a check for the premium of $260.
While at American Insurance, the plaintiff received an insurance identification card that showed coverage provided by the defendant with the policy number BIN12305 and an effective date of September 10, 2001, and an expiration date of December 10, 2001. The plaintiff used the insurance identification card given to her by Hadley, as well as a vehicle listing sheet that showed Twin Lakes National Bank (Twin Lakes) as a recognized lienholder on the insurance policy, to obtain a loan from Twin Lakes to buy the Saturn. She also signed an “Agreement to Provide Accidental Physical Damage Insurance,” which required her to maintain insurance on the Saturn.
After receiving the application, the defendant issued a written binder of coverage effective at 12:01 a.m. on September 10, 2001, and expiring on October 7, 2001, at 12:01 a.m. The binder number was 582963A. The back side of the binder stated:
“The Company accepting this risk acknowledges itself bound by the terms, conditions and limitations of the policy (or policies) of insurance in current use by the Company in this state for the land (or lands) of insurance specifically ordered on the other side of this Binder from the effective date and hour specified therein and the named insured accepts this Binder under such terms, conditions and limitations. Unless previously cancelled, this Binder shall terminate at 12:01 A.M. on the day indicated on reverse side. Acceptance by the named insured of a policy (or policies) as ordered in place hereof shall render this Binder null and void. A premium charge at the rates and in compliance with the rules of the Manual of Rates in use by the Company when this Binder becomes effective will be made for the time this Binder is in effect if no policy of insurance in place hereof is issued and accepted by the named insured.”
The binder was sent to American Insurance. The binder contained a statement that the premium quotation would be forwarded after the plaintiff s driving record was verified. After the defendant finished its underwriting procedures, on or about September 28, 2001, it sent a quotation to American Insurance indicating plaintiff owed an additional $22.10 for her premium and stating that this was due before expiration of the binder. American Insurance unilaterally extended coverage afforded through tire binder until December 2, 2001, at 12:01 a.m. Quotations sent by the defendant contain the same language on their backs as do the binders. Additionally, the quotation contained a request by the defendant to forward the quotation to the plaintiff. Hadley claims he sent the plaintiff the quotation, but plaintiff denies ever receiving it or any cancellation notice on her policy.
On December 2, 2001, at approximately 2:45 p.m., the plaintiff was involved in an accident while driving the insured automobile. She called American Insurance on December 3, 2001, and claims first learning of the additional premium due. The plaintiff then gave American Insurance a check for the additional premium of $22.10 that was rejected by the defendant. Accordingly, the defendant refused to pay the plaintiffs claim of $1,883.31 for damages to her automobile.
The plaintiff filed suit seeking damages, attorney fees, and indemnification from the defendant for any claim that might be asserted by the potential third-party claimant arising from the automobile accident. After the defendant filed a motion to join the potential tort claimant as a contingently necessary party, the plaintiff abandoned its claim for indemnification and the district court denied joinder. In its answer, the defendant made a claim for attorney fees, claiming the plaintiff committed a fraudulent insurance act by misrepresenting her driving record to American Insurance. Upon the plaintiff s motion, the district court dismissed the defendant’s claim for attorney fees. Both parties filed motions for summary judgment. The district court granted the plaintiff s motion and denied tire defendant’s motion. In a separate hearing, the court granted the plaintiff attorney fees and expenses of $30,000. The defendant filed a timely notice of appeal.
Defendant’s Claim for Attorney Fees
The defendant claims tire district court erred in dismissing its claim for attorney fees. The defendant’s claim is based on K..S.A. 40-2,118(c). The issue of whether a district court has authority to impose attorney fees under a particular statute is a question of law over which appellate review is plenary. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
K.S.A. 40-2,118 punishes fraudulent acts committed against insurers in obtaining insurance. K.S.A. 40-2,118(c) states: “In addition to any other penalty, a person who violates this statute shall be ordered to make restitution to the insurer . . . for any financial loss sustained as a result of such violation.” The defendant contends this is remedial legislation and “any financial loss sustained” should be construed to include recovery of reasonable attorney fees. See Squires v. City of Salina, 9 Kan. App. 2d 199, 202, 675 P.2d 926 (1984).
The defendant’s argument fails. In order to be entitled to restitution under K.S.A. 40-2,118(c), the defendant must prove the plaintiff committed a fraudulent insurance act. The district court specifically held: “[T]here was no fraud on the part of the plaintiff in the application for insurance.” The defendant has not appealed this finding. Therefore, whether K.S.A. 40-2,118(c) allows for attorney fees is a moot issue. As a general rule, an appellate court does not decide moot questions or render advisory opinions. However, an exception is recognized if tire question is one likely to arise frequently in the future unless settled by the appellate court. In re T.D., 27 Kan. App. 2d 331, 333, 3 P.3d 590, rev. denied 269 Kan. 933 (2000).
Ordinarily, a statute must specifically allow for “attorney fees” before such fees will be allowed. In Legislative Coordinating Council v. Stanley, 264 Kan. 690, 703, 957 P.2d 379 (1998), the court determined that the use of the term “costs” in a statute does not allow for an award of attorney fees absent express statutory authority. The court in Stanley specifically found that the use of the term “all costs” in K.S.A. 25-1452 does not include attorney fees. 264 Kan. at 703. Additionally, in Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 700, 366 P.2d 219 (1961), the court stated: “Ordinarily the term ‘costs’ and ‘expenses’ as used in a statute are not understood to include attorney fees.” Finally, the legislature has had no difficulty in expressly providing for the recovery of attorney fees, including remedial legislation, when recovery is intended. See K.S.A. 8-2416; K.S.A. 16-1207; K.S.A. 16a-2-507; K.S.A. 2003 Supp. 17-1902; K.S.A. 17-5571; K.S.A. 17-6305; K.S.A. 17-6908; K.S.A. 2003 Supp. 17-7670; K.S.A. 2003 Supp. 17-76,133; K.S.A. 2003 Supp. 22-4110; K.S.A. 40-4011; K.S.A. 44-536a; K.S.A. 2003 Supp. 44-566a; K.S.A. 48-241a; K.S.A. 49-416a; K.S.A. 50-505; K.S.A. 55-1210; K.S.A. 56-la554; K.S.A. 58-3966; K.S.A. 2003 Supp. 58a-1004; K.S.A. 2003 Supp. 59-3086; K.S.A. 2003 Supp. 59-3087; K.S.A. 2003 Supp. 59-3088; K.S.A. 2003 Supp. 59-3089; K.S.A. 2003 Supp. 60-211; K.S.A. 2003 Supp. 60-216; K.S.A. 2003 Supp. 60-226; K.S.A. 2003 Supp. 60-230; K.S.A. 2003 Supp. 60-237; K.S.A. 2003 Supp. 60-256; K.S.A. 2003 Supp. 60-721; K.S.A. 60-905; K.S.A. 2003 Supp. 60-1607; K.S.A. 2003 Supp. 60-4116; K.S.A. 2003 Supp. 61-3102; K.S.A. 65-1526; K.S.A. 65-1954; K.S.A. 65-4968; K.S.A. 74-7039; K.S.A. 74-7312; K.S.A. 2003 Supp. 75-2973; K.S.A. 75-4360; K.S.A. 2003 Supp. 79-15,126; K.S.A. 79-32,193; K.S.A. 84-4a-211; K.S.A. 2003 Supp. 84-9-607. Accordingly, we conclude the district court did not err in rejecting the defendant’s claim for attorney fees as recovery is not expressly authorized under K.S.A. 40-2,118(c) and controlling canons of statutory construction do not permit authorization by implication.
Refusal to Join Third Party
The defendant claims the district court erred by refusing to make the potential tort claimant a party in the lawsuit. A district court’s determination of whether a person is a “contingently necessary person” under K.S.A. 60-219 is subject to an abuse of discretion standard of review. McHorse v. Koontz, 27 Kan. App. 2d 817, 821, 7 P.3d 1272 (2000).
K.S.A. 60-219 states:
“(a) Persons to be joined if feasible. Whenever a ‘contingently necessary’ person, as hereafter defined, is subject to service of process, he shall be joined as a party in tire action. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and Iris joinder would render the venue of the action improper, he shall be dismissed from the action.
“A person is contingendy necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is die subject of the action and he is so situated diat the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect diat interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
“(b) Determination by court whenever joinder not feasible. If a contingendy necessary person cannot be made a party, the court shall determine whether in equity and good conscience die action ought to proceed among the parties before it or ought to be dismissed. The factors to be considered by the court include: First, to what extent a judgment rendered in the absence of the contingendy necessary person might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in die judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the absence of the contingendy necessary person would be adequate; fourth, whether the plaintiff would bave an adequate remedy if the action were dismissed for nonjoinder.”
As already noted, plaintiff abandoned her claim for declaratory relief. Thus, remaining before the district court was plaintiffs breach of contract claim with a request for recovery of damages arising from the automobile collision. Under these circumstances, joinder of the potential tort claimant in a breach of contract action brought by the insured against her insurance company would not be appropriate and would lead to an additional level of legal complexity, probable delay, and increased litigation costs for the insured. If the insured wishes to seek a determination whether there is coverage extended to pay claims of a tort claimant, it may pursue an action for declaratory relief under K.S.A. 60-1701 et seq.
Misplaced is the defendant’s reliance on Heinson v. Porter, 244 Kan. 667, 772 P.2d 778 (1989), overruled on other grounds Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990). In Heinson, the Supreme Court held a determination of liability coverage in a declaratory judgment action brought by an insurance company against its insured was not binding on the plaintiff who was not joined as a party in that action. 244 Kan. 667, Syl. ¶ 1.
In the case now on appeal, the plaintiff abandoned any request for a determination of liability coverage with her remaining claim being based upon the defendant’s breach of contract. Under these circumstances, we agree with the district court that a third-party tort claimant is not a contingently necessary person in a breach of contract case brought by an insured against its insurer.
Grant of Summary Judgment
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is 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 tire party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
In denying the defendant’s motion for summary judgment, the district court found:
“1. Farm & City had a legal obligation to communicate the request for additional premium directly to the plaintiff, Miss Hershaw.
“2. When the company sent the communication about additional premiums being due to the agent and instructed him to send it on to the plaintiff, Farm & City was expecting him to act as the defendant’s agent."
In granting the plaintiff s motion for summary judgment, the court found:
"5. The back of the binder No. 582963A incorporates the provisions of written policies of insurance in current use by the Company in Kansas for the kind of insurance specifically ordered on the other side of the Binder, and these policies render it necessary for the defendant to have communicated notice directly to the plaintiff, Miss Hershaw, giving her notice of the additional premium due and the deadline for the amount of the increased premium requested.
“6. This was not done and plaintiff was unaware of the request for additional premium.
“8. Regarding the issue of estoppel, the agent’s issuance of the ID card and the declaration or the listing and certainly the bank’s reliance and the State of Kansas Motor Vehicle Registration reliance upon those documents does not by themselves create the contract. However, when one takes into account Mr. Hadley’s issuance of those documents, especially the ID card and the application for insurance and the actions of the company by purportedly extending the period of coverage to December 2,2001, the Court finds that these are significant elements of estoppel, and the Court finds that as a matter of law the company was estopped to claim coverage ended at 12:01 a.m. on December 2, 2001.
“9. Further, the Court finds that the coverage began at 4:55 p.m. on September 10, 2001, and that is the time of day which is the ending time on each day of coverage.
“10. The Court finds that it would have been improper for the company to unilaterally make any termination of coverage earlier than 4:54 p.m. on the last day of coverage.”
Although the district court did not explicitly incorporate its findings entered in denying the defendant’s motion, it is apparent those findings were implied in granting the plaintiff s motion.
The defendant does not dispute that upon issuance of the binder a temporary contract of insurance was entered into between the parties but contends there exist material issues of fact that preclude the entry of summary judgment. Specifically, the defendant contends sufficiently controverted is whether the plaintiff was given notice of a rated-up counteroffer with extension of coverage under the binder until 12:01 a.m. on December 2, 2001, at which time coverage would end unless the additional $22.10 premium charge had been paid.
The defendant suggests the district court confused cancellation of an insurance policy with lapse of an insurance policy. The defendant argues because the binder lapsed by its own terms, Kansas law does not require notice as would be required if a policy of insurance was cancelled. We do not agree with the defendant’s reasoning. Here, we are not addressing coverage under the 90-day insurance policy; we are addressing the nature and extent of coverage afforded under the binder issued by the defendant.
In Service v. Pyramid Life Ins. Co., 201 Kan. 196, Syl. ¶ 6, 440 P.2d 944 (1968), our Supreme Court stated: “A binding receipt issued by a life insurance company connotes obligation, and when supported by valid consideration, suggests a contract.” The Service court explained:
“Under authorities which hold temporary insurance to be in effect, the conditions imposed by the receipt herein would be treated as conditions subsequent. The company was bound to act either affirmatively or negatively on the application. The insured, if an acceptable risk, was entitled to a policy. If he was not acceptable, the insurance company was required to so notify him, and return the premium paid, or if rated up, notify him by tendering an application at the higher rate.” 201 Kan. at 215.
Although Service concerned life insurance, not car insurance, we find persuasive the requirement that temporary insurance is not terminated without rejection of the application and notice to the insured.
In Statewide Ins. Corp. v. Dewar, 143 Ariz. 553, 559, 694 P.2d 1167 (1984), the court recognized that “[i]t is also generally recognized that the notice of rejection or refusal [of the insurance application], with its implicit termination of the binder, is effective only when received by the insured. [Citations omitted.]” The court noted that if an expectant insured did not receive notice the application was rejected, the individual would not know he or she is driving without insurance. The reason for requiring notice to terminate a binder is based upon sound public policy. 143 Ariz. at 559.
In addressing whether there is a notice requirement, we also consider the terms of the binder issued by the defendant:
“The Company accepting this risk acknowledges itself bound by the terms, conditions and limitations of the policy (or policies) of insurance in current use by the Company in this state for the land (or lands) of insurance specifically ordered on the other side of this Binder from the effective date and hour specified therein and the named insured accepts this Binder under such terms, conditions and limitations.”
Whether the binder incorporated the notice requirements of the underlying standard policy of insurance issued by this defendant has been considered by another panel of this court in Sutton v. Farm and City Ins. Co., Nos. 90,160 and 90,408, unpublished opinion filed November 7, 2003, rev. denied 277 Kan. 928 (2004). The Sutton panel noted:
“There is case law support for [the insured’s] argument that a binder incorporates the provisions of the insurance policy. For example, in State Auto Mut. Ins. Co. v. Babcock, 54 Mich. App. 194, 220 N.W.2d 717 (1974), die insured filled out an application for insurance coverage, paid a 30-day premium, and was issued a receipt for a premium. The court held that this created a temporary contract of insurance. 54 Mich. App. at 204-05. The court also determined that the binder should include provisions of an insurance policy that ordinarily would have been issued by the insurance company. Because the applicable policy stated that all relevant statutory provisions applied to the policy, the court held that the cancellation statute applied to this binder. As a result, the insurance company had to give the insured 10 days notice that his application was being rejected and his binder cancelled in order for him to obtain other insurance coverage. 54 Mich. App. at 205-08. Importantly, die court pointed out that a binder, absent express agreement at the time of issuance, is subject to die terms of the insurance policy diat would have been issued or that is ordinarily issued by the insurance company. 54 Mich. App. at 205. See also Terry v. Mongin Ins. Agency, 105 Wis. 2d 575, 581, 314 N.W.2d 349 (1982) (‘A binder, even in the absence of express language, is construed as incorporating the terms and conditions of the standard policy used by the insurer or of a particular insurance policy specified by the parties.’); Willis v. Midland Risk Ins. Co., 42 F.3d 607, 612-13 (10th Cir. 1994) (applying Oklahoma law regarding binders).” Sutton, slip op. at 11-12.
Although the Sutton panel did not explicitly hold the defendant was obligated under tire terms of its binder to give notice according to the terms of its underlying insurance policy, its obiter dictum is persuasive, and we hold that the district court did not err in its determination Farm & City was required to give notice as required by its standard insurance policy.
We next turn to the issue of how notice is given to the insured. The defendant’s standard insurance policy provides, in material part:
“TERMINATION
“A. Cancellation. This policy may be cancelled during the policy period as follows:
2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy:
a. at least 10 days’ notice
(1) if cancellation is for nonpayment of premium; or
(2) if notice is mailed during the first 60 days this policy is in effect and this is not a renewal or continuation policy; or
b. at least 20 days’ notice in all other cases.”
It is uncontroverted the defendant sent the premium quotation with notice of an extension of coverage to Dick Hadley of American Insurance, not directly to the plaintiff. Whether Hadley forwarded the document to the plaintiff on September 30, 2001, is controverted. Also controverted is whether Hadley was an agent of the plaintiff with authority to accept the quotation and notice. Whether an agent of an insurance company was the agent of the insured to receive notice of cancellation of a policy is ordinarily a fact issue to be resolved at trial. See Shultz v. Insurance Co., 112 Kan. 369, Syl. ¶ 1, 210 Pac. 1102 (1922). Consequently, we hold whether Hadley was acting as an agent of the defendant or the plaintiff and whether notice of cancellation was effectively provided to the plaintiff are material issues of fact precluding summary judgment.
Ending Time for Binder Coverage and Estoppel
The defendant also claims the district court erred in finding coverage under the insurance policy could only end at 4:55 p.m. instead of 12:01 a.m. on December 2, 2001. For the reasons we have already given, this finding by the district court is material only if the required notice of cancellation was given to the plaintiff. If proper notice was given, there is no principle of contract law pre eluding the defendant from unilaterally extending the binder coverage until 12:01 a.m. rather than 4:55 p.m.
Alternatively, the district court held the defendant was estopped to claim coverage ended at 12:01 a.m. on December 2, 2001. Equitable estoppel is not applicable absent a showing of misrepresentation and detrimental reliance by a party. Mutual Life Ins. Co. v. Bernasek, 235 Kan. 726, 730, 682 P.2d 667 (1984). If the defendant gave notice of cancellation to tire plaintiff as required under the contract of insurance, we fail to discern evidence of misrepresentation or detrimental reliance that would support application of equitable estoppel. There is no credible evidence in the record that Hadley s issuance of the identification card and evidence of insurance was somehow inconsistent with the requirements of Kansas law. Under these circumstances, we conclude the district court erred.
Finally, we note tire plaintiff s contentions on appeal that she did receive her refund of die unearned premium and the defendant’s cancellation was based on erroneous information regarding her driving record. These issues were not addressed or relied upon by the district court in its grant of summary judgment. Consequendy, these are not issues we should address on their merits.
Conclusion
We conclude the district court did not err in dismissing the defendant’s claim for attorney fees or in denying its motion to join the potential tort claimant as a contingently necessary party. We further conclude summary judgment was improvidentiy granted to the plaintiff and tire cause should be remanded to the district court for further trial proceedings consistent with our opinion. Consequently, die district court’s grant of attorney fees to the plaintiff must be set aside.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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Greene, J.:
This appeal arises from an interpleader action filed by Cincinnati Life Insurance Company (CinLife), which requested the court to determine who is entitled to the proceeds of an insurance policy on the life of Teriy R. Palmer. Terry’s ex-wife and primary beneficiary, Natalie K. Palmer Shanklin, appeals from the district court’s order awarding the proceeds to Terry’s mother and contingent beneficiary, Judith A. Palmer. Natalie argues that the district court erred in interpreting the divorce decree as divesting her rights as primary beneficiary of the policy proceeds. Judith cross-appeals and argues that if intent is an issue, the district court erred in refusing to consider an affidavit addressing the intent of Terry. We reverse the district court, and we reject the cross-appeal.
Factual and Procedural Background
CinLife issued a whole life insurance policy to Terry in 1989; Natalie was named primary beneficiary, and Judith was named contingent beneficiary. In 1999, Terry and Natalie were divorced, and the divorce decree adopted a property settlement agreement of the parties and provided in material part:
“Q. Respondent [Terry] shall be awarded as his sole and separate property, free and clear of any claim of petitioner, any and all personal property currently in his possession including, but not expressly limited to, the following items:
1996 GMC pickup truck
John Deere mower
Above-ground swimming pool
Deck
Household items and personal items in his possession.
“T. Each of the parties shall retain his or her own life insurance policies.
"U. Each of the parties hereto shall execute such instruments of conveyance as are necessary to effectuate the orders of this Court; and in the event that either of said parties neglects or fails to execute or deliver such instruments, then this decree shall operate as a transfer of title to said property and shall operate in lieu of such instrument of conveyance.”
In December 2002, Terry died following an electrocution accident, and his life insurance policy at his death still identified the beneficiaries as they had been designated prior to the divorce. When both Natalie and Judith made demand upon CinLife for proceeds, this interpleader followed.
Both Natalie and Judith filed motions for summary judgment, alleging that no genuine issue of material fact precluded judgment as a matter of law. In response to Natalie's motion, however, Judith filed the affidavit of an insurance agent, averring that Terry had a conversation with the agent a few months before his death. The affidavit states in material part:
“Because he had told me about the divorce, I asked him what the status was of his ex-wife as the beneficiary of this life insurance. He advised me as a part of the divorce there was a property settlement agreement that gave that life insurance policy to him free from any claims by her. He also told me that Iris wife had been removed as the beneficiary according to his understanding of the property settlement agreement and that his mother, Judith A. Palmer, was the beneficiary under the policy. He told me that it was his understanding that the property settlement agreement had accomplished this goal and that he did not have to take any other action to have her removed as a beneficiary and his mother elevated to the primary (and sole) beneficiary on the Cincinnati Life Insurance policy.”
The district judge sustained a relevance objection to the affidavit but granted summary judgment to Judith, reasoning in part:
“In applying the facts of the instant case to the circumstances in Hollaway [v. Selvidge, 219 Kan. 345, 548 P.2d 835 (1976)], I find that defendant Shanldin’s rights as a beneficiary were terminated by the property settlement agreement incorporated into the journal entry of judgment and decree of divorce.
“[T]he rights of a beneficiary to tire proceeds of an insurance policy upon the life of a divorced spouse may be terminated by an agreement of the parties which may be reasonably construed as a relinquishment of the spouse’s rights to the insurance. ... I find that in the context of the entire document, there is a clear intention to divide and resolve all property issues which existed between the parties at the time of the divorce. Each party was awarded property, free and clear of any claim by the other. . . . [T]he intention of both parties was to fully divest each other of any claims on each other’s property.
“. . . The language in the journal entry and decree of divorce/property settlement agreement falls within the exception to the general rule that the divorce, in and of itself, does not effect a change in beneficiary.”
Natalie appeals, and Judith cross-appeals urging consideration of the affidavit if intent becomes an issue.
Standard of Review
On appeal of a summary judgment, we apply the same well-known standards of review as are applicable in the district court. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). Interpretation and application of a statute such as K.S.A. 60-1610 is a question of law, and our review is unlimited. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Did the District Court Err in Construing the Divorce Decree?
Among Natalie’s arguments on appeal is that the district court failed to recognize the effect of K.S.A. 60-1610(b)(l) in construing the divorce decree. This statutory subsection was amended in 1996 to add, in part, the following language:
“The decree shall provide for any changes in beneficiary designation on: (A) Any insurance or annuity policy that is owned by the parties, or in the case of group life insurance policies, under which either of the parties is a covered person; . . . Nothing in this section shall relieve the parties of the obligation to effectuate any change in beneficiaiy designation by the filing of such change with the insurer or issuer in accordance with the terms of such policy.” L. 1996, ch. 186, sec. 2.
Judith argues that the decree complied with this statutory requirement in providing that “[ejach of the parties shall retain his or her own life insurance policies.” We disagree that this language was sufficient to comply with the statute, primarily because it fails to address beneficiary designation but also because of the legal distinction between policy ownership and the inchoate rights of a spousal beneficiaiy. See 2 Couch on Insurance 3d § 34:10, p. 34-11 (1995) (the act of assigning a life policy does not in itself effect any change in beneficiaiy). Moreover, if merely stating who will retain ownership of the policy was sufficient to terminate inchoate spousal beneficiary rights, there was no need for the 1996 statutory revision, and we decline to assume that the legislative revision was meaningless. See Ward v. Ward, 272 Kan. 12, 20, 30 P.3d 1001 (2001).
Judith also argues, and the district court held, that this case is controlled by Hollaway v. Selvidge, 219 Kan. 345, 548 P.2d 835 (1976). We agree that Hollaway embraces general rules of law that remain vital and relevant to this appeal, but Hollaway was decided long prior to the 1996 statutory revision to K.S.A. 60-1610(b)(l), and we conclude that it is not controlling here. Significantly, Hollaway recognized:
“In the absence of terms in an ordinary life insurance policy that the rights of the beneficiary are conditioned upon the continuance of the marriage relation then existing between the beneficiary and the insured, or the regulation of the matter by statute, the general rule is that the rights of the beneficiary are in no way affected by the fact the parties are divorced subsequent to the issuance of the policy, especially if no attempt is made to change the beneficiary and the insured continues to keep up the payments on the policy. . . .
“[I]t is well settled that as part of a separation or property settlement agreement a wife may, upon divorce, contract away her right to claim insurance proceeds from policies on her husband’s fife in which she is named as the beneficiary.” 219 Kan. at 348.
After embracing these general rules, the court in Hollaway proceeded to construe the terms of the properly settlement agreement to ascertain the intent of the parties. 219 Kan. at 349-51. The district court followed Hollaway and embarked on precisely such an analysis here, reciting only that it “reviewed and considered the effect, if any, of K.S.A. 60-1610(b)(l),” but addressing no impact of the statute on tire analysis. We conclude, however, that the Hollaway analysis, which focuses on tire intent of the parties as expressed in the settlement agreement to determine whether spousal inchoate rights to beneficiary status have been relinquished, is no longer appropriate or necessaiy given the 1996 statutoiy revision.
We construe the 1996 statutory revision as requiring any change in beneficiary on any insurance or annuity policy to be specified in the divorce decree, and absent such an express provision in the decree, an active beneficiary designation of either spouse at the time of the divorce is not changed. Just as the decree “shall divide the real and personal property of the parties,” the decree shall provide for any changes in beneficiary designation on any insurance policy owned by the parties. Moreover, there remains no necessity to ascertain the intent of the parties as to any related property settlement agreement, since the legislature has required the decree itself to specify such changes, thereby rendering immaterial any purported but unspecified intention of the parties to the contrary.
The practical result of our construction of the legislative revision may seem harsh in this case, but it serves to avoid difficult and protracted proceedings to ascertain intent of the parties, often where one of the parties is deceased. As noted by one court:
“It is a simple matter to change a beneficiary on a policy after divorce, just as it is a simple matter to include an explicit waiver or relinquishment of the right of the beneficiary to take under the policy when the decree is drawn. Absent unequivocal language or actions to support a finding of relinquishment or waiver by [the ex-wife], we decline to speculate as to what the parties may have intended.” Redd v. Brooke, 96 Nev. 9, 11, 604 P.2d 360 (1980).
We also note that our construction is consistent with authoritative practice manuals in Kansas:
“Kansas law indicates that absent a divorce decree mandating otherwise, the beneficiary designation on an insurance policy will control even if that person is the former spouse. Therefore, unless required by a separation agreement or court decree to retain an ex-spouse as a beneficiary, the client should change the beneficiary on all insurance policies to reflect the client’s new intended recipient. The rights of an ex-spouse named as beneficiary may be terminated by an agreement of the parties that can be construed as a relinquishment or waiver of the spouse’s rights in the life insurance policy. KS.A. 1998 Supp. 60-1610(b)(l) requires the decree to provide for any changes of beneficiary designation on insurance.” (Emphasis added.) 1 Elrod and Buchele, Kansas Law and Practice, Kansas Family Law § 9.57(4) (1999).
We conclude that the district court erred in construing the divorce decree absent appropriate application of the statutory requirement for all changes in beneficiary designations to be specified in the decree. Since the decree failed to provide for any change in the beneficiary designation of Terry’s then spouse Natalie, she was entitled to the proceeds of the policy in question as a matter of law.
With regard to Judith’s cross-appeal, our construction of the statutory revision to K.S.A. 60-1610(b)(l) has rendered immaterial any inquiiy as to the parties’ intention. There was no need to consider the affidavit, and the district court correctly sustained an objection to its relevancy. We reject Judith’s argument on cross-appeal and affirm the district court on this issue.
Affirmed in part, reversed in part, and remanded with directions to enter judgment for appellant. | [
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Rulon, C.J.:
Defendant Charles D. Boley appeals the district court’s order imposing a drug severity level 1 felony sentence upon his conviction for attempted manufacture of methamphetamine. We reverse and remand for further proceedings.
On October 22, 2002, the State charged die defendant with manufacture of methamphetamine, in violation of K.S.A. 65-4159(a) or, in the alternative, attempted manufacture of methamphetamine, in violation of K.S.A. 65-4159(a) and K.S.A. 21-3301, and conspiracy to manufacture methamphetamine, in violation of K.S.A. 65-4159(a) and K.S.A. 21-3302.
As a result of plea negotiations, the State agreed to dismiss all counts except attempted manufacture of methamphetamine and to recommend a downward durational departure sentence of 48 months in exchange for the defendant’s agreement to enter a plea of guilty to attempted manufacture of methamphetamine under K.S.A. 65-4159(a) and to pay all relevant costs and fees. The district court accepted the plea after questioning the defendant to ascertain the voluntariness of the plea.
Prior to sentencing, the defendant filed an objection to the imposition of a drug severity level 1 penalty to his conviction for attempted manufacture of methamphetamine, arguing alternatively that manufacture of methamphetamine should be a misdemeanor under K.S.A. 65-4127c or that the conviction should carry a severity level 3 penalty under K.S.A. 65-4161(a). The district court overruled the objection and found the defendant negotiated a plea to a severity level 1 penalty, which was the basis for the bargain. The court then followed the plea agreement and sentenced the defendant to 48 months.
As a preliminary matter, this court ordered the parties to brief whether Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003), applied to the present case. In light of a recent Kansas Supreme Court decision, State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004), it is clear that a defendant may challenge his or her sentence on direct appeal under the reasoning of State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004).
“There are two important distinctions between Wilson and this case, the first being that Wilson involved a collateral attack rather than a direct appeal. [The defendant’s] case was pending on direct appeal when McAdam was decided. The second distinction is related to the first. While in Wilson the defendant failed to raise the sentencing issue on direct appeal, [the defendant] has raised the sentencing issue on direct appeal .... Because this case is not a collateral attack, much of the Wilson court’s analysis is inapplicable here. The question presented in this case is not whether the McAdam rule can be asserted in a coEateral attack.” Barnes, 278 Kan. at 126-27.
The Barnes court concluded that Barnes was not barred from raising a McAdam challenge to her sentence, even though she failed to object on that basis at trial. Barnes, 278 Kan. at 127. Where, as here, a defendant has raised a McAdam objection at trial and pursues the alleged trial error on direct appeal, Wilson is inapplicable.
According to the reasoning of McAdam, this defendant was improperly sentenced to a drug severity level 1 penalty. Because the defendant has no prior convictions under K.S.A. 65-4161, he should have been sentenced to a drug severity level 3 penalty. See McAdam, 277 Kan. at 146-47. The primary issue on this appeal, therefore, concerns the State’s ability to withdraw from the plea bargain after the case is remanded for resentencing.
The defendant cites State v. Haskins, 262 Kan. 728, 731-32, 942 P.2d 16 (1997), seemingly for the proposition that Haskins was not permitted to withdraw his guilty plea when both he and the State were mistaken about Haskins’ criminal history score. However, our Supreme Court did not consider the effect of the alleged mutual mistake of law because the court concluded the erroneous criminal history score did not induce the plea. Haskins could not reasonably rely upon his presumed criminal history score as an incentive to enter a plea because the agreement set out the entire sentencing range for the offense and indicated that the district court would not be bound by any sentencing recommendations set out in the agreement. 262 Kan. at 731-32.
Here, however, the plea agreement clearly established that a conviction under K.S.A. 65-4159(a) carried a drug severity level 1 penalty, with a presumptive sentencing range of 138 months to 204 months. See K.S.A. 2002 Supp. 21-4705. The agreement provided: “The Defendant agrees to: Plead guilty to Count 2, Attempted Manufacture Controlled Substance or Controlled Substance Analog, contrary to [K.S.A.] 21-3301 and [K.S.A.] 65-4159, a Drug Severity Level 1 Felony.” Unlike in Haskins, here the defendant and the State reasonably relied upon a drug severity level 1 felony as a basis for the plea agreement. The State’s agreement to recommend a downward departure sentence of 48 months was otherwise meaningless.
The defendant further cites several departure sentencing cases to support his position. While our Supreme Court, in the context of unconstitutional departure sentences, has determined that an unconstitutional sentence imposed under a plea agreement cannot stand, our Supreme Court has not considered whether, upon reversal of the unconstitutional sentence, the State may seek to avoid the plea agreement and try the defendant for any previously charged offenses which had been dismissed under the plea agreement. See State v. Santos-Garza, 276 Kan. 27, 28-33, 72 P.3d 560 (2003); State v. Cullen, 275 Kan. 56, 57-61, 60 P.3d 933 (2003); State v. Pruitt, 275 Kan. 52, 53-55, 60 P.3d 931 (2003).
In the context of resentencing based upon an unconstitutional departure sentence, however, this court has previously considered if the State may withdraw from the plea agreement on two separate occasions. In State v. Boswell, 30 Kan. App. 2d 9, 37 P.3d 40 (2001), this court reasoned that an unconstitutional upward durational departure sentencing recommendation did not implicate Boswell’s due process rights to the extent that such a term of the plea agreement provided an inducement for the State, not the defendant. Consequently, Boswell’s inducement to enter the plea remained unaffected by the declaration that the departure sentence was unconstitutional.
Relying upon Jolly v. State, 392 So. 2d 54 (Fla. Dist. App. 1981), this court then held:
“[W]hen a plea agreement includes an agreement to recommend to the court an illegal sentence, the sentencing court imposes the recommended but illegal sentence, and the illegal sentence impermissibly increases the defendant’s term of imprisonment, the State may either allow the defendant to withdraw his or her guilty plea, or agree the illegal portion of the sentence be vacated and the defendant be resentenced to the proper lesser term.” Boswell, 30 Kan. App. 2d at 14.
Although the sentence imposed in this case was not illegal, see Barnes, 278 Kan. at 124, the sentence did impermissibly increase the defendant’s term of imprisonment according to McAdam. Therefore, according to Boswell, the State must either permit a defendant to withdraw his or her plea or permit the district court to resentence the defendant to the lesser sentence. Boswell, however, did not clearly address what happens when a criminal defendant seeks to retain the benefit of his or her plea yet gain the benefit of a favorable change in sentencing laws.
In State v. Johnson, 30 Kan. App. 2d 1133, 55 P.3d 927 (2002), this court interpreted Boswell to mean that the defendant has the option of choosing whether to void the plea agreement or merely vacate the underlying sentence and impose a lawful sentence. 30 Kan. App. 2d at 1134. However, this interpretation directly con tradicts the reasoning in Jolly, which both Boswell and Johnson cited with approval.
In Jolly, the defendant had entered a plea bargain, agreeing to serve a 3-year sentence based upon the understanding of both parties that the crime of conviction required a minimum 3-year sentence. Later, the defendant attacked his sentence on the basis that the statute actually provided for a lower minimum sentence. The defendant argued that the plea remained unaffected, only his sentence required correction.
On appeal, the Florida appellate court disagreed with the defendant’s argument. The Jolly court reasoned that, by attacking his sentence, the defendant was effectively attacking the plea agreement because the 3-year mandatory sentence was the State’s inducement for the plea agreement.
“The State’s negotiation was clearly based upon the premise that the defendant would receive a mandatory three-year sentence. If the plea negotiation is not binding upon the defendant, then it is not binding upon the state. The nolle prosequi, entered before jeopardy attached on the charge for shooting into a dwelling, should not operate as an acquittal nor prevent further prosecution if the negotiated plea is not binding. [Citation omitted.]” 392 So. 2d at 56.
According to Jolly, a defendant’s discretion is limited to determining whether to attack an improper sentence and release the State from its agreement to vacate prior offenses or accept the plea bargain and remain under the sentence originally imposed. Once a defendant has attacked his or her sentence, however, he or she can no longer force the State to abide by the agreement. Recognizing, however, the potential difficulty of obtaining evidence or witnesses for a trial, the Jolly court permitted the State to choose whether the State would accept the sentence modification under the plea agreement or withdraw from the plea agreement and seek prosecution on the previously dismissed offenses.
“[D]ue to the fact that a post-conviction motion may be raised and ruled upon years after imposition, the state may no longer have the witnesses and other evidence necessary to pursue a trial after a defendant successfully has his judgment and sentence vacated. Therefore, in a situation involving a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sen tence should be vacated, while having the judgment stand and allowing the defendant to be resentenced.” 392 So. 2d at 56.
Our Supreme Court has noted that the United States Supreme Court applies both contract and constitutional principles to plea agreements. See State v. Wills, 244 Kan. 62, 65, 765 P.2d 1114 (1988) (citing Mabry v. Johnson, 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543 [1984]). The Wills court indicated that due process concerns are implicated only when a defendant was induced to enter into a plea agreement by a false promise or when the prosecution failed to keep one of its promises which induced the plea. 244 Kan. at 65-66.
In the present case, the State has neither premised the plea agreement on a false promise nor failed to keep a promise which induced the defendant to enter a plea. Due process is not implicated, and the parties’ rights under the plea agreement should be governed by contract principles.
Unquestionably, here the parties anticipated the imposition of a drug severity level 1 penalty for the commission of the attempted manufacturing offense to which the defendant entered a guilty plea. By seeking the imposition of a drug severity level 3 penalty at sentencing, the defendant clearly attempted to deprive the State of its benefit in the agreement, if not repudiating the agreement entirely. As the defendant states in his brief, the agreement did not specifically prohibit the defendant from seeking a lesser sentence than the 48 months recommended by the State. However, the defendant did agree to a particular severity level.
Admittedly, “[i]n Kansas, the sentencing court is not a party to the contract and is not bound by its terms. [Citation omitted.] The State and defendant may not enter into a plea agreement calling for a certain sentence, only an agreement that each side will recommend to the court a certain sentence. [Citation omitted.]” Boswell, 30 Kan. App. 2d at 13. For all ostensible purposes, the parties believed that the defendant was entering a guilty plea for a specific offense, which carried a drug severity level 1 felony penalty. The question of the applicable severity level for a given offense is a matter of statutory construction, which is a question of law, and a severity level 1 penalty is the applicable penalty for commission of K.S.A. 65-4159(a). State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003). The offense, the severity level applied, and the sentence imposed all properly conform to the statutory provisions. See Barnes, 278 Kan. at 124.
Contrary to the defendant’s position, McAdam did not hold that the imposition of a drug severity level 1 penalty for a conviction under K.S.A. 65-4159(a) was illegal or unconstitutional. Barnes, 278 Kan. at 123. Rather, our Supreme Court held that K.S.A. 65-4159(a) and K.S.A. 65-4161(a) proscribe identical criminal conduct but impose different penalties. Applying a judicially created rule of statutory construction, the McAdam court reasoned the defendant must be sentenced under the lesser penalty. At most, the McAdam decision determined that the imposition of a severity level 1 penalty for commission of K.S.A. 65-4159(a) constitutes an “impermissible” sentence. See Boswell, 30 Kan. App. 2d at 14.
Under facts very similar to the present case, the Tenth Circuit Court of Appeals has applied the contract doctrine of frustration of purpose to relieve the State from its obligations under a plea agreement when a criminal defendant successfully challenges his or her conviction. See United States v. Bunner, 134 F.3d 1000 (10th Cir.), cert. denied 525 U.S. 830 (1998). In Burner, the defendant had agreed to plead guilty to an offense for conduct which the United States Supreme Court subsequently held was not criminalized by the pertinent statues. Initially observing the defendant sought to challenge his sentence volitionally, the Burner court reasoned that the defendant’s remaining performance under the plea agreement held no value to the Government and, thus, frustrated the Government’s basis for entering the plea agreement. This provided the Government with an opportunity to escape its obligations under the agreement, if it so desired. In other words, the intervening change of law which frustrated the Government’s intent in entering the plea agreement caused the agreement to become voidable. 134 F.3d at 1005.
The Tenth Circuit’s reasoning is persuasive. Here, both parties operated on the assumption that the defendant would be convicted under K.S.A. 65-4159(a), a drug severity level 1 offense in exchange for dismissal of other offenses in the complaint. The parties then agreed that the State would recommend a downward durational departure sentence of 48 months. By successfully challenging his severity level of conviction under McAdam, the defendant would receive a new sentence of 17-19 months. While, unlike in Burner, the State has not lost its entire bargained-for value, the significant reduction in sentence clearly frustrates the State’s intended purpose in seeking a plea to a conviction under K.S.A. 65-4159(a). Consequently, the plea agreement should be deemed voidable at the discretion of the prosecutor.
Other jurisdictions have taken a different approach. Most courts allow the State to withdraw from the plea agreement, although some court’s require the rescission of the agreement rather than providing the prosecution a choice. Such jurisdictions reason that rescission places the parties back into the position they were in before entering the plea agreement. See People v. Caban, 318 Ill. App. 3d 1082, 1088, 743 N.E.2d 600, rev. denied 195 Ill. 2d 558 (2001), cert. denied 534 U.S. 1162 (2002); State v. Arviso, 993 P.2d 894, 899 (Utah App. 1999); State ex rel. Gessler v. Mazzone, 212 W.Va. 368, 572 S.E.2d 891 (2002).
In Mazzone, the West Virginia Supreme Court stated:
“The dismissals and the guilty pleas, while constituting two components of the plea agreement, were not entirely separate considerations. They were inextricably intertwined, and the plea agreement must be viewed as one unified agreement as we examine its validity. If one component colapses, i.e., the ability of the court to legaly sentence the Petitioner as contemplated in the plea agreement, then the other countervailing component, i.e., the dismissal, must also colapse. . . . The ‘bargain’ become[s] impossible, through mutual mistake regarding statutory realities. Upon that occurrence, this Court cannot condone a resolution, as requested by the Petitioner, which would permit him to retain the benefit of his bargain by having six counts dismissed while serving no sentence for the crimes to which he desired to plead guilty. Where a plea agreement cannot be discharged due to legal impossibility, the entire agreement must be set aside. The Petitioner cannot choose which portions are advantageous to him and implore this Court to apply only those certain portions. There is no equity in that result, no semblance of a bargain, and certainly no pubic polcy which would support such a result.” Mazzone, 212 W.Va. at 374.
There are multiple difficulties with the mutual mistake approach to contract rescission under the facts presented in this case, how ever. Generally, demanding rescission of a plea agreement on the grounds that both parties were mistaken about the law may prove inequitable, especially in drug possession or manufacturing cases, where evidence may be destroyed and witnesses lost. See Boswell, 30 Kan. App. 2d at 14 (quoting Jolly, 392 So. 2d at 56). More importantly, in this context, a mutual mistake presumes that the State misapplied a severity level 1 penalty to the conviction. This is clearly not the case. There was no mistake of law; a conviction under K.S.A. 65-4159(a) carries a drug severity level 1 penalty according to the plain language of the statute. It is only the subsequent interpretation of K.S.A. 65-4161 (a) and the application of McAdam, 277 Kan. at 144-47, State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987), which demand resentencing.
Furthermore, where there is a mistake of law in a plea agreement, the risk of the mistake may fall to the State, which is presumed to be in a better position to know the applicable law. See United States v. Barron, 172 F.3d 1153 (9th Cir. 1999); Coy v. Fields, 200 Ariz. 442, 27 P.3d 799 (App. 2001). Under the circumstances of this case, the State could not know our Supreme Court would rule that K.S.A. 65-4159(a) and K.S.A. 65-4161(a) proscribed identical conduct. As such, it is inequitable to apply such a presumption in this case.
In conclusion, where a defendant has successfully challenged a sentence for a conviction subject to a plea on the basis that the sentence impermissibly increases the defendant’s term of imprisonment beyond that permitted by law and resentencing would effectively frustrate the State’s purpose in entering the plea agreement, the State may, in its discretion, withdraw from the plea agreement or choose to perform under the plea agreement as modified.
If the State chooses to withdraw from the plea agreement, double jeopardy provides no impediment to refiling such charges dismissed from die original complaint. “Upon restoration of the status quo ante, the plea agreement no longer [binds] the parties. Therefore, no obligation [remains] which [prohibits] the government from reinstating the previously dismissed charges.” Burner, 134 F.3d at 1005. See United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998); United States v. Podde, 105 F.3d 813, 817 (2nd Cir. 1997); Caban, 318 Ill. App. 3d at 1090; Mazzone, 212 W.Va. at 372-73.
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Greene, J.:
Gary F. Jones appeals from the district court’s order affirming the decision of the Civil Service Board (Board), which upheld the termination of Jones’ employment as a police officer with Kansas State University (KSU) for gross misconduct or conduct grossly unbecoming a state officer pursuant to K.S.A. 75-2949f(a). We reverse and order Jones’ reinstatement.
Factual and Procedural Overview
Gary F. Jones was employed as a police officer with the KSU Police Department (Department) since January 1997. On August 26, 2001, Jones stopped a vehicle driven by Gretchen Esping for speeding. At the time of the stop, Student Security Officer Pharaoh Guice also was in Jones’ police car.
Most of this stop was recorded by a video camera in Jones’ police vehicle. The tape reflects that Esping pulled her vehicle over approximately 6 feet from the curb, parallel to the curb but perpendicular to marked parking spaces. Jones approached and asked for Esping’s driver’s license and advised her she was going at least 32 in a 20 m.p.h. zone. Jones returned to his vehicle and ran a license check, which revealed that Esping’s license had been suspended earlier in 2001. Jones relayed that information to Esping, who claimed she was unaware that her license had been suspended. Jones advised her that he would have to write a citation and that lie could not let her drive, but she could ask a friend to drive her car home for her. Esping became upset and began crying.
Jones returned to his vehicle and asked the dispatcher to doubleJ check the suspension. After the dispatcher confirmed the suspension, Jones advised Esping that he had reconfirmed the suspension and asked for her current address. Jones again returned to his car and wrote the traffic citation for driving with a suspended license. Esping initially refused to sign the citation, claiming she had never been told her license was suspended and she would not sign anything indicating she had driven on a suspended license. After Jones explained several times that signing a citation was not an admission of guilt, Esping finally signed and accepted the citation. Esping was still crying and upset, and she expressed concern for how she would get her perishable groceries to her nearby home, which was apparently located only 100 feet from the scene. Jones offered to drive her to her apartment and to put his card on her car, so it would not get towed. Jones then told Esping, “One second. I want to tell you something. One second.” Jones walked back to the police car and directed Guice to turn off the lights, which deactivated the in-car video camera. Nothing more of this stop was recorded.
Jones completed a report of the incident later that day. The report stated, in part:
“At this time I informed the suspect that her license was suspended, and that I would issue her a notice to appear (citation # 6638) and she would be released at the scene, tire suspect vehicle was legally parked at the time of the stop so the driver agreed to leave the vehicle where it was until she could have a friend drive her vehicle to her apartment building.”
Approximately 1 month later, the Department started an internal investigation into the events of August 26, 2001. The investigator reviewed the videotape and talked with various witnesses, including Jones, Esping, and Guice. Guice indicated that after Jones instructed him to turn off the camera, Jones returned to Esping5s car and spoke with her. In her statement, Esping stated that after the camera was turned off, Jones returned to her car and stated, “You give us two minutes to get out of here and then you go park your car in front of your apartment and don’t drive it again until this is cleared up.” The Esping citation was apparently dis missed when it was determined that the purported license suspension was in error.
On December 13, 2001, Department Director Ronnie Grice sent a letter to Gary E. Leitnaker, KSU’s Director of the Division of Human Resources, requesting that Jones be terminated. The next day, Leitnaker issued a letter to Jones informing him the Department had requested he be dismissed for gross misconduct or conduct grossly unbecoming a state officer or employee. The reasons stated for the proposed dismissal were that Jones: “(1) submitted false information in a case report of the traffic stop; and (2) violated the in-car camera policy that states, ‘every traffic stop shall be recorded until the stop is terminated.’ ” The letter invited Jones to submit any information he wished the Director to consider. After Jones met with Leitnaker, Leitnaker issued a letter confirming the proposal to dismiss Jones and advising him of his right to appeal to the KSU Classified Employee Peer Review Committee (PRC).
After a hearing, the PRC issued a letter finding that Jones submitted false information in his report and also violated the in-car camera policy. Accordingly, the PRC concurred with the Department’s findings and supported the Department’s recommendation that Jones be dismissed. Based upon the PRC’s findings, Leitnaker dismissed Jones effective January 10,2002, “for the reason of gross misconduct or conduct grossly unbecoming a state officer or employee.” At this point, Jones was advised of his right to appeal to the Board.
At the conclusion of a hearing, the Board unanimously voted to uphold KSU’s decision to terminate Jones. In a subsequent written decision, the Board summarized the facts and then concluded that Jones’ conduct “constituted gross misconduct or conduct grossly unbecoming a state officer or employee.”
Jones filed a timely petition for judicial review in district court, alleging that the Board’s findings that he falsified his report and violated the Department’s in-car camera policy were not supported by substantial competent evidence and that the Board misinterpreted K.S.A. 75-2949f(a).
After briefing and oral argument, the district court affirmed the Board’s decision. In addressing the merits, the district court noted the Board did not expressly find Jones violated the Department’s in-car camera policy. Rather, the district court reasoned that even if the policy was not violated, Jones was terminated because of a question of trust. The court also noted there was evidence to support a finding that Jones included false information in his report of the incident with respect to whether Esping’s car was legally parked. The court found this finding was relevant in determining the reasonableness of Jones’ termination. Finally, the court concluded the Board applied the correct standard in determining Jones’ termination was reasonable and there was sufficient evidence to support the Board’s decision.
Jones appeals.
Standard of Review
The review of the decision of the Board is controlled by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 181, 967 P.2d 759 (1998). In reviewing a district court’s decision this court makes the same review of the administrative agency’s actions ás did the district court. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002). A rebuttable presumption of validity attaches to all actions of an administrative agency, and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s decision. 271 Kan. at 965.
When a party challenges an agency’s fact findings, the appellate court is limited to ascertaining from the record whether determinations of fact are supported by evidence that is substantial when viewed in light of the record as a whole. K.S.A. 77-621(b)(7). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Newell v. Kansas Dept. of SRS, 22 Kan. App. 2d 514, 519, 917 P.2d 1357, rev. denied 260 Kan. 994 (1996).
When a party disputes the agency’s interpretation of a statute, the issue raised is a question of law. Humphreys, 266 Kan. at 182. The interpretation of a statute by an administrative agency charged with enforcing that statute is entitled to judicial deference, but the agency’s interpretation is not binding on the appellate court. An appellate court’s review of the construction of a statute is unlimited. Peterson v. Kansas Dept. of Health & Environment, 31 Kan. App. 2d 13, 18, 59 P.3d 6 (2002).
Were the Expressed Bases for Jones’ Termination Supported by Substantial Competent Evidence?
KSU’s dismissal letter to Jones listed two reasons for the proposed dismissal: (i) Jones submitted false information in his report of the Esping incident; and (ii) Jones violated the Department’s in-car camera policy. The PRC cited these same bases for the dismissal. Although the Board’s final order is not entirely clear as to the specific factual bases of termination, the conclusions reference only “actions of August 23[sic], 2001” and tire material findings regarding events on that date state:
"11. Mr. Jones stated in his report that Ms. Esping’s vehicle was legally parked at the time of the stop and that the driver had agreed to leave the vehicle where it was until a friend could return the vehicle to her apartment building. Ms. Esping’s vehicle was not legally parked at the time of the traffic stop.
“12. The Manhattan city prosecutor requested from the KSU Police Department, a copy of the video and audiotape of the traffic stop of Ms. Esping. In complying with this request, the KSU Police Department discovered that Mr. Jones had turned off the in-car camera prior to the completion of the traffic stop and that this report differed from the information on the tape regarding whether Ms. Esping’s vehicle was legally parked at the time of the traffic stop.”
The district court focused exclusively on these two bases for the termination, and we likewise limit our focus to these two bases in determining whether they are supported by substantial competent evidence viewed in the light of the record as a whole.
(1) Falsification of Report
There is ample evidence in the record to support the accusation that Jones erroneously characterized the Esping vehicle as “legally parked.” The video clearly shows that Esping’s car was stopped about 6 feet from the curb, parallel to the curb but perpendicular to the marked parking spaces. Initially he told the PRC that he considered it legally parked because it was a Saturday and no one would be using tire parking spaces anyway. In the Board hearing, Jones testified that he was not thinking about it when he wrote his report. In his brief to the district court, Jones called the inaccuracy “meaningless . . . detail.” At least one KSU witness opined that Jones “intentionally falsified” the report. Notwithstanding the clear inaccuracy of the report, Jones has persisted in claiming that he did not intentionally falsify the report; he claims that the report was not completed until the end of his shift and that he was more concerned with how the report “would effect [sic] her and me.”
The district court stopped short of finding that Jones intentionally falsified the report; in fact, the court found only that Jones “included false information in his report of the incident” and that the Board was entitled to consider that finding in determining the reasonableness of Jones’ dismissal.
Although Jones’ report was erroneous, we find no evidence to suggest that the error was “intentional” or that the report was “falsified,” a term which we believe infers an intent to report something known to be untrue. “Intentional” has been defined in criminal law as meaning conduct that is purposeful and willful and not accidental. State v. Pope, 23 Kan. App. 2d 69, 74, 927 P.2d 503 (1997). To “falsify” a record implies intentionality consistent with the crime of making false entries or otherwise tampering with a public record with the intent to deceive, injure or conceal wrongdoing. See 18 USCA §§ 1506, 2071, 2073 (2000). Although such intent may be proven by circumstantial evidence (23 Kan. App. 2d 69, Syl. ¶ 2), no such evidence has been cited by KSU; indeed, KSU concedes in its brief on appeal that the Board “did not actually make any such finding [of intentional falsification].”
We conclude that substantial competent evidence supports a finding that Jones’ report of the Esping incident included erroneous or inaccurate information that the vehicle was “legally parked.” We find no evidence, nor does KSU apparently contend on appeal, that this error was intentional, and we therefore conclude that it would be inappropriate to characterize the inaccuracy as a “falsification.” The legal materiality of this error will be addressed below.
(2) Violation of In-car Camera Policy
KSU has a policy governing the use of in-car camera and audio equipment that states in part: “Officers shall record all traffic stops and pursuits, along with major accidents, where practical. . . . No officer may terminate recording an event of this type, until the event has been concluded.” The policy does not further define “event.”
It is undisputed that Jones instructed the video camera be turned off before the encounter with Esping was concluded. KSU witnesses testified that, in their opinions, the traffic stop was not concluded when Jones instructed that the recorder be turned off. Jones contends, however, that his traffic stop of Esping was concluded when he returned her license and issued a citation. He admits that after handing this paperwork to Esping, he told her, “One second. I want to tell you something.”
Whether a traffic stop has been or should have been concluded as a matter of law requires a constitutional analysis that has spawned a host of contentious litigation and decisional law. See United States v. Shareef, 100 F.3d 1491 (10th Cir. 1996); State v. Mitchell, 265 Kan. 238, 960 P.2d 200 (1998). We doubt that KSU’s policy contemplates that an officer make this determination before deciding when to terminate the in-car video device.
The district court stopped short of finding a violation of KSU’s policy, reasoning:
“Violation of the policy is not the issue. Petitioner’s actions are the issue, and they are not disputed. After extensive discussion with Ms. Esping over issues related to the citation he issued to her, for driving on a suspended license, Petitioner had the camera turned off so he could further address those same issues off the record. Petitioner would narrow the issue to a perse test; if the policy was violated, there might be misconduct, although not gross misconduct, but since it may not have been clearly violated it is not misconduct at all. That approach avoids the principal issue, which is one of trust.”
Suffice it to say that for these purposes, there was evidence of camera termination prior to the end of the Esping encounter. Based on the opinion testimony of KSU witnesses regarding the camera termination prior to the conclusion of the traffic stop, there was substantial evidence that Jones technically violated the policy in terminating the video camera prior to the. end of the Esping “event.” The legal materiality of this technical violation will be discussed below.
Did Jones’ Actions Constitute Gross Misconduct or Conduct Grossly Unbecoming an Officer Pursuant to KS.A. 75-2949f(a)P
Jones contends that the Board and the district court misinterpreted K.S.A. 75-2949f(a) in concluding that his actions constituted “gross misconduct or conduct grossly unbecoming a state officer.” Since the legislature has not expressly defined these terms and our appellate courts have never previously construed and applied this statutory subsection, we consider the issue as one of first impression.
The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768-69, 69 P.3d 1087 (2003).
“ ‘In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act.’ [Citation omitted.]” Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 265, 62 P.3d 247 (2003).
The Civil Service Act (CSA or Act), K.S.A. 75-2925 et seq., was enacted in 1941. The general purpose of the Act was to “establish a system of personnel administration that meets the social, economic and program needs of the people of the state of Kansas as these needs now or in the future may be established.” K.S.A. 75-2925. This system was intended to allow the state to “recruit, select, develop and maintain an effective and responsible work force.” K.S.A. 75-2925. Moreover, the Act was designed so that all employment decisions “shall be made without regard to race, national origin or ancestry, religion, political affiliation, or other nonmerit factors,” but would “be based on merit principles and fitness to perform the work required and shall provide fair and equal opportunity for public service.” K.S.A. 75-2925.
The CSA provides that permanent classified employees may be dismissed because of deficiencies in work performance as set forth in K.S.A. 75-2949e or because of “personal conduct detrimental to the state service” as set forth in K.S.A. 75-2949f. See K.S.A. 75-2949d. Under the latter provision, “[g] rounds for dismissal ... for personal conduct detrimental to the state service include, but are not limited to, the following: (a) Gross misconduct or conduct grossly unbecoming a state officer or employee.” K.S.A. 75-2949E
K.S.A. 75-2949Í was not part of the original CSA. Instead, it was first added in 1981. The original version listed grounds for dismissal to include “[g]ross misconduct or conduct unbecoming a state officer or employee.” L. 1981, ch. 334, sec. 5(a). In 1985, the legislature amended the provision to state: “Gross misconduct or conduct grossly unbecoming a state officer or employee.” L. 1985, ch. 276, sec. 7(a). The 1985 legislature also added what are now subsections (q) and (r) which allow disciplinaxy action for “gross carelessness or gross negligence” or “grossly improper use of state property.” L. 1985, ch. 276, sec. 7(q), (r).
K.S.A. 75-2949f was added after this court’s decision in Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 562 P.2d 117 (1977). In Swezey, this court held:
“Legal cause for dismissal exists if the facts disclose the employee’s conduct is of a substantial nature and directly impairs the efficiency of the public service, but there must be a real and substantial relation between the employee’s conduct and the efficient operation of the public service; otherwise, legal cause is not present.” 1 Kan. App. 2d at 100.
By thereafter enacting K.S.A. 75-2949f, this court subsequently concluded the legislature intended to establish a category of conduct that is per se cause for discipline, obviating the need for the Board to make a case-by-case determination whether there was direct impaix'ment of the public service. Sanstra v. Kansas Highway Patrol, 15 Kan. App. 2d 148, 151, 804 P.2d 1009, rev. denied 248 Kan. 996 (1991). At no time thereafter has the legislature specifically defined “gross misconduct” or “conduct grossly unbecoming” within the CSA; in fact, the terms “gross” and “grossly” now appear throughout the statute without specific definitions.
Jones argues this court should adopt the definition of gross misconduct from the Kansas Employment Security Law, K.S.A. 44-701 et seq. The employment security statutes specifically define “gross misconduct” as “conduct evincing extreme, willful or wanton misconduct as defined by this subsection (b).” K.S.A. 2002 Supp. 44-706(b)(l).
Although KSU suggests that reference to the employment security statutes for these purposes would “be a major distortion of the statute” and that the subject statutes involve “entirely different considerations,” we conclude that reference to other statutes employing the identical terms is entirely appropriate when attempting to discern legislative intent. See Callaway v. City of Overland Park, 211 Kan. 646, 652, 508 P.2d 902 (1973). In fact, in similar fashion our Supreme Court has found it appropriate to consider statutory language and decisions construing the Workers Compensation Act in addressing statutory construction issues arising from application of the Kansas Public Employees Retirement System Act. See Shapiro v. Kansas Public Employees Retirement System, 211 Kan 452, 456-57, 507 P.2d 281 (1973). Just as the court noted regarding the two acts in Shapiro, the Kansas Employment Security Law and the CSA have similar purposes—to provide standards of employee conduct and criteria for the conferral or denial of certain benefits. Accordingly, the definition of “gross misconduct” in the employment security statutes is persuasive authority for an appropriate construction of K.S.A. 75-2949f(a).
We also find it persuasive that the legislature’s definition of “gross” misconduct within the employment security statutes comports with the accepted meaning of the term “gross” when employed in negligence cases. Our courts have specifically held that “gross and wanton negligence” as it appeared in G.S. 1949, 8-122b was something more than ordinary negligence. See, e.g., Swinney v. Ward, 187 Kan. 746, Syl. ¶ 1, 360 P.2d 193 (1961). Although the former “guest statute” may have had different purposes dian the CSA, decisions construing one may be material, or at least persuasive, in determining rights and liabilities under the other. See Shapiro, 211 Kan. at 456-57. These decisions, together with the definition provisions of the employment security statutes, con vince us that the legislature intended “gross” misconduct and conduct “grossly” unbecoming to a state employee to mean something significantly more than ordinary misconduct and to require something akin to wanton misconduct.
Another approach to be considered in statutory construction is the doctrine of noscitur a sociis, literally “it is known from its associates.” In essence, when the meaning of a word or phrase is doubtful, it may be clarified or ascertained by reference to those words or phrases with which it is associated. State v. Zabrinas, 271 Kan. 422, 432, 24 P.3d 77 (2001). Applying this doctrine, the language in issue may be compared to the other grounds for discipline listed in K.S.A. 75-2949A “conviction of a criminal act”; “immoral conduct”; “willful abuse or misappropriation” of state property; making a material false statement in an application for employment; participating in any act that would in any way seriously disturb the normal operation of the agency; trespassing on any state employee’s property for the purpose of harassing or forcing discussion with the occupants; willful damage to state property; willfully endangering the lives or property of others; “possession of unauthorized firearms or other lethal weapons while on the job”; “performing duties in a brutal manner, or mistreating, neglecting or abusing” any person in the employee’s care; insubordination; being under the influence of alcohol or drugs while on the job; “knowingly releasing confidential information from official records”; use of the employee’s position or time on the job or use of state property in connection with a political campaign; “exhibiting other personal conduct detrimental to state service which could cause undue disruption of work or endanger the safety of persons or property of others”; “gross carelessness or gross negligence”; “grossly improper use of state property”; and “sexual harassment” in connection with employment. We conclude from examining these associated statutory bases of dismissal that the legislature generally intended the per se grounds for dismissal to require misconduct of a very serious or extreme nature and generally to require pernicious if not malicious intent.
On its face, Jones’ conduct in tins incident is not nearly as egregious as that found in most cases in other states where a police officer is found to have committed misconduct warranting dismissal. See, e.g., McCloud v. Rodriguez, 304 Ill. App. 2d 652, 710 N.E.2d 37 (1999) (disobeying an order to terminate a chase, failing to report shots were fired, and unnecessarily displaying a weapon constituted gross misconduct); Nation v. Bd. of Fire & Police Comm'rs, 40 Ill. App. 3d 384, 352 N.E.2d 464 (1976) (officer failed to uphold high standards of his office by intentionally and repeatedly entering private locker of another officer; dismissal upheld); Bowns v. Port Huron, 146 Mich. App. 69, 75-77, 379 N.W.2d 469 (1985) (officer s involvement in gambling activities off-duty was misconduct); City of Minneapolis v. Moe, 450 N.W.2d 367, 370 (Minn. App. 1990) (felonious possession of cocaine was “misconduct striking at the veiy essence of law enforcement”); State Troopers Ass’n v. State Police, 667 A.2d 38, 41 (Pa. Commw. 1995) (completing false reports to retaliate against another officer and findings by judge questioning officers credibility warranted discipline). Although these cases are merely instructive, they demonstrate that other states generally require far more than ordinaiy misconduct for dismissal of police officers.
We conclude that, for purposes of K.S.A. 75-2949f(a), ordinary misconduct is to be distinguished from gross misconduct, and conduct unbecoming an officer is to be distinguished from conduct “grossly” unbecoming an officer. Particularly since the legislature concluded that the addition of “grossly” was worthy of a specific amendment in 1985, we must conclude that insertion of such terms in qualifying the conduct justifying dismissal was not meaningless and should not be disregarded. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Although we decline to establish a general rule that would serve to define “gross misconduct” in every case, we believe that the legislature intended that “gross” and “grossly” in the language of K.S.A. 75-2949f(a) mean something significantly more than ordinary misconduct. Notwithstanding our refusal to provide a missing statutory definition for all purposes, we are convinced that in order for misconduct to be “gross,” it must be aggravated, extreme, or wanton in nature, evincing a knowing and reckless disregard for the rules, policies, or other standards of appropriate behavior.
We respectfully disagree with the district court that “the principal issue [in this appeal] is one of trust”; we find no standard or criteria of “trust” within the operative statute, and we decline to create a special criteria or test for state-employed police officers. The principal issue in this appeal requires determination of legislative intent in requiring “gross” misconduct or conduct “grossly” unbecoming a state employee as grounds for dismissal. KSU argues and we agree that a police officer should be held to a high standard of conduct and that an officer s integrity is a mainstay of our judicial system, but the legislature has provided no special criteria for the dismissal of such employees. Where the legislature has created no special statutoiy classification or special statutory criteria for dismissal of a class of employees, it is beyond this court’s prerogative to do so. See Eveleigh v. Conness, 261 Kan. 970, 978, 933 P.2d 675 (1997). We believe that the statute should be uniformly construed and applied, regardless of the position held by the subject employee.
Particularly since Jones’ actions in erroneously stating facts in his incident report were not intentional and may have been mere negligence, and since Jones’ violation of the in-car camera policy was somewhat technical and dependent upon a disputed construction of the policy, we hold that the Board and the district court erred in concluding that these actions were “gross misconduct” or “conduct grossly unbecoming a state employee.” These actions may have constituted “misconduct,” but we conclude that they were not “gross misconduct” or conduct “grossly” unbecoming a state employee. Applying our statutory construction to the facts of this case, the Board and district court must be reversed and Jones must be reinstated, with appropriate back pay and associated benefits.
Reversed and remanded with instructions to reinstate Jones, with back pay and benefits. | [
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Malone, J.:
The State appeals the district court’s order suppressing evidence seized from a motel room occupied by Jose Gonzalez. The central issue on appeal is whether Gonzalez has standing to challenge the search of the motel room he was visiting, including the bathroom within the motel room.
On the evening of March 28, 2003, Emporia police officer Bill Ross and court services officer (CSO) Robert Sullivan were working with other law enforcement officers to check on probationers. The group conducted unscheduled home visits, bar checks, and surveillance of those on probation.
Ross and Sullivan contacted Jessica Moreno at a friend’s residence. Moreno was on probation under Sullivan’s supervision. Moreno was told she should not be there because alcohol was present. Moreno informed Sullivan she had plans to spend the evening with her friend, Lindsey Tabares. Moreno passed a breath test and told Sullivan she would pass a drug test as well. Moreno was then released.
In the early morning of March 29, 2003, the law enforcement officers were checking local motel parking lots. Ross and Sullivan were looking for Moreno’s vehicle and found it at the Budget Host Inn at about 1 a.m. The officers ascertained that room 208 was registered to Tabares. The officers returned at 2 a.m. and found Tabares’ car next to Moreno’s vehicle at the motel. Officers listened outside the door of room 208 and heard Moreno’s voice. Sullivan knocked on the door; when someone inside asked who was there, Sullivan said “open the door its cold out here.” A second inquiry from within received the same response.
When the motel room door opened, Sullivan observed seven or eight people in the room. Sullivan immediately observed Gonzalez looking out from the bathroom. As soon as Gonzalez saw Sullivan, Gonzalez slammed the bathroom door. Sullivan immediately entered the room and went to the bathroom to prevent anything from being flushed down the toilet. In the bathroom, officers found a small piece of aluminum foil on the floor by the toilet. The foil contained an off-white powder which appeared to be methamphetamine.
Thereafter, the officers searched the rest of the motel room. Throughout the room there were numerous empty beer bottles and an empty liquor bottle. Several of the bottles contained crumpled pieces of aluminum foil. In the room near Tabares and Moreno, officers found pieces of plastic containing what appeared to be rocks of cocaine. There was no luggage which could be seen, no one was sleeping, and no one was wearing pajamas. Kevin Hines, another person on probation under Sullivan’s supervision, also was in the room. Hines and Morales both tested positive for using alcohol.
Gonzalez was charged in Lyon County District Court with possession of methamphetamine in violation of K.S.A. 65-4160, and possession of drug paraphernalia in violation’of K.S.A. 65-4152. Shortly before trial, Gonzalez filed a motion to suppress the evidence seized in the motel room. Gonzalez argued law enforcement lacked authority to enter the motel room or the bathroom in which he was found.
A suppression hearing was held on July 1, 2003. The only witnesses were Sullivan and Rajubhai Patel, owner of the Budget Host Inn. Patel testified that on March 28, 2003, a person identified as Lindsey Tabares registered at the motel and rented room 208. The registration card listed Tabares as the only occupant of the room. The court also took judicial notice of Moreno’s probation agreement in Case No. 02CR61. Gonzalez did not testify at the suppression hearing.
After hearing the evidence, the court granted the motion to suppress, finding that police lacked authority to enter the motel room and that Gonzalez had an expectation of privacy in the bathroom.
The State timely perfected this interlocutoiy appeal.
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. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).
However, a defendant cannot object to the seizure of evidence without proper standing to challenge the validity of the search. On the issue of standing, the burden is on the defendant to show an expectation of privacy in the property searched. A defendant may testify at a suppression hearing to establish his or her standing to challenge a search without jeopardizing his or her defense at trial. State v. Cruz, 15 Kan. App. 2d 476, 484, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991); see State v. Sumner, 210 Kan. 802, 803-04, 504 P.2d 239 (1972).
The State argues that Moreno’s probation agreement authorized the search of the motel room. Although the probation agreement is not in the record on appeal, there appears to be no dispute that Moreno’s probation agreement permitted CSOs “to visit you at your home or elsewhere.” However, there is no claim that the probation agreement specifically consented to searches. Moreover, the State cites no authority that a probationer’s agreement allowing “visits” constitutes a waiver of a third person’s right to object to warrantless searches.
Regardless of whether the officers had consent to enter the room or authority under the probation agreement, the central issue is whether Gonzalez has standing to challenge the search of the Budget Host Inn room. The general rule in Kansas is that an individual must have a personal expectation of privacy in the area searched to have standing to challenge that search. State v. Bartlett, 27 Kan. App. 2d 143, 146, 999 P.2d 274 (2000).
Generally, courts have recognized that overnight guests have expectations of privacy in a host’s home. State v. Yardley, 267 Kan. 37, 41, 978 P.2d 886 (1999) (citing Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684 [1990]). Likewise, officers cannot detain and search social guests found in a home being searched based on a search warrant absent (1) a warrant allowing the search of all persons found within the home; (2) independent probable cause of a crime involving the guest; or (3) a reasonable belief the person is armed. State v. Vandiver, 257 Kan. 53, 62-64, 891 P.2d 350 (1995).
While the standards applicable to hotel or motel rooms are similar to those involved when a residence is searched, there are im portant differences as well. The constitutional protection from unreasonable search and seizure is based on the right of the individual to privacy rather than the proprietary interest of the individual in the premises. State v. Chiles, 226 Kan. 140, 146-47, 595 P.2d 1130 (1979). In Chiles, the court stated that as a general rule the protection against unreasonable search and seizure extends to hotel and motel rooms. 226 Kan. at 146. However, the court held that the defendant had abandoned his expectation of privacy in his motel room when he left and surrendered the keys to management before the search. 226 Kan. at 147. In Chiles, the party challenging the search was the person who rented the room. The only evidence before the court in this case, however, was that the room was rented by Tabares, not Gonzalez.
Kansas has little law on the standing of guests visiting in hotel or motel rooms. Other courts have held that a defendant cannot establish a reasonable expectation of privacy in a hotel or motel room which is registered to another person absent a showing of a relationship with the registered guest. See U.S. v. Cantley, 130 F.3d 1371, 1377-78 (10th Cir. 1997), cert. denied 522 U.S. 1137 (1998) (defendant lacked standing to object when room was registered to another and defendant failed to show his relationship to the registered guest); U.S. v. Deninno, 29 F.3d 572 (10th Cir. 1994), cert. denied 513 U.S. 1158 (1995) (defendant lacked standing to object to search of hotel room registered to another); U.S. v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991) (absent evidence defendant was an invited overnight guest of the registered hotel guest, the court held he had no reasonable expectation of privacy); U.S. v. Conway, 854 F. Supp. 834, 838 (D. Kan. 1994) (merepresence in motel room insufficient to give standing to object to a search); State v. Coleman, 118 Ohio App. 3d 522, 525-26, 693 N.E.2d 825 (1997) (occupant of motel room registered to another who was not an overnight guest had no expectation of privacy protected by the Fourth Amendment).
Here, there is no evidence that Gonzalez was an invited overnight guest of the registered room occupant, Tabares. Nothing in the record indicates that Gonzalez was listed on the registration card as an overnight guest or that the motel’s management knew about his presence in the room. Although it was 2 a.m. at the time of the search, Gonzalez was not in bed or dressed for sleeping. Neither Tabares nor Gonzalez testified to establish their relationship or whether Gonzalez was an overnight guest of Tabares. The burden was upon Gonzalez on the issue of standing. See Cruz, 15 Kan. App. 2d at 484.
We conclude the district court erred by finding that Gonzalez had standing to object to the officers’ entry into the motel room. Gonzalez had no reasonable expectation of privacy in the motel room generally. Gonzalez lacked standing to object to the seizure of the drugs found in the open part of the motel room.
Even if Gonzalez did not have standing to contest the search of the motel room generally, there is the additional question of whether he had a reasonable expectation of privacy in the bathroom that gives him standing to object to that part of the search. Gonzalez was only charged with the methamphetamine and paraphernalia found in the bathroom.
One’s presence in a restroom on another’s property does not automatically create a recognizable expectation of privacy. The State cites State v. Allen, 21 Kan. App. 2d 811, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996). In Allen, a police officer saw Allen driving a vehicle. Believing Allen’s driver’s license had been suspended, the officer began a pursuit. Allen refused to stop his vehicle and drove in a manner attempting to elude the officer. Allen finally stopped his car, entered into an auto body repair establishment and locked himself in the restroom. After Allen exited the restroom, the police searched it and found hidden narcotics. This court did not hesitate in concluding Allen had no reasonable expectation of privacy in the restroom and upheld the search. 21 Kan. App. 2d at 814.
However, the Allen holding provides little assistance in this case. The search in Allen took place after the defendant voluntarily left the restroom of a business. In this case, law enforcement officials opened the door and entered a bathroom known to be occupied.
A more relevant case is State v. Mudloff, 29 Kan. App. 2d 1075, 36 P.3d 326 (2001). In Mudloff, the defendant had entered the stall in a public restroom with another person and had an audible conversation, causing a passerby to believe there was activity occurring not in accordance with the stall’s intended use. Police, who responded to a tip, knocked on the bathroom stall door and then pushed it open. Defendant and another woman were standing in the stall and defendant was holding a baggy containing white powder. This court held the defendant had no reasonable expectation of privacy and that the motion to suppress was improperly granted. The court noted that “an individual can assert a subjective expectation of privacy in a public bathroom stall, but society will not recognize that expectation as reasonable if the stall’s occupant is engaged in activity other than the stall’s intended use.” 29 Kan. App. 2d at 1077.
Here, when the officers entered the motel room, Gonzalez was observed standing at the entrance of the bathroom with the door open. When Gonzalez saw the officers, he slammed shut the bathroom door. Within seconds, Sullivan entered the bathroom to prevent anything from being flushed down the toilet.
A person legitimately using a bathroom has a reasonable expectation to privacy society would recognize. However, we find the fact that the bathroom door was initially open when the officers entered the motel room, and the fact that the door was shut for only seconds prior to Sullivan’s entry, are relevant to the question of Gonzalez’ reasonable expectation of privacy inside the bathroom. We do not know from the record how long Gonzalez had been inside the bathroom prior to the officers’ entry into the motel room. We do not know whether Gonzalez was attempting to use the bathroom for its intended use, although it requires a degree of naivete to conclude that Gonzalez shut the door at that precise instant because nature was calling. The fact remains Gonzalez did not testify at the suppression hearing and it was his burden to show an expectation of privacy in the property searched. See Cruz, 15 Kan. App. 2d at 484.
Based upon the record presented, we find that Gonzalez lacked standing to object to the entry and search of tire motel room in general. He further lacked a legitimate expectation of privacy inside the bathroom under these facts. Because Gonzalez lacked standing to object, we do not reach the merits of whether the of ficers had probable cause under the circumstances to seize any of the evidence.
We conclude that the district court erred in suppressing the evidence against Gonzalez. This case is remanded to the district court for further proceedings consistent with this opinion.
Reversed and remanded. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover rent from a tenant who had vacated the leased property. The defense was surrender and release from liability. The plaintiff recovered and the defendant appeals.
In September, 1910, the plaintiff leased the property to the defendant for five years at the monthly rent of $18. In 1912 the defendant moved out and the property remained vacant for some time. The plaintiff found another tenant to whom he leased from month to month at the monthly rent of $19, the same rent as before with a dollar per month added for an electric light and fan which the plaintiff furnished. As the result of negotiations between representatives of the parties the defendant paid the rent due from him while the property was vacant. In 1913 the property again became vacant and remained so until March, 1914. The action was for rent for this period. The answer stated that until the defendant moved out the plaintiff continued to demand rent which the defendant refused to pay. After the reletting the defendant offered to pay rent for the time the property was unoccupied if he were released from further liability. The plaintiff accepted this offer and accepted the defendant’s check for the sum which the offer contemplated. The court instructed the jury with reference to the defense specifically pleaded and further instructed as follows:
“The fury are instructed that when the defendant quit the said premises it was then the duty of the plaintiff Hoke to lessen his loss by renting said rooms to some other person, and the renting of the rooms to another would not be such an act as would release the defendant from the payment of rent, but it would be necessary in addition to the leasing of said premises by the plaintiff to another party that you believe from all the evidence and circumstances that the plaintiff consented to the termination of said lease with the defendant and consented that the defendant should not be held for any further rent.”
The verdict for the plaintiff is conclusive on the subject of an express agreement to accept the defendant’s surrender and to release him from further liability. The defendant, however, challenges the instruction quoted and argues that re-letting the premises discharged him by operation of law, the reletting having been without notice to him. The instruction contained a fair statement of the law. (Brown v. Cairns, 63 Kan. 584, 66 Pac. 639; Rogers v. Dockstader, 90 Kan. 189, 133 Pac. 717; O’Neal v. Bainbridge, 94 Kan. 518, 146 Pac. 1165.) Surrender by a tenant must have the consent of the landlord in order that the tenant may be discharged from liability to pay rent. Consent of the landlord may be express, or may be implied from all the circumstances. Consent is not implied from the mere fact of a reletting because a landlord who does not consent to a surrender is nevertheless bound to reduce his damages by reletting the premises if he can. Consent to a sur render is not implied from failure to notify the tenant of a reletting and notice of reletting is not an arbitrary condition with which the landlord must comply to prevent surrender by operation of law. In this case the terms of the reletting were consistent with an intention to hold the defendant and the evidence was sufficient to show that the plaintiff did not consent to discharge the defendant from the obligation of his lease.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
On January 3, 1913, a complaint drawn by lawyers employed by relatives of the complaining witness was filed with a justice of the peace of Cherokee county, charging John W. Matthews with carnally knowing Edith White, a girl sixteen years of age. A warrant was issued but never served. The same lawyers about the same time began two actions against Matthews, one in behalf of the girl and one in behalf of her father, in each asking $15,000 damages for her seduction. Attachments were issued and levied upon property appraised at $9823. Early in the preceding month the defendant had executed, and recorded a deed and bill of sale undertaking to transfer to his brother all his property, and had then left the state. On January 18, 1913, he came to Joplin, Mo., and employed a lawyer to represent him in the criminal case, which had, however, already been dismissed, and in the two civil cases. A meeting with the lawyers for the plaintiffs in the civil actions was arranged at Joplin, at which an agreement was reached for a compromise and settlement of the cases by the payment of $8861.30. A note for this amount, payable to the lawyers who had brought the actions, and se? cured by a real-estate mortgage, was executed by Matthews, and the cases were dismissed. Later Matthews brought the. present action, seeking to set aside the note and mortgage. A jury trial resulted in a verdict for the defendant, on which a judgment was rendered for the amount of the note and for the foreclosure of the mortgage, from which the plaintiff appeals. It developed at the trial that on February 17, 1913, Matthews had been arrested upoñ a new complaint, charging him with rape, that a trial had been had, resulting in a disagreement of the jury, and that the case had then been dismissed.
(1) The grounds upon which the plaintiff asked to have the note and mortgage canceled were: (1) that his signature was obtained by means of various false statements knowingly made, chiefly that the girl had become pregnant and had a miscarriage, and that her father would not consent to a settlement for less than the amount named; (2) that it was also obtained by duress, under a threat of criminal prosecution; (3) that the settlement made was unconscionable; and (4) that it was against public policy. It is contended that the undisputed or established facts compel the conclusion that the note and mortgage were void because given in pursuance of a contract condemned by public policy, but we do not find that to be the case. The amount for which the note was given was fixed by the defendants by adding to the sum' for which they would otherwise have been willing to settle, various items of expense which they claimed to have incurred in connection with the litigation. In this was included three dollars which one of them had paid as the fees of the justice of the peace and constable in the first criminal case. The inclusion of this amount in that for which the settlement was made did not characterize the transaction as one intended to dispose of the criminal charge. The jury found that the complaint in the second criminal prosecution was filed to force the payment of the note and mortgage, but this was after their execution, and did not affect their validity. There was a direct conflict in the oral testimony as to whether threats of prosecuting Matthews criminally were made to induce the settlement, and as to whether an express or implied promise of immunity from such prosecution was a part of its consideration. The verdict and findings of the jury, approved by the trial court, must be regarded as having determined against the plaintiff these and all other disputed matters of fact, and it remains only to consider the specific rulings of the trial court the correctness of which is challenged.
(2) The defendants were allowed to testify to the story told, them by Edith White covering her relations with Matthews. An objection is made on the ground that the rule regarding privileged communication from client to attorney was thereby violated. The girl afterwards took the stand and went over the same ground herself, so that she could be regarded as having waived the privilege, if such a waiver were necessary to support the ruling. (In re Burnette, 73 Kan. 609, 85 Pac. 575; Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62; Armstrong v. Street Railway Co., 93 Kan. 493, 144 Pac. 847.) But in any event the confidential character of communications made by Edith White to her attorneys was no matter of concern to the plaintiff in this case; and he can not be heard to complain of their admission in evidence. The usual, and as we think the better, rule is that no one but the client, or one in privity with him, can found an appeal upon the violation of this privilege. (40 Cyc. 2394; 4 Wigmore on Evidence, §2321. See, also, Hauk v. The State, 148 Ind. 238, 260, 46 N. E. 127; Pierson v. The People, 79 N. Y. 424; Dowie’s Estate, 135 Pa. St. 210, 19 Atl. 936.)
(3) The same evidence is also objected to as hearsay, and as foreign to the issues. The plaintiff alleged that the defendants, in the negotiations leading to the settlement, had knowingly misrepresented the condition of the girl. The defendants denied this, and the evidence referred to was pertinent to the issue so raised, and competent, as tending to show reasonable grounds for believing what they had said, good faith on their part being necessary to sustain the compromise. (5 R. C. L. 882, 883.) Therefore the evidence was properly admitted.
(4) The court, instructed the jury that they were to consider this evidence only for the purpose of determining whether the defendants were prompted to institute the criminal action by proper or improper motives. The propriety of the defendants’ motives in regard to the bringing of the criminal action would seem to be material only in throwing possible light on the probability of the threat of a prosecution having been an inducement to the settlement, but no prejudice to the plaintiff could have resulted from limiting to that issue the effect of the evidence to which he objected.
(5) The plaintiff contends that other evidence was admittbd which was outside of the pleadings, and objectionable because tending to distract the attention of the jury from the real issues, citing in this connection the testimony (1) of the defendants as to what the girl’s father had told them regarding terms of settlement, (2) of a doctor that upon examination he found her pregnant, and (3) of the girl herself as to her rela-' tions with the plaintiff. The first was material because the petition alleged that the defendants had knowingly misrepresented the amount for which the father was willing to compromise; the second because it alleged that they had falsely stated that the girl had become pregnant; and the third because the plaintiff had taken the stand and denied ever having had sexual intercourse with her.
(6) An instruction was given to the effect that upon the issue of fraud the plaintiff was required to satisfy the minds of the jury by the fair weight or preponderance of the evidence. The plaintiff contends that this imposed too severe a requirement upon him, citing Callison v. Smith, 20 Kan. 28. The instruction there condemned imposed upon the plaintiff the burden of proving his case by such a preponderance of the evidence as “clearly” outweighed the evidence on the other side. If the phrase regarding satisfying the minds of the jury implies anything more than that the party having the burden of proof can prevail only by a preponderance of the evidence, it is not objectionable in a case based on the claim of fraud. (Insurance Co. v. Rammelsberg, 58 Kan. 531, 50 Pac. 446.)
(7) The plaintiff criticises several instructions as tending to mislead the jury by reference to extraneous matters. The court stated in a general way what facts would have authorized judgments against Matthews in favor of Edith White and her father. One of the plaintiff’s claims being that the settlement was unconscionable, it was proper that the jury should be sufficiently advised to judge of the fairness and good faith of the money demands made against him. A definition of statutory rape was included in the charge. While this may not have been necessary, it was not prejudicial, particularly as the plaintiff introduced evidence of the prosecutions begun against him on that charge.
(8) The plaintiff contends that the fact that the case was presented to the jury upon a wrong theory is shown by the submission to the jury of special questions eliciting answers (1) that Matthews had had sexual intercourse with Edith White; (2) that he had agreed to marry her; (3) that he seduced her; (4) that a second complaint was filed against him; and (5) that the settlement for $8861.30 was not unconscionable. The first three were pertinent as bearing upon the good faith and validity of the claims made against Matthews; the plaintiff had introduced evidence relating to the first, third and fourth; and the fifth was responsive to an issue tendered by the petition.
(9) The verdict showed a finding for the defendants without naming any amount. The plaintiff suggests that on this account it was insufficient to support a judgment on the note and mortgage. The only dispute related to the validity of these instruments, which was established both by the general verdict and the special findings. The amount due was a mere matter of computation and did not require to be stated by the jury. (Smith v. Railway Co., 90 Kan. 757, 136 Pac. 253.)
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The opinion of the court was delivered by
West, J.:
This is an appeal from an order sustaining a demurrer to the plaintiffs’ evidence in their two cases, which were submitted together. B. F. Fennell, a colored man sixty-six years old, with his wife, went as passengers from. Newton to Walton, arriving there late in the afternoon. There was testimony to the effect that upon learning that the man they went to see was not there they concluded to take the first train back to Newton, that the marshal of the town of Walton came into the front door, looked at the plaintiffs, then went to the door of the ticket office and said to the ticket agent, “Where is them coons going?” to which the ticket agent replied, “I don’t know”; that the officer and the agent stepped back farther from the window and had a conversation, and the officer came back and said to Fennell, “You’ll get no train out of here until late to-morrow morning, and you can make it back to Newton before that time.” Fennell said, “Well, we will have to wait for it,” but was told by the officer that he could not wait there; and upon Fennell replying that he would purchase his ticket, said, “Well, you have not got any ticket and you can’t stay here.” That the officer got angry with him and put him out of the depot, saying, “I don’t want you here or none of your kind,” and said to his wife, “You get on out too, I’ll lock both of you up”; and he shoved Fennell along to the rear end of the platform and pushed him off, saying, “Make it on out of here. If you go up to that town I will lock up both of you”; that while this was occurring Fennell said, “Let me get my ticket,” and the ticket agent was then standing with his elbow on the counter where he issued tickets, looking into the waiting room; that the ticket agent made no effort to prevent the assault and said nothing to the officer.
In the opening statement counsel said that there was a train for Newton due an hour and a half later, and there was testimony that when plaintiffs had gone two and a half or three miles from Walton a train called the local passed them on its way to Newton. It was a peculiar situation. The officer would not permit them to go up town; he would not let them stay in the depot, but forced them to start out afoot. No claim is made that they were committing any offense or that the marshal had any sort of warrant or authority for his conduct, unless it were his suspicion that they were disreputable characters. It was agreed that a certain witness, if present, would testify that it was the custom of this individual to run all the colored people out of town, and out of the depot without remonstrance on the part of the agent, but the trial court deemed this incompetent.
The position of the defendant is, that as the plaintiffs did not buy tickets and the agent had no knowledge that they were there for any purpose except to loiter, he was under no obligation to furnish them lodgings nor required to interfere with the officer in what he deemed the discharge of his duties. In the brief it is said:
“In the ease at har, it seems quite evident that the city marshal told the ticket agent that the plaintiffs were disreputable or suspicious characters, and that the agent thought the marshal quite justified in driving them out of own. In any event, it was not the agent’s business to interfere in the matter, and it is absurd to attempt to hold the railway company liable for the agent’s passivity.”
No authorities are cited in support of this contention.
A considerable research has failed to disclose any case exactly similar, and but few bearing any analogy to the one under consideration have been cited or found. In one case the tenant of a union depot company violently assaulted a passenger, and it was shown that his employer had known for years that he was a savage and vicious man, inclined to make assaults, and ‘the company was held liable. (Dean v. St. Paul Union Depot Company, 41 Minn. 360, 5 L. R. A. 442.) In another it was ruled that when a person enters the office of a railroad depot to buy a ticket he is entitled to protection as a passenger even though the agent refuses to sell him a ticket; that a night watchman under the employ and pay of the company, although sworn in as a special policeman by the city marshal without authority at the request of the company, rendered the company liable by the assault and false imprisonment of a passenger. (Norfolk and Western R. R. Co. v. Galliher, 89 Va. 639, 16 S. E. 935.) In Batton & Wife v. South & North Ala. Railroad Co., 77 Ala. 591, it was held the duty of a railroad company to protect its passengers from violence or disorderly conduct, but that no liability would arise by such conduct on the part of two or three intruders coming into the waiting room while the plaintiff was waiting the arrival of her train, it not being shown that the company had notice of any facts which justified the expectation of such an outrage. The opinion approves the quoted doctrine that “ ‘while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help, sufficient to protect the passenger from assaults from every quarter which might reasonably be expected to occur, under the circumstances of the case and the condition of the parties.’ ” (p. 593.) Also, that the measure of duty in stations is not so great as it is after a passenger has boarded the train.
“We do not think that there is any duty to police station-houses, with the view of anticipating violence to passengers, which there are no reasonable grounds to expect. . . . There is nothing tending to prove that the company had notice of any facts which justified the expectation of such a wanton and unusual outrage to passengers. ... It is shown neither to be commonly necessary or customary.” (pp. 593, 594.)
In Duggan, Appellant, v. B. & O. R. R., 159 Pa. St. 248, 28 Atl. 186, 39 Am. St. Rep. 672, it was held that a conductor is not required to enter into a contest with or put himself in opposition to officers of the law who arrest a passenger, and whether the conductor’s conduct in that instance was such as to render the company liable was said to be a question for the jury. In Krantz v. R. G. W. Ry. Co., 12 Utah, 104, 41 Pac. 717, 30 L. R. A. 297, a passenger alighted from a train at a small station and started towards the section house, and being taken for a spotter, was assaulted by the section foreman who gave him five minutes to get away under threat of death. The ticket agent was present and saw the assault and saw the parties go back into the waiting room. Plaintiff, being afraid to stay, started up the track and was assaulted and robbed by two tramps, whereupon he returned to the station house and complained to the ticket agent and wanted to send a telegram giving information of the robbery. The section foreman interfered and directed the ticket agent not to send the telegram, and with the two tramps came into the station and brutally beat the plaintiff, who appealed to the agent and the bystanders for assistance, to which none except a stranger responded, the ticket agent merely ordering them all out of the waiting room. He testified that though the foreman was subject to his orders in the station house he would not obey him because they were not on good terms. It was held that for.the assault outside the station house the company was not liable, but was for that within the building. Although not regarding the plaintiff as a passenger, the court said:
“When the appellant was assaulted and beaten in the waiting room of the station, the company itself was present, in the person of the ticket agent in charge, who was its vice-principal, and the injuries in flicted upon the appellant by one servant of a company, aided by strangers, in the presence of and under the very eye of the vice-principal, who tamely acquiesced, and failed to exercise his authority for the protection of the appellant, were inflicted by the company itself. The agent should have protected appellant, or, at least, should have made an earnest effort to do so.” (p. 117.)
In Southern Railway Company v. Hanby, 183 Ala. 255, 62 South. 871, it was charged that while waiting in the station for the purpose of taking passage the plaintiff was assaulted and beaten, and that the company failed to protect him from such violence. It was ruled that in case of lawless violence of a stranger the duty of protection does not arise until the carrier has reasonable grounds for believing that such violence or assault will occur unless steps are taken to prevent it. “When that occurs then the carrier or innkeeper must at once take all such reasonable steps as the circumstances will admit of to prevent the threatened injury or insult, and if he fails to do so, then he is liable in damages for the consequences.” (p. 260.) In Bowden v. Railroad, 144 N. Car. 28, 56 S. E. 558, 12 Ann. Cas. 783, it was decided that the railroad company is not liable when the neglect consists only in the failure of the conductor to resist known officers of the law in carrying out their purpose to arrest a passenger and in delaying the train at a station a few minutes longer than usual while the arrest is being effected. In a Note in 12 Ann. Cas. 785, the following quotation is found:
“If the conductor had knowledge that the arrest was unlawful, then it would be his duty to use extraordinary diligence to prevent it and protect the passenger, but even in that case the company would not be an insurer against such arrest. If the conductor had notice that the arrest was wrongful, it would be his duty to make inquiry into the matter. But where the arrest is by officers of the law and is apparently regular and there is nothing to put the company on notice that the arrest is illegal, the company can not be held liable for a failure to interfere with the officers and prevent the arrest.”
Cyc. lays down the rule that when a person is upon the depot premises upon the express or implied invitation of the company reasonable care should be used for his safety. (33 Cyc. 805.) In a Note, 40 L. R. A., n. s., at page 1073, the rule deduced from a large number of decisions cited is that:
“In respect of arrests made by officers of the law, a passenger cannot recover damages unless he can prove that the carrier’s servants were guilty of some positive misconduct with relation to the tort. It has been laid down that such misconduct may be inferred where the servants had notice, actual or constructive, of the illegality of his arrest, and failed to take such measures as were requisite for his protection.”
In Texas Midland R. R. Co. v. Geraldon, 103 Tex. 402, 128 S. W. 611, 29 L. R. A., n. s., 799, it appeared that a man with his wife and child went to a small village to take a train, and finding that it had gone he left his wife and child in the depot and went out upon the platform to box his goods to ship on the next train. No objection to their, presence was made until ten o’clock at night, when they were ordered out by the agent who said he was going to close up. The husband,remonstrated that the wife was not in condition on account of her health to go into the rain which was falling, whereupon the agent called upon the town marshal to put them out of the depot, and in seeking a lodging house the wife was drenched, causing injury. It was held that the company having prepared a waiting room for persons desiring to take passage the plaintiff and his wife were not trespassers but had a right to remain in the waiting room until the next train on which they could go, subject to the right of the company to close its building at such hours as reasonable rules require, but that the agent was required to use care not to place an occupant in a position which would probably endanger health and life. The court said:'
“Under such circumstances it was not lawful for the agent of the railroad company to force Mrs. Geraldon out of the room and into the rain whereby her health might be impaired, and it appearing from the evidence that the agent of plaintiff in error having thus knowingly forced Mrs. Geraldon out of the room and into the rain, which caused her to suffer physical pain, the railroad company was properly held responsible for the results.” (p. 404.)
The eighth circuit court of appeals in Thomkins v. Missouri, K. & T. Ry. Co., 128 C. C. A. 1, 211 Fed. 391, 52 L. R. A., n. s., 791, in a case involving the arrest of a colored interstate passenger because in a car set apart for white persons, held .that it was the duty of the Pullman conductor to exercise reasonable care and diligence to protect passengers, but that its employees were not required to substitute their opinions of the law and of the duty of officers of the law for the judgment of the latter and to interfere with and obstruct the discharge by the officers of their duties, and that their failure so to do did not ■constitute actionable negligence.
This is not the case of an assault by a servant of the company or by a stranger as a private citizen. It is, according to the plaintiffs’ evidence, an instance of a rough and arbitrary expulsion by a star-adorned dignitary who overruled the defendant’s time table and took charge of its station to the extent of forcing the plaintiffs to start on foot for the point whence they had come, and whither they desired to return as passengers on board one of the company’s trains. It may be fairly inferred, from the evidence that the agent heard Fennell tell the marshal he wanted to buy a ticket and knew there would be a train along in about an hour and a half. But assuming, without deciding, that the plaintiffs were entitled to the protection of passengers waiting in the depot to take a train, we find no sufficient basis in reason or in precedent for holding that it was the duty of the agent to venture upon any dictation to or interference with one so distended with his little brief authority as was the star actor in this scene of expulsion.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by William Henry Marshall against William S. Anderson and Charles Sweeney, members of a partnership known as The Anderson Coal Company, to recover damages for personal injuries sustained while working in the defendant’s strip pit. The judgment of the trial court was in favor of the plaintiff and the defendant appeals.
The plaintiff had been working for the defendant about a year and was about twenty years old at the time of his injury. He was working under the provisions of the compensation act, but the defendant had not elected to bring itself within that act. The accident which injured the plaintiff was the premature explosion of a blast which took place while he was engaged in his duties as a shot firer. He had been employed in this kind of work only about four or five weeks. It consisted in drilling holes down through the coal, after which a small preliminary charge called the “springer,” and composed of a piece of dynamite, a dynamite cap and a fuse, was exploded at the bottom of the hole for the purpose of making an enlargement to receive the main charge of powder for the blast. After the springer had been discharged in the bottom of the hole and the powder poured into it the shot firer would then place in the hole a long iron tube, called the blasting barrel, having about a five-eighths inch opening through it. The powder was then confined by tamping clay around the blasting barrel through which a lighted fuse would be dropped to ignite the powder. In preparing the blast the first springer proved ineffective and it became necessary to fire off another springer, which was the first experience he had had with a second springer, and when it was prepared he went to the other side of the pit to procure more powder. After the second springer was fired flames were seen coming from the hole for a considerable time but the plaintiff did not see them as he was facing in the other direction and the unusual blaze was not brought to his attention. Upon returning to the hole the foreman advised him to wait a while and he waited until the foreman directed him to proceed. First he was told to sprinkle a little powder in the hole to see if it was cool enough to admit safely the charge of powder. The foreman told him it was all right to go ahead and fill it and he proceeded to pour in the powder from a can which he held in his hands, and while doing so that poured in unexpectedly exploded and caused his injuries. It was testified that the fuse used contained cotton which was likely to smoulder after being used, thus making it dangerous to pour in powder very soon after discharging the springer.
It was alleged also that the defendant was negligent in not furnishing the plaintiff with safe appliances and tools and a reasonably safe place in which to work, and that the plaintiff, who was an inexperienced workman and who relied upon the directions given him by the defendant, had not been properly instructed in the manner of doing this work and of the dangers thereof; that the springers were composed of ingredients which would hold the heat a long time; and that the defendant had negligently failed to provide the ‘plaintiff with a long handled dipper with which to pour the powder into the holes. In answer to these allegations the defendant alleged that the plaintiff was experienced in shot-firing; that his injuries were caused by his own negligence in refusing to use the long-handled dipper which he had been furnished and directed to use; and that when he filled the hole in question he did it knowing of its dangerous condition and in spite of warnings not to do so. The testimony upon the issues thus raised was not in accord, but the jury resolved the disputed questions in favor of the plaintiff.
It is contended by the defendant that the verdict was against the weight of evidence, and complaint is made of the court’s instructions as to the defenses available to it, and also of certain instructions upon the question of contributory negligence.
The testimony, although conflicting, tends to show that the defendant was negligent in failing to instruct the plaintiff, who was inexperienced, at least as to the danger in cases where a second springer was used, and in directing him to proceed to charge the drill hole when the foreman knew or should have known that it was unsafe to do so. It appears that when a second springer is used the bottom of the hole is enlarged and the fuse of the second springer or shredded parts of it may be left in the hole and in such a condition that the ordinary test of sprinkling a little powder in the hole may not disclose the presence of fire. An experienced man should have known of the danger and guarded against it, but the plaintiff did not have the experience nor the knowledge of the effect or risk in such circumstances. It is said that the plaintiff knew that the hole had been hot, that fire was liable to cling to a shattered fuse and that when powder and fire were placed together an explosion was sure to follow, and that the injury was, therefore, the result of his own negligence rather than that of the defendant. Hardy v. Railroad Co., 139 Iowa, 314, 115 N. W. 8, is cited as an authority that no liability can attach to the employer for failing to warn the powder man from charging a hole that was still hot after the use of a springer. While plaintiff knew that he was dealing with dangerous materials, he was unacquainted with the existing conditions or the length of time necessary for the extinction of fire where a second springer had been used. The -foreman had twenty-five years of experience, and besides had undertaken to instruct the plaintiff as to his duties, but had not advised him as to the dangers or the course to be pursued where a second springer had been used. The plaintiff depended upon the foreman for this information and he did not undertake to load the drill hole with powder until the foreman told him it was all right to do so and directed him to begin the loading. In the Iowa case the miner had experience and acted upon his own initiative in doing the work and therefore it was held he could not rely on the lack of warning of danger. In this case the plaintiff, lacking experience, had a right to and did rely on the instructions and directions of his foreman. There was proof, too, that the plaintiff had not been furnished with a long-handled dipper to pour the powder in the hole. Such an appliance had been provided but the handle had been broken and another handle had not been procured. It is unnecessary to recount the testimony on either ground of negligence as it was certainly enough to uphold the finding of the jury.
Complaint is made of the instructions- given relating to contributory negligence but we find no error in them. The term was sufficiently defined and the issue as to the plaintiff’s conduct in the affair fairly presented. Because of a provision of the compensation law contributory negligence is not a defense except that it may be considered in mitigation and reduction of damages. The trial court submitted to the jury the question whether the plaintiff was guilty of negligence that contributed to his injury and then instructed that such negligence on his part would not bar a recovery but should be considered in mitigation of the damages sustained by him.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendants for the value of certain stationery and supplies for a bank which they had undertaken to establish, at McCue, in Finney county, but which project was abandoned before its completion.
On March 10,1910, certain of the defendants and others met at the town of Friend and determined to start a bank at McCue. To that end, stock subscriptions were made, and an application for a bank charter was executed, naming five of their number as the proposed incorporators, and these five persons signed and acknowledged the application. A charter for the new bank was prepared some time later, naming five of the defendants as directors for the first year and giving a list of the stockholders and the number of their shares of stock. This charter was signed and acknowledged on May 20, 1910, by five of the defendants. John R. Gunn was one of the promoters of the proposed corporation, and he was one of the signers of both the application and the charter and designated in the charter as one of the directors. He also paid to the secretary of state the charter fee of $39.50 on behalf of the contemplated corporation.
The subsequent facts are in dispute, but it appears tolerably clear that the leadership in the entire matter was assumed bj? Gunn in the expectation that he would be the cashier of the new bank. He negotiated for a site for the new bank, set about the erection of a bank building, and ordered furniture and equipment for the bank, including the bill of stationery which is the subject of this action. Some of the subscribers paid a portion of their stock subscriptions to Gunn, but the capital subscribed was never paid, the bank commissioner never checked in nor certified the new bank, nor did it ever open its doors for the transaction of banking business. The whole project was abandoned. Some of the defendants informally agreed among themselves that one of their number who had the most money invested in the project should take over the bank building and pay the debts, or some of the debts, pertaining to the abandoned undertaking.
The plaintiff grounds its action against the defendants on the familiar principle of law that all who participate in the preliminary transactions of a proposed corporation which is abandoned before its completion are liable as partners for the debts incurred in the abortive enterprise.
Defendants’ answers were mere general denials, but their chief defense was that John R. Gunn contracted this debt without authority from his associates in their project to incorporate and establish the bank, and that it was his individual obligation, not theirs nor the bank’s.
The general verdict was for the defendants. Plaintiff appeals, and the gist of its assignment of errors is the net result— that the defendants, having the liability of partners in this proposed corporation, are permitted to escape their responsibilities. The case was tried on defendants’ theory that unless authority was granted by them to Gunn to contract this debt on behalf of the proposed corporation they were not liable.
The true rule is founded on a very simple philosophy. A number of persons may undertake to accomplish a certain enterprise, be that to build a house, to run a store, or to found a banking corporation. In any such enterprise they are partners. As such they have all the responsibilities of partners so far as their dealings with third parties are concerned. If they offend against each other they have their several legal remedies. But in their dealings with others in furtherance of their common purpose each partner may bind the partnership. John R. Gunn, a partner in their enterprise to found a bank, contracted thi's debt in the proposed bank’s behalf, and consequently in defendants’ behalf. The stationery and supplies were necessary and pertinent to the proposed corporate business and in furtherance of their common purpose. They are therefore liable to the plaintiff. (Walton v. Oliver, 49 Kan. 107, 30 Pac. 172; Bank v. Sheldon, 86 Kan. 460, 121 Pac. 340; Bank v. Sheldon, 96 Kan. 492, 152 Pac. 765.)
Are all the defendants liable? That we can not determine from the record. Those who in any manner participated in the common enterprise to found and establish the bank' are liable; and to ascertain that fact the judgment of the district court must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff insurance company issued a policy on an elevator owned by L. G. Murray, one of the defendants. The property was destroyed by fire set out by the defendant. railway company ip the operation of its road, and the plaintiff paid to Murray the sum of $2910 .on account of his loss. His actual loss exceeded the insurance by $1439.40. The policy contained the usual clause giving the company the right of subrogation where the loss has been occasioned by the wrongful act of another. The plaintiff when it settled with Murray took from him a subrogation receipt which assigned to it all claims which he might have against the railway company to the extent of the insurance paid by the plaintiff. It was stated in the receipt that Murray had not at that time released the railway company from any liability on account of the loss. The insurance company promptly notified the railway company that it had paid Murray and had been subrogated to his rights in the amount paid, and demanded reimbursement. Subsequently, with full knowledge of these facts, the railway company made a settlement with Murray outside court and paid him the sum of $1000, taking a receipt in 'Settlement. This was done without the knowledge or consent of the insurance company. The plaintiff demanded that Murray prosecute this action in his own name or join in the prosecution thereof, but he refused on the ground that he had settled all claims he had against the railway company. The plaintiff then brought the action and joined Murray as a party defendant. The petition alleged the foregoing facts and stated that Murray was made a defendant in order that the railway company might be protected and the entiré matter litigated in one action. The petition also contained a statement that the only claim still existing against the defendant railway company on account of the loss was that held by the plaintiff by way of subrogation.
Murray filed a disclaimer in which he disclaimed all interest in any claim for damages against the railway company by reason of the facts alleged in the petition. The defendant railway company demurred to the petition and the court sustained the demurrer, and this is the ruling complained of in plaintiff’s appeal.
The defendant claims that plaintiff can not recover because no one but Murray himself can maintain the action since his loss exceeds the insurance. The defendant relies upon the rule as stated in Railroad Co. v. Insurance Co., 59 Kan. 432; 53 Pac. 459, where it was said:
“When the loss does exceed the amount of the insurance, so that payment under the insurance contract constitutes but a partial satisfaction of the damages sustained, leaving a residue to be made good by the wrongdoer, a question has arisen as to whether the action against the wrongdoer for the recovery of the portion paid by the insurer should be undertaken in the name of the insurer or of the assured. The tendency of the courts seems to be to hold the latter to be the only competent person to bring suit. This upon the theory that an action for damages for a tort is indivisible and can not be split up. 'In such cases the assured sustains toward the insurer the relation of trustee, in respect of such portion of the amount recovered as the former under his contract has been compelled to pay.” (p. 434.)
While that is the general rule, there are undoubtedly exceptions to it. The rule itself rests upon the right of the wrongdoer not to have the cause of action against him split up so that he is compelled to defend two actions for the same wrong. This is avoided by having the suit brought in the name of the insured who sues for himself and as trustee for the insurance company; but it would be manifestly contrary to right and justice to say that the arbitrary refusal of the insured to bring the action or to permit his name to be used as plaintiff could have the effect of depriving the insurance company of its right of subrogation or of all' remedy to enforce that right. The plaintiff has pursued the proper course in this situation by bringing the action in its own name and joining the insured as a defendant. This allows the whole controversy to be settled in one action, and whatever rights the insured may have against the railway company will be adjudicated and determined in one action.
The plaintiff has a right to maintain the action in this way under the provision of section 36 of the civil code, which reads:
“Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the reason being stated in the petition.”
This provision of the code is designed to take the place of the old common law precedure by which the action would have been brought in the name of the insured to the use of the insurance company.
In Insurance Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, on rehearing, 86 Kan. 374, 121 Pac. 488, it was said that the insurer “had three remedies to protect its rights, two before and one after the settlement was effected.” (p. 376.) There, the insurance company, having been notified of the pendency of the action, might have intervened therein, or it might have enjoined the pending settlement, “or the insurer might, after the settlement, have treated the settlement as void and have brought an action, in the name of the insured, against the railroad company for the amount it had paid the insured under its policy.” (p. 375.)
Aside from anything said in those opinions, however, this case may be decided on the provision of the code above quoted, and on the ground further that the insured could not deprive the insurer of its right to subrogation by his arbitrary refusal to have the suit brought in his name.
It was error to sustain the demurrer, and the cause will be remanded for further proceedings. | [
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The opinion of' the court was delivered by'
WEST, J.:
Plaintiff sued to recover a claimed balance of $187.04 for two cars of coal. The jury found in favor of the plaintiff, and the defendant appeals, alleging error in overruling a demurrer to the plaintiff’s evidence, in. refusing and giving certain instructions, and in overruling a motion for a new trial.
In March, 1912, J. W. Turner rented a coal yard of the defendant, Tompkins, purchasing coal of him in carload lots. The two cars in question, however, were bought of the plaintiff coal company to be paid for within ten days after delivery. It was delivered October 26, 1912, and unloaded into the yard, and a small portion of it sold by Turner. In the meantime Turner had become indebted to Tompkins, and on October 31 they entered into an agreement, which was reduced to writing November 7, by which Turner assigned and sold to Tompkins all the coal on hand and all outstanding bills and indebtedness, Turner to be credited on his account for the value of the coal. He also reserved thé right to collect the outstanding bills and accounts and receipt in the name of J. W. Turner & Company, and agreed to pay over to Tompkins all money collected and to report daily all collections made. He was to occupy the position of yard boss or foreman, with power to hire drivers and coal carriers and to solicit and build up the business'. Paragraph 6 of the contract was as follows:
“It is hereby agreed that all profits derived from said business shall be credited to the account of the party of the first part, including the claim of The Atlas Coal Company against the said J. W. Turner until said account shall be paid in full.”
Tompkins took possession under this agreement and Turner notified the agent of the plaintiff thereof. The agent came to the yard and saw the coal and claimed to take possession of it, but left it where it was. Tompkins continued the business under the contract for three months, during which time he offered the plaintiff’s agent $44 as the pro rata part of the profits, which was refused. Afterwards the plaintiff sued Turner on the account and garnished and collected a certain portion thereof, and Turner was given credit therefor. Tompkins was also made a defendant in that action. The bill of particulars therein stated that the coal was sold and delivered to Turner, and that on October 31,1912, Tompkins took charge of the coal yard and of the coal and “verbally and by implication by taking charge of said coal, promised the plaintiff to pay the said plaintiff therefor.” The agent testified in the trial hereof below, among other things, that when she came to take charge of the coal she notified Tompkins that it belonged to the plaintiff and that she would take possession of it, but that if he did not want it she would move it out of the yards, or sell it there; that Tompkins said to let it alone and if he took it he would take care of it and would pay for it, but to let the matter rest three or four days until he could come to an agreement with Turner whereby he could run the yards again; that he did not think she could take charge of the coal, and she left it there.
The only semblance of a written agreement on his part was a letter written November 15, 1912, in which Tompkins stated to the plaintiff company that he had finally obtained a contract from Turner under which the latter was to collect the outstanding debts due and account to Tompkins, and that he had succeeded in getting into the contract the provision that all the profits derived from the business were to be credited to the account of Turner, including the plaintiff’s claim.
Turner testified that after turning the yard over to Tompkins and notifying the plaintiff’s agent, Tompkins took charge of the coal, and sold it, except two tons which Turner had already sold; that he, Turner, had been dealing with the company for some time; that Tompkins took possession of the yards early in the morning of October 31 and plaintiff’s agent did not get over until about noon.
We have examined and reexamined the record and fail to find any evidence to support the plaintiff’s contention. It is beyond question that the coal was sold to Turner, and when it was so sold and delivered to him in the yards it became his property free from any lien on the part of the plaintiff. When thereafter he sold it to Tompkins under the written contract, by which it was agreed that the claim of the plaintiff should be paid out of the profits of the business, it became the property of Tompkins. The debt was Turner’s debt, and whatever statements Tompkins may have made regarding his intention to pay for the coal, there is no claim that he made any promise in writing, and there can be no claim that the plaintiff ceased to hold Turner liable in the face of the fact that he was sued on the same claim some time after the transactions in October.
We have examined the instructions refused and those given, and find no material error in the trial .court’s rulings in these respects. The jury seem to have become confused over the matter of verbal promises and do not seem to have understood that the title to the coal first passed to Turner and then to Tompkins.
It appears that the defendant has certain profits which could be applied on the claim sued on, and in order that full justice may be done the judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Porter, J.:
A petition for a rehearing has been filed in which it is insisted that in holding there was no evidence to justify an instruction permitting the jury to find that Power’s death was the result of an accident and that he did not understand the physical consequences of discharging a loaded revolver into his head, this court overlooked “the acts and appearance of Power immediately before the fatal shot was fired —that they indicated and unmistakably proved that he was insane.” That the court did not overlook any of the testimony is apparent from the statement in the opinion that “it may be conceded that he was insane when he shot himself, and that his act was the result of an irresistible and uncontrollable impulse.” (Power v. Modern Brotherhood, ante, pp. 487, 494, 158 Pac. 870.) Counsel possibly overlooked the grounds stated in the opinion for holding that it was error to permit the jury on pure speculation to find that Power’s death was the result of an accident. There was no evidence of any kind warranting such an instruction or such a finding. The policy was to be void if the insured’s death resulted from “suicide, sane or insane.” Therefore, unless the court shall make an entirely new and different contract to govern the rights of the parties, it seems clear that death by suicide must avoid the policy notwithstanding the jury find that because of his insanity and mental derangement the insured was not responsible for his acts.
It is insisted that the court overlooked the testimony of two physicians who were called as experts, and who, in answer to a hypothetical, question purporting to detail all the facts, in evidence, said that in their opinion Power was not conscious of what the physical result of his act in discharging the revolver would be. The court did not overlook the testimony. It must be obvious that these statements of so-called experts were without any probative force whatever, because there was no fact or circumstance stated in the hypothetical question and based upon evidence that could, in the nature of things, support the statements of the physicians. All that the physicians knew was that the deceased quarreled with his wife, cursed her, and flourished a revolver in her face; said that he intended to kill himself with that weapon; kissed his child and told her that she would not have a father any longer; disregarded the efforts of his aged mother to get him to give her the weapon; rushed into the house, locked the door, and immediately thereafter shot himself through the head with the revolver. Every one who knew anything about the facts understood that he had committed suicide. His acts, conduct and appearance immediately before the fatal shot was fired, the history of his physical health for years prior to the occurrence, and his domestic relations were known and stated to the physicians. The same witnesses could with equal propriety and equal probative force give their opinion that any man who threatens to kill himself with a revolver does not, because of his mental derangement, understand what the physical results will be when he shoots himself with such a weapon.
We are asked to reexamine the case of Cady v. Fidelity & C. Co., 134 Wis. 322, 113 N. W. 967, 17 L. R. A., n. s., 260. Inas much as we quoted very largely from the opinion in that case it will not be necessary to reconsider it. Besides, the Wisconsin case, as stated in the former opinion, has no direct bearing on the present case because of the undisputed facts which show that Power committed suicide. The former opinion did not attempt to weigh the authorities upon the question whether a clause in an insurance policy such as the one under consideration applies, even though the insured was unconscious of the physical nature and consequences of his act, although it was said that the author of a note to the Cady case, swpra, in 17 L. R. A., n. s., 260, 270, declares that a clear majority of the cases which had occasion directly to decide the point have so held. We expressly stated that it would not be necessary to decide that question at this time, for the reason that the undisputed facts showed that deceased’s death resulted from his intentional suicide, and therefore the present case is controlled by the law as declared in Hart v. Modern Woodmen, 60 Kan. 678, 57 Pac. 936, 72 Am. St. Rep. 380. It was endeavored in the former opinion to explain that there was no difference in principle between the two cases, notwithstanding the facts were admitted in the Hart case.
It seems that the plaintiff signed two written statements relating to the manner of her husband’s death; one a formal proof of loss stating suicide as the cause, and another signed, as we gathered from the abstract, before the same notary public. We inadvertently referred to them as the proof of loss. The mistake is of no consequence, because, as stated, there is no substantial ground for dispute as to the manner in which Power’s death occurred as appears from the wife’s testimony. Where the opinion states that a demurrer might have been sustained to the evidence, it should have stated that at the conclusion of all the evidence the court might have directed a verdict.
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The opinion of the court was delivered by
West, J,:
The defendant appeals from a judgment of conviction on the charge of embezzling seven hundred and thirty-five bushels of wheat, of the value of $1075. The twenty-six assignments of error cover many points not necessary to discuss.
The defendant began the operation of a mill and elevator, and in the summer of 1914 numerous farmers stored their wheat with him. Among these was A. W. Mentze, who put seven hundred and thirty-five bushels into the elevator and took a receipt:
“Ree’d of Mr. A. W. Mentze, 628 bu. test 77# [57#] and 107.05 at test 59# for storage at the rate of one-half cent per bn. per month, and if sold to the mill there is no charge.”
The defendant claims to have purchased this wheat, but the prosecuting witness testified:
“It was left between me and Mr. Wales whether we could agree on the price and sell to him, or whether he was to load it out for me on cars. If it was not loaded I was not to haul it out in wagons, but he was to load it in cars. It was no sale at all.”
In the following January Mentze talked to Wales about buying the wheat, and was told by him that Wales had a deal on hand and to wait a few days, to which Mentze assented. When the wheat was stored it was worth about ninety cents, and at the time of this conversation it was worth from $1.25 to $1.30. Afterwards Mentze tendered the storage, which tender was refused.
From all the evidence the jury were justified in believing that the wheat was stored and not sold to the defendant, that he became involved, that a company was incorporated to which he sold the mill, taking certain shares of stock, that the wheat in storage was ground up, and afterwards a proceeding in bankruptcy was had respecting the company. The case was carefully tried and the instructions, while unnecessarily prolix, carefully stated the law and were fair to the defendant except that as the fact and not the amount of the alleged embezzlement was in dispute it would have been better to omit the repeated mention of petty larceny. >
We find no material error touching any of the rulings of the trial court except as to the rejection of certain items of evidence. One of the reasons why Wales claims to have become involved was that he had to wait some time for the proceeds of a shipment of wheat to New York, but after he had gone east to make the collection and succeeded with considerable expense he put the proceeds into the business. Afterwards the contract known as “Exhibit 1” was prepared by the company’s counsel, which was in substance that the milling company, being indebted from $15,000 to $20,000 to certain named persons and being insolvent by reason of such indebtedness, such persons were to buy the assets of the company for $16,000 provided this would liquidate its debts. It was proposed to pay the creditors $10,700 whenever all the creditors who signed the agreement should agree to release the company in full for their pro rata share of that sum. Further, that as the exact amount of indebtedness was unknown it was agreed that $9200 was to be disbursed immediately upon the execution of the contract by the known creditors and the balance held for six months and then disbursed. This instrument was signed by numerous persons, including the prosecuting witness, and bore date of February 12, 1915, the embezzlement being charged as committed on or about February 8, 1915. This was offered in evidence, and an objection thereto was sustained and of this the defendant complains. It was also offered to show that about the latter part of January, 1915, the company entered into negotiations with Mr. J. C. Elvin relative to making an assignment of the mill property to him on condition that he pay for all the wheat which had been delivered to the milling company by farmers to be paid for at a future date, including that of Mr. Mentze and all other claims against the milling .corporation. This offer was rejected. The theory on which this evidence was offered was that the prosecuting witness by signing the contract recognized Wales as his creditor rather than his warehouseman, that instead of harboring a design to commit the crime of embezzlement Wales was honestly endeavoring to arrange for the protection of the prosecuting witness and payment to him for the wheat. The transactions with ■two other farmers, one at about the same time and the other rafter the company had been incorporated, were, permitted to be shown by the state under the familiar rule that evidence of similar transactions is competent on the question of intent. The entire history of the mill venture by the defendant indicates a series of attempts to put it in the attitude of a going concern, and we think under all the circumstances the defendant had a right to the benefit of the evidence now under con sideration, both for the purpose of giving the jury all the facts concerning the claimed relations of bailee and purchaser, and for the purpose of showing the intent which actuated the defendant. While the defendant was permitted to state at some length what “Exhibit 1” was, the document itself was not received in evidence, and hence all the jury had was his somewhat partial description of it. The defendant’s offer to show that the company was, by its president, thrown into bankruptcy while he was absent in Oklahoma City, was rejected, neither was he permitted to show that he received nothing in return for the eighteen or nineteen thousand dollars which he put into the property. His offer to show that he paid a great number of depositors at the mill who had received the same sort of certificates as that given the prosecuting witness and that they were paid in cash on the dates appearing thereon and upon demand of the holders, was likewise refused.
The crime with which the defendant was charged being ope involving moral turpitude and wrongful intent, and there being a square conflict between the prosecuting witness and the defendant as to the nature of the storage transaction, all of these matters should have been received in evidence in order that the jury might have fully understood the entire situation.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, upon the death of her mother, inherited a one-sixth interest in the land in controversy. She brought two actions, one to recover damages for an alleged malicious, forcible entry and dispossession and conversion of her personal property found in the house on the premises, and the other to have her one-sixth interest in the land adjudicated. The two actions were consolidated. The answers, in brief, denied the allegations of the petition, alleged ownership of a five-sixths interest by purchase from the other heirs, set up a tax deed for the entire tract, and a peaceable entry upon the premises, which were alleged to have been vacant and unoccupied, also expenditure of considerable sums for improvements and repairs, and prayed for partition. The trial resulted in a verdict for the plaintiff for $550, with special findings to the effect that possession was taken without the assent of the plaintiff, and wantonly, maliciously “and in disregard of her right thereto”; that she was actually damaged $150; that her punitive damages were $400; that the defendant had paid $66.73 taxes; and "the plaintiff was allowed $75 attorneys’ fee. The plaintiff remitted the attorneys’ fee, $50 of the actual damages and $250 of the punitive damages. Judgment was entered for $100 actual and $150 punitive damages, and for $17.30, one-sixth of the rental value while the premises were occupied by the defendant, to which one-sixth of the taxes paid by him were adjudged an.off set. The plaintiff was decreed the owner of an undivided one-sixth interest, and partition was ordered. Defendant Haney appeals and assigns six errors, which will be considered in their order.
First, instructing that the tax deed was void on its face and conveyed no title and gave the holder a right only to a return of the taxes. The jury were not instructed that the deed was void on its face, but that it was void for irregularities and gave a claim for taxes. The court, however, held the deed void on its face for the reason that it recited a consideration" of $6.75 more than the county was entitled to receive. Counsel for the defendants has made a computation, from which he concludes that the excess amounted to only fifteen cents. The deed had not been recorded five years, and even if valid upon its face it would not, as the jury were properly instructed, au-. thorize a forcible taking of possession.
Second, holding substantially that rightful possession could be taken only after the tax deed was set aside for irregularities. What the court did instruct was that the tax deed, being void for irregularities, gave an enforceable claim for taxes', but no right, to take forcible possession and oust the occupant. In this there was no error.
Third, instructing the jury that they could find a specific amount as attorneys’ fees to plaintiff. This was error. (Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86; Winkler v. Bank, 89 Kan. 279, 281, 131 Pac. 597.) But as this allowance was all remitted, the error was thereby rendered harmless.
Fourth, two witnesses who testified as to their opinion of the value of the land in question, one of them that it was worth from eleven hundred to twelve hundred dollars and the other from ten hundred and fifty to eleven hundred dollars, were appointed commissioners in partition, and with the third returned an appraisement of $750. It is contended that it was error to ap-, point these witnesses commissioners. It would seem that commissioners should be impartial and unbiased when they go forth to ascertain and report to the court the value of the land in question, and that if they have a fixed opinion as to such value, which opinion they have given under oath, they can hardly be deemed qualified for the performance of such duty. (Civ. Code, §§ 640, 641.) But the statute prescribes no qualifications, and as no damage is shown to have arisen and no prejudice to have resulted, no material error is affirmatively shown with respect to this assignment.
Fifth, error in instructing that the evidence showed that defendant James Haney was owner of the five-sixths interest by deed executed since the doing of the acts complained of by plaintiff. His quitclaim deed was dated October 4, 1913, and filed'for record October 8, 1913, “while the doings of the acts complained of” were alleged to have been on October 20, 1913, and as scarcely any of the evidence is brought up we assume that this date is substantially correct. It is argued that this instruction of necessity prejudiced the defendant in the eyes of the jury for the reason that if his tax deed was void he was a mere trespasser. It does not appear, however, and we can not conclude from anything in tlie record, that this mistake in dates was of such force and prominence as to mislead the jury, the opportunity being ample to explain the matter fully in the argument of the case by reference to the dates shown by the evidence.
Sixth, and last, that the verdict was returned by the jury while under the influence of prejudice and passion. Centering upon this point, counsel directs our attention to the error respecting the allowance of an attorneys’ fee, and what is termed the grossly excessive value of the property given by the two witnesses who were afterwards appointed commissioners, “and which they themselves impeached by their report that it was worth only about three-fifths of what they told the jury it was worth”; and the influence upon £he jury of the instruction that the five-sixths interest was acquired after and not before the taking possession. Also that the act of the plaintiff in remitting $375 out of a total award of $625 amounted to an admission of prejudice and passion. As none of the evidence touching the value of the property alleged to have been con-, verted, the damages otherwise sustained by the plaintiff or the conduct of the defendant is before us, it is impossible to know' what basis existed for either the award or for the remittitur. The mere fact that a material portion of the sum allowed was Voluntarily remitted can hardly be held a confession of prejudice, otherwise the orders now and then made by this court to grant a new trial unless a certain sum be remitted would indicate that the court deemed the verdicts in such cases inspired by passion and prejudice, whereas, if such were the view this court would in all such cases order a new trial peremptorily and unconditionally. A remittitur is proper only in the absence of passion and prejudice. (Yard v. Gibbons, 95 Kan. 802, 814, 149 Pac. 422, and cases cited.)
Finding no material error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
George B. Allen was charged with murder in the first degree, in killing Alfred Tucker ón the .5th day of October, 1914, in Meade county. He was found guilty of murder in the second degree. The verdict was approved by the trial court, and from the judgment of conviction he appeals.
Alfred Tucker had been employed on the defendant’s ranch, in Meade county, from the spring of 1912 till the latter part of August, 1913, 'when he was discharged or left the employ of defendant and went to Clark county where he worked at different places near Englewood. While living at the ranch he became acquainted with defendant’s daughter, Tina Allen, who was then about sixteen years of age. After he went to Clark county he and Tina Allen corresponded at frequent and regular intervals, the correspondence indicating that their friendship had ripened into a strong attachment. The letters received by the deceased from Tina Allen were preserved by him and were found among his effects; some of them were offered in evidence.
The day before the homicide Alfred Tucker had assisted in driving a bunch of horses from Englewood to a farm near Meade. He had received a letter from Tina Allen in which she agreed to meet him at the railroad bridge on the afternoon of October 5. The appointment was carried out. The place where they met is about a mile from the city of Meade, and on or close by a much-traveled public highway. They were seen there in conversation by a number of passers-by, among whom was Con Wasson, who waved his hand and called to them, and they returned his salute. He went into town and told his brother, Glen Wasson, that he had seen Tucker and Tina Allen out by the railroad bridge. At this time the defendant was cutting feed for Glen Wasson at a place east of Meade, and about three-quarters of a mile from the railroad bridge. Glen Wasson went to the field where Allen was and informed him that his daughter and Tucker were out by the railroad bridge, that they had their horse tied out where everybody could see it, and said that he did not think it looked well for a young lady to be out there with a young man. There was testimony to the effect that Allen became very angry, turned white and said he would kill Tucker, referring to him by a vile name, and that he at once got down from his binder, left it standing in the field, secured his horse and buggy and drove away. Although he was then about a mile southeast of the railroad bridge, he drove east a distance of one mile, turned north and drove one mile where he crossed the public highway running east and west which passed within a short distance of the railroad bridge where his daughter and Tucker were. He did not take this east-and-west road, but drove another mile north where he turned west, continuing for two miles, and then south along a private road to his residence about a quarter of a mile distant. There he requested one of his employees to water his horse, and to tie it in front of the house. He secured two guns, one of them a .38 caliber Winchester rifle, loaded them and put them in his buggy. He was at this time about three quarters of a mile north of the railroad bridge. He first went to the portico of his house and looked down in the direction of the bridge to see if he could discover his daughter and Tucker. He then got into his buggy and drove back north to the public road, then west and south almost three miles, crossed the railroad track and turned east along the public highway close by the railroad track.
From where he turned east to the bridge a person traveling on the highway is concealed from the view of a person on the opposite side of the railroad, because of the high embankment. The testimony offered by the state showed that Alfred Tucker was killed by a .38 caliber rifle bullet which entered his back six inches below the point of his left shoulder and came out on the opposite side. The testimony of the state tended also to show that the defendant approached the deceased under concealment of the embankment until he reached a point under the bridge, and from that position fired the shot which resulted in Tucker’s death. Immediately after the homicide he returned to Meade and informed the coroner that there was a man down by the railroad bridge who was injured and he requested the coroner and another person to go out there. These persons went immediately to the place and found Tucker’s body lying in the roadway a distance of 128 feet from the center of the bridge. The evidence showed that death had been instantaneous. There was found in a pocket of the deceased the letter from Tina Allen making the appointment to meet him there. No weapons of any kind were found on or about the body.
The defense was justifiable homicide; the killing was not denied, but the defendant contended first, that the homicide was committed in self-defense, and secondly, to prevent the commission of a felonious assault upon his daughter. The defendant testified that in August, 1913, he had discharged the deceased from his employ because of having learned first from another employee, and subsequently from his daughter, that Tucker had attempted to ravish his daughter; that after the deceased had left his employ a friend had informed him that Tucker had said in substance that defendant had driven him off, but he was coming back whenever he got good and ready, and that if the defendant stuck his nose in his business the defendant would have to shoot quicker than he did. The de fendant further testified that when he reached the railroad bridge he got out of his buggy, took the rifle and went under the bridge; that he saw Tina in the buggy and Tucker standing by the side of it; that Tucker appeared to be trying to pull Tina from the buggy; that one arm was on her shoulder or neck and the other in the region of her knees, and she was pushing back; that he tried to call out to them, but choked and could not speak; that just at this instant Tucker turned his face toward the defendant and defendant saw an expression that was beastly and startled, and that Tucker’s right hand dropped towards his hip, and the defendant immediately fired one shot. As before stated, the testimony showed that no weapon was found on the body of the deceased or near it.
The principal witness for the defendant in support of the other theory was the daughter, Tina Allen, who testified to an alleged assault made upon her in the year 1913 by Alfred Tucker, and that she communicated the fact to her father. One of the main contentions in the case arises from the admission on her cross-examination of certain letters written by her to Alfred Tucker covering a period of more than a year after the deceased had left her father’s employ." The sole purpose of the introduction of the letters was to affect her credibility as a witness. She testified that she had destroyed the letters received by her from Tucker, but she identified the letters to him shown to her on cross-examination, and admitted they were hers. She had testified that she bitterly hated the deceased because of the assault he had committed upon her, that she never had wanted to see him again, and would not have wanted to speak to him if she had met him. It is contended that the court erred in admittng these letters in evidence. Only portions of them were read to the jury and the court instructed that they were admitted for the purpose only of affecting the credibility of the witness. Their admission was eminently proper. The letters were filled with expressions of friendship and endearment, and tended strongly to impeach the statement «of the witness that the deceased had committed an assault upon her as she testified or that there had ever been any ill-feeling between them. It may be said of the letters, too, that they are not in any way discreditable to the young lady. While they abound in expressions of affection and endearment and of good humor and friendship, they contain no suggestion of anything improper, and are on the contrary consistent with the purest kind of friendship and love for the deceased. Inasmuch as the defense of justifiable homicide was grounded to> a very large extent upon the testimony of the daughter, the-jury might well have believed that her story on the witness stand in relation to the alleged misconduct of the deceased toward her was fabricated for the purpose of the defense. She had testified that just before she heard the report of the-gun the deceased was trying to pull her out of the buggy and she was holding back so that he could not; that one of his hands was around her shoulder and neck and the other around her ankles. A day or two after the homicide she made the following written statement:
“I met Alfred Tucker down near the railroad bridge by appointment a little after three o’clock Monday afternon, October 5, 1914, some tima between four and five o’clock to the best of my judgment. I was sitting in the buggy north of the railroad bridge about where the creek bed is. Alfred was standing on the east side of the buggy, one hand, his left, hand, on the back of the buggy, or it may have been on my shoulder, talking. The other hand rested on the buggy bed. The buggy was facing the-northeast. I heard a shot and Alfred fell. I looked and saw my father-standing under the railroad bridge. He called to me to come to him and. I did. His horse and buggy were standing in the road south of the bridge, facing the east. Father got in the buggy with me and we drove to town, his horse following. Alfred had not mistreated me in any way that day nor attempted to mistreat me, but he had before when he was working for father some time in August, 1913.”
The foregoing statement was made at her home in the presence of the county attorney, his deputy and Mrs. Lucy Bunch, and at a time when Tina’s father was in jail. It has been, repeatedly held that on the cross-examination of a witness whose testimony may be affected by friendship or enmity toward either party, great latitude of cross-examination is permissible. As a general rule, the party against whom a witness is produced has a right to show everything which may in the slightest degree affect his credibility. (The State v. Collins, 33 Kan. 77, 5 Pac. 368.) The extent to which a witness may be cross-examined on collateral and irrelevant matters rests in. the sound discretion of the trial court. (The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406.) There was no abuse of discretion here. The letters written to the deceased and the written statement to the county attorney were admissible on cross-examination for the purpose of discrediting the story told by the daughter.
Obviously the jury were not impressed with the story of the daughter to the effect that the deceased either had been before the defendant arrived upon the scene, or was at the time defendant fired the shot, attempting to commit a criminal assault. The correspondence between the parties, and all the circumstances, rendered her story highly improbable. The prearranged lovers’ meeting at a place on or near a much-traveled highway, the length of time they were at the bridge, which must have been considerably more than an hour, because the young lady testified that she left school at Meade at three o’clock and at once drove to the place, and the evidence, indicate that the defendant came to the place of the homicide between four and five o’clock; all these facts and circumstances and the friendly correspondence between the daughter and the deceased were undoubtedly given weight by the jury. The jury doubtless took into consideration the fact that the defendant could have gone to the place where he was informed his daughter and Tucker were by traveling a distance of less than one mile, and that instead of doing this he drove to his home by a circuitous route, secured and loaded his rifle, and that there, he was less than three-quarters of a mile from the place where Tucker and Tina were, but instead of traveling that distance he deliberately drove the remainder of the more than nine-mile circuit for the purpose of concealing his approach and enabling him to come within shooting distance of Tucker without the latter’s knowledge. The claim that he shot in self-defense under the impression that Tucker was about to shoot him wa3 contradicted- by the location of the wound, the circumstances testified to by his daughter at the trial to the effect that Tucker was standing with his back toward the bridge, as well as by the written statement made by the daughter to the county attorney, which was that Tucker was standing with his right hand resting on the buggy bed when she heard the crack of the rifle.
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.
It is complained that the information does not charge a public offense. There was no motion to quash, but the point was raised by an objection to the introduction of testimony. The information charges that the defendant “did then and there unlawfully, feloniously, wilfully, deliberately, with premeditation and with malice aforethought and with a deadly weapon, to wit, a gun, then and there loaded with powder and ball, shoot at one Alfred Tucker, and did then and there with the deadly weapon aforesaid, and in the manner and with the weapon aforesaid shoot and kill him, the said Alfred Tucker, contrary to the 'form of the statute in. such case made and provided, and against the peace and dignity of the state of Kansas.” It is insisted that the information does not charge that the killing was done purposely and maliciously. We think that by a fair construction of the language used the information charges that the killing was unlawful, felonious, willful, deliberate, premeditated and with malice. The omission to repeat the words purposely and maliciously in describing the act of shooting and killing might have been regarded as fatal when courts were more concerned in the intricate search in all criminal reviews for technical grounds of reversal, but much progress has been made in recent years in the way of disregarding such technicalities. Section 110 of the criminal code expressly forbids us to quash or set aside an indictment or information for certain defects, among which is enumerated: “Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits,” and section 293 of the criminal code declares that “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.” It would lengthen this opinion unnecessarily to attempt to cite all the cases in which the foregoing provisions have been applied and judgments of conviction affirmed. Under section 110, supra, may be cited Fort Scott v. Dunkerton, 78 Kan. 189, 192, 96 Pac. 50; The State v. Bland, 91 Kan. 160, 164, 136 Pac. 947; and under section 293 may be cited the recent case of The State v. Marshall, 95 Kan. 628, 632, 148 Pac. 675.
Over the objections of defendant the court permitted the county attorney to indorse the names of three witnesses upon the information immediately before the trial. The usual complaint is made that this was error. The whole record discloses that defendant was not prejudiced in the slightest by the indorsement of these names. The two Carliles testified to matters which the defendant admitted and about which there was no dispute. J. D. Tucker, the father of the deceased, testified to a few matters of no special importance.
We find no error in the rulings sustaining objections to questions asked on cross-examination of witness J. D. Tucker. The objections were properly sustained. There was ground to sustain them because the questions were not proper cross-examination and related to incidents which could only have occurred long prior to the homicide while deceased was living in another state.
Willard Tucker was permitted to testify that deceased came with him and helped drive the horses from Englewood to Meade county. There was no error in permitting the state to offer this testimony to rebut the suggestion that deceased was there only for immoral or other unlawful purposes.
A number of objections have been made' as to testimony of certain other witnesses as to facts which the defendant himself admitted, but there could not have been any prejudice resulting from the admission of the testimony.
It is contended that the venue was not proved, but the coroner testified that the body was found in Meade county.
Complaint is made of the exclusion of certain testimony offered for the purpose of showing the general reputation of deceased in the community where he formerly resided in Louisiana, as to his being immoral and unchaste, and also to show that he had contracted there a common-law marriage with one Mary Moncrieff and that a child had been born of such marriage. When an objection to this character of testimony was sustained, an offer was made to show that information of deceased’s former reputation in Louisiana and of the facts in reference to his relations with Mary Moncrieff had been communicated to the defendant prior to the homicide. An affidavit in behalf of defendant filed in support of an application for a continuance of the cause is made a part of the record and shows that the information respecting these matters did not in fact reach the defendant until after the homicide. In determining, therefore, whether defendant was prejudiced by the ruling we may disregard the offer to show that he had the information prior to October 5, 1914. Some of the testimony was excluded because it violates the rule that reputation and character can not be shown by evidence of specific acts of wrongdoing; and we think it was all irrelevant because it tended in no way to establish a defense, nor to affect the situation, condition or appearances at the time the act of homicide was committed.
We discover no error in the instructions. Counsel for defendant requested the court not to submit any instructions except upon the law of murder in the first degree. Of its own motion the court, however, instructed upon the law of murder in the first and second degrees, and, as stated, the jury returned a verdict of murder in the second degree. It was urged on the motion for a new trial, and is insisted upon here, that the court erred in failing to instruct on the degrees of manslaughter, assault with intent to kill, and other degrees of assault. The defendant was represented by able counsel and ought to be held bound by the solemn request made by them in his behalf as to the instruction of degrees of the crime unless it can be said that it was the manifest duty of the court under the evidence to instruct upon the lesser degrees. We think the evidence shows beyond question that the defendant was guilty of murder in the first or second degree, or that he was innocent. His own testimony takes out of the ease the question of manslaughter, because it shows that the killing was intentional, and done either .in self-defense or in defense of his daughter. In some respects the case is similar to that of The State v. Yarborough, 39 Kan. 581, 18 Pac. 474, where it was held that the defendant was not prejudiced by a failure to instruct as to the several degrees of manslaughter, in view of the evidence which showed “so much thought, contrivance and design were betrayed by the defendant in the mode of possessing himself of the revolver with which he killed the deceased; and so much deliberation and express malice on the part of the defendant was established.” (p. 596.) In that case the trial court was requested, and refused, to instruct upon the law of manslaughter. No instruction upon the law of manslaughter was asked in this case, but on the contrary defendant’s counsel requested the court not to so instruct.
In the case of The State v. Newton, 74 Kan. 561, 87 Pac. 757, it is recognized to be “the duty of the trial court to define and instruct in reference to all lower degrees of the crime of which there is any reasonable theory of guilt under the evidence.” (Syl. ¶,2.) In that case the court had instructed as to the only degree which the evidence naturally suggested as probable, and the jury returned a verdict of guilty in that degree; the verdict was abundantly supported by the evidence, and it was held not to be “reversible error for the court to omit to define any lower degree of the crime or to instruct in reference to it unless its attention is challenged thereto by a request for such instruction.” (Syl. ¶ 3.)
In The State v. Curtis, 93 Kan. 743, 145 Pac. 858, it was said:
“But where the evidence shows beyond question that a defendant is either guilty of murder in the first degree or innocent, it is unnecessary upon the general charge of murder in the first degree to instruct the jury upon any other degree.” (p. .745.)
(See, also, The State v. McAnarney, 70 Kan. 679, 685, 79 Pac. 137.)
It is always the rule that the evidence must be looked to, to determine whether instructions should be given as to the lesser degrees. We find nothing in the present case calling for such an instruction even though it had been requested.
It is Qomplained that in a number of instances the trial court unduly restricted the defendant’s right of cross-examination, but we are unable to discover any ground for this contention. The extent to which cross-examination shall be allowed depends always on the circumstances of the case and rests largely in the discretion of the trial court. (The State v. Ross, 77 Kan. 341, 346, 94 Pac. 270, and cases cited.) We have no hesitation in saying that the trial court did not abuse its discretion in the present case in any of the instances complained of.
We discover no error which would justify us in reversing the judgment of the trial court and accordingly that judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This is a third appeal. The nature of the controversy is sufficiently indicated in the former opinions, which dealt with the pleadings. (Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; Hutchings v. Railway Co., 84 Kan. 479, 114 Pac. 1077.) The case has been tried on its merits and judgment has been rendered in favor of the plaintiff. The defendant appeals. The principal contention is that the bills of lading which are the foundation of the action are void under federal statutes which govern the rights of the parties.
The defendant filed a general demurrer to the plaintiff’s petition, which was overruled. On the first appeal, which was taken by the defendant, it was argued that the demurrer should have been sustained. No suggestion was made to the court that the case was governed by federal law, and this court adj udged that the demurrer was properly overruled. In its answer the defendant expressly pleaded that the bills of lading were made in the state of Missouri, were Missouri transactions, and were gov erned by the law of Missouri. The statutes of the state of Missouri were set out, decisions of the Missouri courts construing the statutes were cited, and it was expressly alleged that the law of Missouri governed the rights and duties of the parties to the- action. On the first appeal this answer was held to be good against the plaintiff’s demurrer. The plaintiff replied, setting out the decisions of the courts of Missouri bearing on the subject. The defendant demurred to the reply. On the second appeal it was determined that the question raised was presented in such form that it became one of law for the court and not one of fact for a jury, and the law of the state of Missouri was declared. On these pleadings the case went to trial.. A jury was waived, and at the beginning of the trial the following stipulation was made:
“Any decision of «the Supreme Court of Missouri, or of any appellate court of Missouri, which any counsel in the case may call to the attention of the court or the Supreme Court of Kansas, or any other court, may be construed as having been offered in evidence; that the Constitution of the State of Missouri and its amendment creating the Kansas City Court of Appeals, and the St. Louis Court of Appeals, and the statutes creating the Springfield Court of Appeals, may be regarded as having been offered in evidence.”
The plaintiff offered the bills of lading in evidence. The defendant objected on the ground the bills of lading were void under the laws of the state of Missouri and under the interstate commerce laws. The objection was overruled, and the record is barren of any other suggestion that the interstate commerce laws applied. On its side of the case the defendant offered in evidence the statutes of the state of Missouri which it had pleaded.
Having appealed from the judgment of the district court overruling the demurrer to the petition, and having kept silent then with respect to the application of the federal law, the action of'this court is an adjudication of the law of the case, binding on the defendant. The defendant can not be allowed to settle the law of the case piecemeal any more than it can be allowed to settle the facts in that way. (Estes v. Zinc Co., 97 Kan. 774, 156 Pac. 758.) Besides this, the defendant chose to defend the action on the express ground, pleaded in extenso, that the bills of lading were governed by the law of the state of Missouri and that the rights and duties of the parties in respect to the mat ters complained of in the petition were defined by the Missouri law. The defendant presented this subject to this court on the' first appeal and procured the following adjudication in its-favor:
“In an action against a common carrier based upon bills of lading, involving no question with respect to the right of the carrier to limit its common-law liability, the rights and obligations of the parties are to be determined by the law of the place where the contract was made.
“In an action against a common carrier to recover moneys advanced on the faith of bills of lading issued by the agents' of the carrier without the actual receipt of the property, an answer which alleges that the bills were executed and delivered in the state of Missouri, that when they' were issued the statutes of that state made it unlawful for a common carrier to issue bills of lading without the actual receipt of the property,, and that the supreme court of Missouri has held and still holds, in construing the statute, that all such bills of lading are absolutely void and that no action can be maintained thereon by any holder or assignee, states a good defense as against a demurrer.” (Railway Co. v. Hutchings, 78 Kan. 758, syl. ¶¶ 3, 4, 99 Pac. 230.)
This adjudication was binding on ti^e defendant and on the trial court, and the defendant could not at the subsequent trial,without asking permission to change the issue and while still asserting that the Missouri law -governed, shift its defense to some other law. Having been defeated on the theory of the litigation which it proposed and which it induced this court to.' accept, the defendant is in no position to ask this court to adopt a new theory according to which the propriety of the judgment shall be tested. It is estopped by its pleading and by the adjudications of this court in its favor based on that pleading.
There is nothing else of consequence in the case. The law of Missouri was determined on the second appeal, and that adjudication became the law of . the case. Some Missouri decisions later than those considered on the second appeal are cited. If they were conclusive this court might consider the subject of modifying its former opinion, but they are not so,- and the views there expressed are adhered to.
It was decided on the first appeal that the action was not barred by limitation, and nothing contained in the abstract indicates that the ruling was wrong or that the plaintiff lost its remedy through laches, which was not pleaded, or lack of diligence.
The proof was ample that the bills of lading were issued by the authority of an officer for whose conduct the defendant must answer.
The provision in each bill of lading, that in case' of loss or damage sustained by the property receipted for liability should be computed on the basis of the value of the property at the time and place of shipment, has no application. There was no loss or damage sustained by any property receipted for or any shipment of property at any time when or place where value could be assessed. There was no wheat shipped, or to be shipped, or lost, or damaged.
The contract was to deliver wheat to the plaintiff at Galveston. The breach consisted in nondelivery at Galveston, and the plaintiff’s loss consisted in its advancements, such advancements being less than what the property itself would have been worth to the plaintiff at Galveston. Adopting the plaintiff’s theory, however, the judgment may be sustained by applying payments received to the unsecured portion of the plaintiff’s claim, as the law authorized the plaintiff to do and as the law would do in the absence of application by either debtor or creditor. (Crane v. Terminal Railway Co., post.)
The plaintiff’s loss was due at once and was readily determinable by computation, and consequently interest was properly allowed.
Other contentions of the defendant are without substantial foundation and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was- brought against the city of Salina, under the workmen’s compensation act, by William Knoll, who sustained an injury while employed in cleaning the streets of the city. He alleged in his petition that the injury which was suffered on October 6, 1914, was permanent in its nature and had incapacitated him from performing manual or physical labor of any kind. He stated that for more than thirty days preceding the injury he had been receiving $8.50 per day for his work. From the averments of the petition it appears that no written notice of the injury was given to the city until August 16, 1915, when the plaintiff sent a letter through the postoffice, giving notice of his injury; but he alleged that he spoke to the city clerk and the street commissioner about the injury within seven days after it was sustained.- He further stated that a number of times within a period of three months after the injury he made oral demands upon the city for compensation, which the city refused. The petition contained the further statement that the city had not been prejudiced by the failure of the plaintiff to give written notice of the injury within ten days after it occurred. The city challenged the sufficiency of the petition, contending that the plaintiff had failed not only to give written notice of the injury within ten days but also failed to make written demand within a period of three months, as the workmen’s compensation act requires. Another ground of attack on the petition, was that it did not show that an itemized and verified claim with a full account of the items had been-presented to the city before the action was brought, as another section of the statute provides. The demurrer to the petition was overruled and the city appeals. Upon a motion to dismiss the appeal because it presents no substantial error the parties have submitted briefs and full arguments upon the motion and also upon the merits of the appeal, and therefore all of the questions involved in the case will be considered and determined at this time.
The first point is the failure of the employee to give written notice of the accident within ten days after it occurred. This omission is met by an averment in the petition that the city had actual notice of the accident within seven days after it happened and had not suffered any prejudice by the lack of aJ written notice. The want of, or any defect in a notice or in its service is no bar to a recovery of compensation unless such lack or defect operates to the prejudice of the employer. (Laws 1913, ch. 216, § 6; Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413; Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530.)
The second point in the appeal is the omission of an allegation that compensation was demanded in writing within three months after the injury was sustained. The plaintiff al leged that an oral demand was made of the city for compensation several times within three months after the occurrence of the accident, but that the demand had been refused. An oral demand is enough to meet the requirements of the compensation act. (Laws 1913, ch. 216, § 6.)
In Gailey v. Manufacturing Co., ante, p. 53, 157 Pac. 431, it was held that “under the workmen’s compensation act, any .statement, oral or written, made within the proper time, by which the injured employee makes it known to his employer that he is claiming compensation, is sufficient to comply with the statute.” (Syl. ¶ 3.)
A further ground of demurrer was that the plaintiff had not complied with the statute which provides that all claims against a city of the second class “must be presented in writing, with a full account of the items, and verified by the oath of the claimant or his agent that the same is correct, reasonable and just; and no claim or demand shall be audited or allowed unless presented and verified as provided for in this section,” etc.’ (Gen. Stat. 1909,'§ 1414.) The provision applies to claims and demands of every kind made against a city of the second class. It was not repealed or modified by the provisions of the compensation act providing for demands to be made in a certain manner and within fixed times. City officers are not permitted to audit or allow a demand for compensation of an injured employee any more than any other demand unless compliance is made with this superadded requirement. However, the penalty for failing to present a written demand duly itemized and verified is that no costs can be recovered from the city in an action brought upon the demand. In a proviso of the section relating to the demand it is provided:
“No costs shall be recovered against such city in any action brought against it for any unliquidated claim, which has not been presented to the city council to be audited, nor upon claims allowed in part, unless the recovery shall be for a greater sum than the amount allowed, with the interest due.” (Gen. Stat. 1909, § 1414.)
A recovery may be had upon a demand which is not duly presented in accordance with this provision, but in such a case there can be no recovery against the city for the costs of the action. (City of Atchison v. King, 9 Kan. 550.)
No error is seen in the decision overruling the demurrer to the petition and therefore the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a suit to recover for personal in- , juries sustained by J. M. Roberts while working in one of the shops of the Missouri, Kansas & Texas Railway Company.
In fitting or rolling the flues of boilers an air motor is used. One of the motors used by the defendant was attached by chains to a piece of pipe or flue which was placed about seven feet high on ladders or horses near the boiler on which the plaintiff was working. It was attached so as to give the motor some play, and that it might be moved back and fortn from, flue to flue as the occasion required. To enable the workman to handle the motor a platform was made about two and a half feet above the floor of planks, supported on wooden horses. While the plaintiff was standing on this platform operating the motor the flue or cross-bar from which the motor was suspended broke, the motor fell on the platform, and the plaintiff was thrown astride of one of the wooden horses and injured. In his petition he alleged that he was in experienced in such work, and that the defendant, knowing of his inexperience, was negligent in failing to instruct him and to provide for his safety. He charged, too, that the defendant was negligent in failing to furnish proper chains and appliances for attaching the motor to the cross-bar or flue. It was also charged that the defendant negligently provided a defective flue for the support of the motor in that the flue had become crystallized and weak, that the defendant knew or •should have known of its condition and was, therefore, responsible for the break and the resulting injury. On the trial the jury returned a general verdict in favor of the plaintiff, but in answer to special questions stated that they based the verdict alone upon the negligence of the defendant in providing a defective flue. As to the defect in the flue the jury found it was latent, and that it was due to crystallization of the metal which could not be discovered by an ordinary inspection.
On these findings the trial court rightly set aside the general verdict and gave judgment for the defendant. It appears to be conceded that as the case stands the defendant can not be held liable because of the defect in the flue or cross-bar. It is contended, however, that a/3 other grounds of negligence were alleged by the plaintiff and a general verdict was returned in his favor we should presume that these were established and furnish a basis for the verdict. The contrary of this contention is the rule. Such a finding in effect acquits the defendant of every charge of negligence stated in the petition or mentioned in the evidence, except the one specifically designated in the finding. (Sugar Co. v. Riley, 50 Kan. 401, 31 Pac. 1090, 34 Am. St. Rep. 123; Hayden v. Railway Co., 87 Kan. 438, 124 Pac. 165; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999.)
It is said that a judgment against the plaintiff should not have been given because the special findings did not cover all the facts in the case. The findings made were based on ultimate and controlling facts which necessarily overthrew the general verdict. The only basis for the verdict or for a recovery by the plaintiff is that the injury suffered by the plaintiff was the result of the defendant’s negligence. Since the findings of the jury absolved the defendant from the charge of negligence or of responsibility for the plaintiff’s injury they necessarily compel a judgment in its favor.
It would be idle to consider the minor issues in the case as the findings made preclude a recovery against the defendant for the injury. It is said that the evidence did not justify the findings made, but the sufficiency of the evidence was not raised by the plaintiff before the trial court and is not available on this appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a lump sum judgment under the workmen’s compensation act. It is claimed that the trial court treated the case as one for damages and not as one for compensation and exercised no discretion as to the matter of periodical payments or lump sum judgment.
The petition alleged that before the suit was brought plaintiff requested defendant both orally and in writing to settle with him for his injuries, which request was refused and that the defendant denied any liability; that the defendant had not made any agreement of settlement with the plaintiff or offered or tendered any or asked any arbitration concerning the damages to the plaintiff and that no committee existed for the purpose of settling disputes under the statute. The answer admitted the employment and the injury but denied the extent thereof and averred that before the suit was begun an offer was made of periodical payments as required by the statute and refused. It appears that before the jury were empanelled it was suggested by counsel to the court that so long as the employer is not in default under the workmen’s compensation act no action to recover can be brought, to which the court replied: “That theory would shut a man out from his right to recover a lump sum and would not give him any discretion.” Later on in the colloquy counsel for the plaintiff stated that “A man has a right to ask for a lump sum settlement, and if they do not give it he has a right of action.” Counsel for plaintiff deeming the matter in the nature of a plea in abatement requested that it be tried by the court, which request was refused.
The jury were instructed, among other things, that if they should find that the plaintiff was so injured as to disable him totally for a period succeeding the first two full weeks and that the defendant had been paid the amount ascertained to be due him under the terms of the act or tendered it, “then you will allow him an amount for such total incapacity, computed according to the rule above given you, to be reckoned from a date two full weeks after the 29th day of April, 1915, as above stated to the termination of the period of such total incapacity, if any, shown by the evidence, as you shall find from the evidence he is entitled to receive.” They were also instructed that if they found partial incapacity to determine the length of time it would exist and also whether he was totally incapacitated for any period, the rules, for compensation therefor being given.
It is claimed that the remark and instruction of the court show that no discretion was exercised as to whether the judgment should be for a lump sum or in periodical payments and that the court acted arbitrarily. Complaint is made that under the evidence as to duration of partial incapacity the question was one of mere guess work and speculation. The question is asked: “What is to happen should the plaintiff recover within a short time ?” but it might also be asked “What would happen should he continue to grow worse ?” It is contended that it was error to permit the jury to bring in a general verdict or given sum and that it was the duty of the court to have the jury find the facts on which the judgment for a lump or for periodical payments should be entered by the court. While admitting that under section 36 of chapter 218 of the Laws of 1911 the matter is discretionary as to which sort of judgment shall be entered, it is insisted that no discretion was exercised and that such failure vitiates the judgment.
In addition to the general verdict the jury answered seven special questions finding, among other things, that the partial incapacity began six weeks from the date of the accident and had continued to the time of the trial and would continue 350 weeks; that the average wage per week which the plaintiff had received fifty-two weeks next before the accident was $16.82; that the average wage which he would probably earn during such incapacity is $10 a week. It is argued that the general verdict and the judgment thereon are excessive; that for the four weeks of total incapacity four times one-half of $16.82 would be $33.64; that for 350 weeks partially incapacitated at $3.41 a week, 50 per cent of the difference between $10 a week and $16.82 would be $1193.50, which added to $33.64 would make $1227.14 instead of $1503.64, showing an excess of $276.50. It is conceded by counsel for the plaintiff that the general verdict of the jury was only advisory to the court and it is contended in their brief that he was entitled to recover for partial incapacity for 410 weeks and therefore that the amount awarded was too small. But-the jury found the period of partial incapacity to be 350 weeks, hence the defendant’s contention that the judgment is excessive is correct.
Neither the remark nor the instructions of the court convince us of failure to exercise the discretion vested by the statute.
The allegation of an offer to pay was not supported by proof and was not a bar to the maintenance of the action. (Halverhout v. Milling Co., 97 Kan. 484, 155 Pac. 916.)
Affidavits have been filed touching the injury suffered by the plaintiff on which some doubt was cast by the argument of defendant’s counsel, but the case must be determined upon the record coming to us from the trial court. (In re Burnette, 73 Kan. 609, 85 Pac. 575; Hess v. Conway, 93 Kan. 246, 144 Pac. 205; Haseltine v. Nuss, 97 Kan. 228, 231, 155 Pac. 55.)
The record discloses no material error save the excess in the amount of the judgment.
The judgment is ordered modified by a deduction therefrom of $276.50, and thus modified it is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
This is an application by the state and by the Wichita Board of Education for a writ of mandamus to compel the mayor of Wichita to call an election on the proposition to issue bonds for an additional high school required to relieve the congested condition of the city schools. The maximum capacity of the present high school is nine hundred ninety-eight pupils. The present enrollment is sixteen hundred two. The board of education is using thirty-one extra schoolrooms for the overflow, and the city school population is rapidly increasing. All the preliminary proceedings required by the statutes precedent to the mayor’s proclamation were properly performed. The mayor declined to call the election. In his answer to the alternative writ, the mayor says that it will cost the city $2000 to hold the election, that when the budget for the current fiscal year was made up no provision was made for the expense of special elections, that it would be official misfeasance on his part to subject the city to expenses which could not be met out of the budget apportionment for elections (Gen. Stat. 1909, §§ 1040, 1041, 1328, 1329), and that he had offered to call the election if the board of education would turn over to the city a sufficient sum to defray the cost of the election, and this the school board had refused to do.
The plaintiffs ask judgment on the pleadings. They are entitled to judgment. The board of education and the city are separate corporate entities. (Knowles v. Board of Education, 33 Kan. 692, 700, 7 Pac. 561; Ritchie v. Mulvane, 39 Kan. 241, 254, 17 Pac. 830, 839.) That their territorial limits largely coincide is immaterial. The wisdom and discretion of the board of education are not reviewable by the mayor. He is merely the ministerial officer designated by the statute to call the election. The sheriff or county clerk, if thus designated, would answer the purpose just as well. The school board determines the necessity for the election. (Gen. Stat. 1909, § 7557.) There is nothing equivocal touching the mayor’s duty. He must call the election within thirty days after receipt of the board’s certificate. (Gen. Stat. 1909, § 7558.) That the city’s fiscal arrangements for the current year did not make provision for the contingency of possible special elections can not frustrate the plain terms of the statute, and the inhibitions of the commission government act against improvident management of the city’s financial affairs relate to matters within the control of the city commissioners and not to matters where the legislature itself has assumed the responsibility of directing their course of conduct, as it has done when it required the mayor to call an election on the certificate of the board of education. (The State, ex rel., v. City of Hutchinson, 93 Kan. 405, 412, 144 Pac. 241.)
An attorney’s fee is asked in this action under section 723 of the civil code. The services rendered for the state by the county attorney were merely a part of his ordinary official business to compel the mayor to perform his duty. His salary is his compensation therefor. The board of education, however, had a right to maintain this action and it is entitled to have a reasonable attorney’s fee allowed for the payment of its counsel. One hundred dollars and the actual and reasonable expenses of the board’s counsel are awarded to the board of education on this account.
The mayor suggests that if the writ is allowed, he should be permitted to fix the date of the election so that it may be held concurrently with the August primaries. The delay already occasioned is hardly excusable, but whatever inconvenience the board of education has already sustained, it would hardly be augmented now by acquiescing in that suggestion in the interest of economy.
The writ is allowed. | [
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The opinion of the court was delivered by
Mason, J.:
The taxing officers of Saline county assessed for taxation the capital stock of the Harvester Building Company, a Kansas corporation having its principal place of business in that county, at $14,500. This sum was arrived at by appraising the corporation’s stock at $60,000, which was the amount of its authorized and paid in capital, and deducting therefrom the assessed value of its real estate in the county, $45,500. The company obtained a judgment enjoining the collection of the tax based on this assessment, and the county officers appeal.
It was shown that the entire capital of the corporation had been used in the. purchase of real estate, and that its business consisted solely in renting that property. The company contends that in paying taxes on the realty it had made its full contribution to the cost of government; that as it owned no other property it had nothing upon which a further tax ought to be imposed; that the additional assessment was in violation of the statute and of the rule of equality and uniformity in taxation. The statute invoked reads as follows, the phrases particularly relied on being italicized:
“That no person shall be required to include in the list of personal property any portion of the capital stock of any company or corporation which is required to be listed by such company or corporation; but all incorporated companies, except such companies and corporations as are specially provided for by statute, shall be required to list by their designated agent in the township or state [city] where the principal office of said company is kept, the full amount of stock paid in and remaining as capital stock, at its true value in money, and such stock shall be taxed as other personal property: Provided, That such amount of stock of such companies as may be invested in real or personal property which, at the time of listing said capital stock, shall be particularly specified and given to the assessors for taxation, shall be deducted from the amount of said capital stock.” (Gen. Stat. 1909, § 9229.)
It is urged that as the entire amount paid in by stockholders has been expended for real estate, the deduction of the amount of stock so invested from the amount paid in will leave nothing whatever to be listed and taxed; that the statute undertakes to impose a tax upon the capital stock, which is the property of the corporation, and not upon the shares of stock, which are owned by its individual members. The argument is plausible, for this distinction between the phrases “capital stock” and “shares of stock,” as used in taxation statutes, is generally recognized. (1 Words & Phrases, p. 965; 10 Cyc. 364, 365; 2 Cook on Corporations, 7th ed., § 563; Powers v. Detroit & Grand Haven Ry., 201 U. S. 543, 559.) As suggested, however, in the case last cited, “the terms ‘share,’ ‘stock,’ ‘capital,’ ‘capital stock’ are of frequent and not uniform use, and we have often to turn to the context to see what is intended by its use in a particular case.” (p. 559. See, also, 1 Cook on Corporations, 7th ed., § 8.) The obvious purpose of the statute under consideration is in effect to require the corporation to list for taxation, and pay the taxes upon, the property which otherwise the shareholder would have to return and answer for. The law undertakes to reach the prop erty of the individual through the organization. This result is ordinarily accomplished, as in the statute relating to the taxation of banks (Gen. Stat. 1909, § 9298), by providing in so many words that the assessed value of any real estate shall be deducted from the original assessment of the capital stock; but the same general purpose is evident here. The section under consideration begins by exempting individuals from including in their lists of personal property any portion of the “capital stock” of a corporation. Clearly the quoted phrase is not used with technical accuracy, since the stockholder would in any event list only his own shares, and no part of the “capital stock” of the company. The term “stock” having been used in the introductory clause in a somewhat colloquial sense, it is natural and proper to give it a like interpretation where it occurs later in the same sentence. In view of these considerations we think the fair meaning of the statute is that the corporation shall determine the value of its stock (that is of all the shares of stock issued and outstanding, which will necessarily be the value of its possessions and rights, including franchises and good will, in view of the use made of its property and the business it does — a value corresponding to its earning capacity) and deduct therefrom the assessed value of any specific property in the county which is separately listed, returning the difference as the additional amount for which it is taxable, subject to review by the proper officers. This method of applying the law is that used by the state tax commissioners, with the approval of the court, in Gas Co. v. Spaeth, 83 Kan. 191, 109 Pac. 785.
Where the entire capital stock of a corporation has been invested in a piece of real estate, and it' has no other business than renting that property, it would seem that the value of its stock in the sense indicated would be nearly or exactly the same as that of its realty. The values, however, would not necessarily be precisely the same. The demand for shares of the corporate stock might be better than that for real estate, causing a difference in market value. The advantages incident to doing business as a corporation might enable the owner to realize an income from the property larger than could otherwise be obtained, or could be expected upon the basis of its mere market value. (People’s Warehouse Co. v. Yazoo City, 97 Miss. 500, 52 South. 481, and cases there cited.)
No inequality or injustice results from the interpretation adopted. The holder of stock in the corporation is the person ultimately interested in the matter. He ought, in fairness, to pay a tax in proportion to its actual value. The law in effect requires this and nothing more. If the corporation puts a just estimate upon the value of his stock (with that of others) and he is required to pay (through the corporation) a tax based upon that amount, less the assessed value of property upon which the corporation is otherwise taxed, he can suffer no wrong thereby. If the physical property is overvalued, he is compensated by the consequent reduction in the tax on the stock; if the physical property is undervalued, no hardship ensues, since he gains thereby what he loses in the increased stock assessment. Compensation is automatically provided, the net result being always the same. Of a situation somewhat similar to that here presented it has been said: “In limiting the reduction to the assessed value, no possible injustice is done the bank. In paying taxes on the assessed value of its real estate, and in addition thereto taxes on the aggregate value of its real estate and capital, surplus and undivided profits, less the assessed value of the real estate, a bank pays taxes on nothing more than it owns. If allowed to deduct a sum larger than the assessed value of the real estate, as an actual value, it would pay- on only a part of what it owns.” (State ex. rel. Dillon v. Graybeal, 60 W. Va. 357, 370, 55 S. E. 398. See, also, Valley Invst. Co. v. Board of Review, 152 Iowa, 84, 131 N. W. 669.) While the statutes in these cases are not closely similar to that here involved, the decisions have a bearing upon the question of the fairness of the plan of assessment adopted.
It is true that in the present case the difference between the assessed value of the real estate ($45,500) and the assessed value of the stock ($60,000) seems larger than would naturally be expected, but as already suggested this affords no just ground of complaint unless the latter is too large. And of course a mere error of judgment on the part of the officers charged with the assessment can not be remedied by the courts. The petition alleged that the assessor acted arbitrarily and in bad faith, and the plaintiff contends that his own testimony afforded a basis for a finding, which the trial court must be deemed to have made, that the allegation was true. The assessor (that is, the deputy who acted in this matter) testified that he based his valuation on statements of the treasurer of the company, who told him that dividends were paid of six per cent, based on the capitalization of $60,000, and that if any stock were sold it would bring par. The company’s treasurer testified that “if” the real estate were worth what it was assessed ($45,500), the stock was worth about seventy cents, because that was all the property the corporation had; that the property had cost $60,000 two years before, and was no less valuable than when acquired, except for natural depreciation and wear, and that it was rented for $420 a month. No special findings were made, but it seems clear that the judgment was not grounded upon the theory of bad faith on the part of the taxing officers. The court held that no tax whatever could be imposed upon the stock, excepting with regard to a small amount of money on hand, reference to which has hitherto been omitted for the sake of simplicity in statement. That conclusion seems obviously to have been based upon the interpretation of the statute which has been contended for by the plaintiff, and which this court for the reasons already stated is unable to accept.
The judgment is reversed and the cause remanded with directions to render judgment for the defendants. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued on a promissory note. From an order sustaining a demurrer to her evidence she appeals. The note, maturing in three months, was executed in 1903 and signed by the defendants who were stockholders in the Electric Plaster Company, for the benefit of which company the money was borrowed and used. Payments were made from time to time, covering the years 1904 to 1912, inclusive. The action was begun October 22, 1912. 'The defendants pleaded the statute of limitations. The testimony was to the effect that all the payments were made by the secretary and treasurer of the plaster company out of its funds.
The corporation did not sign the note, and although the money may have been borrowed and used for the benefit of the company we see nothing in the evidence which relieves the defendants from liability upon their written contract signed by them. It is not perceived how there can be a surety without a principal.
The judgment was rendered October 14, 1914. It appears that William Hunter, one of the original defendants, departed this life shortly after the trial in the court below, and that on April 22, 1915, the cause was revived as against his administratrix, Carrie L. Hunter; that on the same day she was served with notice of the appeal. The motion for a new trial was overruled October 27, ,1914. The administratrix is properly in court.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Dawson, J.:
The petition in this action alleged that in October, 1911, the plaintiff, Pittman & Harrison Company, a Texas corporation, entered into a contract to purchase seed corn from the defendant, to be shipped from Topeka to Sherman, Tex., in December, 1911, to supply the plaintiff’s seed trade for the following spring. The contract provided for one carload of “Squaw” corn (720 bushels), at $1.25 per bushel; 500 bushels of “Bloody Butcher” corn at $1.25 per bushel; and 700 bushels of “Calico” corn at $1.10 per bushel. The agreement also provided that the plaintiff should furnish sacks for use in shipping the corn and that an allowance should be made by defendant therefor. The plaintiff furnished the sacks and these were never returned. Neither did the defendant fulfill his contract; but in January, 1912, he shipped to plaintiff 60 bushels of “Squaw” corn, 60 bushels of “Bloody Butcher” corn and 182 bushels of . “Calico” corn, for which plaintiff paid him the agreed price per bushel. Defendant repeatedly promised to forward the remainder, but he never did; and plaintiff alleged damages for which it prayed judgment.
The contract was one of integration, composed of letters and telegrams between the parties.
Defendant answered pleading a compromise and settlement between the parties on account of finfavorable crop conditions which had made it impossible for him to comply with his contract. The answer in part reads:
“And as a final compromise and in full satisfaction thereof it was agreed .that said defendant would ship said plaintiff all the seed corn he then had of the varieties set forth in said correspondence, and that in addition thereto he was to furnish enough more produce of other varieties such as popcorn, cane seed, etc., to make up the balance of a car load. That he did this, as per said agreement, shipped the same to said plaintiffs and that they accepted and received the same as a full compromise and settlement of all matters that existed between them and in lieu of the different varieties of seed corn mentioned in said correspondence.”
The answer also pleaded a custom among seed dealers well known to the trade that their contracts for seed delivery were not absolute but dependent on crop conditions; and it further alleged that on the letterheads of the defendant was a printed recital to wit:
“While we exercise the greatest care to have all seeds, plants and bulbs pure and reliable, we sell none with warranty, express or implied, in any respect, and will not in any way be responsible for the crop. All contracts made by us are subject to crop conditions and prices subject to change and further confirmation. If purchaser does not accept seeds on these terms they must be returned at once.”
It was also pleaded that the contract was subject to the terms of this recital, and that owing to poor crops and weather conditions in the country around Topeka, where he expected to procure the seed to fill plaintiff’s order, no seed of suitable quality was raised.
The jury returned a verdict for plaintiff for $24.72, which was the value of the sacks furnished by plaintiff and which defendant had not returned — defendant having pleaded his willingness to confess judgment thereon.
A special question was submitted and answered by the jury:
“1. At the time of the conversation between the defendant and O’Bannon, the president of the plaintiff corporation, in Topeka, in December, 1911, was it understood and agreed between the parties that defendant should ship plaintiff the seed corn he then had and in addition certain other products, and was it understood and agreed that this should be a settlement and adjustment of the claims and demands of plaintiff under its existing contract or contracts, and was this car so received and accepted by plaintiff in such settlement? State facts. Ans. Yes; and it was agreed that the seed corn he had on hand with whatever additional corn fit for seed he would be able to procure should be accepted in full settlement, and same was so received by plaintiff.”
The plaintiff appeals.
1. The first error urged relates to the allowance of an amendment to defendant’s answer in the midst of the trial setting up the recital in defendant’s letterheads quoted above. Unless there is a clear case of abuse of discretion, the allowance of belated amendments is seldom considered so prejudicial as to require a reversal. (Bank v. Badders, 96 Kan. 533, 536, 152 Pac. 651.) Furthermore, the special finding of the jury shows a full compromise and settlement of plaintiff’s. claims against defendant, so it can be of no consequence that this belated and superfluous defense was permitted.
2. The same reasoning disposes of the complaint that irrelevant testimony was introduced over objection on the question whether the seed corn which defendant was to furnish was to be from crops raised near Topeka or whether the contract was an absolute bargain to furnish the seed corn, and intended to bind the defendant regardless of local crop conditions.
3. So, too, the objection to the instruction relating to the custom of seed dealers that all their contracts were subject to crop conditions. In view of the compromise and settlement, the correctness of the instruction as to the custom and also the one pertaining to the measure of damages were immaterial.
4. The only serious point in this appeal is the error, assigned in "overruling plaintiff’s motion for a new trial. The ground assigned was based on subdivision 6 of section 305 of the civil code, which reads:
“That the verdict, report or decision was procured by the corruption of the party obtaining it. In this case the new trial shall be granted as matter of right; and all the costs made in the case up to the time of granting the new trial shall be charged to the party obtaining the decision, report or verdict.”
This is a new provision of the code prescribing statutory grounds for a new trial, but it is practically a reiteration of subdivisions 1 and 2 of section 306 of the old code (Gen. Stat. 1901, § 4754). They read:
“First, Irregularity in the proceedings of the . . . prevailing party ... by which the [defeated] party was prevented from having a fair trial.
“Second, Misconduct of the . . . prevailing party.”
The corruption of the prevailing party consisted of the alleged perjured testimony of defendant and his wife, who swore that the correspondence constituting the contract, and which had been lost, was on defendant’s stationery which contained the recital of nonliability under adverse crop conditions. The showing made in support of the motion for a new trial impels us to say that it did not contain anything of the sort. The plaintiff had no opportunity to procure sufficient. evidence to show conclusively the falsity of such testimony because the amendment alleging that recital was made during the trial. Some evidence to that effect was hastily collected and introduced. On the motion for the new trial, however, plaintiff produced successive series of the defendant’s stationery under later dates, and showed beyond cavil that this defense was untrue, and that the stationery containing that recital was not printed until long after this contract for seed corn was made'.
But the case did not turn on that issue. It turned on the fact of the compromise and settlement. The compromise and settlement were denied by plaintiff and proved by defendant and defendant’s wife. Having shown that defendant and his wife committed perjury on one line of defense, plaintiff argues that the trial court should have concluded that the other — the successful — defense was likewise procured by their perjured testimony. Maybe it should. Maybe if one of us had been the presiding judge, we would have so determined. But unless we can say that it was plainly and palpably erroneous for the trial court to decide otherwise, its conclusion must stand. We only have this case in cold type. We have not seen the witnesses. Perhaps the testimony of the defendant and his Wife as to the first defense was true. Perhaps the plaintiff’s testimony as to the first defense was false. Perhaps the defendant in his weakness framed up the second defense through perjury to meet the plaintiff’s perjured testimony on the first defense. We discuss these matters bluntly, and with no purpose of reflecting on either party, but only to point out how impossible it is for an appellate court, which must gather its facts from the printed page, to substitute its judgment for that of the district court which gathers its facts from the lips of living witnesses. And thus it is that month by month and year by year, in this court and in other courts of appeal, the elementary rule has to be restated that the decision of the trial court on matters of fact based upon substantial though conflicting testimony can not be disturbed.
That newly discovered testimony tending however strongly to impeach and discredit the witnesses of the prevailing party is not ground for our interference with the trial court’s rulipg on a motion for a new trial, whether that ruling was the granting or refusing thereof, has often been decided.
In Taylor v. Thomas, 17 Kan. 598, a showing was made that if a new trial were granted two or three witnesses would be produced to disprove the testimony of a witness at the first trial. A new trial was denied.
In Parker v. Bates, 29 Kan. 597, a new trial was refused notwithstanding a strong showing that the testimony of a material witness in the first trial was not true;
In The State v. Smith, 35 Kan. 618, 11 Pac. 908, the second paragraph of the syllabus reads:
“As a general rule, newly discovered evidence the purpose of which is to discredit a witness in the original trial, does not afford adequate ground for-the granting of a new trial.”
(Boyd v. Sanford, 14 Kan. 280; Taylor v. Thomas, 17 Kan. 598; Clark v. Norman, 24 Kan. 515; Manwell v. Turner, 25 Kan. 426; The State v. Kearley, 26 Kan. 77; Sexton v. Lamb, 27 Kan. 432; Parker v. Bates, 29 Kan. 597; Lee v. Bermingham, 39 Kan. 320, 18 Pac. 218.)
In Lee v. Bermingham, supra, it was said:
“A new trial will not be granted on the ground of newly-discovered eyidence, when the testimony proffered is for the purpose of impeachment merely. (Parker v. Bates, 29 Kan. 597.)” (Syl. ¶ 3.)
To the same general effect was Bryson v. Chi., B. & Q. R’y Co., 89 Iowa, 677, 685, 57 N. W. 430.
In our investigation of this subject we have found some cases to the contrary, but those quoted stated the prevailing rule.
We concede that the instant case is one where with much propriety the district court might have granted a new trial; but in view of the precedents just quoted and the general principle that the trial court’s determination of the facts can not be disturbed merely because the appellate court might have arriv.ed at a different conclusion upon those facts (Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 786), it must be held that no such error appears here as would warrant a reversal of this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J::
An opinion was delivered in this case on January 8, 1916, but has not been officially published. The plaintiff filed a motion for a modification of the opinion. The defendant filed a motion for a rehearing. A rehearing was granted.
In this action the plaintiff recovered judgment against the defendant in the sum of $3076.20 for repairing cars furnished the plaintiff by the defendant in which to ship grain. The defendant appeals.
The action was begun February 25, 1913. Between December 7, 1908, and May 15, 1911, the plaintiff received from the defendant 5127 cars in which to ship bulk grain. All these cars were used in interstate shipments. Before loading the cars it was necessary for the plaintiff to repair them to prevent grain leaking therefrom. The petition asked for 80 cents for repairing each car. The jury allowed 60 cents for material and labor. From December 3, 1908, to December 28, 1910, the defendant’s tariff contained the following provision:
“When cars furnished by carriers named below for grain or other loading require repairing in order to insure against leakage in transit, and material necessary for this repair is furnished by the shipper, the carrier will pay the actual cost of the same, but not to exceéd eighty cents per car.”
On December 28, 1910, the tariff was amended to read:
“When cars furnished for bulk grain or other bulk freight loading require repairing in order to insure against leakage in transit, and the material necessary for repairing is furnished by the shipper, the line furnishing the car will pay for the cost of the repairs, but not to exceed eighty cents per car.”
During all of the times of the transactions involved in this action the tariff contained this provision:
“When cars furnished for grain or other loading requiring interior doors are-not so equipped by the railroad company, and such .doors are furnished by the shipper, the actual cost thereof, but not to exceed $1.20 per car, will be paid by the carrier.”
During this time Rule 78 of the interstate commerce commission was in effect. This rule is:
“A carrier may not lawfully reimburse shippers for the expense incurred in attaching grain doors to box cars unless expressly so provided in its tariff.” (Conference Rulings, Bulletin No. 2.)
The first contention is that the court did not have jurisdiction of the matters involved in this controversy. The defendant’s argument is that every matter where there is a rate concerned or a tariff to be construed or a rate founded on a tariff to be adjudicated, must come before the interstate commerce commission or a federal court.
Section 8 of the interstate commerce act reads:
“That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.” (24 U. S. Stat. at Large, ch. 104, p. 379.)
Section 9 in part reads:
“That any person or persons claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.”
Section 22 in part reads:
“Nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions, of this Act are in addition to such remedies.”
In Penna. R. R. v. Puritan Coal Co., 237 U. S. 121, 35 Sup. Ct. Rep. 484, 59 L. Ed. 867, the court said:
“Construing §§ 8 and 22, however, in connection with the statute as a whole, the Act to Regulate Commerce is both declaratory and creative, and while shippers are given new rights, existing causes of action are preserved and the jurisdiction of state courts is not superseded, in cases in which the decision does not involve the determination of matters calling for the exercise of administrative power and discretion of the Commission or relate to subjects over which exclusive jurisdiction is given to the Federal courts.
“While the Federal courts may have exclusive jurisdiction of a suit brought to declare that a rule of practice promulgated by the carrier is-unfair, a suit for damages occasioned by the violation or discriminatory-enforcement of the carrier’s rule, fair on its face and not attacked as unfair, does not involve administrative questions but only those of fact; and even though for damages arising in interstate commerce, such a suit is not within the exclusive jurisdiction of the Federal courts, but may be prosecuted either in those courts or in the state courts.” (Syl. ¶[¶ 2, 8.)
This principle was recognized and followed in III. Cent. R. R. v. Mulberry Coal Co., 238 U. S. 275, 35 Sup. Ct. Rep. 760., 59 L. Ed. 1306.
In Penna. R. R. v. Clark Coal Co., 238 U. S. 456, 35 Sup. Ct. Rep. 896, 59 L. Ed. 1406, the method or rule for the distribution of cars to coal-mining companies was called in question. In the syllabus to this case we find this language;
“Whether the rule or method of car distribution for mines furnishing1 coal f. o. b. at the mines for shipment to other States as practiced by a railroad company is unjustly discriminatory is one which the Interstate Commerce Commission has authority to pass upon.
“Where the complaint involves an attack upon the rule or method of car distribution practiced by the carrier in distributing cars for interstate shipments, no action is maintainable in any court for damages alleged to have been inflicted thereby until the Commission has made its-finding as to the reasonableness of such rules and methods.” (Syl. ¶¶3,4.)
The fact that the shipper in Penna. R. R. v. Clark Coal Co. appealed to the interstate commerce commission for relief against the rule was taken into consideration by the court. The correctness of the principle as above set out, announced in the Puritan and Mulberry cases, was recognized (p. 472) in the Clark case.
The defendant- cites Loomis v. Lehigh Valley R. R., 240 U. S. 43, decided by the United States supreme court January 24, 1916, as showing conclusively that the questions in the case now before this court can not be determined by a state court. That was a case involving the repairing of cars furnished for the shipment of wheat, oats, rye, apples, cabbage, and potatoes. Prior to 1906 cars had been furnished the plaintiffs and lumber had been supplied without charge, for the construction of inside doors and transverse bulkheads. In 1906 the practice of furnishing lumber was discontinued and the defendant refused to supply material for fitting the cars or to furnish cars completely repaired for carrying in bulk the articles enumérated. The plaintiffs constructed the inside doors and bulkheads in the cars and brought an action to recover the cost of the material used. The court said:
“An adequate consideration of the present controversy would require acquaintance with many intricate facts of transportation and a consequent appreciation of the practical effect of any attempt to define services covered by a carrier’s published tariffs, or character of equipment which it must provide, or allowances which it may make to shippers for instrumentalities supplied and services rendered. In the last anaylsis the instant cause presents a problem which directly concerns rate-making and is peculiarly administrative. Atchison, Topeka & Santa Fe Ry. v. United States, 232 U. S. 199, 220. And the preservation of uniformity and prevention of discrimination render essential some appropriate ruling by the Interstate Commerce Commission before it may be submitted to a court. See Penna R. R. v. Puritan Coal Co., 237 U. S. 121, 128, 129; Penna. R. R. v. Clark Coal Co., 238 U. S. 456, 469, 470.” (p. 50.)
In the case now before this court no attack is made on the defendant’s tariff or rules embraced therein concerning the cooperage of cars. The plaintiff seeks to recover what the defendant says by its tariff it- will pay. There is a dispute concerning the meaning of the tariff. Is it necessary that this dispute be presented to the interstate commerce commission before the plaintiff can recover what the tariff says the defendant will pay? Every contract, every writing, every law, so far as its meaning is concerned, may be, and often is, a subject of dispute, even when there should be no dispute. Tariff provisions are made as plain and simple as language can make them, but circumstances will arise concerning which the meaning of the tariff may not be clear. • Must this be submitted to the interstate commerce commission before the injured shipper can resort to the courts, when he is not attacking the tariff but is merely undertaking to obtain that which is due him ? That is not the intention of the interstate commerce law. Actions by carriers to recover the rate fixed by the tariff have been maintained in the courts of this state where a rate less than that fixed had been collected. (Railroad Co. v. Thisler, 90 Kan. 5, 133 Pac. 539; Railway Co. v. Theis, 96 Kan, 494, 152 Pac. 619.) If a carrier can recover what is due it under a tariff, it ought to, but does not necessarily, follow that a shipper can recover from the carrier what is due the shipper under the same tariff. We conclude that the court had jurisdiction in this action.
The defendant contends that all items set out in the petition and accruing more than three years before the commencement of the action are barred by the three-year statute of limitations. The plaintiff to meet this argues that all the cars were furnished under one hiring and under one continuous contract. If the 5127 cars were ordered at one time this argument of the plaintiff would be correct, but there is nothing to indicate that this was done. It is not so alleged in the petition nor established by the evidence. Each order for cars and shipment thereunder constituted a separate transaction on which an action might have been maintained and the statute of limitations began to run when that cause of action accrued. It was not in any way connected with any other order for cars. Ordering cars and shipping freight therein under the rates, rules and regulations named in a tariff filed with the interstate commerce commission, do hot constitute a contract in writing and the five-year statute of limitations does not apply. We hold that the three-year statute of limitations bars all transactions set out in the petition where the shipments were made more than three years prior to the commencement of the action.
Complaint is made of the construction placed by the trial court on the provision of the tariff providing for the repair of cars. The phrase “actual cost of the same” in the tariff effective from December 3, 1908, to December 28, 1910, includes the cost of material and labor of making the repairs. Nothing else is included in the tariff provision just mentioned or in the one effective December 28, 1910. Neither inspecting nor cleaning cars is included. Reimbursement of shippers for the expense incurred in attaching grain doors is prohibited by rule 78 of the interstate commerce commission when not expressly provided for, and for that reason that expense can not be recovered.
Complaint is made of the admission in evidence of “Santa Fe Cooperage Circular No. 1.” We do not see how the admission of this document in any way prejudiced the defendant, although it may not have proved anything in the case.
The judgment is reversed and the cause is remanded for a' new trial. | [
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The opinion of the court was delivered by
WEST, J.:
The trial court decided that the defendant received $175 from one who the following month was adjudged a bankrupt and must account for it on the ground that it knew or had reason to believe that'the payor was insolvent at the time or that the payment would constitute a preference in favor of the defendant.
The brief presents the point that the evidence was insufficient to sustain the decision. It is argued, however, that the testimony of one witness was wrongfully received on behalf of the plaintiff because it told of knowledge on his part as plaintiff’s agent, obtained prior to the time he became agent, touching mortgages filed for record by the debtor, which knowledge was received by means of daily reports issued by an abstractor. It is contended that the defendant could be chargeable only with knowledge of the agent acquired while such agency existed and not previously. If, however, the previously acquired knowledge was clearly in the agent’s mind at the time of the transaction the principal is bound thereby. (Hess v. Conway, 92 Kan. 787, 142 Pac. 253; Underwood v. Fosha, 96 Kan. 240, 244, 150 Pac. 571.)
Having received the daily reports which seem to have shown various mortgages by the debtor the witness, a bank cashier, while acting as agent for the defendant may be presumed to have had in mind the condition shown by such reports. He testified to considerable first-hand knowledge obtained otherwise while holding the note for collection. At any rate the defendant itself received these daily reports and it makes no material difference whether or not its temporary agent had the same knowledge presumably possessed by his principal.
This leaves the case in the very usual attitude of being a fact case determined by the trial court upon sufficient though conflicting evidence. Such determination is final.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was found guilty of violating a city ordinance. His motion in arrest of judgment was overruled and he appeals. The complaint against the defendant reads as follows:
“That on the 12th day of March, A. d. 1915, and at all times for several weeks prior thereto, the defendant. L. W. Popejoy has been in possession, control and occupation of lots twenty-two (22), twenty-three (23), twenty-four (24), twenty-five (25), twenty-six (26) and twenty-seven (27), in-block number twelve (12), in the First Addition to the town or city of Goodland, Kansas, and within the corporate limits of said City of Goodland and in Sherman county, Kansas, and has during said time maintained thereon a cattle yard and yards, and a hog. or pigpen or yard and yards, wherein have been kept cattle, hogs and pigs, and has permitted and allowed the droppings, manure and filth deposited on said lots by said cattle and hogs and pigs to remain on said lots so occupied by him, and has kept and permitted such lots to be and remain in such condition and manner that they became, ever since have been and now are foul, injurious and offensive, and did then and there, ever since have, and how do cause a stench and noxious, disagreeable and unhealthy smell, and thereby said yards and pens then and there became, ever since have been and now are offensive to persons residing in the vicinity of said yards and pens and annoying to the public and is and was a nuisance, contrary to the ordinance of said city of Goodland, in such cases ma.de and provided, and against the peace and dignity of the city of Goodland, Kansas.”
The ordinance under which, the complaint was drawn reads as follows:
“Sec. 1. That it shall be unlawful for any person or persons to deposit, put, throw or place in any street or alley in the City of Goodland, Kansas, any tin cans, manure, garbage, slop, swill, ashes, refuse, filth, offal, unwholesome substance, vegetable or animal matter, or any rubbish whatever.
“Sec. 2. That it shall be unlawful for any person or persons to deposit, put, throw, place, or allow to remain on any lot or lots owned or occupied by such person, or persons, at any place in said city, any tin cans, manure, ashes, garbage, slops, swill, refuse, filth, offal, unwholesome substance, vegetable matter, or animal matter, or any rubbish whatever.”
The contention is the ordinance is void.
Presumably the ordinance was enacted under the authority given cities of the second class to secure the general health and to prevent and remove nuisances. (Gen. Stat. 1909, § 1405, as amended by Laws 1911, ch. 116.) The ordinance is not di rected against depositing tin cans,' manure, ashes, garbage and refuse on private property under conditions which render them offensive to others or detrimental to the public health, and is not directed against allowing the enumerated articles and substances to remain on private property under conditions which make them offensive or harmful. No distinction is made between nocuous and innocuous, reasonable and unreasonable. The offense is complete if any of the things mentioned be deposited or allowed to remain, whatever the quantity, circumstances or length of time. Ashes from the furnace or stove can not be deposited or kept even in a safe receptacle, and refuse from the kitchen can not be deposited or kept even in a garbage can until the garbage collector can be called. Manure can not be removed beyond the city limits as soon as dropped, and consequently a horse or cow can not be kept at all, even although the barn or lot be kept clean and free from accumulations of offensive matter.
Cities of the first class are given express power to suppress hogpens. (Gen. Stat. 1909, § 918.) Such power is withheld from cities of the second class. Without statutory authority, cities may suppress hogpens only when they are located and kept in such a way as to cause annoyance. (2 Dillon, Municipal Corporation's, 5th ed., § 693.) A stable for the family horse is not a nuisance per se, and whether or not a livery stable is a nuisance depends on where it is located and how it is kept and used. (2 Dillon, Municipal Corporations, 5th ed., § 692.) A cow pen for the family cow is not a nuisance per se. Open cattle yards where cattle are kept for feeding or fattening in such numbers that nuisances necessarily result may be suppressed by proper ordinance. (2 Dillon, Municipal Corporations, 5th ed., § 690, Note, p. 1046.) But the ordinance in question recognizes no conditions with which it is possible to comply under which domestic animals may be kept on private property anywhere within the city limits. Having undertaken without qualification to make things nuisances which are not so in fact and which become nuisances only under conditions which are not recognized, section 2 of the ordinance is void.
The city marshal who made the complaint seems to have felt that the ordinance did not go quite far enough, and so added to the charge allegations that the defendant’s premises were foul, offensive, and injurious, that they produced disagreeable and unhealthy smells, that they annoyed persons residing in the neighborhood, and that they constituted a nuisance. The allegations were superfluous to any charge preferred under the ordinance, and because of the invalidity of the ordinance the complaint did not state an offense.
The judgment of the district court is reversed and the cause is remanded with direction to discharge the defendant.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment rendered against the defendant as surety on the bond of a partnership which had contracted to build certain macadamized roads in Allen county.
The commissioners of roads and highways of Iola township entered into a written contract with Albert Abrams and Theodore F. Strickland, a partnership, for the building of two stretches of macadamized road in Iola township for a stated consideration. Abrams and Strickland undertook the job, agreeing to furnish all the materials, labor and transportation, and to prepare, grade and build the road—
“and do everything necessary to prepare, make, construct, build and finish the said road in accordance with the said plans, and specifications and shall pay for all labor and material and all other obligations or liabilities incurred in the doing of the said work or performance of any of the things necessary hereunder, . . . and before final settlement for the said work is made, parties of the second part shall furnish to party of the first part evidence satisfactory to first party that all claims for labor and material used in the preparation and construction of said road have been paid.”
It was also agreed that the partnership should give a bond, with sureties, to pay all indebtedness incurred for labor and materials furnished in the construction of the road, as provided in section 661 of the civil code.
The Southern Surety Company, a corporation engaged in the business of furnishing surety bonds for pay, furnished the bond, in which appropriate reference to the contract between Iola township and the contractor was made, and providing:
“Now, Therefore, if the said Abrams & Strickland shall furnish all of said material and perform said work and labor in the manner and form as agreed to, according to said contract and specifications thereto attached, and shall complete said work as is provided in said contract, and shall pay for all labor and material used or employed therein, . . . then this obligation shall be null and void, otherwise to remain in full force and effect.”
The partnership contractors built the road, but failed to pay-certain bills pertaining thereto. Hence this lawsuit.
The plaintiff had a balance of an account for dynamite, etc., against Abrams & Strickland, amounting to $48.54. This constituted plaintiff’s first cause of action.
Thirteen additional causes of action were included in plaintiff’s petition, for various sums ranging from $1.60 to $94.35, these being based on accounts of other persons against Abrams & Strickland, all alleged to pertain to the building of the road, and all of which had been assigned to plaintiff for the purpose of collection.
The aggregate sum of all the claims in these fourteen counts set out in plaintiff’s petition was $398.41. The court gave judgment for plaintiff upon the fourteen causes of action separately, in amounts ranging from $1.60 to $65.55, with interest on each, and aggregating $388.22.
The defendant surety company’s appeal, is based upon the overruling of its demurrer to plaintiff’s evidence.
Counsel for plaintiff challenge appellant’s right to a hearing on the ground that this court has no appellate jurisdiction of controversies involving the recovery of money only unless the amount exceeds one hundred dollars, and that each of the causes of action in plaintiff’s petition was inherently so distinct and independent that they can not be aggregated into one controversial sum in excess of one hundred dollars so as to clothe this court with jurisdiction.
Since this contention, if sustained, would dispose of this appeal, it should be considered first.
The appellate jurisdiction of the supreme court concerning actions for the recovery of money only is as follows:
“No appeal shall be had or taken to the supreme court in any civil action for the recovery of money unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars, except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States.” (Civ. Code, § 566.)
The several causes of action, amounts claimed and the sepa rate judgments on each count are shown by the following table:
There is a line of authorities holding that several distinct and independent claims set up in one action under separate counts, no one of which is for a sum sufficient to base an appeal, do not confer jurisdiction on an appellate court, although the judgment on all the counts aggregates a sum sufficient to give jurisdiction if the amount was based on a single claim.
“Action on several independent claims presented by the same party is not reviewable where such action does not involve the jurisdictional amount in connection with either claim. It has also been held that the combining of several claims in different counts is insufficient to confer jurisdiction where no one of such claims is by itself sufficient for the purpose, but on this point there is at least one decision to the contrary.. An appeal will not lie if the matter in dispute is below the jurisdictional amount, even when it forms a part of a series of claims which, in the aggregate, would exceed that sum.” (3 C. J. 414.)
The contrary and perhaps the better view is upheld in Commonwealth for Wiggins, &c., v. Scott, &c., 112 Ky. 252, 65 S. W. 596; State, ex rel. St. Cyr et al., v. Jumel, State Auditor, 34 La. Ann. 201; Priest v. Deaver, 21 Mo. App. 209; Washington Sav. Bank et al. v. Butchers’ & Drovers’ Bank et al., 61 Mo. App. 448; Powers v. City of Yonkers, 114 N. Y. 145, 21 N. E. 132; Staib’s Estate, Bender’s Appeal, 188 Pa. St. 238, 41 Atl. 528; Fink, Brother & Co. v. Denny and als., 75 Va. 663; Peters & Reed v. M’Williams and others, 78 Va. 567; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596; Wheby v. Moir, 102 Va. 875, 47 S. E. 1005. (See, also, The “Connemara,” 103 U. S. 754, 26 L. Ed. 322, and Shields v. Thomas, 58 U. S. 3, 15 L. Ed. 93.)
Curiously enough, this exact point has not hitherto been squarely determined by this court. In Samp v. Braden, 73 Kan. 279, 85 Pac. 289, an appeal was presented by two defendants against whom separate judgments had been rendered in an action upon their liability as stockholders. The judgment against neither was sufficient in itself to confer jurisdiction upon the supreme court on appeal. It was held that as neither defendant was interested in the judgment rendered against the other, jurisdiction on appeal could not be obtained “by the defendants aggregating judgments which are several and distinct” (p, 281), and the-appeal was dismissed.
In Skinner v. Cowley County, 63 Kan. 557, 66 Pac. 635, the probate court had ignored the sheriff’s right to transport delinquents to the industrial school and to transport children to the soldiers’ orphans’ home, and had appointed special officers to perform these services. These special officers had presented bills for these several services, in the sums of $71.85, $102.88, and $62.08, respectively. The sheriff sued for the compensation attaching to these services on the ground that he had been ready to perform them, and was entitled to the compensation and could not be deprived of it by the arbitrary action of the probate court. Originally the sheriff brought three separate actions, but these were consolidated in the district court by consent of parties and the action proceeded as one controversy." The question was raised on appeal that the amount in controversy in each of two of the original cases was less than $100. It was held:
“Where several actions of the same character are consolidated in the district court by consent of all the parties, and are tried through to final judgment without objection, it is too late to object upon review, and the jurisdiction of the supreme court will be determined by the whole amount involved in the new consolidated action.” (Syl. ¶ 1.)
In Hazelwood v. Mendenhall, 97 Kan. 635, 156 Pac. 696, decided April 8, 1916, it was held that where the amount in controversy was in excess of $100 the appellee may obtain a review of adverse rulings although the judgment against him was for a sum so small that this court would not have had jurisdiction if he himself had attempted to institute the appeal.
We think the true rule is determined by the amount involved in the cause brought to this court by the appellant. What is his grievance? What is the judgment from which he seeks relief? How much is he called upon to pay? If it is a sum in excess of $100 .exclusive of costs the appellant is entitled to have his grievance reviewed. The settled policy of this court favors the right of appeal, and since this appellant is here complaining of a judgment which calls on it to pay $388.22 and costs, this court has jurisdiction notwithstanding that such judgment is merely the aggregate of a series of judgments on fourteen distinct causes of action, no one of which is for a sum sufficient to invoke the jurisdiction of this court if brought here independently.
Coming now to the errors assigned by appellant, it is contended that, except on counts 5 and 10, the trial court should have sustained a demurrer to the evidence. We do not understand that this demurrer was lodged on account of mere insufficiency of proof, but because on the facts developed by the evidence the surety company was not liable for the other items under the strict terms of its surety obligation. In other words, that the bills for dynamite, rent of the quarry, coal used in firing the engine which crushed the rock, and for rent of tools used in, building the road, and the like, were not within the terms of its surety obligation. A majority of this court holds otherwise; that under the rule announced in Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563, and the cases there cited, and the fair interpretation of the contract, all these bills were pertinent to the building of the road, and that it could make no difference to the surety company whether the contractors purchased all the supplies for building the road from somebody else who had purchased dynámite and coal and rented tools., and rented a rock quarry, and based his price for the materials thus furnished to the contractors in consideration of such expenditures, or whether the contractors procured these materials through the incurrence of these expenditures themselves. Wé can perceive that cases might arise where such expenditures might be “padded” and call for the application of some other rule, but here there is no suggestion that any of the items of expense incurred in procuring the materials for the building of the road were unreasonable. The surety company guaranteed the payment of the materials used in the road-making. If it does not pay these bills it will pay nothing, for the materials were procured by the incurrence of the bills here presented. The surety company bound itself to pay for these materials, and it should not be relieved therefrom on any fine-spun theory that because some third party did not rent the quarry and buy the dynamite and the coal and hire the machinery and make an aggregate charge of all these items of expense with a fair profit thereon, and present a bill for the materials thus produced, it should be wholly relieved from payment of any sum whatsoever for such materials. The contract between the township and the contractors recognized the fact that the materials would be furnished as they were in this case, and even specified what quarry the rock should come from, and specified that the contractors should pay for the transportation of the materials. Appropriate reference to this contract was made in the surety company’s contract, and it must be held that it knew in what manner the materials would be furnished, and in binding itself to pay for the materials it bound itself to pay the reasonable and proper cost of furnishing the materials, and it is not called on, and can not be called upon, to pay for them in any other manner.
It should be noted that the surety company’s obligation is not to pay the mere statutory liens for labor and materials, but is governed by the terms of its contract. The contractors agreed to build the road and to pay “for all labor and material and all other obligations or liabilities incurred in the doing of the said work or performance of any of the things necessary” thereunder, and to give the statutory bond. The defendant became surety for the full performance of all the terms of the contract, and all these bills were within the fair terms of that contract.
In Zipp v. Fidelity & Deposit Co., 73 App. Div. 20, 76 N. Y. Supp. 386, the question was whether the defendant, which had guaranteed a contractor’s agreement to construct a retaining wall for the city of Buffalo, was liable for a bill of $279.48, which was the balance of an account for coal consumed by two engines used in excavating rocks and earth and for. pumping water. This was not a lawsuit on the mere liability to pay statutory liens, but on the surety company’s guaranty that the con-' tractors would perform their contract. The court said:
“The generation of power was essential in the performance of the contract, and when the defendant became responsible for the payment of ‘all material used and services rendered in the execution of such contract’ it might have expected that fuel was to be consumed in the undertaking. The coal used entered into the execution of the agreement and formed a part of the value of the work done as much as the labor of the masons or of the men who aided in hoisting the stones into position to-make up the wall. The materials used need not be a permanent constituent of the structure itself, but must be necessarily incident to the execution of the agreement to come within the purview of the defendant’s-contract; and the coal consumed in carrying on the work is of that character. The defendant’s agreement was entered into to secure the performance of the contract by Kriess, and evidently to protect the city against any liens by material men or laborers. It contemplated the-performance of the contract by Kriess, and whatever fairly comes within, the compass of that work is also within the scope of the defendant’s contract. Under the mechanic’s lien law we apprehend a lien would attach-for fuel furnished under the circumstances here shown. Powder Co. v. Byrnes, 12 Abb. Prac. 469; Gallagher v. Karns, 27 Hun, 375.” (p. 21.)
It is unnecessary to extend this by discussing the appellant’s-liability under the counts for “team and road work.” On those-items the liability is too plain for discussion.
The judgment is affirmed.
Burch, Porter and West, JJ., dissent from paragraph five-of the syllabus and the corresponding portion of the opinion.. | [
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The opinion of the court ■«fas delivered by
West, J.:
The plaintiff, who was in her sixtieth year at the time of the trial, was on December 22, 1914, a passenger on one of the defendant’s trains which was derailed and wrecked near Martha about two o’clock in the morning. The plaintiff having received certain injuries was taken to the baggage car, where she remained until about three o’clock in the afternoon, when she was removed to the defendant’s hospital at Hoising ton. The next morning at about ten o’clock a claim agent paid her $25 and procured from her a release. During that day she wrote a letter to a friend at Durango, Colo., and also signed a telegram sent for her by the claim agent to her brother at Claremore, Okla. On the 24th she rode in an ambulance to the train, which she boarded for her brother’s home in Oklahoma, changing at Osawatomie, to which place she was accompanied by a nurse. She afterwards brought this action and recovered a judgment for $2700, from which the defendant appeals.
The assignment of error and the argument thereon raise three questions: The sufficiency of the evidence to sustain the verdict, the failure of the court to direct a verdict and give certain other requested instructions, and the refusal to enter judgment for the defendant on the special findings and to grant a new trial.
A thorough examination of the record leaves no question as to the sufficiency of the evidence to support the verdict aside from the question of release, which will be noticed later. And while, as is frequently the case, there was conflicting evidence from which different conclusions might be drawn, and while the weight and credibility of certain testimony might be viewed differently by different persons, nevertheless the general verdict finds support both sufficient and ample.
What has already been said is conclusive on the question of failure to direct a verdict for the defendant. The instructions have been carefully considered, and are found to have been proper and beyond question fair to the defendant.
The defendant moved for judgment on the findings, and also for a new trial.
The following were the special questions and answers :■
“1. Q. Was the plaintiff of sound mind at the time she brought this action? A. Yes.
“2. Q. Was the plaintiff conscious at any time on the 23rd day of December, 1914? A. Part of the time.
“3. Q. What injuries did the plaintiff complain of while at the hospital at Hoisington on December 22nd to 24th, 1914? A. Ankle, knee and back.
“4. Q. When plaintiff wrote the letter to Mrs. Alice B. Hannon on December 23rd, 1914, did she know what she was doing? A. Part of the time.
“5. Q. At the time plaintiff received the $25.00 from the defendant did she know just how much she was getting, and that it was being paid to her by defendant? A. Yes.
“6. Q. Did the plaintiff on December 23rd, 1914, authorize a telegram to be sent to. her brother in Oklahoma, stating she was delayed by reason of a storm? A. Yes.
“7. Q. At the time the telegram was sent, did she know what she was doing? A. Yes.
“8. Q. Did the plaintiff sign the draft and release introduced in evidence herein, and if so, did she receive the $25.00 as therein stated? A. Yes.”
It is repeatedly and vehemently said that the plaintiff was conscious all of the time on the 23d day of December, and that the answer to question No. 2, that she was conscious part of the time, was made in order to be in harmony with the general verdict. The evidence of the plaintiff, however, which the jury appears to have believed, contained repeated statements indicating the truthfulness of their answer.
“I know they were very good to me after I was in bed. It is rather misty, but I knew it was a place for me to' stay. I remember- the caps on the nurses’ heads. I thought the track had to be made over before we could start again. The button in the hospital puzzled me some and the nurse told me if I needed anything, to push on the button, but I was afraid of it for some time. I did not know what might happen. My head got better and I rang the bell two or three times. They were prompt in looking after things for me. I do not know how long I was there.”
In speaking of the transaction with the claim agent, she said:
“I do not remember much about it, I remember his asking me if I could change a ten, when he said he would give me $25.00, and I had that five in my hand bag. I thought they were letting me have the money to go home on. ... I do not remember signing a statement there that morning. That is my signature to that paper. I do not remember signing it, nor the questions. . .' . Yes, he told me to sign the papers. Of course I had been hurt, but I did not know why it was. I thought they just wanted to say who was hurt on the train.”
In a letter written on the same day to her friend at Durango was the following statement:
“Am yet puzzling my brain to solve the problem how any engine, mail, two baggages and three passenger cars could have raised every tie, and sill, and run a bare dirt road over a hundred yards on a curve before making the tumble, and that with no more than slight cuts and bruises to but two passengers (myself and a little girl) when two of the last named were simply packed. That I am rather the worse for the experience is due to the coach taking the tumble and then going a bit farther, trying to stand on the front end. As I was on the second seat, I took the place of ‘bottom rail’.” .
As there is no evidence that the wrecked train tore up the track or ran on any hare dirt road at all, it being stated in the argument that such was not the case, the quoted language does not iridicate mental equilibrium or lucidity on the part of the writer. Hence, when the jury said she knew what she was doing part of the time when she wrote the letter, they had some justification for their answer. That she knew how much she was getting, and that it was being paid to her by the agent when she received the $25, is not necessarily controlling, but as the jury found she signed the draft and release, and received the $25 “as therein stated,” this is deemed by the defendant to be proof conclusive that she is bound and barred thereby. The draft recited merely an order to pay the plaintiff $25 and charge it to the account of an accident December 22, 1914, while a passenger on train No. 2, which was derailed near Martha, Kan. The release recited that the $25 was received in full payment of all claims and demands arising from or growing out of any and all personal injuries then apparent, as well as those that might thereafter develop, as the result of an accident December 22, 1914, while a passenger on train No. 2, which was derailed near Martha, Kan., and as a release and discharge from all suits, cases, causes of actions, claims and demands of every class and character in any wise connected with such accident. It would hardly be fair to hold, because the jury found the plaintiff received the $25 “as therein stated,” that she received such sum understandingly as a satisfaction, settlement and release of - all present and future claims arising out of the derailment which caused her injuries. To give this extreme meaning to the finding would be to violate the rule which requires that it be harmonized if possible with the other findings and with the general verdict. (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; Railway Co. v. Bussey, 66 Kan. 735, 742, 71 Pac. 261; Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289; Ahlstrom v. Kansas Milling Co., 85 Kan. 548, 550, 118 Pac. 57.)
Aside from the allegation that the company and its agents who procured or attempted to procure the release, knew or should have known that the plaintiff was not rational, and was incompetent to make a contract or execute a release, there was no averment of fraud. It is a pleasure to state that the young man who procured the instrument is not charged with intentional bad faith or overreaching, but appears to have conducted himself in a courteous manner. The practice, however, of procuring or attempting to procure such instruments from those still suffering from the excitement and pain of a recent injury, is one which must inevitably carry with it strong suspicion of undue haste and of unfairness, and such practice has not been, and should not be, encouraged or judicially approved. (Railway Co. v. Cunningham, 59 Kan. 722, 54 Pac. 1055; Railway Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066; Railway Co. v. Peck, 79 Kan. 413, 100 Pac. 54; Remy v. Packing Co., 90 Kan. 224, 133 Pac. 707; Union Pacific Railway v. Harris, 158 U. S. 326.)
In the Cunningham case it was said:
“Where such unseemly haste is made in obtaining settlements with parties who have sustained such serious injuries, and where the amount paid is so trifling and utterly disproportionate to any just compensation, it seems like wasting time to nicely discuss questions of evidence bearing on the plaintiff’s capacity to transact business.” (p. 727.)
Here a woman near sixty years of age established such injuries that she has received at the hands of the jury a verdict for $2700, although opposed by counsel of marked ability and proverbial influence with juries. This verdict has met the approval of the trial court. And yet, because of the document signed while in the hospital at Hoisington the day after the wreck, we are exhorted to hold that her recovery must go for naught. While such instruments, like other contracts, when freely and understandingly entered into are binding, however inequitable or one-sided, still when the question of contractual competency is raised and the evidence is such as to warrant fair-minded men in coming to different conclusions, the one reached by the jury is not to be set aside.
From all the circumstances shown by the record, the jury were justified in their general conclusion, and their answers to the special questions were sufficiently in harmony therewith to preclude a judgment on such findings for the defendant, and to render the action of the court in refusing a new trial proper.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This was an action to quiet title to the west twenty-three feet of the east one hundred two and one-half feet of lots one and two in block forty-six, old Atchison, Atchison county- (referred to in the pleadings as tract No. 1), and also the west forty-five and one-half feet of lots three and four in block forty-six (referred to in the pleadings as tract No. 2). B. P. Waggener, the defendant, in answer to the third amended petition, disclaimed any right, title or estate in that part of the property referred to as tract No. 1, and the only controversy remaining is over tract No. 2. The trial court sustained the’ defendant’s motion for judgment on the pleadings, and this is the judgment we are asked to review.
There is no dispute over the facts. Martha Mangan, the former owner of the property, was insane and her guardian secured a loan of $1000 from plaintiffs through an order of the probate court and gave a mortgage upon a part of the property to secure payment. The guardian defaulted in the payments on the note and failed to pay the taxes. Subsequently a suit was brought by the guardian to set aside the mortgage. In that suit Perry Hayes and W. C. Hayes came back with a cross-petition and asked to foreclose their mortgage and for •judgment for taxes paid. They prevailed in their cross-petition, and recovered judgment for $2753.11, which was made a first lien on the property which was ordered sold to satisfy the judgment. A tax deed which Perry Hayes had acquired was held void, but he was given a lien for the taxes, interest and costs, all of which merged in the judgment. Subsequently the property was sold under order of sale and purchased by one William Schaap for $7300. The sale was confirmed and certificate issued to Schaap, all the proceedings reciting that the sale was subject to the owner’s right of redemption, which would expire eighteen months after the sale. Subsequently the probate court made an order directing the guardian of Martha Mangan to sell her right or equity of redemption, and her equity was purchased by James S. Gibson for $450. The certificate of sale to Schaap is dated June 16, 1910. The petition alleges that on the 21st day of July, 1910, Schaap sold and conveyed a portion of both of these tracts to Perry Hayes and W. G. Hayes for $6800, which sum they paid to him, and that he executed to them a deed for the property. The petition also alleges that at the same time Schaap placed the grantees therein named in possession of the premises, and that the plaintiffs have ever since been and now are in the open, notorious, actual and physical possession thereof under and by virtue of such deed. It may be mentioned here that the statute (Civ. Code, § 476) provides that the defendant owner shall be entitled to the possession of the property during the period of redemption. The petition alleges that on the. 31st day of December, 1913, the sheriff executed and delivered to the plaintiffs a sheriff’s deed based upon the decree and the proceedings in the foreclosure case, which it is alleged perfected their title to tract No. 1, but did not include tract No. 2.
The petition further alleges that B. P. Waggener was the attorney for the guardian of the insane person, and that he purchased the property at the sheriff’s sale in the name of William Schaap and furnished the $7300 purchase money; and that subsequently he purchased the equity of redemption of his client through James S. Gibson, who acted for him. The petition alleges that because of Mr. Waggener’s relation to Mrs. Mangan, as her attorney, he was disqualified by law from attempting to purchase the property of his client, directly or indirectly, and the plaintiffs contend that whatever title to the property Waggener acquired inured by operation of law to the benefit of plaintiffs because of their deed from the sheriff. Mr. Waggener admits in his answer that he purchased the property; that Schaap and Gibson both acted as his agents: and that he furnished the money for which the property sold and also the $450 paid for the right of redemption of his client. So far as the record discloses, it may be said that his action in this respect appears to have been for the best interest of his client. Some one was obliged to furnish money with which to purchase the property to protect her interests. It appears that no one on behalf of his client has ever obj ected to what he did, and plaintiffs are not in position to take any advantage of the fact that while acting as her attorney he purchased the property.
One of the principal contentions made by plaintiffs is that because the mortgage was foreclosed in an action in which the mortgagor, the insane person, was plaintiff and not defendant, the statute gave her no equity of redemption or right that could be sold by the order of the probate court. This is based on an unreasonable construction of the language of section 476 of the code, which provides that “the defendant owner may redeem any real property sold under execution,” etc., and on the words “defendant owner” in section 492 of the code, which provides that “the rights of the defendant owner in relation to redemption may be assigned or transferred, and the purchaser or assignee thereof shall have the same right of redemption as the defendant owner.” Mrs. Mangan was the defendant in the cross-petition filed by Perry Hayes and W. C. Hayes, and her rights were protected to the same extent as though the mortgage had been foreclosed in an original action brought by the mortgagee against her as defendant.
In the present suit the plaintiffs appear to rely for a foundation on causes of action which were finally merged and extinguished in the judgment entered in their favor in the foreclosure case. All the claims they had against the real estate by virtue of the mortgage, interest and costs, as well as all claims against the property by reason of their tax deed, were merged in that judgment, and they received and receipted to the clerk for the amount of their judgment and costs out of the $7300 paid into the hands of the clerk by William Schaap, who acted for Mr. Waggener. All their causes of action were merged in the final judgment and thereby extinguished. (Price v. Bank, 62 Kan. 735, 64 Pac. 637, 84 Am. St. Rep. 419.) Of course, William Schaap as purchaser at the sheriff’s sale and as holder of the sheriff’s certificate could make no contract to place the plaintiffs in possession of the premises or give them any rights of possession which would in any manner affect the owner’s right of redemption. Plaintiffs purchased with full notice of the decree to which they were a party; and whatever possession they may have obtained by virtue of the deed did not afford a basis for a subsequent action to quiet title. All the deed from Schaap conveyed was an assignment of his interest as purchaser at the sheriff’s sale, and the deed expressly recited that the property was subject to redemption. Besides, the statute as well as the orders of the court in the proceedings preserved the owner’s right of redemption. The question of the propriety of Mr. Waggener’s conduct in purchasing the property of his client at the judicial sale was one that could arise only between himself and his client. The plaintiffs accepted and received the amount of their judgment, interest and costs out of the proceeds paid by him into the hands of the clerk, and are now estopped from claiming that the sale was void. The only interest they had in the sale was the satisfaction of their own judgment. The pleadings admit that their judgment was satisfied. As stated, subsequent to their acceptance of the amount of their judgment they took what amounted to nothing more than an assignment by Schaap of his certificate of sale, in which it was recited that his right, title and interest in the property was sold subject to redemption.
Under the admitted facts in the case the ruling of the trial court in rendering judgment in favor of the defendants was proper. There was no occasion for a jury as the law entitled defendant to judgment on the admitted facts. Besides, it was purely an equity case triable only by the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was in ejectment. A jury was waived and the cause was submitted to the court. There was a judgment for plaintiff, with special findings of fact and conclusions of law. From the judgment the defendant appeals.
Silas Armstrong was the original patentee of a tract of land at the junction of the Kansas and Missouri rivers, containing nearly two hundred and fifty acres. Early in 1867 a great flood raised both rivers, and there was a gorge of ice which broke through the Armstrong tract, cutting a new channel for the Missouri river. There was at that time a suit pending in the district court of Wyandotte county for partition of the tract, and a survey was ordered by the court. In September, 1867, the commissioners reported that only about two hundred acres of the original tract was left, almost fifty acres having washed away or disappeared. The report was confirmed and the, remainder of the tract was partitioned. Afterwards a contract was made with James F. Joy to riprap the bank, which he did, completing the work within a few months. The survey, under which the partition was made, is known as the Miller survey. The north, or more properly speaking, the northeasterly line of this survey, was from 200 to 300 feet beyond the riprap bank.
The lands in dispute are a part of the Armstrong tract. The same property was involved in a case before this court in Fowler v. Wood, 73 Kan. 511, 85 Pac. 763. A part of the same general tract was involved in the more recent case of Wood v. McAlpine, which was decided in 1911 (85 Kan. 657, 118 Pac. 1060; rehearing denied, 86 Kan. 804, 805, 121 Pac. 916). The general location and immediate surroundings are shown in the map accompanying the opinion in Fowler v. Wood, supra, except that the land owned by plaintiff Stark is there designated as the James tract. Stark derives title by deed from Jane W. Stark to a piece of land 185 feet in width extending in a north easterly direction from the center of James street to low-water mark on the Missouri river. James street at this point runs northwest, so that Stark’s land lies in a northeasterly direction riverwards. What is called the north line of his tract is Ohio avenue, running at right angles to James street and extending to the river. Meriwether, the defendant, owns lands immediately adjoining Stark’s on the southeast, and also extending toward the river. Stark claims the lands in dispute as accretions to the main shore of the Missouri river. Meriwether contended in the court below, and still asserts, that the lands in dispute are not accretions to the main' shore, but are accretions to an island in the Missouri- river, spoken of as Howe island, to which Meriwether acquired title after long years of litigation with Howe.
The testimony in the case was voluminous and conflicting. It consisted of much oral testimony, in which numerous witnesses attempted from recollection to show the situation of the river at various times since 1867, dozens of maps, plats and photographs made at different periods and at various stages of the river, together with the pleadings, reports of Special masters, findings and records in several suits in the federal courts, and records of the state courts in suits involving the lands in dispute and other lands similarly situated. From this great mass of conflicting testimony the trial court found that the land in controversy is not an accretion to an island in the Missouri river, but that it was formed by accretions to the mainland.
Jane Stark, through whom the plaintiff claims, and Meriwether were both parties to the action in Fowler v. Wood, supra, but they were fighting side by side, and nothing decided in that case can be said to be res judicata as between them.
The plaintiff alleged in his reply that Meriwether was es-topped to claim that the lands in controversy were accretions to an island in the Missouri river, because of the position taken by him in former litigation. In support of these averments the plaintiff offered the records in the case of Meriwether v. Fowler Land Association, John W. Stark, et al., in the United States circuit court of Kansas, and in Meriwether v. Caskey, County Treasurer et al., in the same court, and in Railroad Company v. Caskey, County Treasurer, also in the federal court, which were suits involving the disposition of $22,000 condemnation money paid into the hands of the county treasurer for the right of way of a railroad across lands, including those in controversy here. Meriwether and Stark were parties in all this litigation, as was also the state of Kansas, which appeared by the attorney-general. The Howes, who claimed the land was an accretion to an island in the Missouri river, were also parties. The state of Kansas asserted that the land claimed by Meriwether, and all the land between the state line, Ohio avenue and the riprap bank of the Missouri river, was an island in the Missouri river, belonging to Kansas. In each of these actions Meriwether alleged in his pleadings that the lands were accretions to the main land in Kansas. It further appears that as a result of that litigation Meriwether recovered about $20,000, and Jane W. Stark, mother of the plaintiff in this action, recovered her share of the condemnation fund.
The proof further showed that in a number of cases in the state courts in which Meriwether was a party, and which involved the title to or the possession of lands lying in the same general tract, Meriwether denied that there was an island in the river the accretions to which extended to the southeast side of Ohio avenue. In a cross-complaint filed September 5, 1904, in one of the cases in the federal court, Meriwether made the following averment: “Your orator states the fact to be the land was never any portion of any island in the Missouri river.” In the same pleading he made this averment:
“In the year 1889, and for several years thereafter, there was an island located in the Missouri river several hundred feet east of the state line, . . . and accretions from the Kansas shore subsequently extended further north and east until they finally became connected with the said island.”
In Meriwether v. Fowler Land Association, John W. Stark, Jane W. Stark, S. K. Howe, et al., filed September 21, 1900, in the federal court, the bill in equity was sworn to by Meriwether, in which he set forth his claims to the lands and alleged that they were part of a large tract located in the state of Kansas, “all of which has been formed by accretions to the old south bank of the Missouri river.”
The findings of the trial court are as follows:
“1. That the location of the land in controversy is shown on the map hereto attached, known and described in the evidence as the Coulter Map. Since a time prior to 1869, and until 1888, the main channel of the Missouri river was along the old riprap bank (the right bank) of the Missouri river marked “Rip-Rap Bank” on said map. The distance along said riprap bank, from the mouth of the Kaw River to the State Line, was 3120 feet, of which the land then owned by Stark had a river frontage of 185 feet. The land then owned by Meriwether and those under whom he claims, lay immediately adjoining and below the Stark land and had a river frontage of 1560 feet.
“2. That in the year 1889, and the years immediately following, dikes were extended from the mouth of the Kaw river. The accumulation of deposit below said dikes then increased and grew in size and elevation. The main channel of the Missouri river changed to a point more than 1000 feet north of the old riprap bank, so that a new right bank of the Missouri river was formed, which was more than 1000 feet northerly from the old riprap bank, and soon after 1890, the island or islands east of and near the state line and the new land formed as aforesaid became connected up into one continuous body of land. The accretions commencing below the piling driven in to form the dike, and connecting with the mainland, extending easterly or down the Missouri river until it connected with or joined the island near the state line.
“3. The total acreage of new land gained from the river between the mouth of the Kaw river and the state line extended, and the old riprap bank, is eighty-seven and one-half acres, of which Woods and others recovered in the case of Fowler v. Wood, 35% acres. The total area of the land between the extension of the southerly line of the Stark land and the state line, and the old riprap bank, is twenty-seven acres, that part extending between the southerly and northerly lines of the Stark land prolonged being six and three-tenths acres, and the remainder being twenty and seven-tenths acres.
“4. In the year 1889, there was and for several years had been an island in the Missouri river, sometimes called the Howe Island north and in front of the old original frontage claimed by Meriwether. At said date, in 1889, the more elevated part of this land was in Missouri and had trees growing thereon, of ten or twelve feet in height, also two houses were thereon and some portions of the land were enclosed with fences.
“5. The island mentioned in the evidence as a small island which appeared in the Missouri river in the year 1888, located on the further or northeast side of the deepest part of the main channel of the stream at a distance of approximately 200 feet from the right or south bank of the river, marked “B” on the Coulter map, never washed away, but the extension of the dikes at the mouth of the Kaw river and the resulting' formation of new land at and below the mouth of said river, caused the current which theretofore flowed along the western part of said island, to flow on the other side of said island, leaving a line of low ground along the riprap bank which remained in that condition until the accretions which started at the mouth of the Kaw river gradually extended east and down the Missouri river, until it connected the Howe island and the main land into one body.
“6. Neither of the two islands before mentioned ever washed .away, but they gradually came together, and by reason of the construction of the dikes at the mouth of the Kaw river, as hereinbefore stated and the extension of the islands and the deposits against the old bank, between the Stark land and the state line, there became and was a continuous formation of land between the upper end -of the so-called Howe island and the miouth of the Kaw river, and the main current of the stream was changed, so as to run on the north side of said Howe island, instead of along the old riprap bank; but the said formation of new land extended from the dikes and mainland until it finally reached the island and was not formed by accretions to the island.
“7. For several years after all of the land in controversy had become permanent land, the old, original channel, which extended along or near the old riprap bank, remained lower than the land in controversy, and there was water during flood times to a considerable depth in front of that portion of the old riprap bank which was the original river boundary of plaintiff’s land and directly between the land in dispute and the land claimed by plaintiff.
“8. The land in controversy is about eight hundred feet distant from, and is an accretion to the land as originally claimed by plaintiff, prior to the change in the location of the river channel.
“9. H. M. Meriwether, the defendant, was not in actual adverse possession of the land in controversy for the fifteen years prior to the bringing of this action.
"10. The defendant, H. M. Meriwether, was never a citizen or resident of the state of Kansas.
“11. The island sometimes called the Howe island never extended over into Kansas and the accretions from the state of Kansas did extend over into Missouri.”
It is said by counsel for Meriwether in his brief that “where the court confines itself to the questions of pure fact as distinguished from mixed fact and law, the findings are substantially correct.” It is, however, one of the main contentions of the defendant that the trial court was in error in making the following finding:
“But the said formation of new land extended from the dikes and main land until it finally reached the island, and was not formed by accretions to the island.”
It is strenuously urged that this is not a finding of pure fact, but one of mixed fact and law, and that it is erroneous because, it is said, the court had already positively found in its previous findings that the Howe-Meriwether island extended over into Kansas and never washed away. It is insisted that if the island extended over into Kansas at all, it covered the very land in controversy. At this point counsel directs" our attention to a number of photographs offered in evidence in proof of the fact that part of the old channel next to the riprap bank immediately in front of the Stark land did not fill up, but remained in existence for many years after the land in controversy and other land surrounding it was solid, usable land with trees of considerable size growing upon" it. These exhibits were all in evidence before the trial court, with explanations from a number of witnesses showing the time when the various photographs were taken, the position of the camera and the stage of the river. Undoubtedly the trial court was far better able to weigh the evidence than we are.
We can not agree with counsel in his construction of the findings in respect of the location of the Howe-Meriwether island. His contention lays stress upon the language of the court in finding No. 4, that in 1889 the more elevated portion of this island was in Missouri and had trees growing thereon. Standing alone, the finding leaves an inference that the less elevated part of the island was in Kansas; but it is our duty to reconcile the findings if possible to do so. We think the inference relied upon is entirely overcome by the express finding No. 11, which reads:
“The island sometimes called the Howe Island never extended over into Kansas and the accretions from the State of Kansas did extend over into Missouri.”
This finding is so explicit that it leaves no room for doubt as to what the court meant to find the fact to be. It is not a conclusion of mixed fact and law, but one of pure fact. Whether an accretion has been formed from the main bank of a stream to an island, or from the island to the bank, is always a question of fact, to be determined, of course, by reference to the law of accretions, but none the less it is a question of fact. Upon both questions, as to whether the Howe island extended into Kansas, and whether the lands in dispute were accretions to the main shore or to the island, there was abundance of evidence from witnesses which supports the findings of the court. There was a sharp conflict in the evidence, especially in the conditions testified to by witnesses from their recollections extending back a quarter of a century; but wholly aside from the former testimony of Meriwether himself and his pleadings in various courts in relation to the same facts and conditions, there was evidence which sustains the court’s findings. That the Coulter map, mentioned in the findings, shows a portion of the Howe island as extending across the state line into Kansas, we do not regard as conclusive of the fact. The court has made an express finding to the contrary, and there was evidence which contradicted the map in this respect. It is not necessary to decide in this case that defendant is estopped to assert the exact opposite of that contended for by him in former litigation. Perhaps he ought to be estopped. At all events, the court doubtless considered the evidence from the records of the previous litigation as some proof that the Howe island was never in Kansas, and that the lands in dispute are accretions to the lands of plaintiff. It is suggested that all the reclamation work by which the accretions were formed has been made at Meriwether’s expense, toward which plaintiff has not contributed, and that plaintiff has already recovered more than his share of the lands. It may be that plaintiff’s land has been benefited by the work which defendant Meriwether has carried on.in his own interests, but with that we have nothing to do.
It is insisted that plaintiff failed to establish a title paramount to that of Meriwether; that the most that can be said' is, he proved the land in dispute was an accretion generally,, and wholly failed to show that it was an accretion to the part of the mainland owned by him. Because of the eighth finding,, that the accretions started at a point several hundred yards upstream and worked south and down the river, it is said that “by no possibility could they have got to the Howe island without going over the land in controversy.” We think the contention is based upon a narrow interpretation of the findings. The-court, in substance, finds that the extension of dikes upstream started the formation of accretions all along the riprap bank of the river. Where they started or what originally caused them to form is not important. (Fowler v. Wood, 73 Kan. 511, 549, 85 Pac. 763.) The court finds that the accretions were from the dikes and mainland to the island. The finding-that the ground between the riprap bank and the island remained low ground until the accretions connected with the Howe island is not a finding that the main channel of the river in front of Stark’s land was not filled up “until the accretions became permanent land.”
The side lines of Stark’s land approached the original shore line at an angle bearing north of east, and the judgment extends his lines across the accretions in the same direction, parallel to Ohio avenue. Meriwether has acquired the title to a tract immediately adjoining that of Stark on the south and lower down, the original shore line of which curves slightly to the east, and he now contends that the judgment is erroneous in permitting Stark’s lines to be extended in a direction parallel to Ohio avenue, and that his own lines should be extended so as to include the lands in dispute. He has no objection to the extension of Stark’s lines at an obtuse angle in a north and easterly direction across lands decided in Fowler v. Wood, supra, to belong to Annie B. Wood et al. It is said in the brief of Stark that Meriwether raised the same contention as to the proper rule of apportionment of' accretions in the case of Fowler v. Wood, in which he was a defendant, and that Meriwether is concluded or bound by the fact that the trial court adopted the same rule there that was applied here. The affirmance of the judgment which awarded to the plaintiffs in that case accretions extending outward on lines parallel to the original lines can not be regarded as stare decisis, because the correctness of that rule of apportionment was not presented to nor passed upon by the court. However, the affirmance of the rule there adopted is entitled to some weight. The proper method or rule for apportioning accretions on rivers or other bodies of water between adjoining proprietors depends upon varying circumstances and conditions, so that it is impracticable to state a general rule that will apply in all cases. There has been, therefore, more or less conflict in the decided cases. Numerous decisions will be found which pay no regard to the direction of the side lines between contiguous proprietors. The various rules are discussed with numerous citations in 1 R. C. L. 244-247. Sometimes the rule adopted is to extend the original frontage as nearly as practicable at right angles with the course of the stream or at right angles with the thread of the stream. The main object pursued in all cases is to secure to each riparian owner as nearly as possible his former means of access to the stream. In some cases equitable rules have been adopted where the enforcement of some arbitrary rule would have the effect to deprive one proprietor of access to the stream. The circumstances of the particular cáse may, and often do, require the modification of any of the rules. (Note, 21 L. R. A. 776.)
The weight of authority seems to recognize that “the proper rule to follow, unless it results in such inequalities as to make it inequitable, is to give the riparian proprietors a frontage on the new shore proportional to their frontage on the old one, connecting the respective points by straight lines.” (Note, 25 L. R. A., n. s., 257.)
(See, Nauman v. Burch, 91 Ill. App. 48; Berry v. Hoogendoorn, 133 Iowa, 437, 108 N. W. 923; Hathaway v. Milwaukee, 132 Wis. 249, 111 N. W. 570, 112 N. W. 455, 9 L. R. A., n. s., 778, 122 Am. St. Rep. 975.)
We are unable to discover from an examination of the abstract that the trial court’s attention was expressly challenged to this question or that the court was asked to adopt a different rule of apportionment. The court makes no finding showing the length of the new shore line or the exact direction of the thread of the stream at the present time. Nor does'it appear from the record that the trial court was asked to make findings of this nature. Among the exhibits there is a map made for H. M. Meriwether by Tuttle and Pike in 1893, which shows the then bank of the Missouri river and the thread of the stream. Neither the present length of the bank nor the direction of the thread of the stream is shown. “Exhibit 37” is a map with lines showing the apportionment of the accretions, which we assume are drawn in accordance with the rule which defendant claims should have been followed. When this map was made, or the purpose for which it was introduced in evidence, is not apparent. The essential facts to enable this court to formulate a rule for the equitable division of the accretions are absent from the record.
Except for the purpose of enabling defendant to defeat plaintiff’s claim to the particular land in dispute, we discover no reason for the adoption in the present case of what is called the equitable rule. The extension of Meriwether’s lands in exactly the same way on lines parallel to his original lot lines will give him access to the Missouri river, if he goes far enough. The fact that he will be required to cross the state line to reach the river does not alter the situation, nor call for the adoption of a different rule of apportionment from the one followed in Fowler v. Wood, 73 Kan. 511, 85 Pac. 763.
We think the findings are sustained by sufficient evidence, and therefore the judgment will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment for the balance of the purchase price-for the sale of real property. The defendant appeals.
The petition alleges that in March, 1910, Adam Dailey ver bally agreed to sell and convey to the defendant certain real property for the sum of $1250, to be paid $20 each month for eight months and thereafter $10 per month, with interest, until the full sum was paid; that about the time of making the contract the defendant took possession of the property; that he paid $450 on the principal and $178.65 as interest; that default had been made in the monthly payments since April, 1918; that thereby the whole sum remaining unpaid, $800, became due and payable; that in 1913 Adam Dailey conveyed the property by warranty deed to the plaintiff, who brings the action to recover the $800 due on the contract. Attached to the petition is an alleged copy of a written contract between Adam Dailey and the defendant for the sale of the lot by Dailey to the defendant for the sum of $1250 with conditions providing that on default by Boothe in making payment, in paying taxes and insurance, possession of the property and the amount paid should be forfeited; and for the acceleration of payments in default at the option of Dailey; and providing that on full payment Dailey would convey the property to Boothe by good and sufficient deed of general warranty. This contract was not dated, and was not signed by either Dailey or Boothe. There was no allegation in the petition of any offer or tender of a deed by either the plaintiff or Adam Dailey to the defendant, on payment of the balance of the money.
The defendant demurred to the petition on the ground that the plaintiff was not a party in interest and had no capacity to sue; that the action was brought to charge the defendant upon an agreement .for the sale of real estate which was not in writing nor signed by the party so charged; that the action was upon a verbal contract which was not to be performed within one year from the making thereof; and that the petition of the plaintiff did not state facts sufficient to constitute a cause of action. The demurrer was overruled.
On the trial Adam Dailey testified in substance as follows;
“I know the defendant, Boothe; had a business transaction with him in March, 1910; I sold him the lot in Westport Annex, this counfy, for $1250; a written contract was afterwards prepared by my niece who .took it over for Mr. Boothe to sign; he did not sign it. After I sold him this property Boothe took possession I think in March, 1910, it was about a week after the sale. Boothe continued to make payments on the property for about three years; he paid $460. Sometimes he got behind and sometimes he paid up. He paid $20 per month for the first eight months, after which he was to pay $10 per month. I sold my equity in the place to Mr. Witt the 27th or 28th of June, 1913. There were three months’ payments due when I sold to Mr. Witt. Witt went down to look at the house before he bought it and I told Boothe I had sold it to Witt. I told him to make his payments to Witt; he said, ‘I don’t owe Witt anything.’ ”
It does not appear when the written contract was prepared. It was presented to the defendant’s wife two years after the deféndant had taken possession of the property. The defendant testified in substance as follows:
“My name is Edward D. Boothe; I reside in Westport Annex, Johnson county, Kansas. ■ I have a family; wife and children. I know Adam Dailey and his handwriting (witness shown paper). The signature to that paper is that of Adam Dailey, same is marked Exhibit ‘A’ by stenographer. (31.) I had a business transaction with Dailey on March, 1910. I made an agreement to purchase this property and paid $5 down and told him I would bring the other $15. I got a receipt for the $5. Witness shown paper exhibit ‘A’ (45); that is the receipt he gave me at that time. There was never any contract or agreement between Mr. Dailey and me for the sale of that Lot 126, Westport Annex, Johnson county, Kansas, except that receipt. I never agreed to pay the taxes or insurance on the property. I never made any contract or agreement with Dailey'that in case I failed to pay any one of the payments he might declare the contract void and the whole $1250 due. Mr. Dailey knew when we took possession of the property-; he knew I was a married man and that we took possession and occupied the house as our homestead.. I never paid any money or authorized any one to pay any money to Mr. Witt on my purchase of the property from Mr. Dailey.”
The receipt named by the defendant as “Exhibit A” reads as follows:
“Rosedale, Kansas, March 19, 1910. Received of Edward D. Boothe, five dollars, payment on house in Westport Annex. Balance $20 month for eight months, balance $10 a month at 6% interest. Take charge April 10, 1910. Adam Dailey.”
There was no evidence to' show that the purported written contract attached to the petition was intended to be signed by either Adam Dailey or the defendant, or that it embodied the verbal contract that was entered into by them. Three monthly payments were in default when this action was commenced.
The defendant insists that the statute of frauds prevents any action from being maintained on this contract. The written contract on which the plaintiff seeks to recover was not signed by Adam Dailey or the defendant. It does not appear that it set out the contract that was entered into by the parties at the time the transaction was had. The written contract does not comply with the statute of frauds. No action can be maintained on it alone. The receipt given by Adam Dailey does not comply with the statute. (Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Brundige v. Blair, 43 Kan. 364, 370, 23 Pac. 482; Ross v. Allen, 45 Kan. 231, 25 Pac. 570, 10 L. R. A. 835; Hartshorn v. Smart, 67 Kan. 543, 544, 73 Pac. 73; Van Doren v. Cement Co., 92 Kan. 470, 474, 141 Pac. 560.) The defendant paid part of the purchase price, went into possession of the property, remained in possession until the commencement of this action, and then made other payments on the purchase price. It does not appear that he made any improvements on the property or did anything other than to pay part of the purchase price and go into possession. The defendant seeks to retain possession of the property and at the same time defeat the plaintiff in the recovery of the balance of the purchase price. If he can accomplish this by reason of the statute of frauds he perpetrates a fraud on the plaintiff by getting the property at less than half he agreed to pay for it. Such a result is not contemplated by the statute of frauds. There are a number of decisions of the courts of this country holding that the delivery of possession of real property sold under an oral contract is sufficient to take the contract out of the operation of the statute of frauds. These authorities will be found collated in notes in 3 L. R. A., n. s., 790, and in 8 L. R. A., n. s., 870. In the present case there was more than the delivery of possession. There was payment of part of the; purchase price and retention of possession. In Smethers v. Lindsay, 89 Kan. 338, 131 Pac. 563, it was stated in the syllabus that part performance and possession take an oral contract for the sale of real estate out of the operation of the statute of frauds. There are numerous authorities holding that part payment and possession are sufficient. (Bentley et al. v. Barnes, 162 Ala. 524, 50 South. 361; Chamberlain v. Robertson, 31 Iowa, 408; Bomier v. Caldwell, 8 Mich. 463; Tatum v. Brooker, 51 Mo. 148; Adair v. Adair, 78 Mo. 630; Walker v. Owen, 79 Mo. 563; Lipp v. Hunt, 25 Neb. 91, 41 N. W. 143; Ashmore v. Evans, 11 N. J. Ch. 151; Biden v. James, 3 N. Y. St. Repr. 734; Admr. of Pike v. Morey, 32 Vt. 37; Middleton v. Selby, 19 W. Va. 167; Blanchard v. McDougal, 6 Wis. 167; 36 Cyc. 654.) The defendant can not defeat the plaintiff in his action for the recovery of the balance of the purchase price by setting up the statute of frauds.
The defendant argues that the plaintiff, by his warranty deed from Adam Dailey, did not acquire the right .to recover the balance of the purchase price of this land from the defendant. The deed is not set out in the abstract. Presumably it is an ordinary warranty deed. It transfers to the plaintiff at least such rights as Adam Dailey had in the land. Dailey’s interest in the land was his right to look to it for the recovery of the balance of the purchase price. That is all that he could convey by his deed. That much he did convey to the plaintiff. (Laughlin v. North Wisconsin Lumber Co., 176 Fed. 772; Ten Eick v. Simpson, 1 Sandf. Ch. [N. Y.] 244; Southern B. & L. Ass’n. v. Page et al., 46 W. Va. 302; Dickey v. Lyon, 19 Iowa, 544; D’Wolf v. Pratt et al., 42 Ill. 198; Shenners v. Pritchard and another, 104 Wis. 287, 80 N. W. 458; 39 Cyc. 1664.)
It is contended that this property is the homestead of the defendant and his wife, and that judgment can not be rendered against him because his wife is not a party to the action. The judgment rendered is a personal judgment against the defendant. So far as the abstracts show, it is as follows:
“It is therefore now by the court considered, ordered and adjudged that the plaintiff, H. M. Witt, recover of and from the defendant, Ed. Booth, the sum of $832.40 with interest at the rate of .... per cent per annum and costs in this action taxed at $.. . . for which let execution issue.”
Nothing is said about any homestead or any lien or any sale of any property. Such a judgment can be enforced by ordinary execution. If an execution is levied on the defendant’s homestead, his wife’s right in that homestead can then be protected, if she has any. (King v. Wilson, 95 Kan. 390, 148 Pac. 752.)
The defendant insists that an action to recover the entire remainder of the purchase price can not be maintained by the plaintiff without a tender of a deed for the property to the defendant. The court, in rendering judgment, required the plaintiff to deposit in court a deed conveying the real property to the defendant, to be delivered to him on payment of the judgment and costs. This protected the rights of the defendant, so far as the tender of a deed is concerned.
The last contention is that the plaintiff is not entitled to recover more than the installments due at the time the action was begun. Judgment was rendered for the full amount of the indebtedness. Part of this was not then due. There was nothing in the oral contract, as established by the evidence, to indicate that there was to be any acceleration of payments upon any default. Under these circumstances, the plaintiff was not entitled to judgment for more than the amount that was due at the time the action was commenced.
The cause is remanded, with directions to the trial court to enter judgment in favor of the plaintiff for the amount due at the time of the commencement of the action, and to set aside that part of the judgment directing the delivery of the deed deposited upon payment of the amount of the judgment. | [
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The opinion of the court was delivered by
West, J.:
The American Gas Company appeals from a judgment in-mandamus requiring it to furnish gas for the street lights in the city of Scammon, and to lay and maintain in good condition and repair, service pipes to such lamps. From the pleadings, evidence and admissions, it appears that in 1905 the city enacted an ordinance giving to certain persons and their successors authority to “construct, acquire, operate and maintain gas works in the city of Scammon, Kansas, . . . and to sell and supply natural gas to said city and its inhabitants, and to enter upon and dig and excavate in the streets, . . . and to lay, maintain and operate in the said streets, . . . gas mains and gas pipes, with all necessary, and proper attachments, connections, fixtures and appurtenances, . . . with the right at all times hereafter during said period to dig and excavate for the purpose of relaying, repairing, replacing and removing the said gas mains or pipes or any portion thereof, and for the same purpose to make connections for consumers and such pipes and mains.”
Section 3 provided that “No person, company or corporation shall be permitted to make any connections with any of the distributing or service pipes of the said grantees, unless duly authorized by said grantees, their successors or assigns.” By another ordinance, passed in 1906, the Welsbach company was granted a franchise “to lay in the streets of the city of Scammon gas pipes and connections, erect therein lamp posts, and lamps and maintain in said streets and other public places all such fixtures and other equipment as shall be necessary for the furnishing of gas light to the city under the contract herein made; provided that all sidewalks and streets shall be fully restored to their former condition by said lighting company.” The lights were to be fixed at such points as should be designated by the city; provided that none should be required to be placed at a point more than 175 feet distant from any domestic gas main of the American Gas Company.
It was admitted that in pursuance of this ordinance, the Welsbach company did lay, or cause to be laid, mains to its posts, also that under a contract made in 1906 between the two companies, the Welsbach company paid for all the service pipes extending more than fifty feet from the mains of the American Gas Company for lamps installed by the former company, and that up until the passage of ordinance No. 89 the Welsbach company paid the cost of repairs upon these service pipes. The contract referred to bound the gas company to furnish natural gas for the street lights erected or to be erected by the Welsbach company, and provided, among other things, that all the lamp posts, fixtures, lanterns and lamps furnished by the lighting company should remain its property, and that the gas company should “make the necessary taps in the gas mains for said service connections, and to furnish and lay at its own expense the necessary fifty feet for each service, it being understood and agreed that any service pipe in excess of fifty feet for any one service is to be provided for by said second party [the Welsbach company].”
It was alleged in the answer of the lighting company that the gas company failed to keep its mains and service pipes in repair, and that the lighting company refused to renew the contract of 1906 except upon condition that the city furnish and deliver the gas to the lamps, which was agreed to by the lighting company and the city, and the Welsbach company prayed that the gas company be required to lay and maintain in good order all necessary service pipes from its mains to the lamps, and to furnish the necessary gas.
In September, 1915, the city enacted ordinance No. 89, declaring it necessary and ordering that the gas company furnish and deliver natural gas to sixty-five street lamps and such additional ones as might thereafter be ordered, also directing the company to lay and maintain in good condition and repair the service pipes to such lamps. The gas company, which •supplies several cities, challenging the jurisdiction of the •court and invoking that of the public utilities commission, answered that it was under no contract with the city to furnish gas to light its streets, and that it was the duty of the lighting company to keep the service pipes in safe condition •and repair, and as this was not done and the pipes became leaky and dangerous, the supply from thirteen of the lamps was shut off. Complaint was made that by ordinance No. 88 the city cut in two the price formerly received for the gas furnished for the street lights, but the abstract contains the following:
“Admitted: At' that time and in this case the question was not before the court as to the price to be paid by the city of Scammon for gas. That the subject is a matter either of contract or under the control •of the Board of Public Utilities.”
This matter being eliminated, the only question for consideration is whether or not the judgment requiring the gas company to furnish gas and to repair and maintain the service pipes was proper.
While section 40 of the public utilities act (Laws 1911, ch. 238) makes the remedies provided in the act cumulative and mot exclusive, still section 20 fits the situation so precisely that upon the authority of The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544, we hold that the commission and not the court should determine the controversy. That section expressly prohibits a public utility from making any •change in any “rule or regulation or practice pertaining to the service or rates,” without the consent of the commission. For many years the gas company supplied gas for the lamps, and to ■turn off this supply from thirteen of the sixty-five is clearly to make a change in its practice pertaining to the service. The repair and maintenance of service pipes, especially those portions. thereof from points fifty feet from the gas company’s mains to the Welsbach company’s posts, while involving certain legal questions, are practically administrative matters very proper for determination by the commission, and the furnishing of the gas is still more clearly of such administrative character.
In the Postal Telegraph Company case mandamus was sought by the attorney for the commission to compel a res toration of service which had been discontinued without permission of that body, and this court declined to act until the defendant company should have an opportunity to file its application with the commission for formal'leave to discontinue its station. It was said:
“But we insist that the first official tribunal to have consideration of such matters is the public utilities commission.” (p. 307.)
In this case the city, instead of invoking the judicial process-of mandamus, should have applied for relief to the tribunal expressly provided by law for the settlement of such controversies,, and it .was error under the circumstances to grant the writ.
The judgment is- therefore reversed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was commenced in June, 1912, against George T. Cubbon, L. O. Steenrod and others, all residents of Sedgwick county, to recover damages for pecuniary losses sustained by reason of the alleged fraud of defendants in procuring from plaintiff a fraudulent deed purporting to convey to George Cubbon two sections of land in Kearny county. In November, 1911, the plaintiff brought a suit in the district court of Kearny county against George T. Cubbon to set aside the same deed which he had placed of record. She recovered judgment in that suit setting aside the deed as fraudulent and quieting her title to the lands. In this action defendant Cubbon answered pleading that the suit in Kearny county was res judicata as to all damages alleged to have been sustained by his fraud in procuring the execution of the deed, and the answer set out the petition, answer, reply, findings of the jury and the judgment. The court sustained a demurrer on his behalf to plaintiff’s evidence, the journal entry reciting that the ruling was made on the sole ground that plaintiff should have pleaded and proved her claim for damages against him in the former suit. From this ruling plaintiff appeals.
The suit to remove the cloud cast upon plaintiff’s title by the fraudulent deed was not in any respect res judicata on the question of damages suffered from the fraudulent conduct of George T. Cubbon in procuring the conveyance. None of the other defendants was a necessary party to the suit to quiet title. It is only necessary to note that plaintiff’s cause of action for damages did not accrue until she had cleared the records of the fraudulent deed. She now sues for the pecuniary losses which she sustained in removing the cloud upon her title, the moneys expended for attorney’s fees and other expenses in connection with that suit and in her efforts to procure a conveyance which would have cleared her title without a suit, and also for exemplary damages against Cubbon and those alleged to have been associated with him in the transaction. There is no splitting of causes of action, for the reason that not until her suit in Kearny county was finally determined could she show the extent of her damages. Had she joined in her suit there a claim for damages she would have been es-topped in a subsequent action to claim damages for the pecuniary loss sustained in being compelled to prosecute the first suit. We think the authorities in respect to splitting of causes of action relied upon by defendant have no application to the facts in this case. Nor does the doctrine of the election of remedies apply, for the reason that the two remedies are not inconsistent and, as already stated, the one for damages had not fully accrued when the other was ripe for action.
It was not necessary for the plaintiff to bring up the evidence, although the ruling of the court was made after the evidence was submitted. There is not the slightest dispute as to the facts. They appear in the pleadings. The ruling of the court, based expressly upon the grounds stated in the judgment sustaining the demurrer, raises a question of law and nothing else.
The first suit in Kearny county was an equitable action, local in character, which could have been brought only in that county. The present one is an action at law, transitory in character, which might have been .brought in any county where personal service could be had upon the defendants. The issues in the two actions were not identical, and therefore the judgment in the first could not have been res judicata in the other, except between the plaintiff and George T. Cubbon, and between them only as to the issue of fraud. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825; Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159.) The plaintiff had both the right to have the title to her real estate cleared and to recover any expense incurred in enforcing that right. They were not necessarily involved in one action, especially since the cause of action for the expense incurred in removing the cloud on her title did not accrue until the first action was determined.
Naugle v. Naugle, 89 Kan. 622, 132 Pac. 164, is cited by defendant as conclusive, but the prior action there was a suit for specific performance. A judgment denying plaintiff any relief was held res judicata in a subsequent action for damages, because each remedy was based solely upon the same cause of action and because without any prayer in the alternative for damages in case specific performance can not be ordered the court may under the code practice award damages.
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.:
In this action the plaintiff seeks to recover damages for personal injuries resulting from a collision between a motorcycle upon which he was riding and á street car of the defendant. The jury returned a verdict in his favor and answered forty-five special questions. The court set aside the verdict and upon the special findings rendered judgment in defendant’s favor for costs, from which the plaintiff appeals.
The plaintiff alleged that at the time of the accident he was driving his motorcycle in a careful and prudent manner and defendant was operating its street car at a reckless and dangerous rate of speed, to wit, twenty-five miles per hour, without ringing the bell or sounding any warning of the approach of the car at the crossing, and without having the car equipped with proper appliances to check its speed, and without having the appliances and brakes properly screened or shielded; also that the brakes and appliances were worn out, defective and worthless, and that these defects and conditions had existed for a long time and could have been known by defendant by reasonable care and diligence. There was, further, an allegation in substance that after the motorman discovered the dangerous position of the plaintiff under the car he negligently failed to stop, and that the car dragged the plaintiff for a distance of about ninety feet.
The facts found by the jury are, in substance, these: The tracks of the defendant run north and south on New Jersey street in the city of Lawrence. Tenth street runs east and west and crosses New Jersey street. The accident occurred at this intersection, about dusk on the evening of May 4, 1912. The plaintiff, who resided three blocks distant, was familiar with the situation and experienced in the operation of motorcycles. At the time of the accident he was traveling east on Tenth avenue at a speed of from twenty to twenty-five miles an hour, and he did not reduce his speed until he saw the street car when he was between fifty-five and sixty-five feet from the tracks-The maximum speed at which motorcycles are permitted to run by the ordinances of the city of Lawrence is fifteen miles an hour. The jury found that plaintiff did not approach the crossing at a speed which was reasonable and proper, either with regard to the use and traffic of the intersection or with regard to his own safety; that he did not listen for approaching cars on New Jersey street, that if he had shut off his motor and listened he could have heard the noise of the car and its gong, which was sounded just before the car reached Tenth street. The street car was running about ten miles an hour. An ordinance of the city permitted street cars to run at fifteen miles an hour. The headlight of the street car was lighted at the time. As the car approached the intersection the motorman looked west on Tenth street but did not see the plaintiff for the reason that the plaintiff was not close enough to be seen from the car. After looking to the west the motorman looked east for any vehicles or persons approaching from that direction. There is a much steeper grade to the east of New Jersey street than there is to the west. When first seen by the motorman the plaintiff was twenty-five feet from the car. Immediately on discovering the plaintiff the motorman applied the brakes and made every possible effort to stop the car, which ran from eighty to ninety feet before coming to a stop. The jury found that, under the circumstances, considering the speed of the car and the downward grade of the street, thiq was a reasonable distance within which to stop the car. It appears that when the plaintiff saw he would not be' able to stop his machine he attempted to turn it sharply toward the north and to pass between the curbing at the west side of New Jersey street and the approaching car. He turned his machine to the northeast and stopped it suddenly five or six feet from the car, but was thrown over the machine and partly under the running board of the car, and was dragged for some distance before the car was stopped. The findings are that when the plaintiff was thrown from his machine in front of the car the motorman did not see him and did not know until the car was stopped that the plaintiff was under it. The jury were asked to state in what the negligence of the defendant consisted, and gave the following answer:
“Motorman’s negligence in not seeing approaching plaintiff before his attention was called to same by passengers on said car.”
The first complaint is of the refusal to permit a witness who saw the accident to answer this question: “If this car had abated its speed or slackened its speed could the collision, in your judgment, have been avoided?” In the first place the jury did not need a witness to tell them what was obvious— that if the car had slackened its speed to such an extent that plaintiff could have crossed in front of it there would have been no collision. The objection to the question was properly sustained, because it called for a mere conclusion of the witness upon a fact solely within the province of the jury to determine from a consideration of all the testimony. It was in violation of the general rule that “the opinion of witnesses is only admissible upon the ground of necessity, but can never be given upon the ultimate facts which it is the duty of the jury to determine.” (Erb v. Popritz, 59 Kan. 264, 270, 52 Pac. 871. See, also, Oil Co. v. Drilling Co., 80 Kan. 261, 101 Pac. 1072.)
We deem it -unnecessary to enter into a discussion of the doctrine of “the last clear chance.” It was relied upon in the petition and is urged here, but the doctrine finds no room for application to the situation presented by the facts determined by the jury. The plaintiff’s' own negligence extended up to and actually contributed to his injury. There was no new breach of duty by the motorman subsequent to plaintiff’s negligence. The finding is that the motorman did not see plaintiff when he was thrown under the car and that he first learned of the fact when the car was stopped, and besides there is the finding that he did everything in his power to stop the ear as soon as he saw the plaintiff. That the doctrine of the last clear chance is not applicable to these facts, see Dyerson v. Railway Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 172; Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; Himmelwright v. Baker, 82 Kan. 569, 109 Pac. 178; Coleman v. Railway Co., 87 Kan. 190, 123 Pac. 756; Marple v. Railway Co., on rehearing, 85 Kan. 705, 118 Pac. 692. The theory upon which plaintiff seeks to support the doctrine is, that the motorman ought to have discovered the perilous situation of the plaintiff in time to have avoided the injury. In Coleman v. Railway Co., supra, and in Marple v. Railway Co., supra, it was held that the doctrine never applies where the negligence of the defendant is predicated upon the theory that defendant should have discovered plaintiff's danger in time to have avoided the injury but did not in fact discover it.
The passenger who saw the approach of the plaintiff and informed the motorman was seated on the west side of the car and was looking west through the window. The jury’s finding of negligence amounts to nothing more than that in their opinion the motorman should have discovered plaintiff’s approach as soon as this passenger discovered it. But the passenger may have been looking all the time toward the west. The motorman had other duties and responsibilities, and was required to look to each side of the crossing as well as in front. He testified that owing to the steep decline toward the tracks from the east he had more reason to expect trouble from that direction. He had already looked to the west and satisfied himself that no one would reach the crossing ahead of the car. The special findings showing in detail just what occurred overturn the finding of negligence and must control. (A. T. & S. F. Rld. Co. v. Plunkett, Adm’r, 25 Kan. 188; C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347, 359, 33 Am. Rep. 167; A. T. & S. F. Rld. v. Plaskett, 47 Kan. 112, 115, 27 Pac. 824; Penrose v. Cooper, 88 Kan. 210, 213, 128 Pac. 362; Bateman v. Sarbach, Adm’x, 89 Kan. 488, 495, 132 Pac. 169.)
We find no error in the instructions. There was no evidence tending to show notice or knowledge on the part of defendant that there were defects in the brakes or appliances of the car. This is a fact case with the findings wholly against the plaintiff’s contentions, and supported by evidence about which there was very little dispute.
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The opinion of the court was delivered by
Marshall, J.:
This is an action for damages for personal, injury to a shipper of live stock. Judgment was rendered in favor of the defendant on a demurrer to the evidence. The plaintiff appeals.
The plaintiff, as caretaker, was accompanying a car of milch cows shipped by him from Beloit to Garden City. The shipment was made under a shipper’s contract. While the car was standing alone on the defendant’s sidetrack at Strong City, the plaintiff, to enable him to ascertain the condition of the cows, climbed a ladder on the side of the car until his hand reached the top rung on the top of the car. He could not see the cows while standing on the ground, for the reason that straw bedding in the car had become piled up on its sides. It was dark. Electric lights were shining some distance away. The plaintiff could not see the condition of his cattle from his position on the ladder on the side of the car. Thinking that he could see better from the end of the car, he placed his right foot on the step of a ladder on the end of the car, and with his left hand, took hold of the brake wheel to the right of the end ladder, and started to bend over so that he could take hold of a wooden slat in the end of the car with his right hand, intending to climb down toward the lower opposite comer of the car at that end until he could finally get a good view of the cattle, when he was thrown to the ground and injured by the brake wheel turning. The negligence alleged is that when the car was placed on the sidetrack the defendant failed to lock the brake or locked it in a careless and negligent manner; or that the brake was defective and would not lock securely.
The plaintiff produced several witnesses to prove that it was customary among live-stock shippers to climb about and over stock cars in caring for the live stock therein. This evidence was excluded.
The evidence tended to show that it was the custom of the defendant to set the brakes on a car when left standing on a side track, to prevent the car being moved. The evidence also tended to show that if the brake had been properly set the wheel would not have turned by the plaintiff’s taking hold of it and resting a portion of his weight on it.
It is argued that the demurrer to the evidence should not have been sustained. The plaintiff was a passenger, and the defendant owed him the duty that it owed to a passenger. This rule has been often stated, but it necessarily has some qualifications. A passenger ordinarily does not voluntarily place himself in a dangerous sitúation. He does not climb onto, over, or around the car in which he is riding. He stays in a passenger’s place and observes the care the situation imposes on him. If he does not observe that care and is injured by his own negligence the carrier is not liable. The plaintiff • was the caretaker of his carload of cows. When he was about the car containing his cattle, the obligations of the defendant toward him as a passenger were modified by the conditions which compelled the plaintiff to get out of a passenger’s situation and condition. When in, on, or about the car containing his cattle, he was not in the condition or situation in which a passenger is ordinarily found. The care that the defendant must exercise toward a passenger on a passenger or freight train is not the same as must be exercised towards the caretaker of live stock when he is working about the car containing his live stock. The plaintiff was not then a passenger in such sense as to render applicable to' him all the rules governing the transportation of passengers. He was charged with the care of his cattle. He cared for them while on the way, and in various ways subjected himself to perils not incident to ordinary travel. To the extent that caring for the cattle interfered with the operation of ordinary rules of liability, the duty of the defendant was modified. (Omaha & R. V. B. Co. v. Crow, 54 Neb. 747, 74 N. W. 1066, 69 Am. St. Rep. 741; Chicago, B. & Q. R. Co. v. Troyer, 70 Neb. 287, 97 N. W. 308; 70 Neb. 293, 103 N. W. 682.)
While the plaintiff was about the car caring for his cattle it was his duty to exercise reasonable care for his own protection and not to place himself in a place of danger. When he undertook to descend from the top of the car on one side to the bottom of the car on the other side, across the end, and with his feet on the ladder at the end of the car, his left hand grasping the brake wheel, his body leaning to the right, and undertaking to grasp a slat in the end of the car with his right hand, he ceased to exercise that degree of care which the circumstances demanded of him, and he was guilty of such negligence as prevents his recovery for the injury sustained by him.
The plaintiff argues that the brake was either defective or was improperly set, that this constituted negligence on the part of the defendant, and that that negligence caused the injury to the plaintiff. What duty did the defendant owe the plaintiff, so far as the brake was concerned ? The brake was not a ladder. Its primary use was not for climbing, but for stopping or holding the car. There was no obligation on the defendant to see that the brake was in a proper and safe condition to be used for climbing about the car. There was nothing in the evidence to indicate that it was not proper and safe for the use for which it was intended. It could not have been anticipated that the brake, defective, improperly set, or loose, would cause injury to any one while climbing about the car. If by reason of a defective brake or the failure to set the brake the, car had moved on the track and thereby had injured the plaintiff, the defendant would be liable under U. P. Rly. Co. v. Harwood, 31 Kan. 388, 2 Pac. 605. (Reversed by the United States supreme court; see Pacific Railroad Removal Cases, 115 U. S. 1, 29 L. Ed. 319. See, also, Linker v. Railroad Co., 82 Kan. 580, 584, 109 Pac. 678.) In the Harwood case the moving of the car and the consequent injury might have been anticipated. In this ease the car did not move, and the accident that occurred could not reasonably have been anticipated. In the present case the car stood still on the track. The defendant was not guilty of any negligence toward the plaintiff.
Complaint is made of the exclusion of evidence to show a custom of live-stock shippers to climb about and over stock cars containing their shipments. What has been said on the demurrer to the evidence disposes of this complaint. It was not reversible error to exclude that evidence, for the reason that the plaintiff’s evidence established such negligence on his part as prevented his recovery; and evidence of the custom could not relieve him from the consequences of his negligence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
James H. Ruth recovered a judgment for $4509.20 against the Witherspoon-Englar Company under the workmen’s compensation act, and it appeals.
The amount of the judgment implied a finding of total disability for the full period of eight years. The principal contention of the defendant is that such a finding was not warranted because, even conceding that the plaintiff is now totally unable to perform labor and that this condition will continue for the period named, the evidence shows that the permanent character of his incapacity is actually the result, not of the injury received while working for the defendant, but of improper surgical treatment. This issué was somewhat obliquely introduced by the pleadings: The answer did not assert that the plaintiff’s’ condition was in fact due to malpractice, but alleged that he had begun an action against the defendant based upon that theory, stating in his petition that the company was responsible for the fault of the physicians, because they were in its employ and had not been selected with proper care. This method of pleading may have been due to a disinclination on the part of the defendant, in view of the pend-ency of the other action against it, expressly to admit the malpractice. At the trial the plaintiff made an offer to dismiss the other action, provided the defendant would strike out the portion of its answer relating to this matter. The defendant refused the offer, saying that if this part of the answer were stricken out it would at once ask leave to amend, if the court thought an amendment necessary to enable it to show that the “principal injury” the plaintiff had received “did not arise out of and in the course of his employment” — meaning, as the context clearly shows, that it was due to the subsequent treatment he had received. The plaintiff was therefore sufficiently advised of the defendant’s claim in this regard. The plaintiff was entitled to recover compensation based only upon such disability, total or partial, as resulted from the injury received in the course of his work, without the intervention of an independent agency. The matter is not confused by the need of determining what results might have been anticipated, or by any refined distinctions between proximate and remote causes, for whether and to what extent disability in such a case as the present, has been increased by want of proper surgical care admits of ascertainment with reasonable definiteness and certainty. If it should be proved here, for instance, that the whole effects of the plaintiff’s injury would under proper treatment have disappeared within a year, that would obviously be the limit of the period for which he could recover compensation in this action. His judgment here could not be increased by the fact that through the incompetent or negligent handling of the case by physicians a disability which would otherwise have been merely temporary was rendered permanent. (Della Rocca v. Stanley Jones & Co., [1914] W. C. & Ins. Rep. 33, annotated in 6 N. C. C. A. 624.) Even if circumstances had been shown sufficient to charge the defendant with responsibility for the fault of the physicians, the rule would not be altered, for liability under the compensation act can not be made to depend upon the degree of care exercised. A part of the loss occasioned by an accidental injury to a workman is cast upon the employer, not as reparation for wrongdoing, but on the theory that it should be treated as a part of the ordinary expense of operation. So much of an employee’s incapacity as is the direct result of unskillful medical treatment does not arise “out of and in the course of his employment” within the meaning of that phrase as used in the statute (Laws 1911, ch. 218, § 1). For that part of his injury his remedy is against the persons answerable therefor under the general law of negligence, whether or not his employer be of the number. It was doubtless desirable that the malpractice issue should have been distinctly presented in the pleadings, but in any event it was incumbent on the plaintiff to show what degree and duration of incapacity was the direct result of the original injury received in the course of his work, without the intervention of an independent cause.
The injury which the plaintiff received while at work for the defendant was the breaking of his leg between the hip and knee. A skiagraph shows a diagonal fracture, the ends of the bone having slipped past each other, a reunion taking place in that position, shortening the leg by about three inches. 'There was evidence that without a further, operation, which .would be attended with some danger, the plaintiff can make no use of his leg. But it can hardly be said that a finding was warranted that this condition was caused by the original injury. In his petition in the malpractice case (which had been dismissed as to the doctors, but was still pending as to the company) the plaintiff pleaded explicitly that the permanent character of his disability was due to the unskillful surgery to which he had been subjected. This allegation, being made in another case, was not absolutely conclusive upon him as an estoppel, but was quite persuasive as evidence. It seems clear that the jury did not attempt to distinguish between the effects of the original inj ury and those of the surgical treatment. The instructions referred in general terms to the disability incurred by reason of the accident, but submitted the issue of its duraation without suggesting the possibility of this having been affected by malpractice, although the defendant, having asked no instruction on the point, is not in a position to rely on the omission as specific ground of error. We do not think there was a fair basis for a finding that the accident (apart from the results of malpractice) produced a permanent total disability, or that the jury intended so to find. In this situation a new trial is necessary.
The plaintiff, over the objection of the defendant, was permitted to tell how the accident happened, and in this connection to testify that the foreman had sworn at him and over, his protest practically forced him into the position of danger where he received the injury. The defendant in its answer admitted that the plaintiff was injured while in its employ, and was entitled to compensation. This evidence was therefore not pertinent to the issues, and the portion regarding his ill treatment by the foreman was prejudicial as tending to excite a feeling against the defendant in the minds of the jury. An argument is made that the evidence was material because the, defendant’s attorney (as already mentioned) had asserted the right to show that the principal part of the injury the plaintiff had received did not arise out of and in the course of his employment. As was noted in connection with the earlier reference to the matter, the context makes it plain that this assertion had to do only with the issue relating to malpractice. Whether the error in admitting this evidence would in itself require a reversal need not be determined. It is likewise un-, (necessary to consider whether any prejudice might have resulted from irrelevant evidence which was introduced but afterwards stricken out.
The judgment is reversed and the cause remanded for a new trial in order that the extent of the disability resulting from, the original injury may be determined. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a widow to recover her interest in land which belonged to her husband in his lifetime and of which she had made no conveyance. She was defeated and appeals.
In 1884 the plaintiff was a resident of this state and lived with her husband, John D. Despain, on the land in controversy. In March, 1885, she was compelled to leave her husband because of his misconduct, and she went to the state of Missouri, where she has ever since resided. No divorce was ever granted. In August, 1894, John D. Despain mortgaged the land to W. H. White. The land was sold for taxes, and in order to protect his security White took an assignment of the tax-sale certificate and took out a tax deed, which was executed and recorded in September, 1898. In April, 1900, John D. Despain conveyed the land by warranty deed to his son, W. H. Despain, the defendant. In December, 1900, the defendant satisfied the mortgage and received a quitclaim deed of the land from White. In 1907 or 1908 John D. Despain died intestate. In September, 1912, the defendant’s deeds were filed for record. The action was commenced in 1914. John D. Despain remained on the premises until the time of his death, but there was no evidence that he claimed any rights in the land after the date of V warranty deed to his son. The petition alleged that the defendant had been in possession of the land for more than five years before the action was commenced, which fact the answer admitted. The regularity of the tax deed and of the proceedings on which it was based was not questioned.
The plaintiff is in the position of a landowner whose land has been conveyed for taxes and who assails the title of the tax-deed holder, and her action was barred by the five-year statute of limitations. It is said that in December, 1900, White had nothing to convey to the defendant, because he did not, within two years from September, 1898, take possession or bring an action for possession of the land. That was a matter between White and the defendant. In the case of Cone v. Usher, 86 Kan. 880, 122 Pac. 1049, it was said:
“The statute provides that a tax deed — -not a tax deed plus possession —‘shall vest in the grantee an absolute estate in fee simple/ (Gen. Stat. 1909, § 9479.) The plaintiff’s deed is valid on its face. Consequently when it was recorded and when it was introduced in evidence it carried with it, prima, facie, the force and attributes designated in the statute. It is true that a tax deed may lose its virtue through failure to take possession under it. But no presumption arises immediately after the lapse of two years that it has thus become devitalized. The two-year statute of limitations merely conditions the remedy in the event that remedy to enforce possession be necessary. It applies only in the event that the right of possession conferred by the deed be obstructed or denied. It does not begin to run unless and until adverse possession exists, and in the absence of. proof of such possession the fee simple character of the grantee’s ownership presumptively continues.” (p. 884.)
While the defendant might have resisted any attempt which White might have made to assert rights under the tax deed, the defendant was not bound to do so. If he had yielded possession to White the plaintiff could not complain. The deed was not “dead,” as the plaintiff says, except for use as the basis of affirmative action by the holder or by those in privity with him, and the plaintiff can not complain because the defendant chose to recognize it and to purchase from White. The opinion in the case of Cone v. Usher, supra, reviews the decisions in the cases of Thornburgh v. Cole, 27 Kan. 490, Smith v. Jones, 37 Kan. 292, 15 Pac. 185, and Coale v. Campbell, 58 Kan. 480, 49 Pac. 604, cited by the plaintiff, follows those decisions and calls particular attention to the fact that the distinction between actions instituted by the person commonly designated as the tax-title purchaser, such as White, and the defendant as White’s grantee, and actions instituted against the tax-title purchaser or his grantee in possession by the person commonly designated as the owner of the fee, such as the plaintiff, has always been maintained. The decisions in the cases of Corbin v. Bronson, 28 Kan. 532, and Douglass v. Boyle, 42 Kan. 392, 22 Pac. 316, cited by the plaintiff, illustrate the principle. They were actions instituted by the tax-title purchaser and were resisted by the owner in possession on the ground that the two-year statute had run. In this case the tax-title purchaser, the defenidant as White’s grantee, brings no action. He has title by virtue of the tax deed and he has possession. The plaintiff, the owner whose title was cut off by the tax deed and who is out of possession, brings the action. The statute reads as follows:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale- or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.” (Gen. Stat. 1909, § 9483.)
Whatever the character of the plaintiff’s objection to the tax deed may be, her action was one to recover land sold for taxes and to defeat and avoid a conveyance of land for taxes. The taxes have not been paid, the land has not been redeemed, and the action was barred when it was commenced.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
E. T. Inch and Laura B. Inch gave their promissory note to the plaintiff for $1000. On the death of E. T. Inch the note was presented as a demand against the estate. An appeal was taken from the judgment of the probate court. In the district court the judgment and verdict were against the plaintiff and she appeals. The plaintiff and Gwendola- Inch were partners in mercantile business. The plaintiff’s interests were looked after by her husband, W. H. Stevens, and the business was conducted by Miss Inch. The business was not prosperous and Miss Inch went to Kansas City and talked to some of the firm’s creditors. They complained of W. H. Stevens and told her they would extend her credit if she desired to go ahead with the business, but would not do so while Stevens was connected with it. This led to negotiations for a sale of the plaintiff’s interest to Miss Inch. Stevens conducted the negotiations for his wife. Miss Inch had no funds with which to make the purchase, but hoped she might be able to save the business and pay the plaintiff $1000 in three years. She offered to give a note to the plaintiff for that sum, but Stevens told her if she gave a note her commercial .rating would be affected, she would have no credit and her creditors would throw her into bankruptcy. He proposed that Miss Inch’s mother and brother, Laura B. Inch and E. T. Inch, give a note for $1000 payable in three years, which was done. He stated that the note was a mere form and agreed with the makers that the debt would be considered the debt of Miss Inch, that she could pay it out of the business of the store, and that if she were unable to do so the makers would never be asked to pay the note. After the note was signed the plaintiff executed and delivered to Miss Inch a bill of sale of the stock and fixtures. The fixtures were worth about $1000. The value of the stock was not shown. The firm liabilities were about $2000. After-wards Miss Inch became bankrupt. The negotiations consummated by the note and bill of sale were oral.
The defense was that the statements and representations of-Stevens were made for the fraudulent purpose of securing the signature of the decedent, E. T. Inch, to the note, and for the purpose of defrauding the creditors of Gwendola Inch. The court instructed the jury that if they found the facts according to the theory of the defense the plaintiff could not recover. The plaintiff objected to the parol evidence on which the defense rested, moved to strike it out, and asked that the jury be instructed to disregard it. Stevens denied the statements and promises attributed to him.
The giving of the note by the makers instead of by the debtor, Miss Inch, had no effect on her creditors, existing or prospective. Some of them, at least, had suggested to Miss Inch that they would extend her credit if she wanted to go ahead, but not while the Stevens were in the firm. How she could acquire their interest without increasing her liabilities is not apparent. Without this, however, the note afforded Miss Inch no additional means of deceiving her creditors. She could keep a note out of any statement of her liabilities which she tnight make as well as the indebtedness in fact incurred by buying out her partner. Unless the contingency occurred of being required to make a statement of liabilities for the purpose of credit, and unless she responded with a false statement to maintain her rating or obtain credit, no creditor could be defrauded.
It does not help the defense to call the statements and promises of Stevens fraudulent. The books teem with cases involving oral promises that notes need not be paid, or are mere memoranda, or will be surrendered without satisfaction, or may be paid out of the profits of a business venture if successful, and need not be paid otherwise. In all such cases the promise is made to induce the maker to sign the note, and if the promise be not kept it works a fraud. The theory of the law is that more fraud would result if all notes were open to qualification and contradiction by parol evidence than if the door were closed and locked against such evidence. Consequently to defeat liability on a note because obtained by fraud the fraud must consist in something else than representations and promises of the kind referred to.
Some credits are indorsed on the note. The plaintiff’s daughter purchased goods at the store to the amount of $138. There was no proof that these purchases were unauthorized or that the plaintiff was not liable for them, and the amount should be credited on the note.
The judgment of the district court is reversed and the cause is remanded with direction to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff bought and paid for four car-loads of bran, only two of which it received. The defendants acknowledge that payment was made for all of the bran, and concede that one-half of it never reached the plaintiff. It was all sacked and shipped under the contract in accordance with plaintiff’s directions, and the question in dispute is, Who was the owner of the bran while it was in transit? If the plaintiff acquired the bran and became the owner from the time the shipment was made at Wellington it must bear 'the loss; but, on the other hand, if the bran was to be delivered at East St. Louis, and title was not to pass until delivery there, the loss must be borne by the defendants, and the plaintiff is entitled to recover.
The contract of the parties is contained in the telegrams and letters included in the statement. The intention of the parties necessarily governs in determining when the title passed. We must look to their correspondence to ascertain their intention with respect to the place of the delivery and the time of the passing of the title to the property. In the absence of a stipulation or of restrictions respecting the transfer of title a sale of the property designed for shipment, and the delivery of the same to a carrier, consigned to the purchaser, will ordinarily constitute a delivery to the purchaser and operate to transfer the title to him. If under the contract the seller is to deliver the thing sold at a designated place, and receive payment on the delivery, the general rule is that the title will not pass until delivery is there made.
In this transaction the correspondence indicates with reasonable clearness that the defendants were to put the bran in sacks and lay it down in East St. Louis for a specified price. The telegraphic offer of plaintiff was to the effect that if defendants would deliver bran in one-hundred-pound sacks, without limit as to quantity, in East St. Louis, in May, the plaintiff would pay them at the rate of seventy-three cents per hundred. The offer was accepted in a telegram that, as the witness translated it, specified a delivery in East St. Louis, and fixed the quantity sold at 1600 sacks. In connection with the telegrams the letters confirming them plainly contemplated a delivery by the defendants at East St. Louis. In the one written by defendants confirming the sale, after specifying the quantity sold, the time of shipment, and the price, there followed the expression “f. o. b. St. Louis.” Some complaint is made that the plaintiff was not permitted to show the meaning of the characters “f. o. b.” Some of the courts have accepted proof as to the meaning of the letters when used by parties in a business contract, while others have deemed them to be in such general use in contracts of sale, and so well understood, that their meaning is a matter of common knowledge, of which the courts must take notice. We are inclined to the view that in contracts of this character judicial knowledge may be taken of these characters, and that parol evidence is ordinarily not needed' in their interpretation. If outside proof, however, was necessary, it appears that the court in one instance overruled an objection to this class of testimony, and allowed the interpretation given by the witness to stand. That interpretation conforms to the one that is generally understood in the business world, and that is “free on board,” and as used in this contract would signify free on board the cars at East St. Louis.
The contract for the sale of the bran, then, determined the quantity, the quality, the price, and the place of delivery, and showed that the delivery was to be made free on board the cars at East St. Louis, and not at the place of shipment. If the contract by its terms had not expressly provided for a delivery of the bran by defendants at East St. Louis the fact that the defendants were to pay the freight and furnish the bran at that place for a specified price, without cost to the plaintiff, would be some evidence tending to ppove an agreement to deliver the bran there, and that the sale was not complete until the delivery was made. In such a case the railroad company would be deemed to be the agent of the defendants, and not of the plaintiff. The case of Suit v. Woodhall, 113 Mass. 391, involved a contract for the sale of liquors, and theré was testimony that the plaintiff, who was the seller, was to pay the freight to the place of destination, and the trial court refused an instruction to the jury that if they found the plaintiff was to pay the freight and deliver the property to defendants at their place of business the sale was made there. The refusal so to instruct was held to be error. The court said:
“Delivery to the carrier was a delivery to the defendants, if there was no agreement to the contrary. . . . But if the parties agreed that the goods were to be delivered in Lawrence, it would not be a completed sale until the delivery, and the laws of this state would apply to it.” (Page 394.)
In another case the same court held that one who makes and sells an article to another, agreeing to deliver it at the place of business of the buyer, is liable for any injury or loss occurring in the transportation of it, although at the time of making the contract for the article nothing was said about delivery. (Taylor v. Cole, 111 Mass. 363.) In Brewing Association v. Nipp, 6 Kan. App. 730, 50 Pac. 956, it was said:
“Ordinarily a delivery of merchandise to the carrier is a delivery to the purchaser; but when the seller pays the freight the carrier is his agent and the delivery is made at the place of its destination.”
In this case the defendants were to pay the freight to East St. Louis, where the bran was to be delivered at a fixed price, without charge, cost or expense to the plaintiff. The rule, as stated at page 1050 of volume 24 of the American and English Encyclopedia of Law, is as follows:
“If by the terms of the contract the seller is required to send or forward or deliver the goods to the buyer, the title and risk remain in the seller until the transportation is at an end or the goods are delivered in accordance with the contract, after which time the title is vested in the buyer.”
(See, also, Bloyd v. Pollock, 27 W. Va. 75; Miller, Appellant, v. Seaman et al., 176 Pa. St. 291, 35 Atl. 134; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 South. 672; Capehart et al. v. Furman Farm Improvement Co., 103 id. 671, 16 South. 627, 49 Am. St. Rep. 60; Murray v. J. J. Nichols Manuf. Co., 11 N. Y. Supp. 734; Knapp Electrical Works v. Wire Co., 157 Ill. 456, 42 N. E. 147; Brewing Co. v. De France, 91 Iowa, 108, 58 N. W. 1087, 28 L. R. A. 386, 51 Am. St. Rep. 329; Weil v. Golden, 141 Mass. 364, 6 N. E. 229; Havens v. Grand Island Light & Fuel Co,. 41 Neb. 153, 59 N. W. 681; Westman Mercantile Co. v. Park, 2 Colo. App. 545, 31 Pac. 945; 2 Benj. Sales, §1040; Newmark, Sales, §166.)
There was some confusion in the testimony as to whether delivery was to be made in St. Louis or East St. Louis, but the statements made by the parties in the later communications, and the shipment of the bran to East St. Louis by defendants, show that the latter place was understood by both parties to be the place of delivery.
In view of the correspondence and the circumstances developed by the testimony it is manifest that the contract required the defendants to make delivery in East St. Louis, and that the title to the bran would not pass until it reached that place. There was certainly evi dence to take the case to the jury, and, therefore, the judgment sustaining the demurrer to plaintiff’s evidence is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
The testimony of the witness introduced by the state, Tom Bramlette, was of doubtful admissibility when he related what was said by Robinson to Castigno in the former’s bedroom. After the witness had testified that he took the appellant into the presence of Robinson he was asked to “go on and tell what happened.” The question was objected to, and the objection overruled, defendant saving an exception. The witness then answered at length, giving the statements of Robinson in the presence of defendant. No motion was made to strike out the answer, which was the proper method to raise the question of the admissibility of the statements made by Robinson. The question asked and objected to conveyed no suggestion to the court that the answer to it might not be competent, for which reason the court did not err in overruling the objection to it.
The objection that the same witness was not permitted to testify whether of his own knowledge he knew there was blood on the knife is without merit. Just before the question to which the objection was sustained the witness testified as follows, without objection from counsel for the state:
“Ques. Do you know what they were of your own knowledge? Ans. Yes, sir; I believe that I do.
“Q. What would you say they were? A. Blood-spots.
“Q. Then, as a matter of fact, you don’t know whether or not it was blood, do you? A. I believe I can tell blood when I see it.”
The question to which the objection was sustained having been already answered, the defendant was not prejudiced. (Marshall v. Marshall, ante, p. 313.)
The testimony of the witness Peak was properly received. He testified that what was told to him by appellant was the result of no threats, promises or inducements of immunity whatever.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
This case was tried in the court below without the aid of a jury, and the court made the following succinct findings of fact and conclusions of law:
“FINDINGS OF FACT.
“1. On the 24th day of October, 1900, J. W. Reichard and Harriet Reichard, his wife, made, executed and delivered to F. Kreager a certain chattel mortgage upon one J. I. Case thrashing-machine, with all belts, etc., to make the machine complete, one twelve-horse-power engine, and one cook shack and trucks.
“2. The above-described mortgage was given to secure a note for $500, which has never been paid, and which is an asset in the hands of H. F. Jackman, as executor of the last will and testament of F. Kreager, deceased, said Kreager having died since the execution and delivery of said note and mortgage.
“3. This mortgage was filed in the office of the register of deeds of Ottawa county, Kansas, on the 27th day of October, 1900, and was not renewed until the 8th day of August, 1902, when a renewal affidavit was indorsed thereon in the office of said register of deeds; and said mortgage was again so renewed on the 7th day of August, 1903.
“4. On the 6th day of December, 1901, said J. W. Reichard made, executed and delivered to the plaintiff a chattel mortgage on said engine and separator, Harriet Reichard not joining therein, or consenting thereto. Said mortgage has been renewed from time to time, and is still in full force and effect.
“5. Said last-mentioned mortgage was made to the plaintiff to secure a note for $138.86 due from the said J. W. Reichard to the plaintiff, which said note is still due and remains unpaid.
“6. At the time the plaintiff obtained said mortgage he had no actual notice of the existence of the mortgage to Kreager.
“7. During all the times herein mentioned said J. W. Reichard was a married man, the head of a family, and a resident and citizen of Ottawa county, Kansas, and was in possession of the mortgaged property at the time the last mortgage was executed.
“8. Since 1898 the said J. W. Reichard has been engaged in the trade or business of operating the above-described thrashing machinery during the thrashing seasons of each year in Ottawa county, Kansas, except when prevented by sickness. These thrashing operations were usually conducted during the fall and summer of each year, and during the winter months he was engaged to some extent in fishing and trapping; but his principal business, and that from which he derived his principal support, was that of a thrasher.
“9. That such thrashing machinery was necessary to carry on said J. W. Reichard’s trade or business as a thrasher, and that he had no other thrashing machinery.
“10. That at the time of the commencement of this action the defendant was in the possession of said property, which he refused on demand to surrender to plaintiff, and that the value thereof was $200.”
“CONCLUSIONS OF LAW.
“1. That a thrashing-machine is not absolutely exempt, like the articles mentioned in the fifth subdivision of section 3, but is only exempt to the head of a family when it is necessary for the purpose of carrying on his trade or business.
“2. That under the circumstances disclosed by the evidence in this case such thrashing-machine was, during the years 1900 to 1903, inclusive, exempt property.
“3. That where a mortgage is made upon property that is not absolutely exempt, such mortgage is not absolutely void because the wife did not join in, or consent to, the execution of such mortgage, but is only voidable.
“4. That a prior mortgagee who has neglected to renew his mortgage for more than a year after- it was recorded is not in a position to question the validity of a second mortgage, accepted in .good faith without knowledge or notice of the existence of the prior mortgage, made before any attempt to renew the first mortgage, on the grounds that the property covered by such subsequent mortgage is exempt and that the wife of the mortgagor did not join therein.
“5. That in this case the judgment should be for the plaintiff for the recovery of the property, or the value thereof, and the costs of suit.”
No exceptions are taken to the findings of fact, or to conclusion of law No. 2. It is contended, however, by the plaintiff that section 3018 of the General Statutes of 1901 makes no distinction between property absolutely exempt, such as the cook-stove and wearing apparel of a family, and property which is or is not exempt according as it may or may not be used and kept for the purpose of carrying on the business of the owner, so far as the ability of the husband-owner to create a valid lien thereon by mortgage without the joint consent of his wife.
We think the plaintiff in error is right in this contention, and, consequently that conclusion of law No. 3 is erroneous; and, if so, conclusions Nos. 4 and 5 are also erroneous.
There is no such distinction under the statute as the court below attempted to make between personal property absolutely exempt and personal property not absolutely exempt. The thrashing-machine, with all its parts, was either exempt to Eeichard, or it was not exempt, at the time Eeichard executed the mortgage in question to Lambertson. The court in its findings of fact and conclusions of law found, and we think correctly, that it was exempt at that time. The court also found that Harriet Eeichard, the wife, did not join in the mortgage to Lambertson, or consent thereto. Therefore, under the provisions of the stat ute, Lambertson’s mortgage is invalid. Under the findings, Reichard and wife did join in the mortgage to Kreager, deceased, and that mortgage was valid against the makers thereof although no renewal was filed for more .than twenty-one months after the filing of the mortgage. No renewal affidavit was necessary as against the makers thereof.
The case is therefore reversed, and remanded with instructions to render judgment in favor of the plaintiff in error on the facts as found.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Under the agreed statement of facts in this case the defendant was responsible to the plaintiff for the money it paid out upon the check with the forged indorsement. The rule, as laid down in a note to People’s Bank v. Franklin Bank (88 Tenn. 299), in volume 17 of the American State Reports, page 898,. reads:
“Money paid upon a forged indorsement of a check or draft may be recovered back. The bank or drawee is not bound to know the signature of an indorser. And the holder, whether he indorses the instrument or not, warrants the genuineness of all prior indorsements. If, therefore, a check or draft upon which the name of a prior indorser has been forged is paid, the amount may be recovered back -from the party to whom it has been paid, or from any party who indorsed it subsequent to the forgery.”
The case of Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74, 43 Am. Rep. 655, cited by the defendant,, sustains this doctrine, but in that case it was held that the drawee was not entitled to recover the expenses of the suit, for the reason that it had not discharged its duty to the defendant as a depositor. In the case' at bar, however, the plaintiff, upon being sued for the entire amount of the check, notified the defendant in writing and requested it to assume and take charge of the defense of the case. This it was the defendant’s duty to do, and it neglected to do it. The owner of the-defendant bank, however, testified as a witness in that action, and had every opportunity to have any defense made that it could have made if it in fact had been a party. It was the duty of'the defendant to see the plaintiff harmless on its contract of warranty that the indorsement of the mercantile company on the check was genuine, and it ill becomes the defendant to say that when the plaintiff was sued it should have paid the full amount claimed and then sought to recover it from the defendant. The plaintiff defended in good faith, employed counsel in good faith and at an agreed reasonable price, and saved the defendant over $200, and is entitled to recover the full amount claimed. The agreed statement of facts embraces every question material to the determination of the case, and the evidence offered and introduced by the defendant de volved neither upon the trial court nor upon this court the weighing of evidence to determine the facts.
In the case of Bank v. Williams, 62 Kan. 431, 434, 63 Pac. 745, the court quotes from section 58 of Sutherland on Damages, second edition, as follows:
“If one’s property is taken, injured or put in jeopardy by another’s neglect of duty imposed by contract, or by his wrongful act, any necessary expense incurred for its recovery, repair or protection is an element of the injury. It is often the legal duty of the injured party to incur such expense to prevent or limit the damages; and, if it is judicious and made in good faith, it is recoverable, though abortive.”
At the trial, after the agreement as to the facts given in the statement, the plaintiff rested; The defendant then offered evidence, over the objection of the plaintiff, of the custom between the banks at Wellington, and of the understanding of the cashier of the defendant bank as to the meaning of the indorsement placed by it upon the check, all of which we think was incompetent.
The act of the plaintiff in defending the action of the mercantile company was in good faith, and was not abortive, but resulted in great good to the defendant. By so much more ought the plaintiff to recover.
The judgment of the district court is reversed, and the case is remanded with instructions to enter judgment for the plaintiff for $135.12, with interest at the rate of six per cent, per annum from November 19, 1901, and for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Joseph Cipra appeals from a conviction upon the charge of wilfully obstructing a public highway across a tract of land owned by him in Ellsworth county. The principal question involved is whether the state produced evidence sufficient to warrant the conclusion that the way in question had ever been legally established as a public road. The records of the county clerk’s office were introduced, and showed that an attempt had been made to establish such a highway in 1880. Various defects are pointed out in the proceedings, some of which may have been cured by a special act of the legislature (Laws 1883, ch. 67) which purported to legalize all roads located by the board of county commissioners of that county prior to that year. However, one of the defects complained of, and shown by the evidence, is the omission to give to the owner of the land here involved the notice of the meeting of the viewers which is required by the statute (Gen. Stat. 1901, §6019), and which is held to be jurisdictional (The State v. Farry, 23 Kan. 731); and it is not competent for the legislature by a curative act to validate proceedings which were originally void for want of jurisdiction. (15 A. & E. Encycl. of L. 389; Heacock v. Sullivan, 70 Kan. 750, 79 Pac. 659.)
It is argued by the state, however, that at the time of the laying out of the road the title to this tract was in the United States, or in a non-resident of the county, and that therefore the notice referred to was not required. The burden of proving such facts was upon the prosecution. It was agreed that the tract was a part of the lands granted by congress to the Union Pacific Railroad Company, and that no patent for it had been issued at the time of the proceedings in question, but it does not follow that for the purposes of this case the title was still in the federal government. For anything that the record discloses the railroad company, prior to that time, may have acquired the right to a patent in virtue of having fully complied with all the conditions of the grant. Indeed, the guarded terms in which the agreement referred to was made seem to suggest that the parties understood that to be the true situation, in which case, the full beneficial title having passed to the railroad company, the delay in the actual issuing of the patent was not material. (Leonard v. Ross, 23 Kan. 292; 26 A. & E. Encycl. of L. 403.)
It is claimed by the prosecution that the Union Pacific Railroad Company was a non-resident of the county, but no evidence was offered on that issue. For the purposes of the statute under consideration “a railway company is to be regarded as a resident of any county in which it operates its roads or exercises corporate franchises.” (The State v. Bogardus, 63 Kan. 259, 65 Pac. 251.) It cannot be presumed against the defendant that the Union Pacific company was not a resident of Ellsworth county within this rule at the time of the attempt to open the road.
A further contention is made that the road had become a public highway by prescription. During a part of the time that an adverse user by the public is claimed the. way was fenced where it entered and where it left the defendant’s land, although gates were maintained at these places. This condition had existed for several years when the defendant purchased the property. Nowithstanding the existence of the gates, the maintenance of such fence was a sufficient assertion of the rights of the owner of the land to prevent their being barred by the statute of limitations.
The evidence not showing the legal establishment of the highway, the judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
This was a suit to foreclose a first mortgage on a section of land. The pleadings and agreed facts show that the owners, Gilman and Stewart, executed two mortgages on the property, one for $2500 to a trustee, for the benefit of plaintiff below (plaintiff in error here), and another, subject to the first, to McKinley & Heliker, for $500, with notes corresponding in amounts. The second mortgage was foreclosed and the land sold, subject to the first. C. C. Rush became the purchaser. A sheriff’s deed was executed and delivered to him on November 1,1889. Rush neglected to pay the taxes for the year 1889, which were payable on the day he received his sheriff’s deed. The land was sold by the county treasurer thereafter, in September, 1890, and purchased at a tax sale by one Eyman, who paid the subsequent taxes for the years 1890, 1891, and 1892. A tax deed was executed to him by the county clerk on October 5, 1893. Rush continued to be the owner under his sheriff’s deed until April, 1896, when he sold and conveyed the land to the Alfalfa Irrigation and Land Company, which, in October, 1900, procured from Eyman a quitclaim deed for his title to the property under his tax deed. Thereafter the alfalfa company sold and conveyed to the City Real-estate Trust Company, and the latter deeded to James Bragg in April, 1902.
In this suit to foreclose the first mortgage Bragg and the original mortgagors were made parties. The district court held that the tax deed issued to Eyman on October 5, 1893, conveyed absolute title, and by reason thereof the first-mortgage lien of plaintiff below was lost. All questions arising under the statute of limitations have been removed from the case by agreement of the parties.
In our opinion the court below erred in its conclusion. Rush, the purchaser at the foreclosure sale, took all the title the mortgagors had. His position was the same as if he had taken a deed to the land from the owners subject to the first mortgage, which plaintiff sought to foreclose in this suit. In Lee v. Bermingham, 30 Kan. 312, 315, 1 Pac. 73, Mr. Justice Brewer, speaking for the court, said:
“The purchaser at a sheriff’s sale is a purchaser in the same sense as he who makes a voluntary purchase and takes an ordinary conveyance from the party in whom, by the record, the legal title is apparently vested.”
If the rights of the purchaser at the foreclosure sale are to be tested by the rule stated by the learned justice, it is clear that he could not have suffered the taxes on the property to become delinquent and then obtained any advantage from his default against the first mortgage, after taking a deed from the mortgagors transferring the legal title from them to him subject only to the first mortgage. It was the legal duty of the mortgagors, when they owned the land, to pay the taxes, and it was no less incumbent on the purchaser of their title to pay them. It will be noted that under section 7615 of the General Statutes of 1901 all taxes become due on November 1 of each year. Rush received his sheriff’s deed on November 1, 1889, and, neglectful of his legal duty, did not pay the taxes for that year, continuing his default until a tax deed was issued to Eyman. When, after several conveyances, the legal title acquired by Rush at the sheriff’s sale vested in the Alfalfa Irrigation and Land Company it stood in the shoes of Rush, and was chargeable with his default. His neglected duty to pay the taxes cannot be made the foundation for a valid tax title against the first mortgage.
In the case of Waterson v. Devoe, 18 Kan. 223, it was held that the mere relation of mortgagee will not prevent the person so related from acquiring title to the mortgaged premises by purchase at a tax sale. After deciding that Waterson, the mortgagee, was un der no legal obligation to pay the taxes, the court said, at page 233:
“Devoe [the mortgagor] was not only under obligation to pay the taxes on the land he owned, but he was under duty to protect the lien, or security, of Water-son, by providing for the payment of the taxes, so that such lien or security should not be destroyed by his default or negligence. It is a well-settled rule of equity, that a party shall not take advantage of his own wrong.”
Rush, after he took title at sheriff’s sale, stood toward Gibson, the first mortgagee, in the same relation that Devoe occupied toward Waterson in the case cited, with the exception that he was not personally liable for the amount of the first mortgage. His land, however, was charged with its payment. (Black, Tax Titles, 2d ed., §278.) In Shrigley v. Black, 66 Kan. 213, 217, 71 Pac. 301, 302, it was said:
“It will not be contradicted that the makers of a mortgage cannot defeat the lien created thereby by the purchase of the premises at tax sale for taxes which they should have paid. We hold that the same rule applies to the grantees of such makers, and that the rights of the grantee in this respect cannot rise higher than those of the grantor.” (See, also, Frank & Darrow v. Arnold et al., 73 Iowa, 370, 35 N. W. 453.)
Section 7616 of the General Statutes of 1901 has no application to conveyances made by the sheriff pursuant to a judicial sale.
The contention that the pleadings did not present to the court below the proposition that a purchase of the Eyman tax title by the alfalfa company was in legal effect a payment of the taxes is not well founded. The district court considered the question as if it had been raised properly, and an examination of the answer and reply satisfies us that their averments justified the court in determining the point.
The judgment of the district court is reversed, with direction to enter judgment in favor of the plaintiffs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
A proceeding brought under chapter 47 of the General Statutes of 1901 to charge C. J. Gunkle with the support of the illegitimate child of Maude McClure resulted in a judgment against him, from which he prosecutes error. At the trial in the district court the defendant offered in evidence a contract of settlement executed by the complaining witness before the proceeding was begun, reciting that such a proceeding had been threatened and that Gunkle, desiring to settle the matter, had made provision for the maintenance of the child to her satisfaction. The plaintiff objected to the admission of this document upon the ground that under the statute no valid settlement can be effected otherwise than by action taken in court after a formal complaint has been made, and upon the further ground that, no pleading having been filed by the defendant, he could not give evidence of a prior settlement, because a defense of that character is available only when specifically pleaded. The objection was sustained, and the only question presented on review is whether error was thereby committed.
The statute referred to, which prescribes the method of procedure in this class of cases, was adopted in 1868, and was presumably borrowed from Indiana, since it is nearly a literal copy of the act then in force in that state. It makes no provision in express terms for any written pleading other than the original complaint charging the defendant with being the father of the child of the prosecuting witness. But section 8 (Gen. Stat. 1901, §3327) reads as follows:
“The trial and proceedings of such prosecution, both before the justice and in the district court, shall in all respects not herein otherwise provided for be governed by the law regulating civil actions.”
Prior to the enactment of this law by the Kansas legislature the supreme court of Indiana had held that under substantially the same statutory provisions the defendant could not interpose as a defense that he had made a settlement with the complaining witness without having so pleaded. (The State v. Wilson [1861], 16 Ind. 134; The State, on the relation of Conner, v. Reynearson [1862], 19 id. 211. See, also, Carter v. The State, ex rel. McKee, 32 id. 404, and Malson v. The State, ex rel. Wing, 75 id. 142.) This consideration is entitled to great weight, and should probably be deemed controlling; but we are satisfied to place the decision of the question upon reason as well as upon authority. The statute contains these provisions with regard to the trial, verdict, and judgment :
Ҥ11. If the defendant in the district court deny the charge, the issue shall be tried by the court or a jury.
Ҥ12. If the court or jury find that the defendant is the father of such child, or such defendant in court shall confess the same, he shall be adjudged the father of such child, and stand charged with the maintenance and education thereof.
“§13. Such court shall, on such finding or confession, render such -judgment and make such order as may seem just for securing the maintenance and education to such child.” (Gen. Stat. 1901, §3330-3332.)
The eifect of section 11 may be to give the defendant the benefit of a mere denial without filing any formal pleading. If he denies the charge in any way he is perhaps entitled to a trial of “the issue” so raised. But what issue is this? Obviously, from the language used and from the context, it can only be the question whether the defendant is the father of the child. That is the issue, and the only issue, that is raised or can be raised by the denial of the charge made. It is the issue, and the only issue, to which a verdict or finding that the defendant is or is not the father of the child responds. To this extent it may be said that the special statute has varied the requirements of the usual procedure in civil cases, and exempted the defendant from the necessity of filing a mere general denial; but the exemption extends no further, and if he wishes to be heard upon any new matter which he may claim to constitute a defense it is incumbent upon him to present it by a pleading upon which an issue may be made up in an orderly manner, according to the usual procedure in civil cases.
While this court has not heretofore been called upon to decide this question, it is worthy of note that the practice adopted in The State, ex rel., v. Young, 32 Kan. 292, 4 Pac. 309, conformed to the rule which we now announce. There the defendant in a proceeding brought under this statute claimed that he stood discharged of all liability by reason of a prior settlement made with the complainant. He brought the matter to the attention of the district court by a plea in bar, and a trial of the issue so tendered was had in advance of the investigation of the question of the truth of the charge made against him. It is of course unimportant by what name his pleading may be designated, but we hold that the defendant can be heard upon a claim of former settlement only after he has pleaded it; that he cannot raise such a question merely by an offer of proof made during the trial of an issue which relates only to the paternity of the child.
This holding makes it unnecessary to consider whether an effective settlement in such a case can ever be made prior to the commencement of a proceeding under the statute.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant in error presents two objections to the consideration of the errors complained of by the plaintiff in error:
(1) The order overruling the demurrer shows that plaintiff elected to stand on his demurrer, but no judgment was entered. This objection is not well taken. Section 542 of the code of civil procedure expressly provides:
“The supreme court may also reverse, vacate or modify any of the following orders of a district court:' . . . 2. An order . . . that sustains or overrules a demurrer.” (Gen. Stat. 1901, §5019.)
(2) It is urged that the petition does not allege facts sufficient to constitute a cause of action, and that, as the demurrer should search the record and be sustained as to the first pleading found insufficient, it should have been sustained as to the petition and not considered as to the answer. The defendant in error is wrong in this contention. While the cause of action set forth in the petition is apparently based upon an express trust in lands or the proceeds thereof created by parol agreement, and such agreement would under section 7875 of the General Statutes of 1901 be ineffective to create a trust, yet the facts stated are such that a trust arises therefrom by implication of law. It is alléged, in substance, that the grantors were the owners of certain land, which was in litigation, and that they conveyed it to their attorney at law, who had been theretofore and was at the time and thereafter employed to protect their interest therein. The conveyance was presumably made for the purpose of facilitating some compromise of the suit or sale of the land, and, as alleged in the petition, was made under an agreement and understanding — not alleged to be in writing — that the grantee “should institute and prosecute a suit” against certain parties claiming ownership of the land, and “should pay over and turn over to them [the grantors] the fruits of such litigation.”
Regarded as a trust in land, this lacks the allegation that the agreement was in writing to make it effective. Indeed, since the defendant filed his motion to have the petition made more definite and certain by stating whether this agreement was in writing or oral, we must construe the allegation most strongly against the pleader and consider it as oral. But if the agreement was verbal it does not thereby debar, but aids, the implication of law that a trust arises from the facts. (Franklin v. Colley, 10 Kan. 260.)
It may be questioned whether the contract purported to create a trust in the lands, to which refer-, ence will be made later, or merely in “the fruits of the litigation.” Be this as it may, the law would imply a trust in the land so long as the title thereto was held by the grantee, and in the proceeds of the land when it was converted. It follows that the petition was not demurrable on the ground urged.
It remains, then, to determine whether the demurrer should have been sustained to the second and fourth defenses, or to either. As to the second defense— that, not the plaintiff, but the administrator of his mother’s estate, was entitled to recover the portion claimed by plaintiff — much depends upon the inheritance which descended to the plaintiff upon the death of his mother and sister, as the facts were set forth in the petition to which this defense was pleaded. No portion of the legal title descended to the plaintiff, for that title, as stated in the petition, had been conveyed by the mother and sister to the defendant, and neither of them was seized of such title at their respective deaths. From the same source we learn that at the time of the conveyance to the defendant the title to the land was in dispute, and the mother and sister, being unable to get a settlement or adjustment of the adverse claims, conveyed the land to the defendant for the very purpose of “instituting and prosecuting” a suit, not to have the adverse claims adjudged void or groundless, but to have that which was claimed to be an adverse title in fee adjudged to be only a lien— a mortgage. There is no allegation or intimation in the petition that the grantors were able, or expected, to redeem the land if the defendant should be, as he was, successful in the suit. The defendant undertook a service which involved the expenditure of time and money, and it must have been contemplated that he should be recompensed out of this land, already encumbered beyond the powers of the grantors to redeem. So it was not contemplated that the defendant, if successful, should reconvey the land to his grantors. The petition itself says:
“It was also expressly agreed and understood be tween said Elizabeth and Sarah E. Bartholomew and said defendant that the defendant should pay and turn over to them the fruits of such litigation.”
Equity will not imply a greater or a different trust than the circumstances, including the understanding and purpose of the parties, render necessary to protect the interests of a beneficiary who is innocent of wrong; especially when, as in this case, the trustee appears to have acted with fidelity and in accordance with the purpose of the conveyance of the land to him, at least so far as the compromising of the litigation and receiving the fruits thereof are concerned. The land, in any event, was lost to the grantors. It was even doubtful if they had any conveyable interest therein. They quitclaimed this doubtful title to the defendant with the understanding that he should begin litigation in his own name, and that he should account for the fruits of the litigation if, by chance, he should be able to make it bear fruit.
The allegation of the petition that the land was conveyed to defendant in trust for the use of the grantors is a conclusion of law rather than of fact, and the court was not bound thereby. The court evidently construed this agreement as creating the defendant a trustee of the problematical “fruits of the litigation” and that, if such fruits materialized, it was contemplated that they would be in the form of personal property, and that as such they became assets in the hands of the administrator of the deceased mother’s estate, and, with this view, overruled the demurrer to the second defense. Even if this was erroneous, which we are not prepared to say, it is difficult to see how the plaintiff was prejudiced thereby, since the fourth defense, including as it does the facts stated in the third defense in regard to the disposition of “the fruits of the litigation,” alleges, in substance, that the entire sum of $1798 received by the defendant in the settlement was expended in the payment of the ex penses and attorney’s fees incurred in the suit, and in returning to the estate of John B. Bartholomew the money advanced by him for that purpose. That such expenses were to be paid before “paying over the fruits” is certainly an implied condition of the contract as set forth in the petition. This seems to be the real issue in the case — whether the charges alleged to have been paid were legal and reasonable, and were, with the expenses for which credit is claimed, actually paid. This is in the nature of an accounting with the trustee.
We are not called upon to decide whether or not the order of the probate court of Shawnee county in making final settlement of the estate of John B. Bartholomew, and ordering disbursement to the widow, was res judicata as to plaintiff and determinative of his rights, as that question was not necessarily involved in the demurrer. It is enough to sustain the decision of the court if the facts stated in the fourth defense, being admitted as true, constituted even a partial defense to the claim set forth in the petition. Even a cursory reading of this defense will disclose that at least some, if not all, of the expenditures alleged to have been made by John B. Bartholomew in his lifetime were claimed to be advancements made to the defendant, or at defendant’s instance, for the very purpose of carrying on the litigation and removing liens from the real estate conveyed, which made it more valuable and added to the “fruits of the litigation.” Such advancements were in the nature of debts of the trustee, as such, and the trustee had the implied power, and it was his duty even, to pay the same.
The decision of the court in overruling the demurrer to both defenses is sustained, and the case is remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
W. M. Ferguson brought suit against the sheriff of Sumner county to enjoin the enforcement of a tax warrant issued against him by the treasurer of Butler county, and upon an agreed statement of facts was awarded an injunction. The sheriff prosecutes error.
As shown by the stipulation of the parties, these were the substantial facts out of which the controversy grew: During all of the year 1902 Ferguson was a resident of the city of Wellington, in Sumner county. In the spring of that year he duly listed with the city assessor all of his property that was subject to taxation in that county. In the following April he brought into Union township, Butler county, from Oklahoma, 852 head of cattle that he had purchased in that territory from owners who had there listed them for taxation and paid the taxes upon them for that year. The laws of Oklahoma require personal property to be listed for taxation on or before the 1st of March. Ferguson brought these cattle into Union township for the purpose of grazing, and they remained there during the grazing season of 1902. He told the township assessor that the cattle had been taxed in Oklahoma for that year and that the taxes had been paid, and said that he would furnish proof of this, but he did not make any sworn statement in this regard to the assessor, or present to him any copy of records relating to the matter. The assessor, in September, returned the cattle for taxation in Butler ■county. In February, 1903, Ferguson appeared before the board of commissioners of that county and offered proof of the payment of taxes upon the cattle for the preceding year in Oklahoma, and asked the remission of tax charged against him. His request was refused, and the issuance of the tax-warrant followed.
Sections 7519, 7520 and 7521 of the General Statutes of 1901 provide that under certain circumstances personal property brought into the state between March 1 and September 1 shall be assessed and taxed here for that year, unless it be shown in a prescribed manner that it has already been listed for taxation elsewhere. Two questions are here presented: Whether under the statute the cattle referred to were taxable in this state in 1902, in the absence of a sufficient showing of their having been taxed elsewhere; and, if so, whether their owner made such a showing. In the view taken of the matter it will be necessary to consider only the first of these questions.
In Hull v. Johnston, 64 Kan. 170, 67 Pac. 548, it was held that while this statute was in terms broad enough to require the taxation of all personal property brought into this state between March and September which had not been taxed elsewhere for that year, it must be interpreted as intended to affect only such property as would otherwise escape its just share of the burden of taxation, and has no application to property brought into a county by a resident thereof after the 1st of March, where such resident had fully listed all of his property under the general laws. It is sought to find reasons for distinguishing that c-ase from this in the fact that there one who did not reside in a city bought the cattle involved outside of the state with money raised by the giving of a mortgage upon personal property which he had already listed for taxation, and brought them to the county of his residence. The differences between those circumstances and the facts in this case do not affect the principle by which that case was controlled. It was there decided that the purpose of the statute was to provide a means for placing upon the tax-roll property which received the protection of the laws of the state and in fairness should bear a part of the expense of their administration, but which under the general law could not be reached because never found in the state at the usual time for the listing of property for taxation.
There is nothing in the record now under consideration to suggest that Ferguson was guilty of any shift or evasion in the matter. On the contrary, it is fairly to be gathered that he properly accounted to the taxing officers for the money with which the cattle were afterward purchased — that he listed it for taxation and paid taxes upon it for the year 1902 in Sumner county. Where foreign-owned property is sent into the state for a temporary purpose, and after several months is removed without having contributed anything to the public revenue, a manifest wrong is committed ; but where it comes into the state in exchange for other property or money upon which taxes have already been here assessed and paid, an entirely different situation is presented. The statute was not designed to exact a further payment from the resident purchaser in such a case. To do so would not be to correct an existing injustice, but to perpetrate a new one. Under the agreed facts Ferguson has paid to the public his fair share of taxes for 1902, based upon the amount of property he then owned. It happens that he paid it in Sumner county, where he lived, instead of-in Butler county, where his cattle were kept, although the law (Gen. Stat. 1901, §7509) provides that animals owned by the resident of a city shall be taxed where they are usually kept. This fact was due to his property’s having been changed from money to live stock after the 1st of March. He was not liable to pay taxes in Butler county on the cattle under the general taxation act because he did not own them on the 1st of March; and such liability was not imposed upon him by the special act already discussed, for the reason that the facts are not such as to invoke its operation.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
There is nothing in the record to indicate what answers to his questions were anticipated by plaintiff in error, but, whether they would have been favorable or adverse to him, the evidence was irrelevant under the pleadings as they then stood. It could not become admissible without framing a new issue. If a new issue had been framed it must have included the fact that the mortgagee knew of the assumption of his mortgage by the grantee in the deed, and adopted the contract of assumption at a time sufficiently remote to allow the statute of limitations to run. Without an offer to show these things no request to amend could have been granted.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This proceeding in error grows out of a suit commenced in the district court of Ottawa county on December 12, 1903. The petition prayed for the foreclosure of a mortgage securing four promissory notes due, respectively, on February 18, 1896, February 18, 1897, February 18, 1898, and February 18, 1899. The mortgage contained a provision to the effect that if any one of the notes secured and the taxes upon the mortgaged premises should not be paid when due and payable the entire mortgage debt should at once mature. The absence of the makers of the notes from the state was pleaded to avoid the running of the statute of limitations.
The answer pleaded default in the payment of taxes for the year 1895, resulting in a tax sale of the land in 1896, followed by an indorsement on the tax-sale certificate of taxes paid by the certificate-holder for the years 1896, 1897, and 1898. The defendant purchased the land subject to the mortgage on November 18, 1897, and was not charged with any personal liability on the notes. Because of the default in the payment of the taxes for the year 1895, and the default in the payment of the note due February 18, 1896, he claimed the entire mortgage debt matured on the date last mentioned, and prayed the benefit of the statute of limitations.
The reply pleaded payment of the delinquent taxes by the defendant on August 21, 1899. A demurrer to the reply was sustained, and the correctness of this ruling is the matter now in question.
As long ago as 1871 this court decided that a stipulation-in a mortgage of the same character as that under consideration was not a one-sided affair, vesting a mere option in the mortgagee, but that the mortgagor had an equal right with the mortgagee to insist upon it and to receive whatever advantages it might confer upon him. Mr. Justice Brewer, speaking for the court, said:
“This clause is inserted in mortgages usually for the benefit of the mortgagee; but being a valid stipulation the mortgagor has equal right to insist upon it, and receive whatever advantage he can from its enforcement. When the payor ■ at the expiration of six months failed to pay the note then due, by the terms of the contract all three notes became due. The statute of limitations began to run on all, and a subsequent purchaser purchased after maturity.” (National Bank v. Peck, 8 Kan. 660, 663.)
The same rule was announced in England at least as early at 1843. A defendant gave a warrant of attorney to secure a debt payable by instalments, the plaintiff having the right in case of any default to have judgment and execution for the whole as if all the periods for payment had expired. In an action of assumpsit it was held that the defendant might show, under a plea of the statute of limitations, that the first default was made more than six years before the action, and that this was a complete defense, not only as to instalments due more than six years before but also as to those due within that period. Lord Denman, C. J., said:
“We are of the opinion that the defendant is right, and that the cause of action accrued upon the first default for all that then remained owing of the whole debt. . . .
“In this case there was a default more than six years ago; and upon that the plaintiff might, if he pleased, have signed judgment and issued execution for all that remained due, or he might have maintained his action. If he chose to wait till all the instalments became due, no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time the plaintiff had a right to maintain it. The statute of limitations runs from the time the plaintiff might have brought his action, unless he was subject to any of the disabilities specified in the statute; and as the plaintiff might have brought his action upon the first default, if he did not choose to enter up judgment, we think that the defendant is entitled to the verdict upon the plea of the statute of limitations.” (Hemp v. Garland, 4 Q. B. D. [1843] 519, 523, 524.)
This case was expressly approved in 1891 by the court of appeals, on appeal from the, queen’s bench division, in the case of Reeves v. Butcher, 2 Q. B. D. (1891) 509, 511. Lindley, L. J., said:
“I am of the opinion that we cannot differ from the judgment below without altering the law. The agreement is one reasonably easy to be understood. It provides for a loan for five years, subject to a provision that if default is made in punctual payment of interest the principal shall be recoverable at once. Now, the statute of limitations (21 Jac. 1, c. 16) enacts that such actions as therein mentioned, including ‘all actions of debt grounded upon any lending or contract without specialty,’ shall be brought ‘within six years next after the cause of such action or suit, and not after.’ This expression, ‘cause of action,’ has been repeatedly the subject of decision, and it has been held, particularly in Hemp v. Garland, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.”
The reason for allowing the debtor to take advantage of the stipulation was well stated by the supreme court of Texas in the case of Harrison Machine Works v. Reigor, 64 Tex. 89, as follows:
“The purpose of statutes of limitation is ‘to compel the settlement of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses.’ (Wood, Lim. §5.)
“If the holder of a note may, at his option, treat the claim as due at a later date than the maker has agreed that it shall mature, and thus prescribe a different date at which it shall be barred, the evidence for its enforcement may be preserved, whilst that for its resistance may be destroyed, and thus the purpose of the statute be wholly defeated. . . .
“Here no option was left to the creditor; he was forced to treat the debt as due. It is true he was not obliged to bring suit upon it upon default in payment of the first note; neither is any creditor compelled to sue upon a claim so soon as it becomes due. But the statute was put in motion without consulting his wishes, by the very terms of the contract, which neither party had any right to change without the consent of the other.” (Pages 90, 91.)
So in Noell v. Gaines, 68 Mo. 649, 656, it was said:
“It cannot, with any show of reason, be urged that the notes could, under the terms of the contract, fall due for one purpose, and not for another. If they fell due when the contingency happened, and because it happened, and because the parties upon valid consideration had thus contracted, it must needs follow that the face of the notes under the circumstances mentioned ceased to furnish any guide as to their maturity.”
The benefit to be derived by sureties from a contract providing that non-payment of a part of the debt 'shall mature the whole was forcefully stated by the Kentucky court of appeals as follows:
“It is easy to conceive that a surety might require such a clause as a condition for his own protection. He might be unwilling to bind himself for five years unconditionally, whereby he might be compelled to pay, at the end of that time, both the principal and interest, and might very prudently say: ‘Insert a clause which requires the interest to be paid quarterly, and which provides that, if not so paid, the debt is to become due, so that, if not paid, I will have the right to pay it or secure myself.’ ” (Ryan v. Caldwell, 106 Ky. 543, 545, 50 S. W. 966, 967.)
The reasoning of these cases applies with peculiar force to the situation of one who has purchased subject to a mortgage that he has not assumed, and especially so if the mortgagors have left the state and he may be deprived of their aid in making proper defenses to a belated claim. When on the United States circuit bench Mr. Justice Brewer said: .
. “Now, here, according to the averments of this petition, this mortgage and this deed of trust were executed at the same time, and to secure these notes; they were parts and parcels of one transaction, and are to be construed as one instrument; and if there ve re but one instrument, and that containing a promise to pay money at three separate times, with a proviso that, upon a failure to pay the first sum at the time named, all should become due, I cannot see how, logically, we can escape the conclusion that the parties have made an absolute, unconditional stipulation, operative under all circumstances and for all purposes. I had occasion when I was on the supreme bench of my own state to consider this matter in two or three cases, and that was the conclusion I then came to, and it is unchanged. I am aware that Judge Hough in his dissenting opinion suggests certain contingencies in which the application of this rule, where there are several negotiable promissory notes secured by mortgages or deeds of trust, might work out some embarrassments; but still I do not think that the possibility of such embarrassments can avoid the clear force of the language the parties have used. I do not see why they cannot make such a contract; and if they make it, and its language is clear, I do not see why the courts should not give force and effect to it.” (Wheeler & Wilson Manufg. Co. v. Howard, 28 Fed. [C. C.] 741.)
Although the courts of some of the states and some of the federal courts have taken a’ different view, the doctrine propounded in National Bank v. Peck, supra, has been steadily adhered to by this court. It has been carried to the extent of holding that a tender of delinquent taxes, the non-payment of which constituted the sole breach of the contract, and the payment of all accrued costs, would not, after suit- had been commenced, discharge the default and reinstate the contract as to notes otherwise not due for a long period of time. (Stanclift v. Norton, 11 Kan. 218.) The legislature has not seen fit to interfere, and the rule thus early announced is now definitely established as a part of the law of this state. (Darrow v. Scullin, 19 Kan. 57; Meyer v. Graeber, 19 id. 165; Elwood v. Wolcott, 32 id. 526, 4 Pac. 1056; Lewis v. Lewis, 58 id. 563, 50 Pac. 454; Douthitt v. Farrell, 60 id. 195, 56 Pac. 9; Kennedy v. Gibson, 68 id. 612, 75 Pac. 1044.)
At a date earlier than that of the decision in National Bank v. Peck, supra, this court held:
“As a general rule, when a statute begins to run, it continues to run until the demand is barred. This principle is laid down with great uniformity in all the authorities, and may be considered as settled. Undoubtedly the legislature may prescribe differently, and in this state several exceptions are made, but none such as is claimed in this case.” (Green v. Goble, 7 Kan. 297, 301.)
By applying the rules recognized in. these cases to the facts of the case under consideration it becomes plain that the demurrer to the reply was properly sustained; but the defendant claims that the court should have been guided by the case of Douthitt v. Farrell, 60 Kan. 195, 56 Pac. 9, the syllabus of which reads as follows:
“Where a promissory note was given, by the terms of which the principal became due in five years from date, with interest payable semiannually, and a real-estate mortgage securing it was given, which provided that upon default in payment of any of the interest when due and the taxes on the mortgaged premises when due the whole indebtedness should mature, and both such defaults occurred, and the statute of limitations thereupon commenced to run against the indebtedness, but the delinquent taxes were thereafter paid by the mortgage debtor, held, that the running of the statute in his favor was ended by his voluntary correction of the one default, and, although more than five years elapsed from the occurrence of the two defaults mentioned, the cause of action on the note and mortgage was not barred.”
This decision was based upon the case of Smalley v. Renken, 85 Iowa, 612, 616, 52 N. W. 507. Smalley v. Renken refers, in turn, to Watts v. Creighton, 85 Iowa, 154, 52 N. W. 12, and Watts v. Creighton discusses and expressly rejects the doctrine of National Bank v. Peck, supra. The argument in the Smalley case was as follows:
“What did the parties stipulate that the taxes should be paid by defendant for? To protect the plaintiff from the loss or impairment of his security. At the filing of the amendment every right of the plaintiff in this respect was fully protected. The object of the condition of the mortgage was to enable the plaintiff to treat the debt as due, and save himself from loss because of the default. After the payment of the taxes, all such liability for loss was at an end. His situation was exactly as if there had been no default as far as the conditions for forfeiture were concerned. To justify a forfeiture under such circumstances would work an injustice that the court ought not to permit.” (Page 616.)
This reasoning proceeds upon premises wholly incompatible with those employed in the decisions of this court already quoted and cited. Stipulations for the acceleration of the maturity of debts do not provide penalties or forfeitures.
“It is therefore settled by the overwhelming weight of authority that if a certain sum is due and secured by a bond, or bond and mortgage, or other form of obligation, and is made payable at some future day specified, with interest thereon made payable during the interval at fixed times, annually, or semiannually, or monthly, and a further stipulation provides that in case default should occur in the prompt payment of any such portion of interest at the time agreed upon, then, the entire principal sum of the debt should at, once become payable, and payment thereof could be enforced by the creditor, such a stipulation is not in the nature of a penalty, but will be sustained in equity as well as at law. In exactly the same manner, if a certain sum is due and is secured by any form of instrument, and is made payable in specified instalments, with interest, at fixed successive days in the future, and a further stipulation provides that in case of a default in the prompt payment of any such instalment in whole or in part at the time prescribed therefor, then the whole principal sum of the debt 'should at once become payable, and payment thereof could be enforced by the creditor, such stipulation has nothing in common with a penalty, and is as valid and opera tive in equity as at law.” (1 Pom. Eq. Jur., 2d ed., §439.)
“Provisions such as that under consideration are not in the nature of penalties, nor have they anything in common with forfeitures, but are to be regarded as nothing more than agreements between the parties, fixing the time and the conditions upon which the whole debt may become due. Such an agreement may be as advantageous to the payor as to the payee. Buchanan et al. v. Berkshire L. Ins. Co., 96 Ind. 510; Malcolm v. Allen, 49 N. Y. 448; 1 Pom. Eq. Jur. §439; 2 Jones, Mort. §1186.” (Moore v. Sargent, 112 Ind. 484, 485, 14 N. E. 466.)
Indeed, the supreme court of Iowa itself in a later case has expressly held that such stipulations are not to be regarded as providing for penalties or forfeitures. (Swearingen v. Lahner and Platt, 93 Iowa, 147, 61 N. W. 431, 26 L. R. A. 765, 57 Am. St. Rep. 261.)
But a more fundamental consideration is that the parties made the contract and the courts cannot make another to take its place. Its language excludes the idea that the creditor may or may not “treat the debt as due.” It becomes due in fact. If an election were all that the parties intended words appropriate to that purpose should have been used.
“It is not necessary to assume that the parties to such a contract intended to provide for none but wrongful refusals to pay instalments. It might happen that the debtor upon good grounds would afterward deny his liability upon the contract and therefore refuse to pay instalments, in which case the provision would serve him a useful purpose in bringing the question at issue to a prompt test and not leave it entirely with the creditor to delay until perhaps evidence of the defense had been lost. The question at last is one of construction of the language used, and that wdfich makes it mean just what it says is not without reason or good authority to support it. Where the purpose is only to give the option to the creditor, language expressive of it may be easily inserted.” (Building and Loan Assn. v. Stewart, 94 Tex. 441, 61 S. W. 386, 86 Am. St. Rep. 864, 868.)
This' distinction was recognized, and indeed controlled the decision, in the very recent case of Kennedy v. Gibson, 68 Kan. 612, 616, 75 Pac. 1044. The opinion reads:
“The note provided that a default should mature the entire debt, at the option of the holder, while the provision in the mortgage was that a default made the whole debt due, regardless of an election by the holder. Which of these provisions should control? In the absence of an option clause in the note, the stipulation in the mortgage would have operated to mature the whole debt upon a default, and the mortgagors could have taken advantage of the stipulation. (National Bank v. Peck, 8 Kan. 660.) The stipulation in the note as to default, however, conflicts with that of the mortgage, and, of necessity, the former controls. The note contains the obligations of the mortgagors, and the mortgage, concurrently executed, is an incident to a,nd security for the note. The stipulation in the note must therefore prevail, and unless the holder exercised the option and elected to declare the whole debt due, the statute would not run earlier than the time originally fixed for the maturity of the note.”
Such being the established position of this court, the Smalley case must be eliminated as a support for the conclusion reached in Douthitt v. Farrell, supra.
In deciding the Douthitt case the court in effect declared reciprocal estoppels against the parties. The debtor lost the right to plead that the statute was running on account of his default, and the creditor lost the right to sue on account of the same default. The wound was healed without a scar. The condition in the mortgage that the creditor could, under certain circumstances, insist upon payment of the note before maturity according to its terms was restored to the status of an unbroken covenant for the future protection of the indebtedness secured, and the indebtedness itself was restored to the status of an unmatured claim. The opinion reads:
“We have no doubt but that the voluntary payment of the taxes by the debtor was a waiver by him of the conditions under which the statute of limitations was running in his favor and was a restoration by him of the plaintiff to the status of a holder of an unmatured indebtedness.” (Page 198.)
Manifestly no such rehabilitation of rights could be accomplished in this case. The last note had matured by its own terms six months before the taxes were paid. The plaintiff could not be reinvested with the rights of a holder of an unmatured indebtedness, and the mutual modification of the legal relations of the parties adverted to in the Douthitt case was impossible. True, the term “voluntary waiver” is used in that decision, but as already observed the waiver was of such a character that it necessarily worked a change in the rights of the opposite party.
That the conduct of a single party to the contract may have such a far-reaching effect, unless the other party has been influenced in some manner by it, is not conceded by those courts that enforce the rule of peremptory maturity adopted in this state. Thus in the case of Building and Loan Assn. v. Stewart, supra, it was said:
“It is not in the power of the creditor by his acts alone to change the rights of the parties resulting from the maturity of the debt. But both parties, by their joint action, may so alter such rights that the creditor would no longer have the right to demand nor the debtor to pay the entire indebtedness. . . . While neither party by his separate action or non-action could impair the rights of the other, each could waive his own rights as they accrued from the default in payment of an instalment so as to estop him from relying upon such default. To accomplish this, it would only be necessary that each should so act as to justify the other in believing and acting upon the belief that the effect of the failure to pay an instalment was to be disregarded and that the contract should stand as if there had been no default.” (Page 447.)
Likewise, in the case of Moore v. Sargeant, supra, it was said:
“The provision in the mortgage for accelerating the time when the whole debt should become due and collectable did not make the maturity of the debt evidenced by the second note depend upon the election of the mortgagee. The second note became absolutely due upon failure to pay the first note at maturity. According to the terms of the contract, upon the happening of that event, the whole debt became as effectually and absolutely due as if further credit had not been, in any contingency, agreed upon. The mortgagor had then the right to pay or tender the whole debt, and by that means suspend the accumulation of interest. The acceptance of a part by the mortgagee did' not defeat the right of the mortgagor to pay or tender the balance at once, nor did it, without a new agreement, extend the time or prevent the former from enforcing payment of what remained unpaid. . . . Under a provision which gives the creditor the exclusive right to elect, within a time fixed, whether or not he will treat the whole debt as due in case the debtor makes default in paying interest, it may well be that the unconditional acceptance of interest by the creditor, after the expiration of the time, without notice of the election, would waive the default. (2 Jones, Mort. §1186.) Or if the default vas induced by the fraudulent or inequitable conduct of the creditor, or by any agreement or promise upon which the debtor might rely which operated to mislead or throw the debtor off his guard, a court of equity would interfere to stay proceedings, or the action might be abated upon the facts being properly pleaded.” (Page 485.)
Under either theory the judgment of the district court in this case was correct because the condition in the mortgage now in controversy had spent its force when the taxes were paid. No acceleration of the maturity of the notes secured could occur by virtue of it; failure to comply with it could not start the running of the statute, and a payment of taxes could not stop the statute from running. No rights could be gained or lost on account of the stipulation.
On February 18, 1896, a cause of action accrued in plaintiff’s favor, and the statute of limitations then commenced to run against it. From February 18, 1896, until the notes matured by their terms the plaintiff had an indisputable right to bring suit upon them, and during all that time the statute of limitations continued to run. After the notes matured by their terms the cause of action continued to exist unimpaired, and the statute continued to run. The payment of taxes on August 21, 1899, could not prevent suit on the notes, and hence could not suspend the operation of the statute, and it continued to run after that date as before. Such having been the condition of affairs for more than five years before suit was commenced, the right to recovery was then barred. The taxes were paid by one who bore no privity to the debt, and owed the mortgagee no duty concerning it. His conduct implied no recognition either of the existence of the notes or of the right to enforce them. It was entirely independent of, and unrelated to, any cause of action the plaintiff might have. It had, and could have, no effect whatever upon the conduct or rights of the mortgagee, and waiver cannofbe predicated upon it.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Appellant was convicted of grand larceny. The warrant upon which he was arrested described the stolen property as a cow of a given age, color, brand, and ownership. At the preliminary examination a number of witnesses were sworn and gave testimony on behalf of the state. The order of the justice binding appellant over was general in its terms, and made no specific reference to the charge contained in the warrant. The information added in some particulars to the description of the cow given in the warrant. Under a plea in abatement he claimed that he was informed against for a crime different from that for which he was bound over. The plea was overruled, and the same position is taken in this appeal.
The fallacy of appellant’s argument lies in the unwarranted assumption that he was bound over for the larceny of a cow, without distinguishing characteristics beyond those exhibited by the warrant. The record of the justice contains no such limitation. On the other hand it discloses oral testimony as furnishing the basis of the magistrate’s order. Of this testimony appellant was bound to take notice, and the county attorney had the right to utilize it in framing the information.
“The defendant must take notice, from the evidence introduced on the preliminary examination, as well as from the papers in the case, of the nature and character of the offense charged against him. The State v. Smith, 57 Kan. 673, 47 Pac. 541; The State v. Bailey, 32 id. 83, 3 Pac. 769.” (The State. v. Fields, 70 Kan. 391, 78 Pac. 833, 834.)
The plea in abatement was tried upon the record, and instead of supporting the plea the record supports the information. This being true, it is not necessary to discuss the question how far an information may particularize a description contained in a warrant without changing it, when a defendant is bound over for the offense named in the warrant, but in the case of The State v. Bailey, supra, it was said:
“It is not necessary that the papers and proceedings on a preliminary examination should be technically regular and exact, like the papers and proceedings on the final trial. It is not necessary that the papers and proceedings on a preliminary examination should set forth the offense in all its details and with perfect and exhaustive accuracy. For the purpose of authorizing a final trial and of requiring that the defendant should plead to the merits of the' action, all that is necessary is that the defendant should be given a fair opportunity to know by a proffered preliminary examination the general character and outlines of the offense charged against him; and it is not necessary that all the details and technical averments required in an information should be set forth in the papers used on the preliminary examination.” (Page 89.)
After the information had been filed it was amended. Certain statements in the bill of exceptions apparently conflict with the journal of the court upon the question of whether the amendment was made before the plea. Under such circumstances the recitals of the journal showing a waiver of arraignment and plea of not guilty after the amendment had been made will be accepted as true.
In the list of witnesses indorsed upon the information was the name of Burr Hinkle. Concerning his conduct the record contains some shocking disclosures. From the state’s evidence it appears that on the morning of the trial the county attorney called Hinkle into his office and engaged him in conversation relating to his knowledge of the case. In the presence of the county attorney, an attorney assisting in the prosecution, two other gentlemen and a young woman employed in the county attorney’s office he told of a conversation had with appellant before the larceny, in which appellant proposed that they take the cow in question together, saying it would be easy to do, and they could take her in partnership. Hinkle declined, and appellant then said he was going to get the cow, maybe put a “Diamond B” brand on her, and take her up to old man Moon’s and she would make a good milch cow. Hinkle further stated that on the day preceding the trial he had talked with appellant in regard to what his testimony in the case would be, and appel lant told him to keep still about the previous conversation and say nothing about it. After leaving the county attorney’s office he saw appellant and related his conversation with the state’s attorneys. Appellant told him it made no difference what he said in the county attorney’s office, and that he should say, when on the witness-stand, that he knew nothing about the original conversation. In the course of the forenoon, as he had done the previous day, the witness drank “malt” at “McCoy’s” and “Bob’s,” the effects of which he still felt when placed on the witness-stand in the afternoon. He was a young laboring man, but twenty years old, without a home, without relatives in the community, and had never before been a witness in court.
When examined concerning appellant’s proposition to him to steal the cow he denied that it had ever been made, and denied having any conversation with the defendant relating to the cow. Likewise he denied having a conversation with appellant on the day before in reference to what his testimony should be.
The jury was temporarily excused while the county attorney made a statement of the facts to the court, and upon their return the court, over appellant’s objection, permitted a rigid cross-examination of the witness by the state, which included all that occurred at the county attorney’s office in the morning. The witness gave an explanatory version of that transaction, and remained firm in his denials. After he was excused he was arrested for perjury and placed in jail. In the evening, after the evidence in the case had been closed, he sent for the attorneys for the state, and, without inducement or promise on their part, offered to go upon the witness-stand and tell the truth as he had told it to them before. Over the objection of the appellant the case was reopened, and the witness made a full and sweeping disclosure of all the shameful facts. The conduct of the county attorney and the dis trict court in these proceedings is denounced in very vigorous terms in the brief for appellant.
In an effort to make it appear that the law was quite impotent in this matter, and that all efforts to investigate so brazen an attempt to burlesque a criminal trial should have been smothered at once, it is said flat that the county attorney was not surprised. Conceding to that officer perfect imperturbability in the presence of Hinkle’s conduct, it is still quite plain that he was entrapped, that he had the right to anticipate different testimony, and that the witness had become decidedly hostile; and these circumstances are sufficient to bring the case within the rule relating to the cross-examination of its own witnesses by the state heretofore announced by this court. In the case of The State v. Sorter, 52 Kan. 531, 538, 34 Pac. 1036, the following language was used:
“The permission granted counsel for the state to cross-examine one of their own witnesses is a matter of complaint. ... As a general rule, a party cannot impeach his own witness, nor interrogate him with a view to affect his credibility merely. Neither can he introduce other evidence for that purpose. But while he may not impeach him, he is not conclusively bound by the statements which he may make. And where a party has been entrapped or deceived by an artful or hostile witness, he may examine the witness as to contrary declarations, and may, in the discretion of the court, be allowed to show what such contrary declarations were. In Johnson v. Leggett, 28 Kan. 605, it was held that ‘the matter is left largely within the discretion of the trial court; that that court may, when it thinks the interests of justice require, permit a party to show that he' is unexpectedly mistaken in the testimony of any witness; that he had good reason to expect other testimony, and what such other testimony would be.’ ”
(See, also, Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349, and note, where numerous authorities sustaining this rule are collated.)
The rule relating to the right of the district court, in furtherance of justice, to open a case for additional testimony is elementary in the law, and requires no fortification by authority.
In cases of this character, as in all others, the judge of the district court sits as an impartial arbiter between the state and the accused. The conduct of the 'witness is displayed in his presence. He can best determine whether it savors of mendacity and treachery and warrants searching cross-examination, and he can best estimate the necessities of the situation with reference to a subsequent reopening of the case. The law trusts him to do this, and nothing but a clear overstepping of the limits of judicial propriety could induce this court to interfere with his management of a proceeding of such delicacy and gravity.
Reverence for the majesty and supremacy of the law, the obligation of the individual to organized society, and the sense of responsibility and accountability to the Supreme Power of the Universe all impregnate the oath of a witness in court. Oaths are primary and fundamental safeguards in the quest for truth in courts of justice, and should be attended by all their ancient sanctity. Perjury is the gangrene of judicial proceedings. It is believed by observant and thoughtful lawyers to be increasing at an alarming rate (address of J. J. McCarty, president of the Iowa State Bar Association, 35 Am. Law Rev. 684), and prompt and diligent efforts should always be made to cleanse the administration of the law of its pernicious and polluting presence. Therefore, under the facts disclosed, the county attorney is to be commended for his quick arrest and incarceration of the witness Hinkle.
Hinkle was taken into custody without any expectation of using him as a witness again, and the case was closed without doing so. Without proof the law will not tolerate an inference that he returned to the wit ness-stand through any improper inducement or official misconduct on the part of the state’s attorneys, and there is no hint of any- such proof in the record. Doubtless detention in jail materially helped to clarify his benighted mental and moral vision, but it did not destroy his competency as a witness. It only affected his credibility, and all the rueful facts of his degradation were confessed to the jury. Facts were disclosed tending to show that besides being sinful he was probably sinned against by persons interested in the defense. His weakness and ignorance were probably imposed upon, and despite his false swearing the jury had the right to believe from his evidence that the defendant had proposed to steal the property in question, had announced, his intention to consummate the crime, and had on two occasions attempted to frame perjured testimony in order to thwart conviction. The conduct of the court in opening the case is fully approved.
Certain instructions complained of were applicable to the evidence and correctly stated the law. The oral request of the appellant that the court “instruct the jury as to the law of identity” was of no legal effect as a request for an instruction. The instructions given fulfilled all the requirements of the statute.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In July, 1901, Charles G. Griffith executed a deed purporting to convey a tract of land to his son William E. Griffith, and at the same time he made another deed purporting to convey another tract to his grandson Charles W. Griffith. In September, 1902, he died intestate, and Jacob E. Griffith and the .other heirs, except William E. Griffith, challenged the validity of the conveyances and claimed an interest in the land that had been conveyed to William E. Griffith and Charles W. Griffith. They brought this suit against the grantees, alleging the relationship of the parties to the deceased Griffith; that he died seized of the two tracts that have been mentioned; that William E. Griffith claimed one tract, and Charles W. Griffith the other, by deeds which were procured through fraud by William E. Griffith, and which were never delivered; but they did not state in what the fraud consisted. There was a further averment that Charles W. Griffith was a minor under the age of eight years, and was therefore incapacitated to receive the title to the land, but there was no charge of fraud made against him. It was also alleged that the deeds ‘were not voluntarily executed, and were not made when the grantor had capacity to realize what he was doing. The plaintiffs, therefore, asked that the deeds be set aside, and to have a recovery of the property; and, further, that it be partitioned among them according to their respective interests.
Among other attacks made upon the petition was one for misjoinder of causes of action, but it was unsuccessful. The demurrer should have been sustained. The deeds for which cancelation was asked, although made about the same time, and by the same grantor, were distinctly separate, and conveyed different parcels of land to the defendants. Each of the defendants claimed an individual interest in a distinct tract under a deed in due form and of record, in which the other defendant was not mentioned. If the deeds were valid William E. Griffith holds a complete title to 200 acres of the land in controversy, and Charles W. Griffith has no interest in such tract; and, on the other hand, Charles W. Griffith holds the title to 320 acres of the land, to which William E. Griffith is a stranger.
The fact that there was a common grantor does not unify the interésts conveyed, nor make the setting aside of the deeds and the recovery of the land a single cause of action. Nor does the fact that the causes of action or the remedies sought, as against the different defendants, belong to the same general class justify a joinder. The code provides that causes of action, to be united, must not only belong to one of the classes specified but “must affect all the parties to the action, except in actions to enforce mortgages or other liens.” (Civil Code, §83.) Each holder of a separate deed, asserting an individual right, is not a necessary party in a proceeding to cancel a deed to, or contest a recovery of, land claimed alone by the other. Since one is not affected by the cause of action contesting the deed and title of the other, the petition, if it states a cause of action at all, states one against each defendant, and as the several causes of action do not affect both defendants there was necessarily a misjoinder of causes of action. (Hoye v. Raymond, 25 Kan. 665; Lindh v. Crowley, 26 id. 47; Jeffers v. Forbes, 28 id. 174; L. N. & S. Rly. Co. v. Wilkins, 45 id. 674, 26 Pac. 16; Hurd v. Simpson, 47 id. 372, 27 Pac. 961; Rizer v. Comm’rs of Davis Co., 48 id. 389, 29 Pac. 595; Haskell County Bank v. Bank of Santa Fe, 51 id. 39, 32 Pac. 634; A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 id. 617, 33 Pac. 312; New v. Smith, 68 id. 807, 74 Pac. 610; Benson v. Battey, 70 id. 288, 78 Pac. 844.)
Testimony of some of the plaintiffs of transactions had with their deceased father was received over the objections of the defendants. This was in direct violation of section 322 of the code, and, although it is claimed that the testimony was immaterial, it is not easy to say that it was without prejudice.
There are other errors assigned, but these are no longer important, as the cause cannot be tried on the pleadings in the case. The judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
E. F. Hartwig recovered a judgment in the city court of the city of Wichita against Ed. Gould and two others for the unlawful detention of a storeroom in that city. Defendants in the action appealed to the district court, and on Octo ber 3, 1902, executed a bond conditioned that if on further trial of the cause judgment should be rendered against them they would pay double the value of the use and occupation of the room from the date of the undertaking until the delivery of the property pursuant to the judgment, and all damages and costs. The appeal was dismissed in the district court, and this action was brought thereafter to recover on the appeal bond.
The court instructed the jury that the only issue in the case was the reasonable rental value of the premises from October 3, 1902, to May 20, 1903, and that the amount of damages recoverable by plaintiff would be double such rental value for the period named, "with interest thereon at six per cent, per annum from May 20, 1903, to the day of trial, April 22, 1904, together with costs claimed by plaintiff. The verdict was as follows:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, E. F. Hartwig, and against the defendants, and each of them, and assess the amount of his recovery at $42.50 per month ($696).”
On a motion for judgment notwithstanding the verdict, filed by defendants, counsel for Hartwig asked the court for permission to remit a part of the amount fourid by the jury to be due, and thereupon the court reduced the amount to $687, to draw interest from June 2, 1904, and entered judgment therefor. Of this remittitur, and the action of the court thereon, plaintiffs in error complain. It is the only question of error in the case.
In the instructions given the court narrowed the inquiry to be made by the jury to the rental value of the property within specified dates.' This was found to be $42.50 a month, which would amount to $321.60; twice this is $643.20. Six per cent, interest on this sum, from May 20, 1903, to April 22, 1904, is $35.73, which, with $8.50 — the amount of costs in the forcible-detention case — added, makes a total of $687, the amount for which the court entered judgment, reducing the amount of the verdict $9.
It is contended that the figures $696 in the verdict, placed in parentheses, cannot be considered. The court does not agree with counsel in this contention. The figures show that the jury doubled the rental value. Without this the verdict would have been a nullity. (Henrie v. Buck, 39 Kan. 381, 18 Pac. 228.) It is apparent that the jury made an error amounting to $9 in calculating interest, which was remitted. (C. K. & W. Rld. Co. v. Watkins, 43 Kan. 50, 59, 22 Pac. 985.)
Reading the instruction in connection with the facts found in the verdict, showing the amount of the rental value of the property, the court could determine with mathematical certainty the amount of damages to which plaintiff was entitled. (Mills v. Mills, 39 Kan. 455, 18 Pac. 521.) As applicable to the question we quote the quaint language of Lord Hobart in the old case of Foster v. Jackson, 1 Hob. 124, 129:
“But howsoever the verdict seem to stray, and conclude not formally or punctually unto the issue, so as you cannot find the words of the issue in the verdict, yet if a verdict may be concluded out of it to the point in issue, the court shall work it into form, and make it serve.”
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The principal question presented for decision is, Did Mary T. Jack give a valid consent to take the allowance made for her in the will instead of the share she might have taken under the statute? In the statute relating to wills it is enacted that “no man while married shall bequeath away from his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” (Gen. Stat. 1901, §7972.) To make the consent effective it must be in writing, and executed in the presence of two witnesses. The deed made in connection with the other papers is a written relinquishment, and although ‘the names of the subscribing witnesses are not attached to the instrument it is alleged to have been executed in the presence of two witnesses. It is not required that the witnesses shall sign the writing, but only that it shall be executed in their presence. (Gen. Stat. 1901, §7972; Neuber v. Shoel, 8 Kan. App. 345, 55 Pac. 350.) Nor is the designation of the instrument giving consent important, if it amounts to a written agreement to relinquish the statutory share, and that more than one-half of the property may be devised elsewhere. A valid antenuptial contract has been held to be sufficient to change the descent of property and bind a person to take the portion agreed upon instead of the statutory share. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; King v. Mollohan, 61 id. 683, 60 Pac. 731.)
It is insisted that although the deed is in writing, and the execution witnessed by the proper number of persons, it does not of itself clearly show that it was intended to be a consent to the provisions of the will. While the deed does not specifically recite that it is intended to operate as a consent, nor refer expressly to the other papers in connection with which it was executed, they appear to have been part of one transaction, and combine to effect a single purpose, and hence we may properly look to those papers, and the circumstances under which they were executed, to interpret the deed and determine the purpose that it was intended to accomplish.
All the papers were executed substantially at the same time, and in the presence of those concerned in the disposition of the property. It was the manifest purpose to make definite and final disposition of the property and to adjust the rights of all at that time. The testator had a daughter, and his wife had a son, to be provided for. First, he desired that his wife should have the benefit and earnings of the whole of the land during her lifetime, instead of title to the half, which the law would give her, and that it should be managed by her son, who under the lease was to enjoy the possession of the property and pay the rentals to his mother. Then, at her death, when the life-estate had terminated, he wished it to go for the benefit of, and absolutely to, his own daughter. The will expressly provided for his wife and daughter, the lease gave the possession to the wife’s son, and in the deed there was consent and an obvious attempt to give the fee to the daughter. The connection between the will and the deed is easily apparent. Each of them plainly refers to the life-estate of the wife. As that estate was provided for in the will alone the reference to it in the deed is internal evidence to connect it with the will. In this respect the case is quite unlike the one cited of Sill v. Sill, 31 Kan. 248, 1 Pac. 556, where the deeds sought to be linked with a will had been executed about a year before the making of the will, and bore no evidence of any connection with the will. In the present case the reference in the deed by Mrs. Jack to the life-estate, arising from the terms of the will, and the reservation of that estate to herself, were an acknowledgment that she was acquainted with the provisions made for her in the will, and by placing the title in the daughter subject to her life-estate she indicated her desire to confirm and give consent to the provisions of the will.
Writings of this character should be so construed as to give every part of them force and effect, if possible, and unless the deed is construed in connection with the will it will be inoperative, and the evident purpose of the parties thwarted. It is evident that the parties, as well as the notary who assisted them, were unacquainted with legal forms and the best methods of accomplishing their purpose; but when the papers executed are construed together it is manifest that all intended that Mary T. Jack should have a life-estate in the entire property, and that the deed was executed to evidence her consent to the provisions of the will.
The decision of the court with respect to this feature of the case is sustained, but its judgment canceling the lease must be modified. It was executed as a part of the transaction which has been upheld, and as nothing has been alleged in the petition or indicated upon the face of the lease that renders it invalid no reason is seen why it should be set aside. The judgment is, therefore, modified as to the lease, and in all other respects it is affirmed.
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Per Curiam:
M. R. Brown appeals from a conviction under the prohibitory liquor law. The errors assigned are all based upon the contention that the evidence did not justify the verdict. The evidence has been examined, and the contention is found not to be sound.
The judgment is affirmed. | [
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The opinion of the court was delivered by
William E. Smith, J.:
The court did not err in requiring plaintiffs to elect on which of the two counts or causes of action they would rely for a recovery. There was no averment in the second count that the formal contract of carriage made at Monticello, Ark., with the Missouri Pacific Eailway Company was mutually binding on the parties to it. Plaintiffs alleged that they signed the contract but that they did so without reading it, and that no alternative was given them except to sign it after the cattle had started to their destination, and that the agent told them it was necessary that it be signed by them. The brief reference to this contract indicates that plaintiffs were seeking to avoid the binding force of its provisions on them, with no intention of relying on- it as an obligation for the violation of which by the railway company they sought a recovery of damages. The ruling requiring an election as to which count of the petition the plaintiffs would stand upon had the legal effect, after the election was made to proceed under the first cause of action, of striking from the petition the second count. We are unable to see how this count, if it had been allowed to stand, could have aided the plaintiffs.
There is nothing in the letter, telegrams and verbal agreement between plaintiffs and Douthitt, which are set out in the first cause of action and relied on as a contract with the railway company for the carriage of the cattle, to show that Douthitt was the agent of the Missouri Pacific Railway Company. Plaintiffs, however, made this clear by the testimony of Douthitt himself, which they introduced in their own behalf. He testified:
“Ques. If the rate had been quoted by you or the information furnished by your office, as mentioned in 'Exhibit A,’ for what company would you then be acting, assuming that the shipment originated on the line of the St. Louis, Iron Mountain & Southern Railway? Ans. In any business originating on the Iron Mountain I would be acting for the Iron Mountain.
“Q. You would be so acting at that time? A. Yes, sir.”
“Exhibit A” referred to in the question was the letter of Douthitt, dated November 20, 1897, set out in the statement. It was thus shown by the testimony of the person with whom they contracted that he was not the agent of the railway company against which the action was prosecuted, but of another carrier on whose line of road the business originated, namely, the St. Louis, Iron Mountain & Southern Railway Company. By bringing forth this testimony plaintiffs re moved all doubt respecting the identity of the company for which Douthitt was acting at the time the contract was made.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
CUNNINGHAM, J.:
The plaintiffs’ claim is that when they purchased the land that they own fronting on Orange avenue, as a valuable and necessary appurtenant thereto they purchased the right to travel the entire length of that street, for the purpose of ingress to, and egress from, their property; that such right of ingress and egress became a vested one, and could not be taken from them by the legislature without due compensation. The defendant’s claim is that the legislature, representing the public, has a right to vacate streets and alleys dedicated to public use, and to abandon the same so far as the public are concerned, and that the plaintiffs could not maintain this suit because it appears that they have suffered no injury other and greater than has the general public.
It must be conceded that when one purchases a lot or block of platted land fronting upon a street affording access thereto he obtains, also, as a part of the valuable rights thus secured, the right of passage over and along the street fronting such premises, for the purpose of ingress thereto and egress therefrom. This right is one that cannot be taken away from him by the public without due and proper compensation. It must be further conceded that, subject to such private rights and their substantial enjoyment, the public, acting through their representative, the legislature, may relinquish their right in and to public streets by vacating the same. So, in this case, we will be enabled to solve the matters of difference by the application to the agreed statement of facts of these fundamental principles.
It seems fairly inferable from those facts that Fourteenth street was a public highway, duly dedicated as such; that it, with Orange avenue on the west, Fifteenth street on the north, and Hydraulic avenue on the east, constituted the highway boundaries of the block of land in which plaintiffs’ land is situated, at the time they purchased their land; and that by means of such streets they were enabled to pass freely in all directions to and from their premises. This was a right in which they had a greater and more vital interest than had the general public, and it seems to us that any curtailment of this right is such a material abridgment of the vested and peculiar interests of the plaintiffs as to be beyond the constitutional power of the legislature.
The defendant contends that as long as that part of Orange street upon which the plaintiffs’ premises abut is kept open, and as long as the plaintiffs have a means of ingress and egress by the more generally traveled highway, which it is here found that they have by Hydraulic avenue, they are injured in no peculiar sense by the closing of Orange avenue south of their south line. This claim is too broad. While we do not think that when one purchases a parcel of ground bounded, by a laid-out and dedicated street, in a given platted parcel of land, he thereby necessarily becomes vested for all time with the right to travel over and along all of the streets and alleys of such platted parcel of ground, or even all of the streets that it would be convenient for him to use, we do think that he obtains the right to the use of such streets as are reasonably necessary for the enjoyment of the land so purchased by him. These streets are ordinarily such as bound the block in which his land is situated, or such as furnish access to his property from either direction, and there is no reason to limit this ordinary rule in this case. So here, while we do not think that the plaintiffs, under the facts agreed upon, have shown their right to have Orange avenue kept open through its entire length south to Thirteenth street, yet they have a right to have it opened as far as the south line of Fourteenth street, and to have Fourteenth street opened east to Hydraulic avenue. This will give them reasonably free access to, and egress from, their premises in all directions. To deny them this leaves them in a cul-de-sac, so far as a southern exit is concerned. The injustice of this was so apparent to the trial court as to lead it to decree an outlet twenty-five feet wide through defendant’s land, along plaintiffs’ south line; but this provision was entirely unauthorized and lacks much of being the adequate way furnished by Fourteenth street, which was opened to them at the time they purchased their land.
The judgment of the district court is set aside, and the case remanded with instructions to the district court to enter an order permanently enjoining the defendant in error from closing up or obstructing that portion of Orange avenue north of the south line of Fourteenth street, and also that portion of Fourteenth street east of the west line of Orange avenue.
Johnston, C. J., William R. Smith, Greene, Burch, Mason, Clark A. Smith, JJ., concurring. | [
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Per Curiam:
The plaintiff in error is the executrix of the last will of David Fager, deceased. Defendant in error presented to the probate court for allowance against the estate a promissory note for $2000, payable to bearer and executed by David Fager. The court allowed the claim, from which order the executrix appealed to the district court. Her contentions in that court were that for many years prior to his death, and especially at the time the note was signed, David Fager was mentally and physically so enfeebled as to be incompetent to transact any kind of business; that he did not know he was signing a note, and that his signature thereto was procured by fraud; that the defendant in error bought the note through Harry Brooke, his agent, with notice that it had been procured by fraud. After the executrix had introduced her evidence the court directed the jury to return a verdict for the defendant in error. To reverse this judgment plaintiff in error prosecutes this proceeding.
It is the opinion of this court that there was substantial evidence introduced by the executrix tending to prove that the note was procured by fraud, and that the present holder had notice thereof when he became the purchaser; hence the court erred in not submitting these questions of fact to the jury.
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The opinion of the court was delivered by
Mason, J.:
George B. Stevens sued a number of persons, alleging that they had assaulted him, and destroyed personal property belonging to him, consisting chiefly of a quantity of liquors and cigars. He failed to recover, and now prosecutes error. The principal complaint is based upon the court’s having instructed the jury as follows:
“In his petition the plaintiff has set up and alleged that defendants, together with other persons to him unknown, armed with hatchets, clubs, and other dangerous, destructive and deadly weapons, did unlawfully, violently, riotously, and maliciously, acting in concert and as a mob, break and smash the outer doors and windows of his place of business, and did destroy the property alleged by him to have been destroyed. By the allegations and charges above made and set forth the plaintiff charges the defendants to have constituted, and to have been, a mob, and under said allegations it is incumbent upon the plaintiff to establish, by the preponderance of the evidence, that the defendants, acting in concert, did constitute a mob, and before the defendants can be held to answer in damages in this case they must be found by the jury to have been members of the mob, if there was a mob. . . . A mob is the assemblage of a number of people acting in a tumultuous and riotous manner, calculated to put good citizens to fear, and to endanger their persons and property.”
This language is treated by both parties as meaning that no recovery whatever could be had by plaintiff unless the jury should find that the defendants constituted a mob within the terms of the definition given, and it is open to that construction, whether or not it was used with that purpose. So construed, the giving of it was obviously prejudicial error. The allegation of the petition that the defendants acted as a mob was an immaterial one. It could have been obliterated without destroying or changing the legal effect of the petition. It therefore was not necessary for the plaintiff to prove it, unless it was descriptive of the identity of something essential to the cause of action. (22 Encyc. Pl. & Pr. 533.) In Bouvier’s Law Dictionary, under the title “Description,” it is said:
“One of the rules which regulate the law of variance is that allegations of matter of essential description should be proved as laid. It is impossible to explain with precision the meaning of these words; and the only practical mode of understanding the extent of the rule is to examine some of the leading decisions on the subject, and then to apply the reasoning or ruling contained therein to other analogous cases.”
The allegations that are not necessary to the complete statement of a cause of action, but which the pleader must prove because of their being of-the kind designated as “descriptive,” are ordinarily those which limit more general statements, and which so advise the opposing party of the precise claim relied upon that to treat them as mere surplusage would be to require him to meet evidence of a state of facts substantially different from what he had occasion to anticipate. However difficult it may be to frame a general rule on the subject, it is easy to determine that here the allegation of the plaintiff’s petition that the defendants acted as a mob was not descriptive in this sense. It had no tendency to narrow or define any of the accompanying statements. Its presence could in no way affect the defendants in the preparation of their case. It was apparently used either as a mere epithet or to imply such a concert of action among the defendants as to constitute them joint wrong-doers, and to render each one liable for the acts of any or all of the others. In the latter case it was only repetition, for the specific averment was also made that the defendants acted in concert, and in pursuance and furtherance of a common design.
If, however, the allegation under consideration be treated as a material one, which it was incumbent upon the plaintiff to prove, the judgment must be reversed on account of the terms in which the court defined the word “mob.” The definition adopted presumably originated in Rapalje and Lawrence’s Law Dictionary, for it differs widely from that of any other law-writer or lexicographer, and is given there unaccompanied by any citation of authority. Its defects are obvious. While “an assemblage of a number of people acting in a tumultuous and riotous manner, calculated to put good citizens to fear, and to endanger their persons and property,” would doubtless constitute a mob, it can hardly be seriously contended that all the elements named must be present to have that effect. Yet that is the fair implication from the language used. There is no basis in reason or authority for holding that a riotous assemblage can only be a mob when it is calculated to endanger both person and property, or that the matter might be affected by the character of the citizenship of the persons placed in fear or in danger.
The plaintiff in error also complains because the trial court, in instructing the jury upon other matters, instead of directly telling them by what legal principles they were to be governed in arriving at a verdict stated that the supreme court had decided the questions involved in a certain way. As the case is to be reversed upon other grounds it is not necessary to decide whether substantial prejudice resulted from the adoption of this practice in this instance, but it is one that has already been disapproved. In Cloud County v. Vickers, 62 Kan. 25, 30, 61 Pac. 391, it was said:
“The jury should receive the law from the trial court. The expressions of this court are for the guidance of the trial court, and we consider it bad practice to embody our language in an instruction when it is prefaced with a statement that this court is the authority from which it is derived.”
Other questions relating to the instructions have been argued, but as they may not arise in the same form upon another hearing they will not now be determined.
The judgment is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
J. A. Underhill, plaintiff below, was the owner of a tract of land. He neglected to pay taxes for several years. The property went to sale, and a tax deed was regularly issued to George Wagner, defendant below, on January 23, 1903. It was not recorded until October 5, 1904. This was a suit to quiet title, brought by Underhill. A decree was entered in his favor. Defendant asked the court to adjudge that the amount of taxes he had paid on the land be declared a lien thereon. The request was denied, and the question raised by such denial is the only one properly presented to this court on the record. In section 1 of chapter 31 of the Laws of 1886 it is declared :
“All tax deeds hereafter issued shall be recorded by the person or persons to whom issued, in the office of the register of deeds of the proper county, within six months from the date of the issuance thereof.” (Gen. Stat. 1901, §7688.)
Section 3 of the same law reads:
“All tax deeds not recorded within the times specified in this act shall be void.” (Gen. Stat. 1901, §7690.)
Counsel for defendant in error depends largely on the case of Corbin v. Bronson, 28 Kan. 532, to uphold the ruling of the trial court. That was an action in ejectment, in which the plaintiff based his right to recover on a tax deed. Defendant had been in possession twenty years. The action was commenced more than two years after the tax deed had been recorded. It was held that, the statute of limitations having barred the action, the plaintiff was not entitled to .recover the taxes paid, nor to have them declared a lien on the land. Although the action was ejectment in form it was in legal effect an effort by the tax-deed holder to foreclose a lien on the land for the taxes paid, which it was held could not be done. The decision went no further than this.
We have been cited to no decision of this court in a case analogous to the present one where a party initiating an equitable proceeding to remove a tax deed, which is a cloud on his title, can obtain affirmative relief without payment of the taxes lawfully assessed on the land. In this case the tax deed issued to Wagner failed as a muniment of title because it was not recorded within six months from its date. It has been held repeatedly that in suits to quiet title, instituted against a tax-deed holder, the plaintiff, if successful in defeating the tax deed, must pay such taxes as are fairly and justly due. (Challiss v. Hekelnkaemper, 14 Kan. 474; Wilder v. Cockshutt, 25 id. 504; McKeen v. Haxtun, 25 id. 698; Richards v. Cole, 31 id. 205, 1 Pac. 647; Pritchard v. Madren, 24 id. 486; Franz v. Krebs, 41 id. 223, 21 Pac. 99; Black v. Johnson, 63 id. 47, 64 Pac. 988.) The failure of title in the tax-deed holder did not impair his right to repayment of taxes. He discharged a claim of the state which it was the primary duty of the owner of the patent title to pay, and became subrogated thereto.
The principle that one who seeks equity must do equity himself applies to the present controversy. Underhill negligently suffered the taxes on his land to become delinquent for so long that it was sold and a tax deed issued. In an equitable proceeding he sought to set aside the deed, and succeeded on the sole ground that the holder failed to record it in time to carry title. The owner owed a duty to the state to pay his taxes. Confessing violation of this duty, he cannot clear his land of taxes by asserting that the tax-deed holder was negligent in the respect stated.
The judgment of the court below is reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Phillip Miller was convicted of the offense of rape, committed upon Mollie Neidens, a girl under the age of eighteen years. In his appeal he complains that Mollie was permitted to testify as to the birth and parentage of the child, the fruit of the illicit relation. Having testified to the ' intercourse, it was competent for her to state that conception followed, and that the defendant was the father of the child so begotten. (The State v. Walke, 69 Kan. 183, 76 Pac. 408.)
There is complaint that leading questions were allowed in the examination of the prosecuting witness. This objection, if well-founded, is hardly available, as the defendant has not pointed out to us the objectionable questions. The youth of the prosecutrix, her reluctance to testify, as well as her unfamiliarity with the English language, warranted considerable latitude in the allowance of leading questions. How far leading questions are essential to the ends of justice must be left largely to the sound discretion of the trial court, and unless there has been a clear abuse of discretion an appellate court may not interfere. In this instance we cannot say that there was an abuse of discretion.
Complaint is made that the prosecuting witness was permitted to testify as to her age, when her parents were both present in court and gave testimony with respect to that fact. Although the testimony of the father and mother with respect to the age of a person may be stronger, and entitled to greater weight, it is nevertheless well settled that one may testify as to his own age, and such force will be given to the testimony as the court or jury trying the case may think it is entitled to receive. (The State v. McClain, 49 Kan. 730, 31 Pac. 790; Hill v. Eldridge, 126 Mass. 234; State v. Cain, 9 W. Va. 559; Morrell v. Morgan, 65 Cal. 575, 4 Pac. 580; Central Railroad v. Coggin, 73 Ga. 689; State v. Best, 108 N. C. 747, 12 S. E. 907; 20 Cent. Dig. c. 1692.)
To show the age of the prosecutrix there was received in evidence a translation of a copy of a parish record in Russia. It purported to give the ages of the members of the Neidens family, and other matters of family history. The extract from the record was made by the pastor just before the family left Russia. It was made at the instance of John Neidens, the father of Mollie, and in his presence. The body of the extract was written in German, and the attached certificate made by the pastor was in Latin. So much of it as related to Mollie’s age was received in evidence, and translated to the jury. The document was not certified, nor authenticated in such a way as to make it receivable as an oficial record. It was not offered or admitted, however, as a copy of the parish record, but was received as a family record. Was it admissible as a matter of pedigree, or family history? It is argued that it was not the declaration of the Russian clergyman who made the document, but that, as it was made at the request and in the presence of Mr. Neidens, it was in fact his entry and his declaration. If it be granted that it was his own act, still the entry and declaration were only .secondary evidence and are governed by the rules for the admission of such evidence. This class of evidence is admitted under certain restrictions because of necessity, and the improbability of the evidence’s being false. On the ground of necessity it is received because the facts as to pedigree and relationship' cannot be shown by living witnesses after the lapse of many years, and, if family reputation were not admissible, in many cases the real facts could not be established. The improbability of falsehood is that at the time the entries or statements were made those who made them were acquainted with the facts; they had no reason to distort them, and if they had their falsity could easily have been detected and corrected at that time. In the admission of such entries or declarations there are limitations as to who may make them, and, also, as to the character of the declarations. Judge Elliott classifies the limitations as to the declarant as follows:
“(1) The declarant must be dead; (2) the declarant must be a legal relative; (3) there must be no desire actuating the declarant to make a false statement.” (1 Ell. Ev. §364.)
He makes the following classification as to the declaration :
“(1) The declarations must be relevant to a matter of pedigree; (2) the information in the declarations must come from qualified persons; (.3) the declarations must be ante litem motam. But the declarations are not limited to any particular form.” (1 Ell. Ev. §369.)
Treating Mr. Neidens as the declarant, the one that made the entry, his declarations were not available, as he was alive and in court, and actually gave testi mony in regard to his daughter’s age. Entries in family Bibles and registers may be received to prove the age of children, but they are only secondary evidence, and are necessarily excluded when better evidence may be produced.
In the case of Robinson v. Blakely, 4 Rich. (S. C.) 586, 55 Am. Dec. 703, it was held that a father’s declarations, or his entries of the birth of his children in a family register, are not admissible in evidence where he is alive and competent to testify.
In the case of Young v. Shulenberg, 165 N. Y. 385, 388, 59 N. E. 385, 80 Am. St. Rep. 730, it was said:
“Pedigree is the history of family descent, which is transmitted from one generation to another by both oral and written declarations, and unless proved by hearsay evidence it cannot, in most instances, be proved at all. Hence, declarations of deceased members of a family, made ante litem motam, are received to prove family relationship, including marriages, births, and deaths, and the facts necessarily resulting from those events. . . . Before the declarations can be received, however, as evidence of pedigree, it must appear that the person making them was a member of the family and that he is dead, incompetent, or beyond the jurisdiction of the court.”
The case of People v. Mayne, 118 Cal. 516, 50 Pac. 654, 62 Am. St. Rep. 256, was a conviction for rape upon a child under the age of fourteen years. In support.of testimony as to her age there was offered in evidence an entry in a family Bible that was made by the mother, who was present at the trial and gave testimony as to her daughter’s age. It was held that an entry in a family Bible is but a declaration made out of court, and not under the sanction of an oath; that it is hearsay evidence, and is not admissible where the person making it is alive and capable of being examined as a witness in the case. ' There was a further holding that a mother who has testified to the date of the birth of her child cannot be supported or corroborated by an entry of such date made by her in the family Bible.
The case of Greenleaf v. The Dubuque and Sioux City R. R. Co., 30 Iowa, 301, was an action to recover damages for personal injuries, and, as the age of the injured person was an element in determining the amount of damages, the plaintiff was permitted to show the date of birth from an entry in the family Bible. This ruling was held to be error, upon the ground that it had not been shown that the person who made the entry was dead. Authorities of the same purport are: Smith v. Brown, 8 Kan. 608; Shorten v. Judd, 56 id. 43, 42 Pac. 337, 54 Am. St. Rep. 587; State v. Snover, 63 N. J. L. 382, 43 Atl. 1059; Campbell v. Wilson, 23 Tex. 252, 76 Am. Dec. 67; Smith v. Geer, 10 Tex. Civ. App. 252, 30 S. W. 1108; People v. Sheppard, 44 Hun, 565; Leggett v. Boyd, 3 Wend. 376; Dupoyster v. Gagani, 84 Ky. 403, 1 S. W. 652; 22 A. & E. Encycl. of L. 644; 1 Greenl. Ev. §104; 1 Whart. Ev. §208; 2 Tayl. Ev. §641.
The age of the prosecutrix was a very important feature of the prosecution. Although the greater part of the testimony appears to support the claim of the state as to her age, there was testimony tending to show that she was more than eighteen years of age when the offense was committed, and, also, testimony that tended to contradict that given by herself as to her age. How much weight may have been given to the copy of the parish record cannot now be told. Being a part of a formal church record, made by the pastor of the church, more weight may have been given to it by the jury than to the testimony of living witnesses. At any rate, we are unable to say that it was without material effect, or without prejudice. The judgment is, therefore, reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
The only errors complained of in this case, except an order as to the distribution of the funds, relate to the findings of fact by the court, the principal question in dispute being whether a promissory note for $240 and interest, given by the plaintiff in error to the defendant in error, was to be regarded as paid, except as to the interest, in the sale of the partnership business to Klopfenstein & Wilson. As to this, and all other facts to which attention is called, there seems to be a conflict in the evidence. In fact, the weight of the evidence seems to be in favor of tbe finding of the court that the proposition by which the note was to be considered canceled was never accepted nor carried out.
As to the order of the court requiring the receiver to pay over to the defendant all the moneys in his hands, after paying the debts of the firm of Klopfenstein & Wilson, without maldng any provision for the payment of the receiver, the order is perhaps erroneous; but it is not a matter of which the plaintiff in error can complain, as it does not affect him but affects only the receiver. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Walter E. Hartley, a citizen and resident of Wyandotte county, Kansas, sustained fatal injuries in the state of Iowa under circumstances warranting an action under the laws of Iowa for damages resulting from his death. A representative of his estate was appointed by the probate court of his domicil, who collected damages for his death from the party committing the wrongful act, and the question to be decided is, How shall the fund be distributed? Of course, the statutes of Iowa must be examined in order to arrive at an answer. (2 Whar. Con. of L., 3d [Parm.] ed., §480d, p. 1129; 13 Cyc. 382; 22 A. & E. Encycl. of L. 1356.)
The agreed facts show that in Iowa an action for damages resulting from death by wrongful act may be brought by the legal representative of the deceased, but, unlike the statutes of Kansas and of many other states, the Iowa law does not in terms designate the persons for whose benefit the action may be brought and prescribe the manner in which the amount recovered shall be divided among them. It merely provides that—
“when a wrongful act produces death, damages recovered therefor shall be disposed of as personal property belonging to the estate of the deceased, but if the deceased leaves a husband, wife, child, or parent, it shall not be liable for the payment, of debts.”
When, therefore, the damages in controversy came into the hands of the administratrix of the deceased they bore the same relation to his estate as money belonging to him at the time of his death kept in a safe or safety-deposit vault in the state of Iowa (leaving out of account the exemption from liability for the payment of debts). Such money, being personal property, and belonging to the estate of the deceased, would be disposed of according to the law of his domicil. (Moore, Adm’x, v. Jordan, 36 Kan. 271, 13 Pac. 337, 59 Am. Rep. 550; Wilkins v. Ellett, 76 U. S. 740, 19 L. Ed. 586; 2 Whar. Con. of L., 3d [Parm.] ed., §576a; 14 Cyc. 21.) So these damages, being treated for purposes of disposition as personal property belonging to the estate of the deceased, should be distributed according to the law of his domicil.
It is contended, however, that the statute of Iowa already quoted must be interpreted as if it read “personal property belonging to the estate of a deceased resident of the state of Iowa.” This interpretation would make the statute of descents and distributions of the state of Iowa applicable, but it would affix a limitation upon the law which its language does not warrant.
Quite analogous suggestions relating to other provisions of this class of statutes have been rejected by high authority. Thus it has been claimed that when such statutes provide for a recovery by the personal representative of the deceased they refer only to a personal representative appointed in the state giving the right of action. Upon this subject Justice Miller, speaking for the supreme court of the United States, said:
“But it is said that, conceding that the statute of the state of New Jersey established the liability of the defendant and gave a remedy, the right of action is limited to a personal representative appointed in that state and amenable to its jurisdiction.
“The statute does not say this in terms. ‘Every such action shall be brought by and in the names of the personal representatives of such deceased person.’ It may be admitted that for the purpose of this case the words ‘personal representatives’ mean the administrator.
“The plaintiff is, then, the only personal representative of the deceased in existence, and the construction thus given the statute is, that such a suit shall not be brought by her. This is in direct contradiction of the words of the statute. The advocates of this view interpolate into the statute what is not there, by holding that the personal representative must be one residing in the state or appointed by its authority. The statute says the amount recovered shall be for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, ‘if they reside in the state of New Jersey’ ?
“It is obvious that nothing in the language of the statute requires such a construction.” (Dennick v. Railroad Co., 103 U. S. 11, 18, 26 L. Ed. 439.)
To the same effect is a decision of the court of appeals of the state of Missouri:
“But it is argued that the legislature of Illinois could not have intended to give such a right of action to a foreign administrator — to an administrator appointed in a state other than the state of Illinois. It is argued that the words ‘personal representative,’ in the Illinois statute, must be limited in their meaning to an executor or an administrator appointed in that state. Why should we so hold? The statute does not say so. If the domicil of the deceased person was in Missouri; if his general estate is here, why should it be held necessary for his next of kin to cause ancillary administration to be taken out in Illinois, and to go to the expense of prosecuting an action there, at a place distant, it may be, from their own domicil? This whole branch of the argument proceeds in the very face of the statute. It says that the action shall be brought by the personal representative of the deceased; the plaintiff is that personal representative, and yet the contention is that he shall not be allowed to maintain the action.” (Stoeckman v. Terre Haute etc. R. Co., 15 Mo. App. 503, 511.)
Following the thought expressed in Dennick v. Rail road Co., supra, it may be said that advocates of the view referred to interpolate into the statute of Iowa what is not there by holding that “personal property belonging to the estate of the deceased” means “personal property belonging to the estate of a deceased resident”; and they might as well add by construction to the words of the next clause, “husband, wife, child or parent,” the limitation “if they reside in the state of Iowa.”
When properly discriminated, the decided cases and the statements of text-writers based upon such cases which have been cited in favor of disposition according to the statute of descents and distributions of Iowa are not controlling.
In the District of Columbia and in the state of North Carolina there are special legislative directions that the fund shall be divided according to the law of descents and distributions. (23 U. S. Stat. at L. 307, ch. 126, §3; Stewart v. Baltimore & Ohio Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Code of North Carolina, §§1500, 1478; Hartness v. Pharr, 133 N. C. 566, 45 S. E. 901, 98 Am. St. Rep. 725.)
The statute of Illinois, interpreted by the courts of Kentucky and Missouri in the cases of McDonald, &c., v. McDonald’s Adm’r, 96 Ky. 209, 28 S. W. 482, 49 Am. St. Rep. 289, and Stoeckman v. Terre Haute etc. R. Co., supra, differs from that of Iowa in two particulars. It first designates specifically the persons who are to receive the fund, and then it refers to the law of descents and distributions for the rule by which the proportion of each shall be ascertained. It is not necessary to canvass the entire list of cases cited for the purpose of distinguishing them.
The statute of Iowa is unambiguous. It clearly places damages recovered on account of death occasioned by wrongful act in the category of ordinary personal property belonging to the estate of the deceased. The statute of descents and distributions of that state has no application to personal property belonging to. the estate of a deceased non-resident. Therefore the fund in controversy is to be distributed according to the law of the domicil of the deceased.
The judgment of the district court is reversed, with direction to enter judgment for the plaintiff in error upon the agreed facts.
All the Justices concurring.
Porter, J., not sitting. | [
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The opinion of the court was delivered by
William R. Smith, J.:
In February, 1890, plaintiff in error brought an action against the Atchison, Topeka & Santa Fe Railroad Company to recover damages to his real estate in the city of Wellington by reason of alleged wrongful acts of the railroad company in blocking a street in front of his property with its track, and thereby interfering with his ingress and egress to and from his residence. It was alleged that the railroad company took possession of the street in July, 1889.
To the second amended petition filed by Anderson the railroad company answered, in September, 1891, denying generally its allegations, and setting forth that the Southern Kansas Railway Company was granted, by ordinance of the mayor and council of the city of Wellington, the right to enter upon the street in front of plaintiff’s property and construct its track; that it did so under said franchise; and that defendant was only a lessee of the Southern Kansas Railway Company. The case was tried on the issues so made, and judgment rendered for plaintiff. The judgment was reversed by this court in June, 1902. (Railroad Co. v. Anderson, 65 Kan. 202, 69 Pac. 158.) It was decided that the Southern Kansas Railway Company, the lessor of the Atchison, Topeka & Santa Fe Railroad Company, was a necessary party to the action; that, the property-owner having sued for damages resulting from a permanent appropriation of the street, the railway company that originally took possession of the street and laid the track should respond to plaintiff’s demand. The decision, in effect, held that the Atchison, Topeka & Santa Fe Railroad Company was not liable.
After the case was remanded — in February, 1903— Anderson filed an amended petition making the Southern Kansas Railway Company a party defendant. A demurrer was interposed by it, which was sustained. That ruling is now here for review. The question involved is that of the statute of limitations. It will be noticed that in September, 1891, by the answer of the Atchison, Topeka & Santa Fe Railroad Company, plaintiff was apprised of the fact that the Southern Kansas Railway Company had been granted the right by the city of Wellington to lay its tracks in the street in front of his property, and had done so. Plaintiff, however, saw fit to continue to prosecute his action against the Atchison, Topeka & Santa Fe Railroad Company alone, with the result above stated.
The petition discloses that, the plaintiff treated the original appropriation of the street as a qwasi-condemnation, and seeks to recover the depreciation in value of the property by reason of its permanent use and occupation by the railway company. The case is similar to that of C. B. U. P. Rld. Co. v. Twine, 28 Kan. 585, 33 Am. Rep. 203. Not having brought the railway company that appropriated the street into court as a defendant until after a lapse of more than ten years, the action was barred by the statute of limitations. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; McGlinchy v. Bowles, 68 id. 190, 75 Pac. 123; Leatherman v. Times Company, &c., 88 Ky. 291, 11 S. W. 12, 3 L. R. A. 324, 21 Am. St. Rep. 342.)
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiffs brought this action in ejectment to obtain possession of certain land described in their petition. Á trial was had and judgment rendered against them, and they prosecute this proceeding.
The defendant insists that this court has no jurisdiction of the proceedings for the reason that the petition in error was not filed in this court within one year from the denial of the motion for. a new trial. The statements in the record are somewhat indefinite as to when the motion for a new trial was actually denied, but. the journal entry, which is the guide for this court in determining such a question, after stating the day upon which the trial was commenced, the impaneling of the jury, the introduction of evidence, the submission of the cause, the return of the verdict, and the filing of a motion for a new trial, proceeds as follows:
“And thereafter, and on the 3d day of October, A. D. 1903, said cause coming on for hearing on the motion of said plaintiffs for a new trial, the court having heard the arguments of counsel, and being fully advised in the premises, finds that said motion shall be, and the same is, thereupon denied, to which finding and ruling of the court said plaintiffs at the time duly objected and excepted.”
The petition in error and case-made were filed in this court September 28, 1904, which is clearly within the year after the denial of the motion for a new trial.
This is the second time this case has been to this court. (Powers v. Scharling, 64 Kan. 339, 67 Pac. 820.) The questions presented were whether a certain instrument was testamentary in its nature, or a deed, and, if a deed, whether the description of the land purporting to be conveyed was sufficient. It was held that the instrument was a deed as to the real estate, and testamentary as to other property, and that the description was sufficiently definite to be a. conveyance. The judgment of the court below was reversed, and the cause remanded.
The questions presented in the present case grow out of a retrial of the controversy. The facts, summarily stated, are that David Sebrill was the father of the plaintiffs; that prior to his death he executed an instrument by which he attempted to convey the land in controversy in this case to the plaintiffs, who were his daughters. After the death of Sebrill the executor of his estate sold his personal property and applied the proceeds to the payment of his debts, leaving a balance unpaid, the amount of which is not stated. For the purpose of paying the remaining debts the executor petitioned the court for leave to sell the land in question. In that proceeding the plaintiffs appeared before the probate court and contested the right of the court to order the land sold as a part of the estate of the deceased, claiming to be the owners in fee. Their contentions were denied, and an order issued to the executor to sell the land, at which sale the defendant became the purchaser and went into possession.
The- defendant pleaded as follow: (1) He denied the execution and delivery of the instrument under which the plaintiffs claimed title; (2) he set up by way of estoppel the pleadings in the probate court in which the court made the order to the executor to sell the land in controversy; (3) he denied generally all the allegations of the petition.
Upon the trial the plaintiffs undertook to prove by Harriet S. Campbell, one of the plaintiffs, the delivery of the instrument under which they claimed title. This. testimony was objected to as being incompetent under the provisions of section 4770 of the General Statutes of 1901. The court sustained this objection, and this is one of the errors of which complaint is made That portion of the section that is pertinent reads as follows:
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person.”
It is not claimed that the defendant is the executor, administrator, heir at law, next of kin or surviving partner of the deceased. His contention is that he is the assignee of the deceased, David Sebrill, and that whatever title the plaintiffs have they acquired immediately from the deceased, and that they are, therefore, incompetent to testify to any transaction or conversation with the deceased concerning the conveyance of the land to them. This contention of the defendant is not maintainable. He is not the assignee of David Sebrill. An assignee, within the meaning of this section, is one who holds by the voluntary act of his assignor — not one who holds by operation of law, or the judgment of a court, or through an executor’s or judicial sale, and in spite of such assignor. (National Bank v. Beard, 55 Kan. 773, 42 Pac. 320; Pulsifer v. Arbuthnot, 59 id. 380, 53 Pac. 70.) Whatever interest the defendant had in the land he acquired after the death of Sebrill, and through the order of the probate court.
It is also contended that the objection was properly sustained for the reason that no reply was filed to the answer of the defendant. The record, however, discloses that the cause was tried by both parties without any objections on this account, and as if full pleadings had been filed, and in ruling on this question the court acted on this supposition. The objection made to the testimony of the witness was not that the issue was not tendered by the pleadings, but that she was incompetent to testify in her own behalf to any transaction or communication had personally with the deceased, from whom she claimed title.
There are some other questions suggested in the brief of plaintiffs in error upon which they desire this court to pass, but these were not passed on by the court below, and are therefore not before this court for consideration.
For the error assigned in excluding the evidence of Mrs. Campbell the judgment of the court below is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C.’J.;
Justin H. Kerby was formerly county clerk of Clay county. In addition to a fixed annual salary of $1200, and an annual allowance of $400 for clerk hire, the board of county commissioners awarded and paid him compensation for official services, including the preparation of abstracts and certificates of election, the making of assessment rolls, the drawing of juries, the burning of old ballots, and also for additional clerk hire. To recover back these extra allowances, amounting to $567.80, the county attorney brought an action in the name of the board of county commissioners, but without the consent of that tribunal or any of its members. Afterward the board in regular session unanimously passed a resolution opposing the prosecution of the action, and directing the dismissal of the same. A motion to dismiss was presented to the court, including the resolu .tion directing the discontinuance of the proceeding, but the court denied the motion, and upon a trial determined that the fees had been illegally paid and gave judgment against Kerby for the amount.
Assuming, without deciding, that the extra fees paid were unauthorized, the court is of the opinion that the county attorney had no authority to bring and conduct the action without the concurrence or consent of the board of county commissioners. The allowance of fees and claims, as well as the management and control of all the business and financial affairs of a county, are confided to the board of county commissioners. It is the executive branch of the county government, and the representative and guardian of the county as to all its corporate affairs. Among other things the statute provides:
“The board of county commissioners of each county shall have the power: . . ! Second, to examine and settle all accounts of the receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county; and when so settled, they may issue county orders therefor, as provided by law. . . . Fifth, to represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law.” (Gen. Stat. 1901, §1621.)
These powers, so broadly given, repose the responsibility and control of county affairs in the board, and they must be assumed and exercised by that tribunal, unless specifically conferred upon other officers. This authority is nowhere divided with the county attorney. On the other hand he is made the legal adviser of the board, and is required to give opinions and advice to the board upon its request on all matters in which the county is interested. (Gen. Stat. 1901, §1779.)
A section of the statute invoked as authority for the action of the county attorney reads:
“It shall be the duty of the county attorney to ap pear in the several courts of their respective counties, and prosecute or defend on behalf of the people all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.” (Gen. Stat. 1901, §1777.)
As will be observed this provision does not expressly transfer .the control of the business or finances of the county to the county attorney. He is not empowered to determine what claims shall be allowed or disallowed, nor whether costs shall be incurred in litigation as to a purely business matter of the county. As was said in Waters v. Garvin, 67 Kan. 855, 73 Pac. 902, “the board of county commissioners of each county has charge of all litigation in which the interests of the county are involved.” The quoted statute makes it the duty of the county attorney to appear in the courts of his county and prosecute or defend all proceedings in which the county is interested. This gives him authority to act as the attorney for the board in county affairs, but it is evident that the legislature did not, in this indirect, blind way, intend to withdraw the management and control of the business of the county, which had been expressly conferred upon the board, and vest it in the legal adviser of the board. If so every claim allowed and paid by the board might be reopened and contested at the instance of a county attorney by merely asserting that they were not authorized by law.
In Texas there was a contention that the district attorney might, at his own option, and without the knowledge or consent of the county commissioners, bring an action to recover money alleged to have been illegally paid. The court, in denying the contention, remarked:
“Expensive and often unnecessary litigation would in many instances occur, inducing financial embarrassments and absolute losses to the county, against which the official guardians of the county’s interest in financial matters would be often rendered impotent to protect. The existence of such a right, in discord and conflict with the powers and duties of the commission-. ers’ court, would promote confusion, create uncertainty and doubt, and in the end might paralyze the power of that court to efficiently regulate the financial affairs of the county.” (Looscan v. County of Harris, 58 Tex. 511, 515.)
Section 1649 of the General Statutes of 1901, providing for the recovery of unauthorized allowances, carries no intimation that this part of the county business shall be taken from the board and imposed upon the county attorney.
In the state of Ohio, where the county commissioners are vested with substantially similar powers to our own, it was held that the control of such matters belongs to the county commissioners rather than to the prosecuting attorney. In the case of The State, ex rel., v. John Zumstein et al., 4 Ohio C. C. 268, 270, it was said:
“There can be no question but that the board of county commissioners, the financial representatives of the county, is the body having the right to sue for and recover all sums of money due to the county, unless the statutes of the state specifically in certain cases impose that duty upon, or give that right to, some other officer or person — and no other person or officer is authorized to sue for or recover any such money demand unless the right to do so is conferred by statute.”
(See, also, State of Ohio v. Cappeller, 8 Ohio Dec. [reprint] 546; Ventura County v. Clay, 119 Cal. 213, 51 Pac. 189.)
The language of the court of appeals in Roe v. Comm’rs of Elk Co., 1 Kan. App. 219, 40 Pac. 1082, to the effect that the county attorney may carry on such litigation without the concurrence or consent of the board of county commissioners, is disapproved.
Our holding that the board of county commissioners controls litigation in which the interests of the county are involved does not put boards of county commissioners that transgress the law, or that act corruptly, beyond the reach of the law, nor leave the people without remedy. The county attorney may institute a variety of proceedings in the name of the state against unfaithful officers. They may be prosecuted upon criminal charges, and may also be removed from office in civil proceedings; and thus moneys wrongfully paid out may be recovered by their successors. (Gen. Stat. 1901, §§1852, 1855, 1856.)
The judgment of the district court is reversed, and the cause remanded with directions to grant the motion to dismiss* the action.
All the Justices concurring. | [
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McAnany, J.:
Christopher Brown brought this action on behalf of himself and other similarly situated delivery truck drivers alleg ing the failure of the defendants Ford Storage and Moving Co. (Ford), and Nebraska Furniture Mart, Inc. (Nebraska), to pay overtime wages for hours worked in excess of 46 hours per work week in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL), K.S.A. 44-1201 et seq. Brown contends that Ford employed him and other drivers to deliver goods for Nebraska. He contends that Nebraska controlled the deliveiy services of Ford and its drivers to the extent that Ford and Nebraska became joint employers within the meaning of Kansas law.
Nebraska moved to dismiss, contending that the KMWMHL does not apply. The matter was extensively briefed. Nebraska asserted that it is not subject to the KMWMHL because it is already subject to regulation under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (2006), based upon its interstate commerce activities and its annual gross sales in excess of $500,000.
While denying the legal conclusion that Nebraska is subject to the FLSA, Brown did not dispute that Nebraska was engaged in interstate commerce with the requisite sales volume. Following oral argument, the district court sustained the motion and dismissed the claims against Nebraska. The court found that Nebraska was not an “employer” under the terms of the KMWMHL, but rather was subject to the Fair Labor Standards Act, and therefore was specifically excluded from the KMWMHL by K.S.A. 44-1202(d).
A week later, Ford moved for judgment on the pleadings or, in the alternative, for summary judgment, asserting the same arguments successfully asserted by Nebraska. Following receipt of Brown’s brief in opposition, the district court sustained Ford’s motion and this appeal followed.
At issue in this appeal is the scope and interaction of KMWMHL and the FLSA
Standard of Review
First, we must briefly address our standard of review. While the district court dismissed Nebraska pursuant to K.S.A. 60-212(b)(6) for failure to state a claim upon which relief may be granted, the court considered facts beyond the face of the pleading (Nebraska’s interstate commerce activities and its sales volume), thereby converting the motion to one for summary judgment. See Underhill v. Thompson, 37 Kan. App. 2d 870, 874, 158 P.3d 987 (2007). Ford’s motion was for summary judgment. Accordingly, and also because the scope and effect of the FLSA and the KMWMHL are questions of law, our review of Nebraska and Ford’s motions is de novo. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009); Troutman v. Curtis, 286 Kan. 452, Syl. ¶ 1, 185 P.3d 930 (2008). In our de novo review, we apply the familiar summary judgment standards restated in Underhill, 37 Kan. App. 2d at 874-75.
The Statutes
Kansas
K.S.A. 44-1204(a), which is part of the KMWMHL, sets forth the basic overtime pay requirement of Kansas law. It requires an employer to pay its employee at least 1.5 times the employee’s regular hourly wage for hours worked in excess of 46 hours in a workweek. However, the statute also provides that this overtime pay requirement does not apply to employees who are “covered under the provisions of section 7 of the [FLSA].” K.S.A. 44-1204(c)(1). Similarly, K.S.A. 44-1202(d) provides that the term “employer” “shall not include any employer who is subject to the provisions of the [FLSA].”
Federal
The FLSA, 29 U.S.C. § 207(a)(1) (2006), requires overtime pay for work in excess of 40 hours in the workweek, rather than work in excess of 46 hours under Kansas law. It provides:
“[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in die production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 26 U.S.C. § 207(a)(1).
To be “an enterprise engaged in commerce or in the production of goods for commerce” under 29 U.S.C. § 207(a)(1), the enter prise must have “employees engaged in commerce or in the production of goods for commerce, or [have] employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person,” and have an annual gross sales volume of at least $500,000. 29 U.S.C. § 203(s)(l) (2006).
Finally, 29 U.S.C. § 213(b) (2006) of the FLSA excludes certain categories of employees from maximum hours and minimum pay regulation:
“The [overtime] provisions of section 207 of this title shall not apply with respect to—
“(1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of tide 49 [including, among other things, interstate motor carriers].” 29 U.S.C. § 213(b).
In our de novo consideration of the motions of Ford and Nebraska, we must answer three questions:
(1) Are Ford and Nebraska subject to regulation under the FLSA?
(2) If so, does this exempt them from regulation under the KMWMHL?
(3) If the FLSA takes Ford and Nebraska out of state wage and hour control, is Brown still entitled to KMWMHL overtime?
1. Are Ford and Nebraska subject to regulation under the FLSAP
Goldberg v. Faber Industries, Inc., 291 F.2d 232 (7th Cir. 1961), typifies the cases under the FLSA before Congress enacted changes in 1961. In Goldberg, the Secretary of Labor sued Faber for failure to pay overtime wages to certain truck drivers. The district court held that the nature of the employer’s operation determined whether the Act applied. The Circuit Court of Appeals reversed. In declaring that the nature of Faber’s operations was not controlling, the court stated:
“The test is the nature of the transportation performed by the employees. The exemption in the Fair Labor Standards Act depends upon the activities of the individual employees.” 291 F.2d at 235.
Brown relies on a series of cases from 1943 to 1961 to support the proposition that we should view coverage under the KMWMHL from the employee’s perspective, not the employer’s perspective. We do not find them persuasive.
Before 1961, the FLSA extended benefits only to workers who were themselves engaged in interstate commerce. This is referred to as “individual employee coverage.” In 1961, Congress amended the FLSA to add the concept of enterprise coverage. As explained in Schultz v. Poirier, 300 F. Supp. 1156, 1158 (E.D. La. 1969):
“The concept of enterprise coverage was added by amendments in 1961 and expanded by amendments in 1966. Under the concept of enterprise coverage, a business that qualifies as a covered enterprise within the meaning of the statute is subject to the Act’s requirements with respect to all its employees, including workers engaged in purely local activities. Under the concept of individual employee coverage, . . . the Act. . . covered employees individually when their particular activities had something to do with interstate commerce. Amendments to the Act in 1961 and 1966 extended coverage to all employees working for a covered enterprise, whether or not the particular employee’s activities had anything to do with interstate commerce.”
An employer is subject to the provisions of the FLSA if the employer satisfies two criteria: the employer (1) is engaged in interstate commerce and (2) has an annual gross sales volume of at least $500,000. 29 U.S.C. § 203(s)(l). Ford and Nebraska satisfy these criteria and are subject to the FLSA. Ford and Nebraska are covered enterprises.
2. Does this exempt Ford and Nebraska from regulation under the KMWMHL?
K.S.A. 44-1202(d) provides in clear and unambiguous language that the term “employer” “shall not include any employer who is subject to the provisions of the [FLSA].”
Brown argues that we should ignore this clear expression of legislative intent because of the Kansas Supreme Court’s holding in Dollison v. Osborne County, 241 Kan. 374, 737 P.2d 43 (1987). He also cites the holding in Clements v. Emery Worldwide Airlines, Inc., 44 F. Supp. 2d 1141 (D. Kan. 1999), for its analysis of and reliance on Dollison.
In Clements, plaintiff sought overtime wages under the KMWMHL from his employer, which was engaged in interstate commerce and had the requisite sales volume to subject the employer to regulation under the FLSA. The employer claimed it was subject to the FLSA and that plaintiff was excluded from coverage under the KMWMHL. After noting the plain language of the KMWMHL, K.S.A. 44-1202(d), that “employer” does “not include any employer who is subject to the provisions of the [FLSA],” the district court examined Dollison and concluded: “Under the Dollison court’s interpretation of the KMWMHL, it is clear that even though the defendant may be exempt from paying overtime under the FLSA, it is still required to pay the overtime under Kansas law.” Clements, 44 F. Supp. 2d at 1147.
We read Dollison differently than do Brown and the district court in Clements. It is important to read Dollison closely and understand what was really at issue in the case.
In Dollison, the employer was Osborne County, a unit of local government. The wage claims at issue there arose during a time when the FLSA had been interpreted by the United States Supreme Court not to apply to state and local governments. While a later United States Supreme Court decision reversed that interpretation — making the FLSA applicable to state and local government — the Dollison opinion recognized that the later Supreme Court decision was not retroactive and, thus, the FLSA did not apply to the claims against Osborne County. Instead, all of the pay claims at issue in Dollison arose before the FLSA was applied to local governments. 241 Kan. at 384-85.
Dollison dealt with a defense to an overtime claim that is the exact opposite of the defense being asserted here. Dollison’s employer, Osborne County, did not contend that it was exempt from the requirements of the KMWMHL because it was already subject to the FLSA. It could not make that argument because the FLSA had no application to local governments at that time. Instead, Osborne County apparently contended that it was exempt from coverage under the KMWMHL because it was exempt under the FLSA. At least, that is how the district court treated the employer’s defense. The district court relied on an exemption from the FLSA to determine that Osborne County had no obligation to pay further wages to DoUison. On appeal, our Supreme Court held that an FLSA exemption could not shield Osborne County from possible Uability under the KMWMHL. 241 Kan. at 385.
Here, however, Ford and Nebraska assert the opposite. They contend they are exempt from coverage under the KMWMHL because they are subject to the FLSA.
Returning to the facts in DoUison, the Osborne County under-sheriff sued the county for overtime pay under the KMWMHL. The district court denied relief, finding that the county’s sheriff s department met the FLSA exemption that applied to law enforcement organizations with fewer than five employees. 29 U.S.C. § 213(b)(20) (2006). In doing so, the district court failed to address the issue of coverage under the KMWMHL, the statutoiy basis for DoUison’s claim. The Supreme Court reversed and remanded.
The fewer than five employees exception in law enforcement activities found in 29 U.S.C. § 213(b)(20) (2006) of the FLSA is not also found in the KMWMHL. The district court denied Dollison’s claim based on his employer being exempt under the FLSA. But Dollison’s claim was based upon a violation of the KMWMHL, not the FLSA. The district court apparently considered the FLSA and the KMWMHL as coextensive; that is, exclusion from one means exclusion from both.
Our Supreme Court noted that, pursuant to K.S.A. 44-1202(d), “Kansas law does not apply to ‘employers’ who are obliged to meet the standards of the FLSA.” 241 Kan. at 381. The statute specifically excludes “any employer who is subject to the provisions of the [FLSA].” 241 Kan. at 381. But the district court denied overtime payment not because DoUison was excluded under the KMWMHL, but because he was excluded under the FLSA. This was despite the fact that the KMWMHL has a specific overtime pay provision applicable to an employee engaged in law enforcement. K.S.A. 44-1204(b). The Supreme Court stated:
“It may be that an employee is required to work longer before he qualifies for overtime pay under the KMWMHL than under the FLSA, but this does not detract from the plain wording of the Kansas law. If an employment relationship is excluded from the FLSA under the exemption that is unique to the federal law, the employee would still be subject to the KMWMHL.” 241 Kan. at 383.
Thus, the Supreme Court rejected the notion that the FLSA and the KMWMHL are coextensive. In other words, being exempt from coverage under the FLSA does not automatically mean the employer is exempt under the KMWMHL. Such a notion would “effectively nullify the state law.” 241 Kan. at 383. Because the district court resolved the matter based on an exemption in the FLSA without considering whether there was an applicable exemption under the KMWMHL, the Supreme Court remanded the case for further consideration of Dollison’s claim under Kansas law.
Dollison’s reference to exemptions and being exempt is somewhat confusing — and perhaps misleading — when divorced from the factual context of that case. The employer in Dollison simply was not subject to the FLSA at all. However, a different employer may be subject to the FLSA yet exempt from some aspects of the employer-employee wage relationship, such as the payment of overtime. In such a different context, the language of Dollison cannot be applied literally.
The Dollison court relied on “the plain wording of the Kansas law.” 241 Kan. at 383. So do we. Dollison does not control the outcome in Brown’s case. The plain wording of K.S.A. 44-1202(d) does.
The KMWMHL regulates not only the payment of overtime, but sets the minimum hourly wage employees must be paid. K.S.A. 44-1203. So does the FLSA. 29 U.S.C. § 206(a). But the KMWMHL applies only to “employers” as defined by the statute. The KMWMHL definition of “employer” excludes entities subject to regulation under the FLSA. K.S.A. 44-1202(d).
Ford and Nebraska are subject to the FLSA because each does more than $500,000 of annual interstate business. As employers satisfying the jurisdictional requirements of the FLSA, Ford and Nebraska are obligated to pay their employees at least the federal minimum wage mandated by tire FLSA, see 29 U.S.C. § 206(a), not the traditionally lesser minimum wage mandated under the KMWMHL. Failure to do so would subject them to liability under the FLSA, not the KMWMHL. For this reason alone, they are subject to FLSA regulation and therefore excluded from the KMWMHL by K.S.A. 44-1202(d). However, the FLSA also prohibits Ford and Nebraska from using gender as a basis for setting pay. See 29 U.S.C. § 206(d). It prohibits Ford and Nebraska from hiring underage drivers. See 29 U.S.C. § 212(c), (d) (2006). Further, it requires Ford and Nebraska to keep certain records regarding Brown’s employment. See 29 U.S.C. § 211(c) (2006). It is clear to us that Ford and Nebraska are subject to regulation under the FLSA. Thus, they are not “employers” under the KMWMHL.
3. If the FLSA takes Ford and Nebraska out of state wage and hour control, is Brown still entitled to KMWMHL overtime?
Brown seems to argue that Ford and Nebraska are subject to regulation under both acts: the FLSA for its higher minimum wage, gender equality, and child labor provisions, etc., and the KMWMHL for its overtime pay guarantee. But reading the plain language of K.S.A. 44-1204(a) indicates otherwise.
Under K.S.A. 44-1204(a), only “employers” are required to pay overtime. The definition of “employer” in the KMWMHL excludes those employers “subject to” the FLSA. K.S.A. 44-1202(d). Because Ford and Nebraska are subject to FLSA regulation, they are not “employers” as that term is used in the KMWMHL. Because they are not “employers” under the KMWMHL, they owe their employees, including Brown, no duty to pay Kansas overtime wages under the plain language of K.S.A. 44-1204(a).
Foreign Cases
Brown cites a host of cases in his brief which seém to support the result he advocates. However, careful consideration of these cases reveals distinctions which clarify and reinforce our reading of the KMWMHL.
Brown relies on Berry v. KRTV Communications, 262 Mont. 415, 865 P.2d 1104 (1993), which presents facts analogous to those now before us. Berry was a television news announcer and editor for a Montana television station. The district court denied Berry’s claim for unpaid overtime pay based on the FLSA news announc ers and editors exemption, even though Berry based his claim on Montana’s wage and hour law. Berry appealed. On appeal, KRTV argued that because it was an employer under the terms of the FLSA, its employees were covered by the FLSA by implication. Since its employees were FLSA employees, KRTV reasoned, the Montana wage and hour laws’ FLSA-regulated-employees exemption prevented Berry from claiming overtime under Montana law.
The Montana Supreme Court rejected KRTV’s position and reversed the ruling of the district court. The court determined that Montana had not adopted the FLSA announcer exemption into its wage and hour law. The court held that the FLSA did not preempt Montana from providing greater overtime protection than was available under the FLSA. 262 Mont, at 425-26. The relevant statute, Mont. Code Ann. § 39-3-408(1) (1993), read:
“ ‘The provisions of this part shall be in addition to other provisions now provided by law for the payment and collection of wages and salaries but shall not apply to employees covered by the’ [FLSA, except that Montana may set a higher minimum wage.]” Berry, 262 Mont. at 420.
Berry is distinguishable from our case because the wage and hour statutes in Kansas and Montana are different. KRTV made the same basic argument Ford and Nebraska make here, i.e., because an employer is subject to FLSA regulation, the state statute does not apply by its plain terms. However, while both Kansas and Montana utilize FLSA-regulated-employee exemptions in their respective wage and hour statutes, the Montana law contains no FLSA-regulated-employer exclusion comparable to K.S.A. 44-1202(d). The Berry court rejected KRTV’s attempt to read the FLSA-regulated-employer exemption into Montana’s wage and hour law. 262 Mont. at 420, 425-26.
Here, we need read nothing into the Kansas statute. K.S.A. 44-1202(d) expressly excludes from KMWMHL regulation any employers who are subject to regulation under the FLSA. Therefore, the “employers” who must pay overtime under K.S.A. 44-1204(a) do not include those employers who are subject to FLSA regulation. Because Ford and Nebraska are FLSA-regulated employers, they owe Brown no duty to pay overtime under the KMWMHL. Berry holds that Montana’s statute would not support the defense Ford and Nebraska advance here. But Kansas’ law, because of K.S.A. 44-1202(d), does support this defense. Accordingly, Berry does not apply.
Brown cites District of Columbia v. Schwerman Trucking Co., 327 A.2d 818 (D.C. Cir. 1974), and Williams v. W.M.A. Transit Company, 472 F.2d 1258 (D.C. Cir. 1972), as support for the proposition that the Kansas Legislature did not intend to include the interstate motor carrier exemption in the KMWMHL. In the District of Columbia cases, the courts noted that the D.C. municipal code followed the FLSA exemption list closely but omitted the bus driver exemptions, indicating Congressional intent to include bus drivers as employees eligible for overtime under the D.C. code. See Schwerman, 327 A.2d at 823-24. From this, Brown argues that the Kansas Legislature’s failure to include truck drivers on a KMWMHL exemption list indicates legislative intent not to exclude truck drivers from overtime pay eligibility.
But Ford and Nebraska do not challenge Brown’s claim on the basis of any KMWMHL employee exemption. Instead, the defendants here rely on the fact that our legislature excluded FLSAregulated employers from compliance with the KMWMHL. The issue here is an employer exclusion, not an employee exemption. Further, as the Dollison court made clear, the FLSA exemption and the KMWMHL exemption do not need to be the same for an employer to avoid paying KMWMHL overtime pay. Here, Brown is exempt from FLSA overtime pay because of the FLSA’s interstate motor carrier exemption, and Ford and Nebraska owe Brown no overtime pay under the KMWMHL because neither is an “employer” under K.S.A. 44-1202(d) and K.S.A. 44-1204(a). The issue here is the effect of K.S.A. 44-1202(d) on the mandate of K.S.A. 44-1204(a). Schwerman and Williams do not advance Brown’s cause.
In Goldberg v. Faber Industries, Inc., 291 F.2d 232 (7th Cir. 1961), discussed earlier in this opinion, the court was concerned with the applicability of the interstate motor carrier exemption contained in the FLSA. The court ruled that the actions of individual drivers determined the applicability of the exemption as to each driver. See 291 F.2d at 234. Here, no one disputes that Brown is subject to the interstate motor carrier exemption. The issue is the applicability of the FLSA-regulated-employer exclusion in the KMWMHL. The object of inquiry under the FLSA-regulated-employer exclusion in Kansas law has everything to do with the nature of Ford’s and Nebraska’s businesses — because they are the alleged “employers” — and nothing to do with Brown or his job as an employee. In Goldberg, the appropriate object of analysis was the employees’ job duties because the employees were the target of regulation. Here, the relevant KMWMHL provision targets the employers’ business activities to determine KMWMHL coverage.
Brown’s reliance on Friedrich v. U.S. Computer Services, Inc., 1996 WL 32888 (E.D. Pa. 1996), is likewise misplaced. In that case, the relevant Pennsylvania wage and hour law excluded FLSA-covered employees only “ ‘to the extent’ that they were ‘subject to’ the FLSA.” 1996 WL 32888, at “5. This meant that the Pennsylvania law operated as a stopgap to the FLSA, and the statute apparently contained no FLSA-employer exemption. But here, the reach of the KMWMHL depends on the applicability of the FLSA to the employment relationship. See Dollison, 241 Kan. at 382. At least as it concerns overtime pay, the KMWMHL is not a stopgap measure like Pennsylvania’s statute. Under the provisions of K.S.A. 44-1202(d) and K.S.A. 44-1204(c), if either the employer or the employee is subject to FLSA regulation, the Kansas law does not apply. Friedrich, like Berry, is based on a different statutory scheme and does not apply.
In Santoni Roig v. Iberia Lineas Aereas de Espana, 688 F. Supp. 810 (D. Puerto Rico 1988), the issue was whether the FLSA preempted a local wage and hour law. The court noted that 29 U.S.C. § 218 (1982) expressly disavows federal preemption of state laws which establish minimum wages or work weeks more beneficial to employees, so there was “no reason to exempt plaintiffs herein from the local minimum wages and overtime provisions on preemption grounds.” 688 F. Supp. at 818. The court was silent on the subject of whether the employees in question were exempt from overtime pay under the local law’s provisions.
Here, neither defendant argues that the FLSA preempts the KMWMHL. Instead, the issue is the scope the Kansas law sets for itself. In Santoni Roig, the employer asserted federal preemption to circumscribe state law. Ford and Nebraska defend on the ground that Kansas law, by its own terms, does not apply to them. Preemption is not at issue here.
A similar case cited by Brown is Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 59 Cal. Rptr. 2d 186, 927 P.2d 296 (1996), which considered the preemption of admiralty law. Here, our sole focus is determining the scope of Kansas law under the clear terms of the KMWMHL. See Dollison, 241 Kan. at 382. Therefore, Santoni Roig and the other FLSA preemption cases Brown cites, e.g., Keeley v. Loomis Fargo & Co., 11 F. Supp. 2d 517 (D. N.J. 1998), Plouffe v. Farm & Ranch Equip. Co., 174 Mont. 313, 570 P.2d 1106 (1977), Dept. of Labor & Indus. v. Common Carriers, 111 Wash. 2d 586, 762 P.2d 348 (1988), and, are irrelevant to our inquiry.
Finally, Brown cites Masters v. City of Huntington, 800 F. Supp. 369, 370 (S.D. W. Va. 1992), in which the federal district court found that municipal firemen were entitled to overtime under the more generous state law. The court found that the state wage and hour law included city firefighters because the South Dakota Supreme Court had ruled that such firefighters were employees of a “political subdivision,” an employer category specifically omitted from the state wage and hour law’s exclusions list and, therefore, by implication within the ambit of the state wage and hour law. 800 F. Supp. at 371. To the contrary, in the case now before us, FLSA-regulated employers are specifically excluded from KMWMHL compliance by our state statute. Masters does not advance Brown’s cause.
Other Arguments
Brown argues that when it comes to FLSA coverage, “exempt” and “exclude” are synonyms. However, a party may be exempt from certain aspects of the FLSA without being categorically or jurisdictionally excluded from the statute. For example, even though Ford and Nebraska are exempt from the overtime pay requirements of the FLSA, they may not pay a driver lower wages based on gender, nor may they employ underage truck drivers, regardless of pay. They are not excluded from the FLSA just because they do not have to pay Brown overtime. However, because of their status as FLSA-regulated employers, they do not fall within the category of employers set forth in K.S.A. 44-1202(d) who are subject to the KMWMHL.
Brown also argues that KMWMHL overtime pay coverage should be determined from the employee’s perspective. However, Brown relies on cases dealing only with FLSA coverage for this argument. As noted earlier in our discussion of Goldberg v. Faber Industries, Inc., and Schultz v. Poirier, each of his cases predates the advent of enterprise coverage in 1961 and 1966. Before enterprise coverage was added to the FLSA, courts focused on an employee’s actions to determine whether the FLSA applied. Now, however, the FLSA also takes an employer’s transactions and annual revenue into account for determining FLSA jurisdiction. Likewise, the KMWMHL applies to an employer only if the employer is not already regulated by the FLSA. Therefore, the “employee perspective” argument does not advance Brown’s position.
Brown argues extensively from the legislative history of the KMWMHL. Legislative history is a valuable tool in construing an unclear or ambiguous statute. However, the plain language of the statute is the controlling expression of the legislature’s intent. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). We do not resort to an examination of an enactment’s legislative history if the statute’s language is clear and unambiguous. See Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). The KMWMHL, in clear and unambiguous terms, excludes employers from KMWMHL overtime compliance if either the employer or the employee is regulated by the FLSA. K.S.A. 44-1202(d); K.S.A. 44-1204(c)(1). Ford and Nebraska are subject to FLSA regulation.
We find no genuine issue of material fact which would preclude summary judgment. Based upon our de novo review, Ford and Nebraska are entitled to judgment on Brown’s claims for relief which have been brought pursuant to the KMWMHL. The district court was correct in so ruling.
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McAnany, J.:
Stacey Speed is a prisoner incarcerated in the correctional facility in Lansing. He shares his cell with three other inmates. He has the use of a locker in the four-man cell, but the locker is not assigned to him. However, Speed has the combination lock used to secure it.
On March 8, 2009, Corrections Officer Shanks conducted a shakedown of Speed’s cell. Inside Speed’s locker, Shanks discovered a number of items of plastic kitchen cutlery, some small trash bags, rubber bands, a racquetball, and some food items. Speed was charged with violating K.A.R. 44-12-204.
At the disciplinary hearing Shanks told the hearing officer that he discovered the property in Speed’s locker. Speed denied taking the property. Speed’s cellmate, Christopher Brown, testified that he put the items in Speed’s locker, and that he reported this fact to Shanks. The hearing officer made the following findings:
“[Speed’s] locker was searched[, and Shanks] found all the items listed ... in [Speed’s] locker. [Shanks] had [Speed] unlock his locker prior to the search. [Speed] states he did not have knowledge of the items being in his locker because he allows or allowed [Brown] to put items in [Speed’s] locker. [Speed] is responsible for everything that is in his [assigned] locker. Hearing officer finds the inmate guilty based on the facts of the report and testimonies given.”
Speed filed his K.S.A. 60-1501 petition seeking relief from the disciplinary judgment. The court denied relief, finding “some evidence” to support the hearing officer’s conclusion. Speed appeals. Speed argues that there was insufficient evidence to support his conviction because he had nonexclusive possession of the locker and Brown testified that he put the items in the locker. We apply the “some evidence” review standard expressed in Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999).
K.A.R. 44-12-204(a) provides: “No inmate shall take without permission, regardless of the intent, articles of any kind from any other person or place, nor shall the inmate obtain these articles by fraud or dishonesty.”
Speed was not charged with the unlawful possession of contraband. The prison authorities neither then nor now contend that Speed acted as an accessory in an unlawful taking. The hearing officer made no finding that Speed had taken the items without permission or by fraud or dishonesty. The hearing officer simply found Speed to be in possession of the items and “[Speed] is responsible for everything that is in his [assigned] locker.” In fact, the locker was not assigned to Speed. We find a complete lack of evidence to support the offense Speed was charged with: that Speed either took without permission the items found in the locker from any other person or place, or obtained these items by fraud or dishonesty.
Reversed. | [
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Pierron, J.:
Robert D. Cluck appeals his convictions by a jury of three counts of involuntary manslaughter while under the influence of alcohol and one count of improper passing. Cluck also argues the district court imposed an illegal sentence by ordering him to post photos of the victims in his jail cell, erred in denying his motion to suppress his confession, and failed to exercise discretion in denying his motions for departure.
Cluck does not challenge the sufficiency of the evidence of his convictions and only raises legal questions on appeal. The necessaiy facts are as follows.
On August 5, 2007, around 9 p.m., a two-vehicle accident occurred west of Wathena, Kansas. Robert Young was driving a F-350 truck and had three passengers. Young testified that a Corvette attempted to pass him but then struck the side of the truck, causing the truck to “fishtail.” The truck left the road, struck a culvert, and came to rest upside down in the ditch. All three passengers were killed, but Young survived.
Cluck is the owner of the Corvette. He denied having had any alcohol throughout the day but stated he had met his friend Charles Harrelson for drinks at the VFW in Wathena early in the evening. Cluck testified he had three drinks at the VFW and then asked Harrelson if he would drive the Corvette home because Cluck had been traveling all day and did not want to drive after three drinks. Cluck testified he remembered leaving the VFW, but he was in the passenger side of the Corvette. The next thing Cluck claims he remembers was waking up still in the passenger seat with Harrelson standing outside the car talking to him. Cluck testified that Harrelson told him they had been in a wreck and there were three casualties.
Harrelson testified that he and Cluck left the VFW together, but they did so in different vehicles. He testified he was going to follow Cluck home in his F-350 but got a phone call just as he was leaving, which delayed him for a few minutes. Harrelson came upon the accident and found Cluck sitting in the passenger seat of the Corvette. Harrelson testified he and Cluck began to look for the victims but Cluck said that they should get out of there. Harrelson said, “We can’t leave.” However, shortly thereafter, Harrelson left the scene before the authorities arrived. He testified he drove home in his F-350 — -the same truck he had driven to the scene. Harrelson testified he did not drive the Corvette the night of the crash.
Nicolas Bauman was behind the Corvette and the truck when the accident occurred. Bauman testified he immediately pulled his car over to render assistance. He testified that he first went to the Corvette and Cluck looked like he had been thrown out of the driver s seat towards the passenger seat but his legs and bottom section were still in the driver’s side of the car. Apparently, no one else was in the Corvette. After determining that Cluck was not seriously injured, Bauman then tried to assist the victims in the truck.
Cluck was treated at the hospital for a laceration on the back of his head. Cluck gave a blood sample. His blood-alcohol concentration was .22 approximately 1 hour after the accident. The day after the accident, Cluck voluntarily went to the police station to give a statement. Harrelson drove him to the station, where they both gave voluntary statements. Trooper Jerry Clary testified that Cluck admitted to driving the Corvette during the accident and that he lost control of his vehicle as he tried to pass.
The State charged Cluck with three counts of involuntary manslaughter while driving under the influence of alcohol, DUI, aggravated battery, and improper passing. A jury convicted Cluck on all charges except the charge of aggravated battery. Upon a motion for directed verdict, the court found that Cluck’s conviction for DUI was multiplicitous with the manslaughter convictions and set aside the DUI conviction. The trial court sentenced Cluck to a controlling term of 155 months’ incarceration and ordered the Department of Corrections to post photographs of the victims in Cluck’s cell for the duration of his prison term.
Cluck argues the trial court erred by denying his motion to suppress his confession. Cluck contends he was in custody when he made the statement and officers had failed to give him Miranda warnings prior to his interrogation. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966).
When a pretrial motion to suppress has been denied, the moving party must still object to introduction of the evidence at trial in order to preserve the issue for appeal. State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999). The latter requirement is commonly known as the contemporaneous-objection rule and is codified in K.S.A. 60-404. See State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009). Specifically, K.S.A. 60-404 requires an on-the-record “objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” Among other advantages, this requirement allows a court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, it allows the court to be prepared — after timely trial objection — to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41-42, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984) (in limine ruling “is subject to change when the case unfolds”).
In Jones, the defendant argued that his counsel’s action at the beginning of trial to renew his previous motions to suppress was the equivalent of a timely interposed objection to evidence when it was offered later during trial. The court rejected this argument, citing State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989), for “why nothing short of an objection at the time evidence is offered satisfied the requirement” of a contemporaneous objection. Jones, 267 Kan. at 637. The Court of Appeals has rejected a similar defense argument after denial of a pretrial motion to suppress, i.e., that an objection at the close of the State’s evidence is contemporaneous. See State v. Daniels, 28 Kan. App. 2d 364, 365, 17 P.3d 373 (2000), rev. denied 272 Kan. 1420 (2001). Because the objections were not contemporaneous, both the Jones and Daniels courts concluded that the evidentiary issue was not preserved for appeal.
Although his pretrial motion to suppress his confession was denied, Cluck made no contemporaneous objection to the use of his confession at trial. Consequently, he has failed to preserve the issue for appeal.
Nevertheless, we will perhaps save judicial time and effort by noting that we find Cluck’s underlying argument lacks merit. Cluck claims he was subjected to a custodial interrogation for two reasons: (1) Trooper Clary testified that he believed Cluck was the only suspect responsible for the accident; and (2) the interrogation occurred in the interview room at the county jail.
Cluck attempts to shift the focus onto Trooper Clary because Clary believed that Cluck was the only person responsible for the accident. While probably true, this fact is not controlling. “The question of whether an interrogation is custodial must be deter mined based on an objective standard of how a reasonable person in the suspect’s situation would perceive his or her circumstances.” State v. Jones, 283 Kan. 186, Syl. ¶ 3, 151 P.3d 22 (2007). A person is not arrested or in custody until significant restraints have been placed upon that person’s freedom of movement. State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976). In State v. Jones, 246 Kan. 214, 216-18, 787 P.2d 726 (1990), the court determined that a defendant who voluntarily went to the police station, was interviewed for approximately an hour, and then left the station without restraint being placed on his movement was not in police custody. As in Jones, the trial court here correctly determined the situation was one of an investigative interrogation, not a custodial interrogation, and that Cluck was not in custody when he made the statement.
When, after a full pretrial hearing, a trial court determines that an extrajudicial statement by an accused was voluntarily given and admits the statements into evidence at trial, an appellate court will not reverse the trial court if its findings are supported by substantial competent evidence. State v. White, 246 Kan. 28, Syl. ¶ 1, 785 P.2d 950, modified 246 Kan. 393, 789 P.2d 1175 (1990). We agree with the trial court’s finding that Cluck’s statement was completely voluntary. The simple fact that Cluck’s interview occurred in the interview room at the county jail does not in itself create a custodial interrogation.
Cluck also argues the district court failed to exercise its discretion in denying his motions for departure. We disagree.
Cluck received a presumptive sentence, and presumptive sentences, by statute, are generally not appealable. See K.S.A. 21-4721(c)(1). Cluck points to a tension between the statute requiring findings on a departure motion and the statute making presumptive sentences generally unappealable. The Kansas Supreme Court has concluded that a defendant generally cannot appeal when the district court sentences the defendant to a presumptive sentence, even if it fails to issue a ruling on a departure motion. In State v. Koehn, 266 Kan. 10, 966 P.2d 63 (1998), the defendant raised an argument similar to Cluck’s. The court examined both statutes and noted the inconsistency. The court concluded that the inconsis tency could be resolved by focusing on the legislature’s refusal to allow appeals of presumptive sentences: “Because no appeal is permitted from a presumptive sentence, we know of no reason for K.S.A. 21-4718(a)(2) findings of fact and conclusions of law when a presumptive sentence is imposed.” 266 Kan. at 15; see also State v. Mares, 20 Kan. App. 2d 971, 972, 893 P.2d 296, rev. denied 257 Kan. 1094 (1995) (“If a court does depart, K.S.A. 1993 Supp. 21-4718[c] requires it to make specific findings of fact or law. A similar requirement is not imposed for refusal to depart.”). Consequently, under these facts we have no jurisdiction to consider Cluck’s argument, but again, even on the merits, the argument is without merit.
Cluck claims the district court erred by denying his requests for a downward durational departure sentence without stating why the proposed mitigating circumstances were insufficient to constitute a departure. K.S.A. 21-4643(d) provides that the district “judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.”
Contrary to Cluck’s contention that this issue involves the interpretation of K.S.A. 21-4643(d), calling for an unlimited de novo review, the established standard of review is one of abuse of discretion. See State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009). In State v. Thomas, 288 Kan. 157, 164, 199 P.3d 1265 (2009), the court stated:
“On appellate review of this process, we apply a broad abuse of discretion standard because this issue involves the district court’s consideration and weighing of mitigating circumstances. Under this standard ‘ “[j]udicial discretion is abused when no reasonable person would take the view adopted by the district judge.” ’ Ortega-Cadelan, 287 Kan. at 165 (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005]); see State v. Jones, 283 Kan. 186, 215-16, 151 P.3d 22 (2007) (same broad abuse of discretion standard applies to appellate review of weighing of aggravating and mitigating circumstances before imposing hard 50 sentence).”
In his departure motions, Cluck asked the district court to impose a dispositional and durational departure sentence based on a number of supposed mitigators: (1) he had no intent to commit the crimes; (2) he assumed responsibility; (3) he had no previous accidents and had an excellent driving record; (4) he expressed his remorse about the deaths; (5) he was a hard worker, family man, and member of the national guard; (6) he has been extremely cooperative in jail; (7) he is a good person; (8) he is willing to receive treatment; (9) he has supportive family; and (10) the length of time served will not affect the harm caused by his actions.
Upon consideration of the mitigating factors, arguments of counsel, and Cluck’s witnesses, the district court stated that it specifically reviewed the motions for durational and dispositional departure and considered all the mitigating testimony. The court held that “there’s no substantial and compelling reasons existing” to depart. The court stated that it determined Cluck’s sentence and in doing so denied the motions to depart based on several factors: (1) three people died in the accident; (2) prior DUI in 1992; (3) .22 blood-alcohol concentration at or within 1 hour after the time of the accident; and (4) .219 blood-alcohol concentration at the time he was later arrested.
In Thomas, the court stated:
“[T]he statutory language regarding the consideration of mitigating circumstances is ‘clear and unambiguous, stating the judge shall impose a life sentence “unless tire judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.’ ” Ortega-Cadelan, 287 Kan. at 164 (quoting K.S.A. 2006 Supp. 21-4643[d]).... [A] two-step procedure applies: First, the judge reviews mitigating circumstances and, second, the judge determines if there are substantial and compelling reasons for a departure. 287 Kan. at 164.
“A review of the sentencing transcript convinces us that the district court considered all of Thomas’ arguments, acknowledged the mitigating circumstances asserted by Thomas, and explained why it chose to reject the request for a downward durational or dispositional departure. Reasonable people could agree with the district court’s assessment of whether the mitigating circumstances were substantial and compelling.
“The district court did not abuse its discretion by denying Thomas’ motion for a downward durational or dispositional departure sentence under K.S.A. 2006 Supp. 21-4643(d).” 288 Kan. at 163-64.
Here, just as in Thomas, the district court followed the two-step procedure by considering the mitigating circumstances and its determination that they were not substantial and compelling reasons for a departure. Reasonable people could agree with the district court’s assessment that the mitigating circumstances were not substantial and compelling. Here, as in Seward, 289 Kan. at 722, Cluck has “demonstrated no abuse of discretion in the district court’s denial” of Cluck’s departure motions for a downward durational departure sentence.
Cluck challenges the district court’s order requiring the posting of the victims’ photographs in his prison cell as part of his prison sentence. The premise of Cluck’s argument involves the separation of powers. We find the district court overstepped its bounds in ordering a sentence that is not provided for by statute.
A court may correct an illegal sentence at any time. K.S.A. 22-3504(1). An illegal sentence, as contemplated by K.S.A. 22-3504(1), is a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Davis, 283 Kan. 767, 768-69, 156 P.3d 665 (2007).
The legislature defines crimes and establishes punishments, the judiciary determines whether a criminal offense has been violated and imposes punishment for a violation, and the executive branch enforces the laws and executes an imposed sentence. Brull v. State, 31 Kan. App. 2d 584, 588, 69 P.3d 201 (2003). Kansas courts therefore do not have the inherent authority to impose terms or conditions of sentences for criminal acts and must act within the limits of their statutory authority when imposing sentences. See State v. Page, 60 Kan. 664, 667, 57 P. 514 (1899) (“It is undeniably true that the sole power to provide for the punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishments. Its authority in these respects is exclusive and supreme. Courts are empowered only to ascertain whether an offense has been committed, and, if so, to assess punishment, within the terms of the law, for its commission.”). While courts may find some punishments unconstitutional, a district court may not impose a condition of incarceration as part of an executed sentence unless the condition is expressly authorized by statute.
The district court’s order requiring the posting of the victims’ pictures was not statutorily authorized. Cluck was convicted of multiple counts of involuntary manslaughter while under the influence, DUI, and improper passing. K.S.A. 21-4603d(a) sets forth the sentences available for Cluck. It authorizes courts to order imprisonment of the defendant, payment of a fine, or release the defendant on probation with appropriate conditions. K.S.A. 21-4603d(a) does not authorize a court to require the defendant to post photos of the victims in his or her prison cell. The district court therefore acted without authority. If the legislature wishes to allow such orders as the one here, it is free to do so. But the courts have no authority to do so.
The Kansas Supreme Court has invalidated other attempts by district courts to impose conditions on incarceration not provided for by law. In State v. Post, 279 Kan. 664, Syl. ¶ 2, 112 P.3d 116 (2005), the court invalidated the imposition of a no-contact order as a condition of a prison sentence. In State v. Bowers, 239 Kan. 417, Syl. ¶ 4, 721 P.2d 268 (1986), the court held that a criminal defendant who has been sentenced to prison cannot be charged with repayment of restitution while in prison.
As was the case in Post, Cluck requests that we vacate the condition placed on his incarceration and remand the matter to the district court for resentencing. We decline to follow Cluck’s re-sentencing suggestion. The illegal photo-posting condition of Cluck’s sentence is vacated; the remaining portions of Cluck’s sentence are valid and remain in force as we rule below.
We specifically do not rule on the question of whether this would be an appropriate condition of probation or parole as that is not the issue before us.
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McAnany, J.:
This appeal centers on the contract between Razorback Contractors of Kansas, Inc. (Razorback), and the Johnson County Board of County Commissioners (the Board) for construction of a sanitary sewer line in southern Johnson County. The agreed contract price was $2,393,320.76. Razorback claimed that during construction it encountered site conditions materially different from what previously had been disclosed. It sued the Board for additional compensation of $1,342,932, but the district court entered summary judgment in favor of the Board because Razorback failed to provide notice of its claim in accordance with the parties’ contract. Razorback appeals that decision.
The Board provided prospective bidders on the project with two sets of soil boring logs taken in early 2004. The boring logs were provided in order to inform prospective bidders about the soil composition and water table on the job site. The boring logs reported information about rock formations, soil strata, and “observed” groundwater conditions at various depths in approximately 80 locations throughout the construction area. The borings were not intended to measure surface water or indicate surface conditions. Bidders were further informed about site conditions in an accompanying April 30, 2004, letter which stated:
“SITE CONDITIONS
“The project site is located in an agricultural area of southern Johnson County, Kansas. According to the site plan provided, the proposed sewer lines are generally in the floodplains of Coffee Creek and [its] tributaries. The soils in these areas are by nature typically saturated due to the natural accumulation of water by surface drainage.
“SITE PREPARATION
“The near surface soils in several areas of this project site were saturated at the time of our field exploration. The soil moisture contents will likely be high at the time of construction for the proposed sewers. Drying of these soils may be re quired to develop a stable base for construction activities. Discing and aeration may be sufficient to provide a stable base. However, additional stabilization measures may be required depending on the soil moisture content of the near surface soils at the time of construction. The contractor should determine the most appropriate means of soil stabilization required for the proposed work.
“EXCAVATIONS
“Excavations will be required for the proposed sewer lines’. It is anticipated that the excavations will be in clay soils and shale, sandstone and limestone bedrock above and below the water table. Typical temporary dewatering techniques should be sufficient to remove any water seepage that may be encountered in the excavations. The contractor should determine the appropriate dewatering technique required to complete the work ‘in the dry.’
“.. . Surface drainage should be carefully controlled to prevent flow of water into the excavations.”
The contract work was to be completed in 270 days. The contract provided for liquidated damages of $1,000 for each day thereafter until completion of the work.
Razorback, the successful bidder on the project, is an experienced sewer contractor with over 160 sewer and waterline projects in the Kansas City-Lawrence-Topeka area since the year 2000. Michael Martin was Razorback’s project manager. George Butler Associates (GBA) was the Board’s consulting engineering firm for the project. Doug Martin was GBA’s senior construction observer for the project and was onsite several times each week during construction.
The work commenced on July 19,2004. Progress meetings were held onsite in September, October, November, and December 2004, and in January and February 2005. Doug Martin, the engineer supervising the project, attended each of these meetings, prepared the agenda and minutes for each meeting, and gave Razorback an opportunity to correct the minutes of prior meetings.
In September 2004, Razorback first reported to Doug Martin that it had encountered unanticipated water conditions. The September 2004 progress meeting minutes (which Razorback reviewed and apparently approved) indicate that Razorback was experiencing “wet surface conditions and equipment problems.” Razorback was a week or two behind schedule by this time. Ra zorback requested no time extension or additional compensation in September 2004.
During the October and November 2004 progress meetings, Razorback repeated that “wet surface conditions and equipment problems” were causing delays. Again, it made no request for a time extension or for additional compensation.
On December 7, 2004, Michael Martin sent a letter to GBA stating that
“die extremely wet ground conditions that we are experiencing on this project are causing delays in laying pipe . . . [and] the wet ground is stopping us from delivering bedding rock to the pipe laying operation. . . .
“We do not see this condition improving until either the precipitation quits for several weeks allowing the ground to dry or the temperature drops below freezing long enough to allow the ground to freeze. . . .
“This letter is to serve notice that if we don’t get favorable ground conditions soon we will request a time extension based on the current unforeseen site conditions.”
A week later, at the December 14, 2004, progress meeting, Razorback again reported that “wet surface conditions and equipment problems” were causing delays. Razorback did not submit a proposed time extension or price increase change order at the meeting. However, Hal Cosgrove, Razorback’s president, attended this meeting and
“asked about the possibility of. . . stopping the contract time on the project until surface conditions were more favorable .... At this time[, Razorback’s] progress is being slowed by muddy surface conditions and unexpected groundwater. Hal stated that the soil borings for the project did not indicate the presence of ground or surface water along the easements of this project.”
On December 22, 2004, GBA denied Razorback’s time extension request and instructed Razorback to continue working and to “investigate alternative methods for working in the mud.”
At the January 2005 progress meeting, Razorback reported that muddy surface conditions caused by wet weather, unanticipated subsurface moisture, and equipment problems put it about a month behind schedule. GBA told Razorback that there would be no time extension for weather delays.
On February 23, 2005, Razorback wrote to GBA requesting a change order extending the contract performance date by 60 days under Sections 10.05, 12.02, and 12.03 of the contract. Razorback cited “the extremely wet and muddy soil conditions at the project site.” Johnson County Wastewater (JCW) approved the change order on April 19, 2005, and the date of completion was moved from April 15, 2005, to June 14, 2005.
On June 10, 2005, Razorback formally requested in writing an increase in the contract price based upon wet and muddy soil conditions on the site that it claimed were (1) materially different from the conditions ordinarily encountered and generally recognized as inherent in this type of work, and (2) substantially different from what was represented in the bid documents. According to Razorback, “[ojnce the project is completed, we will have an opportunity to [tally] costs and to present you with a final number.”
On July 5, 2005, JCW denied Razorback’s request, citing Sections 10.05 and 12.01 of the contract and the fact that notice of the claim was more than 60 days after February 23, 2005. JCW also cited Section 4.03 and noted that the letter of April 30, 2004, accurately described the conditions Razorback would and did encounter.
Razorback replied on July 19, 2005, stating that it had given notice of the differing conditions as early as the December 2004 progress meeting. Also, Razorback claimed that 80% of the bores in the logs were dry holes. To document its claim for a price adjustment, Razorback enclosed a “Claim Summary” which set forth the difference between its actual costs ($3.2 million) and its bid price ($1.9 million).
Razorback sued the Board for breach of contract. It also asserted a claim for breach of implied warranty based on the Board’s failure to disclose the amount of ground and surface water present in the construction area.
The Board moved for summary judgment. The district court granted the Board’s motion, finding that Razorback failed to comply with the notice requirements of Sections 4.03,10.05, and 12.01 of the contract. Further, relying on Owens v. City of Bartlett, 215 Kan. 840, 528 P.2d 1235 (1974), and Saddlewood Downs v. Holland Corp., Inc., 33 Kan. App. 2d 185, 99 P.3d 640 (2004), the court found that the Board did not waive its right to notice pursuant to the contract. On appeal, Razorback challenges the district court’s enforcement of the contract’s notice provisions and the court’s conclusion that the Board did not waive its right under the contract to written notice of the changed conditions.
Finally, the district court granted the Board summary judgment on Razorback’s implied warranty claim. Razorback does not challenge this ruling.
Appellate review of the Board’s summary judgment motion is de novo. Central Natural Resources, Inc. v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009). The applicable summary judgment standards are well known to the parties and may be found in Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009) (summary judgment standards that apply to district court also apply to appellate court on review).
The Contract
Section 4.03 of the contract, the changed conditions provision, allowed Razorback to request a price increase if it discovered and reported a condition that “[differed] materially from that shown or indicated in the Contract Documents.” The relevant portions of Section 4.03 provide:
“4.03 Differing Subsurface or Physical Conditions
“A. Notice: If CONTRACTOR believes that any subsurface or physical condition at or contiguous to the Site that is uncovered or revealed either:
1. is of such a nature as to establish that any ‘technical data’ on which CONTRACTOR is entitled to rely as provided in paragraph 4.02 is materially inaccurate; or
2. is of such a nature as to require a change in the Contract Documents; or
3. differs materially from that shown or indicated in the Contract Documents; or
4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents;
“then CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by paragraph 6.16.A), notify OWNER and ENGINEER in writing about such condition. CONTRACTOR shall not further disturb such condition or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so.
“C. Possible Price and Times Adjustments
“2. CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Contract Times if:
a. CONTRACTOR knew of the existence of such conditions at the time CONTRACTOR made a final commitment to OWNER in respect of Contract Price and Contract Times by the submission of a Bid or becoming bound under negotiated contract; or
b. the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test, or study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for CONTRACTOR prior to CONTRACTOR’S making such final commitment; or
c. CONTRACTOR failed to give the written notice within the time and as required by paragraph 4.03. A.
“3. If OWNER and CONTRACTOR are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, a Claim may be made therefor as provided in paragraph 10.05. However, OWNER, ENGINEER, and ENGINEER’S Consultants shall not be liable to CONTRACTOR for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by CONTRACTOR on or in connection with any other project or anticipated project.”
Section 12.01 of the contract provides that any price adjustment claim must be made in writing and in accordance with Section 10.05. The relevant provisions in Section 10.05 provide:
“10.05 Claims and Disputes
“A. Notice-. Written notice stating the general nature of each Claim, dispute, or other matter shall be delivered by the claimant to ENGINEER and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. Notice of the amount or extent of the Claim, dispute, or other matter with supporting data shall be delivered to the ENGINEER and the other party to the Contract within 60 days after the start of such event (unless ENGINEER allows additional time for claimant to submit additional or more accurate data in support of such Claim, dispute, or other matter). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of paragraph 12.01.B. . . . Each Claim shall be accompanied by claimant’s written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event.
“D. No Claim for an adjustment in Contract Price or Contract Times (or Milestones) will be valid if not submitted in accordance with this paragraph 10.05.”
Notice
Razorback claims that substantial performance will suffice to preserve its claim. It argues that it gave actual notice of its claim and no prejudice resulted from its failure to give written notice in accordance with the contract.
Razorback relies on Brinderson Corp. v. Hampton Roads Sanitation Dist., 825 F.2d 41 (4th Cir. 1987), and Brechan Enterprises, Inc. v. United States, 12 Cl. Ct. 545 (1987), for support. Razorback argues that whether and when the Board had actual knowledge of Razorback’s claim and whether the Board suffered any prejudice are issues of material fact to be resolved at trial, not by summary judgment.
Brinderson and Brechan lend support for Razorback’s claims if the federal common law of government contracts were to apply. In Brinderson, the contractor building a wastewater treatment plant encountered unusually wet conditions from rain and snow. The owner granted a time extension for completion of the project, and the contractor completed construction 13 months behind schedule. It then sought a price adjustment based, in part, on the theory that the site conditions materially differed from what the contract documents described. The trial court granted summary judgment to the government because the contractor failed to comply with the contract’s written notification provision.
On appeal, the court found no applicable Virginia cases addressing the issue. However, $17 million of the $21.6 million construction cost of the project was funded by the United States Environmental Protection Agency. The supplemental conditions clause found in the contract was a provision required in all projects for which the EPA provides substantial funding. Because a substantial body of federal law has developed regarding interpretation of this federally mandated supplemental conditions clause, the appellate court concluded that the Virginia Supreme Court would follow established federal common law when considering the written no tice provision in the contract. 825 F.2d at 44-45. The court noted that in those cases involving federal contracts, the written notice provision had been
“the subject of litigation in the Court of Claims and in several boards of contract appeals. In those cases, the notice provision has not been given a literal construction. A more liberal approach, focusing on the purpose of the clause, has been adopted. Generally, when the owner has actual or constructive notice of the conditions underlying the claim and an opportunity to investigate, that is sufficient. [Citations omitted.]” 825 F.2d at 44.
Brechan involved a federal construction contract administered by the Army Corps of Engineers to repair a breakwater in southwestern Alaska. The dredging contractor encountered harder soil than anticipated. It notified the Army Corps of Engineers that “ ‘there may be a possible claim if the material is in fact different than what the soil data inferred.’ ” 12 Cl. Ct. at 547. The Army twice denied the contractor’s informal changed-conditions claims before the contractor submitted a formal claim for additional compensation.
The Brechan court rejected the government’s argument that the letter referencing a “ ‘possible claim’ ” did not meet the notice requirement under the contract and concluded that the “notice does not need to be in any specific format; it need only clearly show the existence of the condition. [Citation omitted.]” 12 Cl. Ct. at 549.
Both Brinderson and Brechan involve the interpretation and application of federally mandated contract provisions. The federal government is not a parly to the contract now before us, as was the case in Brechan. Further, we find no indication in the record that the contract provisions at issue before us are there because of a federal mandate, such as in Brinderson. Federal common law applies in state court proceedings only in limited areas. A predicate for the application of federal common law is the existence of a “uniquely federal interest.” See Boyle v. United Technologies Corp., 487 U.S. 500, 507, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988). There is no federal interest demonstrated here. Hence, there is no compelling reason to apply the federal common law of contracts.
We do find, however, that other states (New York, Connecticut, Indiana, Washington, Wyoming, Iowa, and Ohio), applying their own state contract laws, have strictly construed similar written notice provisions. See Perini Corp. v. City of New York, 18 F. Supp. 2d 287 (S.D.N.Y. 1998); Cecio Brothers, Inc. v. Greenwich, 156 Conn. 561, 244 A.2d 404 (1968); Starks Mechanical, Inc. v. New Albany-Floyd, 854 N.E.2d 936 (Ind. App. 2006); Mike M. Johnson, Inc. v. Spokane Cty., 150 Wash. 2d 375, 78 P.3d 161 (2003); Rissler & McMurry v. Sheridan Area Water, 929 P.2d 1228 (Wyo. 1996); Ida Grove Roofing v. City of Storm Lake, 378 N.W.2d 313 (Iowa App. 1985); Enviresponse v. Cty. Convention, 78 Ohio St. 3d 353, 678 N.E.2d 519 (Ohio 1997). These cases all generally hold that written-notice-of-changed-conditions provisions should be strictly enforced. The contractors in these cases were not entitled to price increases because each failed to comply with their respective contract’s notice requirements.
Perini involved an upgrade and expansion of the Coney Island Water Pollution Plant. The contractor’s claim for an equitable adjustment equaled approximately 40% of the contract price. (In the case now before us, Razorback’s claim is for more than 50% of the contract price.) In requiring strict compliance with the notice provisions of the contract, the court in Perini observed that the
“notice and documentation provisions serve an important public interest in that they ‘provide public agencies with timely notice of deviations from budgeted expenditures or of any supposed malfeasance, and allow them to take early steps to avoid extra or unnecessary expense, make any necessary adjustments, mitigate damages and avoid the waste of public funds.’ ” 18 F. Supp. 2d at 294.
See A.H.A. General Constr. v. NYCHA, 92 N.Y.2d 20, 33-34, 677 N.Y.S.2d 9, 699 N.E.2d 368 (1998).
In Cecio Brothers, Inc., the plaintiff was the subcontractor providing site preparation work for a new school. Because of an apparent error in the elevations shown in the plans, the plaintiff had to provide an additional 10,000 cubic yards of fill to establish the finished grade for the project. The plaintiff sued the owner, the Town of Greenwich, for unjust enrichment. The plaintiff s contract called for notice to the general contractor of claims for additional work within 2 days of first sustaining any loss or of proceeding with any authorized additional work. Here, the plaintiff submitted its bill for additional fill a year after the date it completed delivery on the originally estimated amount of fill. On appeal, the Connecticut Supreme Court rejected the plaintiff s claim, concluding:
“Had the plaintiff given timely notice in accordance with the terms of its subcontract, the contractor and the town would have had an opportunity not only then and there to have inquired into the accuracy of the plaintiff s claims as to the fill requirements but, more importantly, the town would have had an opportunity to save the added expense and keep within the limits of the public funds appropriated for the project by changing site plans or reducing costs in other portions of the project.” 156 Conn. at 568.
In Starks Mechanical, Inc., the contractor provided plumbing and mechanical work as part of a school renovation. When the contractor discovered defects in the design specifications, the school instructed the contractor to proceed with construction and correct the design defects. The contractor hired an engineer to redesign the plans and completed the work. In April 2004, near the end of the project, the contractor presented the school with a $1.3 million bill for the costs of redesigning the project. This was the first notice the school received of the claim for additional pay, though the court noted that “the claim admittedly arises from alleged design deficiencies dating back to 2002.” 854 N.E.2d at 938. The contractor argued that its numerous communications with the school about the design defects constituted sufficient written notice of its claim to withstand summary judgment. The appellate court disagreed, finding as a matter of law that the contractor’s communications with the school did not comply with the 14-day written notice requirement of the contract. 854 N.E.2d at 941-42.
In Mike M. Johnson, Inc., the sewer contractor’s work included making certain street improvements. That work was halted when the contractor encountered buried utilities lines. The contractor wrote to the county, stating that “ we expect to be compensated for all costs and time associated with maintaining this road while waiting for others to complete their work.’ ” 150 Wash. 2d at 382. The contractor submitted a spreadsheet listing various cost items, and there followed a “lengthy period of correspondence.” 150 Wash. 2d at 384. Nevertheless, the Washington Supreme Court found that the contractor “failed to follow the formal claim procedures” under the contract. 150 Wash. 2d at 384. Citing Bignold v. King County, 65 Wash. 2d 817, 822, 399 P.2d 611 (1965), the court rejected the notion of an “ ‘actual notice’ ” exception, and declared that Bignold “reaffirms the long-established rule requiring contractors to follow contractual notice provisions unless those procedures are waived by the owner.” 150 Wash. 2d at 387-88.
In Rissler & McMurray, the contractor encountered subsurface water in the trenches it dug in order to lay a new water line. The contractor also incurred additional time and costs when it encountered utility lines not shown in the plans. The contractor made verbal complaints to the supervising engineers, and the contractor believed its complaints were documented in the minutes of weekly project meetings. When the water line was completed and tested, the contractor was required to repair numerous leaks caused by ineffective bedding materials required by the contract specifications. Those repairs were completed on August 10,1993. The contract required claims to be filed within 30 days of the event giving rise to the claim. On September 16,1993, the contractor delivered to the supervising engineers its notification of claim. The owner failed to pay, the contractor sued, and the district court granted summary judgment in favor of the owner.
On appeal, the Wyoming Supreme Court found the mandatory claim procedure in the contract to be clear and unambiguous. Giving the contractor every favorable inference, the last day for filing a claim was September 10, 1993, 6 days before the contractor’s claim. Finding no evidence that the owner agreed to waive the requirement of timely written notice, the Supreme Court affirmed the entry of summary judgment. 929 P.2d at 1232-33.
In Ida Grove Roofing, the city hired the contractor to replace a roof on the city water works plant. The city estimated in the plans that the thickness of the roof insulation to be removed was 2 to 6 inches. After commencing the work, the contractor discovered that the insulation was up to 12 inches thick. In affirming the trial court’s denial of additional compensation, the appellate court noted:
“Whether or not the condition was concealed and did not become apparent until work began on the third section, a change order was required by the contract before additional compensation would be allowed. . . .
After discovering the additional thickness of the insulation on the third section, the plaintiff did not stop work and obtain a change order, but instead allegedly told the engineer additional compensation would be sought and later sent a letter.” 378 N.W.2d at 314-15.
In Enviresponse, the contractor was hired to clean up contaminated waste at the site where a convention center was being constructed. The contract provided that any increase in the amount of work to be done would be paid for on a per-unit basis. The contractor uncovered more waste than anticipated and orally notified the owner before proceeding with the work, but failed to submit a written change order for approval. In affirming summary judgment against the contractor, the Ohio Supreme Court stated:
“It is universally recognized that where a building or construction contract, public or private, stipulates that additional, altered, or extra work must be ordered in writing, the stipulation is valid and binding upon the parties, and no recovery can be had for such work without a written directive therefor in compliance with the terms of the contract, unless waived by the owner or employer. [Citations omitted.]” 78 Ohio St. 3d at 360-61.
It has long been public policy in Kansas that “ ‘freedom of contract is not to be interfered with lightly.’ [Citations omitted.]” Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005). In the case now before us, the district court accurately stated:
“If the language of a contract is clear and unambiguous, the parties to a lawful contract are entitled to have it enforced as written. See Endicott v. DeBarbieri, 189 Kan. 301, 304, 369 P.2d 241 (1962). ‘Parties are free to contract for any type of. . . notice they desire,’ and when a type of notice is specified, ‘the provision is to be enforced as written, whether it results in actual notice or not.’ Fourth Nat’l Bank & Trust Co. [v.] Mobil Oil Corp., 224 Kan. 347, 354, 582 P.2d 236 (1978).”
In Fourth Nat’l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, 582 P.2d 236 (1978), the court strictly construed the requirement that stockholders tender their shares by a certain date to satisfy the terms of a stock purchase offer. As Razorback aptly points out, the notice of tender required for the stock tender is a far cry from the notice requirement in a construction contract. However, our Supreme Court in Mobil, 224 Kan. at 353, made the following general observations regarding Kansas contracts:
“The basic legal principles here applicable are well expressed in 17 Am. Jur. 2d, Contracts, § 242 pp. 627-629 (1964):
“ ‘It is a fundamental principle that a court may not make a new contract for the parties or rewrite their contract under the guise of construction. In other words, the interpretation or construction of a contract does not include its modification or the creation of a new or different one. It must be construed and enforced according to the terms employed, and a court has no right to interpret the agreement as meaning something different from what the parties intended as expressed by the language they saw fit to employ. A court is not at liberty to revise, modify, or distort an agreement while professing to construe it, and has no right to make a different contract from that actually entered into by the parties. Courts cannot make for the parties better or more equitable agreements than they themselves have been satisfied to make, or rewrite contracts because they operate harshly or inequitably as to one of the parties, or alter them for the benefit of one party and to the detriment of the other, or, by construction, relieve one of the parties from terms which he voluntarily consented to, or impose on him those which he did not.’ ”
As most recently stated by our Supreme Court in National Bank of Andover v. Kansas Bankers Surety Company, 290 Kan. 247, Syl. ¶ 2, 225 P.3d 707 2010):
“Competent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake, or duress a party who has entered into such a contract is bound thereby.”
Razorback relies upon the holdings in National Union Fire Ins. Co. v. FDIC, 264 Kan. 733, 957 P.2d 357 (1998); Reger v. Sours, 181 Kan. 423, 311 P.2d 996 (1957); Oliver Farm Equipment Sales Co. v. Patch, 134 Kan. 314, 5 P.2d 795 (1931); and Almena State Bank v. Enfield, 24 Kan. App. 2d 834, 954 P.2d 724 (1998).
In Almena, the Bank made a mortgage loan to the Enfields. The note required the Enfields to provide the Bank, upon request, any financial statements or information the Bank deemed necessary. The Enfields made all their required note payments, and the note was never criticized or classified by the bank examiners. However, the Bank called the note when it requested copies of the Enfields’ income tax returns and the Enfields refused to supply them.
The next day, the Enfields brought their tax returns to the Bank to be examined but would not permit the Bank to copy them. At the same time, the Enfields furnished to the Bank their 1995 financial statement. The Bank then brought this foreclosure action. This appeal followed the entry of summary judgment in favor of the Enfields.
In reversing the district court, the court on appeal considered whether the doctrine of substantial performance applied. The court declared:
“ ‘Substantial performance is shown when the following circumstances are established by the evidence: (1) The party made an honest endeavor in good faith to perform its part of the contract, (2) the results of the endeavor are beneficial to the other party, and (3) such benefits are retained by the other party.’ [Citations omitted.]” 24 Kan. App. 2d at 839.
The issue in Almena did not involve notice but performance of contract obligations to avoid breach. Here, the issue is not whether Razorback substantially performed the work required of it pursuant to the contact. The work was done, and the Board accepted it and paid Razorback in accordance with the contract. Here, the issue is notice and whether this court should, as Razorback would have us do, simply disregard Section 10.05D of the contract.
Reger involved a lease-purchase agreement. The contract did not provide that time was of the essence. The court found that when plaintiff sought to exercise his option to purchase, defendant engaged in evasive conduct to prevent plaintiff from tendering payment. Under the circumstances, plaintiff did not forfeit the right to purchase the property. Further, “[t]he privilege to declare forfeiture was waived by the acceptance of the mentioned payments long after plaintiff had been in arrears.” 181 Kan. at 426-27.
The issue of waiver is one we will address shortly. In the meantime, we find no evidence that the Board interfered in any way with Razorback’s ability to give proper notice in accordance with the contract, as was the case in Reger.
National Union Fire involves a certified question from the United States Court of Appeals for the Tenth Circuit regarding “ ‘whether the notice-prejudice rule which applies to notice of loss provisions of a fidelity bond would also apply to the bond’s proof of loss requirement.’ ” 264 Kan. at 734. In resolving the issue, the Kansas Supreme Court noted the federal district court’s observations about the common characteristics shared by fidelity bonds and insurance contracts and the application of insurance law to a fidelity bond’s proof of loss requirement. The district court noted “ ‘the numerous Kansas decisions holding that insurance policies are to be strictly construed against the carrier and in favor of the insured when a policy provision is ambiguous.’ [Citations omitted.]” 264 Kan. at 749.
Our Supreme Court found “no compelling reason .. . for allowing the insurer to avoid performing a duty purchased by the insured’s premium unless the insured’s delay caused loss to the insurer. This would be true for both notice of loss and proof of loss provisions in the policy or bond.” 264 Kan. at 751.
The language of National Union Fire is narrow in its focus. An entire body of law has developed regarding the interpretation and enforcement of insurance policies and dealings between insurers and their insureds. That body of law has been informed by the unique characteristics of the insurance industry and its special relationships with its insureds. National Union Fire involved a purchaser of an insurance/surety product. The case before us involves a seller of construction services. The distinctions are too many and too significant to paint owners in construction contracts with the same brush used for insurers in dealing with their insureds.
In Oliver Farm Equipment Sales, Oliver sold a threshing machine to Patch on credit, taking back a series of promissory notes. Oliver warranted that the thresher “ ‘will perform the work for which it is intended as well, or better, than any other make of machine of the same size working under the same conditions and on the same job.’ ” 134 Kan. at 315. The warranty provided that “ ‘if within five days from its first use, the purchaser is unable to make the machinery do the work as aforesaid he shall immediately give written notice.’ ” 134 Kan. at 315.
A month after buying the thresher, Patch wrote to the plaintiff, stating: “ ‘It . . . runs good and all, but the separator man and fanners are kicking about the dirt around the feeder. I never saw as dirty a machine. . . . Now I expect you to do something about this. ... I sure can’t use the machine this way.’ ” 134 Kan. at 315. Over the next 3 years Oliver sent various repairmen to attempt repairs. When Oliver sued on the notes, Patch counterclaimed and prevailed on his claim for damages caused by the defective thresher.
On appeal our Supreme Court held that Oliver waived strict compliance with the notice requirement in its warranty. “[P]laintiff might have ignored defendant’s oral complaint to its agent. . . and might have ignored the written notice. ... If it had done so, it might have stood on the letter of the contract.” 134 Kan. at 317. But by sending “one [mechanic] after another ... to tinker with the machine,” Oliver waived its right to strict compliance with the contract’s notice provision. 134 Kan. at 318.
Rather than supporting Razorback’s position, Oliver suggests that the plaintiff may have demanded strict compliance with its notice requirement but waived that right by its conduct over a 3-year period.
Here, the contract is between knowledgeable and experienced contracting parties. Section 4.03 of the contract requires the contractor not only to give the owner and project engineer written notice of conditions on the job site that are materially different from what was shown in the contract documents, but also to immediately stop work on the site and proceed no further until receipt of a written order to do so.
Further, Section 10.05 requires the contractor to provide the project engineer written notice of its claim for extra compensation within 30 days after the start of the event giving rise to tire claim. The contractor must then- provide the project engineer with the amount of the claim along with supporting data within 60 days after the start of the event giving rise to the claim. Section 10.05D makes compliance with these notice requirements a prerequisite for any claim for additional compensation under the contract.
Razorback first mentioned wet surface conditions in September 2004, but it did not stop work at that time. The Board certainly was not on notice of any possible claim for extra compensation since wet surface conditions would clearly be within the contemplation of the contracting parties as outlined in the Board’s April 30, 2004, letter to bidders.
At the October progress meeting, Razorback did not notify the project engineer that it would be making a claim to increase the contract price due to the wet conditions on the site.
In February 2005, Razorback made a request for a change order with respect to the time for performance but not for extra compensation. It made no request for additional compensation until June 2005, when the project was completed and almost 2 months after its originally scheduled completion date. When it did demand additional compensation, it tendered a one-page document without supporting data that merely identified its claimed “Actual Sanitaiy Sewer Cost” of $3,286,009 less its “Sanitary Sewer Cost Estimate” of $1,943,077 to arrive at $1,342,932, the amount claimed.
Razorback clearly failed to comply with the notice requirements of Sections 4.03 and 10.05. It gave its formal written notice about 9 months after the wet conditions were first encountered. Before its written notice it had never expressed, orally or otherwise, its intent to seek additional compensation for these wet conditions. The Board was entitled to notice in accordance with the provisions of the contract that the parties freely and voluntarily entered into. Accordingly, the district court correctly ruled that there remained no genuine issue of material fact regarding Razorback’s failure to perform in accordance with the contract terms.
Waiver
Razorback’s waiver contention is rather confusing. Razorback contends that the district court erred in relying on Owen v. City of Bartlett, 215 Kan. 840, 528 P.2d 1235 (1974), and Saddlewood Downs v. Holland Corp., Inc., 33 Kan. App. 2d 185, 99 P.3d 640 (2004), in finding there had been no waiver of the contract’s notice provision. Razorback states that Owen and Saddlewood “involve a completely different context for waiver.” Yet Razorback does not provide any analysis to support the existence of a waiver, other than its conclusory remark that “[t]here is a fact dispute over whether the Board’s acceptance of Razorback’s tardy written notice of a claim for additional time and the Board’s initial action on Razorback’s oral claim for a contract price adjustment are so ‘isolated’ as to preclude waiver.” A point raised incidentally but not briefed or argued is deemed abandoned. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009); Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Nevertheless, we will address the issue.
The district court observed that in Owens “the parties, throughout the performance of the contract, entirely disregarded the writing requirement for extra or additional work.” Razorback does not attempt to distinguish Owens by directing us to evidence that the Board consistently disregarded the notice requirements of the contract. Rather, it directs us to one event in February 2005, which we will address shortly.
With respect to Saddlewood, the district court noted the fact that the owner had expressly authorized extra work and had paid for it. From these cases, the district court concluded that “an isolated instance of failing to enforce a contractual requirement is not enough to establish a waiver of that requirement.” Razorback does not argue that this is an incorrect statement of the law of waiver or that there was a consistent pattern of the Board waiving the contract’s notice requirements.
Waiver is the intentional relinquishment of a known right. Postal Savings & Loan Ass’n v. Freel, 10 Kan. App. 2d 286, 287, 698 P.2d 382 (1984). Waiver may be inferred from conduct. See Lyons v. Holder, 38 Kan. App. 2d 131, Syl. ¶ 7, 163 P.3d 343 (2007). However, in order to establish waiver there must be evidence that manifests, in an unequivocal manner, an intent that is inconsistent with the intent to claim a right. See Patrons Mut. Ins. Ass’n v. Union Gas System, Inc., 250 Kan. 722, 725-26, 830 P.2d 35 (1992). Therefore, in order to create a genuine issue of material fact on the issue of waiver and thereby avoid summaiy judgment, it was incumbent upon Razorback to direct the district court (and us) to evidence from which a jury could conclude that the Board, in an unequivocal manner, manifested its intention to relinquish its right to written and timely notice of any claim for additional compensation in accordance with the contract’s terms.
Razorback refers us to the late written notice it gave the Board of its claim for additional time to complete the work. The Board rejected Razorback’s oral requests to extend the contract’s performance deadlines in December 2004 and Januaiy 2005. On February 23, 2005, Razorback gave written notice of its request for a change order extending the contract performance date an additional 60 days. Razorback asserted no claim for additional compensation. On April 19, 2005, the Board extended the date for completion and final acceptance of the work to June 14, 2005.
The Board rejected Razorback’s oral attempts to extend performance until written notice was given in February 2005. Further, the right to insist on timely completion of the work is clearly distinct from the right to receive timely notice of a claim for additional compensation for the work. We fail to see how this one extension of Razorback’s performance time constitutes evidence that unequivocally manifested the Board’s intent to relinquish its right to timely, written notice of a claim for additional compensation. If the Board did demonstrate in an unequivocal manner its intent to waive written notice by accepting Razorback’s February 23, 2005, time extension request, and if this notice waiver extended to a claim for extra compensation (which Razorback did not ask for at the time), then Section 10.05 of the contract nevertheless required Razorback to follów-up with supporting data on its claim within 60 days thereafter. There is no evidence that Razorback did so.
Accordingly, we are convinced that the district court was correct in finding no genuine issue of material fact on the claim that the Board waived its right to timely written notice of Razorback’s claim for additional compensation.
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PlERRON, J.:
Kenneth D. Adams appeals from his jury convictions for six counts relating to a conspiracy to manufacture methamphetamine and possession of methamphetamine. He claims error at various stages of the trial. He contends the trial court erred in denying his motion to suppress the search warrant. Adams also argues the jury was given an improper instruction with regard to testimony about prior drug use. He additionally claims the court erred in sentencing him for possession of lithium metal with the intent to manufacture a controlled substance instead of the lesser penalty provision of possession of drug paraphernalia with the intent to manufacture. Finally, Adams claims the court erred in sentencing him to a higher sentence without proving criminal history to a jury beyond a reasonable doubt. We affirm.
On January 29, 2008, Police Chief Darren Konrade stopped a white pickup truck for failing to stop at a stop sign near Protection, Kansas. The driver was Rachel Nelson. Konrade suspected that Nelson was under the influence and conducted a field sobriety test that she failed. Konrade asked Nelson whether she was under the influence and she admitted to drinking alcohol and smoking methamphetamine. Konrade arrested and gave Miranda warnings to Nelson before continuing to question her.
Following Nelsons admission, Chief Konrade searched the truck. The search turned up a written list of several items used in the production of methamphetamine including Toluene, D batteries, lithium, starting fluid, and distilled water. Nelson admitted she had purchased Tolulene and D batteries in order to manufacture methamphetamine, but she claimed the methamphetamine was manufactured in Oklahoma. Nelson also indicated she was living in Protection.
After Konrade questioned Nelson, she admitted that several items related to the manufacture of methamphetamine might be found in her home. Konrade took Nelson to the police station and had her prepare a written statement. Another officer, Deputy Trent Allen, prepared an affidavit in support of a search warrant.
In the affidavit, Deputy Allen stated: “Based on my training and experience, I am familiar with how controlled substances are manufactured, obtained, diluted, packaged, distributed, sold and used.” Allen proceeded to describe various types of methamphetamine manufacture and the ingredients used in the process. The affidavit details using chemicals for precursors, reagents, solvents, and catalysts. Finally, in the probable cause portion of the affidavit, Allen wrote the following:
“Nelson failed standard field sobriety testing and was questioned about drug use, Nelson stated that she had purchased several methamphetamine precursors in Woodward Oklahoma yesterday January 28, 2008. She stated that the precursors that she had purchased were located at 107 W. Main in Protection, Kansas. Also Mrs. Nelson provided a voluntaiy written statement about these activities. Mrs. Nelson also stated that George Pitcherello was at her residence at 107 W Main in Protection and that he was the person responsible for the manufacture of the methamphetamine.”
Police officers executed the signed search warrant on a trailer home at 107 West Main. During the execution of the search warrant, the officers saw three individuals standing by a parked car and a woman and a small child inside the car. Adams was one of the three individuals standing by the car.
Upon entering the residence, the officers smelled a strong chemical odor coming from a bottle setting in a skillet. There was also a haze throughout the kitchen area. The living room and kitchen opened into a hallway that led to different rooms. In one of the back rooms was a bedroom the officers suspected was being used for a methamphetamine lab. They found several pieces of what they suspected were paraphernalia being used to manufacture methamphetamine.
Following the initial execution of the search warrant, six suspects were detained. After reading Adams his Miranda rights, Deputy Allan questioned him. Adams made several statements that indicated he was familiar with pieces of paraphernalia being used in his house to manufacture methamphetamine.
Agents for the Kansas Bureau of Investigation (KBI) were called in to process the house as a possible methamphetamine lab. They performed a complete search of the home and processed a large number of items used in the manufacture of methamphetamine. Many of the items were sent for chemical analysis. Methamphetamine was detected in eight different samples. Additionally, chemical analysis detected chemicals used in the manufacture of methamphetamine.
The State charged Adams on six counts: (1) manufacture of methamphetamine, a severity level 1 drug felony, (2) conspiracy to manufacture methamphetamine, a level 1 nonperson felony, (3) possession of lithium metal with the intent to manufacture methamphetamine, a level 2 drug felony, (4) possession of drug paraphernalia to manufacture a controlled substance, a level 4 drug felony, (5) possession of methamphetamine, a level 4 drug felony, and (6) possession of drug paraphernalia to use a controlled substance, a class A nonperson misdemeanor.
On April 25, 2008, Adams filed a motion to suppress the search warrant. In his motion, he argued that while the affidavit stated Deputy Allen had knowledge of how methamphetamine was manufactured, Allen had no personal knowledge of the process of cooking methamphetamine. Adams argued that because Allen lacked personal knowledge, the affidavit was insufficient to enable the magistrate to make a determination that probable cause existed.
During its motions hearing, the trial court considered whether Deputy Allen’s affidavit was valid. Following testimony by Chief Konrade, the trial court ruled that even absent the statements Adams claimed were problematic, the affidavit was still sufficient to support probable cause. The court then went further and found the affidavit contained no material misrepresentations or reckless disregard for the truth and the evidence found in the affidavit was sufficient grounds for a search warrant. The court denied Adams’ motion to quash the warrant and suppress the evidence.
At jury trial, Nelson testified for the State and stated that she and Adams had used methamphetamine at die time of the investigation. Nelson also testified she and Adams had used various forms of paraphernalia to ingest the methamphetamine. Adams did not object to this testimony. Nelson then testified that Adams and Pitcherello had been partners in manufacturing methamphetamine. She also testified to some of the specific processes that they engaged in while manufacturing methamphetamine, including gassing, processing pseudoephedrine pills, and the use of anhydrous ammonia.
Two of the individuals at the residence during the execution of the search warrant, Tina Steinbarger and Charles Townsend, also testified at trial. Steinbarger testified that she, Townsend, and Pitcherello had driven together from Oklahoma to Adams’ residence. Before arriving, she did not possess any methamphetamine. Steinbarger testified that she and Townsend stayed in the vehicle while Pitcherello went into the residence. Townsend and Steinbarger entered the residence about a half hour later when Nelson borrowed their vehicle. Steinbarger testified that once inside, she, Townsend, and Pitcherello all injected methamphetamine.
Townsend testified that he had provided Picherello and Adams with pseudoephedrine pills in exchange for the two manufacturing methamphetamine for him. Townsend testified that while he and Steinbarger waited in the truck outside Adams’ trailer, he saw shadows in a room where Steinbarger had told him Pitcherello and Adams were cooking methamphetamine. Townsend entered the trailer, and the people inside the trailer, including Adams, were using methamphetamine. Townsend testified that after using the methamphetamine, Adams left the room and walked back towards the room where he had seen the shadows. Townsend testified that when Adams entered the room, the ammonia-like odor got much worse and Picherello left the room holding a small, brown container with methamphetamine which he had obtained from the trailer. Townsend identified that small, brown container as one of the containers police had seized in the bust.
The jury returned a verdict of guilty to all charges. The trial court sentenced Adams to a controlling sentence of 148 months for the manufacture of methamphetamine charge, and concurrent terms of 148 months for conspiracy; 51 months for possession of lithium metal; 12 months for possession of drug paraphernalia; 12 months for possession of methamphetamine; and 12 months for possession of drug paraphernalia. The court ordered tírese sentences to be served consecutive to another sentence in Oklahoma.
In Franks v. Delaware, 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), the United States Supreme Court dealt with the issue of whether the underlying truthfulness of an affidavit in support of a search warrant could be attacked. The Supreme Court of Kansas in State v. Jacques, 225 Kan. 38, 43, 587 P.2d 861 (1978), cited Franks:
“ ‘In the present case the Supreme Court of Delaware held, as a matter of first impression for it, that a defendant under no circumstances may so challenge the veracity of a sworn statement used by police to procure a search warrant. We reverse, and we hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, die search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.’ 438 U.S. at 155.”
Adams argues that the standard of review when a trial court reviews the finding in a Franks-style hearing is the same as a review of any other ruling on a motion to suppress. Generally, an appellate court reviews the trial court’s decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, unless it is incredible the trial court’s findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). As in this case, when the material facts in a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
However, when an appellate court reviews the sufficiency of the trial court’s decision to uphold a search warrant affidavit, the standard is more deferential to the trial and magistrate courts.
“[T]he specific, narrower question within the district court’s general determination of suppressiona magistrate judge’s finding of probable cause to issue a search warrantis reviewed under a different standard. [Citations omitted.] As this court held in State v. Hicks, 282 Kan. 599, Syl. ¶ 2, 147 P.3d 1076 (2006), the correct standard of review is instead more deferential to the magistrate judge. The deference is owed by all reviewing courts, district and appellate. More specifically, the standard is whether the evidence provided the magistrate issuing the search warrant with a substantial basis for determining that probable cause existed.” State v. Fisher, 283 Kan. 272, 300, 154 P.3d 455 (2007).
Furthermore, where a reviewing court has performed an evidentiary hearing to determine if the affidavit contains statements which are knowingly or intentionally misleading or made with reckless regard for the truth, findings of fact from the evidentiary hearing are to be upheld if supported by substantial competent evidence. State v. Bowles, 28 Kan. App. 2d 488, Syl. ¶ 3, 18 P.3d 250 (2001).
Generally, a search warrant is presumed valid and the facts contained therein may not be disputed by the party against whom the warrant is directed. Jacques, 225 Kan. at 43. An exception to this rule exists where the party challenging the affidavit presents an offer of proof that the affidavit contains material statements of deliberate falsehood or reckless disregard for the truth. 225 Kan. at 43-44. However, if the trial court can set aside the challenged portions of the affidavit and still find sufficient evidence of probable cause, the court does not need to hold an evidentiary hearing. Franks v. Delaware, 438 U.S. at 171-72. If the defendant meets both requirements, the trial court must conduct an evidentiary hearing related to the evidence seized from the execution of the search warrant.
In this case, the trial court considered the issue of the affidavit’s validity at the prehminary hearing held on June 12, 2008. The court’s final determination was that the parts of the search warrant that Adams challenged under Franks would not have made a difference in whether the affidavit contained sufficient information for probable cause. The court then made an additional finding that the statements Deputy Allen made on the affidavit were not material misrepresentations or made in reckless disregard for the truth.
As a result of the trial court’s findings, it never conducted a Franks-style evidentiary hearing. The standard of review in this case relates to the initial finding that the affidavit supported probable cause. Therefore, the standard of review in this case is the more deferential standard of review.
Adams argues the trial court erred in denying his motion to suppress evidence seized as a result of the execution of the search warrant. He argues that Deputy Allen overstated his knowledge of the process of manufacturing methamphetamine.
Adams points to several places on the affidavit he claims contain falsehoods. First, he points to Deputy Allen’s statement, “I am familiar with how controlled substances are manufactured, obtained, diluted, packaged, distributed, sold and used.” The affidavit also contained statements that Allen knew the method of cooking which involved using red phosphorous. Adams argues this state ment is misleading, citing as evidence Allen’s testimony during preliminary hearings. When asked on cross-examination, Allen stated that he was not familiar with the different cooking methods and he had used a search warrant template that was in his computer system.
In order to analyze whether the trial court erred in denying Adam’s motion to suppress, we need only consider whether the affidavit was sufficient to establish probable cause without the statements to which Adams objects. “Probable cause exists if the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. [Citation omitted.]” State v. Abu-Isba, 235 Kan. 851, 854, 685 P.2d 856 (1984).
The trial court found there was sufficient evidence for probable cause based on the statements made by Nelson which were included in the affidavit. The affidavit contains the following relevant evidence gathered from Nelson:
“[Nelson] stated that the precursors that she had purchased were located at 107 W. Main in Protection, Kansas. Also Mrs. Nelson provided a voluntary written statement about these activities. Mrs. Nelson also stated that George Pitcherello was at her residence at 107 W. Main in Protection and that he was the person responsible for the manufacture of the methamphetamine.”
Based on this evidence, the trial court found that even if Allen’s statements about his training in the manufacture of methamphetamine were misleading, evidence from Nelson provided probable cause that George Pitcherello was manufacturing methamphetamine at her residence.
Adams argues that without Allen’s statements, the rest of the affidavit cannot show probable cause. He argues that without Allen’s statements explaining what precursors were, the statement that Nelson said the precursors were at her home was meaningless. This is not true. During Nelson’s arrest, Chief Konrade asked her specifically about precursors, and she responded that several were at her house in Protection and being used by Pitcherello to manufacture methamphetamine. Even had Deputy Allen not included a statement about what precursors were, Nelson’s admissions create probable cause that someone was manufacturing methamphetamine at her residence.
This is especially relevant given the deferential standard of review we apply to the magistrate court in determining the validity of a search warrant. Given only the information provided by Nelson, the magistrate would clearly have a substantial basis to determine there was probable cause that methamphetamine was being manufactured in Nelson’s residence.
Furthermore, the affidavit did not contain material statements of deliberate falsehood or reckless disregard for the truth. While Deputy Allen testified he was not familiar with the different cooking methods or an expert in the manufacture of methamphetamine, this did not make his statements on the affidavit deliberately false. Allen testified that he had some training in the manufacture of methamphetamine, although the training was not extensive. The fact that he used a template in preparing the search warrant was not enough to constitute a material misrepresentation. The template states only that the officer has familiarity with how controlled substances are manufactured. While the template may have stated more specifics than Allen was fully knowledgeable of, Adams does not show these overstatements were part of a deliberate attempt to mislead or were in reckless disregard for the truth.
Allen stated in his testimony that he was certified in law enforcement and had been trained regarding the investigation of narcotics. The trial court was therefore correct in determining that while the affidavit template contained some defects, they were not material.
The trial court was correct in its denial of the motion to suppress.
We next deal with the issue of whether the trial court gave an improper jury instruction regarding prior bad acts.
An appellate court reviewing a district court’s failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006); see K.S.A. 22-3414(3).
“ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Adams argues the district court committed reversible error by giving an incorrect jury instruction regarding Adams’ past drug use. The instruction to which he objects is the third part of instruction 13, which was patterned on PIK Crim. 3d 67.13-D. The relevant portions of the instruction are as follows:
“When a Defendant is in nonexclusive possession of the premises upon which a controlled substance is found, it cannot be inferred that the Defendant knowingly possessed the controlled substance unless there are other circumstances linking the Defendant to the controlled substance. Factors you may consider in determining whether the Defendant knowingly possessed the controlled substance include:
1. Defendant’s use of controlled substances
Adams argues this instruction is clearly erroneous, citing State v. Boggs, 287 Kan. 298, 317-18, 197 P.2d 441 (2008). In Boggs, the passenger in a car was arrested after a marijuana pipe was found under the passenger seat of the car in which he was riding. Boggs argued he was not in possession of the pipe under the statutory definition of possession. The Supreme Court concluded that because the only issue was which of the two men possessed the pipe, intent, knowledge, or absence of mistake were not disputed issues and, therefore, the introduction of Boggs’ prior convictions did not fall within the exceptions of K.S.A. 60-455. 287 Kan. at 308-09. Specifically, the Boggs court found:
“While a defendant’s use of a controlled substance may be admitted-subject to the requirements of K.S.A. 60-455 — when such evidence is relevant to prove a disputed material fact, the defendant’s use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455. To the extent that PIK Crim. 3d 67.13-D suggests otherwise, the instruction is disapproved.” 287 Kan. at 318.
Boggs is not analogous to this case. First, Boggs objected to the introduction of evidence of his prior drug use. Second, the evidence of drug use introduced in Boggs was evidence of drug use a month prior to his arrest. By contrast, the evidence of Adams’ drug use was use at the time he was committing the crimes for which he was charged. These distinctions malee Boggs inapplicable to Adams’ case. The instruction in this case was correct because it was meant to show that Adams’ contemporaneous use of drugs could help to prove possession. This is distinguishable from Boggs. This is not a question of admissibility of evidence of prior drug use and would not be an issue under K.S.A. 60-455. The instruction was appropriate.
We must also deal with the issue of whether the trial court erred in sentencing Adams to a level 2 felony for possession of lithium metal with the intent to manufacture a controlled substance instead of sentencing him to the lesser penalty provision of possession of drug paraphernalia with intent to manufacture a controlled substance.
This issue involves the interpretation of statutes. “The interpretation of a statute is a question of law over which this court has unlimited review.” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006), rev. denied 287 Kan. 767 (2009).
Adams did not object to this error at sentencing. However, K.S.A. 21-4721(e)(3) gives appellate courts the jurisdiction to review claims that the sentencing court erred in ranking the sentence severity level of a crime. State v. Dalton, 41 Kan. App. 2d 792, 795, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009).
Adams argues that the elements of possession of lithium metal with intent to manufacture a controlled substance — see K.S.A. 2007 Supp. 65-7006(a), (2009 repeal and recodification inapplicable) — are identical to possession of drug paraphernalia with intent to manufacture a controlled substance — see K.S.A. 2007 Supp. 65-4152(a)(3) (2009 repeal and recodification inapplicable). Adams argues the sentence for possession of lithium metal, a level 2 drug felony, is illegal and the trial court should have sentenced him to only the level 4 drug felony for possession of drug paraphernalia with intent to manufacture a controlled substance. ‘Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” State v. Nunn, 244 Kan. 207, 229, 768 P.3d 268 (1989).
Adams bases his argument on State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005). Campbell was convicted of several charges relating to methamphetamine, including possession of ephedrine and possession of drug paraphernalia with the intent to manufacture. Campbell was convicted of possession of ephedrine in violation of K.S.A. 2000 Supp. 65-7006, which provided in part:
“(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product as a precursor to any illegal substance.
“(d) A violation of this section shall be a drug severity level 1 felony.”
Campbell argued he should have been sentenced only under the lesser penalty provision of K.S.A. 2000 Supp. 65-4152, which provided in part: “No person shall . . . possess with intent to use . . . (3) any drug paraphernalia to . . . manufacture [or] compound . . . a controlled substance in violation of the uniform controlled substances act.” 279 Kan. at 4. Drug paraphernalia was defined in K.S.A. 65-4150(c) as: “products and materials of any kind which are used or intended for use in . . . manufacturing ... a controlled substance.” 279 Kan. at 4. The Campbell court found:
“The conduct prohibited by K.S.A. 65-7006(a) is a defendant’s act of knowingly possessing ephedrine or pseudoephedrine with the intent to use the product to manufacture a controlled substance. The conduct prohibited by K.S.A. 65-4152(a)(3) is a defendant’s act of knowingly possessing drug paraphernalia with the intent to use it to manufacture a controlled substance. The definition of drug paraphernalia in K.S.A. 65-4150(c) includes ‘products and materials of any land’ which are intended for use in manufacturing a controlled substance. Thus, the conduct prohibited by K.S.A. 65-4152(a)(3) may include a defendant’s act of knowingly possessing a product with the intent to use it to manufacture a controlled substance. Ephedrine and pseudoephedrine are products used in the manufacture of a controlled substance, methamphetamine... The elements were the same whether Campbell had been charged under the ephedrine statute or the drug paraphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).” 279 Kan. at 16-17.
The decision in Campbell was an approval of this court’s decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). The Frazier court found that because the list of items found in K.S.A. 65-4150(c) as to what was classified as drug paraphernalia was not an all-inclusive list containing both the terms “products” and “materials,” both ephedrine and pseudoephedrine, which are products in the manufacture of methamphetamine, would be included under both statutes. 30 Kan. App. 2d at 404-05. As a result, the Frazier court found the defendant could only be charged with the lesser sentence of possession of paraphernalia with intent to manufacture. 30 Kan. App. 2d at 405.
The relevant holdings in both Campbell and Frazier have been superseded by statute. Dalton, 41 Kan. App. 2d at 794-95. Since Campbell, the legislature has amended K.S.A. 65-4150(c) to remove the word “products.” L. 2006, ch. 194, sec. 33. The Dalton court found that the clear legislative intent in amending the statute was to exclude those “products” listed in K.S.A. 2006 Supp. 65-7006(a). 41 Kan. App. 2d at 795.
The laws in effect at the time of Adams’ crime contain the following relevant provisions. First, K.S.A. 2007 Supp. 65-4150(c) defines drug paraphernalia: “ ‘Drug Paraphernalia’ means all equipment and materials of any kind which are used, or primarily intended or designed for use in . .. manufacturing... a controlled substance and in violation of the uniform controlled substances act.” K.S.A. 2007 Supp. 65-4152 defines the crime of possession of drug paraphernalia with the intent to manufacture a controlled substance, “(a) No person shall use or possess with intent to use ... (3) any drug paraphernalia to . . . manufacture ... a controlled substance in violation of the uniform controlled substances act.” And the statute defines the penalty as: “(c) Violation of subsection(a)(3), other than as described in paragraph (d), or subsection (a)(4) is a drug severity level 4 felony.” K.S.A. 2007 Supp. 65-4152(c).
K.S.A. 2007 Supp. 65-7006(a) provides: “It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorus, [or] hthium metal. . . with intent to use the product to manufacture a controlled substance.”
Adams argues the phrase “materials of any kind” in 65-4150(c) still includes hthium metal even though the word “product” has been removed. However, this case is nearly identical to the case in Dalton. In Dalton, the question was whether red phosphorous was both drag paraphernalia and a prohibited substance, thus producing identical criminal elements under 65-4152(a)(3) and 65-7006(a). 41 Kan. App. 2d at 793-94. The Dalton court found that the removal of the word “product” was sufficient to make the criminal elements of the two statutes distinct. 41 Kan. App. 2d at 797-98. The words Hthium and red phosphorous are literally next to one another in the statute. K.S.A. 2007 Supp. 65-7006(a). There is no reason that this court should now treat die two differently.
The Dalton court also explicitly rejected the argument that the “material of any kind” in the definition of drag paraphernalia caused the elements to be identical in the context of aggravating factors under K.S.A. 21-4717(a)(l)(D):
“Even though possession of red phosphorus can be used as an aggravating factor to support a sentencing departure, it would be incorrect to rely upon K.S.A. 21-4717(a)(l)(D)’s description of manufacturing materials to define drug paraphernalia, i.e. ‘material of any kind’ in K.S.A. 2007 Supp. 65-4150(c), as including ‘regulated chemicals,’ such as red phosphorus. If the legislature wished to define material in that way, it could have done so.” 41 Kan. App. 2d at 798.
The sentence given to Adams was correct.
Adams finally argues the facts of his criminal history for prior convictions were not proved to a jury beyond a reasonable doubt. He contends this violates the United States Supreme Court ruling that any fact which increases the penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). The Kansas Supreme Court has previously decided this issue in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). There is no indication that the Kansas Supreme Court intends to abandon this position. See State v. Fischer, 288 Kan. 470, 476, 203 P.3d 1269 (2009) (reaffirming Ivory).
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment for one thousand dollars rendered in favor of the plaintiff under the workmen’s compensation act. The mother of plaintiff lost her life at the age of sixty-two. For several years she had worked at times in the defendant’s packing house, having charge of the girls’ dressing room, and the evidence showed that she had contributed to the plaintiff about two dollars and seventy-five cents a week on the average, being about two dollars a week when he had work, and about three dollars a week when he was without employment. The jury found that during the -two years immediately preceding her death the employee earned $430. One of the amounts testified to as having been her average weekly earnings was $9.66. Other and different sums, including $3.98, were named. When his mother died the plaintiff was twenty-six years old and living not with her, but married and living with his wife and two children. Some years before this he had been earning $60 a month, but having become afflicted with a hernia, he had since that worked desultorily, earning at divers occupations various sums ranging from two dollars a day at one task, ten to twelve and a half cents a roll for hanging paper, fifteen to seventeen and a half cents an hour for singeing hams, and seventeen and a half to twenty cents an hour for running a press.
Among the points presented by the appeal the most prominent are those touching the plaintiff’s right to recover in view of his age, his headship of a family and his ability to earn wages. The statute defines dependents as—
“Such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. And ‘members of a family’ for the purpose of this act means only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents, or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children include step-children, and grandchildren include step-grandchildren, and brothers and sisters include step-brothers and step-sisters, and children and parents include that relation by legal adoption.” (Laws 1913, ch. 216, § 4.)
By the amendment of the act of 1913, the following sentence was placed in the body of section 11 of chapter 218 of the Laws of 1911:
“Marriage of any dependent shall terminate all compensation of such dependent, but shall not affect compensation allowed other dependents; when any minor dependent, not physically or mentally incapable of wage earning shall become eighteen years of age, such compensation shall cease.” (Laws 1913, ch. 216, § 6.)
In the workmen’s compensation act of California is found this language:
“The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: . . .
“(3) A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning) upon the parent with whom he or they are living at the time of the death of such parent or for whose maintenance such parent was legally liable at the time of his death, there being no surviving dependent parent.” (Stat. and Amendments to the Codes, Cal. 1913, eh. 176, § 19, 2 Bradbury’s Workman’s Compensation, 2d ed., p. 1084.)
Language substantially identical or quite similar is found in the compensation acts of the following states, the ages being variously fixed at sixteen and eighteen years:
Connecticut Public Acts, 1913, ch. 138, § 10; Iowa, Laws 1913, ch. 147, §17; Michigan Public Acts, 1912, First Extra Session, No. 10, part 2, §6; Minnesota, Laws 1913, ch, 467, §14; Nebraska, Laws 1913, ch. 189, §24; Nevada, Statutes of 1913, ch. Ill, §26; Ohio, Laws 1913, §§1465-° 82, §35, subdiv. 4 (B), p. 87; Oregon, Gen. Laws 1913, ch. 112, §§ 14-21; Rhode Island Public Laws, 1911-1912, ch. 831, art. 2, § 7; Washington, Laws 1911, ch. 74, § 3; West Virginia, Acts of 1913, ch. 10, § 33; Wisconsin Statutes, 1911, §§2394-10, subdiv. 3 (c).
The Minnesota statute provides that in case of the remarriage of a widow without children she shall receive a lump-sum settlement equal to one-half of the amount of compensation remaining unpaid. If she have dependent children the unpaid balance which would otherwise become due her shall be paid to such children. (Minn. Laws 1913, ch. 467, § 14, subdiv. 9.) It is provided in subdivision C of section 34 that a dependent child or orphan shall be considered to mean, an unmarried child under the age of eighteen years or one over that age who is physically or mentally incapacitated from earning.
The Nevada act (§ 30) is to the effect that upon the marriage of a widow she shall receive “once and for all” a certain lump-sum allowance, provided the allowance shall be m^de by the commission for the support of minor children under the age of sixteen years.
The New Jersey act (Laws of, N. J. 1913, ch. 174, § 2, subdiv* 12), provides that should the widow of a deceased employee remarry during the period covered by the weekly payments, her right to compensation under this section shall cease.
The New York statute (Laws of N. Y. 1914, ch. 41, art. 2, § 16,.subdiv. 2) provides that if there be a surviving wife (or dependent husband) and no child of the deceased under the age of eighteen years, a certain sum shall go to the surviving wife during widowhood (or dependent widowerhood), with two' years’ compensation in one sum upon remarriage, and an additional amount in case there be surviving child or children of the deceased under the age of eighteen years; that in case of subsequent death of such surviving wife or dependent husband, any surviving child of the deceased employee under eighteen years of age shall have his compensation increased to a certain named amount, payable until he shall reach the age of eighteen years. The Washington act has a somewhat similar provision in its compensation schedule, found in section 5 (Wash. Laws 1913, ch. 148, § 5).
This legislation indicates a somewhat common purpose to shut off compensation to minor dependents when they reach the age of sixteen or eighteen years and are capable of earning wages, and to regard marriage as a sufficient cause for withholding further compensation from a dependent widow or minor child. It is clear that by the amendment of 1913 the legislature intended that a dependent minor not physically or mentally incapable of wage earning shall receive no compensation after becoming eighteen years of age, whether married or single. While the jury in answer to the question, “Do you find that the plaintiff, Albert W. Taylor, has earned wages since the time of his rupture ?” answered “No evidence,” such an answer was in direct conflict with the undisputed testimony of the plaintiff himself as already indicated. Although the statute makes provision for partial dependency, the amendment in question seems to make no distinction between total and partial incapability, and certainly one who for years has been able to make the sums testified to by the plaintiff can not be said to be “physically or mentally incapable of wage earning.” Indeed, it does not appear that even since receiving his injury he has not been practically able to support his family by his earnings. As this would preclude his recovery if a minor, it would violate the plain spirit, if not the letter of the statute, to hold him entitled to compensation merely because already of full age. So absurd and unnatural a result can not be deemed to have been intended by the lawmakers.
It is argued that his marriage could not terminate the compensation, as it preceded not only the death of the employee, but the enactment of the statute, and with strict logic it is suggested that “a thing can not be terminated until it has some, existence. Compensation can not be terminated until the right to the compensation accrues.” But lawmakers are frequently more practical than logical. Counsel say the law would become* an absurdity were it so construed as to prevent an aged father and mother dependent upon an only son for support from receiving compensation in case of the death of that son. But we do not thus construe it.
It may well have been within the legislative contemplation that a dependent daughter would upon marriage cease to be under the necessity of receiving aid, but would presumptively receive support from her husband, and that a dependent son who should see fit to take unto himself a wife and become the head of an independent family would be able to support a wife, and therefore no longer dependent upon the benefactions of the compensation act. But it could not well have been the purpose to extend the benefactions of the act to adult married wage earners like the plaintiff.
To a certain extent this statute, although for compensation only, takes the place of the statute authorizing a recovery of damages for death by wrongful act (Civ. Code, §§ 419, 420), substantially a reenactment of Lord Campbell’s Act. This provides that the recovery must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. It is stated in 2 M. A. L. 479 that—
“The determination of the question as to who are ‘dependents’ of a deceased workman seems to rest on substantially the same principles as those involved in ascertaining who are the beneficiaries under ‘Lord Campbell’s Act.’ ”
The requirement that the dependents be members of the workman’s family, and the declaration that members of a family mean primarily only widow or husband and children, naturally suggest the ideas of a common rooftree as well as a common lineage. But the definitions of the word family as used in statutes relating to divers subj ects and as found in the books are so different that authorities may be found for almost any conceivable desired signification.
Without attempting to decide what the word as used in the compensation act does mean, we hold that the family of the mother does not mean and include an adult married son living with his wife and children separate and apart from his mother.
For the two reasons that the plaintiff was not, within the meaning of the compensation act, a member of his mother's family, and that he was not mentally or physically incapacitated from earning wages, he is not entitled to recover. This conclusion renders needless the decision of the other questions presented.
The judgment is reversed, and the cause remanded with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Edna R. W. Larned to recover an undivided half of lands situated in Atchison county and her share of the rents and profits accruing since the death of her husband, William Z. Larned, who died on March 30, 1911, in the city of Summit, N. J., which was his place of residence. The plaintiff is also a resident of that place and has never resided in Kansas. The defendants, William A. Larned, Edward P. Larned and Elizabeth MacCarthy, are the children of William Z. Larned by a former wife and, together with the plaintiff, are his only heirs at law. William Z. Larned left a will which he had executed in his own writing on January' 11, 1911, and which was duly admitted to probate in Union county, New Jersey, an authenticated copy of the same being afterwabd recorded in Atchison county, Kansas. His three children, defendants herein, were named as executors of the will. William Z. Larned had been a practicing lawyer in the city of New York and at the time of his death was possessed of personal property amounting to $200,000, more than enough to pay all debts, expenses and specific legacies, and real estate of the aggregate value of $339,000, situated in New York, New Jersey, Montana, Minnesota and Kansas. The Kansas land was valued at $51,000. The provisions in the will for the plaintiff were '(1) a devise of a plot of land in the city of Summit, N. J., conceded to be worth about $5000; (2) a bequest of $5000 in cash; (3) one hundred volumes from the decedent’s library; (4) a clause reading: “I confirm to her, her right to dower in all the real estate of which I shall die seized”; and (5) a clause confirming her right to certain trust funds previously given, yielding an. income of $1500 per annum. The case was tried upon an agreed statement of facts, and among others, the law of New Jersey with reference to the widow’s dower right was set forth. It also contained a provision of the New Jersey law that where a husband devises land to his wife without expressing whether or not the devise is in lieu or bar of dower, the widow shall not be entitled to dower in any lands devised by the husband unless she shall express in writing her dissent to receive the lands devised to her in satisfaction and bar of her right of dower in other lands devised by the will, and that the dissent shall be filed within six months after the probate of the will, either in her own county or that in which the land is situated, and in that case she shall be considered as renouncing the benefit of the- devise to her. It was conceded that the plaintiff had never relinquished by deed her right of dower in the New Jersey land and that she did not file any dissent to receive the lands devised to her. It was also conceded that the plaintiff had not accepted the legacy of $5000, nor the bequest of the books, nor the specific devise of the New Jersey land.
It appears that shortly after her husband’s death the plain tiff in a letter to her own attorney stated in effect that she believed her husband supposed that the widow’s share was the same in Kansas as in New Jersey and that she was satisfied to take what he intended she should have, and, further, she thought the executors ought to give her the specific bequest and the third interest in the other real estate. She expressed her belief that if her husband had known that she was to have a half of the Kansas land he would not have left the legacy to tier. The contents of this letter were brought to the attention ■of the defendants shortly after it was written. The court gave judgment for the plaintiff, deciding that she was entitled to an undivided half of the Kansas land, and in his conclusions of law stated that the plaintiff had not made any election to take under the law or under the will and that she was not required to make such an election.
The defendants appeal and. contend that the plaintiff by her acts had accepted the terms of the will and thus cut off dower, or her interest in other lands devised, and that if the testator intended that she should have any right in the Kansas land it could be no more than a life interest in a third of it, as ■provided in the New Jersey law of dower. The descent, alienation or transfer of real property in Kansas is exclusively governed by the laws of Kansas. Under the Kansas statute Lamed could not, without his wife’s consent, devise to other than his wife more than a half of his Kansas property, and an attempt to will to others more than a half would have been inoperative as to her. (Gen. Stat. 1909, § 9811; Comstock v. Adams, 23 Kan. 513, 33 Am. Rep. 191; Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534; Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074.) The plaintiff is therefore entitled to a half of the property involved in this proceeding, unless she has consented to take the less quantity or a share other than that given to her by the local law.
It is contended that she should be deemed to have elected to take under the will, because of her acceptance of benefits provided by the will, as well as by the bringing of this action. The testator and his wife resided in New Jersey when the will' was made and when he died. The general rule is that in interpreting a will the courts will look to the law of the testator’s ■domicile for the purpose of ascertaining his intention unless it appears that he had the law of another jurisdiction in mind, or unless the law of the domicile will contravene the local law. (Keith v. Eaton, 58 Kan. 732, 51 Pac. 271; 40 Cyc. 1382.) A provision of the New Jersey law, as we have seen, is that if land be devised to a wife without expressing whether or not it is intended to be in lieu or bar of dower she shall not be entitled to dower in any of the devised lands unless within six months after the probate of the will she shall in writing express her dissent to receiving the lands devised. (2 Comp. Stat. N. J. 1911, p. 2048.) The will in question does not come within that provision, since it can not be said that real property was devised by the testator without expressing whether or not it was intended to be in lieu or bar of dower. The recitals of the will make it reasonably clear that the New Jersey land was not devised in lieu or bar of dower. After devising the plot of ground in New Jersey to his wife, the testator says: “I confirm to her, her right to dower in all the real estate of which I shall die seized.” Manifestly it was his intention to give his wife the New Jersey land, which was only worth $5000, in addition to dower or widow’s share. Among the agreed facts it is stated that the plaintiff has never accepted the specific devise of the New Jersey land, nor the legacy of $5000 mentioned in the will, nor the bequest of a hundred volumes of books, which it is agreed do not exceed the value of $250. Her inaction in this respect does not indicate consent or election, and she was not required to make an election under the law. In fact there is nothing in the will inconsistent with the claim of the plaintiff that she is entitled to a half interest in the Kansas land.
Instead of the ordinary words of devise used in outright gifts, the testator recognized that plaintiff was entitled to the wife’s share in the lands owned by him, and so he confirms her right instead of giving or transferring one to her. He was a practical lawyer, with investments in several of the states, and it is fair to assume that he knew that the devolution of land on the death of the owner was governed solely by the laws of the state where the land was situated. The laws of the several states in which his lands were situated differed materially, and this undoubtedly was well known to him. Instead, therefore, of undertaking to devise and bequeath a par ticular share of the land lying in the states of Kansas, New York, New Jersey, Minnesota and Montana, he proceeded on the theory that the laws of each state gave his wife a certain share which he denominated dower, and so he confirmed or ratified the rights which such laws gave. A definition of the word “confirm” is, to make firmer, to strengthen, sanction or ratify. The confirmation of a title imports an existing title. In order to confirm an estate there must be a previous estate on which it is to operate. (Biddle Boggs v. Merced Mining Co., 14 Cal. 279; Jackson v. Root, 18 Johns. [N. Y.] 60; 2 Words & Phrases, p. 1425.)
In The People v. Law, 34 Barb. (N. Y.) 494, 22 How. Prac. 109, it was said that “ ‘confirmation is the approbation or consent to an estate already created, which, as far as it is in the confirming power, makes it good and valid.’ ” (p. 511. See, also, Fauntleroy’s Heirs v. Dunn, 42 Ky. 594; Langdeau v. Hanes, 88 U. S. 521, 22 L. Ed. 606.)
Evidently the testator intended to schedule all of his property in the will and to have it show that a complete disposition of the entire estate had been made. Under the law, whether he .willed it or not, she had a right to a use for life in a third of the lands in New York, New Jersey and Montana, to a third in fee of the land in Minnesota, and to a fee in a half of the land in Kansas.' He included all his lands in the will giving that which he could legally give and ratifying and making firmer so far as he could that which the law gave to his wife. It is argued that dower is a technical term and is presumed to have been used by the testator in a technical sense. Further it is insisted that the meaning given to the term in New Jersey, the domicile of the testator, is probably the one that was in his mind and that therefore we may properly look to the law of that state to ascertain his intention. Keith v. Eaton, supra, is cited as authority to sustain this view, but while that case sanctions a reference to the law of the domicile to ascertain the sense in which the words of a will are used, that interpretation can not be applied when it will contravene the law of the state where the will is offered for record and probate. The law of the domicile and the effect given to its. provisions by the courts of that jurisdiction may be examined to aid in finding the intention of the testator, but when it comes to the dis position of real property the law of the place where the property is situated must control. To apply the New Jersey rule would contravene the law of Kansas and under the rule of Keith v. Eaton, 58 Kan. 732, 51 Pac. 271, that application can not be made. In many cases the word “dower” is used in its popular rather than its technical sense. While the estate of dower was abolished many years ago, this term is still frequently used to designate the interest in the estate of the husband which the law gives to the wife. An apt single word has not been coined to designate the interest which the widow, takes in the estate of the deceased husband, and lawyers as well as laymen often speak of that interest as “dower.” • It is so used by courts of other states as well as our own.1 The supreme court of Iowa in speaking of the interest of a widow said:
“While the statute abolishes the estate of dower, and the interest in the lands of the deceased husband given by law to the widow is designated by (other terms used in the statute, the profession continues to use the word ‘dower’ to designate such interest, doubtless finding it convenient in describing the estate of the wife in the lands of her deceased husband. No confusion or misunderstanding arises from the use of the word, the profession understanding its meaning in accord with the estate prescribed by the statute.” (Daugherty v. Daugherty et al., 69 Iowa, 677, 678, 29 N. W. 778.)
See, also, Mock v. Watson, 41 Iowa, 241; Estate of John Barry, deceased, 13 Phila. [Po.] 310; The State of Missouri v. Evers et al., 49 Mo. 542; O’Brien v. Ash, 169 Mo. 283, 69 S. W. 8; Durbin et al. v. Redman et al., 140 Ind. 694, 40 N. E. 133.)
As the plaintiff would have taken the same interest under the law as under the will, her acceptance of the income of the lands in the several states can not be regarded as an election to take under the will rather than under the law. Neither can the bringing of the action to recover her share in the Kansas land be regarded as an election to take under the will. Although she stated at length the extent of the estate, the execution and contents of the will, and the laws of the respective states where the property was situate, she also alleged that under the law as well as under the will she was entitled to an undivided half of the Kansas land. Apart from the fact that the plaintiff’s claim was not inconsistent with the will, it has been held that if a devisee in his pleading claims both under and against the will, it does not amount to an election and a waiver of his right to make it. (Bebout v. Quick, 81 Ohio St. 196, 90 N. E. 162. See, also, Cobb v. Macfarland, 87 Neb. 408, 127 N. W. 377; Lohmeyer v. Durbin, 213 Ill. 498, 72 N. E. 1118.) Nor does the letter to her attorney expressing her opinion as to the intention of her husband when he made the will, or of the law and her right under it, constitute an election. The- acts relied on as constituting an election must be clear, positive and unequivocal, evincing an intention to elect and it must be done with full information of all the essential facts and circumstances as well as of her legal rights. (Sill v. Sill, 31 Kan. 248; 1 Pac. 556; James v. Dunstan, 38 Kan. 289, 16 Pac. 459, 5 Am. St. Rep. 741; Reville v. Dubach, 60 Kan. 572, 57 Pac. 522; Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608.) A mere intention to elect or a statement that one was contemplating an election would not constitute an election. Statements of the widow to third persons of a purpose to take under the will do not conclude her, nor will loose statements of such purpose to interested parties operate as an election. (English v. Ex’rs of English, 3 N. J. Eq. 504, 29 Am. Dec. 730; Wilson v. Thornbury, 10 Ch. App. Cas. 239.) The letter of the plaintiff herein was not made to be filed or used in court. It was not made to the executors nor to any one who had an interest in the estate, but was made in a confidential way to her , own attorney. If an election were material in determining this controversy, the letter could not be treated as an election nor would it estop her to claim the share in the Kansas real estate to which the widow is entitled under the statute.
Under the testimony the court was justified in holding that the plaintiff was the owner of an undivided half of the Kansas real estate and its judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff recovered judgment against the defendants for money loaned. The defendants appeal.
On October 3, 1913, C. G. Ricker, president of the Yates Center National Bank, the defendant bank, went to the Northrup National Bank of Iola, the plaintiff bank, for the purpose of obtaining money or credit. This resulted in an agreement by which the Yates Center National Bank was to furnish to the Northrup National Bank notes held by the Yates Center National Bank. The Northrup National Bank was to give credit to the Yates Center National Bank for the face amount of the notes. The credit given was to be subject to check, except that at least twenty-five per cent of the credit was to remain on deposit with the Northrup National Bank. A credit of $12,000 was thus obtained.
We are met at the outset with a dispute as to the effect of this transaction. The plaintiff contends that the notes involved in the credit were deposited as collateral security for the loan, and belonged to the Yates Center National Bank, subject to its direction and control; and were not the property of the Northrup National Bank except as security for the amount loaned. The defendant contends that to obtain this credit the Yates Center National Bank endorsed without recourse a number of promissory notes to the Northrup National Bank; that the notes, having been endorsed and having been delivered with the endorsements on them, showed a complete and fully executed contract of sale. The case was tried without a jury. No special findings were made.
Pursuant to the agreement, several notes — the face value of which formed the basis of the credit account — were delivered to the Northrup National Bank by the Yates Center National Bank, and endorsed in blank by C. G. Ricker personally and by the Yates Center National Bank without recourse. That bank was given credit on the books of the Northrup National Bank for $12,000. The agreement provided that any of the notes delivered to the Northrup National Bank and not found satisfactory as a basis for the credit given could be charged back against the account at the option of the Northrup National Bank. No time was fixed nor limitation made as to when or for what reason this option should be exercised. The agreement further provided that the Northrup National Bank was to receive six per cent per annum on the total of the credit account as evidenced by the aggregate face value of the notes held by it, and was to pay to the Yates Center National Bank two per cent per annum on the daily balance of the account. The agreement was carried out by both banks until about December 20, 1913, although the twenty-five per cent reserve was not always maintained. The reserve was restored when the attention of the Yates Center National Bank was directed thereto.
December 2, 1913, the national bank examiner for that district closed the doors of the Yates Center National Bank and a receiver therefor was appointed three days later.
Between the time the agreement was entered into and the appointment of the receiver, some of the notes were paid and were replaced by others; and some were returned by the Northrup National Bank to the Yates Center National Bank, either upon the former’s initiative or the latter’s request. A note of W. G. Toedman et al. for $848, due December 10, 1913, not being taken up or paid when due, was charged to the credit account and forwarded to the Yates Center National Bank on December 20,1913. The receiver refused to accept such return on the ground that he was not bound by the agreement. February 25, 1914, the Northrup National Bank returned a note signed by Frank Harder for $500, and one signed by Emile Fugier et al. for $1500, charging these amounts to the credit account. These notes the receiver refused to accept.
The Northrup National Bank thereupon presented to and filed with the receiver its verified claim, and demanded payment, for the sum of $1083.76, being the balance due it after applying funds on deposit with it. A statement of the account was made a part of the demand. The receiver refused to list the claim as presented, and demanded that the Northrup National Bank pay over to him in cash the balance that would have been in the credit account if the Toedman, Harder and Fugier notes had not been charged off. This was refused and this action was commenced.
Who owned these notes? The defendants contend that the Northrup National Bank did. The trial court, by its judgment, found that the Yates Center National Bank owned them, and that the Northrup National Bank held them as collateral security for the credit that had been given to the Yates Center National Bank. Ordinarily, the construction of a contract is a question of law for the court, and a reviewing court can construe a contract as well as the trial court. In the present case, however, it is not clear what the oral contract was. 'The correspondence introduced in evidence to show the contract referred to the conversation by which the contract was made between the officers of the banks, recited a part of the understanding of the parties, but did not specify the terms of the contract. This contract was explained somewhat by the subsequent conduct of the parties. The situation is such that the general finding of the trial court as to what the contract was, and the construction placed thereon by that court, are binding on this court. If the trial court was in error in its construction of the contract, that error does not appear in either the transcript or the abstract.
The defendants contend that as the notes were endorsed in writing, evidence of the terms of the contract by which they were placed in the plaintiff bank could not be introduced. 'This is based on the ground that oral evidence can not be introduced to add to, contradict, vary, or alter the terms of a written contract. The evidence to show the contract by.which the notes were placed in the plaintiff bank was not subject.to this objection. It is true that the endorsement of the notes was a contract by itself, but it was a part of the larger, or whole, con-, tract between the banks. Under the terms of that contract, the notes were to be endorsed by the Yates Center National Bank and C. G. Ricker, its president, to the Northrup National Bank. Evidence to show the whole contract did not in any way contradict, add to, vary, or alter the terms of the written contract contained in the endorsement. Negotiable promissory notes are endorsed for various purposes; sometimes for the purpose of transferring all title, sometimes as collateral security for other obligations, and sometimes for collection, or other purposes. The purpose for which the notes are endorsed rarely, if ever, appears in the endorsement. It is not necessary that the purpose shall so appear. The evidence objected to was competent.
The defendants contend that the plaintiff’s delay in returning the notes was unreasonable, and argues that in the present case this has become a question of law. It was two months and twenty days from the time of the appointment of the receiver until the plaintiff returned the last of the three notes in controversy. That was not a long time. It was short. That delay can not be said, as a matter of law, to be unreasonable. Whether or not that delay was unreasonable was a question of fact to be determined by the trial court. It was determined in favor of the plaintiff so far as it was necessary to determine the question.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was brought to foreclose a mortgage on real estate. I. O. Pickering was made a defendant, the petition alleging that he claimed some title or interest in the property inferior to plaintiff’s lien. His answer alleged that he was the owner in fee simple and in possession of the real estate, and denied the other allegations of the petition. The plaintiff recovered judgment, from which Pickering appeals.
The first contention is that the evidence fails to sustain the judgment. The appellee is challenged to point out the slightest evidence of title in the mortgagors, or what was the source of appellant’s title. An attempt is made to meet the challenge by a counter-abstract, in which appears a copy of an affidavit of appellee which alleges that an abstract of title was offered in evidence and that Mr. Pickering stated that he raised no question about the title. The counter-abstract also recites what purports to be the substance of the abstract of title, showing the various conveyances of the property before and after the mortgage was executed. It also sets forth a purported copy of the warranty deed under which it is claimed the appellant acquired title. It is not claimed that any of these matters appear in the transcript of the evidence, and for that reason they can not be considered for any purpose. The challenge made by the appellant must be sustained. (Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550.)
In Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799, and in Gibson v. Rea, 92 Kan. 262, 140 Pac. 893, it was held that in order to sustain a judgment for the foreclosure of a mortgage there must be proof of title in the mortgagors.
The court is of the opinion, however, that inasmuch as appellant makes no claim that the mortgagors were not in fact the holders of the legal title, is not denying that he derived title through them, and makes no claim that he has the least defense to the action, he has failed to show error which authorizes a reversal. (Bank v. Brecheisen, ante, p. 193, 157 Pac. 259.) To reverse the judgment and order a new trial merely to enable the appellant to introduce records from the office of the register of deeds, the existence and effect of which are not denied, would serve no purpose except to delay the proceedings.
On the same day the judgment of foreclosure was rendered the court, over appellant’s objections, appointed a receiver to take charge of the property and collect the rents. There was conflicting evidence as to the value of the property, but there was some evidence to support a finding that the fair market value did not exceed the amount of the interest, taxes, judgment and costs.
It is contended that the court erred in appointing a receiver in advance of the sale; that the only authority to appoint a receiver in foreclosure cases is after the sale, under section 498 of the civil code, which reads:
“The holder of the certificate of purchase shall be entitled to prevent any waste or destruction of the premises purchased, and for that purpose the court, on proper showing, may issue an injunction; or, when required to protect said premises against waste, appoint and place in charge thereof a receiver, who shall hold said premises until such time as the purchaser is entitled to a deed, and shall be entitled to rent, control and manage the same; but the income during said time, except what is necessary to keep up repairs and prevent waste, shall go to the owner or defendant in execution, or the owner of its legal title.”
Section 266 of the code authorizes the appointment of a receiver in an action of foreclosure where it appears that the property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt. There is room for the operation of both statutes. Section 498 is a part of an act revising the procedure in the sale of real estate on execution or other judicial process (Laws 1893, ch. 109), and does not repeal the general provisions authorizing the appointment of receivers under section 266 of the code. (Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073.)
After the sale of the property and its purchase by the appellee, the appellant filed a motion to discharge the receiver, and he now complains that the court erred in denying the motion. A receiver appointed before sale should be discharged when the sale is confirmed, unless there is, under section 498 of the code, a showing of a necessity for a receiver in order to prevent waste. The error of the court in denying the motion to discharge the receiver after the sale will not justify a reversal, but the judgment will be modified by directing that the costs and expenses of the receivership from the time of the sale be charged to the- plaintiff, and that defendant Pickering be given the income of the property from the time of the sale to the expiration of the period of redemption. The costs of the appeal will be divided.
The judgment is modified. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued on a promissory note, the execution of which was denied under oath. The trial resulted in a verdict for the defendant, and upon a showing of newly discovered evidence a new trial was granted. Afterwards this order was set aside, and from this ruling the plaintiff appeals.
The motion for new trial was filed March 18, 1914, in the district court of Butler county, and after certain continuances was by agreement of parties heard before the judge at his chambers in Elk county, and there, on May 6, sustained. The March term of the Butler county court had then adjourned. The motion to vacate the order granting the new trial was filed in the district court of Butler county September 29, and was heard on the last day of October, 1914, an adjourned day of the June term, from which it appears that the motion to set aside was neither filed nor heard during the term at which the original judgment was rendered nor at any term during which the order granting a new trial was made, and it is claimed that therefore the court was without jurisdiction to entertain or grant such motion.
While error is assigned on the granting of the motion for new trial in the first place, we find nothing improper therein.
The order complained of was made upon the defendant’s motion, setting up false and fraudulent testimony, lack of diligence, deception practiced upon the judge and assault by one of plaintiff’s witnesses on one of the defendant’s attorneys at El Paso, Tex., while there for the purpose of taking testimony; and the sole question for determination is whether or not jurisdiction remained to make the ruling complained of. In answer to the claim that the jurisdiction so to do expired with the term at which the motion for new trial was granted the defendant suggests that under the present civil code (§ 306) a motion for new trial may be heard and decided by the judge at chambers. The next regular term after this chambers order in vacation was the June term, and then it was that this order was set aside. It is argued that the motion practically took the place of the verified pleading requisite for setting aside a judgment, and that the appearance of the opposite-party eliminated the necessity for the required notice.
It is suggested that the order complained of was not, under section 566 of the civil code, a final order which in effect determined the action and prevented the judgment. But as the defendant had already recovered a judgment the order set ting aside the granting of a new trial effectually prevented the plaintiff from obtaining a judgment.
It is said that granting a new trial is an interlocutory order, and so it is.; but setting aside such an order may not be interlocutory, and section 565 expresly authorizes the reversal of an order that grants or refuses a new trial, and this was not changed by the amendment of 1915 (Laws,1915, ch. 187).
The motion for new trial was on nine grounds, the eighth being newly discovered evidence, and on this ground alone was a new trial granted. On the motion to set this order aside the trial court was manifestly convinced that it had been deceived as to this one ground, and that the conduct of certain witnesses and agents of the plaintiff had been such as to merit condemnation and destroy the right to a new trial. Kingman v. Chubb, 8 Kan. App. 167, 55 Pac. 474, is relied on and was approved by this court. (Mayberry v. Railway Co., post, p. 251, 64 Pac. 989.) While it is true that the syllabus states that when a motion for new trial has been heard and decided the court has no jurisdiction to reconsider at a subsequent term, the facts were that the motion was denied and at a subsequent term reconsidered and granted. Here we have the opposite. Under the changed code the motion granting the new trial was properly acted upon at chambers, and from that time forward the case remaintd on the docket, ready for trial at the proper time, and the court had jurisdiction to make such orders as were proper. Had there been an application to amend the pleadings no question could well arise as to the jurisdiction to grant such application, whether at the next succeeding term or later.
It is not necessary to decide whether the change in the code permitting motions for new trial to be acted upon at chambers has any effect upon the question whether such action must be in term time or not, neither is it necessary to determine whether the order in this case was one involving an irregularity under subdivision 3 of section 596 of the civil code, or whether as claimed by the defendant it was one procured by fraud. The case being rightly on the docket, the vacation of the.order granting a new trial, while appealable if erroneous, was not void for want of jurisdiction.
The order is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The only question in this case is whether a surety is liable on an appeal bond when his principals have been relieved from the payment of the judgment appealed from by their discharge in bankruptcy.
The plaintiff obtained a judgment in the city court of Topeka against Disbrow & Ready, a business partnership. The partners appealed, and the defendant signed their statutory bond as surety. Some months later Disbrow & Ready were adjudged bankrupts and in time received their discharge. Thereafter their appealed case was dismissed for want of prosecution, and the entry, “Discharged by virtue of the Bankrupt Law,” was entered in the docket of the city court in the case of Failor v. Disbrow & Ready. (Gen. Stat. 1909, §§ 457-459.) •
The plaintiff then filed this action against Wehe, the surety, on the appeal bond. Wehe answered, pleading all the facts. A demurrer to the answer was sustained, and that brings the case here.
So far as the federal law is concerned, the question presents no difficulty. The federal statute reads:
“The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.” (Act of July 1, 1898, 30 U. S. Stat. at Large, ch. 541, § 16, p. 550, 4 U. S. Comp. Stat. 1913, § 9600, p. 4372.)
The supreme court of the United States has held that whether the discharge of the principal in bankruptcy relieves the surety is governed by state law. (Hill v. Harding, 130 U. S. 699.) In Mississippi this doctrine was applied, and it was held that the surety was thus relieved under the local law. (Goyer Co. v. Jones, 79 Miss. 253, 30 South. 651, 8 Am. Bank. Rep. 437.).
In Serra é Hijo v. Hoffman & Co., 30 La. Ann. 67, a case almost identical with the one at bar, it was said:
“The bankrupt law undertakes to regulate and govern the rights and obligations of the bankrupt only. It provides the manner and effect as to himself of his discharge, but in no way undertakes to determine the effect of his discharge upon the obligations of others — out of superabundance of caution, however, the 5118th section of the United States Revised Statutes declares: ‘No discharge shall release, discharge, or affect any person liable for the same debt for or with the bankrupt either as partner, joint contractor, indorser, surety, or otherwise.’
“In determining the effects of a discharge of the principal, upon the obligations of his surety, we have therefore nothing to do with the bankrupt act. It is the law of Louisiana alone which governs, and to which we must look for a solution. Hence we attach but little weight to the decisions of foreign tribunals upon their own laws, differing perhaps radically from ours. It may well be that the effect of a discharge of the principal would be to release the surety, by the law of Massachusetts, and not to release him by laws of New York.” (p. 68.)
It was held that under the law of Louisiana the surety was still bound.
How is it in Kansas? Our statute, first enacted in 1868 (Gen. Stat. 1868, ch. 12, Gen. Stat. 1909, §§457-459), which harmonizes completely with the federal bankruptcy acts of 1867 and 1898, is silent as to the effect on a surety upon the discharge of the principal through bankruptcy, although it does say: “And thereafter any such judgment shall be deemed fully discharged and satisfied.” (Gen. Stat. 1909, § 459.) The judgment is discharged and satisfied as to the judgment debtor. What effect has that provision upon the surety’s obligation according to its terms?
In Ray v. Brenner, 12 Kan. 105, Mr. Justice Brewer, said:
“The true rule is thus laid down by Thiebold in his work on Principal and Surety, p. 114: ‘The obligation of the surety, also, in general becomes extinct by the extinction of the obligation of the principal debtor. An exception to this rule takes place whenever the extinction of the obligation of the principal arises from causes, such as bankruptcy and certificate, which originate with the law, and not with the voluntary acts of the creditor.’ ” (p. 107.)
In Burtis, Adm’r, v. Wait, 33 Kan. 478, 6 Pac. 783, it was held that a wife who had mortgaged her real estate to secure the payment of a promissory note given by her husband was liable under the mortgage obligation, although her husband had been relieved of payment of the note by his discharge in bankruptcy. The court said:
“It is conceded that the mortgage was given before the discharge in bankruptcy was obtained, or the application filed therefor, and that the debt secured by the mortgage has never been paid; but it is contended that the discharge under the bankruptcy proceedings wiped out the debt secured by the mortgage, and that there is no debt whatever existing. The argument of counsel is not sound. The discharge in bankruptcy is not payment. . . . Lizzie S. Burtis, by executing the mortgage upon her own real estate for the purpose of securing the individual debt of her husband, became surety of her husband, and within the terms of the bankrupt law, his discharge in bankruptcy did not release or discharge her from liability upon the mortgage.” (pp. 481, 482.)
Applying these precedents and the general principle that a surety is only relieved by the discharge of the principal through the voluntary act of the creditor (32 Cyc. 226, 227), it must be held that the defendant is liable on his undertaking, as surety, notwithstanding the discharge of the judgment debtor, his principal, by operation of the bankrupt law.
Among many cases examined in reaching this conclusion, the following may be noted: Leader et al. v. Mattingly, 140 Ala. 444, 37 South. 270; Boyd v. Agricultural Ins. Co., 20 Colo. App. 28, 76 Pac. 986; Dersch v. Walker, 28 Ky. Law Rep. 325, 89 S. W. 233; Serra é Hijo v. Hoffman & Co., 30 La. Ann. 67; Cochrane v. Cushing, 124 Mass. 219; Brown & Brown Coal Co. v. Antezak, 164 Mich. 110, 128 N. W. 774; World Pub. Co. v. Rialto Grain Co., 108 Mo. App. 479, 83 S. W. 781; Witthaus v. Zimmerman, 91 App. Div. 202, 86 N. Y. Supp. 315; Pinkard v. Willis & Bro., 24 Tex. Civ. App. 69, 57 S. W. 891; Love v. McGill, 41 Tex. Civ. App. 471, 91 S. W. 246; Whereatt v. Ellis and another, 103 Wis. 348, 79 N. W. 748.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding involves the validity of an order of the court correcting an entry of judgment. On September 17, 1914, Anna M. Hart brought this action against Millard M. Hart, her husband, to secure a divorce, and the court at that time made some preliminary orders relating to temporary alimony, including a provision for medical treatment for the plaintiff and for expenses of the litigation. The following day the defendant moved the court to modify the orders as to alimony required to be paid and as to the enjoining of the disposition of property. Shortly afterwards the defendant filed a plea in abatement alleging that the plaintiff had become insane and was mentally incompetent to bring an action at the time the divorce proceeding was begun or to contract with attorneys in reference to the commencement of an action. Upon this plea a hearing was had on October 21, 1914, and an order was then entered sustaining the plea and directing the dismissal of the action. The findings and orders made at that time are in dispute. Some time later a motion was made to correct the entry of judgment, and upon the testimony before the court it was found that the entry did not speak the truth. According to the original entry the court found that the plaintiff was insane when the action was begun, whereas, the court upon the testimony held that the finding that was actually made was that she was not insane when the action was brought, but had become mentally incapacitated since that time. Although not mentioned in the original entry,,it was found that in rendering judgment the court, in pursuance of an agreement of the parties, made an order respecting the payment of costs and an attorney’s fee.
The final judgment does not purport to amend the judgment that was rendered, but merely to make the entry speak the truth. It is conclusively settled that the court may at any time correct a judgment entry so that it will conform to the judgment that was actually rendered. (The State v. Linderholm, 90 Kan. 489, 135 Pac. 564, and cases cited.) The amendment may be made upon any satisfactory evidence, parol as well as written. Although there are decisions in other courts to the contrary, it has been determined here that a correction of the judgment may be based on the knowledge and recollection of the judge as to the facts which occurred at the trial, and of the findings and orders that were then made. (Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530.) Here the district judge has determined that the entry originally made did not express the judgment that was actually rendered by him, but that the modified entry does correctly recite what took place at the trial according to his knowledge and recollection, and other testimony was produced which supported his dp.tp.rmination. What transpired when the judgment was announced is a disputed question of fact, and upon the record before us it must be held that the evidence justified the amendment of the record.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
On August 8, 1913, W. T. Mathews sold to W. E. Hogueland a half interest in a stock of goods, a part of the agreed price being paid by the transfer of eight shares of stock in the Yates Center National Bank, taken at $200 a share. On the second of the following December an examiner took charge of the bank and it was found to be insolvent, an assessment of one hundred per cent being afterwards made upon the stockholders. On the 14th of January, 1914, Mathews offered to rescind the contract, and later brought an action against Hogueland and his son to recover damages, alleging that he had been induced to make the trade by fraudulent representations with respect to the value of the bank stock. A demurrer to the plaintiff’s evidence was sustained, and he appeals.
The plaintiff testified that W. E. Hogueland told him the stock had cost him $200 a share in trade, was paying dividends of sixteen per cent, was worth $200 a share, and could be turned into money; that he made inquiries of several persons who were, or had been, connected with the bank, some of whom refused to advise him, while others made statements consistent with what Hogueland had told him. There was no evidence that the market value of the stock at the time Mathews acquired it was less than what he paid, or that it would not have been actually worth that much, if the condition of the bank had been what it was generally supposed to be, and what it had appeared to be even upon official inspection. The closing of, the bank, was due to the discovery of frauds perpetrated by its president which he had succeeded in concealing up to that time. The demurrer to the evidence was properly sustained because there was no evidence whatever that either of the defendants knew of the bank’s insolvency. W. E. Hogueland had been its attorney, and his son had been in the employ of the bank, but neither of these circumstances warrants an inference of knowledge of the fraudulent acts of the president.
A representation concerning the value of property sold is ordinarily regarded as a matter of opinion, not actionable even if false. (Note, 37 L. R. A. 605; Subke v. Gonder, 97 Kan. 414, 155 Pac. 793.) If the defendants had known that the bank was insolvent doubtless a statement that its stock was worth double its face value would have been too wide of the truth to fall within this rule. But as already indicated, the evidence had no tendency to impeach their good faith in the matter. In some situations a false representation of fact may be actionable even if innocently made. (Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589.) But the owner’s estimate of the value of property which he offers for sale can not be the basis of a recovery in the absence of bad faith.
'The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In this action plaintiff sued to recover damages for injuries alleged to have been caused by a defective highway. The court sustained a demurrer to the petition, from which ruling the plaintiff appeals.
The highway in question runs east and west. The petition alleged that for several weeks prior to plaintiff’s injury a culvert in this highway had been allowed to remain out of' repair, so that persons using the highway were obliged to drive around the south end of the culvert, where the ground was about two and one-half feet lower, and that during several weeks travelers had continuously used and made a well-beaten path around the low place and up the embankment to the traveled portion of the highway immediately east and west of the culvert. It is alleged that on the same day plaintiff was injured the township sent its agents and employees to remove the culvert and construct a new one of concrete, and in preparing for this they placed a pile of dirt just south of the old culvert and in the north part of the traveled way around the place, and also placed just west of the culvert a concrete mixer, which they covered with a canvas so insecurely fastened that it flapped in the wind; that on the evening of that day, when it "was too dark for him to see an object clearly, he was traveling over the highway in a top-buggy “attached to a kind, road-worthy horse, going west”; that his horse took the traveled way in the well-beaten path “used by vehicles traveling said road.” The petition then proceeds:
“When his buggy, so drawn by said horse, reached a point about ■opposite said culvert the north front wheel of said vehicle ran onto and over said pile of dirt which defendant, its said officer, agents and employees, had on that day placed in said traveled way; that when the north back wheel of said buggy ran up onto said dirt and again tipped said vehicle toward the south, plaintiff looked down, as said hind wheel passed down off said dirt, to see what was causing such tipping of his ■vehicle, and while in this position the wind from the north flapped the south part of said canvas toward his horse in such a way as was likely ■to and did greatly frighten same; that when said horse took fright it lunged forward and out of said low place in an angle against and onto said high ground, at said defective place in said highway, so that tlie right wheels of said buggy went up onto said high embankment before the left wheels touched same, thereby causing said plaintiff to be thrown over toward the left-side of his buggy in such a way that he lost his balance in the buggy which caused the lines to slip in his hands and he thereby lost control of his horse which ran to the intersecting section highway just west of said culvert and swung quickly to the south thereon in such a way as to throw this plaintiff, violently and forcibly, against the ground.”
After enumerating the “bones, muscles, ligaments, tendons, tissues, and nerves” which were torn and strained, and the other injuries to plaintiff, the petition prays for damages in the amount of $20,445 and costs, stating that “the proximate cause of all of which was the defective condition of said traveling way, from said low part to said high part west of said culvert, which caused him to be thrown about in his buggy and the lines to slip in his hands and the consequent loss of control of his horse, in the absence of all of which his injuries would not have been by him received.”
It seems that the first petition, to which this one is an amendment, contained no reference to the low place at the south end of the culvert, but predicated a right of action solely upon the presence in the highway of the mixer, the •canvas, and the pile of dirt, and alleged they were the cause of-the injury. Because the township trustee could not have had ■.five days’ notice of these conditions, the court sustained a de murrer to the petition, and the plaintiff attempted to “mend his hold” by alleging the existence of the low place, “the high embankment,” and the slipping of the lines in his fingers when he lost his balance by the swaying of the vehicle. The abstract sets out the opinion of the trial court, which shows that the demurrer was sustained as to the amended petition on the ground that the proximate cause of the injury was the frightening of the horse by the flapping canvas, and, since the petition shows that the concrete mixer and canvas were placed there on the same day, or the day before the accident, the township trustee could not have had the five days’ notice required by the statute. The opinion comments, too, on the fact that there is nothing in the petition to show that the injury might not have occurred if the alleged; defects of the embankment had not existed, because it alleges that the travel around the culvert had created a well-worn way up the embankment. The opinion shows that the trial court was also convinced that two causes contributed directly to the injury: the frightening of the horse, and the turn in the highway a hundred rods west, where it is not alleged there was any defect..
An action of this kind can be maintained against a township only by virtue of the statute (Gen. Stat. 1909, § 658), which requires that the trustee must have had five days’ notice of the defect which caused the injury, otherwise the township is not liable. Therefore, the negligence of the officers and employees in permitting the concrete mixer, with the unfastened cover thereof, or the pile of dirt, to remain in the highway adds nothing to plaintiff’s cause of action. The road around the culvert was a temporary one. A two-and-one-half-foot depression at the end of a culvert is a common thing, and the approach up the slight embankment was a well-beaten path worn by continual travel for several weeks. Whatever the sharpness of the incline, it appears not to have been so steep or abrupt as to overturn the buggy when the horse, frightened at the flapping canvas, lunged forward. The pile of dirt left there that day had already twice tipped the buggy as first the front and then the rear wheel passed over it. The plaintiff looked down to see what caused the tipping, and while he was in this position the horse.took fright at the flapping canvas, lunged forward, and jostled plaintiff so that he lost control of his horse. '
We think the trial court was correct in holding that the petition fails to state a cause of action. Where the question of proximate cause arises on demurrer to the petition it is necessarily one of law for the court. (Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416.) The proximate cause of the injury was the frightening of the horse, and not the condition of the highway. In Railway Co. v. Bailey, 66 Kan. 115, 71 Pac. 246, where a horse became frightened at escaping steam and ran upon a pile of sewer pipe in the street, it was said:
“The proximate cause of the injury, that without which it would not have occurred, was the frightening of the horse. This stood first in the line of causation.” (p. 122.)
(See, also, Eberhardt v. Telephone Co., supra.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
At the first trial of this case the district court sustained a demurrer to plaintiff’s evidence. On appeal from that ruling the judgment was reversed and the case remanded for a new trial. (Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63.) The case has been tried a second time, resulting in a verdict and judgment in plaintiff’s favor for $8000, from which judgment this appeal was taken.
The plaintiff brought the action to recover damages for the ■death of her husband, John Wade, on account of the alleged negligence of the defendant company. John Wade was by occupation a mover of houses, machinery and articles of like character. On September 17, 1913, while engaged in moving a derrick along the highway from a place in Jasper county, Missouri, to Galena, Kan., he came in contact with certain electric wires belonging to the defendant, and was electrocuted. Two grounds of negligence are charged: first, in not having the wires insulated; second, in permitting them to be too low over the highway.
The derrick was twenty feet.high and about twelve feet square. The four corner posts were six by six. It was loaded on two trucks or wagons which raised it from eight to twelve inches and made it extend in the air from the ground, twenty-one feet. The owners of the derrick employed John Wade and his brother, Sam Wade, to move it. Twice before reaching the place where Wade was killed it was found necessary to remove telephone wires to allow the derrick to pass under them. At both these places Grigsby, who was one of the owners of the derrick, climbed on top of it and lifted the wires over. Afterwards they reached the wires of the defendant company, which were strung across the road at a height of twenty feet and at right angles to the road. Adjoining the road on the west side the wires were supported by what is called a four-post construction. Four poles were set in the ground so that they formed a square. The purpose of the four-post structure, which had been in existence since 1910, was to give greater strength at a point where the wires turned at right angles, and to prevent the weight and strain due to contraction from pulling down the support. There was a difference in the construction of the poles and the manner of supporting the wires from that used in the construction and support of the telephone wires which Grigsby had raised. Larger wires and larger and different kinds of glass insulators are used on the poles of power lines. When the parties reached the wires of the defendant the derrick was stopped within a few inches of the obstruction, and Wade asked Grigsby to go up and lift the wires, but he refused. Wade then asked Summers, another man assisting in the work, to go up and lift the wires, and he likewise refused. Wade then said that if some one would drive his team he would lift the wires. When he started up on the derrick, his brother cautioned him, saying: “Look at them; be careful what you do,” and in reply John said: “I have raised hundreds of them,” and climbed to the top of the derrick. During the time he was raising the wires he directed the men below to drive forward and back, the wires being too far from the derrick or too close to be raised. He had reached down and raised the first wire and placed it across the derrick, and was on his knees attempting to raise the second wire when he received the shock which killed him. Mr. Boughton, one of the owners of the derrick, who was present at the time of the accident, was called as a witness for the plaintiff. He testified: “When we came to the wires on that day Mr. Wade and Grigsby and the balance of us knew they were not like the wires we had previously passed under; we knew they were the wires of the Empire District Electric Company; we knew those wires carried electricity.” Summers and Grigsby both testified that they refused to go up on the derrick because they knew the wires were those of the electric company and were dangerous. Sam Wade, brother of the deceased, testified that he knew the company furnished light, heat and power, and that these wires carried electricity for large separating plants; also that when his brother asked the others to go up and handle the wires they said they “did n’t like to.” The deceased had been engaged actively in moving houses, machinery and derricks for ten years in the distrct where the defendant had from 150 to 160 miles of wires crossing the highways.
There is a contention that a demurrer to the evidence should have been sustained because of the absence of any testimony to support'the averment of the petition that John Wade took hold of the wires preparatory to lifting them over the derrick and in doing so slipped and fell, and thus came in contact with the wires that killed him. It is said no witness testified that he slipped and fell. The contention borders upon the technical. The witnesses stood upon the ground, and none of them could tell the exact manner in which Wade came in contact with the wires. It was conceded that he was handling them 'in some way for the purpose of getting them over the derrick. The slight variance between the proof and the statement of the petition occasioned no possible prejudice to defendant because its claim of contributory negligence was not strengthened by the evidence showing the facts; and, besides, upon request the trial court would have allowed the petition to be amended to conform to the proof even after judgment.
When the case was here before we held it was error for the trial court to sustain the demurrer to the evidence and to rule as a matter of law that Wade was guilty of contributory negli gence. Notwithstanding the former decision much of defendant’s brief is based upon the contention that plaintiff’s own evidence shows that Wade was guilty of contributory negligence, and we are again urged to hold that as a matter of law because of his negligence the plaintiff can not recover. It is suggested that in view of the common knowledge in regard to the wires and business of the defendant, it seems “absurd” to say that John Wade was not also familiar with the wires and with the danger of attempting to handle them. Webster defines “absurd” as “obviously and flatly opposed to manifest truth; inconsistent with the plain dictates of common sense; logically contradictory; nonsensical; ridiculous.” The evidence of the plaintiff was substantially the same at both trials. In the former opinion, Mr. Chief Justice Johnston, speaking for the court, said:
“If the question whether Wade acted as a reasonably prudent man would under the circumstances in handling the wires in the effort to move the derrick along the highway is one on which reasonable minds might differ it should have been submitted to the jury under appropriate instructions. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136; Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621.)” (p.469.)
After reviewing the facts the court held that upon the evidence it can not be said that as a matter of law Wade was guilty of contributory negligence. When the case was here before we recognized the importance of the question involved not only to the parties directly interested, but to the public generally because of the frequency with which similar accidents occur. The case was given the careful consideration which the court deemed its importance required. The law of the case so far as contributory negligence is concerned was determined in the former decision. We are satisfied that the conclusions arrived at then are supported by sound reasoning and therefore shall not in this opinion reconsider that question.
The defendant called two of its employees as witnesses, an inspector and the city foreman at Galena. The inspector testified that on one occasion he had found John Wade moving a house and that Wade was attempting to put the wires over the house without assistance from the company, and that he said' to him: “John, do you know what you are doing?” that Wade replied: “I believe I do”; that he said: “You’ve got some hot stuff”; that Wade said: “I don’t give a damn, I have handled it before”; that he said: “John, you took an awful chance”; that Wade replied he had handled hundreds of the wires. The inspector testified that he told the deceased the company would let him through in the proper manner if notified; also that at another time he helped Wade put wires over a house and told him they would kill a horse, and that Wade would get his sooner or later. Halliwell, defendant’s city foreman, testified that he found Wade moving a building and that Wade had let the wires of the defendant down in the street, and that he told him the current on the wires was dangerous and liable to hurt some one; and that he offered his assistance in passing under the wires whenever notified; also that he had another talk with Wade a few weeks before the latter was killed. At that time Wade was moving a house, the owner of which had notified Halliwell, and when the latter arrived, Wade said if he had not come pretty soon he would have moved the house without him. Halliwell says he told Wade the wires were dangerous, that he was liable to be injured or killed in trying to handle them. Another employee of defendant testified that he was present and heard both conversations testified to by Halliwell.
The jury by their special answers indicate that for some reason they discredited the testimony of these witnesses. It is urged that this shows the finding is contrary to the evidence and should have been set aside. Where the trial court is satisfied that the jury have disregarded evidence it should consider that fact on the. motion for a new trial in determining whether the verdict has been the result of passion and prejudice; but where the case comes to this court with the verdict approved by the trial court it will be presumed that the court which heard the testimony of the witnesses did not regard the finding of the jury as such evidence of passion and prejudice as to warrant a new trial. As has been repeatedly held this court can not weigh the evidence. Notwithstanding the repeated decisions to this effect, the brief of the defendant marshals the evidence on which the plaintiff sought to show that derricks and machinery had frequently been transported over this road for many years before the accident. As against this, the defendant arrays the testimony of its witnesses to the contrary, together with facts and admissions drawn out by the cross-examination of plaintiff’s witnesses, and the contention is made that the evidence does not sustain the finding that the road had been generally used for the purpose of hauling derricks, houses and machinery which were higher than the wires of defendant. The answer to all this is, as stated, that we can not weigh the evidence.
The defendant called a large number of expert witnesses, men of wide experience in the field of electrical engineering, who testified that it was not good practice to insulate wires carrying a voltage as high as 5500; that it was better not to insulate because the insulation would not be a protection, and the mere fact that an attempt had been made to insulate would lead inexperienced persons to assume or believe they could handle the wires with safety, and would result in more accidents than if-insulation had not been attempted. Others testified that in the general practice of the best managed electrical companies, wires carrying above 2500 volts are not insulated; that in outdoor construction it is impossible to insulate wires carrying 5500 volts so as to make them safe to handle. It is said in the brief:
“We contend . . . that our construction was in good condition and that it complied with all requirements as to safety as- determined by the expert witnesses.”
But expert witnesses determine nothing. They testify to facts and to their opinions concerning conditions and the jury determine what the facts are.
It is argued that if defendant’s contention in regard to insulation is true then there was no negligence in its failure to have the wires insulated. It is insisted that the former opinion invited defendant to introduce persons competent to testify on this subject. The portion of the opinion on which it relies reads:
“Some of the witnesses said that’ the insulation of these high-voltage wires would be so expensive as to be prohibitive. Others testified that the wires could be insulated at the crossing without great expense as it could be done for forty cents a foot. Whether it is practicable to insulate even at crossings is a question upon which persons appear to differ. (94 Kan. 466.)
It is said the defendant complied with the invitation and produced a large amount of testimony showing that it is im practicable to cover the wires with insulation, and complaint is made that the trial court ignored this testimony and instructed as a matter of law that defendant was guilty of negligence if it failed to insulate. In this connection error is predicated upon the refusal to give two instructions which the defendant offered, in substance, that if the jury believed it was impracticable to insulate the wires then no negligence could be based upon defendant’s failure to do so. The particular instruction which the court gave and which is objected to, charged the jury that if they found, from the evidence that the business of moving derricks and other properties of a greater height than the wires of the defendant where they were strung across the highway was a common and ordinary custom which had existed for a number of years, and the defendant knew of these facts or could have known thereof, and might have “reasonably anticipated that persons might rightfully be in proximity to or come in contact with its said wires and it failed to use the highest degree of care to insulate the same and make and keep them safe and by reason of such failure the said John Wade was injured in such manner that he died, while he himself was in the exercise of ordinary care, from a.contact with such wires, then the defendant would be liable and the plaintiff would be entitled to recover.” - The part of the instruction quoted is objected to on the ground that it in effect charged the jury that unless the defendant insulated its wires it was guilty of negligence, and that the court not only ignored the defendant’s testimony on this issue by refusing to give the instructions requested, but committed error in deciding as a matter of law that it was the defendant’s duty to insulate its wires; and our attention is challenged to the answer which the jury gave to the first question submitted by the plaintiff, as follows:
“No. 1. Was the deceased killed by reason of the uninsulated and unsafe condition of defendant’s electric wires which crossed the public highway? Answer. Yes.”
The defendant cites numerous authorities in which this court has held that a judgment will be reversed for refusal of the trial court to instruct the jury concerning a disputed question of fact, and others holding that the trial court should fairly present the law applicable to the theories of both parties so far as they are' supported, by any evidence. (Morse v. Ryland, 58 Kan. 250, 48 Pac. 975; Honick v. Railway Co., 66 Kan. 124, 71 Pac. 265.) It is urged that the instruction was improper because it assumes a fact disputed by the evidence. It is only fair to consider the criticism of this particular instruction in connection with other instructions which charged the jury that the duty rested upon the defendant to keep its wires insulated so as to be harmless to others, “or if not insulated then to place and keep them in a position and location where they will be beyond the reach of all the common ordinary traffic and travel.”
Moreover, the defendant is again confronted with the law as declared in the former opinion, where the following excerpt from Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778, was quoted (p. 467) with approval:
“If from all the circumstances the defendant had reason to apprehend that the building would be moved under the wires where the accident occurred, it was its duty, knowing its wires to be highly charged with electricity, to have such wires at the street crossing insulated, or to take such other precautions as might be necessary to protect anyone who might be likely to be upon such building from contact with or injurj from such wires.” (p. 73.)
The opinion also quotes (p. 467) from Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833, 124 C. C. A. 35, a case where a derrick came in contact with electric wires across a highway, as follows:
“It was clearly its duty to have used every reasonable precaution to raise and keep its high power transmission wires sufficiently high above ground for the safe passage of such structures as the plaintiff was engaged in moving at the time and at the place he was injured. Such structures were common, to that locality.” (p. 837.)
In a very recent case (Snyder v. Light Co., ante, p. 157, 157 Pac. 442), it was said:
“It was a continuing duty of the defendant to keep its wires insulated, but it appears that the insulation had been broken and the wires had been partly bare for a long time. The defendant, therefore, must have known that the wires were uncovered and the electric current unconfined at the place in question.” (p. 161.)
In that case, as in this, the defendant’s lines were insulated when first constructed, but defendant failed to keep them insulated. Again it was said in the opinion:
“If accidental contacts with the unprotected wires or contacts which occur through the act of third parties, either adults or children, are not within reasonable anticipation there is little if any reason for insulation of wires which are placed thirty feet above the ground. What is the necessity for insulating wires hung beyond the reach of any one? It is surely not alone required for the protection of employees who may have to handle them. These were not the only ones for whom the law requires such protection. Insulation is required largely because the uncovered high voltage wires are a menace to the public through contacts of an accidental character or .by the thoughtless action of third parties or through the acts of children. Occurrences of this kind happen often enough in a thickly settled community to admonish those in control of such wires to cover them and provide against such interventions and contacts.” (p. 162.)
The trial court, in the instructions complained of, used substantially the same language in defining the duties of the defendant in this case as the court used in the cases just cited. It is conceded that the wires which caused the death of Wade were insulated at one time, but the insulation had worn off, and that they carried a voltage of 5500.
In the twelfth instruction the court charged the jury that in determining whether Wade exercised the degree of care and caution which a reasonably safej careful and prudent person would have used, they should take into consideration the circumstances which surrounded the deceased and, among other things, “any notice he may have had of the dangerous condition.” This is criticized on the ground that the court assumed the wires were in a dangerous condition. We think the criticism is unjust. In that particular instruction the court was not undertaking to state what would establish negligence of the defendant, but was explaining what the jury should consider in determining the kind of care and caution with which Wade was chargeable at the time he came in contact with the wires, and the words “dangerous condition” meant no more than if the court had said “any notice he may have had of the danger to himself in handling the wires.” Defendant concedes they were dangerous to any person coming in contact with them.
It is seriously contended that the trial court erred in refusing an instruction that John Wade was a trespasser when he drove the derrick against the wires, and therefore the defendant owed him no duty except not to kill him wantonly. The first case cited in support of the rather novel contention that Wade was a trespasser, or, as suggested, “at least a mere licensee,” is McCaughna v. Electric Co., 129 Mich. 407, 89 N. W. 73, 95 Am. St. Rep. 441. The syllabus in that case reads:
“An electric-light company maintaining its overhead and guy wires over the private premises of a railway company need not protect trespassers thereon, nor is it liable for injury to them caused by their coming in contact with a live guy wire.” (95 Am. St. Rep. 441.)
In the opinion it is stated that the place where the injury occurred was not a public way, but the private premises of a railway company, a secluded spot where the deceased and a companion with bottles of beer went in the evening. The deceased took hold of a guy wire which was charged by having come in contact with a live wire. There was no evidence that the officers of the company knew of the condition of the guy wire. All that was claimed was that defendant was negligent in failing to discover the condition. Wade was lawfully using a public highway at the time he was killed and was in no sense a trespasser; nor was he a mere licensee of the defendant.
Complaint is made because the court refused an instruction to the effect that the defendant company had the right to maintain its wires across the road. As no one contended to the contrary, an instruction of this kind was not needed. The jury understood without an instruction that the defendant had the right to maintain its wires lawfully upon the highway, provided it took proper precautions to prevent persons lawfully using the highway from being injured by coming in contact with them. We have carefully examined the instructions given and do not think they are open to the objection that the court assumed the existence of any of the material facts against the defendant.
The jury find that the deceased could have moved the derrick under the wire by lowering it and hauling it in a horizontal position. It is contended that upon this finding defendant was entitled to judgment and that the court should have held the deceased guilty of contributory negligence as a matter of law, because he failed to adopt a safer method. That there was a safer method was one of the facts and circumstances proper for the jury to consider in determining whether Wade exercised ordinary care and prudence.
The defendant offered testimony to prove that no accident had ever occurred at the place prior to the death of Wade. It is said in the brief:
“If the numerous high structures were moved as claimed by the plaintiff, and no accidents ever occurred, is not this of itself strong evidence to show that defendant’s wires were not in an unsafe and dangerous condition?”
That no accident occurred there before was a circumstance which it was proper to urge before the jury, but the fact itself has no place in an argument before a court which can not determine facts.
Some of the special questions submitted by the plaintiff are open to the criticism that they assumed as true some of the controverted questions. They were objected to for this reason. We do not consider them unfair in substance, and we think the defendant sustained no prejudice by the form in which they were drawn. The material facts in the case were not as involved or complex as defendant seems to think they were. There was no dispute as to the manner in which Wade met his death or that it was caused by his coming in contact with the uninsulated wires of defendant. Whether he was exercising ordinary care and caution at the time; whether the hauling of such a derrick along that public highway was a common occurrence and such a use of the highway as might reasonably have been anticipated by the defendant; and whether the defendant was negligent, were the material issues. There were others of importance, including Wade’s knowledge and notice of the dangerous nature of the wires, but the jury could not have been misled by the • form of the special questions- submitted.
We find no error in the refusal of the instructions requested, nor in those given. The case is one that turns upon facts which the jury have found against defendant upon sufficient evidence. It follows, therefore, that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is a suit in the nature of a creditor’s bill. Plaintiff recovered and defendants appeal.
On January 29, 1914, plaintiff recovered a judgment in the district court against John Brecheisen for $3657.92 on three promissory notes. On appeal the judgment was affirmed. (Bank v. Brecheisen, 96 Kan. 292, 150 Pac. 521.) The petition in this case, after reciting the judgment, alleged that on March 24, 1914, an execution on the judgment was returned unsatisfied; that sometime prior thereto John Brecheisen was the owner of certain real estate in Douglas county, consisting of a farm in addition to the other lands occupied by him as his homestead, and was also the owner of a large amount of personal property. It alleged that on January 8, 1914, shortly before the commencement of the action in. which judgment was rendered against him, he executed and delivered to his wife, Ursula Breeheisen, the other defendant in this suit, a pretended bill of sale of personal property aggregating in value $2837, and on the same day executed and delivered to her a warranty deed conveying all real estate described, other than his homestead. There were attached to the petition, as exhibits, copies of the bill of sale and warranty deed, which showed that the stated consideration in each conveyance was one dollar and love and affection. It was alleged in the petition that these instruments were executed with the express intention to hinder, delay, cheat and defraud plaintiff and to defeat collection of the judgment, and that the grantee, Ursula Breeheisen, paid no consideration for the conveyances and took them to assist her husband in defrauding the creditors and defeating the collection of the judgment. The petition prayed that the conveyances be declared fraudulent and the property subjected to the payment of the plaintiff’s judgment.
The answer of defendants admitted the rendition of the judgment and the return of the execution unsatisfied, and denied all other averments of the petition. It was verified by John Breeheisen on behalf of himself and his wife. More than six months later, and shortly before the time of the trial, defendants applied for leave to file an amended answer. The, trial court ordered the amended answer to be prepared and submitted on November 29, 1915, at which time the case was called for trial. The court refused permission to file the amended answer at that time, but stated that if there was any evidence that seemed to justify it, permission would be granted later. The parties then made their opening statements to the court. The statement for defendants made a number of admissions in addition to those contained in the answer. There was an admission of the execution of the bill of sale and deed as set out in plaintiff’s petition, that the legal title was in John Breeheisen at the time the conveyances were made, and that he was the owner of the other property comprising his homestead at the time the conveyances were made. The trial court held that the burden of proof was upon the defendants, and, it being admitted that John Brecheisen was indebted to a large extent and was unable to pay his debts, that an execution had been returned unsatisfied, and that the deed and bill of sale were executed and delivered conveying valuable property for an admitted consideration of one dollar and love and affection, there was a presumption that the true consideration was stated in the instruments, and therefore the burden rested upon the defendants to explain the transaction. The defendants elected to stand upon their opening statement, the pleadings and their admissions, and offered no evidence. The court then rendered judgment against the defendants upon the pleadings, the opening statements of counsel and the admissions made in open court.
But two contentions are urged by defendants. It is insisted that the trial court committed prejudicial error in refusing to permit them to file their amended answer. There is no merit in this contention. The application to amend the answer was not made until shortly before the case was called for trial and more than six months after the original answer was filed. It has been repeatedly held that the allowance or refusal of applications to file amended pleadings is within the sound discretion of the trial court. (Bank v. Badders, 96 Kan. 533, 536, 152 Pac. 651; Scott v. King, 96 Kan. 561, 565, 152 Pac. 653, and authorities, cited in both opinions.) Besides, in this case the trial court stated that if the evidence warranted an amendment to the pleadings, permission would be granted later during the trial.
The main contention is, that the burden of proof rested upon the plaintiff to establish that the conveyances were made to defraud creditors, and it is urged that it was prejudicial error to impose the burden upon defendants. Technically, we suppose the plaintiff should have offered some proof that John Brecheisen did not own other property subject to execution, inasmuch as the conveyances were made some time before the rendition of the judgment against him. But it is quite manifest from the opening statement made by counsel for defendants that they were not relying upon any such defénse. If' they had an explanation as easily made, a defense as good as this, it was hardly fair to the trial court to conceal it. A mere statement that they were ready to show that when the conveyances were made John Brecheisen owned other property sufficient to pay all his indebtedness would have prevented a judgment on the pleadings and statements. Although the amended answer was not permitted to be filed, it was presented to and examined by the court. It was verified by John Brecheisen for himself and for the other defendant, and it made clear that defendants were attempting to rely upon some contract alleged to have been made with the bank at the time the original notes were executed and which defendants claimed went to the consideration of the notes. These having merged in the judgment, of course a defense of this kind was not available.
It is a modern tendency of courts to attach less importance to the phrase “burden of proof” than was formerly the case, in so far as it is supposed to relate to or affect the order in which the parties shall offer their evidence upon a given issue. Much is left to the discretion of the trial court, and this is especially true where the trial is by the court. Where both parties have availed themselves of the opportunity to present all their evidence, the mere fact that the trial court required the one upon whom the burden of proof would not, according to the rules of evidence, rest, to proceed first has been held not to be error. (McCormick v. Holmes, 41 Kan. 265, 21 Pac. 108; Milling Co. v. Ellis, 76 Kan. 795, 796, 92 Pac. 1114; Gas Co. v. Fletcher, 81 Kan. 76, 84, 105 Pac. 84.) Of course, in every material issue of fact the burden rests upon the party who asserts the affirmative and whose case depends upon the truth of the fact, and the burden is as serious in its consequence as formerly.
The question is whether defendants shall be permitted to stand upon a technical rule respecting the order of proof in a trial before the court and thus procure a reversal of the judgment without any showing that they were prejudiced by the ruling and with no showing that they ever had any real defense to the action. In view of the pleadings, admissions and all that transpired before the court, we conclude that the court was right in holding that there was due from defendants some explanation of the transaction by which property of such value was conveyed to the wife for a consideration stated to be one dollar and love and affection, where the property transferred obviously constituted all the property not exempt which belonged to the husband at the time he was indebted to plaintiff.
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The opinion of the court was delivered by
Mason, J.:
A judgment rendered in an attachment action was set aside by the trial court for the reason, among others, that the only service was by the publication of a notice which omitted a description of the attached property. In the original opinion it was said that this defect was remedied by a subsequent general appearance. In a petition for a rehearing it is urged that this appearance could not save the attachment, because, in order to make that valid, service must have been accomplished within sixty days. (Kincaid v. Frog, 49 Kan. 766, 31 Pac. 704.) Inasmuch as within that period a publication had been made, which although irregular was not void, the subsequent appearance operated to waive objections to it, thereby validating the attachment. This at all events would be true so long as no rights of third parties had intervened. (Moses v. Hoffmaster, 64 Kan. 142, 67 Pac. 469.) An objection is raised ‘to the amended affidavit for attachment, for the reason that it contains no allegation of nonresidence — the ground relied upon. That allegation was contained in the original affidavit, and did not require repetition. (Rothweiler v. Mason, 93 Kan. 4, 142 Pac. 267.)
In the original opinion it was said that judgment had been rendered confirming the attachment. This • was true in a sense, as judgment was rendered against the defendant, who was in court only by virtue of the attachment; but the entry showed an order continuing the matter with respect to the foreclosure of the attachment lien. The point is now made that as' to one tract of land the description in the sheriff’s return is too indefinite to be effective. Other objections of a similar nature are also made. Such defects are not regarded as necessarily fatal (4 Cyc. 611), but as the trial court does not appear to have passed upon them, the order will be that the attachment shall be confirmed, the property to which it extends to be determined by that court.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs, Friedericka Geffert and Henry Geffert, owned four quarter sections of land in Washington county. They had four sons. On April 11, 1907, realizing that they were growing old and feeble in health and being desirous of relieving themselves of the burden of managing their lands, the plaintiffs conveyed their lands to their sons, one quarter section to each, and in each deed it was provided:
“The party of the second part shall pay the parties of the first part the sum of Two Hundred Dollars ($200.00) per annum as follows: Two Hundred Dollars ($200.00) to be paid on the first day of May, 1908 and a like sum to be paid on the first day of May in each succeeding year during the lifetime of the said parties of the first part or either of them. . . . Should the said party of the second part fail to make payments as above set forth or fail to pay all taxes, or taxes that may be levied against the said land for a period of one year after the said payments shall become due, the premises herein granted shall revert to and become the property of the said parties of first part.”
The deeds were promptly recorded.
Defendant Adolph C. Geffert is one of the sons and a grantee of one of the quarter sections theretofore belonging to the plaintiffs. Mary Geffert is the wife of Adolph. Elmer Robbins is a person to whom Adolph mortgaged eighty acres of the land conveyed to him by his parents. Frank R. Wylie is Robbins’ assignee and the present holder of that mortgage.
Adolph made various defaults in his annual payments to his parents. On May 1, 1912, he executed and delivered to his mother a note for $500, either in satisfaction of his delinquent payments, 'or as an acknowledgment of his indebtedness for default of payments. Credits aggregating $130 were after-wards endorsed on this note. No further payments were made by Adolph.
On November 7, 1913, Adolph and wife mortgaged eighty acres of the land conveyed to him by his parents to Elmer Robbins to secure payment of their note for $1825. After-wards, and before maturity, this note and mortgage were acquired by Frank R. Wylie.
On May 13, 1914, the plaintiffs, Friedericka Geffert and Henry Geffert, brought this action for the balance due on the note, $370, and for the annual payment of $200 due on May 1, 1913, and for the annual payment of $200 due May 1,1914, and for the cancellation of their deed of 1907 to Adolph, and to bar Robbins and Wylie of their interest in the land and to quiet plaintiffs’ title.
Adolph Geffert and wife answered with a general denial; denied that the conditions and covenants in the deed were broken; alleged full performance; that they held receipts for all annual payments due prior to May 1, 1913; that they were entitled to one year from May 1,1913, in which to pay the sum due on that date, and that they had made certain payments thereon; and pleading a tender of the balance and the plaintiffs’ refusal to accept; and that the $500 note was given and accepted in full settlement of the earlier delinquent annuities.
Frank R. Wylie .answered separately, pleading misjoinder, and setting up the mortgage executed to Robbins and assigned to him, and in a cross-petition prayed judgment against Adolph and wife and asked foreclosure of his mortgage.
The cause was tried without a jury, and the court gave judgment for plaintiffs for $770, 'being for the balance due on Adolph’s note to his mother, and for the annual payments due May 1, 1913, and May 1, 1914, and adjudged this sum to be a first lien on the land, and ordered that upon default of payment for thirty days the land be sold, subject to plaintiffs’ future annuity, to satisfy the plaintiffs’ judgment. The court also gave judgment against Adolph and wife in favor of Frank R. Wylie for the amount of the note, $1825, and declared the claim to be a first lien upon Adolph’s interest in the land, and ordered that upon default of payment for thirty days the land be sold subject to plaintiffs’ first lien, and subject also to plaintiffs’ annuity, to satisfy the judgment rendered in favor of Wylie.
Plaintiffs appeal and complain of the court’s refusal to enforce the provision in the deed, which was that upon failure to make the annual payments (and to pay the taxes), “the premises herein granted shall revert to and become the property of the said parties of first part.”
It is needless to repeat and enlarge upon what this court has said so frequently to the effect that penalties and forfeitures are obnoxious to judicial minds, and that slight circumstances are eagerly seized to avoid their enforcement when the substantial rights of the parties insisting thereon can otherwise be adequately protected. The testimony showed that Adolph’s parents had no great concern about prompt payment either by him or his brothers. The mother testified:
“My son, Adolph Geffert, did not pay all of it every time, he said he always needed the money and he had to borrow money, and it made me feel bad and I let him have it when we did not just need it. . . . He gave me a check but the banker would not pay it, said Adolph had no money there, and I returned it to Adolph. . . . When he gave me the check I told him the note was due, and he says, ‘You let it go and when I settle up with Mr. Burchfield, I will pay you the note and we will settle up for the horses and pasture and wood.’ I owed him a little for the pasture and I wanted him to figure it up and put it in the check, and he said he could not, he had only $200.00 in the bank, and he did not have any, and when I heard he had settled up with Mr. Burchfield, I went and demanded that the note be paid or else I would sell it, and he did not like to have me sell it, so he paid me $100.00 on the note, and then he paid me $10.00 and $20.00 on the note, so he paid me $130.00 on the note and that is all. ... I did not tell him I did not need the money; he was a little short of money, and if I did not need it just then, they [her sons] said I could get it when I wanted it. The rest of the boys paid me and he did not pay and he said he had' to borrow. I did not tell him it would be alright for a while, he kind of made me feel bad, and I told him Henry paid, and I wanted him to pay too; and he said he always had to borrow because he needed so much money in his business, and I told him then he could give me a note, and that was due and last year he gave that check and they would not pay it. . . . Adolph gave me his note for $500.00, May 1st, 1912. It was for payment of part that was due on land. He paid me $100.00 that year and the rest was added to the note. . . . In August, 1913, he gave me $100.00 and I applied it on the note. I went to him and demanded the note be paid, and he paid me $100.00 by check. I cashed the check. ... I wanted him to pay the time Henry paid up. . . . Then he gave me a note because he wanted it that long, so I took his note, I could not do anything' else, I did not want to get to fighting. Up to this time he was doing like the other boys, paying part and keeping part back. The other boys paid sooner. They paid when I ordered it to be paid, but he did not.”
Adolph testified:
“In 1912 I offered to pay the whole note and wanted to because I thought I was going to run up and probably they would make demand for it and I could not pay it; and they said further if I paid this note they would give the money to somebody else. In 1913, I paid $100.00, on the $200.90. I did not discover it had been applied on the note until I had given the second check. ... I have not paid any of the installments in full, in cash. I paid them all in full with checks and note. Have not paid the note. Have paid no part of the note. The money endorsed on the note should have been applied on 1913 payment. ... I made no tender for balance of note. I paid none on the note. I told her I would pay her the note when I got able to pay it.”
These excerpts from the testimony show the situation which confronted the trial court. It shows the voluntary forbearance of the mother who had formerly held the title, her natural sympathy for her son in his financial straits, her acceptance of Adolph’s note in payment for past-due annuities, the misunderstanding between them as to whether his later payments were to be credited on the note or to be applied on later annuities, and the court might well give these circumstances and this course of conduct between the parties their reasonable significance, deducing therefrom that the time of payment of the annuity was not of the essence of the contract, and might conclude that the condition subsequent relating to forfeiture was not intended to be arbitrarily or summarily enforced by the grantors.
The case at bar is not different in principle from National Land Co. v. Perry, 23 Kan. 140, Shade v. Oldroyd, 39 Kan. 313, 18 Pac. 198, and Cue v. Johnson, 73 Kan. 558, 85 Pac. 598. It' is true that in “support” deeds a condition subsequent providing for forfeiture is more rigidly enforced than in others, where an action at law for breach of covenant will give substantial and sufficient redress (Cox v. Stambaugh, 96 Kan. 684, 143 Pac. 513), but here the circumstances seemed to warrant the court in refusing to declare the forfeiture and in providing other adequate redress for the satisfaction of plaintiffs’ claims against their son.
The judgment is affirmed. | [
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Per Curiam:
The principal question in this case has already-been disposed of by the decision in the case of The State v. Durein, 70 Kan. 1, 78 Pac. 152, 80 Pac. 987. The evidence was sufficient to establish the joint guilt of all the parties except Plamondon. The judgment rendered is not open to the criticisms appellants make upon it, and is to be interpreted by the separate sentences pronounced upon each one. Each guilty one is liable for all the costs in the case, but such costs can be collected but once.
The argument based upon the seventh instruction is faulty in that it assumes that the defendants were in fact found not guilty of making sales. In law they have now been in jeopardy, but their conduct was proper to be considered by the jury as bearing upon the question of the existence of a nuisance. Evidence as to Plamondon’s connection with the place was relevant to that subject.
The judgment of the district court is affirmed as to all the defendants except Plamondon. As to him it is reversed and the cause remanded.
In the case of The State v. Fred Simmons and Newman Hoard, submitted upon the same brief, the judgment of the district court is affirmed. | [
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