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Per Curiam:
This case is brought here upon a case-made that is not shown to have been served within the time fixed by the statute, or within any valid extension of that time. The judgment complained of was rendered January 29, 1904. At that time ten days were given in which to serve a case. The record presented, after stating this, recites that “thereupon and on the 5th day of January, 1904,” an order was made extending the time “thirty days from January 29, 1904.” Throughout the record the word “thereupon” is obviously used in the sense of “thereafter,” and for that reason cannot be held to be here employed in its ordinary sense, and does not imply that the order was made immediately after the rendition of the judgment. It is evident that the order was not made on the date named — the 5th of January — and for anything that appears to the contrary it may have been made more than ten days after the judgment, in which case it would be without force. The defendants in error have not challenged the sufficiency of the record by motion or otherwise, but as there is nothing before this court to show that it has jurisdiction the proceeding in error is dismissed. | [
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Per Curiam:
The Means brothers, who shipped cattle from Kansas to Chicago over the Atchison, Topeka & Santa Fe railway, claim damages by reason of negligent delay in the shipment and delivery. A condition of the contract was that the shipper should give written notice to the company of any claim for damages by reason of loss or injury to the stock before the cattle were removed from the place of delivery, and before they were intermingled with other stock, and this notice was a condition precedent to a right of recovery. To a special question as to whether notice in writing was given to the company of the claim for damages before the cattle were removed from the station and stock-yards at Chicago the jury answered: “Yes, after the cattle were sold; but we don’t know whether the cattle were removed or not.” This answer is equivalent to a finding that no such notice was given before the cattle were removed. (Railway Co. v. Swarts, 58 Kan. 235, 48 Pac. 953.)
As the giving of notice was a condition precedent to a recovery the burden necessarily fell upon the plaintiffs to prove it. The case, therefore, falls fairly within the decision of Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438. Following that case, it must be held that the contract provision was valid; that the burden of showing compliance with the condition as to notice rested upon the shippers; and that the finding of the jury that they did not know as to the removal of the cattle is to be treated as a negative answer, or that plaintiffs had failed in their proof. Having failed to show performance of the condition they must fail of recovery.
The judgment, therefore, is reversed and the cause remanded, with instructions to enter judgment in favor of the railway company. | [
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Per Curiam:
The certificate of the trial judge that the suit involves the tax law of the state is not binding on this court. (Railroad Co. v. Morasch, 60 Kan. 251, 56 Pac. 133.) An investigation of the question presented to the court below shows that the tax laws of the state were not involved in the suit. There being less than $100 in controversy, the proceeding in error is dismissed. | [
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The opinion of the court was delivered by
BURCH, J.:
The purpose of the action in the district court was to charge the defendant as a stockholder in a defunct corporation. The court held that the fact of stock ownership had not been established. The plaintiff assigns as error the rejection of certain evidence which it claims would have supplied the missing proof had it been admitted.
The books from which certain entries were offered in evidence were wholly unidentified as to the purpose for which they had been kept. There is nothing to indicate that the entries offered in evidence were correct, or were made at or near the time of the transactions to which they relate, if they do relate to actual transactions, or that they were original in the sense that they constituted the first permanent record of the business to which they refer. The bookkeeper who made the entries was not called as a witness, and the evidence offered to account for his absence at the trial was not sufficient for that purpose. The only witness interrogated concerning the matter said, when asked if the bookkeeper resided in the county where the trial took place, that he did not know. If, therefore, the action had been one by the corporation itself to recover on an ordinary account with the defendant the preliminary proof necessary to lay a foundation for the introduction in evidence of its books of account is wanting.
But the book entries referred to were offered, not for the ordinary purpose of proving the state of an account, but to prove that the defendant was a stockholder in the corporation. No attempt was made to show that the defendant knew of the existence of such entries and had acquiesced in them, or had au thorized, sanctioned, confirmed or ratified them in any way, and no other circumstances were shown making the defendant privy to the entries. Therefore, the offer of proof must be condemned so much the more.
“If an instrument as solemn as a judgment cannot affect a stranger to it, how can one man make another man his debtor merely by marking him down as such in his own private books? And upon what principle can he put the stranger so marked down to the expense of defending a lawsuit in order to prove that he was marked down without his authority? . . .
“This brings us to consider the question to what extent the records of the corporation can be used as evidence in these actions. And here it ought to be observed in the first place that under no sound principles can such records be put in evidence to connect a stranger with the corporation — to prove that the particular defendant is a shareholder, unless he is shown to have been privy to them by other evidence. For it cannot possibly be admitted in a system of jurisprudence that pays attention to the ordinary maxims of justice, that I can make a stranger my debtor by merely writing down in my books a statement to the effect that he is my debtor and by signing his name to it. But as some courts, on a supposed principle of necessity, admit the books of a plaintiff as prima facie evidence of his account against a defendant sought to be charged in an action on an account, so some of the courts have fallen into the aberration of holding that the books and other records of the corporation may be given in evidence, in a proceeding to charge a stockholder, for the purpose of proving that he is a stockholder — which fact ought to be first proved by evidence aliunde, in order to lay a foundation for the introduction of the books and records in evidence against his objection. ...
“The true principle is that, before the books of a corporation can be put in evidence against a person charged with liability as one of its members, his membership must be admitted, or established by evidence aliunde.” (Thomp. Com. L. of Corp. §§1924, 3657, 7732.)
The case of Bank v. Banking Co., 59 Kan. 716, 54 Pac. 1051, decided by this .court in November, 1898, is conclusive upon this subject, and is supported by the overwhelming weight of authority, whether of text-writers or decided cases. The syllabus reads:
“In proceedings instituted by a creditor of a corporation to charge another person with liability as one of the corporate shareholders, the books of the corporation, other than the stock-subscription' book, if unsupported by other evidence, are inadmissible to prove membership in the company.”
It should be noted that the stock-subscription book referred to in this syllabus is not a stock ledger or other account-book of the corporation recording business transactions relating to its stock, but it is a book described in the opinion as one in which a person “has .entered his name as a subscriber for corporate shares.”
The plaintiff was also denied the privilege of offering in evidence a" so-called “transcript of the stock ledger” of the corporation containing the name of the defendant, and characters to denote twenty shares placed after it. This paper was not evidence as a certificate, under section 1309 of the General Statutes of 1901, because the corporation was not a party to the action (Dolan v. Wilkerson, 57 Kan. 758, 761, 48 Pac. 23) ; and a declaration by the corporation of what its stock ledger contained could scarcely be admitted as evidence to prove a fact when the stock ledger itself could not be accepted for the same purpose.
The oral evidence of the witness Bradley was palpably inadmissible.
The plaintiff made a further offer of proof, to which an objection was made and sustained, as follows:
“Mr. Lawrence: ‘The plaintiff offers in evidence, as a part of the records and files in this case, the original case-made certified by a former judge of this court, and ordered to be made a part of the records of this case. I desire particularly to offer in evidence the testimony of C. E. Trowbridge, the witness shown to be a non-resident of Kansas, found on pages 83 to 93, inclusive, of this record.’
“Mr. McBride: T object, as incompetent, irrelevant, and immaterial, and no sufficient foundation laid for the introduction of such testimony, and hearsay.’
“Which objection is by the court sustained; to which ruling of the court the plaintiff at the time duly excepted.”
A case-made is not a part of the record of a cause, and the certificate of a trial judge that a case-made is correct as such has no force beyond the function assigned to it by the statute. It cannot take rank with the sworn evidence of the official stenographer, whose duty it is to take and reproduce testimony. The plaintiff in this case gives no excuse whatever for its failure' to present the best evidence that the nature of the case permitted, and the objection to its offer was rightfully sustained.
Other assignments of error are without merit, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The propositions relied on for a reversal of this case are important to the parties only, and not of sufficient general interest to require a formal opinion; therefore all that is necessary is that the views of the court Be indicated upon each question raised.
The court is unable to agree with the defendant that the contract entered into at the time of the trade precluded the plaintiffs, as a matter of law, from claiming that they relied upon the,false representations inducing the trade. It might with equal force be argued that the defendant cannot expect prompt payment of the one-thousand-dollar note given her because she took a mortgage to Secure it, in which the possibility of default is recognized.
The evidence is sufficient to show that the representations made were representations of fact, and that the plaintiffs had a right to, and did, rely upon them, to their injury. The evidence was also sufficient to furnish a basis for the assessment of damages.
The testimony of the witness Oberly was proper, if for no other reason than that the contract referred to provided that the plaintiffs were to receive and be satisfied with one-fourth of the proceeds derived from the enforcement of the chattel mortgage, and the chattel mortgage was enforced by a person acting on behalf of the holder of those notes secured by the chattel mortgages that were reserved by Nordquist at the time of the trade. Besides this, if any of the charges which reduced the gross amount received from the sale of the chattel property were excessive, or if the property was improperly handled, the defendant should have shown it.
The witness Allison was competent. A portion of the testimony of the witnéss Andrews was admissible, and the court dealt properly with it.
The instruction of the court complained of, containing a reference to the relation that the hotel property bore to the trade, purports to state the plaintiff’s claim, and is in exact accordance with the petition and with the testimony of the Halls given on the trial. The instruction quoted from page 222 of the record was invited by the defendant, and hence she cannot complain of it. In other respects the instructions given were sufficient, and no prejudice resulted from the refusal of the instructions asked.
If any error was committed by the court in its consideration of the special findings it was against the defendant instead of the plaintiffs.
The motion for a new trial was properly denied, 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 was a controversy between husband and wife. The plaintiff brought the suit asking for a divorce on the ground that his wife had been guilty of adultery, gross neglect of duty, and extreme cruelty. A female child was born of the marriage, which was about seven years old at the time of the trial, and for whose custody the plaintiff asked. In the answer and cross-petition of the defendant she denied the charges of marital misconduct, and alleged that the plaintiff had violated his marriage vows by frequent instances of extreme cruelty to her, and that he had also been guilty of gross and long-continued neglect of duty. She asked for a dissolution of the marriage relation, the custody of the little girl, and a division of the property that they had accumulated. At the end of his testimony the trial court, assuming that she had committed the acts charged against her, held that they had been condoned, and, therefore, that the plaintiff was not entitled to a divorce. She offered testimony tending to sustain the averments of her petition, and the court, finding that both plaintiff and defendant appeared to be in equal wrong, denied the divorce, awarded the custody of the child to its mother, ordered the husband to pay ten dollars per month towards its support, and directed an equitable division of the property.
Plaintiff complains, first, of the order of the court that required him to pay seventy-five dollars to the defendant as expense money and attorneys’ fees prior to the time of her answer and the final adjudication. It appears to be contended that the statute does not warrant provision for the expenses of a suit by the wife, unless she is the plaintiff in the case. The court is authorized, after a petition has been filed in a suit for divorce and alimony, or for alimony alone, to “make such order relative to the expenses of the suit as will insure to the wife an efficient preparation of her case.” (Gen. Stat. 1901, §5137.) The provision for “an efficient preparation of her case” does not mean that her case must be made upon a petition, and in the capacity of plaintiff. Preparation is just as important for her in establishing her case against a plaintiff, upon an answer or cross-petition, and the language employed does not indicate a purpose to limit the provision to instances wherein she is the moving party.
The next complaint is of the ruling of the court holding that the plaintiff’s testimony did not warrant the granting of the divorce. He offered testimony tending to show that his wife had adulterous relations with Homer Craft, a young man living in the neighborhood, and also testimony showing that she had been guilty of unwifely conduct with others. He states 'that his wife admitted to him a number of adulterous acts, running through a period of months, but he said that she claimed that they were not voluntary on her part. It appeared, too, that Craft told the plaintiff in detail of his relations with defendant, and yet he continued to live with his wife for about two years after learning of her alleged criminal conduct. During this time there were jar and clash and bitter quarrels between them. He frequently charged her with infidelity, and at one time separated from her because of a belief that she was guilty of adultery, but he stated that he was induced by his uncle to return and live with her on account of their child. The trial court assumed that his imputations of marital misconduct were true, but found that they had been condoned, and that he was therefore not entitled to a divorce.
Plaintiff argues that he forgave and reinstated his wife on the theory and belief that she was compelled to yield to the embraces of Craft, and that if he had been assured of her guilt he would not have continued to live with her. An essential element of condonation is a full knowledge by the injured spouse of the mari tal misconduct of the offender. If the plaintiff had only an unconfirmed suspicion that his wife had gone astray, or if he believed that the numerous acts of adultery brought to his attention were without her consent, his continuance of the marital relation might not amount to an effective forgiveness or condonation. (14 Cyc. 637.) Much of his own testimony, however, was wholly inconsistent with this theory. His frequent assertions that she was guilty, his separation from her on account of her alleged offenses and his return because of the child, the detailed information as to numerous acts of adultery related to him by Craft himself, together with the plaintiff’s statements that he was forced to believe in her guilt, contradict his present claim of unbelief and want of knowledge, and justified the holding of the trial court that her offenses had been condoned.
She offered proof tending to show extreme cruelty and gross neglect of duty, and at the close of all the testimony the court found that both had violated their marriage vows and for that reason denied a divorce, awarded the custody of the minor child to the mother for the time being, and divided the property. It is contended that in any view that may be taken of the testimony there was not that mutuality of fault that justified the refusal of a divorce. In section 643 of the civil code it is provided that “when the parties appear to be in equal wrong the court may in its discretion refuse to grant a divorce,” etc. It will be observed that the refusal of a divorce, when both parties are guilty of violating the marriage contract, is left to the discretion of the trial court. The right to set up one matrimonial offense in bar of another has long been recognized, and recrimination, as it is termed, has been regarded as a valid defense, even in the absence of a statute. It is no more than the application of the equitable rule that one who invokes thé aid of a court must come into it with a clear conscience and clean hands. Divorce is a remedy for the innocent and injured, and the plaintiff that has himself broken the marriage contract cannot well ask to be relieved from its obligations because his spouse may also have broken it. The rule is well stated in section 87 of volume 2 of the fifth edition of Bishop on Marriage and Divorce, where it is said:
“The matrimonial relation is one of mutual dependence and duty; and it would seem to be within all legal analogies, and all sound canons of morality, to refuse to hear a plaintiff complaining of the defendant’s infraction of one of the links of this common chain, when he had equally broken another. Moreover, the law is for the assistance of those who obey it, not those who violate it; and, when two parties are both in the same wrong, the court helps neither.”
It is insisted, however, that there is not equality of wrong between the offense of adultery and the other wrongs for which a divorce may be granted. The statutes, however, do not provide that the wrong shall be of the same character or proportioned in moral gravity. Ten grounds for divorce are prescribed by the statute; and abandonment, when established, is just as effectual to dissolve the marriage relation as is the graver offense of adultery. Since the legislature has treated each ground as the equal of any other, and visited upon each offense the same legal consequences, the court cannot well distinguish between them because one offense may appear to us to involve more of turpitude or disgrace than another.
In the ecclesiastical courts it was held that there could be no recrimination unless the offenses were of the same character, and some of the courts have undertaken to measure the gravity of the specified causes for divorce, and have refused to allow a cause to be barred by any matrimonial offense other than adultery. (Chambers v. Chambers, 1 Hagg. Con. 489; Cocksedge v. Cocksedge, 1 Rob. Eccl. 90; Bast v. Bast, 82 Ill. 584; Stiles v. Stiles, 167 id. 576, 47 N. E. 867; Trowbridge v. Carlin, 12 La. Ann. 882; Thomas v. Tailleu, 13 id. 127; Dillon v. Dillon, 32 id. 643; 1 Nels. Div. & Sep. §430.) The courts generally hold, however, that the rule of recrimination applies to all the causes for divorce, and that a suit for divorce on any one of the statutory grounds may be defeated by proof of the existence of another statutory ground, without regard to the nature or gravity of the several causes. (Nagel v. Nagel, 12 Mo. 53; Morrison v. Morrison, 62 Mo. App. 299; Church v. Church, 16 R. I. 667, 19 Atl. 244, 7 L. R. A. 385; Pease v. Pease, 72 Wis. 136, 39 N. W. 133; Hubbard v. Hubbard, 74 id. 650, 43 N. W. 655, 6 L. R. A. 58; Cassidy v. Cassidy, 63 Cal. 352; Tillison v. Tillison, 63 Vt. 411, 22 Atl. 531; Clapp v. Clapp, 97 Mass. 531; Handy v. Handy, 124 id. 394; Redington v. Redington, 2 Colo. App. 8, 29 Pac. 811; Wheeler v. Wheeler, 18 Ore. 261, 24 Pac. 900; Mattox v. Mattox, 2 Ohio, 233, 15 Am. Dec. 547; Ribet v. Ribet, 39 Ala. 348; Hale v. Hale, 47 Tex. 336, 26 Am. St. Rep. 294; 14 Cyc. 650.)
We cannot say that there was not such equality of wrong as the statute contemplates. The question was settled by the legislature, and the court in its discretion could, as it did, hold that the plaintiff, who had been guilty of extreme cruelty and gross neglect of duty, was in equal wrong with the defendant, who was guilty of adultery.
Complaint is made of the order giving to the mother the custody of the child. The plaintiff proposed, if given the custody of the child, to place her in the home of a relative in Missouri. He had no right to expect that the court would send the child out of the state and beyond its jurisdiction. The mother keeps the child at the home of her parents, and if she is not given care and attention proportionate to her age and necessities, or if the surroundings prove to be unsuitable for her proper attention and development, the court can again exercise its authority and transfer her custody to another. In its decree the court reserved to itself the right to change the custody of the child when it deemed best, as it provided that the mother should have the custody of the child until the further order of the court or the judge thereof.
Other objections are made which are not deemed to be material, and as we find no error the orders and judgment are affirmed.
All the Justices concurring. | [
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Per Curiam:
In this case there is no evidence that the method provided for filling torches was not a reasonably safe one, under the conditions existing in the defendant’s roundhouse. There is no evidence that it was unsafe, under the method of conducting the defendant’s business, to leave oil drippings exposed in the pan provided to catch them. This fact is not even adverted to anywhere in the case as one involving any breach of duty to the plaintiff. Much less is there any evidence that it was negligence to close the top of the oil-can above the dripping-pan with a piece of waste instead of a metal cap.
Nor is there any evidence that the fire which started in the dripping-pan was the fault of any person connected with the defendant company, or was so likely to occur that the defendant should have guarded against it by any other means than those which were employed. And there is no evidence that the defendant, or any of its employees, had any reason to anticipate that it would be necessary to remove the oil-can suddenly or hastily to avoid the danger of a fire.
The argument of the plaintiff in error contrary to certain of these propositions is pure assumption and speculation, without any basis in the testimony. Negligence must be proved as a fact.
Since, therefore, so far as the evidence shows, the place was a reasonably safe one, and the can, maintained as it was, was a reasonably safe appliance in a reasonably safe condition, the plaintiff must fail, because there is not even a scintilla of evidence that the employee, Campbell, knew or ought to have known, or by any reasonable exercise of judgment could have anticipated, the peculiar result which attended the handling of the can.
The plaintiff’s entire argument is based upon the fact that stopping the top of the can with waste instead of the usual cap was the proximate cause of the injury. If so, it was an injury occurring without any breach of duty on the part of the defendant, and the plaintiff was correct and just when he reported to the company that it was an accident for which he blamed no one.
The judgment of the court below is affirmed. | [
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Per Curiam:
It was sufficient that the words “a true bill” were printed on the indictment and signed by the foreman. (Charles Tilly v. The State, 21 Fla. 242; see, also, Thompson v. Pfeiffer, 60 Kan. 409, 421, 56 Pac. 763.)
If there is anything of merit in the claim that the county attorney should have stated the case to the jury before evidence was received, an objection that he did not do so came too late after both sides had rested.
There was no prejudicial error in sentencing the appellant under count No. 23% in the indictment, which was the last count. The jury returned a verdict convicting appellant on the twenty-third count. There was no count No. 23 in the indictment, and it is obvious that they intended a conviction under count No. 23%.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Greene, J.:
The county prosecutes this proceeding to reverse a judgment obtained against it on thirteen warrants, all issued in March and April, 1888, except one, which was issued in October, 1887. Soon after the issuance of each of the warrants it was presented for payment, and indorsed “not paid for. want of funds,” and numbered and registered. Their numbers are all below. 1000. The county admitted their issuance, but for a third defense answered as follows:
“For a third and further defense, and as applying to each and every of the thirteen counts or causes of action sued on in plaintiff’s petition, defendant alleges that said warrants or county orders so sued on in each of said counts are barred by the statute of limitations, for that each of said warrants shows upon its face that it was issued and registered in the year 1888, and that the registration number to each and every of said warrants in said thirteen counts or causes of action is under register number 1000, and that on the 5th day of January, 1894, there was in the hands of the county treasurer of Seward county, Kansas, funds to pay said warrants, and said warrants were called for payment on said date, as is shown by the copy of the call of the treasurer of Seward county, Kansas, which is hereto attached and made a part hereof.”
The call was as follows:
“Liberal, Kan., January 5, 1894.
“I will pay in cash, upon presentation, all Seward county warrants up to and including No. 1000. Interest to cease at this date. P. F. Vessels,
Treasurer.”
To this defense the court sustained a demurrer. This is the principal ground of error contended for by plaintiff in error.
This action was commenced July 7, 1900, so that more than five years had elapsed between the time the alleged call was made and the bringing of this action. Under section 6011, General Statutes of 1901, it is the duty of the treasurer, when a warrant is presented, either to pay it or register it and indorse thereon a proper number in the regular order of its presentation and the words “presented and not paid for want of funds,” with date, and sign the indorsement.
Section 6012, General Statutes of 1901, provides:
“It shall be the duty of any treasurer, whenever any money comes into his hands by virtue of his office, to set apart a sufficient sum to pay any or all warrants that have been registered in compliance with the provisions of this act, and to keep the same until called for; and it shall be the duty of every county . . . treasurer to publish in the official county paper, . . . between the first and fifteenth days of February and August in each year, a call for the redemption of such warrants as he can pay, describ ing the warrants by giving their issue number, register number, and amount; and interest shall cease on each of said warrants on and after such publication.”
The statute of limitation commenced to run against all warrants designated in the call when the call was published, and, in the absence' of any condition or circumstance which would toll the statute, an action would be barred after five years.
Counsel for defendant in error contends that this case falls within Miller v. Haskell County, 66 Kan. 730, 66 Pac. 1084, and School District v. Bank, 63 Kan. 668, 66 Pac. 630. Neither of these cases applies to the question raised by the demurrer to the answer. In the first case it was shown that the funds which had been set apart for the payment of the warrants, after the publication of the call, had been by the county treasurer deposited in a bank designated as a county depository, and that in March, 1894, and before the expiration of five years from the date of the call, the bank became insolvent and the money thus deposited was lost to the county, and thereafter there were no funds in the hands of the treasurer to pay the warrants. In the second case it appears that at no time after the creation of the debt had there been any money in the treasurer’s hands applicable to the payment of the warrants. The statute referred to requires the treasurer to set apart and keep the money on hand until called for by the holder of the warrants.
The only contention of the defendant in error is that the answer did not plead that the money was kept on hand during all of the time. The law presumes that the officer performed his duty in this respect, and that the money was kept on hand, at least until an action on the warrants was barred by the statute of limitation.
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
Mason, J.:
Fred Leis prosecutes error from a judgment rendered against him on account of the forfeiture of a recognizance executed by him, reading as follows:
“State of Kansas, Saline County, ss.
“Know all men by these presents, that we, the undersigned, are held and firmly bound unto the state of Kansas in the sum of one thousand dollars.
“The condition of this obligation is that Bruce Gentry do appear at the office of John W. Titus, a justice of the peace, on the 24th day of July, 1902, at ten o’clock A. M., to be examined on the charge of stealing, taking away twelve head of neat cattle, the property of one William Toll, and remaining until leave be granted to go.
“Now, therefore, if all these things are fully done and performed, then the above obligation to be void; otherwise it shall remain in full force and effect.
Fred Leis.
“Taken and approved by me, this 19th day of July, a. d. 1902. John W. Titus,
Justice of the Peace.”
The assignments of error all relate to the form of the recognizance, the claim of plaintiff in error being that it was void upon its face, for three reasons: (1) Because, as it did not show of what township John W. Titus was a justice of the peace, his jurisdiction to take it was not apparent; (2) because, by reason of the same omission, it did not sufficiently designate the place at which Gentry was required to appear; (3) because its conditions did not conform to the statute.
In support of the first contention it is argued that as a justice of the peace is an officer of inferior and special powers, in aid of whose jurisdiction no presumptions are indulged, a bond taken by him, to be effective, must upon its face show that he had authority to act. It has been suggested by Mr. Bishop that when a justice of the peace sits as an examining magistrate his acts should be treated as those of a court of general jurisdiction, inasmuch as his powers are then no less than those of the highest judge that is authorized to act in that capacity, except that they must bg exercised within narrower territorial limits. (1 Bish. Crim. Proc. §§228, 236.) This view has been adopted in Alabama. (Boynton v. The State, 77 Ala. 29.) Moreover, it is generally held that a recognizance need not state the special facts that give jurisdiction in the particular case, if it be conditioned for the doing of an act for the performance of which the officer taking it is authorized to require bail. (3 Encyc. Pl. & Pr. 217, 218; State v. Randolph, 22 Mo. 474; State Treasurer v. Bishop, 39 Vt. 353.) But it is not necessary to determine the effect of these considerations-upon the present case, which is controlled by section 154 of the criminal code (Gen. Stat. 1901, §5596), reading as follows:
“No action upon a recognizance shall be defeated, nor shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the clerk or magistrate to note or record the default of any principal or surety at the term or time when such default shall happen, or of any other irregularity, so that it be made to appear that the defendant was legally in custody charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court- or magistrate for examination or trial for such offense.”
Under this statute it was not hecessary that the recognizance should show that the justice had jurisdiction to act. This, with other matters essential to his jurisdiction, could be otherwise shown. It was abundantly made to appear from the evidence that Gentry “was legally in custody charged with a public offense,” and “that he was discharged therefrom by reason of the giving of the recognizance.” This involved a showing of the authority of the. justice. It was only necessary, then, that the recognizance should contain the penalty and the condition — that is, that it should show that Leis undertook that Gentry should appear before a court or magistrate for examination or trial upon the offense charged. (McLaughlin v. The State, 10 Kan. 581.)
The undertaking was that he should appear at the office of the justice of the peace named, but it was not expressly stated in what township, county or state such office was located. Whether this was a substantial compliance with the statute is practically the question involved in the second contention of plaintiff in error.
While the recognizance did not recite in so many words that Titus was a justice of the peace of Saline county, this fact was sufficiently implied by the expression in the margin indicating the venue, viz., “State of Kansas, Saline county, ss.” A somewhat similar inference was held justifiable in Norton v. The State, 40 Kan. 670, 20 Pac. 462. As the jurisdiction of the justice of the peace in some respects extends throughout the county he is in a sense to be regarded as a magistrate of the county, and .the designation of his township upon the face of the recognizance was not essential to a definite indication of the officer before whom, or of the place where, the defendant was required to appear. No designation of a township is required in the form of warrant prescribed by section 37 of the criminal code (Gen. Stat. 1901, §5477). The state, county and township of which the justice was an officer, as well as the precise location of his office, were specifically shown by the other portions of his records relating to the case, and these may be referred to in order to clear up any obscurities upon the face of the recognizance. (Tillson v. The State, 29 Kan. 452.) It is true that in Sherman v. The State, 4 Kan. 570, it was said that a recognizance should be strictly construed, and a misdescription of the court to which it is made returnable was there held to be fatal. That case, however, was decided before the provision of the criminal code above quoted was molded into its present form, in the revision of 1868.
The specific complaints made under the third contention are that the recognizance was conditioned for the appearance of the defendant to be “examined” upon the charge, instead of to answer to it, and that the condition that he should remain “until leave be granted to go”, was too indefinite. The language of the statute, however, is that the defendant shall give bail for his appearance for “examination” (Crim. Code, §45; Gen. Stat. 1901, §5485), and as in this case he failed to appear at all it is of little consequence how his further obligation was expressed.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The appellant was convicted of selling intoxicating liquors in violation of law and seeks by this proceeding to have the judgment reversed.
It appears that he was a physician lawfully and regularly engaged in the practice of his profession. At the trial he contended that he had not sold any intoxicating liquors, and that the alleged sales with which he was charged were cases of administering such liquors by him to his patients and were, in his judgment, necessary to the health of such patients. The statute authorizing physicians to administer intoxicating liquors to patients is section 2 of chapter 149, Laws of 1885 (Gen. Stat. 1901, §2453), which reads as follows:
“Any physician who is lawfully and regularly engaged in the practice of his profession as a business, and who, in case of actual need, shall deem any of the liquors mentioned in section 1 of this act necessary for the health of his patients, may give such patient a written or printed prescription therefor, or may administer the same himself. But no such prescription shall be given or liquors administered except in case of actual need, and where in his judgment the use of intoxicating liquors is necessary. And every physician who shall give such prescription or administer such liquors in violation of this act, and every physician who shall give to or write for any person a prescription for intoxicating liquors for the purpose of enabling or assisting any person to evade any of the provisions of this act, or for the purpose of enabling or assisting any person to obtain any intoxicating liquors for use as a beverage, or to be sold or disposed of in any manner, in violation of the provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than ten days nor more than ninety days.”
The first error complained of is predicated on the giving of certain instructions. The law provides that a physician lawfully and regularly engaged in the practice of his profession, if he shall deem it necessary to the health of a patient, may administer intoxicating liquors to such patient. It follows, therefore, that in the absence of any statutory inhibition he may charge therefor. There is nothing in the instructions which denies this right.
The real questions at the trial were whether the appellant disposed of any intoxicating liquors, and, if he did, whether such liquors were in fact administered to his patients, within the meaning of the law, or were sold to be drunk as a beverage. There was no question about his right to charge for intoxicating liquors properly administered by him to his patients. These questions were submitted to the jury under full and proper instructions.
Some complaint is made that the court did not sufficiently define the word “administer.” The following definition was given: “The legal definition of the word ‘administer’ is to give, supply, or dispense.” The contention of the appellant is that the court should have added the word “furnish.” It was not necessary for the court to use all the synonyms of the word in order to convey to the jury a correct definition of it; those used were sufficient.
There was no error in refusing the instructions requested by the appellant.
The judgment of the court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
The plaintiff in error, by condemnation proceedings, appropriated a right of way across a quarter-section of land in Sedgwick county, Kansas, belonging to the defendant in error. The latter appealed from the award of damages to the district court, where a trial was had before a jury, who returned a general verdict in favor of the plaintiff in the sum of $3151.80. The jury also returned answers to special questions submitted to them. The only ones relating to the amount of the award of damages are the following:
“1. What amount do you allow as the value of the land taken for the right of way of defendant over and across the southeast quarter of section 3, township 28 south, range 1 west, Sedgwick county, Kansas? Ans. $429.60.
“2. What amount do you allow as damages to the balance of the said southeast quarter of said section 3, township 28 south, range 1 west, Sedgwick county, Kansas, on account of the appropriation of the right of way over and across the same? A. $2722.20.
“3. What was the fair market value per acre of the southeast quarter of section 3, township -28 south, range 1 west, Sedgwick county, Kansas, just before the right of way was appropriated, upon September 18, 1903? A. $60.
“4. What was the fair market value per acre of the southeast quarter of section 3, township 28 south, range 1 west, Sedgwick county, Kansas, less the right of way appropriated by defendant, just after the appropriation of said right of way? A. $45.
“5. Do you award any damages to plaintiff on account of inconvenience in passing from one part of the land to the other over the right of way of defendant? A. Yes.
“6. If you answer the last question in the affirmative, then state the amount of your award on such account. A. $700.”
Upon the return of such verdict and special findings the defendant filed a motion for a new trial, and a motion for judgment upon the special findings notwithstanding the general verdict in favor of the plaintiff. The motion for a new trial and also the motion for judgment in favor of the defendant on the special findings were each denied and the ruling excepted to, and judgment was rendered in favor of the plaintiff for $2722.20. The railway company brings the case to this court for review.
Error is assigned in the giving of certain instructions relative to the measure and the elements of the damages, and also to the refusal of the court to give other instructions requested by the defendant. We have examined all these assignments and have been unable to discover any substantial error therein prejudicial to the defendant. It is especially urged as error that the court, in stating the claim of the plaintiff for damages, copied the plaintiff’s petition and permitted the jury to take the same with the instructions. This practice is not to be encouraged, and where the jury are referred to the petition, especially when the petition is lengthy and involved, for the purpose of determining for themselves the issues to be tried, it is erroneous; but in this case the issues to be tried were fairly stated by the court, aside from the petition, and instructions were fairly given upon the measure and elements of the damages to be considered. No substantial error was committed in this respect.
Again, it is urged that the court erred in refusing to send the jury to view the premises after they had heard the evidence in regard to the damages claimed. This is a matter that rests in the sound discretion of the court and we cannot say that that discretion was abused. The lay of the land and the location of the buildings, fences and tracts in cultivation were fully described by the evidence, and there was no considerable conflict in the testimony in regard thereto; hence, we do not see that there was any substantial reason for sending the jury to see the premises, although it is true that there was' a great range and difference of opinion as to the amount of damages.
The next objection is that the court erred in not allowing the defendant’s motion for judgment upon the special findings, on the ground that there was a conflict between the special findings and the general verdict. Special findings Nos. 1 and 2, taken alone, would sustain the general verdict. Special findings Nos. 1, 3 and 4 sustain the award as made by the court. The answer to question No. 2 is a matter of computation. The ultimate findings of fact are that the land as a whole, prior to the appropriation, was of the value of $60 per acre; that after the appropriation of 7.16 acres for a right of way the remainder of the 160 acres was of the value of $45 per acre; in other words, the remaining 152.84 acres were damaged in value by ■the taking of the right of way to the amount of $15 per acre, which amounts to $2292.60. The jury found that the value of the 7.16 acres taken for the right of way was $429.60, at the time of the taking, which is exactly at the rate of $60 per acre, their finding of the value as to the entire tract. Now, if the value of the tract actually taken ($429.60) be added to the depreciation of the remaining 152.84 acres the sum is $2722.20, the amount awarded by the court; but this is the exact amount which the jury found in finding No. 2 as the damage to the 152.84 acres, outside the right of way, and is, apparently, in conflict with the answer to question No. 4, which, computed, would give damages to the same tract of $2292.60. So it becomes evident that the jury simply made a mistake in computation; that in answer to question No. 2 they inadvertently included the value of the land actually taken, $429.60, as shown in answer to question No. 1, with the damages to the remainder of the tract as shown in answer to question No. 2, instead of the damages found to the remainder of the tract in answer to question No. 4. The damages to the remainder of the tract per acre, as found in answer to question No. 4, were more specific, and should control. The court committed no error in correcting the evident mistake. The award is supported by the findings, and is not excessive, but is the lowest amount that could be given under the findings, and the plaintiff in error cannot complain.
It is further urged that the court erred in submitting the question of possible damages by fire to the buildings, when the evidence showed no buildings upon the land. The evidence certainly did show some buildings upon the land, although the principal farm buildings were on another tract owned by the plaintiff and her husband. There is nothing to indicate that the jury included any damages for the possible danger to such other buildings; in fact, the court limited their inquiry especially to the quarter-section of land over which the right of way extended. While the award is for a large amount of damages, it seems to be justified by the evidence and by the findings of the jury, and we cannot say that it is excessive.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This is an appeal from a judgment of conviction for breaking and escaping from the jail of Eeno county while appellant was lawfully imprisoned therein upon the charge of burglary and larceny.
On April 1, 1904, there was filed before S. J. Morris, a justice of the peace of Eeno county, a complaint signed and sworn to by H. King, charging that, on the 31st day of March, 1904, in that county, one Ora Gregg, one Bob Hickman, and John Doe and Eichard Eoe, whose real names were unknown, committed a burglary. Thereupon a warrant was issued directing the arrest of the parties named. Under this warrant Hickman was arrested, brought before the justice, and on April 8 his preliminary examination was had, at which he was discharged. The justice at the time and under the evidence adduced (the complaining witness, H. King, being a witness at this preliminary) made and entered the following finding: “That Eichard Eoe, whose real name was unknown to complainant herein, is Hayden King.” Thereupon the justice issued a warrant in due form directing the arrest of Hayden King, the appellant. This warrant not having been served, an alias was issued in due form on May 6, 1904, under which the appellant was arrested by the sheriff of Eeno county in the city of Chicago. On the 10th day of May he returned to Eeno county without a requisition, and was held by the sheriff in the jail of that county when, on the 17th of May, he broke jail and escaped from custody.
He was at the same time being held under another warrant charging him with larceny of goods. We will, however, confine this discussion to the questions connected with the burglary charge, because if he is lawfully held under the warrant issued, on that charge his conviction for breaking jail was rightful.
The appellant was prosecuted under section 183 of the crimes and punishment act (Gen. Stat. 1901, § 2178), which provides:
“If any person lawfully ifnprisoned or detained in any county jail or other place of imprisonment, or in the custody of any officer, upon any criminal charge, before conviction for the violation of any penal statute, shall break such prison or custody and escape therefrom, he shall upon conviction be punished by confinement and hard labor for a term not exceeding two years, or in a county jail not less than six months.”
The question presented is, therefore, whether under the facts above stated the detention of appellant was lawful at the time he effected his escape. It is claimed that this detention was not lawful because the com-’ plaint was not sufficient to authorize the issuance of the warrant undér which appellant was being held, and that the finding of the justice of the peace that the Richard Roe named in the complaint was Hayden King did not help out its infirmity. This claim is based' upon section 15 of the bill of rights, which provides:
“No warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.”
The claim is also based upon section 36 of the code of criminal procedure (Gen. Stat. 1901, §5476), which reads:
“Upon complaint made to any such magistrate that a criminal offense has been committed, he shall examine on oath the complainant, and any witness produced by him, and shall reducé the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed, the court or justice shall issue a warrant, naming or describing the offense charged to have' been committed and the county in which it was committed, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before some court or magistrate of the county, to be dealt with according to law; and in the same warrant may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination.”
The argument is that it is necessary that the written complaint should particularly describe the person to be seized, and that no warrant can lawfully be issued except upon such complaint, and that an imprisonment upon a warrant otherwise issued is not a lawful one, and therefore may be broken without penalty. The ultimate question is, Must a complaint, in order to authorize the issuance of a warrant which shall justify the apprehension and holding of one under a criminal charge, describe the person to be arrested by a correct name, or such physical description as shall enable the officer holding the warrant to know the person whom the one making the complaint sought to have arrested ? We are of the opinion that such a construction of the language of the bill of rights, or the quoted section of the code of criminal procedure, would unduly narrow the scope of their application, and that such a construction is not warranted.
Here it appears that the person to be arrested was particularly ascertained and determined before the issuance of the warrant, and the claim is not seriously pressed that the provision of the bill of rights was violated. It is, however, earnestly contended that under section 36, supra, the complaint, in order to authorize the issuance of the warrant, must be in writing, be subscribed by the complainant under oath, and particularly describe the person to be seized.
We cannot give this claim our assent to the extent to which it is pressed. This section requires that the magistrate, after the examination of complainant, shall reduce the complaint to writing and cause it to be subscribed, and that, if it appear that an offense has been committed, he shall issue a warrant describing the offense, and directing the arrest of the person accused. Here a complaint was made and subscribed; it was under oath; from this complaint it appeared that an offense had been committed; it described two persons by their correct names and named two other persons by fictitious names — their real names being unknown — as the persons who committed the offense. It is proper to assume that the affiant had in mind four specific persons as the ones who had committed the offense. Upon subsequent examination of the complainant and others the justice ascertained that the name of one of the parties whose name had theretofore been unknown was Hayden King, and thereby made certain, not the person intended by the complaint to be charged, but the name of such person, and thereupon properly issued the warrant directing his arrest. Thus all the requirements of section 36 were complied with. The warrant was issued for the person accused, whose correct name had been thus ascertained. Neither this section nor the bill of rights requires that a complaint shall designate the accused by his right name. Were this always required, what a wide rent would be made in criminal procedure for the escape of wrong-doers.
An arrest is warranted, and hence lawful, even when made under a warrant issued on complaint sworn to by one who had no actual knowledge of the facts set out in the complaint. (The State v. Carey, 56 Kan. 84, 42 Pac. 371.) It is argued, however, that the complainant, H. King, being the father of Hayden King, must of necessity have known his name, and therefore he did not intend to designate Hayden King when he used the name Richard Roe. This does not necessarily follow; he might have known that four persons were engaged in the burglary, and the names of two of them, and been uncertain as to the names of the other two. If, however, we grant the correctness of the conclusion of fact, it does not follow that the father could shield the son from the consequences of his breach of the criminal law by giving him a fictitious name. The moment the justice was enabled to determine by information coming to him the true name of the suspected guilty party he was authorized to issue a warrant for his arrest. It will be remembered that the complaint has served its entire purpose and spent its force when it has procured the issuance of the warrant. It is upon that instrument and its averments that the examination is had. (Redmond v. The State, 12 Kan. 172.)
In People v. Wheeler, 73 Cal. 252, 14 Pac. 796, a complaint was made in which four persons were charged under fictitious names. A warrant containing the same names was issued. The return showed that “the within-named defendants” had been arrested. Upon preliminary examination the magistrate ascertained their true names, and committed them by such names. In the trial court a motion was made, based upon these facts, to set aside the information because they had not been legally committed. The court said:
“Upon this showing, we think the court properly denied the motion. The committing magistrate was authorized to hold the defendants to answer for any offense which the evidence showed them to have committed ; and his power was not limited to such offenses as were embraced within the crime charged in the complaint. Nor was it material that all the defendants, except Wheeler, were given fictitious names in the complaint. ‘The regularity of the proceeding by information did.not depend in any manner upon the affidavit on which the warrant of arrest was issued, and had no connection with it.’ (People v. Verlarde, 59 Cal. 458.)”
We are of the- opinion that the complaint cited, together with the subsequent inquiry of the justice whereby he ascertained the name of the person charged with the offense, was altogether sufficient to authorize the issuance of the warrant; that defendant’s detention thereunder “ was a -lawful one;. and, hence, that his escape therefrom was criminal.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Ernest H. May brought this action to obtain a divorce from his wife, Daisy B. A. May, on the ground that at the time of their marriage she was pregnant by another than her husband. She filed no pleading, and gave no testimony. After hearing the testimony offered in behalf of the plaintiff, which was mainly that given by himself, the court refused to grant the divorce.
The evidence showed that a child was born seven months after the marriage, and that it appeared to be fully developed. The plaintiff testified that at the time of confinement his wife admitted that she was pregnant when they were married, and that he was not the father of the child to which she had given birth, but that she did not disclose the identity of the father of the child. He also stated that she voluntarily left his home and went to her parents’ home as soon as she recovered her strength. There was no other testimony of her admissions except that given by the plaintiff, and no corroboration as to pregnancy by a stranger or otherwise, except that the child appeared to have been born after the full period of gestation.
If the plaintiff had clearly proved that the defendant was with child by a stranger when she was married to him, and that he was ignorant of her unchastity and her condition at the time of marriage, he would be entitled to a divorce. To obtain it, however, it is necessary that there should be clear, satisfactory and convincing proof of her incontinence and fraud. It was said in argument that the trial court thought there was sufficient testimony to warrant a divorce, if that given by the plaintiff was competent, but that it regarded his testimony as to his wife’s admissions to be incompetent. He was a competent witness, and his testimony as to her admissions was admissible (Laws 1903, ch. 387; Gen. Stat. 1901, §5145; Burke v. Burke, 44 Kan. 307, 24 Pac. 466, 21 Am. St. Rep. 283); but there, is nothing in the record to show that the court held a contrary opinion. The rulings presented for review must find expression in the record itself. The history of the case brought up in the record opposes the claim of plaintiff, as he was allowed to testify, his testimony was received, and there is nothing indicating that it was subsequently stricken out or excluded from consideration. The only question we have, then, is, Did the court err in denying the divorce upon the testimony offered?
While the testimony in the transcript, if credible and satisfactory, would have justified a divorce, it evidently did not convince or satisfy the trial court. There may have been something in the appearance and manner of the plaintiff or in the circumstances of the trial that led the court to doubt the good faith of the plaintiff and the truth of his statements. The claim for divorce rested almost entirely upon his own testimony, and the court was not bound to believe him if there were discrediting circumstances, nor to grant a divorce where the evidence was not convincing and satisfactory.
Admissions of misconduct, such as fornication and concealment of pregnancy by another at the time of marriage, are cautiously received by courts, especially where the only testimony of such admissions is given by the complaining spouse. The same hesitation and caution are manifest in our statutes relating to divorce. For instance, in the section making the husband and wife competent witnesses it is provided “that nothing in this act shall be construed as authorizing the granting of a decree of divorce upon the uncorroborated testimony of either husband or wife, or of both of them.” (Laws 1903, ch. 387, §1.) The provision with reference to the competency of admissions is as follows:
“Upon the trial of an action for a divorce or for alimony, the court may admit proof of the admissions of the parties to be received in evidence, carefully excluding such as shall appear to have been obtained by connivance, fraud, coercion, or other improper means.” (Gen. Stat. 1901, §5145.)
The danger that admissions may have been extorted or collusively given to furnish a basis for a divorce admonishes courts to scrutinize the circumstances under which they were given, and to weigh them with great caution. Where they purport to have been made to the husband alone, and are related only by him, they are ordinarily insufficient of themselves to support a divorce.
The only corroborative evidence in aid of that given by plaintiff was that the birth of the child was apparently not premature. We must assume under the circumstances that the testimony did not convince the judgment, nor satisfy the conscience, of the court, and hence we cannot say that its denial of a divorce was error.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
The plaintiff in error, on September 1, 1903, filed her petition in the district court of Stafford county and alleged the following state of facts: In 1892 she was the owner of certain lands in that county; her two sons were arrested on a charge of felony and required to give bond in the sum of $300 each for their appearance before the district court; plaintiff procured the defendant and another neighbor to become sureties, and also signed the bonds herself; defendant demanded indemnity against loss by reason of signing the bonds, and for that purpose she executed and delivered to him a deed to the land in question ; her sons failed to appear as required by the conditions of the bonds and they were duly forfeited; on April 21, 1892, judgment was obtained against the sureties on each of the bonds for $300, with interest and costs, and executions were issued April 19, 1895; no execution has since been issued on either of the judgments; on May 18, 1895, the defendant paid $250 on one of the judgments and at no time has paid any more. She claimed that any further proceeding against either the plaintiff or defendant was barred by the statute of limitations; that on August 3, 1903, she caused to be tendered to defendant $373.50 and demanded a reconveynce of the land, and that he refused the money and refused to reconvey. The plaintiff has been continuously in possession of the land.
The defendant answered admitting the conveyance of the land by the plaintiff to him, denied that the deed was an equitable mortgage, and alleged that he was the owner of the land in fee simple. Plaintiff replied by general denial.
Upon the trial the plaintiff made numerous offers of proof to sustain the allegations of her petition, but the defendant objected to any evidence on her part, which objection was sustained. The court embodied in the record its reasons for the ruling, as follow:
“The conclusion of the court is that the petition shows that these judgments against the defendant, Hulme, were brought about by reason of his liability as surety under an arrangement made between him and the plaintiff by which the land was conveyed to him, and the petition shows that these judgments were duly and regularly obtained, and that they were in amount $300 each, drawing six per cent, interest, and that Hulme has made payment of $250, which has been duly credited upon one of the judgments, and that no further payment has been made, and that the judgments are not satisfied of record, and import an existing liability, except for the bar of the statute, on the part of Hulme, and the petition failing to show that the plaintiff has satisfied these judgments, and that the liability undertaken by Hulme still exists, unless barred by the statute, the legal conclusion I reach is that the plaintiff cannot interpose the bar of the statute for the defendant; that it is a personal privilege, and that as she is in a court of equity asking that the title to the land be reconveyed by Hulme to her she must first satisfy or cause to be satisfied these judgments against Hulme; that she is in no position to raise this question by pleading the bar of the statute of limitation. Asking equity, she must do equity by removing the- liability which rests upon Hulme by reason of this contract of suretyship.”
• This clearly is error. It is conceded that plaintiff and defendant were cosureties' on the bonds and that the statute of limitations had barred any further proceeding against either on the judgments. They stand in the same relation to the state, the judgment holder, yet the defendant says to the plaintiff: “You cannot plead the statute of limitations for me. It is true that for these many years neither you nor I have been able to discharge our legal and moral obligation to pay these judgments. The lapse of time has removed our legal obligation but the moral obligation to pay still remains. We may neither of us ever be able to discharge it, and since it cannot be compelled I am not sure I would pay it if I could. This moral obligation so stains your hands that you are not fit to appear in court nor to hold the title to your own land. It is true my hands are equally stained, but the title has been in them so long that it will not be fastidious about remaining there. Go pay these judgments. Do equity before you ask equity. If you are never able to pay the state, so much the better for me; I will hold your land forever, even though- you pay me all I have expended with interest.” Thus fully interpreted, the position of the defendant does not seem equitable, unless equity can be made an instrument of oppression.
The plaintiff has performed, or tendered performance of, the contract on her part, if we assume, as upon demurrer we should, the allegations of her petition to be true. She deeded the land to the defendant to indemnify him. He expended a certain sum of money under that contract and she has tendered payment of that sum with interest. All further legal liability against the defendant has been barred by the lapse of time, and the judgments are beyond revivor. If a moral obligation still rests upon her to pay the judgments, what right has he to profit by it or to say it must be discharged? She pleads the statute not to deprive him of any right or remedy but to protect herself, by showing that no further legal liability rests against him. This she had the right to do. (Elwell v. Hitchcock, 41 Kan. 130, 21 Pac. 109; Insurance Co. v. Nichols, 41 id. 133, 21 Pac. 111.)
While it is true that a stranger to an obligation cannot plead the statute of limitations in favor of the obligor, yet a cosurety who pays a debt after it is barred by the statute of limitations cannot compel contribution against his cosurety who is equally protected by the bar of the statute. (Gross v. Davis, 10 Am. St. Rep. 641, note, and cases there cited.)'
When, therefore, these judgments became dormant beyond revivor, the status of the obligation of plaintiff to defendant became fixed, and the defendant could impose no further obligation upon her by further' payments upon the judgments; and before the plaintiff could prove this state of facts she must plead it. She had the right, for this purpose, to plead the statute of limitations as to herself and as to the defendant also.
Under the facts set forth in the petition the defendant was entitled to be recompensed for the money he had paid, with interest, and no more, and by no act of his could he impose a greater obligation upon the plaintiff. It follows that the court erred in excluding evidence of such facts.
The judgment is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
A. 0. Jahren brought this suit in the district court of Butler county against his codefendant in error, Theodore Weyant, and the plaintiff in error (to whom Weyant had conveyed the land), for the specific performance of a contract of sale of certain land in that county from Weyant to Jahren. Judgment was rendered for the plaintiff below, and Sullivant brings the case to this court for review.
On May 30, 1898, Weyant wrote a letter dated at Columbus, Ohio, where he resided and continued to reside during all the negotiations in question, and addressed the same to “Real-estate Agent, Rosalia, Butler county, Kansas,” which letter came into the hands of J. C. Songer, a real-estate agent of that place. The letter described the land in controversy, about 960 acres, and related to the leasing of the same, except these words: “Or, if-you have a customer who wants to purchase, the land is for sale.”
Having received an answer from Songer in the meantime, on June 13, 1898, Weyant wrote a postal card to Songer in which the only reference to the sale of the land was the following:
“What had this land ought to sell for? Have you a customer that would buy, or give a good trade? If so, let me know.”
A number of letters passed between Songer at Rosalia, Kan., and Weyant at Columbus, Ohio, in regard to the price of the land and prospective purchasers, but nothing conferring any authority by any possible construction, or as to a definite proposition of sale, until the following letter:
“Columbus, Ohio, June 4,1900.
“/. C. Songer, Rosalia, Kan.:
“Dear Sir — Regarding the 960 acres of land in your county, I instructed Mr. S. E. Black, of El Dorado, to lease the land for the grass season of 1900, but to make the lease subject to sale, which I suppose was accordingly done. ... I will sell your customer the 960 acres of land at $2.50 per acre [the price offered by him], subject to the lease made as above stated, and for this sale I will give you a commission of $75. This sale is to be for cash, upon delivery of deed and abstract showing good title, at the bank of El Dorado, Kan.
“Please reply to this at once, and oblige,
Yours respectfully, Theo. Weyant..
“Advise me as to consideration and to whom you want deed.”
To which Songer replied as follows:
“Rosalia, Kan., June 11, 1900.
“Theodore Weyant, Columbus, Ohio:
“Dear Sir — Yours of June 4 regarding the 960 acres in this county received.
“My customer has been gone till yesterday. I have seen him and he says he will not pay $2.75 or $2.62% per acre for the land. There is no use to try to get any more out of him for the land. He is trying to deal for other land here, and says if he gets it he does not want your land. Now, I do not feel like taking less than five per cent, commission for making the sale.
“You are getting from $500 to $700 more for your land than it can be sold to any one else for, and getting the cash for the land. I told him what you had offered me as commission, and that I would not take less than five per cent., and if he would pay me enough over the $2.50 per acre above what you offered me to make my commission five per cent, that I would submit to you the proposition. He finally agreed to pay me enough over what you offered me to make my commission five per cent. Now, if that is satisfactory with you, telegraph me on receipt of this, so that I can close the deal with him before he makes other purchases, as he only agreed to wait a few days.
“Make deed to A. 0. Jahren, consideration $2400, and send deed and abstract showing good title to Farmers’ and Merchants’ National Bank, El Dorado, Kan., to be delivered upon payment of the $2.50 per acre, less the $75 to be paid to me as commission.
Yours respectfully, J. C. Songer. ■
“P. S. — Instruct bank to pay me the $75.”
To which Weyant replied with the following telegram :
“Received at S 4:30 P. M. 6-13-189..
“Dated Columbus, Ohio, 13.
“To J. C. Songer, Rosalia, Kan.: Accepted; particulars by letter; papers sent to bank.
Theo. Weyant.”
On the same day Weyant wrote and mailed the following letter:
“Columbus, Ohio, June 13, 1900.
“J. C. Songer, Rosalia, Kan.:
“Dear Sir — Replying to your letter of June 11, I will accept $2400 for the 960 acres of land, and pay you $75 commission.
“I will give warranty deed for the land, free from encumbrance, excepting the lease made by S. E. Black, who was instructed to lease the land subject to sale. Abstracts and other papers will be sent to the Farmers’ and Merchants’ Bank of El Dorado, with instructions to turn the papers over on receipt of $2400, out of which you are to have $75 commission. My interest in the lease will be assigned to your purchaser.
“There is some taxes to be paid, but I will instruct the bank to deduct the amount, whatever it is, from the $2400.
• “Regarding the lease above referred to, Black was instructed to lease the land subject to sale, which, if done as instructed, would not affect our deal, as Black wrote me that he had leased the land, according to instructions, at fifteen cents per acre.
“The papers will go forth to-day to the bank, and the deal can be closed up without delay.
Yours very respectfully, Theo. Weyant.”
There' were no personal interviews between Songer and Weyant, and these are the only writings that could bear upon Songer’s authority as agent of Weyant.
Three days after the date of this last letter and telegram, and after such letter and telegram had been received at Rosalia, Kan., Songer undertook, as the agent of Weyant, to execute with A. 0. Jahren a written contract, signed by Jahren and by Songer, affixing Weyant’s name thereto by himself, as agent. Among the provisions of that contract is the following:
“In consideration of which said party of the second part [Jahren] covenants and agrees to pay unto said party of the first part [Weyant], for the same, the sum of twenty-four hundred ($2400), dollars, as follows: On delivery of warranty deed and abstract of title showing perfect title in said Theodore Weyant, and delivery of possession of said above-described premises to said A. 0. Jahren, possession of said premises being the essence of the time of payment.”
This correspondence between Weyant and Songer did not authorize Songer to make any written contract whatever for the sale of Weyant’s land; indeed, it is evident that no written contract was contemplated or was in any way necessary. The deed forwarded by Weyant was all the contract necessary on his part, and the acceptance of the same and the payment of the money was all that was to be done on Jahren’s part. Even if the written contract had been necessary, and had been authorized by Weyant, there was. an utter want of authority to embody in the same the provision above copied.
A broker employed to sell lands has no implied authority to sign a contract to sell on behalf of his principal; but if he had such authority, if the contract varies from his instructions the principal will not be bound by it. (Morris v. Ruddy, 20 N. J. Eq. 236.)
It is claimed that Weyant ratified the written contract. Before one can be held to have ratified a con tract he must have full knowledge of what the contract is, and neither Songer nor the attorneys of Jahren who wrote to Weyant on the day the written contract was made, after the making of the same, even hinted to him that the writing had been made. In fact the letter of Jahren’s attorneys, written almost immediately after the execution of the contract, not only omits any reference to the contract, but says:
“Mr. Jahren purchased this with the distinct understanding that he was to have possession on payment of purchase-price and delivery of deed.”
Following this is a proposition for a new contract, viz., that Weyant deduct eighty-five dollars from the purchase-price.
It is difficult to interpret Jahren’s conduct in making the contract as having been in good faith. Yet he asks a court of equity to compel a specific performance of the contract. His equitable claims are, to say the least, doubtful. The legal questions as to the validity of the contract upon which he sues are against him.
Weyant gave Songer no express authority to make a written contract, and no such authority is implied. Jahren was bound to inquire as to Songer’s authority at his own peril. The contract as made was not in conformity with Weyant’s proposition of sale, and hence would have been invalid if it had been authorized to be made according to such proposition. (Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Treat v. De Celis, 41 id. 202; Everman v. Herndon, 71 Miss. 823, 15 South. 135; Morris v. Ruddy, 20 N. J. Eq. 236; Halsey v. Monteiro, 92 Va. 581, 24 S. E. 258; Carstens v. McReavy, 1 Wash. 359, 25 Pac. 471; 4 A. & E. Encycl. of L. 964 [note]; Mech. Ag. §966.)
Some of these cases involve only the right of the agent to recover his commission for making a sale. An agent may proceed so far in execution of the purpose for which he is employed as to entitle him to his commission and still be far short of consummating a contract upon which a suit for specific performance could be sustained against his employer. (Helling v. Darby, ante, p. 107, 79 Pac. 1073.)
The following from Carstens v. McReavy, supra, seems applicable to this case:
“We cannot shut our eyes to the obvious defect in the argument that authority to sell, in this instance, necessarily implies authority to execute a contract. A sale of land, ‘executed with effect,’ includes the execution of a deed and the delivery of possession, neither of which the agent can do, unless his authority to sell is supplemented by the delivery of possession to him and a power of attorney to convey. So that he does not, although in possession of the authority to sell, have all the necessary means of executing that authority with final effect. He stops short somewhere, and when we are inquiring where the probable and proper place of his stoppage is, the evils that would attend the extension of his actual authority beyond the finding of a purchaser furnish ample reason for fixing his limit there. An agency of this kind may be created by the slightest form of words, without any writing, leaving it to litigation to determine whether the substance of the authority is ‘to sell’ or ‘to find a purchaser,’ wherein the unscrupulous and dishonest agent would be at once arrayed as the principal witness against his client, with every advantage, from some note, ‘made at the time,’ of what the instruction was. Perjury would go at a premium in such cases, and the confiding and unlettered would be its victims. Scarcely any man, when listing his property with a real-estate agent, stops to give details either as to the property itself or as to the arrangements he desires to make, yet no one would sell upon equal terms to a first-class business man and to an habitual drunkard, or well-known insolvent; and the ordinary owner would not sell at all to a person whose very occupancy would tinge the neighborhood with a bad repute. These are good reasons, and are, probably, some of the reasons why custom and the law have made it not necessary that real-estate agents should actually procuré contracts in order to earn their compensation; and why, in this connection, the common ■ understanding of the phrase ‘authority to sell’ means only au thority to find a purchaser, whether the authority be given orally or by written request.”
The trial court made certain findings of fact as to the authority of the agent to make this contract. The authority given by the owner of the land to his agent in this case was all embodied in letters and a telegram. Not being ambiguous, what they mean is a question of law and not of fact, and this court is not hampered by the findings of fact made by the trial court as to the meaning of these writings.
The judgment is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
At its session of 1901 the legislature passed an act enabling cities of the first class to provide by ordinance for the prohibition of the sale of intoxicating liquors contrary to law and for the suppression of liquor nuisances. The method whereby such ordinances may be enforced was definitely prescribed, as follows:
“Such ordinances may be enforced by imposing as a penalty for the violation of the same a fine of not less than one hundred dollars nor more than five hundred dollars, and imprisonment for not less than thirty days nor more than six months for each offense, and payment of the costs, and shall provide for commitment until fine and costs are paid.” (Gen. Stat. 1901, §2499.)
This law took effect March 1, 1901. Afterward an ordinance was passed by the council of the city of Topeka, and duly approved and published, which undertook, within the limits of the city, to prohibit the sale of intoxicating liquors and to suppress places where intoxicating liquors are used and sold, except for lawful purposes. Section 14 of such ordinance prescribes the penalty to be inflicted for a violation of its provisions (except those contained in section 5, which are not material to this controversy), and reads as follows:
“Sec. 14. Any person violating any of the provisions of this ordinance, except section 5, shall upon conviction be punished by a fine of not less than one hundred dollars nor more than five hundred dollars and by imprisonment in the city jail not less than thirty days nor more than ninety days for each offense.”
In March, 1905, the petitioner was convicted of an offense against this ordinance, and adjudged to pay a fine of $100, to be imprisoned in the city jail for a period of thirty days, and to remain committed until he should fully comply with the judgment. Under this judgment he was confined in the prison of the city of Topeka, and is still detained there for want of compliance with its terms. The time in which an appeal might have been taken having elapsed, the petitioner asks for his discharge upon a writ of habeas corpus, claiming that the ordinance referred to is void on account of its disobedience of the statute authorizing its enactment.
There is no dispute in the law that municipal corporations are creatures of the legislature, and must look to it as the fountain of all their authority. Without a grant of power, either express or arising by necessary implication, they cannot enact ordinances at all, and the right to punish criminally conduct already made an offense against the state law must be given in clear and unmistakable terms or it cannot be recognized.
“It is, therefore, acknowledged by text-writers, supported by abundant authorities, that a municipal corporation has no right to enforce obedience to the ordinances which it has the power to pass, by fine or imprisonment, or other penalty, unless that right has been _ unquestionably conferred by the lawgiver; for this is inflicting a punishment for the commission or omission of an act declared an offense, a prerogative which, as a rule, appertains to the sovereign only.” (State v. Bright, 38 La. Ann. 1, 4, 58 Am. Rep. 155. See, also, Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. Rep. 175.)
It is likewise universally conceded that if power be given to enforce ordinances by fine or by imprisonment, or by the imposition of any other penalty, the method prescribed must be followed literally.
“Since all the powers of a corporation are derived from the law and its charter, it is evident that no ordinance or by-law of a corporation can enlarge, diminish, or vary its powers.
“Where the charter or organic act prescribes the manner in which by-laws are to be enforced, or the sanctions or punishments to be annexed to their violation, this constructively operates to negative the right of the corporation to proceed in any other manner or to inflict any other punishment.” (Dill. Mun. Corp., 4th ed., §§317, 339.)
The ordinance in question violates the statutory grant in respect to the term of imprisonment, the assessment of costs, and commitment until fine and costs are paid. Therefore it is void.
It is urged that the statute allows to the governing bodies of cities a discretion to graduate punishments as they see fit within the limits prescribed. Ordinarily such a rule of interpretation may be applied. Discretion to determine the character and quantity of punishment is quite analogous to the discretion to decide whether or not breaches of municipal order shall be punishable at all; but there is no reason why selling intoxicating liquor or maintaining a liquor nuisance is not as heinous in one city as in another. The evils to be remedied are precisely the same in all cases, and the offense itself is necessarily of the same grade wherever it may be committed. The deserts of different offenders may be widely different. Mitigating circumstances may exist in any case which would render a sentence above the minimum unjust, when an old malefactor would merit the limit; but, as between cities, there.is no ground to consider comparative degrees of enormity in respect to this offense, and in practical application discretion in the city to fix penalties results in a pandering to the supposed peculiar sentiments of particular localities, makes punishment lightest where violations are most numerous and flagrant, creates confused notions concerning the character of liquor-selling as a municipal offense, and tends to obstruct general enforcement of the prohibitory law.
Under these circumstances the legislature, through the Hurrel law, undertook to place liquor prosecutions under both state and municipal regulations upon the same basis, not only with respect to punishments but also with regard to many other matters, and to secure uniformity it dictated with definiteness and precision every detail of the penalty part of liquor ordinances for every city in the state, leaving nothing whatever to the discretion of the local governing bodies so far as that subject is concerned. This being true, nothing short of exact compliance with the statute will suffice.
In the case of the City of Assaria v. Wells, 68 Kan. 787, 75 Pac. 1026, the only matter decided was that an ordinance which imposes as a penalty for its violation less than the minimum punishment required by the statute is void.
The omission from the ordinance under consideration of provisions relating to costs, and to imprisonment until fine and costs are paid, is not less fatal. The statute is a special one. General provisions of law relating to organization, government and powers of cities are passed by. Explicit direction is given concerning what the penalty part of any ordinance upon the subject of intoxicating liquors shall contain, and proceedings under an ordinance must be conducted according to the directions given in the statute, in all matters enumerated. Whenever both general and special delegations of authority are made to municipal corporations the special grants must be followed in everything to which they relate. (State v. Ferguson, 33 N. H. 424.) The prohibition to pass any other kind of ordinance is as clear as if the law expressly so stated (Huesing v. City of Rock Island et al., 128 Ill. 465, 21 N. E. 558, 15 Am. St. Rep. 129); and any judgment rendered must find the field of its operation, and the basis of its validity, in the ordinance itself.
Since the section of the ordinance fixing the penalty to be assessed for its infraction is void the entire ordi nance is void. (Smith v. Gouldy, 58 N. J. Law, 562, 34 Atl. 748.) The ordinance being void in 1901, the city charter act of 1903 could not aid it. (Bostock v. Sams, 95 Md. 400, 52 Atl. 665, 59 L. R. A. 282, 93 Am. St. Rep. 394.)
That the petitioner is entitled to relief by means of a writ of habeas corpus cannot be questioned. (In re Jarvis, 66 Kan. 329, 71 Pac. 576.)
The judgment of the court is that the petitioner be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
This case has been in this court twice before (Investment Co. v. Burdick, 58 Kan. 517, 50 Pac. 442, and Investment Co. v. Burdick, 67 id. 329, 72 Pac. 781.) In the latter ease the cause of action was pending on a petition almost identical with the one now under consideration, with respect to the allegation of damage from the premature bringing of the former action and the allegation of damage for the breach of a written contract. This court then held that the petition stated, or attempted to state, two causes of action. (67 Kan. 333, 334, 72 Pac. 781.) On the return of the case from this court, upon leave of court obtained, the plaintiffs filed a “second amended petition,” which is very lengthy and recites the former history of the case and some of the former pleadings in the case. It covered nineteen pages of typewritten matter, divided into paragraphs from 1 to 16, inclusive. The eleventh, twelfth and thirteenth paragraphs are as follow:
“11. That on or about the 20th day of April, 1890, this defendant company commenced an action of foreclosure in the district court of said Osage county against these plaintiffs as defendants, by filing its petition and suing out summons thereon, in which petition said company alleged the execution of said note and mortgage by plaintiffs and attached what was therein alleged to be a copy of the note with all indorsements, but there was no indorsement thereon qf the interest payment which these plaintiffs had made as aforesaid, and attached a copy of said mortgage, and withheld all the other of said written instruments which constituted parts of the same contract, and alleged that these plaintiffs had wholly failed and defaulted in the payment of said $376.36, the first year’s interest on said $4672, the principal of said note, and in the payment of said $36.96 taxes, and that no part of said note or interest or taxes had ever been paid by these plaintiffs, and declaring the whole of said sum and sums and interest thereon to then be, and, because of such defaults of payments, to have become, immediately due and payable, and demanding the judgment of the court accordingly and for the whole amount of the interest from the date of the note, without any credit, together with the entire principal, and $36.96 taxes, which the company had paid on the land, and the foreclosure of all interest of these plaintiffs in said land and every part thereof, and demanding the order and process of the court for the immediate judicial sale of the whole eighty acres as an entire tract, in conformity to the judgment which was so claimed by this defendant. And these plaintiffs duly appeared and filed their answer as defendants in that action, and wholly denied therein all the defaults and failures of payments alleged against them, and alleged their said payment of the first year’s interest, and said due tender of the taxes as hereinbefore stated, and that they had been and were ready and willing to pay said $36.96 taxes, and that the same was duly deposited in the court for the company, and praying that said foreclosure action might abate; and they so duly deposited the $36.96 taxes with the filing of their answer accordingly; and on the 22d day of May, 1890, the company filed its reply in that action, in which it denied all the averments of said answer of these plaintiffs therein; that said action was duly submitted to and tried by a lawful jury on the 12th day of September, 1890, in the district court of Lyon county, Kansas, to which court said case had been duly removed on change of venue, and a verdict on said issues rendered in favor of these plaintiffs, and afterward, on the 1st day of December, 1890, the final judgment of said Lyon county district court was duly rendered on said verdict, overruling said company’s motion, for a new trial therein, and abating said action, and awarding costs to these plaintiffs, to all which said company excepted, and asked and obtained an allowance of 150 days thereafter in which to prepare, serve and have settled and certified a case-made for the review of said cause in the supreme court, but no such case was ever pre pared, and said judgment of December 1, 1890, was never appealed from or reversed.
“12. That on the 24th day of July, 1890, said company, as plaintiff, had duly commenced an action of injunction against these plaintiffs, as defendants, and in its petition therein, under oath, set out and alleged the whole contract between these parties, the same as plaintiffs have herein set out the same, and alleged that these plaintiffs had wholly violated, broken and disregarded the contract not to convert the land into a farm, or use the same for farm purposes, in that they had allowed stock to graze and pasture on the land, greatly injuring the parks, ornamental grounds, ornamental grasses and ' ornamental shade-trees, grape-vines and fruit-trees growing in the parks on said real estate; and that the whole debt stated in the contract was due and unpaid, and alleging the pendency of the first foreclosure suit on the mortgage as above stated, and praying for a temporary injunction against these plaintiffs from pasturing and grazing live stock on the land, to the impairment of the company’s interest under the mortgage sought to be enforced in said foreclosure suit, and that such temporary injunction be made perpetual upon the final hearing, and that these plaintiffs be forever and perpetually forbidden and enjoined from using said land for pasturing and grazing live stock thereon; and these plaintiffs duly filed their answer in said action, wholly denying said acts charged against them therein as a violation of the contract; and said temporary injunction was kept in force and said action pending until the 21st day of May, 1894, when the same was finally tried in the district court of Lyon county, Kansas, to which court said cause had been duly removed on change of venue; and thereupon said court duly adjudged and decided that said company, plaintiff therein, had not stated or showed any cause of a separate action or right to relief independent of said mortgage foreclosure suit and not ancillary thereto, and dismissing said injunction suit and awarding the costs to these plaintiffs, defendants therein; upon which final judgment in said injunction case said company prosecuted a petition in error to the supreme court of Kansas, which court, on the 9th day of October, 1894, duly and finally dismissed said proceeding in error, with costs against said company.
“13. That during the pendency of said two actions of the defendant to establish judicially that plaintiffs had violated the contract by using the land for farm purposes, and that the whole $4672 had become due before the commencement of said first foreclosure suit, the defendant wholly refused to receive any partial payment, and claimed that by such alleged faults of plaintiffs it was wholly discharged, and wholly refused to be bound by any of the obligations of the contract on its own part, and refused to cooperate in or consider any sales of lots which plaintiffs had made or might make, and refused to grant any releases of its mortgage on lots sold by plaintiffs and tenders of partial payments by them, as required by the terms of the contract; that while said first foreclosure suit was pending, and prior to the determination on the 1st day of December, 1890, these plaintiffs, in the development of said property, offered said lots for sale and negotiated and consummated sales of a large number of lots to various persons, among whom were David Overmeyer, S. Barnes, P. E. Gregory, John Gathercole, and W. F. Bailey, so far as such sales could be consummated without the concurrence of the defendant in releasing its mortgage on the lots so sold, and duly tendered to the defendant twelve dollars for each of said lots so sold, each of them being of the area aforesaid, and also tendered the cost of making releases and for releases of the same, and at the time of such tenders requested the defendant to give releases of its mortgage on the lots sold, respectively, and the defendant rejected such tenders and refused such releases, and declared that because of and during the pendency of said suits and their continuance in court it would not receive any partial payments less than the whole amount, nor give any partial releases of its mortgage; and after December 1, 1890, and after said judgment in determination of said first foreclosure suit, and before the maturity of said note and mortgage upon their face, these plaintiffs formally dedicated the streets, alleys and public grounds on said land, by duly executing and acknowledging the said plat thereof and having the same duly certified and recorded in the office of the register of deeds of said Osage county, and gave due deeds of the conveyance of lots accordingly, and negotiated and consummated yet other sales of other lots as far as they were able to consummate such sales without the cooperation of the defendant, among others, to J. S. Jordan, Joel Huntoon, and John Gathercole, and duly tendered twelve dollars on each of said lots, of the area aforesaid, and in response to said tenders and demands for 'releases on the lots sold the defendant declared that its said contention that it was not bound to receive partial payments and give releases was still pending, notwithstanding said judgment of December 1, 1890, from which it had taken steps to appeal, and that it would receive no partial payments and give no releases because of the same, and that it therefore rejected said tenders last aforesaid and refused the releases demanded thereon.”
It is apparent from the mere reading of these three sections of the petition that an attempt, at least, is made to state three separate causes of action, upon which three separate actions might have been maintained. On the hearing of the motion to require the plaintiff separately to state and number these causes of action it would have been error for the court to deny the same. (Pierce v. Bicknell, 11 Kan. 262.) The court did allow the motion, and the plaintiffs refused to comply with the order of the court on the ground, as they claim, that these matters are all embraced in one cause of action, viz., a breach of the written contract, and that the contract had been so destroyed by the defendant that they could not adequately show the damages they had suffered without pleading all of the transactions between the parties, however remotely connected with the contract, in one action. There is no force in this claim. If there be any merit in it the object can be easily attained by pleading the facts constituting the first cause of action separately, and, as to any subsequent cause of action, the facts should be separately pleaded which are pertinent only to that cause, and reference may be made therein to particular facts stated in any former cause, and. such facts may thereby, without repetition, be made a part of such subsequent cause. Any fact common to several causes of action or defenses once pleaded in one cause of action or defense may be made a part of any subsequent cause of action or defense in the same pleading, by specific reference thereto, without repetition. (L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 26 Pac. 16; Stewart v. Balderston, 10 id. 131, 145.)
The order and judgment dismissing the action is ' affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
S. M. Bonar was convicted of murder in the second degree for the killing of Dr. N. M. Smith, and appeals to this court. Numerous errors are assigned, some of which are abandoned, and but few of which require discussion.
The defendant’s challenges of three jurors for cause were overruled when made. Afterward the defendant challenged the same jurors peremptorily. Later in the progress of selecting the jury the court reconsidered its former rulings, allowed the peremptory challenges to stand as challenges for cause, and permitted the defendant three other peremptory challenges in their stead, which he duly exercised. He now complains of this departure from the order prescribed for the impaneling of the jury.
The statute relating to the subject is not one of those whose unarbitrary non-observance by the court is deemed to be misconduct as a matter of law. If the purpose of the variation be the correction of an error, prejudice in fact must appear to warrant the granting of a new trial. A very elaborate argument is made to show that through a violation of the regular method of procedure the organization of a jury might be manipulated to the detriment of a defendant, that the plans of his counsel might be disastrously disconcerted, and that it might be difficult to bring upon the record the facts showing prejudice. But the discussion does not descend from the realm of speculation. Its theo retical validity may be conceded; but so far as the record discloses the conduct of the court in this case seems to have proceeded solely from a desire to secure to the accused an absolutely impartial and unprejudiced jury, and no effort has been made-to show even the slightest embarrassment resulting to the defense. Therefore the claim of error has not been substantiated.
Complaint is made because certain jurors were not excused upon challenges for cause, and because of the action of the court in propounding to them certain questions to ascertain their competency. No novel proposition of law or unusual question of fact is presented, and it is sufficient to say that the jurors were qualified and that the conduct of the court was proper. The argument based upon the assumption that juror Holmes purposely used the word “murder” with an. accurate understanding of its technical legal signification is utterly confuted by the unmistakable tenor of his examination as a whole.
Conceding that under certain circumstances it may be improper for the county attorney to read the dying declaration of the victim of a homicide as a part of his opening statement to the jury, no error in that respect was committed in this case, because of the full admonition of the court to the jury, given at the time, and the subsequent introduction of the document itself in evidence.
It is immaterial whether or not the statement of Doctor Smith referred to in the testimony of T. P. Roney was a part of the res gestse, since the defendant himself, when a witness in his own behalf, admitted and reasserted the fact expressed by the statement.
It was proper to show in evidence all the wounds, suffered by the deceased as a result of the encounter. The bullets extracted from his body corroborated the allegations of the information, and the cigar-stub epi sode had a material bearing upon the question of who was the aggressor when the shooting took place.
Doctor Smith’s ante-mortem statement was read in evidence. The only objection to its admissibility worthy of discussion is that it was not made in articulo mortis and under a present sense of impending death, unillumined by hope of recovery.
The declarant was himself a doctor. He was shot in the shoulder, and through the abdomen; the portal vein was severed, and his condition was one which his own medical experience might well interpret. Between eight and nine o’clock in the evening he said to a friend: “Senator, I am all in.” The friend said: “Doctor, it is n’t so bad as that, is it?” To which he replied: “Yes; I don’t think I will live until morning.” After that he passed into a stupor, and at no time before his death expressed any hope of recovery. He was capable of being roused, and at such times was entirely rational. After the conversation referred to he was examined by a surgeon called for the purpose, who concluded the wound was necessarily fatal because the portal vein had been severed. The surgeon advised him of his condition, and recommended an operation at once for whatever relief was possible. He replied that he would like to wait for his son to come. The operation was performed before eleven o’clock. Shortly before it was undertaken, and at. about the time the statement was made, he remarked,, when under the stimulus of great pain: “I can’t stand, this very long.” He died a few minutes after two' o’clock that night. From this it is apparent he believed himself to be mortally wounded, and fixed the next morning as the ultimate limit of the natural process of dissolution; that he feared the operation might hasten death, and desired that it be postponed to give him an opportunity of seeing his son; and that the pain he suffered led him to believe that the end was very near.
It is immaterial that the form of the declaration was that of an affidavit. Contained in it were some facts not properly provable by a dying declaration, but no motion was made to exclude them. Under the elementary rule the objection to the declaration as a whole did not reach this defect, and no prejudice resulted, since the defendant, when a witness in his own behalf, related substantially the same facts.
The instructions refused were covered in every particular by those given. The instructions given were not obscure or unduly prolix, and correctly stated the law.
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.:
The question in this case is whether a certain bank deposit is general or special. The plaintiff in error, a woman, left money at a private bank, stating to the banker that she believed she would leave it for a few days, and that she wanted him to keep it for a short time. The money consisted of a roll of bills, neither wrapped nor tied, and not enclosed within any bag or box or other kind of receptacle. Upon the delivery of the money she was given an ordinary pass-book, in which the transaction was entered as an ordinary deposit. No request was made that the money be kept apart from the funds of the bank, no special agreement was made as to the character of the deposit, and ordinary deposit slips were prepared at the time, from which the books of the bank were afterward written up. The bank failed, and a receiver was appointed to take charge of its affairs. Upon the hearing of an application for an order upon the receiver for a return of the deposit to the plaintiff in error, she testified that when the deposit was made she did not expect a return of the identical roll of bills, that she knew her money would be handled, may be several times, before she would get it out again, and that it made no difference to her whether she received gold or silver or paper, so she got it. No attempt was made to identify, in the receiver’s hands, the bills that had been deposited.
Under all the authorities these facts show a general deposit. (Note to Plano Manufacturing Co. v. Auld, [14 S. Dak. 512], in 86 Am. St. Rep. 775; Zane, Banks & Bank., §§129, 136, 162; 3 A. & E. Encycl. of L. 827; 5 Cyc. 513.)
When the deposit was made the plaintiff said she did not want a check-book because she intended drawing all the money in a few days, and that it was not necessary that she have a bank-book; but these facts did not change the essential character of the deposit. She did take a bank-book, and the money was subject to check for any amount whenever she saw fit to demand it. She further said that she did not want to become a regular depositor at the bank; but this observation could mean no more than that she did not contemplate making a practice of leaving money there. At the time the deposit was made the banker remarked that he understood she was going to build, and she then explained to him something of her plans with reference to the use of the money when she should withdraw it; but this fact did not change the legal relation of the parties. The only duty resting upon the bank was to pay in kind, on demand, whatever the purpose of the withdrawal might be.
The plaintiff in error was the only witness in the case, and in view of her conduct and admissions her declaration at the hearing that she did not intend to deposit her money was of course nugatory.
In the application to the court facts were alleged tending to show a right in the plaintiff in error to rescind the deposit and charge the bank as a trustee ex maleficio, but no evidence concerning them was offered. It was not necessary that the receiver should deny the charges of the motion in order to put the plaintiff in error upon proof of them.
The judgment of the district court, having been rendered in accordance with these views, is affirmed.
All the Justices concurring. | [
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Per Curiam:
The brief of counsel for plaintiff in error contains no statement of facts or assignments of error. - After en titling the ease the brief reads: “The court is referred to section 4852 of the General Statutes of Kansas, 1901.”
After reading the section cited we have failed to discover its relevancy to the case. It has no application to any question involved.
The proceedings in error are dismissed. | [
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Per Curiam:
The errors assigned in this case can practically he resolved into one question, viz., Is there sufficient evidence to sustain the findings of the jury, in short, that plaintiff’s horses were injured by defendant’s train, or were they injured by falling into a culvert? The nature, extent and location of the injuries, marks upon the track, upon the embankment, and upon the horses themselves, in the absence of direct evidence seem sufficient to sustain the findings and verdict, especially after they have been approved by the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The conclusion at which the court has arrived as to the merits of the action makes it unnecessary to consider the cross-petition in error filed by the defendant in error. The smelting company first contends that the plaintiff below abandoned all of his causes of action alleged in his petition except two. The petition contained seven specific allegations of negligence, which may be summarized as follow: (1) That defendant failed to inspect the wall and arch that fell and injured the plaintiff; (2) that it negligently failed to shore up the wall that fell; (3) that the defendant negligently failed to furnish timbers or appliances for shoring up the wall; (4) that' the defendant negligently proceeded with the work of taking down the buck stays without having taken any precaution against the arch and walls falling; (5) that the defendant adopted and pursued a dangerous plan and method in taking down the wall, in that the defendant should have taken down the arch and flue before removing the buck stays; (6) that defendant failed to furnish the plaintiff a safe place to work; (7) a failure to give plaintiff warning of the removal of the buck stays and rods, and the placing of men at work on the flue or boiler, and the fact that such work weakened the walls and arch and caused them to fall. In the brief ‘of plaintiff in error it is contended that all but two of these grounds were abandoned by the plaintiff below because the plaintiff’s attorney only stated two of them. This is untenable. The issues are determined by the pleadings.
As opposed to the claims of negligence, the defendant below asserted that the plaintiff knew as well as did the defendant the dangers to which he was exposed, and by implication agreed to assume the risk of injury; that the defendant was not under obligation to furnish plaintiff a reasonably safe place to work, but only a reasonably safe place considering the hazardous nature of the work itself; that the employer has the right to judge for himself the manner in which he will carry on his business, and a servant having knowledge of the circumstances must judge for himself whether he will continue in the service; that the defendant was under no duty to inspect the structure, because there was nothing to suggest the necessity for an inspection; that the injury occurred as the result of the risk that was apparent to the plaintiff, and that, after .the accident happened, he should not be permitted to Shift the responsibility.
The instructions of the court fairly presented to the jury the theories of both the plaintiff and the defendant, and it seems that the case was submitted to the jury under proper instructions. While there was evidence in support of both theories it was for the jury to determine what they would believe, and they evidently believed the defendant was negligent. The very circumstances of the case are strong evidence in support of the plaintiff’s claim. The fact that the smelting company, after the construction of the structure, found it necessary or advisable to place buck stays for the support of the north wall at a time when the heavy iron flue did not rest upon the arch, but was supported by the roof, and the wall itself was not exposed to the elements and wet by the rain — these facts, of course, presumably being known to the defendant — would reasonably lead the jury to infer that the smelting company ought to have exercised care in taking down the structure, and ought not to have cut the rods that supported the top of the buck stays and allowed the heavy iron flue to rest upon the arch or removed the buck stays themselves without making some provision for shoring up the wall, at least without notifying the plaintiff of the dangers attendant upon such work. It was in evidence that the plaintiff did not know these facts; and while there was evidence tending to show that he did know them, the question presented was one to be answered by the jury.
If the plaintiff below knew all the facts, and saw fit to accept employment and to work in a dangerous place, he must be presumed to have accepted the risk, and cannot shift the responsibility for the accident; but if he did not know that the arch was cracked, that the wall was already leaning out slightly from a perpendicular, that the wall was wet, that the ground at the base of the wall was wet, and other facts concerning which there was evidence, and if the smelting company, or its foreman, knew these facts, or in the exercise of ordinary care ought to have have known them, and did not warn the plaintiff of the danger, then the smelting company should be responsible for the injury.
We have examined the various objections to the introduction of testimony and have failed to discover any material error. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
George W. Bousman sued the city of Stafford to recover damages for injuries received in a fall caused by a defective sidewalk. A jury found against him, and a judgment was rendered for the city, from which he prosecutes error. The only complaint necessary to be passed upon is based upon the denial of a motion for a new trial on the ground of newly discovered evidence.
One of the important questions of fact tried was whether the plaintiff had actually been hurt at all. No special findings were made, and for anything that appears in the record the general verdict may have been the result of a belief on the part of the jury that his injuries were purely imaginary. As alleged by him they were internal, and of such a character that their existence and origin could at the time of the trial only be shown by his own statements, and by the opinions of medical experts. The trial was ended May 27, 1903. On Juné 26, but at the May term of court, the plaintiff filed a motion for a new trial upon the ground of newly discovered evidence, the character of which was not stated in the motion. In support of this motion, which was heard at the next term of court, in October, there was introduced an affidavit of a surgeon stating that on August 12, 1903, he operated upon the plaintiff, opening the abdomen, and found that as the result of an injury an intestine had been ruptured, and an abscess had formed, from which various complications had ensued.
The pertinence and importance of this evidence is not disputed, but the defendant contends that it was not sufficient to require the granting of a new trial, because it was merely cumulative. It is true that a physician who had made an examination of the plaintiff testified that in his judgment the symptoms observable pointed to the probable existence of the conditions afterward found by the surgeon. Other physicians testified that, disregarding the statements of the plaintiff himself, they could find nothing to indicate that he had suffered any rupture of the intestines. The surgeon’s testimony was confirmatory of that of the physician first referred to, but it was not cumulative to it in the sense here involved. To be cumulative in this sense new evidence must not only tend to prove the same fact already testified to, but it must tend to prove it in the same way — it must be “evidence of the same kind to the same point.” (14 Encyc. Pl. & Pr. 812; see, also, 12 Cyc. 992.) The physicians could only give their opinions as experts upon a matter necessarily involved in some doubt. The surgeon told of a plain physical fact about which there could be no mistake. His evidence was not of the same character as theirs, and was not merely cumulative to any of it.
It is further objected that the plaintiff might by due diligence have produced at the trial the equivalent of his newly discovered evidence. It is not meant by this that due diligence required that he should have had an operation performed prior to the trial, but that he might have obtained the evidence of other physicians and surgeons who would have testified to the existence of a rupture from a mere external examination. There is nothing in the record to suggest that such testimony could have been obtained, • but even if so, for the reasons already stated, it would have been no sufficient substitute for the testimony of the surgeon, which obviously could only have been procured after the operation.
An objection is also made to the granting of the motion for a new trial upon the ground that the court had no right to consider the affidavit of the surgeon, for the reason that it related to a fact that was not known to the plaintiff, and could not have been known to any one, at the time the motion for a new trial was filed. The argument is that when a motion for a new trial on the ground of newly discovered evidence is filed it must be taken to refer to evidence that has already been discovered at that time, and cannot be supported by evidence of matters afterward developed; that unless this is true a defeated litigant may utilize upon such a motion new evidence discovered after the expiration of the trial term, whereas the statute contemplates that such evidence can only be made available by an independent action under section 310 of the civil code (Gen. Stat. 1901, §4758). If the motion for a new trial were required to be verified by affidavit when filed there might be good ground for this contention. The statute, however, imposes no such requirement, and no reason is apparent why one who has within proper time — that is, before the expiration of the term — filed a motion for a new trial on the ground of newly discovered evidence may not at the hearing present any matters pertinent to the issue, whether they came to his knowledge before or after the filing of the motion, or before or after the close of the term. (Werner v. Edmiston, 24 Kan. 147; Railroad Co. v. Gaston, 67 id. 217, 72 Pac. 777.)
Complaint is also made of an instruction given by the court which was correct as a general proposition of law, and unobjectionable as applied to one feature of the evidence, but which might naturally have been understood by the jury to have had reference to an entirely different matter, in which event it would have been misleading and highly prejudicial. The failure so to limit the language of the instruction as to guard against such possible misapprehension was a manifest inadvertence. It is not necessary to determine whether such omission would of itself require a reversal, since that result follows from the conclusion already announced with relation to the motion for a new trial.
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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Per Curiam:
In this case the trial was had before the court without a jury. In passing upon objections made to the introduction of evidence, and upon motions to strike out evidence admitted over objection, the court fairly indicated its intention to revise its rulings by the constant use of expressions of the following character: “I will not strike that out at this time;” “I will not strike it out now;” “I will receive them subject to the objection of counsel;” “The application to strike out at this time will be refused.”
The case was taken under advisement, and the presumption must be that the court carried out its purpose, and that in making findings of fact it ignored all evidence to the introduction of which objections should have been sustained.
This court has read the record, and finds that it contains ample evidence properly admitted to sustain the findings of fact; and the facts found fully warrant the judgment rendered. Therefore, it is affirmed. | [
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The opinion of the court was delivered by
William R. Smith, J.:
This was an action in mandamus, brought by plaintiff in error in the district court to compel the firm of Arnett & Hobart, doing business as the Iola Telephone Company, to replace in his residence a telephone instrument which, it is alleged, was arbitrarily removed therefrom by the company.
Evidence was offered by the plaintiff showing that defendants, when this controversy arose, had been operating a local telephone system in Iola and vicinity for about seven years, and that the residence in which Crouch lived had been supplied with an instrument during that time. Three other persons, however, had lived in the premises during the time previous to the occupancy of plaintiff. There were 460 patrons of the telephone company in Iola and vicinity, 26 of whom were outside the city limits. The company also maintained telephones in connection with the Iola exchange at Gas City, three and one-half miles east, and at La Harpe, three miles further distant.
The residence of plaintiff was situated on grounds adjoining the city but not within the corporate limits. The pole from which the wire extended into Mr. Crouch’s home was thirty feet from the house and situated within the corporate limits of Iola. A dispute arose between the company and Mr. Crouch respecting the payment of telephone charges, resulting in threats by the former to remove the instrument, but before it was taken out a payment was made, so that the question of the delinquency of the plaintiff is not a factor in the case.
Testimony introduced on behalf of the telephone company tended to show that telephones were installed in manufactories outside of the city — cement plants and brick-works — but that none of them was in the vicinity of Mr. Crouch’s residence, the nearest being about half a mile. The zinc smelter adjoining the city to the northwest, the ice plant, a laundry, the water-works company and the pest-house west of the city limits were also supplied with telephones. Instruments were also furnished at the residences of four persons outside of the corporate limits of Iola, but these persons either furnished or paid for their own lines and poles.
Defendants in error were granted by ordinance the right to construct a telephone line in the city of Iola, and to use the streets and alleys for the erection of poles.
A trial before the court, without a-jury, resulted in a judgment in favor of the telephone company, and plaintiff complains.
It may be conceded that defendants below, by devoting their property to public employment, and by putting it in the service of the public, thereby subjected it to the regulation of the legislature and control of courts to the same extent as other common carriers are controlled. (State of Missouri v. Bell Telephone Co., 23 Fed. 539; Delaware & A. Telegraph & Telep. Co. v. State of Delaware, 50 Fed. 677, 2 C. C. A. 1.) We also agree with counsel that such companies cannot lawfully discriminate between subscribers of.' the same class, and that a company or partnership doing a general telephone business in a city must treat impartially all persons whom they undertake to serve-. Also, when doing a general business outside a city, all patrons in the vicinity must be dealt with impartially. The question of fact tried and considered by the court, below was whether the telephone company was doing a general business outside of Iola and in the vicinity thereof. general finding of the trial court determined the question in the negative, and that the limits of the company’s general business outside the city did not embrace the plaintiff’s residence. While the company was serving several manufactories beyond the city limits, they were not in the class with the plaintiff, and the owners of residences outside the city who had telephones were supplied at their own expense or paid for the poles and wires used to connect them with the exchange. If Mr. Crouch had resided in the city his rights would have been clear. Being outside, a question of fact was presented whether in removing his instrument a discrimination was practiced on him — a right infringed which he enjoyed in common with others situated similarly. A telephone company operating wholly within the corporate limits of a city could not be compelled to supply instruments to residents beyond the boundaries of the town and make connections therewith. In this instance it did serve patrons outside of Iola, but the disputed question was whether Mr. Crouch, by reason of proximity and other conditions, was entitled to equal rights with them. This was to be determined from the testimony of witnesses and was peculiarly within the province of the trial court. That there was some evidence to sustain the judgment of the court below cannot be denied. /
The judgment is affirmed.
Greene, Burch, Mason, JJ., concurring. | [
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McAnany, J.:
This appeal centers on a contentious plan by Grace Episcopal Cathedral (Cathedral) in Topeka and The Episcopal Diocese of Kansas, Inc. (collectively the Church), to construct a parking lot on a portion of Bethany Place, a tract of ground on which the Cathedral and two other buildings are located. These two other buildings and the surrounding grounds of Bethany Place (but not the Cathedral itself) are listed on the Register of Historic Kansas Places. The State Historical Preservation Officer (SHPO) opposed the project.
The matter came before the Topeka City Council (Council) on the Church’s application for a permit for the project. On the day before the hearing on the Church’s application, a group of individuals formed Friends of Bethany Place, Inc. (FOB), in order to oppose the project. Following testimony from numerous proponents and opponents, the Council voted 9-0 in favor of the Church’s appHcation.
FOB appealed to the district court. The district court set aside the Council’s approval of the project, finding the Council’s decision was arbitrary, capricious, and unreasonable. The City of Topeka (City) and the Church have now appealed the district court’s de cisión. The matter has been fully briefed and argued by the parties, and we have the added benefit of amici curiae briefs from the Kansas State Historical Society and the League of Kansas Municipalities. This appeal presents the following four main issues for us to resolve:
1. Does FOB have standing in these proceedings?
Yes. Applying statutory and traditional standards for standing, FOB is entitled to seek judicial review of the Council’s approval of the Church’s permit application.
2. Did the district court erroneously reweigh the evidence before the Council, evidence which (according to the Church and the City) provided substantial support for the Council’s decision to grant the permit?
Yes. The district court went beyond the record and reweighed the evidence before the Council in finding what it considered to be feasible and prudent alternatives to the Church’s proposed project. The proper scope of review limits a reviewing court to determining (1) whether the Council acted fraudulently, arbitrarily, or capriciously, (2) whether the Council’s action is supported by substantial evidence, and (3) whether the Council acted within the scope of its authority. Here, the issue in dispute is whether substantial evidence supports the Council’s action. Applying the requisite legal constraints on the scope of our review, we conclude that there is substantial evidence to support the decision to grant the Church’s requested permit.
3. Does the district court’s decision violate the Church’s rights under the First Amendment to the United States Constitution or under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (2006)?
Because of our decision on Issue 2, it is unnecessary to consider this issue.
4. Did the district court err in refusing to require FOB to post a supersedeas bond for this appeal?
No. FOB prevailed before the district court and did not seek to stay enforcement of the district court’s ruling. As the appellee, the provisions for a supersedeas bond do not apply to FOB.
Facts
In 1861, the Topeka city founders conveyed to the Church 20 acres of land, now known as Bethany Place, in order to establish the Sisters of Bethany Episcopal School for Girls. The property is bordered by 8th Street, Polk Street, 10th Avenue, and Western Avenue in downtown Topeka. The two historic buildings on the property were built in 1874 and 1875. One is the Diocesan offices building (formerly the school laundry), and the other is a building for meetings and lodging (formerly die school’s bam).
The school was in operation at Bethany Place from 1872 until 1928. In 1917, Grace Cathedral was constmcted on the property. In 1929, the Topeka School District acquired 14 acres of the original Bethany campus for the construction of Topeka High School. In 1978, the Church registered Bethany Place on the Kansas Historical Registry in order to prevent Topeka High School from acquiring any of the remaining 6 acres by eminent domain.
In 2007, the Church applied for a permit to install a parking lot on part of the Bethany Place property. The plan was to add 40 parking spaces, with 10 reserved for handicapped or elderly Church members. The proposed lot would consist of opposing rows of parking stalls located inside the sidewalk along Polk Street. The lot would occupy 4.5% of Bethany Place’s grounds. It would reduce the current green space from 187,800 to 175,800 square feet, or 6.5%.
On May 8, 2007, the SHPO assigned to review the Church’s permit application determined that the parking lot would encroach upon, damage, or destroy the historic environs of Bethany Place because the project would require the removal of mature trees and because the project would “drastically [change] the relationship between the two historic buildings on the site with the public street of Polk.” The SHPO proposed the alternative of constructing angled parking on Polk and 8th Streets.
The following day, upon receipt of the SHPO’s report, the City’s Planning Department denied the Church’s permit request and sug gested that parking along Southwest Polk Street would be a feasible alternative.
On August 27, 2007, 1 day before the Council met to consider the Church’s application, FOB was incorporated for the purpose of opposing the Church’s parking lot application. That same day the SHPO issued a supplemental letter opinion on the project. The letter further explained but did not change die SHPO’s recommendation of May 8,2007. It did not address further the alternative of on-street angled parking. Because of the lateness of its submission, the letter was not provided to the Council for consideration at the hearing.
Proceedings before the Council
The Council considered the Church’s application on August 28, 2007. The Church’s position was that the angled street parking recommended by the City’s Planning Department and the SHPO and other suggested alternatives from those speaking in opposition were not feasible and prudent.
The Council heard testimony from many members of the public who either supported or opposed the project, including representatives of the Church, FOB, and various Topeka neighborhood improvement associations. Testimony was received through oral comments during the meeting. In addition, Council members were provided with a packet of documents assembled for them in advance of the meeting. Because, as we shall see, the central issue is the sufficiency of the evidence to support the Council’s decision, we will recount the oral testimony and written documents presented to the Council in making its decision.
Testimony at the Council Meeting
• Pedro Irigonegaray
Pedro Irigonegaray, counsel for FOB, reminded the Council of the requirements of K.S.A. 2008 Supp. 75-2724. He testified that to approve the permit, the Council must find that there is no feasible and prudent alternative to the proposed parking lot and that all possible planning to minimize the harm to Bethany Place had been undertaken. He also cautioned the Council that it could not act in an arbitrary or capricious manner.
• Alex Kovalchuck
Alex Kovalchuck testified in opposition to the Church’s proposal. He presented a map to the Council showing suggested alternatives to the Church’s plan: (1) angled on-street parking, (2) using lots on the north side of 8th Street owned by the Church, and (3) building a parking garage over the Church’s existing parking lot. He presented the Council with a CD video which he said would help the Council “visualize and see what I’m attempting to discuss.” However, he apparently failed to bring equipment to the hearing with which to display his video. Kovalchuck presented no cost estimates for his proposals, though he did acknowledge that they “may be . . . more expensive [than the Church’s proposal].” He also did not address any of the safety concerns raised by the Church, nor did he address the Church’s concerns about its inability to restrict the use of street parking to its members.
• Bishop Dean Wolfe
Bishop Dean Wolfe testified on behalf of the Church. He reminded the Council that the Church was seeking 40 additional parking spots to supplement its parking lot and the current public parking available on 8th and Polk Streets because the Cathedral needs one parking space for every 1.8 persons in attendance. The Bishop testified that the Cathedral currently has a Sunday attendance of about 350 people and a current parking lot capacity of 89 spaces. The proposed additional 40 spaces would help address this need and provide handicap parking next to the Cathedral with no steps to climb. He testified that as part of the project, the Church planned to plant “more than twice as many trees as we take out, all to enhance our green space.”
• Dean Steve Lipscomb
Steve Lipscomb, Dean of Grace Cathedral, testified about the alternatives the Church had considered and rejected:
“The first would have extended our existing parking lot to the south. We rejected that because it would come too close to the historic buildings and would take away from the gardens and picnic area that are the most visited section of the property. It also wouldn’t give us the closer end [sic] handicap accessible parking we need near our worship space entrance.
“We also considered parking off the alley south of the Cathedral. This isn’t an option because there are utility poles and an air conditioning unit there the size of a freight car. Plus, we already use that space for parallel parking so the gain would be minimal.
“We own a small, narrow lot across 8th Street from the Cathedral, but that is not a reasonable option for us because that entrance requires climbing 14 steps and we didn’t want to endanger children and older members by making them cross a busy four-lane street.
“We decided against angled parking on either 8th Avenue or Polk Street for several reasons. Safety was a major factor with the possibility of children darting into the street from between cars and members, especially elderly members backing out into traffic.
“These on-street spots would also require the use of concrete, which costs twice as much as asphalt. And since there already is parallel parking permitted along both streets, . . . diagonal parking on the street would not gain us that many additional spaces. In fact, if you took away the parallel parking it would only gain us a net of about half as many spaces as this alternative suggests.
“But a main concern is that this would require the Cathedral to build something it could never own. The city would own these parking spaces and it would be public parking. With Topeka High and several apartments nearby, the spaces would be filled almost all the time. And we’ve been told that we could reserve these if we gave advance notice and by placing barricades to block them. That is not a feasible alternative for us. There is no guarantee we would have access to these spaces when we needed them. Frankly, I would have a hard time explaining to my congregation why we were using church funds to build public parking. ... It’s not just illogical, it’s bad stewardship of what has been entrusted to us and it limits our ability to do ministry.”
Dean Lipscomb stated that if the parking lot were built, 4 acres of green space would remain on Bethany Place grounds. He stated that the Church’s proposal was the only plan that “will put this many parking spaces this close to our worship space entrance unobstructed by steps.”
The Council members had copies of the records before the City Planning Department, which included Dean Lipscomb’s expanded concerns about angled on-street parking. Lipscomb explained to the City staff that this on-street parking
“would not meet our needs for a couple of reasons. First, we could not reserve on street parking for church use. During the week, Topeka High would take all available spaces and those living in the apartments on the east side of Polk would use them all the time. Weekday funerals, diocesan-wide meetings and those of community organizations that use our space are often some of our most attended events, requiring much more parking than we currently have. Evening events such as concerts, plays, graduation ceremonies, holy day services and other community events often overfill our current lot and require people to park, not only along 8th and Polk streets but also on Taylor, Western and Tyler. There are clearly safety issues for nighttime pedestrians in these areas, particularly north of 8th Avenue. We need reserved parking on weekdays as much as on Sundays.... Even with the 40 additional spaces proposed, we will still require the on street parking to meet our needs.”
Councilman Richard Harmon asked Dean Lipscomb whether the Church would have the same problem with neighbors using the Church’s parking lot if the parking lot were constructed. Lipscomb replied that because the lot will be on Church property, the Church could restrict access to it, obviating the problem of the parking being used by the Church’s neighbors. Finally, Dean Lipscomb testified that “Sundays are not our only issue. I mean, we have evening events [and] funerals during the week.”
• Melodie Worman
Melodie Worman, the Church’s director of communications, described the history of Bethany Place. She pointed out that due to conversions of the two historic buildings to other uses, neither was on the National Registry of Historic Sites. Further, the Cathedral is not on the State’s historic registry.
• Cynthia Sheppeard Langston
Cynthia Sheppeard Langston, a member of the Church, spoke to the need for accessible spaces for handicapped persons. There are currently only six such spaces. The alternative of curb parking is neither feasible nor prudent because of the grade that would be difficult to negotiate from the curb to the Cathedral. The Church’s proposal would provide parking on the same level as the Cathedral.
• Barbara Quaney
Barbara Quaney, the president of FOB, testified in opposition to the project. She spoke of the historic significance of Bethany Place and the importance of preserving it. She listed three alternative sites that FOB believed would be feasible and prudent. She advocated the use of angled parking on 8th and Polk Streets. She did not address the Church’s cost or safety concerns, nor did she address the Church’s concern about others using these parking spaces to the exclusion of Church members or using Church funds to develop public property. However, she did express the opinion based upon her experience as a physical therapist that angled parking could be designed and executed to address the accessibility issue.
• Tom Bartlett
Tom Bartlett, of the Holiday Park Neighborhood Improvement Association, testified to his association’s desire to preserve Bethany Place and their opposition to the project. He did not address the feasibility or prudence of any alternatives.
• Douglas Jones
Douglas Jones, Barbara Quaney’s husband, described the family business of buying and restoring old homes in the central core. He expressed opposition to the project. He is the immediate past president of the Shawnee County Historical Society. He noted that Old Town is the only Topeka neighborhood improvement association “without a park, and has very little greenspace compared to other neighborhoods.” He argued that the project is contrary to recent comments by City consultants regarding “greenspace and aesthetic issues,” and would establish a bad precedent. He did not address the feasibility or prudence of any suggested alternatives.
• Robert Banks
Robert Banks, chairman of Topeka Turnaround Team, Inc., spoke in opposition to the plan. He offered the good offices of the Turnaround Team to help mediate the dispute.
• Maura Dingman
Maura Dingman spoke in opposition to the plan. Dingman owns and restored six properties in Holiday Park. She expressed her heartfelt desire and the desire of others in the area who have invested in restoring older properties to preserve historic sites and deny this permit application.
• Greg Fox
Greg Fox, who operates his business in a historic building, acknowledged that the Church needs more parking but expressed concern about “changing our minds on something we’ve already decided.”
• Peter Hancock
Peter Hancock, president of the Old Town Neighborhood Improvement Association, testified to his organization’s opposition to the plan. He testified to the lack of greenspace in the area and the lack of a neighborhood park. He observed that St. Patrick’s Cathedral in New York City functions without a lot of parking. He did not address any alternatives to the Church’s plan.
• Hiram Stockwell
Hiram Stockwell, a resident of the Old Town neighborhood, spoke of the history of the neighborhood. He testified that the Church’s safety concerns were an insult to its neighbors. He stated that the Church’s lot on the north side of 8th Street at 816 S.W. 8th contains “over 10,000 square feet and is approximately equal to the proposed parking space.” Another Church lot at 804 S.W. 8th contains “over 6,000 square feet.” He also observed: “There is additional space near the circular and south drives at the east side of the church that could accommodate” accessible parking for the handicapped and elderly. He did not offer any cost estimates for his proposals.
• Kathryn Hosfelt
Kathryn Hosfelt, a neighbor in the central core, expressed her desire to preserve Bethany Place.
• Anne Spiess
Anne Spiess, president of the Shawnee County Historical Society, is a Church member and a member of FOB. She spoke of the historic significance of Bethany Place. She testified that the Church’s plan would eliminate trees and greenspace. She mentioned the suggested alternative sites, though she did not address the issues of feasibility or prudence.
• Ed Spiess
Church member Ed Spiess testified in opposition to the parking lot. He suggested restriping a portion of the existing parking lot to create more handicap-accessible spaces. He did not address the Church’s overall need for more parking and made no suggestions as to where the Church would recoup the space it would lose through his proposal.
• Alvin Greeson
Alvin Greeson, a Church member and neighbor, suggested alternative parking on the “half semicircular entrance on the east side of the Cathedral.” He had measured the area and estimated there could be approximately 32 additional parking places in that area. He offered no design proposals or cost estimates to support his idea.
• Janet Loehel
Janet Loebel, a retired teacher, spoke of her family’s history in the area. She spoke to the value of history and heritage. She urged the Council to reject the Church’s application.
• Joanne Harrison
Joanne Harrison, a Church member, spoke of the importance of Bethany Place. She suggested “turning the alley off of Polk Street the other direction, which would then quickly enable cars to move down to the present parking lot.” She said she had no problem finding a parking place on Polk Street on Sunday mornings. She also urged the Mayor to write a letter to Dean Lipscomb telling him to stop “urging people to park on the grass at Bethany Place.”
• Peter Muraski
Peter Muraski, a science teacher, spoke of the age and condition of the trees on the site, though he professed no expertise on the subject other than having cut down many trees in years past for firewood. He opposed the project. “If we alter this place it may set a precedent we don’t want.”
• Michael Bradley
Michael Bradley opined that this project will harm the Church and its mission. He expressed the desire to preserve open spaces in urban areas. He urged the Council to deny a permit.
Documents at the Council Meeting
In advance of the meeting, each Council member had been provided a packet of information regarding the application. The packets contained the Council Action Form which informed the Council members that approval of the Church’s appeal would overturn the decision of the SHPO and that
“State law allows the local governing body to overturn the findings of the State of Kansas Historic Preservation Officer when they have determined that based on all relevant factors, there is no feasible and prudent alternative to the proposed parking lot and drat all possible planning to minimize harm to the historic property and its environs has been included.
“The SHPO has proposed using the city’s right-of-way for the necessary parking as a feasible and prudent alternative to the constructing tire parking lot on historic property which includes the removal of many historic trees.
“The Old Town Neighborhood Improvement Association has officially stated their opposition to the proposed parking lot within the grounds of the Bethany Place campus.”
The packets also included: (1) copies of the statutes relating to historic preservation; (2) the City Planning Department’s recommendation; (3) the SHPO’s recommendation; (4) photos, maps, and diagrams of the area; (5) descriptions of the historic buildings and the history of Bethany Place; (6) the Historic Old Town Neighborhood Plan; (7) documents relating to the placement of Bethany Place on the Register of Historic Kansas Places in 1979; (8) documents regarding a conference center proposed for construction on Bethany Place in 1983, which was approved by the SHPO but never built; (9) letters and e-mails in support and opposition from various members of the community, many of which were essentially verbatim the oral testimony provided at the Council meeting; (10) a petition signed by a number of persons opposing the project; (11) engineering reports on the size of the project relative to Bethany Place overall and the added cost of the angled parking alternative; and (12) a horticultural assessment of the project.
With respect to item (2), it is important to note that the City Planning Department’s recommendation that the Church’s application be denied was based on “alternative and feasible alternatives that will not encroach upon or damage the listed property.” While the planning staff recommendation speaks of “alternatives,” it maíces reference to only one: a determination by the City traffic engineers that “angled ‘cut-back’ parking along Southwest Polk Street, adjacent to die Bethany Place property would be a feasible alternative to the proposed parking lot.” There is no report or study by the City’s traffic engineers in the record. There is no analysis by either die planning staff or the traffic engineers to explain how this angled parking suggestion rises to the level of a feasible and prudent alternative.
The SHPO’s recommendation, item (3), is for the Church to redesign “the project to take advantage of the City’s right-of-way by designing parldng stalls directly adjacent to the street at Polk and possibly 8th Street if needed.” This suggestion is not accompanied by any supporting analysis whatsoever.
Item (6), die Historic Old Town Neighborhood Plan, addresses the need to maintain the historic character of the neighborhood, particularly the housing stock in the “core” area. It is worth noting that the criticism of the Church’s plan is not to whether additional parking spaces should be created in the neighborhood, but rather where those parking spaces should be located.
Item (11) is an engineering report prepared for the Church which shows the size of the proposed parking lot relative to the overall size of Bethany Place. It also calculates the cost of concrete for 40 parking places ($36,000) compared to the cost of asphalt for 40 parking places ($16,800). This is the only engineering report in the record.
Council Action
At the close of the public comments, Councilman Jeff Preisner moved to approve the Church’s permit application based on “the City Council’s consideration of all relevant factors, that there are no feasible and prudent alternatives to the proposal, and that all possible planning has been undertaken to minimize harm to the historic property.” The motion was seconded, and Councilman John Alcala asked the City Attorney Brenden Long: “[D]o we infringe on the First and Fourteenth Amendment of free exercise of religion if we don’t grant the permit? The city attorney responded:
“[T]o override the recommendation of the State Historic Preservation Officer, [the Council] must find, based on a consideration of the factors, as Mr. Preisner pointed out, that there’s no feasible and prudent alternatives to the proposal. That consideration is really going to be based on all that was presented to you tonight, as well as the packets of information that you received with your agenda analyzing the needs of the applicant, the needs of the community, the attempt to maintain those - - the historic character of the site and part of it’s an economic determination, part of it is a technical determination.”
The city attorney then described Mt. St. Scholastica v. City of Atchison, 482 F. Supp. 2d 1281 (D. Kan. 2007), before concluding that the City “probably faces some potential legal action at least whichever way you go.”
Councilman Brett Blackburn observed that “there’s probably not a feasible alternative.” He concluded that “it comes down to our opinion if we think there is or is not a reasonable alternative.”
Councilman Harmon asked the city attorney: “[A]re there any findings of fact we need to make in order to - - separate and apart from Councilman Preisner’s motion with respect to the First Amendment issue if that’s the basis upon which we wish to overrule the [SHPO] finding?” The city attorney responded: “ No. I think your first task here is really to make your determination based on [K.S.A. 2008 Supp. 75-2724] with the understanding that ... a denial of the parking permit could create some legal issues.”
The Council voted 9-0 in favor of the Church’s permit application.
Proceedings in the District Court
FOB appealed to the district court pursuant to K.S.A. 2008 Supp. 75-2724(b) and K.S.A. 60-2101(d). The City challenged FOB’s standing to bring this action, arguing that FOB was not an “aggrieved party” under K.S.A. 60-2101(d) because FOB had no right or pecuniary interest in Bethany Place. FOB responded with affidavits from its members detailing their interests in Bethany Place.
The district court denied the City’s motion, finding that K.S.A. 2008 Supp. 75-2724, which specifically applies to “ ’historic preservation activities’ ” affected by projects gives standing to FOB. The court reasoned that the public notice and the civil penalty features of K.S.A. 2008 Supp. 75-2724 inferred an actionable “periphery interest” which extends beyond a potential plaintiff s pecuniary interests and includes “community pride in historic preservation[,] . . . quality of fife and esthetics.”
The Church informed FOB that because construction costs were expected to increase by $41,000 during the pendency of this action, the Church intended to proceed with construction of the parking lot unless FOB posted a $50,000 bond. FOB responded with a motion for a restraining order pursuant to K.S.A. 60-903.
At the hearing on FOB’s motion, the Church pointed out that FOB had no assets or income with which to compensate the Church for the delay if FOB’s appeal failed. The court granted a restraining order against the Church and denied the Church’s request that FOB post a bond, concluding that there was no statutory provision for a bond.
In its detailed memorandum opinion on the merits of FOB’s appeal, the district court set aside die Church’s permit, concluding that the Council’s action in approving the permit application was arbitrary, capricious, and unreasonable. The City and the Church appeal.
1. Does FOB Have Standing in These ProceedingsP
The standing issue raised by the City and the Church is predicated upon FOB’s lack of any legal right or pecuniaiy interest in the matter. They rely primarily on Linsea v. Board of Chase County Comm’rs, 12 Kan. App. 2d 657, 753 P.2d 1292, rev. denied 243 Kan. 779 (1988), for this argument.
The Church also argues that (1) the statutory scheme of K.S.A. 2008 Supp. 75-2724 and K.S.A. 75-2725 empowers only the Kansas Attorney General to proceed against landowners to enforce the provisions of the Kansas Historical Preservation Act, see K.S.A. 75-2714 et seq., and (2) because FOB’s mission is historical preservation for aesthetic reasons, not the preservation of property values near Bethany Place, and because historical preservation is a public interest instead of a private one, FOB lacks standing under NEACoffeyville v. U.S.D. No. 445, 268 Kan. 384, 996 P.2d 821 (2000).
FOB argues that in order to fulfill the purpose of the Historic Preservation Act, standing under K.S.A. 2008 Supp. 75-2724 should be broadly construed to allow groups of concerned citizens to form organizations like FOB to protect historic properties. FOB also argues that it has standing under Cojfeyville because the project would lower the property values of FOB members who own property near Bethany Place.
Standard of Review
Standing is an issue of law which appellate courts review de novo. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). “ ‘ “Regardless of the merits of [a claim], without [a party having] standing, the court cannot entertain the action.” ’ [Citations omitted.]” 279 Kan. at 185.
Discussion
The Kansas Historical Preservation Act provides that “[a]ny person aggrieved by the determination of a governing body pursuant to this section may seek review of such determination in accordance with K.S.A. 60-2101 and amendments thereto.” K.S.A. 2008 Supp. 75-2724(b). K.S.A. 60-2101(d) provides for appeals to the district court from decisions of political subdivisions, such as the City, and allows “an aggrieved party” to pursue an appeal.
The district court liberally construed “aggrieved party” in favor of allowing an organization such as FOB to seek judicial review of the Council’s action. The Church argues that the district court’s construction ignores the effect of K.S.A. 75-2725, which provides:
“The state of Kansas or any county, municipality or other political subdivision having capacity to sue and be sued, the Kansas state historical society and any city or county historical society which, for more than two (2) years prior to filing such action, has been organized, has elected officers and has received compensation, funds or reimbursements from a city or county pursuant to K.S.A. 12-1660 or 19-2649, and amendments thereto, may maintain an action in the district court having jurisdiction where an alleged violation occurred or is threatened for such equitable and declaratory relief as may be necessary to enforce the provisions of this act and to protect historic property from unauthorized or improper demolition, alteration or transfer.”
K.S.A. 75-2725 authorizes the identified officials and entities to pursue equitable and declaratory relief to enforce the provisions of the Act. A fair reading of the statute suggests that it applies to instances in which persons or entities subject to the Act attempt an “end run” around the process. The statute refers to equitable and declaratory relief, such as enjoining such an end run around the Kansas Historical Preservation Act. That is not the nature of these proceedings. There was no end run here. The State Historical Society was notified of the proposed project, it conducted its study, and it made its recommendations; then following consideration by the City’s Planning Department, the matter came before the Council. The present action is simply an appeal pursuant to K.S.A. 2008 Supp. 75-2724(b) and K.S.A. 60-2101(d) seeldng reversal of the Council’s approval of the Church’s permit application.
In Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 189 P.3d 494 (2008), a nonprofit association challenged the issuance of a landfill permit. Analyzing the association’s standing to challenge the landfill permit, our Supreme Court noted:
“In particular, a person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct. [Citations omitted.] An association has standing to sue on behalf of its members when ‘(1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members. [Citation omitted.]’ NEACoffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000).” Bremby, 286 Kan. at 761.
The Bremby court held that the association met those criteria. First, the members of the association would be harmed if the potential landfill leaked and contaminated the water supply on which its members relied. Second, the association was “ ‘organized for the purpose [of] preserving and enhancing the quality of life in Harper, Kingman and Sumner counties,’ ” and “ensuring that any landfill that is located in Harper County meet environmental standards to protect the groundwater supply and river water . . . germane to this purpose.” 286 Kan. at 763. Finally, the association challenged the permit as arbitraiy and capricious because it was issued on faulty environmental studies and that claim did not require the participation of the association’s individual members.
1. Individual Members’ Standing
In her affidavit filed with the district court, Barbara Quaney, president of FOB and a homeowner in the Bethany Place neighborhood, claimed the project if approved would “impinge upon my personal and economic interests.” She asserted that the project “could also result in economic loss or the diminution of property value” of the century-old home she and her husband had restored and three other residences she and her husband own in the neighborhood. Douglas Jones, Quaney’s husband and another member of FOB, provided a similar affidavit. Other FOB members filed affidavits alleging that the project would impair the quality of their lives and interfere with their aesthetic appreciation of the neighborhood.
The Church argues that injuries to historical and aesthetic beauty are not sufficient to confer standing on an individual plaintiff, citing Linsea, 12 Kan. App. 2d at 660-61. Aesthetic concerns are a proper basis for land use controls. See Gump Rev. Trust v. City of Wichita, 35 Kan. App. 2d 501, Syl. ¶ 3, 131 P.3d 1268 (2006). Further, the lack of standing in Linsea was not because historic and aesthetic considerations were at issue. In Linsea, the County sought to make modifications to the grounds of the Chase County Courthouse in Cottonwood Falls. Linsea sued to stop the project, claiming that as a taxpayer he had an interest in the historical beauty of the property. The court concluded that Linsea’s status as a taxpayer was insufficient to create standing because he failed to allege an injury unique to him that was not shared by every other taxpayer in Chase County. 12 Kan. App. 2d at 660-61.
Unlike in Linsea, at least two members of FOB alleged an injury to their properties as a result of the claimed lost historic and aesthetic value of Bethany Place. The injuries claimed by Quaney and Jones are particular to them and not shared by all other citizens of Topeka. See Society Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 176-77 (3d Cir. 2000); cf. Linsea, 12 Kan. App. 2d at 661. Accordingly, at least two member of FOB have individual standing. See Rendell, 210 F.3d at 175-78.
2. FOR’s Purpose Vis-a-Vis the Interests Sought to be Protected in This Suit
The Church argues that FOB is organized for the sole purpose of preserving Bethany Place’s historical integrity, not for protecting the economic interests of its members. However, FOB members Quaney and Jones assert that their economic interest in their properties in the neighborhood are tied, at least in part, to maintaining Bethany Place in its present form. Maintaining Bethany Place in its present form is the expressed purpose of FOB. The interests FOB seeks to protect are germane to its purpose.
The Church argues that the FOB members who testified before the Council did not establish a nexus between FOB and the economic interests some of its members now assert. But standing relates to a party’s qualification to proceed in court, not to participate in proceedings of their city government. The opponents who spoke at the Council meeting were residents of Topeka. They did not have to have standing to bring a court action in order to express their opinions to the Council on the merits of the Church’s plan.
3. Whether Participation of FOB’S Individual Members is Required in the Suit
FOB alleges its members’ property value diminution not as a claim for relief but as a basis for standing. It does not allege that the Church or the City have violated any of the personal rights of its members, only that granting the permit violates the Kansas Historical Preservation Act. Further, FOB seeks only injunctive relief, not damages for its members. Therefore, the participation of FOB’s individual members is not necessaiy. See Bremby, 286 Kan. at 762-63.
We conclude that FOB has standing to proceed in this matter.
II. Did The District Court Erroneously Reweigh The Evidence Before The Council, Evidence Which (According To The Church And The City) Provided Substantial Support For The Council’s Decision To Grant The Permit?
Standard of Review
The parties agree that the task of the district court was to review the Council’s action to determine “whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily, or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.” Reiter v. City of Beloit, 263 Kan. 74, Syl. ¶ 3, 947 P.2d 425 (1997). In doing so, the district court was not permitted to substitute its judgment for that of the Council.
On appeal, we apply the same standards of judicial review applicable to the district court. See Reiter, 263 Kan. at 85-86.
The district court, in its extensive 57-page memorandum decision, concluded:
“[T]he record evidences a lack of substantial evidence to support the statutory finding necessary that no feasible and prudent alternative existed. The record further lacks substantial evidence to support a conclusion that all possible planning was done to minimize the damage that would occur to the Bethany Place. These considerations, as noted, operate to make the Topeka City Council’s decision stand as arbitrary, capricious, and unreasonable.”
Thus, the central issue is whether substantial evidence supports the Council’s decision. In resolving this issue, we apply the traditional rule that when examining the record for substantial evidence, we view the evidence and the reasonable inferences that can be drawn from the evidence in the light more favoring the prevailing party, here the Church. Reiter, 263 Kan. at 86; see Jones v. Kansas State University, 279 Kan. 128, 140, 106 P.3d 10 (2005). In doing so we do not substitute our own view on the merits of the Church’s proposal. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 263, 75 P.3d 226 (2003). That was a matter for the duly elected officials of the City’s governing body to determine. If substantial evidence supports the Council’s decision, the decision must be upheld even if we would have decided the matter differently. Praeger, 276 Kan. at 263. Because there is a presumption that the governing body acted reasonably, the burden is upon FOB to prove otherwise. See Jones, 279 Kan. at 140; Reiter, 263 Kan. at 86. Finally, a reviewing court must accept as true the evidence and inferences supporting the Council’s findings and disregard conflicting evidence and inferences. See Jones, 279 Kan. at 140.
Because our task is to examine anew the Council’s action using the same standards applicable to the district court, we need not address all aspects of the district court’s decision. However, FOB cites two matters discussed by the district court which, according to FOB, demonstrate deficiencies in the Council’s action: (1) The lack of findings of fact to support the Council’s decision; and (2) the Council’s failure to consider the eight Golden criteria. See Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978). We will consider these issues before turning to the issue of the sufficiency of the evidence.
Findings of Fact
The Council was not required to make detailed findings of fact in order to properly act on the Church’s application. See Manly v. City of Shawnee, 287 Kan. 63, 76, 194 P.3d 1 (2008); Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 678, 952 P.2d 1302 (1998). Nevertheless, the better practice for governmental bodies in deciding these matters is to provide specific and detailed findings, and we encourage governmental bodies to do so. This is because findings of fact assist in providing us with a meaningful record for appellate review. As noted in Golden, 224 Kan. at 597: “A mere yes or no vote upon a motion to grant or deny leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis the board took its action.”
However, there are cases in which the reasoning behind the governmental body’s action is otherwise apparent from the record. This is one of those cases. Here, contrary to FOB’S assertion in its appellate brief, the motion before the Council was not simply to approve or deny the Church’s permit. Councilman Preisner moved:
“At this time I’d like to make a motion to approve the communication to override the recommendation of the State Historical Preservation Officer and issue the parking lot permit.
“I base this on the City Council's consideration of all relevant factors, that there are no feasible and prudent alternatives to the proposal, and that all possible planning has been undertaken to minimize harm to the historic property.”
The motion contained the essential findings for which there either is or is not substantial evidence in the record: (1) There are no feasible and prudent alternatives, and (2) all possible planning has been undertaken to minimize harm to the historic property.
If the lack of findings were to malee it impossible for meaningful judicial review, the district court’s recourse would have been to remand the case to the governmental body for it to make specific findings, as the trial court did in Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, 935-36, 218 P.3d 400 (2009). The district court did not find the record so meager as to preclude its review and require a remand to the Council. Neither do we.
The conflict aired before the Council was not whether more Church parking should be allowed, but where it should be located. The issue turned on whether the suggested alternatives to the Church’s plan were relevant factors to be considered in acting on the Church’s permit application. If they were, the Church had the burden to prove that they were not feasible and prudent alternatives to the Church’s plan. We conclude that the record before us is adequate to resolve this issue.
The Golden Criteria
The Council did not consider the Golden factors, see 224 Kan. at 598, in deciding to grant the Church’s permit application. Golden arose from the City of Overland Park’s refusal to rezone a tract from C-O (office building) to CP-1 (planned retail). Our Supreme Court enumerated eight factors that “it would be well for a zoning body to bear in mind when hearing requests for change.” 224 Kan. at 598.
Unlike in Golden, the present controversy involves no request to rezone the Church’s property. Nevertheless, a variety of land use permit issues fall within the zoning rubric. See, e.g., Robert L. Rieke Bldg. Co. v. City of Overland Park, 232 Kan. 634, 657 P.2d 1121 (1983) (which involved denial of a special use permit for the use of a searchlight to advertise a commercial enterprise) Gump Rev. Trust, 35 Kan. App. 2d 501 (which involved the denial of a conditional use permit for the erection of a telecommunications tower). However, Gump demonstrates the advisory nature of the Golden criteria. In Gump, the reasonableness of the denial of the permit application was based solely on aesthetic considerations, factors not even mentioned in Golden. As stated in Board of Johnson County Comm’rs, 263 Kan. at 677, the Golden criteria “are suggested factors only[— they are advisory in nature]. Other factors may be important in an individual case.” See Syl. ¶ 6.
Here, the Church applied for a permit to construct a parking lot on its property. Because the project was to be constructed on property designated as historic on the State’s Historic Registry, the Church was required to submit its proposal to the SHPO, who reviewed it and opposed it. There is no contention that the Church would not be entitled to a permit had the SHPO approved the project. However, under K.S.A. 2008 Supp. 75-2724(a)(l), in order to overcome the SHPO’s objection, the Church had to demonstrate that (1) there are no feasible and prudent alternatives and (2) all possible planning has been undertaken to minimize harm to the historic property. Those are the controlling factors for us to consider in this appeal, not the precatory Golden factors. The Council’s action in approving the Church’s permit was not unlawful for failure to consider the Golden factors.
The Church’s Burden
The SHPO opposed the project based on the determination that the proposed parking lot “will encroach upon, damage, or destroy the Bethany Place site.” As noted above, in order to overcome this determination, the Church’s first obligation was to demonstrate that there were no feasible and prudent alternatives to its proposed parking lot. Then, it was obliged to show that all possible planning has been undertaken to minimize harm to the historic property.
The Church was not obliged to refute eveiy potential alternative unless the alternative constitutes a relevant factor. See Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc., 16 Kan. App. 2d 93, 95, 819 P.2d 138, rev. denied 250 Kan. 805 (1992). In order to qualify as a relevant factor, a potential alternative must be “something more than a mere suggestion as to possible alternatives.” Allen Realty, Inc. v. City of Lawrence, 14 Kan. App. 2d 361, 373, 790 P.2d 948 (1990) (Allen I).
“ ‘A proposed alternative would be a relevant factor if it included sufficient factual information to support a conclusion that such alternative was feasible and prudent. A proposed alternative unsupported by such factual information could not form the premise of such a conclusion and would not be relevant.’ [Citation omitted.]” Reiter, 263 Kan. at 89-90.
K.S.A. 75-2721(b) directs the SHPO to adopt rules and regulations to implement the State’s historic preservation policy. Pursuant to K.S.A. 75-2721(b), the SHPO adopted K.A.R. 118-3-l(e), which defines “feasible and prudent alternative” as
“an alternative solution that can be reasonably accomplished and that is sensible or realistic. Factors that shall he considered when determining whether or not a feasible and prudent alternative exists include the following:
“(1) Technical issues;
“(2) design issues;
“(3) the project’s relationship to the community-wide plan, if any; and
“(4) economic issues.” (Emphasis added.)
Discussion
The documents in the record as well as the testimony from the opponents of the plan are replete with heartfelt expressions of concern for preservation of the historic nature of the City’s central core. The penultimate task of the Council, however, was to determine if there existed any feasible and prudent alternatives to the Church’s proposal.
Feasible And Prudent Alternatives P
As noted earlier, the record discloses several suggestions of alternative locations for the Church’s parking lot.
Alex Kovalchuck proposed (1) angled parking on 8th and Polk, (2) parking lot(s) on Church property on the north side of 8th Street, and (3) a parking garage over the Church’s current parking lot.
Barbara Quaney proposed building the parking lot at 716 S.W. 8th Street, 704 S.W. 8th Street, 701 S.W. 8th Street, or “cutback parking in the 800 block of Polk Street or along 8th Street in front of Grace Cathedral.”
Hiram Stockwell also proposed the use of the Church’s lots on the north side of 8th Street. He testified that the lot at 816 S.W. 8th Avenue contains “over 10,000 square feet and is approximately equal to the proposed parking space” and the lot at 804 S.W. 8tb Avenue contains “over 6,000 square feet.” He also suggested that the Church develop “additional space near the circular and south drives at the east side of the church” for parking for the handicapped and elderly.
Ed Spiess suggested restriping a portion of the existing parking lot to create more handicap-accessible spaces.
Alvin Greeson spoke in support of Stockwell’s suggestion that the Church develop additional parking near the circle drive east of the Church.
Joanne Harrison suggested “turning the alley off of Polk Street the other direction, which would then quickly enable cars to move down to the present parking lot.”
The City Planning Department’s recommendation refers to the conclusion of die City traffic engineers that “angled ‘cut-back’ parking along SW Polk Street, adjacent to the Bethany Place property would be a feasible alternative to the proposed parking lot.” The SHPO suggested “parking stalls directly adjacent to the street at Polk and possibly 8th Street if needed.”
None of these suggestions includes sufficient factual information to support a conclusion that it constitutes a feasible and prudent alternative to the Church’s proposal. In determining whether a suggestion rises to the level of a feasible and prudent alternative that constitutes a relevant factor for the Council to consider, the suggestion must address technical, design, and economic issues, as well as the project’s relationship to any community-wide plan. See K.A.R.. 118-3-l(e), (j). Further, if an individual suggestion does not constitute a relevant factor for the Council to consider, the aggregation of two or more such suggestions does not convert them into relevant factors which the Council must consider.
Kovalchuck presented no cost estimates for his proposals, though he did acknowledge that they “may be more expensive [than the Church’s proposal].” He also did not address any of the safety concerns raised by the Church that would arise from creating a parking lot that is separated from the Cathedral by Southwest 8th Avenue, a four-lane street, and would require attendees to climb 14 steps to reach the Cathedral. He did not address the Church’s concerns about its inability to restrict the use of this proposed on-street parking to Church members.
Quaney expressed the opinion that angled parking could be' constructed in a manner to satisfy handicap-accessibility standards. However, she did not address the Church’s concerns about cost, safety, the use of Church funds to develop public property, or the inability to guarantee access to this street parking to Church mem bers. Neither she, nor any other opponent, explained how converting parallel street parking already used by Cathedral attendees to angled parking would solve the Church’s need for at least 40 additional spaces.
Stockwell did not offer any cost estimates for his proposals. Greeson supported Stockwell’s proposal for the circle drive. He testified that he measured the area and estimated there could be 32 additional parking places in that area. He did not provide any basis, other than his own lay opinion, to establish the feasibility of his proposal. Neither addressed Dean Lipscomb’s observations about tire impracticability of this site. Neither Stockwell nor Greeson provided any facts to suggest that relocating utility lines and the Cathedral’s air conditioning system would be a prudent alternative to the Church’s plan or how their suggestion would satisfy the Church’s need for additional parking.
The proposal by Spiess to restripe the existing parking lot does not address the Church’s need for additional parking spaces.
It is unclear how Harrison’s suggestion would yield additional needed parking for the Church.
In suggesting the alternative of angled on-street parking, neither the SHPO nor the City’s professional staff (who announced its position the day after the SHPO’s decision) provided any analysis whatsoever in support.
There is no litmus test to definitively distinguish “mere suggestions as to possible alternatives,” Allen I, 14 Kan. App. 2d at 373, from a suggestion that rises to the level of a relevant factor. Here, the continuum of suggestions extended from the proposed multistory parking garage at one extreme to the angled on-street parking at the other. We are convinced that none constitutes a relevant factor, even if espoused by a number of the project’s opponents. However, if we assume for the sake of discussion that suggestions toward the latter end of the continuum are sufficient to constitute relevant factors, it is clear from the record (viewed in the light more favoring the prevailing party) that there is substantial evidence to establish that none is a feasible and prudent alternative.
No one challenged Bishop Wolfe’s testimony regarding the Church’s need for 40 parking spots and the need to accommodate its elderly and handicapped members.
Dean Lipscomb testified to the Church’s consideration of the proposal by Stockwell and Greeson for added parking off the alley south of the Cathedral. He testified that “this isn’t an option because there are utility poles and an air conditioning unit there the size of a freight car. Plus, we already use that space for parallel parking so the gain would be minimal.”
Dean Lipscomb addressed the suggestion from Kovalchuck, Quaney, and Stockwell for a parking lot across the street from the Cathedral, noting the elevation differential that would require climbing 14 steps and crossing a busy street to reach the Cathedral.
With respect to the angled on-street parking suggestion, the Church provided the record’s only engineering report, which indicates that if this suggestion were implemented the cost of surfacing material would increase from $16,800 to $36,000. Dean Lipscomb raised issues regarding safety if this suggestion were implemented, as well as the issue of expending Church funds to create parking spaces that could be preempted by nearby apartment dwellers, high school students, and the public at large to the exclusion of Church members. Further, converting parallel parking spaces to angled parking would create only a marginal net increase in available parking.
No one challenged any of Dean Lipscomb’s concerns about the feasibility and prudence of the suggested alternatives with any evidence satisfying the standards expressed in Reiter, in Mien I, and in the administrative regulations of the State Historical Society.
The Council voted unanimously to override the recommendation of the SHPO and to grant the Church a permit based in part, as Councilman Preisner asserted in his motion, on the fact that “there [are] no feasible and prudent alternatives to the proposal.” Under the standards expressed in Reiter, in Allen I, and in the administrative regulations of the State Historical Society, and confining our examination to the record now before us, none of the suggested alternatives constitutes a relevant factor which the Council was required to consider in acting on the Church’s application.
On the other hand, if any suggestion can be found to have risen to the level of a relevant factor, then upon examining the facts in the record in the light more favoring the prevailing party, we find substantial evidence to support the finding set forth in Councilman Preisner’s motion that there were no feasible and prudent alternatives to the Church’s proposal. Therefore, we conclude that there was substantial evidence to support the Council’s finding that there were no feasible and prudent alternatives to the Church’s proposal.
All Possible Planning To Minimize HarmP
The Council’s final basis for overriding the recommendation of the SHPO was that all possible planning had been undertaken to minimize harm to the historic property. There is substantial evidence of efforts by the Church to mitigate the effects of its proposed parking lot on the remainder of Bethany Place. FOB does not argue that there were other mitigation activities the Church could have employed but chose to ignore.
An engineering report documents that the project would involve 12,000 square feet of land, or 4.5% of Bethany Place. Bishop Wolfe testified .that the Church would be planting “twice as many trees” as would be lost in the project, in addition to a line of bushes, to hide the parking lot from street view. Dean Lipscomb informed the City’s Planning Department:
“Between Polk and the proposed parking lot, a three-foot tall hedge is already in place. When there are no cars in the parking lot (which will be only 60 feet wide), it will be invisible from the street. The far side of the lot (the west side) will be lined with mature trees. (Over 17 trees would remain between the lot and the buildings.)”
The Church’s landscape plan shows that new, more desirable trees would be planted to replace the trees removed during construction. We find nothing in the record (and no arguments in the parties’ briefs) to suggest that there were other mitigation activities the Church could have undertaken but chose to ignore. There is substantial evidence to support the Council’s determination that all possible planning has been undertaken to minimize harm the project might cause to Bethany Place. See Reiter v. City of Beloit, 263 Kan. 74, 95-96, 947 P.2d 425 (1997).
We conclude that there is substantial evidence to support the Council’s approval of the Church’s permit application. In arriving at a contrary conclusion, the district court was required to speculate about the existence of facts which are not in the record and to reweigh the evidence before the Council. Because of the limited role courts take in reviewing matters such as this, these are not practices in which we are permitted to engage. The weight and credit to be given the testimony at the public hearing and the written documents in the Council members’ packets was for the Council to decide, not the courts. The district court erred in setting aside the Church’s permit.
III. Does The District Court’s Decision Violate The Church’s Rights Under The First Amendment To The United States Constitution Or Under The Religious Land Use And Institutionalized Persons Act, 42 U.S.A. § 2000cc (2006) P
Because we conclude that there was substantial evidence to support the Council’s action, we reverse the contrary judgment of the district court. Thus, it is unnecessary to consider whether the district court’s decision violated the Church’s rights under the First Amendment to the United States Constitution or under 42 U.S.C. § 2000cc(a)(l)-(2) (2006) of the Religious Land Use and Institutionalized Persons Act of 2000.
IV. Did The District Court Err In Refusing To Require FOB To Post A Supersedeas Bond For This AppealP
When the Church expressed its intention to proceed with construction of the parking lot, FOB moved the district court for a restraining order to halt the project. The court granted the motion but refused to condition it upon FOB posting a bond. The Church appeals that ruling, claiming that K.S.A. 60-2101(d), when read together with K.S.A. 60-2103(d), required the district court to order FOB to post a supersedeas bond as a condition for the restraining order. FOB contends that the supersedeas bond provision in K.S.A. 60-2103(d) relates only to appeals/rom the district court, not appeals to the district court. The matter is now before the appellate court. The passage of time has rendered this issue moot.
The Church also complains that FOB was not required to post a supersedeas bond during the pendency of this appeal. But the purpose of a supersedeas bond is to secure an appellant’s stay of an adverse district court ruling while the matter is before an appellate court. K.S.A. 60-2103(d)(l), the provision for a supersedeas bond on appeal, provides: “Whenever an appellant entitled thereto desires a stay on appeal, such appellant may present to the district court for its approval a supersedeas bond____” FOB is the appellee, not the appellant. It does not desire a stay of the district court’s judgment. The provisions for a supersedeas bond have no application to FOB.
Because we are reversing the judgment of the district court, the Church is entitled to its permit as approved by the Council and to proceed with construction of the project. If FOB petitions for review of our ruling by the Kansas Supreme Court pursuant to Supreme Court Rule 8.03 (2009 Kan. Ct. R. Annot. 66), the provisions of Rule 8.03(i) will take effect.
Reversed and remanded with directions.
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Malone, J.;
Ann G. Downing (Downing), administrator of the estate of Joseph B. Downing, and an heir-at-law, appeals the district court’s decision granting summary judgment to Robert W. Bulis and Unified School District No. 266 (U.S.D. 266) following a motor vehicle accident in which Joseph died after colliding with a vehicle driven by Janet S. Kingsley. For the reasons set forth herein, we affirm the district court’s judgment.
On the morning of October 25, 2005, Bulis was operating a school bus for U.S.D. 266, and he was traveling north in the inside lane of Ridge Road in Wichita. The school bus came to a stop at the intersection of Ridge Road and 37th Street North in order to malee a left turn onto 37th Street North. At that time, a vehicle driven by Kingsley was stopped at the same intersection facing east on 37th Street North. Kingsley’s vehicle prevented Bulis from being able to make a wide left turn with the school bus. After a while, Bulis gestured with Inis hands for Kingsley to cross the intersection so that Bulis could make his turn. After seeing Bulis make the hand gesture, Kingsley proceeded to cross the intersection and collided with Joseph’s vehicle which was traveling north in the outside lane of Ridge Road. Joseph died in the collision. Bulis continued to drive the children to school and did not remain at the scene of the accident.
Downing sued Kingsley and Bulis for Joseph’s wrongful death, including a claim for damages sustained by his estate. The petition alleged that Bulis “negligently made hand signals to defendant Kingsley indicating to Kingsley that it was safe to cross the intersection.” Downing later filed a petition against U.S.D. 266, contending it was vicariously hable for Bulis’ alleged negligence. The two cases were consolidated by agreement of the parties. After completion of discoveiy, Bulis and U.S.D. 266 filed a joint motion for summary judgment which the district court granted. The district court found that by gesturing to Kingsley, Bulis did not assume a duty to ensure her safe passage across the intersection. The district court concluded that Kingsley had a duty to yield the right-of-way and that her duty could not be delegated to Bulis by reliance upon his hand gesture.
Summary judgment pleadings
In their joint motion for summary judgment, Bulis and U.S.D. 266 set forth the following statements of uncontroverted facts relevant to the motor vehicle collision:
“1. Defendant Robert W. Bubs began working as a school bus driver for U.S.D. 266 (Maize school district) in the spring of 2005.
“2. On the morning of October 25, 2005, Bubs was driving Bus 25 for U.S.D. 266. After all of the students are picked up, the normal route for Bus 25 is to proceed north on Ridge Road and then west on 37th Street to Maize Middle School.
“3. At the intersection of Ridge Road and 37th, Ridge Road has two northbound lanes and two southbound lanes. As Bubs approached the intersection, he was in the inside (left) northbound lane of Ridge Road so that he could turn left (west) onto 37th Street.
“4. It was approximately 7:00 a.m. when Bubs approached the intersection of Ridge Road and 37th Street and it was dark outside.
“5. As Bubs approached the intersection, he noticed a row of cars stopped at the stop sign on 37th Street facing east. The first vehicle in the row was a white minivan driven by defendant Janet Kingsley and also occupied by her fifth-grade daughter Holly Lewandowski who was ten years old at the time.
“6. It was Kingsley’s intention to proceed east on 37th Street across Ridge Road to her home at 6007 West 37th Street.
“7. As she sat at the intersection, Kingsley observed that traffic on Ridge Road was ‘mild to moderate’ in both directions.
“8. At the intersection, there were cement abutments on either side of 37th Street due to a culvert that ran under the road.
“9. It was Kingsley’s habit when travehng east on 37th Street to stop at the stop sign on Ridge Road and then pull ahead a httle farther to see past a mound of dirt that partiahy obstructed the view of traffic on Ridge Road to her right.
“10. On the day in question, Bulis observed that the position of Kingsley’s van was such that he could not, with his 40-foot long school bus, execute a left turn that would clear Kingsley’s vehicle without striking the cement abutment.
“11. Bulis made a hand gesture directed toward Kingsley. He then slid open the window to his left to get a better view of the cement abutment and gestured again to Kingsley.
“12. According to Bulis, he intended his gesture to indicate to Kingsley that he could not execute his turn, that they were at an impasse and that if she proceeded through the intersection first, he would not hit her.
“13. While sitting at the intersection, Bulis did not check his outside rearview mirror to determine if any traffic was coming up behind him in the outside northbound lane of Ridge Road.
“14. Ten-year-old Holly Lewandowski saw Bulis’s gesture and told her mother that the bus driver was waving them across the intersection. Kingsley replied, ‘are you sure?’
“15. Kingsley then observed Bulis’s gesture and interpreted it as a motion to proceed across the intersection and that it was clear for her to cross.
“16. Kingsley felt she could rely upon Bulis’s motion because he was ‘high up’ and had ‘good mirrors.’
“17. Kingsley does not recall making eye contact with Bulis and she did not see him check his mirrors before gesturing to her.
“18. After observing Bulis’s gesture, Kingsley looked to the left and then leaned forward and looked to the right, checking for traffic on Ridge Road. Holly Lewandowski saw her mother look each direction twice.
“19. Kingsley looked to her right long enough to satisfy herself that there was no traffic coming from that direction.
“20. Kingsley proceeded east across Ridge Road in front of the bus driven by Bulis and into the path of a Wichita Municipal Transit Authority wheelchair transport bus operated by Joseph B. Downing that was traveling north on Ridge Road in the outside (right) lane.
“21. After the impact, the city bus skidded for a period of time before overturning. Downing ejected from his seat out the folding entry doors and was crushed by the bus.”
Downing filed a response to the summary judgment motion, and she attempted to controvert several facts proposed by Bubs and U.S.D. 266. Many of the attempts did not actually controvert the statements but, in fact, either supplemented or expounded on them:
“11. Controverted. Bulis testified during his video-recorded deposition as to the motion he made to Kingsley. According to Bulis’s demonstration, he merely shrugged, with both palms facing up, as if to indicate ‘what’s going to happen?’ or ‘what are we going to do?’ Bulis also testified that he did not believe his hand was outside the window,when he made that motion. “You know, the habit is just to put your hand on the window sill.’
“Kingsley demonstrated during her video-recorded deposition the motion made by Bulis. As demonstrated by Kingsley, Bulis moved his left hand and forearm in an upward arc motion, with his left palm facing up. Kingsley testified that Bulis had put his left hand and arm outside the window of the bus when motioning to her.
“At least one of the students aboard the school bus has stated under oath: ‘I observed the school bus driver wave to the van by putting his left hand out of the window of the school bus. The school bus driver was waving at the van to go across the intersection.’ Sarah Craneck demonstrated on video the motion made by Bulis. As demonstrated by Craneck, Bulis moved his left hand and forearm in an upward arc motion, with his left palm facing up. Other students on the bus reported similar observations.
“12. Controverted. It is uncontroverted that Bulis so testified. But see Response to Paragraph 11 and exhibits cited therein, which show that there is genuine factual dispute as to what Bulis’s actions were. Bulis’s intent may be implied based on his actions, which are in dispute and must be determined by the finder of fact. In other words, Bulis’s self-serving testimony regarding his subjective intent is not conclusive under the facts of this case.
“16. Controverted in part. Although it was significant that Bulis was seated high in the bus and it had large mirrors, there were additional reasons that Kingsley relied on Bulis’s signaling her to cross the intersection. As Bulis testified in his deposition, the bus he was driving was a ‘40-foot big behemoth.’ It was not possible for Kingsley to see any traffic that was obstructed by the bus. Kingsley’s view was further obstructed by the commercial van/truck immediately behind the school bus. ‘And because I couldn’t see clearly, when the bus driver waved me across, to me, that was like ... a signal, a crossing signal.’ Kingsley also testified that she knew school bus drivers had special training and licensing.
“Finally, Kingsley and Bulis were at an impasse. T knew I wasn’t going to be going until the bus [i.e., school bus] turned.’ And Bulis testified that T could see that I wasn’t going to be able to turn. . . .’
“17. Controverted in part. Kingsley testified that she did not recall making eye contact with Bulis, but it is unlikely that she did. Bulis could not see inside Kingsley’s van, as stated in plaintiffs’ response to Paragraph 4, because it was dark outside. Kingsley was able to see Bulis because the lights were on inside the school bus, and could see the ‘front side’ of his face.
“18. Controverted in part. It is uncontroverted that Kingsley checked for traffic that was in her line of sight. Obviously, Kingsley could not see traffic to the extent her vision was blocked by Bulis’s school bus or the vehicles behind it. Kingsley testified: T don’t think it was possible for me to see’ the bus Downing was driving.
“19. Controverted. Kingsley testified that she looked to the right ‘long enough to see that it looked clear to me.’ ”
In her response to the summary judgment motion, Downing also asserted the following additional statements of fact:
“29. Bulis made a statement to police at 4:30 in the afternoon of the day of the accident. According to a transcript of the recorded statement, Bulis said that he ‘[l]ooked at the van and kind of waved my hands and said ah there’s no place I can go I can’t turn left. ... At that point I’m sitting there waiting and ... I knew there were cars behind me but they were waiting too.... And for whatever reason the . . . van shot out there in front of me.’
“30. Bulis made a written statement in which, among other things, he says: ‘The white van was blocking the turn I needed to make so I tried to indicate to the driver of the white van that I was at an impasse and that they would need to go first.’ >
“31. In a statement to EMC Insurance Company on November 10, 2005, Bulis stated, among other things, that after stopping at the 37th Street intersection:
‘[W]e were just sitting there, even at that point and still not moving and I’m thinking to myself, well do I go up to 45th — I know I can stay on Ridge and go up to 45th and make the left there, but I’d already told her she could go and I’m thinking now if I pull out from — and she hits me I’m gonna be in trouble cause I’m saying you move forward.’
“32. Bulis estimated that it was ‘probably 10-15 seconds’ from the time that he pulled up to the intersection to the time of the accident.
“33. Witnesses to the accident reported that the school bus Bulis was driving obstructed Kingsley’s view of Downing’s city bus. John Cole stated ‘white Chiysler van cross [intersection going east did not see the city van because of school bus.’ Similarly, Mike Curtis stated in part that Kingsley ‘probably did not see vehicle coming because school bus might have blocked its view.’ Russell Atwater reported that a ‘service truck’ was immediately behind the school bus, also obstructing Kingsley’s view.”
Bulis and U.S.D. 266 did not attempt to controvert Downing’s additional statements of fact.
After hearing arguments of counsel, the district court adopted Bulis’ and U.S.D. 266’s statements of uncontroverted facts along with Downing’s additional statements of fact. The district court granted summary judgment in favor of Bulis and U.S.D. 266. In its conclusions of law, the district court stated:
“In particular, pursuant to the Kansas Supreme Court’s decision in Dawson v. Griffin, 249 Kan. 115[, 816 P.2d 374] (1991), the Court concludes that by gesturing to Kingsley, Bulis did not assume a duty to insure her safe passage across the intersection. Rather, Kingsley had a duty to yield the right away [sic] and that that duty could [not] be delegated away by reliance upon a hand gesture.”
Downing subsequently reached a settlement and dismissed her claim against Kingsley. This appeal follows.
Downing claims the district court erred by granting summaiy judgment in favor of Bulis and U.S.D. 266. She first contends that the district court erroneously resolved disputed questions of fact in favor of the defendants. Downing also asserts that the district court erroneously applied the law in Kansas regarding the duty of care. Finally, Downing contends that the district court failed to consider whether Restatement (Second) of Torts § 324A (1964) applied to the facts of the case.
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 district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summaiy judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summaiy judgment. If a disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Summary judgment should be granted with caution in negligence actions. Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). However, summary judgment is proper in a negligence action if the only questions presented are questions of law. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007). Finally, a court should be cautious in granting a motion for sum maiy judgment when resolution of the dispositive issue requires a determination of the state of mind of one or both of the parties. Brennan v. Kunzle, 37 Kan. App. 2d 365, 378, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007).
In order to establish a negligence claim, the plaintiff must establish the existence of a duty, a breach of that duty, an injury, and proximate cause, which means a causal connection between the duty breached and the injury. Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008). The general rule is that whether a duty exists is a question of law, but whether the duty has been breached is a question of fact. Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008).
Were there genuine issues of material facts?
Downing first contends the district court erred in granting summary judgment because it erroneously resolved disputed questions of fact in favor of Bulis and U.S.D. 266. Downing acknowledges that Bulis testified he only intended his gesture to mean that he would not hit Kingsley if she proceeded through the intersection first. However, Downing claims that Bulis’ credibility was placed in issue due to “numerous inconsistent and conflicting statements he provided related to his involvement with this accident.” According to Downing, Bulis’ credibility issues should have precluded the district court from granting summary judgment in favor of Bulis and U.S.D. 266.
On appeal, Downing provides numerous examples of alleged inconsistent statements made by Bulis. However, there are three problems with Downing’s efforts to establish genuine issues of material facts. First, the examples cited by Downing do not generally establish the clear-cut inconsistency in Bulis’ story that Downing contends they do. Second, most of the cited testimony does not implicate the material issue in this case; that is, whether Bulis assumed a duty to other drivers on the roadway when he signaled to Kingsley to cross the intersection. Third, many of the examples of alleged disputed facts were not asserted by Downing in district court in response to the summary judgment motion.
For example, Downing cites to two exchanges during Bulis’ deposition wherein he is asked about the specific gesture he made to Kingsley:
“Q: ... At any time did you put your arm out or have your arms in a waving motion to the van driver?
“A: No sir.
“Q: And there’s no way you stuck your left arm out the window and made a waving motion to the van driver; is that true?
“A: No. That’s true.”
Downing also refers to the testimony of Craneck and another student on the bus who claimed that Bulis put his hand outside the window and waved for Kingsley to cross the intersection.
Downing compares this testimony with a written statement Bulis provided after the accident: “I told the officer, in trying to let the driver of the mini van know that I would not be able to turn left until they did something — I did wave my hands in some manner.” Downing also refers to a statement Bulis made to an insurance company wherein he admitted that he waved his hand toward Kingsley to cross the intersection.
Downing apparently believes this evidence establishes that Bulis was inconsistent about whether or not he waved his hands at Kingsley. But when the testimony is read carefully, the only disputed fact is whether Bulis put his hands outside the hus toindow when he gestured toward Kingsley. Bulis never denied making some kind of hand gesture directed toward Kingsley. Bulis’ and U.S.D. 266’s statements of uncontroverted facts clearly acknowledged that “Bulis made a hand gesture directed toward Kingsley. He then slid open the window to his left to get a better view of the cement abutment and gestured again to Kingsley.”
Downing also argues that Bulis contradicted himself about whether he looked at the outside rearview mirrors to check for traffic. Bulis testified in his deposition that he did not look at the outside rearview mirrors to see whether traffic was coming. However, in a statement to the insurance company, Bulis indicated: “So I’m looking in the mirror, I’m looking at the — and I think I remember the 2 cars coming from the north up there, I could see the headlights on there — it’s dark, I can see the lights from both directions and there’s cars behind me.”
Again, a careful reading of the testimony does not necessarily indicate that Bulis was checking his outside «rearview mirrors for traffic. He noted that there were two cars coining from the north (the front of the bus) and he was aware there were cars behind him, although it is not clear if he is indicating those cars are directly behind him in his lane or the outside lane. In any event, Paragraph 13 of the statement of uncontroverted facts alleged that Bulis did not check his outside rearview mirror to determine whether any traffic was coming behind him in the outside northbound lane of Ridge Road. In response, Downing merely stated, “Uncontroverted that Bulis so testified.” Downing failed to adequately controvert Paragraph 13 of the statement of uncontroverted facts in the summary judgment pleadings.
Next, Downing cites to a phrase in Bulis’ statement to the insurance company: “I won’t be able to go, so you can go first, everything will be fine.” According to Downing, the jury could infer from this statement that when Bulis signaled for Kingsley to proceed, he intended to mean that it was safe for her to cross the intersection. According to Downing, this created a fact issue sufficient to preclude summary judgment in favor of Bulis and U-.S.D. 266.
There are two problems with Downing’s argument. First, when Buhs’ entire statement to the insurance company is read in context, it appears that Bubs was merely indicating to Kingsley that he was unable to proceed and she needed to go first. Bubs never explained what he meant when he said “everything will be fine.” Second, and more importantly, Downing did not assert this specific evidence in response to the summary judgment pleadings in order to create a genuine issue of material fact.
Finally, Downing asserts that the fact that Bubs left the scene fobowing the colbsion is “highly probative of his state of mind at the time of the accident. A jury could reasonably conclude that Bubs left the scene in order to conceal his involvement in causing the accident.” Bubs contended he left the scene of the accident out of concern for the children on the bus and because he did not feel he had any involvement in the collision.
Downing is correct that she is entitled to any reasonable inference to be drawn from the evidence. In some circumstances, a party’s flight from the scene may lead to a reasonable inference of consciousness of guilt. But here the issue is whether Bulis assumed a duty to other drivers on the roadway when he signaled to Kingsley to cross the intersection. No inference can be drawn that Bulis assumed a duty to other drivers based on the evidence that he left the scene. This evidence does not establish a disputed material fact precluding summary judgment.
In summary, there is no dispute that Bulis made some kind of hand gesture directed toward Kingsley. However, the key to this lawsuit is whether Bulis assumed a duty to other drivers on the roadway when he signaled to Kingsley to cross the intersection. Downing’s claims of disputed testimony involve facts that are not material to the existence of a duty. Based upon the summary judgment pleadings, we conclude the district court did not erroneously resolve disputed questions of material fact in granting summary judgment in favor of Bulis and U.S.D. 266.
Dawson v. Griffin
The district court relied on Dawson v. Griffin, 249 Kan. 115, 816 P.2d 374 (1991), to conclude that Bulis did not assume a duty to other drivers on the roadway, including Joseph Downing, when he signaled to Kingsley to cross the intersection. Dawson is the seminal “signaling” case in Kansas. Accordingly, a detailed discussion of the facts and the court’s analysis in Dawson is necessary to resolve Downing’s appeal.
Dawson filed a personal injury action against Griffin and American Family Mutual Insurance Company (American Family) arising from an automobile accident between Dawson and Griffin. Dawson named American Family as a defendant because Griffin had claimed that a phantom truck driver motioned for her to turn in front of Dawson, causing or contributing to the collision. The uncontroverted facts established that Griffin was operating her vehicle westbound on Sante Fe Street in Olathe. She stopped her vehicle at the Chester Street intersection intending to turn left. Dawson was traveling eastbound in the outside lane of Sante Fe. Prior to the collision, a truck was stopped in the inside lane of eastbound Sante Fe at the Chester Street intersection directly facing Griffin. According to Griffin, the driver of the truck motioned for her to turn left in front of him, an offer which she initially declined. Griffin testified that the two drivers made eye contact and the truck driver looked in his rearview and side view mirrors and again motioned for her to go ahead. Griffin turned left in front of the truck and collided with Dawson. The truck left the scene. 249 Kan. at 117.
The trial court granted summary judgment in favor of American Family. The trial court concluded “that the only reasonable inference from the wave by the phantom truck driver to Griffin was ‘Go ahead. I’ll stay here.’ ” 249 Kan. at 117. The trial court also found that, as a matter of law, the phantom driver owed no duty of care to Dawson. 249 Kan. at 117.
On appeal, the Kansas Supreme Court began its analysis by noting:
“Dawson relies upon the oft quoted phrase of Justice Cardozo: ‘It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.’ Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275 (1922) 23 A.L.R. 1425.” 249 Kan. at 118.
The court then analyzed “signaling” cases from other jurisdictions and discovered that “[cjourts that have recognized a duty have required the plaintiff to show that the signal was intended to mean it was safe to proceed rather than merely an intention to yield the right-of-way out of courtesy.” 249 Kan. at 118. The court also noted that in making this determination, some courts “have looked at the signaler’s ability to ascertain whether it was safe to proceed.” 249 Kan. at 118.
The court next discussed Perret v. Webster, 498 So. 2d 283 (La. App. 1986), which Dawson described as his “best case.” Dawson, 249 Kan. at 118. There, the question of whether the signaling driver assumed a duty to a third person on the roadway was allowed to go to the jury when there was a question of fact regarding whether the signaling driver was in a position to ascertain whether it was safe to proceed. The court also noted there was independent testimony provided by a passenger in the signaling vehicle that the driver looked in his side view mirror to check for traffic. Perret, 498 So. 2d at 285.
The court also reviewed cases cited by American Family, including Kerfoot v. Waychoff, 501 So. 2d 588 (Fla. 1987) (signaling driver could not determine the status of other traffic); Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 Pac. 718 (1931) (motorman owed no duty of care to a pedestrian when he was in no better position than she to observe the traffic); Government Emp. Ins. Co. v. Thompson, 351 So. 2d 809 (La. App. 1977) (signaling driver s gesture was a courtesy and did not reheve the third driver of his obligation to keep a proper lookout for oncoming traffic); Van Jura v. Row, 175 Ohio St. 41, 191 N.E.2d 536 (1963) (statutory obligation to exercise due care to ascertain that a movement can be made with reasonable safety cannot be delegated to another). 249 Kan. at 119-22.
American F amily asked the court to adopt the Van Jura rationale and cited K.S.A. 8-1527, which requires a vehicle intending to turn left within an intersection to yield the right-of-way to any vehicle approaching from the opposite direction. According to American Family, the statute created a nondelegable duty for a driver to yield the right-of-way to oncoming traffic. 249 Kan. at 122. After reviewing the statute, the court stated: “We agree that the duty imposed by K.S.A. 8-1527 cannot be delegated; however, Van Jura is not a persuasive precedent for a total resolution of the instant case.” Dawson, 249 Kan. at 122.
After discussing the cases from other jurisdictions and K.S.A. 8-1527, the Supreme Court concluded its analysis as follows:
“In the case at bar, there was no verbal communication. In our view, any reliance on the alleged hand wave as a guaranty of safety, in the instant case, was unjustified as a matter of law. Perhaps the trucker meant one thing and Griffin assumed another. We will never know.
‘What we do know is this: Griffin had a nondelegable duty to yield to oncoming traffic while making a left turn; and the only reasonable and safe thing to assume from a hand wave is, T won’t hit you.’
“Other cases will present other facts and in a comparative negligence state, such as ours, each case will necessarily stand or fall on those unique facts. There may be a case where more can be safely understood from a hand wave. This, however, is not such a case.” 249 Kan. at 122-23.
Application of Dawson v. Griffin
Downing contends that Dawson is distinguishable from the present case. Downing points out that Kingsley and Bulis were at 90 degree angles whereas in Dawson, Griffin and the phantom driver were facing each other. According to Downing, Griffin had the option to simply decline the courtesy of the hand wave from the phantom driver and let him pass by. In the present case, however, Kingsley and Bulis were at an impasse and Bulis could not turn the bus until Kingsley proceeded first. Downing points out that “Bulis had a much better ability to ascertain the traffic in the right lane of Ridge Road than Kingsley did, partly because he was up high and had larger mirrors at his disposal, and his view was not obstructed.” Finally, Downing claims that, considering the evidence in the light most favorable to her, a jury could conclude that Bulis’ gesture was more than just a courteous hand wave.
Bulis and U.S.D. 266 argue that, like Griffin, Kingsley had a nondelegable duty to yield the right-of-way to Joseph. They cite Wichita City Code 11.36.040(b):
“Except when directed to proceed by a police officer or traffic-control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop as required in Section 11.36.020, and after having stopped shall yield the right-of-way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.”
Bulis and U.S.D. 266 also contend that the facts indicating a lack of a duty on the part of the signaling driver are stronger in the present case than in Dawson. First, unlike the drivers in Dawson, Kingsley and Bulis did not make eye contact and she did not see him check his mirrors. Second, there was no direct evidence from the phantom driver in Dawson regarding his intent, but the Supreme Court nevertheless found Griffin’s reliance on his hand wave was unreasonable. 249 Kan. at 122. Here, Bulis explicitly testified he never intended to suggest to Kingsley that the intersection was clear for her to cross; rather, he only intended to convey that he was allowing her to proceed before him.
Dawson has not been substantively cited or revisited in Kansas since the decision was issued. Although the court in Dawson discussed several cases from other jurisdictions, the court did not rely upon any single case in reaching its decision. The court in Dawson held that any reliance by Griffin on the alleged hand wave as a guarantee of safety was unjustified as a matter of law. 249 Kan. at 122. It appears from the court’s analysis that Griffin’s interpretation of the hand gesture was not a fact issue which precluded summary judgment. As the court simply stated: “Perhaps the trucker meant one thing and Griffin assumed another. We will never know.” 249 Kan. at 122. The court focused most on the fact that Griffin had a nondelegable duty to yield to oncoming traffic while making a left turn.
The facts in Dawson are substantially similar to the facts in the present case. In both cases, there was no verbal communication between the drivers on the roadway. Also, in both cases, the driver making the hand gesture was in a superior position to observe traffic approaching in the adjacent lane. Contrary to Downing’s argument, this factor does not appear to control the issue of whether the signaling driver owes a duty to other drivers on the roadway. In fact, Dawson is even a stronger case than this one for imposing a duty on the person making the gesture because in Dawson (1) there was eye contact between the drivers, and (2) Griffin actually saw the truck driver check his rearview mirrors for other traffic. Yet in Dawson the court determined the phantom driver assumed no duty to other drivers on the roadway when he signaled to Griffin to make a left turn. 249 Kan. at 122.
Dawson remains the only word on signaling cases in Kansas. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Buchanan v. Overly, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008). If the signaling driver owed no duty of care to the plaintiff in Dawson, we are hard-pressed to find that Bulis assumed a duty of care to Joseph Down ing when he signaled to Kingsley to cross the intersection. Without the existence of a duty, Downing cannot establish a negligence claim against Bulis and U.S.D. 266. Under the facts of this case, which are substantially similar to the facts in Dawson, we conclude the district court did not err by granting summaiy judgment in favor of Bulis and U.S.D. 266 on the issue of liability.
Restatement (Second) of Torts $ 324A
Finally, Downing argues that the district court erred in not finding that Restatement (Second) of Torts § 324A (1964) applied to the present case. The district court did not address this argument. Restatement (Second) of Torts § 324A (1964) was adopted by Kansas in Schmeck v. City of Shawnee, 232 Kan. 11, 24-28, 651 P.2d 585 (1982). This section provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessaiy for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by idle other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts § 324A (1964).
Bulis and U.S.D. 266 argue that § 324A cannot be applied to a signaling case without straining the language of the section. They maintain that one motorist’s hand signal to another cannot reasonably be regarded as an undertaking “to render services to another.” They also argue that such a gesture cannot be transformed into an obligation “for the protection of a third person” as required by the Restatement.
We agree with Bulis and U.S.D. 266 that Restatement (Second) of Torts § 324A is not applicable to the present case. This section of the Restatement has never been applied in Kansas to a signaling case. We note that in Hoekman v. Nelson, 614 N.W.2d 821, 824 (S.D. 2000), the Supreme Court of South Dakota rejected a plaintiff s attempt to employ § 324A to impose a legal duty on the part of a signaling motorist. Here, Bulis’ hand gesture to Kingsley can not reasonably be interpreted as an undertaking “to render services to another ... as necessary for the protection of a third person.” We conclude that Restatement (Second) of Torts § 324A provides no basis upon which to deny summary judgment in favor of Bulis and U.S.D. 266.
Conclusion
In Dawson, the Kansas Supreme Court left the door open for plaintiffs such as Downing by emphasizing that “each case will necessarily stand or fall on [its own] unique facts.” 249 Kan. at 122. But the facts in this case are not appreciably different from the facts in Dawson. Given our duty to follow current Supreme Court precedent in Dawson, we conclude the district court’s decision granting summary judgment to Bulis and U.S.D. 266 must be upheld. Perhaps our Supreme Court may see fit to review this case and take the opportunity to reconsider, or at least to clarify, the law in Kansas on this subject.
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Buser, J.:
David Lee Ralston, Jr., appeals from his felony conviction for possessing marijuana without having affixed an appropriate stamp or label, in violation of K.S.A 79-5208, and misdemeanor convictions for possession of marijuana, in violation of K.S.A. 65-4105(d)(16) and K.S.A. 65-4162(a), and possession of drug paraphernalia, in violation of K.S.A. 65-4152(a)(2). Ralston contends the district court erred by denying his motion to dismiss the charges because he had a contract or agreement with Ottawa police officers that provided him with immunity from prosecution if he was honest and provided them with the names and addresses of drug dealers. In addition, Ralston argues entrapment and claims his convictions for possession of marijuana and possession of drug paraphernalia were multiplicitous. We affirm.
Factual and Procedural Background
On October 1,2007, officers with the Ottawa Police Department Drug Enforcement Unit conducted a “buy-bust operation” at the Days Inn hotel. As part of the operation, an informant contacted Ralston and asked him to bring 2 ounces of marijuana to room 164 where, unbeknownst to Ralston, several undercover police officers waited for him. Ralston arrived at the room within 30 minutes of the informant’s call and was immediately pulled into the room, arrested, handcuffed, and searched.
The search of Ralston resulted in the seizure of two bags of marijuana weighing about 2 ounces, and a wooden “hitter box,” which was described as a box used to conceal and smoke marijuana. The hitter box contained a burnt marijuana cigarette and a pipe which was described as “a metal cylindrical tube . . . painted to look like a cigarette.” Subsequent laboratory examination revealed that both the box and the pipe contained marijuana residue.
The police officers had a conversation with Ralston after his arrest. The details of this conversation were controverted. During a pretrial evidentiary hearing, Detective Procaccini testified that immediately after he advised Ralston of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), he told Ralston “that he needed to be honest with me and then I’d be able to help him.” According to Detective Procaccini, Ralston told him “he would do anything to help.”
Ralston then admitted that he came to the hotel room to sell marijuana and provided the officers with names of some drug dealers. Detective Procaccini testified that at some point during the conversation he told Ralston that “if he had someone deliver more drugs to this hotel room than he brought he could go home.” The detective testified that when he told Ralston “he could go home” he meant that Ralston would never be arrested for his drug crimes. Sergeant Mike Hatheway, Detective Procaccini’s supervisor, also testified to the conversation with Ralston and generally corroborated the detective’s account.
At the pretrial hearing, Ralston testified that Detective Procaccini told him that if he was honest the detective would be able help him out. Ralston also admitted telling Detective Procaccini, ‘Til do anything to help.” Ralston testified that when Detective Procaccini said he would be willing to “help” him if Ralston was honest, Ralston understood that to mean the detective “would let me go.” Ralston conceded, however, that at that time Detective Procaccini never specified what he meant by the phrase, “he would help me.” In the end, Ralston was unable to arrange for a dealer to bring a larger quantity of drugs to the hotel room than the 2 ounces Ralston had brought with him. The police then transported Ralston from the scene. Drug charges were later filed by the Franklin County Attorney’s office.
Prior to trial, Ralston moved to suppress his incriminating statements. After hearing evidence, the district court granted Ralston’s motion to suppress, concluding that his “incriminating statements were induced by a promise of a specific benefit that no charges would be filed against him, that he could go home.” The State does not appeal this adverse ruling.
Ralston also filed a motion to dismiss the charges. In his motion, Ralston contended that he “and law enforcement made a binding contract” to let “[Ralston] go free.” The district court denied the motion to dismiss, however, finding there was no contract or agreement between Ralston and the police. The district court also ruled the officers’ conduct was not outrageous and did not violate due process.
The case proceeded to a bench trial where, during closing argument, Ralston first raised the defense of entrapment with regard to the possession of marijuana charges. The district court rejected the defense, finding Ralston’s possession of the hitter box showed a predisposition to possess marijuana. At the trial’s conclusion, the district court found Ralston guilty of possessing marijuana without having affixed an appropriate stamp or label, possession of marijuana, and possession of drug paraphernalia. Ralston was sentenced to a controlling 11-month prison sentence but granted a downward dispositional departure and placed on a 12-month probation. He filed a timely appeal.
Denial of Ralston’s Motion to Dismiss
A district court’s ruling on a defendant’s motion to dismiss criminal charges with prejudice is reviewed under an abuse of discretion standard. State v. Bolen, 270 Kan. 337, Syl. ¶ 2, 13 P.3d 1270 (2000). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Gant, 288 Kan. 76, 81-82, 201 P.3d 673 (2009). Under the abuse of discretion standard, an appellate court also reviews whether the district court’s discretion was guided by erroneous legal conclusions. State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008).
On appeal, Ralston contends the district court committed reversible error by not dismissing the charges against him. In particular, Ralston argues that an enforceable contract was created between him and the police officers. This contract provided that if Ralston truthfully provided the names and addresses of drug dealers, the officers would “help” him. According to Ralston, he understood “help” to mean “release and no prosecution, in return for truthful information.” Ralston further contends that his “informant agreement should be treated as if it were a plea agreement.” Applying contract principles, Ralston argues that he complied with his part of the bargain and the district court should have ordered specific performance of the State’s part of the bargain “and let Ralston go.”
The State presents a two-part argument in response. First, the State submits “[a]s stated by the district court, there was never an enforceable contract between law enforcement and the defendant there was no meeting of the minds or mutual manifestation of assent between the defendant and law enforcement.” Second, “[i]f a contract had, in fact, been solidified between law enforcement and the defendant, there is no binding Kansas authority that holds that the prosecution would be bound by such a contract.”
After considering the evidence, the district court found there was no enforceable contract made between Ralston and the police. In particular, the district judge held:
“The only thing close that the court could diink of with regards to contract law or the situations where there’s a broken promise ... by the State, in a plea bargaining situation, but I don’t think that’s really applicable to this situation based on the facts even in the light most favorable to the defendant. In this case I don’t believe that diere was a [sic] enforceable contract entered into by the defendant and the police officers. There was no meeting of the minds or mutual manifestation of assent between defendant and the officers, and as I’ve hinted earlier, I don’t believe contract law applies to this situation.”
An appellate court reviews the district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009); State v. Hatley, 253 Kan. 394, 398, 855 P.2d 943 (1993).
“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. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 (2006).
Whether any contract or agreement existed between Ralston and the officers was highly controverted. On appeal, Ralston argues the contract provided that if Ralston truthfully supplied the names and addresses of drug dealers, the police would “help” him by releasing him from custody and never prosecuting him for his drug crimes. Ralston testified, however, that Detective Procaccini never specifically told him that he would be freed by simply being honest and providing information regarding drug dealers. Ralston clarified that no specific promise was made, and the detective “just told me that if I’d help him out he’d help me out.” Regardless of the detective’s vague language, Ralston believed that if he did cooperate he would be released and not charged with any drug crimes.
Consistent with Ralston’s testimony, Detective Procaccini testified he did not specify what he meant when he initially told Ralston that if he was honest die detective would help him. According to Detective Procaccini, at a later time in his conversation, however, he proposed that if Ralston was able to bring anotiier drug dealer to the hotel room with a larger quantity of drugs than Ralston brought, “he could go home.” Ralston admitted he was unable to procure any other dealers to deliver drugs to the hotel room. Detective Procaccini testified that Ralston “did nothing to get me drugs delivered to that hotel room.”
Detective Procaccini’s supervisor, Sergeant Mike Platheway, testified that he was the officer who pulled Ralston into the hotel room, and immediately arrested and handcuffed him. According to Sergeant Hatheway, prior to any questions being asked of Ralston, “he blurted out if you guys need help with anything I’ll help you.” During the evidentiary hearing, the following colloquy occurred between the prosecutor and Sergeant Hatheway about the conversation that occurred shortly after Ralston’s arrest:
“Q. Okay. Now, Sergeant Hatheway, once you were done with Mr. Ralston’s case so to speak how exactly did you transition into talking about future operations?
“A. We began to talk to Mr. Ralston about him helping himself out on this case and that if he could provide us with information and get someone else to come to the room to deliver a quantity of drugs that was significantly larger than what he had then we could help him with his case that he had been arrested for.
“Q. Okay. Was it ever presented to him that if he just provided names that the case that he had just been arrested on would go away?
“A. Absolutely not.
“Q. In your experience as supervisor and your experience as a law enforcement officer have you ever been in a situation where you made the offer if you just provide names all that goes away?
“A. No. I know hundreds of names of people who are using, selling, dealing drugs, but that doesn’t give me the means or capability to go arrest them or charge them. I know the names of people. I need somebody to take action to provide us with that ability.
“Q. And on this particular evening with Mr. Ralston did you indicate what action you wanted him to take?
“A. Yes.
“Q. And what specifically was that?
“A. We wanted him to contact somebody and have them deliver drugs to that same motel room.
“Q. And did he indicate whether or not he was willing to do that?
“A. He indicated that he could not do that at that time.”
To the extent contract law applies here, the district court’s determination that no enforceable contract existed was a finding of fact. “ “When the evidence pertaining to the existence of a contract or the content of its terms is conflicting or permits more than one inference, a question of fact is presented.’ ” Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007), as quoted in State v. Sharp, 289 Kan. 72, 92, 210 P.3d 590 (2009). It is well known that “the appellate court must accept as true the evidence and all inferences drawn from the evidence which tend to support the findings of the trial judge.” Drach, 281 Kan. at 1067.
“In order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms thereof.” Dougan v. Rossville Drainage Dist., 270 Kan. 468, 488, 15 P.3d 338 (2000). “To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract.” Steele v. Harrison, 220 Kan. 422, Syl. ¶ 3, 552 P.2d 957 (1976). “Any expression of assent that changes the terms of the offer in any material respect may be operative as a counteroffer, but it is not an acceptance and constitutes no contract.” 220 Kan. 422, Syl. ¶ 4.
There was substantial competent evidence to support the district court’s finding that there was not an “enforceable contract” because “[tjhere was no meeting of the minds or mutual manifestation of assent between [Ralston] and the officers.”
Ralston understood the contract or agreement provided him immunity from prosecution based on Detective Procaccini’s vague promise of help if Ralston was honest. In Ralston’s view, he was only required to truthfully provide names and addresses of drug dealers in order to avoid being prosecuted for drug charges. Roth Detective Procaccini and Sergeant Hatheway, however, denied promising Ralston immunity in return for truthful information about the names and addresses of drug dealers.
For his part, Detective Procaccini’s understanding was that any promise of immunity from prosecution was specifically conditioned upon Ralston procuring a drug dealer to deliver to the hotel room a quantity of drugs greater than the 2 ounces Ralston had brought to the hotel room. It was uncontroverted that Ralston did not comply with this condition. If a promise is conditional, the person seeking to enforce the promise “ "cannot avail himself of the benefit of it without complying with the conditions.’ ” Green v. Goble, 7 Kan. 297, 302 (1871), as quoted in State v. Sharp, 289 Kan. at 92.
Given the highly disputed evidence regarding whether a contract was agreed upon and, if so, what the terms of the agreement were and whether those terms were complied with, we are persuaded the district court did not abuse its discretion by finding there was no enforceable contract or agreement.
Moreover, as argued by the State, there is another basis upon which to uphold the district court’s denial of Ralston’s motion to dismiss. Assuming there was an immunity contract or agreement between Ralston and the officers, that agreement was unenforceable because it was made without the authority of the county or district attorney responsible for the State’s prosecution. Moreover, to the extent an unauthorized promise by the police improperly procured Ralston’s incriminating statements, the district court ordered the appropriate remedy — suppression of Ralston’s incriminating statements.
Ralston’s insistence on specific performance of the agreement is predicated on his belief that “when Ralston truthfully provided the names of potential drug sting targets to the police, due process mandated the State perform as it promised and let Ralston go.” (Emphasis added.)
To the extent this question involves statutory interpretation, our review is de novo. See State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). Our task is to “ ‘ascertain the legislative intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
Crimes are committed “against the state of Kansas,” K.S.A. 21-3102, and “[a]ll prosecutions for violations of the criminal laws of this state shall be in the name of the state of Kansas.” K.S.A. 22-2104. Prosecutors, not law enforcement officers, represent the State in criminal proceedings. See K.S.A. 19-702 (county attorneys); K.S.A. 22-2202(17) (prosecuting attorneys generally). And prosecutors, not law enforcement officers, “may at any time, on behalf of the state, grant in writing” immunity to witnesses. K.S.A. 22-3415(b). Law enforcement officers, however, do not have that authority. See K.S.A. 22-2202(13) (outlining duties).
This statutorily expressed public policy, to keep the “prosecution of the case ... at all times in the hands of the public prosecutor,” is “consistent with that traditionally adopted throughout this country.” State ex rel. Rome v. Fountain, 234 Kan. 943, 949, 678 P.2d 146 (1984). Thus, the general rule is not to enforce a defendant’s immunity agreement made solely with law enforcement officers. See Green v. State, 857 P.2d 1197, 1199-1201 (Alaska App. 1993) (discussing cases); 21 Am. Jur. 2d, Criminal Law § 247, p. 361.
In State v. Spradlin, 12 S.W.3d 432, 433 (Tenn. 2000), for example, the Supreme Court of Tennessee considered “whether an agreement not to prosecute made between [defendant] . . . and two officers is enforceable without the district attorney general’s knowledge or approval.” (Emphasis added.) The court noted the “well-settled law and custom that a district attorney general has the sole duty, authority, and discretion to prosecute criminal matters. [Citations omitted.]” 12 S.W.3d at 436. The court emphasized the contrasting “clear rule” concerning law enforcement officers, that they “do not possess the authority to bind prosecutors to unauthorized immunity or nonprosecution agreements.” (Emphasis added.) 12 S.W.3d at 436. Among other considerations, the court was “concerned that enforcement of unauthorized promises between officers and defendants would raise serious questions about the officers’ power to manipulate the criminal justice system.” 12 S.W.3d at 436. As a result, the court concluded the officers were “without authority to bind the district attorney general to an agreement not to prosecute.” 12 S.W.3d at 434.
We conclude that law enforcement officers, absent the prior knowledge and approval of county and district attorneys, are without authority to enter into immunity agreements. This approach is consistent with the legislature’s purpose to empower county and district attorneys — not law enforcement officers — with the discretion to file, reduce, or dismiss criminal charges and grant immunity to individuals on behalf of the State of Kansas.
Ralston contends “[concerning the state’s objection to perform on its part of the bargain, Ralston’s informant agreement should be treated as if it were a plea agreement.” Generally, courts apply fundamental contract principles in both the interpretation and enforcement of plea bargains. See State v. Boley, 279 Kan. 989, 993, 113 P.3d 248 (2005). There are important differences, however, which distinguish Ralston’s claimed immunity agreement and a typical plea agreement.
First, any agreement in Ralston’s case was made prior to any review or filing of formal charges by the prosecutor, whereas a plea agreement is typically formulated after the prosecutor has filed charges. Second, any agreement in this case was transacted between Ralston and the officers without the knowledge or approval of the prosecutor, while a plea agreement is executed between a defendant and the prosecutor, as the legal representative of the State. See K.S.A. 21- 4713 (actions which prosecutors may take under agreements with defendants for plea). Third, the ambiguous and disputed terms of Ralston’s claimed immunity agreement were not subject to court review before the agreement was executed, whereas plea agreements are subject to court review, and the district court “is not bound by its terms and can reach an independent decision on whether to approve a negotiated charge or sentence concessions.” Boley, 279 Kan. 989, Syl. ¶ 2. In short, we find important dissimilarities between Ralston’s claimed immunity agreement in this case and a typical plea agreement.
Ralston next equates the claimed immunity agreement with the so-called charge agreement at issue in Ratley, 253 Kan. at 395. In Ratley, agents with the Kansas Bureau of Investigation (KBI) seized growing marijuana plants and packages of marijuana from Ratley’s farm. Ratley was arrested. Craig Cole, Anderson County Attorney, authorized KBI Special Agent Tom Williams to enter into an agreement with the defendant on behalf of the State. The agreement was prepared and signed by Williams and the defendant before a notary public. The document provided that if Ratley told the truth regarding his involvement in illegal activities the State agreed to charge him with one count of possession of marijuana with intent to sell and to waive additional charges for felonies of the level C or below. If Ratley did not tell the truth or assist in the investigation, the agreement was void and provided: “ ‘the County Attorney or his designate is free to charge me with any and all counts they deem necessary.’ ” 253 Kan. at 395.
Ratley complied with his part of the bargain, but the State did not, charging him with possession of marijuana with intent to sell and alternatively with cultivation of marijuana (a class C felony). Ratley filed a motion to enforce the agreement, and the district court sustained the motion, striking the cultivation of marijuana count. 253 Kan. at 395.
Noting the agreement had been made with the “ ‘knowledge and authority of the Anderson County Attorney,’ ” 253 Kan. at 395, the district court equated this “ ‘charge agreement,’ ” 253 Kan. at 396, with a plea agreement noting “ ‘the interests of justice and appropriate recognition of the duties of the prosecution, in relation to promises made, will best be served by specifically enforcing the charge agreement.’ ” 253 Kan. at 397.
The State appealed the district court’s decision, but the Supreme Court affirmed and observed: “The district court, based on substantial competent evidence, found the agreement as entered into was with the ‘full knowledge and authority of the Anderson County Attorney, Craig Cole.’ ” 253 Kan. at 399. Consistent with this finding, our Supreme Court also stated: “The county or district attorney is the representative of the State in criminal proceedings. He or she has the authority to dismiss any charge or reduce any charge.” 253 Kan. 394, Syl. ¶ 4.
Similarly, in another case Ralston cites, State v. Wacker, 268 Neb. 787, 788, 688 N.W.2d 357 (2004), an “officer . . . entered into a cooperation agreement” only “after speaking with the county attorney.” (Emphasis added.)
The charge agreement in Ratley, and the cooperation agreement in Wacker (similar to plea agreements in general) are noteworthy because each agreement was made with the prior knowledge and approval of the county attorney who had the legal authority to bind the State. Accordingly, the State’s breach of the agreement, which it entered into, resulted in specific performance of the State’s broken promise. In the present case, however, Ralston does not allege and there is no evidence of record to suggest, that the county attorney knew of or approved of any immunity agreement. Under these circumstances, enforcement of the unauthorized agreement against the State, which was not even a party to the agreement, is unwarranted.
We acknowledge “distinctions between the authority of the police and that of the prosecutor mean little to a defendant negotiating with a government officer.” State v. Sturgill, 121 N.C. App. 629, 643, 469 S.E.2d 557 (1996). We also recognize that “a police officer is just as capable of implicating defendant’s constitutional rights as the district attorney who refused to honor the police promise to defendant. [Citation omitted.]” 121 N.C. App. at 643. Yet, as in the present case, where a defendant relies upon the unauthorized promise of a law enforcement officer, “the remedy which accords substantial justice to defendant is that which returns him to his position prior to the confession. Thus, since suppression or exclusion of the confession cures defendant’s detrimental rebanee, specific performance is unwarranted.” 121 N.C. App. at 647.
In this case, Ralston responded to an informant’s request to bring 2 ounces of marijuana to the hotel room in order to effect a drug sale. Ralston was pulled into the hotel room by pobce officers, immediately arrested, handcuffed, and searched. Marijuana and drug paraphemaha were found on Ralston which resulted in the prosecutor exercising his statutory authority and discretion by fibng drug charges. The incriminating evidence was procured prior to and apart from any later discussions or purported immunity agreements with Ralston. To the extent the officers’ unauthorized promise of immunity improperly induced Ralston’s subsequent incriminating statements, the district court properly remedied the violation of Ralston’s Fifth Amendment rights by imposition of the exclusionary rule and suppression of the evidence. See State v. Swanigan, 279 Kan. 18, 39-40, 106 P.3d 39 (2005), and State v. Boston, 261 Kan. 100, 107-08, 928 P.2d 79 (1996) (discussing the voluntariness of confessions obtained after promises or threats by law enforcement officers).
We hold the district court did not err in its denial of Ralston’s motion to dismiss the charges.
Entrapment
Ralston also contends his marijuana convictions should be reversed because he was entrapped by the police. In particular, Ralston claims “the police used [the informant], the subject of a prior police sting, to contact Mr. Ralston and ask Mr. Ralston to bring marijuana to the motel room to sell [and] . . . [t]here is absolutely no indication in the record that Mr. Ralston had any intention of possessing marijuana absent [the informant’s] request that he do so.”
The State responds that Ralston’s possession of “drug paraphernalia used to both store marijuana and to introduce it into the human body . . . was evidence that the informant merely afforded him the opportunity to possess the marijuana.. . and . . . [Ralston] had the intent to engage in the criminal conduct of possessing marijuana before the informant requested the sale.”
To the extent we interpret the entrapment statute, K.S.A. 21-3210, our review is de novo. See Jefferson, 287 Kan. at 33. The question of whether Ralston’s entrapment defense to the possession of marijuana charges was rebutted by evidence of an intent and predisposition to possess marijuana is a question of fact. See State v. Van Winkle, 254 Kan. 214, 224, 864 P.2d 729 (1993); State v. Rogers, 234 Kan. 629, 632, 675 P.2d 71 (1984); PIK Crim. 3d 54.14. In this regard, our review is for the sufficiency of the evidence. Van Winkle, 254 Kan. at 224.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” 254 Kan. at 224.
The entrapment defense was codified in 1969. See L. 1969, ch. 180, sec. 21-3210; State v. Houpt, 210 Kan. 778, 780, 504 P.2d 570 (1972); State v. Reichenberger, 209 Kan. 210, 215, 495 P.2d 919 (1972). The statute reads in relevant part:
“A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:
“(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator.” K.S.A. 21-3210.
In Reichenberger, a case decided on precodification law, our Supreme Court held that once inducement by the government has been proven, “previous intention or predisposition [to commit the crime] must be shown to rebut entrapment.” 209 Kan. at 217. In Houpt, which applied the new statute, K.S.A. 21-3210, our Supreme Court found “no difference in the import of die codified language and the parallel expression in Reichenberger.” 210 Kan. at 782. As a result, aldiough K.S.A. 21-3210 does not include the word “predisposition,” that is typically how the issue is framed in entrapment cases. See, e.g., State v. Gasser, 223 Kan. 24, Syl. ¶ 2, 574 P.2d 146 (1977); State v. Carr, 23 Kan. App. 2d 384, 384-85, 931 P.2d 34 (1997).
In the analysis of entrapment cases, “ ‘[t]he extent of government activity in soliciting the crime charged is weighed ... against defendant’s willingness to comply, and other evidence of predisposition to determine whether defendant originated the criminal purpose or was entrapped.’ ” State v. Rogers, 234 Kan. 629, 632, 675 P.2d 71 (1984) (quoting State v. Bagemehl, 213 Kan. 210, Syl. ¶ 4, 515 P.2d 1104 [1973]).
We believe a rational factfinder could have concluded beyond a reasonable doubt that Ralston was predisposed to possess marijuana. In addition to the bags of marijuana, the possession of which was apparently induced by the informant acting as a government agent, Ralston possessed the hitter box and its contents. Law enforcement officers testified the hitter box was used to conceal and smoke marijuana. This paraphernalia also contained marijuana residue indicative of personal use. As the district court correctly noted, Ralston “was not induced by the officers or [confidential informant] to purchase a hitter box, use it, leave the butt of a marijuana joint in the hitter box, etc.”
Moreover, evidence of “criminal activity or . . . previous suspicious conduct” is only “one of the accepted methods of establishing predisposition.” Reichenberger, 209 Kan. at 218. “[R]eady compliance by the defendant” is also “accepted as evidence of predispo sition.” State v. Fitzgibbon, 211 Kan. 553, 555, 507 P.2d 313 (1973).
Evidence at trial showed that Ralston arrived at the hotel room within 30 minutes of the informant’s phone call requesting 2 ounces of marijuana. Viewed in the light most favorable to the State, Ralston’s ready compliance when asked to bring marijuana to the hotel room showed his predisposition to possess it. Accordingly, the trial court did not err in rejecting Ralston’s entrapment defense.
Multiplicity
Ralston was charged with possession of marijuana and possession of drug paraphernalia after the search incident to his arrest revealed two bags of marijuana, the hitter box, and pipe. For the first time on appeal, Ralston contends that, under the Double Jeopardy Clause of die Fifth Amendment to the United States Constitution which generally prohibits multiple charges for a single offense, these two items could not be considered drug paraphernalia because they also contained marijuana residue and Ralston was charged in a separate count with possession of marijuana.
“Whether convictions are multiplicitous is a question of law subject to unlimited review.” State v. Fisher, 283 Kan. 272, Syl. ¶ 16, 154 P.3d 455 (2007).
Ralston did not raise the multiplicity issue in the district court. Generally, issues not raised before the district court may not be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). An appellate court may consider multiplicity for the first time on appeal, however, to serve the ends of justice or prevent a denial of fundamental rights. See State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). On appeal, Ralston does not assert or show how our review would facilitate those purposes. As a result, this issue was not preserved for appellate review.
If this court were to consider the merits of this issue, however, we would conclude that Ralston’s argument has no merit.
Ralston relies on State v. Castillo, 34 Kan. App. 2d 169, 115 P.3d 787, rev. denied 280 Kan. 985 (2005), contending that when “drug paraphernalia is used for its intended purpose, the crime of pos session of drug paraphernalia will be merged into the primary offense,” i.e., possession of marijuana.
In Castillo, a panel of this court held, under the facts of that case, that the crime of possession of marijuana with intent to sell within 1,000 feet of a school merged with the crime of possession of drug paraphernalia, the latter being a plastic bag which contained the marijuana. The critical fact appeared to be that the same marijuana provided the factual basis for both charges: “Castillo possessed one bag of marijuana. Splitting that single offense into two counts was constitutionally impermissible.” 34 Kan. App. 2d at 177.
Here, of course, Ralston possessed two bags of marijuana in addition to the marijuana residue in the hitter box and pipe. In any event, our Supreme Court disapproved merger analysis after the Castillo opinion was filed. See State v. Schoonover, 281 Kan. 453, 493, 133 P.3d 48 (2006). The “same-elements test” is now “the only test to determine multiplicity arising from convictions of separate statutes.” State v. Malm, 37 Kan. App. 2d 532, Syl. ¶ 12, 154 P.3d 1154, rev. denied 284 Kan. 949 (2007).
The following test is used to determine whether convictions are multiplicitous:
“First, a court must consider whether the convictions are based upon the same conduct. If not, the multiplicity analysis ends. If based on the same conduct, the court must then consider whether the convictions are based on a single statute or multiple statutes. If the convictions are based upon different statutes, the convictions are multiplicitous only when the statutes upon which the convictions are based contain an identity of elements.” 37 Kan. App. 2d 532, Syl. ¶ 12.
Assuming without deciding that Ralston’s convictions are based on the same conduct, the two statutes upon which the convictions are based do not contain an identity of elements. Marijuana is a hallucinogenic controlled substance under K.S.A. 65-4105(d)(16). K.S.A. 65-4162(a) makes it “unlawful for any person to possess” such a substance, and K.S.A. 65-4152(a)(2) states “[n]o person shall use or possess with intent to use ... any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body” such a substance.
Simply put, possession of marijuana requires possession of marijuana, while possession of drug paraphernalia does not; and possession of drug paraphernalia requires possession of drug paraphernalia, while possession of marijuana does not. See State v. Patten, 280 Kan. 385, 391, 122 P.3d 350 (2005) (manufacturing methamphetamine and possession of drug paraphernalia are not multiplicitous under same elements test). Because possession of marijuana and possession of drug paraphernalia require proof of an element not required to prove the other crime, the crimes are not multiplicitous. Ralston’s argument is without merit.
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Caplinger, J.:
In this appeal, Daniel J. Stechschulte, Jr., Satu S.A. Stechschulte, and the Daniel J. Stechschulte, Jr., Revocable Trust (collectively the Stechschultes) challenge the district court’s grant of summary judgment in favor of A. Drue Jennings and the A. Drue Jennings Revocable Trust dated October 31, 2002 (collectively, Jennings), on the Stechschultes’ claims of fraud, negligent misrepresentation, and breach of contract relating to the sale of Jennings’ residence to the Stechschultes.
The Stechschultes also appeal the district court’s grant of summary judgment in favor of Jennings’ agent in the sale of his home, Emily A. (Golson) Jennings, and PHB Realty Company, L.L.C. (PHB Realty), on the Stechschultes’ claims of negligent misrepresentations and violations of the Kansas Consumer Protection Act, (KCPA), K.S.A. 50-623 et seq. Finally, the Stechschultes appeal the district court’s denial of their motion to amend to add punitive damages claims against Jennings and Golson.
For reasons fully detailed below, we reverse and remand the district court’s grant of summary judgment to Jennings on the Stechschultes’ claims of fraud, negligent misrepresentation, and breach of contract, but we affirm the grant of summary judgment to Golson and PHB Realty on all claims against them. Finally, we affirm the district court’s denial of the Stechschultes’ motion to amend to add a claim for punitive damages against Jennings, while we find the Stechschultes’ appeal of the denial of their motion to amend to add a punitive damages claim against Golson to be moot.
Factual and procedural background
Because the district court granted summary judgment in favor of the defendants on all of the Stechschultes’ substantive claims, the following factual statement views the evidence in the light most favorable to the Stechschultes, the parties opposing the motions.
In May 1998, Jennings purchased a residence (the home) under construction in Leawood. He began residing in the home in October 1998. Nearly 4 years later, in August 2002, and again in January 2003, Jennings contacted the builder of the home, William Brimacombe, regarding water leaks in the home. Brimacombe visited the home on both occasions and observed water stains in the home, including a stain on the living room ceiling in August 2002. Brimacombe, along with a roofer, inspected the roof and flashing for leaks but found no problems and advised Jennings to have the windows checked.
Jennings contacted the window subcontractor, Morgan-Wight-man Supply company, who in turn hired Excel Window & Door, Inc. (Excel), to inspect the windows. Chris Whorton, Excel’s owner and president, as well as other Excel employees, made eight visits to the home between August 2002 and September 2004 to evaluate leaks and/or repair windows in the home. During a visit by Whorton in August 2002, Jennings told Whorton that he had noticed water leales all over the home and pointed out three areas he believed had experienced the worst leaks. During this visit, Whorton observed water stains at different locations in the home, as well as dirt stains where water had been carried into the home.
During another visit to the home by Whorton, Jennings pulled back a section of carpet and pointed out water stains extending approximately 2 feet from a window, as well as a separate stain several feet away from the window.
Excel performed two water tests on the home, one in August 2002 and another in September 2003. Jennings was present during both tests. Several of the water entry points were “undetermined” after water testing on the home.
After the August 2002 testing, Whorton recommended to Jennings that some of the exterior trim be pulled off the home to attempt to find the sources of the water problems. Whorton also told Jennings he could have the windows caulked but it would be only a temporary, or “Band-Aid,” solution. Jennings elected to have the windows caulked.
In September 2002, Jennings paid Excel $2,650 to caulk all of the windows and doors in the home and to caulk between the cedar and stucco exterior and between the cedar and the doors and windows. The warranty on the home had expired in 1999, and the work performed was not performed under warranty.
In May 2003, Jennings hired and paid a painter to paint the area on the living room ceiling and trim where water had leaked the prior year.
In October 2003, Jennings discovered a leak in the loft window and again summoned Brimacombe. After Brimacombe and a roofer examined the roof and flashing over the loft and found no problems, Excel was again notified and conducted water testing.
When Whorton visited the home in September 2003, Jennings was adamant that all of the windows in the home were defective and needed to be replaced. Whorton advised Jennings that he would pass Jennings’ wishes on to the window subcontractor, Morgan-Wightman, but that it was not up to Whorton whether the windows would be replaced. According to Whorton, neither he nor any Excel employee made any repairs to the windows in September 2003.
According to Jennings, after the September 2003 testing, the comers of the weather stripping in all of the windows were repaired or sealed at no cost to Jennings. However, Jennings did not indicate who performed these repairs. Further, Jennings indicated that because he did not pay for the September 2003 repairs, he possessed no documents to verify those repairs.
Sometime in 2004, a vapor seal failed in a bathroom window in the home. According to Jennings, the window was eventually replaced by Excel and/or Morgan-Wightman at no cost to Jennings.
The Sale of the Home
In February 2005, Jennings listed his residence in Leawood for sale. Jennings’ fiancée, Emily Golson, with PHB Realty Company, LLC, was the listing agent for the home. Jennings and Golson were married sometime in April 2005, and Golson changed her surname to Jennings.
In connection with the sale, Jennings completed and signed a form entitled “Seller’s Disclosure and Condition of Property Addendum” (the disclosure). In Section 7 of the disclosure, entitled “STRUCTURAL, BASEMENT AND CRAWL SPACE ITEMS,” Jennings represented in response to question 7(d) that there had been “No” water leakage or dampness in the house, crawl space, or basement. In response to question 7(i), Jennings represented that there had been “No” repairs or other attempts to control the cause or effect of any problem described in Section 7, including water leakage or dampness in the home.
Had Jennings responded affirmatively to any of the questions in Section 7, he would then have been required to respond in the space provided after the question at the end of Section 7:
“If any of the answers in this section are Tes’, explain in detail. When describing repairs or control efforts, describe the location, extent, date, and name of the person who did the repair or control effort and attach any inspection reports, estimates or receipts:__”
In Section 14, “OTHER MATTERS,” Jennings represented that he was not “aware of any general stains or pet stains to the carpet, the flooring, or sub-flooring.
Again, if Jennings had responded “Yes,” he would have been required to explain his response “in detail” at the end of Section 14.
Prior to Jennings’ signature line, the disclosure statement required Jennings to:
“Disclose any material information and describe any significant repairs, improvements or alterations to the property not fully revealed above. If applicable, state who did the work. Attach to this disclosure any repair estimates, reports, invoices, notices or other documents describing or referring to the matters revealed herein.”
In the space provided after this question, Jennings wrote: “Several windows leaked after construction; full warranty repairs were performed, and correction is complete.”
Jennings signed and dated the disclosure February 28, 2005. Underneath Jennings’ signature, the disclosure contained a section entitled “Buyer’s Acknowledgment and Agreement” (the acknowledgment), which provided:
“1. I understand and agree that the information in this form is limited to information of which SELLER has actual knowledge and that SELLER need only make an honest effort at fully revealing the information requested.
“2. This property is being sold to me without warranties or guaranties of any kind by SELLER or BROKER(S) or agents concerning the condition or value of the Property.
“3. I agree to verify any of the above information, and any other important information provided by SELLER or BROKER (including any information obtained through the multiple listing service) by an independent investigation of my own. I have been specifically advised to have the property examined by professional inspectors.
“4.1 acknowledge that neither SELLER nor BROKER is an expert at detecting or repairing physical defects in the property.
“5. I specifically represent that there are no important representations concerning the condition or value of the property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.”
In April 2005, Daniel and Satu Stechschulte toured Jennings’ home with their own agent, and on April 5,2005, the couple signed a contract to purchase the home. The Stechschultes signed and dated the buyers’ acknowledgment in the disclosure statement on April 5, 2005.
The Stechschultes hired a professional inspection company to perform a general inspection of the home. The inspection revealed no water intrusion or damage issues, and the Stechschultes closed on the home on June 8, 2005. The home was titled in the name of the Daniel J. Stechschulte, Jr., Revocable Trust.
On July 3, 2005, heavy rains fell in the Kansas City area. The Stechschultes had not yet moved into the home, but they went to the home the following morning. There, they found extensive water infiltration, including a 6 to 8-foot pool of water in front of a basement window and water running down the wall in front of the window; water running down from a basement light switch; water running down the sides of a sliding glass door in the living room and pools of water nearby; water in one of the windows in the master bedroom; and water dripping from a window sill in the hearth room.
The Stechschultes contacted and met with Jennings at the home, showing him the multiple sites of water intrusion. The Stechschultes requested to rescind the contract, but Jennings refused and indicated one of the reasons for his refusal was that the proceeds from the sale were already invested in his and Colson’s new home. Jennings contacted his homeowner’s insurance company to determine coverage for the claims, but coverage was denied.
The Stechschultes then had the home evaluated by a builder, Enrico Fomer, who observed a pool of water on the ceramic tile in the basement, as well as evidence of water leakage in the master bedroom, loft, and hearth room. Fomer observed that the painting and recaulking in the home appeared to be “fresh”— probably within 6 months prior to the sale. The Stechschultes also discovered a can of paint in the basement which was labeled as expressly formulated to conceal water damage.
In August 2005, the Stechschultes had Thermoteknix perform infrared scans in the home, which revealed extensive water damages. In September 2005, the Stechschultes had an environmental fungal survey performed, which showed elevated mold levels in the home.
The Petition
On March 21, 2006, the Stechschultes filed a petition against Jennings and the former titleholder of the home, the “A. Dme Jennings Revocable Trust dated October 31, 2002,” alleging fraud and negligent misrepresentation. Specifically, the petition alleged that Jennings made false representations in the disclosure, failed to disclose material defects, failed to provide repair records related to window leaks, and failed to reveal that Jennings had painted over water stains. The Stechschultes later added a breach of contract claim based on Jennings’ failure to attach documents to the disclosure relating to the window repairs.
The petition also asserted claims of negligent misrepresentation and violations of the KCPA, K.S.A. 50-623 et seq., against Golson and PHB Realty.
The petition specifically alleged that Golson assisted Jennings in completing the disclosure and in providing Jennings’ false representations to the Stechschultes, that she failed to exercise reasonable care in obtaining and communicating information to the Stechschultes, and failed to investigate Jennings’ statements and representations in the disclosure. The Stechschultes further alleged Golson and PHB Realty violated the KCPA by engaging in deceptive acts and practices in connection with the sale of the home.
Additionally, Jennings asserted several third-party indemnity claims, all of which were ultimately dismissed by the district court with the exception of a claim against the builder, William Brimacombe, for negligence and breach of implied warranty. However, this claim was rendered moot by the district court’s final ruling, and the court’s rulings on the third-party claims are not at issue in this appeal.
Motion to Amend to Add Punitive Damages Claim
During the course of the litigation, the Stechschultes moved to amend their petition to add a claim for punitive damages against Jennings and Golson, alleging they acted willfully and wantonly by selling the home with knowledge of extensive water intrusion problems and failing to disclose or actively concealing those problems from the Stechschultes.
Following a hearing on August 22,2007, the district court denied the Stechschultes’ motion to add a punitive damages claim. The court noted that the previous district judge assigned to the case had denied a prior motion to amend to add a punitive damages claim, and the court found no basis to alter that ruling. This ruling was finalized in a journal entry dated September 17, 2007.
In a subsequent hearing on December 31, 2007, however, the Stechschultes orally renewed their motion to amend to add a claim of punitive damages against Jennings. The court again denied the motion but noted that it would be open to reconsidering its ruling depending upon “how the evidence comes out at trial.” This ruling was finalized, along with several other rulings, in an order dated May 19, 2008. The Stechschultes have appealed from that decision as well as the September 17, 2007, journal entry denying their motion to amend.
lennings* Motions for Summary Tudgment
Following discovery, all of the parties filed cross-motions for summary judgment. Jennings’ first motion, filed in November 2007, indicated he sought summary judgment on “Counts I and II — Fraudulent Inducement and Negbgent Misrepresentation, for the lack of any evidence of justifiable rebanee, an essential element of their claims.” In support of the motion, Jennings rebed upon Brennan v. Kunzle, 37 Kan. App. 2d 365, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007), and McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006). Specifically, he argued that these cases required the court to find that pursuant to Section 5 of the buyers’ acknowledgment, the Stechschultes waived their right to assert fraud and negbgent misrepresentation claims when they failed to specify in writing any “important representations concerning the condition or value of the property” on which they were relying.
Jennings further argued that plaintiffs’ Count II, negbgent misrepresentation, was barred by the economic loss doctrine. Finally, Jennings sought summary judgment on Count III, breach of contract, based on the doctrine of merger.
Jennings also filed an “Alternative Motion for Summary Judgment on Breach of Contract” in which he argued the contract claims, like the negbgent misrepresentation claims, were barred by Section 5 of the buyers’ acknowledgment.
Additionally, Jennings filed an “Alternative Motion for Summary Judgment on the Issue of Standing,” arguing the Stechschultes lacked standing and/or were not the real parties in interest.
At the close of the December 31 hearing on the pending motions, the district court initially granted Jennings’ motion for summary judgment on the plaintiffs’ negligent misrepresentation claim and also granted his alternative motion for summary judgment on plaintiffs’ breach of contract claim. The court agreed with Jennings that under Brennan and McLellan, the Stechschultes waived their right to make such claims when they signed the buyers’ acknowledgment in the disclosure statement.
However, the district judge initially denied Jennings’ motion for summary judgment on the fraud claim, finding:
“So, as I understand it then, we are going to have a trial on the fraud claims and I find that there is more than one conclusion can be drawn from these facts in this case, that’s whether or not the seller disclosed everything they knew about the material defects in the house. And whether or not those could have been discovered by reasonable inspection, I am going to find that without everything disclosed, there cannot be a reasonable inspection, and, so, the information that the inspector may have had that the plaintiffs had looking at the case would fall right into the same argument in Brennan, is that you can’t make a reasonable inspection without full disclosure of all knowledge with regard to the history of that — of the other inspections in the house, the problems in that house, the observations that the seller had with regard to leales and whatever remedies were used to try to fix the leaks.”
After the court’s oral ruling, Jennings’ counsel orally requested clarification as to whether the court’s ruling encompassed all of the plaintiffs’ potential fraud claims, particularly the fraud by silence claim. The court pointed out that a pretrial order had not been prepared in the case, which presented a “problem” in terms of defining the specific fraud claims. Stechschultes’ counsel then asserted that the plaintiffs were claiming three types of fraud: fraudulent inducement, fraud by silence, and fraudulent concealment.
Ultimately, the district court permitted the parties to file cross-motions for summary judgment on the Stechschultes’ fraud by silence claim. After a hearing on March 26, 2008, the court granted Jennings’ motion for summary judgment on the fraud by silence claim, which the court characterized as the “sole remaining claim” in this case.
In a journal entry of summary judgment dated May 19, 2008, the court reiterated its various rulings on Jennings’ summary judgment motions, including that it had recently granted summary judgment on the Stechschultes’ remaining claim of fraud by silence. Further, the court reiterated its earlier grant of summary judgment on the Stechschultes’ claims of negligent misrepresentation and breach of contract based on the buyer acknowledgment and its denial of Jennings’ motion for summary judgment on standing. Finally, the court denied Jennings’ summary judgment motions on “the other grounds moved in defendants’ written motion briefing.”
The Stechschultes appeal from the district court’s “Journal Entry of Summary Judgment” filed April 23,2008, as well as the “Journal Entry of Summary Judgment” filed May 19, 2008.
Golson’s and PHB Realty’s Motions for Summary judgment
Golson and PHB Realty moved for summary judgment on several grounds, including the Stechschultes’ waiver of reliance in the acknowledgment. In an order dated December 4,2007, the district court agreed that by signing the acknowledgment, the Stechschultes waived reliance on any misrepresentations made by Golson. Therefore, the court granted summary judgment in favor of Golson and PHB Realty on the Stechschultes’ negligent misrepresentation and KCPA claims. The Stechschultes appeal from the December 4, 2007, order of the district court granting Golson’s and PHB Realty’s motion for summary judgment.
Discussion
In this appeal, the Stechschultes challenge the district court’s grant of summary judgment in favor of Jennings on the claims of negligent misrepresentation and breach of contract, claiming the district court misinterpreted Section 5 of the acknowledgment as a waiver of their reliance on representations made in the disclosure statement. They contend their waiver of reliance on “important representations concerning the condition or value of the property” applied only to representations not set forth in writing and signed by the seller or the agent. Thus, they contend they did not waive rebanee on representations set forth in the written disclosure statement and signed by Jennings. The Stechschultes assert this same rationale in support of their challenge to district court’s grant of summary judgment in favor of Golson and PHB Realty on the negligent misrepresentation and KCPA claims.
The Stechschultes also appeal the district court’s grant of summary judgment on their fraud by silence claim, arguing the district court erred in treating their fraud count strictly as a fraud by silence claim. Alternatively, they argue the district court erred in finding as a matter of law that summary judgment was appropriate on the fraud by silence claim. Finally, the Stechschultes appeal the district court’s denial of their motion to amend to add a punitive damages claim against Jennings.
In his response brief, Jennings argues the district court properly interpreted Section 5 of the acknowledgment as a waiver of any representations in the disclosure statement and that summary judgment in his favor was proper on the claims of negligent misrepresentation and breach of contract. Jennings also asserts the district court properly granted summary judgment on the fraud by silence claim as a matter of law.
Alternatively, Jennings urges this court to uphold summary judgment on the negligent misrepresentation and breach of contract claims based on the lack of any material issues of controverted fact with respect to those claims. However, Jennings did not seek summary judgment on the negligent misrepresentation and contract claims on this ground. Thus, we are precluded from considering this issue on appeal. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007) (issues not raised before the trial court cannot be raised on appeal).
Jennings also alternatively contends summary judgment was proper on all of the claims against him because the Stechschultes lacked standing to assert any claims. Further, Jennings contends summary judgment was proper on the negligent misrepresentation claim based upon the economic loss doctrine.
However, these alternative arguments also are not properly before us. The district court denied Jennings’ alternative motions for summary judgment on the issues of standing and the economic loss doctrine, and Jennings failed to cross-appeal from those adverse rulings as required by K.S.A. 60-2103(h). Accordingly, we will not address Jennings’ alternative arguments. See Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008) (cross-appeal must be perfected to obtain appellate review of an adverse decision).
Golson and PHB Realty filed a joint response brief, arguing the district court properly granted summary judgment in their favor because the Stechschultes’ signature on die buyers’ acknowledgment precluded their reliance on any alleged misrepresentations made by Golson and PHB Realty and Golson lacked “actual knowledge” of any adverse material facts. They also argue several additional bases upon which summary judgment was appropriate on the negligent misrepresentation and KCPA claims. These additional assertions, while raised by Golson and PHB Realty in their motion for summary judgment, were not addressed by the district court in its order granting summary judgment to Golson and PHB Realty.
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF JENNINGS BASED UPON THE BUYERS’ ACKNOWLEDGMENT.
With the exception of their challenge to summary judgment on the fraud by silence claim, the Stechschultes’ primary challenge is the same with respect to the summary judgment granted to all parties on all claims. Namely, the Stechschultes contend the district court misinterpreted Section 5 of the buyers’ acknowledgment to preclude their claims.
However, because the facts of this case require a different analysis depending upon the party against whom the claim is asserted as well as the nature of the claim, we have considered the claims separately below.
A. Standards of Review
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, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence, to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
“ ‘An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.’ [Citations omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
When a plaintiff lacks evidence to establish an essential element of his or her claim, “ ‘there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.’ ” Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 [1986]). Accordingly, a defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of a plaintiff s case. Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 167, 975 P.2d 1218 (1999).
To the extent resolution of this issue requires interpretation of provisions of the disclosure and acknowledgment or the legal effect of those provisions, our review is de novo. See City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007); Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006).
“The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. [Citation omitted.]” Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
However, “ ‘[a]n interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers.’ [Citation omitted.]” City of Arkansas City, 284 Kan. at 832-33. “ ‘The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided.’ [Citations omitted.]” Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 853, 185 P.3d 946, rev. denied 287 Kan. 769 (2008).
B. The Effect of the Buyers’ Acknowledgment
The Stechschultes identify the “core issue” in this appeal as “whether the language of the Buyer’s Acknowledgment can, as a matter of law, serve to release the Defendants . . . from liability for fraud, breach of contract, misrepresentation and/or violation of the Kansas Consumer Protection Act.”
This core issue has been analyzed by this court in several decisions. See, e.g., Katzenmeier v. Oppenlander, 39 Kan. App. 2d 259, 178 P.3d 66, rev. denied 286 Kan. 1178 (2008); Brennan v. Kunzle, 37 Kan. App. 2d 365, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007); McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006).
In Katzenmeier, Brennan, and McLellan panels of this court interpreted a buyer’s acknowledgment containing language identical to the acknowledgment signed by the Stechschultes in this case to require die buyer to create a separate writing, indicating which of the seller’s representations upon which the buyer has relied or waived reliance on any representations made by the seller or agent/ broker. Katzenmeier, 39 Kan. App. 2d at 260-68; Brennan, 37 Kan. App. 2d at 387-91; McLellan, 36 Kan. App. 2d at 7-13. Because the buyers in each of those cases had signed the acknowledgment but had not created a separate writing identifying the particular representations relied upon, the panel in each case found the buyers could not establish an essential element of their claims, i.e., justifiable reliance.
Recently, a majority of a panel of this court disagreed with the prior panels’ interpretation of Section (paragraph) 5 of the buyer’s acknowledgment. See Osterhaus v. Toth, 39 Kan. App. 2d 999, 1001-16, 187 P.3d 126, rev. granted 287 Kan. 766 (2008).
The Osterhaus majority recognized the similarities between the Osterhaus’ case and Katzenmeier, Brennan, and McLellan including (1) identical language in the buyer’s acknowledgment form; (2) the fact that all buyers had home inspections performed before closing; and (3) the fact that all buyers asserted similar claims after discovering post-closing water infiltration issues. Osterhaus, 39 Kan. App. 2d at 1007.
In concluding the buyers’ claims were not precluded by the acknowledgment, the Osterhaus majority reasoned:
“The decisions of this court in McLellan, Katzenmeier, and Brennan held that the unambiguous language of paragraph 5 directed the buyer to indicate which representations the buyer was relying on, or to agree to rely on none of them. We disagree with the interpretation by the other panels of this court that this language is unambiguous. The disclosure statement is a writing that is signed by the seller, and there is no requirement for a separate, second document signed by the seller. If there are material misrepresentations by a seller of real property in its disclosure statement, without consideration of all the facts surrounding the sale, the buyer’s signature alone does not constitute a waiver of seller’s material misrepresentations.” Osterhaus, 39 Kan. App. 2d at 1008-09.
We agree with the Osterhaus majority’s interpretation of the buyers’ acknowledgment. The unambiguous language of the acknowledgment indicates that it is a representation by the buyer that “neither the SELLER nor the BROKER” have made any “important representations concerning the condition or value of the property” on which the buyer relies, “except as may be fully set forth in writing and signed by them.’’(Emphasis added.) Unquestionably, the context of the term “them” refers to the seller and the agent. See Osterhaus, 39 Kan. App. 2d at 1014-15 (Leben, J., dissenting); Katzenmeier, 39 Kan. App. 2d at 269-70 (Leben, J., concurring).
The seller’s representations in the disclosure constitute a writing signed by the seller; thus, the acknowledgment clearly does not waive reliance on those representations. Rather, the buyers’ acknowledgment precludes reliance on any other important representations made by either the seller or the agent, unless those representations have been reduced to writing and signed by the seller and/or agent.
We note that our interpretation of the acknowledgment here is consistent with our Supreme Court’s interpretation of a similar acknowledgment in Alires v. McGehee, 277 Kan. 398,85 P.3d 1191 (2004). There, the buyers of the residence acknowledged: “ T state that no important representations concerning the condition of the property are being relied upon by me except as disclosed above or as fully set forth as follows ....’” 277 Kan. at 402. In that case, some basement leakage had been disclosed by the sellers in the disclosure, but numerous other water infiltration issues were not disclosed.
The Alires court, relying upon Judge Henry Green’s dissent to the panel’s majority opinion in this court, reasoned: *
“The dissent aptly noted this write-in section was for representations not mentioned in the ‘above’ section of tire contract, the section where the McGehees disclosed the basement leakage caused by a broken pipe but not the other incidences of leakage
“The seller’s disclosure form was integrated into the contract, and one of the alleged fraudulent representations was contained within the disclosure form itself. There was no need for the Alireses to torite in the representation on which they were relying because Mrs. McGehee’s representation that the basement had leaked only when broken pipes needed repairing was already listed.” (Emphasis added.) 277 Kan. at 404.
This same analysis applies here. Jennings represented in the disclosure that “several windows leaked after construction” and “full warranty repairs were performed and correction is complete.” (Emphasis added.) However, discovery revealed that the home warranty expired 1 year after construction was complete, the more significant repairs were not warranty repairs, and those repairs were made approximately 4 years after construction was completed. Further, Jennings represented in another section of the disclosure that there had been “No” water leakage or dampness in the home and “No” repairs or other attempts to control water leakage problems. While Jennings contends he believed he sufficiently disclosed the water intrusion by his subsequent disclosure that “several windows leaked after construction” and that “full warranty repairs” were performed, Jennings’ intent in making these representations is a question of fact to be considered in light of all of the information contained in the disclosure and other facts surrounding the transaction.
C. The Limited Issue Raised in Jennings’ Summary Judgment Motion
At this juncture, it is important to consider the procedural stature of this case at the time summary judgment was granted. The district court was asked to decide whether summary judgment was appropriate on the negligent misrepresentation and breach of contract claims only as to whether the buyers’ acknowledgment precluded reliance on these claims as a matter of law. The district court was not asked to determine whether summary judgment was proper on these claims based upon the material, uncontroverted facts pertaining to the representations or the buyers’ rebanee on the representations.
In this regard, this case varies significantly from Alires. That case initially came to our court on an appeal by the sellers following a bench trial which resulted in a verdict for the buyers on their claims of fraudulent misrepresentation. This court reversed the judgment, and the buyers were granted review in the Supreme Court. Thus, when our Supreme Court ultimately considered the facts of the case, it did so under a standard of review which required it to consider whether the district court’s findings of fact were supported by substantial competent evidence and were sufficient to support the district court’s conclusions of law. 277 Kan. at 403; see also Osterhaus, 39 Kan. App. 2d at 1006-10, 1013-14 (having found the acknowledgment did not bar the buyer’s claims, this court proceeded to consider and find material facts precluded summary judgment, including whether the sellers’ misrepresentations were discoverable through a reasonable inspection and whether the buyer reasonably relied upon the representations).
In Alires, after the court determined the disclosure did not preclude the buyers’ reliance on the misrepresentations contained in the disclosure, it then proceeded to consider whether the buyers reasonably relied upon the representations in light of other circumstances surrounding the transaction. In particular, the court considered language in the disclosure which provided that if inspections were not performed, the buyer was bound by whatever information would have been apparent had an inspection been performed. See Alires, 277 Kan. 398, Syl. ¶ 5. Ultimately, the court concluded:
“Under the facts of this case, the buyer of real estate could not reasonably rely upon representations of the seller when the truth or falsity of the representations would have been revealed by an inspection of the subject property and the misrepresentations were made prior to or as part of the contract which the buyer contracted for the right to inspect, agreed that the statements of the sellers were not warranties and should not replace the right of inspection, declined inspection, and waived any claims arising from defects which would have been revealed by an inspection.” 277 Kan. at 411-12.
Here, while we have found the Stechschultes’ negligent misrepresentation and breach of contract claims are not precluded by the buyers’ acknowledgment, we need not consider further factual issues because they were not asserted by Jennings as a basis for summary judgment in the district court. Thus, we conclude the district court erred in granting Jennings’ summary judgment on the Stechschultes’ claims of negligent misrepresentation and breach of contract.
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF JENNINGS ON THE STECHSCHULTES’ FRAUD BY SILENCE CLAIM.
As discussed, at the hearing on Jennings’ motion for summary judgment, the district court announced it intended to find that genuine issues of material fact precluded Jennings’ motion for summary judgment on Count I, which the Stechschultes identified sim ply as a fraud claim. However, upon further argument of the parties, the court determined that Count I arguably asserted three fraud claims: fraud by silence, fraud by concealment, and fraudulent inducement. Thus, the court neither granted nor denied Jennings’ motion with respect to the fraud claim.
Instead, the court and the parties discussed the need for a pretrial order to further define the fraud claims and the possibility of subsequent briefing on the fraud by silence claim. The record contains a transcript of the subsequent pretrial conference, and a proposed pretrial order. At that conference the district court again indicated that die fraud claim appeared to include elements of both affirmative fraud and fraud by silence, and the proposed pretrial order indicates the same.
However, the record does not contain a final pretrial order, and it does not appear that one was ever entered. Further, although the record contains no indication of such a ruling, the parties indicate in briefing that the district court elected at some point to treat the fraud claim solely as a fraud by silence claim and to permit the parties to file cross-motions for summary judgment on that claim. The court ultimately granted Jennings’ motion for summary judgment on the fraud by silence claim, characterizing it as the “sole remaining claim.”
While the district court’s rationale for treating the fraud claim solely as a fraud by silence claim is unclear, it is apparent diat the district court patterned its analysis of the fraud by silence claim in this case on the treatment of a similar claim in Brennan, 37 Kan. App. 2d 365. In Brennan, a panel of this court affirmed summary judgment on the buyers’ claims of fraudulent and negligent misrepresentation based on its determination that the claims were precluded by the buyers’ waiver of reliance in the acknowledgment. 37 Kan. App. 2d at 387-90. However, the court took up the issue of whether summary judgment was appropriate on the fraud by silence claim, explaining that although die district court had granted summary judgment only on the fraudulent misrepresentation claim, it was “apparent” to the panel that Count I of the buyers’ counterclaim included two causes of action: fraud by silence and negligent misrepresentation. 37 Kan. App. 2d at 377. The court further explained that the elements of fraud by silence were different than the elements of fraudulent misrepresentation. 37 Kan. App. 2d at 377-79.
The fraud by silence claim in Brennan was based upon the sellers’ failure to disclose to the buyers a written engineer’s report that would have alerted the buyers to significant concerns regarding construction of the home and the need for additional destructive testing to determine the source of leaks. Presumably, the disclosure of the report in Brennan was not required by the disclosure statement. Otherwise, it is unclear how the panel could have considered the fraud by silence claim independently of the other fraudulent misrepresentation claims, which it had determined were barred by the acknowledgment.
This case is distinguishable from Brennan in two important respects. First, the Stechschultes’ petition clearly alleged affirmative fraud claims. The petition contains multiple paragraphs of factual allegations alleging Jennings made material misrepresentations or omissions in the disclosure statement which induced the Stechschultes to purchase the home.
Further, unlike in Brennan, the factual basis for the fraud by silence claim here was based on the failure to disclose information which would have been available to the buyers had misrepresentations not been made in the disclosure. Specifically, the fraud by silence claim was based on Jennings’ failure to disclose that Whorton had recommended destructive testing in August 2002 in order to determine the source of water leaks. Clearly, had Jennings answered “Yes” instead of “No” to the questions in Section 7 regarding whether he was aware of any water leakage or dampness in the house, he would have been required to explain in detail the nature of the leakage or dampness, as well as to disclose the repairs made. Further, Jennings would have been required to identify the location, extent, and date of any repairs, the “name of the person who did the repair or control effort,” and to “attach any inspection reports, estimates, or receipts.” This disclosure would have required Jennings to disclose the extent, date, and nature of the repairs performed by Excel. This information, in turn, would have provided the buyers the information needed to obtain further in formation from Excel representatives regarding the testing done and the nature of their recommendations.
Further, as the Stechschultes point out, the disclosure statement in this case contained a representation by Jennings that he was disclosing “all material defects, conditions and facts of which seller is aware which may materially affect the value of the Property.” Thus, if Jennings was aware of information regarding material defects, conditions, or facts which might materially affect the value of the home and he failed to disclose any or all of that information, the disclosure statement contained affirmative misrepresentations.
Because the Stechschultes’ petition contained numerous allegations of affirmative fraud with respect to Jennings’ misrepresentations in the disclosure statement, the district court erred in treating Stechschultes’ fraud claim solely as a claim of fraud by silence. Thus, we find the district court erred in granting summary judgment on the Stechschultes’ fraud claim.
III. THE DISTRICT COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF GOL-SON AND PHB REALTY.
The Stechschultes filed two claims against Golson and PHB Realty: negligent misrepresentations and violations of the KCPA. The district court granted summary judgment on both claims, finding that by their signature on the acknowledgment form, the Stechschultes waived reliance on any misrepresentations made by Golson in the disclosure statement which were not reduced to writing and signed by the seller and the agent.
A. The Negligent Misrepresentation Claims
On appeal, the Stechschultes generally argue that the buyers’ acknowledgment did not bar their claims of negligent misrepresentation. However, they fail to distinguish the effect of the acknowledgment on their claims of negligent misrepresentation against Jennings as opposed to their claims against Golson and PHB Realty.
As we have interpreted the acknowledgment, the seller’s representations in the disclosure constitute a writing signed by the seller and, thus, the buyers’ acknowledgment clearly does not waive reliance on any misrepresentations by the seller in the disclosure. Rather, the acknowledgment precludes reliance on any other important representations made by either the seller or the agent, unless those representations have been reduced to writing and signed by the seller and the agent.
Thus, because the disclosure was signed by Jennings, the acknowledgment did not preclude reliance upon representations made by Jennings in the disclosure. However, it is undisputed that the seller’s disclosure was not signed by Golson, and therefore the acknowledgment did preclude claims against Golson to the extent that they were based upon representations made in the disclosure. Further, because there were no other important representations identified as having been made by Golson which were reduced to writing and signed by the seller and the agent, the Stechschultes’ reliance upon any misrepresentations against Golson and PHB Realty are precluded by the acknowledgment.
Our analysis here is supported by Hamtil v. J.C. Nichols Real Estate, 22 Kan. App. 2d 809, 923 P.2d 513 (1996). There, the buyers of a home brought negligence and negligent misrepresentation claims against the sellers’ agents and their real estate company alleging the agents made “false statements about the condition of the house.” 22 Kan. App. 2d at 811. Judge Gemon, writing for the panel, found the buyers waived any reliance upon misrepresentations allegedly made by the agents based upon their acknowledgment in the disclosure statement, which provided in relevant part: “I state that no important representations concerning the condition of the property are being relied upon by me except as disclosed above or as fully set forth as follows:--” 22 Kan. App. 2d at 811, 814.
The Hamtil court reasoned that the acknowledgment “contained clear language allowing the [buyers] to list any representations upon which they were relying and blank spaces for the representations to be listed.” 22 Kan. App. 2d at 813-14. However, the buyers failed to specify any such representations. As a result, the panel reversed the district court’s order denying summary judg ment to the agents and their real estate company. 22 Kan. App. 2d at 814.
Similarly, in this case, the buyers specifically represented that there were “no important representations concerning the condition or value of the property made by SELLER or BROKER” on which they were relying “except as may be fully set forth in writing and signed by them.” And although the buyers now assert negligent misrepresentation claims against Golson and PHB Realty, they fail to identify any representations made by Golson which were set forth in writing and signed by Golson.
Finally, we note that Golson also attempts to rely upon the panel’s statement in Hamtil that real estate agents or brokers may “protect themselves from negligent misrepresentation actions by disclaiming knowledge of the property’s defects and having a buyer or seller acknowledge such disclaimer.” 22 Kan. App. 2d at 814. However, this statement appears to be dicta, in that the facts of Hamtil do not suggest that the agents disclaimed knowledge of any defects in the property. Instead, the buyers’ acknowledgment contained a provision indicating the buyers purchased the property “without warranties or guarantees of any kind by the seller or any realtor concerning the condition or value of the property.” 22 Kan. App. 2d at 811. Further, the buyers acknowledged that “neither seller nor any realtor involved in this transaction is an expert at detecting or repairing physical defects in the property.” 22 Kan. App. 2d at 811.
While these statements verify that the agents in Hamtil did not guaranty or warranty the property and that they were not “experts” in detecting or repairing physical defects, they do not constitute a disclaimer by the agent, which presumably would require a separate writing by the agent which was signed by either the buyer or the seller, as anticipated in Hamtil. Rather, it appears the basis for the panel’s decision in Hamtil was solely the buyers’ acknowledgment that they were not relying upon any representations made by the agents. 22 Kan. App. 2d at 814.
Similarly, in this case, the record does not reveal that Golson disclaimed any knowledge of the property’s defects or that the buyers agreed to such a disclaimer. Instead, Golson must rely upon the buyers’ acknowledgment that she made “no important representations concerning the condition or value of the property” on which the buyers were relying except those fully set forth in writing and signed by Golson.
Because the Stechschultes identified no representations made by Golson which were set forth in writing and signed by her, they are precluded from establishing that they relied upon any negligent misrepresentations made by Golson. See Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604-05, 876 P.2d 609 (1994) (identifying elements of negligent misrepresentation claim in residential sales transaction, including justifiable reliance upon misrepresentation). Thus, the district court did not err in granting summary judgment to Golson and PHB Realty on these claims of negligent misrepresentation.
B. The KCPA Violations
The Stechschultes also alleged that Golson and PHB Realty violated the KCPA by engaging in deceptive acts and practices in connection with the sale of the home. Significantly, although the district court granted summary judgment on both the negligent misrepresentation and KCPA claims based upon the Stechschultes’ waiver of reliance, on appeal the Stechschultes do not distinguish their argument regarding the effect of the acknowledgment with respect to each of these claims. Instead, on appeal, the Stechschultes maintain that the acknowledgment did not preclude their claims against Golson and PHB Realty for the same reason it did not preclude their claims against Jennings.
However, we have determined that although the language of the acknowledgment does not preclude the Stechschultes from relying upon Jennings’ written representations in the disclosure, it does preclude their rebanee on any alleged representations made by Golson, since any such representations were not in writing and signed by Golson. Thus, because we have been presented with no basis to reverse summary judgment in favor of Golson and PHB Realty on the KCPA claims based upon the waiver, we affirm the grant of summary judgment on these claims as well.
Moreover, here the Stechschultes only generally alleged that Golson and PHB Realty violated provisions of the KCPA, K.S.A. 50-623 et seq., by “engaging in deceptive acts and practices in connection with the sale of the Home, all as more fully detailed herein.” It is unclear from the petition which of Golson’s actions constituted deceptive acts and practices.
Even if we assume that the Stechschultes’ KCPA claims were based on K.S.A. 50-626(b)(3), to avoid summary judgment they were required to present prima facie evidence that: (1) Golson willfully failed to state a material fact; (2) or Golson willfully concealed, suppressed, or omitted a material fact; and (3) the Stechschultes were “aggrieved” by the violation. See K.S.A. 50-626(b)(3); K.S.A. 50-634(a).
Significantly, the Stechschultes have not asserted a claim of fraudulent misrepresentation against Golson, and we find no support in the record for any assertion that Golson acted willfully or wantonly in failing to state a material fact or in concealing, suppressing, or omitting a material fact. Under these circumstances, we find the district court did not err in granting summaiy judgment in favor of Golson and PHB Realty on the Stechschultes’ claims of negligent misrepresentation and violations of the KCPA.
IV. THE DISTRICT COURT DID NOT ERR IN DENYING THE STECHSCHULTES’ MOTION TO AMEND THEIR PETITION TO ADD PUNITIVE DAMAGES CLAIMS.
Finally, the Stechschultes argue the district court erred by denying their motion to amend their petition to add punitive damages claims against Jennings and Golson. Generally, the Stechschultes suggest that claims for punitive damages were appropriate because they “provided substantial evidence of independent torts, i.e., fraudulent procurement, affirmative fraud, fraud by silence and concealment, negligent misrepresentations and violation of the Kansas Consumer Protection Act.”
Jennings contends the motion was properly denied because the Stechschultes’ claims arose out of contract and, alternatively, be cause there was no evidence that he acted in a willful, wanton, or malicious manner.
In light of our ruling affirming summary judgment in favor of Golson, the Stechschultes’ appeal of the denial of their motion to amend with respect to Golson is moot.
With respect to Jennings, the Stechschultes’ motion to amend to add a claim of punitive damages initially was denied by the first district judge assigned to the case. The Stechschultes later renewed their motion and the newly assigned district judge denied the motion, citing a lack of evidence of willful and wanton conduct. Finally, prior to the district court’s ruling on the fraud by silence claim, the Stechschultes renewed their motion to add a claim of punitive damages against Jennings. The district court affirmed its previous denial of the motion but indicated the court might reconsider the motion if the fraud claim was tried, depending upon “how the evidence comes out at trial.”
Pursuant to K.S.A. 60-3703, the Stechschultes were not permitted to include punitive damages claims in their petition. Instead, they were required to seek to amend their pleadings to add those claims. The district court was then permitted to allow the filing of an amended pleading claiming punitive damages only if the plaintiffs established a probability that they would prevail on their claims pursuant to K.S.A. 60-209 on the basis of the supporting and opposing affidavits presented. Finally, although K.S.A. 60-3703 requires that the motion seeking to add a punitive damages claim must be filed on or before the date of the final pretrial conference, it does not prohibit a plaintiff from renewing the motion if it has been previously timely filed.
Further, in determining whether a probability exists that a plaintiff will prevail on a punitive damages claim at trial, the district court must take into account the “clear and convincing” standard which the plaintiff eventually will be required to prove. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 801-02, 897 P.2d 123 (1995). Specifically, the trial court must consider the evidence presented in the opposing affidavits as well as other evidence in a light most favorable to the party moving for the amendment, and if the evidence is of sufficient caliber and quality to allow a rational fact- finder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice, the trial court shall allow the amendment. 257 Kan. at 802.
We review the district court’s decision to deny plaintiffs’ motion to amend to add punitive damages claims for an abuse of discretion. Lindsey v. Miami County National Bank, 267 Kan. 685, 689, 984 P.2d 719 (1999); Fusaro, 257 Kan. at 804. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. In other words, judicial discretion is abused when no reasonable person would take the view adopted by the trial court. 257 Kan. at 804.
Here, on the final occasion the district court denied the Stechschultes’ motion to add a claim for punitive damages, the only remaining claim was a claim for fraud by silence. Having reviewed the evidence, we cannot say that no reasonable person would have taken the view adopted by the district court here, and we hold the district court did not abuse its discretion in denying the Stechschultes’ motion to amend to add a claim of punitive damages against Jennings. However, in light of our ruling today reversing the district court’s grant of summary judgment against Jennings on the Stechschultes’ fraud claim, the Stechschultes will have an opportunity to renew their motion for leave to add a punitive damages claim, should the fraud claim eventually proceed to trial.
In summary, we reverse and remand the district court’s grant of summaiy judgment to Jennings on the Stechschultes’ claims of fraud, negligent misrepresentation, and breach of contract, but we affirm the grant of summaiy judgment to Golson and PHB Realty on all claims against them. Finally, we affirm the district court’s denial of the Stechschultes’ motion to amend to add a claim of punitive damages against Jennings, while we find the Stechschultes’ appeal of the denial of their motion to amend to add a punitive damages claim against Golson is moot.
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Knudson, J.:
In this direct appeal after a jury trial, Eric Whetstone contends his convictions for two counts of criminal threat are multiplicitous. He further contends the district court committed prejudicial error in fading to give the jury a limiting instruction regarding other crimes evidence presented at trial.
We conclude: (1) Whetstone’s convictions for criminal threat are multiplicitous; and (2) the K.S.A. 60-455 issue has not been preserved for appeal. Accordingly, we affirm in part and reverse one count of criminal threat, and the sentence for that conviction is vacated. We remand for resentencing on the two remaining convictions.
The Multiplicity Issue
The parties agree that for purposes of analysis, Whetstone made one threat that was communicated to two individuals; specifically, he communicated the threat to “bum down the house and kill [them] all.” As a result, he was charged with and convicted of two counts of criminal threat for a threat to “[c]ommit violence communicated with intent to terrorize another,” as proscribed in K.S.A. 21-3419(a)(l). The issue on appeal is whether Whetstone’s convictions are multiplicitous.
Multiplicity is the charging of a single offense in several counts of the complaint. State v. Gomez, 36 Kan. App. 2d 664, Syl. ¶ 1, 143 P.3d 92 (2006). Multiplicity creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Schoonover, 281 Kan. 453, Syl. ¶ 10, 133 P.3d 48 (2006). The issue of whether convictions are multiplicitous is a question of law subject to unlimited review on appeal. Schoonover, 281 Kan. at 462.
K.S.A. 21-3419(a)(l) defines a criminal threat as any threat to:
“Commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation.” (Emphasis added.)
In Schoonover, the Kansas Supreme Court developed a two-component analytical framework for the resolution of multiplicity issues: “(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” 281 Kan. at 496. In the present appeal the parties agree that the two charges for criminal threat arose from one utterance; consequently, the only issue is whether K.S.A. 21-3419(a)(l) allows for multiple convictions for the same threat.
When inquiring into Schoonover s second component, whether the statutory definition allows for multiple violations of a single statute, the Kansas Supreme Court instructs this court to apply die “unit of prosecution test.” 281 Kan. at 497. “[T]he test is: How has the legislature defined the scope of conduct which will comprise one violation of the statute?” 281 Kan. at 497. This defined scope of prohibited conduct determines the allowable unit of prosecution for which there can only be one conviction for a single act. 281 Kan. at 497-98. “The determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Rather, the key is the nature of the conduct proscribed.” 281 Kan. at 472. The key to determining the unit of prosecution is legislative intent. 281 Kan. at 471.
In determining legislative intent under K.S.A. 21-3419(a)(l), we would note paragraph (a)(1) has discrete subparts to be considered depending on whether proscribed conduct is directed toward a person or an occupied structure. It is apparent from a plain reading of tire statute that the number of persons in an occupied building, place of assembly, or facility of transportation to be evacuated is not of elemental value. Consequently, we must ask, under the first subpart of paragraph (a)(1), did the legislature intend multiple prosecutions for a single criminal threat directed to more than one person?
In State v. Wright, 259 Kan. 117, 911 P.2d 166 (1996), the court held K.S.A. 1994 Supp. 21-3419 did not require the State to prove the defendant knew his or her threat would be communicated to the victim. The court held the State need only present evidence of an intent to terrorize or an act in reckless disregard of causing such terror. 259 Kan. at 122. Thus it is not required under 21-3419 that the threat be communicated to the victim; it just has to be communicated to someone. Wright supports our conclusion that the unit of prosecution is the malting of a threat to commit violence communicated to another. See State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007).
K.S.A. 21-3110 states:
“The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.
“(2) ‘Another means a person or persons as defined in this code other than the person whose act is claimed to be criminal.” (Emphasis added.)
There is nothing in the context of K.S.A. 21-3419(a)(l) that would clearly require a different meaning for “another” within the phrase “intent to terrorize another” than as provided in K.S.A. 21-3110. Consequently, we hold “another” in the criminal threat statute to mean a person or persons. Our interpretation renders the first subpart of K.S.A. 21-3419(a)(l) consistent with the remaining subparts of paragraph (a)(1); that is to say, the number of persons to whom the threat is communicated does not determine the unit of prosecution. Accordingly, a plain reading of the statute requires us to hold that Whetstone’s convictions for two counts of criminal threat are multiplicitous.
Moreover, under both federal and state law, the unit of prosecution is evaluated with “a rule of lenity.” Gomez, 36 Kan. App. 2d at 670. The rule of lenity derives from the United States Supreme Court’s pronouncement that “[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Schoonover, 281 Kan. at 472 (quoting Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 75 S. Ct. 620 [1955]). In application, when the legislature fails to provide a unit of prosecution that “ ‘clearly and without ambiguity’ ” allows two convictions for the same act, only one conviction will be allowed. 281 Kan. at 472. Consequently, as there is an ambiguity as to legislative intent, we reach the same conclusion: Whetstone’s convictions are multiplicitous.
Failure to Give a K S.A. 60-455 Instruction
Whetstone also challenges the trial court’s failure to give a limiting instruction for evidence he contends was only admissible un der K.S.A. 60-455. The record on appeal discloses Whetstone did not file a motion in limine or object to the evidence when introduced at trial. Our Supreme Court has held that when a defendant fails to object to admission of 60-455 evidence, he or she fails to preserve the issue for appeal. State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Accordingly, Whetstone’s failure to provide a timely and specific objection to the challenged évidence precludes appellate review of this issue.
Conclusion
We affirm in part, reverse in part, and remand with directions. | [
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McAnany, J.:
Defendant, Trans World Transportation Services, L.L.C. (Trans World), appeals from the district court’s order granting summaiy judgment to the Unified Government of Wyandotte County/Kansas City, Kansas (WyCo/KCK), on WyCo/KCK’s claim for reformation of a deed on account of mutual mistake.
WyCo/KCK owned an 8.95-acre parcel of land at 400 Kindelberger Road which contained a 27,164-square-foot building in the northwest quadrant. In 1989, WyCo/KCK constructed a fire station occupying roughly 2.58 acres in the southwest quadrant of this 8.95-acre parcel. That fire station, which WyCo/KCK has operated since its construction, is located at 444 Kindelberger Road. The remaining 6.45-acre parcel was assigned a street address of 420 Kindelberger Road and a mailing address of 400 Kindelberger Road. Despite this change, the 8.95-acre parcel was never formally subdivided by deed or plat.
In December 1997, WyCo/KCK entered into a lease with Trans World which described the leased premises as: “One Building and Improved Grounds located at 420 Kindelberger Road, Kansas City, Kansas, consisting of a total of 280,962 square feet or 6.45 acres (+/-), with a 27,164 square feet building
The lease contained a survey showing the entire 8.95-acre parcel of land. It showed the two-stoiy concrete fire station building and the 2.58-acre portion of the parcel upon which it is located in the southwest comer of the property. WyCo/KCK continued to operate the fire station at 444 Kindelberger Road while Trans World operated its business on the remainder of the parcel leased to it. Since execution of the lease in 1997, Trans World has never occupied the fire station property, and it was not part of the leased premises.
In 2004, WyCo/KCK sued Trans World over a lease dispute. Trans World never asserted any right or interest in the fire station property during the litigation.
In September 2007, the parties agreed to settle the lawsuit. WyCo/KCK agreed to sell Trans World the property and improvements that were the subject of the lease between the parties and were located generally at 400 Kindelberger Road. The settlement agreement made no reference to the fire station or the 2.58 acres on which it stands. The resolution of the WyCo/KCK commissioners authorized issuance of a deed conveying the property at 400 Kindelberger Road (the mailing address of the leased tract) to Trans World.
When WyCo/KCK ordered a title insurance commitment it mistakenly referred to the entire tract, not just the leased premises. The error was not caught before the closing, and the deed to Trans World conveyed the entire premises, including the fire station property.
Shortly thereafter, WyCo/KCK discovered the erroneous legal description and notified Trans World. Trans World refused to acknowledge that the mistake was mutual, and, in classic display of chutzpah, demanded that WyCo/KCK either negotiate a lease of the fire station or tell its firefighters to pack their bags and move out within 30 days. As a result, WyCo/KCK brought this action seeking, among other things, reformation of the deed on account of mutual mistake. The district court granted summary judgment to WyCo/KCK and ordered the filing of a deed containing the correct legal description. Trans World objected to WyCo/KCK’s proposed deed, and the court setded the matter pursuant to Supreme Court Rule 170 (2009 Kan. Ct. R. Annot. 245).
Trans World now appeals the order of summary judgment as well as the order accepting WyCo/KCK’s form of corrected deed. We review the district court’s rulings de novo. In doing so, we apply the same summary judgment rules and standards applicable in the district court. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
“ ‘Mere speculation is insufficient to avoid summary judgment.’ ” Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, 290, 138 P.3d 388, rev. denied 282 Kan. 791 (2006). Issues of fact are not material unless they have legal controlling force as to the controlling issue. Disputed questions of fact that are immaterial to the issue do not preclude summary judgment. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Mutual Mistake — Elements
To prove mutual mistake concerning a written instrument, a party must show by clear and convincing evidence: (1) an antecedent agreement that the written instrument undertakes to evidence; (2) that a mistake occurred in drafting the instrument and not the antecedent agreement it undertakes to evidence; and (3) when there is no fraud or inequitable conduct by a party, that the mistake is mutual. See Sunfresh, Inc. v. Bean Acres, Inc., 180 F. Supp. 2d 1224, 1230 (D. Kan. 2001) (citing Northern Pac. Ry. Co. v. U.S., 277 F.2d 615 [10th Cir. 1960]); and Foster v. Allen, 159 Kan. 116, 152 P.2d 818 (1944).
A mutual mistake in an instrument may be shown even if the parties did not carefully examine it to ascertain whether it expressed their agreement, as was the case in Schlatter v. Ibarra, 218 Kan. 67, 75, 542 P.2d 710 (1975) (citing Home Owners’ Loan Corp. v. Oakson, 161 Kan. 755, 173 P.2d 257 [1946]; and Zuspann v. Roy, 102 Kan. 188, 170 P. 387 [1918]). Mere negligence in executing or accepting a written instrument is not a bar to reformation predicated upon mutual mistake. Schlatter, 218 Kan. at 75-76.
Antecedent Agreement
Here, the object of the deed was to effectuate the parties’ antecedent settlement agreement. The settlement agreement repeatedly refers to the property to be conveyed as the property that was leased to Trans World, 400 Kindelberger Road. It makes no reference to the fire station or the 2.58 acres on which it is located. WyCo/KCK’s commissioners authorized a deed conveying the property at 400 Kindelberger Road, the property leased to Trans World. It is clear that the antecedent agreement was to convey the leased property which did not include the fire station property.
Mistake In Deed
The mistake occurred in drafting the deed, not in drafting the settlement agreement. Here, the mistake arose when WyCo/KCK mistakenly requested a title commitment using the legal description of the entire tract. That legal description was later used in the preparation of the deed conveying the property to Trans World. The warranty deed delivered to Trans World and placed of record erroneously described more property than what was leased to Trans World and described in the settlement agreement.
Trans World suggests that the fact that the full parcel was never formally subdivided by deed or plat is evidence that the original lease and settlement agreement intended to convey the entire 8.95 acres to Trans World. We reject this notion. Trans World never claimed an interest in the 2.58-acre fire station premises before the deed was delivered to it. The 2.58 acres was used as a fire station during the entirety of the Trans World lease. The lease describes the leased premises as “One Building and Improved Grounds located at 420 Kindelberger Road ... consisting of a total of 280,962 square feet or 6.45 acres (+/-), with a 27,164 square feet building (former Cooper-Transport/GM Property).” The lease covered one budding, not two. The attached survey shows two buildings: the clearly identified fire station and the separate building Trans World occupied pursuant to the lease. The leased tract expressly consists of 6.45 acres, not the 8.95 acres that includes the fire station property. The fact that the full parcel was never formally subdivided by deed or plat is the reddest of herrings.
Mutuality
The mistake was not unilateral on the party of WyCo/KCK. There is clear and convincing evidence that both WyCo/KCK and Trans World believed the property being conveyed was the property that was the subject of the lease. The fire station property was not mentioned by either party during the course of the litigation that ended with execution of the settlement agreement, nor was it mentioned in the lease that the settlement agreement incorporated by reference. It is clear that the fire station property was included in the deed due to the mutual mistake of the parties, and WyCo/ KCK would be prejudiced absent reformation of the original deed.
Trans World claims there remains an issue regarding when and under what circumstances WyCo/KCK discovered the mistake. When and how WyCo/KCK discovered the mistake is entirely immaterial to the issue of whether there was a mutual mistake.
Trans World also argues that whether WyCo/KCK actually made a mistake remains unresolved because after the deed was issued and recorded, WyCo/KCK sent Trans World a tax statement and notices of appraised value identifying Trans World as the owner of the entire tract. The issuance of the tax statement and the notices of appraised value were consistent with the record of the ownership of the property at the time they were sent because of the erroneous legal description in the deed, the source document used by the treasurer and appraiser in issuing the tax statement and valuation notices. These documents show that the mistake had not yet been corrected, not that a mistake had not been made.
There is overwhelming evidence of the mutual mistake by the parties in dehvering and accepting a deed inconsistent with their clear intention expressed in their unambiguous settlement agreement. The district court did not err in sustaining WyCo/KCK’s motion for summary judgment based on mutual mistake.
Reformation
When a mutual mistake is made in describing property in a deed and the instrument does not convey the property intended, the deed may be reformed to conform to the parties’ original intentions. See Schlatter, 218 Kan. at 68-70. This is because when prop erty is included in a deed by mutual mistake and the parties never intended such property to be conveyed, the grantor is under no obligation to convey such property, and the grantee has no right to retain such property. Under these circumstances, the court will step in to correct the mistake, provided that the grantor would be prejudiced by a failure to reform the deed, and the grantor s position in equity is superior to that of the grantee. 218 Kan. at 70.
Trans World claims that a genuine issue of material fact remains as to the actual boundary of the property to be conveyed. It contends that the district court erred in approving the corrected deed because its legal description conveyed less property than the parties anticipated in the settlement agreement; i.e., the corrected deed did not convey all property outside the fire station fence.
Trans World leased from WyCo/KCK a tract that consisted of 6.45 acres, more or less. Attached to the lease was a survey showing the entire tract, including the area set aside for the fire station. The boundary of the fire station property was 325 feet on the east side and 345 feet on the north side. The reformed deed used the same survey and carved out of the entire tract the same 325 by 345 foot portion of the property used for the fire station. The remaining property conveyed to Trans World is the property originally contemplated by the parties; that is, the entire parcel iess the 325- by 345-foot portion set aside for the fire station. The district court did not err in settling the journal entry by approving the reformed deed.
Merger
Finally, Trans World contends that the district court erred by failing to find that the terms of the setdement agreement merged into the original deed, precluding judgment for WyCo/KCK as a matter of law.
The doctrine of merger provides that when a deed is delivered and accepted to fulfill a contract of conveyance, the contract is presumed to merge into the deed. However, whether that presumption applies depends on the intent of the parties. See Blair Construction, Inc. v. McBeth, 273 Kan. 679, 684-88, 44 P.3d 1244 (2002). Here, clear and convincing evidence establishes that the original deed was the product of a mutual mistake and that the parties intended for the conveyance to be of the property described in the lease and settlement agreement. Therefore, to merge the settlement agreement into the original deed would violate die intent of the parties, because the original deed conveyed different property than intended by the settlement agreement. See Panos v. Olsen and Associates Const. Inc., 123 P.3d 816, 820 (Utah 2005). To apply the merger doctrine would frustrate reformation and prevent the parties from realizing their true intentions. The district court did not err in refusing to apply the doctrine of merger.
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The opinion of the court was delivered by
West, J.:
The plaintiff, as administrator, sued to subject certain land to the lien of a judgment recovered by the decedent in 1907. A demurrer to the answer was overruled and the plaintiff appeals.
One of the judgment debtors was Willis Edson, who, while occupying the property as a homestead, joined in making the following will:
“The undersigned, Willis Edson and Mary Edson, his wife, separately and conjointly, do hereby make and declare this instrument to be their last will and testament, hereby revoking any and all wills by them made, that is to say:
“First. They and each of them do hereby devise and bequeath to the other surviving, all the estate of every kind and character and wherever situate, personal, real and mixed of which the one dying first .shall be seized, or have an estate, claim or interest therein, and to be owned and disposed of by the survivor as he or she may desire, and that upon the death of the survivor, all the estate of the survivor not disposed of by such survivor, is hereby devised and bequeathed to their children, Frank P. Edson and Jessie L. McCabe, in equal parts.”
Mary Edson survived her husband, remaining in possession of the homestead during her life. She left the defendants as her sole heirs who claim no homestead rights.
The plaintiff takes the position that the will devised a life estate to Mary Edson with full power of disposition, remainder to the defendants, and if this be the proper construction it is conceded that the property is subject to be taken in this action.
On the other hand it is urged that the latter clause of the will is utterly void for two reasons, first, because repugnant to the vesting of a fee in the survivor, and second, because it merely follows the statute which would itself work a devolution of the title to the defendants upon the death of the mother. Of course, if they took a vested remainder by virtue of the will, subject to -a life estate in the surviving mother, the statutory-casting of descent in case of the death of the mother, while-owning the fee, could not impair the will, hence the only point for determination is the construction of the instrument. It is pointed out that a will, after devising the fee, can not by a subsequent clause reduce such fee to a less,, estate.
“Thus, if a testator, after giving an estate in fee, proceeds to qualify the devise by a proviso or condition, which is of such a nature as to be incompatible with the absolute dominion and ownership, the condition is nugatory, and the estate absolute.” (2 Jarman on Wills, p. 16.)
McNutt v. McComb, 61 Kan. 25, 58 Pac. 965, is relied on. There the first item gave to the wife all the testator’s estate, real and personal and mixed. The second item directed that whatever might remain at the death of the wife should be divided between three children and a grandson. It was held that the second item was . void because inconsistent with the absolute interest vested by the first, following the rule already referred to, of which Chancellor Kent said that in all such cases the remainder over is void as a remainder because of the preceding fee, and void by way of executory devise because inconsistent with the absolute estate ,or power of disposition expressly given. (4 Kent’s Commentaries, p. 270.) Williams v. McKinney, 34 Kan. 514, 9 Pac. 265, was distinguished by the fact that the two provisions were in the same sentence and were not contained in separate items of the will, and also that the second item contained qualifying words. In Safe Deposit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082, the question was whether the words “to have and to hold during her natural life” applied to thé real or to the personal property. One of the rules employed was that when several independent devises are not grammatically connected or united for the expression of a common purpose they must be construed separately; another, that a devise in absolute terms of the fee will not be limited to a less estate by repugnant or inconsistent words of a succeeding clause unless it be the manifest intention gathered from the whole instrument that it should be done, following McNutt v. McComb, supra. In Coleman v. Coleman, 69 Kan. 39, 76 Pac. 439, the devise was to certain children with a subsequent provision that in case either should die without heirs or legal representatives the survivors should take his portion of the estate equally. ■ This was held to be not repugnant, and it was said:
“There was no attempt in any of these items to devise a fee-simple estate in the property to the wife, as was done in McNutt v. McComb, 61 Kan. 25, 58 Pac. 965.” (p. 44.)
In Hurst v. Weaver, 75 Kan. 758, 90 Pac. 297, it was said of McNutt v. McComb:
“That will purported first to convey to the devisee an absolute estate in land, with full power of conveyance. A subsequent paragraph purported to dispose of the remnant of the estate, if any remainder at the death of the devisee. The second paragraph was held to be in substance a remainder over, and to be void.” (p. 763.)
Holt v. Wilson, 82 Kan. 268, 108 Pac. 87, involved a bequest to a husband during his natural life, residue at his decease to an adopted son if then living, but if deceased before that time leaving child or children living, then to such child or children. It was held that the fee to the adopted son was not cut down to a mere life estate with a vested remainder by a subsequent provision that in case the adopted son should die without issue either before or after the husband’s estate expired, the whole should go to another. The rule in McNutt v. McComb was substantially followed. In Overly v. Angel, 84 Kan. 259, 113 Pac. 1041, it was said in the opinion:
“The ordinary rule is that, where an estate is absolutely devised, any repugnant conditions in the will must yield. (McNutt v. McComb, 61 Kan. 25.)” (p.263.)
Thornberry v. Fletcher, 91 Kan. 744, 139 Pac. 391, involved a will giving and devising all the property, real and personal, to the wife, and after the testator’s decease the devisee to provide by will or otherwise for the transmission of the residue and remainder of the testator’s estate at the devisee’s death in equal shares to certain named persons. The wife accepted the bequest and agreed to pass the title as indicated. It was held that, reading the will and the contract together, the wife took the entire estate, approving the rule (p. 747) that “Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by subsequent vague or doubtful expressions” announced in Holt v. Wilson, 82 Kan. 268, syl. ¶ 1, 108 Pac. 87.) In Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, it was said that each will must be construed by its own terms, and that McNutt v. McComb and Safe Deposit Co. v. Stick involved wills in which there were independent devises, and the problem was to find whether the testator intended to devise a fee absolute by the first clause or whether there was an apparent intent to connect the first with the subsequent clause limiting the first. In Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950, the third paragraph of the will devised the estate, after the death of the wife, to the testator’s four children. The fourth provided where the property should go in case of the death of any of such children before the death of the wife. It was urged that the third item devised the estate in fee with full power of disposition, and that the fourth was therefore repugnant and void, McNutt v. McComb and Holt v. Wilson being relied upon. These and various other decisions from this and other states were considered, and it was concluded that the fourth item was not repugnant to the third, and that it amounted to a devise of the remainder to the four children, contingent upon their surviving the testator’s wife.
The plaintiff, in support of the theory that the mother took a life estate with added power to dispose of the fee and that the children took a vested remainder, cites Allen v. Allen, 28 Kan. 18; Williams v. McKinney, 34 Kan. 514, 9 Pac. 265; Ernst v. Foster, 58 Kan. 438, 49 Pac. 527, and Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233. Allen v. Allen is to the effect that a will like the one in question amounts to the several will of the husband. Williams v. McKinney involved a will giving the property to the wife for her sole use and benefit for the nurture and education of the minor children, all that remained at her death to be owned by such children, share and share alike. The question was whether the widow took a fee or a life estate. It was said that while the words in the first part of the provision taken alone would give the widow an estate in fee, that limitations were added coupled directly therewith, all being in one sentence, and that all should be construed together, and that so construing it the intention was manifest to devise to the widow a life estate only. In Ernst v. Foster one provision of the will gave the property to the wife to have and to use and to dispose of during her natural life and after her death to be divided equally among the testator’s three youngest heirs, naming them. This was held to give a life estate to the widow with the added power of disposition, and that the property undisposed of by the widow would at her death descend to the three heirs. It was said:
“We agree with the contention of the heirs, that the power of disposal given in the will did not enlarge to a fee the estate taken by the widow. There was devised to her a life estate, and added to that was the separate and distinct gift of the disposal of the fee. This gave her authority to convey the fee, and the part undisposed of would descend to the children in accordance with the will.” (58 Kan. 444.)
The will in Greenwalt v. Keller contained a clause giving to the wife all the testator’s property, “ ‘to have for her own use and benefit while she may live. And at her death all property that may be left by her,’ ” (p. 578) undisposed of to others. It was held that the widow took a life estate with power of disposal in fee, following Williams v. McKinney and Ernst v. Foster. It was said in the opinion (p. 580) that the only property which the testator intended his heirs to receive was whatever might be left by the mother at her death. “This clearly indicates that he intended her to use and permanently dispose of a part of the estate so that it would not be in existence at the time of her death for the benefit of the heirs. We think this amounts to a life estate with power to convey in fee.” (p. 580.)
All these decisions go upon the principle that the pole star of construction is the testator’s intention. Their doctrine is that when a clause in a will manifests a clear intention of the testator to devise a fee this shall not be destroyed by a subsequent disconnected item attempting to reduce such fee to a less estate unless the entire will indicates that such was the real and fixed intention of the testator. When he provides in one sentence or in one clause that a certain estate shall go to his wife, to be owned and disposed of by her as she may desire, and that upon her death all that she has not disposed of shall go to the children, it is not difficult to discern a purpose that the widow take a life estate with the added power of disposal and that the children take a remainder in the portion'not disposed of after death. As said in Lohmuller v. Mosher, 74 Kan. 751, 87 Pac. 1140, the later words of this clause are, “unequivocal, of equal authority with those going before, and so in separably conjoined with those which precede that the expression of the testator’s comprehensive thought is not complete ■until the end of the sentence is reached.” (p. 754.)
The language now under consideration is:
“Devise . . .all the estate . . . to be owned and disposed of by ‘the survivor as he or she may desire, and that upon the death of the survivor, all the estate of the survivor not disposed of by such survivor, Is hereby devised and bequeathed to their children.”
At first blush it would seem that an estate to be owned and disposed of as the devisee may desire must of necessity be a fee, and doubtless were no other words added such would be the conclusion in this instance. As said in Wiley et al. v. Gregory et al., 135 Ind. 647, 35 N. E. 507:
“If an estate be given to a person generally or indefinitely, with a qiower of disposition, it carries a fee, unless the testator gives to the first "taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the express limitation for life will control the operation of the power and prevent it from enlarging the estate to a ±ee.” (p. 652.)
To the same effect is Wooster v. Cooper, 53 N. J. Eq. 682, 33 Atl. 1050. (See, also, Benz v. Fabian, 54 N. J. Eq. 615, 35 Atl. 760.) But in Little v. Giles, 25 Neb. 313, 41 N. W. 186, it was held that a devise with the power of unqaulified disposition, upon condition that if she should marry again whatever of estate remained should go to the surviving children, share and share alike, “ ‘Of all the estate herein bequeathed, or whatever may remain’ at the marriage of the first taker,” (Syl. ¶4) enabled the devisee before marriage to convey the fee; also that the quoted clause was restricted to such part of the estate as remained undisposed of at the time of the marriage. In the opinion, Maxwell, J., said :
“In the case at bar, if the widow married again, then whatever remained of "his estate should descend to his children, clearly implying that nothing but the estate undisposed of should thus descend.” (p. 327.)
In McCullough’s Administrator v. Anderson and others, 11 Ky. Law Rep. 939, 7 L. R. A. 836, it was held that a life estate in one, with remainder to another, may be created by will with power to the life tenant to defeat the remainder by disposal of the property; also that a life' estate to the widow with authority to dispose of it as she pleased, but providing that whatever remained undisposed of at her death by will or otherwise should go to certain other persons, did not give her the absolute ownership. Similar decisions are cited in the footnote. In Roberts v. Roberts, 102 Md. 131, 62 Atl. 161, 1 L. R. A., n. s., 782, it was held that the remainder created by a clause in a will which, after giving the estate to the wife for life with power of disposition, disposes of the estate remaining at her death, is not necessarily contingent. See, also, Steiff v. Seibert, 128 Iowa, 746, 105 N. W. 328, 6 L. R. A., n. s., 1186, citing many decisions in support of the rule that a life estate with the power of disposal does not constitute a fee. As to the power of disposal without a residuary clause see Re Weien, 139 Iowa, 657, 116 N. W. 791, 18 L. R. A., n. s., 463. As to power of disposal added to life estate see Chewning v. Mason, 158 N. Car. 578, 74 S. E. 357, 39 L. R. A., n. s., 805, and Note. (See, also, Warren v. Ingram, 96 Miss. 438, 51 South. 888, Ann. Cas. 1912 B, 422, Note, 424.)
Reverting again to the will under consideration, some significance must be given to the provision that upon the death of the survivor all the estate not disposed of “is hereby devised and bequeathed to their children.” Had the intention been to give a fee to the survivor it would be contrary to such intention to attempt to devise any of the same estate to the children. It is fairly clear that the intention was that the survivor should have complete dominion over the estate during her life, including the full power of disposition, but that as she would be likely to retain the estate or a portion thereof such portion was to vest personally in the children to take effect at her death, that is, the present estate in such portion was to vest in her for life with the power of disposition, remainder to the children. Other constructions supported by reason and authority could be adopted, but this seems to be most in accord with the decisions and with the manifest intention of the testator, and it is in harmony with Morse v. Henlon, 97 Kan. 399, 155 Pac. 800.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
The petition for rehearing, among other matters which are not persuasive, contains a complaint that we failed to comment on the proposition advanced by appelleé that the several continuances operated to deprive the city court of jurisdiction. It is said:
“It is a well established rule of law that a Court having a Justice of the Peace jurisdiction is a Court of limited jurisdiction and that there are no presumptions in favor of a jurisdiction of such Courts, or of any of said Court’s acts; but that one who claims the validity of the j'udgment of a Justice of the Peace must show affirmatively that the Court had jurisdiction and the record of said Court must show affirmatively every j'udicial fact and every act which gives the Court jurisdiction. . . . If this Court .wishes to say that a Justice of the Peace, or a City Court, is not a Court of limited jurisdiction created by Statute, and wishes to say that everything is presumed in favor of a j'udgment of the Justice of the Peace Court, or a City Court and wishes to say that one contesting the jurisdiction of a Court and contesting the j'udgment of such Court must prove that said Court did not have jurisdiction and must prove that the j'udgment was not rendered with jurisdiction when the record is absolutely silent upon the j'udicial fact, then I believe it is the right of this defendant to have the same in the opinion in this case.”
It may be conceded that a city court, like that of a justice of the peace, is one of limited jurisdiction; but the contention is truly novel that there is no presumption of the regularity of the proceedings in such a court when once its jurisdiction has attached. We believe the rule to be fundamental, not only in Kansas but throughout all states and countries where either the common or the civil law prevails, that the acts of any official, not alone those of a magistrate, but of any official of any department of government, when within the general scope of his powers are presumed to have been regularly and lawfully done. This rule was crystallized into a maxim before law and rules of law were written in the English tongue. See the variations of the ancient maxim, “Omnia rite esse acta prsesumuntur,” meaning all official acts are presumed to have been rightfully done,” in 2 Bouvier’s Law Dictionary. The burden is on the party who assails their regularity. 'The appellant has not sustained that burden merely by showing the repeated continuances. He should have gone further and established prejudicial irregularity in these continuances.
In 11 Cyc. 693, it is said:
“The mere exercise of jurisdiction by courts of inferior, limited, or special jurisdiction does not raise a presumption of the existence of the requisite jurisdictional facts, for nothing is presumed to be within the jurisdiction of such courts, except that which expressly appears to be so. The rule applies to jurisdiction over the subject-matter of the judgment, and the parties. But where these courts have not transcended their powers, and jurisdiction is once established, or has once actually attached, the validity of subsequent proceedings will be presumed until the contrary be shown, nor will such jurisdiction be lost in such case by an irregularity in the mode of exercising it. Again, if the jurisdiction of the special or inferior tribunal over the subject-matter be made to appear upon the face of the proceedngs, the maxim om¡nia pnesumyntur rite esse acta applies.”
(See, also, 23 Cyc. 1082, 1083.)
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was one in which the plaintiff sued to recover damages from the parents of her deceased husband for alienation of his affections. It was not brought until after his death. This is an appeal from a ruling of the trial court sustaining a demurrer to the plaintiff’s evidence.
The defendants live on a ranch near Latham, Butler county. Their son, John G. Erickson, met the plaintiff- in- Kansas City, and after a brief courtship they were married- on the 16th day of November, 1911. The petition alleged that'-shortly after the marriage the defendants, maliciously intending to deprive the plaintiff of the affections, support and maintenance of' her husband, tried to induce the plaintiff to leave- and abandon their son and separate from him, and that upon her refusal to do so they maliciously and persistently adviséd, influenced .arid entreated him to fail to support and maintain her and to abandon and leave her; and finally, on the 27th. day.of December, 1911, succeeded in their designs and persuaded him to abandon her, and shortly afterwards to commence an -action- against her for -divorce and to make false and humiliating accusations against her; that on the 28th day of March, 1913, during.the pendency of the divorce suit, John G. Erickson died. . ''
The court permitted the plaintiff to testify, to statements made to her by defendants, but refused to permit.her to tell all she said to them in the same conversations. . The statements excluded were for the most part incompetent- because of their self-serving nature, and besides they did not tend-to throw additional light upon the language used by the defendants. :.A. letter written to the plaintiff by her husband; before the marriage was offered to show his affection.for-her. It was’not competent evidence against the defendants. The presumption is that he had affection for her or he would'-nót- have married her.
The principal claim made in the ■ appeal is .that the case is one which should have gone to the j ury, and 'that it was error to sustain the demurrer to the evidence. There was very little testimony tending to show that the defendants were in any respect responsible for the separation of. the • plaintiff and hér husband. She admitted that the statements an 'her verified answer to the petition for divorce were substantially true. Tn that answer she alleged that her husband hád never at any time provided a home for her or made any attempt to do’-'só; that she was compelled to live at the home-.of-his parent^, which was contrary to her wishes; that on the day of her marriage her husband became intoxicated and remained in that condition for a week, after which he left her in Kansas City and went to his parents’ home and made no effort to have her join him. In her sworn answer she also stated that her husband was an habitual drunkard; that while she lived with him she contracted from him a loathsome disease, and that he refused to lend her assistance to recover her health; that prior to the marriage he represented to her that he was wealthy and that he owned an interest in his father’s ranch and cattle and had a large bank account; that these statements were untrue; that she learned when she went to Latham she would be required to do the housework and look after the home of her husband’s parents, and that she was physically unable to do this; that she left the ranch and went to Kansas City with her husband’s consent and under his instructions, and that he refused and failed to furnish her money to return to Latham; that he failed to write her and neglected to answer her letters; that he never contributed at any time to her support; that during the short time she remained with him at Latham he repeatedly .stated that he did not want to live longer with her, and urged her to leave him; that on the 2d day of January, 1912, her husband called to see her at the home of her parents in Kansas City, that he was in a drunken stupor and was abusive and ill-tempered, and that he offered her and her parents numerous indignities.
Her testimony is that she had never seen either of the defendants until the day after her marriage, when her husband took her to Excelsior Springs, near Kansas City, and introduced her to his mother. A few days later he left her and went to Latham. During the next two weeks she had several conversations with Mrs. Erickson, who told her she had made a mistake in marrying John, that she could never get along with him, that-he had no way of making a living for her, that he drank and was not fit to live with, that he was “burnt up” With disease, that he was still' in love with his first wife, and always had been, that if she would not go to Latham and live with him, she, Mrs. Erickson, would set her up in the millinery business or send her to school; that afterwards Mrs. Erickson paid the expense of taking her to Latham. She testified that after she had been at the ranch a short time Mrs. Erickson, advised her to go to Kansas City and visit her family, and said John could not go. She remained at the ranch for only two weeks and then went back to her parents and never afterward lived with her husband. There was no evidence of any conduct of Mr. Erickson that tended to support plaintiff’s claim, except that he had very little to say to her during her stay at the ranch . and refused to allow his son to accompany her to Kansas City. There was evidence tending to support the averments in the petition to the effect that the parents sought to persuade plain-. tiff not to live with her husband, at least that the mother had done so; but there was no substantial testimony to show that defendants alienated the affections of their son for his wife,. or that they induced him to bring proceedings, for- divorce.
Of course, under the rule so often declared (see Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Bowes v. Sly, 96 Kan. 388, 152 Pac. 17; Hyland v. Railway Co., 96 Kan. 432, 151 Pac.; 1107), the mere fact that there were contradictions in plain-, tiff’s testimony would not authorize the court to take the case from the jury. But the plaintiff admitted that her sworn state-. ments in the divorce proceeding were true. If they were true, it is difficult to see how she could have had a cause of -action against the defendants. All the statements about her son-which the mother made to the plaintiff appear to have been the: truth. To her sorrow plaintiff herself learned of their truth, very soon after her marriage. While there was what may be. called a scintilla of evidence tending to support the plaintiff’s contentions, we think the trial court was doubtless convinced, as we are, that this is a case which should never have been brought. If upon plaintiff’s own testimony the jury had returned a verdict in her favor it would have been the duty of the trial court to set it aside. In view of all the conceded facts., we think this is not a case which calls for an application of the rule that if there is any evidence tending to support the plaintiff’s claim the case must be submitted to the jury.
For these reasons the judgment will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to foreclose a mortgage on' real property. A receiver was appointed. The plaintiff recovered judgment, and the defendants appeal.
The petition contains two causes of action. The second cause of action refers to the first and makes its allegations a part of the second. July 24, 1913, on the application of the plaintiff, and without notice to the defendants, the court appointed a receiver for the mortgaged property. August 2, 1913, the defendants’ application to discharge the receiver was denied. March 16,1914, a demurrer to the first cause of action was sustained. April 15,1914, judgment was rendered in favor of the plaintiff for the amount of the mortgage, and the property was' ordered sold to satisfy the judgment. August 14, 1914, the property was sold under order of sale. The property did not sell for enough to satisfy the judgment. December 5, 19Í5, the defendants’ motion to require the receiver to pay the money in his hands to defendant G. F. Dikeman was denied, and the receiver was ordered to pay the money to the plaintiff on his motion.
The defendants contend that the court erred in appointing a receiver for the property, and in refusing to discharge the receiver on their application. The appointment of a receiver was requested on the grounds and for the reasons stated in the first cause of action of the petition. These grounds and reasons were a part of the second cause of action, and a receiver could as well be appointed for these reasons as referred to in the second cause of action as one could have been appointed for the same reasons as set out in the first cause of action, although the first cause of action was held bad on demurrer.
It is argued that the evidence submitted did not justify the appointment of a receiver, and that the defendants’ evidence showed that the receiver should have been discharged on the application of the defendants. The evidence was conflicting as to the value of the property. There was an abundance of evidence to show that the property was not sufficient to discharge the mortgage debt. Under subdivision 2 of - section 266 of the code of civil procedure a receiver may be appointed, “in an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property ... is probably insufficient to discharge the mortgage debt.” The evidence on the application for the appointment of the receiver and for his discharge, although conflicting, was sufficient to sustain the order' of the court appointing the receiver and the order refusing to discharge him.
It is further argued that under section 498 of the code of civil procedure the court had no authority to appoint a re ceiver except to prevent waste and to preserve the property. In Beverly v. Barnitz, 55 Kan. 466, 42 Pac. 725, this court said:
“The act of 1893 does not purport to repeal or modify section 254 of the code of civil procedure, (¶ 4349, Gen. Stat. 1889,) which authorizes the appointment of a receiver in a. foreclosure case ‘where it appears that the mortgaged property is in danger of being lost, removed, or materially injured,’ or when ‘the condition of the mortgage has not been performed,’ and ‘the property is probably insufficient to discharge the mortgage debt.’ In such cases a receiver may be appointed at any time after the action is commenced, and the receivership may continue until the sale of the land by the sheriff, when the mortgagee’s claim upon it is satisfied and extinguished, and as a creditor he has no further concern with it. The act of 1893 does not become operative until after the sale, and it matters not to the former creditor how the land is occupied during the period of redemption, (p. 479.)
There was no error in appointing or refusing to discharge the receiver.
Complaint is made of the order refusing to direct the receiver to pay the money in his hands to defendant G. F, Dikeman and of the order directing the receiver to pay the money to the plaintiff. The receiver’s report shows that this money was received by him prior to the sale of the property. In Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073, this court said:
“By virtue of the statute authorizing the appointment of a receiver in an action to foreclose a real-estate mortgage, if the property is insufficient to discharge the debt, the mortgagee, where that condition exists, has a right to look to the income of the property prior to its sale, and through a receiver appointed after judgment may enforce that right from the time of such appointment.” (Syl. ¶ 4.)
There was no error in directing that the money in the receiver’s hands be paid to the plaintiff.
The judgment is affirmed. | [
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'The opinion of the court was delivered by
MASON, J.:
Robert Kenney and Bud Harding were convicted -on a charge of burglary and larceny, and appeal.
The principal ground on which a reversal is asked is that the evidence did not justify a conviction. The stolen property consisted largely of .38 caliber cartridges, taken from a hardware store. A witness testified that earlier in the night during which the offense was committed he had been drinking with the defendants; that Kenney proposed that they break into a hardware store that he named- — not the one broken into; that Harding left and returned shortly with a .22 caliber rifle; that Kenney said to him, “That’s a hell of a thing to stick up a place with,” and he answered that he had a .38 at home and might get it; that he again left and shortly came back with a .38 caliber revolver; that the witness proposed that they all go home, but the defendants said “No, they would not get in any trouble, they were too smart,” whereupon he left them. Harding’s mother heard Kenney say to him that their companion (the witness already referred to) was going to back out. Another witness shortly after the burglary saw the defendants on the sidewalk a few blocks from where it was committed; they dropped something and both stooped over as if looking for it; the witness, with others, made an examination of the place where they had been standing and found an empty cartridge box, which was identified as a part of the stolen property. This evidence was sufficient to take the case to the jury.
Complaint is made of the admission of the testimony of the sheriff as to the conduct of Harding after the arrest— that he tried to break jail. This was competent against Harding. (1 Wigmore on Evidence, § 276.) If the point was made at the trial that it was prejudicial as to Kenney an instruction was doubtless given to guard against such a result.
The judgment- is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment for $510 damages for failure to deliver wheat sold to the plaintiff. The defendant appeals.
In August, 1914, the plaintiff purchased of the defendant 3000 bushels of wheat at eighty-three cents per bushel, to be delivered September 15, 1914, or at any time during the month of September before the 15th. On September 9 the defendant notified the plaintiff that he would not deliver the wheat, and the plaintiff on that day purchased other wheat of the same grade for $1 per bushel, the then current price at the place of delivery. On the 15th day of September, 1914, wheat was worth eighty-two cents per bushel at the same place.
The only question for consideration is, Could the plaintiff purchase wheat on the 9th day of September and recover the damage sustained by reason of the difference in price, or must he wait until the 15th of September and then purchase the wheat and recover the damage sustained by him? If the latter, he sustained no loss, because wheat then sold for one cent per bushel less than he had agreed to pay, and his damage was nominal only. If he had the right to go on. the market and purchase the wheat on the day he received notice that the contract would not be complied with, the judgment is correct and should be affirmed.
The plaintiff, when he was notified by the defendant that the wheat would not be delivered, had a right to reduce the damage that he would sustain, by going on the market and buying wheat in amount equal to that the defendant had agreed to sell, and collect the difference in price from the defendant. The authorities say that this should generally be done at the time and place of delivery. (Stewart v. Power, 12 Kan. 596; Mercantile Co. v. Lusk, 45 Kan. 182, 25 Pac. 646; 35 Cyc. 633.) The damage to the plaintiff was caused by the defendant. He could have prevented damage to the plaintiff by performing the contract on any of the days that he might select. He refused to perform his contract and compelled the plaintiff to adopt such measures as he deemed best to reduce his losses. The defendant ought not to be permitted to cast on the plaintiff the burden of reducing these losses and then say that the plaintiff could have better reduced the losses by purchasing wheat on a different day. The rule ought to be, and we think is, that the plaintiff, when notified by the defendant, had a right to go on the market on that day and purchase an amount of wheat equal to that contracted for and recover from the defendant the difference in price. In Lumber Co. v. Lumber Co., 86 Kan. 131, 119 Pac. 321, the rule is substantially stated in the following language:
“The defendant, however, deprived itself of the benefit of this rule by its answer in which it alleged, and repeated in the most positive terms, that the plaintiff’s default occurred on July 9, 1907. This allegation was very material because it fixed the date at which damages were provable and enabled the defendant to take advantage of the high price of shingles at that time. If the defendant desired to stand at all on the notification of November, 1906, that the contract would not be fulfilled the duty rested upon it to mitigate damages by then going into the market and buying shingles, if it were able to do so. In that event the plaintiff might have shown that the defendant could have supplied its needs at prices much below those prevailing the next July, and in the absence of such proof damages were still assessable, not as of July 9, 1907, but as of the true date, when, under the contract, the shingles were to be delivered.” (p. 134.)
The headnote to Shepherd v. Hampton, 16 U. S. 200, 4 L. Ed. 369, reads:
“In an action by the vendee for the breach of a contract of sale by the vendor, in not delivering the article, the measure of damage is the price of the article at the time of the breach of the contract, and not at any subsequent period.”
(See, also, 35 Cyc. 637; Williams v. De Soto Oil Co., 213 Fed. 194; Craig & Co. v. Pierson L. Co., 179 Ala. 535, 538, 60 South. 838; Kehler v. Einstman, 38 Ill. App. 91; Sleuter et al. v. Wallbaum, 45 Ill. 43; Follansbee v. Adams, 86 Ill. 13; Finch & Co. v. New Ohio W. Coal Co., 156 Ill. App. 589, 601; Louisville Packing Co. v. Crain, 141 Ky. 379, 132 S. W. 575; Masterson v. The Mayor &c. of Brooklyn, 7 Hill (N. Y. Supr. Ct.), 61, 42 Am. Dec. 38; Boyd v. L. H. Quinn Co., 17 Misc. Rep. 278, 40 N. Y. Supp. 370, 18 Misc. Rep. 169, 75 State Rep. 803, 41 N. Y. Supp. 391; David v. Whitmer & Sons, 46 Pa. Super. Ct. 307, 311.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant railroad company was called upon to answer in a justice court a proceeding in garnishment involving wages earned out of this state, payable out of this state, the cause of action arising out of this state, the defendant in the garnishment action not being personally served with process. The justice ordered the railroad company to pay and an action was brought in the district court to compel obedience to this order. The defendant, having been defeated, appeals, asserting that although the amount involved is less than one hundred dollars it has been deprived of its property without due process of law, and that the refusal of the trial court to make findings of fact and conclusions of law in writing was a deprivation of a remedy guaranteed by the Kansas bill of rights.
In view of section 3654 of the General Statutes of 1909 we unhesitatingly hold that the justice of the peace was utterly without right to entertain jurisdiction of the proceeding except to dismiss it. The difficulty, however, is that when the matter was taken to district court that tribunal had jurisdiction to determine, erroneously, as it did, a,gainst the rights of the railroad company and the plain provisions of the statute in question. The refusal to make findings of fact and conclusions of law was erroneous merely but not jurisdictional. It was sought by answer and by requests for declarations of law to induce the trial court to treat the enforcement of the order of the justice as a deprivation of certain constitutional rights. The case, however, really involves no constitutional question, and hence on account of the smallness of the amount in controversy, an appeal will not lie. (Civ. Code, § 566; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001; Caldwell v. Bigger, 76 Kan. 49, 55, 90 Pac. 1095; Ayres v. Deering, 76 Kan. 149, 90 Pac. 794; Brenholts v. Miller, 80 Kan. 185, 101 Pac. 998; In re Luttgerding, 83 Kan. 205, 210, 110 Pac. 95; Griggs v. Hanson, 86 Kan. 632, 121 Pac. 1094, Ann. Cas. 1913 C, 392; Wheeler v. Ballard, 91 Kan. 354, 360, 137 Pac. 789.)
The appeal is dismissed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was to recover the sum of $700 alleged to be due as the purchase price of a player piano sold and delivered to the defendant.
The petition alleged that the defendant agreed to pay $700 for the instrument. The plaintiff testified that the agreement was that the defendant was to pay her $350 in cash when the player piano was delivered, and the plaintiff was to take the defendant’s second-hand piano for the other $350. There was some conflict in the testimony, the defendant testifying that the piano was not purchased outright, but that she agreed to pay $350 and give her old piano in exchange for the new one if her daughter was satisfied with the new one, and that it was to remain in her house long enough for the daughter to make up her mind whether she liked it or not. The petition was drawn on the theory that the piano had been sold for $700 and that this sum was due. The plaintiff’s proof showed, however, that she had agreed to take the old piano in for half of the purchase price and was to receive $350 in cash. The court instructed that if the defendant after accepting the piano failed to pay the $350 in cash, the plaintiff was under no obligation to accept the old piano as part payment. In some other respects the instructions we think tended to confuse the jury. After the jury had been out for several hours and were unable to agree-upon a verdict they submitted to the court the following question: “In case a verdict for the plaintiff is rendered would the deal be consummated as originally intended, that is, the old piano being taken in at a $350 valuation?” The court in answer to this question gave an additional instruction to the effect that in case of a verdict for the plaintiff the deal could not be consummated as originally intended because the defendant had repudiated the contract and had not offered to give the plaintiff the old piano, and the court instructed that in case the jury found for the plaintiff the amount of their verdict should be the $700.
We think the instructions were erroneous in view of the facts admitted by the plaintiff, and that justice and equity will best be subserved by a modification of the judgment. It seems that the defendant offered to return the new piano to the plaintiff, and upon plaintiff’s refusal to accept it, stored it subject to plaintiff’s order, and that it is now in the hands of a storage company. There is no reason why the plaintiff should not be entitled to recover the $350 with interest thereon from the date of the sale, and she should also be entitled to the possession and ownership of the second-hand piano, or its value at the time the agreement was entered into in case it can not now be delivered to her.
The judgment will therefore be modified and the cause remanded for further proceedings in accordance with these views. | [
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'The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by William Sheat to recover damages from the receivers of the St. Louis & San Francisco Railroad Company for injuries sustained while he was driving over a defective culvert on the right of way of the railroad at a highway crossing. The highway had been laid out and the culvert had been built some years before the railr road passed into the control of the receivers. The plaintiff and two others were taking the separator of a threshing machine along the highway, and when they drove upon the culvert near the railroad track a wheel broke through causing a lurch of the separator by which the plaintiff who was riding upon the separator was thrown to the ground and severely injured. At the trial special findings were returned by the jury, and in their general verdict they awarded the plaintiff damages in the sum of $1100. The defendants asked for a new trial because of insufficiency of the evidence, of inconsistency in the findings, and of erroneous instructions. Afterwards they withdrew their motion for a new trial and asked for judgment on the special findings. This motion being denied the defendants appeal.
In argument some reference was made to the evidence in the case, but as a transcript of all the evidence was not made no consideration can be given to it. The defendants are therefore confined to the error assigned on the ruling refusing to enter judgment in their favor upon the special findings. The findings cover only a part of the facts of the case, and in the interpretation of them every - reasonable inference must be indulged in- favor of the general verdict. In the absence of the evidence it must be assumed that there was sufficient evidence to uphold the verdict and that it included every element necessary to its validity not expressly negatived by the special findings. (Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633; Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585.) By withdrawing the motion for a new trial the defendants in effect waived any claim that there was a lack of evidence to support the findings and verdict as well as that there was inconsistency in the findings themselves. (Lumber Co. v. Limerick, 53 Kan. 395, 36 Pac. 710; McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646.) Of course if the findings fairly interpreted can not be reconciled with the verdict it can not stand, and if they are complete in themselves and show clearly that no recovery can be had by the plaintiff the defendants were, of course, entitled to judgment.
First it is said that the plaintiff can not recover because of a finding that the receivers had done nothing toward maintaining the culvert since they took charge of the railroad. • It is alleged and claimed that the culvert was on the right of way and constituted a part of the approach to the crossing of the railroad track. It was defective, and the finding that the defendants did nothing towards its maintenance and repair tends to establish the charge that they were negligent rather than to exonerate them from it. They took over the management of the railroad, and it was as much their duty to keep the crossing in repair as it was of the corporation while it had charge of the railroad. They can not escape liability because the culvert had been built before they were placed in charge of the railroad. (Bonner and Eddy, Receivers, v. Mayfield, 82 Tex. 234, 18 S. W. 305; Beach on Receivers, 2d ed., § 382; High on Receivers, 3d ed., § 3976.) The trial court instructed■ the jury that if the defendants or their predecessor built and maintained the culvert and allowed it to become so weak that the separator broke through it the plaintiff might recover. The defendants acknowledged the correctness of the instruction by withdrawing their objection to it and hence it must be accepted as the law of the case. Nor are they permitted to say that the defect had not been directly brought to their attention. Upon taking charge of the railroad it became their duty to inspect or cause an inspection to be made of the railroad and the crossings over the same, and their failure to find defects which might have been discovered by the exercise of due care and to repair them is negligence upon which a recovery may be based. They stand in the shoes of the corporation and are charged with the duties and responsibilities of maintaining the railroad and the crossings in a safe condition that were incumbent upon the railroad itself before they were appointed.
In Rouse v. Harry, 55 Kan. 589, 40 Pac. 1007, it was held that a receiver of a railroad company was in effect exercising its corporate functions, and it was said that “a suit against a receiver is in form against an individual, but in substance it is against the corporate property in his charge. It is, in all essential particulars, in substance against the corporation itself.” (p. 598.)
(See, also, The State, ex rel., v. Sessions, 95 Kan. 272, 147 Pac. 789; Robinson v. Mills, 25 Mont. 391, 65 Pac. 114.)
It is conceded that the receivers had been in possession of the railroad inore than a year before the accident occurred, and under any view they had ample time to discover the defect in the culvert and repair it. According to the authorities cited the defendants should have known of the defect and should have put and kept the culvert' in a safe condition. Aside from their general verdict the jury specifically found that the defendants were negligent in failing to repair the culvert and that their negligence had continued from the time they took possession of the' railroad.
Contention is made that the findings show contributory negligence on the part of the plaintiif. In answer to a special question the jury stated that the plaintiff and the man with him moved the separator over the highway at night and without a light. It may have been a moonlight night so that an artificial light was unnecessary, and in the absence of the evidence it may be assumed that the night was not dark and that a lantern was not needed. Again, it is contended that the findings show that the plaintiff was negligent in the manner in which he drove upon the culvert. In the seventh finding the jury answered that the separator was several feet wider than the usually traveled part of the road, and to the question: “If the separator had been driven within the usually traveled part of the road, would the accident have happened ?” the jury answered: “Don’t know.” In answer to another question the jury found that the hind wheel of the separator began to slip before reaching the culvert and did slip down upon the north end of it. The mere fact that the wheel slipped to the side as the plaintiif drove upon the culvert does not convict him of negligence. What caused the slipping is not shown. The finding as to the width of the traveled way and the answer of the jury that they did not know whether or not the accident would have happened if the separator had been driven within the usually traveled part of the road afford no basis for a judgment against the plaintiff. It may be inferred that the separator was not upon the most traveled part of the road; but the accident did not happen because it was moved in or outside of the usually traveled part of the road. It was because of the weak culvert which broke under the weight of the separator, and there is no reason to infer that it was stronger in the more traveled part than where the break occurred. This accounts for the answer of the jury that they didn’t know whether the accident would have happened if the separator had been taken across the defective culvert at another place. The plaintiff was warranted in driving in any part of the road that appeared to be fit for travel. Neither can it be inferred that the plaintiff was thrown from the separator because he drove off of the culvert as the defendants contend. The finding is that the wheel of the separator slipped down upon the north end of the culvert, and not off of the north end as the defendants wo.uld infer. Under the verdict the inference must be that the defective culvert through which the wheel broke was the proximate cause of the plaintiff’s injury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Jessie Giersch recovered a judgment for the death of her husband incurred while employed as a switchman by the defendant company as a result of being crushed between two freight cars in the defendant’s yards at Emporia. The defendant appeals and error is assigned upon the rejection of certain evidence, the overruling of a demurrer to the plaintiff’s evidence, in giving and refusing instructions and in denying a motion to set aside certain special findings, a motion for judgment on the special findings and a motion for new trial. The principal contention, save one, is that the evidence failed to make out a case. The other question presented will be first considered.
The petition was filed under the statute (Civ. Code, §§ 419, 420), praying judgment for $10,000 and alleging the nonacceptance of the provisions of the workmen’s compensation act. The answer, after admitting the alleged corporate character of the defendant, consisted of a general denial and averments of contributory negligence and assumption of risk. The reply denied every allegation in the answer not admitted by the petition.
The testimony showed that the deceased was a switchman in the Emporia yards; thht in attempting to adjust the knuckle on a slowly moving fiat car he was crushed by the moving upon him of the other cars from which the one mentioned had been uncoupled. When the plaintiff’s testimony was closed nothing had been said as to the character of the car in question. The plaintiff demurred to the evidence on the ground that it did not prove facts sufficient to constitute a cause of action, and on being asked by the court whether counsel desired to argue the demurrer the answer was, “I think your honor has seen enough of these questions tried to decide the question without argument. There is a point, but I do not wish to call the court’s attention to it now.” The Court: “I do not wish to hear you unless you have something particular that you wish to call the court’s attention to; if you have not, I will pass upon it now.” To which counsel responded: “I think that the general grounds I have stated is all.” The defendant thereupon introduced its evidence, and one of its witnesses testified that the car which had been uncoupled was S. P. 79,329 and belonged to the Southern Pacific. Another witness, a traveling car accountant of the defendant', testified that a complete record of the movement of cars is kept, making up what is called the conductors’ wheel reports of each train, showing the car and its movements, which reports were in duplicate and on file in the defendant’s office. He further testified that this record showed that the car in question was received from another line at Shawnee, Okla., moved into Emporia from Arkansas City on December 26, from Emporia to Topeka on the 26th, Coddington and back to Emporia on the 27th, empty in extra 1837 Humfert, arrived in Emporia December 28, arriving in and out of Emporia the 29th, destination being Fort Worth, Tex. He stated that this record from which he had been testifying was a carbon duplicate of the report made up and sent in to the car accountant’s office by the conductors. An objection was made to all the answers of this witness because the same are “incompetent, irrelevant and immaterial; did not prove or tend to prove or disprove any issues in this lawsuit, and the evidence is not competent because it is hearsay, not being the best evidence.” This objection was overruled, but later the evidence was stricken from the record.
Some contention is made that certain portions of the record are presented here through the briefs instead of the abstracts, but as both parties are about equally at fault in this respect we will consider the case as if abstracted in the usual way. It is now strenuously contended that the testimony of this witness was not only competent but that it demonstrates that the car upon which the deceased was working was at the time an interstate car, and therefore the plaintiff’s cause of action was under the federal and. not the state statute, and as the former does not permit the suit to be brought by the widow, but only by the administrator or personal representative, the plaintiff can not prevail.
In the former days of strictness carbon copies of office records like those in question would not be deemed competent, but practical requirements of business and the application of common sense by the courts have brought about a recognition of the competency of such records. (Darling v. Railway Co., 76 Kan. 898, 93 Pac. 612; Bourquin v. Railway Co., 88 Kan. 183, 127 Pac. 770; Wilkes v. Coal Co., 95 Kan. 493, 148 Pac. 768; Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629.) On this we are unanimous. That the witness should be permitted over objection to sit and relate his conclusions as to what the carbon copy of the official report showed instead of such copy being offered in evidence is, in the opinion of the writer, a sort of j udicial atavism rather than a recognition of any recognized or sensible rule of evidence. Twice in her brief the plaintiff calls attention to the fact that the papers themselves were not offered in evidence.. The majority, however, conclude from all the circumstances that the real objection was to the copies and not to the construction thereof by the witness, and regard it as if the witness had held in his hand a letter and proceeded to give the contents without objection instead of having it read to the jury.
The remaining point is the effect of this evidence in view of the fact that no hint in the pleadings can be found that a defense of an interstate nature was to be made and it is argued with much force and consistency that if the defendant desired to avail itself of this it should have followed the usual practice and given notice thereof when stating its defense by way of answer. It would be more accurate, however, to say that the real question is whether or not in view of the condition of the pleadings the defendant had a right by competent evidence to show that whatever liability might exist the widow could not maintain the action. If, as a matter of fact, her late husband was engaged in interstate commerce the law of the state affords her no remedy and her right to recover becomes a clear federal question, which must be solved in accordance with the federal decisions thereon. In affirming the decision of this court in Brinkmeier v. Railway Co., 81 Kan. 101, 105 Pac. 221, the supreme court in Brinkmeier v. Mo. Pac. Ry. Co., 224 U. S. 268, held that as the petition did not state a cause of action under the safety-appliance act, but at most a right of recovery under the common law, the ruling upon the sufficiency of the evidence did not involve a federal question. Also, that the refusal to permit the amendment of the petition so as to come under the federal act after the statute of limitations had run, involved only a question of pleading and practice under the state law) and was not subject to federal review. But here we have the opposite. The evidence brought the case under the federal statute and this of necessity involves a federal question.
In American R. R. Co. v. Birch, 224 U. S. 547, it was held that the federal employers’ liability act gives the right of recovery to the personal representatives and not to the heirs and that the latter can not maintain an action even where the local statute gives a right to the heirs as well as to the personal representatives to maintain such an action. In the opinion it was said :
“But this distinction between the parties to sue and the parties to be benefited by the suit makes clear the purpose of Congress. To this purpose we must yield. ... In the present case it looks like a useless circumlocution to require an administration upon the deceased’s estate, but in many eases it might be much the simpler plan and keep the controversy free from elements but those which relate to the cause of action. But we may presume that all contending considerations were taken into account and the purpose of Congress expressed in the language it used.” (p. 557.)
In St. L. & San Francisco Ry. v. Seale, 229 U. S. 156, it was held that—
“Where the Federal Employers’ Liability Act applies, no one but the injured employe or, in case of his death, his personal representative, can maintain the action.” (Syl. ¶ 2.)
Further, that—
“An employe whose duty is to take the numbers of, and seal up and label, cars, some of which are engaged in interstate, and some in intrastate, traffic, is directly and not indirectly engaged in interstate commerce.
“Where plaintiff’s petition states a case under the state statute, but on the evidence it appears that the case is controlled by the Federal statute, and the defendant has duly excepted, the state court is bound to take notice of the objection and dismiss if plaintiff is not entitled to recover under the Federal statute.” (Syl. ¶¶ 4, 6.)
In that case the defendant at the close of the evidence requested a directed verdict on the ground that the liability was controlled by the federal statute, which request was denied. The court said :
“It comes then to this: The plaintiffs' petition, as ruled by the state court, stated a case under the state statute. The defendant by its special exceptions called attention to the federal statute and suggested that the state statute might not be the applicable one. . , . A plea in abatement would have been unavailing, because the plaintiffs were the proper parties to prosecute that case. When the evidence was adduced it developed that the real case was not controlled by the state statute but by the federal statute. In short, the case pleaded was not proved and the case proved was not pleaded. In that situation the defendant interposed the objection, grounded on the federal statute, that the plaintiffs were not entitled to recover on the case proved. We think the objection was interposed in due time and that the state courts erred in overruling it.” (p. 161.)
In Toledo, St. L. & West. R. R. Co. v. Slavin, 236 U. S. 454, the evidence showed that although the case was brought under the state statute the plaintiff was injured while engaged in interstate commerce, and it was held that the objection that he could not recover under the federal employers’ liability act was not a technical rule of pleading or a matter of substance and that where there are substantive differences between the state and federal statutes in regard to defenses of assumption of risk and contributory negligence, proceeding under the former is reversible error. Neither the complaint nor the answer contained any reference to the employers’ liability act, but over plaintiff’s objection evidence was admitted which showed that the train on which the plaintiff was riding when injured was engaged in interstate commerce. The railroad company then insisted that the case was governed by the federal act and moved the court for a directed verdict. This was overruled and the court refused to charge in respect to the provisions of the federal statute, being of the opinion that the case was within the Ohio statute. The plaintiff recovered and the judgment was reversed by the circuit court of Lucas county on the ground that the plaintiff was injured while engaged in interstate commerce. This judgment was in turn reversed by the supreme court of Ohio. Slavin insisted that the defendant’s failure to plead the employers’ liability act made it improper to consider the evidence touching the interstate character of the train on which he was injured. The court said:
“But a controlling federal question was necessarily involved. For, when the plaintiff brought suit on the state statute the defendant was entitled to disprove liability under the Ohio act, by showing that the injury had been inflicted while Slavin was employed in interstate business. And, if without amendment, the case proceeded with the proof showing that the right of the plaintiff and the liability of the defendant had to he measured by the federal statute, it was error not to apply and enforce the provisions of that law.” (p. 457.)
The Seale case was followed, and it was said that in the. Slavin case the Ohio statute abolished the rule of the common law as to assumption of risk, while the federal statute left it in force except when the injury was due to violation of certain statutes and that the case should have been tried and determined according to the federal employers’ liability act. N. Y. Central R. R. v. Carr, 238 U. S. 260, involved the case of a brakeman on an intrastate car in a train consisting of both intrastate and interstate cars engaged in cutting out the former so that the train could proceed on its interstate business, and it was held that for an. injury received while so engaged he could maintain an action under the federal act. Penna. Co. v. Donat, 239 U. S. 50, was an action based on the federal statute and the trial court left it for the jury to say from the facts whether or not the plaintiff was engaged in interstate commerce and refused to charge that he was not so engaged and therefore could not recover. The case was begun in the United States district court. Two loaded cars coming from without the state were received in the yards at Fort Wayne, Ind. Acting under instructions Donat began the switching movement necessary to place them on the required switch track, and it became necessary to uncouple the engine from the loaded cars, and with it to remove the empty ones from the private track. It was held that the court properly submitted the interstate question to the jury and that a writ of error based on the refusal to charge that the plaintiff was not engaged in interstate commerce and could not recover was frivolous. In Atlantic Coast Line R. R. v. Burnette, 239 U. S. 199, the plaintiff, who was injured while working upon a train running from South Carolina to North Carolina, was given a judgment by the state supreme court, which assumed that the case was governed by the federal act. It seems that the errors complained of were that the state court held the federal statute applicable and declined to regard the statute of limitations as a bar because not pleaded. The federal supreme court reversed the decision. It was said:
“It would seem a miscarriage of justice if the plain tiff should recover upon a statute that did not govern the case, in a suit that the same act declared too late to be maintained.' A right may be waived or lost by a failure to assert it at the proper time, (Bwnet v. Des-1 monies, 226 U. S. 145), but when a party has meant to insist on all the rights it might have, such a result would be unusual and extreme. The record shows a case to which the Act of 1908 did not apply, . . . and which the earlier Act of 1906 probably could not affect. ... It also shows that the action was brought too late, and that the defendant insisted upon that point, although it had not pleaded what was apparent on the allegations of the declaration and the admissions of the answer. In dealing with the enactments of a paramount authority, such as Congress is, within its sphere, over the States, we are not to be curious in nomenclature if Congress has made its will plain, nor to allow substantive rights to be impaired under the name of procedure. (Central Vermont Railway v. White, 238 U. S. 507, 511.) But irrespective of the fact that the act of Congress is paramount, when a law that is relied on as a source of an obligation in tort, sets a limit to the existence of what it creates, other jurisdictions naturally have been disinclined to press the obligation farther.” (p. 200.)
In Seaboard Air Line v. Koennecke, 239 U. S. 352, an action was brought by the widow for the benefit of herself and children. South Carolina had a statute similar to Lord Campbell’s Act. In view of testimony brought out on cross-examination of plaintiff’s witness, she asked leave to bring the case under the federal act, the declaration not disclosing under which statute the action was brought. The amendment was allowed and the defendant obj ected to going on with the trial, but counsel refusing to make the plea of having been taken by surprise, the trial was ordered to proceed. It was held that the trial court may have considered that the defendant was endeavoring to get a technical advantage. It was held that the cause of action arose under a different law by the amendment but the facts were the same whichever law gave them effect and that it was not error to allow the amendment. In Chicago, Rock Island Ry. v. Wright, 239 U. S. 548, an employee was injured when taking an engine from Phillipsburg, Kan., to Council Bluffs, Iowa, and it was held that the responsibility of the company was covered by the federal act and that it was error to submit the case to the jury under the state statute of Nebraska where the action was brought. There, however, the action was by the personal representatives, and it was held that as the employer was not prejudiced by the difference between a federal and state case the error in treating it as under the latter instead of the former was not prejudicial and therefore the judgment was affirmed. No question was raised as to the right of the plaintiff to maintain the action in either event. In Seaboard Air Line v. Horton, 239 U. S. 595, it was held that the distinctions between the assumption of risk and contributory negligence become important under the federal employers’ liability act, “which in ordinary cases recognizes assumption of risk as a complete bar to the action, while contributory negligence merely mitigates the damages.”- (p. 601.) It should be observed that in the case at bar not only was assumption of risk pleaded but an instruction thereon offered and refused. In Pecos & Northern Ry. v. Rosenbloom, 240 U. S. 439, it was decided that when an employee of an interstate carrier is engaged in interstate commerce when killed the right of recovery depends upon the federal act, which permits suits to be brought only by a personal representative. The widow sued for the benefit of herself and her two minor children and recovered a verdict for $7000. It appeared from the evidence that the train in question consisted of thirty odd cars, moving, with one exception, in interstate commerce, and there was enough shown to support a finding that when killed he was engaged in interstate commerce. An instruction to the effect that if so engaged the jury should return a verdict for the defendant on its special plea that the plaintiff had no right to maintain the suit in the capacity in which she sued, was refused. The court said:
“Upon a clearly erroneous assumption that there was nothing on which to base such request, the Supreme Court approved its refusal. The record discloses no proper reason for thus denying plaintiff in error a right claimed under the Federal Employers’ Liability Act. If when struck deceased was employed in interstate commerce, the right of recovery depended upon that Act; and it only permits suit by a personal representative for the benefit of surviving widow or husband and children if there be such.” (p. 441.)
The ruling in Seaboard Air Line v. Kenney, 240 U. S. 489, was that the federal act is paramount and exclusive and recovery under it can be had only in the mode prescribed and by and for the person in whose favor it creates and bestows a right of action.
The court refused an instruction that under the law and the evidence the plaintiff could not recover. The defendant excepted to the ruling of the court striking from the record the testimony of the witness concerning the interstate character of the car.
The question before us goes to the vitals of the plaintiff’s right to maintain the action. Having concluded that the testimony was competent it follows that it either showed pr fairly tended to show that the deceased was killed while engaged in interstate commerce according to the settled federal rule. This being true the state law affords no relief and the federal act precludes the plaintiff from maintaining the action. As the federal act furnishes the sole remedy it follows inevitably that the plaintiff as widow can not maintain an action thereunder. The evidence having been rightfully received and the court thereby apprised of the situation precluding the plaintiff’s right to recover such evidence was improperly and erroneously stricken from the record, because, while not pleaded as a defense, nevertheless it was competent under the general denial to show that the plaintiff was not the proper party to recover, just as it would be in the case under the state law to show that she is not the widow or next of kin as alleged.
The conclusion is reached, therefore, that under the record as it appears here the plaintiff was not entitled to recover because not the proper party under the only statute applicable to the case. It is not necessary to discuss the other points further than to state that there was sufficient evidence to go to the jury and on which to base a verdict. The plaintiff will have to look to the federal employers’ liability act for relief.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
The state of Kansas, through one of its lawfully authorized officers, brought this action in quo warranto, to challenge the authority of the defendant to exercise the powers of a civil magistrate in Reno county under the official title of “judge of the city court of Hutchinson.”
A demurrer to the plaintiff’s petition was sustained. Hence this appeal.
Counsel for the state insist that the statute (Laws 1915, ch. 196) under which the defendant justifies his assumption of judicial powers is unconstitutional, and that the act offends particularly against sections 16 and 17 of article 2 of the state constitution. These provisions of our fundamental law provide:
“Sec. 16. No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.
“Sec. 17. All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of this state.”
The title to the act reads:
“An act relating to cities of the first class not now having a city court creating city courts therein, defining the jurisdiction thereof, providing officers therefor, defining their powers and duties, limiting the jurisdiction of the justice of the peace of said cities and making the judge thereof ex-officio police judge of the city in which said court is located, amending section 952 of the General Statutes of 1909, and section 1 of chapter 96 of the Laws of 1911, and repealing said original sections.”
It may not be necessary to determine this lawsuit on the question of the sufficiency of the title to the act, but as plaintiff’s objections thereto give some outline of the nature of the act, we will incorporate them here:
“First — The title of the act is deceptive; it purports to establish a city court, in all cities of the first class, not having a city court; when in fact the act provides for the establishment of city courts in cities of the first class, in counties having a population of 55,000 and less.
“Second — The title of the act is deceptive in that it purports to establish city courts, when the act in fact establishes county courts. The incumbent can be elected from any point in the county and is elected by the electors of the county, and is paid by the county. It is not a city court, but a county court; his jurisdiction is coextensive with the county.
“Third — The jurisdiction of the justices of the peace in cities of the first class, embraced in the act is diminished to $1, while the jurisdiction of other justices of the peace within the county remains the same; this is a discrimination against justices of the peace in such cities in favor of justices of the peace in the countyin which such city is located.
“Fourth — The title of the act contains two distinct subjects: the creation of courts in cities of the first class not now having a city court, and the amendment of section 952 of the General Statutes of 1909, and section 1, chapter 96 of the Laws of 1911, and repealing the original sections. The amending of section 952 of the General Statutes of 1909 and repealing the original section is a distinct and separate subject from creating courts in cities of the first class, and is in no way connected with the subject of a city court in cities of the first class.”
The act provides that in each city of the first class in counties of 55,000 population or less, in which there is not already a city court, a city court is established; but the act is not to apply to any city of less than 16,000 population, nor in any county which' is a separate judicial district unless adopted by a vote of the people at an election called by the board of county commissioners upon a petition of ten per cent of the county electors.
Some of the principal details of the act relate to this new court’s jurisdiction and to the scope of its powers over various kinds of litigation. It provides a form of process and procedure peculiar to itself and differing in some important details from the established procedure in other inferior courts of the state. It also makes some important changes in substantive law effective in the counties which fall under its operation. No bond is required from the plaintiff in garnishment proceedings. An individual garnishee must answer in five days, but a corporation garnishee may have ten days to answer. Special provision is made for subjecting a debtor’s assets to garnishment proceedings considerably different from that which prevails elsewhere throughout the state. In one place (§7) the act says that process shall be issued to the sheriff, chief of police or any constable; elsewhere, in sections 13 and 14, the process is to be directed to the sheriff or constable. Process may also be served by plaintiff personally or by registered mail. No costs shall be taxed which might have been avoided “by making service according to provisions of this act.”' (§23.)
On demand for a jury trial the plaintiff must deposit one dollar for each juror required, instead of fifty cents, as required in the district court. (Gen. Stat. 1909, §3692; The State v. Hoover, 78 Kan. 863, 98 Pac. 276.)
Judgments may be opened at any time within ten days after the levy of an execution.
No bond for appeal to the district court is required unless ordered by the district judge.
In all cities controlled by this act the judge of this court shall be ex officio the city police judge.
Certain election laws and other statutes are amended to conform to the general plan of this act. In doing so, however, we note that the act changes the qualifications of the officers of all city courts (§5) in Topeka,. Wichita, Atchison, Coffey-ville, Kansas City and elsewhere where city courts were established by special acts prior to the constitutional amendment of 1906. Hereafter such officers need only be residents of the county — not necessarily residents of their respective cities as heretofore. Some independent statutes thus affected are: Laws 1897, ch. 107, § 4, creating the city courts of Kansas City; Laws 1899, ch. 125, § 5, creating the city court of Atchison ; Laws 1899, ch. 126, § 3a, creating the city court of Coffeyville; Laws 1899, ch. 128, § 5, creating the city court of Leavenworth; Laws 1899, ch. 129, § 4, creating the city court of Topeka; Laws 1899, ch. 130, § 5, creating the city court of Wichita.
It need hardly be said that courts approach the consideration of questions challenging the constitutionality of statutes very much predisposed to sustain the enactments. And where the alleged defect in an act lies only in the fact that it is special and not general, the courts heretofore have commonly left the responsibility for such acts with the legislature, whose membership is as solemnly bound to observe the provisions of the constitution as are the justices and judges of the commonwealth. With the adoption of the constitutional amendment of 1906, however, an added duty was imposed upon the judiciary — the duty of determining whether an act of the legislature is repugnant to the provisions of section 17 of article 2. It will be observed that the constitutional provision does not absolutely forbid special legislation. It provides that all laws of a general nature shall have uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted. Now it may be readily conceded that those cities which, like Hutchinson, have greatly developed in population and in the diversity and extent of their interests and concerns in recent years are as much in need of city courts, or of some local courts more efficient than those of a justice of the peace,- as were Topeka, Atchison, Coffeyville and the other cities which were supplied with city courts by special acts prior to the amendment of 1906. There is no doubt of the power of the legislature to meet the situation of Hutchinson and all cities which now or may hereafter attain-its importance by a general act, and yet leave undisturbed the courts created by lawful special acts heretofore. (Board of Com’rs v. AEtna Life Ins. Co., 90 Fed. 222; Dickinson v. Freeholders of Hudson, 71 N. J. Law, 589, 58 Atl. 182; Evans v. Phillipi, 117 Pa. St. 226, 11 Atl. 630; Road in Cheltenham Township, 140 Pa. St. 136, 21 Atl. 238; 36 Cyc. 989.)
But what have w'e here? In counties of 55,000 population or less, having cities of 16,000 population or more, where no city court now exists, a court is created by the act, not for the city but for the county. The people who fortunately or unfortunately reside in such a county, although they may reside ten, twenty or thirty miles from the city of the requisite population, are subjected to the jurisdiction of such a court. That is to say, they are, if the county in which they reside is one of two or more comprising a judicial district. If more or less fortunately their county is a single judicial district, the establishment of such a court in their midst is left to their election. But we must note that not all the people residing in a county of 55,000 population or less having one or more cities of 16,000 population or more will come under the operation of this act. All the people of such a county who reside in cities of less than 16,000 population are exempt from its operation, “Provided,” says section 1, “this act shall not apply to any city of less than 16,000 population.” This would sometimes result in part of a county falling under its provisions and part of it outside its control. It would take considerable temerity to declare that such an act makes a reasonable classification of counties, even after every logical allowance is made in consideration of the special wants and needs of any local situation.
What reason based on classification of counties can be advanced why a plaintiff in a county governed by this act should be permitted to harass his debtor ■ by garnishment without bond when all other citizens elsewhere in the state must give-such assurance to prevent unconscionable demands ? Why may a corporation in such a county have ten days to- answer in. garnishment and an individual have only five ? Why, too, may not both corporation and individual garnishees have the time-accorded to garnishees elsewhere? (Civ. Code, §'233; Jus. Civ. Code, § 54b.) Why should the salutary provisions of law to prevent oppression of debtors operative throughout the state-(Laws 1913, ch. 232) not apply to debtors in any counties of 55,000 population or less, having one or more cities of 16,000 population or more? And if justifiable where the county does not constitute a separate judicial district, then why not in a. county which does constitute a separate judicial district? Are-debtors more or less needy in such a county as this act is designed to cover ? And if this act serves any useful purpose in a county, in its cities of more than 16,000 population and in its rural districts, why not also in its cities of less than 16,000-population ? Is there anything peculiar in such a county that warrants a departure from the ordinary procedure for the-administration of justice?
All these questions answer themselves. The attempted classification of counties in which this act is operative by legislative decree, and in which it may or may not become-operative dependent upon the vote of the people, and those in which it is not to become operative at all, is unreasonable, grotesque and absurd. Whatever the necessities of an exceptional case like Hutchinson, which we may assume to be the excuse for the act, we would be recreant to our duty did we not declare that this act is repugnant to the constitutional provisions of section 17 of article 2 of the constitution.
It was a great misfortune, when it became manfest that the courts of the justices of the peace were inadequate to furnish a satisfactory system for administering primary justice in the larger cities of the state, that the legislature saw fit to relieve the situation by piecemeal in the enactment of special laws. The vice of the justice of the peace system is statewide, and the granting of relief to the larger cities by special acts has greatly postponed the relief to which the state as a whole is entitled. The larger cities, already supplied with city courts, naturally have little concern in the wider undertaking of general reform in the administration of the law in primary courts. (Attorney-general’s Biennial Report, 1911-1912, pp. 17, 18.)
But uniformity in the administration of justice is imperative if even-handed justice is to be administered in this commonwealth. It was to check the growing mischief of special legislation that the final responsibility of determining the uniformity clause of the constitution was taken from the legislature and imposed upon the courts. It was said of France before the Revolution that a traveler changed laws every time he changed horses in journeying from Calais to Marseilles. We must all do our part to prevent the growth of such a ridiculous legal and judicial system in Kansas. If the constitutional mandate is courageously and consistently enforced there is no danger of its establishment here.
This court on various occasions has construed and applied the amendment of 1906; and but few special acts and none which violate the uniformity clause of the constitution affecting the substantive law and procedure for the administration of justice have been countenanced since its adoption. (Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583; Gardner v. The State, 77 Kan. 742, 95 Pac. 588; Deng v. Scott County, 77 Kan. 863, 95 Pac. 592; The State v. Nation, 78 Kan. 394, 96 Pac. 659; The State v. Nelson, 78 Kan. 408, 96 Pac. 662; The State v. Hutchings, 79 Kan. 191, 98 Pac. 797; The State v. Lawrence, 79 Kan. 234, 246, 247, 100 Pac. 485; Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885; Gustafson v. McPherson County, 88 Kan. 335, 128 Pac. 186; Railway Co. v. Neosho County, 89 Kan. 209, 131 Pac. 581. See, also, In re Hendricks, 60 Kan. 796, 57 Pac. 965.)
While the act under consideration is couched superficially in general terms, the peculiar restrictions of its application dependent upon population of counties and of cities within such counties, inclusion and exclusion of cities, inclusion and exclusion relative to judicial districts, inclusion and exclusion dependent upon popular vote, all demonstrate that it is intended to operate only in Reno county and possibly one or two others. It is therefore special legislation. (Rambo v. Larrabee, 67 Kan. 634, syl. ¶ 4, 73 Pac. 915; Board of Education v. Davis, 87 Kan. 286, 291, 292, 123 Pac. 885.) In all such cases, where the átate challenges the validity of an act, or the exercise of official power under it, the justification devolves upon the respondent. (The State, ex rel., v. Fair Association, 89 Kan. 238, 246, 131 Pac. 626.) This has been the law from time immemorial. (King v. John Arundel, Year Books, 30 & 31 Edw. I [1302], 220; King v. Burgesses of Lancaster, Year Books, 30 & 31 Edw. I [1302], 222; King v. Fissekyr, Year Books, 30 & 31 Edw. I [1302], 224 ; Rex v. Leigh, 4 Burrow’s Rep. [8 George III] 2143-2145; The King v. Hill, 4 Barn. & Cress. [6 George IV] 426-432; Rex v. Boyles, 2 Raym. [3 George II], 1559; The Case of the Abbot of Strata Mercella, 5 Coke [33 & 34 Eliz.], 40; Partridge’s Case, 2 Leonard [30 Eliz.], 212; Sir Jervis Clifton’s Case, 1 Goboldt [28 & 29 Eliz.], 93. See, also, 3 Bouv. Inst. p. 320 et esq.; 6 Comyn’s Dig. p. 163 et esq.; 5 Bac. Abr. p. 173; 1 Tidd’s Practice, p. 654.)
No justification for this special act is shown, and none can be judicially conceived. It violates the uniformity clause of the state constitution. It attempts to cover subjects which not only can be governed by general laws but which have been governed by general laws since the foundation of the state, and is clearly at variance with the provisions of section 17 of article 2 of the state constitution.
The reluctance of this court to declare an act void on account of a defective title is well known. Perhaps another and more serious question is also involved. Section 16 of article 2 of the constitution provides that no bill shall contain more than one subject. In this act we have: (a) the establishment of the court and its jurisdiction and procedure; (b) changes in the substantive law of the state; (c) changes in the laws of the election of officers-of city courts wholly unrelated to the courts to be established under this act. Whether these three, main topics are so germane or pertinent to each other as to constitute one subject is worthy of study and reflection but need not be decided.
Since we have seen that this act (Laws 1915, ch; 196) is clearly violative of section 17 of article 2 of the constitution, it follows that the judgment of the district court must be reversed, with instructions to enter judgment for the state. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
J. O. Simmons commenced this action against Effie Shafer and Ivan Shafer, her son, to cancel a deed executed by the plaintiff to J. W. Shafer, husband of the defendant, for the expressed consideration of $1000, and to have his title quieted in the land included in the deed.
The plaintiff, who was about seventy years old, feeble and unable properly to take care of himself or his farm, entered into an oral agreement with J. W. Shafer, a grandson, who had been living with the plaintiff, whereby he was to live with the plaintiff on the farm, care for and support him during his life, and in return he was to give Shafer an undivided one-half interest in the land. At that time a deed was executed conveying to Shafer the half interest in fee, subject to a mortgage of $650, half of which the grantee assumed and .agreed to pay, and the deed was recorded. The remaining half interest was conveyed to Loyd Shafer, another grandson. After deceiving their deeds the two Shafers placed an additional incumbrance of $2000 upon the land. The plaintiff lived with and was taken care of by J. W. Shafer until the latter’s death. Shafer, having married in the meantime, left surviving him his wife and child, the defendants herein, and the plaintiff continued to live with them about three months, after which the defendants went elsewhere to live, being unable to live in friendly relations with the plaintiff. He brought this action claiming that the defendant had failed to fulfill the agreement to support and take care of him, which was the sole consideration for the deed. The trial court decided that the defendants had not complied with the contract, but held that as there had been a partial performance of the consideration the deed should not be canceled. The court decreed, however, that the plaintiff should have all the rents and profits from the land for the rest of his life, provided that he should pay the taxes and the interest on the mortgage debt against the land; and it was further decreed that the defendants should renew the mortgage from time to time during the life of the plaintiff for an amount and at a rate of interest not greater than those of the present mortgage debt. While the appeal was pending the plaintiff died and the administrator of his estate was substituted.
The plaintiff contends that the trial court having found noncompliance with the terms of the contract which formed the consideration for the transfer of the title, it necessarily follows that the deed should have been canceled, and that the judgment rendered is outside of the issues and unauthorized. The deed purported to convey an absolute title. There was'delivery, and every step necessary to a transfer of the legal title was taken. The actual consideration was the agreement of the grantee to provide future care and support for the plaintiff. It appears that these conditions were faithfully carried out for a period of about five years and as long as the grantee lived. During this period improvements were made upon the land and the incumbrance was enlarged by the grantee and his brother, to whom the other half of the land had been conveyed. No claim was made that there was any misrepresentation or fraud in the making of the contract which resulted in the transfer of the title to J. W. Shafer. There was no failure to observe its terms by either party to the contract, nor were there any grounds for canceling the deed during the lifetime of the grantee. The plaintiff and the widow were unable to live together harmoniously. Each complained that the other was inconsiderate and quarrelsome, which made life together unbearable, and it appears that each had some grounds for complaint. The testimony is that the widow left the plaintiff in possession of the house on the farm, and at the time of leaving made some effort to have a renter and another care for the plaintiff. For a few months the plaintiff lived there with the grandson Loyd, who had been given the other half interest in the farm, and afterwards he occupied one part of the house and the tenants the other part. There is testimony that the defendant stated she would pay for his care and maintenance, and that she also told him to go to a store and get anything that he wanted and she would pay for it. She left considerable fruit and some groceries in the house at the time she left the farm, but it appears that no other contribution was made by her towards his maintenance during the short period (about three months) between the time she left the farm and the commencement of this action. There was, therefore, partial noncompliance with the terms of the contract which formed the consideration for the deed; but a partial failure of consideration does not necessarily work a forfeiture or require the cancellation of the deed. (Holland v. Holland, 97 Kan. 169, 155 Pac. 5; McCardle v. Kennedy, 92 Ga. 198, 17 S. E. 1001, 44 Am. St. Rep. 85; Russell v. Robbins, 247 Ill. 510, 93 N. E. 324; Dixon v. Milling, 102 Miss. 449, 59 South. 804; Knight v. Jones, 93 S. Car. 376, 76 S. E. 978; Elliott v. Elliott, 50 Tex. Civ. App. 272, 109 S. W. 215; Note, 43 L. R. A., n. s., 916.)
In case of fraud in the making of such a contract, or of a purpose on the part of the grantee to avoid the obligation to provide future support, or where it is the only effective remedy, a court of equity is justified in setting aside a conveyance. (Martin v. Martin, 44 Kan. 295, 24 Pac. 418.) The plaintiff appealed to a court of equity for relief, and the parties interested being before the court it is justified in settling the .rights of the parties upon equitable principles. There having been full performance of the contract for years, the death of the grantee, a change as to the improvements and mortgage "debt against the land, and an offer by the defendant to provide .for the care and maintenance of the plaintiff after it became ■evident they could not live together in friendly relations, the (court naturally concluded that equity required a remedy other than absolute forfeiture and the cancellation of the deed. Equity is satisfied where the rights of the parties to the contract are substantially attained or provided in the decree. The care .and maintenance which J. W. Shafer undertook to give to the plaintiff and which were contemplated under the contract were largely of a personal nature. These the plaintiff had, so long as Shafer lived. Upon his death the obligations of course passed to his widow. Whoever may have been at fault, it is reasonably clear that she and the plaintiff could not live under the same roof. It was incumbent upon her to provide proper care and maintenance for the plaintiff in some practical way, and these she offered to furnish. The decree provided that his care and maintenance should be made a charge upon the land and that all the rents and profits, except taxes and interest charges, should be devoted to this purpose so long as he lived. This substantially accomplished the purposes of the original contract between the plaintiff and Shafer and does not appear to be inequitable. (Holland v. Holland, ante, p. 698, 158 Pac. 1116.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
W. P. McCullough sued the Missouri Pacific Railway Company for damages resulting from the misrouting of wheat shipped by him from points in Kansas to Monticello, Ind. He recovered a judgment for $652.86, and the defendant appeals. He had directed the grain to be sent by way of Chicago, and. from there to its destination by the Panhandle route, but it was not moved through Chicago, and was. delivered to the Panhandle company at Logansport, Ind. The tariff of the Panhandle route gave a privilege of milling in transit with respect to all grain destined to milling stations such as Monticello, which originated west of Chicago and was there delivered to that company. This privilege, if the shipping directions had been followed, would have inured to the benefit of the buyer at Monticello, by virtue of his contract with the shipper, and would have been worth to him five and a half cents to the hundred pounds. In settling with the plaintiff, the buyer made a deduction at that rate from what he would have been required to pay if the wheat had been routed as agreed upon, so that he could have had the benefit of the privilege referred to. The plaintiff submitted to the deduction and his action against the defendant is to recover on account of the loss he théreby suffered.
The defendant maintains that the state courts have no jurisdiction of the subject matter — that the plaintiff can obtain relief for any injury he has suffered only through the interstate commerce commission or the federal courts, because his claim is based upon the interstate commerce act, and upon the provisions of a tariff filed thereunder. No attack however is made by the plaintiff upon the validity of any regulation adopted and no administrative problem is involved. The jurisdictional question presented is substantially the same as that considered in a recent case (Elevator Co. v. Railway Co., ante, p. 478, 158 Pac. 859), and upon the same reasoning, and upon the authorities there cited, we hold that the action was properly brought.
The defendant, which was the initial carrier, contends that the misrouting was the act of a connecting road to which it had properly made delivery; that by the terms of the bill of lading it was exempted from liability for the fault of a subsequent carrier; and that this provision was valid because the prohibition of the Carmack amendment against contracts of that character relates only to claims for physical loss and damage to the property shipped. The record shows that in response to a question by the trial judge as to the issues involved, a stipulation having been entered into as to a part of the facts, the attorney for the defendant said: “Our position is that we did misroute this stuff; that is agreed. But the amount of damage which the plaintiff suffered is not the amount of the milling in transit privilege, but anything else that he can prove, for the reason that the milling in transit privilege does not apply to plaintiff, and these shipments are not covered by it.” This statement relieved the plaintiff of the necessity of proving the defendant’s responsibility for the misrouting.
The defendant also maintains that whatever injury resulted from the loss of the milling in transit privilege fell upon the consignee, and created no cause of action in behalf of the shipper. The plaintiff was entitled to receive the agreed purchase price upon the delivery of the wheat in such manner as to give the purchaser the advantage of that privilege. Not having made delivery in this manner, he was compelled to submit to a corresponding reduction — he suffered a loss of the amount involved, through the failure of the defendant to perform its duty, and therefore had a right to look to it for compensation. The carrier’s mistake reduced the selling value of the property shipped. The case is not analogous to one (for ■instance) where a demand for increased damages for the loss •of goods is based upon a contract for their sale at a price above the market. In that situation the carrier’s liability could not be affected by a special contract of which it had no notice. (6 Cyc. 450, 529.) Here the loss of an advantage that would have accrued under the published tariff if the grain had been routed as directed was one reasonably to have been anticipated from a misrouting — it followed as naturally as damage results from sending goods by a route involving, unnecessarily high charges for carriage. The amount of the damage claimed was not fixed by the contract of the shipper and consignee, but by the Panhandle route tariff.
The milling in transit privilege is exercised in this manner : Upon the delivery of the grain at the mill the full rate to that point is paid; if the product is shipped in a specified time, a stated portion of this payment is credited upon the charges for such further shipment. The defendant asserts that here it was shown that the purchaser of the wheat from the plaintiff had a greater amount of credits of this character than he had opportunity to use within the time limited, and therefore would have derived no advantage from the privilege if it had been preserved. This was a question of fact. A part of the evidence tended to show that the privilege would have been used if it had been available, and the decision of the trial court on the point is therefore final.
A more serious objection to the judgment is raised by the contention that by the terms of the tariff the milling in transit privilege is only available where a reference thereto is noted on the shipping orders and bill of lading, and where shipment is made to a mill, and that here no such notation was made, and the wheat was consigned to the shipper’s order. The shipment may perhaps, in view of all the circumstances, be regarded as having been made to the mill within the meaning of the requirement in that regard. The question whether the absence of the notation was fatal to the privilege depends upon the construction of the language of the tariff. Four of its paragraphs, numbered as indicated, read thus:
“(1) Grain to be milled or malted, may be shipped from a station on the P. C. C. & St. L. Ry., or the C. & M. V. R. R., or from stations on a direct connection of the P. C. C. & St. L. Ry. or the C. & M. V. R. R., as specified herein, to another station on the P. C. C. & St. L. Ry. or the C. & M. V. R. R. and eastward thereof, taking the same or less rate basis to eastern cities on the following conditions:
“ (2) Shippers must note on their shipping orders ‘For Milling or Malting Purposes’ and the billing agent must make a like notation on his way bills and bills of lading.
“(.3) The Grain must be shipped in carloads, to a mill doing business at a station on the P. C. C. & St. L. Ry. or the C. & M. V. R. R. and must be way billed at tariff rate to milling station, and the tariff rate must also be shown on the bill of lading issued for the grain.
“(4) The agent at milling station-must take up the bill of lading on delivery of the grain, and on receiving from the mill within six months after the delivery of the grain thereto, car load shipments of the products of such grain, limited to:” [An enumeration of various products of grain is given, followed by directions as to manner of settlement.]
The paragraph numbered (12) reads as follows, the clause the effect of which is in dispute being italicized:
“(12) Grain in carloads, originating at points beyond Chicago, Ill., and delivered to this Company at Chicago or Chicago Junctions, named above, when destined to milling stations on the P. C. C. & St. L. Ry. or C. & M. V. R. R., to be milled or malted, will be subject to the conditions herein named; and the net rate will be the joint through rate on Grain Products from point of shipment on rate basing point to destination, plus one-half cent per 100 pounds (minimum charge $3.00 per car), provided the milled product is forwarded via the P. C. C. & St. L. Ry., or the C. & M. V. R. R., to Western Termini points located on the P. C. C. & St. L. Ry., Pennsylvania Company or Pennsylvania Railroad, or to points taking same rates (see list of points below), or to points east of Western Termini via Union Line, as shown in Union Line Bases for Freight Rates, I. C. C. 11, supplements thereto and reissues thereof, and in the absence of joint through rates the net rate will be published re-shipping rate on Grain Products from Chicago or Chicago Junctions, plus one-half cent per 100 pounds (minimum charge $3.00 per car). The Western Termini referred to above are: Allegheny, Pa.; Bellaire, Ohio; Buffalo, N. Y.; Erie, Oil City, Pittsburg, Titusville, Pa., and Wheeling, W. Va.”
The plaintiff contends that the twelfth paragraph is complete in itself; that the requirement concerning the notation on the shipping directions and bill of lading applies only to shipments originating on the Panhandle Route, or at stations on a direct connection therewith. This interpretation involves regarding the words “subject to the conditions herein named” in the italicized clause as relating to the conditions named in that particular paragraph. We feel constrained to hold that the expression quoted refers to the conditions named in the entire tariff of which this paragraph is a part. The punctuation and the connective “and” seem to suggest additional conditions rather than an enumeration of those referred to in the preceding clause. The requirements set out in the earlier paragraphs, especially those concerning the notation, and the char acter of products to which the privilege applies, are as well adapted to shipments originating on one side of Chicago as on the other, and without them the provisions of paragraph twelve appear rather incomplete.
If (as we have concluded) the privilege of milling in transit was available only where the words “For Milling or Malting Purposes” had been noted upon the shipping orders and bills of lading, the absence of such notation was of course destructive of the right in the present case, for the carrier could allow no advantage to the shipper except in accordance with the published tariff, and the plaintiff therefore suffered no injury from the misrouting of his shipments.
It results that a reversal must be ordered, and the cause remanded with direction to render judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment rendered against them on notes given for the purchase of a gasoline engine and plows. The order for the engine, signed by defendant Robert M. Hay, had printed thereon the following warranty:
“The seller warrants the within described engine to do good work, to be well made, of good materials, and durable if used with proper care. If upon trial, with proper care, the engine fails to work well, the purchaser shall immediately give written notice to the seller, stating wherein the engine fails, shall allow a reasonable time for a competent man to be sent to put it in good order, and render necessary, and friendly assistance to operate it. If the engine can not then be made to work well, the purchaser shall immediately return it to said seller and the price shall be refunded which shall constitute a settlement in full of the transaction.
“Usé of the engine after three days, or failure to give written notice to said seller, or failure to return the engine as above specified, shall operate as an acceptance of it and a fulfillment of this warranty. No agent has power to change the contract of warranty in any respect.
“This express warranty excludes all implied warranties, and said seller shall in no event be liable for breach of warranty in an amount exceeding the purchase price of the engine. If part proves defective, a new part will be furnished on receipt of part showing defect free.”
Five notes were sued on in separate causes of action. The defendants pleaded that oral warranties were fraudulently made by the plaintiffs at the time of the execution of the notes; that the engine was not as warranted; that they offered to return it to the plaintiffs; and by way of set-off and counterclaim pleaded damages in the sum of $1500. The defendants further alleged that the note declared on in the third cause of action had been altered without their consent, and that it was in fact for a smaller amount when executed; that there should be a credit of $200 on the note declared on in the fourth cause of action, and that it was given for plows purchased to be used with the engine and which were of no value to the defendants, because of the failure of the engine to comply with the warranties concerning it. There was no defense as to' the note declared on in the fifth cause of action. The defendants further alleged that they tendered the engine back to the plaintiffs in due time and manner after they had made repeated efforts to make it work. They gave mortgages on personal and real property to secure the payment of the notes. They asked judgment against the plaintiffs for such sum as might be found due, and for cancellation and surrender of the notes and mortgages.
When the case was called for trial, the court required the defendants to elect as between their right to recover damages for breach of the warranty and their right to a rescission of the contract of sale. The defendants elected to rely on rescission of the contract. The attorneys agreed that the jury were not to find and include in the general verdict the amount of the notes mentioned in the first and second causes of action in the plaintiffs’ petition. Special questions were submitted concerning these causes of action.
The engine was purchased in 1912. The return, or the offer to return, was made in 1914. New notes were given for a part of the notes in 1913.
The defendants argue that the court erred in requiring them to elect as to their defenses, and especially as to the time and manner of requiring such election. The defendants set out the facts constituting their defense, and sought to rescind the contract for the purchase of the property and to recover their damages occasioned by the breach of the warranty. They argue that the facts and circumstances surrounding this case made it difficult for their counsel to determine which' of these remedies would best protect the rights of the defendants until the evidence had been introduced. They say, “Of course there can be no recovery of damages as incidental to both rescission and affirmance in the same case. This would be absurd, and calls of course for an election at some stage of the trial.”
In Hall v. Manufacturing Co., 92 Kan. 538, 141 Pac, 592, an election as between damages and rescission was required and was made, and that case seems to recognize the regularity of such a proceeding, but the question now presented was not considered. Weybrich & Co. v. Harris, 31 Kan. 92, 1 Pac. 271, recognizes that where personal property sold is not as warranted, the purchaser has two remedies: “(1) He may return the property and rescind the contract; or, (2) he may affirm the contract and sue for damages for the breach of warranty.” (Syl. ¶ 1.) In McCormick v. Roberts, 32 Kan. 68, 3 Pac. 753, an action on promissory notes given for the purchase of a self-binding harvester, the defendant pleaded a warranty of the harvester, that the warranty failed, that he offered to return the harvester, and set out damages sustained by reason of its failing to work as warranted. A motion was filed by the plaintiffs asking the court to direct the defendant to elect on which of the two defenses stated in the answer he would stand. The court required the defendant to construe his answer. The answer was then construed as containing the defenses of rescission of the contract and such damages as might be recovered thereunder. In the syllabus this language is found:
“In directing the jury, the court charged that no rescission or repudiation of the contract had been shown, but that the defendant was entitled to recover damages from the vendors for a breach of their warranty, if a warranty had been established, and a breach thereof had been proved. Held, under the circumstances, the charge to the jury was erroneous, misleading, and prejudicial.”
The reason given by the court was that—
“The answer, as construed, allowed only proof of rescission of the contract, and the damages therefor; yet the jury were directed upon another and entirely different theory of the ease.” (p. 72.)
(See, also, Cookingham v. Dusa, 41 Kan. 229, 230, 21 Pac. 95; Cummings v. Sigerson, 63 Kan. 340, 65 Pac. 639; Ehrsam v. Brown, 76 Kan. 206, 211, 91 Pac. 179; Hay Press Co. v. Ward, 89 Kan. 218, 223, 131 Pac. 595; Hull v. Manufacturing Co., 92 Kan. 538, 141 Pac. 592; Lyman v. Wederski, 95 Kan. 438, 148 Pac. 642.)
The defendants cite a dissenting opinion in Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894. The majority opinion follows the rule, stated in-the headnotes in the Pacific Reporter in these words:
“The purchaser of a machine, on finding that it is not as warranted, may refuse to accept, rescind the sale and recover what he has paid on the price, or retain the machine and set off against the price such damages as naturally result from the breach of warranty, though he may not pursue 'both remedies simultaneously.” (¶ 1.)
The rule declared by the supreme court of Washington in that case is in harmony with what this court has said. The rule contended for by the defendants would compel this court to overrule a number of its former decisions. There was no error in requiring the election.
The conclusion here reached governs other complaints of the defendants that concern instructions, and which will not be further considered.
The defendants next argue that the court committed error in excluding evidence which tended to explain and excuse the delay in returning the machine and the waiver that might be inferred from making payment and giving renewal notes. This evidence was not produced at the hearing of the motion for a new trial, and under section 307 of the code of civil procedure no error that may have been committed in the exclusion of such evidence can now be considered. (Scott v. King, 96 Kan. 561, 567, 152 Pac. 653; Stout v. Bowers, 97 Kan. 33, 154 Pac. 259; Collins v. Morris, 97 Kan. 264, 266, 155 Pac. 51.)
The defendants complain of several matters which involve the oral warranties that they contend were made by the plaintiffs. These complaints are based on instructions requested by the defendants and which the court refused to give, and on instructions given by the court, and on a special question which the court refused to submit to the jury. They depend on the correctness of the ruling of the court in excluding evidence of these oral warranties. If the court was correct in excluding that evidence, the law on this subject was correctly stated to the jury, and the instructions and special question concerning the same matter were properly refused. To determine the correctness of the ruling of the court in ex- . eluding that evidence, it was necessary to produce the evidence on the motion for a new trial. It was not so produced and can not now be considered. For that reason, the other acts of the court based on that evidence can not be considered.
Complaint is made that the court refused to submit an instruction on the question of the plaintiffs’ waiver of the defendants’ delay in returning or offering to return the engine. This may be met by a quotation from the journal entry of judgment, as follows:
“Thereupon the court announced that with the consent of all parties, general verdicts would be submitted to the jury upon the matters involved in the third, fourth and fifth causes of action, and that special findings would be submitted to the jury relative to the first and second causes of action and that the court would then enter thereon such judgment as it might deem proper, to which all parties assented.”
In view of this agreement, any error in refusing the instructions requested by the defendants does not justify a reversal of the judgment.
5. Another complaint, in the language of the defendants, is as follows:
“The court erred in denying appellants’ request for certain special findings by the jury. These questions were as follows, and we complain of the refusal to submit Nos. 1, 3, 4, 7, 8, 9, 10, 11.”
Then follow the questions requested by the defendants. They make no argument concerning this complaint. Questions 2, 5, and 6 were submitted and answered. These three questions, together with other questions submitted and answered by the jury, apparently find all the facts necessary for the court to know in order to render judgment under the agreement made on the trial.
Other matters are complained of. They have been examined. There is not sufficient merit in them to warrant a reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it for damages for killing live stock on its right of way. This is the second appeal. (Martin v. Railway Co., 92 Kan. 595, 141 Pac. 599.)
The defendant contends that the evidence and the special findings of fact show that it was not negligent. The special findings are as follows:
“1. Did plaintiff’s mule and mares go over the cattle guard at defendant’s railway crossing of said railway before they were struck by the engine of train Number Twelve? Ans. Yes.
“2. If you answer the last aforesaid question ‘yes’ • state what stock belonging to the plaintiff passed over the cattle guards at defendant’s railway crossing before they were struck by the engine of train Number Twelve. Ans. One grey mare, two bay mares and one mule.
“3. Where were plaintiff’s mule and mares situated with reference to the west cattle guard of the railway crossing at the time they were struck by the engine Number Twelve? Ans. On the defendant’s right of way, west of the west cattle guard, at Pomeroy crossing.
“4. At what time were plaintiff’s mule and mares struck by the engine of train Number Twelve? Ans. Between 4:30 p. m. and 6 o’clock p. m., January 27th, 1912.
“4%. If you find that the defendant railway company, its officers, agent or employees, were negligent, then state in what respect or respects they were negligent. Ans. In allowing the ice and snow to accumulate in the cattle guard, and not removing said ice and snow.
“5. Was there any snow or ice in the west cattle guard at the Pomeroy crossing on January 27th, 1912? Ans. Yes.
“6. If you answer the last, above question ‘yes’ then state what was the depth of the snow or ice in the west cattle guard of the Pomeroy crossing. Ans. from 214 inches to 2% inches.
“7. If you answer question five ‘yes’ state what was the condition of the snow or ice in the cattle guard at the Pomeroy crossing on January 27th, 1912. Ans. It was settled down and packed.
“8. If you find there was snow or ice in the west cattle guard at the Pomeroy crossing, then state how far did the prongs or spikes in the west cattle guards at the Pomeroy crossing extend above the snow or ice. Ans. From % to % of an inch.”
The evidence was conflicting concerning the condition of the snow and ice on the cattle guards, but there was sufficient evidence to support the finding of the jury in that matter. We fail to see wherein the findings of the jury numbered 4% and 5 are in any way inconsistent with the other findings. Negligence in this case was a question for the jury to determine under proper instructions. The jury determined that question.
The defendant contends that the judgment against it should not exceed $400, the amount for which judgment was rendered in favor of the plaintiff on the former trial. That judgment was reversed and the cause remanded for a new trial on the issue of negligence. The trial from which the first appeal was taken resulted in a judgment in favor of the plaintiff for $400 for killing two horses and a mule that had crossed a cattle guard from a public highway onto the defendant’s right of way, and were there killed. The last trial, from which the present appeal was taken, resulted in a judgment in favor of the plaintiff for $575 for killing three horses and a mule. When the case was here before • (Martin v. Railway Co., 92 Kan. 595, 141 Pac. 599), this court said:
“The court instructed the Jury, in substance, that if they found from the evidence that defendant failed to construct cattle guards which were reasonably sufficient to prevent animals from coming upon its right of way, or that defendant permitted its cattle guards to become obstructed so as to enable animals to pass over them, and that the plaintiff’s stock crossed over the same and were killed, the verdict should be for the plaintiff. This, as we have seen, was erroneous, and a new trial must be ordered upon the issue of whether the defendant’s failure to remove the snow and ice from the cattle guards in question was, under all the facts and circumstances, negligence. Two questions may be regarded as finally determined: one against the defendant, namely, that the herd law was not in force in the county; and the other in favor of the defendant, that it had erected and maintained a lawful fence and sufficient cattle guards at the highway where the animals entered the right of way, and these issues are not to be retried. . . . The judgment will be reversed and the cause remanded for a new trial upon the issue of negligence.” (pp. 601, 602.)
All issues other than that of negligence were determined by the former trial and judgment. On the last trial it was not proper for the plaintiff to show that he had three horses and a mule killed, or to show a difference in the value of the animals that were killed. These matters had been tried and determined. In Railroad Co. v. Thisler, 96 Kan. 184, 150 Pac. 580, this court said:
“Where a cause is remanded for the determination of a single fact, questions not involved therein will not be considered on an appeal from the judgment rendered on its determination.” (Syl. ¶ 2.)
No judgment for a sum greater than $400 could be properly rendered. The present judgment must be modified by reducing the amount thereof to $400, and the judgment is affirmed for that amount. | [
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The opinion of the court was delivered by
Mason, J.:
On August 11, 1910, Rebecca Eisenbise brought action against J. M. Eisenbise for divorce and alimony. On September 2, 1910, the parties by their attorneys signed a stipulation which was filed in the case, providing that on or before October 1, 1910, the defendant should pay to the clerk of the court $250 for the benefit of the plaintiff’s attorney, in full payment of her claim for her attorney’s fees. The stipulation has never been complied with. On October 17, 1910, the case was dismissed at the cost of the defendant. On April 1, 1914, Al Keiser filed a motion asking for an order requiring the defendant to pay the $250 provided in the stipulation to him as the assignee of the plaintiff’s attorney. On June 23, 1914, the court, upon notice, heard the motion and sustained it, rendering a judgment ordering the money to be paid into court within sixty days. On August 11, 1914, the defendant filed a motion to set aside this judgment on the ground that it was void. On December 4, 1914, this motion was sustained, and from this last order an appeal is taken.
If at or before the dismissal of the suit an order had been made for the payment of the money, the omission to make an entry of the fact could, of course, be corrected at any time, and the court could direct the record to be amended so as to show the truth in that regard. (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530.) But on December 4, 1914, the court undertook, not to direct a record to be made of a judgment that had been rendered in 1910, but to render the kind of a judgment that might have been, and perhaps should have been, but was not rendered at that time. Jurisdiction for that purpose was lost with the expiration of the term at which the case was dismissed. The payment of the amount named in the stipulation might have been enforced in a separate action (Gossett v. Patten, 23 Kan. 340), but not by any further order in the proceeding which had been dismissed. The judgment for the payment of the money, being void, was properly set aside at a subsequent term. (Civ. Code, § 598.)
The order setting aside the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
In 1879 a railway was constructed through a tract of land of 1600 acres in Pottawatomie county. This land for some years past has been the farm or ranch of T. J. Eddy. In 1911 the legislature enacted:
“Section 1. Whenever any railroad, either steam or electric, shall run through any farm so as to divide it, such railroad at the request of the owner of such farm, shall construct, keep and maintain, a crossing either on, over or under such railroad track, at some convenient place, which crossing shall be so constructed as to permit ready and free crossing thereon, by animals, farm implements and vehicles.
“Sec. 2. That through the fences on either side of the right of way of such railroad, at such crossing, such railroad shall construct, keep and maintain gates so as to permit the passage of animals, farm implements and vehicles.
“Sec. 3. If upon such request being made, such railroad shall fail, neglect or refuse to construct such crossing and gates, or to keep the same in repair, then the owner of such farm may, by appropriate action, compel such railroad to so construct, keep and maintain such crossing and gates, or such owner may construct or repair such crossing and gates, and then collect from said railroad the cost thereof.” (Laws 1911, ch. 244.)
On the assumption that the railroad and utilities acts vest in the public utilities commission the power to hear and determine controversies of this character, Eddy filed a complaint before the commission, showing his need of a crossing over the right of way of the railroad company to give him convenient access between the two parts of his farm. . Upon a hearing, the commission issued an order:
“It is now therefore ordered, that the respondent, The Union Pacific Railroad Company, do, without' cost to complainant, construct, keep and maintain a farm crossing, either over or under the tracks of said railroad company at the point designated in the complaint and as shown- on the blue print filed herein and marked exhibit No. 1, being at a point 1380 feet west of the respondent’s mile post No. 79 on its Leavenworth Western Branch, and that respondent comply with this order within thirty days from this date.”
Promptly thereafter the railroad company brought suit to vacate the order, alleging that it was unlawful, unreasonable and void, that the act of 1911 (ch. 244) was unconstitutional, that the order and the act deprived the company of its property without due process of law and without compensation, and that it denied the company the equal protection of the law, contrary to the fourteenth amendment, etc., and that the commission had no jurisdiction to make the order. The district court vacated the order, holding that it was unreasonable and unlawful, and in an opinion delivered therewith held that while the act was valid, the property of the railroad company should not be taken without compensation nor should the company be required to pay the cost and maintenance of the crossing.
The public utilities commission appeals, but before considering its contentions, it may shorten the discussion to quote the view of the railroad company:
“Chapter 244 can be upheld as a valid act provided it is so construed as to require the person applying for a crossing and gates to pay for them. The court will, of course, when two constructions are possible, use the one that will make the statute valid. We therefore urge that the decision of the court below, as far’ as the construction of the statute is concerned, is correct and that its judgment should be affirmed.”
The commission contends: (1) The public utilities commission had authority to make the order. (2) The statute is constitutional and does not deprive the railroad company of its property without just compensation or due process of law. (3) Chapter 244 of the Laws of 1911 is a proper exercise of the police power and applies to railroads constructed before its enactment as well as those constructed after its enactment.
It will be observed that the act of 1911 does not confer jurisdiction on the public utilities commission for its enforcement. It merely says that the owner of a farm whose request for a crossing is denied by the railroad company may maintain an appropriate action to compel the railroad to construct the crossing or he may construct the crossing himself and collect the cost from the railroad company.
The public utilities commission claims jurisdiction under sections 7186, 7188 and 7196 of the General Statutes of 1909, and sections 1 and 2 of chapter 238 of the Laws of 1911. Other provisions of law are to the same effect. A quaere as to the power of the public utilities commission on a somewhat analogous case was suggested in The State, ex rel., v. Railway Co., 95 Kan. 22, 30, 147 Pac. 801.
Section 7179 of the General Statutes of 1909, which is part of the principal railroad regulatory legislation of, this state, prior to the enactment of the public utilities act, and which is neither superseded nor repealed by the latter, provides:
“The provisions of this act shall be construed to apply to and affect only the transportation of passengers, freight, express matter and cars between points within this' state, by railroad and express companies and all other common carriers, not including street-railway companies.”
The act of 1911 (Laws 1911, ch. 244, § 3) gives the owner of the farm, whose request for a crossing is refused, a right to bring “an appropriate action” to compel the railroad company to construct such crossing, or to construct it himself, and collect the costs.
A proceeding before the public utilities commission is not an action in the ordinary sense of the term. The commission can not compel action by the railroad. In any matter within its statutory jurisdiction it may order what ought to be done, but the compulsion must be procured through a judicial tribunal (The State v. Johnson, 61 Kan. 803, 60 Pac. 1068) ; and the collection of a claim like the cost of a farm crossing, if governmental aid is required thereto, is purely the exercise of a judicial function.
Moreover the statute of 1911 gives the owner the absolute right to a farm crossing, and that right is not dependent upon the discretion of the public utilities commission. Surely under the plain terms of this statute the farm owner could not be denied a crossing because the commission did not think it necessary or expedient that he should have one, nor could the plain terms of the statute authorizing him to maintain an action to compel the railroad to construct the crossing or authorizing him to construct a crossing himself be emasculated by making these rights dependent on the considerate sanction of the commission.
And yet we see many expedient reasons why the public utilities commission should have primary control of matters of this sort. If no central state control is exercised over the construction of private farm crossings (and there must be hundreds of them in this state), there may be a want of uniformity in farm crossings; there may be defective construction of crossings; there may be so many of them that the safe and expeditious transportation of passengers and property will be seriously impeded and human life imperiled. These considerations would almost tempt a court to read this power into the statutes conferring authority upon the commission to regulate and supervise the affairs of the railroads. We must not do so, however, for we know very well that such is the business of the legislature and not of the judiciary.
The right of a farmer to a private crossing over a railroad and to recover the cost of it from the railroad company is of no more public concern than the right of a farmer to have the railroad build a fence along its right of way to protect his stock from damage by the railroad (Gen. Stat. 1909, §§ 7075-7077), and yet it would hardly be contended that the enforcement of his rights under that act was dependent upon the discretion or sanction of the public utilities commission. The duties of the public utilities commission relating to the enforce ment of the railroad laws of the state have to do with those matters which affect the general public, and except where the statutory language is clear that the legislature intended to extend the commission’s power to the exercise of jurisdiction on matters of mere private rights, it has no jurisdiction. It had no jurisdiction in the case at bar, and the result is that the district court did not err in vacating the order of the commission requiring the appellee to construct this farm crossing at its own expense. (Saylor v. Crooker, 97 Kan. 624, syl. ¶ 4, 156 Pac. 737.)
The other interesting questions need not be considered.
The judgment is affirmed. | [
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Per Curiam:
This action was.tried in the district court of Sedgwick county on May 15, ■ 1896, at the May term. Both parties waived a jury. The defendant appeared by J. H. Richards, one of its attorneys, and after the evidence was introduced it requested that said cause be continued until the 25th day of June, 1896, for argument. This was consented to by the court, on condition that counsel for both parties would at the same time, and in the same argument, argue their motion for a new trial, and that, whichever way the court decided, the defeated party should immediately file his motion for a new trial, and it would be overruled without further argument. On this condition the cause was continued until the 25th of June. On that date Mr. Smyth, one of the attorneys for the defendant, announced to the court that the defendant did not wish to make an argument; the court then said to him that he would render .judgment for the plaintiff, and that the defendant should file its motion for new trial and that it would be overruled. Judgment was then rendered for the plaintiff. At the May term, and on the 27th day of June, the defendant filed its motion for a new trial, which was overruled. A journal entry was prepared, containing the proceedings had, giving the defendant 120 days to make a case for the court of appeals. This journal entry was put upon the records of the court. On December 15, at the September, 1896, term of court, the defendant filed its motion asking the court to set aside its order of June 27, overruling its motion for a new trial. Upon the hearing of this motion some evidence was introduced tending to show that the defendant did not know that the journal entry of judgment had been filed, nor that .the motion' for a new trial had been overruled, until after the 120 days given it to prepare a case had expired. Upon the hearing the court made the following statement:
“I want to state right here, in connection with this, before you commence the argument, that when this case in controversy came up for trial, Mr. Richards, who represented the defendant, prior to the commencement of the trial, informéd the court that he would like to make an argument upon the matter and requested that after the evidence had been introduced that the court would postpone the matter until he could do that; that he would want to get some authorities and would like to make a very extended argument. The court informed Mr. Richards, at that time, that that would be agreeable to the court with the understanding upon the part of the counsel in the case that if time were given as requested that after the court had decided the matter, whichever way the court decided it, the party losing the case would file a motion for a new trial, and then no time would be taken upon that, but overrule it without further argument, and as I wanted one argument to answer both purposes. That was agreed to by the counsel. .Sometime after that Mr. Smyth, in the court room, informed the court that Mr. Richards did not care to make an argument, and I said to him then, all right, if he does n’t care to I will give judgment for the plaintiff in the case; and I directed Mr. Symth to file a motion for a new trial and informed him that the same would be overruled: that when the journal entry was presented to the court in regard to overruling the motion for a new trial, 120 days was allowed the defendant to make and serve a case-made.”
The court thereupon set aside the order of June 27, overruling the motion for new trial by the defendant, and the motion was reargued, and overruled by the court. The defendant brings the case here alleging error.
The record indicates that the only reason the court had for setting aside the order of June 27, overruling the motion for a new trial, was that the defendant might have an opportunity to prosecute an appeal. This is not sufficient. Each party has a right to have the proceedings of court,' regularly had and entered, remain, unless set aside for some reason known to the law. We have been unable to find any reason justifying the court in setting aside the order overruling the motion for a new trial.
Mr. Smyth, one of the attorneys for the defendant, was in court, and was informed by the court that judgment would be rendered for the plaintiff, and that he should file a motion for ' a new trial, which would be overruled, under the argument had on .May 15. The district court, after a term of court has passed at which it rendered judgment and overruled a motion for a new trial, has no power to set aside the order and grant a rehearing of the motion for a new trial. (Kauter v. Fritz, 5 Kan. App. 756, 47 Pac. 187; Kingman v. Chubb, 8 Kan. App. 167, 55 Pac. 474; Lookabaugh v. Cooper, 5 Okla. 102, 48 Pac. 99.
The order of the court setting aside its order overruling the motion for a new trial was without jurisdiction and void.
The cause will be affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a lawsuit between rival lessees of gas and oil rights in a farm in Labette county.
On February 22, 1913, the owner leased the oil and gas rights in her farm to E. L. Rugh for one year and as much longer as oil and gas might be found in paying quantities. The lease in part provided:
“2. (a) Should gas be found in paying quantities to pay to the Lessor the sum of One Hundred Dollars per year for each well from which gas is being sold or utilized off of the premises, payable quarterly in advance from time well or wells are completed, and agree to drill second well within eight months, provided first well is of commercial value.
“1. (a) Second party agrees to commence well on the' above described premises within 90 days from the date hereof, and in case of failure to do so this lease shall become null and void and without any further effect whatever, unless the Lessee shall pay for the delay at the rate of One Dollar per acre per annum thereafter until a well shall be commenced.
“(b) Such payment shall be made to the Lessor’s credit in Mound Valley State Bank at Mound Valley, Kansas.
“2. That Lessee shall have the right at any time to terminate this lease by the payment of one dollar and by surrendering this lease, and shall thereafter be released from all obligations and liabilities under same.”
On August 13, 1913, the owner made a second lease of the' oil and gas rights in the farm to A. B. Bloom and George M. Bowen for two years and as much longer as gas and oil might be found in paying quantities. This lease provided:
“Provided, a well is not commenced on said premises within 90 days from the date hereof, unavoidable accidents and delays excepted, then this grant shall become null and void, unless second party shall pay to the said first party a yearly rental of Eighty ($80.00) Dollars, payable quarterly in advance for each quarter thereafter such commencement is delayed.
“It is expressly agreed that the payment of all moneys due under this lease may be made by cash or check, to M. E. Hassell, by deposit to her credit in the Mound Valley State Bank, of Mound Valley, Kansas. . . . Second party agrees to be responsible for all action that may be brought from former lease given 2-22-1913.
“It is further mutually agreed by and between said party of the first part and said party of the second part that the said party of the second part shall have the right to surrender this lease to said party of the first part at any time upon payment of One Dollar and that thereupon this lease shall cease and determine, and be and become absolutely null and void, and no longer binding upon either party.”
On January 17, 1914, Bloom and Bowen brought this action against Rugh and his associates under the first lease, setting up their lease of August 13, 1913, and alleging:
“5. That on or about the - day of November, 1913, the said defendants, conniving and acting together, did over the protest of these plaintiffs, and that of the said lessor, M. E. Hassell, without any right whatever so to do, wrongfully and fqrcibly enter upon said premises, and thereafter over the further protest of these plaintiffs, and in utter disregard of plaintiffs’ rights, said defendants proceeded to and did drill a well upon said leasehold premises which produced, and ever since the completion thereof, to-wit on the --- day of November, 1913, has been producing natural gas in paying quantities, the exact volume of which plaintiffs are unable to state, but on information and belief avers that the same is two million cubic feet per day of twenty-four hours,” etc.
Their petition prayed for a receiver, for ouster of the first lessee, for possession, accounting and damages.
Defendants’ demurrer was overruled, whereupon they answered setting up their prior lease, asserting their full compliance therewith in all its terms and their reliance thereon. They prayed for the cancellation of the second lease, that their own title be quieted and that the second lessees be enjoined from interfering with the defendants’ use and occupancy. The reply was a general denial.
The district court made findings of fact and conclusions of law and gave judgment for the plaintiifs who claimed under the second lease. The defendants who claim under the first lease appeal. The errors they assign are the rulings of the court on the demurrer to the petition and demurrer to the evidence and to the court’s interpretation of the law relating to defendants’ lease.
The briefs of both plaintiifs and defendants in this case show an unusual amount of legal lore, each tending to show that the lease of his opponent is invalid. Technical diiferences there may be between an oil and gas lease and the ordinary contract of lease between landlord and tenant, but we perceive no ground for abrogating the ordinary rule that a claimant to any interest in realty can not depend upon the weakness of his adversary’s title but must rely on the strength of his own, and the other ancient rule, “first in time, first in right.” As to the right of the lessee to terminate the lease upon payment of one dollar, the one contract is as bad as the other. This provision might be important in an action between the lessor and lessee. We do not discern its relevancy between rival lessees, both holding lease contracts which have this identical stipulation.
Governed by the precedents of this court, there appears to be no infirmity in defendants’ lease. • The land was leased for one year. The duration beyond a year need not be considered. A consideration was recited in the deed. The forfeiture clause did not provide that if a well were not commenced in ninety days the rent, was to be paid in advance and that the first rental payment should be due in ninety days. “One dollar per acre per annum” were the words of the contract fixing the liability for delay. This language clearly indicated that the lease was to be of some considerable duration, and indicated the possibility of delay in commencing operations, and since the specific dates when the rates were payable were wanting payments at reasonable intervals should be interpreted. (Smith v. Steele, 96 Kan. 106, 150 Pac. 519.) Moreover, the ninety days to commence a well expired May 22, 1913, and the lessor did nothing to assert her right of forfeiture for nearly three months thereafter, at which time she executed the second lease to plaintiffs binding them at the same time to shoulder the burden of overcoming the till then unforfeited rights of her first tenants. It is familiar law that a right of forfeiture must be promptly asserted or it is waived. Even the lessor’s belated attempt to exercise the right of forfeiture by the granting of the second lease three months after the termination of the time to commence the well was not unequivocal but merely an. assignment of that right to the second lessees, since their grant was subject to the condition:
“Second party agrees to be responsible for all action that may be brought from former lease given 2-22-1913.”
Counsel for plaintiffs say:
“The appellants’ lease is what is termed among the oil and gas fraternity an ‘unless lease’ in contradistinction to what is termed an ‘or lease.’ ”
A nice distinction is sought to be made between the case at bar and that of Rhodes v. Oil Co., 80 Kan. 762, 104 Pac. 851, which was an “or lease” contract. The cases decided by this court have not attached any importance to such subtleties of language, but have been determined upon their individual and substantial merits; and the later drift of the decisions sfiows a decided tendency to frown on forfeitures where the rights of the parties insisting thereon can otherwise be adequately protected. (Edwards v. Gas Co., 65 Kan. 362, 367, 69 Pac. 350; Monfort v. Lanyon, 67 Kan. 310, 72 Pac. 784, Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625; Ringle v. Quigg, 74 Kan. 581, 87 Pac. 724; Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803; Davis v. Gas Co., 78 Kan. 97, 96 Pac. 47; Work v. Gas Co., 79 Kan. 118, 126, 98 Pac. 801; Gas Co. v. Harris, 79 Kan. 167, 100 Pac. 72; Myers v. Shertzer, 82 Kan. 275, 108 Pac. 105; Howerton v. Gas Co., 82 Kan. 367, 108 Pac. 813; Wheeland v. Gas Co., 82 Kan. 862, 109 Pac. 187; Collins v. Oil & Gas Co., 85 Kan. 483, 118 Pac. 54; Smith v. Steele, 96 Kan. 106, 150 Pac. 519.)
This case is much like Smith v. Steele, supra, and is easily distinguished, from O’Neill v. Risinger, 77 Kan. 63, 93 Pac. 340, where the forfeiture was based upon a breach of the contract to pay the annual rent in advance if a well were not drilled within the agreed time.
It was not error to overrule the demurrer since the defendants’ lease was not then before the court. Possibly the case might have been shortened by motions for judgment on the pleadings. Proceeding, however, to consideration of the evidence, as the trial court did, we think the defendants’ lease was not void for uncertainty as to the time when the rent should be paid on failure to commence the well (Smith v. Steele, 96 Kan. 106, 150 Pac. 519), nor do we think the evidence of the lessor as to the oral agreement that she was to receive rent in ninety days if the well was not commenced was of sufficient' consequence to warrant the adjudication of forfeiture since she did not act promptly to assert her right of forfeiture.
Long before the expiration of the definitely fixed term of the lease, one year, the well had been completed and the payments for the delay had been made. In such a situation the principles of equity should not be used to assist a purchaser of a mere debatable right of forfeiture. The judgment is reversed and the cause remanded with instructions to render judgment for defendants. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a child’s portion of real estate which would have descended to the plaintiff as an heir of Geraldine Ogden, deceased, had an agreement to adopt the plaintiff been performed. The plaintiff recovered, and the defendants, claimants of the property as surviving husband and son of Geraldine Ogden, appeal.
The cause was tried before the court without a jury. The testimony of numerous witnesses was received and a number of documents were introduced in evidence. The law of the state of Illinois, where the contract was made, was one of the facts concerning which evidence was introduced. The j ournal entry of judgment recites that a motion for a new trial was filed and overruled, but the motion is not preserved and the grounds of the motion are not stated. The defendants make the following assignment of error and no other:.
“The court below erred in rendering judgment for appellee, when by the evidence of appellee and all of the evidence in the case judgment should have been rendered for appellants.”
This assignment of error means that the decision is contrary to the evidence, one of the grounds for a new trial under the civil code. (§ 305.) The court can not consider the error assigned. (Ferguson v. Graves, 12 Kan. 39, syl. ¶ 4; Hover v. Cockins and McCarroll, 17 Kan. 518, syl. ¶ 1; Typer v. Sooy, 19 Kan. 593, syl. ¶ 1; Shadwell v. Hamilton, 24 Kan. 266, per curiam opinion; Ervin v. Morris, 26 Kan. 664, syl. ¶ 1; Morse v. Brunswick & Co., 34 Kan. 378, per curiam opinion, 8 Pac. 398; Illingsworth v. Stanley, 40 Kan. 61, syl. ¶ 1, 19 Pac. 352; White v. Douglas, 51 Kan. 402, syl., 32 Pac. 1092.)
In the case last cited the syllabus reads:
“Where the only errors assigned are such as should be brought to the attention of the trial court by a motion for a new trial, and where the record merely shows that a motion for a new trial was made and overruled, but the motion is not preserved, nor the grounds therefor stated, no review can be had.”
In the opinion it was said:
“It devolves upon a party who asserts that error is committed to affirmatively show it, and we can not say that the district court erred in denying the motion for a new trial unless the grounds upon which it was based are shown; neither can we inquire into any error alleged to have been committed during the trial, either in the admission or exclusion of testimony, nor as to the sufficiency of the testimony to sustain the findings or the judgment.” (p. 403.)
The decisions cited were rendered when one of the grounds for a new trial was that the decision was not sustained by sufficient evidence (Civ. Code, 1868, § 306), but the two forms of expression mean substantially the same thing. (Knote v. DeShirley, 84 Kan. 738, 115 Pac. 539.)
It is said the court should assume that the motion contained all the statutpry grounds. Such an assumption would be contrary to the court’s experience. Motions for new trials do not uniformly contain all the statutory grounds In the case of Culp v. Steere, 47 Kan. 746, 28 Pac. 987, an application was made to amend the motion to include an omitted ground. ' In recent years attorneys have shown a disposition to omit from their motions all grounds which they do not intend to urge, and any ground for a new trial may be waived by not including it in the motion for a new trial. Besides this, the assumption would contravene the requirement that error must be made to appear affirmatively.
The case is an interesting one, and the court has looked into both the facts and the questions of law involved far enough to be satisfied that the decision of the district court would be sustainable if the merits were properly open to consideration. It was not essential that an agreement to adopt be established by direct evidence. (Anderson v. Anderson, 75 Kan. 117, 127, 88 Pac. 743; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Scholz v. Hoth, 94 Kan. 205, 146 Pac. 339.) The evidence of the plaintiff included facts and circumstances raising an implication that the Ogdens did agree to adopt the plaintiff, which was strongly reinforced by the conduct of the parties at the time and subsequently. Assuming that the agreement was not in writing, it was not an agreement to convey land or any interest in land, under the statute of frauds of the state of Illinois, as in the case of Pond v. Sheean et al., 132 Ill. 312, 23 N. E. 1018. It was an agreement to create a status, a domestic relation. In the case of Crumley v. Worden, 201 Ill. 105, 66 N. E. 318, cited by the defendants, the child was not taken under an agreement to adopt. The evidence was as follows:
“On the Sunday following the expiration of the two weeks the mother came and said to Mr. and Mrs. Worden, ‘Don’t you think you can take this child as your own?’ that Mrs. Worden said: ‘When she gets old enough to have company of her own she may make me trouble; we don’c know what blood is in her veins, and I am in no hurry; we will wait; when she gets old enough to see if she cares and loves me properly we will adopt the child and she can have our property. ’ ” (p. 111.)
The ruling was that without adoption the child could not inherit as an heir, as this court holds. (Malaney v. Cameron, ante, p. 620, 159 Pac. 19.) The evidence was sufficient to show that the attitude of the foster parents toward the plaintiff had not changed when they removed to Kansas. The plaintiff was then only seven years old, and if the agreement had been specifically to give property it was then governed by the lex loci solutionis rather than by the lex loci contractus. The plaintiff performed all the duties growing out of the relation ship which the foster parents had created, rendering service, obedience ánd companionship for about twenty-eight years, and a court of equity would be lacking in efficiency if it were unable to protect the plaintiff from the consequences of the omission of duty in the matter of formal adoption.
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 by the Western Silo Company against M. V. Carter to recover the contract price of a wooden silo, sold and delivered to Carter. The defense was that the plaintiff had failed to comply with its contract and in a cross-petition defendant asked for damages sustained by loss of crops on account of the plaintiff’s delay in shipping the silo and also on account of defects in it. . On June 10, 1912, the defendant had given his order, written upon one of the blanks furnished by the company’s agent, calling for a silo sixteen feet in diameter, made of yellow pine and priced at $238, to be shipped by August 1, or at the plaintiff’s earliest convenience. The order provided that the plaintiff was to be notified in writing of any missing or defective parts upon receipt of the silo, that it should have a reasonable time in which to replace such parts and that when such replacements were made its responsibility would cease. It appears that the defendant, relying on the contract to deliver the silo," had planted a crop for ensilage and under the direction of Wingert, the plaintiff’s agent, had built a foundation upon which to erect a silo of the size purchased from the plaintiff.' The silo was not received by the defendant until the middle of September, although it seems the plaintiff could have- shipped it by August 5. The defendant noticed when the shipment arrived that the materials were defective, but with the assistance of the agent he undertook to place the silo upon the foundation and it was then found that there were three staves lacking so that it was too small for the foundation, that the guy rods were too short, that the hoops did not fit, that the staves did not join tightly and that there were knot holes in the material. ■ It appears that while the defendant was waiting for the silo to arrive, his crop, which had already ripened, dried up to such an extent as to reduce its value as ensilage about fifty per cent, but notice of this was not given to the plaintiff at the time of delivery. The attention of the agent was called to the defects, but instead of waiting longer for the delivery of staves from the plaintiff’s factory at Des Moines, the defendant secured some extra ones in Emporia and endeavored to make the silo large enough to fit his foundation. After the crop was placed in the silo, the defects in the latter caused a loss of about forty tons of ensilage alleged to be of the value of about $225. The first written notice given by the defendant to the plaintiff was in a letter written January 18, 1918, after which considerable correspondence on the matter was had between them. At the trial the plaintiff demurred to the cross-petition of the defendant. The court overruled the demurrer, but permitted the defendant to amend his cross-petition instanter, so as to set forth more fully the nature and extent of the loss resulting from the delay in shipping the silo. He was confined to proof of such damages, the court excluding all testimony of damages to ensilage after it was put in the silo. The court offered to permit a continuance at the defendant’s cost on account of the amendment, but the plaintiff objected to a continuance and elected to go to trial at that time. The defendant recovered judgment for $60, this being the difference between the damages which the jury found he had suffered, amounting to $175, and the reasonable value of the silo as shipped, which the jury found to be $115.
The plaintiff complains of the ruling of the court permitting an amendment of the defendant’s answer and cross-petition in respect to the damages resulting from the delay in the delivery of the silo. After the jury had been impaneled a question arose as to whether the defendant might offer evidence to prove damage to the ensilage after it had been placed in the silo, .and the court held that such evidence was not admissible. Application was then made by the defendant for permission to amend his pleading as to the.damage to his crop resulting from the delay in the arrival of the silo. It was already alleged in his pleading that at the time of ordering the silo he informed the plaintiff’s agent, making the sale, that he had planted a crop especially for ensilage purposes, and must have the silo about August 1, and further that the crop was greatly damaged because it was not delivered at the agreed time, but he had not stated the amount of the damage to his crop because of this delay. The amendment was made by interlineation and it only added: “That said crop had-deteriorated in value in that at the time said silo should have arrived if shipped within a reasonable time under said order, it would have been worth $700 while at the time said silo actually arrived, said crop was worth not to exceed $360.” The allowance of the amendment was well within the discretion of the trial court. To protect the rights of the plaintiff in case it was not prepared to meet the evidence as to the extent of the damage resulting from the delay, the court offered to continue the case, but the plaintiff refused this offer and insisted on proceeding with the trial at that time. Manifestly the plaintiff has no cause to complain of the amendment.
The principal contention in the appeal is that the defendant was not entitled to a reduction in the price of the silo because of the defects in it, nor to any damages which resulted from the delay in the delivery of the silo. It is first contended that the defendant failed to give the plaintiff notice of the defects promptly upon discovering them, as he had agreed to do, and that therefore he could not rely on the defects as a defense. In the order for the silo the defendant stated that if upon its receipt he found parts of it to be defective or missing he would at once notify the plaintiff in writing and give it a reasonable time to replace such parts. The plaintiff’s agent had notice of the defects and missing parts and tried to help the defendant to overcome them. On account of the lateness of the season and the rapid drying up and deterioration of the corn, staves were obtained in the vicinity. The lapse of time necessary to have sent to Des Moines where the plaintiff’s factory was located to obtain staves would have greatly lessened the value of the crop planted for ensilage and correspondingly increased the resulting damages. Acting upon the suggestion of the agent, the defendant undertook to make the best out of the material received and to reduce the constantly accruing damages. Where a thing sold does not meet the conditions of the contract between the parties, and the defect is one that it is practicable to repair, it is the duty of the purchaser to take reasonable steps to have the repairs made and do what he reasonably can to diminish the damages to which the seller will be liable. (Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444; Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717, 26 Am. St. Rep. 101; Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360; Brown v. Cairns, 63 Kan. 584, 66 Pac. 639.) It is said that Wingert was only a selling agent and had no authority to act for the plaintiff in supplying the missing staves or in overcoming defects. He seems to have been vested with authority beyond that of selling the silo, as the plaintiff’s letter stating that the silo had been shipped recited that “all papers in connection with this ■ shipment have been forwarded to Samuel Wingert, Emporia, Kan., with instructions to turn over to you,” and in that letter it was also stated that “if there is an actual shortage, or defective part, it will be replaced if settlement is made promptly, accompanied by full explanation of such shortage or defective parts.” The defendant, it seems, wanted to have the shortage and defective parts made good before making a settlement for the silo. Assuming, however, that Wingert had no authority to see that a complete silo of the kind contracted for was delivered to the defendant or to provide against the obvious defects in the silo that was shipped to the defendant, and also that the stipulation that written notice of defects or missing parts should be given “at once” required an earlier notice than the one given by the defendant in January following the delivery of the silo, we still see no serious objections to the recovery of damages by the defendant. The express purpose of the notice was to enable the plaintiff to supply the missing or defective parts and to give it a reasonable time in which to do it. Upon receiving the notice that was given in January, the plaintiff raised no question about the lateness of the notice, but stated in reply: “Advise me in regard to this matter, and we will figure out how many staves you will have to have, and will furnish them to you free of charge.” In an exchange of letters regarding the matter, which continued until August 20, 1913, the plaintiff stated that while it did not wish to assume the expense of sending a man to the defendant’s place to inspect the silo, it did, in a number of letters, indicate a willingness to supply the necessary staves and make good the defects upon receiving definite information as to what was lacking or defective. If there was unnecessary delay in giving the notice it was certainly waived by the plaintiff. As we have seen, the purpose of the notice was to furnish the plaintiff reasonable time to replace the parts, and when it did receive notice it negotiated with the defendant about a year after the time for delivery in regard to replacements of parts, and certainly it had a reasonable time in which to make such replacements. The defendant did not ask for a rescission nor undertake to turn the silo back upon a warranty, but accepted it with the défects and asked damages because the silo was not up to the standard of the one which the plaintiff agreed to furnish him. He accepted the material as it was and asked plaintiff to pay the damages which directly resulted from the breach of its contract. This he could do. Plaintiff insists that the damages resulting from the delay and the drying up of the crop are special in their nature and not recoverable unless the plaintiff had knowledge at the time that the contract was made of the circumstances which might occasion loss in case of delay. It is well known that a silo is designed and used to preserve green fodder and not for the storage of that which is ripe and dry. The defendant’s silo was purchased for that use and to be delivered at a fixed time. The plaintiff must be held to have been acquainted with the seasons and stages of vegetation in the growing season and it must have known that ordinarily corn becomes ready for use as ensilage in August and in this climate frequently ripens and dries up long before the time the silo was delivered to the defendant. Plaintiff also knew that silos are not made in every county or obtainable in any local market. It could not help but know that the damages claimed by the defendant are those which naturally follow a delay at the season of the year when the delivery was made, and such as we may reasonably infer were within the contemplation of both parties when the contract was made.
In Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444, as in this case, the material was purchased for a special purpose and to be delivered at a stated time, but it was not delivered at the time agreed upon, and when delivered did not comply with the contract of purchase. The defendant in that case, as here, accepted the material and undertook to lessen the damages for which he intended to hold the plaintiff liable. It was held that the plaintiff was responsible for such damages as were-the direct result of his failure, although the damages exceeded the difference between the contract and market prices. It was said:
“Under special circumstances, as where merchandise is purchased for a particular purpose, and to be delivered at a specified time, and where it. can not be purchased in the market at the place of delivery, and these facts are known to the vendor, the general rule of damages would be inadequate to compensate the vendee for a delay or a non-delivery of the merchandise, but in such a case he would be entitled to recover the actual loss directly and naturally resulting from the default of the vendor.” (Syl. ¶ 3.)
The same view was taken in Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513, where many other cases are cited, and in stating the rule it was said:
“It is a general rule that damages may be recovered when they arise naturally — that is, according to the usual course of things — from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it.” (Syl. ¶1.)
The damages allowed herein appear to be the reasonable and natural consequence of the breach of the contract and may reasonably be supposed to have been in the contemplation of both parties when they entered into the contract.
Although complaint is made of the instructions of the court they fairly presented the issues in the case to the jury. The order required the shipment of the silo on or before August 1, 1912, or “at your earliest convenience.” In one of the instructions the court properly advised the jury that the term “at your earliest convenience” used in the contract, meant that it should be shipped on August 1, or within a reasonable time thereafter, and that what was a reasonable time should be determined from the evidence and the circumstances of the case, including the use intended to be'made of the silo or the material purchased. We find nothing substantial in the objections to other instructions nor in the rulings on the admission of evidence.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment of the trial court overruling a demurrer to the plaintiff’s petition. The action was upon an account more than three years old at the time the action was commenced, and the sole question is whether a certain letter written by the defendant to the plaintiff was sufficient to toll the statute of limitations. The letter was as follows :
“Yours letter of the 14th at hand and will say in reply that it is impossible for me to pay any on my account at present I am sorrow that I have got in such shape but I have done all that I can my beets did not make as much last year as I thought and they put me in the hole but I will try and scratch out if you will only be pacient with me I have no beets this year I put out lots of oats and barley and it is no good I Cant get me seed back it looks discouring to me at present. I thank you for past favors and hope that I may be able to pay you soon.”
It is contended that this letter does not remove the bar of the statute because it does not sufficiently identify the debt referred to therein and does not contain a direct and unqualified acknowledgment of an existing debt for which the defendant was liable. To revive a debt by this means there must be an explicit written acknowledgment signed by the debtor, of an existing debt upon which he is then liable. (Civ. Code, § 28; Hanson v. Towle, Adm’r., 19 Kan. 273; Haythorn v. Cooper, 65 Kan. 338, 69 Pac. 333; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479; Hamilton v. Beaubien, 92 Kan. 944, 142 Pac. 245.)
In the Beaubien case it was held that no particular form of acknowledgment was essential to revive the debt, but that the writing must be a direct and unequivocal admission that the party is then liable for the debt upon which the action is brought. It was further held that a general reference to an indebtedness and the expression of a desire to raise the money with which to pay it would not remove the bar of the statute. The defendant’s letter refers to an account without stating the character or amount of it or the time when it became due and does not plainly identify the debt. In 25 Cyc. 1330, it is said:
“The general rule is that an acknowledgment or promise to pay, in order to take the debt out of the statute, must satisfactorily and certainly appear to refer to the very debt in question.”
Apart from the indefiniteness of the reference to the account or debt, the letter does not measure up to the rule laid down in the cases cited as to what acknowledgment will waive the bar of the statute of limitations.
In the Towle case the indebtedness referred to was in the form of notes and in the letters relied on for the removal of the bar a reference was made to the notes, a desire to pay them and no question raised as to their validity. The sources from which the debtor expected to obtain money were also mentioned. This letter was a closer approach to an acknowledgment than is that of the defendant herein, but the court held it to be insufficient, saying:
“A mere reference to the indebtedness, although consistent with its existing validity, and implying no disposition to question its binding obligation, or a suggestion of some action in reference to it, is not such an ‘acknowledgment’ as is contemplated by the statute. This must be an unqualified and direct admission of a present-subsisting debt on which the party is liable, and which he is willing to pay.” (p. 281.)
In the letter of the defendant he says in effect that he is sorry that he is unable to pay any on his account at the present time and adds: “I thank you for past favors and hope that I may be able to pay you soon.” The character of the account or what were the past favors the letter itself does not specifically disclose. It does no more than to make a general reference to an indebtedness, and under the cases cited it can not be regarded as a distinct and unequivocal admission of a present-existing debt upon which the defendant is liable and is not such an acknowledgment as is contemplated by the statute.
The judgment of the district court will therefore be reversed and the cause remanded with instructions to enter judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover money alleged to have been appropriated by the plaintiff’s agent and trustee. It was dismissed because the plaintiff failed to comply with an. order to make the petition more definite and certain. The plaintiff appeals.
The substance of the petition, which made up in adjectives and characterizations what it lacked in other respects, was to the following effect: The defendant became agent and trustee for the plaintiff in December, 1907. In December, 1907, the defendant induced the plaintiff to trade real estate for stock in a corporation having an agreed value of $7200. Sometime afterwards the defendant induced the plaintiff to sell the stock by false representations regarding the financial condition of the corporation. The sale was made on October 2, 1908, and the stock was transferred to the purchasers by the defendant under a power of attorney given him for that purpose. The stock was sold for the sum of $7200, $500 of which the defendant received in his own right and the remainder of which he received as agent and trustee for the plaintiff. The defendant has never made settlement with the plaintiff, although often requested to do so. In a second cause of action it was alleged that the defendant, acting as agent and trustee, made a sale of another tract of the plaintiff’s land. A draft for $1000, payable to the plaintiff, was received in payment of the price. The plaintiff gave the draft to the defendant for deposit in a bank of the plaintiff’s choice. Instead of making the deposit he converted the draft, and has never returned the money to the plaintiff, although often requested to do so. With the plaintiff’s money the defendant bought a home for himself. The prayer was that the property be decreed to be held in trust for the plaintiff, that it be conveyed to the plaintiff, and for judgment against the defendant for $8200, with interest from December 2, 1908.
The defendant moved for an order requiring the petition to be made more definite and certain, and the motion was sustained in part. In compliance with the order sustaining the motion, the petition was slightly amplified in several particulars. It was alleged that after the sale of corporate stock the defendant represented to the plaintiff that he had invested the proceeds in land, but it was alleged the defendant refused to inform the plaintiff where the land lay or to give title deeds, in response to demands made upon him. The plaintiff stated she was unable to give the dates of these requests often made for settlement with her for the proceeds of the sale of the corporate stock. It was alleged that a check for $1000, instead of a draft for that sum, was received in payment for the second tract of land sold, and that the defendant cashed the check on February 19, 1908, but the plaintiff stated she could not give the dates of her requests often made for settlement and return of the money. It was alleged that the title to the home which the defendant had purchased with the plaintiff’s money was taken in the name of the defendant’s wife. The prayer was for judgment that this property be held for the plaintiff’s use, for judgment against the defendant for $8200, with interest from October 10, 1908, and for sale as upon execution of the property mentioned.
The order sustaining the motion to make more definite and certain required the plaintiff to state specifically or approximately the dates upon which demands for settlement had been made on the defendant. Because this had not been done a motion was made to strike the amended petition from the files. Before the motion was ruled on the plaintiff again amended her petition as follows:
“Now comes the said plaintiff, by J. C. Milton, her attorney, and for amendment to plaintiff’s amended petition, says: After, and next following the last line of the first page of said amended petition, that she is unable to give more than a guess, as to the time of making demand for settlement on said defendant, for the reason she does not now remember said dates, neither the months or years of such demands; but, that said demand for settlement was last made during the month of December, 1910, as plaintiff verily believes. And for amendment to plaintiff’s second cause of action, as set forth in her amended petition, she says that the check given her by I. C. Moore, for $1,000.00 payable to her order, was drawn at Pratt, Kansas, on February the 17th, 1908, and in the opinion, and to the best of her recollection, was given into the hands of the said defendant, either February 18th, 1908, or the 19th of the same month, as said check was presented for payment by said defendant on the said 19th of February, 1908, as shown on the back of said check. And as to the demands for settlement and payment of said check by said defendant, she being told by said defendant that he had invested the money in other securities for her, she, relying on false statements, gave the matter no further attention, and not until later, did plaintiff realize that she had been swindled, and to the best of plaintiff’s memory, her last demand was in the month of December, 1911.”
The motion to strike was renewed, and in response to it the court made the following order:
“That said plaintiff be allowed ten days from the 17th day of October, 1914, in which to amend by stating the specific date, or if she can not do that, then by stating the approximate date when plaintiff first made demand on defendant for settlement, as alleged in her first cause of action, and on her failure to make said amendment, the first cause of action be dismissed without- prejudice at plaintiff’s cost . . . that the plaintiff further amend said amended petition, and the amendment thereto in ten days from the 17th day of October, 1914, by stating the specific date, or if she can not do that, then the approximate date when the defendant appropriated the Bank Draft, as alleged in the plaintiff’s second cause of action and that she state the specific date, or if she can not do that, then the approximate date when the plaintiff first requested the ' defendant to return to her the Thousand dollars or any part thereof, as alleged in her second cause of action; and that on her failure so to do, within ten days from the 17th day of October, 1914, the plaintiff’s second cause of action be dismissed without prejudice at the cost of the plaintiff.”
The plaintiff was unable to state a cause of action with anymore certainty, and after the expiration of the time fixed in the last order the action was dismissed.
The action was commenced on October 3, 1913, and the purpose of the motion was to develop the- time when the plaintiff’s cause of action accrued. The argument on behalf of the plaintiff is that all the information sought was within the defendant’s own knowledge, and that the defense of the statute of limitations is one of privilege to the defendant which he could and should have raised by answer.
The defense of the statute óf limitations is one of privilege in the sense only that it is personal and can not be pleaded by one person for another. The statute is one of repose, based on public policy, which frowns on the fomenting of litigation over transactions which are old and stale, after documents have been lost or destroyed, memories have become indistinct and witnesses may be dead or beyond reach. No terms of any express trust were pleaded. No agreement or duty to hold, use or manage the plaintiff’s funds for any specific purpose or in any specific way was alleged. On the face of the petition the defendant was simply an agent to sell the plaintiff’s stock and land, and account for the proceeds, and apparently causes of action for the money which came into the defendant’s hands arose in December, 1907, and in February, 1908. Assuming, however, that the relation was such that the defendant was not in default until demand for settlement was made upon him, the date of the demand, noncompliance with which gave rise to a cause of action, was important. The purpose of requiring the date to be stated was not so much to give information to the plaintiff as to give the suit a standing in court. If the petition should not disclose a cause of action maintainable under the statute, a demurrer would lie, and the court was evidently of the opinion that if the plaintiff could not exhibit a case, even on paper, based on transactions occurring in 1907 and early in 1908, there was no use to proceed.
The judgment of the district court is affirmed. | [
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OPINION DENYING A REHEARING.
The opinion of the court was delivered by
MASON, J.:
In a petition for a rehearing it is suggested that the opinion filed makes no reference to the contention of the appellant that the arrangement between him and his father amounted to the giving of a conveyance absolute on its face, but intended only as a mortgage. This matter would affect the present appeal only in case the finding quoted in paragraph four of the original opinion is regarded as establishing that the transaction was equivalent to the giving of a mortgage, and we do not so regard it.
The statement in the opinion that in the absence of fraud or mistake a conveyance of title, absolute on its face, precludes a showing of want qf consideration for the purpose of establishing an implied trust was not intended as a declaration that oral evidence may not be given of a parol .agreement to reconvey which has been wholly or partially performed.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff recovered judgment against the administratrix of the estate of George M. Hoskinson for the rescission of a contract for the purchase of real property and for the amount that had been paid thereon. The administratrix appeals.
Prior to January 17, 1910, S. R. Janes contracted to purchase a certain quarter section of land in Grady county, Oklahoma. By a general warranty deed dated January 14, 1910, he and his wife conveyed this land to George M. Hoskinson. The deed was acknowledged by Janes, on January 14, 1910, and by his wife three days later. January 17, 1910, George M. Hoskinson, by written contract, agreed to convey the land to Janes for the sum of $3100, with interest at the rate of seven per cent, and acknowledged receipt of payment of $200. Five hundred dollars was paid July 17, 1910, leaving a balance of $2400 unpaid, which was to be paid in 1915. Interest payments were made on the contract. The contract was acknowledged before the same notary public that took the acknowledgment of Janes’ wife to the deed. The contract bound Janes absolutely to make payments promptly of the several sums of money. It also provided that when payments were made Hoskinson would execute to Janes a “deed, conveying said premises in fee simple, with the ordinary covenants of warranty as to incumbrances existing against said premises at the date of this contract.” No mention is made in the contract of any other party, but Hoskinson’s wife also signed it. Janes retained possession of the land and agreed to pay the taxes thereon. The deed and contract were both recorded in the proper office, but not at the same time or place. After^ ward Hoskinson died, and his widow, Annetta H. Hoskinson, was appointed administratrix of his estate by the probate court of Reno county, Kansas. This administration was still pending at the time of the -trial of this action.
September 10, 1910, Janes and his wife transferred all their right, title, interest and claim to the land described in the contract to the plaintiff, by quitclaim deed and by assignment written on the contract.
March 20, 1913, action was commenced in the district court of Grady county, Oklahoma, to quiet title and for the possession of this real property, by W. S. Farmer and others against Janes, Annetta H. Hoskinson as administratrix, and the heirs of George M. Hoskinson. That action was pending at the time of the trial of the action now before this court. It is stated in the briefs that judgment has since been rendered in favor of Farmer.
July 17, 1913, the plaintiff tendered to defendant Annetta H. Hoskinson the amount due on the contract, $2400, and demanded of her that she execute a warranty deed to him for the property. His tender was coupled with a notice that if ■the deed was not made within five days action would be commenced to rescind the contract. No deed was made.
The plaintiff contends that the contract in controversy is a contract for the purchase and sale of real property. The defendant contends that the contract, together with the deed to the property, constitutes a mortgage to secure the payment of a sum of money loaned.
S. R. Janes, who had been subpoenaed as a witness, was not present at the trial, and in lieu of a formal application for a continuance, Mr. Simmons, attorney for Annetta H. Hoskinson, administratrix, stated:
“In regard to the offer of testimony of the witness S. R. Janes, who is not present at this time, we expect to prove that he was the S. R. Janes mentioned in the pleadings and in the contract in question; that some’ time prior to the date of the contract and of the deed, S. R. Janes had contracted to purchase this land from parties in Oklahoma and had made a deposit on the purchase of the same; that he was unable to raise the rest of the purchase money and applied to George M. Hoskinson for a loan to complete the purchase of the same; that said Hoskinson agreed with him that if he would make him a deed to the land that he would loan him the money, to-wit, $2900, and would also give him a contract for a reconveyance of the land on payment of that amount of $2900 and interest on the same at seven per cent; that in pursuance to said negotiations Mr. Hoskinson loaned to Mr. Janes the sum of $2900, and Mr. Janes deeded the land to Mr. Hoskinson by warranty deed, copy of which will be in-' troduced, and Mr. Hoskinson executed and delivered to Mr. Janes the agreement to reconvey, being the agreement sued on in this case; that there was only $2900 to be repaid, and the total consideration of the contract was $2900; that the $200 mentioned in the contract as having been paid'was not paid; that the consideration of $3100 was placed in the contract so that the blank reciting the amount of the present payment could be filled in with the words ‘Two Hundred Dollars’; that S. R. Janes is the assignor of the contract which he testified George Hoskinson executed for a reconveyance of this land in question, and that George Hoskinson, the husband of the present defendant Annetta H. Hoskinson, died in January, -1912, and that Annetta H. Hoskinson is the administratrix of his estate.”
The plaintiff admitted that Janes would testify as above set out if he were present, but objected to the competency of the testimony on the ground that it concerned transactions had personally by the witness with Hoskinson, deceased. The objection was overruled at the time, the court stating that it would be taken up at the proper time. It does not appear that this matter was given any further consideration.
The evidence of Janes shows that the transaction between him and Hoskinson constituted a mortgage. It is therefore necessary to determine the" question of the competency of this evidence. This is controlled by chapter 229 of the Laws of 1911 (amending Civ. Code, § 320), which in part reads:
“No person 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, where either party to the action claims to have acquired title, directly or indirectly from such deceased person, . . . nor shall the assignor of a thing in action be allowed to testify in behalf of such party concerning any transaction or communication had personally by such assignor with a deceased person in any such case.”
The statute in substance says that an assignor of a thing in action shall not be allowed to testify in behalf of such party, and means by the word “party” either party to the action, where one of the parties claims to have acquired title directly or indirectly from the deceased person. This being the correct interpretation of the statute, Janes was incompetent to testify concerning any transaction he had with George M. Hoskinson, for the reason that Gilmore acquired his title indirectly from Hoskinson. All the evidence of Janes concerning the application for a loan, the negotiations concerning the same, what transpired between Janes and Hoskinson when the deed and contract were written and delivered, how these came to be written, and the purpose for which they were written, is incompetent, and should not be considered at this time.
Eliminating the incompetent evidence of Janes, there remain the deed and contract, which were executed on the same day and presumably as part of one and the same transaction. We have the evidence of Janes that he had contracted to pur chase this land ¿rom parties in Oklahoma, and had made a •deposit on the purchase price, but was unable to raise the rest of the purchase money. We also have the evidence of Mrs. Hoskinson ■ that she drew the contract for Hoskinson; that Janes was to have a deed ready to deliver to Hoskinson on the delivery of the contract; that after writing the contract she went home, and that Hoskinson came home with the deed. When the transaction was completed, Janes was indebted to Hoskinson in the sum of $2900. The land had been deeded to Hoskinson for a named consideration of $2866. Janes had a contract with Hoskinson for a reconveyance of the property when Janes had. fully paid the $2900 with interest. Before the transaction was completed, Janes had purchased this property, but was unable to pay for it. Arrangements were made for the execution of the deed and the contract, to be completed at the same time.
There is but one reasonable conclusion to draw from this situation, and that is that the deed and contract constituted a mortgage from Janes to Hoskinson to secure the payment of $2900 with interest. This is supported by Bank v. Kackley, 88 Kan. 70, 127 Pac. 539, where this court said:
“Whether a conveyance absolute in form and a contemporaneous agreement to reconvey constitute a mortgage, depends upon the existence or nonexistence of a debt. If the deed be made to secure a debt it is in legal effect a mortgage.” (Syl. ¶ 1.)
(See, also, McNamara v. Culver, 22 Kan. 661, 668; Calhoun v. Anderson, 78 Kan. 746, 98 Pac. 274; Bank v. Edwards, 84 Kan. 495, 115 Pac. 118.)
The deed and contract constituting a mortgage, the plaintiff is not entitled to any judgment, except that of cancellation of the mortgage when it is paid. The estate of Hoskinson would be entitled to foreclose the mortgage if it is not paid.
Assuming that the deed and contract are not a mortgage, could Janes recover in this action if he were the plaintiff? He made a warranty deed to Hoskinson. Janes’ title to the property was bad. He never acquired good title. When he made the deed he did not have title to the property. Hoskinson agreed to make a warranty deed to Janes. Hoskinson could not make a good warranty deed, for the reason that he did not get good title from Janes. Janes could not have re covered damages from Hoskinson on account of Hoskinson’s failure or inability to make a good warranty deed, for the reason that Hoskinson’s inability to make such deed originated with Janes and came to Hoskinson through Janes’ warranty deed. If Janes could recover from Hoskinson on his promise of warranty, then Hoskinson could recover from Janes a like amount on his warranty. One should offset the other. Janes could not recover in this action.
The plaintiff stands in Janes’ shoes. By one instrument, an assignment of the contract between Janes and Hoskinson, the plaintiff becomes the assignee of Janes and succeeds to his rights under the contract. By the other instrument, a quitclaim deed, the plaintiff gets the title to the property as Janes held it under the contract, and takes only what Janes could lawfully convey. (Hentig v. Pipher, 58 Kan. 788, 791, 51 Pac. 229; Knight v. Dalton, 72 Kan. 131, 83 Pac. 124; Oliver et al. v. Piatt, 44 U. S. 333, 11 L. Ed. 622; May v. LeClaire, 78 U. S. 217, 20 L. Ed. 50, 53; 8 R. C. L. 1024; 1 Devlin on Real Estate, Deeds, 3d ed., § 27; 3 Washburn or Real Property, 6th ed., § 2239; 2 Tiffany on Real Property, § 377.)
The plaintiff, under both the assignment and the quitclaim deed, has exactly the same rights and is subject to the same disabilities as Janes. If Janes could recover on the promise of warranty made by Hoskinson, then the plaintiff can recover. Janes could not recover, on account of the failure of his warranty to Hoskinson. It follows that the plaintiff could not recover against Hoskinson on that warranty. If he could not recover against Hoskinson, he can not recover against Hoskinson’s estate.
Section 4020 of the Revised Laws of Oklahoma, 1910, introduced in evidence, reads:
“Every grant of real property, or of any estate therein, which appears by any other writing, to be intended as a mortgage within the meaning of this chapter, must be recorded as a mortgage; and if such grant and other writing explanatory of its true character are not recorded together at the same time and place, the grantee can derive no benefit from such record.”
The plaintiff claims the benefit of this statute. This statute does not make a deed out of a mortgage, consisting of a deed and a defeasance in separate instruments, where they are not recorded at the same time and place, but defeats the record as a mortgage and makes it the same as though the mortgage had not been recorded. The statute is for the protection of the mortgagee, by having his mortgage placed on record properly. It does not affect the rights of the mortgagor, the grantor in the deed.
The judgment is reversed and the cause is remanded with directions to proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
MASON, J.:
On March 6, 1914, Samuel Culbertson, being then seventy-eight years of age, executed a deed to a quarter-section of land in Allen county to his sister, Rebecca Sapp, in consideration of her agreement, inserted, in the deed, to care for him during the remainder of his life. He died on the 28th of the following June. Some of his heirs brought an action against her (and other defendants) to have the conveyance set aside on account of want of capacity and undue influence. They recovered a judgment from which she appeals.
Findings were made by the jury and approved by the court sustaining both branches of the plaintiffs’ case. Those rel’at ing to undue influence were so qualified as perhaps to render them dependent upon those regarding want of capacity. The former may be disregarded, allowing the judgment to rest upon the latter. (Hays v. Patterson, 97 Kan. 478, 155 Pac. 932.) The plaintiffs ask the dismissal of the case for the reason that a complete transcript of the evidence has not been made. (Davidson v. Timmons, 88 Kan. 553, 557, 129 Pac. 133.) The appellant presents enough evidence in the abstract to show the basis of her contentions, and asks leave to complete .the record if that shall be deemed necessary. The plaintiffs object to further time being given for that purpose. The consideration of these matters is made unnecessary by the view taken of the rulings attacked.
The principal ground upon which a reversal is asked is that two physicians were permitted to testify, in response to a hypothetical question, that in their judgment, assuming the conduct of the grantor to have been as stated, he was not mentally competent to make a deed to his property or to transact important business; and .the. testimony of several nonexpert witnesses was received to the effect that from their observation of him they thought him incapable of transacting important business. This method of undertaking to show want of capacity to execute a deed (for instance) has been condemned because it amounts to allowing a witness to give his opinion as to what degree of capacity was necessary for its execution, that being one of the elements necessarily involved in the answer, and being a matter of law to be determined by the court. (Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30.) The mere form in which evidence is given is not always of vital importance, and here it does not seem probable that any actual prejudice resulted. The court correctly stated the rule as to the conditions that would justify setting aside the deed, and findings were made that the grantor was not of sound mind and memory, and did not have sufficient capacity to fairly understand what he was doing and how he was doing it. The hypothetical question submitted to the medical witnesses included these assumptions among many others of a similar tendency: That Samuel Culbertson had hallucinations, believing his brothers and others were after him, trying to kill him, and trying to get a deed to his land, or get his property away from him; that he would walk two and a half miles to a neighbor’s in his stocking feet, carrying his shoes, and on arrival tell that his brothers and others were after him and were going to kill him and were trying to get a deed to his property; that about a week before his death he jumped from a second-story window and said he did it because there was murder up there. The.appellant has not brought up the evidence, and it must be assumed that there was support for the assumptions set out in the hypothetical question — otherwise the answers would have had no practical importance. The physicians also said that they would consider a person in the condition indicated by the question as incapable of transacting any business. The statements of the nonexpert witnesses that they regarded Culbertson as incapable of transacting important business seems unlikely to have influenced the jury’s conception of what impairment of his faculties was necessary to render the deed inoperative. Moreover the jury were acting only in an advisory capacity. The decision finally reached was that of the judge, and there is no likelihood that he was in any way misled by the form in which any of the evidence referred to was presented.
A further complaint is based on the fact that in the charge to the jury the court enumerated, as one of the matters they were authorized to consider, the reasonableness, or unreasonableness of the grantor’s act in making the deed. Such an instruction under somewhat similar circumstances has been held to constitute error. (Blodgett v. Yocum, 80 Kan. 644, 103 Pac. 128; Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30.) Here, however, the matter was referred to quite incidentally as one of a number of things to be considered, and it seems very unlikely that it should have had a controlling influence with the jury. The jury were specifically told that “all persons may dispose of their real or personal property or any part thereof, to whom they choose, or, in any manner they may choose, so long as not in violation of law, and in contravention of public policy.” The instruction complained of does not indicate that the court misconceived the law by which the rights of the parties were to be determined, and that being true the mere fact that it contained an erroneous statement does not justify a reversal. This principle is sometimes spoken of as though it applied only where the court disregards the findings of the jury, or makes new ones of its own. (Vickers v. Buck, 60 Kan. 598, 605, 57 Pac. 517; Munn v. Gordon, 87 Kan. 519, 125 Pac. 7.) But whether or not the judge accepts any or all of the jury’s findings, and whether or not he adds to them, he exercises his independent judgment, and his adoption of a finding already made by the jury involves no different mental process from formulating it on his own account. • A defective instruction involves no more serious consequences in the one case than in the other. (Linscott v. Conner, 85 Kan. 865, 118 Pac. 693; 16 Cyc. 422.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiffs seek to enjoin the defendants from curbing, guttering and paving a street in Junction City. From a judgment sustaining a demurrer to the petition the plaintiffs appeal.
Under chapter 123 of the Laws of 1911, the defendants undertook to improve Monroe street, in Junction City, between Seventh and Eighth streets. These streets run east and west parallel with each other and cross Monroe street. One block lies between Seventh and Eighth streets. Eighth street was curbed, guttered and paved across and for some distance east and west of its intersection with Monroe street. Seventh street was curbed, guttered and paved from the west to Monroe street, but not across nor east of that street. The resolution under which the defendants sought to improve Monroe street is as follows :
“Whereas, Seventh Street and Eighth Street are parallel streets running east and west through the city of Junction City, and
“Whereas, Monroe Street is a street running north and south through said city and is an intersecting connecting street between said Seventh Street and Eighth Street, and
“Whereas, said Seventh Street and Eighth Street have been paved and properly curbed and guttered, therefore
“Be it resolved by the Board of Commissioners of the City of Junction City, convened in regular session, that it is necessary that Monroe Street between Seventh and Eighth streets be paved and properly curbed and guttered, said paving, curbing and guttering to accord to the specifications adopted by the Board of Commissioners. The cost of said paving, curbing and guttering to be assessed against the property to the center of the block on both sides of said Monroe Street between Seventh and Eighth streets.”
The plaintiffs contend that Monroe street was not an intervening connecting street between parallel streets that had been curbed, guttered and paved. This contention is based on the fact that Seventh street was not improved in the area formed by the crossing of Seventh street and Monroe street and was not improved from Monroe street east. That was not necessary. The improvement of Monroe street connected the improvement on Seventh street and Eighth street. Section 1 of chapter 123 of the Laws of 1911 reads:
“Whenever any parallel streets or alleys in the city shall have been graded, guttered, curbed, paved, or macadamized, the mayor and council or board of commissioners may, when they deem it necessary, grade, gutter, curb, pave or macadamize any intervening connecting street or alley, or portion thereof; and in all cases when two or more portions of any street or alley have been graded, guttered, curbed, paved, or macadamized, and intervening portions of said street or alley have not been graded, guttered, curbed, paved, or macadamized, the mayor and council or board of commissioners, may by resolution cause the intervening portion to be graded, guttered, curbed, paved or macadamized not to exceed two blocks, and levy special assessments to pay for the same.”
The purpose of the statute is to permit a city to authorize the improvement of intervening connecting streets by resolution where the improvement directed will connect with other parallel streets, already improved, although the connecting improvement may begin at the end of the improvement on one of the parallel streets.
The plaintiffs contend that chapter 123 of the Laws of 1911 violates section 16 of article 2 of the state constitution, and argue that the act changes, the law as it existed before the passage of the act. Before the passage of this act the statute authorized the improvement of streets allowing property owners twenty days within which to remonstrate against the proposed improvement. This right of the property owner was taken away by chapter 123 of the Laws of 1911, so far as the improvement of an intervening street between parallel improved streets is concerned. This is not an amendment within the meaning of the constitutional provision. The act in question does not purport to amend any other act. ' It is new legislation. By implication it does repeal a portion of the law as it existed before the passage of the act. In Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, this court said:
“Statutes which effect the amendment of existing laws by implication are not within the purview of the constitutional provision that ‘no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.’ ” (Syl. ¶ 1.)
(See, also, Stephens v. Ballou, 27 Kan. 594; Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805; The State v. Thomas, 74 Kan. 360, 86 Pac. 499; Bank v. Pearce, 76 Kan. 408, 92 Pac. 53.)
The statute does not violate section 16 of article 2 of the state constitution.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of willfully obstructing a road drain and appeals.
The statute reads as follows:
“That if any person shall willfully demolish, throw down, alter or deface any milestone or guideboard on or at the forks of any roads, or shall willfully obstruct any such road drain or drains, by any means or in any manner whatever, every person so offending shall on conviction be adjudged guilty of a misdemeanor.” (Laws 1911, ch. 248 § 52.)
Formerly the section quoted read as it does now except that the words “drain or drains” did not appear. In the general revision of the road laws in 1911 those words were inserted. The title of the revisory act reads, “An act in relation to roads ■ and .highways.”
It is .said that the revised section should read as if a comma were inserted after the word “road,” which should be interpreted as a noun and not as an adjective modifying the words “drain” and “drains.” To this the court agrees. It is said that the word “such” should refer to something previously particularized in the same section. To this the court does not agree. It is said that if the act as a whole be searched nothing specific relating to drains can be found to which the word “such” can apply. To this the court does not agree, but for the moment let it be conceded that the word “such” refers to the word “road” and that the statute means “If any person . . . shall willfully obstruct any . . . drain or drains,” he shall be guilty of a misdemeanor. It is said that if this be the meaning of the provision it is not within the title of the act. Again the court disagrees. The title is broad enough to include everything the legislature desired with reference to the subject of roads, including drainage and punishment for obstructing road drains, which everyone knows are necessary features of road construction and maintenance. But it is said if this be true the act is too general to be enforced and includes obstruction of private drains and a number of others. Whatever the act includes, it includes obstruction of road drains, the only subject of concern to the defendant. The question whether or not the act extends to other drains may wait for determination until raised by some one who might be affected.
Complaint is made that the court refused to give a requested instruction relating to the liability of the defendant in case the obstructions which he placed in the ditch were placed there for a temporary purpose and with an intention to remove them as soon as that purpose was subserved. The instruction was given, with some additions which the court regards as entirely proper.
Complaint is made of the instruction just referred to and some other instructions given. No useful purpose would be subserved in printing the instructions, stating the evidence on which they were founded, and stating the criticisms of the defendant. The criticisms have all been considered. There was no question of abatement of a nuisance in the case, which involved nothing but the obstruction of a drain, which was confessed, and the intent which characterized the act. The instructions were very liberal to the defendant. No burden whatever was placed on him to establish any fact essential to-his acquittal and none of his substantial rights was otherwise prejudicially affected.
It was not error to allow the county commissioners to sit with the county attorney throughout the trial, although they were also witnesses in the case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the state, on the relation of the attorney-general, seeks to compel the defendant, the secretary of state, to prepare poll books and tally sheets for the primary election to be held on the first day of August, 1916, to be used for voters of this state absent from their townships and wards in the military service of the state and of the United States. The secretary of state refuses to prepare these poll books and tally sheets on the theory that there is no law requiring him to do this for the primary election.
Article 4 of chapter 36 of the General Statutes of 1909 (§§ 3154-3177) makes detailed provision for those who are absent from their township or ward and employed in' the militia or volunteer service of the'state or United States to vote at the places where they may be stationed on the day of election for county, district or state officers, members of the legislature, members of congress, and electors for president and vice president of the United States. These provisions were made part of the statutes prior to the enactment of the primary election and the Australian ballot laws. By section 8 of chapter 204 of the Laws of 1915 the following became a part of the primary election laws of this state:
“The provisions of existing statutes concerning elections, and any amendment now or hereafter made thereto, so far as the same are consistent with the provisions of this act, shall apply to the primary pro vided for in this act, the intent of this act being to place the primary under the regulations and protections in all respects of the laws in force as to the general elections. That all of the powers and duties conferred and imposed by the law of this state upon commissioners of election, registration officers, judges, and clerks of election, canvassing boards, and all other public officials, and all laws relating to the registration, qualification, challenging and voting of electors, in connection with general elections are, in every detail and particular, conferred and imposed upon each and all of such officers in connection with primary elections conducted under the provisions of this act, except as herein otherwise specially provided.”
It can not be successfully argued that article 4 of chapter 36 of the General Statutes of 1909 (§§ 3154-3177) does not apply to the Australian ballot law. The provision of the act of 1915 can be worked out under the primary election law the same as under the Australian ballot law. There is no more inconsistency under the one law than there is in the other. If full effect is given to this statute all the election laws of the state are a part of the primary election law. The statutes providing for absent soldiers voting at elections are a part of the election laws. By the operation of the act of 1915 the laws providing for absent soldiers voting must be a part of the primary election law. Being a part of the primary election law, it is the duty of the secretary of state to prepare the necessary poll books and tally sheets to be used at the places where these absent voters may be stationed on the day of the primary election, to be there used as required by article 4 of chapter 36 of the General Statutes of 1909.
The qualification and registration of these voters must be governed by the general and primary election laws of the state, except that these absent electors may vote at the places where they may be stationed at the time of the primary election.
The peremptory writ will issue. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiffs, colored persons, seek to compel the defendants, the superintendent of schools and board of education of the city of Galena, to admit the plaintiffs’ children and other pupils of the colored race to the grades to which they were assigned at the opening of the term of school beginning on the sixth day of September, 1915; to refrain from requiring the plaintiffs’ children and other pupils of the colored race to attend a separate school provided for pupils of the colored race; and to refrain from discriminating against such pupils on account of their race or color.
The petition in substance alleges that the plaintiffs’ children and other pupils of the colored race were separated from the white pupils attending the East Galena school, and were placed in a separate room in the school building and provided with a colored teacher; that this separation was made on account of the color of the plaintiffs’ children and other colored pupils attending this school. The defendants denied making this separation on account of color or race. A commissioner was appointed to take the testimony in this case and to make findings of fact and conclusions of law. He made the following findings of fact and conclusions of law:
“1. That the defendant herein, The City of Galena, Kan., is a city of the second class duly organized under the laws of the state of Kansas, having a population of about 7000 people, and the defendant board of education of said city is a body corporate under the laws of the state of Kansas, relating to cities of the second class, and maintains a system of free graded common schools from the first to the sixth and a high school, to all of which the parents of pupils living within the said city are entitled to send their children without discrimination as to race or color, and that the defendant, R. E. Long, was, during all the times herein mentioned, the duly elected, qualified and acting superintendent of said city schools.
“2. That G. W. Worthington, Wm. Campbell, Y. E. Mitchell, W. L. Rickseeker, and F. H. Tryon are and were at all times herein mentioned the duly elected, acting and qualified members of said board of education, and that G. W. Worthington is the president of said board.
“3. That the said City of Galena did at all times mentioned in the pleadings herein maintain as a part of the public schools of said city what is described in the pleadings and testimony herein, ‘The East Galena School.’
“4. That the public schools of said City of Galena opened on or about September 6, 1915, but prior to the opening thereof, and on or about September 4, 1915, the Board of Education required pupils who desired to enter said East Galena School to appear at said East Galena School building for the purpose of registering and being assigned to their respective grades, and on said day assignment was made of the various pupils presenting themselves based on their previous record and standing and without any reference to race or color.
“5. That on September 6,1915, the pupils were admitted to said East Galena School, in the primary department and in grades 1, 2, 3, 4, 5 and 6, and without any discrimination whatever on account of race or color. That during the first week of said school colored children attended all the grades of said school in numbers about as follows:
“In primary department, 5; first grade, 3; second grade, 5; third grade, 3; fourth grade, 5; fifth grade, 4; and sixth grade, 5; making a total of 30 colored pupils attending said East Galena School.
“6. That the plaintiffs herein together with their children and others whom they represent, herein designated as colored children, belong to the African race, and are for the most part descendants of slaves; and were at all times mentioned herein, and now are residents of the City of Galena, Kan., entitled to all the privileges of the public schools of said City of Galena, without discrimination as to race or color.
“7. I also find that there was enrolled in the various wards of the graded schools about 150 more pupils for 1915 than for 1914, and that the enrollment at the East Galena School was about the same as in 1914, although one grade, the seventh, had been transferred to another building, but just what the comparative attendance was is not shown by the evidence.
“8. That on or about September 7, 1915, at a regular meeting of the Board of Education, defendant herein, it was voted, ‘that on account of the crowded condition of the East Galena School building an additional teacher be employed.’ It was also voted at the same meeting that Miss Mildred Grigsby be employed to teach at East Galena at a salary of $30 per month, and at the next regular meeting of the Board the minutes herein referred to were approved.
“9. In accordance with the plan suggested by finding No. 8 herein, Miss Grigsby, a colored woman, who was at the time working as a do mestic in the home of the president of the Board of Education and holder •of a three years diploma from the Normal Training School of Pittsburg, Kan., under date of July 15,1915, was employed as teacher for the colored children at a salary of $30 per month, and a room was fitted up on- the second floor of said East Galena School building and she was assigned to it as teacher, her work commencing on Monday, September 13, 1915.
“10. On Monday morning, September 13, 1915, in accordance with the former determination of the Board of Education and with its full knowledge and consent, the defendant, R. E. Long, as superintendent of said schools, ordered and directed that all colored children in attendance at the'East Galena School building be transferred to the room upstairs to be taught by Miss Grigsby, a colored teacher employed for that purpose.
“11. In accordance with said order all the colored children in said East Galena building, numbering 30, were so transferred to said Miss Grigsby’s room, as follows: Primary department, 5; first grade, 3; second grade, 5; third grade, 3 ¡..fourth grade, 5; fifth grade, 4; sixth grade, 5. I also find that after the transfer of the colored children to Miss Grigsby, the rooms attended by white children still had more than 40 pupils in each room except one, and that the colored room had only30.
“12. That thereafter several of the colored children so removed returned to the former rooms where they had previously attended school with the white children, but were not allowed to remain there,' and were ordered and directed to return to Miss Grigsby’s room, some under penalty of punishment if they refused.' I further find that the said colored children had up to the time of their removal obeyed the rules of said school and were not under complaint on account of any misconduct on their part. I further find that after the colored children were refused .admission to schools taught by white teachers and attended by white children, about half of them acting on advice of their parents refused to attend Miss Grigsby’s school and were on the 17.th day of December, 1915, out of school.
“13. No white children attended school in the room taught by Miss Grigsby.
“14. The white and colored children of said East Galena School continued to mingle together and all used the same playground during the intermissions without reference to race or color.
“15. At the time of the removal of the colored children to Miss Grigsby’s room there were vacant and unoccupied seats in each of the rooms in said East Galena .School building, and I further found on personal inspection that if all enrolled pupils had been present there would, on December 17, 1915, still have been vacant seats in each room, sufficient to have accommodated the colored children taken therefrom. (At the request of the defendants and with the consent of both parties, I visited the East Galena School and inspected the various rooms, and I find that the room to which said colored children were transferred was clean, sanitary and the equal for school purposes of the other rooms in said building, and while the furnishings of said room were a little inferior to the other rooms, they were sufficient for the health, comfort and convenience of the pupils.)
“16. I further find that Miss Grigsby is a graduate of the Galena High School class of 1910, and a duly accredited graduate of the Manual Training School at Pittsburg, Kansas, and holder of a diploma from that institution under date of July 15, 1915, and that no complaint was offered among the. complainants herein as to her qualifications as a teacher. I further find that she was required to conduct classes in all the studies taught in the primary, first, second, third, fourth, fifth, and sixth grades, while the white teachers in the same building were required to teach but one grade, except in one or two instances where grades were divided.
. “17. I further find that there was no crowded condition in the East Galena schools that warranted the removal of the colored children from the rooms attended by white children and taught by white teachers, and placing them in a separate room by themselves. The president of the Board of Education testified (p. 99 of Record) as follows: ‘Q. What class of pupils was the colored teacher employed to teach? A. The colored children.’ And Mr. R. E. Long, the superintendent, testified, on page 129 of record, as follows: ‘Q. As a matter of fact you divided the East Galena School as to color only, and you simply took them out of the rooms because of their color? A. Yes, sir, I took the colored children out of each of the rooms in the East Galena building and put them in a room by themselves.’
“18. I find that other rooms in the Galena schools had more pupils than are in the East Galena School, and their pupils were not divided or bunched into one room.
“19. I further find that colored children (only a few in number) who attended the Galena public schools in buildings other than the East Galena building, were not separated from the white children but continued to attend with white children taught by white teachers the same as before the 13th day of September, 1915.
“20. I find from all the evidence that the separation of the children of the plaintiffs and those whom the plaintiffs represent, from the white children, on September 13, 1915, and the placing of said children in Miss Grigsby’s room where no white children attended and where all grades from primary to sixth grade, inclusive, were taught by said Miss Grigsby, was made on account of the race and color of said children so separated .and placed.
“From the foregoing findings of fact I deduce the following conclusions ■of law:
“1. That the acts of the defendants herein, in separating the colored children from the white children and placing them' in a room by themselves, taught by a colored teacher, where all the grades from primary to sixth grade were taught, was and is unwarranted by any of the laws •of this state and a violation of the rights of the plaintiffs herein and of those whom they represent.
“2. That a permanent writ of mandamus issue herein as prayed for by the plaintiffs.”
The defendants ask that that portion of the ninth finding which reads, “Miss Grigsby, a colored woman who was at the time working as a domestic in the home of the president of the Board of Education,” and all of the fifteenth, sixteenth, seventeenth, eighteenth and twentieth findings, be stricken out. They argue that the commissioner misconceived his duties, that he considered it his duty and right to invade the province of the school authorities and determine what was the proper manner to run the schools of Galena; and argue further that it was the duty and province of the school superintendent and of the board of education to determine this matter, and that it was not within the function of the commissioner to control the discretion of the superintendent and the board of education, or to suggest to them how they should run the schools.
In order for the commissioner and for this court to determine whether or not the pupils of the East Galena school had been separated on account of race or color it was necessary for the commissioner to know, and it is necessary for this court to know, everything that the superintendent of schools and the board of education did with reference to this school. The findings of which complaint is made show these things. It was proper for the commissioner to hear evidence on these questions and for him to make findings concerning them. The fact that the teacher employed for the colored children had been, prior to her employment, working as a domestic in the home of the president of the board of education is immaterial. It neither helps nor harms either side of this controversy and may be properly disregarded at this time.
The defendants requested that the commissioner make' the following additional findings of fact:
“1. That at the time the colored children were placed in Miss Grigsby’s; room by the school superintendent with the approval of the school board, there was in the opinion of the superintendent a congested condition in the other rooms; that is to say, there were more scholars in the other-rooms than the teacher could properly care for in the opinion of the .superintendent and the school board.
“2. That in the opinion of the school superintendent, by reason of' a fewer number of scholars in Miss Grigsby’s room she could teach the first six grades as advantageously to the pupils as the teachers in the other rooms who had fewer grades to teach, by reason of her having a less number of pupils than the teachers in the other rooms.”
The commissioner refused to make these findings for the reason that in his judgment the findings requested were not within the issues made by the pleadings; that there was no allegation in the petition challenging the sufficiency of the school taught by Miss Grigsby; that the charge, in substance, was that the white and colored children were separated; that this charge was denied; that there was no plea of justification; and that the issues on the trial were on the one question of fact raised by the pleadings: Were the white and colored children separated? An examination of the pleadings discloses that the reasons given by the commissioner for his refusal to make these findings were correct. The superintendent of schools and board of education did not undertake to justify or excuse the separation of the pupils along the line of color, but denied doing it.
The authority of boards' of education to separate colored pupils from white ones in schools under their control is settled in this state. They do not have such authority unless it is expressly given by statute. (Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616; Reynolds v. Board of Education, 66 Kan. 672, 673, 72 Pac. 274; Cartwright v. Board of Education, 73 Kan. 32, 84 Pac. 382; Rowles v. Board of Education, 76 Kan. 361, 91 Pac. 88.) The findings of the commissioner show that the defendants separated the plaintiffs' children and other colored pupils attending the East Galena school from the white children attending the same school on account of their race and color. This was without authority of law.
A peremptory writ of mandamus will issue as prayed for* | [
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The opinion of the court was delivered by
Mason, J.:
In an action for the recovery of money only a. judgment was rendered for the plaintiff for $104.29. The defendant paid the amount into court, and the plaintiff has received a portion of it. The judgment itself is not attacked, but the plaintiff appeals from a later order made, the effect of which was to deny his claim to a recovery of $25.50 additional, and perhaps of a further item — not enough to bring the amount in controversy up to $100 — and from a ruling dividing the costs, all of which he maintains should have been taxed against the defendant.. The amount in dispute, exclusive of costs, being less than $100, no review can be had upon the merits, nor upon the taxation of costs. (Civ. Code, § 566; Mo. Pac. Rly. Co. v. Yawger, 52 Kan. 691, 35 Pac. 814.) The plaintiff asserts that the case is within one of the statutory exceptions, in. that a constitutional question is involved, contending that he was deprived of his property without due process of law by the failure of the trial court to follow the provision of the code allowing the recovery of costs by the prevailing party in an action for money only. (Civ. Code, § 613.) If the court misinterpreted or misapplied the statute the result was an erroneous ruling, but not a denial of due process of law. (Griggs v. Hanson, 86 Kan. 632, 121 Pac. 1094; 6 R. C. L. 445.)
The appeal is dismissed. | [
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The opiniofi of the court was delivered by
Johnston, C. J.:
This was an action by Miley Hawkins to recover from A. Enlow $3000 as damages for the malicious destruction of corn. In his petition Hawkins alleged that in September, 1902, he purchased seventy-five acres of standing corn from Enlow and another, to be cut and shocked upon the land where it was grown, there to remain as late as April 15, 1903. It was purchased by Hawkins for the purpose of winter-feeding 500 head of cattle that he owned, and Enlow knew the purpose for which the purchase was made. Hawkins cut and shocked the corn, which was of the value of $1000, and it was standing on the land on March 3, 1903, when Enlow wilfully and maliciously tore down the shocks, threw them into the road, and totally destroyed them, thus occasioning a loss of $1000. ' It was further alleged that by reason of the destruction of the corn the plaintiff was unable to continue the feeding of his cattle, and as a result thereof, and of the change of feed, the cattle shrank greatly in weight, and were depreciated ■in value, by which he sustained a loss of $2000. En-low admitted the purchase of the corn but denied the other averments, especially that there was an agreement that the corn might stand on the land for the period stated by Hawkins, and he also alleged that Hawkins had caused him loss by the manner in which he had used the land on which the corn was shocked. At the trial the jury awarded Hawkins damages in the sum of $400, and, in answer to special questions, stated that $165 of that- amount was damages for the corn destroyed, and that $235 was allowed as shrinkage of the cattle.
The record does not show that it contains all of the evidence received or- the instructions given by the court, and' hence some of the questions discussed are not open for consideration. Sufficient is included, however, to raise the question whether the shrinkage and loss of growth in the cattle, resulting from the wrongful destruction of the feed purchased for them, are, proximate and furnish a basis for recovery. According to the averments of the petition the basis of the action was more than a violation of contract — it was a malicious tort; and in such actions the wrongdoer is liable for the direct and immediate consequences of his wrongful act.
It appears that the shocked corn was of good quality, and that such feed could not be obtained in that region of the country in that season of the year. Straw and other fodder were found and substituted for the shocked corn that was destroyed, but the cattle did not relish the change of feed, and the result was a stunting of the growth and a shrinkage of weight. Witnesses who were in the cattle business stated that the shrinkage and loss occasioned by such a change of feed could be fairly well measured by those accustomed to feeding cattle, and they undertook to state the extent of the injury and loss to the Hawkins cattle. The testimony was competent, and the damages sustained by the wrong of Enlow were recoverable. The loss was the direct and immediate consequence of his tortious act, and one that could have been reasonably anticipated. The case of Hoge v. Norton, 22 Kan. 374, has characteristics of its own, but the governing principle there applies here. In that case, under an attachment wrongfully obtained, cattle were taken from a range where they had been kept and placed in charge of a herder on another range where the feed and water were not good, and because of the change they failed to make the growth and increase in weight that cattle would ordinarily make if left upon a range to which they were wonted, free from worry, with good feed and water such as they had on the range where they had been previously kept; - and the holding was that the loss sustained was the direct result of the wrongdoing, and that it was so certain in character as to be susceptible of measurement. Mr. Justice Brewer, who delivered the opinion, remarked:
“Of course, absolute certainty is not attainable, as in casting up the figurés of an account; but nevertheless there are certain laws of feeding and growth, well understood' among cattlemen, and whose results work out with sufficient certainty for business calculations and judicial investigations. The raising of cattle for market has been an extensive and ofttimes profitable business in this state; and it would be strange if one could wrongfully take from the owner a herd of cattle, remove them to a poorer range, feed them on inferior food, and so treat them that during the growing season they do not grow at all, and then at its end return them, saying, as did the unfaithful servant in the parable, who returned the single talent without increase, ‘Lo! there thou hast that is thine,’ and still be under no liability to respond in damages to such owner. We do not think the law so deficient. It seems clear that the owner is damaged, that the damages may be determined to a reasonable certainty, and that the wrong-doer is bound to make good the damages.” (Page 380.)
There the cattle were wrongfully taken from their accustomed feed, and here the accustomed feed was wrongfully taken from the cattle. In that case there was only a retarding of the growth of the eattle, while in the present case there was, in addition to a checking of growth, an actual shrinkage in weight. In either case the loss was the natural consequence of the tortious act, and men who have experience in raising and feeding cattle can determine the resulting loss with reasonable certainty.
As tending to sustain the rule of the Hoge-Norton case, see The Western News Co. v. Wilmarth, 33 Kan. 510, 6 Pac. 786; Heatwole v. Gorrell, 35 id. 692, 12 Pac. 135; Brown v. Hadley, 43 id. 267, 23 Pac. 492; Town Co. v. Lincoln, 56 id. 145, 42 Pac. 706; Gas Co. v. Glass Co., 56 id. 614, 44 Pac. 621; States v. Durkin, 65 id. 101, 68 Pac. 1091; McAfee et al. v. Crofford, 54 U. S. 447, 14 L. Ed. 217; Chapman et al. v. Kirby, 49 Ill. 211; Mann v. Taylor, 78 Iowa, 355, 43 N. W. 220; Hawthorne v. Siegel, 88 Cal. 159, 25 Pac. 1114, 22 Am St. Rep. 291; Derry v. Flitner, 118 Mass. 131; Miller v. The St. L. I. M. & S. Ry. Co., 90 Mo. 389, 2 S. W. 439; 13 Cyc. 28; 8 A. & E. Encycl. of L. 598.
If feed of the same kind could have been purchased m that section of the country a different measure of damages would have been applicable. It was the duty of Hawkins to arrest or reduce the loss consequent on the wrong of Enlow, and the testimony tends to show that he procured the best feed that could be had in that region.
The extent of the loss, as well as some other disputed questions, cannot be considered, since it does not appear that all the testimony upon which the findings and verdict were based is before the court.
We find nothing substantial in the objections to the rulings on evidence or to the instructions of the court. The judgment is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was to recover for the loss of services and earnings of plaintiff’s son, a minor, eighteen years of age, who was injured while in the employ of the defendant, and also for doctor’s bills, which the plaintiff alleged he was obliged to pay on account of the injuries1 to his son. There was' a judgment in plaintiff’s favor, from which defendant appeals.
In a former action plaintiff’s son, Victor Henry, recovered judgment against the defendant for personal injuries resulting from the same accident. (Henry v. Railway Co., 92 Kan. 1017, 142 Pac. 972.) In the petition in the present case it was alleged that the plaintiff’s son, while employed in a coal mine operated by the defendant, was injured by the fall of a rock from the roof of the room in which he was at work, and that his injuries were caused solely by the willful failure of the defendant to provide him with sufficient prop timber of suitable length and size, in_ direct violation of the statute. (Gen. Stat. 1909, § 4680.)
At the trial plaintiff offered no evidence to show that his son had been in the employof defendant or to prove any of the circumstances of the alleged injury, or to show that defendant had omitted to perform any statutory duty imposed upon it; but merely introduced the pleadings, verdict, findings of fact and the judgment rendered in the former action brought in behalf of the son. The only evidence, aside from this, was offered to show the value of the minor’s services, and the time he was incapacitated for work on account of his injuries, and to prove that plaintiff had paid certain bills for medical services. The defendant’s demurrer to the evidence was overruled.
The first question for determination is whether the former judgment in favor of the son adjudicated the fact.that he was in the employ of the defendant at the time of his injury and was injured as a result of the failure of the defendant to comply with the mining statute. The plaintiff insists that the former judgment is res judicata as to these matters because it was brought for the son by the father, as next friend, and attention is called to section 31 of the code, which provides that the guardian, or next friend, shall be liable for the costs of the action. It is argued that as a guardian or next friend may become a judgment debtor of the defendant, liable under execution for the collection of a judgment for costs, the statute regards him as a necessary party, and therefore all issues determined therein are res judicata as between the guardian or next friend and the defendant. If this is true it would seem to follow that if a father and son were both injured by the same act of negligence, and two actions were brought, one by the father to recover for his own injuries, and one for the son by his father as guardian or next friend to recover for the son’s personal injuries, a judgment in favor of defendant on the first case tried would be a bar to the other action. There must be not only identity in subject-matter, cause of action and parties, but also in the quality of the person for or against whom the claim is made. All others are strangers to the litigation. The plaintiff here is not suing in the same capacity as was the plaintiff in the former action. There the son was the real plaintiff, the father a mere nominal plaintiff. Persons who are mere nominal and not real parties are not bound. Thus, what is known as a “use plaintiff,” that is, where suit is prosecuted by one person for the use of another, it is the latter alone who is bound by the judgment. (23 Cyc. 1242.)
In case of injury to a minor two causes of action arise: one in favor of the infant for his personal injuries, and one in favor of the parent for loss of services. A party is bound by a judgment only in the same capacity in which he was a party to it. Thus in 23 Cyc. 1243, it is said:
“Hence a party is not bound by a former judgment where he sued or defended in the one action in his individual capacity and in the other in the character of a guardian or next friend, or as an executor or administrator, as a trustee for others . . . unless in any of these instances he was made a party to the first action in both capacities, or the scope of the litigation was such that all his rights or interests, held in any of his capacities, were before the court and involved in its decision.”
Since the plaintiffs in the two actions are not the same, did not sue in the same quality or capacity, there is no identity of person, and it was error to admit in evidence the record of the former trial.
Another question is whether a father can avail himself of the mining statute to recover for the loss of the services of an infant son. In Gibson v. Packing Box Co., 85 Kan. 346, 116 Pac. 502, it was held that the factory act gives the father no rights other than those he possessed at common law, and that only the minor himself can recover for such injury. (See, also, Howell v. Cement Co., 86 Kan. 450, 121 Pac. 346.) There is, however, a difference in the provisions of the factory act and those of the mining statute. The provisions in the factory act giving a right of action for injury read as follows:
“If any person employed or laboring in any manufacturing establishment shall be killed or injured in any case wherein the absence of any of the safeguards or precautions required by the act shall directly contribute to such death or inj'ury, the personal representative of the person so killed, or the person himself, in the case of inj'ury only, may maintain an action against the person owning or operating such manufacturing establishment for the recovery of all proper damages.” (Gen. Stat. 1909, § 4680.)
The statute providing a right of action for injury arising from a violation of the mining statute reads:
“For any inj'ury .to person or property occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action against the party at default shall accrue to the party inj'ured for the direct damage sustained thereby.” (Gen. Stat. 1909, § 4992.)
Just what the purpose of the legislature was in using the phrase “for the direct damage sustained,” is not at all clear; for if these words had been omitted entirely the act would have given a cause of action for any injury of which a violation of the act was the proximate cause. In our opinion the words “for the direct damage sustained” are mere surplus-age. We think the act must be given a broader scope and effect than the narrow and restricted words employed in the factory act, and therefore that a right of action was given to any person to recover for an injury to person or property where the failure to comply with the statute is the proximate cause of the injury, and that the father may maintain this action.
The title of chapter 117 of the Laws of 1883, ‘of which section 4992, supra, is a part, and which reads “An act to provide for the health and safety of persons employed in and about the coal mines of Kansas, and providing for the inspection of the same,” is broad enough to embrace provisions of a punitive character, including the giving of a right of action for its violation, and therefore the contention that section 4992 of the General Statutes of 1909 conflicts with section 16 of article 2 of the constitution can not be sustained. (Rural School District v. Davis, 96 Kan. 647, 152 Pac. 666, and cases cited in the opinion.)
In his petition plaintiff had alleged that he had incurred doctors’ bills in the sum of $150 for treating his son. After the case was called for trial he amended his petition and alleged that he had paid the doctors’ bills amounting to the sum of $150; and on the trial he testified that Dr. E. L. Parmenter, who was the local surgeon of the defendant company, charged him $150 for services and that he paid the doctor $95. The jury allowed him $100 damages for doctors’ bills, including that of Dr. Parmenter. At the hearing of the motion for a new trial the affidavit of Dr. Parmenter was presented showing that he had removed to Wisconsin, that he treated the plaintiff’s son for the injuries complained of until the son had recovered, and that on the 6th day of March, 1914, he was paid by the railway company, through its claim department, the sum of $125 in full payment, and that at no time did he ever receive any money from the father or the son on account of such services. ■ There was also introduced the voucher of the railway company showing that Dr. Parmenter’s claim had passed through all of the departments of the railway company, had been approved and paid by a draft, which was introduced in evidence. The affidavit of an attorney for the defendant was also offered, showing that he did not learn of the fact that the bill had been paid until the trial of the cause had begun, and the defendant was not in position to prove the payment at the trial. Under the circumstances, it was error for the trial court to refuse to grant a new trial. (The State v. Tyson, 56 Kan. 686, 44 Pac. 609; The State v. Keleher, 74 Kan. 631, 87 Pac. 738; Dent v. Simpson, 81 Kan. 217, 105 Pac. 542; The State v. Mounkes, 91 Kan. 653, 138 Pac. 410.)
The judgment is reversed and the cause, remanded for further proceedings. | [
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Per Curiam:
The judgment of the court below is affirmed on the authority of Freeman v. Railway Co., ante, p. 327. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
In an information containing two counts O. W. Finch was charged with manslaughter in the third and fourth degrees for the killing of M. Brooks. He was found guilty of manslaughter in the fourth degree, as charged in the second count. In his appeal numerous errors are assigned, some of which are not deemed to be material. The information, which closely follows the language of the statute, is challenged, but it clearly appears to be sufficient.
After the opening statement had been made in behalf of the state the defendant asked that the county attorney be required to elect under which count of the information he would rely for a conviction. The motion was denied, and without error. An election was required at the close of the testimony for the state, and the county attorney then elected to stand on the charge in the second count. That is an appropriate time to make an election when an election is necessary, and certainly there is no ground to complain that it was not made earlier.
The questions asked of the witness for the state on cross-examination as to whether the shooting was accidental involved conclusions related to one of the main issues submitted to the jury, and hence were properly excluded.
Nor was any error committed in the admission of the testimony as to conversations with the defendant in regard to his having and handling a gun before the shooting, and the use he intended to make of it. It went to the culpable negligence charged against him.
The principal complaint of the defendant is of the admission of testimony given by himself at the coroner’s inquest. The stenographer who took the testimony was introduced as a witness, and after qualifying she read from her notes the testimony that the defendant had given. There was an objection that her name had not been indorsed on the information until after the defendant had pleaded — which is immaterial —and for the further reason that the defendant was an involuntary witness at the coroner’s inquést, and by introducing his testimony he was in fact made a witness against himself, in violation of the constitution. The objection was overruled, and the testimony admitted. Later the court on its own motion struck it out, and advised the jury that it was withdrawn from their consideration.
The withdrawal of testimony erroneously admitted, coupled with an instruction to the jury to disregard it, will in most cases cure the eror. If, however, the testimony is very material, and of a kind calculated greatly to influence and prejudice the jury, a withdrawal of it ‘with an instruction to overlook it may not remove the prejudice or cure the error. Assuming that the effect of the evidence was not removed by its withdrawal, we find nothing in the record showing that it was inadmissible.
Like others, the defendant was subpoenaed as a witness to testify at the inquest as to the cause of Brooks’s death. For aught that appears he may have been anxious and swift to testify. There is not a hint in the record that he was led to testify through any inducement of promised favor, or by reason of any fear,' menace, or duress. Ordinarily, all that a defendant has said pertinent to the subject of inquiry may be received in evidence against him. The exceptions to this rule are when admissions have been extracted from him by means of promises or threats, or where testimony given or statements made have been compulsory or involuntary. The test of admissibility in this and like cases is, Were the statements made voluntarily and without compulsion? In this instance they were made in an inquiry where the defendant was a witness and not a party, and where he might have claimed the privileges of a witness. He was not in custody, nor had any accusation been made against him. Indeed, it does not appear that Brooks’s death was then thought to have been caused by any criminal act. The constitutional limitation that no person shall be a witness against himself should be broadly interpreted so as to give full protection to one accused of crime, but neither the constitutional limitation nor the rule of the common law requires the exclusion of statements or testimony voluntarily given. An unsworn confession, made to an officer by one charged with crime and under arrest, may be given in evidence against him, providing it was freely and voluntarily made. The fact that a statement with reference to the cause of a death is made under oath by one not accused nor in custody can hardly be less reliable. If the testimony that defendant gave was incriminating, was it inadmissible merely because he was subpoenaed as a witness and gave his testimony at a formal inquest before the coroner ? There was no compulsion to testify, unless the mere fact that he was subpoenaed to give his testimony can be so regarded. There is considerable diversity of opinion in the cases as to the admission of such testimony, and these may be found compiled and classified in Wigmore on Evidence (vol. 1, §851, and the appended note).
' In an early New York case the subject was examined and' the cases reviewed, and it was held that upon a trial for murder statements made by the prisoner as a witness at a coroner’s inquest upon the body of the deceased, when the witness was not under arrest or accused of the crime, were admissible against him. (Hendrickson v. The People, 10 N. Y. 13, 61 Am. Dec. 721.) In a later case a witness at a coroner’s inquest who appeared in response to a subpoena testified, and on his subsequent trial the testimony was admitted against him, although he knew at the time he testified that he was under suspicion of having committed the crime under investigation and would probably be arrested. (Teachout v. The People, 41 N. Y. 7.)
In People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, the defendant was charged with murder. At an inquest over the body of the deceased the defendant testified in pursuance to a subpoena issued by the coroner, and he was threatened with punishment if he refused to testify. At the close of the inquest he was arrested, charged with the crime. The court said:
“When a person is called upon to testify at a coroner’s inquest, convened to inquire into a crime, for the- commission of which such person is then under arrest, or upon which he has been formally accused, he occupies the same position, and he has the same rights, as though he were before an examining magistrate. (People v. Mondon, 103 N. Y. 211, 8 N. E. 496, 57 Am. Rep. 709.) So, on the other hand, if the person who testifies at the inquest does so simply as a witness, he has none of the rights or immunities of a party. This is the foundation of the rule which is now firmly established in this state — that when a person testifies at an inquest as an accused or arrested party, his testimony cannot be used against him upon a subsequent trial of an indictment growing out of the inquest, unless his testimony has been voluntarily given after he has been fully advised of all his rights and has been given an opportunity to avail himself of them. (People v. Chapleau, 121 N. Y. 267, 24 N. E. 469.) The logical and necessary corollary of that part of the rule stated is that when a person testifies simply as a witness and not as a party, his testimony can be used against him even though he is afterward indicted and tried for the commission of the crime disclosed by the inquest.” (Page 331.)
Other authorities supporting this rule are: Wilson v. The State, 110 Ala. 1, 20 South. 415, 55 Am. St. Rep. 17; Jones et al. v. The State, 120 id. 303, 25 South. 204; State v. Coffee, 56 Conn. 399, 16 Atl. 151; State v. Gilman, 51 Me. 206; Schoeffler v. The State, 3 Wis. 823; Williams v. The Commonwealth, 29 Pa. St. 102; Newton v. The State, 21 Fla. 53; Kirby v. The State, 28 Tex. App. 13, 5 S. W. 165; The People v. Taylor, 59 Cal. 640; 1 Green. Ev., 15th ed., §225.
Some of the courts have taken a different view. (The State v. Young, 119 Mo. 495, 24 S. W. 1038; State v. Young, 60 N. C. 126; State v. Senn, 32 S. C. 392, 11 S. E. 292; State v. O’Brien, 18 Mont. 1, 43 Pac. 1091, 44 Pac. 399.) It appears from the opinion of the supreme court of Missouri, in The State v. Young, supra, that the defendant was an ignorant German boy, and that his examination, upon its face, showed that its purpose was to elicit from him criminating admissions, and the examination was conducted as if he were the defendant in a preliminary examination. The same court, in The State v. Wisdom, 119 Mo. 539, 24 S. W. 1047, held that statements voluntarily made by a witness before .a coroner’s jury with a view of casting the guilt upon another were admissible against him on his trial for murder. In State v. Young, 60 N. C. 126, the witnesses were arrested and brought before the coroner, and while in custody statements were obtained from them implicating them in the homicide.
Attention is called to the case of The State v. Taylor, 36 Kan. 329, 13 Pac. 550, but there the testimony at the coroner’s inquest was admitted because it did not appear to be involuntary. In the course of the opinion it was said that if the defendant was compelled by subpoena or otherwise to give his testimony before the coroner’s inquest, and there was duress, it should be excluded; but that case is not an authority that testimony given under a subpoena and without compulsion and duress is inadmissible.
Testimony at a coroner’s inquest as to the cause of a death, given by a witness who is not accused nor under arrest, is not deemed, to be involuntary merely because he testified in response to a subpoena. Of course, if it appeared that he testified as a party rather than as a witness, or if he had been induced to testify by promises or threats or other improper influences, his testimony might not subsequently be used against him. In this case there are no circumstances indicating coercion, nor anything inconsistent with the view that the defendant desired or sought the opportunity to testify.
The criticisms of the instructions have been examined, and it is found that the charge given by the court fully covered the issues in the case and fairly presented the law applicable to them. Some of those requested and refused were inappropriate, but it appears that the pertinent principles of law in most of them were included in the instructions given. No error is seen in any of the rulings charging the jury, nor do we see any necessity for an extended review of the instructions.
After the jury had been out a considerable time they were recalled and inquiry was made by the court as to the probability of an agreement. The judge inquired if the disagreement was because of a failure to understand the instructions, and also if they disagreed as to the testimony. They informed the court that there was no misunderstanding as to the instructions, but that they did not agree as to the testimony. The judge then remarked: “Mr. Foreman, you may step to my desk and indicate with pencil and paper the two numbers that show how the jury stand at this time; not which side they are for, but just write the two numbers.” After this was done the jury were directed to return to their room for further deliberation. Of this action complaint is made. It will be observed that there was no admonition urging an early verdict, nor anything approaching coercion. Evidently the court was seeking information to determine whether there was reason to hope for an agreement upon a verdict, and there was no impropriety even in the action taken.
An attempt was made to impeach the verdict by the affidavit of a juror, in which he undertook to state some of the things that influenced him in uniting with others in a verdict of guilty. They are matters which essentially inhere in the verdict, and which were not competent to impeach it. It may be said, however, that later he made a fuller affidavit, explaining that he voted for conviction and agreed on the verdict after a careful consideration of the evidence and a careful reading of the instructions of the court.
We have also examined the testimony on the motion for a new trial with reference to the conduct and statements of .jurors Thompson and Griffin, and find nothing which disqualified them or indicated that the verdict was reached by improper influences.
Finding no prejudicial error, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
To determine the principal controversy, whether the transaction between Harry H. Lusk and his mother constituted a loan by the latter to her son, it will be necessary to review the evidence on both sides of the question. It came before the trial court in written form. We are at liberty, therefore, to exercise an independent judgment respecting the facts proved. A draft for $5000, the proceeds of insurance on the life of her husband, was received at Parsons by plaintiff in error. It came in a letter addressed to her son, the late Harry H. Lusk: She returned it to him, indorsed, and he deposited it in the First National Bank to his credit, as agent, on January 31, 1890. Between that time and September 4, following, the whole amount was checked out in different sums, varying from $425 to $2000. The checks were signed “H. H. Lusk, agent.” A short time after the deposit of the draft the son gave to his mother a memorandum- or pass-book, in which he had written the following: “Mrs. Nannie Lusk in account with H. H. Lusk; credit by $5000, deposited in the First National Bank, to be loaned out.” On an opposite page was this entry: “Mrs. Nannie Lusk in account with H. H. Lusk; debtor, March 3, 1890, to cash on account of interest, $50.” The book was delivered to Mrs. Lusk in the presence of her daughter, Mrs. Bedell, who testified:
“He asked if we all were willing that he should handle this money. He said he could get ten per cent, interest, he hoped more, and he wanted to. know if we had perfect confidence in him and felt that it was safe in his hands.
“Q. What was said with reference to loaning him the money by your mother? A. She agreed to it; just so it was safe. He said he knew he could give her ten per cent.; he hoped it might be more.”
The witness had a conversation with her brother, shortly before his death, in which he said that the principal was secure, that it was exactly as when placed in his hands, and requested that the witness and her sister Mabel would never tempt their mother to break it. Mabel Lusk, another sister of the deceased, testified:
“Q. Now you may state, Miss Mabel, what was said by your brother with reference to the borrowing of this money — the rate of interest, and what was said. A. He said he could get ten per cent., and possibly more; possibly twelve per cent., but he knew ten per cent. . . .
“Q. And what did your mother say to him with reference to his having the money at ten per cent.? A. She said she was willing for him to have it.”
Laura Lusk, another sister, was present when the draft was turned over by the mother to her son Harry. She testified:
“He said he could get her ten per cent, interest, and perhaps more; that he never wanted her to break the principal; that if she broke the principal she would have nothing.”
It was shown that the deceased paid his mother fifty dollars monthly, on the 3d of each month, commencing with March 3, 1890. The last payment was made on November 2, 1902.
There is no contention that the original transaction between mother and son differed in any respect from the history of it as detailed by the witnesses above named. It is conceded that the agreement between the parties was oral. The court below determined that the amount paid Mrs. Lusk in excess of ten per cent, per annum was usurious, and, in addition to forfeiting this excess, added thereto a penalty of two per cent, in applying the requirements of section 3591 of the General Statutes of 1901 to the case. In defending the position taken by the trial court counsel for defendants in error rely chiefly on the fact that twelve per cent, as interest was paid and received for more than ten years; and, further, that the claimant herself treated the transaction as a loan in the presentation of her demand to the probate court.
It is an essential requisite to a usurious transaction that there be a loan, either express or implied. (Lloyd v. Scott, 4 Pet. 205, 7 L. Ed. 833; Williams v. Reynolds & Smith, 10 Md. 57; Perley, L. Int. 201.) As against the presumption of a usurious agreement arising from the payment of an amount above the legal rate of interest for a number of years are the express words of the deceased at the time he received the money, acquiesced in by his mother, to the effect that he could get her ten per cent, interest, and perhaps more. This declaration was followed by a deposit of the amount tc his credit in the bank “as agent,” and its withdrawal from the bank by checks signed by him in the same way. Shortly before his death he asserted that the principal sum had not been impaired. The entries made by him in the pass-book, crediting his mother with $5000, “to be loaned out,” is strong corroborative evidence that he acted in the capacity of her agent, and was not a borrower. The payment to her of fifty dollars a month would carry with it a stronger presumption of a usurious transaction if the parties did not sustain the relation of a widowed mother and son. The facts proved, considering the relationship of the parties, lead to the conclusion that the payment of usurious interest for more than ten years by the son to his mother was not made in compliance with a contract in which she exacted the rate received. It is a more rational view to attribute the sums paid every month to a recognition of filial duty on the son’s part, regardless of whether the mother’s money earned the amount paid to her or not. The court cannot escape from giving heed to those sentiments of parental affection which tend to excite liberality in a son when the support and welfare of his mother are concerned. If the deceased received the money for the purpose of investing it for his mother, the fact that he may have exacted and collected usurious interest from persons to whom he loaned it, and paid the usurious rate to his mother, is immaterial in this case.
Again, the existence of a usurious contract is never presumed. Where an agreement to pay interest is subject to two constructions, one of which would make it usurious, and the other not, the court will adopt the latter. (Succession of Bushrod Jenkins, 5 La. Ann. 682.) The burden is upon the party seeking to impeach the transaction to show guilty intent, and that the contract was a cover for usury. (Matthews v. Coe, 70 N. Y. 239, 26 Am. Rep. 583; Brolasky v. Miller et al., 8 N. J. Eq. 789.) The case of Rosenstein v. Fox, 150 N. Y. 354, 44 N. E. 1027, is a pertinent authority. It was there said:
“Usury, as a defense to an action upon a promissory note given for a loan of money, is not made out by testimony of the defendant to the effect that upon several occasions after the loan was made he paid the holder of the note more than was due at that time for legal interest, without proof of any usurious agreement between the parties by which the defendant was to pay more than the legal interest for the money loaned.”
We quote also from a late case decided by the supreme court of New York, Bosworth v. Kinghorn, 94 Hun, App. Div., 187, 87 N. Y. Supp. 983, in which it was said:
“The evidence shows that both the notes sued on were given for loans of money, but there is an entire failure of proof that, at the time the loans were made or the notes given, any agreement whatever was entered into for taking or giving of interest in excess of the legal rate. It is conceded that moneys were paid to the plaintiff, as and for interest, amounting to 10% per cent, per annum; and, as to each note, it would appear from indorsements, for some years interest was paid at regular intervals of six months, from which it is argued that an inference may be drawn that that was the rate of interest contemplated by the parties at the times the moneys were loaned and the notes given. But that inference is not admissible in this case. Where there is evidence establishing that the lender has demanded interest in excess of the legal rate, and the borrower has complied with the demand, there is something from which an inference can be drawn that performance was made of an original contract, and in accordance with its terms. Such is the case of Smith v. Hathorn, 88 N. Y. 211; but here the payments of interest in excess of the legal rate may have been, and the proof justifies the conclusion that they were, in the nature of gratuities voluntarily made by the debtors, and for the purpose of equalizing payments made to relatives of members of the firm in transactions of some character had with them, and without either solicitation or demand of the payees as holders of the notes in suit. The evidence is altogether insufficient to sustain the defense of usury, and, as the trial justice points out, ‘the facts established warrant the application of the rules recognized’ in Rosenstein v. Fox, 150 N. Y. 363, 44 N. E. 1027, and White v. Benjamin, 138 N. Y. 623, 33 N. E. 1037. . . . The cases in which usurious interest has been credited on account of the principal sum are those in which usury, involving the element of intent, was fairly made to appear. The taint must be in the agreement.”
This case was affirmed by the court of appeals. (179 N. Y. 590, 72 N. E. 1139.)
We cannot give to the statements in the demand filed by the claimant in the probate court the force claimed for them by the learned counsel for defendants in error. The contention is that, the claim being for money loaned, and containing a reference to money borrowed, the plaintiff below was concluded by her deliberate designation of the nature of the transaction. The force of the terms mentioned are somewhat weakened by other allegations of the demand, to wit:
“The said Harry H. Lusk promised and agreed to pay to the undersigned interest on the amount so loaned at the rate of ten per cent, per annum from the date thereof, and more than that if it could be realized.”
The verification did not go to the nature of the claim. (Gen. Stat. 1901, §2893.) The statute requires the determination of demands against the estates of decedents in a summary way, without the form of pleading. (Gen. Stat. 1901, §2899; Hayner v. Trott, 46 Kan. 70, 26 Pac. 415.) Statements in such demands should not conclude a claimant to the same extent as if made in a formal pleading filed in the district court. Plaintiff below was entitled to an allowance of her claim, with legal interest from November 2, 1902.
The judgment of the court below is reversed, with directions to proceed further in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
D. J. Jones sued Ned Armstead for the possession of a city lot, and recovered a judgment, to reverse which this proceeding is brought. The plaintiff’s title was based upon two sheriff’s deeds, issued in pursuance of an execution sale made upon a judgment rendered against the defendant by a justice of the peace and taken to the district court by transcript. The controversy turns upon the validity of such judgment, sale, and deeds, the objections to which will be considered seriatim.
It is contended that there was no sufficient showing of a service of summons on the execution defendant or of the rendition of a judgment against him. ' The action in the justice’s court was brought upon two notes purporting to be executed by “Ned Olmstead,” by the use of a mark. The summons commanded the officer to whom it was addressed to serve it upon “Ned Almstead.” The return showed a service by the leaving of a copy at the usual residence of “Ned Almstead.” The defendant testified that he never knew of the summons or of the action until after the judgment was rendered and his property was advertised for sale on execution. The constable who served the summons identified the ejectment defendant as the person at whose residence the copy had been left. The judgment was entered against “Ned Almstead.”
The contention is that these proceedings do not show a good service upon, or judgment against, the defendant, whose name is said to be “Ned Armstead,” and who was sued by that name in the ejectment action. The different combinations of letters by which the name of the defendant was sought to be indicated in the proceedings before the justice and in the district court do not, of course, by any approved usage represent precisely the same sounds; but the rule of idem sonans requires only that there be a practical identity of sound, or even, as has been said, so close a similarity that the attentive ear finds difficulty in distinguishing the names when pronounced. (21 A. & E. Encycl. of L. 313.) It is easily conceivable that the defendant’s own pronunciation of his name was such that it might be difficult to say what should be the proper spelling. The testimony of the constable that the “Ned Armstead” who is a party to this litigation was the very person upon whom he served the justice’s summons, by leaving a copy of it at his place of residence, if accepted as true, removes any doubt that might otherwise exist as to the sufficiency of the service, or as to the identity of the defendant in the ejectment action with the defendant in the case before the justice of the peace.
The judgment referred to was rendered in 1894. The real property in question appears to have been sold subject to an existing mortgage. No appraisement was made and there was no investigation or determination of the amount of the mortgage. In 1887 section 448 of the civil code was amended by adding a provision that lands encumbered by mortgage “may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement.” (Laws 1887, ch. 177.) In 1893, as a part of the law providing for a redemption of lands sold on execution, the requirement for their appraisement was repealed (Gen. Stat. 1901, §4954), but no express change was made in said section 448, and the words just quoted are found in the present statute. (Gen. Stat. 1901, §4898.) It is claimed by plaintiff in error that in virtue of this fact it is still necessary where land is to be sold on execution subject to a mortgage that there should be an appraisement, or some determination of the amount of such lien, and that for lack of such step the sale was void. To this we cannot agree. The explicit repeal of the section of the statute providing for the appointment of appraisers (Gen. Stat. 1889, §4550) showed an unmistakable purpose to do away with an appraisement as a part of the procedure in execution sales, notwithstanding the omission to eliminate references to the matter from other sections. The statute upon its face (Gen. Stat. 1901, §4903) still forbids the sale of real estate upon execution for less than two-thirds of its appraised value, but it is recognized that such prohibition has become obsolete. (Johnson v. Atwood, 5 Kan. App. 346, 48 Pac. 600; Phelps v. Trust Co., 62 Kan. 529, 64 Pac. 63.)
The execution sale referred to was made September 10, 1894, by Thomas Evans, who was sheriff at that time. On April 9, 1896, Dan Gaughan, who had in the meantime succeeded to the office of sheriff, executed a deed upon it. This deed, among other inaccuracies, recited that the sale was made upon a judgment rendered in the district court commanding the sale of the real estate in controversy, and gave the defendant’s name as “Ned Armistead.” In October, 1903, with the purpose of correcting the mistakes of the first deed, Gaughan executed a second sheriff’s deed. The first deed is objected to on account of its misrecitals, and both deeds are objected to upon the ground that no officer except the one who made the sale could execute a valid deed without a special order of the court, under section 465 of the code (Gen. Stat. 1901, §4911). No such order was here shown. Prior to 1893 the statute required a sheriff’s deed to recite certain steps in the proceedings on which it was based. (Gen. Stat. 1889, §4557.) This section was repealed'by section 28 of chapter 109, Laws of 1893. (Gen. Stat. 1901, §4954.) From that time until 1899 there was no statutory requirement as to such recitals. Then a new section was enacted (Gen. Stat. 1901, §4955), which made any deed purporting to have been made in pursuance of an execution of a court of record prima facie evidence of the legality of the proceedings upon which it was based. Therefore, when the first deed referred to was issued the statute did not require that it should contain any specific recitals. Doubtless the evidence that its statements were incorrect was sufficient to overthrow any presumption of authority for its issuance; but this .authority was otherwise established by the introduction of the records of the proceedings on which it was based. It is true that it .is not shown that a certificate of purchase was ever delivered, but as suggested in Allen v. Leu, 9 Kan. App. 246, 59 Pac. 680, such certificate is not a prerequisite to a deed. It serves a purpose of its own, and its function ceases when a deed is made.
This, then, is the situation presented: At the time of the execution of this deed the grantee had bought the property at a valid execution sale; the sale had been confirmed; the period of redemption had expired; the purchaser was entitled to a deed; the statute did not in terms require the deed to show the character of the judgment on which it was based; the sheriff made a deed purporting to convey the property, but misdescribed the judgment. Whether or not this deed was valid for all purposes and against any attack, it was sufficient, with the prior proceedings in the matter, to enable the holder to maintain ejectment against the judgment defendant, if it was made by the proper person. The old statute (Gen. Stat. 1889, §4557) required a sheriff’s deed to be executed by the officer who made the sale. The present requirement applicable to sales made subject to redemption is that “if the defendant in execution . . . fail to redeem, the sheriff must, at the end of the redemption period, . . . execute a deed to the person who is entitled to the certificate of purchase.” (Gen. Stat. 1901, §4946.)
The statute in which this language occurs is modeled upon that of Iowa, and the section cited is almost a literal transcript of section 3124 of McLain’s Annotated Statutes of Iowa (1882), from which it is manifestly taken. Prior to its adoption here the Iowa supreme court had construed the words “the sheriff” as used in this section to refer to the person holding that office at the time the certificate is produced and the deed demanded. (Conger v. Converse, 9 Iowa, 554.) Following this construction, we hold that Gaughan was in April, 1896, the proper person to make a deed in pursuance of the sale made in September, 1894. From these conclusions it results that plaintiff was entitled to recover irrespective of the second deed, and the effect of that need not be considered. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Martin Stewart filed a petition against Willard E. Winner and the board of trustees of Park College, who attacked it by demurrer. The demurrer was sustained, whereupon the plaintiff brought proceedings in error in this court .to review that ruling, no judgment having been rendered. The decision of the trial court was affirmed. (Stewart v. Park College, 68 Kan. 465, 75 Pac. 491.) Upon the recording of the mandate of affirmance the plaintiff asked leave to file an amended petition. The court refused to grant it, and rendered judgment for the defendants. The plaintiff prosecutes error, and contends that under the statute (Civil Code, §136; Gen. Stat. 1901, §4570) he had an absolute right to amend his petition at any time before the filing of an answer or the rendition of judgment. Granting that this is true, it cannot avail the plaintiff. So far as the record shows he did not in fact file an amended petition, or tender one for filing, and he in no way advised the court in what respect or by what additions or alterations he wished to amend his original pleading.
“To secure the reversal of a ruling refusing to allow a party to amend his pleading, he must show affirmatively that the amendment proposed was material.” (Byington v. Comm’rs of Saline Co., 37 Kan. 654, 16 Pac. 1051.)
The position of the plaintiff is not bettered by the fact that if his view is correct he had a right to file his amended petition without permission. If the permission was unnecessary it could hardly have been material error to _ refuse to grant it. In Quinlan, Montgomery & Co. v. Danford, 28 Kan. 507, an attachment was dissolved because the affidavit was insufficient and the petition failed to state a cause of action. The plaintiff asked leave to amend each of them, and upon his request being refused brought the case here. In the opinion it was said:
“From the record before' us, we cannot declare that any material error was committed by the refusal of the district judge to allow the amendments. There is no showing made in the record as to the character of the amendments requested, and therefore we cannot say whether the amendments would have been sufficient to cure the defects in the petition and affidavit. Without leave of the judge, the plaintiffs had the right to amend their petition, as no answer had been filed. If they had made the amendment, and then the judge had ignored or refused to consider the petition as amended, the error would be material. If the record contained the proposed amendment to the affidavit, and it appeared from such amendment that the affidavit would be sufficient, the refusal of the judge to allow the amendment would also be material error. . . . Error is not to be presumed, but must be affirmatively shown, and we cannot say from this' record that any material or substantial error was committed.” (Page 511.)
In the present case the petition as it stood stated no cause of action; it was not in fact amended; no showing was presented that any amendment that could be made would be material; nothing therefore remained but for the court to render judgment for the defendants.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This is an original proceeding in quo warranto, brought on the relation of the attorney-general against the Kansas Natural-gas, Oil, Pipeline and Improvement Company, a private corporation organized under the laws of Kansas for the transportation and distribution of gas for light, fuel, and power, to oust it from burying its pipe-lines in the public highway. The defendant bases its claim of right thus to occupy the public highway on permission obtained from the abutting fee-owners. The gas company has filed a motion to dismiss this proceeding for the reason that quo warranto will not lie, but, in our opinion, this contention cannot be sustained, and the motion is denied.
The right of the gas company to bury its pipes in the public highway for the transportation and distribution of gas depends largely upon the effect such use would have on the subsequent use of the highway as a thoroughfare for public travel. It may be said that the gas company could not, and did not, as against the state, obtain from the abutting fee-owners any right to use the public highway for any purpose. Its use belongs to the public and not to the owners of adjoining property. It is true that there are some privileges which such an owner may exercise for the betterment of the adjacent estate, but he has no power to transfer to another any right to occupy the highway for any purpose.
By the provisions of section 1 of chapter 128, Laws of 1901 (Gen. Stat. 1901, §1366), companies organized for the purpose of piping and distributing gas for light, fuel and power are given authority to exercise the right of eminent domain. The privilege thus conferred stamps them as quasi-public corporations. It was said in the case of La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448, that “the production and distribution of natural gas for light, fuel and power is a business of a public nature.” Public highways are arteries of communication and of intertraffic in the commodities of the country. The means to accomplish these purposes change with the advance of civilization.
A public road, as a way of traffic and transportation, must, so far as possible, meet the demands of the people, and is subject to be used for such purposes by any means not destructive of its use as a public thoroughfare. When such ways first came into use the means of travel were on foot or on the backs of beasts; later, articles of traffic were transported by wheeled vehicles drawn by horses and oxen, and that is the general method employed to-day. It could not, however, be held that the highway could not be used for the transportation of passengers and for traffic by automobiles.
The contention of the state is that the use which the gas company is making of the highway is exceptional, and may be exercised only under a franchise from the state, mediately or immediately. We think this is an overstatement of the proposition. The use is not exceptional. The transportation of commodities on the highway is one of the uses for which it has always been maintained. The means, however, used by the gas company in the transportation of its gas are exceptional. A demand for this method has not heretofore existed in this state; but shall this fact alone deprive the defendant of the use of the highway for a usual and proper purpose, unless such use necessarily obstruct, seriously inconvenience or endanger public travel? In McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171, it was held that the use of a rural highway by a telephone company was not an additional servitude for which the owner of the fee could recover compensation. Speaking of the general use of a highway, the court said:
“It is variously defined or held to be for passage, travel, traffic, transportation, transmission, and communication. . . . The use is not to be measured by the means employed by our ancestors, or by the conditions which existed when highways were first devised. The design of a highway is broad and elastic enough to include the newest and best facilities of travel and communication which the genius of man can invent and supply.” (Page 218.)
The public highway is maintained for the transportation of the commodities of the country, and the means employed for such purpose need only be such as not to interfere with public travel to the extent hereinbefore stated. It is not shown that such privilege has been abused by the defendant in this case, nor is i(: claimed that the use by the gas company has or will incommode or obstruct public travel. Judgment for plaintiff is therefore denied.
All the Justices concurring. | [
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Per Curiam:
This action was commenced in the name of A. C. Wilcox, in December, 1897, on a promissory note given by the defendant to Wilcox. The plaintiff, recovered judgment in the district court, in April, 1899, and defendant prosecuted error to the court of appeals, where the judgment was affirmed. The cause was then certified to this court, and at the October term, 1902, it was reversed and remanded.
In August, 1903, John F. Switzer appeared in the court below, as the receiver of the Alfalfa Irrigation and Land Company, and asked that he be substituted for Wilcox, showing that at the time the action was commenced the Alfalfa Irrigation and Land Company was the owner of the note. It appears that Switzer was appointed receiver for the company March 15, 1901; that he took some part on the hearing in the court of appeals, and was an attorney of record for Wilcox in this court. There was no showing as to when he first learned that the Alfalfa Irrigation and Land Company was the owner of the note, but there was some evidence that he was the general attorney for that company before it failed and when the action was being tried in the district court the first time. There was no showing made why application for substitution was not made at an earlier date. The court below denied the application. This, it is claimed, was an abuse of discretion. This court is of a different opinion. There was no excuse or reason offered to the court below why the application for substitution had not been made before. This cause was continued in the name of Wilcox for several years after it was known by counsel for plaintiff that Wilcox was not the owner of the note. We think, under the circumstances, the court did not abuse its discretion in refusing to permit the receiver of the Alfalfa Irrigation and Land Company to be substituted for Wilcox.
The judgment is affirmed. | [
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Per Curiam:
Defendant in error had judgment for personal injuries in the sum of $7000, to reverse which the plaintiff in error prosecutes this proceeding.
The first error to which our attention is called, and the only one we deem it necessary now to consider, is in the admission of evidence as to the size of the plaintiff’s family. The evidence referred to is as follows:
“Ques. Have you any children? Ans. Yes, sir.
“Q. How many? (Objected to by defendant as' immaterial; objection overruled; to which ruling of the court the defendant at the time excepted.) A. Four.
“Q. What are their ages? (Objected to as irrelevant and immaterial; objection overruled; to which ruling the defendant excepted.) A. The oldest one is nineteen and the youngest one is eleven or twelve.”
Under the unbroken line of decisions of this court, the admission of this evidence must be held to have been erroneous and prejudicial. In Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887, Chief Justice Doster, in passing upon a question almost identical with this, held the admission of such testimony “a very grievous error,” and cited many cases in support of that conclusion. This was followed by this court in Railway Co. v. Hammerlund, 70 Kan. 888, 79 Pac. 152. The "defendant in error, however, very strenuously insists that the facts of this case render this well-settled doctrine not applicable here because, in cases where punitive damages may be allowed, all of the surroundings and conditions of the parties may be shown, and such inquiry includes all such items as the financial condition of both parties, the condition of their families, standing in society, and so forth. If we grant this claim we do not find the principle applicable to the facts of the case here. It is well settled in this state that in order to warrant the recovery of punitive, or exemplary, damages because of the negligence of the defendant such negligence must be so gross as to amount to wantonness, where no wilful or malicious acts are proved. (K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 671, 21 Pac. 770, 13 Am. St. Rep. 311, and cases cited.) While it is here strenuously contended that the evidence shows gross and wanton, if not malicious, negligence, we have car'efully examined the testimony upon this point and are fully persuaded that such is not the case. The court also, in its instructions to the jury, excluded this element from their consideration. This was done without objection, and is now the law of this case.
Again, it is contended that inasmuch as the question, “Have you any children?” was answered without objection, the further questions as to their number and ages were harmless and should not be considered within the rule. We are not able to agree with this contention. The same condition of the proof will be found in Railroad v. Eagan, supra. The reason of the rule is more strongly appealed to by the answer to the questions objected to than by the preliminary question.
It is further suggested that the rule which forbids the introduction of this kind of evidence ought to be abandoned because the information imparted to the jury by the answer to these questions might have been obtained by them as well by the calling of the children as witnesses, or by their presence in court. This reasoning does not appeal to us as being sound. That incompetent evidence may sometimes reach the jury as an inseparable element of competent evidence does not warrant courts in permitting the introduction of the incompetent evidence alone. This class of evidence has been condemned because of the prejudice, or bias, which it is likely to excite in the minds of a jury; and in this case, after carefully examining the evidence relative to the character of the injury, we are not prepared to say, in view of the size of the judgment, that they were not unduly influenced thereby.
The judgment is reversed, and the case remanded for further proceedings. | [
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The opinion of the court was delivered by
Greene, J.:
The sole question in this proceeding is the constitutionality of the act of 1905 called the “oil-refinery bill.” In its consideration the object of the statute — that is, the good that the legislature intended to accomplish, or the evil that it intended to prevent or correct — must be determined. Whether this law is simply a provision for securing larger and better facilities for the maintenance, employment and care of the inmates of the penitentiary, thus accomplishing a good work, or a provision for constructing, operating and maintaining an oil-refinery, thus attempting to correct a great evil, is of supreme importance.
In construing a statute resort should first be had to the language of its provisions. If it be found that a clear and definite meaning may be ascertained by giving the words their common signification, the court has no choice or discretion to exercise; its only duty is to declare the result of its investigation. An observance of this rule requires the court to consider every part of the act, and, if possible, to discover from the whole the legislative intent. Another requisite rule of construction is that where it is doubtful which of two objects the legislature had in view, one being within its authority and the other not, the language must be given a broad and liberal interpretation, and an endeavor made to apply the act to the object within the legislative authority. All presumptions are resolved in favor of the constitutionality of a statute, and when doubt is entertained its language should be given that construction which will sustain it. (The People, ex rel. Sinkler, v. Terry, 108 N. Y. 1, 14 N. E. 815; Miller v. Dunn, 72 Cal. 462, 14 Pac. 27, 1 Am. St. Rep. 67; City of San Diego v. Granniss, 77 id. 511, 19 Pac. 875; Mauldin v. City Council, 42 S. C. 293, 20 S. E. 842, 27 L. R. A. 284; 46 Am. St. Rep. 723; Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911.)
We confess to great difficulty in determining the object of the act under consideration. The title expresses it in this way:
“An act to provide for a branch penitentiary and oil-refinery in connection therewith, the issuance of bonds for said purpose, and making an appropriation therefor, and for the payment of principal and- interest on said bonds.” (Laws 1905, ch. 478.)
The title indicates that it was the intention to build and maintain a branch penitentiary, and also to build an oil-refinery. Section 1 provides:
“For the purpose of providing proper employment for . convicts confined in the state penitentiary, the warden of the Kansas state penitentiary is hereby empowered, by and with the advice of the board of directors of said penitentiary, to secure, without expense to the state, a suitable site for the erection of a. branch of the state penitentiary and oil-refinery at Peru.” (Laws 1905, ch. 478.)
Here again appears the double purpose — a branch of the state penitentiary, and an oil-refinery. The subsequent provisions of the section do not indicate an intention to build a branch of the state penitentiary, but go into great detail for the construction, maintenance and operation of an oil-refinery for the manufacture of crude and refined oil and its by-products,, and the warden of the state penitentiary is required to keep such refinery in repair and furnish the requisite machinery, equipments and instrumentalities for receiving, manufacturing and storing crude and refined oil, and marketing the same. No reference is made to the construction or maintenance of a branch of the state penitentiary, its dimensions, the number of rooms, the material of which it shall be constructed, or that any shall be constructed.
Section 2, however, makes some reference to a branch penitentiary, but closely connects it with the oil-refinery. It provides that in “constructing, maintaining and operating such branch penitentiary and oil-refinery, said warden and board of directors are hereby authorized to employ convicts in the state penitentiary.” The latter part of this section makes a specific provision with reference to a so-called branch of the state penitentiary, authorizing the officials to provide “suitable and humane facilities for the housing, feeding, guarding and overseeing of said convicts and the work to be performed by them.”
The only other reference in the .act to the construction of a branch penitentiary is in section 3, where an appropriation of $10,000 is made for the construction of suitable quarters and facilities for housing, feeding, guarding and overseeing the convicts at the branch penitentiary. It also makes an appropriation of $200,-000 for the construction of an oil-refinery plant, and $200,000 more for operating and keeping the same in repair, the purchase of crude oil, and the expense of receiving, refining, storing, handling and marketing its products.
From these provisions alone it is doubtful whether the primary object of the bill was to build a branch penitentiary at Peru, where oil is produced in great quantities, and incidentally thereto, and for the purpose of furnishing employment to the convicts confined therein, to build and operate an oil-refinery, or whether it was to construct and operate an oil-refinery plant in this oil-field, and operate it, so far as possible, by convicts in the state penitentiary, with such provisions, and only such, for the housing, guarding and feeding of such convicts as would be necessary for their care while employed in the refinery. But for the rule previously stated — that all presumptions are in favor of the constitutionality of a statute and that all doubts should-be resolved in support of it — and but for other means of information than the language of the act, we would be strongly inclined to hold that the legislature regarded the building and operating of the oil-refinery as of paramount importance.
Where, however, an act is so ambiguous, indefinite and uncertain that it is doubtful which of two objects the legislature had in mind, the court, for the purpose of determining the legislative intent, may resort to other means of interpretation than the language used in the statute.
The history and conditions of the people within the jurisdiction of a court at the time of the passage of an act which it is called upon to construe for the purpose of determining its validity are familiar to a court, and its knowledge of the same should aid it in assuming the proper viewpoint from which to discover the object of the law — particularly a law of the nature of the one under consideration. The history of a state, which should include the facts surrounding the enactments of its legislature and the questions therein raised upon the passage of every law of an economic nature, as well as the doings of its people and the public questions which have agitated their minds, is known by a court. If the act under consideration be one passed immediately before a court is called upon to construe it, the court is as familiar with the conditions of the people as any well-informed citizen of the state. It knows that in certain portions of the state large areas are devoted to the growing of wheat, while in other portions the farming of that cereal is not practicable. It knows that the same is true of corn and other crops. It knows that certain parts of the state require irrigation to make farming profitable, while in other parts the precipitation is generally sufficient. It knows that in certain counties large deposits of coal are found, and that in others large fields of oil and gas have been discovered. It knows the enterprises of the people of the state in a business way quite as well as it understands the agricultural conditions. It also knows those general facts concerning the public aims and interests of the state in social and economic ways which all well-informed people know, including the questions that agitated the public mind at the time this certain law was enacted, and knows the history of the constitution and the reason for the adoption of certain provisions and the rejection of others.
A court cannot devest itself of the knowledge of all these things in construing a statute or constitutional provision, even if it were disposed so to do. The consideration of this knowledge without proof of the facts is generally termed “judicial notice,” and, for the want of a better expression, it will suffice; but the term means no more than that courts, in construing the law, will bring to their aid all those facts which are known by all well-informed persons because they are matters of public concern.
Authority for taking into consideration the history of an enactment and the conditions of the people of the state at that particular time is abundant. The following seem particularly apt, and for that reason are herewith produced. The supreme court of the United States was called upon, in the case of Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, to put a construction on the second sec tion of the act of March 3, 1893 (27 Stat. at L., p. 531, c. 196), entitled:
“An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes- and their locomotives with driving-wheel brakes, and for other purposes.”
The section under consideration in that case reads-as follows:
“Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”
The act also provided:
“That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive-engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system.” (Enacting clause.)
On page 15 of the opinion it was said:
“The present case is that of an injured employee, and involves the application of the act in respect of automatic couplers, the preliminary question being whether locomotives are required to be equipped with such couplers. And it is not to be successfully denied that they are so required if the words ‘any car’ of the second section were intended to embrace, and do embrace, locomotives. But it is said that this cannot be so because locomotives were elsewhere in terms required to be equipped with power driving-wheel brakes, and that the rule that the expression of one thing excludes another applies. That, however, is a question of intention.”
The courf proceeded to show by argument that the word “car” used in the act was intended to apply to locomotive-engines, and then follows this statement, on page 19:
“And its intention is found ‘in language actually used, interpreted according to its fair and obvious meaning.’ United States v. Harris, 177 U. S. 305, 309, 20 Sup. Ct. 609, 44 L. Ed. 780.
“That this was the scope of the statute is confirmed by the circumstances surrounding its enactment, as exhibited in public documents to which we are at liberty to refer. Binns v. United States, 194 U. S. 486, 495, 24 Sup. Ct. 816, 48 L. Ed. 1087; Holy Trinity Church v. United States, 143 id. 457, 463, 12 Sup. Ct. 511, 36 L. Ed. 226.
“President Harrison, in his annual messages of 1889, 1890, 1891, and 1892, earnestly urged upon congress the necessity of legislation to obviate and reduce the loss of life and the injuries due to the prevailing method of coupling and braking. In his first message he said: ‘It is competent, I think, for congress to require uniformity in the construction of cars used in interstate commerce, and the use of improved safety appliances upon such trains. Time will be necessary to make the needed changes, but an earnest and intelligent beginning should be made át once. It is a reproach to our civilization that any class of American workmen should, in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war.’
“And he reiterated his recommendation in succeeding messages, saying in that for 1892: ‘Statistics furnished by the interstate commerce commission show that during the year ending June 30, 1891, there were forty-seven different styles of car-couplers reported to be in use, and that during the same period there were 2660 employees killed and 26,140 injured. Nearly 16 per cent, of the deaths occurred in the coupling and uncoupling of cars, and over 36 per cent, of the injuries had the same origin.’
“The senate report of the first session of the fifty-second congress (No. 1049)., and the house report of the same session (No. 1678), set out the numerous and increasing casualties due to coupling, the demand for protection, and the necessity of automatic couplers, coupling interchangeably. The difficulties in the case were fully expounded and the result reached to require an automatic coupling by impact so as to render it unnecessary for men to go between the cars; while no particular device or type was adopted, the railroad companies being left free to work out the details for themselves, ample time being given for that purpose. The law gave five years, and that was enlarged, by the interstate commerce commission as authorized by law, two years, and subsequently seven months, making seven years and seven months in all.”
In Division of Howard Co., 15 Kan. 194, it was said:
“The courts will take judicial notice, without proof, of all the laws of the state; and, in doing so, will take judicial notice of what the books of published laws contain, of what the enrolled bills contain, of what the legislative journals contain, and indeed of everything that is allowed to affect the validity or meaning of any law in any respect whatever.”
This principle was again announced in City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; and in LaRue v. Insurance Co., 68 id. 539, 75 Pac. 494, it was said:
“Courts of this country take judicial notice that under the treaty of Paris, between the United States and the kingdom of Spain, signed December 10, 1898, the Philippine islands became a part of our territory, and that after that time the inhabitants of those islands were in a state of insurrection against the government.”
These, like all other public matters, being of general concern to the people, were known to this court, as they were to all other well-informed persons, and therefore the insurance policy in that case was construed in the light of existing conditions.
“In determining the intent of the legislature the court is not limited to a mere consideration of the words employed, but may properly look to the purpose to be accomplished, the necessity and effect of the statute, under the different constructions suggested.” (City of Emporia v. Norton, 16 Kan. 236.)
“The persons whose duty it may be to inspect the act with a view to the determination of that question are not required to devest themselves of all knowledge save that to be gleaned from the act alone. For, were it possible for them thus to devest themselves, the act would be unintelligible — a jumble of words without meaning. So, when we say that the question is to be determined by an inspection of the act itself, we imply that those under whose inspection it is brought will scan it in the light of that knowledge which they possess in common with other men. There is no presumption that courts are ignorant of all matters that transpire outside the court-room. On the contrary, there are many matters outside the science of the law of which they are required to take judicial notice.” (Redell v. Moores, 63 Neb. 219, 226, 88 N. W. 243, 245, 55 L. R. A. 740, 93 Am. St. Rep. 431.)
The principle is stated thus in section 77 of Bishop on Statutory Crimes, third edition:
“They [courts] do not close their eyes to what they know of the history of the country and of the law, of the condition of the law at the particular time, of the public necessities felt, and other like things.”
“Courts are authorized to collect the intention of the legislature from the occasion and necessity of the law — from the mischief felt, and the objects and remedy in view.” (Sibley v. Smith et al., 2 Mich. 486, 487.)
“But courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it.” (United States v. Union Pacific R. R. Co., 91 U. S. 72, 79, 23 L. Ed. 224.)
“Courts will take judicial notice, without proof, of events which are generally known within the limits of their jurisdiction.” (State, ex rel. Thayer, v. Boyd, 34 Neb. 435, 51 N. W. 964.)
“In construing a constitution or law, the history of its passage through the convention or legislature is often of great assistance.” (Minnesota and Pacific Railroad Company v. H. H. Sibley, 2 Minn. 13, 19.)
“Constitutions as well as statutes are to be construed in the light of previous history and surround ing circumstances. ... On looking into the debates and journal of the convention which framed the constitution, we find much to confirm this view of the real object and purpose of this section.” (Kennedy v. Gies, 25 Mich. 83.)
From the last statement it clearly appears that in the determination of the question presented to the court in that case it had consulted the debates and the journal of the convention which framed the constitution.
“The respective journals of the senate and house of representatives, containing the proceedings in reference to a bill enacted into a statute, may be looked to by the courts to ascertain the intention of the legislature in enacting such a statute, if it be ambiguous.” (Edgar v. The Board of Commissioners of Randolph County, 70 Ind. 331, 332.)
Judge Cooley, at page 101 of the seventh edition of his work on Constitutional Limitations, says:
“When the inquiry is directed to ascertain the mischief designed to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument.”
“But when the meaning of words is doubtful, and where it is seen that the same words have different meanings when employed under different circumstances, or to effect different objects, resort may be had to extrinsic circumstances (Smith v. Helmer, 7 Barb. 416), and the courts may seek for that intent in every legitimate way.” (The People v. Schoonmaker, 63 Barb. 44, 47.)
A similar case was The Mohawk Bridge Co. v. The Utica & Schenectady R. R. Co., 6 Paige (N. Y.) 554. It was there said (at page 561) :
“It is only necessary to advert to facts of public notoriety to enable us to understand the language used by the legislature.”
“Constitutions are to be construed as the people construed them in their adoption, if possible; and the public history of the times should be consulted, and should have weight in arriving at that construction.” (Bay City v. The State Treasurer, 23 Mich. 499.)
Statutes are but public sentiments enacted into laws, and frequently the policy of such legislation is the .subject of much public discussion, both before and at the time of its enactment. In construing it courts may not shut their eyes to these public discussions. They are proper matters of consideration in determining the legislative intent, and should be considered for that purpose in the construction of an act growing out of such discussion.
In common with all other well-informed persons this court knows of the great quantities of crude oil that were discovered in a part of the state; the rapid development of this field of industry; the general public complaint that a particular corporation was unjustly manipulating the market of this product so that the producer was being deprived of what rightfully belonged to him; that a public demand was made upon the legislature of 1905 to enact some law which would protect the producer from the further encroachments of this corporation upon his rights.
The senate journal of that legislature shows that on January 12, 1905, senate bill No. 30 was introduced by'Senator Porter, with the following title:
“An act to provide for the construction, maintenance and operation of a state oil-refinery, and to provide the necessary funds for such construction, maintenance, operation, and management, and to place the operation and management thereof under state control.” (Page 38.)
On January 16 senate bill No. 30 was read a second time, and referred to the committee on oil and gas. (Page 50.)
February 3, 1905, under the head of “Reports of Standing Committees,” the committee on oil and gas made the following report:
“Mr. President: Your committee on oil and gas, to whom was referred substitute for senate bill No. 30, An act in relation to the employment of convicts in the state penitentiary, and in relation to the construction and operation of a state oil-refinery in connection therewith, have had the same under consideration and instruct me to report the bill back to the senate with the recommendation that it be passed. — S. S. Benedict, Chairman.” (Page 200.)
This report refers to substitute for senate bill No. 30, but the journal does not show that a substitute was. introduced in the senate.
On February 7 the committee of the whole made the following report:
“Mr. President: The committee of the whole senate have had under consideration bills on the calendar under the head of ‘Special Orders/ and I am directed to report as follows:
“Recommended that substitute for senate bill No. 30, An act to provide for the construction, maintenance and operation of a state oil-refinery, and to provide the necessary funds for such construction, maintenance, operation, and management, and to place the operation and management thereof under state control, be passed as amended. — I. D. Young, Chairman.”' (Page 224.)
The senate journal of February 8, under the head of “Presentation of Petitions,” contains the following petition offered by Senator Porter of Crawford:
“To the Honorable Senate and House of Representatives of the State of Kansas in legislature assembled:
“The undersigned petitioners, citizens of Cherokee, Kan., and vicinity, respectfully call your attention to the fact that Kansas petroleum, one of the most staple-articles that constitutes the natural wealth of the-state, is rapidly falling into the hands of the most arrogant and despotic trust in the world, which, by the ownership and monopoly of such products, is not only stifling industry in this state, but extorting millions of dollars every year from the people of Kansas by setting its own price on our state products. Therefore, your petitioners respectfully ask that some legislative enactment be granted by which the state may own and operate a number of plants throughout the oil-fields for the refining, distribution and sale of oil. Your petitioners fully believe that such action on your part would not only be for the best interests of the state, but it would be in accord with the will of a large majority of the citizens.” (Page 226.)
On February 8, under the head of “Third Reading of Bills,” the journal shows that the substitute for senate bill No. 30 passed, under the following title:
“An act to provide for the construction, maintenance and operation of a state oil-refinery, and to provide the necessary funds for such construction, maintenance, operation, and management, and to place the operation and management thereof under state control.” (Page 230.)
On the motion of Senator Smith of Edwards, the title was amended to read as follows:
“An act to provide for a branch penitentiary and oil-refinery in connection therewith, the issuance of bonds for said purpose, and making an appropriation therefor, and for the payment of interest on said bonds.” (Page 231.)
The senate journal of February 17 (at page 367) shows that the governor transmitted to the t legislature his special message approving senate bill No. 30, as follows:
"To the Senate and House of Representatives:
“The enactment of so important a piece of legislation as the bill providing for the establishment of an oil-refinery in this state is such a radical departure from governmental precedent that it seems wise to put upon the records a clear statement of the provocation and purpose of this undertaking.
“It is due to the legislative as well as the executive department of state that this be done, that our action be clearly defined and thoroughly understood at home and abroad.
“The causes leading up to this legislation are well known. About twelve years ago oil in vast reservoirs was discovered beneath the soil in southeastern Kansas. Private capital rapidly sought investment in these widening fields of subterranean wealth. Thousands of our people and many citizens from other states invested their hard earnings in these fields. The Stanard Oil Company encouraged these investments by offering remunerative prices for the crude product. _ Thus encouraged, thousands of our people invested their all in oil-wells, and in the five or six counties covered by the discovery there was for a few years a wonderful impetus to material development. Towns sprang up like magic, and villages grew into cities. At the high tide of this prosperity, encouraged and stimulated by the Standard Oil Company, this great corporation, in harmony with its tactics elsewhere, commenced a systematic absorption of this vast wealth, which threatens to bankrupt these countless private investors and to depreciate and destroy the honest efforts of all the people for the upbuilding of that part of the state. Under one pretense and another crude oil has been depreciated more than one-half in price, while the final product, kerosene, has been increased in cost to the consumer.
“This has been the history of this powerful and rapacious corporation in all of its fields of operation. Unable to cope singly and individually with this powerful commercial combatant, the people immediately affected came to the legislature asking relief at its hands, and their request has been seconded with wonderful unanimity by sympathetic people all over the state. This law is the result. Scarcely a man can be found in whose bosom throbs the desire for fair play who does not sympathize with the spirit and sentiment which inspired this movement. There have been, and are, however, widely divergent views as to the wisdom of this and other remedies proposed to right these recognized wrongs. These divergent views have been honestly and conscientiously entertained. Many have doubted the wisdom and possible effectiveness of this particular measure. I myself have believed that all the desired results to be attained by this appropriation could be accomplished by an appropriation of $50,000. I believe the expenditure of that sum for the establishment of an experimental refinery at Lansing would have eliminated the constitutional question and subserved all the possible purposes to be subserved by the larger apropriations. By experiment I do not mean,, as some seem to suppose, an experiment along mechanical lines, for no experiment is needed of this kind; but I mean añ experiment, first, which shall definitely and authoritatively settle the question as to the possibilities and profits of the refinery business. These matters are in endless dispute. No one knows about them except experts, and they won’t tell. Secondly, as to the legality of any undertaking of this kind; and thirdly, an experiment in a small commercial way on a competitive market.
“The difference between my plan and the one adopted is one of degree and relative expense, and I still think the chances of success would have been greater and the possibilities of failure less. I think Kansas could well afford to make such an official contribution to the great discussion going on in this country on this subject, and help materially in this way to a wise final solution of the problem. I am aware of the transportation and other difficulties involved in this proposition, but I believe they could all be easily overcome. These views, however, have not prevailed; other counsels, and, I trust, wiser ones, have had supremacy.
“It is due to this state to say that this movement has not been conceived, as many suppose and some charge, in the spirit of socialism. It is not, indeed, a socialistic movement, but the very reverse of it. True, it has the semblance of socialism, but its soul is that of competition. Its garb is socialistic, but its real person is competitive. What is socialism? It is a heresy which I have studied and combatted for years, and of whose fallacy I am more than ever convinced; a heresy which has extensive literature, ancient and modern, the fundamental tenet of which, so far as material matters are concerned, is the negation of property rights in individuals — the denial of the right of individuals to own property. Its profoundest philosophers have all taught that personal ownership of property is a crime. Is this oil-refinery movement tinctured at all with this heresy? I answer, emphatically, No.
“No one denies the right of the Standard Oil Company to own oil properties or to deal in oils. This company has invested vast sums of money in Kansas, and certainly no one has objected to these investments; they have been gladly welcomed, as are all legitimate investments, and are entitled to the protection accorded to all other investments. It is not the possession and exercise of these property rights, but the abuse of them, to which objection is made. This is not an attempt to drive the Standard Oil Company out of Kansas, to deprive it of legitimate profits, or to do it any injustice of any kind — it is an attempt to compel it to treat the people of this state fairly, and to give every man a square deal. If this state refinery succeeds it will not attempt to monopolize the oil business of this state — it has no such purpose in view. It is not an attempt to establish a monopoly, but it is an attempt to compel a monopoly already existing to be decent. It will not discourage, but encourage, private investment in this line of industry. It will welcome all such investments. It is an attempt to make competition possible, and not to destroy competition, as socialism does; and when its purpose is achieved, when private capital can come to Kansas and find investment in oil-refineries, with a fair chance of success, when normal conditions have been restored, when individual competition shall again be possible, when these good conditions have been made permanent, then the state will not only be willing, but will be glad, to retire from the refining of oil, and leave that business as well as the other lines of industry in the hands of private competitors, where it legitimately belongs, but where it is now impossible, on account of the greatest socialistic corporation now doing business on earth, the Standard Oil Company.
“No greater question confronts the American people than the control of these great aggregations of capital, all of them socialistic in their character, and which are antagonistic to the essential element of all national progress, the competitive system. A timely and significant illustration of the coercive character of these modern combinations of capital, and of their menace to private and public weal, was furnished in the recent telegram of the manager of the Standard Oil Company petulantly and arbitrarily withdrawing its patronage from the producers in the oil-fields. Were that order maintained thousands of good people would soon be bankrupt and homeless. An economic condition which makes it possible for one man with a stroke of his pen to bankrupt thousands of his fellow citizens is inherently wrong and will not be permanently tolerated by a free and patriotic people, and it illustrates more forcibly than any recent event has done the necessity of a wise solution of this whole trust problem. Playful resolutions have been introduced into this legislature for the control of other trusts; but the question is a serious one, and I have the utmost faith that the intelligent, patriotic and courageous American people will find a solution for all of these problems. We are all groping in the dark, but we will get out into the light after a while. This Kansas contribution to the solution of this great problem may or may not be a wise one, but it is at least an honest and courageous one. A free people had better fail in an attempt to defend their rights than to make no attempt in this direction at all.
_ “Differing somewhat as to methods, but in hearty sympathy with the purpose of this enactment, I have given it my approval, and will exert whatever power I may possess to the fullest extent _to_ make this undertaking a success, and I call upon all patriotic people of the state, now that their representatives have spoken,, to lay aside individual opinions and personal predilections and unite in the support of a common cause. # I wish again to call the attention of the legislature to a suggestion formerly made, that no undertaking of this kind can succeed unless supplemented by adequate railroad legislation, for by the manipulation of railroad rates by the Standard Oil Company in its own self-interests, to the detriment of independent refineries, is due largely the present unfortunate condition of affairs; and it is absolutely useless to spend a dollar of the people’s money in the manner provided by this bill unless this legislation be supplemented by a law protecting this enterprise, as well as other individual competitive enterprises, from the unjust discriminations and extortions which have crippled and crushed competitive efforts in the past.
“Incidentally, I may suggest to the legislature that, as this law imposes heavy additional duties upon the warden and directors of the penitentiary, the latter of whom are already poorly paid, additional remuneration should be provided for them. E. W. Hoch, Governor.”
The executive sustains a more direct and intimate relation to the people than any other official. He knows and understands the conditions, desires, aspirations and aims of each community. The bill in question, having originated, as expressed in the message, in a popular demand for relief against a “powerful commercial combatant,” against which the individual was unable to cope, met the hearty and enthusiastic approval of the governor, not as an appropriation to build a branch of the state penitentiary but as an appropriation for the construction and operation of an oil-refinery; and, inasmuch as no reference is made to the branch penitentiary, it may be said that the governor did not understand that there were any provisions in the bill which seriously contemplated the building of a branch of the state penitentiary. The governor discloses his apprehension of the constitutionality of this bill in his comparison of the feasibility of the many plans which had been suggested for the repression of the greed of this “rapacious corporation” with-his own, which was to appropriate $50,000 for an experimental refinery at Lansing. He said:
“I believe the expenditure of that sum for the establishment of an experimental refinery at Lansing would have eliminated the constitutional question and sub-served all the possible purposes to be subserved by the larger appropriations.”
This constitutional provision is a limitation placed by the people in their paramount law upon the power of the legislature, preventing it from diverting the energies of the state from public and governmental functions into private and business enterprises. No circumstances can arise which will justify its violation by any governmental department. It is a protection against a particular class of ill-advised or rash legislation resulting from a distempered public sentiment, which requires only cooling time for its proper adjustment.
If, as contended by the state, the object of the bill is to construct a branch penitentiary, it seems strange that the governor in approving it should feel called upon to say that it “is such a radical departure from governmental precedent that it seems wise to put upon the records a clear statement of the provocation and purpose of this undertaking, . . . that our action be clearly defined and thoroughly understood at home and abroad.” The construction of penal institutions is not a “radical departure from governmental precedent.” The “provocation” for maintaining such institutions is known to all persons. Besides, what interest have the people abroad in the subject of our penal institutions that for their benefit “our action be clearly-defined”? The indictment of the Standard Oil Company in the message is no doubt true, and the provocation was very great, but
“We must not make a scarecrow of the law, Setting it up to fear the birds of prey.”
The consideration of the bill in the light of the public conditions under which it was conceived, the title under which it was introduced in the senate, the bill itself, and its reference by the senate to its committee on oil and gas instead of to its committee on penal institutions, the passage of the bill by the senate under its original title and the purpose of the bill and the reasons for its passage as expressed by the governor in his special message of approval leave no doubt in our minds that the object of the bill was to secure a site whereon the state should construct, operate and maintain an oil-refinery, and that in so far as the warden and board of directors of the state penitentiary might think advisable they could employ in the construction of the building and maintaining and operating the refinery inmates of the state penitentiary, and for this reason provisions were made for housing, feeding, guarding and overseeing such convicts, and the work to be performed by them while thus engaged.
The bill, being an appropriation for the construction, operation and maintenance of an oil-refinery, which is a “work of internal improvement” within the provisions of section 8, article 11, of the state constitution — which provides that “the state shall never be a party in carrying on any works of internal improvement” — is void. This or similar provisions are found in the constitutions of nearly all the states. The history of those states that have engaged in works of internal improvement under constitutions which contain no such inhibition, as well as those whose constitutions contain provisions authorizing the state to engage in such works, is not only interesting but instructive. It will suffice for our purpose to repeat the story of the disasters which followed such attempts in those states, as told in the case of Attorney General v. Pingree, 120 Mich. 550, 554, 79 N. W. 814, 815, 46 L. R. A. 407:
“Is the act contrary to section 9, article 14, of the constitution ? The section reads as follows: ‘The state shall not be a party to, or interested in, any work of internal improvement, nor engage in carrying on any such work, except in the expenditure of grants to the state of land or other property.’
“It is doubtless true, as urged by counsel, that the state legislature is given a general grant of legislative power, and that its power to legislate is subject only to such limitations as are imposed thereon by the express or implied limitations contained in the constitution of the state or the constitution of the United States. To understand the force and effect of the provisions of our constitution in relation to the attitude of the state toward internal improvements, it may be well to consider the experience of other states and of our own state prior to the adoption of our present constitution. The war of 1812 demonstrated the great need of a better system of intercommunication between the various portions of the country. The condition of the highways, both land and water, was such that troops and provisions could be moved but slowly and at great expense. This was also true of the products of the country. Succeeding the war of 1812, the state of New York entered upon the construction of the Erie canal. Its construction was doubtless of great benefit to the agricultural and commercial interests of the state, and especially to the city of New York. Other states were prompted to follow the lead of New York, and projected the digging of canals, the improvement of waterways, and the construction of railroads.. Nearly all the state constitutions adopted between 1830 and 1850 either gave the legislature permission, or made it mandatory, to ‘encourage internal improvements within the state.’ Many enterprises of this character were entered upon which were ill-advised. So many of them were undertaken, many of the states incurred obligations they were unable to meet. The rate of interest in these new countries was much higher than capital commanded in Europe. Money from, there after 1830 was furnished almost without limit, to be invested in the various projects devised by the several states. The state debts increased from $13,000,000 in 1830 to $100,000,000 in 1838. After the financial crisis of 1837 came, foreign capitalists who sought to draw out this money were unable to do so. An effort to collect these obligations proved abortive. Upon one pretext or another, many of the states repudiated their debts made for internal improvements. The states most disastrously affected were Maryland, Pennsylvania, Indiana, Illinois, Louisiana, Mississippi, and our own state. (2 Cycl. Pol. Science, 571.)
“For the period between 1835 until the financial panic of 1837 occurred, the state of Michigan had a wonderful growth. The opening of the Erie canal, and the facilities for travel furnished by the great lakes, made it comparatively easy for the residents of New York, New Jersey and New England who were seeking to better their condition to reach our borders. The climate was good, and the soil was fertile. The example of New York in constructing works of internal improvement was thought worthy of imitation. The constitution adopted upon the admission of the state into the union provided: ‘Internal improvement shall be encouraged by the government of this state; and it shall be the duty of the legislature, as soon as may be, to make provision by law for ascertaining the proper objects of improvement in relation to roads, canals, and navigable waters, and it shall also be their duty to provide by law for an equal, systematic, economical application of the funds which may be appropriated to these objects.’ Const. 1835, art. 12, §3.
“The governor of the new state, in a message to the legislature, called its attention to its duty to act under the constitutional provision. The legislature was not slow to respond. A canal was projected from Mt. Clemens to the mouth of the Kalamazoo river, and one around the falls of the St. Mary. A number of state railroads were surveyed, and their construction entered upon. To meet the expense, the governor was authorized to borrow, upon state bonds issued for the purpose, $5,200,000. These bonds were all negotiated, though, owing to the failure of one of the companies and one of the banks which undertook to negotiate them, the amount for which they were negotiated never found its way into the state treasury. It be came evident the amount of the loan would not begin to complete the internal improvements already begun. Then came the financial panic. Bankruptcy and financial ruin were upon every hand. The state, at a great sacrifice of its property, made an arrangement with its creditors which left its credit good, but left it very badly in debt. . . .
“ ‘Having all their bitter experience with internal improvements fresh in mind, when they formed a new constitution, in 1850, the people resolved to put it out of the power of the legislature again to involve them in extravagant projects. And here we reach another landmark, significant in itself, but especially notable when contrasted with the provision respecting internal improvements which has already been quoted from the constitution of 1835. In 1850 the people deemed it necessary to prohibit what in 1835 they commended; and they now provided that “the state shall not subscribe to, or be interested in, the stock of any company, association, or corporation,” and also that “the state shall not be a party to, or interested in, any work of internal improvement, nor engage in carrying on any such work, except in the expenditure of grants to the state of land or other property.” These were very positive provisions, and by adopting them the people believed they had rendered it impossible that projects of doubtful wisdom and utility should be engaged in at the public cost.’ (Cool., Hist. Mich. 289.)”
As expressed by the attorney-general in his brief, referring to this history of such legislation, “this evolution of the constitution had already taken place and was written history at the time our own fundamental law was framed”; and to this we may add that the members of our constitutional convention were perfectly familiar with the history of the section now under consideration when they wrote our constitution. This fact is disclosed by the following extracts from the proceedings of the Wyandotte constitutional • convention :
“Mr. Hoffman offered the following as an additional section:
“ ‘Sec. 8. The state shall never be a party in con structing and carrying on any works of internal improvement ; but whenever grants of land or other property shall have been made to the state for particular works of internal improvement, the state shall devote thereto the avails of such grants, and may pledge the revenues derived from such works in aid of their completion.’
“Mr. Parks proposed to amend so as to read as follows:
“ ‘Sec. 8. The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works.’
“Mr. Stinson proposed to strike out and insert in place of the last words, the following:
“ ‘And shall never be a party to carrying on works of public improvement.’
“Mr. Stinson: ‘It seems to me, Mr. President, that every safeguard that could be desired has already been thrown about the power of the legislature to contract a public debt for the future state. And gentlemen who propose these additional sections in regard to works of public improvement seem to wish to hamper not merely the legislature but also the people. I think that it would be necessary to prescribe that a majority of the people shall first declare in favor of a state debt; and I do not want to restrain the people even in the matter of contracting debts, nor in any other legitimate control of their own interests. Nor do I think it important to say that it will not be to the interest of the state to loan its credit for purposes'of internal improvement. Suppose several millions of acres of land were granted to the state of Kansas for the purpose of carrying on great works of internal improvement, it seems to me that frequently cases might arise wherein the state should advance money for these works, and take land for security, rather than give them up to the mismanagement of companies, or perhaps sacrifice them altogether by throwing them into the hands of speculators. For if the lands go into the hands of the companies, they will be compelled to go on with forced sales, thereby keeping the lands out of the hands of the actual settlers. If we should have, say, four hundred millions of acres of land granted to the state, I would be in favor of having a state preemption law for settlers, in which the state should be made liable for the settlers’ payment for their lands— taking the land for security. But now, by this provision, this matter is not in the hands of the legislature, but the people. It is carefully and industriously guarded, and any attempt to restrict the people in the exercise of this right is to legislate against the people, and not to throw a safeguard around their representatives.’
“Mr. Parks: ‘Mr. President, the theory of the gentleman may be very fine, but his theory in the practice of other states has worked very badly for the people. I refer particularly to the state of Indiana, which many years ago went into a system of internal improvements, from which they have scarcely yet recovered. It is this working of the principle of an unlimited public debt that I wish to cut off. . . .’
“Mr. McDowell: ‘If I recollect the position of the report, the convention, when it adjourned, was considering an amendment by my colleague, Judge Parks.’ “The secretary reported the condition of the question at the time of the adjournment to be as follows:
“Mr. Hoffman had offered the following section, to be added to the article:
“ ‘Sec. 8. The state shall never be a party in constructing and carrying on any works of internal improvement, and whenever grants of land or other property shall have been made to this state for particular works of internal improvement, the state shall donate thereto the avails of such grants, and may pledge the revenues derived from such works in aid of their completion.’
“And then—
“Mr. Parks had proposed to amend the amendment, so as to read as follows:
“ ‘Sec. 8. The state shall never contract any debt for works of internal improvement, or be a party in carrying on such work.’
“Mr. Stinson: ‘My recollection is, that Judge Parks’s proposition was introduced as a substitute for the section' proposed by the gentleman from Woodson (Mr. Hoffman), and that I offered an amendment to the former, to strike out and insert, so as to make it read: “The state shall never be a party to carrying on works of public improvement.” ’
“Mr. Thacher: ‘Mr. President, if it is in order to amend the proposition of the gentleman from Wood-son, I think the word “particular” ought to be stricken out.’
“The President: Tn the opinion of the chair, the amendment of the gentleman from Leavenworth (Mr. Stinson), being a substitute for the whole, ought to be considered first.’
“Mr. Stinson’s substitute was adopted on a division —affirmative 25, negative 13; and so the section, as amended, was adopted into the article.” (Proc. Const. Con., pp. 229, 230, 233.)
On July 29, 1905, forty-six years will have passed since this convention completed its work and adjourned. Of the thirty-three persons who signed the constitution, all but Benjamin F. Simpson, John Taylor Burris, S. D. Houston and Edmund G. Ross have joined the majority, and this is the first time that it has become necessary to invoke the aid of this provision of the constitution to protect the state in its sovereign capacity from the public disaster that his.tory shows would follow its engaging in a purely private business enterprise. It has been the policy of our government to exalt the individual rather than the state, and this has contributed more largely to our rapid national development than any other single cause. Our constitution was framed, and our laws enacted, with the idea of protecting, encouraging and developing individual enterprise, and if we now intend to reverse this policy, and to enter the state as a competitor against the individual in all lines of trade and commerce, we must amend our constitution and adopt an entirely different system of government.
The peremptory writ is denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
It may be conceded that defendant complied with all the statutory requirements, in its application to the charter board, necessary to favorable action by that body in its behalf. This court cannot, however, in this proceeding review the action of that tribunal. The law reads:
“The charter board shall hold at least one meeting each month, in the office of the secretary of state, and at such other times as may be deemed necessary, subject to call by the secretary. The board shall make a careful investigation of each application and shall inquire especially with reference to the character of the business in which the proposed corporation is to engage, and if the board shall determine that the business or undertaking is one for which a corporation may lawfully be formed, and that the applicants are acting in good faith, the application shall be granted; and the secretary of the board shall issue a certificate setting forth the fact that the persons named in the application have been authorized by the charter board to form a private corporation as set forth in the application, reciting the proposed name and character thereof. In passing upon.the application of a foreign corporation, the board shall also make special inquiry with reference to the solvency of such corporation, and for this purpose may require such information and evidence as they may deem proper. If they shall determine that such corporation is properly organized in accordance with the laws of the state, territory, or foreign country under which it is incorporated, that its capital is unimpaired, and that it is organized for a purpose for which a domestic corporation may be organized in this state, the application shall be granted, and the secretary of the board shall issue a certificate setting forth the fact that the application has been granted and that such foreign corporation may engage in business in this state as hereinafter provided.” (Gen. Stat. 1901, §1263.)
Whether defendant may resort to mandamus to compel the charter board to issue a certificate entitling it to engage in business in this state is an immaterial consideration. This is a proceeding in quo warranto, brought by the state because of the fact that the charter board did deny the application of defendant for a license to do business here, and, notwithstanding such action of the board, the gas company has proceeded to transact business authorized under its Delaware charter. The allegations of the answer present to us the same questions which the charter board decided adversely to defendant.
Counsel for defendant call to their aid the equitable doctrine requiring a court to look upon that as done which ought to be done. In effect they ask us to sit in review of the adverse ruling of the charter board, and to hear and decide de novo the application of their client for leave to transact business in this state. An assumption of such power would overturn the clearly expressed intention of the legislature to vest in the charter board, instead of a court, the right to decide the very questions we are urged to determine.
The proceeding brought against defendant in this case is collateral to the proceeding before the charter board. To this proceeding the latter is not, and cannot be made, a party. Therefore the court cannot sit in judgment on the action of the charter board in refusing defendant’s application. Suppose it were to do so. Its judgment could not be in the form of mandamus to the charter board requiring the issuance of a license or permit to defendant, but could only be that the charter board should have granted the application. That, however, would not be the granting of the application by the tribunal in which the authority to make such grant resides. Defendant would still be without a license or permit to do business.
The case of The State, ex rel., v. Buckland, 23 Kan. 259, is in point. Buckland was a justice of the peace, and candidate for reelection. Goit was the opposing candidate. The board of canvassers declared in favor of Goit, and issued to him a certificate of election. He filed his bond and qualified as required by law. On Buckland’s refusal to vacate the office the state instituted quo warranto proceedings against him. He set up the claim that he was in fact elected, and that he had instituted contest proceedings to retain the office. It was held that the pendency of such contest between Buckland as contestor and Goit as contestee was no defense in an action in the nature of quo warranto brought by the- state against Buckland to oust him from office.
This court cannot usurp the lawful functions of the Charter board.
On the federal question brought into the case by the amendment to the answer, it is established law that foreign corporations, except interstate-commerce corporations, and those organized for a federal purpose, have no right to do business nor any right of existence out of the state of their creation, except such as the legislature of the state into which they seek to migrate chooses to accord them. (The State v. Book Co., 65 Kan. 847, 69 Pac. 563; Paul v. Virginia, 75 U. S. 168, 19 L. Ed. 357; Pembina Mining Co. v. Pennsylvania, 125 id. 181, 8 Sup. Ct. 737, 31 L. Ed. 650; Phila. Fire Association v. New York, 119 id. 110, 7 Sup. Ct. 108, 30 L. Ed. 342.)
In its sworn application to the charter board for a certificate entitling defendant to transact business in Kansas, made by its president and secretary, the following statement appears:
“The full nature and character of the business in which said corporation proposes to engage within the state of Kansas is . . . the transportation of oil and natural gas within the state of Kansas.”
It appears from the answer that under its original charter defendant was incorporated for the purpose, among others, of transporting oil and gas within both the states of Kansas and Missouri. Later, on July 27, 1904, it relinquished its right to transport oil and gas in Missouri, and restricted its operations to Kansas alone. This was done by a resolution adopted by the unanimous vote of its stockholders, which reads:
“(1) By striking out of section 3 of said charter the words ‘states of Missouri and Kansas’ and inserting in lieu thereof the words ‘state of Kansas,’ so that said section amended reads as follows:
“The objects and purposes for which this corporation is formed are, to do any or all of the things herein set forth to the same extent as natural persons might or could do, viz.: To produce, purchase and acquire natural gas; to pipe, convey and transport natural gas from the place or places where the same is produced, purchased or acquired to such cities, towns, villages and. places in the state of Kansas as may afford convenient and satisfactory market for the same.”
We find nothing in the answer or amendment thereto constituting a defense to the action. A judgment of ouster is entered against the defendant, as prayed for in the petition.
All the Justices concurring. | [
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Per Curiam:
The plaintiff in error seems to complain chiefly of alleged misrepresentations relating to the value of, and to the title to, the property insured. The rules of law applicable to the case are plain and substantially undisputed, but the evidence relating to false values is conflicting, and that relating to the matter of title is avoided by proof of waiver. The jury did not take the view of the evidence held by plaintiff iñ error, and the verdict has been approved by the trial court. No reasons are offered to support the claims of error relating to the giving and refusing of instructions. The court is merely referred to a list' of pages of the record for testimony said to have been improperly admitted. The brief for plaintiff in error violates almost all the requirements of rule 10 of this court relating to its preparation.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Mrs. Elizabeth Bender sued the city of Argentine on account of injuries received from a fall caused by a defective sidewalk. Evidence was given that she was seventy years of age, and would never fully recover from the effects of her hurt, but would always be lame and would continue to suffer pain and inconvenience in moving about. The jury returned a general verdict for $7500, which was not itemized, no special findings being made. A motion was filed for a new trial upon’ the ground of excessive damages that appeared to have been given under the influence of passion and prejudice. Upon the hearing of this motion the court found that the verdict was excessive by the amount of $5000, but added that “the error of the jury in fixing the amount of damages does not permeate the entire verdict, but only affects the amount of the same.” Thereupon the plaintiff was given an opportunity to remit $5000 from the verdict, which she did. The motion for a new trial was then denied, and a judgment was rendered for $2500, from which the defendant prosecutes error. The theory upon which a reversal is asked is that upon the whole record it appears that the excessive damages awarded by the jury were due to passion and prejudice, and that therefore the error in amount could not be cured by a remittitur, but required the granting of a new trial. No other complaint of the rulings made below is here presented.
Prior decisions of this court have already established these principles: That the allowance of excessive damages, not occasioned by passion or prejudice, does not require a new trial, but may be remedied by the remission of the excess (Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352; Broquet v. Tripp, 36 id. 701, 14 Pac. 227; U. P. Rly. Co. v. Mitchell, 56 id. 324, 43 Pac. 244; Railway Co. v. Frazier, 66 id. 422, 71 Pac. 831); but that any excess due to unfairness of the jury is incapable of elimination by this means, and vitiates the entire verdict. (A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567, 15 Pac. 499; Steinbuchel v. Wright, 43 id. 307, 23 Pac. 560; A. T. & S. F. Rld. Co. v. Dwelle, 44 id. 394, 24 Pac. 500; Bell v. Morse, 48 id. 601, 29 Pac. 1086; K. C. W. & N. W. Rld. Co. v. Ryan, 49 id. 1, 30 Pac. 108; Drumm v. Cessnum, 58 id. 331, 49 Pac. 78; Railroad Co. v. Richards, 58 id. 344, 49 Pac. 436; Atchison v. Plunkett, 61 id. 297, 59 Pac. 646.) The inquiry, therefore, is whether upon the entire record this court can say that the awarding of excessive damages was due to a failure on the part of the jury to give the case fair and impartial consideration.
The finding of the trial court, in words obviously borrowed from the opinions in Broquet v. Tripp and Atchison v. Plunkett, supra, that “the error did not permeate the entire verdict,” can only be interpreted as an affirmative showing that in the opinion of the trial court the excessive damages given were not the result of passion or prejudice. This finding must control, unless it is overthrown by inferences to be derived from other parts of the record. These must be drawn, if at all, from the size of the original verdict in comparison with the amount which was allowed to stand. In most of the cases above cited in which new trials were granted on review in spite of remissions permitted below there were circumstances that indicated that the district court itself was not satisfied with the result of the trial, even after the reduction of the amount awarded by the jury, and this consideration-compelled a reversal. In two of them, however, Steinbuchel v. Wright and Bell v. Morse, this feature was absent, and a new trial was ordered in each mainly by reason of the disproportion between the amount assessed by the jury and that approved by the trial court, the reductions being, respectively, from $4000 to $500 and from $1000 to $400, although the decisions were expressed to be made in view also of the testimony or other proceedings which were not set out in full, and the precise nature of which was not clearly indicated.
This court must enter upon the consideration of this case with the assumption that the evidence could not sustain the recovery of a greater amount than $2500. This is conclusively settled for the present purpose by the action of the district court. The mere fact that the jury in estimating plaintiff’s injury so far exceeded this limit must be regarded as having some tendency to show unfairness. If aided by anything in the evidence or- elsewhere in the record tending in the same direction, or possibly if not offset by something of a contrary tendency, this fact alone might justify a conclusion that the jury were influenced by passion or prejudice, and require a reversal. On the other hand, the very great departure from a proper amount should be otherwise accounted for, if a reasonable basis for so doing can be found. A sufficient explanation of the course of the jury, without involving the supposition that they were actuated by unfair motives, may be found in the meagerness of the instruction given them as a guide to the amount of recovery. The only instruction given on the subject reads as follows:
“If the jury believe from the evidence that the plaintiff is entitled to recover against the defendant for the injuries complained of in her petition she will be entitled to a verdict for an amount which shall be full compensatory damages for the physical pain and suffering which have resulted from the injuries so received, and such further damages as appear from the evidence to be the natural and probable result of such injuries, taking into consideration the character and extent of such injuries and the permanency and probable duration of the same as shown by the evidence, but in no event will the plaintiff be entitled to recover herein an amount exceeding the sum prayed for in her petition — $15,000.”
The court might well have told the jury that in assessing the amount of damages for permanent injuries they could take into account the probable time the plaintiff would live, and have aided them to reach a satisfactory conclusion in that regard by advising them of the plaintiff’s expectancy of life as shown by the standard mortality tables, which seem not to have been referred to in the evidence or in the instructions. It is fair to conclude that the excessive amount awarded by the jury may have been the result of an overestimate of the probable duration of plaintiff’s life, due to a want of any definite basis for forming an opinion on the subject. That the omission noted might of itself have been a just ground of complaint on the part of the defendant is wholly aside from the purpose, since it has not attempted to assign error in that connection. In view of these considerations it will be held that upon the entire record it does not appear that the excessive verdict was due to passion or prejudice, and the judgment is affirmed.
Cunningham, Greene, Burch, Clark A. Smith, JJ., concurring.
Johnston, C. J., William R. Smith, J., dissenting. | [
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Per Curiam:
Charles Stockman was convicted upon a charge of the illegal sale of intoxicating liquor, and appeals. He complains because the trial court permitted a witness to testify that he believed that certain liquor was beer, after he had said that he did not know what it was; and because no evidence was given that Kirwin, in Phillips county, where the liquor was shown to have been sold, was in Kansas. Neither complaint is well founded, and neither requires discussion.
The judgment is affirmed. | [
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Per Curiam:
This is a proceeding to reverse a judgment upon a verdict finding the appellant guilty of maintaining a nuisance under the prohibitory liquor law. An examination of the record discloses no error at the trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
William R. Smith, J.:
Harrod & Hanlen were agents for several fire-insurance companies. The Latham Mercantile and Commercial Company was a corporation, and for several years had placed its insurance business in the hands of these agents. In June, 1901, a policy issued on the goods of plaintiff in error by the German Insurance Company, a company authorized to do business in this state, was canceled by the latter. Thereupon the mercantile company wrote to Harrod & Hanlen requesting fire insurance for the amount covered by the canceled policy, stating that it expected them to write it in a No. 1 company. A few days later defendants in error sent plaintiff in error a policy, written in Chicago by the Mercantile Fire Insurance Company, of that city, insuring its property to the amount of $2000. The agents took no steps to ascertain whether this company had authority to take risks in Kansas. Within a month the property insured was destroyed by fire. Action on the policy was prosecuted to judgment in Illinois, but nothing was collected because of the insolvency of the company.
This was an action to recover from the insurance agents the amount of the policy. Plaintiff below was awarded nominal damages only, and comes here complaining that the trial court committed substantial errors to its prejudice.
Two sections of the statute have relation to the question involved. They are sections 18 and 23 of chapter 93 of the Laws of 1871, as follow:
“It shall be unlawful for any person, company or corporation in this state either to procure, receive or forward applications for insurance in any company or companies not organized under the laws of this state, or in any manner to aid in the transaction of the business of insurance with any such company, unless duly authorized by such company and licensed by the superintendent of insurance, in conformity to the provisions of this act; and any person violating the provisions of this section shall be liable to a penalty of five hundred dollars for each offense, to be collected as other penalties under this act.” (Gen. Stat. 1901, §3381.)
“The provisions of this act shall apply to individuals and partners, and to all companies and associations, whether incorporated or not, now or hereafter en gaged in the business of insurance. It shall be unlawful for any company, corporation or association, whether organized in this state or elsewhere, either directly or indirectly to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner to aid therein, in this state, without first having complied with all the provisions of. this act. And any corporation, company or association violating the provisions of this section, and any individual, company, association or corporation aiding in any manner, either as agent or otherwise, in such violation, shall be liabie to a penalty of five hundred dollars, to be collected as other penalties under this act.” (Gen. Stat. 1901, §3386.)
It is the contention of counsel for defendants in error that these sections of the law, by the order of their arrangement in chapter 93 of the Laws of 1871, can have reference to life-insurance companies and agents only. The title reads:
“An act to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein.”
At the beginning of section 25 the words “insurance other than life” appear. It is argued that this title necessarily excludes what precedes in the act from any application to fire-insurance companies. We do not think so. That part of the act before section 25 has general application to insurance companies, both fire and life. In fact companies “other than life” are expressly mentioned in section 9, and fire companies in section 13. In section 10 reference is made to both. In Hartford Fire Ins. Co. v. The State, 9 Kan. 210, it was taken for granted that sections 22 and 23 applied to fire-insurance companies. In Maxwell v. Church, 62 Kan. 487, 63 Pac. 738, sections 18 and 23, now under consideration, were treated by both court and counsel as having relation to fire-insurance companies.
Defendants below were guilty of an unlawful act in procuring insurance for plaintiff in error in a company not authorized to do business in the state. It was their duty to know whether the company they represented had complied with the laws of Kansas admitting it to take risks here. (McCutcheon v. Rivers, 68 Mo. 122.) The following cases sustain the doctrine of personal liability of insurance agents under facts similar to those in the case at bar: Landusky v. Beirne, 80 Hun, App. Div., 272, 80 N. Y. Supp. 238; Morton v. Hart Bros., 88 Tenn. 427, 12 S. W. 1026; Hartman v. Hollowell, 126 Iowa, 643, 102 N. W. 524.
It is insisted that the pary insured, having accepted a policy in a foreign company illegally transacting business in this state, was in equal wrong with defendants, which prevents a recovery against them. The present case does not fall within the rule invoked by counsel. The statutory provisions set out above were enacted for the protection of the insured. The whole scheme of our law relating to foreign insurance companies is that the question of their solvency shall be investigated and determined before a license is issued permitting them to insure the property of our citizens. Such precautionary measures give assurance to a policy-holder, not only that the company is solvent, but in case of its neglect or refusal to pay a loss that it is subject to the jurisdiction of our courts.
“Where contracts or transactions are prohibited by a positive statute enacted for the sake of protecting one set of men from another set of men (the one from their situation and condition being liable to be imposed on by the other), the parties have been held not to be in pari delicto, and in furtherance of such a statute the person for whose protection the statute was enacted has been permitted after the transaction is finished to recover the money or property parted with by him.” (15 A. & E. Encycl. of L. 1004.)
At page 552 of volume 9 of the Cyclopedia of Law and Procedure the rule is thus stated:
“The complaining party is especially protected by the law where the agreement is not illegal per se, but is merely prohibited, and the prohibition was intended for his protection, and in such case, not being in pari delicto, he is entitled to relief. The fact that the penalty is imposed on one of the parties alone shows clearly that the law does not consider them in pari delicto.”
(See, also, Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327; The Union Central Life Insurance Co. et al. v. Thomas, 46 Ind. 44; Deming and another v. The State, on the relation of Miller, 23 id. 416; Savings Bank v. Burns, 104 Cal. 473, 38 Pac. 102; Bowditch v. New England Life Ins. Co., 141 Mass. 292, 4 N. E. 798, 55 Am. Rep. 474.)
A recovery for loss may be had against a foreign insurance company issuing a policy on property in this state, although it was not licensed to transact business here. (Germania Ins. Co. v. Curran, 8 Kan. 9; Ganser v. Fireman’s Fund Ins. Co., 34 Minn. 372, 25 N. W. 943; Swan v. Watertown Fire Ins. Co., 96 Pa. St. 37.)
The policy in this case was issued to the Latham Mercantile Company, while the corporate name of plaintiff below is the Latham Mercantile and Commercial Company. There was proof that the concern transacted business for convenience under the shorter name. The identity of the insured and the property was established. At page 278 of volume 14 of the Encyclopedia of Pleading and Practice it is said:
“There is nothing so sacred in a name that right and justice should be sacrificed to its sanctity. So a person may sue in any name in which he may contract, as well as in any name by which he is generally known.”
(See, also, Clark v. Clark, 19 Kan. 522.)
Having shown that the parties were not in equal wrong, the point made that the insurance agents divided their commission with plaintiff in error be comes an immaterial consideration. It would not affect the case had they received no commission.
There is no merit in the claim that the testimony failed to show defendants to be partners. Such proof was unnecessary. The petition charged them as partners, and each of them in his separate answer expressly admitted the fact.
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.:
While William Beamer was driving his team attached to a loaded wagon over a highway in Erie township, Neosho county, a wheel of the wagon dropped into a deep and dangerous hole, throwing him to the ground, breaking his nose and both of his arms and causing other serious injuries. He brought this action to recover damages from the township, under the provisions of section 579, General Statutes of 1901, and was awarded the sum of $500.
The principal objection here is that the evidence does not sustain the verdict and judgment. A notice for at least five days to the township trustee was essential to a recovery, and complaint is made that this was not given. Beamer sent a postal card to the trustee, notifying him that the road in question was defective, and this was done about a week before the injury. It was shown to have been received, and perhaps it might be said that there was testimony tending to show that it was received in good time. There was some testimony, however, that it did not reach the trustee until within five days of the accident, and also that it was not specific as to the particular defect in the road. By reason of other facts the sufficiency of that particular notice is not very material.
There was other testimony, sufficient to sustain the finding of the jury, that the trustee had actual knowledge of the defect shortly previous, but more than five days before the injury. It was not. a formal written notice, but he was told of the dangerous defect in the road and discussed it with others. It has been held that notice is very important and that nothing short of actual personal notice will suffice (Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449), but it is not necessary that it should be in writing, nor that any particular formality should attend the giving of it. It is not important how, or by whom, the information is communicated to the officer. It is enough if he gains actual knowledge of the defect from any source within the prescribed time. He had actual knowledge of the defective condition of the highway and that was equivalent to actual notice. It was said in Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010, that “notice of a fact is knowledge of that fact.”
There is a further contention that Beamer was guilty of contributory negligence. Tt appeared that he frequently passed over the road and necessarily was acquainted with its general condition. With knowledge of that condition he had previously managed, with the exercise of care in passing over it, to avoid its perils and escape injury. A person is not to be deprived of the use of a highway because it is defective, or because he has knowledge of defects. Of itself, knowledge of a defect which causes him injury will not, as a matter of law, bar recovery on the ground of contributory negligence. Such knowledge imposes upon him the obligation of greater care to avoid the dangers — such care as an ordinarily prudent person would exercise under like circumstances. (Osage City v. Brown, 27 Kan. 74; Maultby v. City of Leavenworth, 28 id. 745; City of Osborne v. Hamilton, 29 id. 1; City of Emporia v. Schmidling, 33 id. 485, 6 Pac. 893; Langan v. City of Atchison, 35 id. 318, 11 Pac. 38, 57 Am. Rep. 165; City of Horton v. Trompeter, 53 id. 150, 35 Pac. 1106; Wiens v. Ebel, 69 id. 701, 77 Pac. 553; Parr v. Shawnee County, 70 id. 111, 78 Pac. 449; Falls Township v. Stewart, 3 Kan. App. 403, 48 Pac. 926; Telephone Co. v. Vandervort, ante, p. 101; 15 A. & E. Encycl. of L. 468.)
Whether Beamer had used reasonable care under all the circumstances was fairly submitted to the jury, and there is no doubt that the testimony in the case was sufficient to support its verdict and the judgment based thereon.
The judgment is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The Remington Paper Company held several notes executed to it by the Topeka Capital Company, a Kansas corporation. In April, 1897, it brought an action upon them and recovered a judgment. The defendant instituted proceedings in error in this court, but gave no bond to stay execution. Dur ing the pendency of the proceedings in error the plaintiff caused an execution to be issued, and upon its being returned unsatisfied began an action under the provisions of section 1192 of the General Statutes of 1889 (now repealed) against J. K. Hudson to charge him, as a stockholder in the Capital company, with the amount of the judgment. In August, 1899, the plaintiff obtained leave to amend its petition, and did so by setting out a number of separate counts, each based upon one of the notes on which its judgment had been rendered and containing allegations intended to permit a recovery under sections 1200 and 1204 of the General Statutes of 1889 (the latter of which is also now repealed), which authorized actions to be brought directly against stockholders upon debts owing by corporations that had ceased business for more than one year. Upon motion of the defendant, however, the court struck from the amended petition all such additional matter, requiring the plaintiff to stand upon its judgment and its remedy under the statute first cited.
In February, 1900, by a decision of this court, the judgment against the Capital company was reversed. (Capital Co. v. Remington, 61 Kan. 6, 59 Pac. 1062.) Such reversal was pleaded by Hudson in a supplemental answer filed in the action against him. That case being called for trial, it was admitted in open court that the allegations of the supplemental answer were true, findings were made that the judgment upon which the action was based had been reversed, and that plaintiff was not entitled to recover, and thereupon judgment was rendered for the defendant for costs. The plaintiff prosecuted error from this judgment, complaining of the ruling of the* district court in refusing to allow it to- change its action from one under section 1192, supra, to which a judgment and execution against the corporation were prerequisite, to one under sections 1200 and 1204, supra, based upon the notes as such, and the fact that the corporation had ceased active business. It was held, however (Remington v. Hudson, 64 Kan. 43, 67 Pac. 636), that the notes, being merged in the judgment, were no longer available for any purpose in their original character, and that having elected to proceed under section 1192 the plaintiff could not change its position and convert its proceeding into one under sections 1200 and 1204.
The plaintiff then began a new action under sections 1200 and 1204, declaring upon the notes, the cessation of business by the Capital company, and the defendant’s ownership of stock therein. The defendant pleaded substantially the facts already recited. Prior to the trial the plaintiff, having in the meantime procured a new judgment oh the notes against the corporation, set out that fact in a supplemental petition. Upon final hearing the plaintiff was given judgment, which it is the purpose of the present proceeding to review. Under various specifications of error two principal contentions are made: (1) That the plaintiff is precluded from resorting to the remedy under sections 1200 and 1204, now invoked, by having in the earlier proceedings elected to pursue the inconsistent remedy afforded by section 1192; (2) that the judgment rendered in the former action was a final adjudication of the matter sought to be litigated here.
So far as relates to the matter of estoppel by the prior election of an inconsistent remedy there is nothing to distinguish the present case from Thomas v. Remington, 67 Kan. 599, 73 Pac. 909. Following the decision there made we hold that, although so long as the judgment stood that was rendered in favor of the Remington company against the Capital company the notes upon which it was based were by the principle of merger rendered unvailing as any part of a cause of action, and the attempt to enforce it through the provisions of section 1192 precluded recourse to sec tions 1200 and 1204, yet when the judgment was vacated the effect of the merger and of the election ceased, the notes were restored to vitality, and the plaintiff was reinvested with the privilege of choosing between the different methods of enforcing its claim. In this connection it is argued by plaintiff in error that to permit the plaintiff in an action brought upon the notes under sections 1200 and 1204 to plead in a supplemental petition that the notes have been placed in judgment against the corporation, and thereby to evade the necessity of proving their execution against the stockholder, is to give it the benefit in that proceeding of the provisions of section 1192. This is not the case. The procuring of a judgment against the corporation, and the suing out and return of an execution upon it, are prerequisites to a proceeding under that section; but they are not necessarily steps taken under it, and they evince no purpose to pursue it. Its peculiar remedy is invoked only when the judgment plaintiff either asks an order for an execution against a stockholder or brings suit against him on the return of an execution against the corporation unsatisfied.
From the facts already stated it appears that, prior to bringing this action, the same plaintiff had brought against the same defendant an action to enforce the payment of the same debt against the same corporation by reason of the defendant’s holding the same stock; that the question whether defendant was liable as a stockholder was put in issue in that case; that a final judgment was rendered against the plaintiff that it take nothing by its action, and in favor of the defendant for his costs. In support of the plea of former adjudication it is argued that this judgment was a final determination of the matter here involved and estops the plaintiff to assert any further claim against the defendant with respect to it. The argument is not tenable. Notwithstanding the resemblance the present proceeding bears to the former one, it is not based upon the same cause of action — it could not be supported by the same evidence. Therefore, the plaintiff is here concluded only as to such matters as were there actually decided, either expressly or by necessary implication. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825, 24 A. &. E. Encycl. of L. 784.) The first action involved three principal questions, each of which required an affirmative answer in order that plaintiff might recover: (1) Did the plaintiff have a valid judgment against the Capital corporation? (2) Had an execution upon the judgment been issued and returned unsatisfied? (3) Was the defendant a stockholder who had not discharged the full amount of his liability as such? A judgment for the defendant did not necessarily settle any specific one of these questions. It merely established that some one of the three must be answered in the negative. The substantial issues of the present case were: (1) Did the Capital corporation owe a valid debt to plaintiff? (2) Had it ceased business for more than one year? (3) Was the defendant a stockholder who had not discharged the full amount of his liability as such? The only question of fact common to both cases was the one designated in each instance as the third. In order for the defendant successfully to interpose the plea of res judicata it was incumbent upon him to prove that this question had been determined in the former case. (24 A. & E. Encycl. of L. 884.)
“Even where the matter was in issue, if the issue was not determined, by reason of the decision turning upon some other point, or otherwise, there is no estoppel.” (24 A. & E. Encycl. of L. 776.)
The entry of judgment in the first action recites a specific finding that the judgment upon which it was based had ceased to exist, and is silent as to any other controverted matter. This finding alone compelled the judgment which was rendered — a judgment for the defendant for costs. It is a fair implication, although it is not expressly stated, that no other question of fact was passed upon, and in the absence of some reason to believe the contrary (and the record is barren of any suggestion of such a reason) it must be held to be established that such was the case. There was, therefore, a failure to show that the judgment in the first action was a bar to the present one.
The judgment is affirmed.
All the Justices concurring. | [
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Green, J.:
Kissick Construction Company (Kissick) and its insurance company, Builders Mutual Casualty Co. (collectively appellants), appeal from a decision by the Workers Compensation Board (Board) to award Michael Wiehe workers compensation benefits. While working for Kissick, Wiehe was injured when the machine he was operating tipped over and he was ejected from the machine. Shortly after the accident, Wiehe underwent drug testing, which revealed a level of marijuana that demonstrated a conclusive presumption of impairment under K.S.A. 2009 Supp. 44-501(d)(2). The Board determined, however, that the impairment exception under K.S.A. 2009 Supp. 44-501(d)(2) did not apply to reheve Kissick of liability for workers compensation benefits because there was not sufficient evidence to show that Wiehe had behaved “erratically” or “unusually” before the accident.
Nevertheless, we determine that the Board erroneously interpreted and applied K.S.A. 2009 Supp. 44-501(d)(2) to impose a highly inflated, and seemingly insurmountable, burden of proof on the employer. Here, the evidence produced by Kissick established a conclusive presumption of Wiehe’s impairment under K.S.A. 2009 Supp. 44-501(d)(2) and also showed that Wiehe’s injuries had been contributed to by his impairment, which resulted in him operating the machine in a manner that demonstrated extremely poor judgment. Under those circumstances, we find that Kissick met its burden to establish that Wiehe’s injuries were contributed to by his use of drugs and that the impairment exception under K.S.A. 2009 Supp. 44-501(d)(2) relieves Kissick of liability for workers compensation benefits. Accordingly, we reverse the Board’s decision awarding Wiehe workers compensation benefits.
The accident in question in this case occurred on September 21, 2005, while Wiehe was working for Kissick on a highway-widening project in Gardner. Wiehe was operating a sheep’s foot roller, which leveled and compacted dirt so that asphalt could be laid on top. Wiehe, who was an operating engineer affiliated with the local construction union, had been hired by Kissick for this particular project the week before the accident occurred.
Wiehe testified that he had operated a sheep’s foot roller approximately 100 times previously and that the particular roller he was operating for Kissick did not have as much power as the other rollers he had operated. Moreover, the sheep’s foot roller he was operating had rubber tires, instead of the heavier steel wheels that were on other sheep’s foot rollers.
When the accident occurred, Wiehe was attempting to break apart a large mass of dirt that had recently been dropped in the area. Wiehe testified that he drove forward over the pile of dirt with the sheep’s foot roller and attempted to level the pile with the blade on the front of the machine. According to Wiehe, he then attempted to back over the pile to again try to level it, but the sheep’s foot roller tipped over and ejected him from the machine onto the pavement. The sheep’s foot roller had a seat belt, but Wiehe was not wearing it when the accident occurred.
Brad Lawson, who worked for Kissick, had been standing near Wiehe and the sheep’s foot roller when the accident occurred. According to Lawson, he watched Wiehe attempt to back over the mass of dirt twice. Lawson testified that as he watched Wiehe back the sheep’s foot roller towards the mass of dirt the first time, Lawson drought the mass was too large for the machine. Upon hitting the mass, the sheep’s foot roller went high center and stopped. Lawson testified drat as Wiehe drove the sheep’s foot roller forward off the large mass, Lawson was relieved that the machine had not flipped.
Lawson testified that the machine was not equipped to be utilized in drat manner and “[y]ou almost never see sheep’s foot operators contact dirt with the rear of their machine first.” According to Lawson, the dirt did not have to be spread out at that point. Lawson testified that more loads of dirt were going to be dropped in the area, and the blade hand would have come over to spread the dirt out before it was compacted.
Lawson then saw Wiehe move the machine over so that its right tire was in line with the large mass of dirt and begin to back up again. Lawson testified that he was “pretty much just freaked out” and shook his head to communicate to Wiehe to “just forget it, don’t try to do it” because he was afraid that the machine was going to tip over. When the sheep’s foot roller hit the mass of dirt the second time, the mass did not break apart sufficiently, and the machine tipped over.
As a result of the accident, Wiehe suffered numerous injuries, including severe pelvic injuries, and was hospitalized. Consistent with Kissick’s postaccident drug and alcohol policy, a drug test was performed on Wiehe at the hospital. The drug test results revealed that Wiehe had a level of marijuana of 62 ng/ml, which was more than four times the level to establish a conclusive presumption of impairment under 44-501(d)(2). Although preliminary testing of Wiehe’s urine sample indicated a presence of methamphetamine, the final test results did not demonstrate the presence of methamphetamine.
Wiehe admitted that he had used both methamphetamine and marijuana the day before the accident. Wiehe testified that when he got off work on September 20, 2005, he took two hits of methamphetamine and also shared a marijuana joint at the job site with another worker. Wiehe further testified that after going home that evening, he smoked another marijuana joint around 8 p.m. Wiehe testified that he was a regular user of marijuana around the time the accident occurred. According to Wiehe, he went to bed around 9 p.m. that evening and then woke up around 5 a.m. the next morning to get ready for work. Wiehe testified that he was clearheaded and not on drugs the day of the accident.
Based on the injuries he suffered during the accident, Wiehe filed for workers compensation benefits against the appellants. At a January 2006 preliminary hearing before the ALJ, the appellants argued that Wiehe’s injuries were contributed to by his drug impairment, and therefore he was not entitled to workers compensation benefits under 44-501(d)(2).
In addition to Lawson’s and Wiehe’s testimony, the ALJ also heard testimony from Michael Eddings, the pipe foreman for Kis sick. Just before the accident, Eddings had come to the job site to deliver an item. Eddings testified that as he was driving slowly by the area where the sheep’s foot roller was being used, he noticed that the operator' (Wiehe) was acting “a little goofy or squirrely.” According to Eddings, he was driving about 3 to 4 miles per hour and was about 4 feet away from Wiehe when he passed him. Ed-dings testified that Wiehe was bobbing and weaving his head, and Eddings thought there might be a problem with him. Eddings further testified that he had attempted to talk to Jack Staton, the site supervisor, about Wiehe but Staton was too busy to talk with him before the accident occurred. According to Eddings, he was finally able to voice his concerns to Staton later in the afternoon after the accident had occurred. It was not until 8 days after the accident that Eddings made a written statement about his concerns.
Consistent with Eddings’ testimony, Staton testified that Ed-dings had talked to him about Wiehe after the accident had occurred. According to Staton, Eddings told him that Wiehe had been “all over that machine” and had been acting like “a wild squirrel or something that just wasn’t comprehending everything.” Staton testified that he later asked Eddings to write a voluntary statement on what he had observed.
According to Staton, the sheep’s foot roller operated by Wiehe had not been equipped to spread the dirt. Staton testified that Wiehe should have continued going over the dirt that had already been leveled and compacted until the larger machine came over to break apart the mass of. dirt. Moreover, Staton testified that there was adequate room for Wiehe to turn the machine around if he wanted to try to knock down the mass of dirt with his blade.
Wiehe, however, testified that although the machine turns in the middle, there was not enough room for him to turn the machine around. According to Wiehe, Staton had told him earlier that day to keep moving, and Wiehe was afraid of losing his job if he did not keep moving.
In a Januaxy 2006 written order, the ALJ denied Wiehe’s request for workers compensation benefits. In doing so, the ALJ discredited Staton’s testimony and also determined that Lawson was in a better position to observe Wiehe than Eddings was. The ALJ found that although Lawson did not observe any behavior like that claimed by Eddings, Wiehe was impaired by drugs under 44-501(d)(2) when the accident occurred. The ALJ then found that Kissick had proved by a preponderance of the evidence that Wiehe had been impaired by drugs when the accident occurred and that Wiehe’s use of drugs contributed to his injuries.
Nevertheless, the Board member reviewing the ALJ’s decision determined that without evidence to explain the effect of the drugs on Wiehe, the link between Wiehe’s accident and his conclusive impairment status had not been established under 44-501(d)(2). Therefore, the Board reversed the ALJ’s order denying Wiehe workers compensation benefits under 44-501(d)(2).
At an April 2006 preliminary hearing, Kissick presented testimony from Robert Matter, an experienced operating engineer working for the local operating engineers’ union. Matter also managed the union’s apprenticeship training program, for which he provided written tests and also hands-on equipment training. Matter testified that Wiehe’s action of attempting to run over a mass of dirt showed an extreme lack of judgment for an experienced operator. According to Matter, “[a]ttempting to run over a hump almost always results in a tip-over with this small a compactor and is never necessary.” Matter testified that when Wiehe failed to get over the mass of dirt the first time, this should have raised awareness of a potential problem if he tried it again. Matter testified that there was nothing to account for the accident other than Wiehe’s marijuana impairment. Matter further testified that the sheep’s foot roller had a roll-over protective structure, and Wiehe would not have been injured had he been wearing his seatbelt and remained inside the cab of the machine.
Kissick also presented testimony from Charles Foshee, an addiction counselor, who said that the circumstances surrounding Wiehe’s accident showed that drug impairment played a role in the accident. Foshee testified that people who have high levels of marijuana have impaired judgment and impaired logic. Foshee explained that although a lot of people who used marijuana on a long-term basis are able to function normally, they will have a slower motor affect and will be avoidant, will be very tunnel visioned, and will not be cognizant of things around them. Foshee indicated that it is much harder to identify someone who is impaired by marijuana as opposed to someone who is impaired by alcohol. According to Foshee, Wiehe’s decision to back over the pile, knowing that the sheep’s foot roller was more tipsy than others he had operated, was an impaired decision.
In an April 2006 written order, the ALJ found that the case was in the same factual posture as it had been at the January 2006 hearing. The ALJ determined that the evidence produced by Kissick failed to show how Wiehe’s impairment contributed to the accident. The ALJ pointed out that the record did not demonstrate what physical or mental effects of marijuana played a factor in the occurrence of the accident.
Nevertheless, the ALJ determined that the safety device defense under 44-501(d)(l) precluded Wiehe from receiving workers compensation benefits. The Board, however, reversed the ALJ’s order denying Wiehe workers compensation benefits and determined that Wiehe’s failure to use a safety belt did not meet the safety device defen'se under 44-501(d)(l).
Next, at an October 2006 preliminary hearing, Kissick presented evidence from toxicologist Daniel Brown, Ph.D. According to Brown, based on his training and experience as a toxicologist and on the enormous body of scientific literature on the subject, marijuana causes some degree of residual impairment for 24 hours after consumption. Brown listed a number of ways that marijuana can cause impairment, including muscular incoordination, impaired balance, delayed reaction time, impaired visual function, sedation, memory dysfunction, and impaired judgment in terms of both risk assessment and temporal and spatial relationships. Brown testified that when a person regularly uses marijuana, more and more of the drug remains in the body in relatively significant concentrations that produce long-term effects. According to Brown, heavy or chronic marijuana users can demonstrate changes in performance and cognitive abilities that persist for weeks or even months.
In explaining how marijuana would affect the situation present in this case, Brown testified that one’s ability to assess the safety of the situation, the speed of the machine, the distance from the mass of dirt, and the tñt of the machine would be impaired. Brown attributed several factors involved in the accident to Wiehe’s marijuana impairment, including the decision to attempt to back his machine over the mass of dirt, not responding to Lawson’s warnings, and failing to wear his seat belt. After reviewing the facts surrounding the accident, Brown’s opinion was that Wiehe’s impairment was the proximate cause of his injuries.
Wiehe offered a report and deposition testimony from Curtis Klaassen, a toxicologist at the University of Kansas Medical Center. Klaassen’s opinion was that Wiehe’s use of marijuana did not contribute to his accident. In explaining his opinion, Klaassen testified that marijuana’s effects last for only a few hours, and that Wiehe had smoked the marijuana approximately 15Vfc hours before his accident.
In an October 2006 written order, the ALJ determined that Kissick had proved by a preponderance of the evidence that Wiehe’s impairment from marijuana contributed to the September 2005 accident and his resulting injuries. As a result, the ALJ concluded that Kissick was not hable for workers compensation benefits under 44-501(d)(2).
The Board reversed the ALJ’s order. In determining that Kissick was responsible for workers compensation benefits, the Board member reviewing the ALJ’s order stated that “[t]he time between the ingestion of the marijuana and the accident, the dispute between the experts as to die lasting effects of marijuana, coupled with the fact that even if you assume that claimant was impaired and accept Dr. Brown’s view” was insufficient to find that Wiehe’s impairment contributed to his accident.
In January 2009, the ALJ found that Wiehe had a 28% impairment to the body as a whole and issued an award for permanent partial disability benefits, for past temporary total disability payments, and for authorized medical expenses. Two members of the Board affirmed the ALJ’s award. One Board member dissented from the Board’s order and determined that the facts of this case met the impairment exception under 44-501(d)(2) and, therefore, Kissick should be relieved from liability.
On appeal, the issue before this court is whether the Board erred in determining that Kissick failed to prove that Wiehe’s injuries were contributed to by his impairment under K.S.A. 2009 Supp. 44-501(d)(2). This issue requires interpretation of K.S.A. 2009 Supp. 44-501(d)(2) and review of the ALJ’s and the Board’s findings as applied to K.S.A. 2009 Supp. 44-501(d)(2).
Standard of Review
Statutory Interpretation
Under K.S.A. 2009 Supp. 44-556(a), the Board’s decisions are reviewed under the Kansas Judicial Review Act (KJRA), K.S.A. 2009 Supp. 77-601 et seq., which applies generally to appeals from administrative agencies. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 361-62, 212 P.3d 239 (2009). To the extent that Kissick’s argument relates to the Board’s interpretation and application of K.S.A. 2009 Supp. 44-501(d)(2), this court shall grant relief only if it determines that “the agency has erroneously interpreted or applied the law.” See K.S.A. 2009 Supp. 77-621(c)(4).
The interpretation of statutory provisions under the Workers Compensation Act, K.S.A. 44-501 et seq., is a question of law. For many years, our Supreme Court has said that the Board’s interpretation of workers compensation statutes, although not binding on the courts, was “ ‘entitled to judicial deference if there is a rational basis for the Board’s interpretation.’ Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 (2007). [Citations omitted.]” Barbury v. Duckwall Alco Stores, 42 Kan. App. 2d 693, 695, 215 P.3d 643 (2009). Recently, however, our Supreme Court has stated that “[n]o significant deference is due the ALJ’s or the Board’s interpretation or construction of a statute. [Citations omitted.]” Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).
Questions of Fact
Under K.S.A. 2009 Supp. 77-621(c)(7) of the KJRA, an appellate court reviews questions of fact, in light of the record as a whole, to determine whether an agency’s findings are supported to the appropriate standard of proof by substantial evidence. An appellate court shall grant relief if its determines that “the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A. 2009 Supp. 77-621(c)(7).
K.S.A. 2009 Supp. 77-621(d) further defines an appellate court’s task in reviewing questions of fact “in light of the record as a whole,” as follows:
" ‘[I]n light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, complied pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.”
Thus, K.S.A. 2009 Supp. 77-621(d) defines “in light of the record as a whole” to include the evidence both supporting and detracting from an agency’s finding. Moreover, under K.S.A. 2009 Supp. 77-621(d), this court must consider the credibility determination that the hearing officer “who personally observed the demeanor of the witness” made. If the agency head, here the Board, does not agree with those credibility determinations, the agency should give its reasons for disagreeing. This court must consider the agency’s explanation as to why the relevant evidence in the record supports its material factual findings. For this court to fairly consider an agency’s position should it disagree with a hearing officer’s credibility determination, an explanation of the agency’s differing opinion is generally needed. Although the statute does not define the term substantial evidence, case law has long stated that it is such evidence as a reasonable person might accept as being sufficient to support a conclusion. Herrera-Gallegos, 42 Kan. App. 2d at 362-63.
Further explaining how the “in light of the record as a whole” standard is to be applied, Judge Leben in Herrera-Gallegos states as follows:
“The amended statute [K.S.A. 2009 Supp. 77-621] finally reminds us that we do not reweigh the evidence or engage in de novo review, in which we would give no deference to the administrative agency’s factual findings. Indeed, the administrative process is set up to allow an agency and its officials to'gain expertise in a particular field, thus allowing the application of that expertise in the fact-finding process. But we must now consider all of the evidenceincluding evidence that detracts from an agency’s factual findingswhen we assess whether the evidence is substantial enough to support those findings. Thus, the appellate court now must determine whether the evidence supporting the agency’s decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency’s conclusion.” 42 Kan. App. 2d at 363.
With these standards firmly in mind, we turn now to addressing the merits of Kissick’s argument.
Interpretation of K.S.A. 2009 Supp. 44-S01(d)(2)
K.S.A. 2009 Supp. 44-501(d)(2), which has become known as the “impairment defense” or “impairment exception” for an employer in a workers compensation case, provides as follows:
“The employer shall not be liable under the workers compensation act where the injuiy, disability or death was contributed to by the employee’s use or consumption of alcohol or any drugs, chemical or any other compounds or substances .... It shall be conclusively presumed that the employee was impaired due to alcohol or drugs if it is shown that at the time of the injuiy that die employee had ... a GCMS confirmatoiy test by quantitative analysis showing a concentration at or above the levels shown on the following chart for the drugs of abuse fisted: . . . Marijuana metabolite ... 15 [ng/ml].”
Thus, K.S.A. 2009 Supp. 44-501(d)(2) provides the employer relief from liability for workers compensation benefits “where the injury, disability, or death was contributed to by the employee’s use or consumption of alcohol or any drugs, chemicals, or any other compounds or substances.”
Although an employer has the burden of proving the impairment defense under K.S.A. 2009 Supp. 44-501(d)(2) to reheve itself from liability for workers compensation, our Supreme Court has pointed out that the legislature history of 44-501 reflects a trend of lessening the burden upon the employer to establish the impairment exception. Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004). Our Supreme Court in Foos explained as follows:
“The Kansas Legislature passed its first workers compensation laws in 1911. From the very beginning, the employee’s intoxication was a defense to his or her claim of compensation. ‘[I]f it is proved that the injury to the workman results . . . from his intoxication, any compensation in respect to that injury shall be disallowed.’ (Emphasis added.) L. 1911, ch. 218, sec. 1.
“In 1967, the legislature raised the employer’s standard of proof: ‘[I]f it is proved that the injury to the workman results . . . solely from his intoxication, any compensation in respect to that injury shall be disallowed.’ (Emphasis added.) L. 1967, ch. 280, sec. 1.
“In 1974, however, the legislature retreated and diluted the employer’s standard of proof when it changed the word ‘solely’ to ‘substantially’: ‘[I]f it is proved that the injury to the workman results . . . substantially from his intoxication, any compensation in respect to that injury shall be disallowed----’ (Emphasis added.) L. 1974, ch. 203, sec. 1.
“In 1993, the legislature further diluted the employer’s standard of proof: ‘The employer shall not be liable under the workers compensation act where the injury, disability or death was contributed to by the employee’s use or consumption of alcohol....’ (Emphasis added.) L. 1993, ch. 286, sec. 24.” 277 Kan. at 697-98.
Not only has the legislature (Muted the employer s burden of proof under K.S.A. 2009 Supp. 44-501(d)(2) by requiring merely that “the injury, disability, or death was contributed to by the employee’s use or consumption” (emphasis added), L. 1993, ch. 286, sec. 24, of alcohol or drugs, but it has also established a conclusive presumption of impairment if certain quantitative alcohol or drug levels are shown from an employee’s chemical test.
A conclusive presumption, which is also called an absolute presumption or an irrebuttable presumption, is “[a] presumption that cannot be overcome by any additional evidence or argument.” Black’s Law Dictionary 1305 (9th ed. 2009). As explained in Eggleston, Evidence, Proof and Probability, p. 106 (2d ed. 1983):
“Conclusive presumptions, sometimes called irrebuttable presumptions of law, are really rules of law. Thus it is said that a child under the age of 14 years is conclusively presumed to be incapable of committing rape. . . . [This] is only another way of saying that such a child cannot be found guilty of rape.”
Thus, a conclusive or irrebuttable presumption is not a presumption at all; it is a substantive rule of law directing that proof of certain basic facts conclusively provides an additional fact which cannot be rebutted. 29 Am. Jur. 2d, Evidence § 201.
By including the conclusive presumption of impairment in K.S.A. 2009 Supp. 44-501(d)(2), the legislature has created a substantive rule of law that an employee who tests at or above the established quantitative level for alcohol or drugs, subject to the other requirements under 44-501(d)(2), is impaired. Once it has been established that the employee was impaired under 44-501(d)(2), no additional evidence or argument can overcome that fact.
The legislature’s decision to include this conclusive presumption of impairment in K.S.A. 2009 Supp. 44-501(d)(2) is highly significant. Impairment is defined as “[t]he fact or state of being damaged, weakened, or diminished.” Black’s Law Dictionaiy 819 (9th ed. 2009); see also Webster’s II New College Dictionary 553 (2001) (Impair means to “decrease in strength, value, amount, or quality.”). Thus, when a person is impaired, it follows logically that the person’s mental and physical faculties are damaged or diminished.
While a conclusive presumption of impairment does not eliminate the employer’s burden to show that an employee’s injury, disability, or death was contributed to by the employee’s use or consumption of alcohol or any drugs, chemicals, or any other compounds or substances under K.S.A. 2009 Supp. 44-501(d)(2), it does allow the employer to surmount a hurdle to meet the impairment exception under 44-501(d)(2). To illustrate, which situation would require a greater showing that an employee’s injury was contributed to by the employee’s drug or alcohol use: (1) An employee who, shortly after the accident, has a measured level of alcohol or drugs in the employee’s system that conclusively establishes impairment or (2) an employee who has previously consumed drugs or alcohol but there is no evidence to show that the employee was conclusively impaired? The answer is obvious. Generally, the employer would need to make a greater showing that the injury was contributed to by the drug or alcohol use of an employee who was not conclusively impaired.
Application ofKS.A. 2009 Supp. 44-501(d)(2) to the Present Case
It is undisputed in this case that the conclusive presumption of impairment under K.S.A. 2009 Supp. 44-501(d)(2) applied to Wiehe. Wiehe’s test result, which was taken shortly after the accident, showed more than four times the quantitative level of marijuana for impairment established in K.S.A. 2009 Supp. 44-501(d)(2).
As a result, the only question remaining under K.S.A. 2009 Supp. 44-501(d)(2) is whether Kissick met its burden to show that Wiehe’s injury or disability was contributed to by Wiehe’s use of drugs.
Board’s Improper Application ofKS.A. 2009 Supp. 44-501(d)(2)
In determining that Kissick had failed to meet its burden under 2009 Supp. K.S.A. 44-501(d)(2), the Board stated as follows:
“To be clear, claimant’s decision to consume illegal substances on the evening before his accident demonstrates a considerable lack of judgment. But based on the evidence contained within this record, there is little if any credible evidence that claimant’s presumptive impairment contributed to his accident. He drove to work, apparently without incident. He began his work day at approximately 7:15 a.m. He worked continuously for four hours until the time of the accident. He was told to keep his machine moving which he did. One coworker points to his unusual approach to the spreading of this dirt pile, but the pictures reveal a significant pile of dirt with one large clod of dirt. It is not surprising that- the machine claimant was operating, which both parties agree is unstable, would tip over as he was trying [to] smooth the area out.
“As was noted early on in this claim, claimant may have exhibitedpoor judgment in his method of operating the machine. But if claimant was so impaired as Dr. Brown suggests, one would expect at least one of his coworkers to say or do something to prevent him from continuing on with his job on that day long before he tipped the equipment over and was injured. Instead, all we are left with is an allegation that one coworker made eye contact with him at the moment of the accident and gestured in a manner telling him ‘no’ and another coworker who alleges, after driving by him, that claimant was acting squirrely[sic]. And the last of respondent’s witnesses was found to be less than straightforward with his testimony. Thus, none of these were persuasive on the issue of claimant’s impairment or his ability — or inability — to perform his job duties on the day of his accident.”
The Board’s decision revolves around its determination that there was no credible evidence that Wiehe was acting erratically or unusually on the morning of the accident. From this negative evidence, the Board drew a conclusion that Wiehe’s presumptive impairment did not cause or contribute to the accident. The logic of that conclusion is based upon a syllogism, which is essentially as follows:
No employee’s presumptive impairment will contribute to the employee’s accident when no evidence exists that the employee was “acting erratically or unusually” before the accident occurred.
Although employee A was presumptively impaired when the accident occurred, no evidence exists that employee A was “acting erratically or unusually” before the accident happened.
Therefore, employee A’s presumptive impairment did not contribute to the accident.
The Board’s logic is flawed for it would compel the conclusion that whenever an employee showed no signs of erratic or unusual behavior before the accident occurred, the employee’s presumptive impairment would not have caused or contributed to the employee’s accident. Nevertheless, just because an employee does not display any erratic or unusual behavior does not mean that the employee’s presumptive impairment would not have caused or contributed to the accident.
Moreover, the Board’s reasoning is an example of what logicians describe as the “Fallacy of Exclusive Premises.” Copi and Cohen, Introduction to Logic, p. 239 (12th ed. 2005). From two negative premises no conclusion can be drawn. The reason is that we cannot argue about the relation between two classes from the mere fact that they are both excluded, wholly or in part, from a third class. In our case, the third class is the following: No evidence exists that the employee was “acting erratically or unusually” before the accident occurred. When each premise contains an exclusion, the argument is not a syllogism; that is, its premises do not jointly imply the conclusion, as is in this case.
For example, “No native-born Sooners are persons bom in Kansas” and “No native-born Hoosiers are persons bom in Kansas” furnishes no basis for inferring any connection whatsoever between the native-born Sooners and the native-born Hoosiers. To attempt to draw an inference from such a connection is to commit the fallacy of exclusive premises.
Although not required by K.S.A. 2009 Supp. 44-501(d)(2), Kissick presented evidence to the ALJ and the Board to demonstrate that a person whose judgment and decision-making skills are impaired by marijuana would not display the typical overt signs of impairment. Specifically, Kissick presented evidence from addiction counselor Foshee, who testified that other people would have a difficult time identifying someone who was impaired by marijuana versus someone who was impaired by alcohol or a benzodiazepine, which is a tranquilizer. According to Foshee, people who are alcohol impaired display a lot of obvious external symptoms, including the odor of alcohol and effects on their motor skills. On the other hand, Foshee testified that people who engage in long-term marijuana use “are able to function very normally” and would be “more avoidant, surface level, slow to respond.” Although red eyes are often a symptom of marijuana use, Foshee testified that marijuana users have found ways to conceal that symptom.
Toxicologist Brown further explained how a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path:
“When a person is under the influence of drugs, the vast majority of the time they get home safely, put their car in the garage, and go to bed and go to sleep.
“It’s when unexpected or unusual events occur — like a kid running out from between parked cars or a garbage truck pulling out of an alley or a deer crossing the road, that something you didn’t expect occurs and you have to react and your reactions aren’t appropriate any longer because of the influence of the drug.
“This is a typical case where that Mr. Wiehe might have carried out his job just fine if that lump of clay hadn’t been placed there. But once this unexpected event occurred, that’s when you get into trouble.
“You need to react to a situation to prevent injury, and your ability to react is impaired. And under those circumstances there’s a high degree of probability there’s going to be an injury.”
Although Kissick presented expert testimony as to why Wiehe’s coworkers would not have noticed observable signs of Wiehe’s impairment on the morning of the accident, the Board invented a vague erratic or unusual standard, which required Kissick to produce credible evidence that Wiehe had acted erratically or unusually on the morning of the accident. Such a standard is not im posed by the plain language of K.S.A. 2009 Supp. 44-501(d)(2) and would have to be read into the statute to reach the Board’s conclusion here. As an appellate court, we do not read into the statute something that is not readily found in it, and we do not add words that are not present in the statute. In re E.R., 40 Kan. App. 2d 986, 987, 197 P.3d 870 (2008).
Moreover, what would constitute credible evidence of erratic or unusual behavior for purposes of K.S.A. 2009 Supp. 44-501(d)(2)? The Board does not define these broad terms. Further, it is unclear what recognizable signs the Board would consider as credible evidence of erratic or unusual behavior, especially when this court considers the fact that Wiehe had worked on this particular project for Kissick for only a few days.
Failure to Adequately Consider Evidence that Wiehe’s Injuries were Contributed to by His Impairment
Ultimately, in order to get to its decision that Kissick had failed to meet the impairment exception under K.S.A. 2009 Supp. 44-501(d)(2), the Board had to create the super high burden of proof on Kissick to present credible evidence of Wiehe’s erratic or unusual behavior on the morning of the accident. By doing so, the Board was able to marginalize or trivialize the increasing evidence that Kissick had presented to meet the Board’s demands.
Moreover, the Board had imposed so high of a standard that Kissick would seemingly never be able to meet it. For example, the Board stated that if Wiehe “was so impaired as Dr. Brown suggests, one would expect at least one of his coworkers to say or do something to prevent him from continuing on with his job on that day long before he tipped the equipment over and was injured.” Thus, even if Wiehe’s coworkers had seen some seemingly impaired behavior from Wiehe on the morning of the accident, such behavior would not have met the standard set by the Board unless Wiehe’s coworkers prevented him from continuing on with his job before the accident occurred. Nevertheless, if Wiehe’s coworkers had prevented him from operating the machine, the present workers compensation case would not have existed.
Instead of the vague erratic or unusual standard imposed by the Board, the question under K.S.A. 2009 Supp. 44-501(d)(2) is whether Kissick showed that Wiehe’s injuries were contributed to by his drug use. The evidence presented to both the ALJ and the Board demonstrated that Wiehe’s decision to back over the large mass of dirt was an impaired decision and should not have been made by an experienced operator such as Wiehe. Specifically, Matter, who was an experienced operating engineer and a union trainer, testified that Wiehe’s actions of backing over the mass of dirt showed an extreme lack of judgment for an experienced operator. Even Wiehe admitted that the sheep’s foot roller he was operating was not as powerful as others he had operated and that it had rubber wheels instead of the heavier steel wheels found on other sheep’s foot rollers. Matter testified that there was nothing to account for the accident other than Wiehe’s marijuana impairment.
Lawson, whom the ALJ determined to be in the best position to view Wiehe’s actions, testified that he was “pretty much just freaked out” when Wiehe backed up to the mass of dirt and tried to convey to Wiehe to “just forget it, don’t try to do it.” Lawson testified that he thought the mass of dirt was too large for the machine and was concerned that the machine was going to flip over when Wiehe backed over the mass.
Brown then explained how marijuana would have affected Wiehe’s decision-making ability in the events leading up to the accident. Brown further explained how Wiehe’s decision to back over the pile and his failure to wear his seatbelt when attempting such a feat were attributable to Wiehe’s marijuana impairment. Further, Foshee testified that Wiehe’s decision to back over the pile, knowing that the sheep’s foot roller was more tipsy than the others he had operated, was a decision impaired by Wiehe’s marijuana use.
In short, with all of the evidence presented to the Board, Kissick met its burden of proof under K.S.A. 2009 Supp. 44-501(d)(2) to show that Wiehe’s injuries were contributed to by his drug use. As the dissenting Board member so aptly stated:
“This Board Member finds Dr. Brown’s testimony on the issue of claimant’s impairment and its causal connection to his accident to be persuasive. Claimant admits that he smoked marijuana with the blood test showing that claimant had 62 ng/ml in his system. Pursuant to K.S.A. 44-501(d)(2) he was presumptively impaired at the time of his accident. His questionable actions and demonstrable lack of judgment in operating the machinery on the morning of his accident lead to the conclusion that his impairment caused or contributed to his accident. Thus, respondent is not responsible for claimant’s injuries.”
Klaassen’s Testimony Concerning Wiehe’s Impairment
Finally, it should be pointed out that although Wiehe points to Klaassen’s testimony to support his argument that Kissick had failed to meet its burden of proof under K.S.A. 2009 Supp. 44-501(d)(2), Klaassen’s testimony and statements in his written report really related to whether Wiehe was impaired when the accident occurred. The question of Wiehe’s impairment, however, had already been conclusively established by K.S.A. 2009 Supp. 44-501(d)(2), and there was no issue as to whether Wiehe was impaired when the accident occurred. Moreover, Klaassen’s testimony and written report would have very likely been held inadmissible in a court of law.
When the opinion of an expert witness is not within the witness’s special knowledge, the testimony is speculative. See In re Central Kansas Electric Coop, Inc., 224 Kan. 308, 312-13, 582 P.2d 228 (1978) (testimony regarding effect of electric fields upon pigs not within scope of special knowledge possessed by engineer); see also Choo-E-Flakes, Inc. v. Good, 224 Kan. 417, 419, 580 P.2d 888 (1978) (witness without experience as a grain mill operator or feed mixer not qualified as expert on grain milling and feed mixing).
When we consider Klaassen’s special knowledge about how the human body handles marijuana, we note that he testified that he had not specifically studied or done research with marijuana:
“Specifically about marijuana, I haven’t done research specifically with marijuana, but all of the principles in relationship to how the body handles foreign chemicals, et cetera, are of course similar for marijuana as for many other chemicals, although there are some specific differences.” (Emphasis added.)
When a witness has special knowledge, the testimony must be within the scope of that special knowledge. See In re Central, 224 Kan. at 312-13.
In re Central involved testimony from a mechanical engineer that the electrical field beneath transmission lines might endanger the health of pigs. Our Supreme Court held that the opinion should have been stricken as speculative because the engineer had no experience concerning die effects of electrical fields on animals. The engineer’s opinion was based on studies which were, at best, inconclusive on die question. 224 Kan. at 313. Similarly, Klaassen had no experience concerning the effects of marijuana on the human body. As a result, his opinion is speculative and would have been inadmissible under the above-cited authority.
Even if we were to consider Klaassen’s objectionable testimony and written report, we note that he has elevated his testimony and written report above the plain text of K.S.A. 2009 Supp. 44-501(d)(2), which clearly sets out when an employee shall conclusively be presumed to be impaired due to alcohol or drugs. For example, Klaassen’s testimony throughout his deposition focused on his opinion that Wiehe was no longer impaired by marijuana when the accident occurred. During his deposition, Klaassen explained that the effects of marijuana wear off after a few hours and would definitely not last for 15 hours:
“The impairments and effects that marijuana produce depends, first of all, on how much a person is exposed to, but, in general, we’re talking about a few hours. And the typical smoking of marijuana, people have effects for, you know, a very few hours, you know, like one, two, three hours after one smokes a couple of joints. And, you know, it can be, you know, maybe four hours or so, but it definitely is not in the ballpark of 15 hours.”
Klaassen’s opinion was that Wiehe, who had smoked marijuana the night before the accident, would not have been experiencing any of the impairing effects of marijuana when the accident occurred.
Throughout his testimony, Klaassen maintained that the conclusive presumptive level of marijuana impairment under K.S.A. 2009 Supp. 44-501(d)(2) was not an accurate measurement of impairment. In explaining that there was not a good correlation between marijuana concentrations in the blood and the impairment level, Klaassen testified as follows:
“[Wjhat happens with marijuana is that its effects are — let’s say come back to normal much, much sooner than does the blood levels. So there’s, in essence, a discrepancy — a normal discrepancy between blood levels and how impaired you are. So, for example, with ethanol, scientists know that there’s a good correlation between blood levels and lack of ability to perform many functions, but with marijuana this does not occur.”
Further explaining that the presumptive level of marijuana impairment under K.S.A. 2009 Supp. 44-501(d)(2) was an inaccurate measurement, Klaassen testified as follows:
“[GJoing back to ethanol, there is an excellent correlation between blood levels and effects on the body. With marijuana like this there is not. And our laws, unfortunately, the one on ethanol is based on science. The THC law that we have in Kansas is not on science. It’s on — I can’t think of a better word but politics.’ It’s not a scientifically-derived number.”
Thus, according to Klaassen, the 62 ng/ml level in Wiehe’s blood “does not tell us anything about whether a person has any effects whatsoever from the marijuana.”
The argument that the marijuana metabolite levels set forth under K.S.A. 2009 Supp. 44-501(d)(2) do not correlate with an employee’s marijuana impairment is one that should be taken up with the legislature. As a court, we do not change the wording of statutes to coincide with part of the testimony offered in a case. Instead, we follow the plain meaning rule. This rule states that when the language of a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009). There is no room for judicial construction. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003); State v. Stevens, 36 Kan. App. 2d 323, 330, 138 P.3d 1262 (2006), aff'd 285 Kan. 307, 321-22, 172 P.3d 570 (2007).
The plain and unambiguous language of K.S.A. 2009 Supp. 44-501(d)(2) creates a conclusive presumption of impairment if it is shown that at the time of the injury the employee had a GCMS confirmatory test by quantitative analysis showing a marijuana metabolite concentration of at or above 15 ng/ml. Because Wiehe had a marijuana metabolite concentration in excess of 15 ng/ml, he was conclusively impaired under K.S.A. 2009 Supp. 44-501(d)(2) when the accident occurred, and Klaassen’s testimony cannot be used to supersede the plain and unambiguous language of the statute. See Stevens, 285 Kan. at 322 (determining that argument that would defeat plain meaning of statute “ ‘really lies with the legislature.’ ”).
Moreover, although Klaassen testified that the effects of Wiehe’s marijuana use would have worn off by the time of the accident, his testimony about the impairing effects of marijuana was consistent with Brown’s explanation of how the accident in question had occurred. Specifically, according to Klaassen, the impairing effects of marijuana would “lengthen” a person’s reaction time and could cause the person to mike bad judgments. As discussed previously, during his deposition testimony, Brown explained how Wiehe’s impairment, which resulted in poor judgment and impaired reaction time, contributed or caused the accident in question. With Brown’s testimony about how Wiehe’s impairment contributed to or caused the accident in question and Wiehe’s own witness admitting that the impairing effects of marijuana were the same as those that Brown had attributed to causing the accident, there is not substantial evidence in the record to support the Board’s decision that Kissick failed to meet the impairment exception under K.S.A. 2009 Supp. 44-501(d)(2).
In conclusion, a review of the Board’s decision that Kissick had failed to meet the impairment exception under K.S.A. 2009 Supp. 44-501(d)(2) is not supported by evidence that is substantial when viewed in light of the record as a whole. The employer pointed to evidence that compels the conclusion that Wiehe’s injuries were contributed to by his conclusively established marijuana impairment under K.S.A. 2009 Supp. 44-501(d)(2) and, therefore, Kissick is not hable for workers compensation benefits. Accordingly, we determine that Kissick met its burden to prove the impairment exception under K.S.A. 2009 Supp. 44-501(d)(2) and reverse the Board’s decision.
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Hill, J.:
This is an appeal by a student convicted of having marijuana in his pockets while he was at school. Two sheriff s deputies were in the room when an acting principal asked Jordan Kelly Burdette to empty his pockets. In Burdette’s view, this turned a search by school authorities into a law enforcement search. Since law enforcement searches need probable cause and there was no probable cause here, Burdette claims the district court should have suppressed the marijuana produced from his pockets. Because, other than their presence, there was no real involvement of law enforcement officers in asking Burdette to empty his pockets, we hold this search was not a law enforcement search needing probable cause. The record reveals this search was justified from its inception because of Burdette’s abnormal behavior; it was reasonable in scope and not excessively intrusive. We affirm Burdett’s convictions of possession of marijuana and possession of drug paraphernalia.
A teacher notices Burdette and tells the school counselor.
Bill Gies, a freshman English teacher at Southeast of Saline School in U.S.D. No. 306, noticed one of his students, Burdette, acting “really, really different” while Burdette was standing at his locker talking with some of his friends. Gies observed Burdette for about 3 to 5 minutes that morning before classes started. Burdette’s appearance made Gies think Burdette was either ill or “under the influence of something.” In Gies’ experience, Burdette was normally “open-eyed, open to most of the kids”; but on this day, he appeared quieter than normal and Burdette’s eyes were “basically shut.” Concerned about his student’s welfare, Gies went to the school office to report. He told the school counselor about Burdette, who then had the secretary bring Burdette to the office. The counselor, in turn, told the acting principal, who came to the office to meet with Burdette.
Two law enforcement officers overheard Gies’ conversation with the counselor. Deputy Shea, with the Saline County Sheriffs Office, was the school resource officer posted at Southeast of Saline School. Deputy Trembley, whose patrol area included the high school, was at the school to confer with Shea.
The search was simple and direct. Wayne Sager was acting principal on that day. When Sager entered the office, Burdette and Deputies Shea and Trembley were present. Deputy Shea asked Sager if he wanted Burdette to empty his pockets. Sager said, “Yes, that would be the normal procedure that we’d go through.” Sager testified that he did not take the officer’s question as an order. Sager then asked Burdette to empty his pockets. Burdette asked Sager if he had to, and Sager told him yes. Burdette emptied his pockets and put the items on the table. The items included money in a clip and two little baggies. Deputy Trembley picked up one of the baggies, smelled it, and asked Burdette what was in the baggie. Burdette said it was “weed.” The officers also asked Burdette if there were any narcotics in his locker, and he said no.
The State charged Burdette with possession of marijuana, in violation of K.S.A. 65-4162(a)(3), and possession of drug paraphernalia, in violation of K.S.A. 2007 Supp. 65-4152(a)(2). Burdette filed a motion to suppress both the marijuana found in the search and his statement that the baggie contained “weed.”
The district court did not suppress the marijuana but did suppress Burdette’s statement that the baggie contained weed. The court found the school officials, not the deputies, were responsible for the search of Burdette and that Sager acted within the scope of his position as acting principal. After a bench trial on stipulated facts, the court found Burdette guilty of possession of marijuana and possession of drug paraphernalia. First, we will repeat our two-step standard of review applicable in this type of appeal, followed by a brief review of the law of search and seizure. Then, we will apply Kansas Supreme Court precedent to the facts of this case to reach our conclusion.
We offer some fundamental points of law.
An appellate court reviews a district court’s decision on a motion to suppress in two steps. Without reweighing the evidence, we decide if substantial competent evidence supports the district court’s findings. Next, using an unlimited standard, we look to see if the district court’s ultimate legal conclusion is sound. See State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Generally, warrantless searches and seizures are per se unreasonable under the Fourth Amendment to the United States Constitution. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). But, there are exceptions. In New Jersey v. T.L.O., 469 U.S. 325, 339-40, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985), the United States Supreme Court allowed for a departure from the warrant requirement. In T.L.O., the Court found the warrant requirement “unsuited to the school environment.” 469 U.S. at 340. According to the Supreme Court of the United States, requiring school officials to obtain a warrant before searching a student would “unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.” 469 U.S. at 340. The Court also found that searches conducted by school officials need not be based on probable cause. Rather, the legality of a search of a student by school officials depends on the reasonableness of the search. 469 U.S. at 340-41.
In T.L.O., the Court created a test for determining the reasonableness of a school search. First, a court must consider whether the search was justified at its inception. A search of a student by a school official is justified when there are “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” 469 U.S. at 342. Second, the court must consider whether the scope of the actual search was reasonably related to the circumstances that prompted the search. 469 U.S. at 341-42.
We cite a Kansas case.
This same test for determining the reasonableness of a search conducted by school officials was adopted in Kansas in the ruling found in In re L.A., 270 Kan. 879, 21 P.3d 952 (2001). Our Supreme Court made it very clear that school searches differ from law enforcement searches:
“The accommodation of the privacy interests of school children with the substantial interest of teachers and administrators in maintaining order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law.”
“The legality of a search of a student by a teacher or other school official depends on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.”
“Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”
“A search of a student will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” In re L.A., 270 Kan. 879, Syl. ¶¶ 2-5.
But Burdette contends the rules announced in In re L.A. do not apply here. Burdette argues the presence and actions of the two deputies, Shea and Trembley, distinguish this case from In re L.A. Burdette asserts that we should view this search as a traditional law enforcement search and not a search by school officials. Implicitly then,' if this was a law enforcement search rather than a school search, the officers or even the school officials needed probable cause before making the search. Therefore, in Burdette’s view, since there was no evidence of probable cause to believe a crime had been committed or was about to be committed, the court should have sustained the motion to suppress.
We look at cases from other jurisdictions.
We have found no Kansas case that has ruled on this issue when law enforcement officers have been present during a school search, but courts in other jurisdictions have. Those courts that have ruled upon the matter focused their inquiry on the amount of involvement the law enforcement officers had in the search.
First, we look at a case from Illinois. In Martens v. District No. 220, Bd. of Educ., 620 F. Supp. 29 (N.D. Ill.1985), the court considered whether the test set forth in T.L.O. applied to the search of a student when law enforcement participated in the search. In Martens, the dean of students received an anonymous phone call that Martens was selling drugs. The dean brought Martens into her office and questioned him regarding the tip. Officer Hentig, a sheriff s deputy who was at the school on another matter, came into the dean s office and spoke to Martens. Deputy Hentig told Martens that it would be best to cooperate with school officials and asked Martens to empty his pockets. Martens complied and removed a pipe containing marijuana from his pocket. Deputy Hentig did not supply any evidence implicating Martens, nor did he direct school officials to detain Martens for questioning.
Applying the reasonable grounds standard set forth in T.L.O., the court in Martens pointed to Hentig’s “relatively limited role” in the investigation and search. 620 F. Supp. at 32. Hentig did not direct school officials to detain and search Martens or take part in the investigation leading up to Martens’ detention. Although the record indicated it was Officer Hentig who told Martens to empty his pockets, there was no indication a criminal investigation was contemplated or that the search was a cooperative effort with law enforcement officers. The court concluded there was “no basis for thinking that school official action was a subterfuge to avoid warrant and probable cause requirements.” 620 F. Supp. at 32.
Courts in other states have taken a similar approach. The courts have extended the T.L.O. reasonableness standard to school searches involving police officers where (1) school officials initiate the search and police involvement is minimal or (2) where school officials act in conjunction with, but not at the behest of, law enforcement. See Cason v. Cook, 810 F.2d 188, 191-92 (8th Cir. 1987) (applying T.L. O. when school police officer conducted a pat-down search of student after principal found stolen items in student’s purse); F.S.E. v. State, 993 P.2d 771, 772-73 (Okla. Crim. 1999) (applying T.L.O. when school principal ordered student to open the trunk of his car and police officer subsequently searched student’s trunk); In re D.D., 146 N.C. App. 309, 318-24, 554 S.E.2d 346, rev. denied 354 N.C. 572 (2001) (applying T.L.O. where officers did not initiate investigation and were asked by the principal to assist in investigation); State v. Angelina D.B., 211 Wis. 2d 140, 151-60, 564 N.W.2d 682 (1997) (applying test enunciated in T.L.O. when city police officer and school liaison officer searched student for weapons after principal heard reports of a student carrying a weapon).
On the other hand, we note that school officials’ power to search students cannot be used to cloak what is normally a police function performed by or at the behest of law enforcement officers. Where school officials search students at the request of outside law enforcement officers in a criminal investigation, courts require the normal probable cause requirement to justify the search of a student. State v. Tywayne H., 123 N.M. 42, 45-46, 933 P.2d 251(Ct. App.), cert. denied 123 N.M. 83 (1997) (applying probable cause when frisks of students at school dance were conducted solely by law enforcement officers); In Interest of Thomas B.D., 326 S.C. 614, 618-21, 486 S.E.2d 498 (Ct. App. 1997) (applying probable cause when law enforcement officers, not school officials, searched student on school grounds.) In such cases, the puipose of the search conducted by law enforcement was to obtain evidence of a crime, not to “maintain discipline, order, or student safety.” In re D.D., 146 N.C. App. at 318.
We apply the T.L.O./L.A. rule here.
A fair reading of these cases persuades us that the search in this case was reasonable and legal. The search of Burdette appears to fall into the category of searches where school officials are acting in conjunction with, not at the behest of, law enforcement officers. Deputies Shea and Trembley had no part in this search of Burdette other than being present. Shea and Trembley did not initiate this investigation. Gies, a teacher, first noticed Burdette acting unusual. Gies reported the behavior to the school counselor, not to the deputies. It was only after overhearing this conversation when deputies became involved. Further, the deputies were present at the search at the request of school officials.
Certainly, the police involvement in this case was much less than what was reported in Martens. In Martens, the officer told Martens to cooperate and ordered the search. Also,, the officer spoke to Martens prior to the search. Additionally, the officer was at the school on another matter. In this case, Shea was simply at her post as the school resource officer. In contrast to the officer in Martens, Shea did not encourage Burdette to cooperate or ever speak to Burdette before acting principal Sager entered the office. Also, there was no indication in the record that Shea made Burdette open his pockets. Although Shea did ask Sager if he wanted Burdette to empty his pockets, it was Sager who actually ordered Burdette to do so.
In the cases where other courts have required probable cause to justify a search of a student, we note only law enforcement officers conducted those searches as part of a criminal investigation. Obviously, here, the search was conducted under different circumstances. Thus, we conclude this was not a law enforcement search and probable cause was not needed to justify the search. The district court was correct in applying the standards set forth in In re L.A. and denying Burdette’s motion to suppress.
Applying the test set forth in T.L.O. and In re L.A., the search of Burdette was reasonable and legal. First, the search of Burdette was justified at its inception. School officials had “reasonable grounds for suspecting the search [would] turn up evidence that the student has violated or is violating either the law or rules of the school.” In re L.A., 270 Kan. at 885. Here, Gies noticed Burdette acting differently. Burdette’s eyes also appeared to be shut. Gies felt that Burdette was either ill or under the influence of some substance. School officials must be concerned about the condition of their students. Based on this observation, there were reasonable grounds to suspect that Burdette had been using drugs. Certainly, the district court’s findings about this are supported by substantial competent evidence.
Second, the search of Burdette was reasonably related to the circumstances that prompted the search. School officials felt that Burdette was “on something.” The scope of the search was limited to Burdette emptying his pockets to determine if he was possessing drugs. The search is not excessively intrusive. The search did not go beyond determining whether Burdette was in possession of drugs. The district court’s legal conclusion was sound. Therefore, the district court properly denied the motion to suppress.
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Greene, J.:
P.S., the natural father of J.O. (born September 29, 2007), appeals the district court’s termination of his parental rights. Father argues he was denied due process when he was not allowed to participate by telephone in the hearing that resulted in the termination. We agree with Father, reverse the judgment of termination, and remand for further proceedings.
Factual and Procedural Background
Shortly after J.O.’s birth, concerns for J.O.’s safety and well-being caused the State to file a petition to have J.O. declared a child in need of care (CINC) pursuant to the Revised Kansas Code for Care of Children, K.S.A. 2009 Supp. 38-2201 et seq. As a result, the district court awarded SRS temporary custody of the child and ordered the State to serve Father, whose whereabouts were unknown by SRS at the time, for paternity testing.
On December 26, 2007, the district court adjudicated J.O. a CINC pursuant to K.S.A. 2009 Supp. 38-2202(d)(l), (2), and (3). Father had not yet appeared by that point, so the court granted a default judgment against him pending proof of service by publication. By the time of the February 5, 2008, disposition hearing, Father had apparently been personally served because he appeared at the hearing in shackles with court-appointed counsel and admitted his paternity.
From the February 2008 hearing until March 2009, the SRS social worker assigned to manage J.O.’s case had telephone contact with Father on only two occasions. The first contact took place shortly after the disposition hearing, when Father called the social worker to indicate he had always wanted to see J.O., but Mother prevented the visit. Father asked to schedule a visit with his son, but he needed to make arrangements for transportation and promised to call the social worker when these arrangements were made. When the social worker had not heard from Father by the following March, she called the number Father had given her, and Father returned the call on March 28 and scheduled a visit with J.O. for the beginning of April. Unfortunately, he failed to show up for that visit; reasons for this failure do not appear in the record.
Father’s appointed counsel appeared on his behalf at a November 3, 2008, permanency hearing, at which the district court found reintegration was no longer a viable alternative. Rather, the court found either adoption or permanent custodianship might be in J.O.’s best interests, so it ordered the State to file pleadings to either terminate parental rights or establish permanent custodianship. Accordingly, the State then moved to terminate the parental rights of both Mother and Father.
The social worker was able to reestablish communication with Father in March 2009, after Mother advised that Father was in prison in Colorado. Father’s earliest possible release date was 2012, but he continued to correspond by letter with the social worker to inquire how J.O. was doing.
At a June 29, 2009, review hearing, the district court granted Father’s counsel’s request to continue to October 21, 2009, the trial on the State’s motion to terminate his parental rights. Father’s counsel also accepted service on Father’s behalf.
The case proceeded to a trial on the State’s motion to terminate Father’s parental rights on October 21, 2009. At the opening of the trial, the district court considered Father’s motion to appear by telephone or video conference. The State and guardian ad litem argued that a court rule prohibited telephonic testimony in a trial on the merits and suggested that case law indicated that a parent’s due process rights are not violated if that parent has appointed counsel present at the hearing. Father’s counsel responded that in light of Father’s desire to be present, she had arranged with Father’s counselor at the Colorado prison for Father to be available to the court at 9 a.m. Because this designated hour had passed by the time the court took up the matter, counsel was unable to assure the court that Father would still be available in the counselor’s office. Thus, Father’s counsel asked for a continuance to allow her to arrange a specific time for Father to be available.
The district court denied counsel’s request for Father’s telephonic appearance, explaining:
“Well, the Court believes that Supreme Court Rule 145 and . . . K.S.A. 60-243(a) direct that the testimony needs to be in person on the merits of the claim. And the primaiy factor for concern is the inability of the Court to . . . assess the demeanor of the witness on the stand in determining what level of weight the Court would give to that testimony.
“Further, it’s my concern that Father is unable to be present today by his own actions, not by any restriction by the Court or the Agency. But he is in prison in the State of Colorado pursuant to his own behavior and his own actions and suffers the consequence.
“I am not inclined to allow him to participate by telephone and ... to present testimony by telephone ... in this proceeding. Supreme Court Rule does not allow that and the statute does not allow that.
“Now, I understand that the Supreme Court says there may be a variance in party but unless or until the Supreme Court authorizes [it] specifically, my sense is that the statute controls.
“And so I am not inclined to authorize his participation in this proceeding by telephone. And as such, that’s [a] basis for you to file an appeal and maybe make new law in the State of Kansas. But as the existing law is as I understand it at this point in time, the testimony is to be in court.”
At the close of the hearing, the district court granted the State’s motion to terminate Father’s parental rights. The court orally announced that it was applying the statutory presumption of K.S.A. 2009 Supp. 38-2271(a)(5) and also found termination of Father’s parental rights was proper under the statutory factors in K.S.A. 2009 Supp. 38-2269(b)(4), (b)(7), (b)(8), (c)(3), and (c)(4). The court further announced that in light of Father’s incarceration until at least 2012, J.O.’s age, and J.O.’s relationship with his foster family, termination of Father’s parental rights was in J.O.’s best interests. In its subsequent journal entry, the court found “that it is highly probable that the evidence establishes a clear and convincing standard that father is unfit by conduct or condition and is not likely to change in the foreseeable future.” Father timely appeals.
Standards of Review
Appellate courts generally review a district court’s refusal to grant a continuance for an abuse of discretion. In re J.A.H., 285 Kan. 375, 384, 172 P.3d 1 (2007). Under this highly deferential standard of review, we will not overturn a district court’s discretionary decision on appeal if reasonable persons could differ about the propriety of that decision. See Schuck v. Rural Telephone Service Co., 286 Kan. 19, 24, 180 P.3d 571 (2008).
A district court’s discretionary decisions are not unfettered, however, and must necessarily be made within and take into account any applicable legal standards. Thus, this court will also find the district court abused its discretion on appeal if its decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009); see also In re Adoption of B.G.J., 281 Kan. 552, 563, 133 P.3d 1 (2006) (“ ‘Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power.’ [Citation omitted.]”).
We have unlimited review of the questions whether Father’s due process rights were violated and whether the district court misconstrued a court rule or statute. See In re Adoption of B.J.M., 42 Kan. App. 2d 77, 81, 209 P.3d 200 (2009) (unlimited review of legal question of due process); see also Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009) (unlimited review when statutory construction involved).
Has Father Waived His Due Process Challenge?
The State initially suggests that we should summarily deny Father’s due process challenge because Father has waived the issue by failure to raise it below. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007) (constitutional grounds for reversal asserted for the first time on appeal are generally not properly before the appellate court for review).
We disagree. Father’s counsel attempted to assert and protect Father’s due process rights by requesting a continuance to secure Father’s appearance by telephone. Although counsel’s argument was not expressly couched in due process terms, tire issue was squarely framed and decided by the district court. Thus, it is properly before us on review.
Did the District Court Err in Conducting the Termination Hearing Without Fathers Requested Participation?
Father’s sole contention in this appeal is that he was denied due process when the court denied his request to appear by telephone or for a continuance and instead proceeded with a termination trial in his absence. In other words, he argues he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. See In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”).
Our courts employ a multiple-step analysis in reviewing whether a civil litigant’s procedural due process rights were violated. The first step requires the determination of whether a protected liberty or property interest is at stake. If so, the second step requires a determination of the nature and extent of the process due. In re J.D.C., 284 Kan. at 166.
With regard to the first step of the due process analysis, Father argues he had a protected fundamental liberty interest in parenting J.O. In support, he points out that our courts have consistently recognized that a parent’s right to make decisions regarding the care, custody, and control of his or her child is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution. See 284 Kan. at 166; In re Adoption of B.J.M., 42 Kan. App. 2d at 81.
The State counters that because Father never developed a relationship with J.O., his fundamental right to parent J.O. never ripened to a protected liberty interest. In support, the State relies on Lehr v. Robertson, 463 U.S. 248, 260, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983), and In re Adoption of A.A.T., 287 Kan. 590, 601, 196 P.3d 1180 (2008), which recognized that a mere biological connection of an unwed father does not establish a protected liberty interest when analyzing the different issue of a putative father’s due process right to notice of adoption proceedings.
The State never made this argument below. To the contrary, the State impliedly recognized Father’s fundamental liberty interest and due process rights by giving him notice of all CINC proceedings. And the State never objected to Father’s interest in the participation in the CINC and termination proceedings except to argue that court rules prohibited his telephonic participation at the termination hearing. Although Father may not have exhibited much interest in J.O., the record reflects some measure of per sistent interest by the Father in J.O.’s well being. Moreover, there is some indication that development of a relationship was hindered by Mother. Finally, we note that the district court did not assess any facts regarding tire Fathers contacts or interest in the child, but for purposes of denying the telephonic participation, the court relied exclusively on a strict application of Rule 145 (2009 Kan. Ct. R. Annot. 236) and K.S.A. 60-243.
Accordingly, we reject the State’s contention that the first requirement of the due process analysis is not satisfied here, and we conclude that Father had a fundamental liberty interest at stake under these circumstances.
Having identified Father’s fundamental liberty interest at stake, the next step of the procedural due process analysis requires that we determine both the nature (type) and the extent (quantity) of procedural protection that had to accompany the deprivation of that liberty interest, i.e., the termination of Father’s parental rights. See In re Adoption of B.J.M., 42 Kan. App. 2d at 82.
At issue is the district court’s conclusion that Rule 145 and K.S.A. 60-243(a) strictly prohibited the court from allowing Father’s appearance by telephone at the termination hearing.
Rule 145 provides, in pertinent part: “The court, in its discretion, may use a telephone or other electronic conference to conduct any hearing or conference, other than a trial on the merits.” (Emphasis added.)
K.S.A. 60-243(a) provides, in pertinent part: “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by this article.”
There should be no question that both the rule and the statutory provision are intended to protect due process rights of litigants. Indeed, our Supreme Court has stated that the purpose of the rule is to protect the integrity of the judicial process. In re Estate of Broderick, 286 Kan. 1071, 1078, 191 P.3d 284 (2008).The obvious policy underpinning for both the rule and the statutory provision is that the importance of trials on the merits of any and all controversies dictates that live testimony should be presented in order to allow the factfinder every opportunity to assess demeanor and credibility of witnesses. To suggest that the rule and statutory pro vision prohibit telephonic participation by an incarcerated Father in termination proceedings is to turn the rule and statutoiy provision on their respective heads. Father’s only opportunity to participate in this proceeding (wherein his fundamental liberty interest in parenting his child was at stake) was by telephone because of his incarceration in another state.
The State argues that the rule and statutory provision support the district court’s action in denying Father’s motion for telephonic participation, citing and relying on our Supreme Court’s decision in In re Estate of Broderick. We disagree. In Broderick, the court held under the facts of that case that the district court did not err in following the clear language of Supreme Court Rule 145 to prohibit a pro se party from appearing by telephone at a trial of a will contest on the merits. 286 Kan. 1071, Syl. ¶ 10. The court noted, however, that other states as well as the Federal Rules allow telephonic testimony in special circumstances. 286 Kan. at 1079 (citing Barry v. Lindner, 119 Nev. 661, 668, 81 P.3d 537 [2003] [citing cases permitting telephonic testimony, particularly when special circumstances are met]; and Federal Rule of Civil Procedure 43[a][2007] [FRCP 43(a)] [permitting telephonic testimony “ ‘[f]or good cause in compelling circumstances and with appropriate safeguards’”]; and Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1185-86 [9th Cir. 2000]). 286 Kan. at 1079. We do not believe that our Supreme Court intended to declare that the rule must be strictly applied in every circumstance, as demonstrated by the court’s comprehensive analysis regarding whether the rule had been preempted by the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 etseq. (2006). 286 Kan. at 1080-85. In fact, the court was careful to tailor its analysis and limit its holding to the facts before it. 286 Kan. at 1080.
We hold the district court’s strict application of Rule 145 and K.S.A. 60-243(c) to prohibit telephonic participation under these circumstances violates constitudonal due process requirements. The integrity of the judicial process obviously must include incorporation of some flexibility in the mode of appearance at a trial on the merits for good cause in compelling circumstances, as recognized in FRCP 43(a). Where the only manner of appearance for an incarcerated person to participate in a proceeding to protect a fundamental liberty interest is by telephone, neither the rule nor the statute should prohibit that modicum of due process.
Our court recently analyzed the risk of the erroneous deprivation of a parent’s fundamental liberty interests in the care, custody, and control of his child when a father was not allowed to appear at a hearing on the termination of his parental rights in In re Adoption of B.J.M., 42 Kan. App. 2d at 84-85. We adopt that analysis and apply it here to conclude that the district court’s refusal to allow Father’s telephonic participation at the trial on the termination of his parental rights, solely based on Rule 145 and K.S.A. 60-243(a), was improper.
The State also argues that the risk of prejudice here was nonexistent because Father “would not have been able to overcome any of the presumptions of unfitness” and his presence “would [not] have changed the result of the trial.” We certainly recognize the difficulty for an incarcerated parent to escape termination of parental rights, but this is no reason to deny fundamental due process to that parent. In terminating Father’s parental rights, the trial court explicitly found that although Father had maintained contact with SRS, he had not maintained any kind of relationship with J.O. after knowing of his birth. Yet, the record suggests that Mother may have either refused or prevented his attempts to see his child. Because he was denied any opportunity to appear at the hearing, Father was wholly deprived of die opportunity to present evidence to counter the district court’s finding concerning his lack of efforts.
As to die presumption of unfitness, the district court applied K.S.A. 2009 Supp. 38-2271(a)(5) in terminating Father’s parental rights. For that presumption to be applied, the State had to establish, by clear and convincing evidence, that
“the child has been in an out-of-home placement, under court order for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home.” K.S.A. 2009 Supp. 38-2271(a)(5).
By being wholly denied any mode of appearance, Father was also deprived of any chance to meet his burden of rebutting this pre sumption of unfitness by a preponderance of the evidence. See K.S.A. 2009 Supp. 38-2271(b). The same can be said with regard to Father s inability to counter any evidence supporting the district court’s other statutory findings in support of termination under K.S.A. 2009 Supp. 38-2269(b)(4), (b)(7), (b)(8), (c)(3), and (c)(4).
We conclude that the prejudice caused by Father’s complete absence was necessarily unquantifiable and indeterminate, requiring us to reverse and remand for further proceedings. See In re Adoption of B.J.M., 42 Kan. App. 2d at 82. Such a holding is entirely consistent with a host of opinions from our court and with the trend of jurisprudence elsewhere. See, e.g., 42 Kan. App. 2d at 85-87; In re Adoption of J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27, rev. granted 289 Kan. 1278 (June 4, 2009); Fischer v. State, 41 Kan. App. 2d 764, 206 P.3d 13 (2009), rev. granted 290 Kan. __ (February 4, 2010); In re J.L.D., 14 Kan. App. 2d 487, 490-91, 794 P.2d 319 (1990); In re S.M., 12 Kan. App. 2d 255, 738 P.2d 883 (1987); Gentry, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757, 771 (1991-92).
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PlERRON, J.:
Tyson Fresh Meats, Inc. (Tyson), appeals the decision of the Workers Compensation Board (Board) awarding workers compensation benefits to Nicole Goodell after she sustained a work-related injury at Tyson. Tyson argues that because of the Board’s split decision, a majority of the Board did not agree upon the nature and extent of Goodell’s work disability. Tyson also argues that substantial competent evidence does not support the Board’s finding of a work-related injury to Goodell’s lower back or the computation of wage loss and task loss, the expert physician’s opinion was not based on proper authority, and she did not demonstrate a good-faith effort to find postinjury employment.
In 2005, Goodell worked in processing and cleaning rib bones at Tyson. The parties stipulated that she suffered a work-related accident on October 5,2005, when a large rolling container of meat tipped over onto her left foot. Tyson authorized treatment for Goodell with Dr. Dale Garrett. Goodell received conservative treatment including medications, physical therapy, injections, and limited work restrictions. Dr. Garrett referred Goodell to Dr. Stan Rowling, an orthopedic surgeon, for a consultation due to Goodell’s continued pain in her left foot. Goodell filed her application for a workers compensation hearing on March 28, 2006, wherein she complained of injuries to her bilateral extremities, calves, low back, and all related systems.
Dr. Bowling ultimately performed tarsal tunnel release surgery on Goodell on October 31, 2006. Dr. Bowling testified that he never provided any treatment to Goodell for lower back pain and that he was only authorized to treat injuries to her left foot and “that’s what I focused my care on.” In an impairment rating report issued on July 2, 2007, Dr. Bowling opined that Goodell suffered from a permanent partial impairment rating of 10% at the level of her left foot and that she had reached maximum medical improvement on April 20, 2007.
Goodell obtained a medical evaluation from Dr. Sergio Delgado after examinations on June 15, 2006, and September 6, 2007. Dr. Delgado testified that Goodell complained of pain in her left foot and when she transferred weight to her right foot, she developed pain in her right foot, both calves, knees, and then later in her lower back. Dr. Delgado assigned three impairments as a result of Goodell’s workplace injury. First, he assigned a 10% impairment to the left lower extremity for the tarsal tunnel condition. Second, he added a 2% impairment based on Goodell’s complaints of pain in her right foot. Last, he added another 3% impairment for sacroiliac joint derangement as a result of Goodell’s altered gait. Dr. Delgado opined that the 10% left leg impairment converted to a 4% whole impairment and the 2% right leg impairment converted to a 1% whole person impairment; he combined those percentages with the 3% low back impairment for a total of 8% whole person impairment. Dr. Delgado testified that the entire 8% impairment was causally attributable to the workplace injury. He entered permanent restrictions of “avoidance of prolonged standing, sitting, climbing, running or squatting. With not doing these activities on a consecutive basis for more than two hours at a time with periods of rest of up to one hour in between.”
After the parties could not agree on a functional impairment rating, the Administrative Law Judge (ALJ) ordered an independent medical examination by Dr. Peter Bieri. Dr. Bieri evaluated Goodell on November 26, 2007, and agreed that Goodell suffered a 10% left foot impairment attributable to the injuiy at Tyson. However, Dr. Bieri concluded, “While the claimant has subjective complaints involving the low back, hips, and right foot, at the time of this evaluation she fails to meet the criteria for additional permanent impairment directly attributable to the injury in question.” Dr. Bieri gave Goodell the following restrictions:
“[C]laimant is precluded from squatting, kneeling, crouching, and crawling .... Sustained ambulation and weight-bearing should be limited to no more than 300 feet at a time on level surfaces, with avoidance of climbing or descending ladders of more than three steps. Sustained weight-bearing activities should be limited to no more than two hours at a time, with 30 minutes for postural adjustment.”
The ALJ found that Goodell had never been treated for injuries to her back, and the independent medical examiner, Dr. Bieri, found there was insufficient basis for finding a permanent impairment in her back and right foot as the result of her subjective complaints. The ALJ held that the definition of “permanent impairment” excludes body parts which have not been evaluated for the need for medical treatment and implies assessment and treatment have been provided to the body parts affected. The ALJ awarded a 10% left lower extremity impairment as a result of her injuries for a total award of $12,033.42.
Goodell appealed her award to the Board. In a severely fractured opinion, the Board modified the ALJ’s award and granted work disability benefits to Goodell based on compensable injuries to both her left foot and her lower back. Two members writing for the majority found the injury to Goodell’s back was a direct and natural consequence of her original left foot injury. The Board stated it was not persuaded by the ALJ’s explanation that “any award for permanency requires treatment.” Combining the 10% impairment for the left foot and the 3% impairment for the lower back, the Board arrived at a 7% impairment to the body as a whole.
The Board also held that because it concluded Goodell had sustained an unscheduled injuiy to her lower back and sustained per manent impairment to her back, she was entitled to benefits based upon an unscheduled impairment under K.S.A. 44-510e(a). The Board found there was no evidence Goodell had not made a good-faith effort to find appropriate postinjury employment and even with her move out of town, there was no evidence that she was attempting to manipulate the workers compensation system. Consequently, Goodell’s actual wage loss was used, leaving her with a 78.5% permanent partial general disability and resulting award of $52,528.35 due and owing, followed by permanent partid disability compensation in the amount of $47,471.65 paid at the rate of $346.57 per week until fully paid or until further order from the Director.
Two Board members filed a concurring and dissenting opinion. The two members agreed with the majority’s factual findings and its determination that Goodell was entitled to work disability. However, they disagreed with the majority’s conclusion that Goodell’s functional impairment for the scheduled injury in her left foot should be combined with the functional impairment for her general body injury to her back. The two members agreed that both the left foot injury and the lower back injury occurred as a direct result of the work-related accident. However, the foot injury was a scheduled injury and should be compensated separately. The lower back injury was compensable based on functional impairment for that injury alone and the restrictions resulting from the left foot injury should not be included in determining Goodell’s wage and task loss.
One Board member filed a dissenting and concurring opinion in support of the ALJ’s limiting Goodell’s permanent partial impairment to the left foot but stated that the calculation of the impairment should be modified to reflect the impairment occurring at the level of the foot. This Board member also concurred with the award that injuries involving both a scheduled and nonscheduled injury are to be combined for the purposes of determining the ultimate functional impairment and work disability.
Tyson appeals.
Tyson argues there was not a majority opinion by the Board regarding the nature and extent of Goodefl’s work disability.
The Board’s decision is subject to the parameters of K.S.A. 44-555c(k):
“For purposes of hearing cases, the board may sit together or in panels of two members or more, designated by the chairperson of the board, except that an appeal from a preliminary award entered under K.S.A. 44-534a, and amendments thereto, may be heard by a panel of one member designated by the chairperson. All members of the board shall determine each matter before the board. All decisions, reviews and determinations by the board shall be approved in writing by at least three board members. Whenever the board enters a final order in any proceeding, the board shall make written findings of fact and conclusions of law forming the basis of the board’s determination and final order. The findings of fact and conclusions of law of the board shall be made a part of the final order. The board shall mail a copy of the final order of the board to all parties to the proceeding within three days following the issuance of the final order.”
Whether the Board entered a majority opinion under K.S.A. 44-555c(k) is a question of statutory interpretation over which we have unlimited review. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Similar to the scant authority cited by Tyson, our research has discovered only one Kansas case discussing the 3-member majority under K.S.A. 44-555c. In Lott-Edwards v. Americold Corp., 27 Kan. App. 2d 689, 6 P.3d 947 (2000), the insurance company similarly challenged the plurality decisions of the Board. The extent of the decision by this court was as follows:
“All five Board members signed the decision. The Board’s lead opinion was signed by two members; a third member concurred except for the holding that the Board had jurisdiction to apportion liability between Travelers and National Union; a fourth member concurred as to tire apportionment holding but dissented as to the other holdings. We conclude ‘at least three board members’ approved each point of law decided and the Board’s final order is consistent with the requirements of K.S.A. 1999 Supp. 44-555c(k). The Board functions as a quasi-judicial body, and our interpretation of this statute is consistent with the rule regarding decision-making powers of a collegial court. See State v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984).” 27 Kan. App. 2d at 692.
Here, two majority Board members held that Goodell had suffered a compensable injury to her lower back. Two minority Board members agreed that Goodell suffered a compensable injury to her lower back. These four members only disagreed with how the award should be computed. However, the two majority Board members were joined by the one separate minority Board member in finding that both the scheduled lower leg injury and the nonscheduled lower back injury should be combined for purposes of determining Goodell’s whole person permanent impairment and work disability. We find the Board entered a decision where at least three members agreed on all the points of law entered by the Board and the Board complied with die mandates of K.S.A. 44-555c(k).
Next, Tyson challenges the Board’s assessment of work disability for injuries to Goodell’s lower back. Tyson contends the work disability should be limited to a scheduled injury to Goodell’s left foot and die award of disability for Goodell’s lower back should be vacated in its entirety.
Our review of the Board’s decision in a workers compensation appeal is limited to questions of law. Webber v. Automotive Controls Corp., 272 Kan. 700, 704, 35 P.3d 788 (2001). The nature and extent of a workers compensation claimant’s disability is a question of fact. Lott-Edwards, 27 Kan. App. 2d at 695. An appellate court’s review of questions of fact in a workers compensation case is limited to whether the Board’s findings of fact are supported by substantial competent evidence, which is a question of law. Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004). Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to die prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003).
Tyson argues the Board’s findings of Goodell’s lower back injuries are not supported by substantial competent evidence. First, Tyson states Dr. Bowling had no memory of complaints by Goodell of lower back pain and his records did not indicate any such complaints. Consequendy, Dr. Bowling did not provide any treatment to Goodell’s lower back. Second, the medical records do not provide evidence that Goodell ever sought treatment for her lower back injuries. Third, the Board-appointed neutral physician, Dr. Bieri, concluded, “While the claimant has subjective complaints involving the low back, hips, and right foot, at the time of this evaluation she fails to meet the criteria for additional permanent impairment directly attributable to the injury in question.” Fourth, Dr. Delgado did not find any symptoms of sacroiliac derangement at his initial examination, but granted benefits for sacroiliac derangement over a year later based solely on Goodell’s subjective complaints of lower back pain. Last, Tyson maintains the ALJ correctly found that a permanent impairment rating could not be imposed until assessment and treatment of the body part at issue is undertaken.
Goodell was injured on October 5, 2005. In her application for workers compensation hearing, dated March 28, 2006, Goodell complained of injuries to her “[b]ilateral lower extremities, calves, low back, and all related systems.” It is clear that as of at least March 28, 2006, Goodell complained of injury or pain in her lower back. However, Dr. Bowling testified that when he last saw her, she did not complain of pain other than in her foot. Goodell, on the other hand, testified that she asked Dr. Bowling to provide treatment on her back. Dr. Bowling agreed that an altered gait would not be out of the ordinary for someone suffering from a tarsal tunnel injury. However, Dr. Bowling testified that he never provided any treatment to Goodell for lower back pain and that he was only authorized to treat injuries to her left foot and that was where he focused his care. Dr. Bowling performed tarsal tunnel release surgery on Goodell on October 31, 2006.
Dr. Delgado examined Goodell on June 15, 2006, and September 6, 2007, at her attorney’s request. At the June 2006 examination, Goodell complained of pain in her left foot and that as she transferred weight to her right foot, she developed pain in her right foot, both calves, knees, and then later in her lower back. Dr. Delgado described her lower back as not exhibiting any spasm or guarding, and no evidence of lumbar lordosis. He said Goodell only had subjective complaints related to her lower back. When Dr. Delgado saw Goodell in September 2007, it was nearly a year post-surgery and she exhibited the same pain levels she complained of in June 2006. Dr. Delgado testified that these symptoms indicated the condition of her back had become chronic and that she should have been given treatment for her lower back. He opined that the delay in treating her altered gait allowed the symptoms in her lower back to become chronic.
In awarding disability to Goodell for injuries to her lower back, the Board stated:
“This majority is not persuaded by the ALJ’s explanation that any award for permanency requires treatment. Here, claimant’s low back complaints were consistent and longstanding. As was explained by Drs. Delgado and Bowling, the treating physician, it is common for a lower extremity injury to lead to an altered gait. And specifically in this instance, the claimant was experiencing pain while walking and that pain compelled her to alter her gait, transferring a majority of her weight to her opposing extremity which in turn caused unusual stress on her sacroilliac [sic]. Even Dr. Bowling conceded he was retained to treat only her left foot and ankle injury, ignoring her other complaints. Ideally claimant should have been provided treatment but for whatever reason she was not. Under these facts and circumstances a majority of the Board finds that claimant’s low back complaints are a direct and natural consequence of her October 5, 2005 accident.”
Essentially, Tyson asks us to reweigh the evidence and assess the credibility of witnesses. As previously noted, we are precluded from doing so. See Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007). Instead, we are confined to reviewing this issue using the substantial competent evidence standard. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007).
The record reveals substantial support for the majority decision of the Board. Goodell testified she did not have the problems with her back and foot prior to the injury at issue. Doctors agreed that an altered gait, if left untreated, can cause injury to the uninjured foot and the back. The secondary injury rule provides “that when a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972).
Dr. Delgado testified that it was Goodell’s pathology and the nature of her original injury that caused him to find that she had a permanent injury to her back. Relying on Dr. Delgado’s opinion concerning the injuries to Goodell’s lower back, a majority of the Board found Goodell was entitled to work disability. We conclude substantial competent evidence existed to support the Board’s findings that the September 2005 work-related accident and the resulting untreated altered gait was the cause for Goodell’s 3% permanent impairment to her back.
Next, Tyson argues the Board erroneously relied on Dr. Delgado’s permanent partial impairment rating of 3% to the body as a whole for Goodell’s lower back condition because the AMA Guides to Evaluation of Permanent Impairment do not include impairment ratings for this condition.
In determining an injured worker’s functional impairment, K.S.A. 44-510e(a) provides in relevant part:
“Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein.”
An appellate court reviews the trial court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
Dr. Delgado testified that the first time he examined Goodell, she walked with an altered gait. His opinion was that an “[a]ltered gait can produce symptoms in the opposite leg, knees, hips and frequently in the back just on the basis of the alteration of normal walking.” When Dr. Delgado evaluated Goodell following her surgery, she complained of discomfort localized to both sacroiliac joints as compared to generalized discomfort during Dr. Delgado’s first physical evaluation. Dr. Delgado diagnosed Goodell with sacroiliac derangement:
“Which is the most common finding I see in people with altered gaits. It’s not the lower back but it’s the sacroiliac joint that suffers because normally when you walk there is a rotation that occurs in the leg that does not allow the sacroiliac to be straight. Once you develop a limp, you develop a stiffness of the involved leg and that limits the normal motion of sacroiliac and may develop - - most of the complaints I see of altered gaits would be to the sacroiliac.”
Dr. Delgado assigned a 3% whole person impairment for Good-ell’s sacroiliac derangement. He acknowledged that the AMA Guides did not contain an impairment rating for sacroiliac derangement, but that the AMA Guides assign a 5% whole person impairment for injuiy to the symphysis pubis. Dr. Delgado testified that the “sacroiliac derangement is not addressed but it can be compared to a symphysis pubis derangement.”
The lack of an impairment rating listed in the AMA Guides does not require a finding of zero impairment. K.S.A. 44-510e(a) specifically contemplates the existence of impairment ratings not “contained therein.” Dr. Delgado testified that “[t]he Guides are not specific. They are not a bible. They give you parameters in which you can function to arrive at a reasonable impairment rating using comparisons with other ratings that are assigned in tihe book.” Dr. Delgado testified that “[i]f she had not had that injury which was objectively certified through her EMG then I would not even consider assigning impairment to her right lower extremity Or her back.” We find Dr. Delgado’s testimony concerning his computation of Goodell’s impairment rating for sacroiliac derangement to be supported by the evidence.
Next, Tyson argues the Board erred in finding Goodell had made a good-faith effort to find appropriate postaccident employment. Requiring an injured worker to put forth a good-faith effort to find appropriate postaccident employment was abolished by the Supreme Court’s recent decision of Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009). The Bergstrom court ehminated the good-faith effort requisite:
“K.S.A. 44-510e(a) contains no requirement that an injured worker make a good-faith effort to seek postinjury employment to mitigate the employer’s Rabil ity. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), and all subsequent cases that have imposed a good-faith effort requirement on injured workers are disapproved.” 289 Kan. 605, Syl. ¶ 3.
The wage loss component of permanent work disability is “the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.” K.S.A. 44-510e(a). Under Bergstrom, because Goodell was not working at the time of the regular hearing, the Board did not err in awarding 100% wage loss in calculating her work disability award.
Last, Tyson argues the Board erred in combining Goodell’s scheduled left foot injury with the nonscheduled lower back injury to arrive at a single functional impairment and a single work disability award. Tyson contends the correct method for calculating disability benefits in this case would be to apply the scheduled injury to Goodell’s left foot, but apply a separate functional impairment work disability to the injury in the lower back. Tyson states there was no evidence applying the wage loss and task loss evidence specifically to the injuries in Goodell’s lower back. Tyson argues the permanent restrictions, job task loss, and wage loss evidence were not differentiated between the left foot injury and the lower back injury and, therefore, the Board’s award constitutes a windfall to Goodell.
The nature of a work disability dictates the form of the award under the Workers Compensation Act. K.S.A. 44-510c provides compensation for temporary and permanent total disabilities. K.S.A. 44-5lOd and 44-5lOe provide compensation for permanent partial disabilities. K.S.A. 44-510d calculates the award based on a schedule of disabilities. If an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member. K.S.A. 44-510d(a)(21). The compensation for a scheduled disability is based on the schedule alone without regard to the claimant’s loss in earning power. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 771, 830 P.2d 41 (1992). For nonscheduled injuries, the award is calculated under K.S.A. 44-510e. A claimant with a permanent partial general disability pursuant to K.S.A. 44-510e is eligible to receive temporary total disability in addition to the compensation he or she may receive for the permanent partial disability. K.S.A. 44-510c(c); K.S.A. 44-510e.
A scheduled injuiy includes compensation for the complete loss of the scheduled member and the permanent partial loss of the use of the member. K.S.A. 44-510d(a)(21). With scheduled injuries, compensation is based on the schedule rather than on the individual’s loss in earning power. Stephenson, 250 Kan. at 771. The Kansas Workers Compensation Handbook § 10.01, p. 10-1 (4th ed. 1998), states three benefits for finding unscheduled injuries, calculated under K.S.A. 44-510e: (1) longer weeks of compensation; (2) no limitation of award to functional impairment; and (3) typically leads to a larger award.
Tyson argues that we should adopt the decision of the two-member concurring and dissenting opinion and find that Casco, 283 Kan. 508, requires the scheduled and nonscheduled injuries to be compensated individually. In Casco, the claimant suffered a work-related, repetitive-use injuiy to his left shoulder. Because of the injuiy and the restrictions associated with his subsequent surgeiy and treatment, the claimant used his right arm to perform his duties upon his return to work, which included repetitive tying, lifting, and carrying. After several months, the claimant began to experience pain in his right shoulder and was diagnosed with a possible rotator cuff tear in his right shoulder. The Board concluded the claimant suffered a new and separate injury to his right shoulder due to repetitive use and modified the award based on the schedule in K.S.A. 44-510d.
This court reversed and held the Board ignored undisputed medical testimony regarding causation of the claimant’s right shoulder injury. The panel concluded the right shoulder injuiy was a natural and probable consequence of the claimant’s left shoulder injury and further held the award should be based on injuries to parallel limbs. See 283 Kan. at 513 (citing Casco v. Armour Swift-Eckrich, 34 Kan. App. 2d 670, 682-83, 128 P.3d 401 [2005]).
On petition for review, the employer in Casco raised two issues: whether the claimant’s right shoulder injury was the natural and probable consequence of his left shoulder injury and whether the claimant should receive compensation for a scheduled injury. With respect to the first issue, the Casco court relied upon the Board’s factual finding that the claimant was performing repetitive tasks and lifting only with his right arm because of restrictions that limited the use of his left arm. The court determined that even though the Board’s factual findings were supported by substantial competent evidence, the Board placed undue emphasis on the claimant’s expert’s reference to Casco’s work activities rather than his opinion linking the causation of Casco’s right shoulder injury to his left shoulder injury. Thus, the court held the Board had erroneously concluded the claimant’s right shoulder injury was caused by repetitive use. 283 Kan. at 516-18. The Casco court applied the secondary injury rule and found the claimant’s right shoulder injuries and left shoulder injuries constituted a “single injury” for purposes of calculating the claimant’s compensation award. 283 Kan. at 528.
As for the scheduled versus nonscheduled injury issue, the Casco court overruled the parallel injury rule established in Honn v. Elliott, 132 Kan. 454, 295 P. 719 (1931), which permitted a claimant to “receive compensation based on a permanent partial general disability rather than scheduled injuries if the claimant simultaneously injures parallel members.” Casco, 283 Kan. at 523, 527. The court then adopted the analytical model established in Pruter v. Larned State Hospital, 271 Kan. 865, 26 P.3d 666 (2001), to calculate the claimant’s compensation when the claimant suffers a loss of both eyes, both hands, both arms, both feet, both legs, or any combination thereof. Casco, 283 Kan. at 525.
Casco is distinguishable based on its fact pattern of multiple scheduled injuries. The present case involves scheduled and nonscheduled injuries, and we decline Tyson’s invitation to apply Casco to limit Goodell to compensation for scheduled injuries. The Board awarded Goodell 10% permanent partial impairment to the left lower extremity and 3% permanent partial impairment to her lower back complaints for a combined total of 7% to the body as a whole. As we previously stated, these findings are supported by substantial competent evidence, and contrary to Tyson’s arguments, this court will not reweigh such evidence to find otherwise.
K.S.A. 44-510e covers compensation for permanent partial general disabilities and thus covers those not included in the 44-5 lOd schedule. K.S.A. 44-510e(a) reads:
“Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d and amendments thereto. The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.”
In this instance, K.S.A. 44-510d only covers Goodell’s left lower leg injuries. See K.S.A. 44-510d(a)(15). Goodell’s lower back injury would qualify under K.S.A. 44-510e. Our courts have held that if the injury is both to a scheduled member and to a nonscheduled portion of the body, compensation should be awarded under K.S.A. 44-510e. See Bryant v. Excel Corp., 239 Kan. 688, 689, 722 P.2d 579 (1986); Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 548 P.2d 746 (1976). Therefore, the Board did not err in granting Goodell an award for her permanent partial general disability.
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Hill, J.:
This appeal raises the question of how to count the number of days a criminal case is pending when it has been dismissed by the district court, revived by the Court of Appeals, and then remanded to the district court for trial. In this appeal, Darren Blizzard contends he did not receive a speedy trial. Previously, a panel of this court had reversed the district court’s dismissal of Blizzard’s case and remanded the case for trial. See State v. Blizzard, 2005 WL 2001739 (Kan. App.) (unpublished opinion), rev. denied 280 Kan. 985 (2005). After remand, the district court set his trial to begin May 24, 2006, more than 180 days after his arraignment. In Kansas, a defendant held to answer on an appearance bond must be brought to trial within 180 days after arraignment. But because the district court had dismissed this case, it ordered Blizzard released from custody and relieved him of any appearance bond restrictions while the State’s appeal was pending. We hold Blizzard’s speedy trial calculation started again when, on remand, the district court ordered him to post an appearance bond. Therefore, counting the 55 days the case was pending before the district court dismissed it (arraignment to dismissal) and the State appealed, with the 69 days from the time Blizzard posted bond to May 24, 2006, only 124 days elapsed. Thus, his trial was timely set.
Our review of the record forces us to reject Blizzard’s claim that not enough evidence supports the jury verdict. We affirm his conviction.
The procedural history is important here.
The State charged Darren Blizzard with a violation of K.S.A. 65-4161, sale of cocaine within 1,000 feet of a school, felony possession of drug paraphernalia in violation of K.S.A. 65-4152(a)(3); receiving proceeds derived from a violation of the Uniform Controlled Substances Act in violation of K.S.A. 65-4142; arranging the sale of drugs by using a communication device in violation of K.S.A. 65-4141; and obstruction of official duty in violation of K.S.A. 21-3808.
The court arraigned Blizzard on these charges on May 28, 2004. Blizzard moved to dismiss the case based on speedy trial grounds, explaining that he was arraigned on the same charges in a prior case, but the State dismissed that case because the prosecutor could not locate a witness. Blizzard argued that because the speedy trial period started from the date of his arraignment in the prior case, the statutory time limit had elapsed and the court should discharge him.
The district court granted Blizzard’s motion. While doing so, the court acknowledged the State’s intent to appeal this ruling. Thus, the court discharged Blizzard but ordered the parties to present written argument concerning whether Blizzard should remain in custody or be released on bond during the pendency of an appeal. Later, the district court ordered Blizzard’s release from jail. The State appealed the district court’s dismissal, and on December 21, 2005, this court issued a mandate reversing the decision of the district court and ordering reinstatement of all charges against Blizzard.
Eventually, in March 2006, the district court held a status conference concerning the case. Blizzard did not appear. The court noted Blizzard was “not on bond” and had been released from jail. The court determined that it had until June 19, 2006, to conduct a trial, as it had “180 days from the date of the mandate.” Thus, the court suggested an April 5, 2006, or May 24, 2006, trial date. Defense counsel responded that he would no longer be employed with Kansas Legal Services on those dates. Because the court did not know whether Blizzard needed appointed counsel, it scheduled another status conference to allow the parties to locate Blizzard and find out whether he needed appointed counsel.
Blizzard did appear at a status conference on March 17, 2006. Blizzard told the court that he had hired his own attorney. Nevertheless, defense counsel told the court that a Ty Wheeler from Kansas Legal Services could handle the case in May. Noting Blizzard would have the “prime” setting on the May trial date, the court removed the April trial date and set Blizzard’s trial for May 24, 2006. Noting Blizzard was there “without being arrested,” the court ordered Blizzard to sign a promise to appear with a $5,000 personal recognizance bond. Blizzard filed his bond that day.
On May 8, 2006, Blizzard once again moved to dismiss his case based on speedy trial grounds. Blizzard argued that the time accrued for speedy trial purposes from (1) the date he was arraigned to the date the district court dismissed the case, and from (2) the date the State filed its notice of appeal (or alternatively, the date the appellate court’s decision was filed) to the date of the current motion. Blizzard claimed that either 644 days or 307 days had elapsed during this time; therefore, his right to a speedy trial under K.S.A. 22-3402 was violated.
The district court denied Blizzard’s motion, holding that any delay causing the trial date to be scheduled more than 180 days after Blizzard’s arraignment “was caused by the actions of the defendant’s previous counsel, and is binding upon the defendant.”
On July 30, 2007, Blizzard asked the court to reconsider its decision. Blizzard noted the district court denied his motion because it found Blizzard waived his right to a speedy trial by accepting a trial date outside the speedy trial period. Blizzard argued the court should reconsider its position based on State v. Adams, 283 Kan. 365, 369-71, 153 P.3d 512 (2007), where the court held that defense counsel’s acceptance of a trial date is not an acquiescence or waiver of the defendant’s right to a speedy trial. The district court denied Blizzard’s motion for reconsideration without conducting a hearing.
A jury found Blizzard guilty of sale of cocaine within 1,000 feet of a school zone and obstruction of official duty and/or legal process. He now raises the speedy trial issue and claims insufficient evidence on appeal.
Blizzard’s trial setting was timely.
When reviewing whether a right to a speedy trial has been violated, this court has unlimited review. State v. Hayden, 281 Kan. 112, 126-27, 130 P.3d 24 (2006). We will look first at the statute that controls the issue and the cases that have interpreted the law.
Our Kansas law guarantees a criminal defendant’s right to a speedy trial. Under K.S.A. 22-3402(2):
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).” (Emphasis added.)
We hold that the statute specifically applies to defendants held to answer on an appearance bond. This requirement disposes of Blizzard’s claim on this point.
The salient dates are obvious. When Blizzard first appeared before the district court on April 19, 2004, he was in custody and bond was set at $50,000. He was arraigned on May 28, 2004. The journal entry executed at that time indicated that his bond continued. The court later granted Blizzard’s motion to dismiss and ordered his release from jail on July 21, 2004. After reinstatement of the charges and remand of the case, on March 14, 2006, the court noted Blizzard was “not on bond” and had been released from jail. Then on March 17, 2006, the court set Blizzard’s trial for May 24, 2006, and then ordered Blizzard to post a $5,000 “OR bond.”
Based on the procedural history of this case, it is clear that Blizzard was arraigned and held to answer on an appearance bond for 124 days. First, 55 days passed from the date of his arraignment, May 28, 2004, to the date he was released from jail, July 21, 2004. Then, there were 69 days from the date the bond was reimposed, March 17, 2006, to the date set for trial, May 24, 2006. Thus, Blizzard’s trial was set within the 180-day speedy trial period. Blizzard’s statutory right to a speedy trial was not violated.
The district court held Blizzard’s right to a speedy trial was not violated because any delay causing the trial date to be scheduled more than 180 days after Blizzard’s arraignment was caused by the actions of defense counsel. This conclusion was based on the district court’s erroneous conclusion that May 24, 2006, was outside the speedy trial period. Even though the (¿strict court relies upon the wrong grounds and has assigned erroneous reasons for its decision, this court will uphold the decision when the court has reached the right result. See Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999).
We distinguish this case from State v. White, 34 Kan. App. 2d 182, 115 P.3d 785 (2005), cited by Blizzard. The court in White, following the directive in State v. Brown, 263 Kan. 759, 762, 950 P.2d 1365 (1998), held that the receipt of the mandate of the appellate court by the district court started the statutory speedy trial period to run after an interlocutory appeal was taken by the State. The court in White pointed out that according to K.S.A. 2004 Supp. 22-3604(2) the time during which an interlocutory appeal by the prosecution is pending is not counted against the State for speedy trial purposes. The case against White was always pending during the interlocutory appeal. See White, 34 Kan. App. 2d at 183-84.
Blizzard wrongly construes the appeal in this case as interlocutory. To the contrary, this case was dismissed by the district court. When the State appeals the dismissal of a complaint to this court under K.S.A. 22-3602(b)(l), in such instances, K.S.A. 22-3604(1) provides that a defendant shall neither be “held in jail nor subject to an appearance bond during the pendency of any appeal by the prosecution.” Going further, K.S.A. 22-3604(2) states the time during which an appeal by the prosecution is pending shall not count against the State for speedy trial purposes under K.S.A. 22-3402. Obviously the legislature intended to minimize the impact of the delay of a State’s appeal on the defendant by directing the accused not to be held in jail and requiring no appearance bond. There were no restraints on Blizzard’s liberty during the appeal here. He was not only released from custody, but he was also under no obligation to the court for he was released from his appearance bond.
Blizzard’s remaining arguments on appeal of this point are all based upon the belief that the 180 days had passed; therefore, we will not address them and turn to the issue of whether there was sufficient evidence.
We recount more of the facts of this controlled drug purchase.
Blizzard argues that because the “State’s primary witness” testified she may have received the drugs in question from a person other than Blizzard, a rational factfinder could not have found him guilty. Blizzard’s argument primarily confronts his conviction for sale, delivery, or distribution of cocaine within 1,000 feet of a school zone. When dealing with such issues we examine the facts in the light most favorable to the State:
“When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reason able doubt. [Citation omitted.]” State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
Detective Mark Schondelmaier testified that on December 24, 2003, he was told narcotics detectives were setting up a drug transaction/buy and that he was to assist with surveillance. The confidential informant involved in the transaction was named Deha Krueger. Krueger had arranged to purchase crack cocaine from another individual.
Krueger was taken to the Emporia Police Department and searched for narcotics, controlled substances, and U.S. currency. None of these items were found on Krueger’s person. Krueger was fitted with a wireless transmitter so detectives could record any conversation during the transaction. Krueger then given $50 in U.S. currency that was photocopied and recorded by Detective Kevin Risley.
Krueger was placed in an unmarked undercover car with Detective Mark Senn and Schondelmaier. Senn drove to an area where there was a pay phone. Risley testified Krueger could use the phone to call the person she was going to attempt to purchase cocaine from — a person she knew as “Sexy.” Krueger told Risley that “Sexy” may possibly be driving a green sport utility vehicle. Krueger made the phone call. Schondelmaier testified he could not hear the conversation Krueger had on the phone but that Krueger tallred to someone and told the detectives that “Sexy” agreed to meet her at some mailboxes on East Street. Risley testified that he listened to Krueger make the phone call and listened to her conversation.
Senn and Schondelmaier transported Krueger to the area where the mailboxes were located and let her out of the vehicle. Senn and Schondelmaier followed Krueger to malee sure she did not have contact with anyone. Both Senn and Schondelmaier testified Krueger was under continuous surveillance. Risley also drove to the area and parked where he could see the back of the mailboxes.
Krueger walked to the mailboxes and Senn parked about 100 feet away. Schondelmaier testified that within a couple of minutes, another person arrived in the area. Senn described the person as a black female. Schondelmaier testified he was able to see that there was no physical contact between Krueger and the person, that they might have just talked from a distance, and that Krueger kept her hands inside her jacket pockets. Senn agreed that Krueger and the person talked but that there was no physical contact between them. Senn testified Krueger had her hands in her jacket pockets and never removed her hands during this time. Deputy Chief Michael Williams also testified there was no “person-to-person contact” between the two. The person then left.
After a few more minutes, a green Honda Passport arrived and parked east of the mailboxes. Krueger walked to the driver s side of the Passport and leaned in. Schondelmaier testified Krueger conversed and made contact with the driver, possibly placing both arms into the vehicle. Schondelmaier testified he did not see anything exchanged between Krueger and the driver. After a minute or so passed, the Passport continued on and Krueger walked southbound.
Krueger walked to an alleyway where she met Risley and got into his vehicle. Both Senn and Schondelmaier testified Krueger was under continuous surveillance during this time and did not make contact with anyone. Krueger told Risley that the transaction had been completed and that she had purchased crack cocaine. Senn and Schondelmaier then pursued the Passport. At some point, the Passport swerved through a backyard and hit a tree. The driver jumped out of the Passport and began running. An individual identified as Blizzard was finally apprehended and searched.
Schondelmaier testified that he later approached the Passport and looked inside. He observed currency on the floorboard of the vehicle. The currency was secured and photocopied. When Risley later compared the bills found inside the Passport to the previously recorded bills given to Krueger, the serial numbers on all four bills matched.
Risley transported Krueger to the Emporia Police Department. Risley told Krueger to give him what she purchased and Krueger produced three small comers off a plastic bag that contained a white substance. The substance tested positive for cocaine.
At trial, Krueger repeatedly responded to questioning by stating she did not know and had no idea. She stated “no” when asked whether she remembered various details and indicated she was “messed up” at the time of the transaction. Krueger testified that the “girl over by the mailboxes” was a black girl named Mahogany. When asked whether Mahogany gave her anything on the day of the transaction, Krueger stated, “I don’t think so. I don’t know.” When asked whether Mahogany gave her drugs that day, Krueger stated she did not know whether she did or not. Krueger was then asked whether Blizzard gave her anything that day. Kruger stated that “I think we traded” but that she was not sure. Krueger testified that she knew she gave Blizzard some money but did not remember what she got.
The State then reminded Krueger of testimony she gave at her preliminary examination conducted in May 2004. Krueger read testimony from this transcript indicating she told Risley she could purchase crack cocaine from Blizzard. Krueger read testimony indicating she made contact with Blizzard via a pay phone. Krueger read testimony indicating Blizzard gave her “three packages” described as “[r]ocks and pieces in plastic tie.” On cross examination, Krueger agreed it was “possible” she got the drugs from someone else besides Blizzard and did not recall exactly who she got them from. Krueger noted she saw Mahogany and talked to her. Krueger testified she did not remember dropping money in Blizzard’s vehicle. Krueger agreed it was possible she could have gotten drugs from Mahogany.
Here, there was sufficient evidence that Blizzard violated the law by selling cocaine to Krueger. First, Krueger was given $50 in U.S. currency that matched the currency later found in Blizzard’s vehicle. Second, although detectives testified Krueger spoke with another person while at the mailboxes (i.e., Mahogany), each detective testified Krueger and Mahogany made no physical contact, only talked, and that Krueger kept her hands in her jacket pockets. To the contrary, there was testimony that Krueger made contact with Blizzard by leaning into his vehicle and possibly placing both arms inside. Krueger testified at her preliminary examination that Blizzard gave her “three packages” described as “[r]ocks and pieces in plastic tie.” Finally, when detectives pursued Blizzard, he engaged in both a vehicle and foot chase with them.
A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Scaife, 286 Kan. 614, 618-19, 186 P.3d 755 (2008). Here, there was sufficient circumstantial evidence that Blizzard sold, delivered, or distributed cocaine to Krueger. Only some portions of Krueger’s wavering testimony suggest otherwise.
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Larson, J.:
This appeal involves the complexity that arises between the state courts of Pennsylvania and Kansas in dealing with a Pennsylvania judgment registered in Kansas under the Full Faith and Credit Clause of the United States Constitution, U.S. Const, art. IV, § 1, and utilizing the Uniform Enforcement of Foreign Judgment Act (KUEFJA), enacted in Kansas at K.S.A. 60-3001 et seq.
Mark Hankin utilized the KUEFJA to register a judgment in Johnson County District Court that he obtained against Graphic Technology, Inc. (GTI), in the Montgomery County, Pennsylvania, Court of Common Pleas in the amount of $184,433.88, plus interest and costs.
The Pennsylvania judgment was based on a “cognovit clause” in a real estate lease, a contractual provision by which a debtor agrees to the jurisdiction of certain courts, waives notice requirements, and authorizes the entry of an adverse judgment in the event of a default or breach.
Several weeks after registering the judgment in Kansas, Hankin garnished U.S. Bank which filed an answer admitting it had possession of funds belonging to GTI in the amount of the judgment. GTI opposed the Kansas garnishment, and at an earlier time in Pennsylvania, sought to strike or open the Pennsylvania judgment. The Kansas district court initially gave full faith and credit to the Pennsylvania judgment, stayed the Kansas action pending further proceedings in Pennsylvania, and ordered the garnished funds to be held in trust by the Clerk of the Johnson County District Court.
Some 6 months later, the Pennsylvania court “opened” the Pennsylvania judgment. Subsequently, based on GTI’s motion in Kansas, the Johnson County District Court issued orders which appear to have applied Kansas law to the Pennsylvania judgment, vacated its registration in Kansas, and ordered the garnished funds to be released to GTI. After Plantón moved to reconsider, the district court modified its order requiring the funds to be held for 1 year pending appeal and required Hanldn to post a cash bond of $60,000. The Johnson County District Court also refused to grant Hankin any relief under an appealed and stayed Pennsylvania order issued at the same time the Kansas motions were being considered.
Hanldn now appeals the Johnson County District Court orders.
FACTUAL AND PROCEDURAL BACKGROUND
With events taking place in both Pennsylvania and Kansas, a time line will be utilized to summarize the facts and actions taken in the various legal proceedings.
In 1998, Hankin leased commercial real estate to GTI in the City of Hatboro, Pennsylvania. GTI is a Missouri corporation that conducted business at 301 Gardner Drive, New Century, Kansas.
November 2004 — Vestcom New Century LLC (Vestcom) purchased the assets of GTI. Hankin as lessor, GTI as lessee/assignor, and Vestcom as assignee, entered into an assignment and assumption agreement of the real estate lease. The agreement contained a cognovits clause, and GTI remained legally responsible for performance under the lease.
April 2006 — Vestcom notified Hankin it was vacating the property and prematurely terminating the lease as of October 31,2006. On July 19, 2006, GTI ceased doing business in Pennsylvania.
December 13, 2006 — Hankin filed a complaint on confession of judgment against GTI in Montgomery County, Pennsylvania, Court of Common Pleas with an affidavit of default and notice to be mailed to GTI. Two days later on December 15,2006, judgment was granted to Hankin against GTI by confession for damages of $184,433.88, plus interest.
January 22, 2007 — GTI filed a petition to strike or open the confessed judgment in the Pennsylvania court. On February 12, 2007, Hankin filed a response.
May 25, 2007 — An affidavit with attached Pennsylvania judgment was filed in Johnson County District Court. On June 6,2007, Johnson County Clerk sent notice to GTI of registration, with notice being sent to the business address which was the last recorded address at the Pennsylvania Secretary of State. On June 7, 2007, the Pennsylvania judgment was registered in Kansas as a judgment.
June 26, 2007 — Hankin issued a request for garnishment to U.S. Bank in Overland Park, Kansas, for any funds held by the bank for GTI up to $184,443.88. The order of garnishment was served on June 27, 2007. The same day, U.S. Bank signed an answer of garnishee admitting it held $184,433.88 of GTI funds. The answer was filed July 2, 2007.
July 5, 2007 — The Pennsylvania court granted GTI’s petition to stay execution of any pending or future executions on the confessed judgment pending further order of the court.
July 10, 2007, a hearing was held in Johnson County District Court on GTI’s challenge to registration of the Pennsylvania judgment. The court ruled: (1) The court will enforce judgment from Pennsylvania; (2) the stay of execution will not be lifted until further order of the court; and (3) the money garnished is to be paid in to the clerk’s office. The next hearing was August 17, 2007.
July 19, 2007 — GTI filed a memorandum of law in support of the defendant’s petition to strike or in the alternative, to open the confessed judgment in the Pennsylvania court. This document was attached as Exhibit C to an August 17, 2007, motion GTI filed in Johnson County District Court.
July 27, 2007 — The journal entry on the July 10, 2007, hearing was filed. The court denied the request to vacate the foreign judgment finding it was properly registered as a foreign judgment and is entitled to full faith and credit. The court noted the Pennsylvania order dated July 5,2007, staying all execution proceedings pending further order of the court. The court, pursuant to K.S.A. 60-3004(a) stayed the execution of the Kansas judgment pending further order of the court. The court ordered U.S. Bank, as garnishee, to immediately pay the proceeds of $184,443.88 to the Office of the Johnson County District Court Clerk where it was to be held in trust.
August 17, 2007, a status conference hearing was held. GTI filed a motion in Johnson County District Court requesting immediate release of the funds, discharge of the garnishment, and vacation of the foreign judgment. GTI’s motion was denied at this time. On November 5, 2007, the Kansas court ordered the stay to be continued pending resolution of the appeal in Pennsylvania.
January 8, 2008 — The Pennsylvania trial court ordered that GTTs motion to strike, or in the alternative, to open the confessed judgment was granted, holding: “The confessed judgment is opened.”
March 26, 2008 — GTI filed a second motion to strike and vacate the foreign judgment and for release of the garnished funds citing the January 8, 2008, Pennsylvania order to open the confessed judgment, contending this effectively nullified the Pennsylvania judgment and arguing it was no longer entided to full faith and credit in Kansas. On April 7,2008, Hankin responded and opposed GTI’s Kansas motion to strike, pointing out the difference under Pennsylvania law between opening a confessed Pennsylvania judgment and striking a Pennsylvania judgment. A hearing was held on GTPs motion to strike and vacate the judgment on April 25, 2008. The court’s ruling was set forth in a journal entry.
April 30, 2008 — The Montgomery County, Pennsylvania, Court of Common Pleas issued an order directing GTI to take all necessary action to get the Johnson County District Court to transfer $184,443.88 to the Pennsylvania court and if it failed to comply with the order, a final judgment was to be entered against GTI. On May 2, 2008, GTI filed a notice of appeal in Pennsylvania from this decision.
May 2, 2008 — A hearing was held to setde the journal entry on the Kansas April 25, 2008, hearing. The Johnson County District Court was presented with a copy of the Pennsylvania court order dated April 30, 2008, directing GTI to take the necessary steps to transfer the funds held in Kansas to Pennsylvania.
May 5, 2008 — The Pennsylvania Superior Court (its intermediate appellate court) issued an immediate and then indefinite stay of the lower court’s April 30, 2008, order.
May 6, 2008 — Hankin filed a motion requesting the court reconsideras order to release and pay out funds. GTI responded on May 7, 2008.
May 7, 2008 — The motion to reconsider was argued. The court approved the journal entry from the April 25, 2008, hearing on GTI’s motion to strike. The journal entry on the court’s April 25, 2008, hearing, stated that based on the Pennsylvania January 8, 2008, order opening the judgment there is no longer a Pennsylvania judgment which is entitled to full faith and credit in Kansas. The court further found that the Pennsylvania statutory provision (Pa. Cons. Stat. Ann. tit. 42 § 2959[f] [Purdon 2002]) which permitted a lien of attachment or any execution issued on it by a judgment creditor to be maintained after a judgment had been opened, constituted a prejudgment attachment not in compliance with K.S.A. 60-701 et seq. The journal entry of judgment further specifically stated:
“6. Allowing Pennsylvania to open a confessed judgment, and allowing that opened confessed judgment to be registered as a foreign judgment in the State of Kansas is, in effect, giving the Pennsylvania hen a super judgment status that is not recognized in Kansas.
“7. Pursuant to K.S.A. § 60-260(b)(5), the Court finds that the prior confessed judgment which formed the basis for being registered in the State of Kansas is no longer a valid foreign judgment.
“8. Pursuant to K.S.A. § 60-260(b)(6), given the current status of the prior confessed judgment, it is not appropriate for the Johnson County District Court to hold the funds when the PA Action is proceeding de novo. As such, it is no longer equitable to allow the foreign judgment to stand and it is immediately stricken and vacated.
“9. Therefore, the foreign judgment in this case shall be immediately stricken and vacated.”
The garnished funds held by the Kansas court were ordered released to GTI.
The May 2, 2008, journal entry was supplemented, modified, altered, and amended as the result of Hanldn’s motion to reconsider to provide that an appeal by either party operates as a stay and the garnished funds were to continue to be held until noon on May 8, 2009. Further, Hanldn was ordered to pay a cash bond of $60,000 to the Clerk of the Johnson County District Court as security for any losses GTI might suffer from loss of use of the garnished funds. On May 9, 2008, Hanldn deposited $60,000 surety with the Kansas district court. On June 4, 2008, the journal entry modifying the May 2, 2008, order was filed. .
On July 1, 2008, Hankin appealed.
The record reflected a hearing held May 1, 2009, wherein the Kansas stay as to the release of funds was continued pending final resolution of the pending appeal.
No proper action has been taken to supplement the record, and the filing of August 24, 2009, plus the filings made just prior to oral argument are deemed to be improper under Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47).
ARGUMENTS AND ANALYSIS
Did the district court err in vacating the registration of the Pennsylvania judgment because a Pennsylvania court “opened” the confessed judgment?
The primary issue in this appeal is whether the Johnson County District Court correctly vacated the Pennsylvania judgment. The court had recognized the judgment in July 2007 as being entitled to full faith and credit in Kansas under the KUEFJA, but, subsequently, in May 2008, after the judgment was “opened” by a Pennsylvania court, found it not to be entitled to Kansas recognition. The garnishment issued thereon was found to be improper as a 'prejudgment attachment under Kansas law.
GTI’s assertion of substantial competent evidence to support the district court’s ultimate conclusion is not the basis for our standard of review. The resolution of our issue involves the question of whether a Pennsylvania judgment is entitled to full faith and credit by a Kansas court, and it is a legal issue entitled to unlimited review. Brenner v. Oppenheimer & Co., 273 Kan. 525, Syl. ¶ 3, 44 P.3d 364 (2002). Further, the points raised require interpretation of the KUEFJA and Pennsylvania statutes which are also questions of law subject to unlimited or de novo review by an appellate court. Hale v. Hale, 33 Kan. App. 2d 769, 770, 108 P.3d 1012 (2005). Finally, we have questions as to which state law applies and whether the state law has been properly interpreted which are questions of law subject to our unlimited review. Resolution Trust Corp. v. Atchity, 259 Kan. 584, Syl. ¶ 2, 913 P.2d 162 (1996).
While there are procedural reasons to require the garnished funds to be held by the Johnson County District Court until a final Pennsylvania judgment is reached, i.e., one not subject to any further appeal, the premise to our reversal of the district court is based on decisions such as Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, Syl. ¶ 3, 661 P.2d 1242 (1983), which holds: “In an action on a foreign judgment, its nature, validity, and finality are to be tested by the law of the jurisdiction where the judgment was rendered.”
This same rule was similarly stated in Tanner v. Hancock, 5 Kan. App. 2d 558, 561, 619 P.2d 1177 (1980), where the application of the KUEJA to the full faith and credit obligation was stated as follows:
" ‘[A] properly authenticated judgment rendered by a court of one state is, under the full faith and credit clause of the United States Constitution, Article 4, Section 1, entitled in the courts of another state to the force, the effect, and the full faith and credit it has by law in the state where the judgment was rendered.’ ”
It is therefore necessary that we look to the laws of Pennsylvania to determine whether the judgment in question must continue to be recognized and given effect in Kansas while GTI attempts to “open” it in Pennsylvania.
GTI admits in its brief that Pennsylvania recognizes “confessed judgments” but ignores the legal distinction between “opened” and “stricken” judgments in concluding the opened judgment may retain its Hen but is only entitled to prejudgment attachment status under Kansas law requiring the garnishment to be released. We do not agree with this conclusion and look to Pennsylvania law to justify our decision.
While the procedure of allowing judgments by confession is not recognized in Kansas and most other states, it is a well-established procedure in Pennsylvania and also Alaska, Arizona, the District of Columbia, Ohio, and New York. See Pa. Cons. Stat. Ann. tit. 42 §§ 2950-2967 (Purdon 2002) (Confession of Judgment for Money). As stated in Swarb v. Lennox, 405 U.S. 191, 193, 31 L. Ed. 2d 138, 92 S. Ct. 767 (1972), “The cognovit system is firmly entrenched in Pennsylvania and has long been in effect there.”
Moreover, the United States Supreme Court has held that cognovit clauses are constitutional if the waivers of notice and a hearing are voluntarily, intelligently, and knowingly made. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 187, 31 L. Ed. 2d 124, 92 S. Ct. 775 (1972) (reviewing cognovit clauses under Ohio law). Swarb v. Lennox was decided along with Overmyer as a civil rights action filed by Pennsylvania citizens challenging Pennsylvania’s confession of judgment procedures.
A Pennsylvania judgment rendered by confession is entitled to the same full faith and credit as any other judgment. Delahanty v. First Pennsylvania Bk., N.A., 318 Pa. Super. 90, 139-40, 464 A.2d 1243 (1983); Schlossberg v. Citizens Bank, 341 Md. 650, 655, 672 A.2d 625 (1996). Although a judgment by confession is subject to being, vacated, opened, or modified, it is essentially a final judgment entitled to recognition the same as other judgments. Boyce v. Plitt, 274 Md. 333, 335 A.2d 101 (1975).
Pennsylvania has consistently noted that a meaningful difference exists between a confessed judgment which is opened and a confessed judgment which is stricken. Under longstanding Pennsylvania law, an opened confession of judgment remains a judgment until it is tried on its merits. Adams v. James L. Leeds Co., 189 Pa. 544, 547, 42 A. 195 (1899) (holding the lower court properly opened the confessed judgment but erred in setting aside the executions and the attachments, stated: “[Plaintiff] is fairly entitled to this security pending the proceedings upon the opened judgment, unless security equivalent to it and approved by the court is substituted for it.”); Markofski et ux. v. Yanks, 297 Pa. 74, 78, 146 A. 569 (1929) (“the court may undoubtedly authorize an execution to issue on an opened judgment”); Rochester Mach. Corp. v. Mulach Steel Corp., 287 Pa. Super. 270, 286-87, 430 A.2d 280 (1981) (“the judgment does remain effective even after it has been opened unless it is struck by order of the court”), rev’d on other grounds 498 Pa. 545, 449 A.2d 1366 (1982); Continental Bank v. Frank, 343 Pa. Super. 477, 485-86, 495 A.2d 565 (1985) (entry of a discovery order because a petition to open was viewed as meritorious has no impact on execution on the judgment).
Macioce v. Glinatsis, 361 Pa. Super. 222, 225-27, 552 A.2d 94 (1987), is based in part on the specific language of Pa. Cons. Stat. Ann. tit. 42 § 2959(f) (Purdon 2000) which provides that “[t]he hen of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending” but ¿so contains cites to additional Pennsylvania cases with the same holdings. The Macioce opinion stated:
“However, the mere filing of a petition to open or strike a judgment does not affect the hen of the judgment or of any execution, subject, of course, to the power of the court to stay execution pending decision on that petition. Subdivision (f) has been added to Rule 2959 to restate this principle.” 361 Pa. Super. at 226.
A similar discussion is found in Hagel v. United Lawn Mower Sales & Serv., 439 Pa. Super. 35, 40, 653 A.2d 17 (1995), where it was held that it was improper for a trial court to have released attached funds seized based on a confessed judgment when the judgment is opened. The Hagel opinion headnote (6) stated: “Any release of specific property from levy must be premised upon filing of bond or security approved by court in amount based upon lesser of either value of property or amount of judgment, interest, and probable costs. Rules Civ. Proc., Rule 3119(1), 42 Pa. C.S.A.”
The present status of Pennsylvania law is clear, and under our decision in Johnson Brothers, 233 Kan. 405, Syl. ¶ 3, which we have previously set forth, the district court failed to follow and apply the Pennsylvania procedural rules and court decisions and must be reversed on this issue.
What we have said above effectively decides this issue, but we will comment briefly on other arguments of the parties.
GTI initially attacked the registration and the Pennsylvania judgment in 2007, and it did raise the type of issues that can be raised in the registering court to challenge a facially valid sister state judgment. The registering court cannot reconsider the merits of the case, but may only inquire into the defenses of lack of subject matter or personal jurisdiction, or fraud in the procurement of the judgment, unless those issues were addressed by the rendering court. See Grynberg v. Shaffer, 216 Ariz. 256, 260, 165 P.2d 234 (2007); Firstar Bank Milwaukee, NA v. Cole, 287 Ill. App. 3d 381, 383, 678 N.E.2d 668 (1997); Crist v. Hunan Palace, Inc., 277 Kan. 706, 718, 89 P.3d 573 (2004).
GTI challenged the Pennsylvania court’s personal jurisdiction over it in the court below. The challenge was based on the fact GTI was no longer doing business in Pennsylvania at the time the confession of judgment was filed. GTI, however, does not dispute that it was doing business in Pennsylvania in November 2004, including leasing property, and when it signed the assignment and assumption agreement with Hankin which contained die cognovit clause. Clearly, entering into a contract with a Pennsylvania resident to lease Pennsylvania property, or transferring the lease to a third party while guaranteeing the tiiird party’s performance, is sufficient action to avail oneself of the benefits of Pennsylvania law to satisfy both Pennsylvania’s long-arm statute and satisfy due process concerns in a suit arising from that contract. See Kubik v. Letteri, 532 Pa. 10, 20, 614 A.2d 1110 (1992) (nonresident individual who entered into contract for sale of residential property had sufficient minimum contacts with Pennsylvania to be sued in that state under due process standards).
The district court erred in ruling that the ongoing proceedings in Pennsylvania can justify vacating the validly registered Kansas judgment. However, the KUEFJA does provide that a judgment filed under the KUEFJA “is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state . . . .” K.S.A. 60-3002. Our Supreme Court has implicitly indicated that relief maybe sought under K.S.A. 60-260(b) from a registered judgment. See Resolution Trust Corp. v. Atchity, 259 Kan. 584, 913 P.2d 162 (1996) (district court improperly set aside Illinois judgment based on Missouri foreclosure proceeding; any motion for relief for inequity under 60-260[b][5] had to be based on Missouri law as to whether foreclosure resulted in a fair price for the properly).
The decision by the district court vacating the registration in our case was based on K.S.A. 60-260(b)(5) (the judgment has been satisfied, released, or discharged or a prior judgment was vacated or reversed) and K.S.A. 60-260(b)(6) (any other reason justifying relief). However, the Johnson County District Court erred in granting relief under either section. The ruling was based on an erroneous understanding of the effect of opening a confessed judgment under Pennsylvania law. The district court here made the same error as the trial court in Atchity; it used Kansas law as the measuring stick to determine the status of the judgment rather than Pennsylvania law. Atchity, 259 Kan. at 593. Although the opening of the judgment permits the parties to litigate the merits of the case, the judgment remains in effect until a verdict is rendered and any appeal is exhausted.
It is not an issue in our appeal, but we note that while the Kansas Supreme Court in Atchity did refer to K.S.A. 60-260 in dealing with foreign judgments, other jurisdictions have held the use of statutes similar to 60-260 to be unconstitutional under the Full Faith and Credit Clause because it impermissibly permits modification of foreign judgments. See Grynberg v. Shaffer, 216 Ariz. 256, 258-59, 165 P.3d 234 (2007); United Bank of Skyline v. Fales, 395 N.W.2d 131, 133 (Minn. App. 1986); Data Management Sys tems, Inc. v. EDP Corp., 709 P.2d 377, 381 (Utah 1985) (K.S.A. 60-3007 specifically directs that the KUEFJA be interpreted and construed to effectuate its general purpose to make it uniform with the other states which enact it).
Significantly in this case, the Kansas court has not received any judgment vacating, reversing, or striking the initially recognized judgment. The Pennsylvania order opening the judgment is an interlocutory, nonappealable order under Pennsylvania law. See Joseph Palermo Dev. v. Bowers, 388 Pa. Super. 49, 52, 564 A.2d 996 (1989) (an order opening a confessed judgment is interlocutory and nonappealable). As an interlocutory order, it has no res judicata effect, does not vacate or reverse the prior judgment, and is not entitled to full faith and credit. This is another reason the Johnson County District Court acted incorrectly in giving the Pennsylvania court order of January 8,2008, opening the Pennsylvania judgment credit which it was not due and significance well beyond what it was entitled to under Pennsylvania law.
The Johnson County District Court also expressed concern that permitting the Kansas garnishment to stand on the Pennsylvania opened judgment of confession was contrary to Kansas prejudgment procedures and contrary to Kansas law. However, there is no “public policy” exception to the Full Faith and Credit Clause as it applies to judgments. Baker v. General Motors Corp., 522 U.S. 222, 230, 139 L. Ed. 2d 580, 118 S. Ct. 657 (1998). A judgment of a sister state is entitled to full faith and credit even where the procedure of the forum state differs from the sister state. 30 Am. Jur. 2d, Executions and Enforcement of Judgments § 721 (2005). While the various states may use public policy to determine which statutory or common law to apply, i.e., Brenner v. Oppenheimer & Co., 273 Kan. at 540, the Full Faith and Credit Clause requires each state to recognize judgments even if those judgments are hostile to the state’s policies. Baker, 522 U.S. at 233-34.
A foreign judgment may be registered in Kansas and need not be a final judgment in order to be given full faith and credit. In In re Estate of Rains, 249 Kan. 178, 185, 815 P.2d 61 (1991), the district court held that a demand filed against an estate by the FDIC was ineffective because the FDIC had failed to follow K.S.A. 59-2238(3) by not filing a copy of the final federal judgment within 30 days of its entiy. 249 Kan. at 179-80.
Our Kansas Supreme Court, in an opinion by then Justice, later Chief Justice, McFarland reversed, and in an instructive opinion, examined in detail the different applications of the concept of a “final judgment” as used in several Kansas statutes, including the KUEFJA. The Rains opinion quoted the following KUEFJA language:
“If the judgment debtor shows the district court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.” (Emphasis added.) K.S.A. 60-3004(a).
The opinion further states: “K.S.A. 60-3004(a) does not require that the foreign judgment be á ‘final judgment’ but stays enforcement until, in effect, it becomes final.” Rains, 249 Kan. at 184-85. The same standards and rule must be applied to the opened Pennsylvania judgment in our case.
It was not raised as an issue in our appeal nor was it briefed by the parties, and it is not in any way the basis for the result we reach in this appeal. But, there may also be a valid argument that could be made that when the Johnson County District Court order dated July 27, 2007, recognizing and giving effect to the Pennsylvania judgment and Kansas garnishment was not timely appealed or cross-appealed by GTI, it became final and binding. See Cooke v. Gillespie, 285 Kan. 748, 755-58, 176 P.3d 144 (2008); see also Oliver, Education of Attorneys on Appeal and/or Cross-Appeal, 78 J.K.B.A. 20, 20-26 (Mar. 2009). Because GTI was constantly attacking the garnishment with ultimate success below and the several stays that had been issued, we do not choose to consider this possible issue as being dispositive.
While the underlying facts are completely distinguishable, after argument and while this opinion was being prepared, our Supreme Court handed down Padron v. Lopez, 289 Kan. 1089, 220 P.3d 345 (2009). The central ruling was that an ex parte temporary injunc tion from Florida is not subject to enforcement under the KUEFJA. However, the language we have previously set forth herein from K.S.A. 60-3004(a) was utilized with approval in Syl. ¶ 6 and it was additionally stated:
“Further, the party seeking to prevent enforcement of the foreign judgment has the burden of establishing either the lack of jurisdiction or fraud underlying the foreign judgment. Brockman Equipment Leasing, Inc. v. Zollar, 3 Kan. App. 2d 477, 482, 596 P.2d 827 (1979) (‘ “The burden of undermining the verity which [foreign] decrees import rests heavily upon the assailant.” Williams v. North Carolina, 325 U.S. 226, 233-34, 89 L. Ed. 1577, 65 S. Ct. 1092 [1945].’)” Padron, 289 Kan. at 1099.
We are confident that the result we reach is consistent with Padrón.
We have considered all of GTFs arguments and find and hold that none justify the relief GTI requested in its 2008 motions and which were granted by the district court. We rule in favor of Hankin for all of the reasons set forth in this opinion on its first issue on appeal, reverse the district court’s rulings thereon, and return this matter to the district court with instructions as set forth in our concluding summary.
Hankin raises three additional issues on appeal: (1) Did the district court err by failing to give full faith and credit to the April 30, 2008, order in the Pennsylvania action? (2) Did the district court err by failing to stay the Kansas action until conclusion of GTFs appeal of the April 30 order? and (3) Did the district court err by not requiring GTI to post a bond as required by Pennsylvania law as a condition of imposing a stay of proceedings until the conclusion of GTFs appeal of the April 30, 2008, order?
Each of Hankin’s arguments is based on an appealed and stayed order dated April 30, 2008, from the Pennsylvania Court of Common Pleas which granted the following relief to Hankin:
“(A) With respect to the garnished funds in the amount of $184,443.88, presently being held by the Johnson County (Kansas) District Court Clerk in the matter of Hankin v. Graphic Technology, Inc. (Case no. 07-CV-4206, Division No. 14 K.S.A. Chapter 60), on or before May 5, 2008, the Defendant is directed to instruct or take such other action as may be necessary for the Johnson County (Kansas) District Court to transfer and/or commence transfer of die $184,443.88, to the Prothonotary of the Court of Common Pleas for Montgomery County, Pennsylvania, where said funds are to be held until such time as this Court directs;
“(B) If the Defendant fails to fully comply with this Order on or before May 5, 2008, final judgment shall be entered in favor of the Plaintiff and against the Defendant for the sum of $184,443.88, automatically and without further Order, with this Order acting as a Final Order and Judgment disposing of all matters pending before the Court, and the $184,443.88 may be paid direcdy to Plaintiff on account of the Judgment, and
“(C) A ruling on the issue of contempt and counsel fees is deferred pending compliance with this Order.”
The record presented to us shows the April 30, 2008, order was appealed by GTI the day it was entered and was stayed by the Superior Court of Pennsylvania on May 5, 2008.
Hankin appears to argue that the “trigger” language of the April 30, 2008, order (final judgment to GTI if it does not cause the funds held by the Kansas court to be transferred to Pennsylvania) constitutes a judgment against GTI which is entitled to full faith and credit in Kansas. We do not agree.
Again, whether a judgment is entitled to full faith and credit is a question of law which is subject to unlimited review. Brenner v. Oppenheimer & Co., 273 Kan. 525, Syl. ¶ 3.
We will not grant any relief to Hankin based on the April 30, 2008, Pennsylvania judgment for several reasons.
In our view, once the Pennsylvania Court ruled on January 8, 2008, that the $184,433.88 judgment should be “opened,” the Pennsylvania Court became obligated to try on the merits the issues raised by GTI and Hankin’s defenses thereto and determine as expeditiously as possible the relief, if any, that GTI was entitled to receive.
While the opened judgment was being litigated to finality in Pennsylvania, the Johnson County District Court in Kansas was obligated to hold the garnished funds pending the outcome of the Pennsylvania litigation. Kansas should not release the funds to either Hankin or GTI nor should the Johnson County District Court have taken any action as the result of the January 8, 2008, Pennsylvania ruling.
Unfortunately and possibly understandably, neither GTI nor Hankin, nor the Kansas and Pennsylvania courts took the correct and proper action.
GTI renewed its attack on the previous rulings in Kansas, armed with a new argument that the Pennsylvania judgment had been sufficiently changed so that it was no longer entitled to full faith and credit in Kansas. As we have earlier held in this opinion, GTI’s motion should have been denied and the status quo should have been maintained. This would have forced GTI and Hankin to litigate their Pennsylvania issues to finality.
Unfortunately, when it became apparent at the April 25, 2008, hearing in Kansas that the Johnson County District Court was going to grant GTI relief, Hankin counter attacked in Pennsylvania. Hankin apparently convinced the Pennsylvania trial court that Kansas courts were not to be trusted and the money in issue would only be safe if it was under the direct control of the Pennsylvania court.
The April 30, 2008, order was the result of Hanldn’s actions. Under this order, GTI had the Hobson s choice of either consenting for the money to be transferred to Pennsylvania or suffering finality to the judgment against it and possibly be held in contempt and suffer attorney fees as well.
This April 30, 2008, order is not entitled to full faith and credit in Kansas in the first instance because while it attempts to effect a judgment which we have registered under the KUEFJA, the order is on appeal and its effect has been stayed by a Pennsylvania appellate court. We recognize that stay as the valid action of a sister state and will take no action while it is in effect.
A second reason for our refusal to give effect to the April 30, 2008, order is that while it may have said it was a “final order and judgment disposing of all matters pending before the court,” it shows on its face that it is not a final judgment, additional matters were left undecided, and it attempted to obtain funds from a Kansas court over which it has no jurisdiction.
In addition to other reasons given, there is still in effect in Pennsylvania a valid agreed stay order issued on July 5, 2007, which provided “all execution proceedings, including pending and future execution on the Confessed Judgment entered herein, are hereby stayed pending further Order of Court.” This order has been recognized in Kansas and should have been a factor considered by the Johnson County District Court when it issued its erroneous rulings in April and May 2008, which we have in this decision reversed.
This April 30, 2008, order does not involve a separate “judgment” which would require that the procedure under the KUEFJA be followed. Nor would it have aided Hanldn to file a separate action as is allowed by K.S.A. 60-3006. See Johnson Brothers, 233 Kan. at 407. But, presenting the order to the Johnson County District Court while Kansas motions were being presented and decided does not entitle Hankin to any relief under the KUEFJA and specifically did not entitle him to additional relief under K.S.A. 60-3004(a) or require GTI to post a bond under Pennsylvania law.
Finally, Hankin’s counsel, through a purported letter of supplemental authority dated August 20, 2009, attempted to advise the court that the Pennsylvania Court has recendy issued an order concerning the April 30, 2008, order. Supreme Court Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47). The rule cannot be used to raise new issues or present new factual information. See State v. Houston, 289 Kan. 252, Syl. ¶ 13, 213 P.3d 728 (2009). Instead, the appropriate procedure would be to file a motion to add to the record on appeal under Supreme Court Rule 3.01 (2009 Kan. Ct. R. Annot. 22) which would give GTI an opportunity to respond to the motion.
It was announced to the parties at oral argument that the court would not consider any documents which were not properly a part of the record on appeal. It is clear to us that no relief is presently available to Hankin in Kansas based on the April 30, 2008, Pennsylvania order. The three requests by Hankin based thereon were correctly denied by the trial court, and its ruling thereon must be affirmed.
In summary, under the facts properly in the record, GTI has attempted to litigate the merits postjudgment from the lawful registration in Kansas of the Pennsylvania judgment and the proper garnishment thereon. As soon as GTI obtained a stay in Pennsylvania (after the Kansas garnishment was complete), the Johnson County District Court originally correctly stayed enforcement here as is required by K.S.A. 60-3004.
Since the Kansas garnishment had been completed before the Pennsylvania stay was obtained, the Johnson County District Court properly ordered the garnished funds to be held with the clerk of the court. As far as the record discloses, the Pennsylvania order originally staying executions is still pending. Therefore, the Johnson County District Court is obligated to stay all proceedings until the Pennsylvania stay of execution expires or is vacated, the Pennsylvania judgment becomes final, and the record thereof is properly presented in Kansas.
The judgments and orders of the Johnson County District Court arising out of the court’s April 25, 2008, hearing relating to GTI’s motion to strike and vacate foreign judgment and immediately release funds to defendant; the May 2, 2008, hearing on the motion to settle journal entry which was signed by the court on May 2, 2008; the court’s order and journal entry dated June 4,2008, arising out of the May 7, 2008, hearing on Hankin’s motion to reconsider journal entry and order to release and pay out funds held by the clerk or, alternatively, to modify or alter judgment on May 7,2008; and the court’s June 2,2008, hearing on the motion to settle journal entiy are all reversed. As the result of this reversal, we order immediate release of the $60,000 bond the Johnson County District Court incorrectly required Hankin to post as a condition of appeal.
The district court’s rulings denying Hankin any relief under the April 30, 2008, Pennsylvania order is affirmed.
We are confident that once the Pennsylvania court is informed of our decision and realizes the gárnished funds will be securely held it will proceed to resolve all issues relating to the opened Pennsylvania judgment to finality and properly present such final judgment to die Johnson County District Court.
Affirmed in part, reversed in part, and remanded with instructions for the Johnson County District Court to hold all of the garnished funds until properly presented with a final judgment from the Pennsylvania court having jurisdiction over the parties. When a final judgment is properly presented, the Johnson County District Court shall order and cause the garnished funds to be distributed as such final judgment provides. | [
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Bukaty, J.:
Joseph A. Gordon, a/k/a Joseph A. Speer, the minor son of Cynthia Speer, lost his life in a tragic vehicle accident while riding on a school bus. The accident was solely caused by the negligence of the school bus driver who at the time of the accident was an employee of a school district. Several other children also suffered injuries giving rise to multiple claims against the school district and the bus driver. The Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA), limited the liability of the district and its driver to a total of $500,000 for all claims arising from the accident. The total claims far exceeded that amount. A judgment in another lawsuit, not a part of this appeal, determined how much each claimant would receive from the $500,000 available from the school district and its insurance company. Speer received a judgment in that case against the school district and its driver for her son’s death in the amount of $84,500, which has been paid. Her total damages exceeded that amount. Apparently, the damages sustained by the other injured parties also exceeded the judgments awarded.
Speer and her husband, Chad Speer, had purchased a standard policy of automobile insurance on their personal vehicle from Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau). That policy provided them statutorily mandated coverage for damages caused by an underinsured motorist. Speer filed suit in the district court against Farm Bureau to recover the portion of her damages arising from the accidental death of her son that exceeded the $84,500 she received from the funds available from the school district and its insurer. The district court found in her favor and awarded judgment to her in the amount of $85,229.06.
Farm Bureau appeals, arguing that Speer’s auto policy only provides underinsured benefits for damages she is legally entitled to recover from the tortfeasors (the school bus driver and the school district) and Speer already received that amount when her judgment against the district and its driver was satisfied. We conclude that the judgment was capped by the KTCA and that cap does not limit the amount of damages an insured may recover from his or her own policy under the underinsured motorist provisions of the insured’s policy. We affirm.
On October 15, 2003, a school bus owned by the school district, U.S.D. No. 482, and driven by Allen Thornburg was in an accident with a semi-tractor trailer that resulted in the death of 6-year-old Joseph. Several other children were injured in the accident. The families of the injured and deceased incurred approximately $420,000 in medical and funeral expenses. Future medical expenses were estimated to be approximately $100,000. These amounts apparently did not include any noneconomic damages.
U.S.D. No. 482 had in place a motor vehicle liability insurance policy issued by State Farm Mutual Automobile Insurance Company (State Farm) that covered the school bus and any U.S.D. No. 482 employee driving the bus. The policy contained liability limits of $100,000 per person and $300,000 per accident.
At the time of the accident, Speer and her husband were covered by a motor vehicle liability insurance policy they had purchased on their personal automobile from Farm Bureau, which included a combined single liability and an underinsured motorist coverage limit of $500,000.
Several months after the accident, State Farm filed an inter-pleader action in the district court seeking to pay into the court the amount of its coverage that was to then be apportioned to the claimants who had incurred damages in the accident. The petition included as defendants Joseph, through his mother and natural guardian, Speer, and the other children injured, by and through their parents. Those defendants then, as third-party plaintiffs, filed third-party petitions against U.S.D. No. 482, Thornburg, and Moden Farms, Inc., the owner of the semi-tractor trailer involved in the accident with the school bus, claiming judgment against them as third-party defendants.
The parties stipulated that under the KTCA, U.S.D. No. 482’s and its employee’s liability was limited to $500,000 for all claims arising out of the accident. Specifically, K.S.A. 75-6105(a) and (b) provide:
“(a) Subject to the provisions of K.S.A. 75-6111 and amendments thereto, the liability for claims within the scope of this act shall not exceed $500,000 for any number of claims arising out of a single occurrence or accident.
“(b) When the amount awarded to or settled upon multiple claimants exceeds the limitations of this section, any party may apply to the district court which has jurisdiction of the cause to apportion to each claimant the proper share of the total amount limited herein. The share apportioned to each claimant shall be in the proportion that the ratio of the award or settlement made to the claimant bears to the aggregate awards and setdements for all claims arising out of the occurrence or accident.”
The parties then reached a compromise settlement which called for the third-party plaintiffs to receive a total of $500,000 from U.S.D. No. 482, its driver, and its insurance company. Of particular relevance to the present case is that Joseph’s family would receive $84,500 from that total of $500,000. Then of that amount, State Farm would pay $15,500 and U.S.D. No. 482 would pay $69,000. The district court entered judgment accordingly against U.S.D. No. 482 and Thornburg. That judgment was then satisfied.
Also, in addition to the money she received from this judgment, Speer received funeral and medical expense benefits under the personal injury protection (PIP) portion of the family’s auto policy from Farm Bureau in the amount of $5,270.94.
Speer then filed the present case against Farm Bureau seeking judgment for the amount of her damages that exceeded those paid by U.S.D. No. 482, its driver, and State Farm. She argued essentially that those parties were underinsured and that entitled her to benefits provided in her own policy for damages caused by an underinsured motorist.
The parties stipulated to the essential facts. Based upon those stipulations, the district court found that the school bus driver, Thornburg, was 100% hable for the accident. In addition, the court found that Speer suffered economic damages of $5,027.94 and noneconomic damages of $169,729.06 for a total of $175,000 in damages. The district court set off the amounts of $5,270.94 and $84,500 as amounts previously paid to Speer from the PIP benefits and from her portion of proceeds from the interpleader action. The court then awarded Speer judgment for $85,229.06 against Farm Bureau, representing the amount of damages she had incurred but not recovered from the tortfeasors and their insurers.
Farm Bureau argues on appeal, as it did in the district court, that it has no liability arising from this accident for underinsured motorist coverage under its policy with Speer. Specifically, Farm Bureau argues as follows: that it provides coverage only for the amount Speer was legally entitled to recover from U.S.D. No. 482 and its driver; that the amount was capped under K.S.A. 75-6101 et seq., resulting in the judgment of $84,500 Speer received in the interpleader case; and that she received satisfaction on that judgment from U.S.D. No. 482 and State Farm.
The essential facts are not in dispute, and resolution of the issues in this case requires an interpretation of both statutory and contractual language and then application of that language to those facts. “Interpretation of a statute is a question of law over which [an appellate] court has unlimited review.” Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Appellate review of the district court’s construction of a contract on uncontested facts is de novo. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 920, 46 P.3d 1120 (2002).
K.S.A. 40-284(b) provides:
“(b) Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle”
The language in the insurance contract between the parties that is applicable to the issue here provides:
“We will pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle because of bodily injury;
(1) Sustained by an insured person; and
(2) Caused by an accident.
“. . . We will pay damages under this coverage caused by an accident with an underinsured motor vehicle, only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.”
We first note that Farm Bureau has provided no cases from Kansas or any other jurisdiction on point with the facts here that supports its position.
We next note that the Kansas Supreme Court has previously construed the phrase “legally entitled to recover as damages” in a broad manner. In Winner v. Ratzlaff, 211 Kan. 59, 64, 505 P.2d 606 (1973), the court defined the phrase to mean simply that “the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages.” Although the case involved uninsured motorist coverage, the same definition can be applied to the underinsured motorist coverage involved in the present case since the two are so closely related and are often used in the same section of insurance contracts. Even though the case did not specifically deal with the interplay between underinsured motorist coverage and a statutory cap on damages, its broad construction of language pertinent to the issues in this case is significant.
Although Kansas has not specifically dealt with the issue of whether a statutory cap, such as the one contained in K.S.A. 75-6105(a) and (b), exonerates an insurance company from paying the insured’s excess damages under the underinsured motorist coverage in its insurance contract, several other states have dealt with and discussed the issue with favorable outcomes to the insured.
In Cincinnati Ins. Co. v. Trosky, 918 N.E.2d 1, 9 (Ind. App. 2009), the Indiana Court of Appeals determined that “the sovereign immunity defense is not available to [underinsured motorist] carriers who argue that once the statutory cap has been paid by the governmental unit, the insured is no longer legally ‘entitled to recover.’ ” The court goes on to say, as Kansas has, that the phrase “ ‘legally entitled to recover’ ” merely means that the insured must establish fault on the part of the underinsured motorist and establishes the amount of the insured’s damages. 918 N.E.2d at 9. We also find persuasive the public policy reasons stated by the court for its decision:
“Statutory tort claims caps serve to limit the financial exposure of a state’s treasury for torts committed by state officials and employees. [Citation omitted.] Insureds pay premiums to their insurers to make up the difference between an injured insured’s damages and the tortfeasor’s liability coverage up to the limit of the insured’s [underinsured motorist] coverage. [Citation omitted.]” 918 N.E.2d at 8-9.
In Karlson v. City of Oklahoma City, 711 P.2d 72, 75 (Okla. 1985), the Oklahoma Supreme Court determined that although a tortfeasor’s liability is limited by the Oklahoma Political Subdivisions Tort Claims Act such that it does not compensate an insured for all of the proven damages suffered in an automobile accident, the insured is allowed to recover from the insured’s insurance company through the underinsured motorist provision as provided by the insured’s automobile liability insurance policy.
In West American v. Popa, 352 Md. 455, 472-73, 478, 723 A.2d 1 (1998), the Maryland Court of Appeals determined that the governmental immunity of a tortfeasor did not prevent an insured from applying for and recovering the insured’s damages from the underinsured motorist carrier.
Here, K.S.A. 75-6105 statutorily caps U.S.D. No. 482’s and its driver’s liability at $500,000 for all claims. U.S.D. No. 482, its insurance carrier, State Farm, and the bus driver had judgment entered against them for that statutory maximum in favor of the victims of the accident of October 15, 2003. Of this amount, Speer received $84,500 for the death of her son. This amount did not cover all of the damages Speer incurred as a result of the accident. We conclude that, in light of our Supreme Court’s broad construction of “legally entitled to recover as damages” and the persuasive case law cited above, the statutory cap of K.S.A. 75-6105 has no effect on Farm Bureau’s underinsured motorist coverage. As a result, since Speer did prove she is legally entitled to recover damages exceeding the amount recovered against the tortfeasors, the district court did not err in granting judgment to Speer against Farm Bureau for those damages as benefits under die uninsured motorist provisions of her policy.
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Hill, J.:
In this appeal of an order granting summaiy judgment to the Trustees of the Police & Fire Retirement Board of the City of Wichita, we affirm the district court because the claimant, Angel L. Medina, failed to show his injury, arising from him getting out of a patrol car, was a service-connected disability as envisioned in the city’s ordinance. We affirm the Board’s denial of benefits to Medina just as the district court ruled. Before discussing the merits of the case though, we must address two procedural questions raised by the Board: whether we have jurisdiction to hear this matter and whether Medina preserved his arguments for appeal to the district court. Our answer to both questions is yes. First, the district court had everything from the administrative record it needed to make its decision despite the fact that Medina failed to file the record of the Board’s proceedings with the district court. Second, the rules that ordinarily apply to appeals from state agencies to a district court do not apply here because the Board is an administrative body of a city. Medina’s first opportunity to make these arguments was in district court; therefore, the district court properly entertained them.
Medina is hurt getting out of a car and claims a disability.
While on patrol in Wichita in December 2005, Officer Angel L. Medina was dispatched to assist with an unattended child. When he arrived at the scene, he twisted his right knee when he got out of his patrol car. Sometime later, his right knee buckled. This happened at his home. Ultimately, Medina received workers compensation benefits for injuries to both knees and his right ankle.
The City of Wichita has established a retirement system for its police and fire officers. That system is administered by a Board of Trustees. That Board receives applications for benefits and decides whether to make awards. Accordingly, Medina sought disability retirement benefits from the Wichita Police & Fire Department System. In his application, Medina claimed a service-connected disability. He informed the Board he had received medical treatment for his injuries and all that was left to do was to fuse his ankle. Medina claimed this resulting disability, a fused ankle, prevented him from working as a patrolman for the police department.
After collecting records and conferring several times, the Board turned down Medina’s claim. The Board reasoned that since Medina’s initial injury, the twisted knee, was not a “physical or mental incapacity resulting from external force, violence, or occupational disease occasioned by an act of duty. . . imposed by the ordinance or rules and regulations of the City, or any other disability, which may be directly attributable to the performance of an act of duty,” Medina’s claim must be rejected. Medina appealed this denial to the district court which ultimately granted summary judgment to the Board of Trustees.
Now, to us, Medina contends the Board and the district court have misinterpreted the controlling Charter Ordinance 205. In Medina’s view, he was only required to show that he was injured while engaged in the performance of his duty. According to Medina, there is ample evidence in the record to support his contention and the City of Wichita should be estopped from denying this since the city stipulated in his workers compensation case that his injury was work related. We disagree with Medina’s interpretation of the Charter Ordinance because his reading of that law is too narrow. But we must first address two procedural questions.
Medina perfected his appeal to district court and thus to this court.
The Board claims the district court had no jurisdiction to consider Medina’s appeal because he did not file the administrative record of the Board’s proceedings with the district court. The Board cites K.S.A. 60-2101(d) as procedural authority. That law states:
“A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such subdivision or agency within 30 days of its entry, and then causing true copies of all pertinent proceedings before such subdivision or agency to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A docket fee shall be required by the clerk of the district court as in the filing of an original action.” (Emphasis added.)
We agree with the Board that the Wichita Police & Fire Department System is a political subdivision that exercises judicial or quasi-judicial functions. Therefore, K.S.A. 60-2101(d) controls.
Correspondingly, though, courts have interpreted the statute to mean that a party has a “reasonable” time to cause the administrative record to be prepared and filed with the district court. LeCounte v. City of Wichita, 225 Kan. 48, 54-55, 587 P.2d 310 (1978); Francis v. U.S.D. No. 457, 19 Kan. App. 2d 476, 479, 871 P.2d 1297, rev. denied 255 Kan. 1001 (1994).
Even though Medina concedes that he did not file the administrative record with the district court, we note Medina did request true copies of the appropriate proceedings from the Board so he could perfect his appeal. But the Board forced an acceleration of the procedures in this case by filing a motion for summary judgment just 21 days after Medina filed his petition in district court. It would be unreasonable for a court to require Medina to have the entire administrative record filed in under 21 days. After all, the Supreme Court in LeCounte held it was unreasonable to require an aggrieved party to prepare and complete an administrative record within 30 days.
The Board’s reliance upon Francis is unpersuasive. In Francis, the court held the plaintiff failed to perfect an appeal when she failed to notify the administrative agency of her appeal within 30 days of its decision. 19 Kan. App. 2d at 478-80. The court noted the “critical requirement” of K.S.A. 60-2101(d) is the fifing of notice with the administrative agency. 19 Kan. App. 2d at 479. Failure to file notice is not the issue before this court.
Going further, we see no prejudice to the Board here. In its brief the Board does not point out any necessary document that was not filed with the district court. It appears to us that the Board filed copies of its proceedings with the district court because the Board referred to those records in its motion for summary judgment. Nor can we say the district court was deprived of any important part of the administrative record. The district court had all of the information it needed to rule on the summary judgment motion.
Medina’s failure to file the record is not fatal to his appeal under these facts. In In re Lakeview Gardens, Inc., 227 Kan. 161, 167, 605 P.2d 576 (1980), the Supreme Court stated that while fifing a timely notice of appeal is jurisdictional, the failure to comply with other requirements such as a timely designation of the record is not jurisdictional when no prejudice results. See also Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 (1978). That rule should prevail here. Since the Board shows no prejudice, Medina’s failure to timely file the administrative record of proceedings did not prevent the district court from considering the Board’s motion for summary judgment, and thus we have jurisdiction to entertain the appeal.
Medina could argue his interpretation of the Ordinance to the district court.
The Board contends that Medina could not raise the issue of his interpretation of Charter Ordinance 205 to the district court because he made no such argument to the Board. The Board cites the ruling in Scheidt v. Teakwood Cabinet & Fixture, Inc., 42 Kan. App. 2d 259, 264, 211 P.3d 175 (2009), as support. In fact, the record reveals that Medina made no statement, presented no witnesses, and appeared unrepresented by counsel at the Board hearing where the Board denied his claim. Medina presented his argument about the ordinance in his response to the motion for summary judgment in district court. We are unpersuaded for two reasons.
First, the ruling in Scheidt, and a host of other cases, arises in disputes controlled by the Kansas Judicial Review Act found at K.S.A. 77-601 et seq. The Act applies to all state agencies. See K.S.A. 77-602(a). The Board in this case is not a state agency and thus the Act does not apply.
Second, in all of the cases that prohibit a party from raising an issue not raised at an administrative hearing, an intermediate administrative body was present that could consider factual and legal arguments before that party sought relief from the district court through an appeal. Medina had no such opportunity here. His next and only step was a district court appeal.
Medina reads Charter Ordinance 205 too narrowly.
Basically, Medina contends that all he had to prove is that he was permanently injured while he was engaged in die performance of his duties. The Board argues Medina must show he was injured during the performance of an act of duty as it is defined in the ordinance. Section 3 of Charter Ordinance 205 defines an act of duty as an “act performed by a member within the scope of occupational duties inherently involving special risks not generally assumed by a citizen in the ordinary walks of life, for the purpose of protecting life or property, including an act of heroism as a member.” (Emphasis added.) The district court granted summary judgment to the Board on this point.
Our rules concerning the review of summary judgments are long established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, [appellate courts] apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
We now turn to the merits of Medina’s claim.
We list the relevant portions of the ordinance.
Wichita’s Charter Ordinance 205 controls this case. Section 19 governs the award of disability benefits. It states:
“Permanent Service-Connected Disability benefits. Any Member, who shall, while engaged in the performance of his or her duties, be permanently injured or disabled, other than as the result of an occupational disease, and upon an examination by a physician or physicians appointed by the Board of Trustees, be found to be physically or mentally disabled as a result of such permanent Disability or injury so as to render him incapable to perform the duties of the position held by the Member at date of Disability, shall be entitled to be retired, and the Board of Trustees shall thereupon order such Member’s retirement and upon being retired, the Member shall be paid a benefit equal to seventy-five percent (75%) of the Salary in effect on the date when Salary payments ceased.”
Going further, Section 3 gives definitions that are pertinent to this dispute. A “Service-Connected Disability” is “any physical or mental incapacity resulting from external force, violence, or occupational disease occasioned by an act of duty as a police or fire officer, imposed by the ordinance or rules and regulations of the city, or any other disability, which may be directly attributable to the performance of an act of duty.” In turn, an “act of duty” is “an act performed by a member within the scope of occupational duties inherently involving special risks not generally assumed by a citizen in the ordinary walks of fife, for the purpose of protecting fife or property, including an act of heroism as a member.”
Basically this dispute boils down to whether Medina must prove he suffered a “Service-Connected Disability” that can be attributed to an “act of duty.” The Board concluded he did. Medina argues he did not. The district court ruled tire Board was correct.
In our view, the Board and the district court correctly denied Medina benefits for two reasons. First, Medina’s interpretation of the ordinance unreasonably renders a portion of the ordinance meaningless. Second, there is no evidence that Medina suffered a “Service-Connected Disability” and therefore he has failed to prove that he is entitled to disability benefits. We will address these reasons in that order.
Medina contends the phrase “Service-Connected Disability” is only found in the title of die Section 19 of Charter Ordinance 205. Therefore, he argues he need not prove such since no such language exists in the “operative” language of that subsection. He seems to be arguing the tide is not as important as the book.
Upon reading Charter Ordinance 205, one can see that Section 19, tided “Permanent Service-Connected Disability Benefits,” is the only part of the entire law that refers to a “service-connected disability.” (Except Section 10 refers to the appointment of a specialized physician to pass on claims for service-connected disability benefits.) Medina would have us render the title, written by the drafters of the ordinance, meaningless. Appellate courts are admonished to construe statutes in such a way that the construction avoids unreasonable results, and we must presume the legislature does not intend to enact useless or meaningless legislation. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006).
Medina relies on Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), for support. Indeed, die court in Arredondo did rule the heading or title of a legislative act forms no part of a statute. 227 Kan. at 846. But later, in way of explaining the point, the court in Bonanza, Inc. v. Carlson, 269 Kan. 705, 718, 9 P.3d 541 (2000) reasoned an introductory heading of a statute is “not dispositive because the title or caption prefacing the text of a statute is prepared by the Revisor of Statutes and forms no part of the statute itself.” Medina’s faith in Arredondo then is misplaced. The title for Section 19 was not tacked on after the ordinance was enacted by some revisor of city ordinances but was created and placed by the drafters of the ordinance.
It is clear to us that the drafters of Charter Ordinance 205 intended for members to demonstrate a “Service-Connected Disability” because that phrase, used in the title, was specifically defined within the ordinance. It makes no sense to us that this defined phrase was meaningless. We hold that under Section 19, Medina was required to show he suffered from a “Service-Connected Disability.”
The evidence set out in the record fails to prove any “Service-Connected Disability” that could be attributed to an “act of duty.” Medina twisted his knee when he got out of the car, an action common to all and certainly not unique to a police officer. Medina’s anWe injuxy occurred at home when his knee buckled. We see no evidence of any external force, violence, or occupational disease that caused his knee injuiy.
Proceeding to Medina’s next point, that we should employ workers compensation principles here because Section 19 is similar to some language in the Workers Compensation Act, we conclude to do so would be erroneous. Medina urges us to follow the holding in Miller v. Board of Trustees of KPERS, 21 Kan. App. 2d 315, 898 P.2d 1188 (1995). But, in our view, Miller does not apply here.
Miller asked the court to apply state workers compensation principles when interpreting a state administrative regulation. The Miller court did so because the two sets of state law were so similar. Unlike Miller, we do not have comparable state statutes but must deal with a municipal ordinance. We find no such precedent in Kansas that would authorize us to apply workers compensation rules to a city’s retirement system.
On the other hand, a California Supreme Court case has addressed the issue. The court in Pearl v. Workers’ Comp. Appeals Bd., 26 Cal. 4th 189, 195, 109 Cal. Rptr. 2d 308, 26 P.3d 1044 (2001), held that a section of the workers compensation code did not extend to retirement disability law. In the words of the court, “[i]f the Legislature desires that a provision of substantive workers’ compensation law apply in other types of compensation determinations ‘all that it need do is to make its preemptive intent clear.’ [Citation omitted.]” 26 Cal. 4th at 195. We see nothing in Wichita Charter Ordinance 205 that suggests an intent to incorporate state workers compensation principles into municipal police and fire officers disability determinations, and without such a suggestion we will not do so.
The district court properly granted summary judgment to the Board.
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Malone, J.:
Marc H. Hall appeals the district court’s order in a divorce decree that he cooperate with Susan C. Hall’s attempts to obtain insurance on his life at her expense. Marc claims that the district court lacked jurisdiction to enter such an order. He also claims that Kansas law and public policy prohibit Susan’s ability to obtain insurance on Marc’s life over his objection. We disagree with Marc’s claims and affirm the district court’s judgment.
Marc and Susan were married on November 2, 1985, in Kansas City, Kansas. On December 2, 2008, the marriage was dissolved by the district court, and the divorce decree was filed on December 17, 2008. Marc and Susan had two children who had reached the age of majority and one child who was 12 years old at the time of the divorce. At the hearing on the divorce, Susan requested that Marc cooperate with her attempts to obtain insurance on his life at her expense. Susan did not specify whát she meant when she requested Marc’s cooperation. Marc objected, arguing that the district court did not have jurisdiction to make such an order. Despite Marc’s objection, the district court directed him to cooperate with Susan’s attempts to obtain insurance on his life at her expense in order to ensure support and education for the minor child in case Marc passed away. Marc timely appealed.
Marc first argues that the district court did not have jurisdiction to order him to cooperate with Susan’s attempts to obtain insurance on his life. Marc contends that the district court essentially created and divided a property interest which would not exist until after the Halls’ divorce. Marc contends that K.S.A. 2009 Supp. 60-1610(b)(1) does not grant the district court the authority to make such an order. Susan did not file a brief on appeal.
This issue involves statutory interpretation and subject matter jurisdiction of the court. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Also, whether jurisdiction exists is a question of law over which an appellate court has unlimited review. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009).
What Marc fails to acknowledge is that the district court’s order for him to cooperate with the life insurance was not related to the division of property under K.S.A. 2009 Supp. 60-1610(b)(l). Instead, the order was related to the district court’s authority to make provisions for the support and education of the minor child pursuant to K.S.A. 2009 Supp. 60~1610(a)(l). The district judge stated:
“K.S.A. 60-1610[(a)(l)] states that the court shall make provisions for the support and education of the minor children. The Court finds that a major portion of the current support and education of the minor child is coming from Mr. Hall. That if the child were to lose that financial assistance, it would seriously affect his support and education. Since mother is willing to pay for the cost of life insurance, Court will order that Mr. Hall cooperate in Mrs. Hall’s purchase of the life insurance policy to ensure support and education in case he were to pass away. I will grant that request.”
By ordering Marc to cooperate with the life insurance, the district court was not attempting to create and divide a property interest but was merely attempting to allow Susan the opportunity to secure the child support payments that the district court had ordered Marc to pay. In other words, the district court was ensuring that the minor child would still be supported in the event of Marc’s untimely demise. The district court had subject matter jurisdiction to enter such an order pursuant to K.S.A. 2009 Supp. 60-1610(a)(l).
Next, Marc contends that the district court’s order that he cooperate with obtaining the life insurance is against public policy because in Kansas consent of the insured is required in order to obtain insurance on that person’s life. In addition, Marc argues that the district court cannot order one parent to act in a way that would continue the support of a child beyond the age of majority unless the parent voluntarily consents to that act. Moreover, Marc asserts that the district court cannot order him to participate in such away that would provide support for his ex-wife after his maintenance obligation has ended.
As we have previously stated, the district court’s order was authorized under K.S.A. 2009 Supp. 60-1610(a)(l) to ensure support and education for the minor child. Generally, an appellate court reviews a district court’s order concerning child support under an abuse of discretion standard. In re Marriage of Schoby, 269 Kan. 114, 120-21, 4 P.3d 604 (2000). However, review is unlimited when there are questions of law at issue or the interpretation of statutory provisions is necessary. In re Marriage of Day, 31 Kan. App. 2d 746, 751, 74 P.3d 46 (2003).
Marc cites Geisler v. Mutual Benefit H. & A. Ass’n, 163 Kan. 518, 183 P.2d 853 (1947), for the proposition that, under Kansas law, consent of the insured is required in order to obtain life insurance on that person’s life. However, Geisler makes no such proposition, and Marc provides no other authority to support this conclusion of law. In Geisler, the court discusses the requirement of an insurable interest in order to obtain life insurance on another person. 163 Kan. at 522-23. However, our research has found no case law or statute in Kansas that specifically requires the insured to consent to having a life insurance policy on his or her life.
In Marriage of Day, the district court ordered the husband to continue ordinary and term life insurance policies on his mothers life and upon her death to pay part of the proceeds therefrom to his divorced wife. This court held that the district court’s order was against public policy and constituted an abuse of discretion. 31 Kan. App. 2d at 757. However, Marriage of Day is clearly distinguishable from the present case which addresses Susan’s attempts to obtain insurance on Marc’s life at her expense.
Courts from other jurisdictions have addressed whether a district court can order a person to cooperate with an ex-spouse in obtaining life insurance on that person’s life without consent. Those courts have determined that such an order was against their state’s public policy. However, in each case, the state had a specific statute that required the consent of the insured before a policy of life insurance could be taken out on the person’s life. See Hopkins v. Hopkins, 328 Md. 263, 270, 614 A.2d 96 (1992); Davis v. Davis, 275 Neb. 944, 948, 750 N.W.2d 696 (2008). Unlike these states, Kansas does not have a specific statute that requires the consent of the insured to obtain life insurance.
As we have stated, the only requirement in Kansas for one person to obtain insurance on another person’s life is an insurable interest between the party taking out the insurance policy and the party whose life is insured. Geisler, 163 Kan. at 522-23. Marc does not attempt to argue whether Susan has an insurable interest in his fife, but clearly she does. The decree of divorce orders Marc to pay Susan $960 each month in child support and $834 each month in maintenance. As long as Susan is entitled to receive these payments from Marc, she has an insurable interest in Marc’s life in the event of his untimely demise.
Finally, Marc argues that the district court cannot order one parent to act in a way that would continue the support of a child beyond the age of majority. Marc also asserts that the district court cannot order him to participate in such a way that would provide support for his ex-wife after his maintenance obligation has ended. However, Marc has misinterpreted the district court’s order. As we have previously stated, the district court’s order concerning the life insurance was premised on Marc’s obligation to provide support and education for the minor child. Once Marc’s child support and maintenance obligations have terminated, Susan will no longer have an insurable interest in Marc’s life. We conclude the district court did not err by ordering Marc to cooperate with Susan’s attempts to obtain insurance on his life at her expense.
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Hill, J.:
This is a dispute between the owner of a tract of land and the owner of the mineral rights to that same tract. The landowner entered into a lease allowing a third party (the oil and gas lease operator) to dispose of saltwater deep beneath the surface of the real estate. The mineral rights owner objected, arguing anyone wishing to dispose of saltwater on the property must have the consent of both the landowner and the mineral rights owner. The district court disagreed and ruled that since the disposal of saltwater in this case in no way affects oil and gas production, the landowner could lawfully make the disposal agreement with the third party without the consent of the mineral rights owner. We agree.
The property was sold, but the mineral rights were retained.
After inheriting a tract of land, Hugh C. Dick and Carol Kay Humes Brown formed Dick Properties, LLC, in 2004 and deeded their share of the land to Dick Properties, LLC. The legal description of the real estate is:
“The Southwest Quarter (SW1/4) of Section 8, Township 10 South, Range 19 West, of the Sixth P.M., Rooks County, Kansas.”
Then, in 2005, Dick Properties conveyed the tract to Leland Schonthaler. The deed conveyed all rights in the real estate to Schonthaler but excepted all “[e]asements, rights of way, mineral reservations, oil and gas leases, and restrictions of record.” In turn, Schonthaler deeded the land to himself and his wife in joint tenancy. Thus, the Schonthalers own the land as joint tenants, and Dick Properties owns all mineral interests in the land.
There is oil and gas production on the property. An oil and gas lease, made in October 1988, is still in effect because of continuous oil and gas production. The owner of the current working interest in the oil and gas lease is the Paul Bowman Oil Trust, and the current royalty owner is Dick Properties.
After buying the property, the Schonthalers made a new saltwater disposal lease.
Before the LLC was formed, the Paul Bowman Oil Trust made a 10-year saltwater disposal agreement with the prior owners of the real estate. The Dick No. 3 well was a dry hole, so Bowman Oil converted the well into a saltwater disposal well. The well conveys saltwater produced from the Dick lease and other leases into the Granite Wash, a geological formation located below the Ar-buckle and the Lansing-Kansas City producing formations. The parties agree and the district court found that the operation of this well as a saltwater disposal well does not interfere with further development of any oil and gas reserves found in the property.
In August 2007, Bowman Oil sent Dick Properties $950 to pay for saltwater disposal for 2004 and part of 2005. Bowman Oil told Dick Properties it intended to pay the remaining 2005 rent to the Schonthalers because, in its view, the saltwater disposal agreement went with the land. Dick Properties responded to this letter by indicating that it was cancelling the saltwater disposal agreement revision made on March 1,2004, and that it would like to negotiate a new agreement with Bowman Oil and returned the $950 check. Dick Properties wanted the new agreement to be between the LLC, the Schonthalers, and Bowman Oil. It wanted Dick Properties and the Schonthalers to have equal rental payments for the disposal well.
Eventually, Bowman Oil paid the Schonthalers rental payments for the period of August 2005 to date. The Schonthalers and Bowman Oh signed a new saltwater disposal agreement in February 2008. Bowman Oil continues to operate the oil and gas lease and continues to dispose of saltwater into the saltwater disposal well on the land.
The court decided the matter through summary judgment.
Taking their controversy to court, Dick Properties sued the Paul Bowman Oil Trust, claiming that Bowman Oil could not make a lease with just the Schonthalers. The parties agreed to the facts. The district court ruled in favor of Bowman Oil, determining that under the stipulated facts the surface rights owner in this case has the right to make a saltwater disposal agreement. In its ruling, the district court maintained this case is unique and fact driven. Even though Dick Properties wanted “the court to adopt a general rule that both the surface and mineral rights owners should join in a saltwater disposal lease,” the district court limited its decision to the particular facts of this case. Simply put, the district court ruled that because there are no facts that indicate there is any interference with the rights of Dick Properties as the mineral rights owner or Bowman Oil as the oil and gas lessee, the Schonthalers could enter into a saltwater disposal agreement without the concurring agreement of the mineral rights owner.
Because of the parties’fact stipulations, our review is unlimited.
Where the controlling facts are based upon written or documentary evidence from pleadings, admissions, depositions, and stipulations, an appellate court has an opportunity to examine and consider the evidence, as did the trial court, and to determine de novo what the facts establish. Additionally, appellate review of the trial court’s conclusions of law is unlimited. Crawford v. Hrabe, 273 Kan. 565, 570, 44 P.3d 442 (2002).
We offer a brief review of fundamental real property law.
For almost a hundred years, parties have had the ability under Kansas law to sever title of a mineral estate from real estate. Mining Co. v. Atkinson, 85 Kan. 357, 360, 116 P. 499 (1911). After severance, two separate estates exist, each held by separate and distinct titles in severalty. Each estate is then a freehold estate, the inheritance of which is independent of the other. 85 Kan. at 360.
Our Supreme Court has held that the owner of a severed mineral estate has the implied right to enter onto the overlying surface of the land to make reasonable use of the land in order to explore and develop the mineral estate. Mai v. Youtsey, 231 Kan. 419, 424, 646 P.2d 475 (1982). Furthermore, in more recent cases, courts have held an oil and gas lease, by implication, conveys upon the lessee the right to drill and operate a saltwater disposal well on the leased premises and dispose of on-lease water. See Crawford, 273 Kan. 565; Colburn v. Parker & Parsely Dev. Co., 17 Kan. App. 2d 638, Syl. ¶¶ 1-3, 842 P.2d 321 (1992).
Dick Properties contends the law, by implication, gives it the right to make a disposal lease.
Dick Properties contends that because an oil and gas lessee, under the rulings in Crawford and Colburn, has the implied right to drill a well and dispose of saltwater, then it, as the owner of the mineral interests, should have the same right as the lessee and be able to enter into a saltwater disposal agreement. But we are not persuaded that is the right course to take here.
Crawford and Colburn are not persuasive in this context. First, we note both cases interpret oil and gas leases, not a saltwater disposal agreement, which is at issue here. Second, those cases specifically confer the right onto the lessee to drill and dispose of saltwater, not onto the mineral estate owner. The courts ruled the right to dispose of saltwater arose from a covenant implied (by court interpretation) in the granting clause of the oil and gas lease. Therefore, in this case, Bowman Oil already had the implied right to dispose of saltwater produced on the lease. Indeed, K.S.A. 55-901(a) provides: “The owner or operator of any oil and gas well which may be producing . . . salt water . . . shall have the right to return such waters to any horizon from which such waters may have been produced.” But that does not solve the issue here.
We recognize that saltwater is a waste product from the extraction and production of oil and gas. When Bowman Oil wanted to dispose of saltwater produced on other oil and gas leases into this same disposal well, a saltwater disposal lease was in order, simply because the court-created implied covenant is limited to saltwater produced on the lease and does not extend to saltwater produced on other leases.
We must review what Dick Properties owns.
We do not think Dick Properties retains sufficient interest in this real estate that would require it to be a party to a saltwater disposal lease. By deed, Dick Properties conveyed all rights to the real estate to Schonthaler but excepted all “[ejasements, rights of way, mineral reservations, oil and gas leases, and restrictions of record.” In our view, what Dick Properties reserved was simply the mineral interests to the real estate.
What does that mean? It has been stated the “owner of the mineral estate has the right to explore, develop and produce oil and gas and, generally, to use as much of the surface of the land as is reasonably necessary for carrying out such activities. [The owner] can also transfer these rights to another party. Such transfers are most typically accomplished by executing an oil and gas lease.” Anderson, Dzienkowski, Lowe, Peroni, Pierce & Smith, Hemingway Oil and Gas Law and Taxation § 2.2, p. 39 (4th ed. 2004). Applying that principle here means all rights to explore and develop the oil and gas on this property have already been granted to Bowman Oil because of the execution of the oil and gas lease. All Dick Properties can do with respect to this oil and gas lease is to receive whatever bonuses, rents, or royalties come due from any oil and gas production on the property.
Next, we point out that we see no reservation of any interest in the real estate that gives Dick Properties the right to enter into a saltwater disposal lease for saltwater produced off premises. There is no mention of the existing saltwater disposal agreement in the deed to Schonthaler. In order to except a covenant from a transfer in a deed, the exception must expressly appear or be necessarily implied in the terms of the grant. Tri-State Hotel Co., Inc. v. Sphinx Investment Co., Inc., 212 Kan. 234, 245, 510 P.2d 1233 (1973). Therefore, we hold Dick Properties transferred the rights to the saltwater disposal agreement to Schonthaler by execution of the deed.
Therefore, upon a de novo review, we hold the district court did not err in determining that the Schonthalers had the right to enter into a saltwater disposal agreement with Bowman Oil. The Schonthalers obtained this right because the original saltwater disposal agreement between Dick Properties and Bowman Oil ran wifh the land and transferred to the Schonthalers because it was not excepted in the deed from Dick Properties to Schonthaler.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment for damages for an assault upon the plaintiff, alleging error in the admission and exclusion of evidence, in certain instructions given, in overruling a demurrer to the plaintiff’s evidence and a motion for a new trial, and on account of excessive damages.
The plaintiff’s testimony in effect was that, having borrowed some money of the defendant, she called upon him on Labor day, 1914, to pay the balance remaining due, and a dispute arising between them as to the amount, he took and kept a certain receipt belonging to her, whereupon she took and kept a receipt book belonging to him; that in order to regain this receipt book he assaulted her and used some violence. There was testimony to sustain the plaintiff’s view of the case, although disputed by the defendant and his wife and son.
We have examined the instructions and find no error therein. Neither do we find any error in the admission or exclusion of evidence. Complaint is made that a new trial was not granted on account of evidence claimed to be newly discovered, but this went merely to the question of the plaintiff’s health and was at most cumulative, and the refusal to grant a new trial was not error. While the damages, if considered from a standpoint of compensation, were large, there was evidence on which to base an award of punitive damages, and from that standpoint they are not so excessive as to amount to a showing of passion or prejudice.
Finding no material error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a j udgment of conviction for persistent violation of the prohibitory liquor law.
He was charged in seven and convicted on three counts. Each count of the information charged three previous convictions for violations of the law — one on a charge in police court and two in prosecutions by the state; All reference, to the conviction in police court was stricken from the information on the trial. At the close of the evidence for the prosecution, the defendant moved the court to require the state to elect upon which of the former convictions proved it relied for conviction on each count. This motion was denied. Of this the defendant complains. In prosecutions of this kind the state may charge and prove more than one previous conviction of violation of the law. A motion to require the state to elect upon which of the former convictions alleged or proved it will rely for conviction should be denied.
The defendant contends that the court erred in admitting evidence offered by the state. This contention is based on evidence tending to show that intoxicating liquors were ordered by persons other than the defendant and directed to be hauled to the barn of the defendant’s father by the persons ordering the liquors. It is argued that this is not sufficient to sustain a conviction. The evidence also tended to show that some of this liquor, ordered by other persons and taken to the barn of the defendant’s father, was taken from there to the defendant’s house; that the defendant directed that it be taken to his house; that he paid for hauling liquor to, and sold liquor at his house. This evidence was competent, and there was evidence sufficient to sustain the conviction for keeping and maintaining a nuisance. No reversible error in the admission of evidence has been shown.
Complaint is made of the cross-examination of the defendant, who testified as a witness. Considerable latitude was allowed, but it did not go outside the field of proper cross-examination as often defined by this court.
The defendant argues that the motion for a new trial should have been sustained because of the misconduct of the county attorney in his closing argument to the jury. There was conflicting evidence as to what the county attorney said in this argument. The court, in passing on the motion for a new trial, made the following findings :
“And the court also finds upon, the evidence introduced upon the hearing of said motion for a new trial as to the remarks made by W. E. Atchison, county attorney, in his closing argument to the jury on the trial of this case that said county attorney stated in substance in his said closing argument that if the jury should disregard the evidence of certain of the state’s witnesses and return a verdict of not guilty in this case that it would be of no use for the state to try the case against one Johanna Adams and one or two other criminal cases then set for trial in this court and that he might as well dismiss such cases for the reason that the state depended for conviction in said cases upon the same class of testimony as that introduced on the trial of this case.
“But the county attorney did not state positively that he would dismiss said cases if a verdict of not guilty was returned in this case. The said remarks of the county attorney were made in connection with his discussion in the argument of the fact that the defendant had introduced evidence tending to impeach certain witnesses who had testified for the state, which testimony appears in the record of the trial of this case. Said statements of the county attorney in his argument were made while the court reporter was present in court and there was no objection made to the court by counsel for the defendant to said remarks of the county attorney nor exceptions taken thereto by counsel for defendant, nor was the court asked at that time to rule upon said remarks and no request was made that said statements of the county attorney should be taken down by the court reporter.”
This does not show anything sufficiently prejudicial to the rights of the defendant to warrant a reversal of the judgment.
The defendant complains of the refusal of the court to give certain instructions concerning the following propositions: the impeachment of witnesses, keeping liquor in a dwelling house, the evidence of witnesses who have been induced to testify under promise of reward or immunity from prosecution, and the right of the jury to disregard the testimony of a witness who has knowingly or willfully testified falsely to any material matter. The instructions given by the court fully and correctly covered the law in the matters complained of. There was no error in not giving the instructions requested by the defendant, or in those given by the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action for slander. The plaintiff recovered judgment. The defendant appeals.
The plaintiff’s petition sets out three causes of action. No evidence was introduced to support the second cause, and it was withdrawn from the consideration of the jury. The jury found in favor of the defendant on the third, and returned a verdict in favor of the plaintiff for $100 on the first cause of action.
The slanderous words set out in the first cause of action are: “He” (meaning the plaintiff) “has been stealing chickens.” The evidence to support this charge was that the defendant had said of the plaintiff and another person that they had stolen his, the defendant’s, chickens, and “the sons-of-bitches stole my chickens.” The defendant urges that this is a variance between the petition and the proof, and cites 25 Cyc. 484, where the author says:
“As a general rule a failure on the part of plaintiff to prove the words strictly as alleged in the petition constitutes a variance and apart from a statute to the contrary is fatal to his cause of action. In some states, how.ever, the code provides that the variance shall not be deemed material unless it has actually misled the adverse party. Moreover, it is very generally held that a failure to prove all the words alleged does not constitute a fatal variance, provided sufficient of the precise words alleged are proved so as to constitute a cause of action. It is a general rule that proof of similar or equivalent words is insufficient. On the other hand it is generally held that the proof need not correspond in every minute particular with the words as laid, provided the identity of the charge is substantially made out.”
This does not support the defendant’s contention. Section 134 of the code of civil procedure provides that—
“No variance between the allegations, in a pleading, and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.”
The slight variation between the proof and the allegation of the petition-could not mislead the defendant. The proof does not correspond in every particular with the words as charged, but the words charged are substantially proved by the evidence. In Ramsey v. Partridge, 86 Kan. 398, 121 Pac. 343, this court said:
“Language substantially the same as charged shown to have been spoken at the time and place charged, in the presence of only one of the two alleged persons, and language substantially the same as charged shown to have been spoken at the place and in the presence and hearing of the persons alleged and at or near the time alleged, sufficiently meets the allegations of the petition and is not subject to the charge of material variance.” (Syl. ¶2.)
The briefs in that case disclose that the difference between the charge in the present case and the language proved to have been used is no greater than the difference between the language charged and that proved in Ramsey v. Partridge, supra.
In Cooper v. Seaverns, 97 Kan. 159, 155 Pac. 11, this court said:
“The jury were instructed that recovery might be had if the language charged in the petition, or language of identical import or substantially the same, were uttered. Many decided cases hold that the identical words must be proved. To do this is to sacrifice substance to form. Words are important only as vehicles of meaning. If the very slander be established by proof of substantially the language charged, that is sufficient, and that is the thought conveyed to the jury by the words of the instruction.” (p. 160.)
The defendant complains of the refusal of the court to give certain instructions requested by him. The reason given by the court for refusing them was that “same given in other words but none given as requested.” An examination of the original instructions shows that the court’s statement was correct, so far as the instructions now complained of are concerned. Each of these requested instructions was substantially given by the court. That is all that was necessary. (Baugh v. Fist, 84 Kan. 740, 115 Pac. 551; Taylor v. Sand and Rock Co., 90 Kan. 452, 454, 135 Pac. 576; Rogers v. Refining Co., 91 Kan. 351, 354, 137 Pac. 991.)
The defendant complains of the following instruction:
“Therefore, if you find from the evidence, by a preponderance thereof, that the defendant spoke of and concerning the plaintiff,1 in the presence of third persons, the words alleged by the plaintiff or words of substantially the same meaning, unless you find from the evidence by a preponderance thereof, that the said words so spoken of and concerning the plaintiff were true, you will find .for the plaintiff upon either or both of the causes of action; but if you find from the evidence, by a preponderance thereof that the words spoken of and concerning the plaintiff by the defendant were true, or if the plaintiff failed to prove, by a preponderance of the evidence, that the defendant used of and concerning him the words charged, or words of substantially the same meaning, then you should find for the defendant.”
His argument is that whether the words alleged and the words proved have substantially the same meaning is purely a question of law for the court, and that the instruction was misleading and incorrect for that reason. There was no error in this instruction. (Ramsey v. Partridge, 86 Kan. 398, 121 Pac. 343; Cooper v. Seaverns, supra.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant issued a life insurance policy to Guy G. Marshall and the plaintiff was named as beneficiary. Marshall gave his promissory note for the amount of the first premium, $41.72, due in ninety days, payable' to C. C. Alexander, the defendant’s local agent, who turned it over to the company. Marshall defaulted in the payment of the note and died a few months later. Some days after his death, an attorney for the insurance company called on Mrs. Marshall, the plaintiff, and informed her that the defendant had never received anything on the policy, and that the policy was void. He showed the plaintiff the note given by Mr. Marshall to Alexander and stated that the note belonged to the defendant and was given in payment of the first premium; but the defendant’s attorney also told her that his company desired to do something for her as a matter of good will. The attorney offered,to pay the funeral expenses, $154.50, and surrender the note to plaintiff if she would surrender the policy and receipt it in full. Relying on these statements of defendant’s attorney, Mrs. Marshall accepted this proposition and the bargain was carried out accordingly. Some months afterwards the plaintiff filed this action, setting up these facts and alleging that she would not have accepted the $154.50 and the note and would not have surrendered the policy or have given a receipt except for her belief in the attorney’s statements. The petition further alleged that these statements were untrue and known by the insurance company to be untrue when made and that they were made to induce the plaintiff to surrender the policy and for the purpose of wrongfully avoiding the payment due to her thereunder, and that she was misled and deceived. She prayed judgment for the face of the policy less the sum paid her in the settlement.
The insurance company answered setting up the written application of the deceased, in which was the following:
“(10. That if any note or other obligation is taken for any premium or part, thereof, such nbte or obligation shall not be a payment thereof, but only an extension of time of payment of the same, and failure to pay said note or other obligation at maturity shall work a forfeiture of all previous payments, except as provided in the policy.)”
The answer also pleaded the following clause in the policy:
“Failure to pay any premium or any note or interest thereon given in extension of the time of payment of any premium on this policy, when due, shall, except as herein otherwise provided, void this policy and forfeit all premiums paid hereon to the company, and terminate and forfeit the insured’s right to pay any further premiums hereunder; provided, however, that such voidance shall not operate to relieve the insured of the payment of the earned portion of any such note or. interest, if any,” etc.
The answer also pleaded the settlement and alleged that it was made with counsel for plaintiff and with their approval.
Other paragraphs of the answer read:
“(2) That while said Alexander tools said note payable to his order, nevertheless he took the same as the agent of defendant, and as such -agent turned the same over to the defendant all in conformity with and subject to the provisions of the application for and the terms of said policy.
“(8) Defendant admits that on or about the date when said policy was issued it charged its said agent, the said Alexander, on its books with 1pl2.52, being the amount of the premium which it would have received in cash after the payment to the said agent of his commission for obtaining said insurance had said premium been paid in cash or had said note been paid when due; but defendant states that said charge was not considered or regarded by defendant or its said agent as a payment of ■said premium or any part thereof, but was made with the understanding and agreement that in the event said note was not paid when due, by the insured, then said charge against the said agent should, and would be, and was reduced to the amount of the medical fee for examining the insured, to-wit, the sum of $5. And defendant states that the said Alexander never paid the same or any part thereof, and that said charge aforesaid, with the credit thereon as aforesaid, was made in ■accordance with certain contractual relations and understandings based upon good and sufficient considerations between said defendant and its said agent, and for their mutual protection, advantage, and benefit, and for the use and benefit of no one else; and in making said charge against the said agent upon its said books, it was not the intention of the defendant or of its said agent to in any manner vary, contradict, alter, or change the written agreement existing between the insured and the defendant, as contained in said application and said policy of insurance.”
The court gave plaintiff judgment on the pleadings for the full amount of the policy less the sum of $154.50 paid in the settlement and less, also, the sum due on the unpaid premium mote.
Since this judgment, at first blush, appears to be erroneous, we will lay aside the usual order of consideration and endeavor by the aid of plaintiff’s brief to find grounds to sustain it. Her counsel says:
“It was solemnly admitted by counsel that he made a false statement ■on a material matter, affecting the rights of the parties, at the time he ■obtained the surrender of the policy and the delivery of the receipt; and it must be presumed that he made the false statement for the purpose of 'Obtaining the policy and the receipt. ... It was the statement that the note had been given to the company that made all the difference. If that statement had been true, the appellee could not have made any claim under this policy, worded as it was.”
We search in vain, however, for the admission of any false statement, material or otherwise. Indeed, the allegations concerning the false statements are general and not specific. Every statement of fact made by the insurance company’s attorney to Mrs. Marshall appears to be abundantly corroborated by the admitted pleadings. Alexander took the note as agent for the company. The company owned it from the inception of the transaction; it had not been paid. The plaintiff’s motion for judgment admits the truth of defendant’s answer. The failure to pay- the premium note when due avoided the policy. The methods of the company and its agent in adjusting their business dealings were no concern of the policyholder or of his beneficiary. Those methods and relations of principal and agent were pleaded, and admitted by plaintiff as true. For their own convenience, upon the issue of the policy an item representing the company’s division of the premium was conditionally charged against the agent’s account, but the charge was not considered between the company and its agent as a payment of the premium, but was made with the understanding and agreement that if the insured did not pay the note when due then, the charge against the agent would be remitted, less the amount of the medical fee for examining the insured, and that this contractual arrangement between the company and its agent was for their mutual protection and advantage and not made with the intention of the company 'or its agent to alter the written agreement between the insurance company and the policyholder.
With such allegations of fact admitted, judgment could not be rendered against the company. ' If the policy had been issued on Alexander’s credit and not on that of the insured, or if the company had made an absolute acceptance of Marshall’s note to Alexander in payment of the premium, we would have a different situation to consider. But the motion for judgment admitted everything — admitted the business arrangements of the agent and the company, admitted that Alexander took the note merely as agent for the company, admitted that both the agent and the company had an interest in the note — the com pany’s proportion and the agent’s commission — if the note were paid, and the agent’s liability to reimburse the company for the fee of the medical examiner if the premium note was not paid. In such a relationship it was of no controlling consequence that the note was made payable to the agent and not to the company. (Nickelson v. Dial, 77 Kan. 8, 13, 93 Pac. 1133.) Nothing is pleaded from which it might be inferred that the agent was to extend credit to the insured on his own account: and the defendant’s pleading, admitted to be true by the motion for judgment, is to the contrary.
The decided cases generally hold that liability on an insurance policy can not be avoided although the premium note which was made payable to the agent and not to the company was not paid, even though the premium note referred to the policy and provided that the policy .would be void unless the note was paid. (Insurance Co. v. Hardie, 37 Kan. 674, 16 Pac. 92.) In Perea v. Insurance Co., 15 N. Mex. 399, 110 Pac. 559, the note was payable to the agent and the premium was charged to him by the company. The court said:
“Defendant entrusted to its agents the discretion of collecting in advance or in giving such credit as they saw fit, holding them alone responsible for the premium. Under such circumstances, it may well be doubted whether the note in question was a note given for the first year’s premium within the meaning of the forfeiture clause of the policy.” (p. 405.)
Other cases cited are to the same effect, and there ought not to be any serious debate that if the agent extended the credit on his own responsibility, and if the insurance company was to look to the agent and not to the insured for the payment of its proportion of the premium, the policy would be enforceable against the company whether the premium or premium note were paid or not. (16 A. & E. Encycl. of L. 859.)
This is not the situation before us, however, and the harsh rules against life insurance companies should not be further extended without positive legislation to support them. As Justice Burnett said in a dissenting opinion in Cranston v. West Coast Life Ins. Co., 72 Ore. 116, 139, 142 Pac. 762, 769: “It is wrong to take something for nothing even from a life insurance company.” Under the petition and answér the de fendant was entitled to judgment; and since there was a compromise and settlement free from' fraud or misrepresentation, and nothing is left upon which to order a new trial, the cause must be remanded with instructions to set aside the judgment and to enter judgment for defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant agreed to pay the plaintiff $800 per month for thirty-six months for spaces rented of the plaintiff in which to place advertising matter in certain stations of the street-railway systems of Greater New York. Payments were to be made monthly in advance. The defendant agreed to furnish the advertising matter. This it never did. On the trial the plaintiff proved the contract, his ability, readiness, and the arrangements he had made to perform the same, and the defendant’s breach by failing to furnish the advertising matter, and to pay for the four months sued for. The plaintiff did not prove the cost of putting up the advertising matter. The defendant demurred to the plaintiff’s evidence. The demurrer was by the court “held to be good,” but it was not sustained or overruled. The plaintiff made verbal application for time to procure further evidence, and the court continued the cause and discharged the jury, over the objections of the defendant. The defendant appeals.
The defendant’s principal argument is that the court erred in continuing the cause without a written application therefor, made upon affidavit, showing the grounds of continuance as required by section 315 of the code of civil procedure. Other sections of the code prevent the consideration of this question at this time. Prior to 1909, section 542 of the then code of civil procedure read, in part:
“The supreme court may also reverse, vacate or modify any of the following orders of a district court or other court of record, or a judge thereof, except a probate court: 1. A final order. 2. An order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; that grants, refuses, vacates or modifies an injunction; that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee, or that sustains or overrules a demurrer. 3. An order that involves the merits of an action or some part thereof.”
This section was changed in 1909, and is now section 565 of the code of civil procedure, and reads:
“The supreme court may [also] reverse, vacate or modify any of the following orders of.the district court or a judge thereof, or of any other court of record, except a probate court.
“First. — A final order.
“Second. — An order that discharges, vacates or modifies a provisional remedy; or that grants, refuses, vacates or modifies an injunction; or that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer.
“Third.- — -An order that involves the merits of an action, or some part thereof.”
When the new code was adopted in 1909, the provision allowing an appeal from an order that grants or refuses a continuance was intentionally omitted. An appeal can not now be taken from such an order. It may be error to grant or refuse a continuance, but such error must wait until an appealable order is made.
While the defendant argues only one proposition, that the court erred in continuing the case, yet it asks that the judgment be reversed and the cause be remanded with instructions to sustain the demurrer to the evidence, and enter judgment in favor of the defendant for costs. In effect, this would be saying that, with the demurrer undisposed of, it was error to continue the trial of the action and that an appeal could be taken from the order granting the continuance.
No judgment has been rendered in this action. No order has been made from which an appeal can be taken. The appeal is dismissed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Myron O. Holmes was prosecuted on a charge of fraudulently obtaining from T. F. Garner a check of the value of $265 by false pretenses. The information in effect charged that the defendánt, who owned two horses, procured one Adkins to sell them to Garner, and that the defendant soon afterwards approached Garner and represented to him that the property had been stolen from the defendant, and he thereupon demanded the return of the horses or the value of them; and that Garner, believing the representation to be true, gave him a check payable to the defendant of the value of $265. It is alleged that the defendant conspired to cheat Garner by arranging with Adkins to take the horses and sell them and afterwards claim the horses as his own, and that he and Adkins would divide the money so fraudulently obtained. The defendant retained the check given him by Garner for a short time. Before it was cashed the arrest was made, and the check was subsequently restored to Garner. Proof of confessions made by the defendant were received in evidence, and upon this and other testimony he was convicted of the charge.
There is a complaint that the information did not state an offense, and that his motion to quash should have been sustained. The information states an offense under section 94 of the crimes act (Gen. Stat. 1909, § 2584). The allegation that another conspired and cooperated with the defendant in fraudulently obtaining a check by false pretenses did not vitiate the information nor give cause for doubt as to the offense intended to be alleged. Neither was there any ground for the contention that the information charged no more than an attempt to cheat and defraud, as the averment was that the check had been obtained by fraudulent pretenses and that it was a thing of value. A completed offense was charged.
Error is assigned on the admission of testimony of some acts and declarations of Adkins, who aided the defendant in the commission of the offense. This objection is hardly available, as the testimony appears to have been received without objection. However, proof of the conspiracy to commit the offense having been shown, the acts and declarations of either party engaged in the criminal acts were admissible in evidence. (The State v. Miller, 35 Kan. 328, 10 Pac. 865.)
Complaint is made of the exclusion of the testimony of the wife of the defendant to the effect that a confession was obtained from her husband by promises of leniency or immunity. It appears that the defendant made a number of statements admitting the acts charged against him. Only two of these statements or confessions were offered in evidence. The excluded testimony related to a confession that was not introduced in evidence, and hence there could be no error in the ruling.
The final contention is that a crime was not shown to have been committed because money was not paid upon the check obtained by the defendant. One of the essential elements of the offense is that the fraud must be actually accomplished by means of the false pretenses. (The State v. McCormick, 57 Kan. 440, 46 Pac. 777, 57 Am. St. Rep. 341; The State v. Briggs, 74 Kan. 377, 86 Pac. 447, 7 L. R. A., n. s., 278.) Attention is called to the early case of The State v. Lewis, 26 Kan. 123, in which it was held that an averment to the effect that the accused had induced a person by false pretenses to pay him a bank check, money and a bank draft, did not charge the offense of obtaining money' or property by means of false pretenses. In this decision, from which Justice Brewer dissented, a very narrow and restricted meaning was given to the word paid and a strained interpretation was placed upon the language of the information. The rule there stated can not be followed and is overruled. In the present case it was alleged and proven that a check was fraudulently obtained. There was money on deposit in the bank on which it was drawn sufficient to have paid it. It was property, a thing of value, and was taken as the equivalent of money. When it was obtained the injury was inflicted, the fraud accomplished and the offense was complete. The surrender of the check by the defendant a week later did not take away the criminal character of his acts. A promise to return, or the restoration of money or property fraudulently obtained by false pretenses, does not operate to purge the offense previously consummated. (11 R. C. L. 843.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover damages for an injury sustained by being bitten by a coyote in the defendant’s park. The plaintiff recovered judgment. The defendant appeals.
The defendant maintained a public park in which were located a number of buildings, where wild animals were kept. Three coyotes were there confined in a cage constructed of heavy wire of two-inch mesh, built on a cement foundation, about two feet from the ground. Mrs. Hibbard, mother of the plaintiff, drove to the park with a neighbor, and upon her arrival there proceeded to prepare a lunch, permitting the plaintiff, a child of four years, and an eleven-year-old daughter, together with an eleven-year-old boy of the neighbor, to wander over the park and to the animal cages some two or three hundred feet way. After the children had gone into the zoological part of the park the plaintiff wandered away from her sister and the neighbor boy, and, with a man by the name of Tully Myers and his children, one in his arms, went up to the cage contain ing the coyotes. While watching these animals, and while Mr. Myers was adjusting the hat of the child in his arms, the plaintiff approached the cage and put her hand and arm on the wires of the cage. Her hand and arm were seized by one of the coyotes and scratched and bitten. One large wound on the forearm and numerous small ones were made by the claws and teeth of the coyote. Claim was filed against the city within four months. Action was brought resulting in a judgment against the city for $500.
The city sets up contributory negligence on the part of the plaintiff, her parents, and Mr. Myers, and contends that in the maintenance of the park and zoo it was acting in the exercise of a purely governmental function and is not liable for the negligence of those in charge of the animals.
The question that determines the judgment that must be rendered in this case is, Was the city acting in the exercise of a purely governmental function and therefore not liable for the negligence of any of its officers or agents in the care and maintenance of the park and zoological garden? In Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, it was said:
“The maintenance of a park by a city for the sole benefit of the public, and not for any profit or benefit to the municipal corporation, is a governmental or public function.” (Syl. ¶ 1.)
Zoological gardens are commonly maintained in parks as a part thereof, under the same authority and for the same reasons that parks are maintained. The same liability , should attach to keeping a zoological garden as attaches to the maintenance of a park. No profit is ordinarily received from such gardens. In the present case it does not appear that the defendant city received any profit whatever from its zoological garden. It was kept for the pleasure and education of the entire public. Is the city liable for negligence in the manner in which the coyotes were confined and kept? In Freeman v. Chanute, 63 Kan. 573, 577, 66 Pac. 647, is the following quotation from Throop on Public Officers:
“With respect to cities, and other municipal corporations, the general rule is, that the body is liable for the acts or omissions of its officers in the lawful discharge of a corporate duty, imposed by law upon the body itself; but not where the act is for the general public interest, or where the statute specifically imposes the duty upon the officers.” (§551.)
In Harper v. City of Topeka, supra, this court said:
“Ordinarily, cities and other municipal corporations in the exercise of their governmental functions are not liable in damages for any neglect, or even wrong-doing, of their officers in the, discharge of such duties unless such liability is expressly imposed upon them by law.” (p. 13. See, also, the cases there cited.)
In Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12, we declared:
“It is a general rule that the governmental agencies of the state are not liable in an action of tort for either nonfeasance or misfeasance.” (p. 241.)
This rule has been applied in actions for false imprisonment by city officers (Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490; City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949) ; and in actions for damages sustained by reason of the defective condition of the prison in which the person injured was confined, or by reason of the negligence of the officers in charge of the prison (La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272; City of New Kiowa v. Craven, 46 Kan. 114, 26 Pac. 426). In Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, this court held a city not liable for the death of a boy drowned by' breaking through the ice while skating on a pond in a park. The city stationed no watchman and did nothing to prevent children from going on the ice at any time. In Butler v. Kansas City, supra, the city was held not liable for injuries sustained by an inmate of a pesthouse by a splinter from the floor penetrating his foot w^üe he was walking from his bed to a stove to make a fire. In that case it was admitted by demurrer that the city was negligent in maintaining the floor of the room in a defective and dangerous condition. Following these authorities, there is but one conclusion to be reached in the present case, and that is that the defendant was acting in a governmental capacity; and that it is not liable for the negligence of its officers or agents in confining the animals in the zoo.
Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573, is cited in support of the contention of the plaintiff. In the Harper case this court said' (p. 16) that the real principle involved in the Bowden case was the relation of employer and employee. There is no such relation involved in the present case.
A number of states follow a principle contrary to the one that has been followed in this state, so far as negligence in the maintenance of parks is concerned; while a number of other states adhere to the rule declared in this state. A collation of these authorities at this time will not serve any good purpose. The rule herein announced is firmly fixed in our jurisprudence and must be followed, unless distinctly overruled.
There seems to be an inconsistency between the rule we now declare, and that holding cities liable for negligence in the maintenance of its streets. In the Harper case after stating that cities in the exercise of their governmental functions are not liable for any neglect or wrong-doing of their officers in the discharge of such duties, unless such liability is expressly imposed by law, this court said:
“An exception to the rule has been made which holds cities liable for damages resulting from defects in their highways.” (p. 13.)
McQuillin on Municipal Corporations, in discussing the liability of cities for negligence in the maintenance of streets and sidewalks, says:
“This rule is said to be founded upon an ‘illogical exception’ to the general rule of the common law prohibiting actions against municipalities for negligence in the discharge of duties imposed upon them for the sole benefit of the public and from which they derive no compensation or benefit in their corporate capacity.” (Vol. 6, § 2720, p. 5590.)
The defendant city is not liable. The judgment is reversed, and the trial, court is directed to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enforce a bond to pay materialmen, required of a railway contractor. The plaintiff recovered. The court granted a new trial and the plaintiff appeals.
The Dieter & Wenzel Construction Company entered into a contract to construct a union station for the Wichita Union Terminal Railway Company. The railway company took from the contractor a bond in accordance with the provisions of section 7006 of the General Statutes of 1909, which reads as follows:
“That whenever any railroad company shall contract with any person for the construction of its road or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such person shall pay all laborers, mechanics and materialmen, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any person to whom any part of such work is given, incurred in carrying on such work; which bond shall be filed by such railroad company in the office of the register of deeds in each county where the work of such contractor shall be. And if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.”
The bond was signed by the contractor and by a surety company. The contractor sublet the plumbing to William Crombie, who did business under the name of the City Plumbing and Heating Company. The plaintiff, Crane Company, furnished plumbing material to the subcontractor. While the union station was building the plaintiff furnished other material to Crombie for use at other places, separate accounts being kept for each piece of work. Crombie paid the plaintiff by means of his own checks drawn on his own bank account and in each instance directed the account or accounts to which the check should apply. The plaintiff sued on the bond for a balance due on the union station account. The defenses were that the bond did not cover the material furnished by the plaintiff, payment, and estoppel. The defense of estoppel was not submitted to the jury and the only meritorious issue was that of payment. The evidence relating to the material facts was quite conflicting. The court instructed the jury that Crombie had the right to direct how his payments to the plaintiff should be applied and that if he had done so the jury should observe the application. The verdict sustained all the plaintiff’s contentions. The journal entry of the order sustaining the motion for a new trial reads as follows:
“The court being fully advised in the premises, doth sustain said motion for a new trial, and does 'grant said new trial only for the reasons that the Dieter & Wenzel Construction Company was surety for Crombie to Crane Company and that the said Dieter & Wenzel Construction Company paid money to Crombie and notified the Crane Company that they had paid the money to Crombie and that Crombie then paid the money to Crane Company. This ruling is based upon the following cases: Crane Bros. Mfg. Co. v. Keck, 35 Neb. 683, 53 N. W. 606; Lee v. Storz Brewing Co., 75 Neb. 212, 106 N. W. 220; Merchants Ins. Co. v. Herber, 68 Minn. 420, 71 N. W. 624; and the court further finds that at the time said money was paid by Crombie to Crane Company that Crane Company should have ascertained from The Dieter & Wenzel Construction Company how much money Crombie had received from the Dieter & Wenzel Construction Company.”
The finding of fact contained in the first part of the order was based on the following testimony given by the plaintiff’s manager at the trial, and consequently binding on the plaintiff:
“At the time when he would call me up he would tell me that he gave Crombie a check and I would tell him that we got a check. He never told me the amount of the check. We were getting checks at this time from Crombie on his general account and on the Bonham, Texas, job.”
The question is whether or not this admission rendered the instruction to the jury improper, and whether or not the conclusion of law stated as a finding in the latter part of the order is correct or material.
This court has hitherto followed the beaten path of the law relating to application of payments. A debtor has the right to direct how a payment on his indebtedness shall be applied. If the debtor give no direction the creditor may make the application according to his pleasure. If neither the debtor nor creditor has applied the payment, the law will do so, and generally will apply the payment to the oldest item or oldest debt, and to unsecured in preference to secured debts, although under special circumstances justice may require a different application. In this case the contractor simply paid Crombie what it owed him. The payment was made without reservation to satisfy the contractor’s own debt. Unconditional title to the money passed to Crombie and it became his, free from any right or equity in the contractor to control his use of it. He could pay his taxes or club dues with it or could pay such of his merchandise creditors as he desired. When Crombie deposited the money in the bank to his general account it lost its identity, and when he gave his check to the plaintiff and directed the plaintiff to apply the proceeds in a specific way the plaintiff had no choice with respect to its conduct. It was obliged to apply the money as directed. The contractor acted in a dual capacity. It was an ordinary contractor under obligation to pay those whom it employed to construct the station. It was the principal on a bond given to the railway company for the use and benefit of laborers and materialmen. It did not make its payments to Crombie in its capacity as obligor in the bond. It paid as any debtor pays his creditors. Doubtless the contractor notified the plaintiff of payment to Crombie in order that the plaintiff might press Crombie for money. The contractor did not, however, satisfy its bond to pay materialmen who supplied Crombie with material by notifying them that it had paid Crombie. Crombie could apply his own money in his own way and if the plaintiff had inquired of the contractor how much Crombie had been paid the plaintiff would still have been obliged to apply the money received from Crombie according to Crombie’s direction.
The statute quoted is a substitute for a mechanic’s-lien statute for the protection of laborers and materialmen who aid in railway construction. The lien is upon the bond, as in the case of statutory bonds to protect contributions of laborers and materialmen to public works not subject to lien (Griffith v. Stucker, 91 Kan. 47, 50, 51, 136 Pac. 937), and as in the case of bonds given under section 660 of the code. All these statutes have a common purpose and the decision in the case of Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563, is controlling here. In that case a bond was given under section 660 of the code. A materialman furnished lumber to the contractor. Money paid the contractor on the contract was paid to the materialman without direction as to how it should be applied. The materialman applied the money to the satisfaction of earlier indebtedness for material used in other buildings. The suit was on the bond. It was held that the money paid the contractor was his own money which he could use as he chose. The bond did not require materialmen to watch the source from which money paid them was derived ;• the bond did not require that money received by the contractor under the contract should be paid to materialmen; and no equity existed in favor of the surety requiring that money received by the contractor and by him paid to the materialman should be applied to the debt secured by the bond. The liability of the surety was measured by the bond, which required unconditional payment of the claims of laborers and materialmen. The bond in this case is of the same character and the liability of the obligors is measured in the same way.
In the case of Lumber Co. v. Douglas the surety on the bond was a surety company which signed the bond for profit, and it was held that such a surety is not looked upon with the same favor as a person who voluntarily undertakes to answer for the obligation of another. The same rule applies to the surety on the contractor’s bond in this case. Neither did the contractor voluntarily undertake to answer for the obligation of another as in cases of ordinary suretyship. The statute imposed on the railway company the duty to take the bond for the protection of laborers and materialmen, and a corresponding duty rested on the contractor to give the bond when requested to do so by the railway company. Consequently the contractor is not in a position to ask favors usually accorded an ordinary surety.
In the case of Crane Bros. Mfg. Co. v. Keck, 35 Neb. 683, 53 N. W. 606, cited by the district court, the Crane Company sold plumbing material to Walther, a contractor, who placed it in Keck’s building. Keck paid Walther, who turned the money over to the Crane Company without direction as to how it should be applied. The Crane Company applied it to another account of Walther’s and filed a mechanic’s lien on Keck’s building. The action was one to foreclose the lien. It was held that a creditor’s right to apply money paid by his debtor without direction as to its application was subject to an exception when the money came from a third person whose property would be liable if the money were not applied to relieve the third person of liability. The case of Lee v. Storz Brewing Co., 75 Neb. 212, 106 N. W. 220, cited by the district court, was similar in its facts to the Keck case and the same rule was applied. These decisions are directly opposed to that of this court in the case of Presbyterian Church v. Santy, 52 Kan. 462, 34 Pac. 974. In that case a hardware company furnished material to Thompson, a contractor, to erect a church building. The trustees of the church paid Thompson money on his work and out of this money Thompson paid the hardware company more than the total amount of the material furnished for the building. In the absence of direction by Thompson as to how the money should be applied the hardware company gave him credit on his general account. After-wards the hardware company filed a mechanics’ lien on the building, and in an action to foreclose the lien the trustees contended that the money they furnished should be applied to pay for the hardware which went into their building. The district court gave judgment for the hardware company, which was affirmed on appeal. The syllabus of the decision reads:
“A party paying money to his creditor may direct its appropriation. If he fails to do so, the creditor may apply it on such part of the payer’s mature indebtedness to him as he sees fit.” (¶ 2.)
In the case of Merchants Ins. Co. v. Herber, 68 Minn. 420, 71 N. W. 624, cited by the district court, Herber was an agent of the insurance company and gave bond to discharge his duties and remit premiums collected according to instructions. The instructions were that all premiums were the property of the insurance company, and all collections for any month should be remitted by the fifteenth of the next month. Herber had been a member of a partnership which had acted as agent of the insurance company and which was behind with remittances. The bond did not cover past business. Herber made remittances more than sufficient to cover premiums collected while he acted as sole agent. The insurance company applied them to the old account, and when the agency terminated Herber was still indebted to the insurance company. In denying liability on the bond the court said:
“It is true, as a general proposition, that a surety can not direct 'the application of payments made by his principal, and is bound by any application made by the principal and creditor, or either of them. (Allen v. Jones et al., 8 Minn. 202.) This rule, as thus broadly stated, applies to cases only where the principal makes the payment from funds which are his own, and free from any equity in favor of the surety to have the money applied in payment of the debt for which he is liable. Hence, where the specific moneys paid to the creditor, and applied on a debt of a principal for which the surety is not held, are the very moneys for the collection and payment of which he is obligated to the creditor, he is not bound by such application, and is equitably entitled to have the moneys applied to the payment of the debt for which he is surety, unless the creditor can show that he has a superior equity to have them applied as they were applied.” (p. 424.)
In that case the bond was in fact literally complied with. For other reasons stated in the opinion it furnishes no support for the claim of the contractor in this case.
The brief for the contractor proceeds on the theory that the district court did not approve the verdict for reasons other than those stated on the record and sustained the motion for a new trial generally. The theory can not be made to work. The court carefully stated thé specific ground on which the motion for a new trial was granted. That ground not being tenable, the court erred in granting the new trial.
The judgment of the district court is reversed and the cause is remanded with direction to enter judgment on the verdict. | [
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