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The opinion of the court was delivered by
Dawson, J.:
On October 15, 1913, the defendant, M. S. Gheer, made a written contract with D. L. Allen for the salé of a house and six acres of land in a subdivision near Topeka for $4000. Allen paid $500 on the purchase price, and the contract provided that Allen was to pay the taxes, interest, etc., as they became due, and further provided:
“And it is hereby agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in this contract.”
Allen took possession of the property and Gheer went away to California. Some time afterwards Allen assigned the contract to his wife. The taxes due in December, 1913, were not paid by the Allens, and they were paid by Gheer’s banker to protect his interest. About March 1, 1914, the plaintiff, Mrs. Allen, rented the property to John Spurrier, and he took possession. Gheer returned from California on March 9. Some days later he visited the property and found it in a dilapidated condition, very different from what it was when he had given possession to Allen. About March 20 Gheer called Mrs. Allen by telephone. Her father answered the call, and Gheer told him who he was, and inquired “what they were going to dp in iegard to the place; that the taxes were not paid and the place not well kept.” Gheer met Mrs. Allen about March 24 and once or twice afterwards with a view of effecting a settlement. Gheer paid $20 to Spurrier, the tenant, to vacate the premises, and thus obtained possession about March 31. About April 10 Mrs. Allen offered Gheer the December half of the taxes, and he told her to settle with his attorney, but did not inform her who was his attorney. About April 15 Mrs. Allen’s father, on her behalf, tendered Gheer the interest then due on the contract. Again Gheer told him to settle with his attorney.
Thereupon the plaintiff treated the contract as broken by Gheer, and on April 22 she filed this action for damages, and from a verdict and judgment for $451.50 in her favor the defendant appeals.
The errors assigned chiefly relate to the instructions.
It is first insisted that it was error to give the instruction that even if there was a default the plaintiff could recover if the default was waived. The soundness of this proposition of law is not disputed, but it is contended that since this waiver was not pleaded it was erroneous to permit its consideration. In support of the motion for a new trial the defendant and his counsel filed affidavits, reciting, “that at no time until the court actually read the instructions given to the jury, was there any suggestion made in said Case by any one that the plaintiff or her attorney claimed that there was any question of a waiver of the default in the contract.”
While the general proposition contended for by defendant is correct, that a waiver can not be proved unless pleaded, we think that he should have raised that objection when the evidence was offered. If he did so, no error is assigned thereon. Much of the evidence related to defendant’s conduct and course of dealing with the plaintiff after his return from California which tended to show waiver, and its relevancy does •not otherwise appear.. Nor could it have been much of a surprise to defendant that the court instructed the jury on the question of wáiver, for the defendant was ready with special questions on that phase of the case. These were allowed and answered:
“6. Did defendant waive the default in payment of the taxes for 1913? Ans. Yes.
“7. If you answer the last question in the affirmative then state definitely and in detail all acts or statements you find of defendant that constituted such waiver and when the same occurred? Ans. Failure to take prompt action on March 9, 1914, on defendant’s return from California. That plaintiff tendered the taxes for 1913 to the defendant and that he told her to pay same to The Shawnee State Bank. Offer of defendant to pay plaintiff $100.00 on the surrender of her contract. Defendant’s attempt to communicate by telephone with plaintiff on the subject of the contract. Defendant’s statement to Linge that if plaintiff would live up to her part of the contract he would live up to his part.”
Furthermore, if this question of waiver w.as indeed a surprise to defendant, he might have asked and obtained leave to introduce testimony to contradict the evidence of waiver. If such evidence was not at hand, an adjournment or continuance should have been requested. But, as we read the abstracts, the testimony of Gheer himself went far to prove a waiver, and under the circumstances of this case we can not sanction a reversal for failure to plead a waiver nor on account of the instructions, correct in themselves, which related thereto.
“A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part.” (Civ. Code, § 307.)
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” (Civ. Code, § 581.)
While the cases cited by appellant, Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac. 100; Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; Walker v. Insurance Co., 51 Kan. 725, 33 Pac. 597; and Gillett v. Insurance Co., 53 Kan. 108, 36 Pac. 52, all hold that a waiver must be pleaded, yet they were all decided before the promulgation of the new code. Moreover, the dissenting opinion in Insurance Co. v. Thorp, supra, decided in 1892, clearly foreshadowed the modern tendency, and the one which, at least with the aid of the new code, may be now said to have been crystallized into established law. It was there said:
“Of course, if the question of waiver was a matter of dispute, and the plaintiff relied on the waiver to maintain his action, it must he pleaded before testimony of such waiver can be received over the objections of the company. (Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac. 100:) ‘Where no objection is made to the introduction of evidence, no material error is committed by permitting its introduction.’ (Grandstaff v. Brown, 23 Kan. 176.) If the company recognized the loss, and testimony of that fact was given, as the instructions of the court would seem to indicate, it would cure a defective allegation in the petition, and would warrant us in treating the petition as amended so as to make it uphold the judgment that was given. This court has frequently treated the pleadings as amended for the purpose of upholding the judgment, although no formal amendment was made or requested in the trial court. (Railway Co. v. Caldwell, 8 Kan. 244; Baird v. Truitt, 18 Kan. 124; Gas Co. v. Schliefer, 22 Kan; 470; Grandstaff v. Brown, 23 Kan. 176, 178; Organ Co. v. Lasley, 40 Kan. 521, 20 Pac. 228; Jung v. Liebert, 44 Kan. 304, 24 Pac. 474.” (p. 247.)
In Forney v. Insurance Co., 87 Kan. 397, 124 Pac. 406, it was said:
“The defendant insists that the question of waiver was improperly submitted because not within the issues formed by the pleadings, and also because it was unsupported by the evidence. As the petition did not allege that the insured had performed all the conditions of the contract but simply that the policy was in full force at his death, the logical effect of such allegations would be that the premiums had been paid or their nonpayment had been waived. A motion might have required the plaintiff to set forth whether it was in full force by reason of payment or because of waiver (Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219), but no such motion was made. No application appears to have been made for further time on account of injecting this issue into the case, nothing appears from the record to indicate that the company was injuriously surprised thereby or deprived of the use of any desired or necessary evidence; and as the case was fully tried and all the testimony submitted, the error, if any, does not appear to have been materially prejudicial.” (p. 401.)
In this view of the case, the failure to plead the waiver of the right to forfeit the contract can not justify a reversal of this case.
Exception is taken to an instruction in which the court said: “Both parties are seeking to treat the contract in question as repudiated.” We think this was an accurate statement. The plaintiff treated the contract as repudiated by the defendant and based her action for damages thereon. The defendant treated the contract as broken by the failure to pay the taxes, and through a bargain with the plaintiff’s tenant he recovered the possession of the property. While it is true that the. con tract gave him that right, if promptly exercised, on plaintiff’s default, the exercise of that right was nevertheless a termination of the contract relation between the parties.
Nor was there error in the measure of damages as defined by the trial court. The general finding, with which the special findings completely harmonize, was in favor of plaintiff, and therefrom it must be deduced that the reentry by defendant was wrongful. He kept the plaintiff’s money, and without right took back the property. The very least he should do is to repay the $500. In this case, the rule that the value of the property at the time of the breach is the basis for the measure of damages has no application. The court’s instruction reads:
“14. Under the pleadings in this case both parties are seeking to treat the contract in question as repudiated and at an end so far as carrying out the terms of the same is concerned. If under the instructions given and the facts you find for the plaintiff, then I instruct you that the measure of her recovery is the $500 paid to the defendant on account of the purchase price of, said property at the time of making the contract with interest at the rate of six per cent per annum from the date the defendant took possession of the premises, less the fair rental value of said premises from the time of delivery of possession of the same by defendant to D. L. Allen up to the date when defendant again took possession.”
The plaintiff was entitled to recover the purchase price. (Kimball v. Bell, 47 Kan. 757, 28 Pac. 1015; Kimball v. Bell, 49 Kan. 173, 30 Pac. 240; Robertson v. Talley, 84 Kan. 817, 115 Pac. 640; Monger v. Effland, 87 Kan. 710, 125 Pac. 46; 39 Cyc. 2001, 2003.) If the matter had been pressed on the attention of the court and jury that the property had deteriorated in value while in possession of the Allens, through their fault as testified by the defendant, that of course could have been considered in diminution of damages, but apparently no allowance was asked on that account.
After careful consideration of all the errors assigned we can not see our way clear to disturb this judgment, and it is therefore affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff brought this action under section 522 of the civil code to subject to the payment of certain judgments the salary due the defendant from the county for his services as deputy sheriff. While it was alleged that he was an employee it is admitted in the brief that he was deputy sheriff. The court sustained a demurrer to the amended petition and from this ruling the plaintiff appeals.
While' the language of the section would bear the construction contended for by the plaintiff and given by the supreme court of Ohio in The City of Newark v. Funk & Bro., 15 Ohio St. 462, holding that a city is included in the words “body politic or corporation,” this court in Switzer v. City of Wellington, 40 Kan. 250, 19 Pac. 620, took the contrary position and held that to subject a city to such a proceeding would be against public policy.
It is suggested that as the Ohio statute was made a part of the code of 1868 this decision rendered in 1864 is controlling. The same provision, however, is found in the Compiled Laws of 1862 (eh. 26, §470), except that the words “body politic or corporate” in the code of 1868 read “body politic or corporation” in the present civil code (§ 522). The present provision concerning counties (Gen. Stat. 1909, § 2057) is also found in the Compiled Laws of 1862 (ch. 52, § 1), each of which prescribes that a county shall be a body corporate and politic. While it is settled that under article 12 of the constitution cities are corporations and counties are merely quasi corporations (Beach v. Leahy, Treasurer, 11 Kan. 23; Eikenberry v. Township of Bazaar, 22 Kan. 556; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255), the Switzer case was followed in National Bank v. City of Ottawa, 43 Kan. 294, 23 Pac. 485, holding that considerations of public policy would not allow a city of the second class, a corporation and not a mere quasi corporation, to be liable under process of garnishment. Different courts take different views of this matter. (12 Cyc. 28.) Although the decision in the Switzer case was under an act concerning garnishment in justice court expressly naming corporations, and although it was held that such designation should include only private corporations, the reasoning of the opinion was that to subject public corporations to garnishment would be to turn them into instruments or agencies for the collection of private debts which would be manifestly for private and not for public welfare, and that it would be against public policy to require such corporations to consume the time of their officers or the money in their treasuries in defending suits “ ‘in order that one private individual may the better collect a demand due from another.’ ” (40 Kan. 252.) That case and the one cited in 43 Kan. which followed it involved debts to private persons. Here the salary claimed is that alleged to be due to the deputy sheriff of Wyandotte county, an officer with whose appointment the county has nothing to do and to whom it is required to pay a salary of $1200 a year. (Gen. Stat. 1909, §§ 2193, 3714.) The statute in question mentions “any money, goods or effects which he may have in the possession of any person, body politic or corporation.” (Civ. Code, § 522.) It can hardly be said strictly that an officer of a county entitled to a salary of $100 a month has in the possession of such county any money, goods or effects. It is not like the case of condemnation money paid into the treasury ready to be turned over to the proper party. It is not like a document or article of property in the possession of the municipality to be turned over on demand. It is simply the ordinary case of a right to salary earned. It is not money, it is not goods, it is not effects in any literal sense; it is merely the right to a warrant drawn upon the treasury which when received and endorsed may be cashed.
While this is not a direct proceeding in garnishment, but more in the nature of a proceeding in aid of execution, the result is the same and the objections are the samé. For unless expressly commanded by the legislature the officers of a county should not be compelled to devote their time and attention or that of their law officers to making appearances in garnishment cases or to the defense of proceedings of this character to subject the salaries of officers to the payment of judgments in favor of third parties. Again, when the garnishment statute was amended in 1889 (Laws 1889, ch. 151) it was provided that any creditor shall be entitled to proceed by garnishment in the district court of the proper county against any person excepting a municipal corporation. In Eikenberry v. Township of Bazaar, 22 Kan. 556, in discussing the distinction between corporations and quasi corporations it was said:
“The theory of these various decisions is, in effect, that such organizations* though corporations, exist as such only for the purposes of the general political government of the state; that all the powers with which they are intrusted are the powers of the state, and all the duties with which they are charged are the duties of the state; that in the performance of governmental duties, the sovereign power is not amenable to individuals and therefore these organizations are not liable at the common law for such neglect [leaving a highway defective] and can only be made liable by statute.” (p. 561.)
(See opinion written by Justice Dawson when assistant attorney-general in Fourteenth Biennial Report of the Attorney-general, 1903-1904, p. 29, and authorities cited.)
In Rathbone v. Hopper, 57 Kan. 240, 45 Pac. 610, it was held that the term “municipal corporations” may include townships. The statute there under consideration was the' refunding act of 1879 (Laws 1879, ch. 50), “An act to enable counties, municipal corporations, the boards of education of any city, and school districts, to refund their indebtedness.”
In the opinion it was said:
“A township, is generally spoken of as a municipality or municipal corporation, but, strictly speaking, every political subdivision of the state organized for the administration of civil government is a quasi corporation. In this respect they ■ are placed on the same plane as counties and school districts. ... In the broader sense and in common usage the term ‘municipal corporations’ includes counties and townships.” (p. 242.)
The reasoning of that decision and the. authorities cited lead to the conclusion that the statute exempting municipal corporations from garnishment was intended by the legislature to exempt counties as well as cities.
The Switzer case was decided in 1888 and it was quite natural that the legislature in revising the garnishment law the following year should exempt municipal corporations, and it is held that the intention thus expressed was to include and exempt counties as well as cities.
The ruling of the trial court is affirmed. | [
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'The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff recovered judgment for the foreclosure of a mortgage. W. M. Dickson, one of the defendants, appeals.
July 28, 1913, M. C. Schaeffer, being then the owner of the land in controversy, conveyed it by genéral warranty deed to A. R. Rhine. This deed contained the following:
“Same to be free and clear of all encumbrance except one first mortgage of Twenty Five Hundred Dollars ($2500) and interest at the rate of 6% from Mch. 3rd, 1913 and a second mortgage of Seventeen Hundred and Fifty Dollars ($1750) due Jan. 1st, 1914 which said second party assumes and agrees to pay. The lease on the above described land accompanies this transfer.”
August 3, 1913, M. C. Schaeffer executed a mortgage on the land in controversy to W. E. Bacon for $1750. This mortgage was due January 3, 1914, but was not recorded until February 9,1914.. January 17, 1914, A. R. Rhine conveyed this land by general warranty deed to defendant W. M. Dickson. This deed was recorded January 20, 1914. It contained no mention of any $1750 mortgage. There was no evidence that W. M. Dickson had any actual notice of the existence of the $1750 mortgage. This mortgage was assigned to the plaintiff, and in this action she seeks to foreclose it.
Dickson in his answer denied the execution of the mortgage, and alleged that there had been no consideration therefor, that at the time of the execution of the mortgage the land was the property of W. M. Dickson, that M. C. Schaeffer was never the owner thereof, that it had been conveyed to defendant Dickson by warranty deed from A. R. Rhine and his wife on January 17, 1914, that the deed had been filed for record January 20, 1914, and that the assignment of the note and mortgage to the plaintiff was without consideration. Dickson did not allege that he was the purchaser of the real property without notice of the mortgage sought to be foreclosed.
W. M. Dickson’s sole contention is that the recital in the deed from Schaeffer to Rhine is not sufficient to constitute notice to Dickson and to remove from him the protection against an unrecorded mortgage which he would have under the statute, that he stands as a bona fide purchaser of the land, for value, and without notice of this mortgage. The plaintiff in response to this, argues that the question presented by defendant Dickson was not raised in the pleadings and was not in issue at the trial.
We will leave the question presented by the plaintiff, and address ourselves to the one presented by Dickson. Our recording act must be considered in the determination of this question. Section 1670 of the General Statutes of 1909, reads:
“Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is situated.”
Section 1671 reads:
“Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.”
Notice the last clause of section 1671: “all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” With notice of what? With notice of the contents of all the prior recorded deeds and mortgages. The deed to the grantor of defendant Dickson recited a $1750 mortgage, and the grantee in that deed assumed and agreed to pay that mortgage. W. M. Dickson purchased with notice of that recital. Inquiry of his grantor and at least of his grantor’s grantor would have revealed this $1750 unrecorded mortgage.
“A purchaser of land must look to the title-papers under which he purchases; and he is chargeable with notice of the facts appearing upon their face, and also with knowledge of all facts suggested therein, and which, with the exercise of reasonable prudence and diligence, he might have ascertained.” (Knowles v. Williams, 58 Kan. 221, syl. ¶ 2, 48 Pac. 856.)
(See, also, Frazier v. Jeakins, 64 Kan. 615, 617, 68 Pac. 24; Moore v. Griffin, 72 Kan. 164, 166, 83 Pac. 395; Faris v. Finnup, 84 Kan. 122, 125, 113 Pac. 407; Mining Co. v. Atkinson, 85 Kan. 357, 361, 116 Pac. 499; Newby v. Fox, 90 Kan. 317, 325, 133 Pac. 890.)
The judgment is affirmed. | [
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The opinion of the court w.as delivered by
Johnston, C. J.:
This action was brought to contest a will purporting to have been made by William Ahnert, who died August 24, 1914. As the result of an early marriage, a daughter was born who is designated in the will as Mrs. Jake Lay. In 1876 he was married to Lena Ahnert, and from that marriage six children were born, named William," Albert, Bertha, Walter, Nellie and Louis. In 1903 he obtained a divorce from Lena, who was given the custody of the minor children, and the property rights of the parties were adjudged. He married Ernestine Uhleman on January 15, 1908, and from that marriage no children were born, but she had two daughters by a former marriage, one of whom became the wife of Albert Ahnert, the son of the testator, and her other daughter married Arnold C. Hitz. It appears that an antenuptial contract between him and Ernestine had been made under which each was to own and control and finally dispose of his or her own prop erty free from any right of or interference by the other, except that at his death she was to receive $2000 and some property. In the will his son Albert was given a tract of land on the condition that he should pay to the estate $8500, including a $2000-mortgage on his property. Arnold C. Hitz was given a half section of land in Gray county, Kansas, while his sons Louis and Walter were each given $1000. His son William was given $5, his daughter, Mrs. Jake Lay, $5, and to his daughters Bertha and Nellie he gave each certain city lots in Hudson which are said to be of little value. He gave his wife, in addition to the $2000 provided for her by the antenuptial contract, city property of considerable value and the residue of his personal property. He also made a gift of $145 to the German church in Hudson. All of the sons, except Albert, to whom a bequest was made, and the two daughters joined in contesting the will, alleging that it was not in fact executed by the testator; that-his name was attached to the will by another; that it was never read to him, and that he did not know or understand its contents. It was also alleged that it was executed when he was in a dying condition and did not have capacity to make a will. There was a further allegation that his wife and her daughter, Mrs. Hitz, exercised an undue influence over him and fraudulently induced him, in his weakness, to disinherit his own children and give the greater part of his estate to his wife and her daughter. A jury was called to aid the court in determining the facts, and special findings were returned that were somewhat conflicting, and some of them were not approved by the court. The jury found that the will was executed at the instance of the testator; that he dictated its terms, and that at the time of its execution he had mental capacity sufficient to understand the character, locality and extent of his property and its value, and that he knew-the manner in which it was being disposed of arid the persons to whom he was giving it. On the other hand, the jury found that he was not in full possession of his mental faculties when the will was executed; that he was unduly influenced by his wife, and that she exercised undue influence over him by continually nagging him about making a will. The court disapproved the latter-findings, holding that there was no evidence to sustain the findings of undue influence and no testimony in the case that she had ever spoken to him as to the manner in which he was to dispose of his property or the persons to whom he would give it. The court found, too, that the testator had mental capacity to make the will, and accordingly it was adjudged to be valid.
The questions presented for decision on this appeal are: Did the testator have mental capacity to make a will? Was it in fact executed by him? and was he unduly influenced to execute the will so that it expressed the mind of another rather than his own ? These are questions of fact, and under the testimony in the case must be deemed to be settled by the findings and judgment of the trial court.
A question has been raised as to the capacity of the testator to make the will, principally because it was executed just a few minutes before he died. His last sickness was of but two or three days’ duration. The day prior to his death he sent for a neighbor, with whom he had done considerable business, to write his will, and upon the arrival of the scrivener the testator gave him a description of the property and the names of the persons to whom it was to be given, and appeared to have no difficulty in describing the property which he owned or in stating the names of his children as well as the persons to whom he desired to give his property. The scrivener made notes of his directions, and after each notation was made it was read to him and received his approval, and the notes so made were used in preparing the will. This was done on Sunday, and the testator as well as the scrivener had an opinion that a will could not be legally executed on Sunday. It was arranged then to prepare the will and have it executed after midnight, and the testator watched the clock and indicated considerable anxiety lest he should not live until Monday. After the will was written it was read to him in the presence of the witnesses, and he called their attention to the fact that they had overlooked the gift to the German church, which indicated that his memory was stronger than that of the scrivener. Just after midnight a table was brought to the bedside and the will, as prepared and read, was laid before him and he was then able to sit up without assistance, but when he undertook to sign his name he was very nervous and requested the scrivener to write his name and that he would make his mark, and this was done. The will had been previously read to him in the presence of witnesses, and they signed it in his presence at the time his name was attached to the instrument. About twenty minutes later he passed away. His illness was of an asthmatic character, and he experienced' considerable difficulty in breathing, but the testimony tends to show that when he executed the will his mind was clear and the contents of the will were understood and approved by him. Having mental capacity, the execution is not insufficient because he only made his mark when his name was written by another. The hand may be guided or the signature written by another, the testator making his mark, without impairing the validity of the signature, providing it is done by his direction and in his presence. (40 Cyc. 1102.)
On the question of undue influence there is little room for the contention that the evidence is insufficient to support the finding of the court. It is argued that the fact that he devised the Gray county land to Hitz instead of his own sons Walter and Louis is a circumstance tending to show that he must have been under some undue constraint when the will was made. Testimony was offered to the effect that shortly after purchasing the land he expressed an intention to give it to these sons. He had stated to the sons and to others that his purpose was to place the sons on the land if they would furnish teams and implements, and ultimately to give it to them They did not furnish these farming facilities and they were not given the land or its possession. The change of mind may have been occasioned by his fear that, they would not have the means to improve and properly farm the land, or it may have been an apprehension that they would be unable to pay the mortgage lien that existed against the land, or it may have been because the boys had always made their home with their mother from whom the testator had been divorced and they had failed to visit at his home after his marriage to Ernestine. It is said to be an unnatural act to give the property to his wife’s son-in-law instead of his own sons, but the mere fact that a testator may make an unnatural disposition of his estate does not raise a presumption of fraud or undue influence. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634; 40 Cyc. 1154.) It is not uncommon for testators to give to one child in preference to another or to disinherit entirely members of their own families, and many go so far even as to bestow their bounties on strangers who have no claim upon them to the exclusion of relatives. As the property was owned by the testator he could make such disposition of it as he pleased, and if he had testamentary capacity and no undue influence was exercised upon him no one can question his choice of beneficiaries nor can any court set aside the will which he chose to make in conformity to the statutory requirements.
It is said that his wife and those to whom his property was given were close to him during his illness while his own children were not brought in until shortly before his death. It is true that the beneficiaries of his will had an opportunity to exercise an influence over him. His wife especially had an opportunity as well as a motive to influence his mind as to the disposition to be made of his property, but, as said in Ginter v. Ginter, supra, “the authorities are unanimous that power, motive, and opportunity to exercise undue influence do not suffice to authorize the inference that such influence has in fact been wielded.” (p. 741.) It was also determined in that case that while unequal and unnatural provisions in a will may be considered in determining whether the will was the free act of the testator, they do not of themselves shift the burden of proof which rests upon those who assert that undue influence was exercised. While the wife on the day before his death twice mentioned the fact that a will had not been made by the testator, it is not shown that she took any part in the making of the will nor that she attempted to influence or control the disposition of the property. Objection was made to the exclusion of remarks made at one time by the testator to the effect that he wanted his boys to go out to Gray county and farm his land. It appears, however, that the testimony was subsequently received so far as it went to show his relations with his sons. The testimony had little to do with his state of mind when the will was made. Besides, there was considerable testimony of statements made by him, not only that he wanted the boys to go out and farm the land, but also of a purpose to give the land to them. Evidently there was a change of purpose in this respect as he made a different disposition of the land. A letter said to have been written by the testator to his brother about two years before his death was offered in evidence which upon objection was excluded. It appeared to be incomplete, part of it written with a pen, part with a lead pencil, and a part of it seems not to have been in his handwriting. Nothing in the letter was pertinent to the case except a statement that he had purchased the Gray county land, which he said was to be for his two youngest sons, and these facts were brought out in the testimony and received without objection. The exclusion of the letter furnishes no ground for a reversal of the judgment. It will be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
These actions involve the question whether or not appointments to certain committees by the national president of the Knights and Ladies of Security require the approval of the national executive committee.
The Knights and Ladies of Security is a fraternal beneficiary society operating under chapter 23 of the Laws of 1898 (Gen. Stat. 1909, § 4303 et seq.). The supreme governing body is the national council. The laws of the order consist of a constitution comprising eight articles and a code of laws comprising numerous sections. Article 4 of the constitution provides for a national executive committee and several other committees, including a law committee. Section 2 of article 4 reads as follows:
“The National Executive Committee shall be composed of the National President, National Secretary, and three other members to be elected by the National Council. The other committees shall be composed of three members each, to be appointed by the National President, as soon after his election and installation as is practicable, who shall be ex officio members of the National Council.”
The national president made the appointments which he is authorized to make, including the appointment of H. P. Farrelly as a member of the law committee. Section 56 of the laws of the order reads as follows:
“Any appointment made by the National President to committees shall not become effective until approved by the National Executive Committee.”
The national executive committee refused to approve the national president’s appointments. In the first case the national president asked for a writ of mandamus to compel the national executive committee to approve his appointments. Farrelly intervened, claiming his appointment was valid without the approval of the national executive committee. The other proceeding is one of quo warranto, brought against Farrelly to test his authority to act as a member of the law committee without approval of his appointment by the national executive committee. The decision in each case depends on the effect, if any, to be given section 56 of the laws of the order.
The Knights and Ladies of Security was organized in 1892 as a body corporate, without capital stock, under the provisions of section 1 of chapter 89 of the Laws of 1879, relating to the organization of benevolent associations. Under that act it had the same power to make by-laws for the regulation of its affairs as other corporations, that is, as provided in section 19 of chapter 28 of the General Statutes of 1868, which reads as follows:
“The directors or trustees may adopt by-laws for the government of the corporation; but such by-laws may be altered, changed or amended by a vote of the stockholders, at an election to be ordered for that purpose by the directors or trustees, on the written application of a majority of the stockholders or members.” (Gen. Stat. 1909, § 1737.)
Since there were no stockholders the board of directors alone had power to enact by-laws. (Steele v. Telephone Association, 95 Kan. 580, 582, 148 Pac. 661.) Probably this method was not followed, and whatever laws the society had for its government depended on adoption by acts and conduct of the.society and its officers rather than by express vote or written manifestation of the board of directors.
In June, 1898, the order had a lodge system with ritualistic form of work and a representative form of government. Mem bers of the order were united in subordinate councils/ under the jurisdiction and control of the national council. Subordinate councils were entitled to send representatives to meetings of- the national council. The presiding officer of a subordinate council was called the president. The organization and government of the society was provided for in a constitution comprising ten articles and a code of laws comprising sixteen articles divided into numerous sections. The constitution related to fundamental subjects, indicated by the following article headings: Article I, Name, Purpose, System and Territory; Article II, National Council — Composition and Powers; Article III, Officers of National Council; Article IV, Committees, and their Duties; Article V, Beneficiary Certificates; Article VI, Reserve Fund; Article VII, Membership; Article, VIII, Who Only May be Beneficiaries; Article IX, Officers of Subordinate Councils; Article X, Amendments. The national council was given supreme legislative authority, including power to amend the constitution. Power to amend the constitution was limited by article 10, as follows:
“This Constitution may be amended in the following manner, and none other: All proposed amendments shall be made in writing and signed by five Past-Presidents, and sent to the National Secretary not later than ninety days prior to the meeting of the National Council, when it shall be the duty .of the National Secretary to have the same printed and to send a copy to each Subordinate Council and to each representative. All amendments to be in force when adopted and promulgated by the National Council.”
This article remained in force until 1906, when it was changed in some particulars, but the requirement of a written proposal signed by five persons belonging to a designated class, transmitted to the national secretary before the meeting of the national council, and service by the national secretary of a printed copy of the proposed amendment on each duly elected subordinate council representative, has never been departed from.
Article 15 of the laws provided for their amendment, as follows:
“These Laws may be amended by a majority vote of the National Council at any regular meeting, and all amendments shall take effect and be in force from and after the publication of the same in the 'Journal of Proceedings of the National Council, or as otherwise ordered.”
Section 2 of article 4 of the constitution gave the national president power' to appoint members of named committees other than the executive committee, including members of the law committee, who became ex officio members of the national council. This section of this article has been changed in some particulars not material here, but it has never been amended in respect to the power of the national president to appoint members of committees of the national council other than the executive committee.
Such was the constitution of the order when the statute of 1898, providing for the organization and regulation of fraternál beneficiary societies, orders and associations, was passed. (Laws 1898, ch. 23.) Section 1 of the act of 1898, as amended by section 1 of chapter 147 of the Laws of 1899, reads in part as follows:
“A fraternal beneficiary association is hereby declared to be such a corporation, society or voluntary association of individuals, formed or organized into a lodge system with ritualistic form of work, or composed of members of an order or society having a lodge system with ritualistic form of work, or of such members, their wives, widows; or daughters, as shall make provision for the payment of benefits in case of death, sickness, or temporary or permanent disability, and shall be carried on for the sole benefit of its members and their beneficiaries, and not for profit. Every fraternal beneficiary association as herein defined shall have a representative form of government, with provisions for corporate meetings, and, subject to compliance with its constitution and laws, shall make provision for the payment of benefits in case of death, and may make provision for payment of benefits in case of sickness, temporary or permanent disability, either as a result of disease, accident, or old age.” (Gen. Stat. 1909, §4303.)
Section 7' of the act of 1898 provided that the organization of a fraternal beneficiary society might be'accomplished by filing with the superintendent of insurance a signed and acknowledged document which, on approval and on compliance with certain formalities and the payment of certain fees, became its charter under the name of articles of association. It was provided that articles of association should state among other things the following:
“The object or purpose for which the incorporation is sought, including the plan of organization and method of conducting the business, in- eluding- provision for corporate meetings for the adoption or amendment of articles of association and by-laws and the election of officers.” (Gen. Stat. 1909, §4309.)
Societies already organized and having the right to do business within the state as provided by the act were entitled, on compliance with certain conditions, to certificates authorizing them to do business within the state. (Gen. Stat. 1909, § 4308.) Privilege to reincorporate under the act was granted (§ 4308), but all fraternal beneficiary societies, as defined by section 1 of the act, were to be governed by the provisions of the act and were exempted from the provisions of other insurance laws (§4303). Societies organized under the act were created bodies corporate with power to adopt by-laws and with power to amend articles of association in the manner prescribed by by-laws.
The organization and scheme of the Knights and Ladies of Security corresponded so well to the legislative requirements that reincorporation was not necessary. What is now section 56 of the laws of the order, placing a limitation on the constitutional power of the national president to appoint committees, came into the code in the year 1900 as a simple law enacted under the national council’s ordinary legislative power, and not as an amendment to the constitution and without the constitutional provision relating to amendment of that document having been changed.
The legislature of 1898 dealt with conditions as it found them. Many corporations and voluntary associations of the mutual benefit kind were doing business in the state. They had adopted rules for their own government. It was customary to divide these rules into two parts, the constitution and the laws or by-laws. In the constitution the name and purposes of the association were usually specified and the general frame of the government set forth. The provisions of the constitution were always regarded as fundamental and special restrictions on the method of changing them were habitually imposed. In the by-laws, rules for the conduct of the affairs of the association under the constitution were stated, and because frequent modification to meet changed and changing conditions might be necessary, little formality in amending them was required. Once adopted, whether by a corporate or by an incorporate society, the constitution was regarded as the fixed and permanent agreement between members, officers and constituent and governing bodies, and interested persons felt, and had a right to feel, that it would not be abrogated or changed except in strict compliance with the method underwritten in the/article relating to amendment. Perhaps in the case of incorporated societies the popular view of the distinction between constitution and by-laws cut across legal theories, but that view persisted and predominated nevertheless. When the notion of the mutual benefit society became clearly conceived associations multiplied with great rapidity. Promoters and managers often reaped considerable profit and advantage and sometimes some distinction, and there were frequent struggles for the control of organizations. The rights of members and beneficiaries became a subject of great importance and the integrity of adopted rules of associated life became a matter of serious social concern. When the legislature approached the subject of regulating fraternal beneficiary associations it took cognizance of the fact that the thoughts, habits and practices of the people had refused to conform to the grooves of the law relating to private corporations organized for profit and having capital stock, and recognized in the first section of the act of 1898 that such an association would have “its constitution and laws.” Before 1898 corporate charters were not required to contain anything with respect to the adoption and amendment of bylaws, and, as already indicated, the enactment of by-laws was left entirely to boards of directors and trustees, subject to modification by stockholders at stockholders’ meetings ordered for the purpose. By the act of 1898 corporate charters were required to set forth the plan of organization, including provisions for the adoption and amendment of by-laws. Whatever these provisions may be they are portions of the articles of association, and officers, committees, legislative bodies, subordinate bodies, members and beneficiaries are all bound by them. They are fundamental in character and can not be changed except according to rules lawfully prescribed. Supreme legislative bodies, formerly clothed with power to make and unmake rules, whether stated in the form of constitution or of by-laws, and consequently with power to execute legislative coups, are no longer supreme but must act according to charter limitations. Indeed, the popular notion of the supremacy of the constitution of a society over its legislative body has triumphed and has been given expression in the statute book so far as mutual benefit associations are concerned.
After the act of 1898 took effect the Knights and Ladies of Security could not continue to do business unless its plan of organization and method of doing business corresponded to those of corporations which might'be formed under the act. Its plan of organization and method of doing business did conform to the statute and reincorporation was not necessary. Essential features of articles of association under the statute were embraced in the constitution, which included express provisions fully covering the subject of • amendment. Other matters were covered by by-laws which contained a provision relating to their amendment. Without the statute simple good faith on the part of the national council required that it should not arbitrarily disregard provisions of the constitution, whatever its strict legal power might.be, and the court is of the opinion the purpose of the statute was that constitutional provisions of corporations continuing in business without reincorporation should be regarded in the same light as articles of association of corporations formed under the act, so far as they relate to the same subjects, including stated provisions for amendment.
The constitutional provision giving the national president power to make appointments to office was important because it related to the subject of membership in the national council, a material feature of the plan of organization, and the power granted could not be infringed upon except by an amendment of the constitution adopted after written proposal signed by qualified persons and service of printed copies on elected representatives of subordinate councils.
Conflicts between provisions of the by-laws of a fraternal beneficiary society are to be resolved in the same manner as conflicts between statutes. Supposedly conflicting provisions are to be harmonized and each given effect if possible. It is not easy to give any effect to law 56. While the national council could not limit the national president’s power of appointment without a constitutional amendment, it had plenary power over the executive committee, and so far as the executive committee is concerned could require it to approve the national president’s appointments. Perhaps such approval might serve as a sort of authentication or attestation or witnessing of the national president’s act.
It is argued from evidence taken that the right of the executive committee to approve or disapprove appointments under law 56 has never been questioned. On the other hand it is argued that appointments of the national president have always heretofore been accepted and approved without question. The constitution is no longer a matter between friends, and the court prefers to rest the rights of the parties on the written laws of the order.
Because a regular meeting of the national council was about to be held, decisions of the two cases were announced as soon as possible after the hearing. The foregoing opinion states the reasons for the decisions. The executive committee approved the national president’s appointments and thus obviated all necessity for the issuance of a writ against them. Both proceedings were prosecuted in an official capacity and subserved the same purpose, an interpretation of the laws of the order. They will be treated as having been consolidated and the costs will be taxed to the national council, the plaintiff in the quo warranto proceeding. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it for commission on the sale of machinery. The plaintiff was engaged in the retail mercantile business at Tonganoxie, and had a hardware and implement department. The defendant was engaged in the wholesale implement business. The plaintiff was the agent of the defendant- at Tonganoxie for the sale of the implements and machinery sold by the defendant, receiving as compensation commission on the sales made by the plaintiff for the defendant. In June or July, 1913, Mr. Gaston, an agent of the defendant, went to the plaintiff’s place of business and induced the plaintiff to undertake the sale of a certain ensilage cutter known as the Smalley cutter, and procured an order for one cutter, signed by a clerk in the plaintiff’s store. This agent of the defendant, and others who went to the plaintiff’s place of business in a short time thereafter, were taken by the plaintiff to various farmers in the country surrounding Tonganoxie, in an effort to sell them this ensilage cutter. In so doing they found that some of the prospective customers desired a different cutter, and that others wanted engines to operate cutters. They began negotations with these farmers looking to the sale of ensilage cutters and engines. Before these negotiations had been completed, the defendant, through its agent, went to other implement dealers in Tonganoxie, and through them sold the cutters and machinery to the prospective purchasers in the country at prices less than those offered by the plaintiff. The plaintiff-claimed its commission for these sales. The defendant refused to pay, and the plaintiff brought this action to recover the commission.
The defendant contends that the court erred in giving a number of instructions. We have examined these instructions. They concern the liability of a principal to his agent for commissions, where the agent has begun negotiations which finally culminate in a sale of the property of the principal to some third party. Seven different instructions are complained of. We have examined them. They state the law correctly as it has been repeatedly declared by this court. No good purpose will be served by setting out these instructions or any of them in detail.
The defendant complains of the refusal of the court to give the following instruction:
“Gentlemen of the jury, you are further instructed that a contract from the Parlin & Orendorff Plow Co., with the Zellner Mercantile Co., to the effect that the Zellner Mercantile Co., should have the exclusive agency to sell the implements of the said Parlin & Orendorff Plow Co., in Tonganoxie and vicinity, is in restraint of trade and is, therefore, illegal and void.”
This matter is governed by section 1649 of the General Statutes of 1909, which reads in part as follows:
“A person, firm, corporation or association of persons doing business in this state shall not make it a condition of the sale of goods, wares or merchandise that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation, or association of persons, but the provisions of this section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of, goods, wares or merchandise.”
The statute excepts from its provisions such arrangements as were made by the plaintiff with the defendant for the sale of the Smalley cutter.-
Another of the defendant’s complaints is that the court erred in refusing to allow the defendant to introduce the order for an ensilage cutter signed by the plaintiff’s clerk, Mr. Young. This order was introduced in evidence and read to the jury. (See pp. 49, 50 of the transcript.) This complaint will not be further considered.
Another complaint is that the verdict is contrary to the evidence and the law. The evidence supports the conclusion reached by the jury under the instructions, and the instructions correctly state the law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
WEST, J.:
The plaintiff appeals from an order sustaining a motion for judgment on the pleadings in favor of the defendant. The second amended petition alleged in substance that in 1865 plaintiff obtained from the defendant insurance on his life in the sum of $5000 under the ten-year plan, calling for ten annual payments of $234.50 each, the policy being numbered 30,946, the plaintiff’s wife, Mary C. Hayes, being made the beneficiary therein; that the ten annual payments were duly made and that the policy is in full force and effect; that in 1868 Mary C. Hayes obtained a divorce and afterwards married Thomas Foster and lived with him until he died in 1908; that under the terms and conditions of the policy certain dividends were to be paid; that there was due approximately $2000 for which the plaintiff asked an accounting; that Mary C. Hayes upon her divorce ceased to have any insurable interest in the plaintiff’s life; that when plaintiff applied for the policy he made the application himself, naming himself as the insured and his wife as the beneficiary, and signed the application C. Hayes; that the policy delivered to him was in his possession about three years; that after her divorce, Mary C. Hayes took possession of it, and it was alleged on information and belief that she thereafter, with the connivance of the defendant, had the application changed so as to read that she was the applicant for the insurance upon her husband’s life and the copy of her application was set out as an exhibit; that the purported signature thereto of Mary C. Hayes, per C. Hayes, was not correct; that the policy further provided that the plaintiff might at his election, upon notice to the company, change the beneficiary; that the plaintiff being in his seventy-fifth year, and having eight children who were his only legal heirs, desired to have them made beneficiaries instead of his former wife; that the defendant refused to make them beneficiaries, but still recognized the divorced wife to be his legal heir and the beneficiary of his life policy. It was sought to make Mary C. Foster a party and require her to set up her claim or interest in the policy, to have her decreed to have no right or interest as beneficiary therein, and to have the defendant directed to change the beneficiary as suggested.
The answer admitted the execution of policy No. 30,946 to Calvin Hayes, and set out a purported copy - thereof, and admitted that it was issued pursuant- to the declaration and application set out in the second amended petition; that Mary C. Foster had ever since the issuance of the policy been a resident of Ohio and still has possession thereof in the state of Ohio; that she had never been a resident of Kansas nor had her policy ever been within the jurisdiction of this state, and that no valid service of summons had been made upon her, or could be made so long as she was a resident of Ohio and held the policy at her place of residence. To this plaintiff filed a reply in the nature of a general denial. It appears that the summons by publication upon Mary C. Foster was quashed.
“Exhibit A,” the application, recites that it was made by Mary C. Hayes, wife of Calvin Hayes, and appears to be signed Mary Hayes, per C. Hayes. The policy, “Exhibit B,” contains no provision for a change of beneficiary. The appellant’s counsel in his brief talks about the by-laws of the company and a statute of New Jersey, but the abstract does not advise us what that statute is. It was not pleaded and is found only in counsel’s brief. Counsel says:
“We think that, under the terms of the policy as set out in appellant’s petition, construed with the terms and conditions of the by-laws of the insurance company and the state statute, which together constitute the contract of insurance between appellant and this insurance company, the appellant is entitled to recover the dividends and interest thereon, and to have the court direct this company to accept the legal heirs of appellant, his eight children, as the beneficiaries of his life policy, rather than Mary C. (Hayes) Foster, who for forty-eight years has been and is now a stranger to him under the law, who was for over forty years the wife of another man, who was rich and left his widow, Mary C. (Hayes) Foster, an ample fortune.”
Neither do the abstracts inform us as to the affluence of the second husband. Opposing counsel also state in their brief that no mention of the policy of insurance was made in the divorce decree, but we are unable to find this anywhere in the record or in the allegations of either party.
It will be observed that the answer sets out the application and the policy which it alleges were made and issued. Their execution was not denied under oath, and therefore they must be taken to have been as set forth in the answer. (Civ. Code, § 110; Mikesell v. Wilson County, 82 Kan. 502, 108 Pac. 829; Rose v. Boyer, 92 Kan. 892, 141 Pac. 1006; Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019; Read v. Dodsworth, 95 Kan. 117, 147 Pac. 799; Stinson v. Bell, 96 Kan. 191, 193, 150 Pac. 603.) This being so, it follows that the defendant company was entitled to judgment on the pleadings.
The other questions presented need not be considered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin the defendant from collecting water by means of a tile drainage system on his farm and discharging it upon the plaintiff’s farm through a six-inch pipe and a ditch. The plaintiff recovered and the defendant appeals.
The six-inch pipe was laid in a ditch through what is called a ■hogback near the line dividing the two farms. The pipe ends on the defendant’s farm nineteen feet from the line. It empties into a dug ditch leading to a depression on the plaintiff’s land through which water naturally finds its way to Lath Branch, a creek emptying into the Marmaton river. The plaintiff’s contention was that before the defendant installed his tile drainage system only a small quantity of surface water, not enough to interfere with use of the plaintiff’s land, found its way from the defendant’s land to the depression. The tile drainage system collected surface and subsurface water which would not have reached the plaintiff’s land and discharged it upon plaintiff’s land in such quantities that it uncovered the roots of trees, even washed out one tree, and prevented the plaintiff from farming his land. The defendant justified under the statute of 1911, which reads as follows:
“Section 1. A lower owner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing the flow of surface water onto his land to the damage of the adjacent upper owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood water from such natural watercourse; provided, that the. provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporate city.
“Sec. 2. Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, whereby the water will be carried into some natural watercourse, or into any drain upon a public highway, for the purpose of securing proper drainage to such land and when such drainage is wholly upon the owner’s land he shall not be liable in damages therefor to any person or persons or cor poration; provided, that owners of land constructing an outlet to a drain upon any public road shall leave the road in as good condition as it was before the drain was constructed, the question as to such condition to be determined by the board of county commissioners and the county engineer, in counties having a county engineer, and in other counties the county surveyor.” (Laws 1911, ch. 175.)
The journal entry of judgment reads as follows:
“The prayer of the plaintiff’s petition should be sustained to the extent that defendants should be prohibited from further permitting the discharge of water from the present outlet of the six inch tile drain from which the water runs from defendants’ lands on to and across a portion of the plaintiff’s lands for that there was not at such point of discharge what is known or recognized by the court as a natural water way.”
The first section of.the act of 1911 changed the rule that surface water is a common enemy which every landowner may fight and forbade interference by a lower proprietor with the flow of surface water from lands of an upper proprietor. The second section of the act gave landowners the right to drain their lands in the general course of natural drainage by means of open or covered drains but attached the condition that such drains should carry the water to a natural watercourse. The question is, What is a natural watercourse ?
The defendant would have the term watercourse include any natural depression having reasonable limits as to width along which water is accustomed to flow. . At the time the statute was enacted the term had a long-settled and well-understood meaning in this state, which accorded with the generally accepted meaning elsewhere. It excluded depressions in the land lacking the characteristic of a distinct channel cut in the soil by force of running water and having a bed and banks discernible by casual glance. (Gibbs v. Williams, 25 Kan. 214; Rait v. Furrow, 74 Kan. 101, 85 Pac. 934.) The usual signification clearly attached to the term as used in the first section of the act and the court has no reason to believe the legislature intended it should mean something entirely different in the second section. Whether or not correct rules of drainage have heretofore prevailed, the term watercourse has been employed in the law of drainage as elsewhere to distinguish a course having an eroded channel with clearly distinguishable bed and banks from simple depressions lacking that characteristic. If the legislature had intended the word should henceforth mean the very thing from which its definition had previously distinguished it, some indication of the change would certainly have been given.
It is said that the statute was copied from a statute of the state of Illinois and that the supreme court of Illinois assigns to the word, watercourse, as used in the statute, the broad meaning for which the defendant contends. (Lambert et al. v. Alcorn, 144 Ill. 313, 33 N. E. 53, 21 L. R. A. 611.) What happened was this: In the earlier case of Peck et al. v. Herrington, 109 Ill. 611, the Illinois court, in announcing rules of law relating to drainage, in effect broadened the commonly accepted definition of watercourse to include depressions and swales. Afterwards the legislature passed an act substantially adopting the court’s drainage rules. The legislature did not, however, adopt the court’s definition of a watercourse. On the other hand it used the term, watercourse, in the usual sense and ac- • complished the purpose in view by adding the words italicized in the following transcript from the statute:
“Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural water-course, or into any natural depression, whereby the water will be carried, into some natural water-course, or into some drain on a public highway with consent of the commissioners thereto; and when such drainage is wholly upon the owner’s land, he shall not be liable in damages therefor to any person or persons or corporation.” (Rev. Stat. Ill. 1891, ch. 42, § 78, 3 Ill. Stat. Ann. § 4478.)
All the court had to say in the Lambert-Alcorn case about the statute, besides quoting it, is contained in the following extracts from the opinion:
“Since the decision by this court of the cáse of Peck v. Herrington, the Legislature has enacted a law, embodying substantially, in statutory form, the rule established in that case. . . . Under this statute, the land-owner draining his own land, may drain it ‘in the general course of natural drainage,’ and discharge the water ‘into any natural watercourse,’ or ‘into any natural depression whereby the water will be carried into some natural water-course.’ The system of drainage contemplated by the defendant, and which the bill was brought to restrain, comes clearly within the provisions of this statute, as well as within the rules established by the decisions of this court.” (pp. 327, 328.)
Since the Illinois legislature clearly distinguished between natural watercourses and natural depressions, it does not seem important that the Illinois court adhered to its former inclu sion of both in the same definition. When the legislature of this state made use of the Illinois statute it stopped with drains into natural watercourses and omitted what the defendant would have read into the act, natural depressions whereby water would be carried to natural watercourses.
The defendant by artificial means was collecting on his own land and discharging on the plaintiff’s land, to the plaintiff’s injury, water which would not otherwise reach the plaintiff’s land and water which would reach the plaintiff’s land in sufferable quantities and in a sufferable way. The defendant had no prescriptive right to do this because he utilized an old ditch in laying the six-inch pipe. There was evidence that he did more than simply clean out the ditch in order to lay the pipe. The action was not barred by any statute of limitations. Sufficient objection by the plaintiff to defendant’s conduct appears in the transcript of the evidence to prevent application of estoppel, which was not pleaded.
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The opinion of the court was delivered by
Dawson, J.:
The Chamberlain Metal Company performed certain services and furnished certain materials for Mrs. S. J. Ellis and she gave her check on the Bank of Pleasanton for $134 in favor of the company in payment therefor. Mrs. Ellis delivered the check to Sprague T. Haskell who indorsed it in the name of the company, “by Sprague T. Haskell, Agt.,” and he presented it to the bank and received the money thereon. Haskell did not pay over the money to the plaintiff company, and it brings this action against the bank alleging these facts, and alleging, also, that Haskell had no authority to indorse the check and that the indorsement of its corporate name was a forg;ery, that he had no authority to make collections on plaintiff’s account, that the bank was not authorized to pay the check to Haskell, and that there was due from defendant to plaintiff upon the said check the sum of $134, etc.
The bank’s demurrer was overruled, whereupon it answered by general denial. The plaintiff replied with an allegation that Haskell was not its general agent and denied that he had authority to receive or collect money on its behalf. At • the trial, after statements of the case by counsel in harmony with the pleadings, the defendant objected to the introduction of evidence. The objection was sustained and judgment was entered for defendant, Later a motion for a new trial was granted, and the bank appeals. Was it proper for'the court to grant a new trial?
Plaintiff alleged that its debtor, Mrs. Ellis, gave her check to Haskell, and alleged that Haskell was not its general agent and that he had no authority to indorse it and had no authority to receive or collect money for the plaintiff. The defendant argues that this is inconsistent. We hardly think so. It is very common for business houses to employ clerks to receive checks and to open mail containing checks, but it would hardly do to say that such clerks or employes are general agents with power to indorse their employers’ names or the names of their business firms, with or without the clerks’ own signatures as agents, and the employment to- receive checks does not imply the additional authority to indorse such checks and to receive money thereon.
Whatever may have been the rule before the adoption of the negotiable instruments act (Laws 1905, ch. 310, Gen. Stat. 1909, §§5247-5446), the bank’s liability to the payee of an accepted check is now clear. (Gen. Stat. 1909, § 5315.) The, retention of the check and the charging of Mrs. Ellis’ account was an acceptance. (Gen. Stat. 1909, §§ 5372, 5389, 5390.) In 5 R. C. L. 521, it is said:
“The acceptance of a check, so as to give a right of action to the payee, is inferred from the retention of the check by the bank, and a subsequent charge of its amount to the drawer, although it was presented by, and payment made to, an unauthorized person. Under the Negotiable Instruments Act a constructive acceptance will take place upon failure to return the check within twenty-four hours.”
(See, also, Ballard v. Bank, 91 Kan. 91, 96, 136 Pac. 935.)
Mrs. Ellis had ample funds in the defendant bank, and the bank was solvent. It was the duty of the bank; since it did not decline acceptance, to pay it to the plaintiff or to the holder under plaintiff’s valid indorsement. (Gen. Stat. 1909, § 5390.) But the bank was bound to determine, at its peril, whether Haskell had authority to indorse the plaintiff’s name on the check and to receive the money thereon. This is a question of fact, and the last ruling of the court which set aside its first judgment on the pleadings and granted a new trial thereon is correct. (See the well-considered case of McFadden v. Follrath, 114 Minn. 85, 130 N. W. 542, 37 L. R. A., n. s., 201, and Note.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A. S. Kingsbury, as trustee in bankruptcy of the estate of Gus Wittelshofer, brought an action against the First National Bank of Smith Center to recover the amount of a payment made by Wittelshofer to the bank in satisfaction of a preexisting ■debt, less than four months prior to the filing of the petition in bankruptcy against him. A demurrer to "the plaintiff’s evidence was sustained, and he prosecutes error. The payment was attacked upon two grounds: (1) That the bank had reasonable cause to believe that Wittelshofer intended thereby to give it a ■preference; (2) that the payment was made with the intent and purpose on the part of Wittelshofer to hinder, delay or defraud his other creditors, or a part of them. It is conceded that the evidence failed to sustain the first of these grounds, and it remains only to determine whether this is also true as to the second.
Plaintiff in error invokes the doctrine of Sherman v. Luckhardt, 67 Kan. 682, 74 Pac. 277, that it is sufficient to show a fraudulent purpose on the part of the bankrupt alone, without bringing knowledge of it home to the bank. This proposition is not disputed by the defendant in error, and as there is no substantial conflict in the testimony the inquiry is merely whether the facts of the case warranted an inference that Wittelshofer intended by the payment of his debt to the bank to hinder, delay or defraud his other creditors. Briefly summarized, they were as follow: Wittelshofer was a merchant at Smith Center. His stock was worth from $6000 to $8000. He owned no other property. He owed the bank a debt of $4568, which was past due, and he owed other debts, some of them for merchandise, amounting to $5882. He sold his entire stock of goods for $6218, receiving in payment a ■check on the defendant bank for that amount. He took the check to the bank and presented it for payment. The cashier mentioned that he was owing the bank, and asked if he should take the amount out of the check. Wittelshofer asked if he might not pay half ■of his debt then and let the remainder stand. The ■cashier refused to accede to this, and retained the entire amount of the bank’s claim, paying in cash the difference, $1650. Wittelshofer spent all this amount excepting about $500, which he turned over to his trustee in bankruptcy. There is nothing in these circumstances to warrant an inference that Wittelshofer, in paying the bank, intended to hinder, delay or defraud his other creditors, unless any preferential payment by an insolvent can be deemed evidence of a purpose to hinder or delay creditors because its necessary consequence is to reduce the estate to which they must look for payment. Such inference, however, is not permissible. The expression “with intent to hinder, delay or defraud” creditors is used in the bankruptcy act with the meaning given to it in statutes declaratory of the common law against fraudulent conveyances. (Githens v. Shiffler, 112 Fed. 505; 5 Cyc. 288.) Under such statutes the mere fact that an insolvent debtor pays one creditor in full raises no presumption of an intention on his part to hinder, delay or defraud the others.
“A failing or insolvent debtor, unrestrained by statute, may prefer and pay one or more of his creditors, and such conveyance will be upheld if the debt thus satisfied is bona fide, its amount not materially less than the fair and reasonable value of the property conveyed, and the payment of the debt is the sole consideration, and no use or benefit is secured or reserved to the debtor. In such case the inquiry should be directed to the bona fides of the debt, the sufficiency of the consideration, and the reservation of a benefit to the debtor. If the transaction is not assailable on some one of these grounds, fraud has no room for operation, and this though the effect of the preference is the hindrance and delay of all the other creditors of the debtor, or the deprivation of all possibility of their payment from his present assets.” (14 A. & E. Encycl. of L. 226.)
“Inconvenience to creditors may result from a conveyance that is fair as well as from one that is fraudulent, for every disposition of a debtor’s property, however valuable the consideration and honest the motive, diminishes the fund out of which payment of his liabilities can be enforced. Hence the validity of the con veyance is to be determined not by its effect, but by the intention with which it is made.” (14 A. & E.Encycl. of L. 266.)
If the present case were otherwise doubtful the manner in which the payment was made by Wittelshofer to the bank would go far to support the conclusion reached by the trial court.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action to recover for personal injuries caused by a runaway team. There was no material conflict of the evidence as to the facts of the case. Mr. Stephenson was a market-gardener living about seventeen miles from the city of Wellington, to which city during the season for marketing fruit and vegetables, for the term of over twelve years, he drove two or three times a week with his loads of produce. For four years of this time prior to August 5, 1901, he drove the same team that he did upon that day. It consisted of a horse and a mare, each eleven years old. They had been raised and broken by Mr. Stephenson and used upon his farm and for road purposes. His young daughters were accustomed to drive the team, and they were considered safe and trustworthy by him. On one occasion, two years prior to the date above named, a team consisting of the mare in question and another horse, while standing unhitched in a field, became frightened at the sudden appearance through a nearby hedge of Mr. Stephenson’s young daughter and ran off with a plow to which they were attached. On another occasion the same mare with another horse, becoming unhitched in some unknown way in the town of Belle Plaine, ran about a block and a half. No other instances of misconduct or viciousness by this team or either of them were shown. They were well broken and quiet, and had never been known to pull at the halter when hitched.
On August 5, 1901, Mr. Stephenson, in accordance with his custom, drove to Wellington with a load weighing from 1800 to 2200 pounds and stopped in front of a grocery store in order to unload his produce. He drove up in an angling direction toward the hitching-rail, so that, the mare being on the inside and nearest the rail, he hitched her only. The headstall of the halter with which she was hitched was made of one-and-a-quarter-inch leather; the hitching part was a rope a half-inch or more in diameter. It was a halter which he had been in the habit of using, hut for how long does not appear; it was apparently in a fair condition. When he drove up he noticed some boys standing around. They not infrequently came to him to get such damaged fruit or melons as he might wish to give them, and for that purpose frequently climbed upon the hind part of the wagon.
After hitching the team he proceeded to unload his produce, passing back and forth from the wagon to the grocery. While he was in the grocery on one of these trip's a boy, in turning over the hitching-rail, or, as the witness termed it, making a “flip-flop,” struck the mare on the nose with his foot, frightening the team, and causing them to rear back with such force as to break the chin-strap of the halter with which the mare was hitched. The team broke loose, ran down the street and collided with a buggy in which Miss Corder was riding, threw her out, and very severely injured her. Before the boy struck the mare with his foot the team had been standing quietly. It was accustomed to being hitched in this manner and place. A verdict was returned in favor of the plaintiff below and judgment entered thereon.
Many errors are assigned, some of which might serve to reverse the judgment and remand the case for a new trial. We prefer, upon the plain facts of the case, to address ourselves to vital questions, rather than to mere matters of practice. The basis of defendant’s liability, of course, was his alleged negligence in leaving his team standing insecurely hitched, or fastened. The only delinquency in this respect which can be claimed from the evidence is that the chin-strap of the halter was not sufficient, and the only evidence to support such a claim is that it broke. It may well be questioned whether under the evidence in this case the fact that it broke draws with it any presumption that the strap was so defective as to make its use under ordinary circumstances negligence. In Telephone Co. v. Vandervort, ante, page 101, where a neck-yoke strap was broken by the sidewise plunge of a frightened team, this court said:
“There is no evidence from which the jury might have found that the harness was defective, the only evidence being that of the plaintiff himself, where he said ‘my harness had been used about five months, or scarcely that.’ ”
There was little, if anything, more shown in the case at bar.
Ordinary care is all that was required of the defendant, and ordinary care does not require that all possible means for avoiding accident should be used. Quite true, the accident would not have occurred had the horses been hitched to an unbreakable rack with an unbreakable chain; nor would it have occurred had not the defendant driven to the city, on that day; but ordinary care does not require the use of such precautions. If it did, it would, in the language of this court in Cleghorn v. Thompson, 62 Kan. 727, 733, 64 Pac. 605, 54 L. R. A. 402, “paralyze human effort and action on all lines.” What the defendant was doing at the time was what he had done many times before without injury, and apparently what he or any reasonably prudent man would have done under the circumstances. It is suggested that the fact that he saw boys about there ought to have warned him that some of them might do the thing that the boy in question did. We hardly think this suggestion can be seriously urged; certainly it cannot be seriously entertained. Nor do we see anything in the character of the team which warranted any extraordinary precaution in the matter of fastening them. Whatever of dereliction was shown was not because of their breaking loose when tied, but because the mare had run away on two separate occasions upon sufficient provocation, or otherwise. Ordinarily the team was roadworthy, being well broken and quiet, and it is shown that neither of them had ever been known to pull at the halter when hitched.
Did affirmance rest upon a sufficient showing of defendant’s negligence we should greatly hesitate. The further question of the proximate cause of the injury, however, demands our attention. The jury, in answer to one of the special questions, and in exact accordance with the evidence, found that the horses were frightened and caused to run away by the boy’s striking with his foot the one that was tied. So, granting that the team was not tied as securely as ordinary care would have required, we are confronted with the fact that this neglect did not cause the accident, and it is well settled that it is the proximate cause of an injury which must bear the burden of the result.' Many law-writers and courts have attempted to give us a fairly intelligible definition of proximate cause which should be of such flexibility as to be adapted to general application. They have indifferently succeeded. A definition from one of the most recent authors and, perhaps, from all considerations one of the fairest, is the following:
“Negligence is the failure to exercise the ordinary care of prudent men under all the attending circumstances. It follows that the negligence of a person cannot be the proximate cause of a harm to another following it, unless, under all the attending circumstances, ordinary prudence would have admonished the person sought to be charged with the negligence that his act or omission would probably result in injury to some one. The general test as to whether negligence is the proximate cause of an accident is therefore said to be whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. Proximate cause is, therefore, probable cause, and remote cause is improbable cause.” (1 Thomp. Com. L. Neg. §50.)
This court early attempted to analyze the philosophy and make a definition of proximate cause. It said in the case of A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, 377, 15 Am. Rep. 362, in speaking of a wrong-doer:
“He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrong-doer, which could not have been foreseen by the exercise of reasonable diligence by the wrong-doer, and except for which the final injurious consequence could not have happened, then such injurious consequence must be deemed to be too remote to constitute the basis of a cause of action.”
The court in Wright v. C. & N. W. Ry. Co. 27 Ill. App. 200, 211, quoted the foregoing with approval, and added that the words in italics point out the correct distinction. In the case of C. K. & W. Rly. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209, the law relative to proximate cause was stated as follows:
“Before an act of negligence can be made the basis for a recovery of damages it must appear that such act was the natural and proximate cause of the injury, or directly contributed thereto.”
In the case of Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402, the following from City of Allegheny v. Zimmerman, 95 Pa. St. 295, 40 Am. Rep. 649, was quoted with approval:
“One is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a con junction of his own faults with circumstances of an extraordinary nature.”
In the case of Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399, this court gave its most recent views upon the question. In its ultimate conditions it bears a strong analogy to the one at bar. In the syllabus the court announced the law as follows:
“In a case where two distinct, successive causes, wholly unrelated in operation, contribute toward the production of an accident resulting in injury and damage, one of such causes must be the proximate, and the other the remote, cause of the injury.
“A prior and remote cause cannot be made the basis of an action for the recovery of damages if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened, between such prior or remote cause and the injury, a distinct, successive, unrelated and efficient cause of the injury.
“In a case where it is either admitted, or from the facts as found established, that two distinct, successive causes, unrelated in their operation, conjoined to produce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the jury is not binding or conclusive on the court.”
In the body of the opinion this further discussion was had:
“The existence or non-existence of negligence in any given case, wherein the facts are disputed, is a question of fact to be determined by the jury. When the facts are undisputed, and only one inference or deduction is to be drawn from them, a question of law is presented for the court. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101.) However, it is not every act of negligence that furnishes a basis for recovery of damages sustained. In the case of Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402, this court held: ‘Negligence, to be actionable, must result in damages to some one, which result, in the absence of wantonness or malus animus, might have been reasonably foreseen by a man of ordinary intelligence and prudence, and be the probable result of the initial act. The allegation of negligence is not sustained by evidence of acts resulting in damage to another, which result is not the reasonable and ordinary outcome of such acts, and which would not have been foreseen or anticipated by the exercise of ordinary prudence and foresight under all the circumstances of the case. . . . Negligence is not the proximate cause of an accident unless, under the circumstances, the accident was a probable as well as natural consequence thereof — one which might reasonably have been foreseen by a man of ordinary intelligence and prudence.’ (City of Allegheny v. Zimmerman, 95 Pa. St. 287.)
“In cases of this character where two distinct, successive causes, unrelated in operation, to some extent contribute to an injury, it is settled that where there is an intervening and direct cause, a prior and remote cause cannot be made the basis for recovery of damages, if such prior cause did no more than furnish the condition, or give rise to the occasion, by which the injury was made possible. It seems to be sound in principle and well settled by authority that where it is admitted or found that two distinct, successive causes, unrelated in their operation, conjoin to produce a given injury, one of them must be the proximate, and the other the remote, cause of the injury, and the court, in passing on the facts as found or admitted to exist, must regard the proximate as the efficient and the consequent cause, and disregard the remote cause.” (Pages 397-399.)
Now, if we grant that the chin-strap .of the halter was defective and that this sufficiently appeared in the evidence, and that Stephenson knew of this defect, can it be said, in view of the law heretofore laid down by this court, that such defect was the proximate cause of the accident? The injurious result would not have followed had not the new and independent cause intervened. This new cause had no causal connection with the negligence of Stephenson. The hitting of the mare on the nose by the boy was not caused by the defect in the halter, nor was it under the control of Stephenson; nor can it be said with the slightest fairness that it could have been foreseen by the exercise of reasonable diligence on his part. The most that can be said is that the defect, if any, in the halter and the frightening of the team were two distinct, successive causes, wholly unrelated in operation, which contributed to the production of the accident resulting in the injury and damage; and, therefore, the frightening of the team, being the immediate and probable cause, was the proximate cause, and the defect in the halter, being the secondary and improbable cause, was the remote cause. This being so, the defendant was not liable for the unfortunate accident, and his request that the jury be so instructed should have been granted.
The judgment is reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On November 25, 1903, Rachael Heath recovered a judgment upon an insurance contract against the Modern Woodmen of America, a corporation organized under the laws of Illinois. Upon application ninety days were given to make and serve a case for the supreme court. It was made and served within the prescribed time, and on March 1, 1904, it was settled and signed. With a petition in error, it was filed in this court on April 20, 1904. A motion is now made to dismiss the proceeding upon the grounds, first, that it was not begun within sixty days after the rendition of the judgment, and, second, that the judgment was paid in full by the defendant below on July 27, 1904. ,
The first ground of dismissal is based on the provision of an act for the organization and regulation of fraternal benefit societies, which relates in part to societies organized in other states. Among other things, the act provides as follows:
“Any association authorized to do business under this act refusing or neglecting to make the reports provided for in this act, or which shall exceed its powers, or shall conduct its business fraudulently, or which shall take steps to remove any suit commenced against it in any of the courts of this state to any of the courts of the United States, or which shall fail to pay any judgment rendered against it in any court in this state, unappealed from, within sixty days from the rendition of such judgment, or which shall fail to comply with any of the provisions of this act, shall be excluded from doing business within this state.” (Gen. Stat. 1901, §3580.)
While the statute does not expressly state that appeals in such cases are limited to sixty days, it is the manifest legislative purpose that appeals, if taken at all, must be taken within that time. The provision proscribes and punishes the failure to pay and satisfy a judgment unappealed from within a stated time. The association is given sixty days to determine whether it desires to appeal and to initiate a proceeding for review, and if it is not • done within that time the judgment is final and nothing remains but-to pay it.
The time for instituting such a proceeding is much briefer than that ordinarily allowed, for commencing proceedings in error, but the matter of time is purely a question for the legislature. For instance, in divorce proceedings a party complaining of a judgment must decide within ten days whether he will appeal, and must also give notice of his intention to do so within that timé, and then he is required to commence the proceeding within four months after the rendition of judgment. Under the assignment law proceedings to review in the supreme court must be begun within sixty days. Appeals from judgments in cases contesting county-seat elections must be taken within sixty days from the time the judgment is rendered. These are only a few of the exceptions to the general rule allowing a year within which to commence proceedings in error, but they are sufficient to show that similar limitations are imposed on matters of equal, if not greater, importance.
The association is a foreign corporation, and the legislature has the right to prescribe the terms upon which it and other like corporations may do business in Kansas. It did prescribe the condition that all judgments unappealed from within sixty days after rendition must be paid. In effect, it said to such associations: “You are given sixty days within which to take an appeal, and if it be not taken within that time the end of the litigation has been reached.” It is not enough that steps be taken toward perfecting an appeal, but the appeal must be completed, and if that be not done within the sixty days the judgment is final and the only alternative is payment. We cannot suppose that the legislature intended to treat the judgment as a finality and compel its payment and afterward allow a legal combat over a controversy that had'been ended.
Payment of the judgment was in fact made, but it was done in obedience to a demand of the superintendent of insurance, and under protest. No doubt the superintendent of insurance would have exercised the power reposed in him by statute to compel payment if it had been refused, and in a sense the payment was involuntary. The coercion, however, was by force of the law itself. It commanded the payment which was made. By coming into the .state and availing itself of the advantages afforded by the statute the association impliedly agreed to comply with the statute and to pay all judgments from which it did not appeal within sixty days.
However, we think the law gave the association but sixty days within which to begin the proceedings in error, and that judgments not appealed from within that time were no longer open to review. The first ground alleged for dismissal is good, and the proceeding is therefore dismissed.
All the Justices concurring. | [
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Per Curiam:
In 1899 the district court of Wyandotte county granted the plaintiff in error a divorce from the defendant in error, and awarded her the custody of the five minor daughters. In July, 1904, the defendant filed his application in that court for an order changing the custody of the minor children from the plaintiff to himself. Among other things in the application the defendant alleges that the plaintiff is an unfit and unsuitable person to have the care and custody of the children, on account of the immoral company with which she surrounds them, and “that when the defendant attempts to exercise proper -control of and over Carrie she leaves his home, and is given refuge by her mother in a place of evil, where she, the mother, is living in adultery with her paramour, S. F. Bendure, whom she has taught her little daughter Eva to call ‘papa.’ ”
The plaintiff also filed a supplemental petition asking for additional alimony.
The court heard the application and the petition together, and after hearing a large amount of testimony it made special findings of fact and conclusions of law, at the request of the plaintiff, which are as follow:
“findings of fact.
“ (1) That on the 14th day of July, 1899, at the time of the granting of a decree of divorce in this case, the property of the parties and the custody of the minor children were provided for in the decree in accordance with an agreement between the parties, and by such agreement, and the decree of the court made pursuant -thereto, the minor children were committed to the custody of the plaintiff.
“ (2) That shortly afterward the plaintiff voluntarily turned the custody of all of said minor children, except Eva, then a baby, over to the defendant, who has ever since maintained and provided for them.
“(3) That the defendant is a man of good repute and good morals, and a suitable person to have the care and custody of said children, and is able to provide for and educate them as a father should.
“(4) That the plaintiff is an immoral woman, of bad repute, and an unsuitable person to have the care and custody of said female children; and the court declines to make any finding as to whether or not the plaintiff is or has been guilty of adultery or bigamy.
“ (5) That the best interests of said minor children in controversy require that they should be removed from the influences which surround their mother, and committed to the care and custody of their father, who is a more suitable person, to give them moral training and education.”
“conclusions of law.
“(1) That the defendant’s motion ought to be, and hereby is, sustained.
“(2) That plaintiff’s motion ought to be, and hereby is, denied.”
The court rendered judgment awarding the custody of the children to the defendant, and denying the plaintiff’s petition. A motion for a new trial was denied, and the plaintiff brings the case here.
The principal error complained of is that the court admitted evidence of the general reputation of the plaintiff, as tending to show that her reputation for chastity was bad, and that the plaintiff and one Bendure were living together as husband and wife, being unmarried.
In proceedings of this kind the rights of either parent to the custody and control of the children have small consideration at the hands of the courts, the welfare of the children being the prime and almost the only consideration. When necessary to promote the welfare of the children a court of equity will take their custody from either or both parents and award it to another. Whatever may be the rule as to the admissibility of evidence of general reputation to establish adultery in a divorce proceeding, there is no doubt of the admissibility of such evidence to prove that the home to which one parent proposes to take growing girls is an improper place to take them, or that the mother with a bad reputation in this respect is only less injurious in degree to the girls than if the home or the mother were in fact morally bad. In fact, we have statutes in this state for the suppression of houses of ill-fame.
The order of the court in this case was made in the exercise of a sound judicial discretion, and seems to be justified by some of the evidence, and it is not for this court to balance that evidence with the conflicting evidence.
On the application of the plaintiff, after the filing of the petition in error in this case, this court made an order suspending the order of the district court and giving to the plaintiff the custody of the little girl, Eva, during the pendency of this proceeding. That order is hereby revoked, and the order and judgment of the district court are affirmed. | [
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The opinion of the court was delivered by
William R. Smith, J.:
This was a suit brought by the state of Kansas, on the relation of the county attorney of Cowley county, to enjoin the Missouri Pacific Railway Company from maintaining a nuisance, in violation of the live-stock sanitary laws of the state. The petition was filed July 7, 1904.
For several years the railway company has main tained a cattle shipping-station named Davidson on its line of road in Cowley county, situated about two miles north of the Indian Territory line. From its stockyards at that place the company laid out and maintained a lane, bounded on either side by a wire fence, extending two miles south to the Kansas state line, and opening into a pasture in the Indian Territory. This passageway was maintained for the purpose of allowing prospective shippers to drive herds of cattle from south of the quarantine line into Kansas for shipment. Testimony was introduced at the trial tending to show that herds of Southern cattle were driven up the lane, including cows to coax the calves along; that the cows were permitted to wander back to the Indian country after the calves had been loaded on cars for shipment; that splenic fever is caused by ticks which fall from Southern cattle and either fasten themselves on native animals or hatch out small ticks that do; that Southern cattle driven up this lane had communicated fever to native cattle the year before the suit was tried. None of the cattle driven into this state was ever'inspected, nor any bill of health issued in respect to them. It was shown that 450 head .of Southern cattle were shipped from Davidson in June, 1904, over the line of defendant in error, consigned to the National stock-yards at East St. Louis, Ill.
The gravamen of the complaint against the railway company appears in the following extract from the petition :
“Defendant, if permitted to continue the introduction of said cattle into Kansas from the infected districts aforesaid, in the manner aforesaid, is liable, by reason of the escape of the said cattle through the fences of said lane, and by coming in contact with the native cattle along and adjacent to said lane, to infect the native cattle of that immediate vicinity with Texas fever, and spread and scatter the same throughout the county, to the great damage and detriment of the citizens of this county, by reason of which said railway company, in the manner and form aforesaid, has been maintaining, and is now maintaining, and threatened, and is about to continue, a public nuisance within the county of Cowley and state of Kansas.”
A trial before the court resulted in a judgment favorable to defendant. The state has prosecuted proceedings in .error. The following sections of the statute have application to the question involved:
“All cattle being at or brought from any point south of the south line of the state of Kansas, and carrying Boophilus bovis, or Southern ticks, are deemed to be infected with and capable of communicating Texas, splenic or Spanish fever, and such cattle shall not be shipped or transported into the state of Kansas except for immediate slaughter, and then only under such rules and regulations as may be prescribed by the live-stock sanitary commission.
“It shall be Unlawful for any person or persons to bring, drive or transport any cattle into any county of the state of Kansas, except for immediate slaughter, as provided in the preceding section, from any point south of the south line of Kansas, without having first caused such animal or animals to be inspected and passed under certificate of health by the live-stock sanitary commission of this state or some inspector thereof; and any person or persons violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty nor more than one thousand dollars, or by imprisonment in the county jail not less than thirty days nor more than one year, or by both such fine and imprisonment.” (Gen. Stat. 1801, §§7451, 7452.)
Acting under the provisions of section 7434 of the General Statutes of 1901 the live-stock sanitary commission determined that quarantine regulations were necessary to prevent infectious diseases among domestic animals, and notified the governor of the fact. The latter, on June 2, 1904, issued a proclamation that cattle brought from points south of the thirty-seventh parallel of north latitude, or west of the west line of Kansas, were infected with, and capable of communicating, splenic or Spanish fever, or a disease known as itch or mange, to Kansas herds when imported into the state, and establishing a quarantine against all such cattle, and that “all cattle hereafter brought, shipped or transported through the state of Kansas shall be admitted only under such rules and regulations as are, or shall hereafter be, provided and adopted by the live-stock sanitary commission of this state.” Rule No. 8 of the live-stock sanitary commission reads:
“Any persons desiring to avail themselves of the passage of cattle for slaughter purposes from points south of the south line of Kansas, without inspection and the payment of fees, may do so by consigning them to the quarantine pens of whatever market they may be destined, but under no condition shall they be unloaded in native chutes or native pens of Kansas unless they are accompanied by a certificate of health issued by a Kansas inspector. Also cattle destined for points beyond the limits of Kansas may unload for feed and rest without state inspection or payment of fees at any shipping-yards on line of road on which they are being shipped, provided each and every shipment is accompanied by a certificate of health issued by an agent of the bureau of animal industry; otherwise shall be accompanied by a certificate issued by a Kansas inspector.”
Another rule of the commission provides that each car carrying cattle from the infected area into or through the state must have a placard attached thereto stating in bold letters that “this car contains Southern cattle,” and the way-bill stubs shall have marked plainly on the face thereof the words “Southern cattle.”
It will be observed that section 7451 of the statutes, swpra, declares cattle brought from south of the south line of Kansas and carrying Southern ticks are deemed to be infected with and capable of communicating Texas, splenic or Spanish fever, and such cattle shall not be shipped or transported into the state, except for immediate slaughter, “and then only under such rules and regulations as may be prescribed by the live-stock sanitary commission.”
The next section of the statutes prohibits the driving or transporting of any cattle into any county of the state, except for immediate slaughter, “as provided in the preceding section,” from any point south of the south line of Kansas, without an inspection and the obtaining of a certificate of health from the sanitary commission or some inspector thereof.
. Reading together the two sections of the statute last referred to, it seems clear that cattle transported into the state for immediate slaughter cannot be brought here for such purpose unless permitted by the rules and regulations of the live-stock sanitary commission. Rule No. 8, supra, has reference to transporting by railroad. This is apparent from the regulation in the rule respecting the unloading of animals, which by no possibility could have application to cattle on foot. It is conceded that there is no rule of the commission respecting the driving of cattle into or through the state. It is the contention of the railway company that, it being lawful to drive cattle into the state for the excepted purpose — namely, for immediate slaughter — by failing to act in the matter of making rules the live-stock commission cannot make that act a crime which the statute authorizes. A careful reading of the law, however, will disclose that cattlp brought into Kansas can only come here under such rules and regulations as the commission may prescribe, even for the excepted purpose. This is the clear meaning of section 7451, and section 7452 makes it unlawful to drive cattle into Kansas “except for immediate slaughter,” with the added phrase “as provided in the preceding section.”
There being an absolute inhibition in the law against the driving of cattle into the state from infected districts unless the live-stock sanitary commission shall promulgate rules and regulations as to their inspection, a failure of the commission to act in that respect, and to make rules and regulations, must be regarded as a determination by it to exclude all cattle attempted to be driven into the state from such districts. If, as contended by counsel for the railway company, any and all cattle may be driven into the state for immediate slaughter from points south of the state line, without inspection, an infected herd may be driven lawfully from the north line of the Indian Territory to Topeka or Kansas City, Kan., for slaughter, threatening with deadly inoculation all the native cattle contiguous to the roads over which they might pass. Such is not the spirit, letter or intention of the law. If Southern cattle can be driven lawfully two miles into the state, the driving of them a distance of 100 or 200 miles would be equally permissible.
The objection that the acts of defendant below in maintaining the cattle-trail did not constitute a public nuisance is ill-founded. To place in jeopardy the animal industry of a state where stock-raising is one of the principal sources of wealth is a matter of concern to all. A menace of such nature should be met with prompt preventive measures by those charged with the duty of enforcing the laws.
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.:
In 1899 a tax deed was issued to W. W. Cockins and R. E. Steele. In 1900 they obtained a decree against Mary M. Hinchman, who held an earlier tax deed covering the same property, quieting their title thereto. Their title was afterward transferred to the Meade Land and Cattle Company. R. H. Lockwood, who had acquired the title of the original owner of the land, brought ejectment against that company. It was determined that both the tax deeds referred to were voidable, and the plaintiff was awarded possession. He was required to reimburse the defendant for the taxes paid by Cockins and Steele, and of this no complaint is made. He was also required, however, to pay to the defendant the amount that Mary M. Hinchman had expended in procuring her tax deed, and he now brings this proceeding, contending that this requirement was erroneous, and presenting no other question.
The part of the judgment to which exception is taken can be justified, if at all, only upon the theory that an ordinary decree quieting a plaintiff’s title to real property has the effect of transferring to him whatever title or interest the defendant may have previously had therein. Expressions supporting this theory were used in Belz v. Bird, 31 Kan. 139, 1 Pac. 246, and repeated in Utley v. Fee, 33 id. 683, 7 Pac. 555. In neither case, however, was the adoption of such a theory necessary to the determination reached. In the earlier one the point decided was merely that the claimant under a voidable tax deed, when defeated in an action of ejectment by the holder of a subsequent voidable tax deed, who had quieted title against the original owner, was entitled to a lien for the taxes he had paid. The court did not decide which claimant was entitled to redeem from the other, that question not being pressed, but by its final order awarded the parties liens for taxes paid in the inverse order of their accrual. In Utley v. Fee, supra, it was held that a tax-deed holder who, without notice of any other claim, had quieted title against the persons appearing by the records to hold the patent title was protected against a deed that had been executed to the defendants before the commencement of the action but had not been recorded until after the rendition of the judgment. In the opinion it was said, citing Belz v. Bird, supra, that the plaintiff in the suit to quiet title had, in virtue of the decree there rendered, obtained all the estate and interest, legal and equitable, which the defendants might at that time have had in the property. This language was sufficiently accurate for the purposes of that case, for the grantee in the unre corded deed was held to be in privity with the defendants in the suit to quiet title, and as he was therefore precluded by the decree from asserting any claim to. the land the situation so far as he was concerned was the same as though his grantor’s rights had been transferred to the plaintiff — they were no longer available to him. The argument would have been as well sustained, however, by the statement that all the estate and interest of the defendants in the property had been annulled by the decree, as between the parties to the litigation or those thereafter claiming under them.
In an equitable proceeding the general purpose of which is to quiet title or remove a cloud the relief awarded must be adapted to the special circumstances presented, and in a given case may include an order for one party to convey to another whatever interest he may have in the real estate involved. (17 Encyc. Pl. & Pr. 362, 365.) Such a decree would of course effect a transfer of title as effectually as a voluntary conveyance. (Woolworth v. Root, 40 Fed. 723, 726.) But an ordinary decree quieting title against a defendant does not add his claim to that already possessed by the plaintiff. It effects no affirmative increase in the plaintiff’s rights. It strengthens his title only in that it cuts off a source of attack. It brings to him no new and independent right which he may assert against a stranger to the suit. It adjudges that the defendant has no claim to the property — not that a claim which he has must be deemed to be transferred to the plaintiff. (Weed Sewing-machine Co. v. Baker, 40 Fed. 56; Harrigan v. Mowry, 84 Cal. 456, 22 Pac. 658, 24 Pac. 48.)
The judgment against Mary M. Hinchman is described in the record as a decree quieting title. Its character is not shown except as it is indicated by that description. No suggestion is made that it contained any peculiar or unusual features. As a mere decree quieting title, its effect was only to preclude the defendant or any one claiming under her from asserting against the plaintiffs or their successors any title to, or interest in, the real property affected. It did not vest in the plaintiffs the lien for taxes paid which the defendant, as the holder of an irregular tax deed, might have asserted upon being dispossessed by the original owner.
The judgment is reversed, with directions that the plaintiff in error be relieved of the requirement to pay to the defendant in error the amount of taxes represented by the tax deed issued to Mary M. Hinchman.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
This proceeding is brought to reverse the action of the district court in sustaining a demurrer to a petition, the substantial averments of which were that in July, 1901, defendant made an oral contract with plaintiffs selling to them the grass growing upon an eighty-acre tract of land owned by him, which provided that plaintiffs should cut and remove such grass and pay defendant therefor at the rate of $1.50 an acre; that upon the faith of the agreement plaintiffs had cut the grass upon five acres, at an expense of $8; that defendant then refused to allow them to proceed; and that by such refusal plaintiffs suffered damages in the sum of $1200.
The trial court held that the contract was one for the sale of an interest in real estate, and, therefore, was within the statute of frauds, and that no damages could be recovered for its breach. Against this conclusion it is urged that it was competent for the parties to treat the growing grass as personal property; that even if the statute would otherwise have applied its effect was obviated by part performance; and that in any event the arrangement made amounted to a license to plaintiffs to enter upon the land and cut and remove the hay, granted by defendant under such circumstances that it could not be revoked without subjecting defendant to an action for damages.
It is the settled law of this state that “growing grasses, whether wild or cultivated, are a part of the land, and require an agreement in writing for their sale and severance from-the land.” (Smith v. Leighton, 38 Kan. 544, 17 Pac. 52, 5 Am. St. Rep. 778; Powers v. Clarkson, 17 id. 218; 29 A. & E. Encycl. of L. 889. See, also, notes to Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90, in 19 L. R. A. 721, 722, and 40 Am. St. Rep. 641, and Fish v. Capwell, 18 R. I. 667, 29 Atl. 840, in 49 Am. St. Rep. 807, and 25 L. R. A. 159.) No such part performance was here alleged as would take the contract out of the statute of frauds. Nothing was shown to have been done by plaintiffs in reliance upon the agreement that occasioned them any irreparable injury as a consequence of its non-fulfilment. The cutting of a few acres of grass at an expense of eight dollars could have had no greater effect in this connection than a payment of money. And the mere part payment, or even the entire payment, of the price upon an oral contract for the purchase of real property does not affect the operation of the statute. (26 A. & E. Encycl. of L. 54; 23 Cent. Dig. c. 2408, §311 et seq.)
The agreement set out in the petition doubtless amounted to a license to the plaintiffs to enter upon the defendant’s land and cut and remove the grass; that is, so long as the privilege it granted was not withdrawn the plaintiffs would not be liable for trespass for acts done under it. Doubtless, also, any grass cut before such withdrawal would thereby be converted into personal property which the plaintiffs would have a right to remove, notwithstanding any subsequent action of the defendant; but such a license, so far as it remains unexecuted, is revocable. (See note in 19 L. R. A., supra.) Language used in the opinions in Ferris v. Hoglan et al., 121 Ala. 240, 25 South. 834, and Terrell v. Frazier, 79 Ind. 473, might seem to conflict with this statement; but these cases turn upon peculiar conditions. In the former the parties agreed that the plaintiff was to cultivate and care for a vineyard belonging to defendant, depending for his compensation upon the crop. After he had performed his part of the agreement it was held that the defendant was estopped to forbid his gathering the fruit, which was in large part the result of his own labor. In the latter case the defendant agreed that he himself would cut certain timber standing upon his land and deliver it to the plaintiff, in consideration of $100, which was duly paid to him. It was held that upon the refusal of the defendant to carry out the agreement plaintiff might recover the amount he had paid.
In jurisdictions where, as in Massachusetts and Michigan, such a contract as that here sued upon is held not to be within the statute of frauds, because not one for the sale of an interest in real property, damages are allowed for the revocation of the license granted by it. (Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001; Greeley v. Stilson, 27 Mich. 153.) But where the contract is unenforceable damages cannot be allowed for its breach, even though it be called the granting of a license.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
This was an action brought by defendant in error to recover from the National Fence-machine Company the sum of $100 on its indorsement of a promissory note given to it by one Zink in September, 1902. The indorsement was made before maturity, as follows: “Protest waived. National Fence-machine Company, per H. M. Snyder, authorized agent.” The note was sold by Snyder to Highleyman. It was never in the possession of defendant below. The fence-machine company denied the authority of Snyder to bind it by his indorsement. Plaintiff had judgment in the district court.
It appeared from the evidence that William Beasley & Son, in June, 1902, by an instrument in writing were appointed agents of the-fence-machine company, with general authority to sell machines at wholesale or retail in Neosho, Labette and Cherokee counties. The company agreed to furnish all machines. ordered by said agents at $2.50 each. The written appointment, concluded:
“The agent shall make a report to the company at the end of each month. The company hereby further agrees to take notes for machines when same are-quoted good by local bank.”
Snyder was employed by Beasley & Son to sell fence-machines. It is not claimed that his authority came from plaintiff in error, or that it ever ratified his acts. The note sued on was taken by Snyder for machines-sold by him.
We must look to the authority conferred by the principal on its agents, Beasley & Son, to ascertain the extent of their power to bind the former by the indorsement of negotiable instruments in order to determine-the scope of Snyder’s agency. The written contract under which Beasley & Son acted as agents did not authorize them to indorse notes for, or on behalf of, the-fence-machine company. The latter agreed to take-notes for its machines when the same were quoted good by a local bank, implying that the agents were to transmit the notes taken to their principal. We are clear that it was wholly beyond the power of Snyder to bind the defendant by his indorsement. (Mech. Ag. §§389-393.)
The court below committed material error in allowing the holder of the note to testify to what Snyder told him respecting his authoriy to make the indorsement. The statements of an agent are incompetent to prove the fact of agency, or its scope. ( Howe Machine Co. v. Clark, 15 Kan. 492; Ream v. McElhone, 50 id. 409, 31 Pac. 1075; Clark v. Folscroft, 67 id. 446, 73 Pac. 86.)
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
Mason, J.:
Samuel Watson sued the Atchison, Topeka & Santa Fe Railway Company for damages occasioned by its failure to deliver within the time agreed upon by special contract several cars of cattle shipped by him. He recovered a judgment, from which the company prosecutes error. According to plaintiff’s evidence, he personally made an oral contract with the general live-stock agent of the company by which it was agreed that cars were to be provided for receiving the cattle at Miltonvale on the morning of the next day, and that they were to reach Kansas City before seven o’clock that evening; the cattle were loaded on time but the company failed to get them to Kansas City before midnight, thereby missing a connection and occasioning substantially a day’s delay in their arrival at St. Louis. It was shown that a son of the plaintiff accompanied the cattle, and at the time they were loaded upon the cars signed his father’s name to a printed contract purporting to be that under which the shipment was made, and to supersede any prior agreement. The terms of this written contract precluded a recovery if the son executed it under such circumstances as to bind the plaintiff. The court submitted to the jury the question whether the son was the agent of the father for that purpose, and the jury by their general verdict found that he was not. The defendant contends that under the admitted facts the son was the father’s agent for that purpose, or at all events the company was justified in so treating him, and that the court should have so instructed.
The plaintiff testified that he had his son accompany the cattle in order that he might obtain a pass to Kan sas City; that he knew that it was customary for persons in charge of stock in shipment to sign contracts of some kind upon which they were passed, and that he supposed that his son would sigh one of these contracts. He did not, however, say that he knew the substance or effect of the contracts usually signed or that he understood that his son would sign a contract under which the cattle were to be carried. His statements in this regard, with other circumstances, were proper to go to the jury for the bearing they might have upon the question of his son’s agency, but they did not conclusively establish that his son was authorized to execute the contracts in his behalf.
The plaintiff in error invokes the doctrines that authority to make a shipment carries with it authority to make a contract for that purpose, and that a carrier is not bound to examine the authority of the person presenting goods for transportation to make such a contract. Neither principle applies to the facts of this case. The plaintiff’s son was not shown to have been authorized to make the shipment in the sense that he had any responsibility whatever as to its terms or conditions. The evidence was entirely consistent with the idea that he was merely accompanying the cattle to assist in handling them, and that he was charged with no further duty than to see that they were at the place of shipment at the time agreed upon by his father and the company’s live-stock agent. While it may be true, as a general rule, that a carrier is justified in assuming that a person presenting goods for shipment is their owner or one having authority from their owner to make all necessary arrangements regarding their transportation, including the signing of contracts of carriage, there is no room for the operation of such rule where, as in this case, the carrier had already made a contract to receive, transport and deliver the very property involved.
One element of damage for which recovery was allowed was the loss in weight which it was found the cattle suffered by reason of the delay. The plaintiff was permitted to show by the testimony of persons familiar with the business of shipping such cattle what the ordinary shrinkage would be where such a shipment was accomplished within the time stipulated in this case, and what it would be where such a ■delay occurred as that here shown, the difference being the loss for which it was sought to hold the defendant liable. No serious objection is or can be made to the method adopted to establish the amount of shrinkage necessarily resulting from such a journey when diligently made. In the nature of things this could only be shown by opinion evidence — the judgment of persons possessed of special information in such matters, and qualified by their experience to testify regarding them. But the defendant complains that the amount the cattle actually did shrink was susceptible of proof by more direct evidence, and that therefore it was error to permit recourse to expert testimony on this point. This objection might be regarded as well taken if it could be said that the actual shrinkage could have been proved definitely and positively, without resort to evidence of that character; but that does not appear to be the case.
Although the cattle were weighed on their arrival in St. Louis, there is no basis presented under the evidence for determining their exact weight at the time they were loaded upon the cars at Miltonvale. Estimates made by persons who saw the cattle before shipment would depend for their value in a large degree upon the experience of the observers. Such evidence would not necessarily be much more convincing than that to which objection is made. A conclusion regarding the loss based upon a comparison of the actual weight of the cattle at the end of the journey with their estimated weight at its beginning would not be so decisive that it might not be affected by the evidence of competent witnesses concerning the shrinkage ordinarily resulting from a similar trip. Under the circumstances presented the evidence objected to was admissible. (Enlow v. Hawkins, ante, p. 633; Sexton v. Lamb, 27 Kan. 426; Missouri K. & T. Ry. Co. v. Truskett, 104 Fed. 728, 44 C. C. A. 179; Cooke v. The K. C. Ft. S. & M. R’y Co., 57 Mo. App. 471.)
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff in error brought a suit in due season to contest a probated will affecting both real and personal property, and then voluntarily dismissed it. After the expiration of two years from the probating of the will, but within one year from the dismissal of the first suit, he commenced another against the same parties and for the same relief as before. A demurrer was sustained to the petition, on the ground that the right of action was barred because of the expiration of the time limited by the statute of wills within which will contests may be initiated. The question for decision is whether the right to maintain the second suit is preserved by section 23 of the general statute of limitations, contained in the code of civil procedure, which reads as follows:
“If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.” (Gen. Stat. 1901, §4451.)
Material portions of the statute of wills (Gen. Stat. 1901, ch. 117) are as follow:
“Sec. 15. If it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate.”
“Sec. 19. If no person interested shall within two years after probate appear and contest the validity of the will, the probate shall be forever binding, saving, however, to persons under legal disability the like period after the disability is removed.
“Sec. 20. The mode of contesting a will shall be by civil action in the district court of the county in which the will was admitted to probate, which action may be brought at any time within two years after the probate of the will, and not afterward, by any person interested in the will or estate of the deceased.
“Sec. 21. The order of the probate court shall be prima facie evidence on the trial of such action of the due attestation, execution and validity of the will.
“Sec. 22. A certified copy of the testimony of such of the witnesses examined upon the original probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence upon such trial.
“Sec. 23. The rights of persons under legal disability shall not be concluded by the judgment in such action, but any such person may within two years after such disability is removed contest such will in the manner hereinbefore provided.”
“Sec. 29. No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate or recorded as provided in this act.”
It is a rule of interpretation that general statutes of limitation, embodied in the codes of civil procedure ordinarily relate to the prosecution of actions generally, and the enforcement of the remedies that such codes prescribe and regulate; and that special statutes usually must be literally followed in respect to the time conditions that they impose. (Hill v. Supervisors, 119 N. Y. 344, 23 N. E. 921; Beebe v. Doster, 36 Kan. 666, 14 Pac. 150; Cartwright v. Korman, 45 id. 515, 26 Pac. 48.)
If the statute of wills be considered in the light of a statute of limitations this rule applies. It is a special enactment, complete in itself, and apparently designates the only exception intended to be allowed. The purpose of the law is to protect devisees, legatees, executors and trustees in their property rights, to foil efforts on the part of designing persons to foment annoying and embarrassing litigation, and generally to prevent the questioning of wills after time has removed witnesses and obscured the circumstances of their execution. Therefore, phraseology of the most imperative and uncompromising kind is employed. As often as the matter of contest is referred to the two-year limitation is attached, and the intention is made as clear as possible that there shall be no extension of time in which to disturb the probate of a will except in the single case twice expressly provided for.
But the statute of wills is not a mere statute of limi tations. It grants to a court vested with ordinary law and equity jurisdiction the right to adjudicate upon the validity of wills of personalty — a power which, at common law, was altogether denied to such a tribunal, and vested solely in the ecclesiastical courts. It further authorizes a court endowed with ordinary law and equity powers to hear controversies and render judgments respecting wills of realty that were wholly unknown at common law, viz., controversies and judgments establishing the status of such wills.
The common law respecting these matters, and the rights of parties and the jurisdiction of courts under it, is described by the supreme court of California as follows:
“In England, the probate of wills of personal es-tate belongs to the ecclesiastical courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will, if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstances affecting its. character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res judicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of per sonal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimant's, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the - personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will.” (State of California v. McGlynn, 20 Cal. 233, 265, 81 Am. Dec. 118.)
Even although the ecclesiastical courts could determine the validity of wills of personal property, and even although the law courts could incidentally determine for some purposes the validity of wills of real estate, no court of law or equity could, under the common law, entertain any such suit or render any such judgment as is contemplated by the statute of wills of this state.
Therefore, the jurisdiction of the district court under the wills act is an innovation of purely statutory origin. Likewise, the right of a party to invoke such jurisdiction is purely a statutory creation. One of the conditions attached to the exercise of the jurisdiction thus provided for, and the right to call it into exercise, is that proceedings be instituted within two years. Time is of the essence of the power and the right, and lapse of time operates to extinguish both, rather than as a mere bar to a remedy. (Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642, 59 L. R. A. 704.)
In the opinions rendered in Mears v. Mears, 15 Ohio St. 90, McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015, and other cases, it was said that the method of probating wills in the probate courts of this country corresponds nearly to the probate in England in common form, and that the contesting of wills in courts of chancery or courts of like jurisdiction is analogous to the English probate in solemn form. From such statements it is argued that the right to have a will solemnly examined, with interested parties present, is in effect the same right that existed at common law, and the language of this court in the Rodman case is quoted, as follows:
“A limitation upon the time in which a preexisting right of action may be exercised is governed by the general statute of limitations, and, in consequence, falls within the saving provisions of section 23 as above quoted.” (Page 654.)
This argument, however, leaves entirely out of account the creation of a new department of jurisdiction in the district court, upon which time limitations are as restrictive as they are upon new rights of action like that under consideration in the Rodman case. Conceding that as to wills of personalty a contest in the district court is equivalent to probate in solemn form in an ecclesiastical court, still the right of the district court and the right of a contestant to proceed in the district court are as novel and as purely statutory as the right to recover damages for death by wrongful act. Conceding that the incidental determination of the validity of a will between a limited number of parties disputing over the possession of a tract of land is in a sense a contest of the will, yet the right of a contestant to bring into court all persons interested for and against a will and procure a final determination of its validity for all purposes and for all time, irrespective of the title to any particular tract of land, and the right of the district court to hear such a controversy and render such a judgment, are as novel and as purely statutory as the enlargement of right alluded to in the Rodman case.
Those courts that have given the subject most careful attention have arrived at the conclusion that provisions of statutes of the character of the one under consideration are not mere limitations affecting the remedy.
“The act of 1894, chapter 405, provides that no will,, testament, codicil or other testamentary paper shall be subject to caveat or other objection to its validity after the expiration of three years from its probate. . . .
“The object of the act of 1894, chapter 405, was to protect legatees under wills by requiring objections thereto to be made within a reasonable time after probate and while the evidence relating to such objection is attainable. It would to a great extent subvert the purposes and beneficial operation of the statute to hold that a party may file a caveat to a will upon one ground within three years after probate and then, without bringing to trial the issue upon that caveat, wait nearly three years more, or five years after the probate, as was done in this case, and file a caveat alleging a new and distinct ground of objection.
“It makes no difference that in the present case the new issue was added by consent of the counsel for the administrator c. t. a., who defended the will. It will be seen that the language of the statute is imperative, that no objection shall be made after a certain time. This deprives the orphans’ court of jurisdiction to entertain an objection made after such time, and the consent of the parties cannot confer jurisdiction upon a court.” (Myer v. Henderson, 88 Md. 585, 42 Atl. 241, 242.)
“The doctrine is well established in this state, that courts of equity, independently of the statute, have no jurisdiction of a bill to set aside a will, or its probate. The jurisdiction of courts of chancery in this state to entertain such bills is derived exclusively from the statute, and, therefore, such jurisdiction can only be exercised in the mode and under the limitations prescribed by the statute. If ‘any person interested’ shall, within three years after the probate, etc., or, as the law of 1895 requires, within two years after the probate, etc., appear, and, by bill in chancery, contest the validity of the will, an issue at law shall be made up, etc.; but if such person does not appear within the time limited, an issue at law cannot be made up. The appearance within the time limited is a jurisdictional fact, and is necessary to put the machinery of the court in motion, so as to contest the validity of the will. The proviso of section 7 is merely a grant of jurisdiction to be exercised only in case it is invoked within the time limited, and not a limitation upon the exercise of a jurisdiction already existing. In other words, the statute fixing the time, within which such a bill may be filed by ‘any person interested,’ is not a limitation law. Luther v. Luther, 122 Ill. 558, 13 N. E. 166; Wheeler v. Wheeler, 134 id. 522, 25 N. E. 588, 10 L. R. A. 613; Sinnet v. Bowman, 151 id. 146, 37 N. E. 885; Jele v. Lemberger, 163 id. 338, 45 N. E. 279; Spaulding v. White, 173 id. 127, 50 N. E. 224.” (Storrs v. St. Luke’s Hospital, 180 id. 368, 372, 54 N. E. 185, 186, 72 Am. St. Rep. 212.)
In the case of Luther et al. v. Luther et al., 122 Ill. 555, 564, the subject was discussed at length, as follows :
“Counsel for appellants claim that the provision in section 7 for filing the bill within three years is a mere statute of limitations, and that, inasmuch as appellees did not plead the bar of the statute in their answer, they waived it. This position is based upon the theory that the right to contest the validity of the will was not a new right conferred by the statute, but a right which existed at common law before the statute, and that, therefore, the statute merely limits the time within which such right may be asserted.
“Outside of the statute, however, no right existed in favor of the heir to go into a court of chancery to contest the validity of the will. He could not go into equity for any other purpose than to remove impediments to a full and fair trial at law. The power to entertain bills of this character is not embraced among the general equity powers of a court of chancery.
“In Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524, the supreme court of the United States say: ‘In the case in Broderick’s Will the doctrine is approved, which is established both in England and in this country that by the general jurisdiction of courts of equity, independent of statutes, a bill will not lie to set aside a will or its probate, and whatever the cause of the establishment of this doctrine originally, there is ample reason for its maintenance in this country, from the full jurisdiction over the subject of wills vested in the probate courts and the revisory power over their adjudications in the appellate courts.’ (Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599; Gaines v. Chew, 2 How. 619, 11 L. Ed. 402; Gould v. Gould, 3 Story, 516, Fed. Cas. No. 5637; Tarver v. Tarver, 9 Pet. 174, 9 L. Ed. 91; Holden v. Meadows, 31 Wis. 284; Archer v. Meadows, 33 id. 166; 2 Pom. Eq. §913.) Since the decisions of Kendrick v. Braushy, 3 Bro. P. C. 358, and Webb v. Cleverden, 2 Atk. 424, it has been held in England that equity will not set aside a will for fraud and imposition. The same rule has been generally adopted in the United States. Under the common-law system the validity of wills of real estate could only be tested in an action at law; that of wills of personal property was established by the decree of the ecclesiastical court in the proceedings for probate. (2 Pom. Eq. §913.)
“Therefore, as the jurisdiction of courts of chancery in this state to entertain bills to set aside the probate of wills is derived exclusively from the statute, such jurisdiction can only be exercised in the mode and under the limitations prescribed by the statute. ‘If any person interested shall, within three years after the probate, etc., appear and by . . . bill in chancery, contest the validity of the’ will, ‘an issue at law shall be made up,’ etc. If such person does not appear within three years, an issue at 'law cannot be made up. The appearance within three years is a jurisdictional fact, and is necessary in order to put the machinery of the court in motion so as to test the validity of the will. The court has no power to entertain the bill after the three years have passed.”
In the case of Peacock v. Churchill, 38 Ill. App. 634, the syllabus reads:
“Section 7, chapter 148, Revised Statutes, providing for the exhibiting of a bill in chancery to test the validity of a will within three years after probate of the will, is not a statute of limitation but an enabling statute, without which no such bill could be filed. Therefore, section 25, chapter 83, Revised Statutes, concerning general limitations, providing that where a plaintiff has been non-suited (and in certain other contingencies), and if the time for bringing his action has expired during the pendency of his suit, then he shall have one year from the time of such non-suit, etc., in which to commence an action, does not apply to actions commenced to test the validity of a will.”
In the case of Harris et al. v. Harris et al., 61 Ind. 117, 123, it was said:
“It is clear, we think, that actions to contest the validity, and to resist or set aside the probate of an alleged last will, are purely statutory; that is, they can only be brought and successfully maintained in the court, within the time and upon the ground prescribed in and by the statute which authorizes such actions.”
In the case of Bartlett et al. v. Manor et al., 146 Ind. 621, 628, 45 N. E. 1060, 1062, it was said:
“It cannot be seriously questioned that our statute of wills is special with reference to the right of contest, that it creates a right not existing in its absence, and that the right is given upon the condition that it be exercised within three years. As to this right it cannot be doubted, we think, that the general statute of limitations has no effect.”
The two decisions last referred to were approved in the case of The Evansville etc. Co. et al. v. Winsor, by Next Friend, 148 Ind. 682, 48 N. E. 592, the syllabus of which reads:
“Actions to contest the validity and to resist and set aside the probate of a will are purely statutory, and must be brought within the time and upon the ground prescribed by the statute authorizing such actions. The right to contest is not extended or limited by the general statute of limitations contained in the code of civil procedure.”
The fact that the statute concerns itself primarily with the creation and regulation of jurisdiction and procedure, makes the probate of a will conclusive and forever binding, establishes the title to real and per sonal property under probated wills, and creates indisputable evidence of such title, all over and beyond the mere matter of remedy to one who may desire to assume the role of a contestant, so far distinguishes it from a mere statute of limitations that sections of the general statute of limitations cannot modify it. (Cochran v. Young, 104 Pa. St. 338; 19 A. & E. Encycl. of L. 282, 150, 151.)
The cases cited by plaintiff in error are not sufficient to overthrow the reasoning of the foregoing authorities, and the attempts made in his brief to distinguish or to avoid them are inadequate for that purpose. Therefore, the judgment of the district court is affirmed.
William R. Smith, Greene, Mason, Clark A. Smith, JJ., concurring.
Johnston, C. J., dissenting.
Cunningham, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
L. R. Stanley recovered a judgment against the Atchison, Topeka & Santa Fe Railway Company on account of an injury received while in its employ as a brakeman, and the company prosecutes error. The only question of law presented for review is whether the defendant was liable, admitting the facts to be as claimed by the plaintiff. As shown by the evidence, the accident occurred under these circumstances: Several freight-cars were standing upon the house-track near the depot at Independence. It was desired to couple them to a part of the freight-train of which the plaintiff was a brakeman. To this end this part of the train was detached from the engine, after being given sufficient motion to carry it to such cars, the plaintiff accompanying it for the purpose of regulating its speed and doing whatever might be necessary to see that the coupling was properly made. As the portion of the train approached the standing cars the plaintiff alighted from the car on which he had been riding, adjusted its coupling gear, and ran on ahead to examine that of the stationary car. He found that the draw-bar was out of alignment, and attempted to push it into place with his right foot. As the cars came together his left foot slipped, causing him to lose his balance, and his right foot was caught between the couplers and so crushed that amputation was necessary. His slipping was due to the condition of the road-bed as affected by a recent rain.
The negligence charged against the company was in general terms the failure to keep its road-bed at the place of the accident in a reasonably safe condition for such work as its employees might have occasion to perform there in the discharge of their duties. This charge was supported by these specifications, adduced in the course of the testimony: The ground just outside of the track, instead of being ballasted with cinders or other material, or made of solid earth, was formed of loose dirt, rubbish, and sweepings from the adjacent depot, rendering it peculiarly unstable when wet. Its surface was not level, and sloped toward the track. The depot was not provided with eaves-troughs or other means of collecting and disposing of the water that fell upon its roof. Such water was allowed to follow its own course, and in consequence flowed upon the track at the place in question, where it was permitted to remain standing for want of any method of drainage, thereby saturating the soil and making it incapable of affording a firm foothold.
The contentions of the railway company are: (1) That there was no showing of negligence on its part; (2) that the plaintiff’s injury was the result of one of the assumed risks of his employment; (3) that it was due to his own negligence in unnecessarily adopting an unsafe method of effecting the coupling of the cars. So far as relates to the contention last stated, or to any question arising from the manner of making the coupling, it is sufficient to say that under the evidence affecting this matter, which it is not necessary to review in detail, the case is controlled by prior decisions of this court holding under not essentially different circumstances such questions to be for the determination of a jury. (Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586.)
The argument of the plaintiff in error upon the two other propositions proceeds upon the assumption that the injury was occasioned merely by the soil’s becoming slippery through being wet by the falling rain— a condition that arose from the operation of natural causes and was obvious to any person of ordinary perception. If these premises be allowed the conclusion follows logically that the company could not be held responsible, for it of course was under no obligation to roof its station grounds, and the brakeman must be deemed to have known the effect of an ordinary rain upon ordinary soil. But to say that this is all that the case involves would be to ignore the special circumstances upon which the plaintiff relied for a recovery.
Granting that a railway company cannot be required to use artificial ballast upon its road-bed, even in its depot grounds, and that any irregularity of surface is immaterial with respect to switching operations performed in the daytime, it remains to consider the effect of the evidence, which this court must accept as true, that the condition complained of arose not from the natural fall of the rain upon the natural soil but from water that had fallen elsewhere flowing and remaining upon a road-bed rendered peculiarly susceptible to moisture by being made in part of rubbish and sweepings. This was a condition that could have been avoided or corrected, and the fact that it was permitted to exist, and to continue, tended in some degree to establish the claim that the company was negligent in failing to keep its road-bed reasonably safe for the performance of the duties required of its employees. The plaintiff is not chargeable with knowledge of the dangerous condition of the road-bed. The jury found that he did not in fact know of it. The finding has support in the evidence, and it cannot be said as a matter of law that his opportunities for examination were such that in the exercise of reasonable care and diligence he must have discovered it. These considerations require an affirmance of the judgment.
The jury, in answer to several interrogatories submitted, not content with returning categorical answers, added explanatory statements having the color of arguments in support of the general verdict. While the practice is a bad one, it cannot be said that in this case its adoption showed such an unfair or biased attitude as to require a new trial.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Plaintiffs brought this action against the defendant as a common carrier to recover the value of household goods shipped by them over the defendant’s line of road from Minneapolis, Minn., to-the Fifth street depot in Kansas City, Kan. The wrong alleged was that, through the negligence of the defendant, the goods were carried past their destination and into Kansas City, Mo., and there unloaded from the car and stored in defendant’s depot, where they were destroyed by fire. A judgment having been rendered for the value of the goods, the defendant prosecutes this proceeding in error.
The defendant pleaded a special agreement, signed by W. T. Dunlap, one of the plaintiffs, in which he agreed, in case of total loss or damage to the goods, to accept' five dollars per hundredweight.
The agreement relied upon by the defendant is as follows:
“Chicago Great Western Railway,
“property release.
“Minneapolis, Minn., 10-17-1902.
“Consignee and destination: W. T. Dunlap, Fifth street depot, Kansas City, Kan.
“Description of articles: Lot of H. H. goods. (Released to valuation of $5 per hundred pounds in case of total loss or damage.)
“The Chicago Great Western Railway Company having received the above property from W. T. Dunlap, consigned to W. T. Dunlap, for transportation on their line from Minneapolis, Minn., station, to Fifth street depot, Kansas City, Kan., station, I do hereby release the said company, and all other transportation companies over which said property must pass to arrive at its destination, from all liability from chafing, breakage or damage of whatever kind, except such as may occur from negligence of the company by collision of trains, or by cars being thrown from the track in course of transportation, and I agree to pay all charges accruing on the same at tariff rates.
“I do also release said company from all loss or damage that may occur to any freight shipped by me, above entered, after it has been unloaded from the cars at Kansas City station on their line.
W. T. Dunlap, Shipper.
“Witness: Theo. Hedstrom.”
The defendant also alleged that the goods arrived in Kansas City and were unloaded from the car and placed in the defendant’s station-house on the 21st day of October, 1902; that the same day W. T. Dunlap was notified through the mail of their arrival but neglected to send for or remove the goods within a reasonable time; that he permitted them to remain in the station-house of defendant until the 25th day of October, 1902, at which date, without fault or negligence on the part of defendant, its station-house, together with the goods, was destroyed by fire.
The fact is undisputed that the defendant carried the goods to Kansas City, Mo., where they were unloaded and stored in its freight-station, and there destroyed by fire.
Plaintiff in error contends: (1) That plaintiffs failed to notify it within thirty days after the time when the goods should have arrived at their destination that they had not been received; (2) that if the goods were destroyed through the negligence of plaintiff in error it could only be held liable therefor at the rate of five dollars per hundredweight. A bill of lading was introduced in evidence, which contained a condition requiring the shipper to notify defendant within thirty days after the time when the goods should have arrived at their destination that they had not been received. The plaintiffs did not comply with this condition.
The defendant pleaded a specific agreement giving it immunity from certain of its common-law liabilities, but did not plead the provisions of the bill of lading now invoked, nor did it ask the court to give the jury any instructions on this contention. Where a common carrier relies upon a special agreement which relieves it from any of its common-law liabilities it must bring itself within the exceptions by its pleadings. In Southern Pac. Co. v. Arnett et al., 111 Fed. 849, 50 C. C. A. 17, it was said:
• “A special contract exacted by a carrier is a defensive ■ weapon to be used by the carrier when sued by the shipper for an alleged violation of duty against which it was designed to afford, protection, and a shipper suing to recover damages for negligence, on account of which the carrier is liable notwithstanding the contract, is not required to declare upon such contract.”
To the same effect are McCoy v. The K. & D. M. R. Co., 44 Iowa, 424; Lindsley v. Chicago, Milwaukee & St. Paul Ry. Co., 36 Minn. 539, 33 N. W. 7, 1 Am. St. Rep. 692; Green et al. v. Indianapolis & St. Louis R. R. Co., 56 Mo. 556; Western Transportation Co. v. Newhall et al., 24 Ill. 466, 76 Am. Dec. 760; Gaines v. Union Transportation and Ins. Co., 28 Ohio St. 418; T. W. & W. R. W. Co. v. Hamilton et al., 76 Ill. 393.
In volume 6 of the Cyclopedia of Law and Procedure, at page 519, it is said:
“So if the carrier seeks to escape liability on the ground that the loss of or injury to the goods is one excepted by a valid special contract, he has the burden of proving not only the making of such special contract, but also that the loss or injury for which action is brought falls within a specified exception contained in such special contract.”
Counsel for plaintiff in error rely on Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, to support the contention that plaintiffs were required to prove they had given the notice provided for in the bill of lading. That case is distinguishable from the present case in this: That action was brought upon a contract, a condition of which was that within a certain time, and before plaintiff could recover, he was required to give a certain notice. The present action is not on contract.
In the present case, if the defendant had other legal reasons why it should not be held for the loss of plaintiff’s property it should have pleaded them. Not having done so, it is held to have waived all such defenses.
The second contention is that in no event is the defendant liable for a greater amount than the value of the goods at five dollars per hundredweight. Assuming the agreement limiting defendant’s liability to be good, it was made with reference to the obligation which the defendant assumed, viz., to ship the goods over its line to the Fifth street depot in Kansas City, Kan. The agreement did not contemplate the carriage of the goods beyond their destination, or that they would be unloaded from the car and stored in a place other than at their destination. The agreement anticipated a shipment of the goods over defendant’s regular route of travel from the place of receipt to their destination, and a delivery at the station mentioned in the agreement. A common carrier is liable for goods lost in transit, where it unnecessarily deviates from the regular route of travel, or unnecessarily stops the goods short of their destination, or carries them beyond their destination, if destroyed while outside the regular line of travel, or at either of such places of stoppage, notwithstanding an agreement limiting its common-law liability, unless such agreement makes provisions for such deviation or stoppage. (Powers v. Davenport, 7 Blackf. [Ind.] 497, 48 Am. Dec. 100; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; Robertson v. N. S. Co., 139 N. Y. 416, 34 N. E. 1053; The Georgia Railroad Co. v. Cole & Co., 68 Ga. 623; Phillips et al. v. Brigham, Kelly & Co. et al., 26 Ga. 617, 71 Am. Dec. 237.)
In Merchants’ Despatch Tr. Co. v. Kahn et al., 76 Ill. 520, where the goods were received at Manchester, Mass., to be transported to Mattoon, Ill., they were carried by way of Chicago instead of by way of Indianapolis, the usual route, and while stored in Chicago awaiting a reshipment they were destroyed by the great fire of 1871. It was held that the carrier was not exempt from liability on the ground of inevitable accident, as there was no compulsion to take the goods through Chicago.
In the case of The S. D. Seavey Co. v. The Union Transit Co., 106 Wis. 394, 82 N. W. 285, the defendant received a consignment of goods from plaintiff at West Superior, upon a bill of lading providing for transportation over the company’s road in care of a certain steamship company at Buffalo, from which point to West Superior the latter operated a regular line of boats. At Buffalo the railroad company delivered the goods to a different steamship company, which contracted to transport the goods to West Superior on a specified vessel. At Duluth the goods were transferred to a railroad company to be carried to West Superior, and while in possession of such railway company the goods were damaged. It was held that the delivery to another carrier at Duluth was a breach of the defendant’s contract and rendered it liable as an insurer for any injury or loss that would not have occurred had it performed its duty.
It is unnecessary to take up separately each of the contentions of the plaintiff in error, as they all fall within one of the principles here discussed. There was no material error committed in the trial of the cause.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
At the time the injury complained of
in this litigation was inflicted the Atchison & Eastern Bridge Company was engaged in the erection of false w ork essential to the reconstruction of a bridge across the Missouri river at the city of Atchison. The false work served as a substructure of the old bridge during the dismantling process, of the new bridge as piece by piece it replaced the old one, and of a temporary bridge for highway purposes alongside the bridge proper, over which railway traffic was not interrupted. Many men were employed in many kinds of service. A single superintendent managed the entire work, various branches of which were in charge of foremen w7ho directed the operations of separate squads and gangs. Material was assembled and distributed by skiffs and barges on the river and by cars on the bridge-tracks. Many kinds of tools and much machinery were used and transported from place to place. Piles were driven and braced and capped and a multitude of subsidiary acts performed, all to the ultimate end that the false work might be brought to completion.
Stationary engines w^ere used to hoist material and to drive the piling. These engines were located in the midst of the work, upon the barges, upon the bridge, and upon the false work. The plaintiff’s intestate, Miller, was employed as a machinist by the bridge company to repair them, and, in addition, to operate them when necessary. On the first day of his service, while he was engaged in repairing an engine situated on the bridge and only three feet from its north edge, a pile-driver barge moored below him and the crew undertook to drive a pile. It met with an obstruction which rendered it necessary to raise it and resharpen the point. While it was suspended for that purpose, its top towering thirty feet above the floor of the bridge, it fell, and Miller was knocked under the wheels of a passing train, where he received injuries from which he died. His administratrix recovered a judgment against the bridge company, to reverse which this proceeding in error was instituted.
On the trial it sufficiently appeared that the injury was caused by the negligence of a member of the pile-driving crew in fastening the chain used to lift and hold the pile in suspension. The jury, however, returned special findings of fact which raise the question whether the member of the pile-driving crew charged with the duty of adjusting the chain was not a fellow servant of Miller in the general enterprise of constructing the false work. Such findings, arranged as well as they may be to develop the subject, are as follow:
“81. State whether or not the defendant at the time the pile fell was engaged in the undertaking of constructing false work to support the ironwork of the bridge during the progress of reconstruction. A. Yes.
“82. State whether or not, in constructing such false work, stationary engines were used for the purpose of raising and lowering ^timbers and on stationary and barge pile-driver. A/ Yes.
“83. State whether or not Miller was employed to do any necessary work done on the stationary engines used by the defendant, which required attention from a machinist. A. Yes.”
“851/2. If you answer question No. 83 in the af firmative, state what, if anything, in addition to work as a machinist, Miller was employed to do. A. Run an engine.”
“106. State whether or not, in the course of practice on that work, men in one crew were interchanged with men in others, in the judgment of the superintendent. A. Yes.”
“84. State whether or not the work which Miller took service to perform would require him to work in and around the places where other men engaged in putting up the false work were at work. A. Yes.
“85. State whether or not the work which Miller took service to perform required him to work in and about places where negligence on the part of other employees engaged in putting in the false work might result in injury to him. A. Yes.”
“24. Was the line of service in which said William I. Miller was employed that of a machinist to repair and keep in order the hoisting-engines and machinery used by the defendant company in the prosecution of its work? A. Yes.
“25. Was the duty and work in which the barge-crew was employed at the time of the injury to said Miller that of operating the machinery upon the barge and hoisting and driving piling in the bed of the Missouri river? A. Yes.”
“14. At the time said William I. Miller, deceased, received the injuries from which he died, was he engaged as a machinist in repairing a hoisting-engine upon the floor of defendant’s bridge? A. Yes.”
“1. Did a pile fall in the direction of and toward William I. Miller, deceased, at the time he received the injury from which he died? A. Yes.”
“15. If you answer question 1 ‘Yes,’ or in the affirmative, then was such pile being raised about ten feet north and east from where said Miller was then at work? A. Yes.
“16. If you answer question 1 ‘Yes,’ or in the affirmative, then was such pile being raised from a barge or boat floating on the river ? A. Yes.
“17. If you answer question 16 ‘Yes,’- or in the affirmative, then was such barge or boat about twenty feet lower elevation than the floor of the defendant’s bridge? A. Yes.
“18. If you answer question 16 ‘Yes,’ or in the af firmative, then was such pile raised until the top was about thirty feet higher than the floor of defendant’s bridge? A. Yes.”
“39. State whether or not the engine upon which Miller was working was located about three feet from the north side of the bridge. A. Yes.”
“79. State whether or not Miller was working at the time on the engine within ten or fifteen feet of the pile-driver. A. Yes.
“80. State whether or not Miller, at the time the pile fell, was working where he could see the operations upon the pile-driver. A. Yes.”
These facts are sufficient to enable the court to draw the proper conclusion of law as to the relation of the deceased and the chainman of the pile-driver crew.
Each party to the suit sought the legal opinion of the jury upon certain phases of the controversy. To the plaintiff the jury responded as follow:
“21. Were said William I. Miller, deceased, at the time he received the injury from which he died, and the barge- or boat-crew employed in raising the pile, engaged in different lines of work or employment? A. Yes.
“22. Were the work and duties of said William I. Miller such as to bring him into habitual association with said barge-crew, so that he might exercise an influence upon said barge-crew promotive of proper care and caution, and the line of employment of said barge-crew such that they might exercise an influence upon said Miller promotive of proper care and caution? A. No.
“23. At the time said Miller received the injuries from which he died, was he working in a different line of duty and service from that in which the barge-crew was at work and employed? A. Yes.”
To the defendant they answered thus:
“86. State whether or not all of the employees engaged in constructing, false work to support the iron-, work of the bridge during process of reconstruction, or in aiding them in such work, were engaged in the common enterprise of constructing such false work. A. Yes.”
This court can say whether the repair of engines is a different kind of service from pile-driving, whether from the nature of their duties and the situations of the machinist and the chainman they might in their work exercise an influence upon each other promotive of care and caution, and whether they were both engaged in a common enterprise, as well as the jury; and the questions and answers last presented are reproduced here chiefly for the purpose of elucidating the theories of counsel respecting the rules of law applicable to the case.
From these questions and answers it is apparent the plaintiff relies upon the so-called “departmental” and “consociation” limitations of the fellow-servant rule acknowledged in certain jurisdictions, while the position of the defendant is that identity of department and consociation of duties are not tests of the master’s liability, but that, if the injured and the injuring servants work under the control of a common master in a general employment directed to a common end, the master is not liable, provided, of course, the neglected duty be not one which the master himself must perform.
There is much force in the defendant’s argument that the master is not liable in this case even under the consociation theory of the relation between the servants. Miller’s duties called him into the most intimate association with the other men. The conduct of each was at all times likely to affect the others. If his tools should fly from his hand or a separated part of the machinery he was repairing should escape him they might strike á member of the barge-crew. If a pile were unskilfully handled it might strike him. Trucking crews passing and repassing with tools, machinery and materials might injure him, and carelessness in his conduct might injure them. When he was injured he was within ten or fifteen feet of the barge-crew, and in plain view of the pile which hung almost over him, and his duties constantly exposed him to such perils. The nature of his employment was such that he might have been repairing or even running the engine used for hoisting the pile which fell at the time it fell. He was almost as intimately related to the chainman as the engineer upon the barge.
In states where the consociation doctrine prevails it is held that the length of time the different servants may have been at work is not material, and that all of them need not be engaged to do work precisely identical in kind.
“It is true they might have been fellow servants in the strictest sense, and yet they might not have been associated an hour before the happening of the injury. What is meant is, if the parties continue to be engaged in a common service they will be habitually associated, so that they may exercise any influence over each other promotive of common safety.” (Chicago & Alton R. R. Co. v. Hoyt, 122 Ill. 369, 375, 12 N. E. 225, 227.)
“The fact that an employee was only temporarily engaged at a particular task and that he had no acquaintance with his colaborers does not operate to bar the application of the doctrine of fellow servants.” (Klees v. C. & E. I. R. R. Co., 68 Ill. App. 244.)
“It is an error to suppose that a force of men cannot be engaged in a common service unless all are continuously working at the same time and engaged in doing precisely the same kind of work. It is sufficient if all are actually employed by the same master, and that the work of each, whatever it may be, has for its immediate object a common end or purpose, sought to be accomplished by the united efforts of all. The skill of a carpenter, blacksmith, or other mechanic, might be very useful in removing a wreck, and when thus working together in such a service, though each one in his own particular way, they are all, within the meaning of the rule, engaged in a common employment.” (Abend v. T. H. & I. R. R. Co., 111 Ill. 202, 211, 58 Am. Rep. 616.)
If this be true, all the conditions of the consociation doctrine are fairly satisfied in this case, since the findings of fact disclose a very necessary dependence of the machinist and the pile-drivers upon each other’s care and vigilance for mutual safety, and abundant opportunity for the operation of reciprocal influences conducive to their common welfare.
It is not the purpose of the court, however, to rest its decision upon this ground, if another and more fundamental one be discoverable.
If the decisions of this court show that it has in the main consistently adhered to a logically defensible theory respecting the liability of a master for an injury to one of his servants caused by the negligence of another, those decisions and the theory upon which they proceed ought to be followed unless great injustice would result from doing so. To discover the true position of the court upon this subject an examination of its leading and best-considered cases is necessary.
In the early case of Dow v. Kansas Pacific Rly. Co., 8 Kan. 642, it was held that a conductor and a brakeman of the same railway-train are fellow servants. The court was greatly impressed with the duty of railroad companies to make their service safe to the traveling public, and, believing that the watchfulness over each other of officers and agents charged with the running of trains would tend to promote the general welfare, it apparently undertook to encourage such conduct by preventing a recovery against the master in case one of those servants should injure .another. In the opinion it was said, at page 645:
“The paramount object of nearly ah the rules of law concerning the operation of railroads is security to the person and lives of human beings, and particularly security to the persons of passengers being transported on the trains from one portion of the country to another; and in order to insure this security the railroad companies are held to the strictest accountability with regard to passengers. They must use the utmost care and skill within the scope of human foresight or human knowledge practicable. They are liable to passengers for the slightest négligence on the part of their agents or servants. But this is not all. A rule must be adopted that will insure the most skilful and trustworthy agents and servants. . . . But it is also the policy of the law to make it to the interest of every servant or. agent of the railroad company to see that every other servant or agent of the company is competent and trustworthy. This may be done by making it to the interest of every employee of the railway company to inform the company of every act of any other employee showing a want of skill, care or competency. The employees of the railway company have the best opportunities of knowing the competency and trustworthiness of the other employees of such company; and if they do not think the other employees are competent or careful, let them either inform the company, so that the incompetent or negligent employees may be discharged, or themselves quit the service of the company. Who can know better whether a conductor of a railroad-train is competent and trustworthy.than the brakeman of the same train? . . . As to passengers, and generally as to any person not in the employ of the company, the negligence of any agent or servant of the company is the negligence of the company. As to such persons even the negligence of the brakeman is the negligence of the company. But as between coemployees no one is peculiarly the representative of the company more than another, except perhaps the higher officers whose duty it is to employ and discharge the other employees, and therefore as between coemployees the negligence of none but the higher officers aforesaid is the negligence of the company. If such higher officers are not careful and diligent in employing and discharging or retaining the other employees then the company is responsible to the other employees for the negligence of such employees as may have been employed or retained without proper care.”
From these extracts it is plain, however, that the court was not attempting to establish a general foun dation for the law of coservice. Finding a peculiar state of facts to which the reasoning of the opinion would apply, it drew a limited conclusion, without discussing the bearing of the argument upon broader subjects. It was sufficient to make the interest of the public the controlling consideration in determining who should be liable for the negligent infliction of injuries upon each other by persons charged with the running of trains. As far as it went the opinion was an affirmation of the views of Chief Justice Shaw in the epoch-making case of Farwell v. Boston and Worcester Rail Road Corporation, 45 Mass. 49, 58, 59, 38 Am. Dec. 339. In that case it was said:
“If we look from considerations of justice to those of policy, they will strongly lead to the same conclusion. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned. This is, in truth, the basis on which implied promises are raised, being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances. To take the well-known and familiar cases already cited; a common carrier, without regard to actual fault or neglect in himself or his servants, is made liable for all losses of goods confided to him for carriage, except those caused by the act of God or of a public enemy, because he can best guard them against all minor dangers. . . . The liability of passenger carriers is founded on similar considerations. They are held to the strictest responsibility for care, vigilance, and skill, on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the risk upon those who can best guard against it. (Story, Bail. §590 et seq.)
“We are of opinion that these considerations apply strongly to the case in question. Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each de pends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means, the safety of each will be much more effectually secured, than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer.”
This interest of a portion of the public in a particular employment, however, cannot furnish a sound basis from which to determine the liability of masters generally. In multitudes of cases employees may not be able to exert any appreciable influence upon each other and yet the risk of injury from a coservant be one clearly within the comprehension of the parties when the relation of master and servant was formed.
In the Farwell case the effect of the consociation of employees and their separation into departments upon the liability of the master was reasoned out as follows, at page. 60:
“It was strongly pressed in the'argument, that although this might be so, where two or more servants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security; yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish, what constitues one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be, to be in the same or different departments. In a blacksmith’s shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk, several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight and voice, and yet acting together.
“Resides, it appears to us, that the argument rests upon an assumed principle of responsibility which does not exist.. The master, in the case supposed, is not exempt from liability, because the servant .has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer; but because the implied contract of the master do,es not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in- tort, as for the negligence of his servant, because the person suffering does not stand toward him in the relation of a stranger, but is one whose rights are regulated by contract express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow servant, does not depend exclusively upon the consideration, that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liabilty, when it does not arise from express or implied contract;”
Commenting upon this argument, the supreme court of Rhode Island, in an opinion of much force and clearness, said:
“The reasons here set forth are a strong answer to the position taken in the Illinois cases. They show an obvious impracticability in trying to gage the liability of an employer, in a complex business, by the independence of its different branches, or by the in tercommunication of those employed. Not only would it be almost impossible, in many cases, to separate the work into distinct departments and to discern their dividing lines, but incidental duties, changing the relations of workmen to each other, would vary also the master’s liability. He would thus be liable for the negligence of a servant at one time or place and not at another. Without a personal supervision of all his help in all their work, he could not know when he was responsible and when he was not. Moreover, such a rule would govern the liability of a master when the groundwork upon which the rule is founded did not exist. For if the test of liability be that of the separate and independent duties of the servants, they may, nevertheless, be so near each other as to be able to exert a mutual influence to caution; or, if it be that of association, they may still be in the same department, but unable, from their duties or position, to exert such influence. But, aside from these considerations, we do not think the rule is correct in principle. The principle upon which the determination of Farwell v. Boston & Worcester R. R. Corp. proceeded is the same that has been generally followed in England and in this country, namely, that the rights and liabilities of both master and servant are those which grow out of their contract relation. The master impliedly agrees to use due care for the safety of his servant, in providing suitable places and appliances for work; and, as is universally conceded, the servant agrees to assume the ordinary risks of his employment. The most common risks of service spring from the negligence of fellow servants. When one works with others, he knows that his safety depends on the exercise of care by those around him, as their safety depends also upon his own caution. No man can enter into an employment without a thought of this. Negligence, therefore, among workmen is a breach of the duty which each owes to the others, and not a breach of the master’s duty, if he has exercised the care that is required of him. For his own negligence the master must answer, but for that of others, which is a risk incident to every employment, he has not agreed to be responsible, but on the contrary the servant has impliedly agreed to assume it upon himself.” (Brodeur v. The Valley Falls Company, 16 R. I. 448, 451, 17 Atl. 54, 55.)
In the Dow case it will be observed that the distinction between superior and inferior servants is made to lie in the nature of the duty to be" performed and •not in mere rank or grade. The simple fact that an officer or agent hires or discharges men does not in itself make the master liable for his conduct generally, but the negligence of such an officer or agent as a representative of the master in hiring or retaining incompetent employees entails responsibility if injury result.
In the case of K. P. Rly. Co. v. Salmon, 14 Kan. 512, the limit of the master’s liability to his employees was quite clearly perceived and stated. It was said, in effect, that upon officers and agents who may employ, retain or discharge men rests the duty of exercising reasonable care and diligence in furnishing a sufficient number of competent employees for the work to be done. Those who have the power to furnish implements, machinery or materials to other employees must furnish them in sufficient number and amount and of proper kind to accomplish the work. These officers, agents and employees discharge duties of a higher kind than those who merely do the work, and to that extent are regarded as higher or superior. Their employment in respect to such matters is not common with that of other employees. Having thus distinguished the duties which the master must perform, the court said, at page 524:
“A railway company is not responsible to one employee for the negligence of another employee where they are both engaged in the same common employment. . . . The grade of the employee within the particular employment does not generally make much difference. If the employee performs the duties of one of the higher officers, agents or servants, of which we have already spoken, the company is generally responsible for his negligence, whatever may be his grade. But if he is engaged in the same common employment with other employees, the company is generally not re sponsible for his negligence to the other employees, although he may be in fact the foreman for that particular work.”
In the case of K. P. Rly. Co. v. Little, 19 Kan. 267, a superintendent had entire charge of the work of building' a culvert. It was his duty to inspect machinery and see that it was in good order. A derrick became defective, to the knowledge of the superintendent, who failed to repair it, in consequence of which it fell and injured a workman. In the opinion it was said, at page 270:
“Owens however had the power to inspect said materials, tools, and implements, and if not sufficient or if they became insufficient to apply to his superior officers for others. The jury found specially that ‘it was the duty of Owens to inspect the derrick, and see that it continued in good order.’ Said derrick was sufficient and in good order when Owens received it. But afterward by use it became insufficient. . . . That Owens was negligent in using said derrick after he knew that it had become insufficient and unsafe, we suppose no one will question; but whether this negligence was the negligence of the railroad company, may be questioned, and is questioned. We think it was. Owens was the only representative that the railroad company had upon that work. He was really the superintendent of the railroad company for that particular work. As to the laborers on the work he was the railroad company itself. If he had been merely a foreman working under a common employer, a common master, a common principal, along with the other employees, then we suppose under the authorities he would have been only a fellow servant with the others and the company would not have been responsible for his negligence toward the others. But he was not merely a foreman working with the others under a common employer. As to the others he was the employer himself. He was their master, their principal.”
Further on in the opinion it was stated, by way of showing the complete authority of the superintendent, that he hired and discharged men, but the basis of the decision is the master’s failure to furnish to his employees safe instrumentalities with which to work.
In the case of A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, 644, the true rule was stated by Mr. Justice Valentine in the following luminous way:
“In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow servants to work with him; and when the master has properly discharged these duties, then, at common law, the servant assumes all the risk and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow servants and coemployees. And at common law, whenever the master delegates to any officer, servant, agent or employee, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent or employee stands in the place of the master and becomes a substitute for the master, a vice-principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence. But at common law, where the master himself has performed his duty the master is not liable to any one of his servants for the acts or negligence of any mere fellow servant or coemployee of such servant, where the fellow servant or coemployee does not sustain this representative relation to the master; nor is he liable for the failure of still other servants to perform certain acts, where the performance of such acts does not come within the proper line of their duties.”
This language has been quoted as authoritative by a large number of the state courts of this country and by the supreme court of the United States. It was written upon the theory that the negligence of co- servants is not a breach of the master’s duty but a breach of the duty of servants toward each other; that the risk of injury from the negligence of fellow employees is one of the ordinary risks of any employment which are assumed when the contract of service is made; and that whatever in this respect the servant could reasonably foresee entered into the terms of his compensation.
In the case of the St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176, it was held that a section-foreman or section-boss whose duty consisted in keeping a railway-track in a safe condition for the operation of trains was not a coemployee or fellow servant with the engineer of a locomotive drawing a train. In the opinion something of the confusion, even then deeply confounded, exhibited by the authorities upon the law of coservice is reflected. In portions of the opinion the results of consociation and departmental separation are given weight, but the test of the liability of the master is finally placed upon the character of the duty to be performed and not upon the assignment of servants to different lines of employment or their opportunity to become acquainted with or to influence each other. The conclusion of the court was thus expressed, at page,430:
“Therefore, where a railroad company delegates, directly or indirectly, to a section-boss or section-foreman the duty of keeping a certain section of the railroad in proper condition and repair, and to warn trainmen in case of danger, and the section-boss fails to perform his duty in these respects, and a trainman is injured by reason of such negligence, the railroad company is responsible.”
In the case of Mo. Pac. Rly. Co. v. Peregoy, Adm’x, 36 Kan. 424, 14 Pac. 7, the opinion was written by a commissioner. Language is used recognizing the so-called superior control limitation of the common-law fellow-servant rule and a quotation from K. P. Rly. Co. v. Salmon, supra, is inserted in a manner indicating a misapprehension of the meaning of that case; but stable ground for the decision is reached in the second paragraph of the syllabus, which reads as follows :
“Where such foreman directed an unskilled apprentice to do work that requires a skilled mechanic to perform, and directed him to call to his assistance other employees also ignorant of said work; and said work was dangerous, and such danger was known to the foreman, and was unknown to such employees, and no notice was given to them of the danger, and the foreman failed to give them instructions which, if given and followed, would have prevented the accident, and one was killed while at said work, the employer is liable in an action for damages.”
Under all the authorities such a risk is not one ordinarily incident to an employment; but to hold a company liable merely because the person injured was working under a foreman would undermine the authority of all the preceding Kansas decisions, some of which contain statements directly to the contrary. The necessary conclusion following a consideration of them is that unless the duty neglected be one which the master is bound to perform he cannot be liable, no matter what servant may be careless. He cannot be “represented” except in respect to his duty to furnish a safe place, careful employees, and the like. Having discharged this duty his responsibility ends, and distinctions of rank and grade as between the injured and injuring servant are of no consequence whatever.
In the year 1898 the opinion in the case of Walker v. Gillett, 59 Kan. 214, 52 Pac. 442, was promulgated. It held that a train conductor is not a fellow servant with a brakeman acting under his orders. The only Kansas case cited in support of the opinion is that of A. T. & S. F. Rld,. Co. v. Seeley, 54 Kan. 21, 37 Pac. 104, which has no application, because the neglected duty there under consideration was one of inspection which the master was bound to perform, and the decision was expressly placed upon that ground. The Dow case, supra, which decided the same question in exactly the opposite way, and which had stood as law in this state for twenty-seven years, was not given even a passing reference. The doctrine in the Ross case, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787, was adopted in full. From the decision in the Ross case four justices dissented. When the Walker case was decided the Ross case already had been questioned and branded as “extreme” by this court in the Weaver ease, supra. The supreme court of the United States had already receded from its doctrine, and the next year its authority was expressly repudiated in the case of New England Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181, the head-notes of which are as follow:
“The negligence of a conductor of a freight-train is the negligence of a fellow servant of a brakeman on the same train, who was killed by an accident occurring through that negligence.
“The negligence of such conductor is not the negligence of the vice- or substituted principal or representative of the railroad company running the train, and for which that corporation is responsible.
“The general rule of law is that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment.
“An employer is not liable for an injury to one employee occasioned by the negligence of another engaged in the same general undertaking; it is not necessary that the servants should be engaged in the same operation or particular work; it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and ac cordingly, in the present case, upon the facts stated, the conductor and the injured brakeman are to be considered fellow servants within the rule.”
If the discredited Ross case and the Walker case are to stand as authorities in this state, instead of the Conroy case and the Dow case, they must stand as arbitrary exceptions in the law of coservice, and not because they are justifiable upon any of the basic principles of that subject. Whether just cause exists for such a radical innovation cannot be determined in this case. It is the present purpose of the court to find and state and adhere to a logical doctrine, if that can be done.
Since qualifications of the fellow-servant rule on account of department, rank, grade, control and consociation are all substantially similar and all contradict the same fundamental propositions in the same way, the reasoning by which the supreme court of the United States overthrew the Ross case applies to the case at bar, and extracts from its opinions upon the subject are pertinent here. In the case of B. & O. Railroad v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772, Mr. Justice Brewer said:
“If the business of the master and employer becomes so vast and diversified that it naturally separates itself into departments of service, the individuals placed by him in charge of those separate branches and departments of service, and given entire and absolute control therein, are properly to be considered, with respect to employees under them, vice-principals, representatives of the master, as fully and as completely as if the entire business of the master was by him placed under charge of one superintendent. It was this proposition which the court applied in the Ross case, holding that the conductor of a train has the control and management of a distinct department. But this rule can only be fairly applied when the different branches or departments of service are" in and of themselves separate and distinct. Thus, between the law department of a railway corporation and the operating department, there is a natural and distinct separation, one which makes the two departments like two independent kinds of business, in which the one employer and master is engaged. So, oftentimes there is in the affairs of such corporation what may be called a manufacturing or repair department, and another strictly operating department; these two departments are, in their relations to each other, as distinct and separate as though the work of each was carried on by a separate corporation. And from this natural separation flows the rule that he who is placed in charge of such separate branch of the service, who alone superintends and has the control of it, is.as to it in the place of the master. But this is a very different proposition from that which affirms that each separate piece of work in one of these branches of sérvice is a distinct department, and gives to the individual having control of that piece of work the position of vice-principal or representative of the master. . . .
“The truth is, the various employees of one of these large corporations are not graded like steps in a staircase, those on each step being as to those on the step below in the relation of masters and not of fellow servants, and only those on the same steps fellow servants, because not subject to any control by one over the other. Prima facie., all who enter into the employ of a single master are engaged in a common service, and are fellow servants, and some other line of demarcation than that of control must exist to destroy the relation of fellow servants.' All enter into the service of the same master, to further his interests in the one enterprise; each knows when entering into that service that there is some risk of injury through the negligence of other employees, and that risk, which he knows exists, he assumes in entering into the employment. . . .
“The danger from the negligence of one specially in charge of the particular work is as obvious and as great as from that of those who are simply coworkers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for the one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master’s exemption from liability depends upon whether the negligence is one of the ordinary risks of the employment, and, thus assumed by the employee, it includes all coworkers to the same end, whether in control or not. . . .
“Therefore it will be seen that the question turns rather on the character of the act than on the relations of the employees to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor. But, it may be asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing such safe place and machinery, and so the former is as fully discharged, when reasonable precautions have been taken to place fit and competent persons in charge.”
In the case of Northern Pacific Railroad v. Hambly, 154 U. S. 349, 360, 14 Sup. Ct. 983, 38 L. Ed. 1009, Mr. Justice Brown said:
“To hold the principal liable whenever there are gradations of rank between the person receiving and the person causing the injury, or whenever they are employed in different departments of the same general service, would result in frittering away the whole doctrine of fellow service. Cases arising between persons engaged together in the same identical service, as, for instance, between brakemen of the same train or two seamen of equal rank in the same ship, are comparatively rare. In a large majority of cases there is some distinction either in respect to grade of service, or in the nature of their employments. Courts, however, have been reluctant to recognize these distinctions unless the superiority of the person causing the injury was such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no farther in contact with each other than as if they had been employed by different principals.”
In the case of Central Railroad Company v. Keegan, 160 U. S. 259, 266, 16 Sup. Ct. 269, 40 L. Ed. 418, the court quoted approvingly the following language from the decision in O’Brien v. American Dredging Co., 53 N. J. L. 291, 297, 21 Atl. 324:
“Whether the master retains the superintendence and management of his business, or withdraws himself from it and devolves it on a vice-principal or representative, it is quite apparent that, although the master or his representative may devise the plans, engage the workmen, provide the machinery and tools and direct the performance of work, neither can, as a general rule, be continually present at the execution of all such work. It is the necessary consequence that the mere execution of the planned work must be entrusted to workmen, and, where necessary, to groups or gangs of workmen, and in such case that one should be selected as the leader, boss or foreman, to see to the execution of such work. This sort of superiority of service is so essential and so universal that every workman, in entering upon a contract of service, must contemplate its being made use' of in a proper case. He therefore makes his contract of service in contemplation of the risk of injury from the negligence of a boss or foreman, as well as from the negligence of another fellow workman. The foreman or superior servant stands to him, in that respect, in the precise position of his other fellow servants.”
In the case of Northern Pacific Railroad v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994, the headnote reads:
. “H. was foreman of an extra gang of laborers for plaintiff in error on its road, and as such had charge of and superintended the gang in putting in ties and assisting in keeping in repair three sections of the road. He had power to hire and discharge the hands (13 in number) in the gang, and had exclusive charge of their direction and management in all matters connected with their employment. • The defendant in error was one of that gang, hired by H., and subject, as a laborer, while on duty with the gang, to his authority. While on such duty the defendant in error suffered serious injury through the alleged negligence of H., acting as foreman in the course of his employment, and sued the railroad company to recover damages for those injuries. Held, that H. was not such a superintendent of a separate department, nor in control of such a distinct branch of the work of the company, as would be necessary to render it liable to a coemployee for his neglect; but that he was a fellow workman, in fact as well as in law, whose negligence entailed no such liability on the company as was sought to be enforced in this action.”
In delivering the opinion of the court Mr. Justice Peckham said, at page 355:
“In the Baugh case it is also made plain that the master’s responsibility for the negligence of a servant is not founded upon the fact that the servant guilty of the neglect had control over and a superior position to that occupied by the servant who was injured by his negligence. The rule is that in order to form an exception to the general law of non-liability the person whose neglect caused the injury must be ‘one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a department.’ This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular case.
“When the business of the master or employer is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the individuals placed by the master in charge of these separate branches and departments of service, and given entire and absolute control therein, may properly be considered, with respect to employees under them, vice-principals and representatives of the master as fully and as completely as if the entire business of the master were placed by him under one superintendent. . . .
“This boss of a small gang of ten or fifteen men, engaged in making repairs upon the road wherever they might be necessary, over a distance of three sec tions, aiding and assisting the regular gang of workmen upon each section as occasion demanded, was not such a superintendent of a separate department, nor was he in control of such a distinct branch of the work of the master as would be necessary to render the master liable to a coemployee for his neglect. He was in fact, as well as in law, a fellow workman.”
These decisions are in accord with the overwhelming weight of authority, both in England and in this country. (4 Thomp. Neg., ch. 125, in which the consociation doctrine is described as “local and peculiar”; 12 A. & E. Encycl. of L. 975, 976; 2 Lab. Mas. & Ser., ch. 27. The latter text appears as a note to the report of the case of Sofield v. Guggenheim Smelting Co., in 50 L. R. A., 417.)
The views of various state courts upon the subject are illustrated by the following quotations:
“The rule of law, that a servant cannot maintain an action against his master for an injury caused by the fault or negligence of a fellow servant, is not confined to the case of two servants working in company, or having opportunity to control or influence the conduct of each other, but extends to every case in which the two, deriving their authority and their compensation from the same source, are engaged in the same business, though in different departments of duty; and it makes no difference that the servant whose negligence causes the injury is a submanager or foreman, of higher grade or greater authority than the plaintiff.
“If a master uses reasonable care in employing suitable servants, in supplying and keeping in repair suitable structures and engines, and in giving proper directions and taking due precautions as to their use, he is not responsible to one servant for the negligence of another in the management and use of such structures and engines in carrying on the master’s work.
“A railroad corporation is not liable to a brakeman on one of its trains for injuries suffered from the negligent setting up and use of a derrick by workmen employed in widening its railroad.” (Holden v. Fitchburg Railroad, 129 Mass. 268, 37 Am. Rep. 343.)
“A carpenter who is injured while repairing an ele vator shaft and the operator of the elevator, both of whom were employed by the owner of the building, are fellow servants, employed in the same general business; and the master is not responsible for an injury resulting to the carpenter from the negligence of the operator of the elevator.
“Fellow servants are engaged in a common employment when each of them is occupied in service of such a kind that the others, in the exercise of ordinary sagacity, ought to foresee when accepting their employment that his negligence would probably expose them to injury; and, danger from the negligence of another employee being fairly apparent, all other employees assume the risk incident to that danger.” (Mann v. O’Sullivan, 126 Cal. 61, 58 Pac. 375, 77 Am. St. Rep. 149.)
“The negligence of the foreman of a gang in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow servant, although the foreman had authority to employ and discharge plaintiff, and the plaintiff was under his superintendence and control in. doing the work in the performance of which he was injured.
“Whether a negligent servant is the fellow servant of an employee who is injured by the carelessness of the former depends, not upon the relative ranks of the two servants, but upon the character of the work, the negligence with respect to which resulted in the injury.
“The negligent performance or omission to perform a duty which the master owes to his employees is at common law the negligence of the master, whatever the grade of the servant who is in that respect careless. The negligence of a servant engaged in the same general business with the injured servant is the negligence of a fellow servant, whatever position the former occupies with respect to the latter, as to all acts which pertain to the duties of a mere servant, as contradistinguished from the duties of the master to his employees.” (Ell v. Northern Pacific Railroad Co., 1 N. Dak. 336, 48 N. W. 22, 12 L. R. A. 97, 26 Am. St. Rep. 621.)
“A founder in a blast-furnace for the manufacture of pig iron, who has a separate department, — the in side work of the furnace, — and who has nothing to do with the other departments, except when acting through the general management or the foreman or boss of such departments, is held to be a fellow servant of an engineer whose business it is to move the cars on the furnace track as desired in the business, and to assume the risk that said cars might be handled negligently by said engineer.” (Adams v. Iron Cliffs Co., 78 Mich. 271, 272, 44 N. W. 270, 18 Am. St. Rep. 441.)
“When servants are employed and paid by the same master, and their duties are such as to bring them into such a relation that the negligence of the one in doing his work may injure the other in the performance of his, then they are engaged in the same common business, and being subject to the control of the same master, they are fellow servants, within the generally accepted meaning of the rule, no matter how different the grades of service or compensation may bé, or how diverse or distinct their duties may be. (3 Wood’s Railway Law, 1494, et seq.)
“And when the relation of fellow servants is established there can be no recovery from the common master or employer by one of them for an injury occasioned to him through the negligence or misconduct of his coemployee. In order to render the master liable in such case it would be necessary to show that the negligent servant was incompetent, and that he was selected without reasonable care and prudence, or that he was continued in the employment after notice to the master of his unfitness, or that' the master had failed to furnish adequate means and materials for the work. Such is the law of this state, and such is the law as it has generally prevailed in America and England for many years.” (McMaster v. I. C. R. R. Co., 65 Miss. 264, 268, 4 South. 59, 7 Am. St. Rep. 653.)
The earlier Kansas decisions are all in harmony with these cases, and in perfect consonance with them are the latest utterances of the court upon that subject.
“Whenever coemployees, under the control of one master, are engaged in the discharge of duties di rented to one common end, such duties being so closely related that each employee must know he is exposed to the risk of being injured by the negligence of another, they are fellow servants, and each assumes the risk to which he is thus exposed. . . . Plaintiff and the operator of the elevator were engaged in one common pursuit, that of curing and packing meat. Each worked in a different line of employment but was engaged in the same general business and so closely related that the negligence of one was liable to inflict injury to the other. Therefore, he must be held to have assumed the risk of the negligence of his coemployee who ran the elevator.” (Donnelly v. Packing Co., 68 Kan. 653, 656, 75 Pac. 1017.)
“But whenever a negligent act violates any duty which the master himself owes to the servant, as, for example, the duty to make the service and the place in which it is performed reasonably safe, that fact controls, irrespéctive of the rank or grade of service between employees, and notwithstanding the circumstance that they are engaged in a common employment directed to a common end.” (Brick Co. v. Shanks, 69 Kan. 306, 310, 76 Pac. 856, 857.)
In the light of these authorities it must be concluded that the servant, in the contract of employment, assumes all the ordinary risks of the employment. In the exercise of ordinary sagacity he must foresee that the negligence of those with whom he works may result in injury to him. Danger from that source is one of the ordinary incidents of the service, and so far as it fairly may be anticipated it is assumed. In the conduct of his business the master may utilize the economic principle of the division of labor, systematize and classify his work and regiment his forces without affecting his liability. Organization is not only essential to the successful management of all complex operations, but is demanded as a means of securing the safety of employees themselves, and the servant must anticipate its bearing upon his welfare. If the process proceed so far that different departments become in effect distinct enterprises, each one may be treated as a separate undertaking. The danger of injury from employees so completely disconnected is so remote that it fairly may be said to be excluded from the contemplation of the parties when the contract is made; but this cannot be true in respect to those employees who are engaged in the same general business and whose efforts tend to promote the same general purpose and accomplish the same general end. Each one of such servants must know that his relations with the others may endanger his safety. They are all coservants and each one takes the risk of breaches of duty on the part of the others likely to do him harm. This is true whether or not he may be able to become acquainted with all his fellows; whether or not he may be able to observe their conduct; whether or not he may be able to take precautions against their carelessness; whether or not he may be able to influence them in the formation of habits of foresight and care. The master does not contract to furnish him these opportunities. The master merely contracts to exercise reasonable care in the selection of his associates, and to furnish them all a reasonably safe place in which to work and reasonably safe materials, tools and appliances with which to work. The fact that the servant is assigned to a department does not augment or qualify any of these duties, nor does such fact make the negligence of an injuring servant belonging to another department, but who is not charged with the performance of any of these duties, the negligence of the master; and before the master can become liable to an injured servant the master must be negligent.
All attempts to apply any other rule meet with.unsurmountable difficulties. The admission of Justice Thomas in the case of Parker v. Hannibal & St. J. Ry. Co., 109 Mo. 362, 403, 19 S. W. 1119, 18 L. R. A. 802, is deeply significant:
“When the principle announced in the earlier cases —that all servants employed and paid by the common master to perform common service were fellow servants — was abandoned, the courts were left apparently with no sound principle by which they could be guided and controlled in concrete cases.”
The following observations of Judge Dillon in 24 American Law Review, at page 189, contain an admonition which all courts dealing with the fellow-servant doctrine of the law should heed:
“Any attempt to refine based upon the notion of 'grades’ in the service, or, what is much the same thing, distinct ‘departments’ in the service (which departments frequently exist only in the imagination of the judges and not in fact), will only breed the confusion of the Ohio and Kentucky experiments, whose courts have constructed a labyrinth in which the judges that made it seem to be able to ‘find no end, in wandering mazes lost.’ ”
In this case there can be no doubt that the machinist was engaged with the members of the pile-driving crew in the common employment of erecting the bridge company’s false work, and was a fellow servant with them; that the danger to which he was exposed was one which was incidental to the work, and that the negligence of the chainman in securing the chain upon the pile was not the negligence of the master. Therefore, the judgment of the district court is reversed, with direction to enter judgment for the defendant on the findings of fact.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
U. G. Riley brought a suit against Rozenah Allen to compel the specific performance of a contract to convey to him a tract of land owned by her. He was denied relief and prosecutes error. The pleadings and evidence show that negotiations were had between the plaintiff and the defendant with regard to the property, which plaintiff claims resulted in a valid contract for the conveyance to him of a perfect title thereto for $2000; that a warranty deed to the land, in the usual form, containing no exception or reservation, was sent by the defendant to a bank to be delivered to the plaintiff upon the payment by him of the purchase-price ; that a tenant was then in possession of the land under a valid lease for the ensuing season, which had been entered into before the negotiations for the pur chase of the land were begun. Among other findings of fact the court made the following:
“The court finds that the plaintiff was in full possession of all the facts while the deed was yet at the bank, and with such knowledge refused to accept the deed because of the fact that he had found there was a renter on the place, and that afterward, after she [the defendant] had taken the deed from the bank, under the belief that he would not pay the $2000 so long as the renter was on the place, he, after the deed had been taken away, reconsidered the matter, went to the bank, and made the alleged tender.”
The tender referred to was an offer to pay the full amount of the purchase-price in exchange for the deed. A motion for a new trial was filed, setting out among other grounds that the findings were not supported by the evidence, and the plaintiff in error in the statement of the case in his brief asserts that some of the findings were of that character, adding:
“We will discuss the erroneous findings under the argument in this brief, and point out to the court wherein we think the findings were not supported by the evidence.”
In the assignments of error two findings are specifically challenged,neither of them being the one above, quoted. Nowhere in the brief is an attack made upon the correctness of this particular finding. Under these circumstances it must be accepted as true. So accepted, and considered in connection with the undisputed facts, it requires an affirmance of the judgment. No question is raised as to the good faith of the lease, nor is there anything in the record to suggest that the defendant could by any means within her power have induced or compelled the tenant to forego his rights under it. The defendant, therefore, was unable to give to the plaintiff immediate possession or to convey to him title to the land otherwise than in subjection to the rights of the tenant under the lease.
Assuming that a valid contract had been made for the conveyance of the land, without reservation, the plaintiff doubtless had a right to accept the deed and look to the defendant upon her warranty for compensation for any loss he might sustain through not being able to obtain immediate possession, or he might have demanded an abatement in the purchase-price in an amount suitable for that purpose; but he also had a right to refuse to make the purchase at all, owing t.s the defendant’s inability to carry out her part of the contract. In refusing with a full knowledge of the facts to accept the only title it was possible for the defendant to convey he in effect elected to avail himself of the right to decline to carry out the agreement, and thereby abandoned the right to require such performance as the defendant was able to make, with compensation, and could not be restored to it by a change of policy, made upon reconsideration of the matter after the deed had been withdrawn from the bank. A mere delay for a reasonable time to complete the transaction pending negotiations for an adjustment of the difference that had arisen would not have had this effect, but the finding of the court means more than thát. It fairly implies a definite and final refusal on the part of the plaintiff to accept anything less than the very thing contracted for — a full and absolute title. That this interpretation does no injustice to the plaintiff is further shown by this language, used in his own brief:
“The most that can. be said under the evidence is that plaintiff refused to accept a modification of the contract by making it subject to the rights of the tenant in possession. He was ready and willing at all times to carry out the original contract in every detail, and because he refused to take the land encumbered by the lease the court seemed to think he had rescinded the contract as made.”
The court had no power to make an' effectual decree for the conveyance of the title contracted for by the plaintiff, and therefore properly refused to do so.* (26 A. & E. Encycl. of L. 40; Peters v. Van Horn, 37 Wash. 550, 79 Pac. 1110.) The plaintiff by his prior conduct was estopped to demand a modified performance of the contract. (Milmoe v. Murphy, 65 N. J. Eq. 767, 56 Atl. 292.) These considerations require an affirmance of the judgment, and render it unnecessary to discuss the assignments of error in detail. No question has been presented regarding the right of plaintiff to recover damages.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
In this case the court would not be justified in burdening the profession with a formal opinion, which would necessarily stand as another “single instance” in the “wilderness.”
The plaintiff in error relied on the validity of the Chrisman will for title. She offered it in evidence herself, and her title was strengthened by the proceedings establishing its validity. Hence she was benefited, rather than harmed, by the introduction in evidence of the proceedings in the will case, except so far as they might bear on the question of the testator’s mental capacity to do business subsequently to the execution of the will. But the court by an express instruction withdrew the proceedings in the will case from the consideration of the jury, with reference to that matter. Therefore the first assignment of error presents nothing which by any possibility could have been prejudicial to the plaintiff in error.
The plaintiff in error, that is, the party adverse to Fred Pernell, is not the executor, administrator, heir at law, next of kin, surviving partner or assignee of Eliza Chrisman, deceased, and- does not derive her title immediately from such deceased person. Therefore the testimony of Pernell was not objectionable on account of the provisions of section 322 of the civil code (Gen. Stat. 1901, §4770).
The deeds and mortgages admitted in evidence over the objection of the plaintiff in error were not so remote in time as some of the testimony on her behalf which they were offered to meet. Therefore the reason given for excluding them is invalid.
The instructions correctly placed upon Fred Pernell his due burden in the case, and when they are construed together the objection to No. 17 is groundless.
Instruction No. 12 contains the matter which plaintiff in error regards as missing because it is not found in No. 11. In all other respects the instructions correctly covered the case, and covered all proper requests for instructions.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1889 Mrs. Rhoda Wykes entered into a written agreement with Charles E. Kimball, the proprietor of a system of water-works, granting to him and his assigns for twenty-one years the right to erect and maintain a dam upon a tract of land owned by her, but upon which there was a mortgage, in consideration of their furnishing water for use upon other premises of which she was the owner during the life of the contract. The dam was built and the arrangement indicated was acted upon until the year 1900, when the city of Caldwell purchased the water-works and refused longer to furnish water for Mrs. Wykes’s property. Thereupon she brought an action against the city for damages for such refusal, setting out in her petition substantially the matters already stated. The city answered alleging that in 1894 a suit had been brought for the foreclosure of the mortgage already mentioned, Mrs. Wykes and the owners of the water-works having been made parties defendant; that in this suit a decree had been rendered ordering that in the first instance the land should be sold, excepting from the operation of the sale the rights granted to Kimball under his contract, but that if the proceeds of the sale should prove insufficient to meet the mortgage debt such rights should then be sold separately; that in accordance with this decree the land had been sold to P. H. Albright, with the reservation noted, for an amount less than the judgment; that thereupon the interest in the land granted to Kimball by the contract had also been sold to Albright; that the sales had been confirmed, and the property conveyed by the sheriff to the buyer; that by these proceedings the owners of the water-works had been deprived of any further benefits of the grant made under the contract, and consequently had been relieved from its obligations. A demurrer to this answer was overruled, and the purpose of the present proceeding is to review that ruling.
The principal contention of the plaintiff in error is that the purported sheriff’s sale of the rights granted to Kimball by the contract was an absolute nullity, and that after it had been made the privilege of maintaining the dam still remained in the owners of the waterworks in virtue of such contract, and constituted a continuing consideration for the agreement to furnish her with water. Inasmuch as the contract was executed after the mortgage all rights conferred by it with respect to' the land were subject to extinguishment by a sale made under proper proceedings in a foreclosure suit. (2 Jones, Mort. §1654.) This is not seriously disputed; but it is denied that such proceedings were had in this case. The argument is that the right granted to Kimball was an easement; that the mortgage, although superior to the easement, was not a lien upon it; that the easement could not be sold as a thing separate and apart from any other property ; that the attempted sale of it in that manner was for that reason void and ineffectual for any purpose; that while the court might have ordered the land sold discharged of the easement it did not do so, and inasmuch as it in fact ordered a sale subject to the easement, and a sale was so made, the buyer took his title burdened with that encumbrance; that the power of the sheriff was exhausted as soon as he made that sale, and consequently his subsequent proceedings were of no effect; that the right of the owners of the waterworks to the continued enjoyment of the easement was therefore unaffected by the foreclosure.
The purpose of the court in ordering separate sales in the foreclosure suit was evidently to protect so far as possible the interests of the holders of the easement. In the contract granting the easement there was no reference to the mortgage; the grantee neither assumed its payment nor in terms accepted the grant subject to it. It was therefore manifestly equitable that the mortgage debt should be made out of the land without disturbing the easement, if this could be done. As the easement was an interest carved out of that held by the mortgagor the court treated it by analogy as it would have treated a part of the mortgaged tract that had been conveyed away by the mortgagor after making the mortgage, and followed the rule requiring sales of parcels so alienated to be made in the inverse order of their alienation. (2 Jones, Mort. §1621.)
It is true that a sale of the easement separate and apart from any other property was attended by the practical difficulty that it is not apparent what rights, if any, a stranger could acquire by bidding at such a sale. The purchaser of the land, however, would have an object in bidding in order to increase the value of his purchase by ridding it of an encumbrance, and the owners of the water-works would also have an object in bidding in order to retain their easement. That the competition might be limited to these two interests does not affect the jurisdiction of the court to order the sale. It is not material to inquire whether such an easement was capable of seizure and sale upon execution, for the estate covered by the mortgage was being administered by a court of equity having broad powers to dispose of it in such a manner as to promote substantial justice. The trial court might have avoided the anomaly of causing the sale of the easement as an independent property by ordering that bids should first be asked upon the land, subject to the easement, at a minimum price equal to the charge against it, and that if no such bid should be made it should then be offered without restriction, freed from the encumbrance. It was suggested in Rector, etc., Christ P. E. Church v. Mack et al., 93 N. Y. 488, 45 Am. Rep. 260, that to obtain even such an order a party should tender a bid at the upset price. The course pursued left the easement undisturbed until it had been demonstrated that no one would pay the amount of the mortgage debt for the land charged with this burden, and this was the utmost that could have been asked by the parties interested in its preservation.
Although the sheriff’s deed effected the extinguishment of the easement, rather than the transfer of the rights under it to another holder, the transaction may properly be described as a sale of the easement. It was a reacquisition by the new owner of the land of the interest therein that had been alienated by the former owner — the payment by him of an additional amount to clear the land of the burden so cast upon it. The judgment of the court expressly cut off the right of all the defendants in or to the land from the time of the sale, and even if erroneous it would still be effective against a collateral attack.
A further contention is made by the plaintiff in error to the effect that the contract with Kimball required the furnishing of water for twenty-one years, in consideration of the grant then made of an easement for that period; that the mortgage was of record, and must be regarded as having been within the contemplation of the parties; that no warranty against it was made; and that the foreclosure of the mortgage and consequent loss of the right to a further enjoyment of the easement did not release the owners of the water-works from the obligation to make payment as they had agreed. The consideration expressed in the agreement, however, for the grant of the right to maintain the dam for twenty-one years was that the grantee should furnish water, not for twenty-one years, but during the time the contract should continue in force. To give effect to the words italicized it must be held that when the right to maintain the dam was cut off by the foreclosure sale the obligation to furnish water also ceased.
The defendant in error claims that it should not be held liable upon any theory of the matters already discussed, for the reason that the obligation assumed by Kimball in the contract did not shift to the city when it purchased the water-works. As the conclusion already announced requires an affirmance of the judgment the question thus suggested need not be decided. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This is the second time that this proceeding has been under consideration in this court. (Telephone Co. v. Vandervort, 67 Kan. 269, 72 Pac. 771.)
The telephone company had thrown two poles on the south side of a road one mile west of Oxford, in Sumner county. These poles were lying east and west, with the butt of one thrown upon the other, their west ends close to the east line of a north-and-south road. A thick hedge fence was upon the south side of the east- and-west road, and on the east side of the north-and-south road. The poles were close to the east-and-west hedge, with their ends within three or four feet of the north-and-south hedge, and not observable by one coming from the south until right near them. The track taken by travel in turning from the south on the north-and-south road to the east on the east-and-west road passed close to the corner of the hedge. The defendant in error lived a short distance south of the corner. From his place, by way of the east-and-west road mentioned, it was but little over one mile to the town of Oxford. He might, by going something more than double the distance, reach Oxford by going south and then east from his place. These poles had been lying at the place designated above for several days. They were first seen by the defendant in error a day or two before the injury of which he complains in this action. He was then driving from the east, and in so doing the poles were noticeable for quite a long distance before they were reached. He noticed them at that time and thought that their position was such as might frighten a roadworthy team. On the morning of the injury complained of he and his wife, riding in 8, covered buggy and driving a .roadworthy team, started for the town of Oxford, going north upon the north-and-south road. In turning the corner where the poles were placed his team, coming suddenly upon them, was frightened, jumped to one side, gave a lunge forward, broke one of the neck-yoke straps and ran away, inflicting the injuries of which he complains. The defendant in error had judgment in the court below, which it is sought here to reverse.
No suggestion is made that the plaintiff in error was not negligent in placing the poles in the manner and place it did. It is strenuously urged, however, that the plaintiff below was guilty of contributory negligence so as to defeat any recovery; that this negligence was not so much in the manner of his driving, but in attempting to drive at all in the face of a well-known danger; so that we are substantially asked to decide, as a matter of law, that because plaintiff knew of the situation of the poles in the highway before he started from his home to go to Oxford, and because he might have reached Oxford by driving the longer way, .he was guilty of contributory negligence precluding recovery. In defense of this position the frequent rulings of this and many other courts relative to the duty of a traveler approaching a railroad-crossing to look and listen for possible danger, and ascribing to him contributory negligence in case he fails to do so, are invoked. We do not think that rule applicable to the facts of this case, but rather that it must be governed by the rules applicable to defects in streets and highways.
It is well settled by the decisions of this court, such being the rule adopted very generally, that one knowing of a defect in a street or highway is not precluded from the use thereof, or chargeable with contributory negligence simply because with that knowledge he uses such street or highway. The existence and knowledge of the defect put upon the user a greater degree of care in his use of the street; but, unless the defect is obviously of such a character that no person in the exercise of ordinary prudence would attempt to pass along the street or highway at the place where the defect exists, he is not chargeable with negligence in so doing. Nor is the situation changed because another less-convenient though safer way might have been taken. In Falls Township v. Stewart, 3 Kan. App. 403, 42 Pac. 926, is found a very full and careful discussion of the principles here involved, the conclusion there arrived at being put in the following language:
“A person who has notice of a defective, unsafe or dangerous condition of a bridge, culvert or public highway is not necessarily negligent in using the same, if he does so in a careful, prudent manner.
“Where a traveler over a bridge, culvert or public highway has knowledge that the same is defective, dangerous, or unsafe, he is not bound to seek some other route of travel, where his business necessities require of him the use of such bridge, culvert, or highway, but such knowledge will require of him the exercise of that degree of care and caution while using the same that an ordinarily prudent, careful person Would exercise under like circumstances; and if he is injured while using the same'on account of the defective condition of such bridge, culvert, or highway, while he is in the exercise of care and caution on his part. commensurate with the defective or dangerous condition of the bridge, culvert, or highway, and with out contributory negligence on his part, he may recover damages from the county or township wherein such defective bridge, culvert or highway is located.”
The same doctrine is announced in volume 15 of the American and English Encyclopaedia of Law, at page 468, as follows:
“It is generally agreed that a traveler’s previous knowledge of the defect in the highway whereby he is injured is not of itself sufficient, as a matter of law, to prevent his recovery on the ground of contributory negligence. . . .
“Knowledge of the defect imposes upon one the obligation of taking reasonable care to avoid any injuries from it, and is to be considered with the other circumstances in the case, in determining whether the plaintiff has been guilty of negligence preventing his recovery of damages.”
(See, also, 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.)
It is true that in a small number of cases expressions have been used which might question the correctness of this rule, but its frequent announcement by this court has put it beyond the pale of discussion in this jurisdiction. No complaint is made that the added degree of diligence required of the plaintiff by reason of his knowledge of the obstruction was not fairly explained to the jury.
Complaint is made that the court refused to give the following instruction:
“If you find from the evidence that some portion of the harness upon one or both of the horses which the plaintiff was driving at the time of the accident, or any portion of his buggy, was defective, and that by reason of such defect broke, and that all of the injuries complained of by the plaintiff occurred after the breaking of the harness, and you believe from the evidence the same would not have occurred had the harness not been so defective, then your verdict should be for the defendant.”
There are two sufficient answers to this complaint: (1) There is no allegation in the answer warranting it — no charge therein that plaintiff’s injuries were occasioned by any defect in his harness; (2) there is no evidence from which the jury might have found that the harness was defective, the only evidence being that of the plaintiff himself, where he said “my harness had been used about five months, or scarcely that.”
One other claim of errror demands our attention. In directing the jury as to the measure of damages to be awarded the court said the plaintiff was entitled to recover his reasonable actual damages, “with interest at six per cent, per annum from April 7, 1901,” that being the date of the commencement of the action. The jury in its verdict fixed the amount of plaintiff’s recovery at $750, “with interest from date of filing the petition at six per cent, per annum,” and judgment was entered for $859.75, the difference between that amount and $750 being for interest. In this the court erred, as interest is not recoverable upon damages allowed for simple negligence of a defendant until after judgment. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Railway Co. v. Holmes, 68 id. 810, 74 Pac. 606.) As the amount in which the judgment is erroneous is easily ascertained, it will not be necessary to reverse it because of the error in the allowance of interest.
The judgment of the district court will be modified by directing the deduction of $109.75 as of the date of the rendition of the judgment, and being thus modified it will be affirmed. The costs of the proceedings in this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Tom Miller was prosecuted upon a charge of robbery, and convicted of pocket-picking. On appeal he complains that he never had a preliminary examination on the offense charged in the information. An examination was accorded him before J. W. Farrell, who had been duly elected, and was then acting, as a justice of the peace; but the contention is that as the officer had also accepted an appointment as city attorney he had forfeited and vacated the former office, and was, therefore, without judicial authority.
The defendant has not pointed out the incompatibility between the functions of the offices such as would imply a surrender and vacation of that of justice of the peace; but if they are in fact incompatible it does not avail the defendant. Farrell had been duly elected and installed in the office. Acting under the authority thus conferred he remained in possession of the office, and was in the exercise of its functions in hearing the preliminary examination of the defendant, and was, therefore, at least a de facto officer. His right to the office is not open to collateral attack, and his official acts are as binding upon the public and litigants as though his qualifications were unchallenged and unobjectionable. As was held in The State v. Williams, 61 Kan. 739, 741, 60 Pac. 1050:
“The acts of a de facto judge cannot be collaterally attacked, and his right to the office is not open to question except in a direct proceeding brought by the state; and this is true in a case where the officer is incapable of holding the office.” (Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462; Hale v. Bischoff, 53 id. 301, 36 Pac. 752: In re Coram, 62 id. 271. 62 Pac. 661. 84 Am. St. Rep. 382.)
The defendant contends that the information did not charge the offense of robbery. After alleging that the defendant unlawfully and feloniously assaulted Clyde Best, and took certain pieces of money of the aggregate value of twenty-six dollars, the information proceeded:
“The property of one Clyde Best, from the person, in the presence, and by violence to the person of the said Clyde Best, feloniously and unlawfully did rob, steal, take, and carry away.”
There was omitted from the charge the statutory phrase “against his will.” Assuming that the language of the charge did not in other words sufficiently allege the negation of consent, it affords no ground for reversal. Without question the language used did allege the offense of pocket-picking, or stealing from the person, of which defendant was convicted, and he cannot complain that the information did not charge a higher offense of which he was not convicted.
It is earnestly urged that error was committed in instructing the jury that a person can be convicted of picking the pocket, or stealing from the person, upon a charge of robbery. Assuming that the charge is robbery, it is a species of larceny of an aggravated character, and it has been decided that such a charge fairly includes the offense of which the defendant was convicted. (The State v. Pickering, 57 Kan. 326, 46 Pac. 314; The State v. Dunn, 66 id. 483, 71 Pac. 811.)
There were other objections to the instructions, and also to a ruling upon the amendment of the information, but we find nothing substantial in them.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The question involved is whether, prior to the act of 1905 “providing for appeals from the probate courts in matters pertaining to lunatics and habitual drukards,” there might be an appeal from the order of a probate court refusing to allow a claim against a lunatic’s estate. The state of Kansas desired the allowance of a claim against John McCowen, as guardian of the person and estate of William H. Walker, an insane person, for a sum due it for board, clothing and care furnished to the insane person in the Topeka state hospital. This claim was disallowed by the probate court. An appeal was taken to the district court, where it was dismissed because the statute, as it then was, made no provision for such appeal. The state claims that this action was erroneous, as the appeal was authorized by two sections of the statute.
Chapter 87 of the General Statutes of 1901 is entitled: “An act respecting executors and administrators, and the settlement of the estates of deceased persons.” Section 188 of that chapter provides for appeals from the decision of the probate court to the district court in twelve specified cases, each of which relates to matters within the jurisdiction of the probate court as conferred in said chapter; then follows this general language: “And in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.” It is claimed that inasmuch as this chapter and the one concerning lunatics and drunkards took effect upon the same day they are in pari materia, and this general provision for appeals must be carried over to matters arising under the latter act. We do not think this construction a proper one. Evidently this general clause, following as it does the specific enumeration of a long list of appeals allowed in questions arising only under the executors’ act, refers to such other matters as may arise under the same act, and not to all questions that might be passed upon by the probate court by virtue of any other act.
Again, it is claimed that the provision for an appeal found in chapter 46, which is the act relative to guardians and wards, applies, and warrants an appeal in this case. This language is found in section 26 of that act: “An appeal may be taken to the district court from any order or decision of the probate court in any matter arising under this act,” etc. By its terms this section clearly limits the right of appeal granted thereby to matters arising under the act of which it is a part, concerning guardians and wards, and cannot be carried over and applied to the provisions of an independent act.
We are of the opinion that the trial court was correct in its conclusion that an appeal in this case was not provided for by the statute; that the act concerning lunatics and drunkards makes no provision for an appeal (McClun v. Glasgow, 55 Kan. 182, 40 Pac. 329), and until the enactment of the act of 1905 no such provision existed. It seems that such was the conclusion of the legislature of 1905, for it made specific provision for such appeal by the act cited.
The judgment of the lower court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Milton Brown to recover from Louis K. Dann the value of legal services rendered in behalf of Ida L. Dann, in proceedings between her and Louis K. Dann involving divorce, alimony, and support. It appears that in a proceeding in Osage county, in 1891, a judgment was entered divorcing Louis K. Dann from Ida L. Dann. She claims it was rendered without service of summons upon her or an entry of appearance by her. A written entry of appearance purporting to have been signed by her was filed in the case, but the contention is that it was a forgery. Several years afterward she employed the plaintiff to take legal steps to protect her interests, and he filed a motion in the district court of Osage county asking that the judgment of divorce be set aside on the ground that it had been rendered without jurisdiction and was absolutely void. About the same time he began another action in behalf of Mrs. Dann in the district court of Shawnee county asking for a divorce from Mr. Dann, and also for alimony. The proceeding in Osage county was transferred to Shawnee county upon a change of venue, and after both cases had been pending for some time it appears that Louis K. Dann obtained a writing from Mrs. Dann consenting that an order of dismissal might be entered in both cases. Both were dismissed, but the order stated that it was without prejudice to the rights of plaintiff’s attorney.
In this action there was testimony tending to show that Dann'procured the agreement of dismissal upon the promise that he would provide a home for Mrs. Dann and her son, which he has not done. After offering proof in this case that the entry of appearance upon which the entry of divorce was rendered was forged, and that there was neither service on, nor appearance by, Mrs. Dann, and also of the extent of the legal services rendered by the plaintiff for Mrs. Dann, the sufficiency of the evidence was challenged by a demurrer. This the court sustained, and directed the jury to return a verdict for defendant. The ruling was based upon the theory that the dismissal of the motion to set aside the judgment of divorce because it was void operated to validate that judgment, and related back about twelve years to the rendition of the judgment.
If the judgment was void and the marriage relation unbroken the defendant is liable for the reasonable value of services rendered by the plaintiff for Mrs. Dann. Whatever the fact may be the testimony tends to show that the judgment was based upon a forged entry of appearance, and therefore the court was without authority to render any decree. As the case stands it must be assumed that the judgment was a nullity, at least until the dismissal of Mrs. Dann’s motion, which had for its purpose the setting aside of the judgment. Did that dismissal make valid a void judg ment? If the decree was granted without jurisdiction of the defendant it had no vitality and bound no one. “In fact, a judgment rendered without jurisdiction is no judgment at all.” (Mastin v. Gray, 19 Kan. 458, 466, 27 Am. Rep. 149.) Under the testimony the case stood at the time of the attack upon the judgment as if no judgment had been rendered, and as if the marriage relation still continued. Did an attack on such judgment, and the withdrawal of it, operate to sever the marriage relation? We think not. There w;as no trial on the motion to dismiss, and no consideration of the merits. Mrs. Dann appeared for the purpose of setting aside a nullity, and the allegation that the judgment was without force imparted no validity to it. Her consent to a withdrawal of the motion, and its final dismissal, only operated to take the motion out of court.
Whatever may have been the intention of the parties, neither their agreement nor the dismissal dissolved the marriage relation. Even if Mrs. Dann’s presence in court for the purpose of attacking the judgment vested the court with jurisdiction over her for all purposes, it did not affect the status of the parties. Divorces are not granted upon defaults, nor is the marriage relation dissolved by the mere agreements of parties. Ordinarily the disposition of a motion does not finally determine 'the issues of a case, and in the absence of an agreement the mere dismissal of an action does not settle the merits of it. Whatever may be the effects of dismissal in an ordinary action of contract or tort it certainly cannot be deemed an adjudication on the merits in a divorce proceeding. Marriage is a status in which the public has an interest, and it can only be dissolved for the causes, and in the manner, prescribed by the legislature. It cannot be done by conducting a one-sided proceeding in court, without jurisdiction of the defendant, and, after a void decree has been entered, securing the ap pearance of the defendant and upon consent of the parties, without trial or consideration of the grounds for divorce, effecting a dissolution. If so it would be an easy matter to obtain collusive divorces. As the case was here presented there was no divorce when the motion to set aside the judgment was filed. Since that time no divorce has been decreed. The proceedings on the motion did not accomplish a divorce nor validate the void judgment which had been previously rendered.
The ruling of the court sustaining the demurrer to the evidence and directing judgment for defendant was erroneous, and is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by John Walkenshaw, a minor, to recover damages from the Atchison, Topeka & Santa Fe Railway Company for personal injuries alleged to have been caused by the negligence of the railway company. He and other members of his father’s family were traveling on a highway parallel with the railroad, in two wagons drawn by teams of mules. The teams were traveling close togethér; the front one was driven by his father, and the rear one by a young sister. His mother was walking near the heads of the rear team on the side next to the railroad, and he was walking on the other side, just behind the front wagon. They met a freight-train of the railroad company which was then approaching the station of Charleston. The engineer gave one long blast of the whistle as a signal that the train was approaching Charleston, and the conductor responded with a signal which meant to go ahead and not stop at that station. The engineer then replied with two short blasts to indicate that he had received and understood the- conductor’s signal. The two short blasts were given just as the locomotive had passed opposite the rear mule team, and these blasts frightened that team so that they jumped to one side and ran away, knocking John Walkenshaw down and severely injuring him. He alleged that the blasts of the whistle were not warnings or danger-signals; were not given for any crossing or station, nor where whistles are usually sounded; and that they were not necessary to the proper operation of the train, and were given without due regard to the rights of himself and other travelers upon the highway. The trial resulted in a verdict against the company for $2100, but, in answer'to special interrogatories, the jury found that the engineer in charge was sitting on the opposite side of the locomotive from the teams and did not see them when the whistle was sounded, and had not seen them before that time. It was also found that the whistle was blown in the ordinary way and as such signals are usually given; that it was done by the engineer in an attempt to perform his duty; and the only fault attributed to him was that it was not done at the proper place.
It is rightly contended that under the evidence and the findings of the jury the judgment should have been rendered in favor of the railway company. The signals were given in the usual way, and for a necessary and lawful purpose. Those in charge of the train were not aware that plaintiff or the team that injured him were in the vicinity when the signal was given, and, of course, did not know that he was endangered by it. The trainmen were required to keep a lookout along the railroad-track and at the crossings for persons, animals and things upon or approaching the railroad-track, but they were not required to look out for persons traveling on parallel highways where there were no crossings. It is well known that in the operation of trains it is necessary that whistles be frequently sounded, and other signals given. Those who established the highway knew that such signals were incident to the operation of trains, and those who used it had a right to expect signals to be given whenever the business of the road required. The highway having been located there, the railway company had a right to assume that it might operate its railroad in the ordinary manner and give the usual and necessary signals. Since the blowing of the whistles is not negligence per se, it devolved upon the plaintiff to show that it was unnecessarily and negligently done. As the trainmen did not see or know of the team before the whistle was blown, wilful negligence cannot be imputed to them. It is argued that it was the duty of the engineer to have known whether there was a team near by liable to be frightened be fore sounding the whistle. Whatever may be the rule at and near stations and public crossings, it is clear that the railroad company is not required to be on the lookout for teams on parallel highways remote from stations and crossings.
In Bailey v. Hartford & Conn. Valley R. R. Co., 56 Conn. 444, 16 Atl. 234, it was held that when a railroad is lawfully located near a highway the railroad company has a right to operate its road in the usual and ordinary manner, and to give the usual and proper signals of danger, without incurring liability for injuries caused by frightened horses on the highway.
The supreme court of Massachussetts had before it the question whether trainmen must be on the watch for persons upon a contiguous highway. The plaintiff was driving a horse along the highway adjoining the defendant’s railroad, and, as a train passed, the engine was fired up, which caused the emission for a short time of dense, black smoke from the smoke-stack, frightening the horse, which resulted in injury to the plaintiff. Those in charge of the train did not know that the plaintiff was on the highway, but there was evidence that they might have seen him if they had been on the lookout for travelers upon that part of the highway. However, it was held by the court that it was not the duty of those on the engine to be on the lookout for travelers on the highway who might be endangered by the firing up and the consequent emission of smoke. It was said that the act of firing up, like that of sounding the whistle or the blowing off of steam, was one necessarily incident to the running of trains, and that the lawfulness of the act did not depend upon whether there were travelers upon the highway. It was further said:
“If it is their duty to see one traveler outside of the location of the railroad, it is their duty to see how many travelers are there, and to observe the position, direction, and speed of each, the speed of the engine, the state of the atmosphere, the direction and force of the wind, the character of the coal used, and other circumstances, which may determine whether all travelers are, and will continue to be until the smoke is dissipated, in such positions that their horses will not be affrighted by it. Being under no obligation to watch for travelers on the highway, the defendant could not have been guilty of negligence in not seeing and avoiding the plaintiff.” (Lamb v. Old Colony Railroad, 140 Mass. 79, 2 N. E. 932, 54 Am. Rep. 449.)
In Ochiltree v. C. & N. W. Ry. Co., 93 Iowa, 628, 62 N. W. 7, the plaintiff’s wife was approaching a railway-crossing in a buggy on a highway that was parallel with the railroad-track for some distance before crossing it. She saw a train coming and, without crossing the track, turned into a field, through a gate opposite the crossing. The engineer saw her on the highway and had the brakes set, but when he noticed her turn into the field he whistled “off brakes” and went on. The whistle frightened her horses and she was thrown out and injured. It was contended that as horses are known to be frightened by locomotive whistles the engineer was bound to refrain from using the whistle, even as a necessary signal in the operation of his train, until the team had passed beyond the hearing of the sound of the whistle. In rejecting this view the court said:
“If such be the law, railroads would practically have to cease being operated in some places in this state. We accede to the doctrine that those in charge of trains are bound to exercise care as to those about to cross the railway-track; that they owe a duty to those traveling along the highway adjacent to the track not to operate their trains in such a manner as to cause an injury when they know that such persons are there, and become aware that there may be danger to them in blowing the whistle, unless such blowing of the whistle is necessary to the safe operation of the train; but the mere fact that one is traveling with his team upon a highway adjacent to a railway will not render the company liable for an injury to him caused by his team being frightened by the blowing of the whistle of a locomotive, when it was done in the necessary and proper operation of the train, and in the absence of facts tending to show that the-engineer knew or should have known that the "blowing of the whistle might frighten the team.”
(See, also, Norton v. Eastern Railroad Company, 113 Mass. 366; Flynn v. Boston & Albany Railroad, 169 id. 305, 47 N. E. 1012; Whitney v. Maine Central Railroad Co., 69 Me. 208; P. W. & B. R. R. Co. v. Burkhardt, 83 Md. 516, 34 Atl. 1010; Webb v. Railway Co., 202 Pa. St. 511, 52 Atl. 5; Heininger v. Great Northern Ry. Co., 59 Minn. 458, 61 N. W. 558; Abbott and another v. Kalbus, 74 Wis. 504, 43 N. W. 367; Calhoon v. Chicago & Northwestern R. Co., 85 id. 570, 55 N. W. 900; Dewey v. Chicago, Milwaukee & St. Paul R. Co., 99 id. 455, 75 N. W. 74; Louisville & Nashville Railroad Company v. Smith, 107 Ky. 178, 53 S. W. 269.)
Much is made of the fact that the whistle was sounded before a whistling-post near Charleston had been reached. The fact, if it be one, had no bearing •on the duty of the railway company to the plaintiff below. The post was an admonition to the engineer to whistle at that place for the station or crossing a certain distance away. Other signals than those for stations and crossings are required and given. Where statutory signals are insufficient properly to warn travelers over crossings railroad companies are required to give others, and they have been held responsible for the consequences of failing to give such additional warnings. In this instance the whistle was not sounded as a warning to those at the station or crossing, or for any who might be approaching them. It was the usual method of communication between the engineer and conductor as to whether a stop should be made at the station. It involved the inquiry of the engineer, the answer of the conductor, and the return notice from the engineer that the answer had been received. There is nothing in the testimony to show that this colloquy should have been deferred until the whistling-post had been passed, nor anything tending to show that the whistle was sounded unnecessarily or in conflict with any rule of the company.
Even if the whistle could as well have been sounded at some other place and time, it does not appear that it was a negligent act under the circumstances toward the plaintiff. If the engineer had known of the presence of the team, and had observed that it was frightened by the train, it might have been ’ his duty to postpone further signals until the danger had been averted. The findings of the jury, however, relieve him from the imputation of negligence on that ground. So, too, if the injury had occurred at a crossing, or the approach to one, other considerations would have arisen. Under the findings, supplemented by the evidence, it is clear that the railway company was not culpably negligent toward the plaintiff below, and hence the judgment is reversed, with the direction to enter judgment in favor of the railway company.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This was an action brought in the district court of Ellis county by T. R. Brooke against the Central National Bank of Topeka, J. H. Wood, and William Quail, jr., to recover the possession of certain cattle that were at the time in the possession of Quail. Service was had on Quail in Ellis county, where the cattle were being held by him. Summons was issued to the sheriff of Shawnee county and served on the defendant, the Central National Bank, for which Quail held the cattle. There was no order of delivery served on the bank, but it gave a redelivery bond and retained the cattle. Quail filed a disclaimer. The bank moved to dismiss the action as to it for want of service, contending that Quail was not a necessary or proper party defendant, and, therefore, summons could not be issued and served on it in a county other than the one in which the action was brought. The court denied this motion, a trial was had, and judgment rendered for plaintiff for a return of the cattle or the value thereof. From this judgment the bank prosecutes error.
The main contention of the bank is that the court erred in denying its motion to dismiss for want of proper service of summons. An action of replevin is in its nature possessory, and one in the actual possession of property is a proper party defendant. In such an action the plaintiff may be entitled to relief other than the mere return of the property; he may also obtain substantial damages for the wrongful detention. In the present case the plaintiff, if he sustained such damages, might recover the depreciation in the value of the cattle while wrongfully detained. For such purpose it was proper to make all persons for whom Quail acted in holding the cattle joint defendants with him. Possession and detention by Quail were possession and detention by the bank, and in order that the plaintiff might obtain in one action all the relief to which he was entitled the bank was a proper party defendant; and the court having obtained jurisdiction of Quail — who was a joint wrongdoer with the bank in holding the cattle — in Ellis county, summons was properly issued and served on the bank in Shawnee county. The refusal of Quail to surrender possession of the property on demand, while holding as agent for the bank, was the refusal of the bank. A person in actual possession of personal property, and refusing to deliver it to the owner on demand, is a proper party in an action of replevin, whether he claims to hold for himself or another.
A contention is urged that the verdict of the jury was rendered under the influence of prejudice and passion. There is nothing in the record that discloses the existence of such fact.
Another contention is that the court refused to permit the defendant to show the expense of keeping the cattle while in the possession of Quail. If the possession by Quail was wrongful, he cannot recover against the owner for his expense while wrongfully detaining the property. One can never found a right of recovery upon his own wrongful act.
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.:
Henry Knowles died intestate in 1898, and at the time of his death owned several tracts of real estate in Sumner county, and little, if any, personal property. Several of the tracts of real estate, if not all of them, were encumbered by mortgages, and there were some small debts, besides the expenses of administration.
Prior to the death of Knowles the Connecticut Mutual Life Insurance Company had brought suit to foreclose one of these mortgages, and it bought in a certain tract of land at the foreclosure sale at a price which left a considerable deficiency judgment.- There was a defect in its title to the land purchased, by .reason of a defective description in the order of sale. Stewart, the plaintiff in error, and his wife had tax liens against some of the Knowles land; and the Wellington National Bank, in which Stewart was inter ested, also held mortgages against some of the realty. The land, it appears, was of about the value of the mortgages and indebtedness, perhaps less.
The defendant in error was, at the time of the commencement and trial of this action, the administrator of the estate. He brought this action, alleging as a basis of recovery the following:
“It was agreed verbally by and between the three parties, the heirs of Henry Knowles on the one hand, consisting of Sarah Knowles, Wesley R. Knowles, Frank E. Knowles, and Eva Youmans, John T. Stewart, on his part, and the Connecticut Mutual Life Insurance Company, on its part, by William Collins, its agent, that the said heirs of Henry Knowles should execute a deed to the defendant, John T. Stewart, conveying to him the land herein first described, being the land which belonged to Henry Knowles at the time of his death, and should convey by their deed of quitclaim to the Connecticut Mutual Life Insurance Company the said 100 acres of land hereinbefore described, and that the said Connecticut Mutual Life Insurance Company, on its part, should execute a release of its said judgment against Henry Knowles, and satisfy and discharge its claim against the said Henry Knowles and his estate, and that the defendant, John T. Stewart, should, in consideration of receiving a deed for the land herein first described from the heirs of Henry Knowles, and in consideration of the release and satisfaction of said judgment, which was a lien on said land, pay and discharge all debts of the said Henry Knowles, and all demands against said estate which might be exhibited and allowed by the probate court of Sumner county, Kansas, against said estate, and cause and procure said estate to be settled solvent, and to provide funds and money with which to pay and satisfy all demands which might be proved and allowed by the probate court of Sumner county, Kansas, against said estate, and all costs of administering said estate.”
The petition then states that in pursuance of the agreement the heirs of Henry Knowles executed the two deeds, one to John T. Stewart and the other to the Connecticut Mutual Life Insurance Company, that the life-insurance company released said judgment, and that John T. Stewart failed and refused to furnish the money to close up the estate.
After a demurrer to the petition was overruled the defendant below answered denying plaintiff’s capacity to sue and right of recovery, and also setting up a written contract, signed by himself and the heirs of Henry Knowles, alleged to have been executed after the contract set up in plaintiff’s petition was made. He claimed that the conveyances of real estate to him by the Knowles heirs were made under this written contract and not under the verbal contract set forth in the plaintiff’s petition.
A trial was had in the district court before a jury and a verdict rendered in favor of the administrator for $1443.25. A motion for a new trial was denied and judgment was rendered for this amount and costs. To reverse this judgment Stewart brings the case to this court.
The plaintiff in error'makes forty-five assignments of error, and while we have considered each of them we shall not discuss them seriatim. There being no requests for special findings of fact, and.no special findings being made, it is to be presumed that the jury found all the issues of fact in favor of the plaintiff which are necessary to sustain their verdict and the judgment thereon, so far, at least, as there is any evidence to support any such fact in issue.
There is no evidence that the heirs of Henry Knowles named in the petition were present with Stewart, plaintiff in error, and Collins, as agent of the Connecticut Mutual Life Insurance Company, and made the tripartite contract set forth in the petition; but there is evidence that Stewart and Collins made the contract substantially as set forth in the petition, and that Stewart procured the Knowles heirs to perform the contract on their part, and that the life insurance company performed the contract on its part, and that the consideration for releasing the judgment in favor of the life-insurance company and the principal consideration for the ■ conveyance by the Knowles heirs of a part of the land to the life-insurance company and a part of the land to Stewart was the agreement of Stewart to pay the debts of the estate and have the estate settled as solvent. Thus by ratification the Knowles heirs became parties to the contract, and they performed the contract, and hence there is no material variance between the allegation and the proof.
The principal legal question presented is whether an administrator may maintain an action upon a contract made after the death of the intestate, to which he was not as such administrator a party and of which he had no knowledge at the time it was made, or whether such action, if maintainable at all, should be brought by the creditors to be most directly benefited thereby. The creditors surely could not recover the expenses and costs of the administration of the estate, the payment of which was part of the contract, “that the estate might be settled as solvent.” Nor could the creditors in a j oint action recover an amount sufficient to pay the entire indebtedness of the estate, as one creditor would have no interest in the payment of a debt due to another. Each creditor could in this view only collect as much as was due from the estate to himself. Can this multiciplicity of actions be avoided by the administrator’s maintaining one action for the entire amount due to all the creditors under the contract and for the costs and expenses of administration, so that the estate may be settled as solvent? With some hesitation we answer this question in the affirmative. The administrator is the agent of the creditors in marshaling the assets of thé estate and accumulating funds to pay their claims, and he is as well the legal representative of the estate. It may be said that the heirs in this case were under no legal obligation to pay the debts of the intestate, and this is true in the sense that no judgment could be obtained against them for such payment. If debts remain, however, after the personal estate is exhausted, as was true in this case, the heirs hold the title to the legal estate inherited subject to the right of the administrator to sell all or so much of it as may be necessary to pay the claims allowed against the estate. Money paid to an executor or administrator by the heirs of a decedent to prevent the sale of the decedent’s real estate for his debts is assets of the estate. (Fay v. Taylor, 68 Mass. 154.) A contract, then, of the grantee to pay the debts of an estate in consideration of the heirs’ conveying to him a portion of the lands of the decedent may be well said to be assets in the hands of the administrator, and, if so, he may bring an action upon it and enforce it.
It is said that neither the heirs nor the administrator knew anything about this contract. This is no answer. (Anthony v. Herman, 14 Kan. 494.) It is true that the administrator, if he had not deemed the contract to be of advantage to the estate, might have ignored it and proceeded to sell the real estate to pay the debts. So might Anthony, in the case above cited, have disregarded the contract of the defendants in that case and proceeded against Mark Kelly, the original debtor. In Life Assurance Society v. Welch, 26 Kan. 632, 641, the court said:
“Now whatever may be the rule in other states, it is well settled in this state that third parties not privy to a contract, nor privy to the consideration thereof, may sue upon the contract to enforce any stipulations made for their especial benefit and interest.”
The administrator in this case was the legal representative of the estate, and we see no reason why he should not be allowed to sue upon the contract for the benefit of the estate, even if we assume that he might have disregarded the contract and sold the land for the purpose of paying the debts of the estate. The heirs had already, conveyed the land for that very purpose.
Stewart is not in a good position, after he has received all the benefits of the contract, to say that he should not perform the obligations thereof on his part. It is true the evidence tends to show that he made another contract with the Knowles heirs and paid out $500 to secure the performance thereof, which he would not have been .required to pay under the contract with the life-insurance company; but the contract with the life-insurance company was not merged in his subsequent written contract with the heirs. The making of the latter contract and the payment of the $500 thereunder seem to have been an attempt bn the part of Stewart to evade his obligations under the former contract. If so he cannot be heard to complain if he has in a measure to bear the burdens which he assumed under both contracts.
The plaintiff in error bases several alleged errors upon a claimed variance between the allegations of the petition and the statement of counsel for the defendant in error to the jury at the beginning of the trial. We should not notice this objection had it not occurred in several other cases. The statute .authorizing a party on whom rests the burden of the issues briefly to state his case and the evidence by which he expects to sustain it is permissive only. He may make such statement, or not, at his own election. If he should elect to make no statement, the opposite party could not demur or object to the introduction of evidence on the ground that there is nothing to be tried before the jury. The issues are made by the pleadings and not by the respective statements of the parties. If a party under such circumstances makes a statement at variance with his pleadings the statement may, upon objection, be excluded. At any rate, he should not, over an objection, be allowed to introduce evidence in support of such statement, so far as it is at variance with his pleadings. If, however, a party, in making such statement, makes statements in contradiction of the facts stated in his pleadings, such statements should be taken, for the purpose of the trial, as an admission adverse to the fact as alleged in the pleading.
The only further matter to which we consider it necessary to advert is the instructions asked and refused and the instructions given relating to the fees or compensation of the probate court and the fees of the attorney of the estate. If, as we hold, the contract sued on was an agreement that the administrator could maintain suit upon, it was proper and necessary that he should have an attorney to bring the suit, and the contract of the defendant below was that he would pay the debts of the estate and expenses of administration, so that the estate should be settled as solvent. The estate could not be settled as solvent without paying the costs of the probate court and a reasonable amount to the administrator for his services and reasonable compensation to the attorney for necessary services rendered to the estate. While attorney’s fees for prosecuting or defending an action are not usually recoverable by the prevailing party in such action, in the absence of an express statute, for the reason that they are not within the contemplation of the contracting parties at the time of making the contract or transaction, in this case it was fairly contemplated and provided for in the contract, and the defendant below should not be heard to complain that such fees are greater than were contemplated, as he alone is responsible for making the additional services of an attorney necessary. All the questions of fact in regard to the reasonableness of the fees and charges were tried and determined by the jury.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This is a suit in equity for discovery and relief. The court sustained a demurrer to the plaintiff’s petition and, the plaintiff not wishing to amend, judgment was rendered for defendants. Plaintiff states in her petition that she is the legal and equitable owner of the land in controversy, setting out specifically her source of title. She also states that although she is the legal and equitable owner of the real estate as aforesaid the defendants wrongfully and unlawfully make some claim of title to such land adversely to her, the exact nature or character of which is unknown, but that whatever the same may be it is without foundation and casts a cloud upon her title. She asks that the defendants be required to answer and disclose the nature and character of their title or interest, that the rights of the parties be determined, and judgment rendered quieting plaintiff’s title as against the claim of defendants.
In this state in a suit in equity to quiet title, or remove a cloud, it is not necessary for the plaintiff to state in her petition that she is in possession, either in person or by tenant. (Westbrook v. Schmaus, 51 Kan. 558, 33 Pac. 306; Grove v. Jennings, 46 id. 366, 26 Pac. 738.)
A suit for discovery and relief is a well-recognized equity practice. (Welles v. River Raisin & Grand River R. R. Co., 1 Walk. [Mich.] 35; Poole v. Lloyd & others, 46 Mass. 525; Temple v. Gove et al., 8 Iowa, 511, 74 Am. Dec. 320; McClanahan v. Davis et al., 49 U. S. 170, 12 L. Ed. 1033; Denver v. Roane, 99 U. S. 355, 25 L. Ed. 476; Middletown Bank v. Russ, 3 Conn. 135, 8 Am. Dec. 164; Laight v. Morgan and others, 1 Johns. Cas. 429; Livingston v. Story, 34 U. S. 632, 9 L. Ed. 255; Kimberly v. Sells, 3 Johns. Ch. 467; Livingston v. Livingston, 4 id. 294; Higinbotham v. Burnet, 5 id. 184.)
The petition in this case is very meager in its statement of facts,-but as against a demurrer we think it sufficient. Without the aid of discovery the plaintiff would be remediless. She cannot plead that which she does not know and cannot ascertain; therefore, she prays for discovery, to the end that the validity of defendant’s claim, may be determined and the contentions over the title to the land finally settled.
The judgment of the court 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
Greene, J.:
This action was brought on a policy of insurance issued to Belle Washington and P. A. Webster insuring two frame residences situated in the city of Ottawa, and the furniture in one of the residences, against loss by fire. The residence containing the furniture was destroyed. Mrs. Washington and Mrs. Webster brought their action on this policy.
It developed during the trial that Mrs. Washington was the owner of the real estate, and had no interest whatever in the personal property, and that Mrs. Webster was the owner of the personal property, and had no interest whatever in the real estate. When the evidence had all been introduced the defendant asked permission to amend its answer and set up the facts thus disclosed, which was refused. Thereupon the court rendered a joint judgment for the plaintiffs for the full amount of the policy, and $100 as attorney’s fees.
The plaintiff in error makes the following assignments of error: (1) The refusal to permit it to amend its answer; (2) that the judgment for attorney’s fees was excessive; (3) that there was a misjoinder of plaintiffs.
Granting leave to amend a pleading pending a trial is largely within the discretion of the trial judge. It appears from the evidence in the record that immediately after the insured property was destroyed the defendant’s adjuster called on Mrs. Webster to ascertain the extent of the loss, and was then informed, by her that she owned the personal property and Mrs. Washington owned the real estate and that the latter lived in California. He then requested Mrs. Webster to get a power of attorney from her and the claims would be settled. The power of attorney was procured as requested, appointing Mrs. Webster agent to settle with the company for the loss in the house. The power of attorney was delivered to the company before the action was begun. The company had, therefore, full knowledge of the interest each of the plaintiffs had in the insured property. With this knowledge it should have raised the question of misjoinder by answer. It cannot be said that the court abused its discretion in refusing to permit defendant, after going through the trial, so to amend its answer and allege new matter that was within its knowledge when it filed its answer. If there was a misjoinder the defendant could waive it and try the cause, and that appears to be what it did. Again, it does not appear that the defendant made any application to the court to render separate judgments or that any objections were made to the rendition of a joint judgment.
It is contended that the amount allowed for attorney’s fees was excessive; that such amount was so largely disproportionate to the amount in controversy in the action as to be conclusive on this question. The amount in controversy is only one of the circumstances that the court may take into consideration in determining the value of legal services rendered in any case. The preparations made necessary by the nature of the litigation, the length of the trial, the experience and ability of the counsel employed on both sides of the controversy and other facts that arise in the trial are quite as important in determining the value of attorney’s fees as the amount in controversy. Many of the things that go to make up the entire sum of the trial court’s information on such subjects are not in the record and could not all be presented to this court. Judging as nearly as we may from the record, the attorney’s fees allowed do not appear to be excessive.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The district court made an express finding relating to the controlling fact in this case. Most of the testimony offered' in favor of the plaintiffs in error is of a shadowy and unsubstantial kind. Some doubt is thrown upon the one piece of positive testimony by a showing that the witness giving it did not have the means of knowledge which he claimed. Some of the witnesses can neither read nor write, have only a suppositious knowledge of their own parentage, and seem free to impeach the character of their own mother after her death in favor of that side of the case which would benefit them financially. Andrew Sappenfield’s testimony is self-contradictory, and valid criticisms of other evidence in favor of the plaintiffs in error might be made.
It appears from evidence admitted without objection that Dicey Sappenfield, before her marriage with Isaac House, denied that they were cousins. On the witness-stand House denied it, and denied that he had ever told others they were cousins. Mrs. Tapp refused to admit that there was more to the charge than rumor, and never heard parties who would likely know speak of the fact.
All of the evidence is of a more or less uncertain character, and the opportunity of the trial judge for correctly estimating it is not afforded to this court. The presumption is in favor of legality and morality. The burden of proof was upon plaintiffs in error. The case was peculiarly one for the determination of the trial court, and its finding will not be disturbed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The parties to this litigation are contesting for the right to enjoy one of nature’s benignities. As if relenting from her severity toward the semiarid plains of Wallace county, where atmosphere and soil are parched in almost continuous drought, she has caused a number of springs of pure and wholesome water to break from the bosom of the earth and form the unfailing stream of Rose creek. Here wild things came in early days to slake their thirst; here the hunter of the bison and the wild horse lay in wait; and here the irrigation farmer came to practice agriculture.
The stream proper is formed by the confluence of a west and a south branch, and is only five miles long. Except as augmented by rain or snow or reduced by excessive evaporation the flow is constant throughout the year; and if not diverted for irrigation purposes .would approximate five cubic feet per second at its mouth. In very dry times this amount might be reduced to two cubic feet per second. It empties upon the sands of the bed of the Smoky Hill river, usually dry except in flood seasons of the year.
Some time prior to the year 1871 a man known by the name of Comstock placed a dam in the west branch of Rose creek, and from it constructed a ditch, by means of which he irrigated a garden-plot some four acres in extent. The dam was built and the ditch was taken out upon land afterward patented to the Union Pacific Railway Company, and purchased from it by plaintiff in error H. A. Clark. The water was used upon other land, to which, so far as the record shows, Comstock had taken no steps to acquire title, and which was entered by Clark, under the land laws of the United States, on September 12, 1876. In 1871 Comstock sold his dam and ditch to H. W. Wheeler, who likewise appears to have made no effort to acquire title to the land. In 1872 Wheeler failed to utilize the dam and ditch, but did so from 1873 to 1876, when he sold to Clark. The land to which the water was diverted includes the course of the south branch of Rose creek. Another tract of land through which the south branch flows was entered by Asa W. Clark on November 6, 1876, and afterward became the property of H. A. Clark. In subsequent years Mr. Clark acquired much other land in the vicinity of that already referred to, placed other dams in the branches of the creek, constructed other ditches, and by means of his entire irrigation system brought under successful cultivation some seventy acres of land.
In the year 1875 a man known as A. L. Dodge placed a dam in the Smoky Hill river at a point below its junction with Rose creek. At the place where the dam was located the water from Rose creek constituted the ordinary flow of the stream. From the dam a ditch was constructed to a point more than a mile to the eastward, by means of which Dodge irrigated during the season of 1875 or 1876 some ten acres of ground lying partly on the south half of the southeast quarter of section 26, township 13 south, range 39 west. Dodge appears to have been without legal interest in any of the land along the course of his ditch. Section 27, on which the dam was built, was patented to the Union Pacific Land Company on October 24, 1900, presumably as a successor in interest to the railroad company already mentioned. The southwest quarter of section 26, through which the ditch ran, was entered as a homestead by George H. Palmer on November 2, 1878, and subsequently patented to him.
In the autumn of 1876 George R. Allaman purchased the Dodge dam and ditch, and made some kind of a settlement on the southeast quarter of section 26, the character of which is not described. On April 12, 1877, he filed a declaratory statement for the north half of the southeast quarter of section. 26, which, however, did not ripen into title. On January 8, 1880, he made a homestead entry of the entire southeast quarter of section 26, under which he subsequently obtained full title. On November 24, 1888, he conveyed the real estate thus acquired to his wife, Lizzie R. Allaman, the plaintiff in the district court and one of the defendants in error here. The Dodge ditch appears to run through the south half of the southeast quarter of section 26. None of Mrs. Allaman’s land is riparian to Rose creek, but the channel of the Smoky Hill river traverses a part of her quarter-section.
The amount of irrigated land on the Allaman farm has been increased from year to year until it is now probably eighty acres in extent, and furnishes a striking example of the magical transformation produced by the application of water to desert soil. Land otherwise fit for pasture only, and worth not more than $2.50 per acre for that purpose, has been turned 'into orchard, garden, and meadow, regularly supports a growth of annual crops, and is worth $100 per acre.
Shortly prior to the commencement of the Dodge ditch defendant John W. Robb placed a dam across Rose creek, something more than a mile above its mouth, and from it constructed a ditch to land riparian to Rose creek, which he entered as a homestead on January 5, 1880. This entry in due time ripened into title, and Robb continued to occupy the premises with his' wife and family until the present time. The Robb ditch was so far completed that water from it was used for irrigation purposes very soon after Allaman commenced to irrigate from the Dodge ditch. After 1877 Robb steadily increased the amount of his land under irrigation, until it has now an area of about fifty acres.
On February 15, 1878, one Andrew J. Phillips made a homestead entry of land riparian to Rose creek, which was afterward patented to him, and which now belongs to defendant Lewis Williams..
Titles to other lands along the course of Rose creek were acquired by various persons on subsequent dates,, and following the earliest efforts at irrigation already described other dams and ditches were established, known as the Grant and Weisgerber, the Kyner and the Williams plants. All together, the waters of Rose creek now irrigate 300 acres of land in a semiarid region otherwise incapable of sustaining successful agriculture.
As the area under cultivation was extended year by year an amount of water correspondingly larger was necessarily diverted from Rose creek, and consumed. None of the parties interested undertook to comply with any of the irrigation statutes of the state. The years of 1900 and 1901 were excessively dry. Then the test came, and difficulties between the various appropriates of water arose.
^'In a suit for an injunction, brought by Lizzie Allaman to restrain the use of water from Rose creek by irrigators living up the stream, the district court, in a decision supported by an able and exhaustive opinion, apportioned the water among the various claimants according to the law of prior appropriation in vogue in certain of the Rocky Mountain states, rejecting altogether the rules of the common law relating to riparian rights. As a result the plaintiff was‘given dam ages, and the superior right to substantially the entire quantity of the flow of Rose creek in unpropitious seasons.
The legal propriety of such a judgment is a question of first impression in this court, and now must be determined. The subject, however, is not a new one with the courts. It has been discussed with great ability by many distinguished judges and text-writers, definite doctrines have been established in all sections of the country, and a wealth of learning already has been accumulated and lies ready to hand for application.
The legal doctrine giving a preference to the diversion and appropriation of water to some beneficial use over common-law riparian rights is well understood. It is said to arise ex necessitate rei. In arid regions the little rainfall quickly comes and quickly goes. The dry air dissipates it, the ashen earth and the sands swallow it, and it sinks away to the rock strata underlying gravel beds; but the reservoirs of the mountains are annually filled with snow, which when melted runs down in fructifying streams sufficient to supplant the cactus and the sage-brush of valley and plain with foliage and flowers and opulent farmsteads. Without diversion this water could not be made potent for agriculture, mining or manufacturing purposes, and it is therefore entirely dissociated in legal thought from the channel in which it flows, and declared to be the public property of the state, subject to appropriation by any one that will capture it and devote it to beneficial uses; and, among the appropriators, those that are prior in time are prior in right. It has been conceived that this doctrine meets the necessities of the people dwelling in arid, mountainous states better than that of the common law relating to the use of the water of running streams, and it has been established there by constitution, by legislative act, and by decisions of the courts.
Viewed historically, the foundation for this doctrine is not nearly so broad. Such history is clearly and forcefully stated in the case of Meng v. Coffee, 67 Neb. 500, 509, 93 N. W. 713, 716, 60 L. R. A. 910:
“It arose in California at a time when government and law were not yet established, when there was no agricultural population and were no riparian owners, and when streams could be put to no use except for mining. From the necessities of the case, there being no law applicable, the miners held meetings in each district or locality and adopted regulations by which they agreed to be governed. As at that time streams could be put to no use except for mining, and as the use of large quantities of water was essential to mining operations, it became settled as one of the mining customs or regulations that the right to a definite quantity of water, and to divert it from streams or lakes, could be acquired by prior appropriation. This custom acquired strength; rights were gained under it, and investments made, and it was soon approved by the courts and by local legislation; and, though not originally available against the general government or its patentees, was made so available by the act of congress in 1866. (Act July 26, 1866, 14 Stat. at L., p. 253, ch. 262, §9; 2 U. S. Comp. Stat. 1901, p. 1437, §2339.) But it was only the same rule as that by which possession of mining claims was recognized. It was a custom intended to prevent disorder and forcible dispossession of those who had located mines. As stated by Field, J., in Atchison v. Peterson, 20 Wall. 507, 22 L. Ed. 414: ‘By the custom which has obtained among miners in the Pacific states and territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins or lodes, or of waters in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters.’ In other words, the doctrine in question was not formulated as an enlightened attempt to adjust the conflicting relations of a large community of individuals. It was a crude attempt to preserve order and the general peace, and to settle customary rights among a body of men subject to no law, under which so many and so valuable rights arose that when the law stepped in it was obliged to recognize them. In this way the rule of appropriation became established in the Pacific states, in opposition to the common law, with reference to streams or bodies of water which wholly ran through or were situated upon the public lands of the United States. (Black’s Pom. Water-rights, §15.) These rules, however, were confined to the public lands, and are so confined at the present time in California, Oregon and Washington. In other states and territories the new doctrine was given general application; sometimes by judicial decision, as in Neyada, but chiefly by constitutional or legislative enactment. Thus, in those states of which the whole or a portion is arid, we now find some in which the common-law rules are in force — California, Oregon, Washington, Montana, North Dakota and, substantially, Texas — though in many of these, for reasons stated, the other rule obtains upon the public lands of the United States; others in which the doctrine of prior appropriation is in general force — Nevada, Arizona, Colorado, Idaho, Utah, Wyoming. Of these, however, Colorado, Idaho and Wyoming have constitutional provisions declaring such to be the paramount law, and in the other jurisdictions named it is generally established by statute. Not only does the history of the rule obviously remove our state from its operation, but a mere comparison of the jurisdictions where the contending principles are in force is very suggestive. In all states which, like our own, are but partially arid, the common law is in force. The states holding to the contrary rule are wholly within the arid regions.”
Essentially the same origin of the law of prior appropriation is acknowledged in the case of Armstrong v. Larimer Co. Ditch Co., 1 Colo. App. 49, 55, 27 Pac. 235:
“Before any general organization, territorial or otherwise, was or could have been had, a tide of emigration poured .into the region comprised in the present state, and over the entire West. It was found an arid, semidesert country. The land could only be made productive by the artificial use of water. The country was without law, but each individual brought with him the principles of equity and justice which were a part of. his education. It was soon found that the water of the streams was inadequate to supply all the land. • They found a new climate, new conditions calling for new laws applicable to the conditions. The first comer settled near the stream. In the absence of surveys he designated by landmarks the boundaries and extent of his occupation of land. He diverted — appropriated by such diversion — a certain amount of water from the stream, supposed to be sufficient. Others settled near him upon the same stream, and made a like appropriation. In time there were agricultural settlers enough to organize and establish a local government, and.a series of rules or laws were adopted, perhaps in many instances crude and inartificially drawn, but embodying principles of equity and justice. They were recognized and obeyed, the settlers recognizing, as before stated, a fact which later corporations and settlers have not yet apparently recognized, or, if recognized, have disregarded, that the supply of water in the streams was not sufficient for all the land.”
Among the most elementary of our legal concepts is that of the adoption of the English common law as the ■basis of American jurisprudence. In “The Life and Letters of Joseph Story” (vol. 1, p. 299) it is related as perfectly well authenticated that John Adams—
“when he was vice-president of the United States, and Blount’s conspiracy was before the senate, and the question whether the common law was to be adopted was discussed before that body, emphatically exclaimed, when all looked at him for his opinion as that of a great lawyer, that if he had ever imagined that the common law had not by the revolution become the law of the United States under the new government he never would have drawn his sword in the contest. So dear to him were the great privileges which that law recognized and enforced.”
In 1793, in the case of Chisholm, Ex’r, v. Georgia, 2 Dall. 419, 435, 1 L. Ed. 440, Justice Iredell, of the supreme court of the United States, said:
“The only principles of law, then, that can be regarded, are those common to all the states. I know of none such, which can affect this case, but those that are derived from what is properly termed ‘the common law,’ a law which I presume is the ground work of the laws in every state in the Union, and whieh I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each state, as it existed in England (unaltered by any statute) at the time of the first settlement of the country.”
In volume 1 of Kent’s Commentaries, the preface to which is dated November 23, 1826, the great chancellor said:
“The common law may be cultivated as part of the jurisprudence of the United States. In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced: Quod principi placuit, legis habet v'igorem. It is the common jurisprudence of the United States, and was brought with them as colonists from England, and established here, so far as it was adapted to our institutions and circumstances. It was claimed by the congress of the united colonies, in 1774, as a branch of those ‘indubitable rights and liberties to which the respective colonies are entitled.’ (Declar. of Rights, Oct. 14, 1774; Jour. Cong., vol. 1, p. 28.) It fills up every interstice, and occupies every wide space which the statute law cannot occupy. Its principles may be compared to the influence of the liberal arts and sciences; adversis perfugium ac solatium prcebent; delectant domi, non impedmnt foris; pernoctant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist, to whom I have already alluded (Du Ponceau, Jurisdic., p. 91), ‘we live in the midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; and it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning, at the same time, another language.’ ” (Page 842.)
Doctrines utterly subversive of cherished principles of a system of law worthy of such profound respect ought not to be lightly entertained, and it becomes necessary to examine the legal history of this state to ascertain if it is vulnerable to the challenge of the judgment of the district court. The territory from which the state of Kansas was formed was derived from sources which were strange to the common law.' All that portion of it lying north of the southern bank of the Arkansas river and east of the one-hundredth meridian was a part of the Louisiana purchase, made from France in 1803. .The remainder belonged originally to Mexico, and was obtained through the annexation of Texas in 1850.
By an act of congress of March 26, 1804, the region newly acquired from France was divided by a line running west from the Mississippi river, at the present southern boundary of Arkansas. The southern part was organized as the territory of Orleans, with a government not quite of the same type as that formulated by the ordinance of 1787, but still a fair territorial government. In the northern portion, which was called, not the territory but the district of Louisiana, no regularly organized territorial government was established, but the executive power of the governor of the territory of Indiana was extended over it, and the governor and judges of the territory of Indiana were authorized to establish inferior courts, to prescribe the jurisdiction of such courts, and to make all laws which they might deem to be conducive to the welfare of the inhabitants of the district. (2 U. S. Stat. at L., p. 283.)
The inhabitants of the district of Louisiana remonstrated against this sort of government and petitioned for officers and a government of their own, according to the principles of the ordinance of 1787. (Ann. Cong., 8th Cong., 2d sess., pp. 1608-1619.) Congress acceded to this request, and by the act of March 8, 1805, gave to the district a government of its own, and changed the name to Louisiana territory. Legislative authority was vested in a governor and three judges. (2 U. S. Stat. at L., p. 331.)
By an act of congress of June 4, 1812, the name of the territory of Louisiana was changed to Missouri territory, without any alteration of boundaries, and the French portion of the state of Kansas came under the jurisdiction of its general assembly, composed of a governor, a legislative council, and a house of representatives. (2 U. S. Stat. at L., p. 743.)
Up to that time the various legislative authorities of the region under consideration, including the congress of the United States, had promulgated general laws and particular acts recognizing, founded upon and putting in force the common law to such an extent as to amount to its practical establishment as the common law of the territory.
On January 19, 1816, the legislature of the territory of Missouri enacted the following statute:
“A law declaring what laws shall be in force in this territory. “Be it enacted, etc.:
“1st. The common law of England which is of a general nature, and all statutes made by the British parliament in aid of or to supply the defects of the said common law, made prior to the fourth year of James the First, and of a general nature and not local to that kingdom, which said common law and statutes are not contrary to the laws of this territory, and not repugnant to nor inconsistent with the constitution and laws of the United States, shall be the rule of decision in this territory until altered or repealed by the legislature, any law, usage or custom to the contrary notwithstanding.”
The state of Missouri was carved out of the territory of Missouri, and admitted into the Union in 1821, and that part of the territory of Missouri subsequently included within the limits of the state of Kansas was left unorganized and outside of any local jurisdiction. (7 Win. Nar. & Crit. Hist., p. 550, note 3.)
By an act of June 30, 1834, congress ordained that all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana and the territory of Arkansas (organized in 1819), should be taken for the purposes of the act to be Indian country, and certain regulations were prescribed for its government. It was not intended that the Indian country should be open to settlement by white men. Their relations with the Indians were regulated, the laws of the United States relating to the punishment of crime were declared to be in force except as to crimes committed by one Indian against the person or property of another Indian, and for the purpose of carrying the act into effect the northern portion of the Indian country was annexed to the state of Missouri for judicial purposes, while the southern part was attached to the territory of Arkansas. (4 U. S. Stat. at L., p. 729.) Aside from these limited subjects, the purpose was that the only local laws and governments that were to obtain were to be the laws and governments of the Indians themselves, and Indian treaties were framed upon this express basis.
“The laws of the territory of Missouri had no force or effect in the Indian country after that country ceased to be a part of such territory.” (St. Louis &c. Railway Co. v. O’Loughlin, 4 U. S. App. 283, 287, 49 Fed. 440, 1 C. C. A. 311.)
This status of affairs in the Louisiana portion of the state continued until the organization of the territory of Kansas.
After the independence of Texas from Mexico had been declared the following provision was inserted iñ the constitution for the new republic, adopted on March 17, 1836:
“The congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.” (2 Char. & Con., p. 1757.)
Pursuant to this injunction the congress of Texas, on January 20, 1840, passed an act in the following terms:
“Be it enacted, etc.: That the common law of England, so far as it is not inconsistent with the constitution or the acts of congress now in force, shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.” (1 Say. Ear. L. Tex., art. 707.)
In the case of Sparks v. Spence, 40 Tex. 693, 701, this law is said to have taken effect from and after March 16, 1840. It remained in force at the time Texas became a part of the United States, and had not been abrogated at the time the Kansas-Nebraska bill was signed by President Pierce, on May 30, 1854.
On the date last mentioned' Kansas became a territory, with boundaries including all of the present state and a considerable portion of the present state of Colorado.
Immediately upon the organization of the territory of Kansas the composition of its law received attention. In his message of July 3, 1855, to the first territorial legislature Governor Reeder said:
“It appears that the laws of the United States not inapplicable to our locality — the laws of the territory of Indiana made between the 26th of March, 1804, and the 3d of March, 1805, enacted for the district of Louisiana — the laws of the territory of Louisiana— the laws of the territory of Missouri — the common law, and the law of the province of Louisiana at the time of the cession, except so far as the latter have superseded the former, still remain in force in the territory of Kansas. As the common law to a considerable extent was adopted for the territory by congress as late as 1812, and by the Missouri legislature as late as 1816, ... it has without doubt superseded and supplied a great amount of the law previously existing.” (Page 5.)
At that session the following statute, which took effect November 1, 1855, was passed:
“An Act adopting the common law as the rule of action in this territory.
“Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas, as follows:
“Section 1. The common law of England and all statutes and acts of parliament made prior to the fourth year of James the First, and which are of a general nature, not local to that kingdom, and not repugnant to or inconsistent with the constitution of the United States, and the act entitled ‘An act to organize the territory of Nebraska and Kansas,’ or any statute law which may from time to time be made or passed by this or any subsequent legislative assembly of the teritory of Kansas, shall be the rule of action and decision in this territory, any law, custom or usage to the contrary notwithstanding.
“Sec.' 2. Punishment by virtue of the common law shall in nowise be other than fine and imprisonment, and such fine shall not exceed one hundred dollars, and such imprisonment shall not exceed six months; nor shall any of the British statutes for the punishment of crimes and misdemeanors be in force in this territory.” (Stat. Kan. Ter., 1855, ch. 96.)
At the legislative session of 1859 this statute was reenacted in identical terms, and continued in force until superseded by state legislation.
The state of Kansas, with its present boundaries, was admitted into the Union on January 29, 1861. The first state legislature elected after admission met in 1862, and the territorial law of 1855 and 1859 adopting the common law as “the rule of action and decision, any law, custom or usage to the contrary notwithstanding” was reenacted verbatim. This statute (Comp. Laws 1862, ch. 135) remained in force until October 31, 1868. The present law then became operative, and reads as follows:
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.” (Gen. Stat. 1868, ch. 119, §3; Gen. Stat. 1901, §8014.)
From this sketch it will be observed that the authority of the common law was prevalent throughout the confines of the state under every civilized form of governmental organization from the earliest times until the autumn of 1868, and all other systems were finally supplanted and obliterated, and could not be appealed to as measures of right. Such constant adherence to its principles could not have been occasioned by accident, or by indifference, but must have been the natural result of a deep-seated conviction of its complete efficiency as a means of justice.
A closer examination of the circumstances of its adoption justifies this conclusion. The few sparse settlements existing before the establishing of the Indian country may be passed over and attention be directed to the more active efforts at state making, beginning near the time of the passage of the Kansas-Nebraska bill. For some months previous to the enactment of that law the government at Washington had been busy negotiating treaties with various Indian tribes, whereby the soil of Kansas lying west of Missouri was opened to settlement. The great excitement in different sections of the country over the question of slavery in the new territory, the foundation of emigrant aid societies, the sudden influx of a heterogeneous population, and the resulting political conflicts, are matters of common knowledge. Throughout it all there is no trace of any disagreement of the people concerning the adequacy of the common law to meet all the requirements of their societary relations in their new environment. On the part of the South, the states of Missouri, Alabama, South Carolina and Georgia took the lead in colonization. (The Buford Expedition to Kansas, 6 Am. Hist. Rev., p. 38.)
Upon its organization as a state the legislature of Missouri placed upon its statute-book an adoption of the common law in terms similar to those of the territorial enactment. The effect of this statute upon the question of' water-rights is indicated by the following quotations from the later decisions of its supreme court:
“Unless authorized by lawful authority no one can interfere to any material extent with the waters of a running stream. . . . The statute of this state (§3117, p. 521) declares that ‘the common law of England . . . shall be the rule of action and decision in this state, any law, custom or usage to the contrary notwithstanding.’ This statutory obligation and duty has been recognized and enforced, as we have seen, in all the earlier and later adjudications of this court on this subject.” (Abbott v. The K. C. St. J. & C. B. Ry. Co., 83 Mo. 271, 285, 53 Am. Rep. 581.)
“The plaintiff was the possessor of certain riparian rights. These rights were property. Of that property he could not be deprived without just compensation, nor could the state itself either exercise such a power of deprivation or confer it upon some subordinate municipality dissevered from the constitutional condition of compensation for the property taken. . . . On this point I entirely concur with Judge Bakewell of the court of appeals, where he says: ‘When it is settled that riparian rights are property, and of this there seems to be no doubt, the question as to the right to take them without compensation is at an end.’ Myers v. City of St. Louis, 8 Mo. App. 266.” (Myers v. The City of St. Louis, 82 Mo. 367, 378, 375.)
Immigrants from the other Southern states named were inured to the principles of the common law. (8 Cyc. 387.) It was likewise notoriously the heritage of the men who came from the North to Kansas to aid in establishing its law. There is something of an analogy between the peopling of the territory of Kansas and the peopling of the territory of Oklahoma, so far as the question under consideration is concerned, and the result in the latter instance is described in a recent decision of the supreme court of Oklahoma as follows:
“When people from all parts of the United States on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma with them the established principles and rules of the common law as recognized and promulgated by the American courts, and as it existed when imported into this country by our early settlers and modified by American or English statutes.” (McKennon v. Winn, 1 Okla. 327, 334, 33 Pac. 582, 22 L. R. A. 501.)
Included in this system were rules respecting rights to use the water of running streams.
The opening sentence of the second chapter of the “Conquest of Kansas,” written by the late William A. Phillips in 1856, is as follows:
“The cabins of squatters had begun to dot the face of the country, and the music of the pioneer’s axe was ringing amongst the timber that shaded the watercourses of Kansas.”
The tide of immigration followed the lines of the watercourses. Along their banks the first land titles were acquired, the first homes founded, the first cities built, the first industries established. Therefore, the common law relating to riparian rights was not a mere matter of academic interest or learned study, as a survival from medieval times, to those who established the foundations of the state’s greatness, but it was the law of reason and of justice, responding to the actual demands of the times and to the circumstances and needs of the people.
It is true that in Kansas, as in California and Colorado, codes of “squatter laws” were adopted, but in origin and purpose they bore no resemblance to those of the West already described.
At first consideration uncertainty existed with reference to the proper interpretation to be given the laws of the United States relating to the acquisition of land in the new territory. (6 Op. Atty.-gen., p. 658, Aug. 12, 1854.) Because of this uncertainty, and because of the practice then becoming common of making fictitious settlements for political purposes only, various codes of the character named were adopted. A number of these were merged into the rules and regulations for settlers agreed upon at a meeting of the “Actual Settlers’ Association of Kansas Territory” (afterward called “The Mutual Settlers’ Association of Kansas Territory”) on August 12, 1854, at Millersburg. The preamble and article 14 of these rules are as follow:
“Whereas, the laws of the United States confer upon, citizens the privilege of settling and holding lands by preemption right; and, whereas, the Kansas valley, in part, is now open for the location of such claims; and, whereas, we, the people of this convention, have and are about to select homes in this valley, and in order to protect the public good, and to secure equal justice to all, we solemnly agree and bind ourselves to be governed by the following ordinances : . . .
“14. The limits of this association shall be the waters of the Wakarusa and Kansas rivers, and the territory between the same, from the mouth of the Wakarusa up to the Shawnee purchase.” (Walt. Hist, of Kan., p. 19.)
From this it is apparent that the Kansas codes of necessity merely undertook to protect the lawful efforts of men and women who in good faith were ac tually endeavoring to secure homes in the vicinity of the streams, and in no wise sought to supplant the law of the land; and the customs of the people adopting them were not antagonistic to the rules of the common law, as were those of the settlers of the mountain states. Home builders in Kansas did not need to divert the courses of the streams upon whose banks they settled, and they did not do so. Irrigation was not necessary for agriculture, manufacturing, mining, or any other industrial purpose. Soil, climate and the natural topography of the country forbade its successful use ; and it was not until the state had become filled with a population accustomed to rely upon the common law as the measure of their rights that the subject began to attract attention. At that time the lines of the state’s development had become fixed, its legal system had become settled, and under the various territorial and state statutes already quoted, making the common law the rule of conduct and decision, any custom or usage to the contrary notwithstanding, usages and customs of the character of those exhibited by the early occupants of land in the arid states were actually prohibited, at least until within two years of the construction of the Comstock dam and ditch.
Under these circumstances there is no room for debating either the existence or the justice of the common-law rules relating to the rights of riparian landowners in this state. The legislature has recognized 'them, as, for example, in the mill-dam act of 1867 (Laws 1867, ch. 87), providing for the assessment and payment of damages to the owners of land both “above and below” the projected .dam, occasioned by “overflowing or otherwise,” which includes diversion; and this court has always recognized them.
“Every man through whose land a stream of water runs is entitled to the flow of that stream without diminution or alteration.
“The Council Grove Peerless Mill Company in 1874, with the assent of an upper riparian owner, dug a channel through the lands of .such owner from a point on the Neosho river to its mill, and thereby diverted from its natural channel through the land now belonging to plaintiff in error a portion of said stream, and this without the assent of the then owner of said plaintiff in error’s land. Held, that thereby the mill company acquired no right to continue said diversion, or to restrain plaintiff in error from removing any obstruction, natural or artificial, in the bed of said river on his lands. . . .
“The right to the use of the flow of water in its natural course is connected with and inherent in the .property in the land, and passes by a conveyance of the land.” (Shamleffer v. Peerless Mill Company, 18 Kan. 24.)
“Now, that the flow of water in the natural channel of a surface stream is a property right of the riparian owner, is unquestioned and familiar law. Shamleffer v. Mill Co., 18 Kan. 24. If an individual should, by digging a new channel a few hundred feet above Soden’s dam, attempt to divert the flow of the stream, beyond doubt he would be restrained. And this restraint would be granted, not because of the mere fact of digging a channel, but because thereby the natural flow of the stream was prevented; not because of the manner, but because of the fact of the diversion. The restraint would be granted as readily if the abstraction was by pipes and pumps, as if by channel and a change of current. The principle is this: That whatever of benefit, whether of power or otherwise, comes from the flow of water in the channel of a natural stream, is a matter of property and belongs to the riparian owner, and is protected in law just as fully as the land which he owns. It cannot be taken for private use except by his consent, and for public use only upon due compensation.” (City of Emporia v. Soden, 25 Kan. 588, 604, 37 Am. Rep. 625.)
“It must be conceded that the defendant in error has the undoubted legal right to the use and enjoyment of the flow of the water in a natural watercourse that runs through his land. This right is an immemorial one, and is protected by all courts.” (A. T. & S. F. Rld. Co. v. Long, 46 Kan. 701, 702, 27 Pac. 182, 183, 26 Am. St. Rep. 165.)
“An owner of land has a right to change the channel and divert the water in a stream flowing through his land, providing that he returns the water to the original channel before it reaches the land of the proprietor below.” (Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249.)
“The plaintiffs in error had a right to confine the waters of the creek to the channel, and, to accomplish that, were entitled to build cribs or barriers along the south bank of the creek in order to protect their property from the overflow and waste. This must be done, however, in such a way as not to interfere with the rights of others. They cannot build and maintain structures which will change the channel of the stream, or project the water against and upon the property of another in such a way as will result in substantial injury to either an owner upon the opposite side of the stream, or those above or below.” (Parker v. City of Atchison, 58 Kan. 29, 36, 48 Pac. 631, 634.)
It is an essential characteristic of the common law that it exists for all the people, and has regard for their solidarity of interest as an integral whole. As one of the ablest publicists of the last century has said: *
“A common law, to be a real advantage to the people, must be a general law, and the judicial organism must contain that organic arrangement by which confusion and consequent insecurity are prevented. Without it the common law, as any other system of law, ceases proportionately to be a protection of the citizen.” (Lieb. Civ. Lib. & Self-Gov., p. 211.)
The language of the courts is to the same effect.
“Our ancestors brought with them the common law or general customs of England, but none of the particular customs. The common law became the law of our whole state, and gave the rule to every part of it.” (Harris v. Carson, 7 Leigh [Va.] 632, 638, 30 Am. Dec. 510.)
“Our ancestors who settled this country were chiefly English, and brought with them, for their government in the social state, the common law of England; that is, the law not passed by any legislative authority, but which had its origin in consent. Most of our law is of this nature. Wherever a free people ‘consent and use a certain rule or method as a law, such rule, etc., gives it the power of a law, and if it is universal, then it is the common law; if particular to this or that place, then it is custom.’ 3 Salk. 112.” (Stimmel v. Brown, 7 Hous. [Del.] 219, 224, 30 Atl. 996, 997.)
“The defendant, who claimed under a reentry and sale by the proprietors of the town of Lebanon, for a forfeiture incurred by the non-payment of rent, offered to give evidence of a custom in the said town, to proceed in the same course which the proprietors had taken in this instance. This evidence the court rejected, and I think very properly. Miserable will be our condition, if property is to depend, not on the contract of the parties, expounded by established principles of law, but on what is called the custom of particular places, so that we may have different law in every town and village of the commonwealth. There are indeed cases in which the common law of England has not been adopted in this country; and in such cases it was necessary to show what the custom had been here; but those were general customs pervading the whole state.” (Stoever v. Lessee of Whitman, 6 Binn. [Pa.] 416, 419.)
What is true of the system must be true of each rule which it embraces, and the common-law rules relating to riparian rights became the law of Kansas for every stream within its borders.
It will not be denied that in every state particular-rules of the common law, as it existed in England prior to the fourth year of the reign of James I, are not consciously regarded as binding; many others are consciously rejected, and new rules, the product of American conditions, departing widely from the English common law in fact, and quite indifferent to it in theory, became established and must be recognized as of controlling authority. Rules of law have their birth, growth and decay, like generations of men, and in order to meet the expanding needs of the inhabitants of the young commonwealth the legislature enacted the statute of 1868 continuing in force the common law only as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people.
But this statute was not designed to disturb any part of the common law which, because of its adaptability to the genius and needs of its people, had become the established law of Kansas. It gave authority for the neglect of all rules of the ancient common law that were inapplicable to the exigencies of an independent, self-directing people, striving with their own peculiar conditions and circumstances, but none of those doctrines that already had been absorbed and incorporated into the legal system of Kansas was affected ; and no part of the settled law of the state having the common law for its source became exposed to repeal, either by the repetition of infractions by individuals in particular localities or by judicial legislation based upon such infractions. If such were the case there would be little further use for a legislature in this state.
The character of the claim made for the plaintiff in this suit is inconsistent with all accepted ideas of the nature of law. It is not pretended that the conditions and wants of the people in those comparatively limited localities of the state where irrigation can be practiced with success have become paramount to the conditions and wants of the great body of the population who have no occasion to resort to that expedient, nor that the rules relating to the rights of landowners along the banks of watercourses can be totally effaced and expunged from the law of the state and the rules of the arid states upon that subject substituted; but the court is asked to relieve some of the people from the burden of the common law, and declare certain antagonistic rules to be law for them only.
Laws are not like garments, which citizen and judge may put on and off at will. To have the force of law a rule must possess the quality of uniformity and universality, and must operate upon all members of the entire political community affected by it alike. (1 Bl. Com. p. 44.) The right of every individual to life, liberty or property must be regulated by the same rules that govern every other member of the body politic similarly situated. (Vanzant v. Waddell, 2 Yerg. 260, 270; State Bank v. Cooper et al., 2 id. 599, 606, 24 Am. Dec. 517; The Regents of the University of Maryland v. Williams, 9 G. & J. 365, 412, 31 Am. Dec. 72.) A law for a section of the state is not a law of the land, and modifications of the common law to meet the conditions and wants of individuals in localities would not constitute modifications to meet the conditions and wants of “the people.” Nothing less than the welfare of the whole people can be considered, and the sovereignty of society at large must be behind the adoption and enforcement of any rule or it is not law.
A single case, that of Seeley v. Peters, 10 Ill. 130, is cited as Sustaining the view that a common law may prevail in one part of the state and be rejected in another, but no principle of that character is discoverable from the opinion of the court. It merely holds that the common-law rule relating to cattle running at large is not applicable to the condition and circumstances of the people of the state of Illinois, and, hence, does not prevail there. It is interesting to note that this court took a different view of the same question when it arose in this state and remarked:
“The plaintiffs, however, claim that the common law in this respect has been abolished by the custom of the country and by statute. As the common law has been adopted by statute and made the paramount rule by express enactment of the legislature, ‘any custom or usage to the contrary notwithstanding,' (Comp. Laws 1862, ch. 135) we suppose it would take more than a custom of the country to repeal it.” (U. P. R. W. Co. v. Rollins, 5 Kan. 175, decided in 1869.)
The court might well have gone further and said that evidence of local customs opposed to established legal doctrines will not be received at all. (29 A. & E. Encycl. of L. 376.)
“And it is well settled that usage cannot be allowed to subvert the settled rules of law. Whatever tends to unsettle the law, and make it different in the different communities into which the state is divided, leads to mischievous consequences, embarrasses trade, and is against public policy.” (Barnard v. Kellogg, 10 Wall. 383, 391, 19 L. Ed. 987.)
“To permit the temporary or indolent usages of each locality to control contracts, would be to make contracts conceived in the same language, and relating to the same subject-matter, mean one thing in one place and another in- another. A contract for clearing land might thus be made to mean one thing in Posey county, and quite another in Steuben or Lake. In one locality, the word clearing might mean to take out the stumps; in another, to clear off everything but the stumps; and in another, to clear off such timber as was eighteen inches and under. And the same contract, in precisely the same words, would mean each of these things in the respective localities. This would create a body of local laws far more intricate and embarrassing in judicial investigations than the local statutes with which the state was formerly inundated. The recognition of these local usages is, as a general rule, contrary to the public policy of this state. Our constitution and judicial decisions are hostile to local legislation and local customs. The policy of the state is to have all her locali ties a unit — the same law and the same rule of decision prevailing everywhere throughout the state. Perhaps it is not too much to say that a good usage or custom in this state should, in addition to the common-law requisites, be shown to prevail all over the state, regarded as a single locality.” (Harper v. Pound, 10 Ind. 32, 35.)
“The gist of the objection is not that the custom is in contradiction to the express terms of the contract; but that it permits a general rule of law which is applicable to the contract to be superseded by a local rule, adopted by particular classes of men, and thus leads to confusion, misunderstanding, and wrong.” (Dickinson v. Gay and another, 7 Allen, 29, 33, 83 Am. Dec. 656.)
“If we admit evidence of this special custom, we allow the law to be changed by the testimony of witnesses, or by the soda dealers of Philadelphia.” (Wetherill v. Neilson, 20 Pa. St. 448, 453, 54 Am. Dec. 741.)
“The introduction of such proof would destroy everything like certainty in contracts, and without attaining the justice of the case more effectually than is done by the rules of interpretation which our predecessors have established. No witness would be qualified to prove a custom pervading the whole state, for the knowledge of such transactions is generally confined to the neighborhood. Beside, there would be no uniformity of practice on the subject. In the eastern counties, where land has nearly attained to its ultimate value, and where the farms have been reduced by frequent subdivision, such a thing as giving in the allowance, or selling in any other way than by strict measure, is unknown. The consequence of suffering the interpretation of the contract to be affected by parol evidence, would be, that in place of the practice ‘of the country,’ we should have the practice of each county, and an interpretation peculiar to each. On the mischief to be apprehended from a state of such confusion, it is unnecessary to dilate.” (Paull v. Lewis, 4 Watts [Pa.] 402, 404.)
“In Rankin v. American Insurance Company (1 Hall, 619) it was thought to be well settled that a usage could never be set up to contradict a rule of law. . . . The same rule applies where usage is offered to oppose or alter a general principle or rule of law, and upon a given state of facts, make the legal rights or liabilities of the parties other than they are by the common law. . . . Whatever tends to unsettle the law and make it different in different portions of the state would lead to mischievous consequences, and be against public policy (Thompson v. Ashton, 14 Johns. 317), and so it has been frequently held.” (Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74, 81, 82, 43 Am. Rep. 655.)
“A rule of law can never be subverted by local custom, and, in so far as it holds otherwise, the case of Dibbs v. The State, 43 Tex. 650, is overruled. The trial court, in this case, properly rejected evidence to the effect that a general custom, in the county of the offense, gave to any one the right to kill all unmarked hogs, over twelve months old, found on the range.” (Lawrence v. The State, 20 Tex. App. 536.)
“A right by custom to maintain a building or permanent structure upon the land of another could not be acquired.” (Attorney-general v. Tarr, 148 Mass. 309, 318, 2 L. R. A. 87, 19 N. E. 358.)
“Equally immaterial, as we think, is the matter of custom among coal operators in the Hocking valley and the surrounding mining districts near thereto, of depositing slack and refuse on their own lands, when such custom is invoked to justify deposits so placed as to naturally allow them to wash down to the injury of lands lying below them. The rights of the plaintiff to the uninterrupted use of his land, and the unimpaired use of the water of Monday creek, being secured to him by the common law, how is it possible that a custom can deprive him of them? Why should a usage, the effect of which, if recognized, is to permit one man to take from another his property rights without compensation, be sanctioned? If it be assumed -that the custom is a general one, then it is part of the common law itself, and there would be presented an instance of two rules of law, equally binding, and yet wholly inconsistent the one with the other. If it be claimed that the custom is a particular one, then we have the anomaly of a landowner’s common-law right in his land taken from him by a usage of a particular trade, established by strangers, which it is not pretended he has ever been cognizant of, much less assented to. To have affected the plaintiff, the custom must have been shown to be reason able and certain, known to him, or to have been so general and well established that knowledge would be presumed, peaceably acquiesced in, and not unjust, oppressive, or in conflict with an established rule of public policy. The alleged custom possessed scarcely one of these attributes. Even though it had been common throughout the state, it would not avail. A usage which is not according to law, though universal, cannot be set up to control the law. Meyer v. Dresser, 111 E. C. L. R. 646; Stoever v. Whitman, 6 Binn. 416; Inglebright v. Hammond, 19 Ohio, 337, 53 Am. Dec. 430.” (The C. & H. C. & I. Co. v. Tucker, 48 Ohio St. 41, 59, 26 N. E. 630, 12 L. R. A. 577, 580, 29 Am. St. Rep. 528. See, also, 13 L. R. A. 438, note; 11 Am. St. Rep. 632, note.)
If the position of the plaintiff were correct all the evils pointed out by these cases would follow. Geography would become the determining factor of law. If the analogy of the statute of 1891 should be followed, and the ninety-ninth meridian should be declared to be a dividing line, appropriators on the west might take all the water from the innumerable streams crossed by that line and leave the riparian rights of landowners on the east to attach to dry beds only. If an indefinitely bounded arid region should be recognized the existence of law must depend upon the verdict of a jury as to the character of the locality. Such a verdict at best could represent nothing more substantial than an opinion upon matters about which men differ. Climate would become material, and the line no doubt would shift backward and forward across the state, following successions of wet and dry seasons, and a person having the rights of a riparian owner one year might find the water of his stream subject to appropriation the next. Other anomalous facts incompatible with any rational system of laws, and subversive of accepted notions of societary rights, might be adverted to. Besides all this, if the sectional doctrine contended for were open to recognition it could have at best only a limited op eration, even in the western part of the state, where the plaintiffs’ land lies.
The Union Pacific railroad was completed to Sheridan on August 22, 1868, before the statute of 1868 took effect. It is a matter of common knowledge that the shrewd acquisition of much desirable land along the watercourses preceded, accompanied and followed the building of that road, and to all such tracts the common-law rules respecting riparian rights attached. The fourteenth amendment to the constitution of the United States was promulgated July 28, 1868. After that, neither custom, judicial decision nor legislative enactment could destroy the vested rights of those who were then proprietors of land on the banks of streams. More than this, a change in the constitution itself could not abrogate them.
“Section 210 of the constitution provides that 'all flowing streams and natural watercourses shall forever remain property of the state for mining, irrigation and manufacturing purposes.’ ... At common law, the owner of land through which a non-navigable stream flowed was possessed of the title to the bed of the stream, as well as the right to a reasonable use of the water. The land under the water was his. The right to a reasonable use of the stream was as much his property as the land itself. The course of the stream could not be so diverted as to cause it to cease to flow in its accustomed channel upon his property. (Gould, Waters, §4; Ang. Watercourses, §§1-4; Green Bay & M. Canal Co. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121; and 63 N. W. 1019, 28 L. R. A. 443, 48 Am. St. Rep. 937, and cases cited.) These doctrines of the common law were in force in the territory of Dakota at the time of the adoption of the constitution of this state. By virtue of them, the riparian owners in the territory were vested with the specified property rights in the bed of all natural watercourses, and in the water itself. Such rights were under the protection of the fourteenth amendment to the federal constitution, which protects property against all state action that does not constitute due process of law. It follows that section 210 of'the state constitution would itself be unconstitutional in so far as it attempted to destroy those vested rights of property, if it should by construction be given a scope sufficiently wide to embrace such matters.” (Bigelow v. Draper, 6 N. Dak. 152, 162, 69 N. W. 570, 573.)
After a most thorough and exhaustive consideration of this subject the supreme court of Nebraska reached a conclusion toward which all the foregoing discussion tends. In the case of Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, 785, 60 L. R. A. 889, it was said:
“In solving the problems arising in the development of this most important industry, and extending to it all legitimate encouragement and recognition which may properly come from the judiciary, we cannot lose sight of the fundamental principles which should control our action, and govern in the disposition of all matters coming before the court for adjudication. Property rights, when vested, must be jealously guarded and upheld, or we do violence to the most .rudimentary principles of justice. Admitting, for the sake of argument, that the law of public ownership of waters and the right of appropriation thereof for beneficial use by individual citizens and corporations is preferable to the private ownership of riparian proprietors in the western portion of the state, where irrigation is necessary, it is at once obvious that these conditions can be held to apply only to a portion of the state, and in fact to a lesser area than where irrigation is proven to be not essential to successful agriculture. As is pertinently said in the first opinion, 60 Neb. 754, 762, 84 N. W. 273: ‘But can any one tell at what particular point in the state the common-law rule applicable to riparian owners would ceas.e and the rule said to be better applicable to the less-favored portion of the state would begin? Such a rule would merely tend to breed “confusion worse confounded,” and would be an assumption of legislative powers by this court inhibited by the constitution.’ ”
While the common-law doctrine respecting riparian fights is fundamental in the jurisprudence of this state, it .has been modified by various statutes enacted for the laudable purpose of encouraging irrigation. A list of all the statutes in any way referring to the subject of irrigation follows:
Subdivision 34 of article 2 of chapter 23 of the General Statutes of 1868, authorizing the formation of corporations for the construction and maintenance of canals for irrigation or manufacturing purposes.
Chapter 105 of the Laws of 1872, amending the section just referred to so as to provide for the formation of corporations for the construction and maintenance of dams and canals for water-works, irrigation or manufacturing purposes.
Chapter 133 of the Laws of 1885, creating liens for irrigators.
Chapter 134 of the Laws of 1885, prescribing punishment for injuries to irrigating canals.
Chapter 115 of the Laws of 1886, section 1 of which is as follows: “The right to the use of running water flowing in a river or stream in this state, for the purposes of irrigation, may be acquired by appropriation. As between appropriators, the one first in time is the first in right.”
Chapter 165 of the Laws of 1889, enabling irrigating-ditch and canal companies to condemn rights of way.
Chapter 133 of the Laws of 1891, declaring that, in all that portion of the state of Kansas situated west of the ninety-ninth meridian, all natural waters, whether standing or running, and whether surface or subterranean, shall be devoted, first, to purposes of irrigation uses, and secondly, to other industrial purposes, and may be diverted from natural beds, basins or channels for such purposes.
Chapter 162 of the Laws of 1895, creating a board of irrigation and authorizing certain experiments.
Chapter 95 of the Laws of 1899, authorizing the appropriation of lands for irrigation purposes.
Chapter 151 of the Laws of 1899, authorizing the condemnation of land by irrigation, canal or reservoir companies.
From these statutes it will be observed that the diversion and appropriation of water to beneficial uses has been recognized to be a public use, and the right of eminent domain may be invoked for the purposes sought to be accomplished; but, manifestly, proceedings under these statutes cannot operate to the destruction of previously vested common-law rights. Property in the flow of water acquired under the old system is protected by the constitution of the- United States, and can be condemned for public uses only under the same restrictions as apply to the taking of other private property for public uses. (City of Emporia v. Soden, supra.) Any other interpretation of the statutes would render them void.
On July 26, 1866, the congress of the United States passed an act which reads as follows:
“Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes' herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” (Rev. Stat. U. S. §2339.)
On July 9, 1870, this law was supplemented by another, as follows:
“All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the preceding section.” (Rev. Stat. U. S. §2340.)
The customs referred to in the act of 1866 are the customs alluded to in the history of the doctrine of appropriation already given. In the case of Atchison v. Peterson, 20 Wall. 507, 512, 22 L. Ed. 414, after stating the common law, Justice Field said:
“This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and, to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who -have not given such labor. So the miners on the public lands throughout the Pacific states and territories by their customs, usages, and regulations everywhere recognized the inherent justice of this principle; and the principle itself was at an early period recognized by legislation and enforced by the courts in those states and territories.”
As already shown, such practices are alien to the history of this state. Prior to the statute of 1886 there was no recognition in this state of rights to the use of water by priority of possession. Local customs to that effect were invalid; decisions of this court— notably that of Shamleffer v. Peerless Mill Company, supra, rendered early in 1877 — were based upon contrary principles; and the legislature had been content to accept the court’s interpretation of the law. There fore, before that time there could be no “vested and accrued water-rights” to be protected by the acts of congress quoted. With the enactment of the statute of 1886 the policy of the state with reference to the appropriation of water for irrigation purposes changed and rights of the character referred to might accrue and vest. In section 661 of volume 3 of Farnham on Waters and Water-rights (a sound and capable guide upon this entire subj ect) it is said:
“As appears from the above principles, the law of the states in which riparian rights have not been abolished is that, so long as the land and water belong to the government, the first one who makes use of the water has the better right to it, of which he cannot be deprived by a subsequent grant of the riparian land to private owners; but that, when the land along the stream passes into private ownership, the right to make appropriations of water ceases and all future-acquired rights must be determined by the common law.”
That the doctrine of appropriation may exist in the same state with the doctrine of riparian rights has been demonstrated in the case of Crawford Co. v. Hathaway, supra.
From the history of the titles to land riparian to Rose creek given above it is apparent that the plaintiff can claim nothing under the acts of congress of 1866 and 1870.
The authorities are unanimous to the effect that the use of water for irrigation is one of the common-law rights of a riparian proprietor. (3 Farn. Wat. & Wat.-rights, §599; 17 A. & E. Encycl. of L. 487.)
The restrictions upon the use of water for irrigation, after the primary uses for quenching thirst and for domestic requirements are subserved, are those which justice and equity suggest. In all cases the use must be reasonable, and the right of each must be exercised with due regard for the- equal rights of others. The general rules upon the subject were stated by Chief Justice Shaw in the case of Elliott v. Fitchburg Railroad Company, 10 Cush. 191, 193-196, 57 Am. Dec. 85, decided in 1852, as follow:
“The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character, that whilst it is common and equal to all, through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down. What is such a just and reasonable use, may often be a difficult question, depending on various circumstances. To take a quantity of water from a large running stream for agriculture or manufacturing purposes, would cause no sensible or practicable diminution of the benefit, to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook passing through many farms, would be of great and manifest injury to those below, who need it for domestic supply, or watering cattle; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case and not in the former. It is therefore, to a considerable extent, a question of degree; still, the rule is the same, that each proprietor has a right to a reasonable use of it, for his own benefit, for domestic use, and for manufacturing and agricultural purposes. . . .
“That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor cannot under color of that right, or for the actual purpose of irrigating his own land, wholly abstract or divert the watercourse, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably. . . .
“This rule, that no riparian proprietor can wholly abstract or divert a watercourse, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property, deemed in law incidental and beneficial, necessarily flows from the principle that the right to the reasonable and beneficial use of a running stream is common to all the riparian proprietors, and so, each is bound so to use his common right, as not essentially to prevent or interfere with an equally beneficial enjoyment of the common right, by all the proprietors. . . .
“The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is therefore only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorized use of it, that an action will lie.”
The fairness and equality of right between owner and owner here proposed must commend themselves to all considerate persons.
Some of the matters to be taken into consideration in applying the rules suggested are enumerated in the case of Harris v. Harrison, 93 Cal. 676, 681, 29 Pac. 325, 326, as follow:
“The larger the number of riparian proprietors, whose rights are involved, the greater will be the difficulty of adjustment. In such a case, the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each — all these, and many other considerations, must enter into the solution of the problem; but one principle is surely established, namely, that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbor.”
It might occur that a riparian proprietor could not irrigate his land successfully, but he could not on that account deprive others more advantageously situated of the privilege, provided, of course, his own reasonable uses of the water were not impaired.
“The mere fact that the riparian proprietor is deprived of the full flow of the stream adjacent to his land would furnish no basis for compensatory damages. Merely diminishing the volume of water in the stream would not deprive the owner of property for which he could lay claim to a pecuniary compensation. At most, the naked right to the full flow of the stream, and its loss by diminishing the volume of water when appropriated for irrigation purposes, could result only in damnum absque injuria. In order to entitle the riparian owner to compensation, he must suffer an actual loss or injury to the use of the water which the law recognizes as belonging to him, and to deprive him of which is to take from him a substantial property right. It is for an interference with or injury to his usufructuary estate in the water for which compensation may rightfully be claimed where the water of the stream is diverted and appropriated for the use of irrigation. It is such a taking of or damage to property as materially and substantially depreciates the value of the real estate of which it forms a part.” (Crawford Co. v. Hathaway, supra.)
In other words, a diminution of the flow of water over riparian land caused by its use for irrigation purposes by upper riparian proprietors occasions no injury for which damage may be allowed unless it results in subtracting from the value of the land by interfering with the reasonable uses of the water which the landowner is able to enjoy.
In section 602 of volume 3 of Farnham on Waters and Water-rights it is said:
“All conceptions of riparian land lead to the conclusion that it'is land which is tributary to, and lying along, a watercourse, and, as soon as the ‘divide’ is passed and the watershed of another stream is reached, the land cannot be regarded as riparian with reference to the former stream. And since the right to irrigate depends upon the land being riparian the destruction of the riparian character destroys the right to irrigate.”
Within these limits the principles of equality of right announced above should control the use of water for irrigation purposes by those whose land is affected by the presence of the stream, irrespective of the accidental matter of governmental subdivisions of the land.
“It would seem, therefore, that any person owning land which abuts upon or through which a natural stream of water flows is a riparian proprietor, entitled to the rights of such, without regard to the extent of his land, or from whom or when he acquired his title. The fact that he may have procured the particular tract washed by the stream at one time, and subsequently purchased land adjoining it, will not make him any the less a riparian proprietor, nor should it alone be a valid objection to his using the water on the land last acquired. The only thing necessary to entitle him to the right of a riparian proprietor is to show that the body of land owned by him borders upon a stream. This being established, the law gives to him certain rights in the water, the extent of which is limited and controlled less by the area of his land than by the volume of water and the effect of its use upon the rights of other riparian proprietors. By virtue of the ownership of land in proximity to the stream, he is entitled to a reasonable use of the water, which is defined as ‘any use that does not work actual, material, and substantial damage to the common right which each proprietor has, as limited and qualified by the precisely equal right of every other proprietor.’ ” (Jones v. Conn, 39 Ore. 30, 39, 54 L. R. A. 630, 634, 64 Pac. 855, 87 Am. St. Rep. 634.)
The judgment in favor of the plaintiff cannot be justified on the ground of prescription. Her acceptance and use of water flowing down Rose creek to her land involved the exercise of a right which she herself possessed, without encroachment upon the rights of upper proprietors, and they lost all property in the water when it left their land. Hence, her conduct lacked the adversary quality necessary to the foundation of prescriptive rights. (3 Farn. Wat. & Wat.-rights, §646; Crawford Co. v. Hathaway, supra.) Nor can any of the upper riparian proprietors in this case claim prescriptive rights against any of their neighbors below, since from the findings of fact it appears that until quite recently there has been water enough for all.
“Where it appears that defendant’s use of the water of a stream for irrigation purposes was not so extensive as to render the water-supply of plaintiff, a lower riparian owner, insufficient, such use by defendant is not so adverse to plaintiff’s right as to form a basis for a claim of title by adverse user. North Powder Milling Co. v. Coughanour, 34 Ore. 9, 54 Pac. 223.” (Boyce v. Cupper, 37 Ore. 256, 61 Pac. 624. See, also, 3 Farn. Wat. & Wat.-rights, §646.)
The judgment of the district court is reversed, and the cause remanded with direction to enter judgment against the plaintiff for costs.
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Buser, J.:
This is an action for child support brought by the State of Kansas ex rel. Secretary of Social and Rehabilitation Services, Alecia Taylor (the biological mother of J.L.K.), and J.L.K., by and through Alecia Taylor (collectively referred to as SRS). SRS appeals the district court’s decision that Shedrick J. Kimbrel, Sr., is not the father of J.L.K. and is not legally obligated to support the child after genetic testing proved he is not J.L.K.’s biological father. We affirm.
The question presented is whether in an action by SRS for child support a district court may determine, based on genetic testing, that a man who has executed a voluntary acknowledgment of pa ternity under K.S.A. 38-1138 is not the biological father of the child and, accordingly, end the father-child relationship and deny a petition for child support. We answer this question affirmatively and, as a result, uphold the judgment of the district court.
Factual and Procedural Background
J.L.K. was bom in May 2002. Shortly thereafter, Taylor and Kimbrel acknowledged paternity by executing a document entitled “Paternity Consent Form for Birth Registration.” This document comprised seven paragraphs which set forth basic rights and responsibilities of acknowledging paternity. These included:
“An acknowledgment of paternity creates a permanent father and child relationship which can only be ended by court order .... A person who wants to revoke the acknowledgment of paternity must file the request with the court before the child is one year old ....
“Both the father and the mother are responsible for the care and support of the child. If necessary, this duty may be enforced through legal action such as a child support order ....
“Each parent has the right to sign or not sign this acknowledgment of paternity.”
Kimbrel, who was 23 years old, read and initialed every disclosure paragraph of the document. He then signed his name after the statement: “I have read the disclosure of basic rights and responsibilities of acknowledging paternity... and I hereby acknowledge that I am the father of, and consent to the placing of my name as the father on the birth record of [J.L.K.].” As a result, Kimbrel’s name was listed on J.L.K.’s birth certificate as his father.
Two years later, on May 28, 2004, SRS filed a petition for child support and served Kimbrel. The petition alleged that SRS had been assigned support rights for J.L.K., that Kimbrel was J.L.K.’s father, and that he owed a duty to support his son. Previously, Kimbrel had never revoked his voluntary acknowledgment of paternity. In response to the lawsuit, however, Kimbrel requested genetic testing to determine the biological paternity of J.L.K. Prior to the hearing on Kimbrel’s motion, the district court ordered the appointment of a guardian ad litem for J.L.K.
A hearing was held in accord with In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). The district court summarized SRS’s argument opposing genetic testing: “SRS asserts that genetic testing is not appropriate because [Kimbrel’s paternity] acknowledgement became conclusive by respondent’s failure to challenge it in a manner mandated by statute. Therefore, the paternity of [Kimbrel] has already been established.”
The district court also summarized the positions of the other parties:
“In this case, the mother has testified she is certain [Kimbrel] is the father of the child. However, she does not object to testing. The guardian ad litem believes genetic testing should be done because it may satisfy [Kimbrel’s] doubts and encourage him to have a more meaningful relationship with his child.”
Ultimately, the district court decided genetic testing was in the best interests of J.L.K. and granted Kimbrel’s motion. Subsequent test results showed that Kimbrel was not the biological father of J.L.K.
On March 17, 2006, an administrative hearing officer found that Kimbrel “is not the father of [J.L.K.] by [genetic testing] and does not have to pay child support.” SRS sought review by the district court.
On November 14, 2008, the district court issued its order and supporting memorandum. It found that K.S.A. 38-1138(b)(l) provides that an acknowledgment of paternity creates a permanent father and child relationship which may only be terminated by a court order. The district court also found that Kimbrel had not revoked his acknowledgment in a timely manner. The district court ruled, however, that Kimbrel’s written acknowledgment of paternity “only creates a presumption that paternity is established.” (Emphasis added.) Noting that both J.L.K.’s mother and the guardian ad litem favored genetic testing, the district court determined that Kimbrel “was entitled to genetic testing,” which revealed a “zero percent chance” that he was the biological father of J.L.K. Accordingly, the district court held that Kimbrel was not “the legal father of the child” and had no duty to support J.L.K.
SRS appeals. Kimbrel did not file a responsive brief.
Voluntary Acknowledgment of Paternity Pursuant to K.S.A. 38-1138
SRS presents two contentions. First, it argues that Kimbrel’s execution of the voluntary acknowledgment of paternity form as provided in K.S.A. 38-1138 did not merely create a rebuttable presumption of paternity, rather it permanently established Kimbrel as J.L.K.’s father, notwithstanding the subsequent genetic testing which proved he was not the biological father. Second, SRS contends Kimbrel was procedurally barred from challenging his voluntary acknowledgment of paternity because the statutory time limits to revoke the acknowledgement had expired.
The facts are not in dispute, and the question presented turns on statutory interpretation. As a result, our standard of review is de novo. See Reese v. Muret, 283 Kan. 1, 4, 150 P.3d 309 (2007).
“The fundamental rule of statutory construction is that the intent of the legislature governs. Legislative intent is first determined by considering the language in the statute. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Reese, 283 Kan. 1, Syl. ¶ 1.
We begin our analysis with a review of the Kansas Parentage Act, K.S.A. 38-1110 et seq. (KPA), which governs “[proceedings concerning parentage of a child.” K.S.A. 38-1110(b). The KPA defines the “ parent and child relationship’ ” as “the legal relationship existing between a child and the child’s biological or adoptive parents.” K.S.A. 38-1111. Setting aside adoption, which is not at issue here, this statutoiy definition shows a legislative intent to recognize biological lineage as the foundation for the parent-child relationship. This legislative intent is also consistent with our constitutional order. See In re Adoption of G.L.V., 286 Kan. 1034, 1059, 190 P.3d 245 (2008) (“a natural parent’s right to raise his or her child is protected to the extent that the parent demonstrates a commitment to his or her parental responsibilities”).
The KPA provides for genetic testing “[w]henever the paternity of a child is in issue in any action or judicial proceeding in which the child, mother and alleged father are parties.” K.S.A. 38-1118(a). The plain language of this statute is particularly relévant to the issue on appeal because K.S.A. 38-1118(a) makes specific provision for genetic testing in “action[s] . . . filed by the [SRS] under K.S.A. 39-755 or 39-756.” In the present case, SRS brought this child support action against Kimbrel pursuant to these two statutory provisions.
On appeal, SRS does not cite K.S.A. 38-1118(a), perhaps because it does not concede the paternity of J.L.K. is in issue. Generally speaking, however, a party who denies paternity and requests genetic testing has placed paternity “in issue.” See Black’s Law Dictionary 907 (9th ed. 2009) (issue defined as “A point in dispute between two or more parties.”).
The language of K.S.A. 38-1118(a) provides “the court shall order genetic tests” on motion of SRS or “any party to the action.” As our Supreme Court indicated in Reese: “K.S.A. 38-1118(a) requires the district court to order genetic testing when any party requests genetic testing.” 283 Kan. at 6.
Importantly, Reese v. Muret, 283 Kan. at 6, states the statutory requirement of genetic testing in K.S.A. 38-llI8(a) was “tempered” by the holding of In re Marriage of Ross. In Ross, our Supreme Court required “the district court to conduct a hearing prior to issuing an order for genetic testing to determine whether genetic testing is in the best interests of the child.” Reese, 283 Kan. at 6. Our Supreme Court noted in Reese v. Muret, 283 Kan. at 10, that there may be other considerations, such as family identity or the right to inherit, which supersede biological lineage (“paternity is both broader and deeper than genetics”).
In this case, genetic testing conducted pursuant to K.S.A. 38-1118(a) established that Kimbrel is not J.L.K.’s biological father. Moreover, as a result of the Ross hearing, the district court found genetic testing was in J.L.K.’s best interests, and SRS does not contest that finding on appeal. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (issues not briefed are deemed waived or abandoned). SRS is, therefore, arguing for a parent-child relationship contrary to biological lineage which was established through genetic testing determined to be in the best interests of J.L.K. The question becomes whether the legislature intended for a voluntary acknowledgment of paternity to have this effect under these circumstances.
The plain language of K.S.A. 38-1114 provides that a voluntary acknowledgment of paternity establishes a presumption of paternity: “A man is presumed to be the father of a child if: ... . [t]he man ... in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. . . . 65-2409a, and amendments thereto.” K.S.A. 38-1114(a)(4). This presumption, however, is not conclusive because the plain language of the same statute provides the presumption may be rebutted “by clear and convincing evidence.” K.S.A. 38-1114(b).
In this case, the district court considered the genetic test results as clear and convincing evidence which proved Kimbrel was not J.L.K.’s biological father. On appeal, SRS does not contest that particular ruling.
We conclude that Kimbrel’s voluntary acknowledgment of paternity was made “in accordance with K.S.A. . . . 65-2409a, and amendments thereto” as required by K.S.A. 38-1114(a)(4). In fact, the form Kimbrel executed referenced K.S.A. 65-2409(c) which was the precursor statute to K.S.A. 65-2409a(c). See K.S.A. 65-2409a, Revisor’s Note; L. 1990, ch. 226, sec. 2; L. 1990, ch. 227, sec. 2. As a result, we read the citation to K.S.A. 65-2409(c) on Kimbrel’s acknowledgment of paternity form as K.S.A. 65-2409a(c).
Beyond the citation on the form, however, it is clear that K.S.A. 65-2409a(c) applies in this case. That statute provides for “written consent ... of the person to be named as tire father on a form provided by the state registrar pursuant to K.S.A. 38-1138” in cases where “the mother was not married either at the time of conception or of birth, or at any time between conception and birth.” K.S.A. 65-2409a(c). Thus, the procedure for executing the form is controlled by K.S.A. 65-2409a, while the content of the form is controlled by K.S.A. 38-1138(b), which sets out the “rights and responsibilities of acknowledging paternity” which must be included in the voluntary acknowledgment of paternity form. The linkage between these two statutes is shown further in K.S.A. 38- 1138(a), which cites back to K.S.A. 65-2409a(c): “The state registrar of vital statistics, in conjunction with the secretary of [SRS], shall review and, as needed, revise acknowledgment of paternity forms for use under K.S.A. . . . 65-2409a, and amendments thereto.”
Given that Kimbrefs voluntary acknowledgment of paternity was proper under both K.S.A. 65-2409a(c) and K.S.A. 38-1138(b), we conclude that it created a presumption under K.S.A. 38-1114(a)(4) that Kimbrel was the father of J.L.K.
While SRS concedes that Kimbrefs acknowledgment of paternity conformed to K.S.A. 38-1138(b), it counters that the provisions of K.S.A. 38-1138(d) suggest that no presumption of paternity was created by the execution of that document. SRS bases its assertion on the following language from that statute: “An acknowledgment of paternity completed without the written disclosures of subsection (b) [of K.S.A. 38-1138] is not invalid solely for that reason and may create a presumption of paternity pursuant to K.S.A. 38-1114 and amendments thereto.”
Of course, Kimbrefs acknowledgment of paternity included all of the requisite written disclosures. But SRS would have us infer that only those acknowledgments of paternity which fail to conform to K.S.A. 38-1138(b) may create a presumption. SRS contends an acknowledgment of paternity which conforms to K.S.A. 38-1138(b), as in Kimbrefs case, does something more than establish a presumption— it “establishes” a “permanent father and child relationship.”
We read K.S.A. 38-1138(d) differently than SRS: The fact that a voluntary acknowledgment of paternity not made in accordance with K.S.A. 65-2409a may create a presumption of paternity proves only that a nonconforming acknowledgment may or may not create a presumption. As a result, a question would remain whether the man, by executing the writing in question, “recognizes paternity of the child.” K.S.A. 38-1114(a)(4). But under the plain language of K.S.A. 38-1114(a)(4), if a voluntary acknowledgment of paternity is made in accordance with K.S.A. 65-2409a, it creates a presumption as a matter of law. Only when a voluntary acknowledgment of paternity is revoked under the provisions of K.S.A. 38-1115(e), does it not create a presumption as a matter of law.
In support of its contention that a voluntary acknowledgment of paternity “establishes” a “permanent” father-child relationship, SRS cites two statutes, K.S.A. 38-1113(b) and K.S.A. 38-1138(a).
The first statute, K.S.A. 38-1113(b), provides: “The father may be established under this act or, in the absence of a final judgment establishing paternity, by a voluntary acknowledgment of paternity meeting the requirements of K.S.A. 38-1138 . . . , unless the voluntary acknowledgment has been revoked pursuant to K.S.A. 38-1115.” K.S.A. 38-1113(b).
We agree with SRS that Kimbrel was established as the father of J.L.K. under this provision. That does not end the analysis in support actions, however. If it did, the legislature would not have included voluntary acknowledgments of paternity in tire list of rebuttable presumptions at K.S.A. 38-1114, not to mention providing for genetic testing under K.S.A. 38-1118.
The second statute, K.S.A. 38-1138(b)(l), states: “An acknowledgment of paternity creates a permanent father and child relationship which can only be ended by court order.” The key here, of course, is that the relationship is permanent unless undone by a court. We see this as a parallel to K.S.A. 38-1113(b). The legislature clearly intended that a voluntary acknowledgment of paternity, standing alone, would establish a permanent father-child relationship without the need for a paternity action. Nevertheless, that relationship is subject to termination by a court because paternity is a rebuttable presumption under K.S.A. 38-1114.
Finally, SRS argues that Kimbrel is bound by his voluntary acknowledgment of paternity because he did not bring an action to revoke it within the time limits set out in K.S.A. 38-1115(e). In this case, the statute required Kimbrel to bring an action to revoke the acknowledgment of paternity within 1 year after J.L.K.’s birth. See K.S.A. 38-1115(e). Here, J.L.K. was 2 years old before Kimbrel sought genetic testing to contest paternity. In the view of SRS, “[i]f the acknowledgment is not revoked at court within the statutory time frame, it becomes permanent’ as to that individual and he is then barred under K.S.A. 38-1115(e) from challenging the voluntary acknowledgment of paternity.”
But K.S.A. 38-1138(b)(l) does not state the father and child relationship is permanent only after the time limits at K.S.A. 38-1115(e) have expired. It states the acknowledgment of paternity itself “creates a permanent father and child relationship,” and this “permanent” relationship may then be ended by court order. K.S.A. 38-1138(b)(l). Given the plain language of K.S.A. 38-1114, the district court’s order in the present case was one such example anticipated by die statutory language.
This does not render the time limits meaningless. The legislature added the reference to voluntary acknowledgments of paternity in K.S.A. 38-1114(a)(4) in the same act which imposed the time limits on actions to revoke voluntary acknowledgments of paternity in K.S.A. 38-1115(e). L. T994, ch. 292, secs. 5-6. The amendments were also enacted after Ross. See Frick v. City of Salina, 289 Kan. 1, 23, 208 P.3d 739 (2009) (“courts presume the legislature acts with knowledge of existing statutory and case law when it enacts legislation”).
Reading the amended statutes together in light of Ross, we reach the following conclusions: First, when a man executes a voluntary acknowledgment of paternity under K.S.A. 38-1138 a presumption of paternity arises and he is established in a permanent father-child relationship. Second, if a man successfully brings a timely action under K.S.A. 38-1115(e) to revoke his voluntary acknowledgment of paternity, the presumption of paternity ends by court order and he is no longer established in the permanent father-child relationship. Third, if a man does not successfully bring such a timely action, the presumption of paternity remains along with the established father-child relationship, and it is subject to challenge by genetic testing only where permitted by K.S.A. 38-1118(a) and Ross. Finally, if a district court determines, based on genetic testing ordered pursuant to K.S.A. 38-1118(a) and Ross, that clear and convincing evidence proves a man who has executed a voluntary acknowledgment of paternity under K.S.A. 38-1138 is not the biological father of the child, the court may find the presumption of paternity is rebutted, end the father-child relationship, and deny a petition for child support.
Where, as here, tire best interests of the child were served by genetic testing, the district court did not err in allowing the testing, considering the results, ending the father-child relationship, and denying the petition for child support.
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Leben, J.:
Brent Tyrell Alexander claims that the State waived its right to send him to jail after he violated his felony probation because the State took 2 years to find and arrest him. Alexander is right that due-process considerations require that the State act without unreasonable delay in such cases, and he’s also right that the State’s attempts to find him fell short of perfection. But the State does not waive its rights to prosecute a probation violation merely because its efforts are imperfect so long as those efforts are reasonable. We agree with the district court here that the State undertook reasonable efforts to find Alexander so that a hearing could be held regarding his alleged probation violations.
Alexander was convicted of felony aggravated assault and misdemeanor criminal restraint. The district court granted probation, but if Alexander faded at probation, his underlying sentence was 27 months in prison and another 180 days in county jail on the misdemeanor.
Alexander violated his probation within 3 months by using illegal drugs, failing to respond to a curfew check, and otherwise fading to report as directed. But the court gave him a second chance on probation.
Soon thereafter, Alexander asked that his probation supervision be transferred from Garden City to Liberal because he had nowhere to live in Finney County but could stay with his wife in Ulysses, where he could be supervised out of Liberal. According to Alexander s probation officer, Alexander was supposed to fill out paperwork regarding this potential transfer — and another request to transfer his probation to Arkansas — at an appointment on October 26,2005, that Alexander missed. He missed another appointment 5 days later, and his probation officer didn’t have Alexander’s home address. When Alexander called on October 31 to report that he was sick, the probation officer directed that Alexander report and provide his residential address. Alexander did neither.
The State moved to revoke his probation, and a warrant for Alexander’s arrest was issued on November 3. The probation officer had another phone conversation with Alexander on November 9; Alexander expressed displeasure about the progress of his request to transfer probation supervision out of Garden City. After that conversation, the probation officer found a voicemail message from Alexander that she considered threatening; a charge for misdemeanor disorderly conduct was lodged against Alexander, but officers couldn’t locate him that day.
On November 11, officers called Alexander’s mother in Arkansas; she had no useful information. On November 16, officers entered Alexander’s name and warrant into a national computer database. The sheriff s office published his photo as a wanted person in the local Garden City newspaper. Based on information obtained in a records check, an officer also called one of Alexander’s friends but got no useful information. Later, on November 30, officers tried to execute the arrest warrant at his last known address; Alexander wasn’t there. The probation officer had no better address. In December 2005, officers sent a copy of the warrant and Alexander’s photo to the sheriff s office in Ulysses, although it doesn’t appear that any attempt was made to contact Alexander’s wife, who lived there.
In August and September 2006, officers received tips that Alexander was working in Arkansas. Sheriff s officers contacted law enforcement in Arkansas but got no help. In February 2007, officers got a tip that Alexander was working in Ulysses. They again contacted the sheriff s office there, but Alexander was no longer working at the specified employer by the time that employer was identified in August. Alexander was arrested in Arkansas in October 2007; he was then extradited to Kansas because of the outstanding warrant.
Alexander presented evidence at the evidentiary hearing in district court that law-enforcement personnel failed to arrest him on the outstanding warrant even though they had contact with him. A Ulysses detective testified that he investigated an alleged battery that Alexander had witnessed in Ulysses in April 2007. Although the detective normally checks for warrants in the national database that had Alexander’s warrant listed in it, the detective didn’t remember specifically running a warrant check on Alexander. Another officer who responded to a domestic-disturbance call, apparently at Alexander’s residence, said that although he didn’t check for warrants, another officer did.
Alexander moved to dismiss the probation violation, which the district court denied. Alexander is correct that due-process considerations require that the State act without unreasonable delay in issuing and executing an arrest warrant for a probation violation. State v. Hall, 287 Kan. 139, 144, 195 P.3d 220 (2008). The State waives its right to proceed if it unreasonably delays executing a warrant for die arrest of a probationer whose whereabouts are either known or discoverable with reasonable diligence. State v. Myers, 39 Kan. App. 2d 250, Syl. ¶ 5, 178 P.3d 74 (2008). In other words, if the State could or should have known with reasonable effort where the defendant was located in order to arrest him, .the State cannot unreasonably delay making that arrest.
We review independently, without any required deference, the district court’s legal conclusion regarding whether a person’s due-process rights have been violated. Myers, 39 Kan. App. 2d at 252-53. As to the facts, we ordinarily must accept the district court’s factual findings. Here, Alexander has not provided a transcript of the district court’s ruling, which apparently was announced at a hearing called for that purpose. As the appellant, Alexander has a duty to provide a record demonstrating error. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). In the absence of a transcript or a request to the district court for additional findings, we will assume — to the extent the evidence supports it — that the district court made the factual findings necessary to support its conclusion that the State acted reasonably in attempting to execute the warrant for Alexander’s arrest. See State v. Gaither, 283 Kan. 671, 686, 156 P.3d 602 (2007).
Under this standard, the State demonstrated that it took several steps toward locating Alexander and arresting him on the warrant:
• entering the warrant into the national computer system used by law enforcement;
• publishing Alexander’s photo in the local newspaper and seeking help from the public;
,• following up on each tip received regarding Alexander’s whereabouts;
® calling Alexander’s mother in Arkansas and locating and calling one of Alexander’s friends regarding Alexander’s whereabouts;
• attempting to execute the warrant at Alexander’s last known address; and
• forwarding information about Alexander to the sheriff in Ulysses and in Arkansas.
These actions are more extensive than those taken in any of the published cases in which we have found the State’s efforts to have been so unreasonable that the due-process rights of the defendant were violated and that the State was deemed to have waived its right to proceed. In Myers, the defendant wasn’t arrested for more than 2 years after the warrant was issued, and the State didn’t show any attempt to serve the warrant during that time. In State v. Bennett, 36 Kan. App. 2d 381, 138 P.3d 1284, rev. denied 282 Kan. 792 (2006), the defendant wasn’t arrested for 2 years after issuance of the warrant. The State’s efforts were limited to trying once to serve the warrant, posting the defendant’s photo once on a local television “felon of the day” program, and following up on only one tip of the two received during that time. In State v. Haines, 30 Kan. App. 2d 110, 39 P.3d 95, rev. denied 273 Kan. 1038 (2002), the defendant wasn’t arrested for 16 years, and there was no evidence of any attempt to locate the defendant during that time other than sending letters to Haines’ wife and mother; the letter to the mother was returned, and the State knew that Haines’ wife had left him.
Alexander relies primarily upon Haines in support of his argument, but the investigation undertaken here was much more thorough than the one in Haines. In addition, the time between the warrant’s issuance and Alexander’s arrest was less than 2 years, not 16, and the State took periodic steps to attempt to locate Alexander.
The best case in support of Alexander’s argument is Bennett, where the State did undertake efforts similar to those taken here. But we conclude that the State’s efforts here are greater than those taken in Bennett. Here, the State followed up on every tip it received, affirmatively checked records to locate a friend of Alexander’s to call for information, called Alexander’s mother for information, tried promptly to execute the warrant at his last known address, and forwarded information to law-enforcement authorities in a nearby community where Alexander might have been located and to Arkansas where they even had an address for him — but not the help of the local police who had jurisdiction to arrest him there. In Bennett, officers never attempted to serve the warrant at the address listed on that warrant, made no effort to locate the defendant for about 4 months after its issuance, and then made no further effort for about 6 more months before putting the defendant’s picture on a local “felon of the day” television program a single time. Unlike those efforts in Bennett, the State’s efforts in Alexander’s case were reasonable and do not result in waiver of the prosecution of his probation violations.
Alexander emphasizes that he could have been located while he was living in Ulysses. He introduced a pay stub from April 2007 and a W-2 form from a Ulysses employer. In addition, Ulysses police officers who responded to a domestic disturbance could have learned of his warrant through a check of the national computer database. Apparently either that computer check wasn’t made or wasn’t accurately reported to the officers. While it’s true that Alexander could have been found while he was in Ulysses, we don’t think that a failure by police checking on a domestic-disturbance call to run a warrant check is itself so unreasonable that Alexander’s due-process rights in the probation-violation case were violated by that failure.
Considering all of the steps that the State took to locate Alexander and serve this warrant, the State acted reasonably. The district court properly denied Alexander’s motion to dismiss the probation-revocation proceeding.
Alexander raises two other issues on appeal. First, he argues that the district court abused its discretion by revoking his probation rather than giving him another chance. But whether to revoke probation is a judgment call for the district court, and we cannot reverse its decision if any reasonable person would agree with it. See State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). The State presented evidence that Alexander had failed to report on several occasions and had left a threatening message for his probation officer. Alexander had already violated his probation and been given a second chance. He certainly knew better than to go AWOL for 2 years, and we certainly cannot reverse the district court’s decision to revoke his probation rather than giving him a third chance to successfully complete it.
Second, Alexander argues that the district court violated his constitutional rights when it initially considered his criminal histoiy in sentencing him without requiring that his convictions be proved to a jury. But Anderson didn’t appeal his sentence within 10 days of its pronouncement in June 2005 as required by K.S.A. 22-3608(c). We therefore have no jurisdiction to consider an appeal of Alexander s sentence. Alexander’s appeal of his sentence must therefore be dismissed. See State v. Inkelaar, 38 Kan. App. 2d 312, Syl. ¶¶ 1, 3, 164 P.3d 844 (2007), rev. denied. 286 Kan. 1183 (2008).
The defendant’s appeal of his sentence is dismissed. The judgment of the district court is otherwise affirmed. | [
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Leben, J.:
Petitioners Dustin Merryfield, Sutton Lovingood, and John Colt appeal the district court’s dismissal of their petition under the Kansas Judicial Review Act. The petitioners had challenged some regulations that the Kansas Department of Social and Rehabilitation Services had adopted for residents of the Kansas Sexual Predator Treatment Program, but the district court dismissed their petition for failure to exhaust administrative remedies before bringing the lawsuit.
While the case has been pending, however, a significant legislative change has taken place: the legislature has exempted claims “concerning the civil commitment of sexually violent predators” from coverage under the Kansas Judicial Review Act. See L. 2009, ch. 109, sec. 24 (effective July 1, 2009). Thus, the Kansas Judicial Review Act no longer provides jurisdiction to hear the petitioners’ claims concerning their confinement terms.
We conclude that we lack jurisdiction to consider the petitioners’ appeal. As a general matter, a new jurisdictional rule is applied in pending cases when that new rule doesn’t take away a party’s substantive rights and a forum remains in which those rights may be pursued. See In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 359, 82 P.3d 861, rev. denied 278 Kan. 845 (2004) (noting that changes to a court’s jurisdiction generally are applied to pending cases) (citing Landgraf v. USI Film Products, 511 U.S. 244, 274, 128 L. Ed. 2d 229, 114 S. Ct. 1483 [1994]). The legislative amendment that removed jurisdiction over claims concerning the civil commitment of sexually violent predators does not prevent the petitioners from seeking a court’s review of their confinement conditions: the Kansas Supreme Court recently confirmed that a person confined under the Kansas Sexual Predator Treatment Program may bring a claim under K.S.A. 60-1501 alleging due-process violations. Johnson v. State, 289 Kan. 642, Syl. ¶ 1, 215 P.3d 575 (2009). Indeed, the Kansas Judicial Council recommended the removal of claims like those of the petitioners from the reach of the Kansas Judicial Review Act because a habeas-corpus proceeding was a better fit for such claims. See Testimony of Kansas Judicial Council, House Judiciary Committee, March 9, 2009, pp. 11-12 (regarding amendment in 2009 S.B. 87 to K.S.A. 77-603, now codified at L. 2009, ch. 109, sec. 24).
The petitioners clearly set forth in their petition that they claimed jurisdiction solely based upon the Kansas Judicial Review Act. Of course, that act was a viable basis for jurisdiction at that time. See Williams v. DesLauriers, 38 Kan. App. 2d 629, 172 P.3d 42 (2007). But since the sole basis for the petitioners’ lawsuit no longer provides jurisdiction to consider their claims, the lawsuit must be dismissed.
The judgment of the district court dismissing the petitioners’ lawsuit is therefore affirmed without prejudice to the ability of the petitioners to refile these claims under some other jurisdictional basis. | [
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Caplinger, J.:
Alcena Dawson appeals from the district court’s summary denial of his K.S.A. 22-3504 motion to correct an illegal sentence. Dawson claims that a literal reading of K.S.A. 22-3504 requires the district court to appoint counsel and conduct a hearing on his motion, and that he had a right to be present at the hearing. Dawson essentially asks this court to overturn State v. Duke, 263 Kan. 193, 195-96, 946 P.2d 1375 (1997), in which our Supreme Court rejected this very argument.
Aside from the obvious problem that this court may not overturn our higher court, Dawson’s appellate counsel has unsuccessfully asserted this same argument before our Supreme Court in at least 9 appeals in the past 5 years, and before panels of this court in approximately 30 appeals in that same time period. Further, in this appeal, as in those many appeals, Dawson’s appellate brief fails to recognize the numerous recent opinions from both courts rejecting his argument.
Because we must once again reject this interpretation of K.S.A. 22-3504, and because Dawson fails to argue the merits of the issue, we affirm the district court’s summaiy denial of his K.S.A. 22-3504 motion.
Factual and Procedural Background
Dawson was convicted of rape in 1997 and prior to sentencing filed a written objection to his criminal history score.
Dawson specifically challenged three person misdemeanor convictions that had been aggregated into one person felony, claiming the misdemeanor convictions were uncounseled. Following an evidentiary hearing, the sentencing court found the records sufficiently established that Dawson was counseled when he pleaded to all three charges in May 1997 and overruled Dawson’s objections.
Dawson appealed, claiming, inter alia, the district court erred in finding the three misdemeanors were counseled and in using those convictions to increase his criminal history score. A panel of this court affirmed the district court’s finding that Dawson was represented by counsel on all three misdemeanors, rejected all of Dawson’s appellate claims, and affirmed his sentence and conviction. State v. Dawson (Dawson I), No. 79,652, unpublished opinion filed December 23, 1999, rev. denied 269 Kan. 935 (2000), slip op. at 4-6.
In 2001, Dawson filed a K.S.A. 60-1507 motion which was summarily denied. Dawson did not appeal. In 2002, Dawson filed a second K.S.A. 60-1507 motion. The district court appointed counsel, conducted a preliminary hearing, and denied the motion, finding it successive and lacking in evidentiary basis. Dawson appealed. Dawson v. State (Dawson II), No. 94,720, unpublished opinion filed December 29, 2006, rev. denied 283 Kan. 930 (March 27, 2007), 2006 WL 3877559, at *1.
Dawson appealed the denial of his second 60-1507 motion, challenging, inter alia, the aggregation of his misdemeanor convictions. Dawson II, 2006 WL 3877559, at *1. The Dawson II panel characterized this issue as a trial error that should have been raised on direct appeal and could not be raised in a collateral attack. The panel further concluded Dawson had failed to demonstrate any exceptional circumstances preventing him from raising the issue on direct appeal or in his first K.S.A. 60-1507 motion. Ultimately, the panel affirmed the district court’s denial of Dawson’s second K.S.A. 60-1507 morion. 2006 WL 3877559, at *1-3.
On April 28, 2008, Dawson filed the pro se motion to correct an illegal sentence at issue in this appeal. The district court summarily denied the motion, finding it raised no issue of fact or law.
In this appeal of the summary denial of his K.S.A. 22-3504 motion, Dawson argues the plain language of K.S.A. 22-3504(1) required the district court to appoint counsel and conduct a hearing on his motion. Dawson essentially urges us to overturn our Supreme Court’s decision in Duke, 263 Kan. at 196, where the court held that appointment of counsel and a hearing are not automatically required upon the filing of a K.S.A. 22-3504 motion.
Analysis
Initially, before addressing Dawson’s claim on appeal, we note that Dawson fails to brief the merits of the claim he made in district court — i.e., that the sentencing court improperly aggregated his uncounseled misdemeanor convictions. Issues not briefed are deemed waived or abandoned. State v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert denied 129 S. Ct. 192 (2008).
Instead, Dawson focuses his appeal on K.S.A. 22-3504(1) and argues the district court erred in failing to strictly apply the statute. In related arguments, Dawson contends the district court’s summary denial deprived this court of a sufficient record from which to conduct meaningful appellate review. Further, he suggests our Supreme Court’s interpretation of K.S.A. 22-3504 in Duke violated the separation of powers doctrine, deprived him of his statutory right to a hearing, and deprived him of the right to counsel under the Sixth Amendment to the United States Constitution.
To the extent Dawson invites this court to revisit and overrule Supreme Court precedent, we necessarily decline that invitation. We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). As more fully discussed below, it is clear that our Supreme Court has no plans to depart from its interpretation of K.S.A. 22-3504(1).
K.S.A. 22-3504(1) provides:
“The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
Contraiy to Dawson’s argument on appeal, our Supreme Court has consistently reaffirmed Duke and held that K.S.A. 22-3504(1) does not automatically require appointment of counsel or a hearing on a motion to correct an illegal sentence. See, e.g., State v. Conley, 287 Kan. 696, 701-04, 197 P.3d 837 (2008); State v. Howard, 287 Kan. 686, 690, 198 P.3d 146 (2008); State v. Hoge, 283 Kan. 219, 223-25, 150 P.3d 905 (2007).
Rather, as the State points out, a district court faced with a K.S.A. 22-3504 motion is required to review the motion to determine whether the movant has raised any substantial issues of law or fact. Hoge, 283 Kan. at 224; Duke, 263 Kan. at 196. Based upon that preliminary examination, the district court may summarily deny the motion if it determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief. Hoge, 283 Kan. at 224.
At this juncture, we think it necessary to note that Dawson has filed a 19-page appellate brief that fails to cite or acknowledge any of the many decisions filed after Duke rejecting the arguments he makes here. This failure is particularly significant since one of the attorneys representing Dawson in this appeal, Carl Maughan, was counsel of record in at least nine appeals before our Supreme Court in which this, argument has been rejected. See State v. Conley, 287 Kan. 696; State v. Hoge, 283 Kan. 219; State v. Edwards, 281 Kan. 1334, 135 P.3d 1251 (2006); State v. Jones, 279 Kan. 809, 112 P.3d 123 (2005); State v. Foster, No. 98,014, unpublished opinion filed February 13, 2009, 2009 WL 395125; State v. May, No. 98,708, unpublished opinion filed January 30, 2009, 2009 WL 242412; State v. Fields, No. 97,292, unpublished opinion filed February 1, 2008, 2008 WL 307680; State v. Clark, No. 95,163, unpublished opinion filed April 27, 2007, 2007 WL 1239217; State v. Simmons, No. 95,096, unpublished opinion filed February 2, 2007, 2007 WL 316788 .
Similarly, Maughan has been counsel of record in approximately 30 appeals before panels of this court in which he has unsuccessfully asserted nearly verbatim arguments regarding K.S.A. 22-3504. Further, as in this case, Maughan’s briefs in those appeals failed to recognize the overwhelming precedent rejecting his argument. See State v. Childers, No. 98,967, unpublished opinion filed October 31, 2008, rev. denied 289 Kan. 1281 (2009), 2008 WL 4849369; State v. Jackson, No. 98,623, unpublished opinion filed August 22, 2008, rev. denied 287 Kan. 767 (2009), 2008 WL 3916008; State v. Walker, No. 97,322, unpublished opinion filed January 11, 2008, 2008 WL 142345; State v. Jones, Nos. 96,977, 97,289, 97,290, unpublished opinion filed August 24, 2007, rev. denied 285 Kan. 1176 (2007), 2007 WL 2410118; State v. Davis, No. 96,688, unpublished opinion filed July 20, 2007, 2007 WL 2080461; State v. Hooks, No. 96,303, unpublished opinion filed June 29, 2007, rev. denied 285 Kan. 1176 (2007), 2007 WL 1880965; State v. Clark, No. 95,163, unpublished opinion filed April 27, 2007, 2007 WL 1239217; State v. Johnson, No. 95,582, unpublished opinion filed March 9, 2007, 2007 WL 737928; State v. Strope, No. 95,325, unpublished opinion filed March 2, 2007, rev. denied 284 Kan. 950 (2007), 2007 WL 656362; State v. Tauer, No. 95,152, unpublished opinion filed February 16, 2007, rev. denied 284 Kan. 951 (2007), 2007 WL 518895; State v. Burnett, No. 95,322, unpublished opinion filed February 16, 2007, rev. denied 284 Kan. 947 (2007), 2007 WL 518915; State v. Glaze, No. 95,323, unpublished opinion filed February 16, 2007, rev. denied 284 Kan. 948 (2007), 2007 WL 518979; State v. Moss, No. 95,094, unpublished opinion filed February 9, 2007, rev. denied 284 Kan. 949 (2007), 2007 WL 438733; State v. Toney, No. 94,987, unpublished opinion filed December 22, 2006, rev. denied 283 Kan. 933 (2007), 2006 WL 3773699; State v. Anderson, No. 95,440, unpublished opinion filed December 22, 2006, rev. denied 283 Kan. 932 (2007), 2006 WL 3774547; State v. Jones, No. 94,137, unpublished opinion filed November 9, 2006, rev. denied 283 Kan. 932 (2007), 2006 WL 3257446; State v. Pondexter, No. 95,119, unpublished opinion filed November 3, 2006, rev. denied 283 Kan. 933 (2007), 2006 WL 3231381; State v. Toney, No. 94,957, unpublished opinion filed October 13, 2006, rev. denied 283 Kan. 933 (2007), 2006 WL 2937190; State v. Spear, No. 95,324, unpublished opinion filed October 13, rev. denied 283 Kan. 933 (2007), 2006 WL 2937407; State v. Lockett, No. 94,954, unpublished opinion filed October 6, 2006, rev. denied 283 Kan. 932 (2007), 2006 WL 2864755; State v. Peterson, No. 93,777, unpublished opinion filed April 14, 2006, rev. denied 282 Kan. 795 (2006), 2006 WL 995368; State v. Berry-El, No. 94,264, unpublished opinion filed March 10, 2006, rev. denied 282 Kan. 792 (2006), 2006 WL 619322; State v. Johnson, No. 92,587, unpublished opinion filed December 23, 2005, rev. denied 281 Kan. 1380 (2006), 2005 WL 3527003; State v. Hill, No. 92,691, unpublished opinion filed October 28, 2005, rev. denied 281 Kan. 1380 (2006), 2005 WL 2840177; State v. Marshall, Nos. 91,910, 91,911, 91,912, 91,988, unpublished opinion filed July 1, 2005, rev. denied 281 Kan. 1380 (2006), 2005 WL 1561042; State v. Chestra, No. 92,351, unpublished opinion filed July 1, 2005, rev. denied 280 Kan.985 (2005), 2005 WL 1561051; State v. Strope, No. 91,365, unpublished opinion filed January 14, 2005, rev. denied 279 Kan. 1010 (2005), 2005 WL 81490; State v. Mitchell, No. 89,471, unpublished opinion filed January 23, 2004, 2004 WL 117304.
Because Dawson’s filing of a K.S.A. 22-3504 motion did not automatically entitle him to a hearing, presence at a hearing, or appointment of counsel, and because Dawson does not argue the merits of his underlying motion, we affirm the district court’s summary denial of Dawson’s K.S.A 22-3504 motion.
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Leben, J.:
Bruce Wilson appeals two orders the district court made in Bruce’s divorce from his wife, Shannon. First, he argues that the district court’s child-support order went beyond the court’s authority because $3,500 per month goes into a trust account that could be used by the parties’ child after he reaches majority. We agree: Kansas law doesn’t require a parent to provide support to a child after majority, and the district court’s order effectively does so. Second, Bruce argues that the district court wrongly sanctioned him for his misleading and evasive responses during trial and in his required financial affidavit. We disagree: the district court has the inherent power to sanction a divorce litigant who provides misleading information in financial information that the law required to be disclosed as part of that divorce action.
I. The District Court’s Child-Support Order Is Beyond the Court’s Authority Because It Provides Post-Majority Support.
The district court ordered Bruce to pay $6,000 per month in child support for the benefit of the parties’ only child, Finley, who was almost 5 years old when the case was tried. The district court ordered that Shannon place $3,500 of that amount each month into a trust fund for Finley’s special needs or future education. The written journal entry setting out the judge’s orders provided that Shannon place the $3,500 “into a trust account for the benefit of the Child or, if agreed by both parties, in the Child’s existing 529 Educational Account.” The journal entry also provided that child support would cease when Finley turned 18.
We review the district court’s award of child support for abuse of discretion. In re Marriage of Winsky, 42 Kan. App. 2d 69, Syl. ¶ 4, 208 P.3d 355 (2009). The district court necessarily abuses its discretion when it makes a legal error, so we also review its orders for such errors. See In re Marriage of Kunzle, 2007 WL 3146683, at *4 (Kan. App. 2007) (unpublished opinion). When interpreting the applicable statutes and child-support guidelines, we do so independently, without any required deference to the district court. In re Marriage of Brown, 279 Kan. 282, 285, 109 P.3d 1212 (2005); Winsky, 42 Kan. App. 2d 69, Syl. ¶ 4.
Bruce contends that the district court exceeded its authority by requiring him to pay child support to be used after Finley reaches majority. The Kansas divorce statutes authorize an award of child support until the child reaches age 18 or, if still in high school, until June 30 of the school year in which the child turns 18. K.S.A. 60-1610(a)(l). No greater duty exists under the common law: a parent’s common-law duty to support a child ends at majority. See Arche v. United States of America, 247 Kan. 276, 291, 798 P.2d 477 (1990); In re Marriage of Risley, 41 Kan. App. 2d 294, 299-300, 201 P.3d 770 (2009). Thus, absent a parent’s written agreement, the parent cannot be ordered to provide support after the child reaches 18 and graduates from high school (though support may continue through June 30). See K.S.A. 60-1610(a)(l); Elrod & Buchele, 2 Kansas Family Law § 14.41(1) (1999).
Shannon suggests that the court’s order was proper because the funds could be used before Finley reaches 18. That would indeed have been within the district court’s authority. See Ferguson v. Ferguson, 6 Kan. App. 2d 287, 291, 628 P.2d 234 (1981). But that does not seem likely here given the lack of evidence of special educational needs at present, the amount of money being placed into trust, and most important the apparent intention of the district court. The district judge’s oral ruling showed an intention that Bruce’s $3,500-per-month contribution to the trust account could be used for educational expenses after Finley reaches 18: the court said that the $3,500 per month would be placed “into a trust for— a spend-thrift type trust for special needs or future education— special education, or education past majority.” (Emphasis added.)
While the written journal entry doesn’t specifically mention use of the trust fund for education past majority, it doesn’t say anything that conflicts with that intention either. The district court’s child-support award thus appears to have been based upon an intention that some of the money could be used for education after Finley turns 18, which is not allowed by court order (except for finishing high school). Thus, the district court’s child-support award is based upon an error of law — that the district court could require that Bruce send money to Shannon to be put into an account to be used for education past majority.
Bruce asks us simply to strike the $3,500 amount, leaving Shannon with a child-support award of $2,500 per month. We cannot do so because we do not know that the district court considered $2,500 per month an adequate overall child-support award. The district court has authority to order some portion of the child support be used for a specific purpose, as took place in Ferguson, so long as it’s not for use past majority. The district court did not state that all of the trust funds would be used after Finley turned 18; the court merely indicated an intention that some of the funds might be used that way.
We must respect the district court’s role in establishing the proper amount of child support. That decision rests within the discretion of the district court, and an appellate court, which has not heard directly from any of the witnesses, should not make that discretionary call. We therefore reverse the district court’s award of child support and remand the case for the district court to determine, from the date support was initially awarded, the proper amount.
II. The District Court’s $30,000 Sanction Against Bruce Was Within the Court’s Authority in Light of Bruce’s Attempt to Mislead the Court.
The district court sanctioned Bruce $30,000 — to be paid to Shannon — based upon Bruce’s attempt to mislead the court about his income and assets. Bruce contends that he had no duty to update the court about a large increase in his income; that the court’s sanction was excessive under constitutional double-jeopardy grounds since the court had already separately awarded one asset to Shannon based upon Bruce’s failure to disclose information about it; and that any fault for fading to disclose the information was that of his attorney, not Bruce.
We review the district court’s sanction orders for abuse of discretion. Stone v. City of Kiowa, 263 Kan. 502, 518, 950 P.2d 1305 (1997). Once again, since the district court necessarily abuses its discretion when it makes a legal error, we also review its orders for such errors. Kunzle, 2007 WL 3146683, at *4. To the extent that the district court’s sanction order is based upon its factual findings, we must accept those findings if substantial evidence supports them. See In re Marriage of Wherrell, 274 Kan. 984, 987, 58 P.3d 734 (2002). We first look then to determine whether the facts support the district court’s conclusion that Bruce intentionally misled the court about his income and one specific asset.
If the district court’s order is based on a valid finding that Bruce intentionally misled the court, we would then turn to the legal issues that Bruce has raised. As to legal matters, we must first determine whether the district court had the authority to sanction Bruce for the conduct at issue. If so, we must determine whether the sanction violated double-jeopardy rules, as Bruce claims. Our last review, if the district court’s sanction order has passed those first two, will be for reasonableness: a district court abuses its discretion when no reasonable person would agree with its ruling. Stone, 263 Kan. at 518.
A. The District Court’s Factual Finding that Bruce Intentionally Misled the Court Is Amply Supported in the Record.
Based on Bruce’s testimony throughout the trial, the district court found that Bruce tried to mislead the court about his current income and about the existence of one asset, the repayment of part of a loan Bruce had made to a friend. Since the entirety of his testimony is critical to our review, we have included all of the relevant portions as an appendix to this opinion. After reviewing Bruce’s testimony, the district court concluded that Bruce and his attorney had “orchestrated such deception” and that Bruce’s deception was thus intentional. Based on these findings, the district court sanctioned Bruce $30,000, to be paid to Shannon, “as a matter of equity and as a form of sanctions.”
The trial began — and all testimony was presented — on January 8, 2008. Bruce had filed his first domestic relations affidavit in September 2007; it listed his gross income from self-employment as $294,448 per year. Less than a month before trial, in a pretrial questionnaire, Bruce continued to say that his average gross income from 2004 through 2006 had been $294,448. At trial, Bruce presented an amended domestic relations affidavit dated January 7, 2008; it listed his gross income as $472,500 but had an asterisk leading to additional information: “All figures are based on 2006 income tax return.”
After admission of the amended domestic relations affidavit, Bruce’s attorney asked him some questions about his income. Bruce emphasized that his income could fluctuate from year to year and that he’d had some years in which he had no income. After explaining years in which he made little or no money, his attorney asked whether 2007 was an unusual year. Bruce, a commodities trader, said it was unusual because wheat had doubled in value. His attorney then moved on — without asking how much he made in 2007 — to ask whether Bruce anticipated that conditions would stay the same in 2008. Bruce said he didn’t know, then said his income for 2008 was down:
“Q: Do you anticipate that [the situation] would continue to be the case in 2008 as it was in 2007?
“A: I don’t know.
“Q: Thus far this year, have you — is your income up or down?
“A: Down.
“Q: And have there been in fact significant losses?
“A: Yeah.”
In sum, before cross-examination, Bruce had provided an updated domestic relations affidavit, dated January 7,2008, that listed his income as $472,500 based solely on his 2006 income tax return. On direct examination, Bruce had said that his income varied from year to year, that it had been up in 2007, but that it was down thus far for 2008. Bruce never provided an estimate of his 2007 income, and only 5 trading days had passed in 2008 when Bruce testified that his 2008 income was “down.”
On cross-examination, Shannon’s attorney began with the straightforward question of what Bruce earned in 2007. Bruce replied that he hadn’t done his “final books yet” but that he “definitely made as much in ‘07 as [he] made in ‘06.” In response to additional questions, Bruce said that he didn’t know what his taxable income would be for 2007 because he didn’t know what his lawful deductions would be. He then admitted in response to further questions that he had “an idea” of what his 2007 gross income was: $2 million. In a follow-up hearing held in February 2008, Bruce admitted that he had earned $2,169,134 in 2007.
Bruce’s testimony about the loan and its repayment also began with reference to a document Bruce had provided; that document listed the parties’ assets and liabilities. Bruce’s attorney asked him whether the document was accurate, and Bruce said that it wasn’t — the document omitted a $37,500 personal loan Bruce had made to a friend in Chicago to start a business. In response to questions from his attorney, Bruce requested that whatever might be repaid on that loan be assigned to him — though he didn’t expect to receive anything:
“Q: It is your request that [the loan] would be set aside to you, is that correct, should you receive any repayments?
“A: Yes.
“Q: And is it your expectation that you would receive that — these monies back?
“A: No.”
On cross-examination, though, Bruce admitted that he’d already received $19,000 in two repayments on the loan. Bruce had received one in the mail on January 1 or 2, and he’d received the other the day before trial. The court later determined that Bruce had received $19,820 in loan repayments.
It’s readily apparent that Bruce tried to deceive the court about the $19,820 he’d already received on the loan to his Chicago friend. Bruce hadn’t included the loan on his list of assets, and he corrected that list in testimony that his attorney elicited only to include the loan, not the repayments. Moreover, he said that he had no expectation that he would receive any repayment even though he’d been repaid more than half of the principal amount of the loan during the 7 days before he testified. Bruce’s counterargument that he didn’t deceive anyone because he admitted to the repayments on cross-examination does not change the analysis — the information Bruce provided to the court about the loan on direct examination was false: though he denied expectation of repayment, he’d already been repaid $19,820. His testimony was also misleading: he asked that any repayments that might be made be assigned to him while indicating that the likely value of that assignment was negligible. Given the timing of the repayments and Bruce’s admission about them on cross-examination, the district court fairly concluded that Bruce’s misrepresentations about the loan were intentional.
Bruce makes a more plausible argument that he didn’t deceive anyone regarding his income. The footnote to his domestic relations affidavit clearly said that the income figure he reported there was based solely on his 2006 tax return. As Bruce notes, the district court, citing that footnote, said in its initial oral ruling that the affidavit wasn’t false and that “there was no false testimony.” But the court also said orally that Bruce “was trying to hide [his 2007 income] hoping that he would not have to disclose the information.” The court further concluded in its final written order — entered after the court had ordered a transcript of Bruce’s testimony — that Bruce “was intentionally misleading” about his income and that he had “attempted to mislead the court” about it. The court’s written order found that Bruce had failed to disclose his 2007 income and that in doing so Bruce had intentionally attempted to mislead the court.
In other contexts, the law recognizes that a person may mislead another by omission. Since 1934, federal securities laws have made it a crime, in connection with the sale of a security, to omit any material fact that’s necessary to make the statements that are made not misleading. See 15 U.S.C. § 78j (2006); 17 C.F.R. § 240.10b-5 (2009). Kansas has similar provisions providing criminal penalties for material omissions in the sale of securities and in transactions by loan brokers. See State v. Bryant, 40 Kan. App. 2d 308, 312-13, 191 P.3d 350 (2008), rev. denied 288 Kan. 833 (2009); State v. Fritz, 261 Kan. 294, 304, 933 P.2d 126 (1997).
The district court found that Bruce had misled the court in just this way. Bruce voluntarily disclosed his $472,500 in income for 2006, but his failure to disclose his $2.17 million income for 2007 made Bruce’s disclosures misleading when the issue before the district court was the determination of Bruce’s current earnings and future earning potential. See K.S.A. 60-1610(b)(l). We agree with the district court that Bruce misled the court about his in come, and the district court’s conclusion that Bruce did so intentionally was a fair one based upon the evidence.
We recognize that a claim of civil fraud by silence requires more than mere omission of a material fact. That civil claim also requires proof that the other party couldn’t have discovered the omitted fact with reasonable diligence, among other elements. See Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 260, 978 P.2d 922 (1999). Here, Shannon discovered Bruce’s 2007 income by having her attorney ask him questions on cross-examination, so the information was obtained through reasonable diligence. But the district court did not find that Bruce had committed civil fraud by silence; it found that Bruce had intentionally misled the court, a conclusion fairly made based on the evidence. We consider in the next section whether that conclusion is sufficient as a basis for sanctions.
B. The District Court Has Authority to Sanction a Party in a Divorce Action Who Intentionally Misleads the Court Regarding Income or Assets.
The district court did not cite any specific statute or court rule as a basis for its sanction against Bruce. But no specific statute or court rule need be violated for the district court to enter sanctions against a party: the court has the inherent authority to enter sanctions reasonably necessary for the administration of justice so long as those sanctions aren’t inconsistent with relevant statutes. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117 (1981); Larson Operating Co. v. Petroleum, Inc., 32 Kan. App. 2d 460, 471-72, 84 P.3d 626 (2004).
Sanctions have been upheld in other cases for inaccurate or evasive discovery responses. In Larson Operating Co., our court upheld sanctions against a party for its initial discovery response, which the district court found could have been more accurate “with minimal diligence.” 32 Kan. App. 2d at 464, 472. More recently, in Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 420-23, 197 P.3d 370 (2008), our Supreme Court sanctioned an attorney in part for evasive and incomplete answers to written questions, along with other violations.
The context in which Bruce’s attempt to mislead the court occurred — a divorce case — is worth noting. About 14,000 divorce cases are filed each year in Kansas, and the judges who handle these cases have a duty to divide property and, when appropriate, award maintenance in a just and equitable manner. See K.S.A. 60-1610(b)(1), (2); Nicholas v. Nicholas, 277 Kan. 171, 178, 83 P.3d 214 (2004). To accomplish that, Kansas court rules require that each party in a divorce case file a domestic relations affidavit. Supreme Court Rule 164(a) (2009 Kan. Ct. R. Annot. 238). The rules provide a specific form for the affidavit, which must include information about income and assets, with the information sworn by each party to be “true and complete.” See Rule 164(a) (requiring affidavit be in form found in appendix to Kansas Child Support Guidelines); Kansas Child Support Guidelines, Appendix III (2009 Kan. Ct. R. Annot. 152-57). Our court has previously emphasized the importance of this affidavit: without it or comparable information, the district court may not approve a divorce setdement agreement because the court would lack the information needed to determine whether that settlement was just and equitable. In re Marriage of Kirk, 24 Kan. App. 2d 31, 33-34, 941 P.2d 385, rev. denied 262 Kan. 961 (1997).
So Bruce was required to disclose his income to the court, and that information was critical to the court’s ability to do its job of providing a fair resolution of the issues before it. When a party is required to disclose information to the court, that party cannot omit material facts that are necessary to avoid misleading the court about what has otherwise been disclosed by that party. The district court had inherent authority to enter sanctions in this circumstance.
We reject Bruce’s argument that because this is litigation he may present a wholly one-sided set of facts and decline to provide other information until someone asks for it. Court rules required that Bruce disclose income and assets, and when the rules require disclosure, an intentionally misleading disclosure does not suffice.
C. The District Court’s Sanction in this Case Did Not Violate Double-Jeopardy Rules.
Bruce objects that the district court sanctioned him twice for the same conduct. He asserts that this violates the constitutional prohibition against double jeopardy.
The district court did arguably enter a sanction in addition to the $30,000 award: the court awarded Shannon the full $19,820 that had been repaid against the loan. Had that loan repayment been treated like most of the parties’ other property, the amount would have been equally divided between them. The court did equally divide any future repayments that might be received against that loan.
Under Bruce’s argument, the district court’s $30,000 sanction was based both on the failure to disclose the loan repayments and the attempt to deceive the court about Bruce’s income. Thus, since the court already sanctioned Bruce by disproportionately awarding Bruce’s share of the $19,820 to Shannon, the court entered two sanctions against Bruce for the same conduct.
But in order for double-jeopardy protection to apply, the punishments must be criminal. Hudson v. United States, 522 U.S. 93, 98-99, 139 L. Ed. 2d 450, 118 S. Ct. 488 (1997); see State v. Harris, 284 Kan. 560, 571, 162 P.3d 28 (2007) (double-jeopardy provision in Kansas Constitution provides same protection as provided under United States Constitution). In determining whether a sanction is criminal in nature, courts consider whether it involves some affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of knowing conduct, whether it promotes the traditional punishment objectives of retribution and deterrence, whether the behavior is itself criminal, whether there’s an alternative noncriminal purpose to the sanction, and whether it appears excessive in relation to that alternative purpose. 522 U.S. at 99-100.
Under these factors, Bruce has not demonstrated that the sanction against him rises to the level of criminal punishment. Although a court arguably imposes a monetary sanction to punish a party for his actions and to deter him from similar future conduct, the court didn’t restrain Bruce’s freedom of movement. Under Kansas law, bad faith is not required before a court may sanction a party for litigation misconduct. Larson Operating Co., 32 Kan. App. 2d 460, Syl. ¶ 9. Moreover, the district court itself noted an alternative purpose for the sanction — making sure that the case was resolved in an equitable manner and reimbursing Shannon for some of her attorney’s fees.
We note that the district court decided to have the parties present some additional information, based on rulings made at the end of the initial day of trial, before the court made a final decision. Thus, a second hearing was held about a month later. At that hearing, Bruce revealed his actual 2007 income. Had that income been revealed in Bruce’s amended domestic relations affidavit, perhaps the issues could have been fully resolved on a single trial date, and Shannon would not have incurred attorney’s fees for a second hearing.
We say perhaps because we do not know the full argument Shannon made in support of a request for attorney’s fees and sanctions; her written motion, listed in the docket entries as a motion for attorney’s fees and sanctions, is not included in the appellate record. We do know that the district court noted in its oral ruling that Shannon could “use part of that [$30,000] to pay her attorney’s fees.”
An appellant has a duty to provide a record sufficient to establish the claimed error; without a sufficient record, the claim fails. City of Mission Hills v. Sexton, 284 Kan. 414, Syl. ¶ 16, 160 P.3d 812 (2007). Based on the appellate record, Bruce has not demonstrated that the sanction was in the nature of a criminal penalty. See Mine Workers v. Bagwell, 512 U.S. 821, 833, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1994) (judicial sanctions such as striking pleadings, assessing costs, and even entering default judgment to penalize a party’s failure to comply with conduct rules in litigation have “never been considered criminal”). Accordingly, we find no double-jeopardy violation.
D. The District Court Did Not Abuse Its Discretion in Its Sanction Order.
We must take two legal standards into account in considering whether the district court abused its discretion in entering the $30,000 sanction award against Bruce. First, a district court abuses its discretion only when no reasonable person would agree with the district court’s decision. Larson Operating Co., 32 Kan. App. 2d at 471. Second, when a court exercises its inherent power to sanction a party, the court should act with restraint and only after proper notice and an opportunity for a hearing. 32 Kan. App. 2d at 472. Thus, we consider whether the district court abused its discretion mindful of the restrained approach that a district court should take when considering sanctions.
Notice and a hearing were provided. Shannon’s motion for sanctions gave Bruce notice of the issue, and the court provided a hearing on the motion. Bruce’s attorney indicated at the start of that hearing that Bruce wanted all issues heard and resolved that day, even though he hadn’t filed a written response to the sanctions motion.
As to the reasonableness of the $30,000 sanction, Bruce had income in excess of $2 million in 2007; though that was aiypical, he had earnings above $200,000 in all but 1 year from 2002 through 2007. The parties had overall assets of about $1.7 million, which were generally divided equally between them. In the context of Bruce’s income and assets, the sanction was within reasonable bounds for the conduct. The district court did not abuse its discretion.
Bruce also argues that it was an abuse of discretion to sanction him because his attorney was responsible for the sanctioned conduct. But that’s not a defense here. Whether the attorney knew that the information was false or misleading is not tire issue before us on appeal. Under Kansas law, a party to litigation may be sanctioned for things like discoveiy abuse even without bad faith. Larson Operating Co., 32 Kan. App. 2d 460, Syl. ¶ 9. Here, though, the district court found that Bruce was intentionally deceptive, and the evidence supported that conclusion. Bruce answered falsely regarding the loan-repayment issue, and he attempted to dodge multiple questions before finally admitting that he had “an idea” of what his 2007 income had been. This is not a case like Canaan v. Bartee, 272 Kan. 720, 737-38, 35 P.3d 841 (2001), which Bruce cites, where the most severe sanction available — default judgment — was set aside because the discovery failure was the sole fault of the attorney and the clients had no apparent knowledge of the attorney s actions.
The judgment of the district court is reversed with respect to its order of child support and is affirmed in all other respects. The case is remanded to the district court to enter a child-support award in a manner consistent with this opinion.
APPENDIX
Direct Examination
Q. Mr. Wilson, I’m going to show you what has previously been marked and entered into evidence as Exhibit 50. Is this your statement of assets and liabilities?
A. Yes.
Q. And does that document accurately and completely reflect all of the assets as of the time of the filing of this action?
A. No.
Q. Is there one item that was failed to be included in that document?
A. Yes.
Q. And can you tell the Court what that is?
A. It was a personal loan that I made to a friend in Chicago to start a business.
Q. And approximately when was that money loaned to your friend?
A. January 2006.
Q. Was your wife aware that the loan had been made?
A. I believe so.
Q. And have you — has your friend’s business been successful?
A. No.
Q. And in fact, has he lost the majority of those monies?
A. Yes.
Q. You — was it — tell the Court why that asset was not reflected on this statement, or that liability.
A. When Shannon and I were talking about splitting up, we had — I had asked if that would be something that I could have, and under the assumption that it just be you know, just something that extra, you know, for me, I guess, and that I would — that I originally I believe on one of the DRA’s I submitted very early in the process, it was on there as an asset. The last one when we met in [Shannon’s attorney’s] office, we had not — we just did not talk about it. So, it was somewhat of an oversight then.
Q. It is your request that that would be set aside to you, is that correct, should you receive any repayments?
A. Yes.
Q. That was simply—
THE COURT: How much was it?
Q. ... How much was the original loan?
A. 37,500.
Q. And is it your expectation that you would receive that — those monies back?
A. No.
Q. And again, that was an item that had been discussed earlier. We just failed to reflect it on this most recent statement; is that correct?
A. Correct. Correct.
Q. Simply an oversight. Let’s talk a little bit about your employment. What is your fine of work?
A. I’m a commodities trader.
Q. Going to show you what’s been marked as Exhibit 51, and is this your domestic relations affidavit which corresponds to the assets and liabilities which were reflected in Exhibit 50 as well as your income and your expenses?
A. Yes.
Q. Now, in your work as a commodities broker, has there been a great difference in your income from year to year?
A. Yes.
. Q. Can you explain to the Court why your income would change from year to year?
A. You know, the biggest reasons are having, you know, the years that I’ve made a good living, I’ve had the right positions on and were able to, you know, buy and sell wheat and wheat options at a profit, and the years that I’ve not made money or less money, I’ve had bad positions on, and not been able to maximize gains and not been able to cut losses fast enough.
Q. Now, I’m going to show you what’s been marked as Exhibit 54, and can you identify this document for the Court?
A. It’s a social security statement that I receive on a yearly basis.
Q. And does it reflect your Medicare wages from 1983 through and including 2006?
A. Yes.
Q. If you would turn your attention to the second page of this document. Have there been years recently where you earned no income whatsoever as a commodities broker?
A. Yes.
Q. And what years?
A. 1998 to 2001.
Q. Now, the last then for two years you made a pretty significant income; is that correct?
A. Correct.
Q. Then what happened in 2004?
A. I lost a significant amount of money in a two-week period, and spent the rest of the year trying to recoup my losses, and this adds up to that number.
Q. Is that fairly common in your area of your field?
A. It can be.
Q. Now, was 2007 an unusual year?
A. Yes.
Q. In what way?
A. Price of wheat more than doubled in value.
Q. And why was that?
A. Well, a lot of reasons. One reason would be the advent, I guess, of a lot of exchange commodity index funds which are trying to hedge against inflation. So, they end up having a formula that says we think that these eight commodities bought in the correct percentages will make us a return of whatever, X percent, you know, versus, you know, what would happen. Maybe the stock market broke down. So it was a way for people basically to investment in big commodity pools. They throw around enormous size orders in all the — all the commodity pits that they trade in gas, oil, Kansas City wheat, which you know, dramatically moves the market. It also means that other funds that are trading on a trend-following basis get signals to either buy or sell wheat futures at certain times. So you’ve got a big influx of capital, and big-time capital, not a million dollars, 500 million dollars; billions of dollars. On top of that you had a situation in last couple of years where the crops have actually — the crop size or harvest has actually been less. So you’ve got kind of a little bit of a perfect storm. In this case where you have a LOW supply, you’ve got fund money pushing markets higher, and because of the lower supply, you’re getting increased demands, and the prices have, you know, obviously gone up, and gone up quite a bit.
Q. Do you anticipate that that would continue to be the case in 2008 as it was in 2007?
A. I don’t know.
Q. Thus far this year, have you — is your income up or down?
A. Down.
Q. And have there been in fact significant losses?
A. Yeah.
Q. What—
THE COURT: Are you talking about 2008?
[Bruce’s attorney]: I am.
THE COURT: Which is, I don’t know; how many trading days have been in 2008?
THE WITNESS: Five.
THE COURT: Go ahead. I want[ed] to make sure that’s what we’re talking about.
Cross-Examination
Q. The loan that was provided to your friend for $37,500, you haven’t received any payment back on that, have you?
A. I have.
Q. How much have you received?
A. $19,000.
Q. And when did you receive that?
A. I received — I received one check yesterday, and I received another check like the — when I got back in town from vacation after January 1st or 2nd when I picked up my mail.
Q. I thought you just indicated this was a debt you didn’t anticipate getting paid back on?
A. I didn’t anticipate getting paid back on it.
Q. As we sit here today, you got $19,000 in your pocket toward this debt?
A. Yes.
Q. And your position is you want it all set aside for you?
A. I would ask the Court for that, yes.
Q. You don’t think that should rightfully be divided with Mrs. Wilson?
A. I have no objections if it is divided with Mrs. Wilson. The 19 — the 19,000 and change.
Q. Is that — other than this $19,000, [are] there any other accounts or monies being held by somebody for you?
A. No.
Q. Everything that you’re aware of that you own that’s an asset of yours is contained on that spreadsheet, and then this $19,000, correct?
A. In addition to the 19 — yes.
Q. I just don’t want to be surprised there’s something else out there.
A. There’s not.
Q. In ‘07, what I believe I heard was it was a banner year?
A. For some people.
Q. Okay. How about you? What did you earn in ‘07? We’ve been basing this on ‘06 tax returns. I wonder what you earned in ‘07?
A. I haven’t done my final books yet. I would say I definitely made as much in ‘07 as I made in ‘06.
Q. Now, we agreed that we would get this divorce before the end of the year to help you on your tax situation. Would you agree with that?
A. Yeah.
Q. Okay. Do you have some idea what the tax savings were?
A. No.
Q. Okay. Did your accountant give you some general idea of how much you made this year?
A. No.
Q. Would it be — I’m assuming you made, say, over $500,000 in ‘07. You would know that, compared to ‘06?
A. Yes.
Q. And you have some idea?
A. I have some idea.
Q. Give me that some idea. I want to make sure we’re being fair here.
A. Well, I — I mean, are you asking for my taxable income?
Q. Yeah.
A. I have no idea, because I don’t know what I can write off against.
Q. Do you know what your gross — I’m sorry. I didn’t mean to interrupt. Do you know what your gross is?
A. I have an idea.
Q. What’s that?
A. About two million dollars.
Q. Okay let’s go look at your ‘06, if I could get that real quick, ‘06 tax return. Thank you. Maybe you can help me, but if I look at Exhibit Five, maybe I’m wrong; was your gross in ‘06 $472,498?
A. Yes.
Q. And so, now it’s at two million in ‘07.
A. Yeah.
Q. When do you anticipate having your tax returns done?
A. I don’t know. I mean, obviously I’ll have to file something by April 15th, but I—
Q. Your estimated?
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Knudson, J.:
Plaintiffs Samantha McGinnes, individually, as next friend of Daniel McGinnes, Seth McGinnes, and Jeremy McGinnes, and as administrator for the Estate of Darryl McGinnes (McGinnes), deceased, filed this medical malpractice action against defendant Estephan N. Zayat, M.D. (Zayat), to recover monetary damages for personal injury and wrongful death. After a lengthy trial, die jury returned a verdict in favor of the plaintiffs that totaled $2,000,000. The plaintiffs appeal the application of statutory caps on damages under K.S.A. 60-1903 and 60-19a02 that reduced the award to $1,000,000. In his cross-appeal, Zayat claims two evidentiary rulings require a new trial and that the trial court erred in awarding prejudgment interest to the plaintiffs.
We hold the defendant is not entitled to a new trial; statutory caps on damages do not constitute an avoidance or affirmative defense under K.S.A. 60-208(c); the statutory caps are constitutional; and the trial court did abuse its discretion in awarding prejudgment interest to the plaintiffs. Therefore, we affirm in part and reverse in part on the issues presented.
In early 2002, McGinnes sought treatment at Wesley Medical Center in Wichita, Kansas, after suffering from intermittent but worsening gastrointestinal discomfort for several months. At the time of admission, McGinnes was 38 years of age, 6' 5" tall, and weighed more than 400 pounds.
Zayat is board certified in gastroenterology and in internal medicine. He decided an endoscopic retrograde cholangiopancreatography (ERCP) was necessary because McGinnes’ medical history, other test results, and the pain McGinnes was experiencing caused Zayat to suspect there might be gallstones in McGinnes’ bile duct.
An ERCP is a procedure in which a gastroenterologist guides an endoscope through a patient’s digestive tract into the pancreatic and common bile ducts to determine if any abnormalities are present and to remove any gallstones that may be present. It is a complicated procedure with higher risks for morbidity and mortality than less invasive gastrointestinal procedures available to detect gallstones or other abnormalities.
McGinnes consented to the ERCP, and Zayat performed the procedure on February 21,2002. However, the result was that both the pancreatic duct and the common bile duct appeared normal.
Following the procedure, McGinnes developed acute pancreatitis, a common complication of an ERCP, and died a few days later on February 25, 2002. The cause of death was cardiac arrhythmia, secondary to a pulmonary embolism, caused by the ERCP-induced pancreatitis.
On February 13,2004, this litigation was filed with the plaintiffs alleging various acts of medical malpractice and seeking damages for wrongful death and personal injury. Prior to trial, Wesley Medical Center was granted summary judgment and was not further involved in this action. On July 27,2007, the jury returned a verdict in favor of the plaintiffs for a total of $2,000,000. The wrongful death damages were itemized as $250,000 for noneconomic loss to date; $250,000 for future noneconomic loss; $250,000 for economic loss to date; and $250,000 for future economic loss. The personal injury survival damages were $1,000,000 for conscious pain and suffering and accompanying mental anguish.
After trial, the defendant Zayat moved to apply the statutory caps on damages under K.S.A. 60-1903 and K.S.A. 60-19a02 to the jury verdict. The plaintiffs objected, contending statutory caps constituted an avoidance or affirmative defense that had to be pled under K.S.A. 60-208(c) or at least raised as a claim for relief under Supreme Court Rule 140(g)(2) (2009 Kan. Ct. R. Annot. 223). Alternatively, the plaintiffs asserted the statutory caps on damages are unconstitutional. Following a hearing on November 7, 2007, the trial court applied the caps and entered judgment for the plaintiffs in the amount of $1,000,000. The district court also awarded pre judgment interest of 10 percent per annum pursuant to K.S.A. 16-201 from the date of verdict to the date judgment was entered.
Additional facts and circumstances will be considered as necessary under the issues presented. Because granting a new trial would be dispositive of all issues on appeal, we will first address the evidentiary rulings raised by the defendant Zayat in his cross-appeal.
The defendant seeks review of two evidentiary rulings by the trial court: (1) Exclusion of testimony from Zayat that one of the reasons he did not consider a less evasive procedure than the ERCP was because patient McGinnes would not fit into the cylinder of the magnetic resonance imaging apparatus; and (2) exclusion of testimony from Dr. Glen Lehman to explain and demonstrate that by using one of the ERCP x-rays, the dilation of the patient’s bile duct could be actually determined by measurement.
Limiting Dr. Zayat’s Testimony under an Order In Limine
An appellate court reviews a trial court’s decision on a motion in limine under the abuse of discretion standard. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997). To fully appreciate the trial court’s order in limine, we must consider certain aspects of discovery and the final pretrial conference before trial.
Plaintiffs’ negligence claims included allegations that Zayat failed to adequately inform McGinnes of an appropriate and safer diagnostic alternative to ERCP called magnetic resonance cholangiopancreatography (MRCP) and that the defendant performed the ERCP without first obtaining an MRCP.
These allegations were supported by the plaintiffs’ medical experts, including Dr. Peter Cotton, a board certified gastroenterologist, whose anticipated testimony at trial was disclosed in pretrial discovery. According to Dr. Cotton, MRCP is a safe, noninvasive alternative to ERCP that involves using a magnetic resonance imaging (MRI) scan to give images of the common bile duct and pancreatic duct to confirm or rule out the presence of a gallstone. In Cotton’s opinion, Zayat failed to adequately inform McGinnes of MRCP as an appropriate alternative to ERCP and performed the ERCP without first obtaining an MRCP.
Notwithstanding the plaintiffs’ allegations of failure to inform McGinnes of the alternate test and conduct a MRCP, the defendant did not at any time prior to trial opine the patient was too large to fit into the MRI tube. This assertion was first mentioned during voir dire examination by the defendant’s attorney.
A final pretrial conference was conducted under Supreme Court Rule 140. Subparagraphs (g)(1) and (g)(2) of Rule 140 state:
“(1) Plaintiff will state concisely his factual contentions and the theoiy of his action.
“(2) Defendant will state concisely his factual contentions and the theories of his defenses and claims for relief.” 2009 Kan. Ct. R. Annot. 224.
At the pretrial conference, the plaintiffs’ stated theory of recovery was that Zayat departed from the required standard of medical care for McGinnes. Plaintiffs’ factual contentions included: Zayat failed to adequately inform McGinnes that a MRCP was an appropriate alternative to an ERCP; Zayat performed an ERCP without medical indications in support of the procedure; and Zayat performed an ERCP without first obtaining a MRCP. Conversely, in the defendant’s contentions and theoiy of defense, there was no specific reference to the MRCP or other specific factual refutation of the plaintiffs’ contentions. Rather, the defendant stated that he “denies generally each and every allegation of negligence or fault on his part as asserted by plaintiffs”; he “specifically denies that any act or omission on his part was the proximate cause of Darryl McGinnes’ death”; and he “contends that Dariyl McGinnes’ injuries and death were due to events and conditions over which he had no control, which would have occurred without fault by any health care provider.” Zayat’s failure to disclose his contention that McGinnes would not fit into the MRI tube set the stage for what then occurred at trial.
During voir dire, defense counsel asked questions of the jury panel including whether McGinnes would fit into the MRI scanner. In response, the plaintiffs filed a motion in limine to exclude any testimony at trial that McGinnes would not fit into the scanner, arguing that there was no indication in the depositions, expert reports, defendant’s answer, or pretrial order that McGinnes’ size precluded use of MRCP.
The district court granted the motion, finding that the testimony about whether McGinnes would fit into the MRI scanner was a factual contention by the defendant that should have been disclosed and included in the pretrial order. Second, the trial court reasoned that there was no evidence any attempt was actually made to fit McGinnes into the scanner, making the testimony at issue speculative. Nevertheless, the trial court did rule that the defendant could present evidence as to any hmitation on MRI testing due to McGinnes’ weight of over 400 pounds, since evidence of his weight was contained in the medical records and charts revealed during discovery.
Subsequently, at trial, the defendant in his direct testimony did explain to the jury that a MRCP was not an option for McGinnes for two reasons: the patient weighed too much for the machine, and the defendant believed the MRCP results in Wichita were unreliable at that point in time.
During cross-examination of the defendant Zayat, the following exchange occurred:
“Q. Doctor, let’s talk about MRCP for a little bit.
“A. Yes.
“Q. Now, you don’t deny that MRCP was available in Wichita in 2002?
“A. It was available, yes.
“Q. It was available?
“A. Yes.
“Q. You actually used MRCP before February, 2002 in Wichita, hadn’t you?
“A. Yes, I have, with disappointing results.
“Q. Now, Dr. Zayat, I think you testified yesterday that MRCP wasn’t available for this patient. Do you recall that?
“A. It was physically impossible to do an MRCP on this patient in Wichita in that year.
“Q. Well, the reason you say it was physically impossible is because there is a weight limit on the MRCP table. Do you recall that?
“A. Well, there is more than one hmitation. One of them is the weight limit.
“Q. Well, the hmitation that you said prevented you from doing an MRCP in this patient was because of the weight hmit, wasn’t that true? That is what you testified to.”
At this point, defense counsel requested a bench conference, during which defense counsel evidently argued that plaintiffs’ counsel was trying to “hogtie” the defendant by emphasizing the weight limit in his questions while the defendant knew he could not comment on the defendant’s size precluding use of an MRCP.
Following the bench conference, questioning resumed briefly:
“Q. Doctor, isn’t it true that you testified yesterday that tire reason that you couldn’t do an MRCP on this patient was because of the weight limit on the table?
“A. Well, I said that there was more than one limitation. One of them is the weight of the table. Second is the problem of the accuracy of the test, and the third is the inability of the patient to fit through the —
“THE COURT: Dr. Zayat, Counsel, this is probably a good place to take a recess for die evening.”
After the jury was excused, the court and counsel discussed the defendant’s reference to McGinnes’ size and inability to fit in the MRI scanner. Defense counsel argued plaintiffs’ counsel opened the door through his questioning, but plaintiffs’ counsel responded, and the district court agreed, that the questioning was limited in scope to the defendant’s testimony on direct as to the MRCP limitations.
When trial resumed the next day with the defendant still testifying, the district court admonished the jury to disregard the last answer given by the defendant and to not consider it as evidence. Plaintiffs’ counsel then resumed cross-examination on the topic of MRCP.
Now, before us, the defendant argues the district court abused its discretion in excluding his testimony as to McGinnes’ inability to fit into the MRI scanner because plaintiffs’ counsel did not question the defendant at his deposition regarding his reasons for not using an MRCP. The defendant contends this testimony was not a defense he was required to preserve in the pretrial order, but rather a supporting fact underlying his defense that he performed the ERCP because it was medically appropriate. The defendant asserts the plaintiffs “exacerbated the hole” in his explanation of why he did not perform an MRCP through the structure of their cross-examination. Finally, the defendant argues that his belief that McGinnes would not fit in the MRI scanner was not speculative, as stated by the district court. According to the defendant, the exclusion of this evidence resulted in an incomplete explanation for his failure to conduct an MRCP and the importance of this topic was shown by a question submitted by the jury regarding the capacity of the tables used for CT scans and MRCPs.
The purpose of the pretrial conference procedure and pretrial order is to eliminate the element of surprise at trials, to simplify the issues and trial procedures by full disclosure to all parties of the anticipated evidence, and to enable the parties to prepare for trial with the assurance that contentions, issues, and evidence will not be moving targets. See McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 18, 61 P.3d 68 (2002); Norton Farms, Inc. v. Anadarko Petroleum Corp., 32 Kan. App. 2d 899, 904, 91 P.3d 1239 (2004).
It has also been stated that the purpose of a pretrial order under K.S.A. 60-216(e) is to “ ‘acquaint each party in advance of trial with respect to the factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at trial.’ ” Wozniak v. Lipoff, 242 Kan. 583, 596, 750 P.2d 971 (1988).
It should be noted that the discovery provisions of our Rules of Civil Procedure in general, not just the pretrial conference and pretrial order, “were designed from the outset to do away with trial by ambush, a popular sport before adoption of the Rules.” Warren v. Heartland Automotive Services, Inc., 36 Kan. App. 2d 758, 760, 144 P.3d 73 (2006). “The use of the discovery process has for the most part eliminated surprise and ambush from the trial of civil actions. Full disclosure of all relevant facts gathered or known by the parties is essential to secure a just determination of an action.” Hurlbut v. Conoco, Inc., 253 Kan. 515, 534, 856 P.2d 1313 (1993). Concern for full disclosure is also displayed in our rules of evidence, where K.S.A. 60-445 states that “the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
Here, the plaintiffs’ theory of case and contentions to support medical malpractice included Zayat’s failure to discuss an MRCP with McGinnes or to perform an MRCP before performing the ERCP. Notwithstanding the defendant’s knowledge of the plaintiffs’ theory and contentions through discovery and pretrial conference, he did not ever suggest McGinnes was too big to fit in the MRI tube.
To the extent the defendant argues that the plaintiffs’ counsel opened the door through his cross-examination, we do not agree. Plaintiffs’ counsel carefully phrased his questions to refer only to the two reasons that the defendant gave during his testimony on direct. It does not appear that in doing so the plaintiffs opened the door for the defendant to discuss the third reason.
We conclude the trial court did not abuse its discretion in excluding Zayat’s opinion that McGinnes would not fit in the MRI scanner, thereby precluding the MRCP procedure. Its ruling is also understandable when considered in context — Zayat could not even remember discussing an MRCP with McGinnes, and he unilaterally ruled out the noninvasive diagnostic evaluation because of no confidence in Wesley’s technicians and radiologists.
Limiting Dr. Lehman’s Testimony
The defendant also argues the district court abused its discretion in not allowing one of the defendant’s expert witnesses, Dr. Glen Lehman, to measure the actual dilation of McGinnes’ bile duct by interpreting one of the x-rays taken during the ERCP. The defendant contends this was highly relevant evidence because of the different opinions by the expert witnesses at trial as to the amount of dilation needed to indicate bile duct obstruction and to justify the use of ERCP.
In response, the plaintiffs contend this court cannot properly consider this issue because the defendant did not proffer the evidence Dr. Lehman would have testified to when the district court sustained the plaintiffs’ objection. Plaintiffs also assert that the evidence was properly excluded because the dilation of the bile duct was not in issue and the testimony failed to take into account other dilation factors. Further, the plaintiffs assert that had the defendant made a proper record in response to their objection, they would have shown that Dr. Lehman did not offer any opinions as to the size of the bile duct in his written report or deposition and the defendant did not preserve this issue in the pretrial order. Finally, the plaintiffs argue the limitation on Dr. Lehman s testimony, if error, was harmless error that could not have prejudiced the defendant.
“Generally, the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion. [Citations omitted.]” State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008).
Dr. Lehman was testifying during direct examination about the ERCP performed on McGinnes, using x-rays taken during the procedure, when the following exchange occurred:
“Q. All right. Thank you, Doctor. Shall we go to your next film. I think it’s 1701. What do you see on that film?
“A. Here we see filling of the bile duct, and, again, it’s a little bit hazy, because of how heavy the patient is, but it does give us an opportunity to say, plus the next film, that we don’t see any stones, and, but it also gives us an opportunity to measure the diameter of the duct, and that duct, we know that the scope is 11 millimeters in diameter, that big, and so if we measure the scope here at 11 and it measures 15, we know it’s magnified 15 levels, and then if we measure the common duct —
“[Plaintiffs counsel]: Objection, Your Honor.
“THE COURT: Sustained.
“[Plaintiffs’ counsel]: Thank you.
“[The witness]: I’m sorry?
“THE COURT: There has been an objection to measuring the duct.
“[The witness]: We measure every patient’s duct. That is bad technique not to measure the duct.
“THE COURT: You don’t argue with me.
“[Defense counsel]: So he can’t measure the duct?
“THE COURT: Right.
“[Defense counsel]: Very good.
“[Plaintiffs’ counsel]: Move to strike the testimony in that regard.
“[Defense cousnel]: I don’t think he testified as to the measurement of the duct.
“THE COURT: Well, he started to. He testified about measuring with a scope and then at the end. That is all stricken.”
Direct examination then continued.
Under our rules of evidence, K.S.A. 60-405 states:
“A verdict or finding shall not be set aside, not shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating (he desired answers.”
“It is well established that a party may not assert error based upon the erroneous exclusion of evidence in the absence of a proffer of that proposed evidence. [Citations omitted.]” State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). The standard for a sufficient proffer is whether the proffer contains the substance of the excluded testimony. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 623, 822 P.2d 591 (1991). However, a formal offer of proof is not required if the record otherwise adequately discloses the substance of the evidence sought to be introduced. Failure to make an adequate proffer of excluded evidence precludes appellate review because the appellate court has no basis to consider whether the district court abused its discretion. State v. Evans, 275 Kan. 95, 99-100, 62 P.3d 220 (2003).
Here, the defendant argues that his failure to make a proffer of Dr. Lehman’s excluded testimony may be overlooked because the record reveals the substance of the witness’ testimony; namely, “that Dr. Lehman was going to use one of the ERCP x-rays to demonstrate and testily about measurement of Mr. McGinnes’ bile duct.” Significantly, however, there was no indication what the expected measurement would be. The substance of the excluded testimony, as argued by the defendant on appeal, would have been the actual measurement of the bile duct. Without a proffer of what the actual measurement would have been, this court is precluded from meaningful appellate review of the district court’s decision.
Further, it appears that meaningful appellate review would be further hampered by the lack of any indication in or around the above transcript excerpt of the grounds for the plaintiffs’ objection and the district court’s ruling excluding the evidence. An issue involving the measurement of the bile duct on films arose several days earlier in the trial, but that issue involved the defendant’s testimony and, apparently, a different set of scans, and so it is not at all clear whether the iater objection and exclusion was related to the previous issue. The party claiming error has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails. Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008). Without an adequate proffer of tire excluded evidence and an adequate record of the district court’s ruling, this claim of error by the defendant fails.
Accordingly, we hold the trial court did not err in its evidentiary rulings and the defendant is not entitled to a new trial. We turn next to the issues raised by plaintiffs in this appeal.
Did the Defendant Waive Application of the Statutory Caps on Damages
Plaintiffs’ argue that the defendant was required to plead statutory caps on damages as an affirmative defense or avoidance in the answer or raise the matter as a claim of defense at pretrial.
K.S.A. 60-1903 states:
“(a) In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of $250,000 and costs.
“(b) If a wrongful death action is to a jury, the court shall not instruct the jury on the monetary limitation imposed by subsection (a) upon recovery of damages for nonpecuniary loss. If the jury verdict results in an award of damages for non-pecuniary loss which, after deduction of any amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of subsection (a), the court shall enter judgment for damages of $250,000 for nonpecuniary loss.
“(c) In any wrongful death action, the verdict shall be itemized by the trier of fact to reflect the amounts, if any, awarded for:
(1) Nonpecuniary damages;
(2) expenses for the care of the deceased caused by the injury; and
(3) pecuniary damages other than those itemized under subsection (c)(2).
“(d) Where applicable, the amounts required to be itemized pursuant to subsections (c)(1) and (c)(3) shall be further itemized by the trier of fact to reflect those amounts awarded for injuries and losses sustained to date and those awarded for injuries and losses reasonably expected to be sustained in the future.
“(e) In any wrongful death action, the trial court shall instruct the jury only on those items of damage upon which there is some evidence to base an award.”
K.S.A. 60-19a02 states:
“(a) As used in this section personal injury action means any action seeking damages for personal injury or death.
“(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims of noneconomic loss shall not exceed a sum total of $250,000.
“(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.
“(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the hmitations of this section. If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for noneconomic loss. Such entry of judgment by the court shall occur after consideration of comparative negligence principles in KS.A. 60-258a and amendments thereto.
“(e) The provisions of this section shall not be construed to repeal or modify the hmitation provided by K.S.A. 60-1903 and amendments thereto in wrongful death actions.
“(f) The provisions of this section shall apply only to personal injury actions which are based on causes of action accruing on or after July 1,1988.”
K.S.A. 60-208(c) states:
“Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of hmitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”
Interpretation of a statute is a question of law over which this court has unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Further, the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Hall v. Dillon Companies, Inc. 286 Kan. 777, 785, 189 P.3d 508 (2008).
We believe two lines of reasoning support our determination that the statutory caps on damages do not have to be pled in avoidance or as affirmative defenses. First, there is the mandatory, unambiguous language of K.S.A. 60-1903 and K.S.A. 60-19a02 that requires not only application of the caps but other trial procedures and responsibilities directed toward the trial court and jury, not the parties. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 361, 789 P.2d 541 (1990) (noting the mandatory language of K.S.A. 60-19a02), disapproved in part on other grounds Bair v. Peck, 284 Kan. 824, 844, 811 P.2d 1176 (1991).
Second, we hold the statutory caps do not constitute an avoidance or affirmative defense. A defense is a defendant’s stated reason why the plaintiff has no valid case, and an affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff s claim, even if all the allegations in the petition are true. See Black’s Law Dictionary 451 (8th ed. 2004). An avoidance (confession and avoidance) is a plea in which a defendant admits allegations but pleads additional facts that deprive the admitted facts of an adverse legal effect. See Black’s Law Dictionary 317 (8th ed. 2004).
We conclude the trial court correctly determined statutory caps on damages do not have to be pled or raised at pretrial conference.
Are the Statutory Caps on Damages ConstitutionalP
The plaintiffs challenge the constitutionality of the statutory caps on damages found in K.S.A. 60-1903 and K.S.A. 60-19a02. Specifically, the plaintiffs assert the caps violate their right to trial by jury under the Kansas Constitution, their right to remedy by due course of law under § 18 of the Kansas Constitution Bill of Rights, their equal protection rights under the Kansas Constitution, and the Separation of Powers doctrine.
The defendant contends these constitutional challenges have already been rejected by our Supreme Court in other cases and, therefore, this court is required to follow this precedent and reject the plaintiffs’ arguments. The cases cited are Samsel, 246 Kan. at 361-63 (determining damages caps under K.S.A. 60-19a02 are constitutional), and Leiker v. Gafford, 245 Kan. 325, Syl. ¶ 15, 778 P.2d 823 (1989) (determining damages caps under K.S.A. 60-1903 are constitutional), disapproved in part on other grounds Martindale v. Tenny, 250 Kan. 621, 628-29, 829 P.2d 561 (1992).
The plaintiffs concede that our Supreme Court rejected similar constitutional challenges to the damages caps in Samsel and Leiker. The plaintiffs suggest these cases were wrongly decided and should be revisited.
The amici briefs also urge the continued constitutionality of the statutoiy caps on damages, setting forth public policy arguments in favor of the caps.
We need not go further in an analysis of the issues. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Buchanan v. Overley, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008). As of this date, Samsel and Leiker remain good law and control as to the constitutional issues presented in this appeal, although they have been disapproved of or superseded by statute on other grounds. See Bair, 248 at 841, 844 (Samsel disapproved in part); Martindale, 250 Kan. at 628-29 (Leiker disapproved in part); Glassman v. Costello, 267 Kan. 509, 523, 986 P.2d 1050 (1999) (Leiker superseded by statute in part on other grounds). Accordingly, we conclude the trial court did not err in ruling that the statutoiy caps on damages are constitutional.
We do wish to briefly comment regarding the separation of powers issue raised by the plaintiffs who contend it is within the exclusive province of the judiciary to grant remittitur and that imposition of statutoiy caps is an impermissible encroachment on judicial power. We do not agree and hold imposition of the statutory caps on damages is not a form of remittitur or an infringement on the Supreme Court’s rulemaking powers. Instead, through its enactments, the legislature decided the maximum amount of nonpecuniary damages recoverable in personal injury litigation. In Samsel, the court stated:
“Our constitution provides that the common-law right to a jury trial includes the right to have the jury determine the amount of the damages in personal injury actions. An individual does not, however, have a vested right in the common-law rules governing negligence actions. The legislature can modify the right to a jury trial and the right of a jury determination of the amount of damages through its power to change the common law, but the legislature’s right is not absolute. Statutory modification of the common law must meet due process requirements and be reasonably necessary in the public interest to promote the general welfare of the people of the state. Due process requires that the legislature substitute the viable statutory remedy of quid pro quo (this for that) to replace the loss of the right. [Citation omitted.]” 246 Kan. at 358.
Consequently, we conclude the plaintiffs’ separation of powers argument leads us right back to Samsel and Lieiker, and the rationale of those cases continues to uphold the constitutionality of the statutory caps on damages.
Are Plaintiffs Entitled to Prejudgment InterestP
The plaintiffs assert the prejudgment interest award was proper because the parties knew the least amount due on plaintiffs claims following the verdict would be $1,000,000. However, that circumstance does not mean the amount due and owing was $1,000,000 when the trial court ruled prejudgment interest was to commence.
In Kansas, prejudgment interest is generally allowable on liquidated claims, Owen Lumber Co. v. Chartrand, 283 Kan. 911, 925, 157 P.3d 1109 (2007), pursuant to the provisions of K.S.A. 16-201: “Creditors shall be allowed to receive interest at the rate of ten percent per annum ... for any money after it becomes due; for money lent or money due on setdement of account, from the day of liquidating the account and ascertaining the balance.”
Here, the trial court erred because the verdict was for unliquidated damages regardless of the application of statutory caps. K.S.A. 60-258 provides in material part that “[n]o judgment shall be effective unless and until a journal entry of judgment or judgment form is signed by the trial judge and filed with the clerk of the court.” In McGuire v. Sifers, 235 Kan. 368, Syl. ¶ 9, 681 P.2d 1025 (1984), the court also clarified that “[wjithout a journal entry of judgment or judgment form as prescribed by K.S.A. 60-258, there was no judgment on any issue. It is error to allow interest on a verdict for unliquidated damages for the time between its finding and rendition of the judgment thereon.” (Emphasis added.)
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Knudson, J.:
Scott Ochs appeals the trial court’s grant of summary judgment in favor of Federated Mutual Insurance Company (Federated Mutual) that denied Ochs’ claim for underinsured motorist coverage for a motor vehicle accident. Ochs also appeals the trial court’s denial of his motion for summary judgment. The facts are not in dispute.
Ochs was driving a propane truck for his employer, Ramsey Oil Hutchinson, Inc. (Ramsey Oil), on July 12, 2004, when he was seriously injured in a motor vehicle accident involving an alleged negligent third party, Loren L. Hayden. Subsequently, Ochs reached a monetary settlement with Hayden’s insured, State Farm Insurance, in the amount of $50,000.
Ochs had a personal automobile policy with Farm Bureau Insurance Company, with which he settled his underinsured motorist claim in the amount of $50,000.
Ochs then filed this action against Federated Mutual, the automobile liability insurance company for his employer Ramsey Oil, seeking additional underinsured motorist benefits. On the day of the accident, Ramsey Oil’s policy with Federated Mutual was policy 9181626, with a liability limit of $1,000,000. The issue before the trial court was whether the Federated Mutual policy provided underinsured motorist benefits of $1,000,000 as contended by Ochs or $50,000 as contended by Federated Mutual.
Federated Mutual had been Ramsey Oil’s automobile liability insurance carrier from at least April 1, 1999. On May 20, 1999, Ramsey Oil’s president and sole stockholder, Loren Alderson, signed a document provided by Federated Mutual entitled KANSAS COMMERCIAL AUTO COVERAGE OPTION FORM selecting lower amounts of uninsured and underinsured motorist coverage than that equal to the bodily injury limit of liability amount. Alderson chose to limit underinsured motorist benefits for directors, officers, partners, owners, and qualifying family members of the named insured to $500,000 and for other persons qualifying as an insured to $50,000. Alderson acknowledged:
“I have been given the opportunity to purchase Uninsured Motorists Coverage (including Underinsured Motorists Protection) equal to my limit of liability for bodily injury or death, and instead I select the lower $50,000 limit.
“I understand and agree that this rejection of higher limit of Uninsured Motorists and Underinsured Motorists Coverage shall be applicable unless I subsequently request such coverage in writing.”
The option form stated the applicant or policy holder was “Ramsey Oil Hutchinson, Inc.,” and that the election applied to “All Covered Automobiles.” The policy number on the option form was 9181578, consistent with Ramsey Oh’s automobile liability policy in effect at the time.
Both parties filed motions for summary judgment. The trial court granted Federated Mutual’s motion, concluding the option form met the requirements of K.S.A. 40-284(c) and was executed by an authorized employee of Ramsey Oil. Ochs has filed a timely appeal. Before us, the parties agree summary judgment was a proper remedy. They disagree as to whom summary judgment should have been granted.
Our Standard 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. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009).
The interpretation of a statute is a question of law that affords an appellate court unlimited review. See Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, 690, 24 P.3d 711 (2001). The interpretation of an insurance contract is likewise a question of law over which an appellate court has unlimited review. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003).
Statutory Requirements For Underinsured Motorist Coverage
K.S.A. 40284 provides:
“(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability insurance policy sold to the named insured for payment of part or all sums which the insured or the insured’s legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization. No insurer shall be required to offer, provide or malee available coverage conforming to this section in connection with any excess policy, umbrella policy or any other policy which does not provide primary motor vehicle insurance for liabilities arising out of the ownership, maintenance, operation or use of a specifically insured motor vehicle.
“(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.
“(c) The insured named in the policy shall have the right to reject, in writing, the uninsured motorist coverage required by subsections (a) and (b) which is in excess of the limits for bodily injury or death set forth in KS.A. 40-3107 and amendments thereto. A rejection by an insured named in the policy of the uninsured motorist coverage shall be a rejection on behalf of all parties insured by the policy. Unless the insured named in the policy requests such coverage in writing, such coverage need not be provided in any subsequent policy issued by the same insurer for motor vehicles owned by the named insured, including, but not limited to, supplemental, renewal, reinstated, transferred or substitute policies where the named insured had rejected the coverage in connection with a policy previously issued to the insured by the same insurer." (Emphasis added.)
K.S.A. 40-3107(e) provides that every motor vehicle liability insurance policy issued to owners who are Kansas residents must contain liability limits for each covered vehicle of no less than $25,000 because of bodily injury or death of one person in any one accident or no less than $50,000 because of bodily injury or death of two or more persons in any one accident.
Under these statutes, then, an insurer must provide underinsured motorist coverage equal to the amount of liability coverage provided in the policy unless the insured rejects in writing coverage in excess of the amounts provided in K.S.A. 40-3107(e). In this case, Federated Mutual was required to provide Ramsey Oil with underinsured motorist coverage of $1,000,000 unless the option form signed by Alderson is held to be valid.
Discussion of Issues Presented By Ochs
1. Does Loren Alderson’s failure to indicate his corporate capacity and authority as an agent on the face of the option form render the limitation of underinsured motorist coverage ineffective?
A corporation is generally bound by contracts entered into by its duly authorized officers or agents acting within the scope of their authority. Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, Syl. ¶¶ 2-3, 715 P.2d 376 (1986). Ochs acknowledges Alderson was president of Ramsey Oil and authorized to sign the option form on behalf of the corporation. His contention is that Alderson’s signature, absent indication of any representative capacity, does not meet that requirement. Ochs relies on Larson v. Bath, 15 Kan. App. 2d 42, 801 P.2d 1331, rev. denied 248 Kan. 996 (1990), and Jankord v. Lin, 32 Kan. App. 2d 1255, 96 P.3d 692 (2004), for support.
In Larson, the court recognized that the insured named in the automobile liability policy has the right to reject, in writing, the uninsured and underinsured motorist coverage required by K.S.A. 40-284 that is in excess of the limits for bodily injury or death set forth in K.S.A. 40-3107. The court held there was no evidence the insured met the statutory requirement for rejecting underinsured motorist coverage where no rejection form was attached to the policy. 15 Kan. App. 2d at 43, 46. Thus, Larson did not address the issue now presented.
In Jankord, the court held that a mechanic’s hen was invalid because the subcontractor’s manager failed to indicate on the hen statement that his signature was in a representative capacity for the subcontractor. 32 Kan. App. 2d at 1256-58. The court recognized that for a mechanic’s hen to attach the requirements of K.S.A. 60-1102 must be strictly met. 32 Kan. App. 2d at 1257.
Undoubtedly, strict construction is appropriate in mechanic’s hen law cases because the hen, once it attaches, clouds the legal title of the landowner and takes priority over all subsequent encumbrances. K.S.A. 60-1101. Because a mechanic’s hen is a creature of statute and, in the case of a subcontractor, may attach without benefit of contract between the subcontractor and the owner, requirements of verification must be rigidly enforced. See Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 400 P.2d 707 (1965). Because our mechanic’s lien laws are a specific and unique category of law with unique rules and procedures, we are not persuaded Jankord gives us a legal roadmap to follow in deciding the issue on appeal in this case.
In McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 983 P.2d 853 (1999), the court considered whether a K.S.A. 40-284(c) rejection form was sufficient. Although the effectiveness of the representative’s signature on the form was not an issue directly raised in McTaggart, the McTaggart court upheld the form, which listed “Transam Trucking, Inc.” as the named insured and was signed by “Bert Hicks,” presumably an authorized agent for Transam Trucking, Inc. Left blank was the line that provided: “By (title if other than an individual).” 267 Kan. at 648. The court concluded the written rejection form was “signed by a duly authorized agent of the named insured” and was “executed by an authorized employee.” 267 Kan. at 650-51. The court cited Ridgway v. Shelter Ins. Co., 22 Kan. App. 2d 218, 913 P.2d 1231, rev. denied 260 Kan. 995 (1996), noting that an agent of the named insured who is authorized to purchase insurance may also have authority to reject excess underinsured motorist coverage under K.S.A. 40-284(c). McTaggart, 267 Kan. at 649-50.
In Ridgway, this court held that the girlfriend of the insured had authority as an agent to reject excess underinsured motorist coverage. 22 Kan. App. 2d at 223-24. The court reasoned that absent an express statement by the legislature indicating otherwise, the Kansas Insurance Code permits a named insured to give an agent authority to reject excess underinsured motorist coverage. 22 Kan. App. 2d at 223. The court noted that there is no evidence the legislature intended to abrogate principles of agency law and rejected the argument that Larson controls the issue. Ridgway, 22 Kan. App. 2d at 222 (citing Larson, 15 Kan. App. 2d 42).
We are of course aware that because the rejection provisions of K.S.A. 40-284(c) detract from the public policy goals of protecting innocent victims, the rejection provisions are to be narrowly and strictly construed. See Larson, 15 Kan. App. 2d at 44 (although construing K.S.A. 40-284[c] was not necessary in view of the plain language of the statute that requires a written rejection). Nonetheless, strict construction should not be invoked to circumvent application of an election under K.S.A. 40-284(c) that is apparent from the four comers of the underlying insurance agreement and the option form signed by Alderson. We believe that the agreement and the option form show unequivocally that Alderson acted in an authorized representative capacity.
It is plain on the face of tibe option form that the name of the applicant or policyholder is Ramsey Oil and that the option to be exercised applies to policy 9181578, the underlying insurance agreement with Ramsey Oil. In addition, there is no dispute that Alderson as president of the company and its sole stockholder had the legal authority to act on its behalf and sign the option form as its agent. Alderson also stated in an affidavit that he executed the rejection form on behalf of Ramsey Oil and chose to limit under-insured motorist coverage. We conclude Aldersoris signature on the option form is not reasonably subject to confusion or ambiguity when considered with the underlying insurance agreement, the other information on the face of tihe option form, and Ochs’ acknowledgement of Alderson’s capacity and authority to act on behalf of Ramsey Oil. The option form bound Ramsey Oil to the terms of the agreement and resulted in reduced underinsured motorist coverage.
2. Is a propane truck an automobile to which the signed option form applies?
Ochs contends that even if we determine the option form signed by Alderson constitutes a coverage rejection, the rejection does not apply because Ochs was driving a truck, not an automobile, when the accident occurred. Ochs argues the option form only applies to “Covered Automobiles” and K.S.A. 40-298 defines automobiles to exclude trucks. Cf K.S.A. 2008 Supp. 8-126(c) and (x).
“Auto” is defined in the Federated Mutual policy with Ramsey Oil to mean “a land motor vehicle.” Ochs does not argue that the truck was not an automobile within the definition of the policy. Instead, he ignores the terms of the insurance policy and relies upon K.S.A. 40-298 to conclude the propane truck was not an automobile within the meaning of the option form.
An insurance agreement is a contract subject to agreement of the parties, and its terms, including definitions, will control so long as not in conflict with statutes or public policy. See Gibson v. Metropolitan Life Ins. Co., 213 Kan. 764, 518 P.2d 422 (1974); Merritt v. Farmers Ins. Co., 7 Kan. App. 2d 705, 647 P.2d 1355 (1982).
Here, Federated Mutual could have chosen to exclude trucks from the policy definition of automobiles but did not do so and its more expansive definition is not in conflict with Kansas law. See Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 522, 516 P.2d 939 (1973) (holding where insurance policy defines “automobile” in the broader generic sense as a “motor vehicle,” a motorcycle is included absent an exclusionary provision to the contrary). Consequently, we hold the truck driven by Ochs was a covered automobile within the meaning of the insuring agreement and the coverage option form signed by Alderson.
3. Does the executed option form apply to the insuring agreement in effect at the time of Ochs’ accident?
Ochs argues the option form does not apply in this case because the option form only operated to reject excess underinsured motorist coverage for policy 9181578, not 9181626 — the policy in effect on the date of the accident. This argument is without legal merit.
As previously noted, Federated Mutual has continuously provided automobile liability insurance to Ramsey Oil since April 1, 1999. K.S.A. 40-284(c) specifically provides that a written rejection applies to any subsequent policy issued by the same insurer for motor vehicles owned by the named insured. See Mitchell, 271 Kan. 684, Syl. ¶ 2; Phillips v. St. Paul Fire & Marine Ins. Co., 39 Kan. App. 2d 758, 761-64, 184 P.3d 280 (2008), aff'd 289 Kan. 521, Syl. ¶ 3, 213 P.3d 1066 (2009).
Ochs does not claim that policy 9181626 and policy 9181578 were made between different parties. Ochs does not dispute that the coverage under these two policies was virtually the same. There is no evidence Ramsey Oil requested additional underinsured mo torist coverage after it executed the option form. It is undisputed policy 9181626 merely replaced the prior policy due to a subsequent contract between the same parties. Thus, under the explicit language of K.S.A. 40-284(c), Ochs’ argument fails.
4. Did Ramsey Oil through its authorized representative Alderson intend to limit underinsured motorist coverage?
Ochs’ final argument is that Ramsey Oil did not intend to reject excess underinsured motorist coverage. We note Ochs does not contend summary judgment should not have been granted because there remained a disputed question of fact as to Alderson’s intent to waive underinsured motorist coverage on behalf of Ramsey Oil. An issue not briefed by an appellant is deemed waived or abandoned. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
Thus, we understand the argument to be that Alderson testified unequivocally his intent was not to reduce underinsured motorist coverage. This argument fails to appropriately consider Alderson’s testimony in its entirety. In his deposition, Alderson testified he believed the significance of the option form was that he was selecting the amount of liability insurance for him and his employees, and later agreed the option form was “the amount of liability coverage.” Nevertheless, Alderson also stated he did not remember seeing the exact form, did not remember every form he filled out, and agreed the form appeared to be a selection of coverage for himself, as an officer, and employees. Alderson testified the Federated agent was thorough and spent a great deal of time explaining the coverage. Alderson stated he was sure he was told exactly what he was signing and what the form meant at the time. Alderson stated the option form made it “absolutely clear” that the limit for directors, officers, partners, and owners was $500,000 and that the limit for other qualifying persons was $50,000. Alderson testified he could not say he did not understand the option form when he signed it. Alderson believed the option form was “a selection of the coverage that I made and that would be a reasonable number to have more on the officers because of the debt incurred there.”
Based on the above testimony, the trial court found that Alderson intended to reduce coverage for underinsured motorist coverage when signing the option form. We agree but would suggest the following to be a more appropriate analysis.
The terms of the signed coverage option form became a part of the insurance agreement between the parties. “Where an insurance contract is not ambiguous, the courts will not make another contract for the parties but will enforce the contract as written.” Jones v. Reliable Security, Inc., 29 Kan. App. 2d 617, 627, 28 P.3d 1051, rev. denied 272 Kan. 1418 (2001). Additionally, it is not the intent of the insurer as to what the language of a policy means, it is what a reasonably prudent insured would understand the language to mean. Hodgson v. Bremen Farmers’ Mut. Ins. Co., 27 Kan. App. 2d 231, Syl. ¶ 1, 3 P.3d 1281, rev. denied 268 Kan. 886 (1999). We hold the option form signed by Alderson is unambiguous and a reasonably prudent insured would understand the provisions of the form to mean approval by the insured would constitute an election to accept lower underinsured motorist coverage limits.
Conclusion
We hold under the uncontroverted facts of this case: (1) Alderson’s approval and signature on the coverage option form was authorized by Ramsey Oil and constituted a binding election in compliance with K.S.A. 40-284(c); (2) Ramsey Oil’s propane truck was an automobile as defined in the Federated Mutual insurance policy and that definition controls and is not precluded by the more limited definition of an automobile in K.S.A. 40-298; (3) the written rejection of underinsured motorist coverage by Ramsey Oil in conjunction with a previous automobile policy issued by Federated Mutual controls because the insured named in the policy has made no subsequent request in writing for additional coverage; and (4) a reasonably prudent insured would have understood the provisions of the option form to be an election to accept a lower limit for underinsured motorist coverage than the limit equal to the bodily injury liability limit of the policy.
Accordingly, we affirm the district court’s grant of summary judgment in favor of Federated Mutual and its denial of summary judgment to Ochs.
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McAnany, J.:
Miller’s of Claflin, Inc. (Miller), and S&H Lumber Co. (S&H), appeal the district court’s cancellation of their claimed mechanics’ Hens on the home of Kris and Sara Tarlton (Tarltons) based upon the finding that Miller and S&H failed to properly perfect their liens as subcontractors.
Facts
The Tarltons engaged Chad Gisick, d/b/a Gisick Construction, to serve as the general contractor in the construction of their new home. They made periodic progress payments to Gisick for work done on the project, apparently based on representations from Gisick but without obtaining hen waivers from the various suppliers. The payment schedule left a remaining balance to be paid to Gisick upon completion of the project. Gisick died in Februaiy 2007 before completing the project. His estate was unable to satisfy the outstanding claims of his subcontractors. Miller and S&H filed mechanic’s hen statements for unpaid work and materials. Neither Miller nor S&H sent the Tarltons the warning statements required of subcontractors pursuant to K.S.A. 60-1103a(b).
Following Gisick’s death, the Tarltons filed an interpleader action with respect to the remaining unspent funds for the project. S&H and Miller counterclaimed for enforcement of their mechanics’ hens. The Tarltons ultimately moved the court for adjudication and cancellation of the hens claimed by Miller and S&H.
The district court tried the issue based upon the documentary evidence supphed by the parties, the oral arguments of counsel, and the arguments in their briefs. The court ruled after reviewing “the pleadings ... as well as the attachments which includes exhibits and affidavits.” There are no affidavits in the record relating to the central issue in this appeal: whether S&H and Miller had contracts with the Tarltons to supply labor and materials to the project. The court ruled that S&H and Miller were subcontractors of Gisick who failed to perfect their hens as subcontractors by giving the statutorily required notice to the owners. Thus, the court struck down their hens. S&H and MiUer appeal.
Standard of Review
Under these circumstances, in which the district court was not required to consider matters of credibility but rather to rule on the documentaiy evidence before it, we are equally capable of examining the documents to determine if the hens were properly perfected. Accordingly, our review is de novo. See Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Mechanics’ Liens
Mechanics’ hens are governed by K.S.A. 60-1101 et seq. They are designed to protect unpaid suppliers of labor and materials for real estate construction projects. See K.S.A. 60-1101. However, to create a hen a claimant must strictly comply with the apphcable statute. Buchanan v. Overley, 39 Kan. App. 2d 171, 175, 178 P.3d 53 (2008). One claiming a mechanic’s lien has the burden of bringing one’s self clearly within the provisions of the statute. Creme de la Creme (Kansas), Inc. v. R & R Int’l, Inc. 32 Kan. App. 2d 490, 493, 85 P.3d 205, rev. denied 278 Kan. 844 (2004).
There are different hen perfection requirements for general contractors and for subcontractors. See generally Stewart v. Cunningham, 219 Kan. 374, 376, 548 P.2d 740 (1976). One difference is the requirement in K.S.A. 60-1103a(b) that subcontractors mail to the property owner the warning statement identified in K.S.A. 60-1103a(c) or obtain the owner’s signed acknowledgement of that warning and file an affidavit stating that they did so.
There is no question that Miller and S&H did not comply with the statutory requirement that subcontractors give the owners this warning statement. The case turns on whether Miller and S&H were subcontractors of Gisick, the general contractor, or whether they had independent, direct contracts with the Tarltons to supply materials and labor to the project. Whether contracts existed between the Tarltons and these claimants are questions of fact. See In re Estate of Hjersted, 285 Kan. 559, 589, 175 P.3d 810 (2008). Applying the de novo standard of review, we must examine die documentary evidence before the district court to determine if the party bearing the burden of proof on the issue of the existence of a contract between the parties met that burden.
Burden of Proof
First, we must determine who has tire burden of proof on the issue of the status of Miller and S&H vis-a-vis the Tarltons. We find no Kansas authority that addresses the issue in the context of the facts now before us. However, the issue arises from time to time in declaratory judgment actions in which courts have developed an analytical framework for deciding which party bears the burden of proof.
Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir. 1976), cert. denied 429 U.S. 1053 (1977), presents a thoughtful analysis of the issue. In Videfreeze, the court noted the following tests for determining who has the burden of proof in a declaratoiy judgment action:
“(1) whether the plaintiff objected to assuming the burden of proof; (2) which party asserted the affirmative of the issue; (3) which party would lose in the absence of any evidence on the issue; (4) what sort of relief is sought.” 540 F.2d at 1175.
In Videfreeze, the insureds suffered a loss when a rockslide damaged their building and interrupted their business in St. Thomas, Virgin Islands. The insurer had issued a policy containing an endorsement that provided coverage for losses caused by earthquake. The insureds made a claim under the policy, asserting that the rockslide was caused by an earthquake which four witnesses claimed to have felt, though no earthquake was recorded on the nearest seismograph in Puerto Rico. The insurer denied that an earthquake caused the rockslide, claiming that rain water penetrated fractures in the rock above the insured’s building and dislodged the side of the cliff, causing the rockslide. The insurer brought a declaratory judgment action to determine the rights and responsibilities of the parties under the policy.
Central to resolution of the dispute was determining who had the burden of proof. The court cited Traveler's Ins. Co. v. Greenough, 88 N.H. 391, 190 A. 129 (1937), in which “the New Hampshire Supreme Court refused to displace the burden of proof of coverage from its normal location on the insured, despite the reversed positions of the parties in the action.” Videfreeze, 540 F.2d at 1175. The court noted that when an insurer sues its insured to obtain a declaration that there is no coverage under the policy, “ ‘(i)t would seem rather anomalous that so important a matter (as the burden of proof) should depend on the chance of who first sues . . . .’ [Citation omitted.]” 540 F.2d at 1176.
The Videfreeze court also cited Reliance Life Ins. Co. v. Burgess, 112 F.2d 234 (8th Cir.), cert. denied 311 U.S. 699 (1950), and observed:
“In Burgess, the insurance company was made to bear the burden of proof but not merely because it happened to be the plaintiff in the declaratory judgment action. Rather, the court considered that the company disputed coverage by asserting an affirmative defense of exclusion and that the insured neither asked for affirmative relief nor put forth a cause of action. In that posture, the insurer properly was required to prove that the loss was due to an excluded cause.” Videfreeze, 540 F.2d at 1175.
The insureds in Videfreeze asserted a counterclaim for coverage. “[T]he insureds, although nominally the defendants, were affirmatively asserting coverage under the policies and risked an adverse judgment on their counterclaims for damages if they adduced no evidence of coverage.” 540 F.2d at 1176. Accordingly, the court found that the insureds bore the burden of proof on the issue of coverage.
For a similar analysis, see Preferred Acc. Ins. Co. of N.Y. v. Grasso, 186 F.2d 987, 991 (2d Cir. 1951).
Turning to the claims now before us, we first examine the procedural history. The Tarltons brought this interpleader action against a number of suppliers on the project. They claimed in their petition that S&H and Miller “have or may have claims.” The Tarltons tendered into court $13,389.17, “the amount remaining for distribution and payment to the Defendants now making claims.” The Tarltons did not ask for affirmative relief with respect to the lien claims of S&H and Miller.
S&H and Miller answered and asserted a counterclaim, alleging that the Tarltons entered into contracts with them to supply labor and materials on the project. They asked the court to determine that their hens are valid hens on the property. The Tarltons filed their reply, in which they denied the allegation that a contractual relationship existed between them and S&H and Miller.
In due course the Tarltons filed their motion for adjudication and cancellation of liens. They asserted that the hen statements filed by S&H and Miller failed to comply with the statutory requirements and, therefore, the claimed hens were invalid. In their response to the motion, S&H and Miller acknowledged the duty of subcontractors to provide the warning statement described in K.S.A. 60-1103a, but asserted that they were direct contracting parties with the Tarltons and not subcontractors of Gisick, the general contractor.
Though the Tarltons initiated this interpleader action, they do not have the burden of proof on the issue of whether a contract existed between them and S&H or Miller. The issue was raised by S&H and Miller in their counterclaim. They have the burden of bringing themselves within the aegis of our mechanics’ Hens laws. Their Hen claims are at risk if they cannot establish what they claimed in their counterclaim: that they are not subcontractors of Gisick but direct contracting parties with the Tarltons. Accordingly, they have the burden of proof on the claim that they had contractual relationships with the Tarltons.
S&H’s Lien Claim
With respect to S&H’s hen claim, the district court found:
“There were at least eight separate documents with different dates wherein [S&H] sold materials to Gisick Construction, who then provided the materials to the plaintiff. . . . Even though [S&H] attempts at this time to claim Gisick was only an agent of the [Tarltons], the documents make it clear Gisick was the contractor and [S&H] was the sub-contractor.... There was no warning statement sent, and therefore, the hen is defective and . . . must be cancelled.”
The documents before the court clearly indicated that S&H was a subcontractor of Gisick. Each of the invoices that S&H relies on contains the statement: “Sold To Gisick Const.” Nevertheless, S&H maintains on appeal that the Tarltons entered into an oral contract with Gisick, who was the Tarltons’ agent for supplying materials for the project. There is no evidence that Gisick was the Tarltons’ agent. He contracted to build a home for them, not to serve as their agent. “[W]here the relationship of principal and agent is in issue, the party relying on an alleged agency relationship has the burden of establishing its existence by clear and satisfactory evidence.” Town Center Shopping Center v. Premier Mortgage Funding, Inc., 37 Kan. App. 2d 1, 6, 148 P.3d 565 (2006).
There is a total lack of evidence to support the existence of a contractual relationship between S&H and the Tarltons. S&H failed to meet its burden of proof on this issue. The district court did not err in finding S&H’s hen claim to be invalid.
Millers Lien Claim
The evidence supporting Miller’s hen claim consists of two documents attached to Miller’s hen statement: an invoice and a sales order form. These two documents are the entirety of the documentary evidence bearing on the issue of Miller’s relationship to the Tarltons. The invoice was generated from information contained on the sales order form. Thus, we must look to the sales order form for evidence of the claimed contractual relationship.
The sales order form lists “Chris and Sara Tarlton” as the customer. However, the “Special Instructions” portion states: “Send to Chad.” This apparently refers to Chad Gisick, the general contractor. Send what to Chad and at what location? Clearly not the purchased items of carpet, laminate, and tile. There would be no reason to deliver these items to the general contractor rather than to the job site. After all, Miller was responsible for installation of at least part of the materials, and the flooring in particular. There would be no reason to send these materials to Gisick rather than to the job site. However, if this reference on the document means that the materials should be sent to Gisick, that would tend to prove that Gisick was the contracting party, not the Tarltons.
On the other hand, “Send to Chad” may refer to this sales order form itself, not the materials being sold. If that is the case, then this would also tend to prove that Gisick was the contracting party. Otherwise, why would Gisick have any interest in what particular and tile the Tarltons selected or what they agreed to pay for it?
A notation on the bottom of the sales order form suggests the latter alternative. The form states: “Miller s make no express warranties. We honor and follow factory warranties only. Orders are noncancelable upon manufacturer s acceptance. Please review policies on reverse side of your ticket. Accepted By: X Phone (Chad Gisick).” We find no explanation in the evidence why Miller would obtain Gisick’s acceptance of the order if the Tarltons were the contracting parties.
Miller had the duty to come forward with evidence from which one could conclude that it is more probably true than not that the Tarltons were the contracting party, not Gisick. From what meager evidence was provided, we cannot say that Miller met its burden of proof. Because the adequacy of Miller’s Hen statement turns upon Miller establishing that Miller had a direct contract with the Tarltons, we conclude that the district court did not err in finding Miller’s lien statement to be inadequate and its claimed hen invalid.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Matt Oplotnik against the Cherokee & Pittsburg Coal & Mining Company to recover damages for injuries sustained by him while working in the defendant’s mine on December 11, 1912. The plaintiff had been a coal miner for seventeen years, and had been working in the portion of the mine where the injury occurred for a month and a half. The place in which the accident took place was a passageway termed the straight west entry, where the miners pass to and fro, and through which cars of coal running on a track were pulled by mules. A loaded car passing through it leaves but little room at the side for a person to pass, the width of the entry varying, but it averages about six feet. -The entry had no manholes, or places of refuge, where the miners could stand while loaded ■ cars were passing. On the day in question the plaintiff had quit work and was walking through the entry toward the parting. In order to pass through the entry it was necessary for him to pass two or three trips of loaded cars standing there, one behind the other and each attached to a tandem of mules. In passing, he crawled along the tops of the loaded cars and had passed two trips and stepped down in front of the foremost car of the second trip, when the mules which he was in the act of passing became suddenly frightened and started forward, with the result that the car struck and injured him-. The mules walked only a few feet, when they were stopped by another trip of cars about eight or ten feet ahead of them. The mules were unattended at the time they became frightened, their driver being at the parting about 120 feet from the team, eating his lunch. He had been instructed to leave the team standing in the entry while the parting was being cleaned up. There was testimony that the entry at the particular point where the plaintiff stepped down from the car was not wide enough to have permitted him to climb down the side of the car instead of in front, as he did, and some to the contrary. At the trial the court overruled an objection to the introduction of any evidence, but after the plaintiff’s evidence was in a demurrer thereto was sustained.
On this appeal it is contended that the evidence produced tended to show negligence on the part of the defendant in that the entry was so narrow as to be unsafe. The entries are not uniform in width, and it is impracticable to make them so, because of horsebacks and rock formations through which the entries pass. No testimony was offered to show that it was necessary or practicable to make the entry wider at the place where the plaintiff was hurt. A witness spoke of another entry or passage which was open and might have been used. Within the rule of Lewis v. Coal Co., 84 Kan. 333, 113 Pac. 1045, the narrowness of the entry where the plaintiff was injured was not shown to be culpable negligence.
It was shown that there were no manholes near the place of the accident, and plaintiff insists that the defendant was negligent in failing to provide them. The act providing for the health and safety of miners requires that manholes shall be provided at intervals of not more than sixty feet. (Gen. Stat. 1909, § 4987.) These are intended as places of refuge when cars drawn by mules or other animals are passing, and of course are not intended and can not be used as a traveling way past trips of cars. The absence of manholes at that place did not contribute to the plaintiff’s injury. The company would be liable to an employee who had been injured by reason of the omission of this duty, but it can not be held liable unless there was a causal relation between the omission of duty and the injury to the plaintiff; and of course there is no actionable negligence where the omission is not the proximate cause of the injury.
The final contention is that the defendant was negligent in leaving the team of mules attached to the trip unhitched and unattended. Three trips of cars had been stopped near the parting to clean the entry; that is, to pick up the coal that had fallen upon the track. While waiting for this to be done the driver in charge of the trip which collided with the plaintiff stepped aside and was eating his lunch. There was another trip eight or ten feet ahead of the lead mule attached to the colliding trip and one immediately behind it. The plaintiff invokes the rule applicable to cases where horses are left un- 1 hitched and unattended on a public street, but the situations are so unlike that the rule does not fairly apply. Here the mules were on a private way, walled in closely, with a trip of cars ahead of them and another behind them, and hence no one had reason to anticipate that the mules might run away. There were no passing vehicles, and none of the frightening noises and things that are likely to be encountered on the streets of the city. No showing was made whether the mules were restive or quiet, whether direct control was necessary or whether they were accustomed to'stand without hitching or guarding. Indeed, there was no testimony to show the means employed in controlling teams in the mine, whether by lines or by the voice of the driver, nor the kind of care which is necessary under such circumstances as existed in the mine. The mules only advanced a few steps, and it can hardly be said that if the driver had been standing near them he could have prevented the accident. To make the defendant liable it must be shown that something was done or left undone by it which would have averted the accident. In the absence of evidence as to the disposition of the mules, the care necessary to their control in order to avoid injuries to employees, or what was due and reasonable care under the circumstances that existed there, it must be held that the plaintiff failed to make out his case. (Lewis v. Coal Co., 84 Kan. 333, 113 Pac. 1045.) In order to recover, it devolved upon the plaintiff to prove that the persons in charge of the team did not exercise reasonable care; that is, such care as would be exercised by persons of ordinary care and prudence under like circumstances; and the ruling of the trial court that this proof was not made must be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff held an insurance policy for $1000, issued by defendant, to protect his barn from loss or damage by fire, lightning, windstorms, cyclones, and tornadoes. The barn was partially destroyed by a windstorm. After some futile efforts to appraise and determine the amount of the insurance company’s liability in accordance with the terms of the policy, the plaintiff sued the defendant for $1000, alleging the total destruction of the barn.
By agreement of parties, the defendant was permitted to file the following amendment to its answer:
“That the plaintiff ought not to have and maintain the said cause of action against the defendant for the reason that before the commence ment of said suit the defendant in order to settle differences between it and the plaintiff tendered to the plaintiff the sum of $650 in lawful money of the United States of America, and that it hereby tenders the same in court, and hereby keeps said tender good.
“That said tender was not made because the defendant thought that the plaintiff was entitled to recover that much or that he had been damaged to that extent, but rather to buy its peace and avoid litigation.”
Two of the special findings of the jury read:
“Q. 7. Did the defendant, within 20 days after the loss, offer to pay the plaintiff the sum of $650 in payment of the loss, and was this offer refused by the plaintiff? A. Yes.
“Q. 8. What would it have cost to repair or replace the barn in question immediately after the injury in as good condition as it was immediately before the injury?' A. $600.”
The jury found a verdict in plaintiff’s favor for $600, and the judgment therefor was paid.
Later the question of an attorney’s fee to be allowed and charged as part of the costs under section 4263 of the General Statutes of 1909 was considered by the court and a fee of $150 was allowed. The propriety of this allowance is the only question involved in this appeal, it being the defendant’s contention that its allowance under the facts of this case infringes the defendant’s constitutional rights, particularly those guaranteed to it by the fourteenth amendment.
It is settled by the decisions of this court and of the supreme court of the United States that statutes allowing attorneys’ fees in cases arising over certain insurance policies are constitutional. (Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Syndicate Co. v. Insurance Co., 85 Kan. 367, 116 Pac. 212; Farmers’ &c. Ins. Co. v. Dobney, 189 U. S. 301.) But the case before us is somewhat peculiar. It is entirely possible to give a perfectly valid statute such an unreasonable interpretation and application as to violate the constitutional rights of a litigant. Here the plaintiff demanded $1000. The defendant offered him $650. The jury found that the plaintiff was only entitled to $600. The plaintiff was not satisfied with what was fair and just. The assessment of an attorney’s fee in his favor under such circumstances would be a penalization of the defendant for standing on its just rights and resisting the plaintiff’s unreasonable demands. There is nothing the matter with the statute, but it has been misapplied here.
We presume that defendant is correct in its contention that the taxing of this fee against it in this case was in violation of its rights under the due process feature of the fourteenth amendment. (St. Louis, I. M. & S. Ry. Co. v. Wynne, 224 U. S. 354.) But we think the question is so plain that it hardly needs to be measured by grave constitutional propositions. It is familiar law that where a defendant tenders a greater sum than the judgment afterwards rendered against him he is exempt from all costs incurred after the tender is made.
A suggestion is made questioning the sufficiency of the tender, but that point does not appear to have been raised below and consequently it can not be considered here.
The judgment is reversed with instructions that the item allowed as an attorney’s fee be stricken from the bill of costs. | [
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The opinion of the court was delivered by
Mason, J.:
In this case a judgment for damages resulting from a crossing accident was rendered against the railway company and two of its employees. On appeal this court concluded that an error had been committed which was prejudicial to the individual defendants but not to the corporation, and therefore affirmed the judgment against it, while reversing it as to them. The company asks for a rehearing or modification of the decision on the ground that the judgment was an entirety, and if reversed at all required to be set aside as to all against whom it was rendered. Many cases, probably a considerable majority of those in which the question is passed on, sustain this view, but decisions to the contrary are not wanting. (4 Enc. L. & P. 664-666; 2 Standard Proc. 481; 2 R. C. L. 268, 269; 1 Black on Judgments, 2d ed., § 211, p. 315; 2 Dec. Dig., Appeal and Error, § 1173 (1).) We think the more reasonable as well as the more modern rule is that a judgment against joint tort-feasors may be affirmed as to a part of them and reversed as to others where no substantial injustice will result from that procedure, and that such a situation is here presented. It is suggested that the execution of the judgment against the company should be stayed until the result of the action still pending against the employees is determined. The liability of the defendants was joint and several, and the plaintiffs might have proceeded separately against each of them. (Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881.) The enforcement of their judgment against one is not dependent upon the result of their action against the others,.and there is no occasion for staying execution.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
In this action the appellants were enjoined from using a stairway and an alcove above the stairway in a building belonging to plaintiff in the city of Harper.
Lot 12 in Harper has a twenty-five-foot front to the south, facing Main street, and extends to the north over one hundred feet, and is bounded on the east by Central avenue. In 1883 W. M. Glenn owned the south eighty-three feet of this lot, upon which he had a two-story building facing Main street and extending northward sixty feet on Central avenue. The next twenty-three feet, belonging to Glenn, was vacant. Next to this was seventeen feet of the same lot, which belonged to Glenn and one. H. C. Munger jointly. Glenn and Munger erected a two-story building on this forty feet facing Central avenue; that is, on the twenty-three feet owned by Glenn individually and on the seventeen feet owned jointly by Glenn and Munger. A stairway to the second floor was constructed on that part of the property which exclusively belonged to Glenn. This stairway gave access to the second floor, both north and south. It was used by the grantor of defendant Reddy for some years. Over the stairway was a space (called an alcove) which served as a closet part of the time for the second-floor rooms over the seventeen feet owned by Glenn and Munger jointly.
In time the sixty-foot building and twenty-three feet of the' second building and the entire upper floor of both buildings were occupied by one tenant, and he closed the stairway and walled up the entrance. It remained closed for over twenty years. As time went by, other persons came to own the property. The north seventeen feet of the second building became the property of defendant Reddy. For some years it was used as a barber shop and its second story was a suite of bathrooms conducted by the barber tenant, and access to the bathrooms on the second floor was obtained through a stairway in the barber shop. The plaintiff some years ago became the owner of the south eighty-three feet and decided to make a residence for herself on the second, floor, and to that end she reestablished and renewed the stairway as a private access to her upstairs quarters, and put in a door at the foot of the stair which she controlled by a lock and key.
Defendant Anderson is the tenant of defendant Reddy and occupies the second floor of the seventeen-foot building as an office. It was to prevent her private stairway from being used by the defendants, and incidentally by the public, that this suit was brought.
The district court disposed of the controversy in twenty-one findings of fact and six conclusions of law based thereon. The findings of fact recite that in 1886 the tenants of the property exclusively owned by Glenn, and now owned by the plaintiff, closed and walled up the outside entrance to the stairway in dispute and made an entrance into it from the inside of the store building, and some time later the same tenants also leased and occupied the upper floor of defendant Reddy’s seventeen-foot building. One or two years later, which would be about 1888, these tenants discontinued the use of the second floor of the Reddy property. The Reddy building was then leased for a barber shop and Reddy built an inside stairway to reach his second floor, and this means of access was used for several years. In March, 1901, the plaintiff purchased the Glenn property, that is, the original sixty-foot property and the twenty-three feet next to it on the north, which included the stairway, to which access was had from the inside, and the original outside entrance which had been walled up in 1886 by Glenn’s tenants. In July or August, 1902, the plaintiff reopened the outside entrance to the stairway and leased the upper floor of her property to the Knights of Pythias. She put in a door and lock at the entrance of the stairway and gave her tenants the key. This tenancy continued for five or six years. This would carry the situation down to 1907 or 1908. About 1907 Reddy rented the second floor of his building for a real-estate office and his tenant used the stairway in dispute. About two years later, Anderson, one of the defendants and a tenant of Reddy, likewise used the stairway. The plaintiff had acquired the property in 1901 and had no notice or knowledge that any one claimed the right to use the stairway; and she did not know that Reddy’s tenants had used the stairway until about 1909. Not until 1913 did she know that Reddy or his tenants claimed .a right to use the stairway.
It will thus be seen that the stairway was closed in 1886. The tenants who closed it ceased to be tenants of the upper floor of the Reddy building about 1888, so that the adverse closing may justly be reckoned from the latter date. While it was reopened in 1902 it was only opened at that time as a private entrance to the lodge of the Knights of Pythias who were plaintiff’s tenants. Not until about 1907, “about seven years ago,” as the trial court found, was there any attempted resumption of the use of the stairway by Reddy or his tenants. Thus the adverse closing began about 1888 and continued at least until about 1907. We gather all these incidents from the court’s findings of fact, although we have diligently consulted the original record to verify them, and since they are based upon some competent evidence it can not affect their •conclusive force that there may be other conflicting testimony.
From this it will be seen that the trial court did not commit material error in its second conclusion of law, which reads:
“By reason of the fact that the said stairway was closed up by the tenants of Glenn, who was interested in all of the property immediately north and immediately south of the stairway, and said stairway remained closed for more than twenty years without objection, the license to use the stairway by the owners of the property north of the same was revoked.”
The trial court did follow up this finding and conclusion with two others, both of which are j ust as potent as the one depending upon the statute of limitations. One of these was a foreclosure proceeding on the Glenn property in 1890, in which Thomas S. Moffett, Reddy’s grantor and predecessor in title to the seventeen-foot property, was made a - defendant, and in the final judgment was barred of all right, title and interest in the Glenn or plaintiff’s property. Surely that judgment cut off Moffett’s right and consequently Reddy’s right to use the stairway in plaintiff’s property. The plaintiff purchased the property with the stairway closed and unused, on the faith of a judgment barring Reddy’s grantor of any interest, and without any notice of any claim by anybody to use that stairway; and while these incidents are unnecessary to strengthen the exclusive right of plaintiff to this stairway, under nineteen or twenty years’ adverse possession, they do show other appropriate and unassailable grounds upon which the judgment for plaintiff on this phase of the case securely rests.
Much stress is laid by the defendants upon the district court’s refusal to grant a jury trial on the-question of the right to use the alcove or space over the stairway. In constructing the building, the space over the stairway opened into the second floor of Reddy’s part of the property. It did not open directly into the upper floor of plantiff’s property. On this subject the court made the following finding of fact and conclusions of law:
“Fourteen. About two years ago the defendant, Anderson, removed the partition north of the stairway in the second story rooms and placed the partition in such a manner that he made a new room composed partly of the space above the stairway in question, and has ever since been using the same. This partition was removed and changed as above stated, and the space above the stairway was used by the defendant, Anderson, without the knowledge or consent of the plaintiff.
“Five. No permission or license was ever given, to the defendants, or either of them, to use and occupy the space over the stairway; and by the use and occupation of the same, they have not acquired any interest therein or right thereto adverse to the plaintiff.
“Six. The defendant, Anderson, since the service of notice on him by the plaintiff, has been a continuous trespasser on the said stairway and in the space over the same, and in his acts he has been aided and assisted by the defendant, Reddy.”
The original use of the space over the stairway was no more than permissive and such use would confer no right nor give rise to such right. (Railway Co. v. Conlon, 62 Kan. 416, 420, 63 Pac. 432; Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446; 14 Cyc. 1150.) Furthermore, any claim of right was barred by the foreclosure proceedings. Moreover, the plaintiff had no notice of defendants’ use of this space or of their claim thereto until shortly before this lawsuit began. Unless this use of the space over the stairway was with the knowledge of the plaintiff, or at least so visible, open and notorious that her knowledge would be presumed, no prescriptive right to its use would arise. (14 Cyc. 1148.) We think the trial court’s finding that the defendants were mere trespassers on the space over the stairway was correct, and they were properly enjoined therefrom. (22 Cyc. 836.) On neither of the main features of this case does Smyre v. Kiowa County, 89 Kan. 664, 132' Pac. 209, affect it, since here all the pertinent facts are found against defendants’ contentions.
A separate brief is filed herein by defendant Anderson, the tenant of Reddy, in which much skill and learning is shown in supplementing the argument of Reddy’s counsel; but it, too, is largely based upon that portion of the evidence which apparently did not impress the trial court; and since we have determined that the findings made by the court were based upon some substantial evidence, it can avail naught that other and contradictory evidence was also presented. No error is assigned on Anderson’s plea in abatement. It may be conceded that the allowance of the amended petition and of additional parties defendant by the judge at chambers outside the county was irregular, but no prejudice to defendants’ substantial rights is traceable thereto, and we are forbidden to reverse a case on mere technical grounds when the net result approximates substantial justice. (Civ. Code, §§ 141, 581; Root v. Packing Co., 94 Kan. 339, 345, 147 Pac. 69; Elevator Co. v. Harrison, 97 Kan. 289, 293, 154 Pac. 1016.)
After two hearings in this case, we find no tangible ground upon which to base a reversal, and the judgment is therefore reaffirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
This is an original proceeding to test the constitutionality of chapter 210 of the Laws of 1915, and it takes the form of an application for a writ of mandamus to require a county clerk to file primary election petitions which are regular under other statutes, but which ignore the provisions of the act in question. The act, in part, reads:
“An act relating to the nomination and election of county superintendent of public instruction.
“Section 1. In any primary election held for the purpose of nominating candidates for county offices and in any general election held for the election of county officers the right to vote for candidates for the office of county superintendent of public instruction shall be restricted to the qualified electors residing in said county and not residing in any city of the first or second class; and the ballots prepared for use in cities of the first and second class in said primary or general election shall not contain the names of candidates for the office of county superintendent of public instruction; provided, that nothing in this act shall disqualify a person residing in any portion of the county from being elected to the office of county superintendent.”
The county clerk of Osborne county declines to file and certify the name of Bertha L. Yoxall as a candidate for the office of county superintendent or to cause her name to be printed on the ballots at the ensuing primary election because her nominating petitions are largely signed by residents of Osborne, a city of the second class. The state, through its chief law officer, takes the position that the act is in violation of the constitution, particularly section 1 of article 5 and section 1 of article 6, and inferentially section 19 of article 2, section 2 of article 9, and section 1 of article 15, and that the nomination and election of county superintendents must proceed as heretofore and without regard to this act of 1915.
The intervenor, R. M. Crum, is a candidate for the office of county superintendent in Sedgwick county and is interested in the proper interpretation of the act, and argues in favor of its validity. Indeed it may be proper to say that the idea expressed in the act has been more or less popular for many years, and teachers’ associations and kindred societies interested in rural education have frequently endorsed the proposition. Cities of the first and second class are provided with superintendents of schools, and consequently it has been popularly supposed that such city voters have little concern with the qualifications of county superintendents, and it has been a more or less prevalent idea that the rural school interests have suffered on that account, and that perhaps a class of county superintendents more deeply interested in the welfare of rural schools would be chosen if their election depended wholly upon the suffrages of the people who reside in the rural districts of the county, or at least outside the cities of the first and second class. But we are only concerned with the constitutionality of this act. It would not help the proposition for us to concede its wisdom or desirability.
The legislature from time to time has prescribed special qualifications for county superintendents. Prior to 1899, it seems that any person qualified to hold any office might aspire to and hold the office of county superintendent. (Laws 1899, ch. 245, § 1.) In that year, the legislature enacted that only a teacher of eighteen months’ experience or more, and holding a second-grade teacher’s certificate or something better would be eligible to the office, but excused persons then holding the office of county superintendent from such qualifications. (Gen. Stat. 1901, § 6099.) In 1903, these qualifications were slightly changed. (Laws 1903, ch. 202.) The standard of qualifications was again elevated in 1907, when chapter 167 of the Laws of 1907 was enacted. That statute reads:
“That a person to be eligible to the office of county superintendent of public instruction must hold a professional certificate, first-grade certificate, or a state certificate, or be a graduate of an accredited college or normal school, and must have taught at least eighteen months: Provided, That this act shall not apply to any persons now holding the office of county superintendent or to any person who is now a county superintendent elect.” (Gen. Stat. 1909, '§ 7379.)
Doubtless the power of the legislature to prescribe qualifications for county superintendents is not yet exhausted; and it might be entirely competent, for example, for the legislature to prescribe that county superintendents should have a reasonable experience in the teaching of rural schools next precedent to their induction into the office of county superintendent. (Gen. Stat. 1909, § 2225; Hanson v. Gratton, 84 Kan. 843, 115 Pac. 646; 29 Cyc. 1376, 1377.)
But here we do not have to consider the qualifications of the officer but the qualifications of those whose suffrages select the officer. The constitution defines the qualifications of voters:
“Every [white] male person of twenty-one years and upwards belonging to either of the following classes — -who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding election —shall he deemed a qualified elector:
“1st. Citizens of the United States;
“2d. Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.” (Const., art. 5, § 1.)
The word “white” was nullified by the fifteenth amendment to the constitution of the United States, March 30, 1870.
“The rights of citizens of the state of Kansas to vote and hold office shall not be denied or abridged on account of sex.” (Suffrage Amendment adopted November, 1912; Laws 1911, ch. 337, §1.)
'The county superintendent is a constitutional officer. Section 1 of article 6 of the constitution, in part, reads:
“A superintendent of public instruction shall be elected in each county, whose term of office shall be two years, and whose duties and compensation shall be prescribed by law.”
Other incidental provisions of the constitution read:
“The legislature . . . shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution.” (Const., art. 2, § 19.)
“The legislature shall provide for such county and township officers as may be necessary.” (Const., art. 9, § 2.)
“All officers whose election or appointment is not otherwise provided for shall be chosen or appointed as may be prescribed by law.” (Const., art. 15, § 1.)
A considerable number of county offices are created by statutes and not by the constitution and it is clearly within the power of the legislature to provide for the election or appointment of all mere statutory officers in any reasonable manner; but it is also clear that where the constitution itself creates the office and provides that the holder of such office shall be elected, the electors defined by the constitution are the voters for such officer and their right of suffrage for that office can not be abridged by the legislature. On this point the authorities appear to be uniform, and none are cited by counsel to the contrary. In 1876, a question arose touching the right of a woman to hold the office of county superintendent, it being argued that there was some coordinate relation between office-holding and voting. This was denied by the court, and it was held that a woman was eligible although she was not then, nor until thirty-six years later, a qualified elector. But in the opinion Mr. Justice Brewer said:
“And in all these cases where the people have restricted their power by prescribing the qualifications of those to make the choice of officers, they can not, except by an amendment of the same instrument, add to or take from those restrictions.” (Wright v Noell, 16 Kan. 601, 603.)
This observation was but an elementary statement of thoroughly established law. In Wheeler v. Brady, 15 Kan. 26, where the question of qualifications of electors of school district officers was under discussion, it was said:
“If said section [Const., art. 5, § 1] applies, then this right to vote .' . . is a constitutional right, which can not be abridged by the legislature, or by any other power except the entire people of the state by way of amendment to the constitution.” (p. 32.)
Elsewhere in the same opinion it was said:
“The constitution provides for two, and only two, elections, to be held by the people, to-wit, general elections, and township elections, (Const, art. 4, § 2;) and it does not anywhere even mention school-district elections or meetings. It provides for, or at least recognizes, the election of various officers; First, all the state officers provided for by the constitution, to-wit, the governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, and superintendent of public instruction, (Const, art. 1, §§ 1, 2, 14;) . . . eighth, county superintendent of public instruction (Const, art. 6, § 1).” (pp. 30, 31.)
In The State v. Monahan, 72 Kan. 492, 84 Pac. 130, where a statute restricting the qualifications of electors for drainage district officers was under consideration, it was said:
“The decision [in Wheeler v. Brady, 15 Kan. 26] was based upon the principle that the constitutional expressions concerning the privilege of voting were intended to apply only to those elections provided for by the constitution itself. . . . It is universally held that the enumeration in a state constitution of the classes of citizens who shall be permitted to vote is to be taken as to all matters within the purview of the provision as a complete and final test of the right to the exercise of that privilege, and that the legislature can neither take from nor add to the qualifications there set out. (15 Cyc. 281, 282, 298; 10 A. & E. Encycl. of L. 573, 576, 577.)” (pp. 494, 495.)
In section 72 of the second edition of McCrary on Elections it is, in part, said:
“The doctrine that the legislature can not add to the constitutional qualifications of voters is founded upon the well settled rule of construction that when the Constitution specifies the circumstances under which a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative interference, to add to the condition or to extend the penalty to other cases. (Cooley’s Constitutional Limitations, 64. Rison v. Fair, 24 Ark. 161.) ”
In Cooley’s Constitutional Limitations, 7th ed., p. 902, it is said:
“Wherever the constitution has prescribed the qualifications of electors, they can not he changed or added to by the legislature, or otherwise than by an amendment of the constitution.”
The case of St. Jo. & Denv. City R. R. Co. v. Buchanan Co. Ct., 89 Mo. 485, is in point. In that case the legislature of Missouri by statute provided that a county might issue bonds to aid a railroad company if the bonds were authorized by a vote of the taxable inhabitants. The constitution" of Missouri had defined the qualifications of electors, and these did not include a qualification contingent on taxation. The court held that the legislature could not engraft additional restrictions upon the constitutional right of suffrage and held the act void.
To the same effect are Opinion of Justices, 117 Mass. 603; The People v. Raymond, 37 N. Y. 428; People, ex rel., Bolton et al. v. Albertson, 55 N. Y. 50; Monroe et al. v. Collins, 17 Ohio St. 665; State v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833; The Sate, ex rel. Wood v. Goldstucker and another, 40 Wis. 124.
In our study of this question we have noticed a distinction between regulation and restriction of the right of suffrage. The registration laws being mere exercise of the police power to regulate and preserve the purity of elections are usually upheld, while statutes restricting the constitutional right to vote are invariably void.
Some minor matters presented may be briefly disposed of. The state is a proper party — indeed the proper party — to bring this action. The state is always interested where the integrity of its constitution or statutes is involved.
“It has an interest in seeing that the will of the legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (The State v. Kansas City, 60 Kan. 518, 57 Pac. 118.” (The State v. Lawrence, 80 Kan. 707, 103 Pac. 839.)
Where the constitutionality of a statute is in doubt, the state’s law officer, its attorney-general or county attorney, may exercise his best judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (The State v. Johnson, 61 Kan. 803, 60 Pac. 1068) ; by mandamus to compel obedience to its - terms (The State v. Dolley, 82 Kan. 533, 108 Pac. 846) ; or by ihj unction to restrain proceedings under its questionable provisions (The State, ex rel., v. City of Neodesha, 3 Kan. App. 319, 45 Pac. 122).
While it is not necessary for the determination of this act, counsel for the state cite many statutes showing that the people of the entire county, those living in cities of the first and second class as well as those in the rural districts, are concerned in the election of the county superintendent of public instruction. The county pays the superintendent’s salary. (Laws 1913, ch. 197, § 5.) The county superintendent has jurisdiction over Barnes high schools. (Gen. Stat. 1909, §§ 7767, 7796, 7797.) This officer has duties pertaining to county levies to aid certain schools. (Laws 1911, ch. 263.) He is president of the board of trustees of county high schools (Gen. Stat. 1909, §7769), with power to make county levies for their support (Gen. Stat. 1909, §7770). He apportions the annual and county school funds to both city and rural school districts. (Gen. Stat. 1909, § 7382.) Many other duties which affect the entire county more or less are imposed on this officer by sections 7430, 7509, and 7763 of the General Statutes of 1909; chapters 263 and 268 of the Laws of 1911; and chapter 300 of the Laws of 1915.
It must be held that chapter 210 of the Laws of 1915 which restricts the right of suffrage for superintendent of public instruction to electors residing outside cities of the first and second class and excludes the suffrage rights of residents of such cities is a clear infringement of the constitutional right of suffrage conferred upon all the qualified electors of the county, and is therefore void.
The writ is allowed. | [
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The opinion of the court was delivered by
Mason, J.:
Danciger Brothers sued D. G. Cooley upon two accounts for liquor sold to him, in one instance by the plaintiffs and in the other by a dealer who assigned the claim to the plaintiffs; and also upon two similar accounts for collections made by him, for the plaintiffs and the other dealer, fromi purchasers of liquor. The defendant pleaded payment of the-accounts for liquor sold to him, and this issue was submitted to a jury, which found in his favor. Upon the other accounts the court sustained a demurrer to the plaintiffs’ evidence. Judgment was rendered for the defendant, from which the plaintiffs appeal.
(1) The controversy regarding payment depended upon what application was made of a remittance by the defendant.'' The defendant’s claim was that he had directed that it should' be applied to the accounts for liquor sold to himself. The plaintiffs contended that no specific directions had been given and that application had been properly made upon the collection account. The court instructed on the law of the matter substantially as agreed to by the parties, and the verdict of the jury is conclusive upon this feature of the case, which is not affected by the legal questions hereinafterdiscussed. This part of the judgment is affirmed, and constitutes an adjudication that the remittance referred to should have been applied first to the personal account of the defendant for liquor purchased by him. If the plaintiffs should finally prevail upon the other branch of the case they would be entitled to a larger recovery thereon to the extent of the amount so applied.
(2) The demurrer to the plaintiff’s evidence upon the other branch of the case was sustained upon the theory that the liquor dealers and the defendant were engaged in violating laws relating to the liquor traffic, that the collections made were the proceeds of such violation, and that the courts will not lend their aid to the apportionment of the profits of the illegal transaction. The claim assigned to the plaintiffs is of the same character in all respects as that which accrued to them originally, and a description of the circumstances out of which the latter grew will be sufficient. The plaintiffs, according to their evidence, were engaged in selling beer and whisky in Kansas City, Mo. They received a number of written orders from customers in Topeka. In each instance they shipped the liquor by freight to their own order, mailing the bill of lading to the defendant, with instructions to deliver it to the person who sent the order, upon payment of an accompanying draft for the price. This arrangement was made because the banks had refused to collect their-drafts. The defendant’s commission for his services varied with the class of goods, but averaged a little over twenty-five per cent of the collections.
If the resulting transactions amounted to the illegal sale of liquor in Kansas, or otherwise violated the penal laws of the ■state or nation, no recovery of the amount collected by the plaintiff can be had. There is a difference of judicial opinion on the question whether one who as the agent or partner of a wrongdoer participates in a contract in violation of law will be required to account to his principal or associate for any pro ceeds of it that have come into his hands. (15 A. & E. Encycl. of L. 1009-1011; 9 Cyc. 557-560; Note, 118 Am. St. Rep. 732-734.) But'in this state the matter is settled by the decision in Alexander v. Barker, 64 Kan. 396, 67 Pac. 829, where it was said:
“The rule is that when persons enter into an illegal contract, and one of them receives the profits or other advantages arising therefrom, the courts will not compel him to account therefor, as in such case the right of the other to a share therein, or to the whole of it, if such were the agreement, would have to be based upon the illegal contract, and to permit him to recover it would be, in reality, an enforcement of the illegal scheme. The law therefore leaves him where it finds him.” (p. 402.)
(3) The defendant suggests that even if the sale of the liquor is regarded as completed in Missouri, it must be treated as illegal because, although the plaintiffs pleaded that the law of that state permits such sales, no proof was offered on the subject, arid in the absence of a showing to the contrary the court must presume statutes similar to our own to have been adopted there. (Bershears v. Nelson, 80 Kan. 194, 101 Pac. 1011.) The general denial of the answer can hardly be regarded as intended to assert that the sale of intoxicating ■liquors is forbidden by the laws of Missouri. The trial court obviously did not put that construction on it or the entire case would have been taken from the jury. The powers of this court on review have been broadened since the decision last cited, by a provision of the present code that “in any case pending before it the court shall render such final judgment as it deems that justice requires.” (Civ. Code, §581; Ratliff v. Railroad, Co., 86 Kan. 938, 122 Pac. 1023.) The -policy of another state with respect to a matter of so much public interest as that relating to the control of the liquor traffic is so widely and generally known that it is hardly to be classed as falling within the ordinary presumption applied to local statutes. The legal questions presented will be considered in the light of the known fact that Missouri is not a prohibition state. However, if the sale was an integral part of an entire transaction in interstate commerce, it would seem to be protected against interference by either state.
(4) The defendant argues that as the plaintiffs shipped the liquor to their own order, and retained control of it until the delivery of the bill of lading, upon payment of the purchase price, the title passed in Kansas, and the sales were made in this state and were therefore illegal. The Webb-Kenyon act (Part 1, 37 U. S. Stat. at Large, ch. 90, p. 699, 4 U. S. Comp. Stat. 1913, § 8739) has no bearing on the case, as it was passed after the claims sued upon had accrued. The Wilson act (26 U. S. Stat. at Large, ch. 728, p. 313, 4 U. S. Comp, Stat. 1913, § 8738) gives a state no power to forbid the shipping of intoxicating liquors by a nonresident seller to a resident purchaser, and its delivery to the latter upon his payment of the purchase price. The interstate character of the transaction is not controlled by the time the title passes or the property ceases to be at the risk of the seller (American Express Co. v. Iowa, 196 U. S. 133), nor by a legislative declaration that the place of delivery and payment shall be deemed the place of sale (Adams Express Co. v. Kentucky, 206 U. S. 129), nor by the fact that the seller has an agent on the ground through whom the delivery is made (Caldwell v. North Carolina, 187 U. S. 622). “The right to send liquors from one State into another, and the act of sending the same, is Interstate Commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and, hence, . . . a state law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the Constitution of the United States.” (Vance v. W. A. Vandercook Company, 170 U. S. 438, 444. See, also, Rossi v. Pennsylvania, 238 U. S. 62.) The Wilson law gave to the state no jurisdiction over liquor shipped in from outside its boundaries, until a delivery to the consignee was effected. (Heyman v. Southern Railway Co., 203 U. S. 270.) The state could not effectively forbid the making and carrying out of an agreement by the plaintiffs with a purchaser to cause liquor to be transported from Kansas City, Mo., to Topeka, and there delivered to him upon payment' of the purchase price. But it does not follow that the methods adopted for the execution of such an arrangement are wholly beyond the reach of state legislation. The power given the state by the Wilson act to forbid the sale of intoxicating liquors, even in the original package, by one to whom they are sent in the course of interstate commerce, would be of little practical effect if the consignee could authorize their delivery by the carrier to some other person. To meet this situation the Kan sas legislature has enacted that one to whom intoxicating liquor has been consigned shall not give to any other person an order on the carrier for it, with the purpose of enabling him to receive it for himself, or for any one other than the consignee. (Gen. Stat. 1909, §4398.) Here the.liquor was not consigned to the purchaser, but to the order of the plaintiffs. Within the meaning of the act cited the plaintiffs were the consignees. By surrendering the bills of lading (presumably with their indorsement) they in effect gave an order on the carrier for the delivery of the liquor to a person to whom it was not consigned.
(5) The state may prevent the sale in interstate commerce of oleomargarine, harmless in itself, and a legitimate subject of trade, if it is colored in imitation of butter, so that it lends itself readily to the perpetration of a fraud. (Plumley v. Massachusetts, 155 U. S. 461.) And it may penalize the possession of game, birds taken outside of the state, notwithstanding a restriction is thereby placed upon interstate commerce, where such a regulation is necessary.to prevent the evasion of local game laws. (Silz v. Hesterberg, 211 U. S. 31.) It may also prohibit the sales of innocuous beverages, because to allow them to be legally sold would impede the enforcement of the laws against intoxicants, on account of the resemblance between them. (Purity Extract Co. v. Lynch, 226 U. S. 192.) By a parity of reasoning it should be held that in the exercise of its police power, in order to prevent a sale of liquor being made under color of a delivery to one who had already purchased it, the state may forbid a transfer by the person to whom it is consigned of the right to receive it from the carrier.
While the Wilson act does not give the local authorities absolute jurisdiction of intoxicating liquors shipped into the state until they are delivered to the consignee, it does affect the rights of the parties to an interstate transaction prior to such delivery. One engaged in interstate commerce may employ a solicitor in aid thereof, whose activities can not be restricted by state legislation. (Robbins v. Shelby Taxing District, 120 U. S. 489.) A dealer is declared to have a constitutional right, notwithstanding the Wilson act, to sell and ship liquor into another state to be delivered to the buyer for his own use, free from state interference, a right which except for congressional action carried with it the incidental right to solicit such business within that state. And yet because of the Wilson act the state may punish the solicitors of such a dealer for taking within its boundaries orders for liquor to be filled in accordance with his constitutional privilege, one of the reasons given for this conclusion being that a contrary doctrine “would be repugnant to the plain spirit of the Wilson act.” (Delamater v. South Dakota, 205 U. S. 93, 99.) We think it would be repugnant to the plain spirit of that statute to hold that the state has no power to prevent one who has shipped in liquor consigned to himself from giving an order to the carrier to deliver it to some one else. The protection that might be given the .conduct in question as an act of interstate commerce is also restricted by the federal statute hereinafter referred to. We conclude that the arrangement entered into and carried out by the plaintiffs and the defendant was in violation of the laws of the state and that no recovery can be based upon it.
(6) The arrangement between the liquor dealers and their Topeka agent involved a violation of the act of congress including these provisions:
“Any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation of any spirituous, vinous, malted, fermented, or • other intoxicating liquor of any kind, from one State . . . into any other State, . . . shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be fined not more than five thousand dollars.” (Part 1, 35 U. S. Stat. at Large, ch. 321, § 239, p. 1136, 4 U. S. Comp. Stat. 1913, § 10,409.)
The defendant collected the purchase price of the liquor in connection with its transportation from Missouri to Kansas. His act was a step in the proceedings by which a transfer of the liquor was effected from the dealer to the purchaser. The interstate character of the transaction is not affected by the question as to when the title passed. But wherever the sale may be regarded as taking place, it was not completed so long as the shipper had the absolute control of the liquor. The transfer of the bill of lading was necessary to its completion. When the defendant collected a draft as a condition to the sur render of the bill of lading he acted as the agent of the seller for the purpose of completing the sale, otherwise than in the actual transfer and delivery of the liquor, and thereby violated the provision of the statute.
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The opinion of the court was delivered by
West, J.:
The defendant was charged with embezzling sums amounting to $47.56 and was convicted of embezzling an amount less than $20. A motion to quash was overruled. A motion to elect between the first and last parts of section 88 of the crimes act (Gen. Stat. 1909, § 2578) was sustained,■ the state standing upon the first part of such section. The information was then amended and refiled, certain parts thereof being ordered stricken out by the court. Another motion to quash was overruled, likewise a motion to discharge the defendant. A motion to direct a verdict of acquittal and another to arrest the. judgment were likewise denied.
The points presented by the appeal are that the information thus affected omitted the words “unlawfully, feloniously and wilfully” and the expression “without the assent of his employer,” or its equivalent. It is conceded by the state that the first expression was inadvertently ordered out, and it is claimed that the omission of the allegation that the embezzlement was without the permission of the defendant’s employer was rendered harmless by other language remaining in the charge, and it is suggested that the defendant having induced the court to strike certain language from the information should not be heard to take advantage of the remainder thereof as insufficient. It is further suggested that nothing was really stricken from the information but certain words indicated by pencil marks were merely ordered to be stricken out, and that at any rate no serious harm was done in view of the minor offense of which the defendant was convicted.
It is to be regretted that any criminal case should be tried upon an information bearing the facial appearance of the disfigured original which is brought up for our examination. It is so difficult to see how the crime of embezzlement can be committed without being unlawful and willful, and if involving more than $20 also felonious, that we do not deem the omission of these adjectives either fatal or seriously material under the circumstances now presented.
The other matter is not so easy. Section 2578 of the General Statutes of 1909 makes it an essential ingredient of the crime that the embezzlement or the conversion to the use of the agent, clerk, or-employee must be “without the assent of his employer,” and while it might seem anomalous, if not absurd, to suggest that such a thing as embezzlement with the consent of the employer could be possible, still the legislature has- so worded this section, and it was said in The State v. Yeiter, 54 Kan. 277, 38 Pac. 320 :
“The defendant can be held criminally liable only for the money or property of the firm which he embezzled or converted to his own use without the assent of the firm.” (p. 283.)
While strictly speaking embezzlement negatives the idea of consent, this is because the very word implies and includes a wrong or fraud against the owner of the fund. But to take, make way with, secrete or convert to his own use money in his hands would not necessarily render an agent criminally liable unless the assent of the owner were'wanting. And when to these statutory terms is added the other of “embezzled” then the entire charge of necessity implies a lack of assent. (The State v. Combs, 47 Kan. 136, 139, 27 Pac. 818; The State v. Patterson, 66 Kan. 447, 449, 71 Pac. 860.)
The rule that the language of the statute substantially, followed is sufficient in an information is too familiar to require citations.
The defendant was convicted of a misdemeanor only, and the majority of the court hold that he was not materially prejudiced by the omission of the express allegation that his acts were without the assent of his employer as the language used bears substantially the same significance
The judgment is therefore affirmed.
Johnston, C. J., and Porter, J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff, a milling company, and the defendant, a surety company, submitted to the district court an agreed case involving the question whether or not the defendant was liable on a bond given to secure the plaintiff against loss through the conduct of an agent. The court rendered judgment for the defendant and the plaintiff appeals.
The agent, who had authority to buy and pay for grain, purchased a carload of wheat and by mistake and without fraud gave the seller the plaintiff’s check for a sum greatly in excess of the price. The check was cashed and the excess was lost to the plaintiff because of the agent’s error. The bond indemnified the plaintiff against loss of money or property sustained by “any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or misapplication” on the part of the agent.
The plaintiff says the words “fraud,” “dishonesty,” “forgery,” “theft” and “embezzlement” are superfluous, because whatever meaning they might have is embraced in the words “wrongful abstraction.” Whatever force the word “wrongful” may have as indicating willfulness and bad purpose is spent on the word “abstraction” and is not carried over to the word “misapplication.” “Misapplication” is wrong application, and the bond should not be interpreted to read “wrongful wrong application.” The word “misapplication” speaks for itself and includes applications merely amiss and not vicious because of moral turpitude. The court is not willing to accept this interpretation of the bond. All the words used should be considered as employed for a purpose, and the collocation should be -taken into account in arriving at their meaning. So considered it is plain the purpose of the bond was to cover all kinds of depravity. Some kinds were named in terms having fixed and definite legal meanings — “fraud,” “forgery,” “theft,” “embezzlement.” In order that other kinds might not sift through this enumeration, words more general in their signification were inserted — “dishonesty,” “wrongful abstraction.” The term “wrongful abstraction” does not sum up all that goes before it but fills some of the gaps in what goes before, and the word “misapplication” was manifestly employed to attain the same end. If this were not true we would have one field of conduct, embracing many varieties, covered with great particularity and in the utmost detail, while another and distinct field, embracing just as many varieties of innocent conduct — error, omission, mistake, oversight, neglect —was covered by a single word, misapplication, which is ambiguous. The word is commonly used to denote use of money or property improperly, illegally or wrongfully in the corrupt sense. Under these circumstances the court concludes the word was inserted to complete the thought and purpose indicated by the preceding words and not to introduce and deal with a new class of acts.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of gambling and appeals.
All the circumstances indicated gambling and the checks which were captured and introduced in evidence were quite corroborative.
The evidence relating to misconduct on the part of a juror was conflicting and the trial court decided in favor of the juror. Accepting his statements as true, his impropriety in suffering himself to be interrogated at all about the case did not amount to misconduct from which prejudice is presumed and no prejudice whatever was made to appear.
The evidence given by the sheriff at the trial of one of the defendant’s associates was not radically different from the affidavit of the county attorney. The facts stated were essentially the same. Conclusions contained in the affidavit depended on the facts, and doubtless the jury drew their own conclusions. The defendant consented that the affidavit might be read. The subsequent evidence of the sheriff was not newly discovered evidence. At most it was merely evidence somewhat at variance with previous evidence of the same witness, and new trials are not granted on that ground. Besides this, the evidence was ample to sustain a conviction without the affidavit.
Misconduct of the county attorney which was not committed needs no discussion. The instruction on the'subject of reasonable doubt was correct.
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 an action brought by Hiram C. Root to recover from the Kaw River Sand Company and others a small tract of land bordering on the Kansas river. On July 12, 1900, Root executed a warranty deed purporting to convey the absolute title of the tract to P. E. Wear for a consideration of $500. At the same time Wear entered into a written agreement to the effect that if Root would pay to Wear not later than October 12, 1900, the sum of $513.75, Wear would re-convey the tract to Root, and that time was of the essence of the contract. On October 12, 1900, for a consideration of $4.25, Wear extended the option to purchase for a period of thirty days from that time, but Root did not avail himself of the option, and on November 27, 1900, Wear notified him that the option to purchase had terminated. It is contended by Root that his deed to Wear, although absolute, in its terms, was given as security for a loan of $500 and that he was still the equitable owner of the tract. The defendants contend that the transaction was a conditional sale and not a mortgage. The trial court found that the agreements to repurchase were not recorded, that Root' at no time paid or offered to pay any money under these agreements, that Wear was in the open and exclusive possession of the tract from the date of the deed until July 8, 1903, when he conveyed the land to the Kaw River Sand Company, and that during his ownership he had paid all the taxes levied against it. It was also found that after acquiring the land the Kaw River Sand Company made valuable improvements thereon without notice of any claim of Root or of the option given by Wear to him for a repurchase of the land. This company began improving the land in 1903, building a sand plant consisting of an engine and boiler house, tool house and other improvements at a cost of about $12,000. These improvements were made with the knowledge of Root, without objection from him and without any claim that he had any title or interest in the land, although he was frequently on the land and in consultation with the officers and employees of the company, The court concluded and adjudged that Root had no interest, estate or lien of any kind in the tract, and that the full legal and equitable title to the land was in the defendants, who constituted the last board of directors and trustees of the Kaw River Sand Company which some time before had ceased to do business. F. E. Wear made no claim of interest in the land, but the Kaw River Sand Company through its board of di rectors intervened and asserted ownership of the tract. The Wear Sand Company and Norman S. Wear were made defendants at the instance of the plaintiff but each disclaimed ownership or interest in the land.
The plaintiff insists that as the Kaw Eiver Sand Company had not complied with certain legal requirements and had become defunct it had no right to appear in court nor to claim ownership of the land. The company appears to have been fully organized and to have transacted business for a time through its officers and agents, and undoubtedly had a legal existence for a number of years. Much of its business was conducted through its selling agent, The Wear Sand Company, but the fact that it acted through an agent does not affect its corporate existence. It appears to have made but one annual report to the secretary of state, and that was done in 1906. Its failure to make, reports or the omission of some other duty enjoined by statute might have justified the exercise of the visitorial power of the state through the medium of the courts, but it gave the plaintiff no right to call the corporation to account for its failure to observe these or any like regulations. The legal existence of the corporation was generally recognized, and its right to do business or its corporate existence was not open to attack by the plaintiff or any other private individual-' (Railroad Co. v. Leavenworth County, 89 Kan. 72, 130 Pac. 855; Murdoch v. Lamb, 92 Kan. 857, 142 Pac. 961.) It appears that the corporation became defunct before the action was brought, but the expiration of its charter or the dissolution of the corporation did not cause a reversion of the land to the plaintiff or other grantors nor affect the right of the stockholders and creditors to the assets of the corporation. (Sword v. Wickersham, 29 Kan. 746.) When the power of a corporation to do business ceases, unless a receiver is appointed, the last board of directors are authorized to settle its affairs, pay its debts and distribute any remaining funds or property among the stockholders. (Gen. Stat. 1909, § 176Ó.) The trustees who intervened were the members of the last board, and they had a right to make a defense against the claims of ' the plaintiff.
The principal controversy in the case is whether the payment of the $500 by Wear to Eoot was intended as a loan, and. whether the deed and contracts to reconvey constitute a mortgage to secure the loan. The deed as we have seen was absolute in form, and the agreement to reconvey was not in the form of a defeasance, and to establish that such a deed is a mortgage it must be shown that it was the understanding and intention of both grantor and grantee that a debt existed, and that the conveyance was only a security for the debt. (Reeder v. Gorsuch, 55 Kan. 553, 40 Pac. 897.) The fact that the agreement to reconvey was made at the same time that the deed- was executed and that both appear to be parts of the same transaction were circumstances tending to support the theory of the plaintiff. This was supplemented by his own testimony, to the effect that he borrowed the money from Wear, and that the papers were executed with the understanding that they were to operate as security for the repayment of the loan. On the other side there is direct and circumstantial evidence that the deed was intended as an absolute conveyance, with an option to the plaintiff to repurchase within a specified time. There is evidence that Wear refused an application of the plaintiff for a loan, and that thereupon the land was sold to him for the money named as consideration with the agreement that he would reconvey within a specified time for the stated consideration. The intention of the parties and the nature of the transaction between them depends upon conflicting testimony. Oral evidence was competent for the purpose of showing the intention of the parties in the transaction. (Saylor v. Crooker, 89 Kan. 51, 130 Pac. 689.) There is sufficient testimony to sustain the finding of the court that, although the deed and agreement were parts of the same transaction, no debt in fact existed, and therefore the deed can not be regarded as a mortgage.
In McNamara v. Culver, 22 Kan. 661, it was said:
“Now that a deed and an agreement to reconvey, though separate instruments, may operate as simply a mortgage, is clear, and that they do not necessarily create one is equally clear. The test is the existence or nonexistence of a debt. And equity looks behind the form to the fact. If the transaction was intended as a loan, if there remains a debt for which the conveyance is only a security, and the collection of which may be enforced independent of the security, equity will hold it a mortgage, no matter whether the transaction is evidenced by one or two instruments. But if there be no debt, there can be no security — no mortgage.” (p. 668.)
In Yost v. Bank, 66 Kan. 605, 72 Pac. 209, the court said:
“It is a settled rule of law that the intent of the parties to a deed, absolute in form, at the time it is executed and delivered, must govern, and that the rights of the parties must be mutual.” (p. 608.)
To make it a mortgage it must appear that the plaintiff or grantor in the deed sustained the relation of debtor to Wear, and that Wear had the right to enforce the payment of the debt. The rights of the parties to the transaction must be reciprocal. There are circumstances outside of the direct testimony that indicate that the parties did not regard themselves as standing in the relation of debtor and creditor, and the finding of the court that they did not occupy that relation is well sustained by the evidence.
Other cases applying to the question of relationship and when deeds of conveyance should be treated as mortgages are, Eckert v. McBee, 27 Kan. 232; Elston v. Chamberlain, 41 Kan. 354, 21 Pac. 259; Martin v. Allen, 67 Kan. 758, 74 Pac. 249; Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On March 5, 1913, W. E. Lockner, being the owner of 148 steers, executed a chattel mortgage upon them for $5200, which was properly filed for record. A week later he sold ninety-nine of them to Ralph Benjamin for $3651.73. Benjamin paid for them by giving a sight draft on a Kansas City commission company for the amount, on which was written the statement that it was “for ninety-nine head of two-year-old steers.” This draft was made payable to the order of Lockner, but without being endorsed by him was handed by Benjamin to the cashier of the Welda State Bank, to which Lockner was indebted upon an overdraft — the result of its having honored the check with which he had paid for these cattle, with others. The draft was paid on the next day, by the bank receiving credit for the amount with its Kansas City correspondent, and it at once applied the proceeds in reduction of Lockner’s indebtedness. Benjamin did not know of the mortgage until about the 13th of the next month, and some sixty days later he was required to pay and did pay $2849.52 to procure the release therefrom of the cattle he had purchased. Lockner was doubtless insolvent at the time of the sale. Upon proceedings begun in the latter part of April, 1913, he was within a few weeks adjudged a bankrupt. On February 16, 1915, Benjamin sued the bank for the amount he had paid the mortgagee, and recovered a judgment, from which it appeals.
No contention is made that the bank knew of the mortgage. The claim against it is based on the theory that, as it applied the proceeds of the draft to its claim against Lockner, parting with nothing of value, and being placed in no worse position by reason of the transaction, its right to retain the money was no stronger than Lockner’s. One who by fraudulent means has been induced to part with the ownership and possession of ordinary personal property may follow it (upon rescission of the' contract by which the title passed, where that is necessary) into the hands of a third person who has obtained it without notice of the fraud, but in consideration only of a preexisting indebtedness. (Schulein v. Hainer, 48 Kan. 249, 29 Pac. 171; Note, 36 L. R. A. 161.) In the case of money, however, a different rule obtains. Although procured by fraud it can not be reclaimed after it has been used to pay an existing creditor who accepted it in good faith. (Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118, and cases there cited; 39 Cyc. 568, 569. See, also, Bank v. Walters, 92 Kan. 391, 140 Pac. 864.) The reason for the distinction has been thus stated:
“It is absolutely necessary for practical business transactions that the payee of money in due course of business shall not be put upon inquiry at his peril as to the title of the payor. Money has no ear-mark. The purchaser of a chattel or a chose in action may, by inquiry, in most cases, ascertain the right of the person from whom he takes the title. But it is generally impracticable to trace the source from which the possessor of money has derived it. It would introduce great confusion into commercial dealings if the creditor who receives money in payment of a debt is subject to the risk of accounting therefor to a third person who may be able to show that the debtor obtained it from him by felony or fraud. The law wisely, from considerations of public policy and convenience, and to give security and certainty to business transactions, adjudges that the possession of money vests the title in the holder as to third persons dealing with him and receiving it in due course of business and in good faith upon a valid consideration. If the consideration is good as between the parties, it is good as to all the world.” (Stephens v. Board of Education, 79 N. Y. 183, 187.)
If the draft is regarded as the property obtained in the present case the bank can not be regarded as a holder in due course under the rule applicable to negotiable instruments, not because it was not a purchaser for value, but because no endorsement was made by the payee. We think, however, the transaction should not be regarded as the purchase of the draft by the bank from Lockner, but as the use of the draft by Benjamin as a means for causing the amount due for the cattle to be paid by the commission company to Lockner, coupled with Loekner’s consent that the money should go to-the bank and be applied on his debt. If Lockner had personally collected the draft and paid the resulting cash to the bank there could be no doubt of its right to retain it against Benjamin. And this is substantially what took place. Lockner in effect authorized the bank to collect the money for him and apply it on his overdraft. The draft, upon its payment, whether that was accomplished by delivering currency to the bank, or by the commission company causing the bank to be-credited with the amount in some acceptable depository, ceased to have any bearing upon the matter; its function had been performed and the situation was the same as though the-actual cash had changed hands. This is an action to recover the money, not the draft. Many of the cases in which the rule-as to the negotiable character of money has been applied were-in fact based upon payments made by check or draft. In a. typical instance the court said:
“We think the, question as to whether the state was a holder of the draft for value or not does not arise in this case. Murray, as county-treasurer, was behind in his payment of the taxes due from Orange county to the state. In order to discharge his obligation he transmits-the draft in question. The state, through its officers, receives it and presents it to the bank upon which it is drawn, and that bank pays it, and the state having- received the money thereby discharges the obligation of Murray, and the taxes due from Orange county are thereby paid. The transaction is closed, and it cannot be that the drawer of the draft that has thus been paid can open up the whole matter, and claim to-recover back the money which the state received in payment of the-taxes due it. If the cashier, instead of. sending this draft, had taken the money directly from the bank and paid the same to the state in. satisfaction for the amount due for the taxes, I think no one would contend that the bank could recover it back from the state on the-ground that the act of the cashier in taking the money was a fraud upon it or even a felony, and that the state had parted with no value at-the time of the receipt of the money. I do not see that in this respect-the case is altered by the interposition of the draft instead of the payment of the money in-the first instance. The state receives in good faith (as we must assume on this point) the written direction of the claimant to a third party to pay the money to the state upon demand, and the-state makes the demand accordingly, and the money is paid and the debt-extinguished. The interposition of the draft makes no difference in principle after it has been paid. It is then the same as if the money had been originally paid instead of an order given for its payment. The.order having been complied with and the original debt thereby satisfied,. the transaction is closed, and may not be reopened on this ground.” (G. N. Bank v. State, 141 N. Y. 379, 384, 36 N. E. 384.)
And in another:
“If Mills, Robeson & Smith, on receiving the check of Ferris & Kimball, had at once collected it and turned it into money, and then had paid that money to the bank in discharge of their debt to it, and the bank had accepted that payment in ignorance of the source from which the money had been derived, and had surrendered the notes and discharged their debtors’ liability in entire good faith, the owner of the stolen money would have had no right of recovery against the bank. (Justh v. Bank, 56 N. Y. 478; Stephens v. Board of Education, 79 N. Y. 183.) This doctrine goes upon the ground that money has no earmark; that in general it can not be identified as chattels may be, and that to permit in every case of the payment of a debt an inquiry as to the source from which the debtor derived the money, and a recovery if shown to have been dishonestly acquired, would disorganize all business operations and entail an amount of risk and uncertainty which no enterprise could bear. The rule is founded upon a sound general policy as well as upon that principle of justice which determines as between innocent parties upon whom the loss should fall under the existing circumstances. If, therefore, Smith had come with the money, and with it had paid his debt over the counter, the amount could not have been recovered by the plaintiff, although admitted to have been actual proceeds of -the stolen certificate. I think the situation was not at all changed because the debtor came with Ferris & Kimball’s check which the bank collected. If Smith had brought that and the bank had' accepted it as cash or conditionally, upon its proving good, the result would have been the .same. The debt would have been paid and the money become the absolute property of the bank.” (Hatch v. National Bank, 147 N. Y. 184, 191, 41 N. E. 403.)
The cases from which these quotations are made are peculiarly applicable here because of the refusal of the New York courts to regard as an innocent purchaser for value one who accepts a negotiable instrument in payment of an existing obligation, without surrendering some security (4 A. & E. Encycl. of L. 288), while giving that standing to a creditor to whom money is paid under similar circumstances. This distinction is pointed out in one of the cases already quoted from in these words:
“It is said that the case is to be governed by the doctrine established in this State that an antecedent debt is not such a consideration as will cut off the equities of third parties in respect of negotiable securities obtained by fraud. But no case has been referred to where this doctrine has been applied to money received in good faith in payment of a debt.” (Stephens v. Board of Education, 79 N. Y. 183, 187.)
It is suggested that the cashier acted as the agent of the owner in regard to the sale of the cattle and therefore that the bank was chargeable with all the facts known to Lockner. The draft was delivered by Benjamin to the cashier in accordance with the direction of the clerk of the sale, which was public. Lockner testified that he left the settlement for the cattle to the bank. The only connection the bank was shown to have had with the sale was in receiving the proceeds at the direction of Lockner. The arrangement seems to have contemplated their application to the overdraft, but no specific authority to that effect was necessary. (Gunn v. Bank, 97 Kan. 404, 155 Pac, 796.) Knowledge on the part of the bank that the draft was given in payment for the cattle had no tendency to charge it with notice of any fraud. It naturally looked to their proceeds for the payment of its claim against Lockner, since he had used its money in paying for them.
The bank seeks to invoke the rule that one who has voluntarily parted with the title to property, although induced to do so by fraudulent representations, can recover it from a third person only after a. rescission of the contract. Because of the views already expressed it is unnecessary to consider what, if any, application might be made of that principle here.
The judgment is reversed and the cause is remanded with directions to render judgment for the defendant, the essential facts not being in dispute. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Early in 1909 the defendant, Lanter, received a shipment of three cars of lumber, ordered by him from the Cummings-Moberly Cypress Company, part of which consisted of 79,500 laths, at $4.40 a thousand. Various amounts had been paid upon the account with the cypress company, the last payment being $996.10 on June 23, 1909, and a balance of $355.80 was still due, which was assigned to the plaintiff, O. H. Johnston. Lanter’s defense was that the laths shipped were not No. 1 cypress, which the company had sold and agreed to ship. It appears that the laths came in bundles of fifty and were unloaded at the defendant’s lumber yard under his super vision, and that thereafter he had disposed of 44,500 in the regular course of business, when complaint was made by some of his customers that they were unsatisfactory. Of this number, 38,850 had been disposed of prior to June, about 8000 having been sold on April 24 to a customer who complained that they had buckled- and pushed the plaster off the wall of his house. Thereafter the defendant discontinued the further sale of them. The testimony as to the kind and quality of the material was conflicting. The jury, after being sent out to their room three times to further deliberate and make more complete findings, returned a general verdict for the defendant and also certain special findings, in which they stated, among other things, that the defendant was personally present and had an opportunity to inspect the laths when they were received ; that they were other than No. 1 cypress, being a mixture of cypress, gum and elm; that the defendant had sold upon the market 44,500 of them, receiving therefor $267; that the defendant made his first complaint to the company about the quality of the laths in June, 1909, and in July and August he informed the company in writing that not all of them were cypress; that of the invoice price there remained due the sum of $355.80; and that on account of the defective laths sold by the defendant to his customers he had sustained damages to the amount of $50. The court, upon the motion of the plaintiff, set aside the general verdict and rendered judgment upon the special findings of the jury for the plaintiff, in effect, that the plaintiff should recover the sum of $195.74, being the contract price for the laths which the defendant had sold, with interest at six per cent from the 23d day of June, 1909, less $50 damages sustained by the defendant, and that the plaintiff was entitled to the laths that had not been sold. Complaint is made by both the plaintiff and the defendant of the court’s judgment upon the findings; the plaintiff contending that the judgment should have been for the whole of the plaintiff’s claim and the defendant insisting that the court should have entered judgment upon the general verdict.
There have been three trials of this case, in each of which the verdict has been returned in favor of the defendant, and twice before the case has been reviewed in this court. (Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719; Johnston v. Lanter, 92 Kan. 257, 139 Pac. 1031.) It is now insisted by the plaintiff that because the defendant was present when the laths were received, he is bound to pay the purchase price and is estopped to question the quality of the laths or to deny liability for the price of the same. The defendant purchased a particular kind of laths and had the right to insist on receiving the kind purchased. The defense is based on noncompliance with the contract, and the jury have found that the laths furnished were not the kind purchased. It is immaterial whether the defense be treated as a breach of condition of sale or of warranty. On the former appeal it was held that it devolves upon one who buys goods to make an early examination of them to determine whether they comply with the contract, and to give notice to the seller of any defects in them, and that this must be done within a reasonable time. What is a reasonable time depends, of course, upon the character of the goods and the openness of the defects. Whether reasonable diligence was used by the defendant in this instance in discovering the defects and giving notice to the seller is a question for the determination of the .jury. (Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719.) This was the rule under which the case was submitted to the jury at the last trial. While the defendant, who was an experienced lumber dealer, was present when the laths were received, it appears that he did not discover the defects for some time afterward. The laths were tied in bundles, and the defects were not easily discoverable. The mere receipt of goods does not necessarily amount to a waiver of defects. The buyer is bound, of course, to exercise reasonable care in the examination of the goods received, but is only charged with knowledge of that which is observable from an ordinary examination. He is charged with knowledge of all such defects as are external and visible, and whether or not the defendant used due diligence to ascertain the quality of the laths, bound up as they were, and gave notice of the defects within a reasonable time, were questions for the determination of the jury. (Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L. R. A. 681; Implement Co. v. Haley, 77 Kan. 72, 93 Pac. 579; Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719; Meickley v. Parsons et al., 66 Iowa, 63, 23 N. W. 265, 55 Am. Rep. 261; Note, 24 L. R. A., n. s., 235; Tiedeman on Sales, § 115.) The instructions given by the court were challenged, but they appear to be in line with the rules laid down in the decision on the former appeal. Although the sufficiency of the evidence to sustain the special findings is questioned, it can not be held that they áre without support.
The defendant complains of the action of the court in setting aside the general verdict in favor of the defendant. This was done because it did not conform with the special findings. The defendant had sold a part of the laths and had received the price of the same. Through the sale of the defective laths he had suffered damages in an amount stated by the jury. The plaintiff was entitled, therefore, to the value of the laths which defendant sold, less the damages which resulted to the defendant because of defects in the laths. The amount received by the defendant for the defective laths sold by him is not in dispute, and he certainly was not entitled to retain the laths and the money received for them. There is a complaint that he was not allowed a sufficient amount of damages, but the jury appear to have allowed all the damages arising from the defects that were proven. One who claims damages on account of a breach of contract must not only show the injury sustained, but must also show with reasonable certainty- the-, amount of damage suffered as a result of the injury. (Linotype Co. v. Printing Co., 61 Kan. 860, 59 Pad 1066.) The laths not sold belong to the plaintiff, and under the decision of the court he is entitled to the possession of them.
We think a just result was reached by the court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
J. H. Oliver, by reason of an injury resulting in the loss of the sight of one eye, recovered a judgment against his employers, George C. Christopher & Son, under the work men’s compensation act, for $1251. The amount was arrived at by deducting $50, for medical service rendered, from allowances for total incapacity for five months, at $6 a week, and for partial incapacity for seven years and seven months additional, at $3 a week. The defendants appeal.
The petition undertook to tell in detail how the accident happened, stating- in substance that the machinery the plaintiff was using was defective, that his injury was due to its defects, and that he was without fault in the matter. The defendants complain of the overruling of a motion to strike out these statements, as having no place in an action for compensation under the statute, and as tending to create prejudice in the minds of the jury, to whom this portion of the petition was known by its having been read by the plaintiff’s attorney in opening the case, and by its having been quoted in the instructions. Matters relating to negligence are of course irrelevant in a proceeding under the compensation act, and bringing them before the jury may in some circumstances be prejudicial. (Ruth v. Witherspoon-Englar Co., ante, p. 179, 157 Pac. 403.) Here the reference to the subject in the pleading was so incidental that the likelihood of its having influenced the jury was small. An instruction was given to the effect that the plaintiff was not required to prove negligence in order to recover, and that his recovery must be based only on his incapacity for work occasioned by his injury. It is true a verdict was returned for $1600, a greater amount than was warranted by the pleadings, evidence and findings. But, as will hereinafter appear, the only vital questions required to be determined by the jury were the duration of the plaintiff’s total disability, and whether there was any permanent partial disability, that is, whether the loss of the sight of one eye was permanent, and if so, whether it impaired his earning capacity. These issues were covered by special findings, which obviously could not have been influenced by the allegations regarding negligence, and the general verdict was properly disregarded. It is manifest, therefore, that no prejudice resulted from the ruling complained of. A copy of the claim for compensation, which was attached to the petition as an exhibit, and which contained a statement that the injury was due to defective machinery, was introduced in evidence over the defendants’ objection. The introduction was unnecessary, as service of the notice had been admitted, but it could not have been prejudicial, for the reasons already indicated.
The petition negatived all the conduct on the part of the plaintiff, such as his willful failure to make use of a protection provided for him, which under the statute (Laws 1911, ch. 218, § 1) would have prevented a recovery. A motion to strike out these allegations was also overruled. They were doubtless unnecessary, as they related to matters of defense, but their presence in the petition could not have affected the judgment.
The jury returned a finding, which is attacked as contrary to the evidence, but which is held to be not without support, that the injury caused a total disability of five months. They also found that during the remainder of his life the plaintiff would be partially incapacitated, and in a separate finding they estimated his future earning capacity at $1 a day. The defendants maintain that there was no evidence to support either of these findings. In a recent case a judgment based on a deduction of fifteen per cent of a workman’s earning capacity by reason of the loss of an eye was reversed (by a divided court) for want of specific evidence in its support. (International H. Co. v. Industrial Commission, 157 Wis. 167, 147 N. W. 53.) In the opinion the character of proof required on that issue is discussed, the court refusing to take judicial notice that in employing workmen to operate machinery preference will be given to those having the use of both eyes. Here the plaintiff testified that since his injury he could not do the work at which he had been employed; that he “could not get the focus”; that he had undertaken work that involved driving nails and had found that his usefulness was impaired because he could not gauge their distance as he could before. This testimony tended to show some diminution in his efficiency. Possibly its effect may have been increased by his appearance. (Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244.) The jury were, therefore, warranted in finding, as they did, that there was some substantial permanent impairment of his earning capacity. Their estimate that it was reduced to $1 a day may be rejected without affecting the judgment. The statute requires minimum allowances of $6 a week during total disability, and $3 a week during partial disability. (Laws 1911, ch. 218, § 11, amended by Laws 1913, ch. 216, § 5; Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413.) The amount of recovery was fixed by the court on this basis.
The defendants produced several witnesses, each of whom had for some time been deprived of the use of an eye, and offered to show by them that their capacity to obtain and perform such work as that at which the plaintiff had been employed had not thereby been diminished. The evidence was rejected. Assuming that it was competent, the ruling is not available as error, because at the hearing of the motion for a new trial no proof was made as to what the witnesses would have sworn to had they been permitted to testify. (Civ. Code, § 307.)
Since the duration of the plaintiff’s total disability and the existence of permanent partial disability are established by special findings which were not influenced by any error that is available on review, and the amount of the judgment was arrived at by applying the law to the facts so established— making the minimum allowances required by the statute — no defect in the general verdict or in the other findings can justify a reversal at the instance of the defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
'The purpose -of these appeals is to procure a review of a judgment of the district court rendered as the result of proceedings directed to be taken by this court on a former appeal. (Epp v. Hinton, 91 Kan. 513, 919, 138 Pac. 576, 139 Pac. 376.)
The original opinion concluded as follows.:
“The cause will be remanded in order that the parties may offer evidence as to what the dry land would have been worth, if its ownership had carried a right to the use of water for its irrigation, the burden of proof being upon the plaintiff. If the decision is that it was worth $125 an acre, the original judgment will stand. If a different amount is found, thefiudgment will be modified accordingly.” (p. 517.)
In a petition for a rehearing the defendants said they had offered no evidence as to the value of the dry land because they felt the plaintiff had not shown the value of the land if it had been irrigable. In view of this fact the following order was made:
“The petition for a rehearing is denied, but it is directed that the district court, upon such evidence as the parties shall offer, shall find the actual value of the land, and what its value would have been had it been irrigable, and render judgment for the difference.” (p. 919.)
At the second trial the plaintiff offered evidence as to the value of the land assuming it to be without water for irrigation. Seizing upon the words in the last order of this court “actual value of the land” the defendants offered evidence that the land was in fact watered by seepage to which a water right might be obtained. The plaintiff rebutted this evidence and the court found for the plaintiff.
The defendants say the plaintiff’s evidence was not responsive to the issue, the actual value of the land. One of the issues at the first trial was whether or not the land was dry— without water for irrigation. That issue was determined in favor of the plaintiff, and it was not the purpose of this court to open it for further investigation. The only defect in the plaintiff’s former proof was as to the value of the land if ownership carried the right to use water for irrigation, and the first order limited the evidence to be taken at the second trial to this subject. The defendants, however, had offered no evidence as to the value of the land as dry land, and the first order was modified to permit the introduction of evidence on that subject. Witnesses might disagree as to the actual value of this dry land. The adjudication, however, that the land was dry was not disturbed, as the language of the second order clearly indicated by drawing the distinction-between actual value and value if irrigable, and the plaintiff had the right to take the opinions of witnesses as to the value of the land assuming it to be dry. The district court heard the evidence that the value of the land was increased by seepage and that it was not, and the finding in favor of the plaintiff is conclusive here.
Nothing else discussed in the briefs requires that, the judgment of the district court be reversed and it is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Counsel for the appellants complains that the opinion (Bank v. Kennedy, ante, p. 51, 157 Pac. 417), referred to the amended sheriff’s return as having been offered in evidence. The counter-abstract so stated, and this was not challenged. (Civ. Code, § 576; Readicker v. Denning, 86 Kan. 79, 80, 119 Pac. 533.) Section 81 relates only to service of summons by publication and not to judicial sales. Counsel states with his usual fairness that “Had appellee offered in evidence amended return of sheriff showing the publication in each and every paper continuously from January 22 to February 23 I would think there could not be any question as to its being legally published.”
He adds that this was not done and that it is not claimed by the appellee that it was done. The counter-abstract was filed March 30. In his reply brief, filed April 1, counsel argued that the sheriff’s return could not overturn the affidavit of the printer, and while attention was therein called to the statement in the abstract that no further evidence than the notice of sale and affidavit was offered, still no other or direct challenge to the counter-abstract was made. The court must examine the proceedings before confirming a sale (Civ. Code, § 500), and the return is certainly a part of such proceedings.
Rule 10a. of this court, considered in the cited decision in Railway Co. v. Conlon, 77 Kan. 324, 94 Pac. 148, has been superseded by Rule 5.
The former opinion will be unchanged. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On the evening of the 3d day of July, 1913, a fifteen-year old boy was seen sitting upon the stone coping along the front of the plaintiff’s yard, and one of the plaintiff’s neighbors noticed that he did not move, and observ ing that his clothes were on fire, she called for help. The plaintiff hearing her call, rushed out into her yard to aid the boy, who was already dead, and when she touched him she received a severe electric shock, causing burns and other injuries on account of which she brought this action. Along the side of the street in front of the plaintiff’s house, and about twelve feet from the coping upon which the boy was sitting, the defendant company maintained its lines of electric wires — one set of wires at the top of a pole about thirty feet above the ground, which carried a current of 2300 volts for lighting houses, and another wire about three feet below the others which carried the current for the city arc lights. After the accident a small wire insulated with silk was found lying upon and over the company’s wires and hanging down to the ground not far from the boy, and it was evident that he had met his death from a current of electricity conducted to him by this wire from the wires above. A small rock was tied at one end of the wire, but no witness had seen any one throw the rock over the company’s wires, and it was not shown how or when the small wire had been placed in that position. The company’s wires had been strung about thirteen years, and during the years the insulation had gradually rotted until in many places the wires were left bare. Much evidence was introduced as to the proper kind of insulation to be used for outdoor wiring such as this. The defendant’s wires had originally been insulated with what is known as weather-proof insulation, which is composed of several thicknesses of braided cotton saturated with asphaltum or some similar insulating solution, and most of the testimony was that this was the kind ordinarily used for outdoor wiring since it resists the action of the weather better than rubber-covered wire. The latter kind has a layer of rubber with cloth insulation material on the outside and is the better insulator of the two when new, but is not adapted to outdoor work as it deteriorates rapidly, due to the rubber hardening and cracking. It appears from the testimony, however, that if the defendant’s wires had been covered with the kind of insulation used ordinarily for outdoor wiring, instead of having bare places where the insulation had fallen off, there would have been little possibility of a person being injured by coming in contact with the small wire placed as it was upon the company’s wires.
The plaintiff secured judgment for $4000 and the defendant appeals, and insists that even if the wires were not properly-insulated the lack of insulation was not the proximate cause of the injury, and also contends that the company was not responsible for the injury,'because the circumstances giving rise to the accident were not such as could have reasonably been foreseen by it. Complaint is also made of the court’s instructions, particularly with reference to the degree of care which the defendant was bound to exercise in maintaining its line, and also of the refusal to grant a new trial on the ground of newly discovered evidence.
Although the principal contention of the defendant is based on a challenge of the evidence, there is but little conflict in it. .It was the acknowledged duty of the defendant to insulate its wires. They were not insulated at the place of contact and had been unprotected for several years before the plaintiff was injured by the escaping current. It appears that the plaintiff was upon her own premises, where she had a right to be, and no one would attribute fault to her for going to the aid of the boy whose clothing was on fire. .The current escaped from the control of the defendant through its neglect. It is clear that if the defendant’s wires had been properly insulated the plaintiff would not have been injured. Notwithstanding the existence of these facts, the defendant contends that the injury was not the result of its negligence, as it had nothing to do with throwing the small wire over its own wires and had no knowledge that it had been brought into contact with its wires. It is insisted that the proximate cause of the injury was not the unprotected wires, but that it resulted from the interference of meddling boys whose acts in throwing the small wire over the defendant’s wires could not reasonably have been forseen by it.
Attention is called to Green, Appellant, v. West Penn. Rys. Co., 246 Pa. St. 340, 92 Atl. 341, L. R. A. 1915 C, 151, where boys found a spool of fine wire and after having attached a stone to one end of it, threw it over an uninsulated feed wire of the railway company which carried a heavy current of electricity, and left it hanging close to the ground. Another boy, who had been told that he could have the hanging wire, took hold of it and was fearfully burned and crippled for life. The court assumed that the company was negligent in not protect ing its own wire by insulation, and stated that the company was bound to know that children are apt to play with wire and to expose themselves to danger incident to such wires, and should provide against it; but after taking these positions, decided that the company was not required to safeguard its wires from such a contact and occurrence as happened there, as it could not have forseen that boys might throw wires over its own.
The court of appeals of Missouri ruled that an electric light company which had negligently maintained uninsulated wires over which boys had thrown a wire that was subsequently touched by a traveler who was severely injured was not responsible for the injury and this holding was upon the theory that although the company was negligent in turning loose a deadly current, the act of the boys in throwing the wire over its own could not have been foreseen and that it was their act rather than the act of the company which was the proximate cause of the injury. (Luehrmann v. Gas Light Co., 127 Mo., App. 213, 104 S. W. 1128.) Other cases supporting the contention of the defendant are. Brubaker v. Electric Light Co., 130 Mo. App. 439, 110 S. W. 12; Kempf v. Spokane & Inland Empire R. Co., 82 Wash. 263, 144 Pac. 77, L. R. A. 1915 C, 405.
It is conceded that a party who conducts so1 powerful and destructive an agency through the streets of a thickly populated part of a city is bound to exercise a degree of care commensurate with the dangerous character of the agency to protect those who may come in contact or even in close proximity with its wires. The highest care and utmost caution should be exercised for the safety of the public, including those engaged in business or play, and for the protection of thoughtless, curious and inexperienced children, as well as those who have reached maturity. (Electric-light Co. v. Healey, 65 Kan. 798, 70 Pac. 884; Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807; Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; Litsch v. Electric Co., 95 Kan. 496, 148 Pac. 632; Harrison v. Kansas City Electric Light Co., 195 Mo. 606, 93 S. W. 951, 7 L. R. A., n. s., 293.) To secure protection as against electric wires of dangerous voltage, it is essential that they should not only be safely placed but should be carefully covered with insulation to prevent the escape of the destructive current. Even' ordinary care requires that the current should be confined, and,, besides, the ordinance of the city granting the defendant the privilege of stringing its wires along the streets of Leavenworth provided that it should use every reasonable protection to avoid danger or injury to others. The defendant’s wires were insulated when the line was first constructed and were safe as against casualties such as befell the plaintiff, but the defendant failed to maintain these wires in that condition. It was a continuing duty of the defendant to keep its wires insulated, but it appears that the insulation had been broken and the wires had been partly bare for a long time. The defendant, therefore, must have known that the wires were uncovered, and the electric current unconfined at the place in question. As a result of its negligence in turning loose the deadly current in a busy section of the city, the plaintiff, to whom no fault can be attributed, was injured. Notwithstanding its acknowledged negligence and the resulting injury, defendant insisted that it should not be held responsible for the injury, as the placing of another wire in contact with its wires was something which it was not obliged to anticipate, and against which it was under no duty to guard. We can not agree with this view. The highest cafe and utmost caution imposed by the law upon those handling this destructive' agency require a sharp and searching inquiry into the occurrences and accidents that are not unlikely to happen from uninsulated high-voltage wires, and they should take into account the acts of children, of strangers, as well as the probable results of storms and high winds. The mere fact that the intervening act of another contributed towards the injury does not relieve the defendant of the responsibility for thé original negligence of leaving the wires uncovered. (Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807.)
In Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, it was said that “mere intrusion of an intervening agency does not. always excuse the original wrongdoer.” (p. 272.) There the powder company left .nitroglycerin near the place where it had been used. A workman fearing that it might injure some one and for greater safety took it and placed it in a stone fence of an abandoned graveyard where it was found by boys who were injured by it. It was held that although there was in tervention of a responsible person in putting the nitroglycerin where it was found, it did not exonerate the company, the original wrongdoer, from liability for injury to the boys who found and were injured by the explosive. It was further determined that according to the usual experience of mankind the intervention and the result were occurrences to have been anticipated and against which the company should have provided. If accidental contacts with the unprotected wires or contacts which occur through the act of third parties, either adults or children, are not within reasonable anticipation there is little if aipy reason for insulation of wires which are placed thirty feet above the ground. What is the necessity for insulating wires hung beyond the reach of any one ? It is surely not alone required for the protection of employees who may have to handle them. /These were not the only ones for whom the law requires such protection. Insulation is required largely because the uncovered high-voltage wires are a menace to the public through contacts of an accidental character or by the thoughtless action of third parties or through the acts of children. Occurrences of this kind happen often enough in a thickly settled community to admonish those in control of such wires to cover them and provide against such interventions and contacts. All know the proclivities of children to play and experiment with wires, or to fly kites so that the string or wire controlling them frequently becomes entangled with overhead wires in cities. Through such attachments the electric current may be conducted in dangerous voltage to the ground and within reach of persons passing along the streets or other places where they are entitled to go. Current may be carried from these high-voltage wires not only by wire or metal appliances of various kinds, but if the limb of a tree, the string of a kite and certain wooden appliances are wet th,ey, too, will serve to conduct the destructive current to the ground and imperil those who come within reach of such things. Boys may be subjected to the peril of the deadly agency while climbing trees or upon buildings which stand near where such wires are placed and thus get into the danger zone. Because these and like contacts happen frequently and are so likely to occur with serious resulting injuries the law requires the covering of the dangerous wires even though they be strung high and can not be reached except through the acts of other parties or some other intervening agencies. Whether or not the company should have anticipated such contacts with its uninsulated wires was fairly a question for the determination of the jury.
In Electric-light Co. v. Healy, 65 Kan. 798, 70 Pac. 884, the company placed its uninsulated wires along the ends of timbers outside of a balustrade or iron railing of a bridge, and a boy who climbed over the railing came into contact with the unprotected wires and was killed. In that instance there was no intervening agency, but it was held that the company was bound to know that boys in the buoyancy of sport and lacking the discretion of older years, were liable to venture into dangerous proximity to the negligently kept wires, and that as the company had knowledge that the wires were uninsulated it was responsible for the death of the boy.
Upon the question of the occurrences a company maintaining unprotected wires is bound to anticipate, the case of Temple v. Electric Light, Etc., Co., 89 Miss. 1, 42 South. 874, has a bearing. There the company strung its high-power and uninsulated wires through a tree which had low branches. A boy climbed the tree and while playing among the branches came into contact with the wires and was injured. It was contended that the company could not reasonably have anticipated that boys would climb the tree and reach its wires; but the court ruled that as the company was bound to exercise the highest measure of care in controlling the deadly agency, it should have foreseen and made provision for such an incident, saying:
“The immemorial habit of small boys to climb little oak trees filled with abundant branches reaching almost to the ground is a habit of which corporations stretching their wires over such trees must take notice.” (p. 8.)
Another case touching the question of the probabilities to be anticipated is Pierce v. United Gas and Electric Co., 161 Cal. 176, 118 Pac. 700. The action was brought to recover for the death of two boys who in playing brought a loose wire into contact with a high-power wire that was uninsulated. The loose' wire which hung from a pole and had at one time been used, was harmless unless brought into contact with an uncovered high-voltage wire. One of the boys made a swing of the loose wire and while swinging brought it into contact with the live wire and received a shock. He told his companions of this and some of them being curious about the sensation tried the experiment. One of them fell dead with the wire in his hand and his brother who jumped to his rescue was also killed by the current. The court held that the maintenance of the dangerous contrivance in a place to which children might be expected to go was negligence, and that the question as to whether the company might reasonably have anticipated that the loose wire might be brought into contact with the live wire by boys, was one for the determination of the jury.
In Labombarde v. Chatham Gas Co. and City of Chatham, 10 Ont. L. Rep. 446, a loose guy wire had been thrown by some unknown person over high-power wires and another came into contact with it and was injured. The court said:
“If the actual throwing of the loose guy wire over the other wires were the act of some passer-by, who thought thus to put it out of the way, or even of some mischievous urchin, it seems to me such a likely and probable thing to happen that it i's not too remotely connected with the act of cutting the guy wire from its fastenings and leaving it loose on the ground to render those guilty of the latter negligence liable for the consequences which ensued though an independent agency had intervened as their immediate cause.” (p. 448.)
A case touching the question before us is Card v. Wenatchee Valley Gas and Elec. Co., 77 Wash. 564, 137 Pac. 1047. There an electric-light company left a high-tension wire, which extended over the land of another, uncovered. The owner of the land, in handling an iron pipe, happened to bring it into contact with the wire of the company, which was seventeen feet above the ground, and he was killed. The court, after commenting on the high degree of care to be exercised by those transmitting the deadly current through the community, remarked:
“It seems to us it is not so much a question of what particular incident might occur to bring a person in contact with the wire; but whether a person, following his usual avocation where he has a right to be, might in any manner be brought in contact with the wire. It seems to us, in view of the deadly character of this powerful current, the high degree of care required of appellant in its maintenance, and the fact that it was suspended over the land of deceased at the height of seventeen feet, the jury might well conclude that appellant was bound to anticipate occurrences of the nature here involved.” (p. 569.)
There is much conflict in the authorities as to the responsibility of those who negligently conduct electric current in places where people are expected to go and where children are likely to play, and just what occurrences or risks the negligent company is bound to anticipate. While the supreme court of Pennsylvania, as we have seen, in Green, Appellant, v. West Penn. Rys. Co., 246 Pa. St. 340, 92 Atl. 341, L. R. A. 1915 C, 151, held that the company was not responsible for an injury to boys who threw a wire over an uninsulated power wire because the act of the boys was not one to be foreseen by the company, but the same court in Mullen v. Wilkes-Barre G. & E. Co., 229 Pa. St. 54, 77 Atl. 1108, held that a boy who climbed into a tree through the upper branches of which uninsulated wires of the company passed, and was injured, was entitled tó recover for the injury. There the defective insulation had existed for about six months, and it was known to the company that children played near the tree. The court rejected the theory of the company that the children were trespassers to whom it owed no duty, and held that as it knew children were liable to be in proximity to the wires it should have kept them in condition to avoid danger. In the syllabus of the case it was stated that “a company which uses such a dangerous agent, as a wire charged with an electric current, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable, to avoid injury to every one who may be lawfully in proximity to its wires, and liable to come accidentally or otherwise in contact with them.”- (Syl. ¶ 2.)
The case of Luehrmann v. Gas Light Co., 127 Mo. App. 213, 104 S. W. 1128, decided by an intermediate court, held that the placing of another wire in contact with the high-tension wire by boys in play could not have been foreseen by the company and was not the proximate cause of the injury. In a case before the supreme court of that state, a high-tension wire had been left in an uncovered and unsafe condition, and a boy with an inclination to experiment with electricity attached a wire to the defective wire of the company and brought it down to the ground near the steel cables of a swing in the yard. The father of the boy, in passing, took hold of the swing and was instantly killed. Here there was an intervening agency by the act of a boy of immature mind. The court held it to be settled law that “ ‘a defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God, or with an inanimate cause, and became a part of the direct and proximate cause, although not the sole cause’ (Newcomb v. N. Y. C. & H. R. Ry. Co., 169 Mo. 409, 422, et seq., and cas. cit.) ” (p. 623.), It was further held that an electric-light company which negligently permits its current to be grounded can not escape liability for the death of one who innocently comes in contact with it at a point where a stranger has made another ground, on the theory that the particular injury could not have been anticipated by any reasonable man. (Harrison v. Kansas City El. Light Co., 195 Mo. 606, 93 S. W. 951, 7 L. R. A., n. s., 293. See, also, Finch v. City of Ottawa, 190 Fed. 299; Caruso v. Troy Gas Co., 153 App. Div. 431, 138 N. Y. Supp. 279; Note, 52 L. R. A., n. s., 587.)
There is some complaint of the instructions given by the court, but the parts challenged are in accord with the views that we have taken, and the defendant at least has no cause to complain of any of the instructions. Some complaint is made of the ruling denying the motion for judgment on the special findings, but there is nothing substantial in the complaint nor in the objection to the ruling refusing to grant the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In a petition for a rehearing it is argued that the decision is in conflict with one which had been rendered a few weeks earlier by tke United States supreme court (Rosenberger v. Pacific Express Co., 241 U. S. 48). That case has been examined and is not regarded as fatal to the validity of the Kansas statute relied upon in the original opinion (Gen. Stat. 1909, § 4398).
The plaintiffs also strongly urge that the federal statute of 1909, which this court regarded as penalizing the transactions on which the action is founded, is not open to the construction given it, and ask a rehearing in order that the question may be further argued. The motion itself includes a full and able presentation of the matter, setting out in detail the various decisions and administrative rulings relating to it, and a further hearing is not thought to be necessary. The section under consideration reads:
“Any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State . . . into any other State, . . . shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be fined not more than five thousand dollars.” (Part 1, 35 U. S. Stat. at Large, ch. 321, § 239, p. 1136, 4 U. S. Comp. Stat. 1913, § 10,409.)
The federal court of appeals for this circuit has held that notwithstanding the act in terms relates to the conduct of common carriers “or any other person,” it should be interpreted, by applying the principle relating to the use of associated words, as excluding “all persons who are not members of the general class of carriers.” (First Nat. Bank v. United States, 206 Fed. 374, 378.) The decision there appealed from had been to the contrary, and one of the three judges who heard the case on review dissented. The opinion of the reviewing court, the dissenting opinion (p. 380), and the opinion of the trial court (United States v. First Nat. Bank, 190 Fed. 336) present the arguments on each side of the question so fully that no detailed discussion seems necessary. The general purpose of the act was of course to prevent evasions of local laws for the regulation or suppression of the liquor traffic. The history of its enactment, as stated by Judges Amidon and Trieber, shows that the method of doing business employed in the present case was in fact one of -the very abuses against which it was directed. The majority opinion is avowedly based upon a strict construction adopted because of the penal character of 'the statute, and because of the practical consequences of its literal enforcement. One reason it assigns for the conclusion reached is that, as the mischief at which the statute was leveled existed only in the states wherein the sale of liquor was prohibited, it is “incredible” that congress by the language used intended “to strike down this method of collection for the sale of liquors transported in interstate commerce in all the states, in the large majority of which the manufacture and sale of intoxicating liquors were not prohibited.” (First Nat. Bank v. United States, 206 Fed. 374, 378.) This quantitative argument takes no account of the. extensive districts in which sales of liquor are forbidden under local option laws, or of the possibility that congress may have anticipated the increase of state-wide prohibition that has actually taken place, so that at the present time the “dry” territory of the country exceeds in area the “wet” in the proportion of at least four to one. (See Map,. 112 Outlook [Jan. 19, 1916] 120.) The preponderance of expressed opinion against giving effect to the letter of the statute appears to be due to an estimate of the importance of preserving the right to sell intoxicating liquors by means of drafts attached to bills of lading, in which this court does not share. In our judgment the act, notwithstanding its penal character, should be reasonably construed with a view to carry out the purpose for which it was enacted. Unless the federal supreme court gives it a different interpretation we shall adhere to that adopted in the original opinion.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Mason, J.:
William H. Strohm obtained a beneficiary certificate in the Modern Woodmen of America. Thereafter he became a lineman for an electric-light company, and met his death through contact with a live wire while in that employment. The by-laws contained a provision that engaging in such an occupation by a member should exempt the society from liability on account of his death directly traceable thereto. His mother, the beneficiary, brought an action upon the certificate. The society defended upon the ground that it was released from liability by the fact that his death was due to his engaging in the hazardous occupation referred to. The plaintiff relied upon a waiver of the right to defend upon that ground. She recovered a judgment and the defendant appeals.
It is argued that a waiver resulted from the receipt of dues with knowledge of the fact that the member had entered the dangerous employment. Inasmuch as his engaging in a hazardous occupation relieved the company from liability only in case the member came to his death by reason of it, he had a motive in keeping up his dues as a protection to the beneficiary in the event of his dying from some other cause, and their receipt by the society with knowledge of his change of employment could not result in a waiver of any of its rights. (Note, 27 L. R. A., n. s., 446; Modern Woodmen of America v. Weekley, 42 Okla. 25, 139 Pac. 1138.)
The verdict was obviously based on the theory that a waiver resulted from the conduct of the society after the member’s death. The head clerk sent to the local clerk blank forms for use in presenting a claim against the society, which were delivered to the attorney of the beneficiary and used for that purpose. The jury found specifically that at the time they were sent the society knew the cause of the death. This finding was based on the testimony of the local clerk that he made a written report to the head clerk in which he “supposed” he stated.that Strohm had been killed by coming in contact with a live wire while working as a lineman for the electric-light company. Notice to produce the report was served upon the society, but was responded to by a statement that it had no such paper, excepting an official report by the local clerk, which was produced, and which appears not to have been the one referred to. The jury also found that the blanks were not delivered upon the request of the plaintiff’s attorney, but upon that of the head clerk. The evidence was that the attorney asked the local clerk for them. It is argued in support of the finding that the delivery was made by request of the head clerk that a by-law prescribed this procedure. The by-law referred to, however, concludes with the sentence: “The only duty to be performed by the Camp. Clerk under this section is to deliver said blank forms for proofs of the death of the member to said beneficiary or beneficiaries at the request thereof.” However, we do not regard it as material whether or not the blanks were delivered in response to a request for them. In either event they were, of course, furnished with the expectation and understanding that they were to be used. No demand or request for their execution was made by the society. There was evidence that the plaintiff incurred the expense of an attorney’s fee in the preparation of the proofs. The question for determination is this: Was it the duty of the society, if it intended to resist the payment of the policy on the ground that the death had taken place under circumstances then known to it, which relieved it from liability, to give some expression to that intention at the time it furnished the blanks to be used in making proofs in support of a claim against it? The test is whether the conduct of the society was such as to induce in the mind of the beneficiary a reasonable belief that the claim might be paid, notwithstanding the death was not one for which, under the bylaws, it was liable. The general doctrine is that a known, breach of condition is waived by inducing the claimant to go to trouble and expense for the purpose of perfecting his claim. . (Insurance Co. v. Allen, 69 Kan. 729, 77 Pac. 529; 2 Bacon’s Benefit Societies and Life Insurance, 3d ed., § 435; 3 Cooley’s Briefs on the Law of Insurance, p. 2748; 29 Cyc. 198.) The •question is whether the mere furnishing of blanks can be regarded as such an inducement.
In Burnham v. Interstate Casualty Co., 117 Mich 142, 75 N. W. 445, it was held (two justices out of five dissenting) that the supplying to a beneficiary, upon request, of blanks for proofs of death, the preparation of which entailed expense, accompanied by a mere general statement that this should not be deemed a waiver, precluded an insurance company from interposing a defense based on the failure of the insured to give notice of additional insurance. There, however, the company not only failed to indicate a purpose to rely on that particular defense, but foreshadowed a reliance upon an .entirely different one — a circumstance that is referred to in a later case as a ground of distinction. (Showalter v. M. W. of A., 156 Mich. 390, 396, 120 N. W. 994.) On the other hand, the mere furnishing of such blanks has been held not a sufficient basis of waiver. (Elhart v. Pacific Mutual Life Ins. Co., 47 Wash. 659, 92 Pac. 419. See, also, Tuttle v. Association, 132 Iowa, 652, 104 N. W. 1131; Loesch v. Union Casualty & Surety Co., 176 Mo. 654, 75 S. W. 621.) A different situation arises where the company requests the submission of proofs, or in any other way gives affirmative encouragement to the prosecution of the claim. In Modern Woodmen v. Taylor, 67 Kan. 368, 71 Pac. 807, the plaintiff presented the question here involved, under somewhat similar conditions, saying: “Instead of standing upon these defenses, which they claim to have known of long before his death, the society required the beneficiary to go to the trouble and expense of making proof of a fact which, in view of. the defenses now alleged, would be as vain an act as one could possibly require.” (Brief and Argument of Defendant in Error, p. 14.) In the opinion pf the ceurt it was said:
“We do not think that the requiring of proofs of loss after the death of Taylor constituted a wavier by the order of any of its rights under the certificate or by-laws.” (p. 375.)
Each of the blanks furnished by the society was headed by a statement, under the caption “Take notice,” to the effect that the supplying or use thereof should waive none of its rights to deny liability. The beneficiary’s personal statement of her claim concluded with the-words, “I further state that . . . when said blanks were executed I understood and now further agree that the execution thereof, or any demand made therefor, . . . shall not be construed or considered as a waiver of any right of said society to deny its liability under the said benefit certificate.”
The situation is not one which gave the society an option to' declare a forfeiture. The provision exempting the society from liability for a death caused by engaging in a prohibited occupation was self-executing. The denial of a right to recover on account of such a death does not result from a forfeiture in such sense as to be the occasion of any especial readiness in granting relief from it. A death resulting from pursuing a specified dangerous calling was not one that was insured against.
We conclude that the established facts do not constitute a waiver nor justify the finding of a waiver, and that therefore no recovery can be had on the certificate.
.'The judgment is reversed and the cause remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the defendant, the sheriff of Washington county, for damages for the conversion of certain goods, wares and merchandise. The jury found for the ■ defendant, and the plaintiff appeals.
The plaintiff owned a general stock of merchandise at Washington. He shipped the dry goods to Nebraska, but béfore they left Washington the sheriff levied upon them under a tax warrant. Finding, however, that the remaining stock had not been removed, he released the levy upon the dry goods and levied upon the grocery stock at the store. It is claimed that the plaintiff stated that he was about to move his goods out and that the assessor had better get them assessed before he collected the tax thereon; that the assessment was made and returned to the county clerk, who certified it to the treasurer, who in turn, under section 9240 of the General Statutes of 1909, levied a tax and issued a tax warrant to the sheriff, who demanded payment of the plaintiff, which was refused, and then executed the warrant.
Complaints concerning the admission of evidence are found to be without substantial merit.
Much contention is made as to whether or not the requirements of section 9238 were complied with, which section provides that when one is about to remove his property from the county after it has been assessed and before the taxes thereon have been paid, without leaving sufficient remaining for their payment, the tax shall at once become due and payable, which fact shall be determined by any court of competent jurisdiction, and which further provides that the county treasurer shall forthwith issue a tax warrant. It is argued that the plaintiff did not fail to leave sufficient goods to pay the taxes, which fact is apparent from the overplus returned to the sheriff after the sale. Some discussion of the applicability of section 9236 also appears, and it is claimed that the trial court erred in charging the jury without any reference to the retention of sufficient property for the payment of the taxes. This matter was not mentioned in the instructions, but aside from this they were very favorable to the plaintiff.
It is not deemed necessary, however, to determine these questions, for the reason that the defendant pleaded and proved that he acted under a tax warrant, fair on it face, and under the authorities this relieves him from liability for the damages to the plaintiff, there being no showing of malice or wantonness in the execution of the process.
Section 2196 of the General Statutes of 1909 requires a sheriff to “serve and execute according to law all process, writs, precepts and orders issued or made by lawful authority and to him directed.” In Allen and Barton v. Corlew, 10 Kan. 70, it was held that a process, regular on its face, issued from a court for the jurisdiction of the subject matter, protects an officer in executing it. In The State v. Hinchman, 74 Kan. 419, 37 Pac. 186, in discussing the action of officers in serving a warrant, it was said:
“If the process were technically legal, but the constables were not acting in good faith under it — were actually abusing it — they were trespassers. If they were acting in good faith their attitude was made the same as if the process were legal, even though invalid.” (p. 422.)
It was held in McClenny v. Inverarity, 80 Kan. 569, 103 Pac. 82, that an officer is protected by valid process when he uses it for a legitimate purpose in executing its mandate. Numerous authorities were there cited. (See 2 M. A. L. 65, 66.)
“By the weight of authority a collector of taxes who acts under the authority of a warrant or other process which is duly issued and regular and sufficient on its face is protected thereby against everything except his own fault or illegal conduct; and neither an illegality in the tax itself nor defects in the levy or assessment nor a want of jurisdiction over the particular person or property will expose him to liability as a trespasser.” <37 Cye. 1211.)
(See, also, Sprague v. Birchard, 1 Wis. 397, 60 Am. Dec. 393; 1 Cooley on Taxation, 3d ed., p. 797 et seq.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
O. R. Wilson instituted proceedings for the purchase from the state of a tract of land claimed by him to have been originally an island in the Arkansas river. The district court, on the motion of other claimants, dismissed the case upon the ground that he had failed to comply with the statute. He .appeals.
The plaintiff settled upon the land on August 23, 1912, and filed an affidavit of such settlement with the county clerk. At that time all islands in navigable streams were open to settlement as school land under the ordinary procedure, no steps being required peculiar to this character of cases. (Gen. Stat. 1909, §§ 7646-7658, 8202.) He remained continuously in possession, but took no further action in the matter until after “the enactment of a new law, which left open to settlement only such tracts as had been actual islands within twenty years, and contained these provisions:
“Any person who has heretofore settled upon any such island or any part thereof, under the provisions of the said act to which this is amendatory, but who has not made proof and received a' patent therefor from the state of Kansas, or any person who may hereafter settle upon any such island or any part thereof, under the provisions of this act, shall at his own expense have an accurate survey of the lands intended to be appropriated by him under such settlement, made by the county surveyor of the county in which such land is situated, a plat of which said survey, together with a statement by the said survey of all relevant facts as to-the character of the soil, the boundaries and location of said tract, and the nature and flow of the water in the stream which 'surrounds the same, and a voucher that the fees of such surveyor have been paid, which shall be filed with the affidavit of settlement, with the county clerk of the county in which said land is situated.
“Any person who has heretofore settled, or shall hereafter settle upon any such island or a part thereof, for the purpose of purchasing the same as school land, shall within four months after such locating and settlement, or within four months after the taking effect of .this act, present his or her affidavit of such settlement, and the plat or survey, and statement and receipt of the county surveyor as provided in section 1 hereof, to the county clerk of the county in which such island is situated, and shall at the same time furnish a bond running to the state of Kansas, signed by one or more sufficient sureties to be approved by the said county clerk, conditioned that such settler shall pay all costs and damages that may be awarded against him or her in any of the subsequent proceedings relating thereto, in case it shall be finally determined that such claimant was not entitled to purchase such tract as school land.” (Laws 1913, ch. 295, §§ 1, 2.)
On October 22, 1913, the plaintiff filed a new affidavit, alleging a settlement on that day, with a plat of a survey made in September, 1912, by the county surveyor, who in the meantime had ceased to hold that office. On February 18, 1914, he filed a bond. The provision of the statute that one who had already settled upon island land for the purpose of purchasing it should file his affidavit, plat and bond within four months from the date of its enactment was not complied with. The plaintiff’s theory is that so long as he invoked no benefit from his earlier occupation he had a right to consider his settlement as beginning at any time he should see fit to designate. Such an interpretation would defeat one of the apparent purposes of the act — thp early determination of the title to land already settled on. It would also leave the occupant in a position to- postpone at his pleasure the commencement of the four-months period of limitation, provided he exercised sufficient watchfulness to prevent some later settler from making an earlier filing. Whether the delay in acting under the new statute would of itself have been fatal need not be determined, for its provisions were in other respects ignored.
The land claimed by the plaintiff was described in his affidavit merely as “Island land adjacent to Sections number 34, 35 and 36,” in a designated township. The plat which he filed was a map of the portion of these sections lying north of the river, indicating the location of the bank as shown by the government survey, and also as it existed in September, 1912, some distance to the south. The survey on which it was based was made prior to the passage of the statute requiring it, and a year before the time relied upon as that of the settlement, by one who had at that time ceased to be the county surveyor. No attempt was made to comply with the provision of the statute requiring “a statement by the said surveyor of all relevant facts as to the character of the soil, the boundaries and location of said tract, and the nature and flow of the water in the stream which surrounds the same.” (§ 1.) The obvious purpose of the legislature in making this requirement was that the county surveyor should give all the information obtainable by an inspection at the time of the survey that would help to determine whether an island existed at the point of settlement, or had existed within twenty years prior to the enactment, and if so, its position and size. The plat merely showed the location of the river in 1912, without undertaking to distinguish the tract occupied by the settler from any other part of the mainland. The line indicating the former position of the bank did not signify that traces were still visible showing that the river bed had at one time extended that far to the north. Its location was determined by the distance of the river at various points from the east and west section line, as recorded by the government surveyors. Nothing in the documents filed by the plaintiff showed the extent of the tract to which he made claim, unless upon a presumption that he regarded as “island land” all that lay between the original banks of the stream, including accretions to the mainland. We conclude that the steps taken fell so far short of a compliance with the terms of the statute, which alone gave the plaintiff any standing in court, as to justify the order of dismissal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff attended a circus, occupying a seat from which she in some manner fell and broke her arm, and brought this action to recover damages. She alleged, in substance, that the seats were constructed upon a framework upon which boards were arranged above one another, frames or boards being placed underneath at convenient distances for support; that the board upon which she sat was lapped upon another, “and that the ends of the two boards had nothing whatever beneath them for support; that the other patrons of the show sitting upon the other ends of each of said boards held them in position so long as they remained upon said boards; that said plaintiff had no knowledge of the condition of said board or seat and that she believed the same to be safe; that at the close of the performance aforesaid, some parties sitting upon the opposite end of the board which she occupied, not knowing of any lack of support, arose and started to leave the show; that thereupon the seat which plaintiff occupied sank down and she fell a distance of twelve feet upon the ground.” She recovered, and the defendant appeals.
It is contended that the verdict is not sustained by the evidence and special findings, and that error was committed in refusing a new trial because of newly discovered evidence. The findings, aside from the general questions of negligence and contributory negligence which were decided in favor of the plaintiff, were to the effect that the injury was caused by the board upon which she sat falling, and that she did not fall when standing or attempting to stand upon the board next to the one she had been sitting on.
“13. Did the plaintiff sit upon or near the end of a board which end was not supported in any manner during the entire performance of about one and one-half hours? Answer: Yes, but the board was not securely supported.
“9. Would plaintiff have fallen if she, or some of the patrons of the show had not moved the seat board upon which her feet had rested, or the one upon which she sat, during the performance? Answer: Yes, because the board upon which she sat was not properly placed.”
The negligence, according to the answer to question No. 5, consisted “in not placing the seat lengths properly on the supports.”
The theory of the plaintiff seems to be that the end of the board on which she sat either did not rest at all or rested very insecurely and insufficiently upon the support, so that when those sitting farther away from the end arose, her weight, or that together with the weight of the others sitting near her, caused her end of the board to drop, thus precipitating her to the ground. The defendant’s theory is that the fall was the result of a mere accident or of the gross, carelessness of the plaintiff, who knowingly remained upon the unsupported end of the board. The testimony discloses that different witnesses came to different conclusions, some asserting that the slipping or pushing of the board on which plaintiff’s feet rested caused her to fall, while others supported the plaintiff’s theory and allegations. Her brother testified that the plaintiff, with another young lady and two gentlemen, were sitting in a row, the support and lap being between the two young ladies; that when the other young lady and one of the gentlemen arose to leave, he saw they could not get out right away and started to sit down; “then the three men at their left got up and the board plaintiff was sitting on fell”; that the board did not reach the stringer; that the board did not lap; that the board on which the witness sat rested on a stringer and vas on top of the board on which the plaintiff sát. The testimony of those and other witnesses was to the effect that one board rested, on the other and lapped the stringer, while the one underneath it, on which the plaintiff sat — that is, the end which should have rested on the stringer underneath the other board — did not reach or lap the stringer.
It is claimed that because the plaintiff admitted that the board gave or sagged a little, it was her duty to seek another location. Her escort testified that he noticed it was not over-safe, and wanted to buy a reserved-seat ticket. She testified, however, that she did not notice the giving of the seat until some little time before the end of thé performance, when her escort arose to remove his overcoat; that the seat looked like any other board; she did not notice anything out of the ordinary, and that it was supposed to be safe. The jury expressly found that she was not guilty of contributory negligence, and hence the responsibility for the accident can not be placed upon her. Surprise is expressed that she should try to hold the defendant responsible, but those attending circus performances need not assume that the seats provided by the management are unsafe, or make a critical examination of their fitness for the use which the patrons are invited to make of them.
The answer to question No. 13 is criticized as evasive, contradictory and uncandid and as one which really tells the whole story of the plaintiff’s own gross carelessness. It is asserted -with some dynamic force that five feet of a board seven inches wide and a fraction over an inch thick, projecting beyond the support, could not uphold for an hour and a half the weight of two persons of the size of the plaintiff and her escort. But whether the end of the board failed to reach the support, or whether, as the jury said, it was not securely supported, it was one provided for patrons to sit on, and, from the other findings, it fell without'the plaintiff’s fault. While like many another case, this one furnishes ground for a diversity of theories and conclusions, those reached by the jury were supported to such an extent that they can not be set aside.
No motion appears to have been made to require a different answer to question No. 13. Fault is found with the response to question No. 12, that the seat occupied by the plaintiff was supposed to have been placed in position for use before the afternoon performance. But however answered, this question could not control the situation as it existed in the evening when the injury occurred. Taken together, the special findings were not so essentially insufficient or inconsistent as to vitiate them or as to impair the general verdict.
The motion for a new trial upon the ground of newly discovered evidence was supported by affidavits to the effect that certain witnesses, if present, would testify that they personally inspected the seats before the afternoon and evening performances, and that they were properly adjusted and fixed; that others who were present and helped arrange the seats personally knew that they were properly constructed and placed. The affidavit of the defendant’s senior counsel stated that he had diligently sought to find such witnesses and had visited the circus at various places, but owing to the unusually early close of the season of 1914 and to other matters, he had been unable to find them; that in case a new trial should be granted he could prove that the seats were properly in place by the testimony of certain named witnesses who were with the show at Cherryvale. One of these witnesses is, and since 1908 has been, master mechanic and superintendent of canvas; another is his assistant; the others seem to be employees. The affidavits .of a principal stockholder and of the manager said that they did not know of the injury until after the suit was brought, and stated why the witnesses were not found. The petition was filed June 25, 1914, and the trial was begun December 10, 1915. The defendant introduced the evidence of one of its proprietors, who described and furnished photographs showing the alleged condition and construction of the seats; that of an employee who was in charge of seating the people and dismissing the performance during the seasons of 1911 and 1912, explaining in detail the construction of the seats; that of another who had been familiar with the seating arrangement in shows for twenty years, and was with the defendant’s show at Cherryvale in 1912, and observed the seating arrangement at other performances. These two employees testified touching the effect of sitting on the unsupported end of a seat board. The general manager also testified upon the same point and as to the construction of the seats. From the showing made in behalf of the motion for a new trial it appears that the diligence of counsel was much greater than that of the officers and agents of the company, and especially those having in charge the seating. The assurance as to when some of these witnesses could be procured, judging by the claimed inability to procure them heretofore, is largely speculative. The substance of their desired testimony is that' on the night of the injury the seats were properly placed. Between the filing of the petition and the time of trial there was sufficient time for the officers and agents of the company, with reasonable diligence, to procure sufficient testimony to present the case fairly from the standpoint of the defendant, if indeed such were not in fact found and produced at the trial. The rule is that in order to require a new trial the newly discovered evidence must be of such character and strength as would with reasonable probability compel a different decision. (Collins v. Belford, 89 Kan. 92, 95, 130 Pac. 662, and cases cited.) Under the new civil code (§ 307), a new trial is not to be granted unless the trial court is of the opinion that the verdict or decision is wrong in whole or in some material part. In Haughton v. Bilson, 90 Kan. 360, 133 Pac. 722, it was said:
“Under the former practice the question was whether or not the newly discovered evidence was of such strength and character that it probably would have compelled a different decision. (Sexton v. Lamb, 27 Kan. 432.) Now the court is required to go further and consider the whole case, including the newly discovered evidence, and determine whether or not the verdict or decision is wrong.” (p. 361.)
Some of the desired testimony indicated by the affidavits is clearly cumulative, and whether the other is cumulative or not does not clearly appear. At any rate, under the rule just quoted, we find no error in the refusal to grant a new trial. (Daly v. Gregg, 91 Kan. 506, 138 Pac. 614.)
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
W. H. Bowdon and Emma L. Bowdon signed a note payable to the Citizens Bank of Belton, Mo., which described them as being each a principal, and which contained the words: “The makers of this note hereby severally . . . consent that time of payment may be extended without notice thereof, upon the payment of the interest by either of us.” The bank sued both makers. Emma L. Bowden answered, stating that she signed the note as a surety, receiving no consideration therefor; that the bank knew of this fact; that without her consent the time of payment was extended for two months in consideration of the payment of interest for that period in advance by W. H. Bowden; that thereby she was discharged from all liability. A demurrer to this answer (as well as to a similar one filed by W. H. Bowdon) was sustained, and upon the refusal of the defendants to plead further, judgment was rendered against them, from which they appeal. Complaint is made only in behalf of Emma L. Bowden.
(1) The uniform negotiable instruments act provides that one who by the terms of a note is absolutely required to pay it is “primarily liable.” (Gen. Stat. 1909, § 5249.) It mentions an extension of time to the principal as one of the methods by which one who is “secondarily liable” may be released. (Gen. Stat. 1909, § 5373.) The inference is natural that a comaker of a note, although in fact a surety, can not be discharged in this manner, and this is the view that has generally been taken of the meaning of the statute. (Bank v. Livermore, 90 Kan. 395, 397, 398, 133 Pac. 734; Note, 26 L. R. A., n. s., 99; Note, Ann. Cas. 1913 C, 527 ; 2 Daniel on Negotiable Instruments, 6th ed., § 1312, p. 1477; First State Bank v. Williams, [Ky. 1915] 175 S. W. 10.) In Iowa it is held that as between the original parties an extension granted to one maker of a note may release another who is in fact his surety, this conclusion being based upon the provision of the uniform act that “in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable.” (Lumber Co. v. Snouffer, 139 Iowa, 176, 117 N. W. 50.) The arguments on each side of the question are summarized in a recent edition of a standard textbook. (2 Daniel on Negotiable Instruments, 6th ed., § 1312, Note 61.) Uniform statutes on commercial matters will largely fail of their purpose unless their construction shall also be uniform. With the exception noted, all the courts that have passed upon the matter hold that the negotiable instrument act precludes the maker of a note from interposing the defense here invoked, and we adopt that view. No hardship can result from the operation of the rule, once it is established. It merely defines the obligation of one who upon the face of a negotiable instrument assumes unconditional liability. It requires a surety who is unwilling to bind himself, irrespective of any extension granted to a comaker, to refrain from signing a note as one of the makers. The demurrer to the answer was therefore properly sustained.
(2) The same result would be reached here if the statute were regarded as not having changed the law on the subject. A surety can give an effective consent ip advance that extensions may be granted to the principal. (32 Cye. 161.) The provision of the note under consideration, that upon the payment of . interest by one of the makers, time of payment might be extended without notice to the other, covers a case like the present, where interest ,was paid in advance. That is the natural interpretation of the agreement, for there would be no occasion for it if only past-due interest were paid.
(3) It is alleged that the court erred in not finding who was principal and who was surety on the note. It was the privilege of the surety to have this matter determined in order to preserve her rights as against her codefendant (Civ. Code, §§ 464, 474) ; but a timely application was necessary for that purpose (Emery v. Bank, ante, p. 231, 155 Pac. 34). The suretyship matter was pleaded only as a defense to the plaintiff’s claim, and no error can be based upon an omission of the judgment to refer to it, for no finding in that regard was asked.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for the breach of a contract to purchase sweet potatoes. The plaintiff recovered and the defendant appeals.
The action was commenced before a justice of the peace. The bill of particulars stated that the defendant agreed to buy four hundred bushels of sweet potatoes, at the price of eighty-five cents per bushel; the plaintiff delivered several loads, a load being fifty bushels, when the defendant notified the plaintiff to cease delivery, stating he was oversupplied and could not handle the potatoes; subsequent offers to deliver were declined; some of the plaintiff’s sweet potatoes spoiled, and he sold the remainder for fifty cents per bushel, the market price. The bill of particulars contained the following allegation concerning the subject of delivery.
“That the plaintiff agreed to deliver and defendant agreed to accept said sweet potatoes at the rate of two or three loads per week, until the whole amount was delivered. That the defendant especially agreed with plaintiff that he would accept and use not less than one load or 50 bushels per week at the then market price of 85c per bushel.”
The items of damages were stated and prayed for.
The defendant filed a motion to require the plaintiff to make the bill of particulars more specific. In the district court the motion was renewed, but it pointed out no aspect in which the allegations were indefinite or uncertain. A demurrer to the bill of particulars was filed on the ground it did not state a cause of action and did not comply with the rules of pleading. The demurrer was overruled. At the trial the plaintiff testified that the contract was oral. He delivered a. load of sweet potatoes on a certain Monday and was told to call the defendant by telephone on Tuesday evening. The defendant thought another load could be delivered about Wednesday or Thursday. On the following Monday the plaintiff delivered another load. The defendant kept putting the plaintiff off, and finally told the plaintiff he could not use the potatoes. In the meantime the price of sweet potatoes had dropped to fifty cents per bushel. An instruction to the jury stated that the parties did not agree concerning the terms of the contract and that the de fendant contended he was to take the potatoes only if he could use them. The instruction then proceeded as follows:
“In this connection the jury are instructed that if you believe from the evidence that the contract was that the defendant was to take plaintiff’s sweet potatoes at 85c per bushel and to take them only as he could use them, this would mean in law that the defendant was to take them within a reasonable time, and what was a reasonable time is a question for the jury to determine from all the evidence and circumstances in the ease.”
It is said the bill of particulars was too indefinite to sustain further proceedings because of the quoted allegation relating to delivery. The court has expressed itself so often upon the subject of informalities in pleadings before a justice of the peace that a restatement of the rule is not required. The bill of particulars was much more definite and certain than the motion attacking it, and whatever doubt about the nature of the charge the defendant may have had at the beginning was probably cleared up at the trial before the justice of the peace. However this may be, on its face the bill of particulars disclosed a contract to accept two or three loads per week, and at all events to accept not less than one load per week. Therefore the contract and the statement of it in the bill of particulars were sufficiently definite and the motion and demurrer were properly overruled.
It is said that if the plaintiff’s version of the contract be accepted the action was prematurely brought. The argument is that at the rate of one load per week the defendant had eight weeks in which to take the sweet potatoes, and the action was brought before the expiration of that time. Conceding that this might be true if the plaintiff were suing on the contract for the price of his- sweet potatoes, he did not choose that course. The defendant notified the plaintiff he could not use the potatoes and so put an end to the contract. The plaintiff was required to reduce his damages if possible, and did so by selling his sweet potatoes at the market price. As soon as his damages were ascertained he sued, not for the sum to be paid according to the contract, but for the damages resulting from the defendant’s repudiation of the contract.
It is said the instruction quoted was improperly given, because the contract fixed the terms of delivery. The evidence establishing the contract is not abstracted, and the statement in the instruction as to the defendant’s version of it must be accepted. The correctness of this contention was a matter for the jury. Should they accept the defendant’s view they needed to know the time limit which the law allows for the performance of such a contract.
There is nothing in the abstract or brief tending to show that the plaintiff did not have a meritorious cause of action, and no complaint is made of the amount of the verdict. The defendant has suffered no prejudice to any of his substantial rights, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Farmers & Merchants Bank of Courtland, Kansas, to quiet title to some lots in that city. In the petition it was alleged that the defendants E. B. and S. L. Tipton, on June 9, 1911, conveyed the lots by warranty deed to the plaintiff in order to satisfy an indebtedness due to the plaintiff from them, and also in consideration of the satisfaction by the plaintiff of a judgment lien against the property; that soon thereafter the plaintiff put the Tiptons into possession as its tenants; and that on March 8, 1913, the plaintiff entered into an agreement with .the defendant, the Swedish-American State Bank, in pursu anee of which it conveyed all its right, title and interest in the lots to the latter, agreeing to deliver possession and give a clear and merchantable title thereto. It was further alleged that the plaintiff was unable to carry out its contract because the Tiptons refused to deliver possession of the lots, and that it was unable to give a clear and merchantable title because the Tiptons had filed of record an affidavit stating that the property was owned by E. B. Tipton, that it was their homestead, and that their deed of June 9, 1911, was in effect only an equitable mortgage given to secure the payment of their debt and not intended to transfer any interest in the property other than a lien. The Swedish-American Bank was made a party defendant because it refused to bring the action in its own name. It was further alleged that the plaintiff had such an interest in the property as to be entitled to bring the action in its own name, for the reason that in the event of its failure to deliver the kind of title agreed upon, it would suffer loss from the nonpayment of the consideration which had been withheld and retained by the defendant bank as a liability against the plaintiff.
The petition as well as the cross-petition filed by the defendant bank were attacked by the Tiptons by motions to make more definite and certain and by demurrers, all of which were overruled by the court, whose action is complained of in the appeal. But their main contention is that the plaintiff had no interest left in the lots so as to entitle it to bring an action to quiet title. In the cross-petition of the defendant bank it was alleged, among other things, that it had paid to the plaintiff the sum of $4000 as consideration for the lots, and that after the commencement of the action, and on March 6, 1914, it had tendered a quitclaim deed to the property, accompanied by a demand for the return of the consideration, because of plaintiff’s failure to deliver a clear title and give possession according to the contract, and that both the tender and demand were refused by the plaintiff. The trial w;as before the court, which made certain findings of fact from the testimony produced, and it was found and adjudged that the title to the lots was in the plaintiff and its title was quieted as against all the defendants. There was a further finding that the plaintiff: was indebted to the defendant bank in the sum of $400.©>&fif& that the latter was entitled to a lien on the lots to the extent of this indebtedness.
The questions presented for review arise upon the pleadings alone, the evidence not being preserved, and are raised by motions to require the pleadings to be made more definite and certain and also upon a demurrer challenging the sufficiency of the facts alleged in the petition. On the motions it was contended that there was a lack of definiteness of averment as to the corporate character of the plaintiff; but the meaning of the averment is so obvious that it could not have been misunderstood by the defendants. It is further said that the allegations are indefinite as to the nature and amount of the indebtedness which constituted the consideration for the deed executed by the Tiptons to the plaintiff and the oral agreement under which they held possession of the premises after the execution of their deed to the plaintiff. The rule is that a pleading is sufficient which fairly informs the adversary of the nature of the claim made against him. (Republic County v. Guaranty Co,, 96 Kan. 255, 150 Pac. 590.) The subsequent pleadings indicate that the defendants were able to ascertain the nature and character of the plaintiff’s claims and that they could not have been prejudiced by any ambiguity in the statement of facts. The averments were sufficient to warrant the full disclosure of the facts by the evidence, and in the absence of the evidence it may be inferred that the facts were fully brought out in the trial. Upon an appeal, and especially upon an incomplete record, the overruling of a motion to make a somewhat ambiguous pleading more definite and certain will not be ground for reversal unless it appears that prejudice resulted from the ruling. (St. L. & S. F. Rly. Co. v. French, 56 Kan. 584, 44 Pac. 12; Parker v. Vaughn, 85 Kan. 324, 116 Pac. 882; Culbertson v. Sheridan, 93 Kan. 268, 144 Pac. 268.)
The main contention of the Tiptons is that their demurrer should have been sustained, and this upon the theory that the plaintiff, having executed a deed of the lots to the defendant bank, has no interest or standing which warrants it in maintaining an action to quiet title to the property. The plaintiff appears to have treated this action as a proceeding in equity rather than as an action under the statute to quiet title. It is contended that the plaintiff had neither title nor possession and hence was not entitled to ask relief in this form of action. It was alleged that the Tiptons had by their deed vested the title of the lots in the plaintiff and that they were holding the possession of the same for the plaintiff. These averments taken alone show both title and possession in the plaintiff; but there is the further allegation that the plaintiff had undertaken to transfer the property to the defendant bank, and the Tiptons therefore insist that the plaintiff had parted with its interest in the lots and in consequence lost its right to maintain .the action. In effect, it was alleged that the attempt of the plaintiff to carry out its agreement with the defendant bank to transfer the property was abortive, as it had agreed to give a merchantable title and place the defendant bank in possession of the property, but had been unable to do so because of the action of the Tiptons in asserting title to the property and in their refusal to surrender possession of the same. Not being able to carry out its agreement to give a good merchantable title and give actual possession of the lots, plaintiff became liable to the defendant bank, not only for the money received, but also under the covenants of warranty, and the defendant bank therefore rightly insisted that the transfer was incomplete and that it was entitled to a return of the price which it had paid. The lots having been practically thrown back upon the plaintiff, it had an interest therein which entitled it to maintain this equitable proceeding to have the rights of the respective parties determined. The defendant bank declined to assume the burden of bringing the action, and to protect its vendee and itself, the plaintiff brought the action and made the vendee a party defendant. Under the conditions existing, an action at law was wholly inadequate and a resort to an equitable proceeding was necessary, not only to determine the conflicting claims as between the plaintiff and the defendant bank, but also as between the plaintiff and the Tiptons. It was decided in Sutliff v. Smith, 58 Kan. 559, 50 Pac. 455, that a vendor who sells land to another and is bound to perfect the title thereto, and whose vendee withholds the purchase price and refuses to bring the action to remove the cloud, can quiet title as against those claiming adverse interests, and that the vendor has sufficient interest to warrant the bringing of an action to quiet title against the vendee and the persons claim ing the adverse interest. The present case differs from that one in that the agreed consideration had been paid to the plaintiff, but as the plaintiff was unable to carry out its contract it had no right to withhold the money which the defendant bank had paid. It had sold the property with a covenant of warranty, and its obligation to deliver actual possession and protect the title required it to refund the money and give the plaintiff such an interest as warranted it in' asking for equitable relief. (Note, 12 L. R. A., n. s., 652.)
In behalf of the Tiptons it is insisted that the deed which they had executed to the plaintiff was intended as a mortgage only and that they had never transferred the title nor yielded possession of the property, but the averments of the petition were to the effect that an absolute title was conveyed by them to plaintiff and that they were holding possession of the property under the plaintiff. The trial court found against their claims and adjudged that the title and right of possession was in the plaintiff. The evidence not being here, the finding of the court conclusively settles that controversy.
The judgment is affirmed. | [
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'The opinion of the court was delivered by
Dawson, ■ J.:
This action is brought to test the validity of chapter 371 of the Laws of 1915, entitled “An act in relation to the sale of farm produce on commission.” The state asks for a writ of mandamus to compel the secretary of the state board of agriculture to pay into the state treasury certain license fees which he has received from certain commission merchants, paid by them under protest and under coercion of the act.
The secretary answers that he is ready and willing to execute this law and to pay over the fees when assured that he will incur no personal liability in so doing, and he asks that the parties interested in the fees paid under protest be brought into court that the whole controversy be fully adjudicated.
W. S. Payne, a commission merchant of Wichita, who has paid his license fee under protest, was impleaded and answered setting up many constitutional objections to the act. Some thirty grain dealers of Wichita who receive consignments of grain from country elevators and sell the same on commission intervene and likewise challenge the constitutionality of the act.
The act under consideration provides that all persons who sell farm products on commission, except sales to the ultimate consumer, must have a license issued by the secretary of the state board of- agriculture. The license costs ten dollars and is effective for one year, subject to revocation by the secretary, after investigation, for unfair or improper business dealings. A judicial review of the acts of the secretary is provided. The licensee must give a bond to insure his fair dealing with his consignors. The secretary may maintain an action on this bond in a proper case. Every commission merchant must keep a complete record of all consignments received and sold by him, with the name of the consignor, date of receipt, kind and quality of the consignment, the price received, name and address of person to whom the goods are sold, and the items of expense, and this record must be forwarded to the consignor within forty-eight hours after the transaction unless otherwise agreed. Such a record shall also be kept by the commission merchant for one year, and shall be open to the inspection of the consignor and the secretary of the state board of agriculture or their agents.
Certain relevant offenses are defined by the act, all designed to standardize the business of commission merchants in consonance with honesty and fair dealing.
The chief objections to the act may be thus summarized:
(a) The act is meddlesome, discriminatory and class legislation, and so burd.ensome that it will confiscate and destroy an honorable, useful and legitimate private business; (b) it confers judicial power on an administrative functionary; (c) it confers corporate power on the state board of agriculture; (d) it interferes with interstate commerce or unjustly burdens domestic commerce; (e) the title is defective and the act contains two subjects; (/) the act is special; (g) the judicial review is anomalous; and (h) the penalties are excessive.
Examining these points in order, the, act is to be justified, if at all, as an exercise of the state’s police power. It is sometimes contended that the state can not regulate private business, and that unless the business is one of public concern it is exempt from legislative interference. Probably this notion is due to the fact that the modern American state has hitherto left private business largely to its own devices, and because the state in recent years has largely concerned itself with the regulation of business as to which the public’s interest was undeniable. Hence the elaborate statutes regulating public-service corporations. But there can be no doubt that the state’s police power may extend to private business. Our statutes relating to registration of deeds and mortgages, the statute of frauds, the mechanic’s lien law, and the like are illustrations of the exercise of the state’s - police power over private business. It is also true that business which has heretofore been considered to be private may by changes and progress in the methods of its conduct be transformed into a public or quasi-public business, and this may make it desirable and even' imperative that the state concern itself in its regulation and control. Of course such regulations must be reasonable, but if they are reasonable they must be obeyed.
The business of commission merchants dealing in farm produce has grown to be one of great volume and much importance. In its development its. tendency seems to be to centralize in the larger cities, far removed from the points of origin, and where by no practical possibility can the originators of the traffic, the consignors, keep personal check on the doings of the commission merchants, who are merely the agents of the consignors. Such a situation would seem to warrant a reasonable extension of the state’s governmental power over the business.
The act does classify commission merchants, but the classification is reasonable. It relates to all who sell farm produce on commission for resale, and this includes “agricultural, horticultural, vegetable and fruit products of the soil, and meats, poultry, eggs, dairy products, nuts and honey,” but not timber, floricultural products, tea or coffee. It practically reaches all the important and useful products of farm and truck garden. It specifically exempts matters of little consequence to the Kansas producer. If, as argued, it also exempts live stock, that too, is a reasonable exemption, since .live stock is almost invariably shipped in carloads and is so valuable as to justify the producer or shipper in the expense of accompanying his shipment to market and personally supervising the fidelity of the commission merchant who makes the sale for him or in making the sale himself. As modern business is now conducted, it is practically impossible for the ordinary farmer or fruit producer or truck gardener to market his own products without the agency of the commission merchant.
Nor do the exactions of the statute seem unduly burdensome. It exacts a license of $10 per annum. That fee is not onerous. It requires a bond to insure the commission merchant’s fidelity and the payment of his obligations. This is in accord with the general tendency of modern business, to relieve it from the uncertainty of fraud or insolvency. It requires' the merchant to account and report promptly and completely to the consignor. Perhaps this has always been the law, for what is the relation of consignor and commission merchant but that of principal and agent, and what is this statutory requirement to account and report but the common-law duty of faithful and full disclosure to his principal of all the agent’s doings? Illustrations are submitted in affidavits showing how onerous, burdensome, and expensive it would be to make a detailed account of the sales of a commission merchant: Thus a barrel of garlic is usually sold in small quantities, the remainder being kept in cold storage until called for. A carload of onions containing 470 crates is disposed of by the commission merchant to perhaps four hundred different retail merchants. A barrel of radishes is usually sold in bunches of a few dozen. Many such illustrations are given, and while they do show that a strict compliance with the act will necessitate a good deal of bookkeeping,' we can not but marvel how commission merchants have kept track of all these details hitherto.. Probably the legislature was convinced that they did not keep accurate accounts of these innumerable transactions — not through willful breach of faith — but because it was not humanly possible for a man’s memory to stand such a strain, and hence the legislative determination that the memory method, or whatever method it was, should be superseded by an accurate and detailed system of accounting. If this occasions an added expense to the business, the traffic will have to bear it.
The supreme court of Minnesota in a well-considered case upheld a similar statute for the licensing and bonding of com mission merchants who sold agricultural products and farm produce. (State ex rel. Beek v. Wagener, 77 Minn. 483, 491, 80 N. W. 633, 46 L. R. A. 442.) In Hawthorn et al. v. The People, 109 Ill. 302, 50 Am. Rep. 610, the supreme court of Illinois upheld a statute requiring operators of butter and cheese factories on the cooperative plan to give bonds for faithful accounting of property for manufacture. In that case the court said:
“It is true the act does require the manufacturer, at the end of each month, ‘to make, acknowledge, subscribe and swear to a report, in writing, showing the amount of products manufactured, the amount sold, the prices received therefor, and the dividends earned and declared for the third month preceding the month in which the report is made,’ and to file a copy of the same with the clerk of the town or precinct in which the factory is located. This, in terms, falls far short of a conflict, in terms, with that constitutional provision, [Illinois Bill of Rights] nor does it conflict in sprit. . . . This is not an unusual exercise of power. It has always been required that executors and administrators intrusted with the property of estates shall file in a public office a full and complete account of their actions with reference to the property thus intrusted to their management and control. This law only requires the manufacturer to render an account of his management of other people’s property. He holds himself out as a factor for the management and sale of other people’s property, and in that respect is like a public warehouseman. . . . It is urged that this is an unheard-of species of legislation — that the past has furnished no precedent for the law. If this should be conceded to be true, that would not of itself render the law unconstitutional. Government was organized, and is supported, to afford protection to the governed against wrong and oppression, and in its organization ample power was conferred on the legislative branch to afford such protection. That branch of the government holds, so to speak, a vast reservoir of legislative power never yet exercised, because the exigencies have not arisen requiring it to be exerted; but with our wonderful increase of population, advancing civilization, and increase and complication of business, that reserved power will certainly be called into action. The constitution has not limited the exercise of legislative power to such enactments as have hitherto been passed. To so hold would be to embarrass good government, and would prove highly injurious, if not destructive.
“But it is insisted that it restrains and embarrasses business. If that were conceded to be true, what provision of the constitution forbids the legislature from exercising the power? We are aware of none. Most, if not all, of the states in the Union have required that persons in almost every species of business should procure and pay for a license to enable them to pursue the calling. Nor, so far as we are aware, has the constitutionality of such laws ever been questioned. They were undeniably a regulation, if not a restraint, on trade, and yet the power was clearly legislative, and properly exercised.” (pp. 307-309.)
A similar act, known as the commission merchants’ law, was upheld by the supreme court of Washington in State v. Bowen & Co., 86 Wash. 23, 149 Pac. 330, and the discussion of the principles upon which such legislation is justified is logical and convincing, although in a later case (State v. J. B. Powles & Co., [Wash. 1916], 155 Pac. 774), the court was., constrained to hold the act void because of indefiniteness as to the term “commission merchant,” an infirmity which does not exist in the Kansas act.
The case of People v. Berrien Circuit Judge, 124 Mich. 664, 83 N. W. 594, is pressed on our attention, where an act of the same nature requiring a bond for $5000 to insure the fidelity of commission merchants selling farm and garden and dairy products and live stock on commission was declared to be unconstitutional. Whatever that great court says is always ■ read and studied with profit, but curiously enough, in that case, the particular clause or clauses of the constitution, state or federal, which the statute was held to infringe are not cited nor even hinted at. The case does not cite a single precedent of any sort; and it neither persuades nor convinces as do the decisions of the supreme courts of Minnesota, Illinois and Washington on this subject. (See, also, Freund, Police Power, §§ 296, 297.)
Does the act confer judicial power on the secretary of the state board of agriculture? Judicial power is the power to hear, consider and determine controversies between rival litigants as to their personal or property rights and must be regularly invoked at the instigation of one of the litigants. (See definitions in 4 Words & Phrases, p. 3860.) The act of 1915 does not pretend to confer such power on the secretary of the state board of agriculture. It merely confers upon him administrative power such as has become common in this state. The state charter board is given similar power to grant or withhold a charter for a bank. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80.) The insurance commissioner is authorized to grant, withhold and revoke licenses to transact insurance business in Kansas. The public utilities commission is authorized to grant or deny permits to conduct a public-service business. The state board of medical registration and examination is authorized to grant, deny or revoke li censes to practice medicine. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247.) The exercise of such power is merely the exercise of administrative discretion. If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary. and prerogative remedies of injunction or mandamus. And by no course of reasoning can a distinction be made between the licensing and other administrative powers conferred by this act upon the secretary of the board of agriculture and the similar broad and valid powers conferred upon the many other official boards and functionaries with which the state has provided itself for the proper and effective conduct of its governmental business.
Neither does the act confer corporate power upon the state board of agriculture. Indeed the act confers no power of any sort upon that board. The state patronizes that board as one of its principal educational agencies for the benefit and improvement of the principal business of the commonwealth— agriculture; and it has determined, happily, we think, to select the chief functionary of that board to administer this act which so closely touches the chief industry of the state. We think it unnecessary to trace the legislative history of the creation and development of the state board of agriculture, and deem it sufficient to say that it is not a corporation like a railroad or a dry goods company nor like a municipal corporation, nor do we find any grant of corporate powers to it or to its secretary in this act.
The question concerning this act’s interference with interstate commerce might well be left until some specific difficulty concerning such commerce arises, for it is familiar law that no act is ever declared to be unconstitutional except where the party challenging it is directly affected and prejudiced by some specific invasion of his constitutional rights. A commission merchant’s business is that of a warehouseman and sales agent. As a warehouseman, his business is subject to state control notwithstanding the goods which he handles may be commodities of interstate commerce. (Munn v. Illinois, 94 U. S. 113.) As a sales agent, the commission merchant is subject to state control although the commodities sold by him may be of an interstate character. (Hopkins v. United States, 171 U. S. 578; W. W. Cargill Co. v. Minnesota, 180 U. S. 452.) Even if it were held that the act of 1915 did not or could not apply to interstate commerce, the state’s power over domestic or intrastate commerce is supreme. Certain it is that the federal government may not meddle with purely intrastate'business, and it would hardly do to say that where there is a domestic business and an interstate business of the same nature the state may not regulate the domestic business because the federal government does not likewise and similarly regulate the competitive interstate business in the same territory. To admit that would be an end of all state government. The point sought to be made is merely one of the inconveniences of our dual form of government, sufficiently compensated, however, by the innumerable benefits which we nevertheless enjoy under our complicated governmental system. Sad indeed would be the situation of a poor truck gardener of the Kaw valley if he might not apply to some state or local official, but only to some bureau in far-off Washington, D. C., to learn whether John Doe was a licensed and trustworthy commission merchant to whom he might entrust his little stock of garlic and radishes for resale, or for summary aid in bringing a recalcitrant commission merchant to a sense of his duty.
Some other objections to the act need no discussion. The act relates to the sale of farm produce on commission. It relates to nothing else. This is one subject, and the title is fairly and sufficiently indicative of its subject matter.. The act is not special. It is a general act, and the classification of commission merchants brought under its terms is logical and reasonable. The penalties are not excessive. Indeed, there is some ground for the fear that the mild and modest penalties prescribed by the act may supersede and repeal by implication some of the state’s older and more powerful and drastic statutes for the suppression of unfair trade practices. However that may be, the objection to the penalties can not be sustained.
One more question should be noticed. Section 6 of the act reads:
Certiorari to review. “This action of the secretary of the State Board of Agriculture in refusing to grant a license, or in revoking a license granted under this article, shall be subject to review by a writ of certiorari, and if such proceedings are begun, until the final determination the proceedings and all appeals therefrom, the license of. such com mission merchant shall be deemed to be in full force and effect; provided, the fee for such license shall have been paid and a bond given as herein required.” (Laws 1915, ch. 371.)
The remedy by certiorari is criticised as being unknown to our practice. The writ of certiorari was abolished in 1868. (Civ. Code, 1868, § 564.) It was a writ well-known to the common law. It issued out of some superior court having the full judicial power of the state directing some inferior court to éertify and transmit to it the records and proceedings of a particular case for trial or correction of errors. It is still used in the federal courts and in the older states. But our legislature, which abolished the writ in 1868, had undoubted power to reestablish it in 1915. The name and style of the writ is unimportant. Long ago this court, in conformity with the temper, of this state, established the doctrine that the substance and not the form of things is the chief object in the administration of justice. Moreover, an examination of the law of other states will show that the modern notion of certiorari is not confined to a judicial examination or review of a certified case from a lower court. It is used to effectuate a judicial review or give a judicial right of action from the acts or proceedings of any inferior tribunal — not necessarily from an inferior court. (6 Cyc. 740, and Note 10; 6 Cyc. 752.) The last citation appends this valuable note;
“The writ will lie to review the- action of a town board in removing an assessor (Merrick v. Arbela, 41 Mich. 630, 2 N. W. 922) ; of a heaith board in refusing to register births as required by statute (Matter of Lauterjung, 48 N. Y. Super. Ct. 308); of a board of supervisors in directing an election to relocate a county seat (Herrick v. Carpenter, 54 Iowa, 340, 6 N. W. 574); in creating an office and increasing the salaries fixed by statute (Robinson v. Sacramento, 16 Cal. 208); or to set aside any wrongful, illegal, or fraudulent appropriation of public moneys (Shields v. Paterson, 55 N. J. L. 495, 27 Atl. 803 [followed in Shields v. Grear, 55 N. J. L. 503, 27 Atl. 807]) ; of a city council in removing a city officer (Macon v. Shaw, 16 Ga. 172) ; granting a ferry license (Fay, Petitioner, 15 Pick. [Mass.] 243), or to test the lawfulness of a municipal ordinance providing for the payment of an official salary (Christie v. Bayonne, 64 N. J. L. 191, 44 Atl. 887); and of school trustees in uniting and dividing school districts (Miller v. School trustees, 88 Ill. 26; State v. Whitford, 54 Wis. 150, 11 N. W. 424) ; but it has been refused to boards of election (Exp. Carson, 5 S. C. 117), and of road commissioners (Nobles v. Piollet, 16 Pa. Super. Ct. 386) because they were not inferior courts.” (p. 753.)
In Crawford v. Scio and Webster, 22 Mich. 405, a writ of certiorari was issued “to bring up for review . . . the proceedings of the boards of the two townships, sitting as a single joint board upon a petition presented to them for the removal of said Crawford from the office of director of fractional school district No. One, which district embraces a part of each township.” (p. 406.) We only cite this case to show how the uses of certiorari have been enlarged in its progress from the land and time of Lord Coke to the land and time of Judge Cooley.
It will thus be seen that in practical operation in modern times, either by statute or by judicial enlargement of its use, certiorari will lie not alone to an inferior court but to statutory boards and officers. And surely the legislature, which has full power to prescribe jurisdiction- and procedure, may grant a judicial review or a cause of action from the acts of the secretary of the state board of agriculture and in so doing the legislature may label that review or cause of action certiorari or give it any other convenient name. In Wilson v. Price-Raid Aud. Com., 31 Kan. 257, 1 Pac. 587, this.court said:
“The jurisdiction of the supreme court is much more limited by the • constitution than that of the district court; for under the constitution, the legislature can confer upon the district court all the original and all the appellate jurisdiction which it 'may choose. (Const., art. 3, § 6.) It may confer upon the district court jurisdiction in any matters of a judicial character, without reference to where such matters may originate; for if the district court does not take jurisdiction of such matters under or by virtue of its appellate jurisdiction, it may take jurisdiction of the same under or by virtue of its original jurisdiction. Any matter judicial in its character can be taken from even a road overseer to the district court, provided the statutes authorize the same; for when the matter gets into the district court the district court can exercise jurisdiction over it as a court of original jurisdiction.” (p. 259.)
What court may issue the writ? The district court, to be sure. That is our only court of general jurisdiction. It holds practically all the judicial power of the state. It was no more necessary for the statute to designate the court from which the writ might issue than it is in any other regulatory or penal law or in any other act giving statutory rights of legal redress.
It will thus be seen that whatever may be the demerits of the act, it is free from constitutional infirmities and must stand as a valid statute. As such it should be respected and enforced, and the state is entitled to judgment.
The writ is allowed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained through the negligence of the city. A demurrer to the answer was overruled and the plaintiff appeals.
The petition disclosed that the plaintiff’s parents became afflicted with smallpox and were confined in the detention hospital of the city. The plaintiff, a child of nine years, was taken to the hospital with his parents and was allowed to play about the hospital grounds. He found a sack of dynamite caps which employees of the city had taken to the hospital grounds and had neglected to remove or render inaccessible. The plaintiff carried the caps into the hospital, accidentally exploded one of them and injured his hand so that some of his fingers had to be amputated. The answer was that the city established, owned and maintained the hospital for the sole purpose of detaining and treating persons afflicted with the contagious disease of smallpox. Proper sanitation required that the building be equipped with water and sewer systems and these were installed entirely on the hospital grounds in connection with the construction and completion of the building. While excavating for the water and sewer systems rock was encountered which it was necessary to remove by blasting and the dynamite caps belonged to one of several lots which were taken to the premises for use in the conduct of that work. The demurrer to the answer raised the question whether or not the negligence of the city’s employees in leaving the dynamite caps where they might be picked up and exploded by the plaintiff was exhibited in connection with the performance by the city of proprietary or of governmental functions. If the latter the city is not liable.
While the hospital, with its equipment and grounds, was property of the city, it was property held and maintained in a public and governmental capacity and not in a private proprie tary capacity. The sole object in establishing and maintaining the hospital was to consérve the public health, a purely governmental function exercised under the police power of the state. The enterprise was public and governmental from its inception, and in- doing the work of constructing the building and installing the water and sewer systems the city acted as a mere agency of the state in promoting the general welfare. While the dynamite caps were property of the city they were mere contributions to the enterprise the same as building material, water pipe, sewer pipe and other articles necessary to secure the ultimate end in view. If, in performing the work of constructing and equipping the hospital and putting the grounds in condition for occupancy, material of any kind were used or disposed of in a negligent or unsafe way, the capacity in which the city acted shielded it from pecuniary liability. When construction was completed and maintenance of the institution as a detention hospital was begun the relation of the city to the project remained the same, and if for any reason the premises were not safe for occupancy by persons detained in the hospital, the same exemption from liability existed. The decision in the case of Butter v. Kansas City, 97 Kan. 239, 155 Pac. 12, which was a detention hospital case, is conclusive. In that cáse an inmate of the hospital, detained there because afflicted with smallpox, was injured by a splinter in the floor,, which it was alleged was maintained in a defective and dangerous condition. The district court overruled a demurrer to the petition. On appeal this court reversed the judgment and directed that the demurrer be sustained. The opinion cites numerous authorities. The syllabus reads as follows:
“Where a municipal corporation maintains a pesthouse for the treatment and isolation of persons who have been exposed to or affected with smallpox, it performs a governmental duty.
“The rule that the governmental agencies of the state are not liable in an action of tort for either misfeasance or nonfeasance is applied to an action against a city to recover damages for personal injuries resulting from the defective condition of the floor of a pesthouse where plaintiff, who was afflicted with smallpox, was confined by the city authorities.” (Syl. ¶¶1, 2.)
It makes no difference in principle whether the building or the grounds appurtenant to the building be defective, and it makes no difference whether the dangerous agency act by pene tration or by concussion. The employees of the city who caused the hospital grounds to be unsafe by negligently failing to remove the portion of the supply of dynamite caps not consumed in blasting may be personally responsible for the consequences of their conduct but the city is not.
The plaintiff cites the case of Cherryvale v. Studyvin, 76 Kan. 285, 91 Pac. 60. The case is stated in the opinion as follows:
“Studyvin sued the city for damages alleged to have been caused to his building by the negligence of the city in blasting a ditch for a sewer in an alley at the side of the building. He recovered judgment for $554, and the city claims that he was entitled to recover only the value of two panes of glass, broken by a rock thrown while blasting.
“Whether the city was negligent in doing the blasting is practically the only issue under the pleadings.” (p. 286.)
The principles invoked by the city in the present controversy were not discussed. None of the numerous previous decisions of this court illustrating those principles was cited. (The State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490; La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272; City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; The State v. Water Co., 61 Kan. 547, 60 Pac. 337; Freeman v. Chanute, 63 Kan. 573, 66 Pac. 647; Water Co. v. Cherryvale, 65 Kan. 219, 69 Pac. 176; Asher v. Water Co., 66 Kan. 496, 71 Pac. 813.)
The city of Cherryvale conceded liability for a part of the injury done. The concession was made because of the declarations of this court in cases like that of Freeman v. Chanute, 63 Kan. 573, 66 Pac. 647, in which the distinction between proprietary and governmental action was drawn with clearness and accuracy.
“There are two kinds of duties which are imposed on a municipal corporation — one arising from the grant of a special power, in the exercise of which the municipality is a legal individual; the other arising from the use of political rights under the general law in the exercise of which it is a soverign. The former power is quasi private and is used for private purposes; the latter is public and used for public purposes. . . . In the exercise of its quasi-private or corporate power a municipality is like a private corporation, and is liable for a failure to use its power well or for an injury caused by using it negligently. In building its waterworks, gas, electric-light plants, sewers, and other internal improvements which are for the exclusive benefit of the corporation, it is in the exercise of its quasi-private power and is liable to the same extent as are private corporations . . . But in the exercise of the political or public power conferred on it as an arm of the state for the benefit of all the people, its officers, although appointed or elected by the city, paid and subject to be discharged'by it, are not the agents of the municipality, but of the state, and the corporation is not liable either for their misfeasance or nonfeasance.” (p. 577.)
The power and the duty to conserve the public health are not matters of private and local interest to the city alone but are public and general in their nature and belong to the same class as the power and duty to conserve the public peace.
The plaintiff cites the case of Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573. The syllabus reads as follows:
“A municipal corporation is performing a ministerial public duty in maintaining a fire station, and is liable in damages to an .employee for personal injuries resulting from the neglect of the corporation to furnish him a reasonably safe place in which to work.”
It will be observed that the word “ministerial” was used and not the word “governmental” in describing the nature of the city’s duty. The gist of the decision was that whether the maintenance of a fire station be referred to public or to private corporate power, a special, private, corporate duty exists to maintain and manage corporate property so that city employees shall have safe places in which to work. (Edson v. Olathe, 81 Kan. 328, 334, 105 Pac. 521.)
The plaintiff cites authorities in which it is said that after legislative judgment and discretion have been exercised and nothing remains but ministerial execution of work which has been laid out a city may be liable for negligence in the conduct of such work. The statement is unobjectionable as a statement of principle if confined in its application to its proper sphere. If the work be work undertaken in the exercise of purely governmental power, performance of the work will also involve the exercise of governmental power. In a certain sense maintenance of a park, or a jail, or a detention hospital may involve the discharge of ministerial duties, but such duties are none the less governmental in character.
“The executive function partakes in any case of the same quality as the legislative function. If an ordinance be ministerial in character, the city will be liable for the failure of its officers to execute the ordinance the same as a private individual would be. If, however, the ordinance be one enacted pursuant to the city’s governmental power, the city is not liable in damages for the nonfeasance or for the misfeasance of its officers in executing it.” (Everly v. City of Gas, 95 Kan. 305, 306, 147 Pac. 1134.)
The answer stated a complete defense to the action and the judgment of the district court overruling the demurrer to the answer is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, Beggs, owns a quarter section of land adjoining which on the east is an eighty acre tract owned by defendant, Newland. On the north of these tracts runs a highway called the Detroit road. In a direction a little north and east the Union Pacific railroad runs across these tracts below the center thereof. From the findings it appears that the parties have owned their respective tracts for several years. Both are located in the Smoky Hill bottom and are level agricultural lands. Each of the parties traces his title to T. C. Henry who owned both tracts in the seventies. Before the Detroit road was opened or the lands improved, surface water caused from heavy rains falling on lands adjoining on the north would run southwest over the defendant’s land, thence to the railroad right of way, thence down the same eastward to the Smoky Hill river. Sometimes such waters would spread out over the northeast corner of the plaintiff’s land, thence southeast over the Newland land to the railroad right of way. While Henry was owner of both tracts he dug a ditch from two to four feet deep running south from the Detroit road to the railroad right of way, twenty-five or thirty feet from the west line of the present Newland tract, the dirt being thrown out on the east side of such ditch. Ditches were also made connecting this with the Detroit road, and one was dug running along the south side of the same to the northeast corner of the Newland eighty, the dirt being thrown out on the north line of the Newland land, forming a dike two or three feet high, and another ditch ran from the west along the north line of the Beggs line, the dirt being thrown out on the Newland side, forming a similar dike. Two bridges or culverts were made across the Detroit road to connect with these ditches, one at the northeast corner of the Newland land and the other near the northwest corner thereof on the Beggs land. These ditches, dikes and culverts have been kept up for the purpose of carrying surface waters caused from heavy rains coming from the land adjoining on the north. They did not carry the surface water in the identical course they would otherwise have taken when the land was in its natural condition, but only varied slightly therefrom. The road authorities acquiesced and cooperated in the building and maintaining of the bridges and culverts across the Detroit road. In times of heavy rains the waters would overflow the ditches and break over the dikes along both the Beggs and Newland lands and wash out the dikes in places. Beggs rebuilt the dike alongside of his land when the same was washed out. He also dug a ditch running across the southwest corner of the Newland land connecting with a ditch running south over his land for the purpose of emptying into the ditch running along the right of way. In 1911 the then owner of the Newland land dug a ditch running south along his east line connecting the highway and the railroad right of way and in times of heavy rains this proved insufficient to carry all the water, some of which turned west and ran in the ditch along the north side of the Detroit road, thence south through the culvert into the ditch running south on the Beggs land. In June, 1914, heavy rains having fallen, the north-and-south ditch on the Beggs land overflowed; some of the crops on the northeast corner thereof were destroyed. Beggs cut two small ditches across the north-and-south ditch to the line fence between his land and Newland’s which caused the water to flow out of the Beggs ditch and spread out over the crop on Newland’s land. When Newland discovered this he filled up these two small ditches at the line fence. All these other ditches, dikes and culverts were and are visible and plain to be seen by any one going upon the land.
The plaintiff, Beggs, sued to enjoin Newland from constructing and maintaining the dike along the west side of Newland’s land and prayed that he be required to abate the nuisance caused by the construction of the dike along the Detroit road. The answer was a general denial and an averment that the plaintiff was injuring the defendant in the same'way in which the latter was charged with injuring the plaintiff and by'cutting through the embankment causing the water to flow on the defendant’s land. Each asked for damages, the plaintiff for $500 and the defendant for $2000.
The court concluded as matter of law that plaintiff had no legal right to make the two small ditches and cast the water upon the land of Newland and that the latter had the right to fill them up to prevent the water from overflowing his land; that the ditch dug by Henry on the Beggs land created an easement which passed by the conveyance, and that the plaintiff was not entitled to an injunction requiring the defendant to remove the dike on the north of his land or the dike on the west of the ditch on plaintiff’s land. The defendant was given judg ment against the plaintiff for nominal damages in the sum of $1 and the plaintiff was adjudged to pay the costs.
The plaintiff appeals and complains that the question of an easement or servitude was not within the issues and was injected into the case without jurisdiction or' authority and that under the evidence the plaintiff was entitled to a decree. We do not deem it necessary to determine whether or not the ditches and dikes were rightly denominated an easement or servitude but we are convinced that the decision of the court was right in effect and that neither party was entitled to an injunction against the other, or to substantial damages. It is stated in the' brief that the plaintiff has conveyed his land and has no further interest in this litigation but no substitution of parties has been asked for.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
The defendants in error object to the consideration of this suit upon its merits for the reason that the court has no jurisdiction. This arises upon the claim that the case was not made in accordance with the provisions of the present statute. At the time of the rendition of the judgment the court ordered:
“The defendants [naming plaintiffs in error] are given ninety (90) days from the 2d day of May, 1903, to make and serve a case for the supreme court, and the plaintiff is given twenty (20) days after such service to suggest' amendments, the case to be signed and settled upon-days’ notice.”
The case was made and settled in accordance with the order thus made. It is objected, however, that this order, while conforming to the statute and practice prior to the enactment of chapter 380 of the Laws of 1903, did not conform to the provisions of that act; that the old law was repealed by the express provisions of that chapter, and hence all proceedings thereafter must conform to the requirements therein contained. We are not disposed to disagree with this contention, but do not agree with the claim that the proceedings in this case did not substantially comply with the provisions of the new law. It is provided in the new statute-that, if the party desires more than the ten days given by the statute within which to make and serve his case-made, the court or judge before whom the case is tried may, on motion, order an extension of that time, which notice, or order, of extension shall be filed with the clerk of the court. The contention seems to be that this extension must be made upon motion, presumably a written motion, not at the time of the rendition of the judgment but at some time subsequent thereto and prior to the expiration of the ten days, and thereupon, such motion having been allowed, and the time extended, notice of such extension must be filed with the clerk. This stateliness and precision of procedure are not required. The motion need not necessarily be in writing; that is, ordinarily, in the absence of statute, rule of court, or well-established practice, it need not. (14 Encyc. Pl. & Pr. 74, 114.) Here the requirement that the court may extend the time “on motion” may well be held to be on request, and without formality. We have already held that the word “notice” should be read “order” (Clark v. Mitchell County, 69 Kan. 542, 77 Pac. 284), and now hold that if a party desiring to make a case for the supreme court wishes longer time than the ten days given by the statute he may, either at the time of the rendition of the judgment, or after (and before the expiration of ten days), request the court or judge to grant such extension, and only in the latter case is it suggested that the order be filed with the clerk. If the extension be made at the time of the rendition of the judgment, and go into the journal entry of judgment, this is a filing of the order of extension. We think there was a substantial compliance with the statute in the making of this case-made.
The petition set out the facts of plaintiff’s case substantially as follow: That she was the daughter and heir at law of one Conrad Schuster, who died on or about the 20th of January, 1899, intestate, leaving as his heirs the plaintiff, Otelia R. Carter, and her sister, the defendant W. K. Howard, who is the wife of defendant L. G. Howard, and the heirs of Bettie Clark, deceased, who was also a daughter of Conrad Schuster; that Conrad Schuster was at the time of his death seventy-six years of age, and that for more than eight years prior to his death he was both bodily and mentally weak and easily influenced; that on the 17th and 19th days of April, 1893, he conveyed by warranty deed all of his real estate, being all of his property, to his two sons-in-law, L. G. Howard and S. M. Clark, the same being worth at the time more than $4000; that he was at the time weak both bodily and mentally, and easily influenced; that the defendants S. M. Clark and L. G. Howard, with the assistance and connivance of their wives, and for the purpose and with the intent to deprive the other lawful heirs of Conrad Schuster of their just shares of his estate, coaxed, persuaded and unduly influenced him to execute these deeds, and thereby convey to them all of his real estate, without consideration therefor, and without paying him anything, and without obligating themselves to pay or do anything for him. The prayer of the petition was that the deeds be. canceled and set aside, that the defendants be held to account for rents and profits, and that partition of the lands be made. Issues were joined by an answer denying the allegations of the petition generally and pleading the statute of limitations. Change of venue was taken to Leavenworth county, where trial of the issues was had before the court, two questions, however, being submitted to a jury. These, with their answers, were as follow:
“Ques. Was Conrad Schuster of sound mind and memory at the time he executed the deeds in controversy? Ans. No.
“Q. Was the execution of the deeds in controversy due to, and the result of, undue influence exerted upon the grantor by the defendants or any of them? A. Yes.”
These answers were approved and adopted by the court, which thereupon set aside the deeds, proceeded to an accounting between the parties for rents and profits, and decreed partition of the premises in accordance with their respective interests as the court found them to be. This judgment the plaintiffs in error, who were defendants below, now seek to have reversed. The claimed errors will be considered in the order in which they are presented.
It is claimed that error was committed in overruling an objection to the introduction of evidence because the petition did not state facts sufficient to constitute a cause of action, first, because it showed on its face that the plaintiff below was out of possession of the real estate in controversy, and the suit, being one in partition and not in ejectment, could not be maintained by one thus situated as against those in possession. The cases of Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, and Chandler v. Richardson, 65 id. 152, 69 Pac. 168, are cited in support of this claim. It must, how ever, be remembered that the suit was not primarily one in partition, but one to set aside deeds fraudulently obtained; that the relief, so far as the partition was concerned, was incidental, and might have been denied even though the deeds had been set aside. In Delashmutt v. Parrent, 39 Kan. 548, 557, 18 Pac. 712, the court used the following language:
“Under our code, however, the fact that the property is held adversely to the plaintiff will not defeat an action of partition when brought in connection with or as part of another action for the recovery of real property. Under our rules of pleading the two causes of action may be united in one action, or they may, when so pleaded, and no objection is made, be tried as' a single cause of action.” (See, also, Scarborough v. Smith, 18 Kan. 399; Kennedy v. Haskell, 67 id. 612, 73 Pac. 913.)
The practice of questioning the sufficiency of a petition by an objection to the introduction of evidence thereunder is not to be encouraged, and such bbjection should be overruled if, upon any fair construction, any cause of action is stated. So here, independently of the considerations already mentioned, we are clearly of the opinion that the court committed no error, because allegations warranting the setting aside of the deeds were clearly contained in the petition.
Again, it is claimed that the petition stated no cause of action because it showed that the bar of the statute of limitations had run — that the deeds, having been executed in 1893, and placed of record shortly thereafter, were secure against attack five years after the date of such recording. This claim could not be true as to the plaintiff Otelia R. Carter, because she had no interest in the land, and consequently no right of action, until the death of her father, and this suit was brought by her in less than six months thereafter. Nor does the petition show that the statute of limitations had run as against the father, Conrad Schuster, prior to his death. The allegation of the petition is that he was mentally weak at the time of the execution of the deeds, and that this condition had existed for more than eight years prior to his death. Being thus mentally weak and under the influence of the sons-in-law, the statute of limitations did not run against him in their favor. More than this, as will hereafter be seen, the case was tried on both sides upon the theory of the mental unsoundness of Conrad Schuster at the time of the execution of these deeds, and the jury found that he was mentally unsound. The presumption is, in the absence of other showing, that this condition continued up to his death (Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745), in which case the statute would not run against him.
It is further contended that the petition was insufficient because there were no facts stated therein constituting fraud; that at most there was but a mere general averment of fraud and undue influence; that specific facts should have been stated, rather than these general averments. This claim would be entitled to some consideration had the question arisen upon a motion to make more definite and certain, but contains nothing substantial, arising as it does upon the objection to the introduction of evidence.
The second claimed error is in the admission of certain evidence over the objection of defendants below. This evidence was that of non-expert witnesses as to the mental condition of Conrad Schuster at and about the time of the execution of the deed. In all of this criticized evidence the witnesses made themselves competent to speak concerning their belief of the mental capacity of Schuster by giving the extent of their observation of his conduct and conversations. It is well settled in this state that a non-expert witness may be permitted to give his judgment as to the sane or insane state of another’s mind after having detailed to the jury the extent of his opportunities to deduce a correct opinion and judgment thereon. In all such cases it is a question for the j ury as to the weight which such opinion should be given, considering the opportunities for, and the accuracy of, such observation. (Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; The State v. Beuerman, 59 id. 586, 53 Pac. 874.)
At the conclusion of plaintiff’s evidence a demurrer was interposed thereto, and overruled. It is claimed that there was no evidence warranting the setting aside of the deeds because there was nothing to show that these deeds had been obtained by undue persuasion or influence by Howard and Clark or their wives. The allegation of the petition was that while Schuster was weak, both bodily and mentally, and thus easily influenced, the defendants Clark and Howard, with the assistance of their wives, “coaxed, persuaded and unduly influenced him, the said Conrad Schuster, to convey and deed to them all his real estate.” There was no specific evidence whatever of any coaxing, per-, suasion, or undue influence. It was shown that while Conrad Schuster was in a weak and unsound mental condition he made these deeds conveying all of his property to his two sons-in-law, without any consideration whatever therefor. This was sufficient evidence to be considered by the court upon the issue presented by the petition. In the nature of things it would be a rare case where the details of conversation or conduct could be shown indicating undue persuasion and influence. Such arts would be exercised only in the absence of witnesses, or, at most, in the presence of those whose interest and inclination would impel to their denial. We may as well judge of the cause from an effect as of the effect from a cause. The fact that one mentally infirm does these things might of itself lead to the fair and just conclusion that he was impelled thereto by undue persuasion and influence, and this fact, being proved, is sufficient to sustain the allegation of the petition. (Paddock v. Pul sifer, 43 Kan. 718, 23 Pac. 1049; Hill v. Miller, 50 id. 659, 32 Pac. 354.)
Complaint is made as to the correctness of three instructions given. There were but two questions submitted to the jury. The first and second of the criticized instructions do not appertain to either of these questions, they could not in any way have influenced the findings of the jury thereon, and hence it is sufficient to say that it is immaterial whether these instructions were correct- as abstract propositions of law or otherwise. The third is as follows :
“The court instructs the jury that, in deciding whether or not Conrad Schuster was of sound mind, or was unduly influenced, at the time of making the deeds in question, you have a right to take into consideration the reasonableness or unreasonableness of his act in making said deeds; and if you believe that a man of sound mind would not have been likely to do such an act in the free exercise of his judgment, discriminating against his own daughter in favor of two sons-in-law, then you have a right to infer from the act itself that undue influence was used to secure said deeds, though not bound to do so.”
We are of the opinion that this instruction is not open to fair criticism. It was certainly proper for the jury, in determining the question of the soundness of Conrad Schuster’s mind, to take into consideration the reasonableness of his actions, and they might also, from the mere fact of the transfer under the circumstances shown, infer that such transfer was brought about by undue influence.
Complaint is made of the refusal of the court to give three requested instructions. Two of these clearly are foreign to the questions submitted for the jury’s determination. The third contains, along with matter that might properly have been submitted, other matter that was foreign to these issues. In such case no error was committed by the court in refusing to submit the instructions. We might add as to both of these last contentions that this was a trial to the court; that the findings of the jury were simply advisory; that, after all, the court was the final arbiter, of the facts submitted to and found by the jury; so that the correctness or incorrectness of the instructions cut but small figure, except it might be to show that the court was adopting a wrong theory in the adjudication of the facts. Such is not the case here.
Upon the hearing of defendants’ motion for a new trial the plaintiff was given permission to amend her petition by inserting an allegation therein that Conrad Schuster, at the time of the execution of the deeds in question, was of unsound mind and memory. Complaint is made that this was an abuse of judicial discretion. We think that this amendment finds ample warrant under section 189 of the code of civil procedure (Gen. Stat. 1901, §4573), and that there was no abuse of discretion in permitting it. On both sides this had been a litigated question during the progress of the trial. Witnesses had been examined upon the question by both parties, and the jury had made its finding of fact upon it. Surely, under such circumstances, it was in furtherance of justice that the amendment was made.
We have given painstaking care to all of the assignments of error and the record in the case, and find no error requiring reversal of the judgment of the district court. It is therefore affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff brought an action to recover damages alleged to have been sustained by loss of property occasioned by the defendant’s having thrown an embankment across a watercourse, upon which to lay its ties and rails and to operate its line of railroad, without having made suitable provision for the flow of the water. Verdict and judgment for plaintiff, to reverse which defendant prosecutes error.
Plaintiff in error makes two contentions: First, that plaintiff’s evidence did not prove that the ravine across which the defendant threw the embankment was a watercourse, and, therefore, the court should have sustained defendant’s demurrer. To this contention we cannot give our assent. The evidence was sufficient to carry the case to the jury. Much of it tended strongly to show that the embankment was across a watercourse, and, at least, was sufficient to justify the court in overruling the demurrer and in submitting the case to the jury.
The second contention is that the defendant was entitled to a judgment on the special findings of the jury. The jury found that the plaintiff’s land was not bottom-land; that there were no bluffs or gorges on either side of the ravine; that the banks had been plowed across in places; that in certain places vegetation grew in the bottom of the ravine; that where the ravine passed through the land of one McDonald the banks had been plowed and alfalfa sowed, and that he once raised a crop of millet in the ravine. We do not think that the defendant was entitled to judgment on these special findings notwithstanding the general verdict. Bluffs and gorges are not necessarily essential to a watercourse, nor do we think that the fact that the banks of this ravine were plowed in places, or that occasionally crops matured in parts of it, is conclusive that it was not a watercourse. The general verdict of the jury was a finding upon the evidence submitted to it, under proper instructions, that this was a watercourse, that sufficient opening had not been left to permit the water flowing therein to escape, and that by reason thereof the plaintiff was damaged.
The judgment of the court is affirmed. | [
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The' opinion of the court was delivered by
JOHNSTON, C. J.:
This was an action by George W. Townsend to recover damages from the Atchison, Topeka & Santa Fe Railway Company for the wrongful death of his wife, occasioned, as he alleged, by the culpable negligence of the railway company. On April 25, 1903, Mrs. Townsend drove a horse and buggy along a public highway, and when she reached a railroad-crossing she was struck by the locomotive of a passing train and killed. The negligence charged against the railway company was the failure of those in charge of the train to give proper signals as they approached the highway, and also in making and maintaining a dangerous crossing. It was averred and shown that a deep cut was made for the railroad at and near the crossing, the dirt from the excavation being piled high on each side of the track, and the highway was cut down in order to cross the railroad at grade. The conditions were such that for a considerable distance a traveler on the highway could not see any part of an approaching train, and the cut was so deep and the obstructions so great as materially to deaden the sound of an approaching train. The testimony tended to show that the intersecting cuts were so deep and narrow that it was impossible for Mrs. Townsend to have seen an approaching train until her horse was on and partially over the track. These cuts and embankments remained as they had been originally made by the railroad company, and the highway had never been restored to its former safe condition for public travel. The jury found that the whistle was not sounded or the bell rung by the trainmen as they approached the highway, and also that the company failed to provide a safe crossing. Townsend recovered $3850, and $1000 of this amount was exemplary damages.
It is first contended that under section 422 of the code Townsend was not entitled to recover damages for the wrongful death of his wife. It provides that “the damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the de ceased.” It is insisted that a husband is not “next of kin” of his wife, and that kinship means relationship by blood, and not by marriage. The reference in the section itself to the statute of descents and distributions furnishes the rule for interpreting the phrase “next of kin.” Under that statute the husband and wife inherit from each other, and it has already been held, in Railway Co. v. Ryan, 62 Kan. 682, 64 Pac. 603, that the phrase, as used in the statute for the recovery of damages for wrongfully causing a death, means kin that inherit from the deceased under the statute of descents and distributions. (See, also, Steel, Adm’r, v. Kurtz et al., 28 Ohio St. 191; The Lima Elec. L. and P. Co. v. Mattie Deubler, Adm’rx, 7 Ohio C. C. 185; Pinkham v. Blair, 57 N. H. 226.)
Complaint is made of the admission of testimony that on other occasions no whistle or warning of the approach of trains at this crossing was heard. If the conditions at the crossing were such that the statutory or ordinary signals were insufficient, then other and more effective warnings should have been given. It was competent to show by witnesses that had made a test at the same place, and under substantially similar circumstances, how far the whistle or bell of trains could be heard, and the effect of the cut and obstructions in deadening the sounds of approaching trains. (Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607.) Some of the testimony objected to was admissible for that purpose, and even if it had not been admissible for any purpose the objections that were made to the testimony were hardly sufficient to challenge the attention of the trial court.
In charging the jury the following instruction was given:
“You are instructed that whenever a railroad in this state is constructed across a highway it is the duty of the railroad company to restore the highway thus intersected to its former state or condition, or to such a state and condition as not necessarily to impair its usefulness as a public highway. In other words, it was the duty of the defendant company in this case, after having crossed the highway in question, to restore said highway, as near as it was possible to do so, to its original condition, and this with special reference to its use as a public highway, now burdened with the additional dangers of being crossed by said railroad company. Therefore, I instruct you that if you find from the preponderance of the evidence that the defendant railroad company failed and neglected to restore the highway in question to its original condition of safety, as far as it was possible for the defendant railroad company to do so, and that said crossing was left by said defendant company in such a condition as to impair its usefulness as a public highway, and permitted by said defendant to remain in a dangerous condition, then the defendant company was guilty of negligence.”
It is contended that the statement that the company should restore the highway as near as possible to its original condition prescribed a higher standard of duty than the law requires. The statute provides:
“Every railway corporation shall have power . . . to construct its road across . . . any . . . highway, . . . but the company shall restore the . . . highway thus intersected or touched to its former state, or to such state as to have not necessarily impaired its usefulness.” (Gen. Stat. 1901, §1316.)
The construction of a railroad over a highway makes it practically impossible to restore the highway to its former condition, but it should be restored to its former state of safety for public travel. It may not be important or necessary that it should be brought as nearly as possible to its original condition, but it is important that it should be restored so that the danger of its use would be reduced as much as possible. A more apt and better expression might have been that the highway should have been restored to its former state so far as it was practicable to do so, or that it should have been restored so as not substantially to impair or endanger its usefulness as a highway. The first part of the instruction complained of is unexceptional, and when the entire instruction is considered it does not seem that the jury could have been misled by the words “as near as possible.” Taken in its entirety, it said, in effect, that the railway company should do everything that was reasonable and practicable to restore the highway to its former state, so that its use for public travel should not be endangered. The inclination of the courts is strictly to enforce the law as to the care to be exercised by both railroad companies and travelers at highway crossings.
The court advised the jury that punitive damages might be allowed in the case if the jury found that the company was guilty of negligence of a gross, reckless and wilful character, and the findings disclose that such damages were awarded to the extent of $1000. Assuming that the negligence was gross and wanton, it is the opinion of the court that exemplary damages may not be allowed in such cases. Eecoveries for wrongful death could not be had under the common law. The right to maintain such actions is given by statute, and damages can only be recovered to the extent that the statute allows. There is a division of judicial opinion on the subject of the allowance of exemplary damages for injuries resulting in death, but at page 363 of volume 13 of the Cyclopedia of Law and Procedure, where the cases are collected, it is said:
“The rule is well established that under statutes giving a right of action for death by wrongful act, exemplary or punitive damages cannot be recovered unless expressly provided for in the statute giving the right of action.”
Our statute provides:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” (Civil Code, §422; Gen. Stat. 1901, §4871.)
It will be observed that no reference is made to damages by way of punishment, and the limitation placed upon the amount of recovery is somewhat inconsistent with the allowance of exemplary damages. No more than $10,000 can be recovered for the wrongful death of any person, and, if the pecuniary loss of the plaintiff equaled that sum, and that amount was awarded, of course no exemplary damages could be given.
The precise point, although considered in a number of cases, has not been expressly decided. The question was suggested in K. P. Rly. Co. v. Cutter, 19 Kan. 83, but the court, finding it unnecessary for the determination of the case, expressly declined to decide it. The character of the damages recoverable in this class of cases was considered in A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443, 458, where it was said:
“We cannot agree that the theory of the law is to punish for 'the mere negligent destruction of life; and the law of compensation means that no more should be given to the next of kin than they probably would receive from the decedent if his life had not been taken away.”
In the case of Coal Co. v. Limb, 47 Kan. 469, 471, 28 Pac. 181, it was said:
“This is an action for compensation only, and no damages can be recovered, by the plaintiff below except for the pecuniary loss which the parent sustained by the death of the son.”
In the case of U. P. Rly. Co. v. Sternberg, 54 Kan. 410, 418, 38 Pac. 486, it was remarked:
“As the jury were informed, the law must give the child only the amount of his pecuniary loss. Nothing is allowed for the suffering of the deceased nor for the sorrow of those he left, but just the value to the child of his life, in money.”
In Railway Co. v. Ryan, 62 Kan. 682, 687, 64 Pac. 604, the nature of the action was under discussion, and it was said:
“An action of the character of this one is purely compensatory. It is brought to recover for pecuniary loss consequent upon the death.”
Although the allowance of exemplary damages was not directly drawn in question in the cases cited, the view taken by the court as to the nature of the action indicates quite clearly that nothing can be allowed by way of solatium or as punishment.
In most of the states the courts have declined to allow exemplary damages. For instance, they have been rejected in Minnesota, Oregon, Indiana, New York, Michigan, South Carolina, Wisconsin, Iowa, Georgia, Pennsylvania, Illinois, North Dakota, South Dakota, California, Maine, Washington, Texas, Colorado, Alabama, and Ohio. Such damages have been allowed in the states of Connecticut, Colorado (under an early statute), Alabama (under a “homicide act”), Kentucky, Virginia, West Virginia, Tennessee, Missouri, Washington, Texas, and South Carolina. Exemplary damages were allowed in Colorado under a statute giving damages in general terms, but on a slight modification of the statute the court refused to allow exemplary damages. (Moffatt v. Tenney, 17 Colo. 189, 30 Pac. 348.) In the state of Alabama, under “An act to prevent homicides,” the damages recoverable were treated as entirely punitive, and hence exemplary damages were awarded; but under the “employers’’ act,” giving damages for the injuries resulting from the death of employees, it was held that exemplary damages could not be recovered. (Louisville & Nashville Railroad Co. v. Orr, 91 Ala. 548, 8 South. 360; Louisville & Nashville Railroad Co. v. Trammell, 93 id. 350, 9 South. 870.)
In Kentucky, one of the states in which such damages are allowed, it is expressly provided in the statute that punitive damages may be recovered. The same is true of Washington and New Mexico. In Texas, under a statute providing in general terms that damages might be allowed, exemplary damages were refused, but under a recent constitutional provision exemplary damages are expressly authorized. Under a general statute of South Carolina the courts declined to allow exemplary damages (Garrick v. Railroad Company, 53 S. C. 448, 31 S. E. 334, 69 Am. St. Rep. 874; Nohrden v. Railroad Company, 54 id. 492, 32 S. E. 524) ; but the legislature of that state recently amended the law so as to authorize exemplary damages. In the states of California and South Dakota exemplary damages were expressly given by statute, but since that time the statutes have been changed, eliminating that kind of damages. (Lange v. Schoettler, 115 Cal. 388, 47 Pac. 139; Smith v. Chi. M. & St. P. Ry. Co., 6 S. Dak. 583, 62 N. W. 967, 28 L. R. A. 573.) Washington is classed among the states which allow exemplary damages, and while the statutory provision that “damages, pecuniary or exemplary, as under all circumstances of the case may to them seem just,” are permitted, yet the court held, in Walker v. McNeill, 17 Wash. 582, 50 Pac. 518, that the recovery was limited to pecuniary damages. In the early case of The Spokane Truck and Dray Co. v. Hoefer, 2 Wash. 45, 25 Pac. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842, the doctrine of exemplary damages was held to be unsound in principle. Under a section of a statute of that state providing that the father may maintain an action for the injury or death of a child it was held that exemplary damages could not be recovered. (Atrops v. Costello, 8 Wash. 149, 35 Pac. 620.)
It thus appears that, with*a few exceptions, exemplary damages are not allowed unless expressly provided for by constitution or statute. In some courts the holding is based to some extent upon the peculiar language of the statute giving damages, but generally it is placed on the nature of this new statutory right of action. Until the statute was passed no one could recover for the death of a relative. The first statute, known as Lord Campbell’s act, was the pattern upon which the American statutes were framed. It was early decided in England that the relatives of the deceased could not claim any damages that might have been claimed by the person injured if death had not resulted, but could only obtain compensation for the pecuniary loss which they sustained in his death. This theory, it was held, excluded damages for the pain and suffering of the deceased, or for the mental anguish or distress of his relatives, or for the loss to them of the society of the deceased, and, the damages being simply compensatory, they necessarily excluded punitive damages. In adopting the statute most of the jurisdictions have adopted the interpretation which the courts had given to it, and from the earliest cases this court has held that the damages recoverable are for the pecuniary loss sustained by the next of kin of the deceased. This theory necessarily excludes any award as solatium for the next of kin, or as punishment for the defendant.
It follows that the judgment must be modified by striking out the award for exemplary damages, and in all other respects it is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The facts of this case are similar to those of Hudson v. Remington, immediately preceding. So far as the questions involved are the same nothing need be said but that the conclusions there announced will be applied here. One additional question is now presented, however, growing out of the condition of the pleadings. The answer included a plea of the statute of limitations, which was good upon its face. The plaintiff filed a supplemental petition, the allegations of which are not here important. The defendant then filed an amendatory and supplemental answer, in which he alleged that the defendant was a foreign corporation doing business in Kansas and that it had not complied with the statute (Gen. Stat. 1901, §1283) imposing certain duties upon such corporations as a condition to maintaining actions in the courts of this state. These allegations, if accepted as true, constituted a good defense, unless their effect was avoided by the fact that the indebtedness sued upon originated prior to the passage of the statute invoked, a question which need not be here determined. No reply was filed. The defendant filed a motion for judgment upon the pleadings, which was denied. Upon the trial he made an objection to the introduction of any evidence by the plaintiff, which was also overruled. In the course of the trial, however, admissions were made which eliminated the question regarding the statute of limitations. The court made findings of fact, which included a statement that the evidence did not show whether or not the plaintiff had been doing business in the state. Judgment was rendered for the plaintiff, and the defendant in prosecuting error complains of the ruling denying him judgment upon the pleadings and of that overruling his objection to the introduction of any evidence..
As the pleadings stood, it is obvious that the defendant was entitled to judgment by reason of his allegation that the statute of limitations had run and also by reason of that relating to the failure of plaintiff to comply with the statute regarding foreign corporations doing business in the state. Either of these allegations, there being no denial, was sufficient to require a judgment for the defendant; but in the case-made the record of the rulings upon the motion for judgment upon the pleadings is preceded by a recital that the attention of the court was not called to the fact that no reply had been filed, and that the court heard the cause upon the theory that all issues had been joined. It is a familiar rule that “where a case has been tried, without objection, as though the pleadings raised a certain issue, the objection that the issue was not raised by the pleadings cannot be made for the first time in the appellate court.” (2 Cyc. 672.) Plaintiff in error does not question the soundness of this rule, but denies its application. He argues that although the trial court assumed that a reply had been filed the defendant did not, but by his motion for a judgment on the pleadings presented the very objection which he now urges. To be available in a reviewing court, however, an objection must be specific.
“Specification of the particular grounds or reasons upon which a party asks the court to make a ruling in his favor is necessary, as indicated in the preceding paragraph, to prevent a violation of the settled rule that parties must abide by the theories assumed in the trial court, and also to prevent a violation of the subsidiary doctrine that a party cannot urge one point in the trial court and another on appeal. It is also necessary to prevent a violation of the wider doctrine than either of those stated, that is, the fundamental doctrine that appellate jurisdiction is one of review.. But there is still another reason why the grounds of objection should be specifically stated, and that is this: Common-fairness to the adverse party requires specification, inasmuch as it is but just that he should be informed of the real nature and full force of the objections which he is required to meet and given an opportunity to obviate them.” (Ell. App. Proc. §770.)
The claim of the defendant that he was entitled to a judgment because his supplemental answer contained averments which, if true, showed that plain tiff could not maintain its action, and that these averments had not been denied, was special in its nature. It was incumbent on him, in order to take advantage of it, to present it in a manner so specific as fairly and reasonably to challenge the attention of the trial court. He in fact fell far short of this. His motion for judgment was in these words: “.Comes now the defendant and moves the court for judgment for costs on -the pleadings.” No ground whatever was assigned in the motion itself, and whatever else may have been said in argument no reference was made to the absence of a reply.
Three reasons were given in support of the objection to the introduction of evidence, all of them'relating expressly to the contents of the petition, and none of them relating, directly or otherwise, to the answer or to the want of a reply. To reverse a judgment on account of either of the rulings complained of, when made under such circumstances, would be to permit the very injustice against which the rule referred to is designed to guard. (The State v. Everett, 62 Kan. 275, 62 Pac. 657.)
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Failing in its effort to lodge in this court a case-made showing all the proceedings of the district court, the plaintiff in error attached to its petition in error a transcript of the record. The transcript shows no motion for judgment on the pleadirigs, no objection to the introduction of testimony under the pleadings, no ruling upon any such motion or objection, and no exceptions to any such rulings. Therefore, assignments of error numbered one, two and three cannot be considered. The propriety of such an instruction as is referred to in assignment of error No. 4 cannot be determined without viewing the evidence introduced at the trial, and the transcript contains no bill of exceptions. Assignments of error Nos. 6, 7, 8, 9 and 10 all require an examination of evidence which has not been preserved, in order to judge of their merit. The argument made in support of assignment No. 5 is based upon a consideration of the instructions to the jury, and their validity cannot be ascertained without an investigation of proceedings not shown by the transcript.
The answer of the plaintiff in error filed in the district court was denied under oath, and a discussion of its right to ,a judgment upon the pleadings would involve an entirely profitless expenditure of time. True, the court instructed the jury that the case of Pitcher and others against the Missouri, Kansas & Northwestern Railroad Company did not constitute a settlement of the issues in the case now under consideration, but, paraphrasing the brief of plaintiff in error, this court can say that it is evident that somewhere in the case facts supporting the instruction were either admitted by the plaintiff in error or were established in some other way.
After the filing of its original brief in this court the plaintiff in error filed a supplemental brief, raising for the first time in the history of the case, either in this court or in the district court, a question relating to the validity of the selection of the judge who presided at the trial in place of the regular judge, who was disqualified. The question cannot be considered.
Section 544 of the civil code (Gen. Stat. 1901, §5028) requires that in a proceeding in error in this court the petition in error shall set forth the errors of which complaint is made, whether the purpose be the reversal, vacation or modification of the judgment of the district court. The petition in error in this proceeding makes no reference whatever to the matter discussed in the supplemental brief; hence, a judgment of vacation upon the ground urged would be purely gratuitous, and without support in the record.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The defendant in error filed a motion to dismiss this proceeding because the' judgment against defendant in the court below did not exceed $100. The value of the property in controversy, as .alleged by the plaintiff in his petition, exceeded $100. The plaintiff below having obtained possession of such property by the order in replevin, and no redelivery bond having been executed, the property was in his possession when the judgment was rendered. A judg ment against the defendant for costs necessarily carried with it the right of the plaintiff to retain possession of the property, which, for the ‘purpose of this motion, was of the value alleged in his petition. The motion to dismiss is, therefore, denied.
It will be observed that the answer states that the property in question was intoxicating liquors; that prior to its seizure the plaintiff was using it in maintaining a public nuisance in the city of Topeka; that Frank M. Stahl was the chief of police of said city; that a complaint, charging the plaintiff with being the keeper of a place where intoxicating liquors were sold in violation of an ordinance of the city of Topeka, had been filed in the police court, upon which a warrant for the arrest of the plaintiff and an order for the seizure of the property had been issued to Stahl, as chief of police, commanding him to arrest the plaintiff and seize the property; that the warrant and order had been served by arresting the plaintiff and seizing the property, and that when it was taken in replevin it was being held under such order of seizure pending a hearing and determination whether it was being used by the plaintiff in the maintenance of a nuisance. The demurrer admits all of these facts.
The contention of the defendant in error is that cities of the first class have no legislative authority to enact and enforce ordinances for the suppression of nuisances under the prohibitory law and for the seizure and destruction of all property used in maintaining such nuisances; that section 7 of chapter 232, Laws of 1901 (Gen. Stat. 1901, §2499), which attempted to confer such authority upon all cities in Kansas, was repealed by chapter 122 of the Laws of 1903, commonly called “the first-class-city charter act.”
We are of the opinion that the charter act does not, either directly or by implication, repeal chapter 232 of the Laws of 1901, or any part thereof. On the contrary, it appears quite plain that in the enactment of the charter act the legislature had in mind the provisions of chapter 232 and other similar statutes, and, in view thereof, enacted section 198 of the charter act, which provides that “all existing laws and ordinances not inconsistent with the provisions of this act shall remain in full force and effect.” We find nothing in chapter 232 of the Laws of 1901 in conflict or inconsistent with the provisions of the charter act; therefore, under the saving clause, it must be held that the legislature did not intend to repeal such act, but that, in so far as it was applicable to cities of the first class, it should stand and become a part of the act of 1903.
It will be observed that the so-called charter act of 1903 has application to cities of the first class only, and if we should give it the construction contended for by the defendant in error we would have a statute conferring such power on cities of the second and third classes and withdrawing it from cities of the first class. This condition would be strangely inconsistent with the policy pursued in Kansas for the past twenty-five years with reference to the suppression of the sale and use of intoxicating liquors as a beverage. It has been the constant effort of the legislature during that period of time to enact new laws of such character, and to amend the old ones in such ways, as to make the prosecution and conviction of persons engaged in this unlawful traffic more certain. It is within the knowledge of every person that in cities of the second and third classes such laws are reasonably well enforced by the county officials of the county in which such cities are located. It is equally well known that in counties where cities of the first class are situated county officials are unable, because of the additional duties arising from a greater population, to give the time to such prosecutions that would be expected from such officials in less .populous counties. Therefore, we would hardly expect the legislature to deprive such cities of the power to enforce the law in question by the enactment and enforcement of ordinances.
We think, therefore, that cities of the first class, in so far as the legislature could confer the power, may provide by ordinance for the prohibition of the sale of intoxicating liquors contrary to law, the suppression of common nuisances, and the seizure and destruction of all intoxicating liquors and other property used in maintaining a common nuisance.
A second contention is that if section 7 quoted in the statement is not repealed it is unconstitutional, at least in so far as it attempts to confer authority upon cities to provide by ordinance for the seizure and destruction of intoxicating liquors and other property used in maintaining a common nuisance under the prohibitory law. This contention is based on the right of such claimant to a jury trial in determining whether such property has been so used in violation of law and the absence of power in the police court to grant a jury trial, and the further contention that there is no provision in the law for an appeal from a judgment of the police court ordering the destruction of such property. In Kansas intoxicating liquor is property, and before it can be ordered destroyed the claimant thereto is entitled to a trial by jury of the question whether it has been used in violation of law. There is no authority for such a trial in the police court, but the act that conferred upon cities the authority to pass and enforce such ordinances provides for an appeal by the claimant of such property, as shown by that portion of section 4 of chapter 232, Laws of 1901, which is quoted in the statement. The provision conferring such authority upon cities is not, for the reason suggested, unconstitutional or void.
Some incidental questions are presented by defendant in error, but the controlling ones are decided.
The judgment of the court below is reversed, with instructions to overrule the demurrer.
All the Justices concurring. | [
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Per Curiam:
Under the provisions of paragraphs 422 and 422a of the civil code (Gen. Stat. 1901, secs. 4871, 4872), on the trial of an action for damages by a woman who has alleged in her petition that she is the widow of a deceased whose death was caused by the wrongful act or omission of the defendant, that the only other surviving heir of the deceased is a minor daughter, and that no executor, administrator or other personal representative of said deceased has ever been appointed, it is incumbent upon the plaintiff, the defendant having denied these allegations, to prove each one of these essential facts. (City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113.)
In this case the plaintiff offered quite voluminous evidence as to the cause and circumstances of the death of the deceased but no evidence whatever of any of the foregoing essential facts, and rested her case. The defendant filed a demurrer to the evidence of plaintiff and after argument the court sustained such demurrer. No application to reopen the case being made, judgment was rendered against plaintiff for costs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
Appellant was cónvicted of maintaining a liquor nuisance. When he was arrested his place of business, a general-merchandise store, was searched and a large quantity of whisky was found there in a locked box. He had no permit to sell intoxicating liquors. On the trial he claimed the liquor found was kept for his own use. Instructions to the effect that he had the right to keep intoxicating liquors at his place of business for his own use were refused in the terms in which they were couched, and the court instructed the jury as follows:
“In prosecutions for maintaining common nuisances, such as charged in the eleventh count in the information in this ease, it is by law provided that the finding of intoxicating liquors in the possession of any one not legally authorized to sell the same, except'in a private dwelling-house, not used in connection with a place of business, shall be prima facie evidence that such liquors are kept for sale or use in violation of law.
“It is not an offense, under the law of Kansas, for a person to keep intoxicating liquors for his own use, and a person may lawfully keep intoxicating liquors for his own use at his dwelling-house, and not raise any presumption against his lawful possession of the same.”
This was sufficient. The defendant was not prosecuted for keeping liquor at his store for his own use. His right to keep liquor anywhere for his own use was stated in the broadest possible manner in the first’sentence of the last instruction quoted; but he cannot keep intoxicating liquor except in a dwelling-house not used in connection with a place of business without making a prima facie case that such liquors are kept for unlawful purposes, provided, of course, he is not legally authorized to sell. The meaning and effect of prima facie evidence was correctly stated by the court. (Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.)
Other errors assigned relating to the giving and refusing of instructions were not such as to affect the substantial rights of the appellant, and hence must be disregarded under the statute. (Gen: Stat. 1901, §5731.) The evidence was sufficient to support the verdict.
The defendant was competed on a second trial, which was rendered necessary by the disagreement of the first jury. The record relating to the discharge of the first jury reads as follows:
“The jury in this case having been out deliberating about forty hours, and not having arrived at a verdict, and not having reported, said jury are now by the court brought into open court, and are called, and, all being present, the court asks the jury if a verdict can be reached in this case, and the jury say ‘No.’
“Thereupon the jury are discharged from the further consideration of this cause, to which ruling of this court in discharging the jury at this time the defendant at the time duly excepted, and still excepts.”
Appellant offered no objection whatever to the second trial, nor to any of the proceedings upon the second trial, nor to the judgment finally rendered against him, based upon the discharge of the first jury, and the question of the legality of the conduct of the court in that respect is raised for the first time in this appeal. In the brief it is said:
“The judgment and sentence were utterly void. The trial court was without jurisdiction to try this defendant, when he had been formerly acquitted of the same crime. The judgment and sentence were beyond the jurisdiction of the court, and in direct opposition to an express provision of the constitution of this .state.”
Ordinarily former jeopardy must be pleaded in bar of further prosecution, and such plea must be interposed upon arraignment before pleading to the merits. If, however, upon a second trial of the same action it be claimed the accused was put in jeopardy by the first proceeding, and the record itself discloses all the facts, they need not be pleaded anew, nor proved aliunde. Upon the question of former jeopardy being raised, the court will take cognizance of such facts from the record, and determine their proper legal effect as if upon demurrer to a plea reciting them. In some states a plea must always be filed. This rule, however, involves the criminal procedure in numerous technicalities which seem to place more stress upon form than upon substance. In other states special statutory regulations are controlling. The right to be protected is created by the constitution, and should not be hedged about by artificial restrictions. The rule announced above is consonant with the general provisions of the code of criminal procedure of this state, and meets all the requirements of substantial justice as between the state and the accused. It is likewise supported by authority.
“The purpose of a plea is to' tender an issue upon some fact not already in the case, that proof may be taken in respect to it if the issue is accepted. If the fact is already in the case, the plea is idle; and it becomes an absurdity when the fact is not only established by the record of the .court in the very case in which the plea is tendered, but so conclusively established that no averment to the contrary could be listened to or received. And such was the case here. The proceedings on the former trials were recited in the record, as much at large as they were or could be in the pleas, and the respondent was entitled to all the benefits which the law could give him, the facts so appearing.” (People v. Harding, 53 Mich. 481, 484, 19 N. W. 155, 156, 51 Am. St. Rep. 95.)
(See, also, Woodward v. The State, 42 Tex. Cr. Rep. 188, 58 S. W. 135; Peters v. United States, 94 Fed. 127, 36 C. C. A. 105; People v. Taylor, 117 Mich. 583, 76 N. W. 91; George v. State, 59 Neb. 163, 80 N. W. 486.)
The immunity from second jeopardy granted by the constitution is, however, a personal privilege which the accused may waive. (The State v. McCord, 8 Kan. 232, 243, 12 Am. Rep. 469; The State v. Rust, 31 id. 509, 3 Pac. 428; The State v. Hart, 33 id. 218, 6 Pac. 288; The State v. Terreso, 56 id. 126, 42 Pac. 354; The State v. Morrison, 67 id. 144, 72 Pac. 554.) Under all the authorities such a waiver may be express or may be implied, and in fact generally it is implied. (17 A. & E. Encycl. of L. 605.)
When about to be placed in jeopardy before a second jury the accused may, if he so desire, take the chances of a favorable verdict. Should he choose so to do no one can gainsay him; but it is his duty to make his election then. If it be his purpose to rely upon his right to bar further proceedings he should then so declare. He cannot hazard a trial and when defeated revert to a matter which would have prevented a trial. Failing to interpose an objection to entering upon a second trial, he must be held to have waived the right to do so and must e abide the result that he invited. (The State v. Durein, 70 Kan. 1, 78 Pac. 152.)
“To allow a defendant, as was done in this case, to sit idly by during the progress of his trial, and then-upon conviction set up, upon motion in arrest of judgment, or for a new trial, a special defense that he could have raised at the very inception of the trial, would be to sanction a practice which might well be termed trifling with the court.” (People v. Bennett, 114 Cal. 56, 58, 45 Pac. 1013.)
But it is said that under the authority of Hans Nielsen, Petitioner, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118, the district court had no jurisdiction to enter upon the second trial with the record of the first trial in the same case before it. Whatever may be the correct interpretation of the decision referred to, the district court did not lose jurisdiction of the appellant in this case. The record of the first trial disclosed cer tain facts the legal effect of which the district court had full jurisdiction to declare. Before the second trial the appellant might have challenged a decision of the question whether such facts were sufficient to make out a case of former jeopardy. The district court then would have been compelled to make a judicial determination of the question of law thus raised. It might have discharged the appellant, or it might have held him for trial. What its decision should have been if appellant had taken the course indicated is at-least debatable, and this court now expresses no opinion upon the point. But the district court was not limited to jurisdiction to decide in appellant’s favor. It would not have lost jurisdiction by deciding against him. Its judgment would not have been void even though it had been erroneous. And the fact that a constitutional right was involved would not have affected the question of jurisdiction. (Clevinger v. Figley, 68 Kan. 699, 75 Pac. 1001.) This being true, whether or not appellant invoked a ruling is immaterial, and the district court retained jurisdiction over him until final judgment was pronounced.
The record being free from material error, the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Carrie Merritt was the owner of a small tract of land in the city of Galena, upon which she erected a building and placed therein an engine, boiler and pipes for the purpose of operating a greenhouse. In 1889 the defendant purchased the adjoining lots, and erected and put in operation a foundry and machine-shop thereon. The present action was brought by Carrie Merritt to recover damages alleged to have been sustained: (1) To her real estate, by the defendant’s having filled up his lots so that the surface-water flowed by defendant’s premises and upon those of plaintiff; (2) for the total destruction of her property as a greenhouse by steam, hot air, gas and cinders emitted from defendant’s foundry and cast into and upon her building, thereby rendering it wholly useless for growing bulbs and plants; (3) for loss of certain plants and bulbs which she had in stock, and' which were killed by the hot air, gas, steam and cinders cast upon them by the defendant in the operation of his foundry and machine-shop. Plaintiff recovered judgment and defendant prosecutes error.
The serious question raised by plaintiff in error grows out of his contention that plaintiff below was permitted to recover damages for injury to her real estate occasioned by surface-water which flowed over her premises after the defendant had filled up his lots. To meet this contention the defendant in error urges that such injury was not submitted to the jury on the trial of the cause, and was not an ingredient, or element, considered by them in determining the extent of the injury to plaintiff’s real estate. The question really is, Was such element of damage before the jury? Pertinent to this inquiry the following allegations are found in plaintiff’s petition:
“That by reason of said erection of said foundry and its adjacent buildings, all by and adjacent to the property of this plaintiff, and the throwing up of a large amount of dirt in and about the same, the water that would have naturally passed away from plaintiff’s premises without injury to same, and into the sewer, was diverted from its regular course, and, each and every time a rain of any magnitude would fall, would cause the water to back up and run over said premises, and said water, together with said smoke, fire, heat, cinders, and gas and steam, descended upon plaintiff’s premises to that extent and degree that the same became a nuisance, and that it had been carried on in said manner for a period of about fifteen months.”
At the trial the plaintiff testified as follows:
“Q. You spoke awhile ago of their throwing up some dirt, or some embankment; where was that? A. Up next to the railroad-track.
“Q. What effect, if any, did that have upon your property? (Question objected to on the ground that it is incompetent, irrelevant, and immaterial, which objection was by the court overruled, to which1 ruling of the court the defendant then and there excepted.) A. It stopped the chance to drain off the water that came down through there. There was an open sewer south of the track that carried off all the water, and I was not troubled with that until after they did that, and then the walks would sink and rise half-way up the grade. Before that I was not troubled with water; and it was impossible, no matter how cold the weather was, I could not have a fire.”
Counsel moved to strike out that portion of the testimony, or answer, beginning with the words “Before that I was not troubled with water,” etc., which was denied, and excepted to. Testifying further, she made answer as follows:
“Q. You say it ran from the railroad-track over your ground? A. Yes, sir.
“Q. When? A. In that same fall, after the foundry was built there.
“Q. How many times did it do that? A. Every time we had a rain that amounted to anything.
“Q. Where did that water come from? A. From the east and down through the lumber-yard, and it raised up there until it overflowed my place.
“Q. It came around the lumber-yard? A. Yes, sir; it came through the lumber-yard. You understand the ground is filled up farther than my place, and the water came from that way and came in.”
The defendant made the following application to the court:
“We now ask that the court strike out and take from the jury all of the testimony which was introduced here yesterday, on the question of water overflowing the land of the plaintiff, for the reason that, the testimony shows that the only water which did overflow her land was mere surface-water, and for that reason we say that should not be considered by the jury in determining the question of damages as. to the real estate of this plaintiff.”
This motion was denied. After stating the nature of plaintiff’s business and the proximity of her premises to those of defendant, and the claim made by plaintiff, the court further informed the jury as follows:
“The defendant erected on his premises, adjacent to hers on the south, a foundry and machine-shops, and in conducting them so raised the ground on his premises as to turn on her premises the flow of surface-water, which had theretofore flowed in a direction away from her premises, and then so conducted his business at such foundry and machine-shops as to create great quantities of smoke, soot, cinders, steam, and gas, which were carried and wafted over, on and into her green- or hothouse, and destroyed more than $100 worth of her plants and flowers, and greatly injured the balance, and to the extent that her business was destroyed; and further, that the operation of said foundry and machine-shops made disagreeable noises, all of which rendered her premises unfit and useless for the purposes for which she had fitted and used them, and depreciated the value of her real estate to the extent of $1500, and she was compelled to abandon her premises and remove to another site, at great expense. The expense incident to such removal is not, however, a matter for your consideration.”
We think the liability of the defendant for damages to the plaintiff for injuries resulting from the surface-water was before the jury, and, as the case was submitted to them, they were at liberty to find for plaintiff for any injury they thought she had sustained thereby. Under the well-settled rule in this, state, no liability is incurred for turning surface-water upon the premises of another or for damming against such water. (Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249; Singleton v. Railway Co. 67 id. 284, 72 Pac. 786.) We think this question should not have been submitted to the jury, and for this error the judgment must be reversed.
Plaintiff in error calls our attention to the rule adopted by the court in proving damages. There is some justification for complaint. It appears, how ever, that this was but an inadvertence, and, since the cause will be retried, it is probable that the rule will be more strictly observed on the retrial.
The judgment of the court below is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
This case was tried before the Honorable Charles E. Lobdell, as judge pro tern, of the district court of Gray county, November, 1903, and after judgment in favor of the defendants the court extended the time for making and serving a case-made from the 11th day of November, 1903, to and including the 4th day of April, 1904, and allowed the defendants ten days thereafter in which to make and serve sug gestions of amendment, and ordered that the case be settled and signed on three days’ notice in writing by either party to the other, “such signing and settling to be at the city of Dodge City, in Ford county, Kansas, in said judicial district, within the above-limited time.”
Under numerous decsions of this court defining the powers of a judge pro tem. Judge Lobdell lost jurisdiction to settle this case at least as early as the 15th day of April, 1904. The case-made, however, purports to have been settled and signed by him at Dodge City on the 27th day of June, 1904. We cannot, therefore, consider any of the questions raised in this case unless the record as presented here is a transcript. On the 4th day of April, 1904, Charles A. Kraft, as clerk of the district court of Gray county, certified under the seal of the court, in a certificate attached to the papers in this case, “the above and foregoing to be a true, full and complete copy of all papers, proceedings, and papers.” This is not a sufficient certificate to justify us in treating it as a transcript of the record. In fact, it does not include a certificate that it is a true copy of the record. (Railway Co. v. Preston, 63 Kan. 819, 66 Pac. 1050; Butler v. Scott, 68 id. 512, 75 Pac. 496; Byers v. Leavenworth Lodge, 54 id. 321, 38 Pac. 302; Cook v. Challiss, 55 id. 363, 40 Pac. 643; rule 2 of supreme court.)
The proceeding in error is dismissed.
Mason, J., not sitting. | [
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The opinion of the court was delivered by
William R. Smith, J.:
The difficulty in the way of a recovery by plaintiff below lies in the lien statement and notice. The Western Sash and Door Company stood in the relation of a subcontractor to the church trustees. It sold the material to Buckner. Its president so testified, and its counsel here concede the fact. To establish a valid lien it was required by law to bring itself squa-rely within the statute. That part of section 5119, General Statutes of 1901, relating to subcontractors’ liens, which is applicable to the case in hand reads:
“Any person who shall furnish any such material . . . under a subcontract with the contractor . . . may obtain a lien upon such land from the same time, in the same manner and to the same extent as the original contractor, for the amount due him for such material, ... by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished . . . under such subcontract, a statement verified by affidavit, setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such lien upon the owner of the land; . . . provided, that the owner of any land affected by such lien shall not thereby become liable to any claimant for any greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified; and no owner shall be liable to an action by such, contractor until the expiration of said sixty days, and such owner may pay such subcontractor the amount due him'from such contractor for such labor and material, and the amount so paid shall be held and deemed a payment of said amount to the original contractor.”
A reference to the statement for a lien will show that it is defective as a subcontractor’s lien in that it recites that the contract for the sale of the material was made with the owner direct, the latter being assisted in the purchase by Buckner, the contractor. The word “contractor” appears but once in the lien statement, and" then as descriptio per sonsa of Buckner. The name of the owner is specifically set forth, also the name of the claimant, but the name of the contractor is .incidentally mentioned as descriptive of the person who helped the owners buy the material of the sash and door company. A copy of the lien, accompanied by the notice of its filing, was served on the church trustees. The statute provides that “the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified” — that is, from the date when the material was last furnished. No risk was incurred by payment to Buckner by the church trustees, because plaintiff does not assert in the lien or notice that Buckner was the “original contractor.” There seems to have been a studied purpose of the lien claimant not to place itself in the attitude of a subcontractor dealing alone with Buckner. It so phrased the lien statement that it might be available if the evidence showed it to be either the original contractor or a subcontractor.
In McIntyre v. Trautner, 63 Cal. 429, a case which is almost parallel in its facts to the present one, the lien notice contained a statement “that one George Scheibel was the name of the contractor who, ‘as such contractor and as agent for and on behalf of said Trautner (defendant), entered into a contract with said McIntyre (plaintiff), under and by which’ the work was done and materials furnished.” It was held that the words “as a contractor” were surplusage and did not “detract from the effect of the statement that Scheibel, in employing plaintiff, acted as agent for the defendant.” (See, also, Denver Hardware Co. v. Croke, 4 Colo. App. 530, 36 Pac. 624.)
The prayer of the petition is appropriate to an action brought by plaintiff below as an original contractor with the owner of the property. It asks for a personal judgment against Buckner and also against the church trustees. If the Western Sash and Door Company was a subcontractor it could not recover a personal judgment against the owner. (Hodgson v. Billson, 12 Kan. 568.)
When this case was here before (65 Kan. 5, 68 Pac. 1080) comment was made on the fact - that the lien statement showed that the material was sold by the sash and door company direct to the church corporation. The questions involved now were not decided, however, at the former hearing. The statement for a lien and the notice not being sufficient under our statute to fix a subcontractor’s claim on the church property, the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Mason, J.:
In 1885 the respective owners of two adjoining lots entered into a written contract, by the terms of which it was agreed that one of them, who was about to erect a brick-and-stone building upon his lot, should place one of the walls upon the dividing line, and that when the other should build he would use this wall as a division wall, and pay him half its value. The agreement concluded with these words:
“The parties hereto bind and obligate their heirs, executors, administrators and assigns to the fulfilment of all the terms and covenants of this agreement.”
The building was accordingly erected. In course of time the lot on which the building stood was conveyed to Hiland Southworth and the other lot to E. L. Perring. In 1901 Perring built upon his property, and made use of the party wall. Southworth then demanded of him pay for half its value, and upon payment’s being refused brought action to enforce it. Judgment was rendered against the plaintiff, who prosecutes error.
As appears from this statement the questions involved are: (1) Whether the right to compensation provided for in the contract, under the circumstances stated, remains with the individual who constructed the wall, or has passed to Southworth in virtue of his being the owner of the lot upon which the first building was erected at the time the wall was made use of by the adjoining proprietor; (2) whether the liability to pay a part of the value of the wall still exists against the original owner of the second lot, who made the contract, or has shifted to its present owner, who made use of the wall. Similar contracts have been a fruitful source of litigation, and the question whether they are to be treated as purely personal to their makers or may be regarded as creating covenants running with the land is one upon which there is much diversity of opinion and conflict of authority. The adjudicated cases are so completely gathered and so thoroughly digested in a note to Cook v. Paul, 4 Neb. (unofficial) 93, 99, 93 N. W. 430, published in volume 66 of the Lawyers’ Reports, Annotated, page 673, that there would be little purpose in attempting to add to the presentation there made of the state of the law on the subject, as disclosed by the decisions of the courts. An editorial note on the subject in volume 89 of the American State Reports, page 941, gives a concise but comprehensive review of the arguments and authorities by which the various theories adopted are supported, introduced by the following paragraph:
“The question whether the grantee or assignee of the builder can recover on a covenant for contribution for the cost of a party wall, and whether the grantee or assignee of the covenantor is liable on such cove nant, is one upon which much learning and research have been spent, and upon which the decisions are in irreconcilable conflict, and almost equally divided. Even in the same state different results have been reached under facts almost similar, and prior rulings are distinguished in a manner beyond the comprehension of the ordinary person.”
Collections of pertinent decisions are also to be found in volume 38 of the American Digest, Century edition, columns 1907-1912, and in volume 22 of the American and English Encyclopedia of Law, pages 255, 256. An English case, decided in 1900 (Irving v. Turnbull, 2 Q. B. 129), bears upon some aspects of the matter.
In New York the extreme position is maintained that a contract of this charcter is so entirely personal in its nature that it cannot be made to run with the land in any aspect, even if the parties desire it and clearly so express themselves. This view is thought by the author of one of the notes cited to be the result of a misinterpretation of an early case. (66 L. R. A. 677, 678.) In Illinois it is held that the obligation to pay for the wall whenever used runs with the land of the non-builder, and lodges against the owner who erects the second building and joins to the wall, but that the right to receive the compensation is personal and remains with the individual who built the wall, notwithstanding any agreement the parties may have made to the contrary, on the ground that the agreement in this respect is of such a nature that the law does not permit it to be attached to the real estate. (Gibson v. Holden, 115 Ill. 199, 3 N. E. 282, 56 Am. Rep. 146.) Elsewhere, however, it is generally conceded to be competent for the parties to make the privilege as well as the duty created by such an agreement follow the ownership of the land, and the disputed question in each case is whether they have done so, the conflict of authority arising upon the interpretation of the language employed. Different conclu sions as to the intentions of the parties are reached by different courts upon substantially the same state of facts, according to the view taken of the general nature of such contracts. A court that regards them as closely related to the real estate, and inherently adapted to run with it, will be persuaded that i.t was the intention of the parties that they should do so upon much less evidence than would convince another court that considers them as essentially personal.
In the brief of the defendant in error much reliance is placed upon the opinion in Cook v. Paul, supra, which was also referred to approvingly by the trial court in announcing its judgment. There, after an extended discussion covering the whole scope of the inquiry, the conclusion is reached that—
“the more accurate statement of the law is still the one announced by the learned editor of the American Decisions [Mr. Freeman] in volume 92, page 801, of that series, as follows: The majority of the authorities maintain that .these covenants are not of the nature of covenants running with the land, and that the grantees of the original parties cannot, by reason of their holding the adjoining lots, take advantage of the benefit, or be subjected to the burden, of the covenant to pay for one-half of a party wall, but that the right of recovery is personal to the builder, and the obligation to pay, except in certain cases, rests upon the covenantor only; and an agreement of the parties that the covenant shall be binding upon their heirs or assigns, etc., or even that it shall run with the land, is ineffectual.’ ”
The cogency of the reasoning employed in that case of course cannot be affected by any outside consideration, but its force as an authority is seriously impaired by a later expression of the same court (Loyal Mystic Legion v. Jones, 102 N. W. [Neb.] 621, 623), where this language was used:
“In a later case — Cook v. Paul, 93 N. W. (Neb.) 430, 66 L. R. A. 673, not officially reported — it is said [quoting the extract just given]. This doctrine is broader than the rule laid down by the prior decisions of this court. Cook v. Paul is one of the class of cases known in this state as ‘unofficial’; and,-as is said by Holcomb, C. J., in Flint v. Chaloupka, 99 N. W. (Neb.) 825, speaking of opinions of this character, ‘the court is not necessarily bound by anything said therein, nor to the propositions of law enunciated on which the conclusions are predicated. It approves only the conclusions.’ We do not, therefore, consider it as in any way establishing the legal proposition contained in the opinion. In most of these cases the question was as to the liability of the party using the wall, and the view taken by the court was that the contract, so far as affects the obligation of the subsequent user of a party wall to pay for the same, usually runs with the land. But in the instant case the question is different. It is, To whom is the money payable ? ... It will be observed that this court has heretofore adhered to the doctrine that such covenants run with the land, at least so far as the obligation of the user of the wall to pay for the same is concerned.”
The court then decided that under the terms of the contract there involved the payment was required to be made between the persons owning the lots when the second building was constructed. As suggested in that case, the question whether the right to receive payment on account of the party wall passes with successive grants of the land is a more difficult one than whether the obligation to make the payment devolves upon the person who joins to the party wall. It is easier to find support in reason and authority for holding that the obligation to make payment runs with the land than for holding that the right to receive payment does. The important inquiry in the present case is, therefore, whether Southworth is entitled to collect payment for half the value of the wall. If he is not, the judgment must be affirmed. If he is, the same considerations that justify that conclusion will necessarily compel also the determination that Perring is the person who must make the payment, and the judgment must be reversed.
In the note in volume 89 of the American State Re ports, page 941, to which reference has already been made, the reasoning in support of the doctrine that the right to demand payment from the second builder passes with each conveyance of the land of the first builder is thus presented:
“It seems to us that the more reasonable rule is that an agreement between the owners of adjoining premises, whereby one is to build a party wall, one-half on the land of each, and the other to pay for one-half of its construction when he uses the wall, creates cross-easements as to each owner, running with the land, with or without notice to the grantee, and is binding on all persons succeeding to the estates to which such easement is appurtenant, and that a purchaser of the estate of an owner so contracting must be required to pay one-half of the cost of the wall, if it is unpaid for at the time of his purchase, and he afterward avails himself of its benefits [citing cases]. Under this view the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passes by every conveyance of it until the severance of the one-half by the payment of the purchase-money. The sale of the one-half of the wall does not occur, nor the title to it pass, until the payment is made, and thus, necessarily, it is constructively a sale by the assignee of so much of the wall. His right to the purchase-money is not because he is assignee of a covenant running with the land, necessarily, but because he is a vendor of so much of the wall, for which the party using it is liable.”
With regard to the effect of the decisions bearing upon the question the note continues:
“Quite a respectable number of well-considered cases maintain the doctrine that the right to that portion of a party wall resting on the lot of an adjoining owner is not personal to the owner of the lot on which the building is erected, but one running with the land, and that a conveyance of the lot on which the building is erected passes to the grantee the right to recover of the adjacent owner the value of one-half of the wall when used by him [citing cases]. And this rule has been enforced especially under agreements wherein the covenantor has covenanted for himself, his executors, heirs, or assigns.” (Page 942.)
No. 14,254
(81 Pac. 785.)
These expressions are perhaps entitled to peculiar weight from the fact that the note in which they occur bears internal evidence of being a revision of the note in volume 92 of the American Decisions, from which was taken the extract quoted in Cook v. Paul, supra.
Without attempting to declare what general principles relating to the question presented are sustained by the greater number of decisions, we shall decide it upon these considerations: We regard contracts of the character of that here involved as in their nature so related to the real property affected, and so adapted to impose their obligations and bestow their benefits upon the successors in title of the landowners by whom they are made, that the purpose that they shall have that effect is readily to be inferred from the employment of language having any substantial tendency in that direction. In the present case we hold that the use of the clause making the terms of the contract binding upon the heirs, executors, administrators and assigns of the parties sufficiently indicates that intention. What the effect of the omission of that provision might have been we do not now determine.
The judgment is reversed, with directions to render judgment for the plaintiff.
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Per Curiam:
Holmes owned a lot in Emporia and erected a two-story business house thereon. Later the Hall brothers, who owned the adjoining lot and contemplated the erection of a building thereon, entered into an alleged agreement with Holmes that they might use the wall of Holmes’s building as a party wall, and also have the right to extend the party wall on the Holmes lot to accommodate the additional length of their own building. In consideration of these uses and rights they agreed that Holmes should have the use of the stairway in the Hall building to gain access to the second story of his own building. The Hall building was erected with a stairway against the party wall, which has been used as a passageway to office rooms in the upper stories of both buildings for about thirty years. The agreement was not in writing, and the plaintiffs in error, who are grantees under Hall brothers, claiming that no valid agreement was made, nor any grant of an easement that is enforceable, were threatening to close up the stairway when a suit for an injunction was brought.
If the agreement contended for had been in writing it would have constituted a valid grant of an easement; and, if there was a parol agreement of the character mentioned, Holmes acquired an equitable title on the principle of estoppel. The part performance would take the parol grant out of the statute of frauds.
At the argument it was conceded .by counsel for plaintiffs in error that if there was proof of the parol contract claimed by defendants in error the judgment of the trial court sustaining the easement must stand. We think that there is valid testimony sustaining the finding of the court that such a contract was made. One of the Hall brothers was a witness and stated that an agreement was made, and gave its conditions. He was unable to relate the language of the agreement or to give the particular place where they were when it was made, but this is accounted for to some extent by the length of time that has elapsed since the contract was made. Other witnesses gave testimony of a corroborative character, and the circumstances combine to sustain their testimony and the finding of the court. The continued use of the .stairway by Holmes and those who hold under him, and the use of the wall by the Hall brothers and those holding under them, leave little question as to the understanding of the parties and of notice of the existence of the easement. The testimony is sufficient to sustain the finding of the court, and therefore its judgment is affirmed. | [
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Per Curiam:
Plaintiff in error Crane began two actions in the district court of Cowley county, one against John Cameron and the other against John C. Peninger, to recover the possession of two separate tracts of land, and also the rental value of such lands. The facts involved in the two cases are the same, Cameron being defendant in one action and Peninger defendant in the other, and each occupying separate tracts of land. The causes were tried together upon the same evidence in the court below and are submitted together in this court.
The defendants separately filed general denials to the petitions. Subsequently they filed supplemental answers alleging that they were in possession of the real estate when the actions were commenced under separate contracts or leases from the owners of the legal titles, but that since the filing of the petitions their respective terms as tenants had expired, and they had surrendered the possession of the real estate and no longer claimed any right or interest therein; that they had complied with their contracts of tenancy and paid the rents to the holders of the legal titles.
The plaintiff recovered judgment for the possession of the property in each case, and also the full rental value thereof from the time the actions were commenced until final judgment, and an order of ouster in one case against Cameron and in the other against Peninger. At the time of the rendition of the judgments the plaintiff in the case of Crane against Cameron asked for an order of ouster against P. H. Albright & Co., Stafford & Albright, and W. L. Linke, and in the case of Crane against Peninger she asked for a like order against P. H. Al-bright, Stafford & Albright, and H. E. Knox, and against all persons holding under either of the persons named. It appears that W. L. Linke was the holder of the legal title to the land in controversy in the case of Crane against Cameron, and that E. H. Knox was the holder of the legal title to the land in controversy in Crane against Peninger. The court refused to grant the application of plaintiff for an order of ouster except as to the defendants in the action. Such refusal is the only error alleged by the plaintiff in error.
Stafford & Albright were the agents of the holders of the legal titles to the land, and when the actions were commenced the defendants called upon these parties, as the agents of the holders of the legal titles, for information or assistance in the litigation.
The application for the order of ouster against the holders of the legal titles, although they were not parties of record, was based upon the claimed fact that they were the actual parties in whose interest, and under whose direction, the defenses in these actions were conducted, and, therefore, were bound by the findings and judgments of the court. The evidence shows that the owners of the legal titles were parties in fact to the litigation, and that they made the only defense. Mr. Stafford, as the agent of the holders of the legal titles, employed Judge Buck-man to defend for them. The holders of the legal titles thus having voluntarily submitted themselves to the court, and having litigated the questions to a final determination, are bound by the judgment of the court. Therefore the plaintiff was entitled to a writ of ouster against them as the holders of the legal titles, and against all persons in possession of the land claiming under them.
The defendants in the two cases, Cameron and Peninger, prosecute separate proceedings in error to reverse the separate judgments rendered against them for the rental value of the lands in question after they had vacated, and after they had filed their supplemental answers disclaiming any interest therein. These separate petitions in error will be treated as cross-petitions in the original cases.
It would be difficult to give a reason why these defendants should have been held for the rental value of the lands in controversy for two years after they had surrendered possession, and after they had answered that they were no longer in possesson and disclaimed any interest or right to the possession thereof.' It is true the defendants could not have been dismissed from the litigation upon the filing of such answers, because there was still an unsettled question. The plaintiff sought to recover the rental value of the land from each of the defend ants while they were in possession, and the supplemental answers did not admit liability, but, instead, alleged that each had paid under his contract the rent for that period of time to the holder of the legal title.
The judgment of the court is reversed, and the causes remanded for further proceedings in accordance with this opinion.
OPINION ON MOTIONS TO RETAX COSTS AND TO ' ORDER JUDGMENT REFORMED.
Motion to retax costs granted.
Motion for an order requiring the district court to reform its judgment to correspond with the opinion of this court denied.
Per Curiam: The proceedings instituted by Crane were separate actions against the respective defendants in ejectment and for rents. While the actions were pending, and about one year after their commencement, the defendant in each case filed a disclaimer. The causes were continued for about one year after the disclaimer before judgment was entered. Judgment was rendered in each case for the plaintiff in ejectment, and for the rents of the premises during the whole period. In Crane against Cameron the judgment for rent was $150; in Crane against Peninger the judgment for rent was $225. According to the opinion of this court, it was error for the court to render judgment against either of the defendants for rent after they had abandoned the premises and filed their disclaimer.
It appears that the defendant in each case was actually chargeable with only about one-half of the amount of rent for which judgment was rendered. The plaintiff in error now applies to this court for an order directing the trial court to enter its judgment so that in Crane against Cameron the judgment shall be for $75 instead of $150, and in Crane against Peninger the judgment shall be $115 instead of $225. This would appear to be just, but this court has no jurisdiction in any case to order a judgment for a particular amount, except'where the facts are found by the court or jury, or where they are agreed upon by the parties. Application should have been made to the court that rendered the judgment and that had jurisdiction to change it, and where, no doubt, such application would have been received with favor. The applicant asks for other relief which is beyond the jurisdiction of the court to grant.
After the record and petition in error had been filed in this court in the two cases, the defendants in error also filed records and petitions in error in the same cases, asking this court to review certain trial errors. The records in all the cases are identical, and all the relief to which the plaintiffs in error in the last two cases are entitled could have been awarded in case cross-petitions in error had been filed in the first two eases. The plaintiff in error in the first two cases now asks this court to tax all of the costs of the last two proceedings in error to the plaintiffs in error therein, and that the costs in the cases of Crane against Cameron and Crane against Peninger be equally divided between the parties.
The practice of plaintiff and defendant instituting separate proceedings in error in the same case has been disapproved by this court in Scully v. Smith, 66 Kan. 265, and in that case the second petition in error was dismissed on the ground that the plaintiff in error could have obtained all relief by a cross-petition in the original case. It is therefore ordered that all the costs of the proceedings in the eases of Cameron against Crane and Peninger against Crane in this court be taxed to the plaintiffs in error in those cases. Since, if the plaintiffs in error in those cases had filed their cross-petitions in the cases of Crane against Cameron and Crane against Peninger, they would have been granted some relief, it is ordered that the costs of the two latter cases in this court be equally divided. | [
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Pierron, J.:
Mark and Janis Evenson appeal the district court’s conclusion that damage by fire to outbuildings and trees by a negligently caused fire constituted permanent damage to their property and, therefore, the proper measure of damages was the diminution in the property’s value rather than the cost of repairs or replacement.
The underlying facts of the case are not seriously in dispute. The Evensons own a 160-acre tract of land in rural Greenwood County, which they use primarily for recreation. The Evensons have maintained a number of pine trees, fruit trees, and grape and berry plants that existed on the property at the time they purchased the land in 2002. The property also had a utility building, a three-sided pole bam, and a three-sided shed or lean-to at the time of purchase. All of the structures were made of wood with tin roofs. The Evensons leased a portion of the properly for the production of crops.
Lilley leased pastureland on property adjacent to the Evensons’ tract for grazing cattle. On April 12, 2006, Lilley started a controlled bum of his leased pastureland, but the iFire grew out of control and passed over to the Evensons’ property, essentially burning the entire tract.
On April 11,2007, the Evensons filed suit against Lilley for negligence, claiming damages in excess of $75,000. Lilley filed a request for an actual amount of damages, and the Evensons initially indicated that their property suffered damages totaling $125,000.
Thereafter, Lilley filed a motion with the court for a ruling on the measure of damages to be used in the case. Lilley argued that the damage to the property constituted permanent damage under Kansas law and that the damages award could not exceed the fair market value of the property prior to the fire. In conjunction with his argument, Lilley obtained an appraisal of the Evensons’ property, which estimated that the difference between the value of the Evensons’ property before and after the fire was $4,687. The estimate included the depreciated replacement value of the outbuildings.
The Evensons challenged Lilley’s measure of damages, arguing that the property was remediable and that the measure of damages should be the cost to repair the fire damage and return the property to its prefire status. The Evensons submitted an estimate of $307,999 to replace the damaged trees on their property. The Evensons also submitted an estimate of $23,500 to replace the former outbuildings with new, metal buildings of the same size.
As a result of these estimates, the Evensons sought to amend their damages claim to $331,499 or $160,000 if the damages award was capped at the value of the real property in accordance with PIK Civ. 4th 171.21. The Evensons also estimated the value of the property before the fire to be $1,000 per acre or $160,000. They estimated the property was worth $700 per acre after the fire or $112,000, and debris removal would cost in the range of $2,500 to $3,000.
The district court ruled the damage to the property was permanent in nature and the proper measure of damages was the diminution in the value of the property, consistent with PIK Civ. 4th 171.20. The court also denied the Evensons’ motion to amend their claim for damages. Thereafter, the case was presented to the court on stipulated facts. After hearing the evidence presented, the court adopted the appraisal values submitted by Lilley and the debris clean-up cost submitted by the Evensons, awarding the Evensons a total of $7,687 plus applicable interest.
The sole issue raised by the Evensons is whether the district court applied the correct measure of damages. Essentially, they argue the district court improperly relied on PIK Civ. 4th 171.20 when the damage to the property was not permanent damage. The Evensons further argue that the proper measure of damages is the cost of replacing everything that was damaged.
After Lilley filed his motion to determine the measure of damages, the district court ruled that the destruction of the trees and buildings on the Evensons’ property constituted permanent damage to real estate and that the proper measure of damages was found in PIK Civ. 4th 171.20. PIK Civ. 4th 171.20 provides:
“When damage to real estate is permanent or irreparable, the measure of damages is the difference between the fair and reasonable market value of the property as a whole, including the improvements thereon, immediately before and immediately after the injury.
“Fair and reasonable market value is that amount which would be paid under normal circumstances on the free and open market, in the usual course of dealings, by a willing buyer not forced to buy, and which amount would be acceptable to a willing seller not forced to sell.”
The determination of whether the district court applied the correct measure of damages is a question of law, and, therefore, this court’s review is unlimited. Burgess v. Shampooch Pet Industries, Inc., 35 Kan. App. 2d 458, 460-61, 131 P.3d 1248 (2006). The underlying purpose of any measure of damages in a tort action is to make the injured party whole again. McBride v. Dice, 23 Kan. App. 2d 380, 381, 930 P.2d 631 (1997). Consequently, any rule for measuring damages is subordinate to the goal of compensating an injured party for the injury done. A determination of damages cannot be applied mechanically but must reflect the facts of the particular case. Nevertheless, an injured party is not entitled to a windfall. Horsch v. Terminix Int’l Co., 19 Kan. App. 2d 134, 138-39, 865 P.2d 1044 (1993), rev. denied 254 Kan. 1007 (1994).
Before the district court, the Evensons advocated for the use of PIK Civ. 4th 171.21 as the proper measure of damages. PIK Civ. 4th 171.21 provides:
“When damage to real estate is temporaiy and of such a character that the property can be restored to its original condition, the measure of damages is the reasonable cost of repair necessary to restore it to its original condition, [plus a reasonable amount to compensate for (loss of use) (loss of rental value) of the property while repairs are being made with reasonable diligence], but not to exceed its fair and reasonable market value before the injury.”
Application of PIK Civ. 4th 171.20 or PIK Civ. 4th 171.21 turns upon whether damage to real property is deemed permanent or temporary. However, in limiting the measure of damages to the rule stated in PIK Civ. 4th 171.20, the district court failed to identify the precise nature of the Evensons’ claim of damages. Lilley clearly viewed the damage from the perspective of the property as a whole. In contrast, the Evensons have consistently focused upon the damage to specific items appurtenant to the property but separate and distinct for purposes of valuation, namely pine trees, fruit trees and vines, and three outbuildings.
In Barker v. Railway Co., 94 Kan. 61, 65, 145 Pac. 829 (1915), the Kansas Supreme Court rejected a strict application of a diminution in value measure of damages where the evidence demonstrated distinct and separate value to fruit trees and hay on the property. The Barker court reasoned:
“The jury were told that in measuring the damages of the plaintiff the trees were to be regarded as a part of the land and that they might consider any and all evidence proven which tended to show the actual loss. The testimony showed the number and character of the trees destroyed and injured, and although they constituted a part of the land they had a distinct value as an appurtenance of the land and the loss sustained could be definitely measured by the evidence of the number and character of the trees destroyed and injured. In Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526 [(1897)], it was held that when trees were destroyed by fire, as in this case, and they had a distinct value which under the evidence was susceptible of definite measurement, the value of the trees or things destroyed is the best measure and the most satisfactory method of determining the extent of loss. It was also said that it was only where damages to one part of the land affect other parts and were incapable of more direct proof that it is necessaiy to resort to the rule of finding the difference in the value of the land before and after the injury.” 94 Kan. at 65.
The same rule was applied by the Kansas Supreme Court in Nordgren v. Southwestern Bell Telephone Co., 125 Kan. 33, 36, 262 Pac. 577 (1928) (holding that the proper measure of damages from negligently cut trees is the “value of the trees injured rather than the difference in the value of the lot before and after their removal”); Collins v. Morris, 97 Kan. 264, 270, 155 Pac. 51 (1916) (holding that the proper measure of damages arising from the destruction of shade trees is the value of the trees as part of the really irrespective of a more profitable use of the land without the trees).
The rule articulated by these cases necessarily presumes the production of competent evidence to establish the value of the trees. None was offered in this case. The Evensons submitted a proposal for the replacement of the trees by a nursery, but there was no evidence offered as to the value of the trees as a part of the realty. No evidence was presented regarding the fruit trees and vines.
Instead, while stating the rule for recovery of the value of appurtenances, the Evensons actually advocate the adoption of a new rule that would provide for a restoration measure of damages. The Evensons urge this court to allow them to recover the replacement value of their trees, apparently irrespective of the costs of replacement.
In support of their argument, the Evensons cite several cases from other jurisdictions as evidence of a growing trend in negligence law to permit recoveiy of restoration costs when real property has personal value rather than merely commercial value. One of the cases cited by the Evensons actually supports the district court’s judgment in this case. See Burk Ranches, Inc. v. State, 242 Mont. 300, 307, 790 P.2d 443 (1990) (“Even though repair is theoretically possible, if the cost of repair greatly exceeds the decreased value of the property, the injury is presumptively permanent and the decreased value rule applies.”). Other cases cited by the Evensons, while permitting recovery of restoration costs, set limits on the amount recoverable. See Heninger v. Dunn, 101 Cal. App. 3d 858, 865-66, 162 Cal. Rptr. 104 (1980) (limiting restoration damages for loss of trees to reasonable costs in relation to the damage inflicted); Matich v. Gerdes, 193 Ill. App. 3d 859, 868, 550 N.E.2d 622 (1990) (allowing repair costs in excess of diminished value of property for noncommercial property but limited recovery to reasonable repair costs and required reproduction costs to be reduced for depreciation); Glavin v. Eckman, 71 Mass. App. 313, 319-21, 881 N.E.2d 820, 826 (2009) (authorizing a $30,000 dam ages award as restoration of trees cut down wrongfully because the award was reasonable in relation to the damage inflicted); Sunburst School District No. 2 v. Texaco, Inc., 338 Mont. 259, 272-73, 165 P.3d 1079 (2007) (permitting recovery of restoration costs for soil contamination of homes finding that requiring families to relocate due to soil contamination was not a realistic solution).
The Evensons’ request for restoration costs to replace full-grown trees for $307,999 is patently unreasonable for the damage inflicted in this case. The Evensons’ property is primarily agricultural-use land, though it is also used by the Evensons for recreation. According to the Evensons’ own estimate, the property was worth $160,000 prior to the fire caused by Lilley. The requested restoration costs are nearly twice the highest estimate provided for the property before the loss of the trees. Although, as stated by the Evensons that it is now easier to replace large trees than it was in the past, we must still look to see if this is a reasonable result. We do not believe it is under the facts and circumstances of this case.
In any event, the Evensons’ argument finds no support in current Kansas case law. Although no Kansas court has apparently addressed the precise question presented in this case, the precedent clearly rejects replacement costs alone as an accurate valuation of the property loss. See, e.g., Nordgren, 125 Kan. at 36 (“Replacement value would for numerous reasons be a veiy unfair test.”); Sayers v. Railway Co., 82 Kan. 123, 126-27, 107 Pac. 641 (1910) (holding that owner of crops destroyed by a negligently caused fire is entitled to the value of the crops as they existed at the time of the fire); but cf. Hayden v. Railway Co., 84 Kan. 376, 114 Pac. 384 (1911) (approving a damages award that compensated plaintiff for the cost of restoring the meadow).
We have perceived no indication that the Kansas Supreme Court would be willing to depart from precedent; therefore, this court is bound to apply such precedent. Buchanan v. Overley, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008).
In light of the lack of evidence demonstrating the value of the trees destroyed by the fire, the proper measure of damages is the difference between the market value of the property before and after the fire. Barker, 94 Kan. at 65 (“It was also said that it was only where damages to one part of the land affect other parts and were incapable of more direct proof that it is necessary to resort to the rule of finding the difference in the value of the land before and after the injury.”); Smelting Co. v. Brown, 8 Kan. App. 802, 805, 57 Pac. 304 (1899) (“In the present case the only measure of a large part of the plaintiff s alleged damages was to be found in the diminished value of the real property as a whole. We think the court did not err in admission of testimony showing the value of the property before and after the injury.”).
In light of the district court’s order regarding the measure of damages, both parties submitted evaluations regarding the before and after value of the property. While arguing that diminution of property values was not the appropriate measure of damages, the Evensons’ failed to proffer any evidence regarding the actual value of the trees as part of the real property; they offered only evidence of the cost to replace the trees. As noted above, under these facts such an approach is not reasonable.
Under these circumstances, the district court did not err in valuing the damages to the property by resorting to evidence concerning the diminution in the value of the property, even though the court erred in hmiting the measure of damages to the diminution in value. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007) (a district court’s judgment will be affirmed on appeal if the right result was attained despite erroneous reasoning for the result). The district court adopted the values submitted by Lilley, and the Evensons do not challenge the sufficiency of that evidence in this appeal. The court’s process of evaluating the actual damages, even if somewhat conceptually flawed, was reasonable.
With respect to the negligently destroyed outbuilding structures, the Kansas Supreme Court noted in Kennedy v. Heat and Power Co., 103 Kan. 651, 652, 175 Pac. 977 (1918), that the measure of damages for a negligently destroyed structure was the reasonable value of the building at the time and place of its destruction. The court then noted several methods of calculating the value of structures that lacked a market value. The court rejected a measure of damages that would establish the cost of construction with a proper deduction for deterioration in favor of the cost of replacing the building with proper deductions for its age, utility, use, and condition. 103 Kan. at 653.
“ ‘One method of arriving at such loss is by estimating the cost of replacing the building less any depreciation from use, age, or otherwise; and the other is by evidence of the value of the building, at the time of its destruction, less the value, if any, of the ruins.’ ” 103 Kan. at 653-54 (quoting Insurance Co. v. Payne, 57 Kan. 291, 301, 46 Pac. 315 [1896]).
Though the Evensons did provide an estimate of the cost to replace the outbuildings, the evidence demonstrated that the proposed replacements were not of the same type as the structures destroyed. Furthermore, Mark Evenson conceded that he had not depreciated the replacement costs for the age or condition of the outbuildings.
In Ettus v. Orkin Exterminating Co., 233 Kan. 555, 561-62, 665 P.2d 730 (1983), the Kansas Supreme Court recognized that, in some cases, recovery of costs above the total value of the destroyed structure may be allowed where proof that such costs are the natural and probable result of the tortfeasor’s wrongful conduct. However, recovery of the cost of new, metal buildings to replace old, wooden and tin-roofed buildings is not the natural and probable result of Lilley’s conduct.
Lilley provided the testimony of an appraisal of the damaged properly by David Sundgren. Sundgren utilized both the sales comparison and cost approaches to evaluating the Evensons’ property. In calculating the value of the land using the cost approach, Sundgren specifically evaluated the outbuildings, estimating the replacement costs of equivalent structures, then reducing the amount by the estimated depreciation of those structures.
Again, the district court adopted Lilley’s evaluation of the outbuildings at the time of the fire and awarded compensation based upon those values. The Evensons do not contest the district court’s findings but challenge only the measure of damages. Under the facts presented to the district court, the district court’s calculation of damages for the destruction of the outbuildings was appropriate.
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Buser, J.:
In this divorce action, Jeffrey Vandenberg appeals the trial court’s orders relating to residential custody, maintenance, property division, and attorney fees. We affirm the trial court’s orders.
In particular, we address a question of first impression in Kansas: May a trial court considering an initial divorce decree deny an award of maintenance to an ex-spouse solely because the ex-spouse is engaged in same-sex cohabitation? As discussed more fully below, we conclude that in the absence of an explicit provision to the contrary in a settlement agreement, in considering an award of maintenance to an ex-spouse in an initial divorce action, a trial court may not deny maintenance solely because that ex-spouse is engaged in cohabitation, including same-sex cohabitation. On the other hand, in considering an award of maintenance to an ex-spouse in an initial divorce action, a trial court may assess the nature and extent of the financial contribution an unrelated party (such as a cohabitant) makes or is capable of making in order to maintain a relationship with that ex-spouse.
Factual and Procedural Background
Jeffrey and Lisa Vandenberg married on December 29, 2000. During the marriage, their young son, T.V., and Lisa’s teenage son from a prior marriage, R.C., lived with them. Both Jeffrey and Lisa had been married previously and had other children who did not five in their home.
During the marriage, the Vandenberg family moved several times because Jeffrey received job promotions in the aircraft industry. In 2006, the Vandenbergs moved to Chenyvale, Kansas, and Jeffrey began a management job with Cessna, for which he was paid a salaiy of $79,996.86 per year plus bonuses.
Lisa had a bachelor’s degree in psychology and occasionally worked during the marriage, but she primarily stayed at home to care for T.V. and R.C., who had learning and behavioral difficulties. Because of a 1990 injury Lisa sustained while in the Air Force, she developed chronic neck spasms and constant back pain. Later she was diagnosed with fibromyalgia. In 2006, she was declared 70% disabled by the Department of Veterans Affairs (VA) and was awarded a monthly disability benefit of $1,249.
In September 2007, Lisa told Jeffrey she no longer wanted to be married to him. Lisa also disclosed she was a lesbian and had previously had an extramarital affair with another woman. Although Jeffrey was devastated and angry, he wanted to salvage their marital relationship. Lisa was unsure of what she wanted, but she was resolved to leave Kansas for fear of abuse from the woman with whom she had the affair. Ultimately, Jeffrey and Lisa agreed that Lisa would travel to Colorado with T.V. to allow her time to consider her marital situation. Jeffrey and Lisa also decided that during this time R.C. would remain with Jeffrey in Kansas. In the days that followed, Jeffrey encouraged Lisa to return home to Kansas. After a few weeks, however, Lisa decided not to reconcile and resolved to remain in Colorado.
On October 25,2007, Jeffrey filed a petition for divorce in Montgomery County and obtained an ex parte temporary order awarding him sole custody of T.V. while providing Lisa with visitation. Without advising Lisa or T.V., Jeffrey promptly drove to Colorado, picked up T.V. from school, and returned to Kansas, where he enrolled T.V. in a new school. R.C. continued to live with Jeffrey but his behavior worsened. As a result, in mid-November 2007— again without telling Lisa — Jeffrey contacted R.C.’s father who traveled to Kansas, picked up R.C., and brought his son back to Ohio.
Lisa was served with the divorce petition, filed an answer, and moved to set aside the ex parte custody order. At a hearing on January 2, 2008, the district court set aside the ex parte order and granted the parties temporary joint legal custody of T.V., with Lisa having temporary residential custody and Jeffrey provided parenting time. Lisa then returned with T.V. to Colorado.
By this time, Lisa had moved into the Colorado Springs home of another woman with whom Lisa shared living expenses and had an exclusive sexual relationship. T.V., R.C., and the woman’s 17-year-old son also lived in the home.
On October 17, 2008, a bench trial was held. Jeffrey and Lisa testified at length and submitted supporting documentation de tailing their divergent requests regarding how the trial court should decide the issues of child custody, property division, and Lisa’s request for maintenance. After taking the matter under advisement, on December 10,2008, the trial court filed a comprehensive memorandum decision.
The trial court granted the parties joint legal custody of T.V., with Lisa having residential custody of T.V., and Jeffrey afforded specific periods of parenting time. Jeffrey was ordered to pay child support. The trial court divided the party’s assets, and Lisa was awarded maintenance of $700 per month for 44 months. Finally, the trial court ordered Jeffrey to pay $2,000 for Lisa’s attorney fees.
Jeffrey appeals the trial court’s rulings relating to residential custody of T.V., maintenance, property division, and attorney fees.
Residential Custody
Jeffrey challenges the trial court’s finding that it was in T.V.’s best interests for Lisa to have primary residential custody of their son.
This court will overturn a trial court’s custody determination only upon an affirmative showing by the appellant that the court abused its sound judicial discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) (abuse-of-discretion standard); Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009) (burden of proof on party asserting abuse of discretion). As our Supreme Court has explained, in reviewing child custody matters for abuse of discretion:
“[An appellate court’s] function is not to delve into the record and engage in the emotional and analytical tug of war between two good parents over [their child]. The district court [is] in a better position to evaluate the complexities of the situation and to determine the best interests of the child[]. Unless we were to conclude that no reasonable judge would have reached the result reached below, the district court’s decision must be affirmed.” In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995).
When a trial court is called upon to determine the custody or residency of a child, K.S.A. 2009 Supp. 60-1610(a)(3) requires the decision be made “in accordance with the best interests of the child.” To aid in making that decision, K.S.A. 2009 Supp. 60- 1610(a)(3)(B) provides a nonexclusive list of 11 factors that, if relevant, the trial court must consider, including:
“(i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
“(ii) the desires of the child’s parents as to custody or residency;
“(in) the desires of the child as to the child’s custody or residency;
“(iv) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
“(v) the child’s adjustment to the child’s home, school and community;
“(vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent.”
In its memorandum decision, the trial court made the following findings regarding residential custody:
“[Lisa] shall have residential custody of [T.V.]. The basis for this finding is that residential custody with [Lisa] based upon the facts of this case is in the best interest of [T.V.] The Court finds that [Lisa] has been since the birth of [T.V.] the primary parent for [T.V.]. Court finds that [Lisa] because of her physical disabilities is unable to work at full-time employment and is a stay-at-home mother and is better able to be a full-time parent.
“Court finds that [Jeffrey] works long hours as a foreman at Cessna Aircraft Company in Independence, Kansas, and consistently works more than 40 hours per week and is on call for employment duties at all times. Court finds that [Jeffrey] by his actions since the parties separated has demonstrated that he does not have the willingness or ability to respect and appreciate the bond between [T.V.] and [Lisa] and has by his actions had a negative impact upon the continuing relationship between [T.V.] and [Lisa].
“Court further finds that making [Lisa] the residential parent will, because of the school schedule in Colorado Springs, promote increased parenting time for [Jeffrey] over and above parenting time that would be available for [Lisa] if [T.V.] were placed in the residential custody of [Jeffrey] in Kansas. The court finds that the Colorado school system has in place far more holidays which would provide an increased opportunity for parenting time by [Jeffrey] who resides in Kansas.”
On appeal, Jeffrey contends the trial court failed to explicitly mention or consider the three factors found in K.S.A. 2009 Supp. 60-1610(a)(3)(B)(iii) through (v). Jeffrey also contends the trial court failed to consider other important circumstances, such as the reason for the end of the marriage, Lisa’s “current lifestyle,” the impact of Lisa’s medication requirements and physical impair ments, and “the impact of a very disturbed teenage half sibling [R.C.] living with [T.V.] has on his well being.”
Contrary to Jeffrey’s argument, our review of the trial court’s comments at the close of trial regarding T.V.’s best interests and the written findings made in the court’s memorandum decision establish the judge was keenly aware of and considered the relevant statutory factors and other circumstances Jeffrey contends were ignored by the trial court.
For example, with regard to the statutory factor addressing T.V.’s desires as to residency (K.S.A. 2009 Supp. 60-1610[a][3][B][iii]), the trial court’s comments demonstrate drat it considered but did not find T.V.’s desires dispositive of the residential custody issue. Specifically, the court found from the evidence that T.V. wanted to live with both parents. Because of T.V.’s young age (9 years old), however, the court found it was unnecessary to personally speak with the couple’s son.
The trial court did not explicitiy refer to two statutory factors— T.V.’s interaction and interrelationship with his parents, siblings, and any other person who may significantiy affect his best interests (K.S.A. 2009 Supp. 60-1610[a][3][B][iv]); or T.V.’s adjustment to his home, school, and community (K.S.A. 2009 Supp. 60-1610[a][3][B][v]). The trial court’s failure to specifically mention these two statutory factors, however, does not merit reversal of the residential custody order.
Jeffrey did not object below to the trial court’s failure to specifically mention these two factors or to any inadequate findings relevant to the two factors in order to allow the trial court the opportunity to correct any omissions. As a result, Jeffrey is precluded from challenging the allegedly deficient findings on appeal. See Bradley, 258 Kan. at 50 (objection at the trial court level is required on any grounds other than sufficiency of the evidence to preserve for appeal objections to trial court’s findings made pursuant to K.S.A. 60-252 and Supreme Court Rule 165 [2009 Kan. Ct. R. Annot. 239]).
In the absence of an objection below, an appellate court ordinarily presumes the trial court found all facts necessary to support its judgment. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009); In re Marriage of Whipp, 265 Kan. 500, 508-09, 962 P.2d 1058 (1998). An appellate court will consider a remand for additional findings and conclusions only when the record on review does not support application of this presumption, thereby precluding the exercise of meaningful appellate review. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006); In re Estate of Cline, 258 Kan. 196, 206, 898 P.2d 643 (1995).
In the present case, the record is sufficient for this court to conduct a meaningful review. Notwithstanding the trial court’s failure to explicitly reference K.S.A. 2009 Supp. 60-1610(a)(3)(B)(iv) and (v), tibe trial court’s statements at the close of trial, together with its written findings made in the memorandum decision, demonstrate the court considered these two factors. The testimony regarding these two factors, however, was not dispositive because it did not favor either parent.
Given the trial court’s finding that T.V. wanted to reside with both parents, it is clear that T.V. had positive interactions and interrelationships with both parents. With regard to T.V.’s adjustment to home, school, and community, both parents testified that T.V. was well adjusted when he was in their respective custody. In summary, the record shows the trial court appropriately considered all the statutory factors hsted in K.S.A. 2009 Supp. 60-1610(a)(3)(B). Jeffrey’s assertion of error in this regard is without merit.
Jeffrey also challenges the sufficiency of the evidence to support the trial court’s conclusion that residential custody with Lisa was in T.V.’s best interests.
When an appellant challenges the sufficiency of the evidence to support a trial court’s findings regarding a child’s best interests, this court reviews the evidence in a fight most favorable to the prevailing party below to determine if the court’s factual findings are supported by substantial competent evidence and whether those findings support the court’s legal conclusion. In re Marriage of Kimbrell, 34 Kan. App. 2d 413, 420, 119 P.3d 684 (2005).
In challenging the sufficiency of the evidence to support the award of residential custody to Lisa, Jeffrey argues the trial court failed to take into consideration Lisa’s lifestyle, her use of medi cations for chronic pain, and the negative impact of having T.V. live with R.C. Jeffrey alleges the trial court was “punishing” him for working full time, and he highlights testimony suggesting that Lisa was unable to respect the bond between Jeffrey and T.V.
Jeffrey essentially invites this court to view the evidence in a light most favorable to him, to reweigh the evidence, to pass on witness credibility, and/or to redetermine questions of fact presented to the trial court. We decline this invitation because none of these endeavors are appropriate for an appellate court reviewing a trial court’s custody determination. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
Viewing the evidence in a light most favorable to Lisa, the record contains sufficient competent evidence to support the trial court’s legal conclusion that it was in T.V.’s best interests to award Lisa residential custody.
At the outset, the evidence showed that for the first 9 years of T.V.’s life, Lisa was the boy’s primary caregiver. Although he had difficulties with speech, reading, and writing, T.V. had been doing well at his Colorado Springs school. T.V. was described as enjoying school, involved in activities, and being very social. At trial, Lisa summarized her opinion regarding the advantages of T.V. residing with her in Colorado:
"[T.V.] loves his dad to death. . . .We love him to death.. . . [T.V.] loves both of us and him living with me, I think is better because I have more time. I’m on disability. [T.V.] never has to go to daycare before and after. I have time to take him to soccer and boy scouts and help him with his homework. . . .
“I don’t want to stand in the way of [T.V.] and Jeff. [T.V.] has a lot of time on the Colorado [school] schedule to be able to see Jeff.”
Based on the trial court’s written findings, it is apparent the court was persuaded by Lisa’s testimony that, given her disability and Jeffrey’s employment responsibilities, she had considerably more time and ability to care for T.V. Moreover, the unique Colorado Springs school schedule provided Jeffrey with enhanced opportunities for T.V. to visit him in Kansas. Lisa’s testimony also provided a basis for the trial court to conclude that she was willing to facilitate a loving relationship between T.V. and Jeffrey. Finally, the trial court’s finding that Lisa had been the primary parent of T.V. since birth was additional evidence that it was in T.V.’s best interests to continue residential custody with Lisa.
With regard to Jeffrey, the trial court raised concerns, based on statements made since the separation, that Jeffrey did not respect and appreciate the bond between T.V. and Lisa. In particular, the trial court noted that, in a prior hearing, Jeffrey had described Lisa as the devil or evil. The trial judge observed, “[W]hat concerns me about that is how that impacts on the willingness of each parent and their ability and willingness to respect and appreciate the bond between the child and the other parent.”
As this court has explained, “[c]hild custody is one of the most difficult areas faced by a trial court. The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto.” Johnson v. Stephenson, 28 Kan. App. 2d 275, 279, 15 P.3d 359 (2000), rev. denied 271 Kan. 1036 (2001).
Jeffrey and Lisa presented conflicting testimony about why it would be in T.V.’s best interests if he resided with one or the other parent. Given the conflicting evidence of both parents’ strengths and shortcomings, the trial court was faced with a difficult choice. We are unable to conclude that no reasonable judge would have granted Lisa residential custody. See Rayman, 273 Kan. at 999. We hold the trial court’s award of residential custody to Lisa was not an abuse of discretion.
Maintenance
On appeal, Jeffrey states: “The issue to be decided by this court is one of first impression; can the cohabitation of two same sex adults be the basis for the denial of the award of spousal support?” Alternatively, Jeffrey argues the trial court abused its discretion when it awarded Lisa maintenance because “[tjhere was clearly no need.”
An appellate court generally reviews a trial court’s award of maintenance for an abuse of discretion. In re Marriage of Hair, 40 Kan. App. 2d 475, 483-84, 193 P.3d 504 (2008), rev. denied 288 Kan. 831 (2009). Nevertheless, because the trial court is required to comply with statutes authorizing payment of support and main tenance, where it fails to do so, this court will find reversible error. 40 Kan. App. 2d at 484.
Moreover, Jeffrey challenges the trial court’s legal conclusion that it could not deny maintenance based on Lisa’s same-sex cohabitation. As a result, we review this issue under a less deferential standard. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (abuse-of-discretion standards sometimes are more accurately characterized as questions of law requiring de novo review because “ ‘[questions of law are presented when an appellate court seeks to review the factors and considerations forming a district court’s discretionary decision.’ [Citation omitted.] . . .‘A district court by definition abuses its discretion when it makes an error of law .... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ”); see also State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009) (abuse of discretion may be found if trial court’s decision goes outside the framework of or fails to properly consider statutoiy limitations or legal standards). Finally, to the extent the parties’ arguments require statutoiy interpretation, this court exercises unlimited review over such questions of law. See In re Marriage of Monslow, 259 Kan. 412, 414, 912 P.2d 735 (1996).
The facts relating to the trial court’s award of maintenance were essentially uncontroverted. Lisa sought maintenance of $1,381 per month for 30 months. Lisa based this request, in part, on her 70% disability determination by the VA. Given her inability to engage in full-time employment, she received disability income of $1,249 per month. In further support of her request for maintenance, Lisa also noted the “significant disparity” between her and Jeffrey’s income.
Jeffrey’s counsel raised the issue of same-sex cohabitation at trial during her cross-examination of Lisa. Lisa testified she was presently living with another woman in an exclusive sexual relationship. The two women lived in a home and shared the expenses of house payments, utility bills, and other household expenses. After the trial, Lisa filed a trial brief in which she argued that her same-sex cohabitation could not be considered a legal basis for the denial of maintenance.
In its memorandum decision, the trial court awarded Lisa maintenance and made the following findings:
“The Court finds that it is fair and equitable based upon the facts of this case that [Jeffrey] pay to [Lisa] the sum of $700 per month spousal maintenance starting January 1, 2009, by income withholding order. The Court has considered the present and prospective earning capacities of the parties, finds that [Lisa] has a physical disability that has a negative impact upon her ability to earn an income while [Jeffrey] has substantial income. The Court has also considered the parties!’] needs and the parties [’] overall financial situation in determining the amount of child support [sic] that is appropriate.
“The Court finds that [Lisa] resides with another lady in a committed lesbian relationship and that said relationship based upon Kansas law does not permit the trial court to lawfully deny maintenance to [Lisa] for that type of cohabitation. However, the Court does find that [Lisa] and the individual with whom she is living both contribute to the monthly expenses of the household, thus having an effect on [Lisa’s] overall financial situation related to monthly living expenses. It is because of these factors that the maintenance amount payable each month by [Jeffrey] to [Lisa] is set at $700 per month.” (Emphasis added.)
It is apparent the trial court concluded Lisa was engaged in same-sex cohabitation. The uncontroverted evidence showed that Lisa and her companion were having an exclusive sexual relationship, lived in the same residence with their respective children, and shared household expenses. Neither Jeffrey nor Lisa contests these factual findings on appeal.
It is also evident the trial court considered the financial effects of Lisa’s “committed lesbian relationship” in the determination of maintenance. The trial court awarded significantly less maintenance to Lisa than she had requested and attributed this decision, in part, to the financial contribution that Lisa’s cohabitant made to the “overall financial situation related to monthly living expenses.” At oral argument before our court, Jeffrey’s attorney acknowledged that, based on the language in the memorandum decision, the trial court did consider that financial contribution in awarding maintenance.
Jeffrey contends, however, the trial court would have denied maintenance outright had it not misconstrued Kansas law to prohibit the denial of maintenance based on same-sex cohabitation. He claims the only reason the trial court did not deny maintenance was because Lisa and her companion “could not hold themselves out legally as a married couple.” In this regard, Jeffrey is cognizant of case law which discusses cohabitation by a man and a woman in the context of marital rights and responsibilities. See In re Marriage of Kuzanek, 279 Kan. 156, Syl. ¶ 1, 105 P.3d 1253 (2005) (“Kansas has defined ‘cohabitation to mean living together as husband and wife and mutual assumption of those marital rights, duties, and obligations that are usually manifested by married people.”). Jeffrey argues for an expansive definition'of cohabitation that is not limited to a man and a woman, but includes same-sex couples, and would provide that any such cohabitation precludes maintenance.
Citing Kan. Const. Art. 15,16 (2009 Supp.) (the Kansas’ Defense of Marriage Amendment or KDOMA), Lisa counters the “fatal flaw” in Jeffrey’s argument “is that in Kansas same-sex couples are denied under the state constitution any ‘rights or incidents of marriage,’ thus they have none of the ‘marital rights, duties and obligations’ referred to in” the legal definition of “cohabitation.”
We begin our analysis with a brief overview of Kansas law relating to maintenance. The purpose of maintenance is to provide for the future support of the divorced spouse. The governing statute, K.S.A. 2009 Supp. 60-1610(b)(2), provides the following guidance to trial courts in the determination of whether to award maintenance: “The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances.” It should be noted this statute neither mentions nor excludes cohabitation.
Kansas appellate courts have instructed that many of the statutory considerations relating to the division of property in divorce actions also should be considered in the determination of maintenance. In re Marriage of Sedbrook, 16 Kan. App. 2d 668, 670-71, 827 P.2d 1222, rev. denied 251 Kan. 938 (1992). A trial court should consider: the age of the parties; their present and prospective earning capacities; the parties’ needs; the time, source, and manner of acquisition of properly; family ties and obligations; and the parties’ overall financial situation. Hair, 40 Kan. App. 2d at 484; 16 Kan. App. 2d at 671. Once again, cohabitation is neither listed nor excluded as a factor to be considered by the trial court in its determination of maintenance.
Still, in some cases, cohabitation is a factor considered by trial courts in matters of maintenance. Typically, the issue of cohabitation arises when a trial court reviews an ex-spouse’s motion to modify or terminate maintenance based on a provision in a property settlement agreement which was incorporated into a divorce decree. In these cases, the parties contractually agreed that maintenance would terminate upon the cohabitation of the recipient. See, e.g., Kuzanek, 279 Kan. at 157-62; In re Marriage of Kopac, 30 Kan. App. 2d 735, 736, 47 P.3d 425 (2002); In re Marriage of Wessling, 12 Kan. App. 2d 428, 429-32, 747 P.2d 187 (1987) (discussing the unambiguous, accepted legal meaning of “cohabitation” in construing the parties’ settlement agreement). In these contexts, cohabitation was either defined by law or by the agreement of the parties who were free to define the term cohabitation as they mutually deemed appropriate.
When a property settlement agreement is incorporated into the divorce decree, the trial court not only must enforce the provisions, it lacks jurisdiction under K.S.A. 60-1610(b)(3) to “modify [maintenance] . . . except as the agreement provides or by consent of the parties.” Bair v. Bair, 242 Kan. 629, Syl. ¶ 3, 750 P.2d 994 (1988). As a result,
“ ‘[t]here is a distinct difference between what the court has authority under statutes to do with respect to [maintenance] . . . and what the parties may agree upon.... A husband and wife are competent parties to agree between themselves upon . . . payments to be made .... When such agreements are fairly and intelligently made . . . they are uniformly upheld by the courts. . . .’ ” McKinney v. McKinney, 152 Kan. 372, 374, 103 P.2d 793 (1940) (quoting Petty v. Petty, 147 Kan. 342, 352-53, 76 P.2d 850 [1938]).
Importantly, in the case before us, we are not presented with a situation where Jeffrey and Lisa entered into a property settlement agreement which the court then incorporated into the divorce decree. If Jeffrey and Lisa had negotiated such an agreement, they could have contractually provided for denial or termination of maintenance to Lisa because of her same-sex cohabitation. That, •however, did not occur. Here, the issue of cohabitation was raised in the context of the trial court’s consideration of the propriety of an initial maintenance award, without any submission of a property settlement agreement by the parties. Moreover, although the trial court refused to deny maintenance solely because of Lisa’s same-sex cohabitation, the court specifically considered cohabitation as one of several factors relevant to the maintenance determination.
Under these particular circumstances, we are persuaded that Sedbrook, 16 Kan. App. 2d 668, provides valuable precedent to uphold the trial court’s legal conclusion that it could not deny maintenance to Lisa solely because she was engaged in same-sex cohabitation.
In Sedbrook, our court reviewed the trial court’s' refusal in a divorce action to award maintenance to the ex-wife, Luanne. Similar to the present case, there was no property settlement agreement addressing maintenance submitted by the parties. The trial court found that Luanne, “ ‘has been continuously cohabiting with a gentleman .... As a result, the Court finds that this conduct makes the petitioner ineligible to receive payment of spousal maintenance.’ ” 16 Kan. App. 2d at 670.
Our court summarized the district court’s actions:
“The trial court did not express indignation or criticize [wife’s] cohabitation, but found that it alone was sufficient to deny maintenance. It appears the trial court resolved the issue of maintenance on the single factor of cohabitation and failed to conduct a realistic evaluation of the parties’ circumstances, future income, and needs.” 16 Kan. App. 2d at 672.
The Sedbrook court concluded: “A finding of cohabitation may not be equated with the conclusion the relationship has become that of wife and husband and is not, by itself, sufficient to justify denial of spousal maintenance.” 16 Kan. App. 2d 668, Syl. ¶ 3. Instead, “[t]he determination of the allowance of maintenance must be based on a realistic evaluation of the parties’ circumstances, future income, and needs.” 16 Kan. App. 2d 668, Syl. ¶ 2; see Hair, 40 Kan. App. 2d at 484-85.
We see no reason why this holding from Sedbrook should be limited to cohabitation by persons of the opposite sex. Under Sedbrook, if Lisa had been cohabiting with a man, the district court’s refusal to deny maintenance solely on this basis would have been correct. Similarly, the district court’s refusal to deny maintenance to Lisa solely because she was engaged in same-sex cohabitation was also faithful to Sedbrook’s teaching.
Indeed, to deny maintenance solely on the basis of cohabitation would amount to a finding of fault. But fault “is not to be considered in determining the financial aspects of the dissolution of the marriage unless the conduct is so gross and extreme that the failure to penalize therefore would, itself, be inequitable.” Sedbrook, 16 Kan. App. 2d 668, Syl. ¶ 1. On appeal, Jeffrey does not argue that Lisa’s cohabitation was so gross and extreme that it must be penalized.
Moreover, we emphasize that, although the trial court refused Jeffrey’s request to deny maintenance to Lisa solely because of her same-sex cohabitation, the trial court did consider the financial contribution made to Lisa by her companion in its maintenance determination. This ruling was in full accord with Sedbrook: “It is not improper for the trial court to consider the nature and extent of the financial contribution of an unrelated party, or that which he or she may be capable of assuming, in order to maintain a relationship with a spouse seeking continued maintenance from a former spouse.” 16 Kan. App. 2d 668, Syl. ¶ 4.
Regardless of how Lisa’s cohabitation is characterized or defined, the evidence showed that Lisa’s companion, “an unrelated parly,” provided valuable financial support to Lisa “in order to maintain a relationship” with her. 16 Kan. App. 2d 668, Syl. ¶ 4. In order “to be fair, just and equitable under all of the circumstances,” K.S.A. 2009 Supp. 60-1610(b)(2), it was incumbent on the trial court to consider this support by the cohabitant in the determination of the maintenance award.
We conclude that Jeffrey has failed to show error in the trial court’s refusal to deny maintenance to Lisa solely upon a finding that she was engaged in same-sex cohabitation.
In the alternative, Jeffrey contends the trial court abused its discretion because Lisa did not establish a need for maintenance.
In its memorandum decision, the trial court stated:
“The Court has considered the present and prospective earning capacities of the parties, finds that [Lisa] has a physical disability that has a negative impact upon her ability to earn an income while [Jeffrey] has substantial income. The Court has also considered the parties[’] needs and the parties^] overall financial situation in determining the amount of support that is appropriate.”
As discussed earlier, the purpose of maintenance is to provide for the future support of the divorced spouse. In making the decision of whether to award maintenance, the court may consider: the age of the parties; their present and prospective earning capacities; the parties’ needs; the time, source, and manner of acquisition of property; family ties and obligations; and the parties’ overall financial situation. Hair, 40 Kan. App. 2d at 484. The amount of maintenance is based on both the needs of the party requesting it and the ability of the other party to pay support. Hair, 40 Kan. App. 2d at 484. Nevertheless, diere are no fixed rules in determining the amount of a maintenance award. Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976).
Jeffrey makes four cursory arguments. First, Jeffrey suggests that Lisa did not need maintenance because, in addition to her VA disability benefit, Lisa was applying for disability benefits from the Social Security Administration. Jeffrey’s argument overlooks the fact that Lisa had applied for and been denied Social Security benefits on other occasions. Thus, the trial court could have reasonably concluded that these prospective benefits were too speculative to factor into the consideration of maintenance.
Second, Jeffrey claims Lisa had the ability to earn income in the future. In support, he notes that Lisa testified she had worked with at-risk youth for a while when she moved to Colorado Springs but was unable to continue her employment due to pain. Jeffrey then argues: “However, [Lisa] told the court that her decisions to work or not work during the marriage were all based upon the ‘situation’ going on at the time. The court could only surmise what the current ‘situation’ was that prevented her from working.”
In fact, Lisa also testified that she decided, with Jeffrey’s approval, not to work during much of their marriage in order to be available to address R.C.’s behavioral difficulties and T.V.’s daycare needs. Additionally, the trial court heard ample testimony about Lisa’s physical disabilities and how they prevented her from obtaining full-time employment and adversely impacted her present and future ability to earn an income.
Third, Jeffrey complains the trial court failed to give the “right consideration” to the fact that Lisa was receiving financial assistance from her cohabitant. Jeffrey does not elaborate on what the “right consideration” would involve. However, the trial court found that Lisa’s companion contributed to payment of the household’s monthly expenses. The trial court also specifically found the cohabitant’s contribution had “an effect on [Lisa’s] overall financial situation.” These findings, coupled with the amount of the trial court’s award which was significantly less than Lisa’s maintenance request, demonstrate the trial court appropriately considered the financial assistance provided by the cohabitant.
Finally, Jeffrey argues “[t]here was clearly no need, just a belief that [Lisa] was ‘entitled’ to the spousal support.” This argument references Lisa’s response to a question about why she was seeking maintenance. Lisa replied, “Well, because I’m entitled.” Jeffrey’s argument disregards the remainder of Lisa’s testimony, that she needed maintenance to continue the quality of life she enjoyed while married to Jeffrey and to pay for continuing visits to a chiropractor for alleviation of pain.
In short, our independent review of the record persuades us the trial court properly considered the relevant factors and evidence in awarding maintenance. Jeffrey has failed to show the trial court’s decision was arbitrary, fanciful, or unreasonable. See In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
Division of Property
In a brief and inconsistent argument, Jeffrey challenges the trial court’s division of property. While Jeffrey complains that some of the property division was inequitable, he also alleges error because the trial court did not value all of the personal property and, as a result, “there is no way to determine if the division of assets and debts was fair, just and equitable.”
This issue is not properly before us for appellate review. First, Jeffrey did not object below to the insufficiency of the trial court’s findings regarding the specific value of certain personal property. As a result, Jeffrey has not preserved this issue for review on appeal. See In re Marriage of Bradley, 258 Kan. 39, 50, 899 P.2d 471 (1995).
Second, Jeffrey s challenge to the trial court’s property division fails because he has not designated a record that affirmatively establishes error. See City of Mission Hills v. Sexton, 284 Kan. 414, 435, 160 P.3d 812 (2007) (appellant has burden to designate record sufficient to establish error). For example, although Lisa’s property division proposal is in the record, Jeffrey’s property division proposal is not. Jeffrey and Lisa submitted numerous other exhibits relevant to the property division which were admitted in evidence during the trial but are not in the record on appeal.
In its memorandum decision, the trial court wrote that it considered all exhibits admitted at trial in dividing the parties’ property. As an appellate court, we may not speculate about the evidence upon which the district court relied in making the property division. Jeffrey had the duty to designate a record sufficient to establish his claim of error. His failure to provide an adequate record of the evidence considered by the trial court in dividing the parties’ property precludes appellate review. See State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003).
K.S.A. 2009 Supp. 60-1610(b) governs the trial court’s division of property. Significantly, Jeffrey does not contend the trial court failed to comply with these statutory guidelines. Moreover, the trial court has broad discretion in adjusting the property rights of parties involved in a divorce action, and its exercise of that discretion will not be disturbed on appeal absent a clear showing the court abused that discretion. In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 (2002). Finally, property division in a divorce proceeding must be just and reasonable but need not be equal. In re Marriage of Roth, 28 Kan. App. 2d 45, 48-49, 11 P.3d 514 (2000).
The record shows the trial court itemized, valued, and divided Jeffrey and Lisa’s significant assets and debts. The personal property which was not valued included “personal possessions and personal items” separately held by the couple. Notably, Jeffrey was given ownership of two older vehicles while Lisa was given own ership of one older vehicle. On this incomplete record, Jeffrey has not established that no reasonable person would agree with the trial court’s division of property. Without such a showing, we affirm the trial court’s exercise of discretion.
Finally, Lisa asked the trial court to order Jeffrey to pay her attorney fees “based upon the disparity of income and based upon the fact he is keeping the majority of the marital personal property.” In its memorandum decision, the trial court ordered Jeffrey to pay $2,000 of Lisa’s attorney fees “[bjecause of the disparity in the incomes and ability to earn income between the parties.”
Jeffrey claims the award of attorney fees to Lisa was an abuse of discretion. His argument consists of one sentence: “The court then goes one step further and awards [Lisa] . . . $2,000 in attorney’s fees.” Jeffrey cites no authority governing the trial court’s power to award attorney fees or the standard this court must utilize in reviewing such an attorney fee award. See K.S.A. 2009 Supp. 60-1610(b)(4) (court may award costs and attorney fees to either party “as justice and equity require”); In re Marriage of Patterson, 22 Kan. App. 2d 522, 53435, 920 P.2d 450 (1996) (court has wide discretion in determining both the recipient and the amount of attorney fees); Dunn v. Dunn, 3 Kan. App. 2d 347, 350-51, 595 P.2d 349 (1979) (in awarding attorney fees, court is required to consider payee’s needs and payor’s ability to pay).
A point incidentally raised but not briefed with citations of authority to support the issue is deemed abandoned. See In re Marriage of Cohee, 26 Kan. App. 2d 756, Syl. ¶ 4, 994 P.2d 663 (1999). We conclude this issue has been abandoned. Even if it was properly before us, on this record we do not find an abuse of discretion in the trial court’s award of attorney fees to Lisa.
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Caplinger, J.:
In this appeal by the City of Mulvane (the City) and John and Beth Brewer (the Brewers), we consider a challenge by the Board of County Commissioners of Sumner County (the Board) to the validity of several ordinances passed by the City with the consent of landowners pursuant to K.S.A. 2009 Supp. 12-520(a)(7). The Board challenged the ordinances, which annexed a 100-foot wide, 5-mile-long strip of land connecting the City to a proposed casino site, through a declaratory judgment and quo warranto action. The Board claimed the ordinances were unlawful because the City circumvented K.S.A. 12-520c, which governs “island annexations” or annexations of land not adjoining the City and required Board approval.
The Brewers, two of several landowners who consented to the annexation of their land, intervened in the action. Following pretrial discovery, the Board and the City filed cross-motions for summary judgment. The district court concluded the Board had standing to challenge the ordinances and the ordinances were void. The court thus granted the Board’s summary judgment motion and denied the City’s motion. The City and the Brewers appeal the district court’s orders.
Because we hold tire district court erred in finding the Board had standing to challenge the City’s annexations, we reverse the district court’s orders granting the Board’s motion for summary judgment and denying the City’s motion for summary judgment and remand this case to the district court with directions to enter an order of dismissal in favor of the City due to the Board’s lack of standing and subject matter jurisdiction.
Factual and Procedural Background
The material facts in this case are undisputed. Following the passage of the Kansas Expanded Lottery Act (KELA), see K.S.A. 2009 Supp. 74-8733 et seq., Sumner County voters approved a resolution to permit the Kansas Lottery to operate a casino in Sumner County.
Under the KELA, before a casino management contract can be approved by the lottery commission, the casino developer must obtain, inter alia, “a resolution of endorsement from the city governing body, if the proposed facility is within the corporate limits of a city, or from the county commission, if the proposed facility is located in the unincorporated area of the county.” K.S.A. 2009 Supp. 74-8734(h)(10).
The Board accepted proposals for casino management contracts for facilities located in unincorporated areas of Sumner County from four developers: MGM Grand, Harrah’s, Penn Sumner LLC, and Marvel Gaming LLC. MGM Grand and Harrah’s proposed casino sites in the northern half of Sumner County near the Mulvane exit on the Kansas Turnpike, Exit 33. Penn Sumner and Marvel Gaming proposed sites more centrally located within the county, near the Wellington turnpike exit, Exit 19. The Board endorsed the casino proposals from Penn Sumner and Marvel Gaming, but it did not endorse MGM Grand’s and Harrah’s proposals.
After fading to receive the Board’s endorsement, Harrah’s sought an endorsement from the City. However, Harrah’s proposed casino site was not within city limits. To remedy this problem, several interested landowners petitioned the City to annex portions of their land, which when annexed would comprise a 100-foot-wide, 5-mile-long strip of land connecting the City to the proposed casino site.
In response, the City enacted Ordinance No. 1268, annexing the strip of land and the proposed casino site pursuant to K.S.A. 2009 Supp. 12-520(a)(7). That statute permits a city to annex land if the land adjoins the city and the landowners petition for or consent to the annexation. The City later enacted Ordinance No. 1268 (corrected) to correct minor errors.
The Board reacted to the City’s attempt to annex the land by filing a declaratory judgment and quo warranto action against the City, its mayor, and council members (collectively the City) in Sumner County District Court, No. 2008CV24. In its petition, the Board alleged, inter alia, that Ordinance Nos. 1268 and 1268 (corrected) were void because the City unlawfully exercised its public office by proceeding under the authority of K.S.A. 2009 Supp. 12-520(a)(7) instead of K.S.A. 12-520c. K.S.A. 12-520c governs annexation of land not adjoining a city, commonly known as “island annexation,” and requires board of county commissioners approval. The Board also asserted that the annexation was unlawful because an unannexed portion of land owned by the Kansas Turnpike Authority (KTA) caused a “break” in the contiguity of the strip between the City and the casino site. John and Beth Brewer (the Brewers), two of the consenting landowners, intervened in the case.
The City moved to dismiss the Board’s action, arguing the Board lacked standing to challenge the annexations and the City substantially complied with the annexation statutes. Additionally, in response to the allegation raised by the Board concerning the land owned by the KTA, the City enacted Ordinance No. 1271, annexing the turnpike Exit 33 interchange and limited surrounding KTA property, with the consent of the KTA and other landowners.
The Board responded by amending its petition to additionally challenge the validity of Ordinance No. 1271. The City then filed a second motion to dismiss, maintaining the Board lacked standing to challenge Ordinance No. 1271. The Brewers also moved to dismiss, essentially adopting the City’s arguments.
During the hearing on the motions to dismiss, the district court agreed that the Board’s standing was at issue, but it concluded resolution of this issue depended upon whether the City properly annexed the land under K.S.A. 2009 Supp. 12-520(a)(7). The court opined that Ordinance Nos. 1268 and 1268 (corrected) could be procedurally defective because only the first strip of annexed land adjoined the City at the time the original ordinance was passed and because the City annexed several “lands” in one ordinance rather than several “tracts.” The district court concluded the annexations could constitute “an improper island annexation,” which the Board would have standing to challenge, and denied the motions to dismiss.
In response to the district court’s ruling, the City enacted Ordinance Nos. 1275 through 1300, essentially reannexing the same 100-foot-wide, 5-mile-long strip of land one parcel at a time, including KTA property and the proposed casino site.
The Board reacted by filing a second declaratoiy judgment and quo warranto action in Sumner County District Court, No. 2008CV63, challenging Ordinance Nos. 1268, 1268 (corrected), 1271, and 1275-1300, for the same reasons asserted in the first case. The City again moved to dismiss arguing, inter alia, the Board lacked standing. The Brewers also intervened in the second action.
At the hearing on the motion to dismiss, the district court acknowledged that by its step-by-step annexations, the City had resolved the issue of whether the annexed land properly adjoined the City. Nevertheless, the district court denied the City’s motion to dismiss, noting “fishy circumstances here that perhaps warrant further investigation.”
Ultimately, the district court consolidated the two cases for trial. Following months of pretrial discovery, the City and the Board filed cross-motions for summary judgment and respective responses and replies. After a hearing, the district court granted the Board’s motion, in part, and denied the City’s motion. The district court found the strip annexations were so “grossly unreasonable as to exceed statutory authorization and constitute an unconstitutional application of the authority granted to the City by the legislature in K.S.A. 12-520(a)(7).” However, the district court also denied the Board’s motion for summary judgment based upon its claim that the annexed territory did not adjoin the City within the meaning of K.S.A. 12-519(d). The court found that “adjoins” means to “lie upon or touch” and that the annexed property met that definition. Finally, the district court addressed die City’s argument that the Board lacked standing to challenge the annexations. Although noting it had agreed that the land was adjacent to the City as required by K.S.A. 2009 Supp. 12-520(a)(7), the court nevertheless reasoned the “[Board] must have standing to sue as the annexations circumvent the county’s statutory right to approve or disapprove of island annexations.” (Emphasis added.)
The City and the Brewers timely appealed die denial of their motions for summary judgment as well as all other adverse rulings made by the trial court.
Discussion
The City and the Brewers (collectively the City) present two issues for our review: (1) Whether the district court erred in concluding the Board had standing to challenge the City’s annexations and, if not, (2) whether the district court erred in concluding the City’s annexations were void.
The Board Lacked Standing To Challenge The Annexation
On appeal, the City initially argues the district court erred in determining the Board had standing to challenge the annexation ordinances. The City points out that it annexed the property at issue pursuant to K.S.A. 2009 Supp. 12-520(a)(7), which provides for annexation of land adjoining a city when the landowners have consented to annexation. According to the City, K.S.A. 2009 Supp. 12-538 provides limited standing to challenge enactments under K.S.A. 2009 Supp. 12-520 and the Board has no standing under that statute.
Interestingly, although the City’s appeal brief appropriately addresses standing as a preliminary jurisdictional issue, the Board does not address standing until page 39 of its 44-page brief. Even then, the Board fails to address the statutory limitations on standing cited by the City. Instead, the Board essentially argues it has standing because the City should have annexed the land under K.S.A. 12-520c, which requires Board approval of annexation of land not adjoining a city, instead of K.S.A. 2009 Supp. 12-520(a)(7).
Essentially, the Board has chosen to place the cart before the horse, so to speak, and rely upon the district court’s cursory conclusion regarding standing — i.e.: “The [Board] must have standing to sue as the annexations circumvent the county’s statutory right to approve or disapprove of island annexations.”
The Board’s approach to standing, like the district court’s ruling, fails to recognize two important concepts: (1) standing is a threshold jurisdictional issue and (2) in the case of a challenge to a city’s annexation, standing is governed by statute.
General Rules Regarding Standing
Standing is a party’s right to make a legal claim or seek judicial enforcement of a duty or right. Black’s Law Dictionary 1536 (9th ed. 2009). Under the traditional tests for standing, “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.” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 761, 189 P.3d 494 (2008). However, in some situations, standing is governed by statute. See, e.g., 286 Kan. at 751-61 (discussing standing requirements of the Kansas Judicial Review Act); Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 182-87, 106 P.3d 483 (2005) (discussing standing requirements of the Uniform Commercial Code).
When standing is controlled by a specific statute, courts must first determine whether the party meets the statutory standing requirements and, if so, then determine whether the party meets the traditional tests for standing. Board of Sumner County Comm’rs, 286 Kan. at 750.
The existence of standing and jurisdiction are both questions of law over which appellate courts exercise de novo review. Board of Sumner County Comm’rs, 286 Kan. at 751; Mid-Continent Specialists, Inc., 279 Kan. at 185. Additionally, to the extent that review of this issue requires statutory interpretation, appellate review is unlimited. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Traditionally, an action challenging the validity of a city’s annexation ordinances could be prosecuted only by the State acting through one of its proper officers, such as a county attorney, district attorney, or the attorney general. In 1966, our Supreme Court thoroughly reviewed the history of what it termed “the foregoing rule of universal application,” which has been consistently reaffirmed and applied, in Babcock v. City of Kansas City, 197 Kan. 610, 611-13, 419 P.2d 882 (1966), and concluded:
“In one form or another, commencing with Craft v. Jackson Co., 5 Kan. 518°, 313, decided in 1870, to Schulenberg v. City of Reading, [196 Kan. 43, 51, 410 P.2d 324], decided in 1966, the rule that a private individual cannot challenge municipal procedure and organization has been undeviatingly followed, unless the plaintiffs right to bring the action was not properly challenged.” 197 Kan. at 612.
The court in Babcock applied the rule to conclude that a private individual was not permitted to challenge a city’s annexation ordinances by filing a quo warranto-type action, even though the parties had stipulated that the individual had an interest adverse to the ordinances. 197 Kan. at 615-18. But see Babcock, 197 Kan. at 618-21 (Fontron, J., dissenting) (pointing out that four of the seven annexation ordinances challenged by the landowner were “admittedly invalid” and suggesting that the 1963 amendments to the quo warranto statute were intended to permit individuals to bring a private action challenging the validity of annexation ordinances).
In Sabatini v. Jayhawk Construction Co., 214 Kan. 408, 413-14, 520 P.2d 1230 (1974), the court reaffirmed the requirement that the State, rather than an individual or other entity, file a quo warranto action challenging the validity of a city’s annexation ordinances. In Sabatini, unlike in Babcock, the court permitted a private landowner whose property adjoined land annexed by the City of Topeka to challenge the annexation. However, in Sabatini, the district attorney had intervened on behalf of the State of Kansas, and the court pointed out that the district attorney’s ex rel. petition questioning the legality of the annexation proceedings “evaporated” questions of standing raised by the defendants. 214 Kan. at 409.
Significantly, this general rule requiring State action applies to collateral attacks against the integrity of a municipal corporation, including challenges to a city’s annexation ordinances, but the rule does not apply when the legislature has expressly authorized review. City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 779-80, 518 P.2d 403 (1974).
Thus, unless the legislature has expressly authorized review, only the State, acting through a proper officer, may challenge a city’s annexation ordinances.
Quo Warranto Action As Basis For Standing
Before discussing whether the legislature has expressly authorized review here, we note that at oral argument, the Board suggested that because it brought this action in quo warranto pursuant to K.S.A. 60-1202(1), it has standing to challenge the City’s annexations. Following argument, the Board filed a supplemental letter of authority pursuant to Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47), citing both K.S.A. 60-1202 and K.S.A. 60-1203 in support of its argument.
The Board correctly points out that pursuant to K.S.A. 60-1202(1), an action in quo warranto may be brought when “any person shall usurp, intrude into or unlawfully hold or exercise any public office.” The Board reasons that this section permits it to challenge the City’s annexation ordinances because the City and its officials usurped the Board’s right to consider a request for island annexation and unlawfully exercised the power of public office by “effecting an illegal strip annexation.”
Regardless of whether the Board has correctly characterized the nature of its action under K.S.A. 60-1202(1), the Board is not authorized to bring a quo warranto action in its own name under K.S.A. 60-1203, which provides:
“Where the action is brought by a person claiming an interest in an office, franchise or corporation, or claiming an interest adverse to a resolution, ordinance, franchise, gilt or grant, which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or the county attorney.”
Citing this statute, the Board contends it has an interest adverse to the annexation ordinances adopted by the City and that the Board is considered a “person” under Kansas law. See K.S.A. 2009 Supp. 77-201 Thirteenth. Significantly, other than the statute, the Board cites no authority for its suggestion that it has the right to bring an individual quo warranto action pursuant to K.S.A. 60-1203.
However, as the City points out in its response to the Board’s supplemental letter of authority, this issue was long ago resolved by our Supreme Court against the Board’s position. See Babcock, 197 Kan. at 615-18 (holding the language in K.S.A. 60-1203 [formerly K.S.A. 60-1403], providing that a quo warranto action brought “ ‘by a person claiming ... an interest adverse to . . . a[n] ordinance . . . shall be prosecuted’ ” in that person’s name rather than the name of the State, did not enlarge a private individual’s right to use quo warranto to challenge the lawfulness of a municipal organization’s annexation ordinances); see also Sabatini, 214 Kan. at 413 (court noted its repeated holding that “an action challenging the validity of a city annexation ordinance can be prosecuted only by the state acting through one of its proper officers, such as a county attorney, district attorney, or the attorney general”).
Stated another way, while a quo warranto action may be the proper vehicle to challenge a city’s annexation ordinances, the Board is not an authorized “driver.” Rather, the authorized driver is the State, acting through a proper officer. The Board conceded at oral argument that the State has not sought to intervene in this action and the Board is not an officer of the State.
Because this is not a quo warranto action brought by the State acting through a proper officer, we must next consider whether the Board may derive standing through a statute authorizing direct review.
Standing To Challenge Annexations Under K.S.A. 2009 Supp. 12-520(a)
It is undisputed that the City annexed the subject properties pursuant to K.S.A. 2009 Supp. 12-520(a)(7). Yet, the Board does not claim that it had statutoiy authority to challenge the City’s annexations under K.S.A. 2009 Supp. 12-538, the statute which authorizes individuals and entities in limited circumstances to challenge annexations under K.S.A. 2009 Supp. 12-520. Nor does the Board cite any other statutoiy authority providing it with standing to appeal the City’s annexations here. Instead, the Board essentially relies on the district court’s conclusion that it must have standing to challenge the annexations.
The City proceeded here under K.S.A. 2009 Supp. 12-520(a)(7), which provides in relevant part:
“(a) Except as hereinafter provided, the governing body of any city, by ordinance, may annex land to such city if any one or more of the following conditions exist:
(1) The land is platted, and some part of the land adjoins the city.
(2) The land is owned by or held in trust for the city or any agency thereof.
(3) The land adjoins the city and is owned by or held in trust for any governmental unit other than another city except that no city may annex land owned by a county without the express permission of the board of county commissioners of the county other than as provided in subsection (f).
(4) The land lies within or mainly within the city and has a common perimeter with the city boundary line of more than 50%.
(5) The land if annexed will malee the city boundary line straight or harmonious and some part thereof adjoins the city, except no land in excess of 21 acres shall be annexed for this purpose.
(6) The tract is so situated that 2/3 of any boundary line adjoins the city, except no tract in excess of 21 acres shall be annexed under this condition.
(7) The land adjoins the city and a written petition for or consent to annexation is filed with the city by the owner.” (Emphasis added.)
The term “adjoin” is defined in K.S.A. 12-519(d)(l) as: “[T]o he upon or touch (1) the city boundary line.”
In arguing the Board íacks statutory authority to challenge the annexation ordinances, the City points to K.S.A. 2009 Supp. 12-538, which was enacted by the legislature in 2005. See L. 2005, ch. 155, sec. 3. The statute not only specifies the parties that have standing to challenge an annexation under K.S.A. 2009 Supp. 12-520(a), but it also sets out the court’s scope of review in considering such a challenge. K.S.A. 2009 Supp. 12-538 provides:
“Any owner of land annexed by a city under the authority of K.S.A. 12-520(a)(l) through (6) and amendments thereto, and any city whose nearest boundary line is located within Vz mile of the land being so annexed, within 30 days next following the publication of the ordinance annexing the land, may maintain an action in district court in the county in which the land is located challenging the authority of the city to annex the land, whether the annexation was reasonable, whether the service plan was adequate and the regularity of the proceedings had in connection with the annexation procedures. When determining the reasonableness of an annexation in the case of a city challenging the annexation, the court shall include in its considerations the effect the annexation has on the future growth of the city challenging the annexation.”
Thus, as the City points out, the legislature has specifically provided that when a city annexes land under K.S.A. 2009 Supp. 12-520(a)(l)-(6), any owner of the annexed land and “any city whose nearest boundary line is located within V2 mile of the land” has standing to challenge the annexation in district court. K.S.A. 2009 Supp. 12-538. Notably, the legislature did not extend standing to counties to challenge a city’s annexation under K.S.A. 2009 Supp. 12-520(a)(l)-(6). More importantly, the legislature did not provide standing under K.S.A. 2009 Supp. 12-538 for any parly to directly challenge a city’s annexation accomplished with the consent of the landowners under K.S.A. 2009 Supp. 12-520(a)(7), the statutory provision utilized by the City in this case.
Perhaps recognizing the absence of any explicit provision in the annexation statutes providing a county with standing to challenge a city’s annexation under K.S.A. 2009 Supp. 12-520(a)(7), the Board simply does not address K.S.A. 2009 Supp. 12-538. Thus, the Board must concede that only landowners and qualified cities have standing to challenge a city’s annexations under K.S.A. 2009 Supp. 12-520(a)(l)-(6) and that the statute does not authorize any party to challenge consent annexations under K.S.A. 2009 Supp. 12-520(a)(7).
Based upon our review of the statutory and case law, it would seem that our analysis should end at this juncture. The Board is not challenging the City’s action through a quo warranto action filed by the State or one of its proper officers, and the Board cites no statutory authority providing it with standing to direcdy challenge the City’s annexations. Thus, the Board lacks standing to challenge the City’s annexations and the district court erred in failing to dismiss the Board’s challenge for lack of standing.
Failure To Substantially Comply With Annexation Statutes As Basis For Standing
Nevertheless, the Board relies on language from City of Leawood v. City of Overland Park, 245 Kan. 283, 285, 777 P.2d 830 (1989), and City of Lenexa v. City of Olathe, 228 Kan. 773, 781-82, 620 P.2d 1153 (1980) (Lenexa I), rev’d on other grounds 229 Kan. 391, 625 P.2d 423 (1981) (Lenexa II), to suggest that “if a city does not properly annex land, or if the land does not adjoin the city, an individual or entity other than a landowner may have standing to raise such a challenge.”
While it may seem counterintuitive to argue that a party has standing to challenge the lawfulness of an annexation only if the annexation is unlawful, that is precisely what the Board argues here. As discussed below, some aspects of the court’s holdings in Leawood and Lenexa I arguably support this logic. Further, while we respectfully suggest that the analysis supporting these holdings may be flawed, we are nevertheless bound by precedent. Ultimately, as discussed below, even assuming the correctness of this “cart before the horse” analysis, the Board still lacks standing to challenge the City’s annexations under the facts of this case.
Leawood v. City of Overland Park
In Leawood, 245 Kan. 283, the City of Leawood challenged two City of Overland Park annexation ordinances annexing several tracts of land, only one of which adjoined Leawood, with the consent of landowners pursuant to K.S.A. 1988 Supp. 12-520(a)(7). At the time of the annexations, the relevant standing statute, K.S.A. 1988 Supp. 12-520(g), provided standing to challenge a city’s annexations under 12-520 only to the owners of the annexed property.
We note at this juncture that although subsection (g) of K.S.A. 12-520, which granted standing only to affected landowners, later became subsection (h), see L. 1993, ch. 147, sec. 1, it remained in substantially the same form until 2005 when the legislature deleted subsection (h) and added a new section, now K.S.A. 2009 Supp. 12-538. See L. 2005, ch. 155, sec. 3; see also L. 2005, ch. 186, sec. 6 (deleting subsection [h]). As discussed above, K.S.A. 2009 Supp. 12-538 provides standing to challenge annexations under K.S.A. 2009 Supp. 12-520(a)(l)-(6) to affected landowners as well as qualified cites.
The district court granted Overland Park’s motion for summary judgment, holding, inter alia, that (1) Leawood lacked standing to challenge the annexations and (2) Overland Park legally annexed the land pursuant to K.S.A. 1988 Supp. 12-520(a)(7). On review, our Supreme Court noted that when “a municipality properly annexes adjoining land under 12-520, only the owner of that property of may challenge the attempted annexation.” (Emphasis added.) Leawood, 245 Kan. at 285. The court then proceeded to consider whether Overland Park had properly annexed multiple, contiguous tracts of land when all tract owners consented to the annexation but only one of the tracts adjoined the city’s boundary.
Citing the plain language of K.S.A. 1988 Supp. 12-520(a)(7) and the definitions of “land” and “adjoins” in K.S.A. 1988 Supp. 12-519, the Leawood court noted that “the test of the city’s action on appeal is whether the city has acted in substantial compliance with the statute.” Leawood, 245 Kan. at 286. Further, the court noted that “the objective of the annexation statute is to protect the rights of landowners against a city’s unilateral action in annexing their land.” 245 Kan. at 286 (citing Banzer v. City of Wichita, 237 Kan. 798, 801, 804-05, 703 P.2d 812 [1985]). However, the court specifically pointed out that an annexation under K.S.A. 1988 Supp. 12-520(a)(7) “is different from other methods of annexation in that it requires the property owner’s consent,” thus resulting in a mutual rather than a unilateral annexation. 245 Kan. 286-86.
The court’s language in Leawood suggesting that the test on appeal was whether Leawood substantially complied with the annexation statute is curious in light of the court’s previous identification of the issue as whether Leawood had standing to challenge the annexation. Further, standing was not at issue in Banzer, the case cited by the Leawood court in support of this proposition. Rather, the affected landowners in Banzer clearly had standing to appeal under the statute in effect at that time. See K.S.A. 12-520(g) (Ensley 1981). The issue simply was whether the City of Wichita properly annexed their land. See 237 Kan. at 801, 805-06.
Significantly, the court in Banzer properly identified the narrow scope of appellate review in an annexation case, noting that both parties agreed that it was not a proper judicial function for the court to inquire into the reasonableness, wisdom, necessity, or advisability of annexing and platting land. Rather, the court held that “the scope of judicial review is dependent upon the statutes authorizing the appeal.” (Emphasis added.) 237 Kan. at 801. Specifically, the Banzer court noted that its function in reviewing an annexation decision was to determine whether the municipality has statutory authority to act and whether it acted in accordance with that authority, with the test being substantial compliance. 237 Kan. at 801.
Thus, it appears to this panel that the Leawood court confused its limited scope of review in annexation cases with the issue of standing, both of which were controlled by the same statute, K.S.A. 1988 Supp. 12-520(g). This approach seems to contradict the clear rule discussed above that standing is a threshold issue to be decided without regard to the merits of the action. Moreover, this rule has been strictly followed in challenges to annexation ordinances without regard to the lawfulness of annexation ordinances. See, e.g., Babcock, 197 Kan. at 618-21 (Fontron, J., dissenting) (noting that majority’s holding resulted in private individual lacking standing to challenge a city’s annexation ordinances despite parties’ stipulation that individual had interest adverse to the ordinances and fact that four of seven annexation ordinances challenged by the landowner were “admittedly invalid”).
In any event, the court ultimately held in Leawood that the “annexation of multiple contiguous tracts under one hearing and one ordinance is proper where the owners have consented pursuant to K.S.A. 1988 Supp. 12-520(a)(7) and part of the annexed land adjoins the city.” Leawood, 245 Kan. at 287. Because Overland Park had substantially complied with K.S.A. 1988 Supp. 12-520(a)(7), the court affirmed the district court’s ruling that Leawood lacked standing to challenge Overland Park’s annexation. 245 Kan. at 286-88.
The Leawood court’s blending of the issue of standing with the issue of the proper scope of review is not unprecedented. Rather, in another case relied upon the Board here, Lenexa I, 228 Kan. 773, the court arrived at a similar inconsistent conclusion.
City of Lenexa v. City of Olathe
In Lenexa I, the City of Lenexa challenged the City of Olathe’s annexation of three tracts of land with consent of the landowners pursuant to K.S.A. 12-520(g) (Weeks) by means of three separate ordinances enacted on successive days. The first ordinance annexed a tract that adjoined Olathe on the city’s northern boundary. Each successive ordinance annexed tracts that adjoined the first tract and second tract, respectively. Thus, as the Lenexa I court noted: “[I]n each instance the land adjoined the city at the time the annexation occurred.” 228 Kan. at 782.
Lenexa filed a quo warranto-type action challenging Olathe’s ordinances. The district court sustained Olathe’s motion to dismiss, concluding Lenexa lacked standing. In affirming the district court’s decision, the Lenexa I court quoted at length from the district court’s thorough memorandum decision examining the legislative history behind the enactment of K.S.A. 12-520(g) and concluding the language of the provision did not extend standing to a neighboring municipality. 228 Kan. at 773-78, 782-83.
Significantly, the Lenexa I court approved the district court’s conclusion that “ ‘the constitutional amendment granting home rule authority to cities expressly reserves annexation matters to the state and the legislature has expressly provided hy statute who can challenge an annexation proceeding.’ ” (Emphasis added.) 228 Kan. at 777-78. Further, the court cited the district court’s similar conclusion that “ ‘Article 12, § 5 [of the Kansas Constitution] and K.S.A. 12-520 provide the answer for annexation challenges. Both the state and aggrieved landowners have standing and one city may not take unilateral action to challenge annexation by another.’ ” 228 Kan. at 778.
The Lenexa I court concluded that standing to challenge a city’s annexation is controlled by statute and, under K.S.A. 12-520, “where a dispute arises as to the annexation of land which adjoins the city, the only interested parties to the controversy are the city and the owner of land which has been proposed for annexation.” (Emphasis added.) 228 Kan. at 780. Finally, the court noted in dicta that “in cases of a proposed annexation of land not adjoining the city, the rights of another incorporated city in the county must be considered and it has an interest which entitles it to challenge such an annexation in district court.” (Emphasis added.) 228 Kan. at 782.
This holding merely recognized that at the time, a city within the county lacked standing to challenge another city’s annexations accomplished under K.S.A. 12-520 (Weeks) but had limited standing to challenge island annexations under K.S.A. 12-520c (Weeks). 228 Kan. at 781-83.
The Lenexa I court affirmed the district court’s ruling that Lenexa had no standing to challenge Olathe’s annexations because the annexed land adjoined the city. 228 Kan. at 780, 782-83. However, upon rehearing, the court noted that it erroneously assumed in Lenexa I that no dispute existed as to whether all of the tracts adjoined the city. Thus, the court in Lenexa II reversed-and remanded the case to the district court to determine whether the property was adjacent to the city. Lenexa II, 229 Kan. at 391-93. Yet this dispute stood at the very merits of the controversy, as the Supreme Court had previously recognized when it quoted with approval the district court’s statement of the issue:
“The City of Lenexa has raised numerous attacks on the procedures followed in the annexation, the legal authority of the defendant to annex the land in question and the advisability of the annexation itself. In the final analysis, however, the question before this court is whether the legislature intended to allow municipalities to challenge annexations by other municipalities.” (Emphasis added.) Lenexa I, 228 Kan. at 774.
In any event, the die was cast, and on remand, the district court considered at least some of the merits of the controversy and determined that although Olathe’s first annexation ordinance annexing the only land that directly adjoined the city contained an error, that error did not affect the validity of subsequent ordinances annexing two other tracts of land that did not directly adjoin the city. On appeal, our Supreme Court concluded otherwise. City of Lenexa v. City of Olathe, 233 Kan. 159, 162-65, 660 P.2d 1368 (1983) (.Lenexa III). However, the Lenexa III court did not even discuss the standing issue, which apparently had merged with the merits. Instead, the court held that as a result of the mistakes in publication, two of the tracts were not adjoining and the annexation was legally ineffective. 233 Kan. at 164-65.
Thus, our analysis of the above cases leads us to conflicting approaches. On the one hand, our Supreme Court in Babcock v. City of Kansas City, 197 Kan. 610, 611-13, 419 P.2d 882 (1966), clearly recognized the historically followed principle that standing to challenge a city’s annexation lies entirely with the State, acting through one of its proper officers, unless standing is specifically authorized by statute. Here, because a proper action has not been brought by the State or one of its officers and no statutory authority exists, the Board lacks standing to challenge the City’s annexations.
On the other hand, the Leawood and Lenexa cases seem to suggest that when land is unlawfully annexed pursuant to K.S.A. 12-520(a), another city within the county may have standing to challenge the annexation. See Leawood, 245 Kan. at 286-88; Lenexa II, 229 Kan. at 391-92; Lenexa I, 228 Kan. at 777-80.
Application Of Standing Rules To This Case
Regardless of the approach taken, however, we must conclude in this case that the Board lacks standing to challenge the City’s annexations.
First, in the cases discussed above, the appealing cities challenged whether the annexed land adjoined the cities at the time of annexation as required by statute and whether a city could annex multiple contiguous tracts under one ordinance when only one tract adjoined the city. See Leawood, 245 Kan. at 286-88; Lenexa II, 229 Kan. at 391-93.
Here, we are not dealing with an annexation challenge by another city within the county. Rather, we are considering the Board’s challenge to the City’s annexation. Further, the district court found that each of the step-by-step annexations “adjoined” the City and denied the Board’s motion for summary judgment on that ground. The Board has not appealed that determination, and the issue is not before us. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191-92, 106 P.3d 483 (2005) (appellees must cross-appeal adverse rulings to obtain appellate review of those issues).
Moreover, even if the issue were before us, we would affirm the district court on this ruling. As discussed, tire legislature has defined the term “adjoined” to mean simply to “he upon or touch” the city boundary. K.S.A. 12-519(d)(l); see also Lenexa III, 233 Kan. at 165 (finding two tracts adjacent when it was “undisputed that Tract II touches Tract IB at one point”). Unquestionably, while the annexed property in this case does not share a “substantial” boundary with the City, as the Board suggests that the legislature intended, it does touch at one point. That is all the statute requires.
In considering issues of standing, this court simply is not permitted to address the numerous concerns addressed in the Board’s brief regarding the wisdom and reasonableness of so-called strip annexations, and/or the intent of the City and landowners in undertaking such annexations. If such considerations were permissible, the Board’s arguments might be successful. Similarly, we must reject the Board’s request that we take judicial notice that the 2008 Kansas Legislature unsuccessfully sought to enact legislation which would render strip annexations unlawful. The wisdom or propriety of proposed action clearly is not before us.
Conclusion
Because we have concluded the Board lacked standing to challenge the City’s annexations, we hold the district court erred in denying the City’s motion for summary judgment on that ground and in granting the Board’s motion for summary judgment. We reverse and remand with directions to the district court to enter an order of dismissal in favor of the City due to the Board’s lack of standing and subject matter jurisdiction.
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Green, J.:
These consolidated wrongful death actions are before this court for the second time. The actions stem from an air ambulance crash that occurred in February 2004 outside of the Dodge City Regional Airport. Medical crew members Jonathan Dye and Jennifer Hauptman were killed in the air ambulance accident. Both Dye and Hauptman were employees of Ballard Aviation, Inc. (Ballard), the operator of the air ambulance services. The families of Dye and Hauptman (plaintiffs/appellants) brought wrongful death actions against WMC, Inc. (defendant/appellee), doing business as Wesley Medical Center (Wesley), alleging that Wesley had failed to perform adequate oversight of Ballard’s operations. In its first decision, this court reversed the trial court’s judgment dismissing the appellants’ petitions for failure to state a claim upon which relief may be granted and remanded the cases to the trial court.
On remand, the trial court granted summary judgment to Wesley. The trial court determined that under the principles articulated in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), and this court’s previous decision in Dye v. WMC, Inc., 38 Kan. App. 2d 655, 172 P.3d 49 (2007), the appellants’ claims were not viable under Kansas law because a principal owes no duty to provide a safe working environment for the employees of an independent contractor. On appeal, the appellants argue that the trial court improperly granted summary judgment to Wesley on their negligence claims. We disagree with the appellants’ argument. We determine that the appellants’ negligent hiring claim is barred under the policy reasons advanced in Dillard. Moreover, based on the uncontroverted facts in this case, the appellants cannot prevail on their negligent supervision and negligent undertaking claims because they cannot show that Wesley maintained control over Ballard’s flight operations or assumed an obligation with respect to Ballard’s air ambulance services for the benefit of the decedents. As a result, we determine that the trial court properly granted summary judgment to Wesley.
The instant case is a consolidation of two wrongful death actions arising out of an air ambulance crash that occurred on February 17, 2004. The air ambulance was a Beech B90 operated by Ballard as EagleMed 4. Wesley contracted for air ambulance services with Ballard. The accident occurred en route to Dodge City Regional Airport after the delivery of a patient from Mercy Hospital of Independence, Kansas (Mercy), to Wesley. The pilot and medical crew members, Jonathan Dye, who was a medical technician, and Jennifer Hauptman, who was a registered nurse, were killed in the air ambulance accident. No patient was on board the air ambulance when the accident occurred.
In February 2006, Jonathan’s parents, John F. Dye and Wynema M. Dye, and Jennifer’s husband, Ethan Hauptman, brought separate wrongful death actions against Wesley and Mercy. Mercy was later dismissed from both lawsuits after the appellants and Mercy filed stipulated entries of dismissal.
The appellants’ negligence claims against Wesley were identical. The appellants alleged that as a result of Wesley’s contract with Ballard and on the basis of custom and usage, Wesley failed to perform adequate oversight of Ballard’s operations when it knew or should have known of the following:
“a. [Ballard] maintained a pilot base and pilot employee pool that utilized pilots up to the full amount of hours permitted for flight duty time for 14 CFR Part 91 and Part 135 air operations.
“b. [Wesley] was aware that the dispatch procedures utilized by [Ballard] were new as of January 1, 2004 and the technology was new while the dispatch per sonnel were not qualified to act as dispatchers or trained to adequately use the equipment.
“c. [Wesley] knew or should have known that the lack of experience, training and qualification of the [Ballard] dispatchers and [Ballard] dispatch department would result in the dispatch of aircraft with pilots who were fatigued and near the limit of their permissible legal duty time.
“d. [Wesley] knew or should have known that the aircraft utilized by [Ballard], including EagleMed 4, on February 17,2004, a Beech B90 registered as N777KU, did not utilize terrain avoidance system technology because their flight operations were a combination of Part 91 and Part 135 medical service operations.
“e. [Wesley] knew or should have known that fatigue and pilot duty hour considerations were so severe at [Ballard] that medical personnel onboard aircraft flights were known to handle aircraft flight duties and responsibilities in order to provide relief for fatigued pilots.
“f. On February 17, 2004, [Wesley’s] employees, agents and representatives witnessed the fatigue of EagleMed 4’s pilot and negligently failed to warn the pilot and his passengers of the known risks of piloting an aircraft without adequate rest in a fatigued condition, a duty assumed by the defendant as a user of air ambulance services and as a party familiar with [Ballard’s] operational standards.”
The appellants alleged that as a result of Wesley’s knowledge, contractual responsibilities, and custom and usage, Wesley owed a duty to the passengers, patients, and medical personnel onboard its air ambulance flights, including EagleMed 4 on February 17,2004, to “exercise reasonable and thorough oversight of its business operations that related to air ambulance services and to cease air ambulance services” with Ballard “until such practices that were indicative of pilot fatigue issues were stopped.” The appellants contended that as a result of Wesley’s negligence and breach of duty, the decedents suffered fatal injuries.
Motion to Dismiss
In May 2006, Wesley moved to dismiss both lawsuits. Wesley argued that the appellants’ allegations of negligence in the two lawsuits failed to state a claim because they failed to show that Wesley owed any duty to the decedents as employees of Ballard, which was an independent contractor hired by Wesley to perform air ambulance services.
In August 2006, the two lawsuits were consolidated for discovery purposes. In October 2006, the trial court granted Wesley’s mo tions to dismiss. The trial court adopted Wesley’s arguments in support of its motions to dismiss. The trial court determined that as a matter of law, the appellants had failed to state a claim for which relief could be granted.
Court of Appeals’ Decision
The appellants appealed the trial court’s decision to this court. The appellants argued that the trial court had prematurely dismissed their petitions. This court agreed with the appellants’ argument. Although the appellants had suggested three possible negligence theories, this court discussed in depth only the appellants’ negligent hiring theory under Restatement (Second) of Torts § 411 (1964). Determining that the appellants might be able to produce a set of facts that would entitle them to relief on their negligent hiring theory under Restatement § 411, this court reversed and remanded the case to the trial court. See Dye, 38 Kan. App. 2d at 662-66.
Remand to the Trial Court
On remand, the trial court entered a scheduling order requiring discovery to close on issues of employment on September 1,2008. The trial court further ordered discovery on the remaining issues to close on May 29, 2009, and scheduled a formal pretrial order conference on June 11, 2009.
Wesley’s Motion for Summary Judgment
In September 2008, Wesley moved for summary judgment on all of the appellants’ claims. Wesley stated that this court had concluded in Dye that if the decedents were in fact Ballard’s employees, the appellants’ claims would not be viable. In its uncontroverted statement of facts, Wesley set out 66 separate paragraphs of facts relating to the decedents’ employment status with Ballard and Ballard’s practices and procedures in running its air ambulance business. Wesley maintained that based on the facts and evidence, it was clear that the appellants were employees of Ballard and, therefore, summary judgment should be entered in favor of Wesley.
Plaintiffs’ Response to Wesley’s Motion for Summary Judgment
In responding to Wesley s motion for summary judgment, the appellants contested many of Wesley s proposed uncontroverted facts and also set forth their own statement of facts supported by affidavits, documents, and deposition testimony. The appellants argued that Wesley had mischaracterized this court’s ruling in Dye and the fact that the decedents were employees of Ballard was not dispositive of their claims. Moreover, the appellants contended that Wesley, in its motion for summary judgment, had addressed only their negligent hiring claim under Restatement § 411. The appellants maintained, however, that they had advanced several theories of liability, including Wesley’s breach of federal aviation rules, negligent supervision of Ballard, failure to warn, breach of a duty of reasonable care under Restatement (Second) of Torts § 324A (1964), and negligent hiring of an independent contractor.
Trial Court’s Decision Granting Summary Judgment to Wesley
In a written journal entry, the trial court granted Wesley’s motion for summary judgment. The trial court set out its findings of fact in 14 numbered paragraphs. The trial court noted that the appellants had contested several of Wesley’s proposed undisputed facts. Nevertheless, the trial court did not adopt those facts because “those issues [were] not material to the Court’s decision.” The trial court determined that because the parties had agreed that the decedents were in fact employees of Ballard when the accident occurred and because the decedents’ employment status was the central issue of fact, the disputed issues of fact did not prevent the entry of summary judgment.
The trial court held that under the principles articulated in Dillard and Dye, none of the appellants’ claims were viable under Kansas law because a principal owes no duty to provide a safe working environment for the employees of an independent contractor. Further, in specifically determining that the appellants’ claims under Restatement § 411 were not viable,-the trial court stated that it followed the reasoning of Dye that employees of an independent contractor are not third persons under Restatement §411-
Standards of Review
An appellate court’s standard of review in summary judgment cases is well established. 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 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, 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).
Summary judgment should be granted with caution in negligence actions. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). “In the vast majority of cases, claims based on negligence present factual determinations for the jury, not legal questions for the court.” Elstun v. Spangles, Inc., 289 Kan. 754, Syl. ¶ 2, 217 P.3d 450 (2009). Summary judgment is proper in a negligence action, however, if the only questions presented are questions of law. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007). If reasonable persons could arrive at only one conclusion, the court may decide the question as a matter of law. Long v. Turk, 265 Kan. 855, 865, 962 P.2d 1093 (1998).
Appellants’ Theories of Liability
In their response to Wesley’s motion for summary judgment, the plaintiffs asserted the following five possible theories of recovery under their petitions: (1) Wesley’s negligent hiring of a contractor under Restatement (Second) of Torts § 411; (2) Wesley’s breach of the Federal Aviation Administration (FAA) regulations; (3) Wesley’s failure to warn; (4) Wesley’s negligent supervision of a contractor; and (5) Wesley’s breach of a duty of care under Restate ment (Second) of Torts § 324A. In order to determine whether the trial court properly granted summary judgment to Wesley, we will consider each of those theories and determine whether there was a genuine issue as to any material fact bearing on those theories.
Negligence
In order to prevail on their negligence claims, the appellants must prove (1) the existence of a duty, (2) a breach of that duty, (3) injury, and (4) a causal connection between the duty breached and the injury suffered. Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 266, 43 P.3d 799 (2002). “The general rule is that ‘[wjhether a duty exists is a question of law,’ while the question as to ‘[wjhether the duty has been breached is a question of fact.’ [Citation omitted.]” Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008).
Mischaracterization of This Court’s Ruling in Dye
In its motion for summary judgment, Wesley mischaracterized this court’s ruling in Dye by stating that this court “concluded that if it was determined that the decedents were, in fact, employees of Ballard Aviation, plaintiffs’ claims would not be viable.” As the appellants point out, however, this court discussed only the appellants’ negligent hiring claims and did not discuss the appellants’ other claims. Moreover, this court never definitively concluded that if the decedents were employees of Ballard, then the appellants’ negligent hiring claim would be barred as a matter of law.
a. Negligent Hiring Theory under Restatement (Second) of Torts §411
The appellants first contend that the trial court erred in granting summary judgment on their negligent hiring claim because there were genuine issues of material fact with regard to whether an independent contractor’s employee qualifies as a third person under Restatement § 411.
The Restatement (Second) of Torts § 411 sets forth the tort of an employer’s negligent hiring of a contractor as follows:
“An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.”
Restatement § 411 was adopted by this court in McDonnell v. The Music Stand, Inc., 20 Kan. App. 2d 287, 293, 886 P.2d 895 (1994), rev. denied 256 Kan. 995 (1995).
The question of whether an independent contractors employees are “third persons” under Restatement § 411 has not been decided in Kansas. Unfortunately, the drafters of the Restatement have not clarified the issue of whether an independent contractor’s employees can qualify as third persons under § 411. The Comments to Restatement § 411 provide several illustrations of where liability may He for the employer of an independent contractor. Notably, none of the illustrations include a scenario in which the third person is an independent contractor’s employee.
Interestingly, the Introductory Note to Chapter 15 of Tentative Draft No. 7 (1962) of the Restatement (Second) of Torts, which dealt with the liability of employers for the conduct of independent contractors, stated that references to “third persons” and “others” were not meant to include employees of independent contractors. Nevertheless, this Note was not included in the final draft of the Restatement (Second) of Torts. Dean Prosser explains that the language of the tentative draft was not included because the lack of uniformity among the states’ workers compensation acts made the language undesirable, if not impossible, to state anything about what the liability is to employees of an independent contractor. See Rowley v. City of Baltimore, 305 Md. 456, 471-74 & n.9, 505 A.2d 494 (1986). Therefore, it appears that each state individually determines whether an independent contractor’s employees qualify as third persons or others under the Restatement.
This Court’s Analysis in Dye
In determining that the appellants were not third persons under Restatement § 411, the trial court relied on this court’s decision in Dye. As discussed previously, however, this court has never definitively concluded that an independent contractor’s employees were not third persons under Restatement § 411.
Rather, in determining that the appellants had stated a valid claim for relief based on its negligent hiring theory under Restatement § 411, this court stated:
“The determination of the decedents’ employment status and the exact nature of the relationship between Wesley and Ballard may well determine the outcome of these lawsuits. Depending on the decedents’ employment status, there are at least three possible scenarios:
“First, if decedents were employees of Ballard as an independent contractor of Wesley, then they may be precluded from recovery. Restatement § 411 itself does not clarify if ‘third persons’ includes employees of the independent contractor, but it may be noted that none of the illustrations in the comments to Restatement § 411 include a scenario in which the third person is such an employee. See Restatement (Second) of Torts § 411.
“There is Kansas case law holding that an independent contractor’s employees may not be considered third parties or persons in some negligence contexts. See Dillard, 255 Kan. at 710, 726-27 (landowner who employed independent contractor not directly hable to contractor’s employee for injury sustained as a result of a breach of a nondelegable duty imposed upon the landowner by statute or ordinance, nor vicariously liable even if work being performed is of an inherently dangerous nature). Nevertheless, whether an independent contractor’s employee qualifies as a third person for the purposes of Restatement § 411 seems to be a question of first impression in Kansas.
“Other courts have generally held, usually for policy reasons, that an independent contractor’s employee is not a third person for the puiposes of Restatement § 411. See Lipka v. United States, 369 F.2d 288, 292-93 (2d Cir. 1966); Castro v. Serrata, 145 F. Supp. 2d 835, 836-37 (S.D. Tex. 2001), aff'd 281 F.3d 1279 (5th Cir. 2001); Camargo v. Tjaarda Dairy, 25 Cal. 4th 1235, 1244-45, 108 Cal. Rptr. 2d 617, 25 P.3d 1096 (2001); Urena v. Capano Homes, Inc., 901 A.2d 145, 154 (Del. Super. 2006); Mentzer v. Ognibene, 408 Pa. Super. 578, 586-88, 597 A.2d 604 (1991); Chapman v. Black, 49 Wash. App. 94, 104-05, 741 P.2d 998 (1987); but see Sievers v. McClure, 746 P.2d 885, 891 (Alaska 1987); Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584, 587-88 (Ind. 1995).
“Plaintiffs cite a New Mexico case imposing liability under Restatement § 411 on a hospital in a case with some factual similarities, Talbott v. Roswell Hosp. Corp., 138 N.M. 189, 118 P.3d 194 (N.M. App. 2005). Nevertheless, Talbott is not applicable here for two reasons. First, it is not clear who employed the decedent in Talbott — the opinion states only that the decedent was ‘participating’ in a training exercise conducted by the air ambulance service. 138 N.M. at 196. Second, the issues in Talbott concern only the nature of the relationship between the hospital and the independent contractor, not the relationship between the decedent and the others, which is the key issue here. 138 N.M. at 197.
“In Dillard, our Supreme Court laid out several policy reasons for its decision to limit the liability of landowners to the employees of independent contractors. 255 Kan. at 725-27. These reasons are similar to those reasons set forth by several of the courts which have addressed the same question in the context of Restatement § 411. Although our Supreme Court limited its holding in Dillard to the facts and theories presented in that case, the policy reasons given in that case seem applicable to Restatement § 411.
“Second, if the decedents were employees of Wesley rather than Ballard, then they may be precluded from recovery under the Kansas Workers Compensation statutes. See Robinett v. The Haskell Co., 270 Kan. 95, 97, 12 P.3d 411 (2000) (‘[U]nder K.S.A. 44-501(b), an employer is not liable in tort for any injury in which compensation is recoverable under the Kansas Workers Compensation Act.’).
“Third, if the decedents were passengers not employed by Wesley or Ballard, then they may be able to recover as third persons under Restatement § 411. Because at least one of the previously discussed possible results may ultimately entitle plaintiffs to relief, plaintiffs’ petitions should not have been dismissed for failure to state a claim.” Dye, 38 Kan. App. 2d at 664-66.
As evidenced by its analysis, this court’s statement in Dye that the decedents may be precluded from recovery if they were employees of Ballard relies heavily on Dillard and the policy reasons set forth in Dillard. Moreover, throughout its appellate brief, Wesley cites Dillard to support its position that the trial court property granted summary judgment and maintains that the policy reasons in Dillard apply with equal force in this case.
Supreme Court’s Analysis in Dillard
Dillard was a premises liability case in which our Supreme Court determined that on the facts and theories of liability advanced by the plaintiffs in that case, the landowner’s duty of reasonable care did not extend to an independent contractor’s employee covered by workers compensation insurance. Dillard v. Strecker, 255 Kan. 704, 726-72, 877 P.2d 371 (1974).
In rejecting the plaintiffs’ theories of liability of breach of a nondelegable duty imposed upon the landowner by statute or ordinance and the inherently dangerous activity exception to the non-liability of a landowner, our Supreme Court in Dillard set forth the following policy reasons:
“(1) The landowner should not have greater liability to an employee of an independent contractor than the liability of the contractor to that employee.
“(2) The landowner should not have greater liability to the employees of an independent contractor than the landowner has to the landowner’s own employees.
“(3) Liability on the part of the landowner would encourage the landowner to use the landowner’s less experienced employees rather than an experienced contractor.
“(4) Employees of an independent contractor, and their dependents, are protected under the provisions of the workers compensation statutes.
“(5) Workers in inherently dangerous jobs are fully aware of the dangers involved and receive compensation accordingly.
“(6) Landowners may not have expert knowledge of inherently dangerous work, the risks involved, and methods of avoiding such risks that an independent contractor engaged in such activity possesses.
“(7) Liability on the part of the landowner would create a class of employees, those of an independent contractor, with greater rights than the employees of the landowner for doing the same work.
“(8) To allow an employee of an independent contractor covered by workers compensation to invoke the inherently dangerous activity doctrine would (a) reward landowners who, despite their own lack of expertise, choose to perform work negligently resulting in injury to workers, (b) increase the risks to innocent third parties, and (c) punish landowners who seek expert assistance in an effort to avoid liability for injury.
“(9) A landowner who engages the services of an independent contractor pays directly or indirectly for the compensation coverage when the landowner contracts with the independent contractor.” 255 Kan. at 725-26.
Based on those policies, our Supreme Court held as follows:
“(1) A landowner is not hable to an employee of an independent contractor covered by workers compensation for injury sustained as a result of the breach of a nondelegable duty imposed upon the- landowner by statute or ordinance.
“(2) The inherendy dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation.
“(3) Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner hable under the theories discussed in the opinion.” 255 Kan. at 726-27.
Kansas Decisions after Dillard
Five months after Dillard was filed, our Supreme Court hinted in McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (1994), that it might be inclined to broadly interpret and expand its holding in Dillard. Our Supreme Court first determined that the tree trimming activity that led to the plaintiff s injury under the facts of that case did not, as a matter of law, constitute an inherently dangerous activity. 256 Kan. at 297. Our Supreme Court further stated:
“In our recent case of Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), we held that the inherently dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation. [Landowner] urges us to expand our holding in Dillard to exclude the exception in all instances involving independent contractors and their employees. While the arguments in favor of doing so may have considerable merit, we do not deem it necessary or appropriate to consider expanding the holding of Dillard in this case. That issue is better left for another day when it may be directly determinative of the case then before the court.” McCubbin, 256 Kan. at 297.
The most recent case applying Dillard is this court’s decision in Herrell v. National Beef Packing Co., 41 Kan. App. 2d 302, 202 P.3d 691, rev. granted October 1, 2009. In Herrell, the plaintiff was a subcontractor’s employee who sued the landowner, alleging the landowner’s negligence in creating, maintaining, and failing to warn of the dangerous condition, in failing to inspect the premises, in violating an Occupational Safety and Health Administration (OSHA) regulation, and in fading to keep the business place safe. The majority in Herrell held that based on the policy reasons advanced by our Supreme Court in Dillard, the employee was precluded from bringing her negligence claims against the landowner. See 41 Kan. App. 2d 302, Syl. ¶ 4.
In dissenting from the majority opinion in Herrell, Judge Mc-Anany discussed the various policy reasons in Dillard. Herrell, 41 Kan. App. 2d at 325-36. Judge McAnany concluded that many of the policy reasons did not apply to the plaintiff employee and that aside from the OSHA claim, the plaintiff s negligence claims should not be barred. Judge McAnany stated that he “would read Dillard narrowly rather than broadly” and “would not extrapolate the rul ing in Dillard to facts and claims not at issue” in Herrell. 41 Kan. App. 2d at 336 (McAnany, J., dissenting).
Dillard’s Application to the Present Case
Although both Dillard and Herrell were premises liability cases involving the liability of a defendant landowner, most of the policy reasons relied on in those cases would apply equally to a case involving a defendant employer’s liability. Importantly, our Supreme Court has recently granted a petition for review in Herrell. Thus, the extent of the Dillard holding and the manner in which Dillard has been applied by this court will be reviewed by our Supreme Court.
There is significant authority that has called into question the extent of the application of the 15-year-old Dillard decision and the policy reasons advanced in that case. Specifically, in analyzing the McCubbin decision, Professors WilHam E. Westerbeke and Stephen R. McAllister noted that Dillard did not explicitly explain what role workers compensation played in characterizing the relationship between the landowner and the contractor’s employee for the purpose of defining the landowner’s duty:
“If the real reason for the holding in Dillard was to thwart attempted circumvention of workers’ compensation in order to get a common law recovery, the holding should beso phrased. Otherwise, as may have been the case in McCubbin, unprotected workers will be automatically excluded in cases without any opportunity to determine whether a claim against the employer of the independent contractor might be appropriate.” Westerbeke & McAllister, Survey of Kansas Tort Law: Part 1, 49 Kan. L. Rev. 1037,1097 (2001).
Moreover, the Kansas federal district court has specifically limited Dillard to its facts. See Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F. Supp. 2d 1166, 1174-75 (D. Kan. 2003); Martin v. MAPCO Ammonia Pipeline, Inc., 1994 WL 409591, at * 5-8 (D. Kan. 1994) (unpublished opinion). The court in Cuiksa held that “Dillard does not shield a defendant from his own negligence and cases cited in the Dillard decision confirm the court’s decision to limit the holding to claims regarding the negligence of the subcontractor.” 252 F. Supp. 2d at 1175. Further, as discussed previously, at least one judge from this court does not believe that Dillard, should be extended to bar a contractor s employee from suing an employer based on claims of the employer’s own negligence.
Interestingly, the appellants maintain that the issue of whether an independent contractor’s employee qualifies as a third person for the purposes of Restatement § 411 is extremely fact-intensive and that further discovery is needed at the trial court level before this issue can be decided. The appellants argue that “[g]iven Wesley’s special intense knowledge and actual control, contractual or otherwise, over the air ambulance operation, Wesley ought to be found hable for harm caused Plaintiffs’ decedents as a result of the negligent selection of a contractor under Restatement § 411.”
Nevertheless, the issue of whether an independent contractor’s employee qualifies as a third person for the purpose of Restatement § 411 is an issue of law. Kansas law either recognizes that an independent contractor’s employee can qualify as a third person under Restatement § 411 or it does not. See Urena v. Capano Homes, Inc., 930 A.2d 877,880 (Del. 2007) (adopting majority view and holding, as matter of law, that employees of independent contractors have no claim against general contractors for negligent hiring of independent contractor); Young v. Bob Howard Automotive, Inc., 52 P.3d 1045, 1052 (Okla. App. 2002) (holding as matter of law that theory of negligent hiring of independent contractor would not be applied to impose liability for injuries to independent contractor’s own employees).
Until our Supreme Court hears and decides Herrell, the issue of whether an independent contractor’s employee qualifies as a third person under Restatement § 411 is guided by the policy reasons advanced by our Supreme Court in Dillard. As discussed by this court in Dye v. WMC, Inc., 38 Kan. App. 2d 655, 172 P.3d 49 (2007), many of the policy reasons advanced in Dillard are similar to those set forth by several courts that have determined that an independent contractor’s employees are not “third persons” under Restatement § 411. See Dye, 38 Kan. App. 2d at 666. Based on the policy reasons in Dillard, we determine that the trial court properly decided that the appellants could not pursue a negligent hiring claim under Restatement § 411.
Discovery on Employment Issue
At the end of their appellate brief, the appellants attempt to distinguish Dillard by suggesting that they might be able to produce evidence indicating more of an employer-employee relationship between Wesley and the decedents. Specifically, the appellants argue as follows:
“It is worth noting that at least one recent case under Kansas law recognizes that despite an employee’s ‘independent contractor’ status, a party may actually be able to prove that an employer/employee relationship exists upon a finding that the employer exercises ‘sufficient control and supervision over the work of the alleged employee.’ Hartford Underwriters v. State of Kansas, 272 Kan. 265, 275[, 32 P.3d 1146] (2001) (The Kansas Supreme Court holding that individuals defined as independent contractors pursuant to contractual language were actually employees.). As contractual language between Ballard/EagleMed and Wesley states that Plaintiffs’ decedents were ‘independent contractors’ of Wesley, facts relating to Wesley’s actual ‘control’, if proven, would undoubtedly support a finding that Wesley owed a duty to Plaintiffs’ decedents as a matter of law.”
It seems that the appellants are arguing that with further discovery, they could presumably show that Ballard and the decedents were effectively the employees of Wesley. Nevertheless, when Wesley filed its motion for summary judgment, discovery on the issue of employment had ended. The appellants did not ask for additional time to conduct discovery on the issue of employment.
Further, in responding to Wesleys motion for summary judgment, the appellants did not create a genuine issue of material fact as to the employment issue. In its motion for summary judgment, Wesley set forth extensive facts relating to Ballard’s employment of the decedents and facts concerning Ballard’s independent contractor status. Moreover, the argument in Wesley’s motion for summary judgment centered on the employment issue, namely, that Ballard was an independent contractor and that the decedents were employees of Ballard. Once Wesley brought forth this properly supported evidence, it was incumbent upon the appellants to bring forward evidence showing that there was a genuine issue as to Ballard’s and the decedents’ employment status. See K.S.A. 60-256(e). Nevertheless, the appellants failed to produce evidence that would create a genuine issue of material fact that Ballard and the decedents were actually employees of Wesley. Although the appellants maintain that Wesley maintained actual control over the air ambulance operation, the evidence that the appellants produced in response to Wesley’s summary judgment motion failed to make this showing.
Further, even if the appellants were able to create a genuine issue of fact as to whether Ballard and the decedents were employees of Wesley, their negligent hiring claim under Restatement § 411 would still likely fail. As pointed out by this court in Dye, if the decedents were employees of Wesley rather than Ballard, then they may be precluded from recovery under the Kansas workers compensation statutes. See Robinett v. The Haskell Co., 270 Kan. 95, 97, 12 P.3d 411 (2000) (“[U]nder K.S.A. 44501(b), an employer is not Hable in tort for any injury in which compensation is recoverable under the Kansas Workers Compensation Act.”); Dye, 38 Kan. App. 2d at 666.
b. Breach of FAA Regulations
In their appellate brief, the appellants briefly mention a possible theory that Wesley breached FAA rules. This theory is a negligence per se theory. See Pullen v. West, 278 Kan. 183, 194, 92 P.3d 584 (2004) (Elements of negligence per se are: (1) a violation of a statute, ordinance, or regulation, and (2) the violation must be the cause of the resulting damages.).
Nevertheless, the appellants have made no allegations in their petitions that Wesley breached any particular FAA regulations. Moreover, the appellants have not developed any argument in their appellate brief on this theory. A point incidentally raised but not argued is deemed abandoned. Brubaker v. Branine, 237 Kan. 488, 490, 701 P.2d 929 (1985). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008). Because no argument or citation to authority is stated by the appellants on their theory that Wesley breached FAA regulations, we determine that Wesley has abandoned that theory.
In any event, the Dillard court held that a nondelegable duty, such as Wesley’s breach of FAA rules, extended to protection of innocent third parties, not to employees of independent contractors. 255 Kan. at 726.
c. Failure to Warn
In responding to Wesley’s motion for summary judgment, the appellants also stated that they were advancing a theory of liability based on Wesley’s failure to warn. The appellants have not briefed this theory and, therefore, have abandoned any argument relating to this specific theory on appeal. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (An issue not briefed by the appellant is deemed waived or abandoned.).
d. Appellants’ Negligent Supervision and Negligent Undertaking Theories under Restatement §§ 324A and 414
Appellants have also argued a negligent supervision theory and a negligent undertaking theory under Restatement (Second) of Torts §§ 324A and 414. As with the appellants’ negligent hiring theory under Restatement § 411, Kansas law has never determined whether those causes of action allow recovery by an independent contractor’s employees.
Negligent Supervision or Control
Kansas law recognizes the theory of negligent supervision, which is a separate and distinct theory from negligent hiring and negligent retention. The theory of negligent supervision encompasses the failure to supervise and also the failure to control persons with whom the defendant has a special relationship, including the defendant’s employees or individuals with dangerous propensities. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 331, 961 P.2d 1213 (1998).
A review of Kansas case law reveals no cases that have determined whether the relationship between an employer and an independent contractor qualifies as a special relationship in the context of a negligent supervision theory. At least one court has held that a special relationship exists between an independent contractor and contractee where the contractee retains the right to control the contractor’s work. See CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 492 (Tex. App. 2007); see also Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356-58 (Tex. 1998) (if employer retains some control over manner in which work is done, then duty to see that independent contractor performs its work in safe manner may arise).
Similarly, Restatement (Second) of Torts § 414 (1964) imposes liability on an employer when the employer retains control over an independent contractor’s work:
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”
Comment c to Restatement § 414 outlines the application of this section as follows:
“In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.”
Although it seems that Kansas courts have never expressly adopted Restatement § 414, appellants’ negligent supervision claims and their arguments concerning Wesley’s control over Ballard’s activities appear to be based on the previously mentioned Restatement section. It bears mentioning that this court in Herrell discussed the application of Restatement § 414 but concluded that there was no support for imposing liability under that section because the defendant landowner had retained no control or direction over the work resulting in the injury. 41 Kan. App. 2d at 323-24.
The Restatement does not specify whether an independent contractor’s employees are included within the term “others” under § 414 of the Restatement. Nevertheless, the North Dakota Supreme Court, citing cases from several other jurisdictions, has indicated that it is well settled that an independent contractor’s employees are included within Restatement § 414:
“It appears well settled that employees of an independent contractor fall within the protection of Section 414 and that an employer of an independent contractor who retains control of part of the work owes a duly of care to the independent contractor’s employees to exercise the retained control with reasonable care. Donovan v. General Motors, 762 F.2d 701 (8th Cir.1985); Jamison v. A.M. Byers Co., 330 F.2d 657 (3rd Cir.), cert. denied, 379 U.S. 839, 85 S. Ct. 74, 13 L. Ed. 2d 45 (1964); Ackerman v. Gulf Oil Corp., 555 F. Supp. 93 (D.N.D.1982); Haberer v. Village of Sauget, 158 Ill.App.3d 313, 110 Ill. Dec. 628, 511 N.E.2d 805 (1987); Valdez v. Cillessen & Son, Inc., 105 N.M. 575, 734 P.2d 1258 (1987); Corsetti v. Stone Co., 396 Mass. 1, 483 N.E.2d 793 (1985); Moloso v. State, 644 P.2d 205 (Alaska 1982); Gulf States Utilities Co. v. Dryden, 735 S.W.2d 263 (Tex.App.1987); Hammond v. Bechtel Inc., 606 P.2d 1269 (Alaska 1980); Pasko v. Commonwealth Edison Co., 14 Ill.App.3d 481, 302 N.E.2d 642 (1973); Weber v. Northern Illinois Gas Co., 10 Ill.App.3d 625, 295 N.E.2d 41 (1973). We have found no contrary cases, and we agree with the foregoing authorities that employees of an independent contractor faH within the protection of Section 414.” Madder v. McKenzie County, 467 N.W.2d 709, 711 (N.D. 1991).
Thus, if Kansas courts were to follow the rule in those jurisdictions, a principal employer may be held liable to the employees of an independent contractor for its own negligence when it retains control of certain aspects of the work. See Restatement (Second) of Torts § 414; see ¿so 41 Am. Jur. 2d, Independent Contractors § 28, p. 498 (2005) (“Although one who employs an independent contractor may escape liability for such contractor’s negligence, the employer is nevertheless answerable for its own negligence.”).
Trial Court’s Decision
Here, the trial court relied on Dillard in determining that the decedents’ employment status as employees of Ballard was dispositive of all of the appellants’ claims. In its appellate brief, Wesley ¿so cites to Dillard to support its argument that it owed no duty to supervise or monitor Ballard in providing a safe work place for Ballard’s employees.
Although Dillard did not involve the issue of whether an inde: pendent contractor’s employees may pursue a negligent supervision or negligent undertaking claim against a principal employer, many of the policy reasons advanced by our Supreme Court in Dillard are readily applicable to the appellants’ claims in this case. Our Supreme Court’s future decision in Herrell will likely clarify whether the policy reasons in Dillard operate to bar an independent contractor’s employee from pursuing a claim against the principal employer when the employee is covered by workers compensation.
Undisputed Facts before the Trial Court
Nevertheless, even if our Supreme Court was to determine that an independent contractor’s employee may pursue a negligent supervision or negligent control claim against the principal employer, the undisputed facts in this case establish that Wesley did not retain control over Ballard’s operations.
We point out that “[ojrdinarily, a summary disposition of a pending case before the district court should not be granted until discovery is complete. [Citation omitted.]” Montoy v. State, 275 Kan. 145, 149, 62 P.3d 228 (2003). Nevertheless, “if the facts pertinent to the material issues are not controverted, summary judgment may be appropriate even when discovery is unfinished. [Citation omitted.]” Med James, Inc. v. Barnes, 31 Kan. App. 2d 89, 96, 61 P.3d 86 (2003), rev. denied 275 Kan. 965. An issue of fact is genuine when it has legal controlling force as to the controlling issue. A disputed question of fact that is immaterial to the issue does not preclude summary judgment. If a disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Muhl v. Bohi, 37 Kan. App. 2d 225, 229, 152 P.3d 93 (2007).
Here, as shown by the exhibits attached to Wesley’s motion for summary judgment and the appellants’ response to Wesley’s motion for summary judgment, a substantial amount of discovery had been completed when Wesley moved for summary judgment. Specifically, depositions had been conducted of Wesley’s chief medical officer, one of Wesley’s employees who had previously worked in Wesley’s dispatch center, and Ballard’s director of operations. Moreover, the appellants had collected evidence that included the Ballard pilot’s flight-and duty-time records; Wesley’s critical care transport protocol; the National Transportation Safety Board’s factual report; and affidavits from Ballard’s former chief pilot, a former Ballard employee whose responsibilities included attending regular meetings with Wesley personnel, and a former Ballard paramedic.
When Wesley moved for summary judgment in this case, the appellants never requested additional time under K.S.A. 60-256(b) to oppose the summary judgment motion. Further, in their appellate brief, the appellants fail to indicate how additional discovery would lead to uncovering facts that would controvert the material facts in this case.
Although Wesley moved for summary judgment before the second discovery deadline in this case had expired, the facts pertinent to the material issues in this case were uncontroverted. As discussed below, the uncontroverted facts in this case established as a matter of law that the appellants could not prevail on their negligent supervision or negligent undertaking claims.
Wesley’s Contract with Ballard
The contract between Wesley and Ballard made clear that Ballard had the responsibility to maintain direction and control over all aspects of the work to be performed; to furnish the aircraft equipment to be used in performing the work; and to retain its safety obligations in performing the contracted work.
• Ballard maintained direction and control over all aspects of the work to he performed.
The contract between Ballard and Wesley expressly stated that Ballard “shall have operational control of the aircraft used in the service of this Agreement, and [Ballard] shall control all aviation and related flight operations of the aircraft at all times.” Moreover, within the contract, the parties further agreed that Ballard and its assigned pilots would be in command of all aircraft at all times; that no flight would commence until and unless the Ballard pilot and the director of operations was satisfied, in their sole discretion, that the pilot was fit, the aircraft mechanically sound and properly loaded, and the weather, landing zone, airstrip, airport, and any other conditions necessary for a safe flight were acceptable; and that Ballard and its pilots, in their sole discretion, could unilaterally make any changes before or while in flight to accommodate changes in weather, air traffic, FAA directives, mechanical problems, or other matters affecting flight safety. In addition, the parties agreed that Ballard was responsible for operating all flights under the flight-time limitations and pilot-rest requirements of FAA Regulation Part 135 and the Hospital Emergency Evacuation Services Rules of the FAA regulations.
• Ballard furnished the aircraft equipment.
The contract between Ballard and Wesley specified that Ballard was a provider of air medical services and was an FAA-certified air carrier which operated and maintained fixed wing and rotor wing aircraft suitable for the transportation of patients requiring air medical transportation.
Under the contract, Ballard had the responsibility to furnish the aircraft equipment to transport Wesley’s patients and to provide the air medical transportation services as follows:
“A. Air Medical Transportation Services
“1. The Hospital shall utilize Contractor, under this Agreement, as its exclusive provider of fixed wing and rotor wing air medical transportation services, except where specifically requested by a patient, or where it is not reasonable to use Contractor, because of local, city or state ordinances or regulations, unavailability of the Contractor’s aircraft or as otherwise provided in this Agreement.
“2. Air medical transportation services shall be provided by Contractor for patients for whom requests have been made for transportation to Contractor by designated employees or representatives of the Hospital, and referring hospital personnel who request air transport. The Contractor shall not refuse to accept a request to provide air medical transportation because of financial reasons or insurance status of the patient with reasonable limits.”
• Ballard retained control over its safety obligations.
Under the contract, Ballard retained control over its safety obligations by agreeing “at its own expense, to provide all employees, including pilots and mechanics, high-quality training and orientation necessary to assure the highest margins of safety.” Moreover, Ballard agreed that all aircraft used for Wesley conformed to all FAA rules, regulations, and requirements, and any applicable state regulations. In addition, as highlighted previously, Ballard assumed the responsibility to make changes to accommodate matters affecting flight safety; to make determinations concerning flight safety; and to ensure that flight-time limitations and pilot-rest requirements were in compliance with federal regulations.
Based on the plain language of the contract between Wesley and Ballard, the appellants cannot prove a vital element of their negligent supervision or control claims against Wesley: that Wesley retained control over Ballard’s flight operations. Under the contract, it is clear that Ballard maintained control of its flight operations, its aircraft equipment, and its safety obligations. There is nothing to indicate that Wesley assumed a duty to furnish safe transportation of Ballard’s employees, to ensure the hiring of competent pilots, or to supervise the pilots of the air ambulance. Further, Wesley neither agreed to maintain control over Ballard’s flight operations nor to assume any of Ballard’s obligations as an air ambulance provider. Thus, under the plain language of the contract, the appellants are unable to prove their negligent supervision claims.
Wesley’s Conduct with Ballard
Moreover, there is no evidence that Wesley retained or exercised control over the details of the work Ballard (through its agents or employees) performed. Wesley did not control Ballard’s use of its airplanes. Wesley did not direct Ballard’s method of picking up and delivering patients to Wesley’s facility. Wesley did not monitor Ballard’s flight operations. Moreover, Wesley offered no specifications to Ballard on how to perform its work.
Instead, the undisputed evidence in this case was that Ballard’s flight coordinators were responsible for determining the aircraft and the flight crew that would be used for a particular flight. Ballard employees determined the number of pilots and medical crew at each base and assigned the shifts for the pilots and medical crew. Further, Ballard was responsible for hiring, supervising, and providing training to pilots and crew members.
In addition, as Wesley points out, there is no evidence that it was in control or directing the air ambulance when it crashed and killed the decedents. Wesley did not dispatch the air ambulance flight on which the decedents were flight crew members. There is no evidence that Wesley directed the return flight path of the air ambulance or dictated the base to which the air ambulance would return. As a result, Wesley was not in control of the air ambulance flight when the decedents were tragically killed, and the appellants cannot pursue a negligent supervision or control claim against Wesley.
Negligent Undertaking under Restatement § 324A
Although not asserted at the motion to dismiss stage, the appellants argued in their response to Wesley s motion for summary judgment that Wesley breached a duty of reasonable care under Restatement (Second) of Torts § 324A (1964).
Restatement § 324A outlines a duty of reasonable care for one who undertakes to render services either gratuitously or for consideration to another as follows:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary 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 the 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 § 324A was adopted by our Supreme Court in Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 4, 651 P.2d 585 (1982); see Cansler v. State, 234 Kan. 554, 566-67, 675 P.2d 57 (1984). Kansas courts have established the following principles of liability in regard to Restatement § 324A:
“ ‘[0]ne who does not assume an obligation to render services does not owe a duty to third persons/ Anderson v. Scheffler, 248 Kan. 736, Syl. ¶ 3, 811 P.2d 1125 (1991).
“ ‘The threshold requirement for the application of the Restatement (Second) of Torts § 324A (1964) is a showing that the defendant undertook, gratuitously or for consideration, to render services to another. In order to meet this requirement, the evidence must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another.
“ ‘A duty is owed to third persons by one who undertakes, by an affirmative act, to render aid or services to another and then is negligent in the performance of that undertaking. McGee [v. Chalfant], 248 Kan. 434, Syl. ¶¶ 5, 6[, 806 P.2d 980 (1991)].
“ ‘For a defendant to meet the threshold requirement of Restatement (Second) of Torts § 324A (1964), the defendant must not only take affirmative action to render services to another, but the person to whom the services are directed must accept such services in lieu of, or in addition to, such person’s obligation to perform the services.’ Gooch v. Bethel A.M.E. Church, 246 Kan. 663, Syl. ¶ 3, 792 P.2d 993 (1990).” Calwell v. Hassan, 21 Kan. App. 2d 729, 742, 908 P.2d 184 (1995), rev’d on other grounds 260 Kan. 769, 925 P.2d 422 (1996).
We note that the theories of liability under Restatement §§ 414 and 324A are analytically similar. See Moloso v. State, 644 P.2d 205 (Alaska 1982) (noting analytical similarity between theories of liability under Restatement §§ 414 and 324A). As with the tort of negligent supervision under Restatement § 414, Kansas law has not yet determined whether an independent contractor s employee is included as a third person and can bring a cause of action against an employer under Restatement § 324A.
Nevertheless, based on the previous reasoning, the uncontroverted evidence in this case established that Wesley did not, through affirmative action, assume an obligation or intend to render services for the benefit of Ballard’s employees. Despite the significant amount of discovery obtained in this case, the appellants were unable to turn up anything indicating that Wesley had assumed any obligation over Ballard’s air ambulance services. Neither through its contract with Ballard nor its interactions and conduct with Ballard had Wesley agreed to render services for the benefit of Ballard’s employees. Based on the uncontroverted evidence in this case, summary judgment was properly granted to Wesley on the appellants’ negligent undertaking claims under Restatement § 324A.
In conclusion, we determine that the trial court properly granted summary judgment to Wesley on the appellants’ negligence claims.
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Green, J.:
This is an appeal by the employer from an award entered in favor of the claimant-employee. The Kansas Workers Compensation Board (Board) determined that the employee, a police officer, who suffered a twinge in his right knee during his employment while pursuing a suspect and who did not know he had suffered an injury which could lead to a compensable disability until nearly 2Vz months later when he visited his family physician for some medical issues unrelated to his right knee and who failed to report the right knee twinge to his employer within the requisite 10-day statutory notice period was not precluded from recovering benefits, where the employee furnished notice to the employer within 75 days after the date of the injury and there was no reason why the employee should have known or suspected that he had suffered an injury that could lead to a compensable disability. We agree. Accordingly, we affirm.
John Kotnour is an 18-year veteran of the City of Overland Park (City) police force. On September 21, 2007, he jumped off a 4-5 foot retaining wall while chasing a suspected car thief. Kotnour was on duty at the time.
A few days after jumping off the wall, Kotnour noticed a “twinge” in his right knee. Kotnour did not really think of the jump as an accident, nor did he think of the twinge as an injury. He stated he was not debilitated by the pain and thought it would go away eventually.
Kotnour testified that the pain continued, but he was able to stay on the job. His pain level varied depending on what he was doing. On December 3, 2007, Kotnour went to see his doctor — not because of the knee pain, but because of unrelated plantar fasciitis and seasonal allergies. During his appointment, Kotnour mentioned his knee pain to his doctor and how he thought he had injured his knee. His doctor told him to report the injury to his employer.
The next day, Kotnour told his supervisor about the incident and his knee pain — some 74 days after jumping off the retaining wall. About a month after Kotnour s report of his knee injury, the City told Kotnour that he had not given timely notice of the injury and would not receive covered medical treatment from the City. Kotnour testified that he did not know he had to report his injury in a timely manner because the City did not notify him that he had to do so or have any posters in the office instructing him to report an injury. Nevertheless, Kotnour admitted that he had read the City’s employee handbook, which included a notice that injuries should be reported immediately, and that he had previously been injured and reported that injury immediately.
In February 2008, Kotnour was examined by a second doctor. That doctor diagnosed Kotnour with an 8 percent impairment in his right lower extremity because of the September 21,2007, jump off the retaining wall. The doctor recommended that Kotnour do spinning exercises on a stationary bike to recover from his injury. Kotnour was not prescribed any medication for his knee, but he did take “[a]spirin and things” for the pain. He incurred $465 in unauthorized medical expenses.
Kotnour filed for workers compensation benefits for his knee injury. An administrative law judge (ALJ) denied him compensation, finding that Kotnour did not have just cause for the delay in notifying the City of his injury. Kotnour requested review of the ALJ’s decision. The Board reversed the ALJ’s decision. The Board determined that Kotnour had just cause for his delay because he thought the injury would eventually heal itself. The Board granted Kotnour $7,140 for 14 weeks of permanent partial disability benefits and payment for his medical expenses.
Did the Board Err in Finding Kotnour Gave Timely Notice of His Injury?
The City argues that Kotnour’s claim should be denied because he did not give timely notice of his injury. The statute relied on by the City is K.S.A. 44-520. It provides that an employee has 10 days to report his or her accident to the employer. That notice deadline, however, can be extended to 75 days after the accident if the claimant has just cause for the delay. K.S.A. 44-520.
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. 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 the City’s argument relates to the Board’s interpretation and application of K.S.A. 44-520, 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 a workers compensation statute, although not binding on the courts, was “ ‘entitled to judicial deference if there is a rational basis for the Board’s interpretation.’ ” Barbury v. Duckwall Alco Stores, 42 Kan. App. 2d 693, 695, 215 P.3d 643 (2009) (quoting Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 [2007]). 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 it 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 fight 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 made “who personally observed the demeanor of the witness.” 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 363.
Further explaining how the “in light of the record as a whole” standard is to be applied, Judge Steve 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 the City’s argument.
Interpretation of K. S.A. 44-520
"Whether a claimant has provided timely notice of an accident to an employer under K.S.A. 44-520 is a question of fact” to be determined by the Board. Myers v. Lincoln Center Ob/Gyn, 39 Kan. App. 2d 372, 375, 180 P.3d 584, rev. denied 286 Kan. 1179 (2008). The Board’s determination of a fact issue is binding on us if supported by substantial evidence in the record. 39 Kan. App. 2d at 375. Here, the City did not try to refute Kotnour’s testimony. Instead, the City maintains that Kotnour has not shown just cause for his failure to report his accident within 10 days after the date of the accident.
K.S.A. 44-520 requires, as a condition precedent to the maintenance of a claim for compensation, that the employee give notice of the accident to tire employer:
“Except as otherwise provided in this section, proceedings for compensation under the workers compensation act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, is given to the employer within 10 days after the date of the accident, except that actual knowledge of the accident by the employer or the employer’s duly authorized agent shall render the giving of such notice unnecessary. The ten-day notice provided in this section shall not bar any proceeding for compensation under the workers compensation act if the claimant shows that a failure to notify under this section was due to just cause, except that in no event shall such a proceeding for compensation be maintained unless the notice required by this section is given to the employer within 75 days after the date of the accident unless (a) actual knowledge of the accident by the employer or the employer’s duly authorized agent renders the giving of such notice unnecessary as provided in this section, (b) the employer was unavailable to receive such notice as provided in this section, or (c) the employee was physically unable to give such notice.”
The application of the requirement the employee give timely notice of an accident has been flexible rather than rigid.
This flexibility has been shown when an employee could not reasonably have been expected to realize that an injury was one likely to lead to a compensable disability. See Swayne v. Cates Service Co., No. 93,408, unpublished opinion filed September 16, 2005, slip op. at 14-16 (failure to report accident within the requisite 10-day statutory notice period did not preclude employee from recovering benefits when he did not know the extent of the injury to his back until he received the results of an MRI).
Moreover, in determining whether a failure to give notice of an accident defeats the claim for compensation, the remedial aims of the Workers Compensation Act must be considered. K.S.A. 2009 Supp. 44-508(d), which defines an accident as “an undesigned, sudden and unexpected event,” states that “[t]he elements of an accident, as stated herein are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment.” Thus, as a remedial statute, we must construe the Workers Compensation Act in such a way as to assure the effectuation of its stated remedial purposes: “that the employer bear the expense of accidental injury to a worker caused by the employment.” K.S.A. 2009 Supp. 44-508(d).
Thinking that he had suffered only a trivial injury to his right knee, Kotnour testified to the following:
"Q. [Mr. Martin] And when you noticed this twinge in your knee, did you report it as an accident?
“A. [Claimant] I did not.
“Q. Why not?
“A. I didn’t really think of it as an injury.
“Q. What do you think of as an injury?
“A. Well, I wasn’t debilitated. For me it was an issue of, can I continue doing my work. Is it bad enough to keep me at home. Is it going to go away.
“Q. Have you had the same or similar incidents to other parts of your body?
“A. Yeah. I mean, I’ve sprained a wrist. I’ve twisted ankles and things like that, and usually in a couple of weeks drey go away.
"Q. Do you turn those in to workers compensation?
“A. No.”
Without realizing that he had suffered an injury which could lead to a compensable disability, Kotnour continued to work without any loss of time from his employment.
“Q. And I think you previously told us but so we make sure we understand, what did you understand was an injury?
“A. Something that prevented me from doing my job.
“Q. And this wasn’t preventing you from doing your job?
“A. I hadn’t missed any work, no.
“Q. And you still haven’t missed any work?
“A. No.”
As previously stated, the record shows that Kotnour was unaware that he had suffered an injury which could lead to a compensable disability until his doctor told him to report his right knee complaints to his employer. The record further indicates that Kotnour immediately reported his right knee injury to the City. In determining that Kotnour had just cause to be excused from his failure to report his right knee injury within the requisite 10-day statutory notice period, the Board’s majority stated the following:
“The Board finds claimant’s testimony is credible as claimant immediately notified respondent of his right knee problems when his personal physician advised him that he had probably sustained a work-related injury. Accordingly, the Board finds that claimant has established there was just cause to extend the period for notifying respondent of the September 2007 incident to 75 days.”
The question of when an employee first knows that he or she has suffered an injury which results in, or is likely to cause, a compensable injury is a determination to be made by the Board. As a result, the legal resolution of the question of what constitutes just cause to extend the period for an employee to notify an employer of an accident to within 75 days after the date of the injury is a fact-specific inquiry.
As we have already stated, the City did not attempt to contradict Kotnour’s testimony or theory of what happened. As a result, the Board had reason to believe Kotnour did not know that he had suffered an injury which could lead to a compensable disability until his doctor told him to report his right knee complaints to his employer. Moreover, the Board’s findings are further supported by the fact that Kotnour continued to work and that the injury did not cause him to be off from work. In addition, when Kotnour sought medical care, it was unrelated to the injury to his right knee.
Upon the facts presented, there is substantial evidence, when viewed in light of the record as a whole, to support the Board’s finding that Kotnour had no occasion to assume, until his visit with his family physician on December 3,2007, that his right knee injury could cause a compensable disability, and that under K.S.A. 44-520 just cause existed to extend the period to report the accident to the City to within 75 days after the date of the injury.
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Green, J.:
Randall Pennington appeals from a jury conviction of second-degree intentional murder. Pennington raises five issues on appeal. First, he argues that his statutory speedy trial rights were violated. We disagree. Although the trial court erred when it failed to reschedule Pennington’s trial within the 90-day period under K.S.A. 22-3402(3), Pennington had previously waived his statutory speedy trial rights. In addition, he acquiesced in the continuance which exceeded the 90-day limited under K.S.A. 22-3402(3). Second, Pennington argues that the trial court abused its discretion in excluding the results of the victim’s autopsy report, which showed that he had both marijuana and cocaine in his system when he died. We disagree. There was no showing that the decedent would become violent or the aggressor after having ingested marijuana or cocaine or both.
Third, Pennington argues that the trial court clearly erred when it failed to instruct the jury on the lesser included offense of involuntary manslaughter. Because his actions in striking the decedent were intentional, Pennington was not entitled to such an instruction. Fourth, Pennington argues that the trial court erred in furnishing the jury with a deadlock jury instruction before deliberation. We agree; however, we determine that the instruction was harmless. Finally, Pennington argues that these cumulative errors deprived him of his right to a fair trial. We disagree. Accordingly, we affirm.
In December 2006, Pennington resided in a townhome on North 51st Terrace, Wyandotte County, Kansas. At the time, Monica James, Allan Sovems, Jr. (Monica’s boyfriend), and Daethon (Monica’s 4-year-old son) also resided in the townhome. Lavirgil DeShawn Jones, the victim in this case, lived nearby. Jones was welcome in the townhome and would often bring his daughter to play Play Station video games with Daethon.
James, Sovems, and Jones made a deal in which Jones would give James and Sovems a Vision card in exchange for one-half of the value in cash. A Vision card is a debit card that can be used to pay for groceries in lieu of traditional forms of food stamps. A few days before December 16, 2006, James withdrew and presented Jones with the money promised under the deal. Nevertheless, despite promises on two occasions, Jones never delivered the Vision card to James and Sovems.
After the Vision card deal failed for a second time, James and Sovems were fmstrated and believed that Jones was hustling them. James and Sovems eventually discussed the situation with Pennington; Pennington promised to talk with Jones in an attempt to recover the money. After talking to Jones, Pennington recovered some of the money. Pennington, James, and Sovems decided that after the Vision card incident, Jones was no longer welcome in the townhome.
Around 11 a.m. on December 16, 2006, Jones came to the town-home and apologized about the Vision card incident. At that time, Pennington, James, and Sovems were all in the townhome. James and Sovems were still upset about being cheated in the Vision card deal; they expressed these sentiments to Jones. Sovems told Jones that he was no longer welcome in the home. When Jones refused to leave, Sovems picked up a baseball bat and charged towards Jones as Sovems yelled at Jones to get out of the townhome. In response, Jones threatened to conduct a drive-by shooting on their home. Specifically, James recalled Jones making the following threat: “He said that A.J. better watch himself and that he could have our house shot up, so we better watch that little boy.” Jones then left the home, and none of these threats ever materialized.
Later that day, James, Sovems, Pennington, and Daethon decided to travel to Fort Scott, Kansas, to visit Sovems' mother. When the four left the townhome, Jones yelled at Sovems to apologize for the Vision card deal. Moreover, Jones promised to look after the townhome while the group was out of town.
Around 7 to 8 p.m., the group returned home from Fort Scott. When they walked into the home, they saw that their back window had been pried open.'They further noticed that their Play Station and several games were missing from the home. James also noted that her jeweliy box had been opened. Almost immediately, James, Sovems, and Pennington suspected that Jones had committed the break-in. James called the police to report the break-in. Frustrated, Sovems went outside the home and began yelling and banging the baseball bat on the ground.
In all the commotion, Jones came to the townhome and began to speak with Sovems. When confronted about the break-in, Jones opined that the items had been stolen by a driver of a black tmck, which Jones had seen backing up in the townhome’s driveway. After learning this information, Sovems went and spoke to another neighbor. The neighbor verified that the black tmck belonged to her relatives, who often used the townhome’s driveway to back up. She also revealed that while the group was gone, she had seen Jones walking towards the townhome and knocking on the front door.
When Sovems returned to the townhome, he told James and Pennington about the conversation he had with the neighbor. Jones was still present. Sovems, James, and Pennington wanted Jones to stay at the townhome so that police could interview him when they arrived.
Jones made a comment that he would get James, Sovems, and Pennington a gun for their self-protection. Jones then stood up and told them that he was going home and that the police could find him there if they wanted to talk to him.
Then, Pennington came up behind Jones and started hitting him with the baseball bat. When Pennington initially hit Jones on the head, Jones fell to the ground but attempted to get back up. When he did, Pennington hit him again and Jones fell into the coffee table. Pennington continued to hit Jones several more times with the bat while Sovems watched. At one point, Sovems heard Jones gargling on his own blood; even then, Pennington hit Jones again with the bat. After Pennington hit Jones for the last time, Pennington checked Jones’ pulse and stated, “Oh, my God, he’s dead.”
During the entirety of the incident, Jones never attempted to defend himself. In fact, he still had his hands in his pocket when the attack occurred. Before the incident, Jones had never made any threats or brandished any weapons.
After the incident, Pennington asked Sovems to kick in the townhome’s front door so that it would appear that Jones had broken in at the home. Sovems did so. When police officers arrived at the scene, James, Sovems, and Pennington lied to the officers, stating that Jones had attempted to break in at the townhome. Nevertheless, Sovems later recanted his oral statements to police and told the police what had actually happened at the townhome.
Pennington was interviewed regarding the incident. During the interview, Pennington admitted to hitting Jones multiple times on the head with a baseball bat because he felt threatened by Jones.
The autopsy of Jones’ body revealed that the cause of his death was blunt trauma to the head. In addition, the autopsy revealed two large tears in Jones’ scalp, skull fractures on the front and back of his head, as well as bmising and internal bleeding in the brain. The forensic pathologist determined that these injuries were caused when Jones was hit at least two times by an object and that these injuries were consistent with being hit by a baseball bat.
In January 2007, the State charged Pennington with one count of first-degree murder, an off-grid person felony, under K.S.A. 21-3401. Initially, Pennington’s trial was set for May 21, 2007. Nevertheless, before trial, Pennington’s counsel (William Dunn) moved to withdraw due to Pennington’s failure to “satisfy his contractual obligation to counsel.” The trial court allowed Dunn to withdraw and appointed Rebecca Brock as new counsel for Pennington. When Brock was appointed, she told the court that she could not be prepared for trial by the May 21, 2007, trial date and requested a continuance. Brock stated that Pennington desired the continuance and would waive his speedy trial rights so that Brock could “be fully prepared and we can have an opportunity to review the case together.” After listening to Brock’s comments, the trial court confirmed with Pennington personally that he desired the continuance and agreed to waive his speedy trial rights. The State had no objection to a continuance of the proceedings as long as Pennington waived his speedy trial rights. The trial court memorialized Pennington’s speedy trial waiver in a journal entry.
During a pretrial conference on May 18, 2007, the trial court scheduled Pennington’s trial for September 17, 2007. Shortly before trial, on September 13, 2007, Pennington moved to dismiss the charges against him for violation of his statutory and constitutional rights to a speedy trial. In the motion, Pennington argued that although he waived his speedy trial rights at the preliminaiy proceeding, the waiver was not unconditional but only given in order to secure a continuance necessary for the preparation of his defense. Pennington further argued that although he requested the continuance, K.S.A. 22-3402(3) required that his trial be rescheduled within 90 days of the original trial deadline. Pennington argued that he was entitled to be brought to trial by August 22, 2007 (90 days from the original trial date of May 21, 2007). The trial court denied Pennington’s motion to dismiss.
On September 17, 2007, Pennington’s 3-day juiy trial began. During the juiy instruction conference, Pennington’s counsel asked about the necessity of an instruction on involuntary manslaughter but never explicitly requested the instruction or objected to its omission. The trial court furnished jury instructions on the crimes of first-degree premeditated murder, second-degree intentional murder, and voluntary manslaughter. In relevant part, the trial court also provided juiy instructions on self-defense/defense of another as well as a deadlocked jury instruction.
The juiy acquitted Pennington of first-degree murder but convicted him of second-degree intentional murder. The trial court sentenced Pennington to the standard presumptive sentence of 155 months’ incarceration.
Did the Trial Court Err in Denying Penningtons Motion to Dismiss for Violation of His Statutory Speedy Trial Rights?
Pennington first argues that the trial court erred in denying his motion to dismiss under the speedy trial statute. While Pennington acknowledges that he requested a continuance after his first counsel withdrew, he argues that his case should nonetheless be dismissed for speedy trial violations because the trial court failed to reschedule his trial in a timely fashion. The State argues that the trial court properly denied Pennington s motion to dismiss because Pennington waived his speedy trial rights.
Pennington’s allegation of error requires this court to consider whether his right to a speedy trial, as contemplated by K.S.A. 22-3402, was violated. The question of whether a defendant’s statutory speedy trial right has been violated is a question of law over which this court exercises unlimited review. State v. Adams, 283 Kan. 365, 367-68, 153 P.3d 512 (2007).
Every person accused of a crime has a constitutional and statutory right to a speedy trial under the Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution. State v. Montes-Mata, 41 Kan. App. 2d 1078, 1080-81, 208 P.3d 770 (2009). Kansas has adopted K.S.A. 22-3402 to define and implement these constitutional guaranties to a speedy trial. 41 Kan. App. 2d at 1081. Pennington’s argument for a speedy trial violation is drawn primarily, if not exclusively, from subsections (1) and (3) of K.S.A. 22-3402:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the 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).”
“(3) If any trial scheduled within the time limitation prescribed by subsection (1) or (2) is delayed by the application of or at the request of the defendant, the trial shall be rescheduled within 90 days of the original trial deadline.”
The State bears the responsibility for ensuring that a defendant receives a speedy trial; a defendant need not “take any affirmative action to ensure that his or her right to a speedy trial is observed.” State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007). Nevertheless, when a defendant requests or acquiesces to a continuance, the defendant waives his or her statutory right to a speedy trial. State v. Brown, 283 Kan. 658, 662, 157 P.3d 624 (2007); see Adams, 283 Kan. at 370. Although a defendant waives his or her statutory speedy trial right upon requesting a continuance, a defendant may condition or revoke this waiver and later reassert his or her speedy trial right if the State is aware of the conditions of the revocation. State v. Mitchell, 285 Kan. 1070, 1082, 179 P.3d 394 (2008).
To help understand Pennington s argument, we will examine the timeline of significant events between his arraignment and trial:
February 23, 2007 Pennington was arraigned.
May 4, 2007 Pennington’s defense counsel moved to withdraw; Pennington requested a continuance so that he could review his case with substitute counsel and so that substitute counsel could be fully prepared to represent him; Pennington waived his speedy trial rights to accomplish that purpose.
May 18, 2007 Pretrial conference was held where new trial date was set for September 17, 2007.
May 21, 2007 Original trial date (postponed when defense counsel withdrew and case was continued).
May 24, 2007 Original 90-day trial deadline.
August 22, 2007 90 days after original 90-day trial deadline (K.S.A. 22-3402[3]).
September 17-20, 2007 Pennington’s jury trial.
Initially, Pennington’s trial was set for May 21, 2007, within the 90-day time limit from arraignment. Nevertheless, before trial, Pennington’s initial counsel moved to withdraw. At the same hearing, the trial court appointed Brock as new counsel for Pennington. When Brock was appointed, she told the court that she could not be prepared for trial by the May 21, 2007, trial date and requested a continuance. After listening to Brock’s comments, the trial court verified that Pennington personally desired the continuance and wanted to waive his speedy trial rights:
“THE COURT: All right. Mr. Pennington, you are aware that you have a right to have this trial within 90 days after you were bound over on these charges, do you understand that?
“THE DEFENDANT: Yeah.
“THE COURT: And that by switching attorneys, your new attorney feels that she is not able to get prepared in time to commence trial on May 21st, do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: And so you are requesting to continue the trial setting, and in order to do it for the record, we need you to waive your right to speedy trial, do you understand?
“THE DEFENDANT: Yes.”
After Pennington’s waiver, the trial court set the case for pretrial conference on May 18, 2007. Then the trial court set Pennington’s trial for September 17, 2007.
Based on the timeline and this court’s decision in State v. Lawrence, 38 Kan. App. 2d 473, 167 P.3d 794 (2007), rev. denied 286 Kan. 1183 (2008), Pennington’s September 17,2007, trial date was scheduled 26 days after August 22, 2007, which date would have been 90 days after the original 90-day trial deadline under K.S.A. 22-3402(3). See State v. Brown, 283 Kan. 658, 667, 157 P.3d 624 (2007):
“[K.S.A. 22-3402(3)] requires the trial to be rescheduled within 90 days of the ‘original trial deadline,’ not the ‘original trial date,’ which is the term used in K.S.A. 2006 Supp. 22-3402(5)(c) (formerly [3][c]), relative to prosecution extensions. See L. 2004, ch. 47, sec. 1. This difference is significant and is not inconsistent with the result we reach herein. The 90-day clock continues to run unless there is a delay as a result of the application or fault of the defendant which stops the clock. When delay is caused by the prosecution, the time for trial may be extended if the reason therefor is within one of the statutory grounds therefor. The new subsection is aimed placing a duty on the court and the State to restart the speedy trial clock which has been stopped by the application or fault of the defendant and to reset the trial date within a specific time period. This new provision does not affect the issue before us.” (Emphasis added.)
Of course, this would constitute a violation under K.S.A. 22-3402(3) because it would seem that our Supreme Court has interpreted the 90-day period under that subsection as requiring the court and the State to restart die speedy trial clock. Thus, if the trial court did not set the trial within the 90-day period under K.S.A. 22-3402(3), the additional days could possibly count against the State and not against the defendant.
We guardedly use the word “could” in the previously mentioned paragraph because K.S.A. 22-3402(3) is silent as to a remedy for violating this subsection. Indeed, Lawrence points out this uncertainty:
“We have assumed for the purposes of this analysis that the requirement of subsection (3) [of K.S.A. 22-3402] is a mandatory speedy-trial rule, not a directory one. But that is not at all clear from the language of the statute. Subsections (1) and (2) contain an explicit penalty for noncompliance: the defendant ‘shall be entitled to be discharged from further liability to be tried for the crime charged.’ Subsection (3) does not contain any language providing a consequence for noncompliance.” 38 Kan. App. 2d at 483.
As Lawrence points out, there is no penalty contained in subsection (3) of K.S.A. 22-3402, while there is an explicit penalty of “such person shall be entitled to be discharged from further liability to be tried for the crime charged” when there is a violation of the speedy trial rights in K.S.A. 22-3402(1) and (2). If the 90-day deadline in K.S.A. 22-3402(3) is directory rather than mandatory, a violation of that subsection would not warrant dismissal of the charges against a defendant.
Nevertheless, because Pennington waived his statutory speedy trial rights, we do not need to decide whether a K.S.A. 22-3402(3) violation should be counted against the State in determining whether a statutory speedy trial violation has occurred under K.S.A. 22-3402(1). Presumably, Pennington meant to waive his speedy trial rights under K.S.A. 22-3402(3) because it was the only relevant statutory speedy trial right implicated by his request for a continuance. To illustrate, because Pennington made the request for a continuance, the 90-day speedy trial deadline under K.S.A. 22-3402(1) would have been tolled. See K.S.A. 22-3402(2); State v. Vaughn, 288 Kan. 140, 144, 200 P.3d 446 (2009) (“[Djelays that result from the request of a defendant toll the statutory speedy trial period.”). As a result, there would have been no violation of K.S.A. 22-3402(1). “A defendant waives his or her right to a speedy trial under the statute if he or she requests a continuance or files a motion that delays the trial beyond the statutory deadline.” 288 Kan. at 144.
In addition, although Pennington argues that he did not understand he was waiving all of his speedy trial rights and that he requested a continuance for limited purposes, the record indicates that Pennington acquiesced in the September 17, 2007, trial setting. Defense counsel was present at the pretrial conference when the September 17, 2007, trial date was set. Moreover, Pennington never objected to the trial setting until September 13,2007, which was 22 days after the 90-day deadline under K.S.A. 22-3402(3). In Vaughn, our Supreme Court stated that “a defendant’s waiver of the right to a speedy trial extends not only to a defendant’s request for a continuance but also is effected by a defendant’s ‘acquiescing in the grant of a continuance.’ [Citations omitted.]” 288 Kan. at 144.
The evidence in the record conclusively establishes that on May 4, 2007, Pennington requested a continuance to prepare his defense with new counsel. Moreover, he personally waived his statutoiy speedy trial rights. Because there is no evidence in the record that this waiver was conditional or was later revoked, Pennington is precluded from asserting that his statutory speedy trial rights were violated. As a result, Pennington’s argument fails.
Did the Trial Court Err in Excluding Evidence of the Victim’s Autopsy Report?
Pennington’s next argument on appeal is that the trial court impermissibly impaired his right to present his defense by refusing to permit introduction of Jones’ autopsy report. To the contrary, the State argues that the trial court properly excluded this evidence because it was irrelevant.
When reviewing a trial court’s decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless prohibited by statute. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has any “tendency in reason to prove any material fact.” K.S.A. 60-401(b). Thus, in order for any type of evidence to be considered relevant, it must be probative to establishing some material fact (that is, a fact significant under the substantive law of the case). State v. Vasquez, 287 Kan. 40, 49-50, 194 P.3d 563 (2008); State v. Reid, 286 Kan 494, 504-05, 186 P.3d 713 (2008). The standard of review for whether evidence is material is de novo. 286 Kan. at 505. The standard of review for whether evidence is probative is reviewed under the abuse of discretion standard. 286 Kan. at 509. Finally, even if evidence is material and probative, the trial court must decide whether the evidence is unduly prejudicial. The appellate court reviews the determination of whether evidence is unduly prejudicial under the abuse of discretion standard. 286 Kan. at 512.
Once relevance is established, the trial court must then apply the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the rule in question. Therefore, the standard of review that is applicable on appeal will depend upon which rule the court applied to determine the admissibility of the evidence at issue. Riojas, 288 Kan. at 383. If an appellate court determines that the trial court erroneously admitted or excluded evidence, an appellate court must then determine whether the error was harmless. State v. Boggs, 287 Kan. 298, 318-19, 197 P.3d 441 (2008). To determine whether such an error was harmless or prejudicial, each must be scrutinized in the light of the record as a whole. “Reversal is required only where an erroneous admission of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice.” State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006).
Generally, a defendant is entitled to present the theory of his or her defense and the exclusion of evidence that is an integral part of that theory violates a defendant’s fundamental right to a fair trial. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003). Nevertheless, this right is not unlimited, but instead subject to statutory rules and case law interpretation on the rules of evidence and procedure. State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009).
In the case at bar, the State filed a motion in limine to suppress evidence of Jones’ autopsy report, which showed that he was under the influence of both marijuana and cocaine when he died. In the motion, the State argued drat the evidence was irrelevant because Pennington never maintained that he feared Jones because of any drug usage by him but instead stated to police that he feared Jones because he thought he had a weapon. Moreover, the State argued that the evidence would be more prejudicial than probative and “would only serve to prejudice the victim in the eyes of the juiy, suggesting that he was a ‘bad’ person and that the law should not protect him.”
On the other hand, Pennington argued that the evidence was relevant to his self-defense theory. Specifically, Pennington argued that he would present evidence that he was aware of Jones’ drug use. Additionally, he argued that such evidence was “relevant to the actions that [Pennington] says the decedent did just prior to what happened, here, and [Pennington] feeling like he needed to defend himself and the others present in the room.” Furthermore, Pennington argued that if Jones was jittery when the incident happened, the evidence of the drug usage could explain his conduct. Nevertheless, upon further inquiry by the court, defense counsel admitted that Pennington would not be able to establish that he knew Jones was on drugs when the incident occurred.
Because of the improbability of establishing Pennington’s knowledge of Jones’ drug use on the day of the incident, the trial court excluded the evidence. Nevertheless, the trial judge allowed Pennington to testify “as to his observations of the behavior of the victim. He can testify what he thought he was on ... I will allow that as far as the defendant getting into what he observed and what that made him feel or think at that time.”
The State likens this case to State v. Sherrer, 259 Kan. 332, 912 P.2d 747 (1996). In Sherrer, the defendant challenged his conviction for first-degree murder, arguing inter alia, that the trial court erred in refusing to admit evidence of the victim’s blood alcohol concentration when the incident happened. The evidence during trial tended to show that after finding his wife and best friend sitting and talking at her kitchen table, Sherrer shot and killed his best friend.
During trial, defense counsel attempted to introduce evidence of the presence of alcohol in the victim’s blood and urine. The State objected to the admission of the evidence on foundational grounds (that are irrelevant for our purposes) and on grounds of relevancy. Specifically, the State argued that the test results were irrelevant because there was no evidence that the victim was the aggressor or that the victim was incapacitated or affected by aleo hol. The trial court agreed with the State, excluding the testimony on both foundational and relevance grounds.
Here, the trial court properly excluded the evidence of Jones’ drug usage for two reasons. First, there was no evidence showing that Jones was affected or incapacitated by the drugs in his system. Furthermore, even at the prehminaiy hearing on this matter, Pennington could furnish no evidence that he had knowledge that Jones was under the influence of drugs on the day of the incident. Second, the record contains no evidence that Jones would act violently after ingesting drugs. In fact, the only trial testimony on Jones’ demeanor established that even when Jones spoke of procuring a gun for James, Sovems, and Pennington’s protection, he acted in a calm manner. Therefore, Jones’ usage of drugs had no bearing on Pennington’s belief regarding his right to use force to defend himself or others. Absent any evidence in the record that Pennington observed clues regarding Jones’ drag usage or that Jones’ drug usage caused him to act as an aggressor, this evidence was irrelevant and could not have played into Pennington’s decision-making process on the day of the incident. As a result, Pennington’s argument fails.
Did the Trial Court Clearly Err in Failing to Instruct the Jury on the Lesser Included Offense of Involuntary Manslaughter?
Pennington next argues that the trial court clearly erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter because there was evidence that Pennington committed a lawful act (self-defense) in an unlawful manner (through the use of excessive force). The State urges this court to reject Pennington’s argument because, as a matter of law, Pennington was not entitled to act in self-defense. Additionally, the State argues that Pennington intentionally tried to kill Jones and, therefore, an instruction on unintentional killing was inappropriate.
Generally, the trial court has a duly to instruct the jury on all lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. This duty to instruct only arises where there is evidence supporting the lesser included crime. Therefore, the trial court has no duty to furnish a lesser included offense instruction if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. Houston, 289 Kan. at 273-74. Nevertheless, a lesser included offense instruction is warranted even if the evidence is weak and inconclusive and may be based upon the testimony of the defendant alone if it tends to show a lesser degree of crime. State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008); State v. Bell, 266 Kan. 896, 915, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).
Where a party neither suggests an instruction nor objects to omission, an appellate court reviewing a trial court’s failure to give a particular instruction applies a clearly erroneous standard. State v. Salts, 288 Kan. 263, 265, 200 P.3d 464 (2009); see K.S.A. 22-3414(3). Jury instructions are clearly erroneous only if the reviewing court is firmly convinced that there is “ ‘a real possibility the juiy would have rendered a different verdict if the error had not occurred.’ [Citations omitted.]” 288 Kan. at 265-66.
At trial, the trial court instructed the jury that it could convict Pennington of the following crimes: first-degree premeditated murder, second-degree intentional murder, or voluntary manslaughter. In addition, the trial court gave the jury an instruction on self-defense or defense of another. The trial court did not provide the jury an instruction on involuntary manslaughter. At the jury instruction conference, Pennington neither clearly requested nor objected to the omission of the instruction, although he did ask a question about the validity of such of instruction.
On appeal, Pennington asserts that the trial court should have furnished an instruction of involuntary manslaughter under K.S.A. 21-3404(c). K.S.A. 21-3404 defines involuntary manslaughter as the unintentional killing of a human being committed:
“(a) Recklessly;
“(b) in the commission, of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto, that is enacted for the protection of human life or safety or a misdemeanor that is enacted for the protection of human life or safety, including acts described in K.S.A. 8-1566 and subsection (a) of 8-1568, and amendments thereto, but excluding the acts described in K.S.A. 8-1567 and amendments thereto; or
“(e) during the commission of a lawful act in an unlawful manner. “ (Emphasis added.)
A closely related concept for our purposes is K.S.A. 21-3211, which delineates the scenarios when a defendant may use force in defense of himself, herself, or others. K.S.A. 21-3211 provides:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.”
Under K.S.A. 21-3211, perfect self-defense is a concept based on justification or excuse and operates as a complete defense to a crime. In contrast, imperfect self-defense is based not on justification but rather on mitigation and only reduces a defendant’s criminal culpability to a lesser crime. Kirkpatrick, 286 Kan. at 339. A defendant’s actions in imperfect self-defense (or the defense of others) can result in a conviction for yoluntary manslaughter if he intentionally Idlls a human being based upon an unreasonable but honest belief that circumstances existed that justified deadly force. In the alternative, a defendant’s actions in imperfect self-defense can result in a conviction for involuntary manslaughter if he or she unintentionally killed a human being by committing the lawful fact of self-defense in an unlawful manner through the use of excessive force. 286 Kan. at 339.
As a consequence, Kansas appellate courts have repeatedly found that if a defendant lawfully commits self-defense in an unlawful manner (through the use of excessive force), he or she is entitled to an instruction on involuntary manslaughter in accordance with K.S.A. 21-3404(c). Houston, 289 Kan. at 271-73; Kirkpatrick, 286 Kan. at 335, 339; State v. Robinson, 261 Kan. 865, 881, 934 P.2d 38 (1997). Like all other challenges involving lesser included jury instructions, the applicability of such an instruction depends on the evidence of the particular case. Bell, 266 Kan. at 914-15.
The applicability of the involuntary manslaughter imperfect self-defense instruction depends on two issues that must be considered by this court. First, this court must consider whether there was evidence that Pennington acted in lawful self-defense. Second, this court must consider whether there is evidence that Pennington intended to kill Jones. If he did, there can be no instruction for involuntary manslaughter, which only covers unintentional killings.
The evidence at trial tended to show that after the parties returned from Fort Scott and discussed the break-in with Jones, Jones made a calm suggestion that he would get James, Sovems, and Pennington a gun for their self-protection. After making the suggestion, Jones then attempted to leave the townhome. Then, Pennington came up behind Jones and started hitting him with the baseball bat. When Pennington hit Jones on the head with the bat, Jones fell to the ground and attempted to get back up. Pennington hit him again and Jones fell into the coffee table. Pennington continued to hit Jones several more times with the bat while Sovems watched. At one point, Sovems heard Jones gargling on his own blood; even then, Pennington hit Jones again with the bat. After Pennington hit Jones for the last time, Pennington checked Jones’ pulse and stated, “Oh, my God, he’s dead.”
During the entirety of the incident, Jones never attempted to defend himself. In fact, he still had his hands in his pocket when the incident occurred. Before the incident, Jones never made any threats or brandished any weapons. Nevertheless, James testified that while Jones was in the townhome, she felt scared because he was talking about a gun and his hands were in his pocket. During a police interview, Pennington admitted to hitting Jones multiple times on the head because he felt threatened by Jones.
When we construe the evidence in the light most favorable to Pennington, there is no evidence supporting an instruction of involuntary manslaughter through the lawful act of self-defense. The record contains no evidence that Jones ever acted in a manner such that Pennington could have reasonably believed that force was necessary to protect him or the others at the townhome. Jones never made an explicit threat towards James, Sovems, or Pennington, nor was there any evidence that he was observed handling any weapons or acting in an aggressive manner. Furthermore, there is no evidence that James, Sovems, or Pennington were fearful of Jones when the incident occurred. The only evidence in the record indicates that when the incident happened, Jones was speaking and acting calmly. Pennington never indicated that he believed Jones had a weapon when he struck Jones with the bat. Based on this evidence, even if Pennington believed he had a right to use self-defense, this belief was unreasonable. Consequently, any purported act of self-defense was an unlawful act, rather than the lawful one required for an involuntary manslaughter instruction.
Moreover, the trial court properly omitted an instruction for involuntary manslaughter, because it only applies to unintentional killings. Since Pennington admitted to hitting Jones with a baseball bat and there is no evidence in the record indicating that the multiple blows to Jones’ head were accidental, Pennington’s actions in hitting Jones with the baseball bat were intentional.
A similar issue was recently considered by our Supreme Court in State v. Houston, 289 Kan. 252, 213 P.3d 728 (2009). In Houston, the defendant made an argument similar to the one that Pennington makes. Houston maintained that he did not intend to kill the victim, but his use of excessive force resulted in the victim’s death. As a result, Houston reasoned that the proper conviction should have been involuntary manslaughter.
After finding that Houston’s actions were intentional, the court then proceeded to consider whether Houston also intended to kill the victim. In considering the issue, the court noted that during trial, Houston never disputed that he intentionally pulled the trigger on the gun that killed the victim or that he aimed the gun at the victim’s head. 289 Kan. at 275. Furthermore, the evidence showed that Houston fired the gun from a distance as close as 3-15 feet away. 289 Kan. at 275-76. The court ultimately found that this evidence, coupled with the transcript of Houston’s statement to police, the placement of the gun shell casings in close proximity to the victim’s person, and photographs of the victim’s injuries, required a finding that Houston intended to kill his victim. 289 Kan. at 276. Consequently, our Supreme Court held that no rational jury could have found that Houston did not intend to kill his victim. By extension, “[b]ecause involuntary manslaughter requires an unintentional killing, the evidence would not reasonably justify a conviction of that crime. . . . Accordingly, the trial court did not err in refusing such an instruction.” 289 Kan. at 276.
This case is analogous to Houston. The defendant in Houston never disputed pulling the trigger and aiming the gun at the victim from a short distance. Here, Pennington admitted to administering the blows that killed Jones from a veiy close range. In addition, the jury was shown photographs of Jones’ injuries and was played a tape of Pennington’s confession, in which he admitted to hitting Jones with the baseball bat. The trial testimony revealed that Pennington continued to hit Jones after he was already down on the floor gargling in his own blood.
As in Houston, no reasonable jury could have found that Pennington did not intend to kill Jones. Pennington admittedly and intentionally chose to inflict deadly force upon Jones at close range. Furthermore, even after Jones was down on the ground and rendered helpless, Pennington continued to hit him until his death. Therefore, the trial court properly excluded an instruction on involuntary manslaughter because the only evidence in the record shows that Pennington intended to kill Jones.
For all of these reasons, Pennington’s claim of error fails.
Did the Trial Court Clearly Err in Providing a Deadlocked Jury Instruction Before DeliberationsP
Next, Pennington argues that the trial court committed reversible error when it gave the juiy a deadlocked jury instruction before deliberations. The State recognizes that the specific instruction given was found to be in error in Salts, 288 Kan. at 266-67, but nonetheless argues that there was no clear error because even with the error, there is no real possibility the jury would have rendered a different verdict.
Pennington never voiced an objection to the inclusion of this instruction. Where a party neither suggests an instruction nor objects to omission, an appellate court reviewing a trial court’s failure to give a particular instruction applies a clearly erroneous standard. State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Jury instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Salts, 288 Kan. at 265-66.
In providing juiy instructions, while not mandatory, the use of PIK instructions is strongly recommended due to the fact that these instructions “ ‘have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to juiy instructions.’ ” Salts, 288 Kan. at 266; State v. Gallegos, 286 Kan. 869, 878, 190 P.3d 226 (2008).
Before deliberations, the trial court furnished the jury the deadlocked juiy instruction, an Allen-type instruction, which originated from Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896):
“Like ail cases, this is an important case. If you fail to reach a decision, the charge is left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
‘You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” (Emphasis added.)
With minor variations in wording, the provided instruction mirrors PIK Crim. 3d 68.12.
Over the years, Kansas appellate courts have considered various versions of the deadlocked jury instruction. Although at certain points the instruction’s wording has been found to be erroneous, criticisms of the language has never led to reversal of a conviction when the instruction was given before deliberations. Salts, 288 Kan. at 266; State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006); State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003). These decisions have largely been premised on the under standing that when the deadlocked instruction is given after jury deliberations begin, it is coercive and exerts undue pressure on the jury to reach a verdict. Nevertheless, when the instruction is given before deliberations, much of its coercive effect is removed. State v. Struzik, 269 Kan. 95, 109, 5 P.3d 502 (2000).
In Salts, our Supreme Court considered the same version of the deadlocked juiy instruction provided in this case. In doing so, the court found that the language “ ‘[ajnother trial would be a burden on both sides’ ” is an incorrect and erroneous statement of the law. 288 Kan. at 266-67. Specifically, the court found that contrary to the instruction’s language,
“a second trial may be burdensome to some but not all on either side of a criminal case. . . .
“We therefore hold that including the language ‘[ajnother trial would be a burden on both sides’ in PIK Crim. 3d 68.12 is error. The PIK Committee should strike this language from this instruction. If the Committee believes that the message the State wishes to deliver — that jurors should treat the matter seriously and keep an open mind — should be communicated to criminal juries, then the pattern instruction should be changed to state exactly that.” 288 Kan. at 266-67.
Although the Salts court found the current language of PIK Crim. 3d 68.12 to be erroneous, the court refused to reverse Salts’ conviction under the clearly erroneous standard because it found no real possibility that the juiy would have rendered a different verdict had the error not occurred. 288 Kan. at 266-67.
Based on Salts, the deadlocked juiy instruction in this case was erroneous. Despite this error, because Pennington admitted to administering the blows that killed Jones and the jury rejected his self-defense theory, the evidence overwhelmingly supported the juiy verdict. For this reason, there was no real possibility that the jury would have rendered a different verdict had the error not occurred. As a result, Pennington’s claim of error on this issue fails.
Did Cumulative Errors Deny Pennington’s Right to a Fair Trial?
Finally, Pennington argues that the trial court’s cumulative errors denied his right to a fair trial and, therefore, violated his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial before an impartial juiy. Generally, cumulative trial errors, when considered collectively, may be so great so as to require reversal of a defendant’s conviction. “The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative error rule if the evidence is overwhelming against a defendant. [Citation omitted.]” State v. Hoffman, 288 Kan. 100, 109-10, 200 P.3d 1254 (2009). Furthermore, cumulative error will not be found where the record fails to support the errors raised by the defendant — [o]ne error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” 288 Kan. at 110. Because no error occurred in relation to Pennington’s other appellate issues, the doctrine cannot be applied to this case. As a result, Pennington’s argument fails.
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The opinion of the court was delivered by
West, J.:
This appeal from an order overruling a motion to set aside a sheriff’s sale presents the one question whether or not the notice of sale was given the required publication.
The statute provides that the notice shall be given “for at least thirty days before the day of sale.” (Civ. Code, § 453.) Section 4743 of the General Statutes of 1909, cited by counsel, applies only to notices required to be published a certain number of weeks, and hence need not be considered. The affidavit of the printer stated that the notice was published in the regular and entire issue of each number of a daily newspaper for four weeks, the first publication being January 22, and the last February 23, 1915, the sale being on February 24. Including the first and last dates, the publication must have run thirty-two days, inclusive of Sundays. (Matthews v. Arthur, 61 Kan. 455, 59 Pac. 1067.) The paper was not published on Sundays. The first publication was therefore more than thirty days before the day of sale, and according to the affidavit it was continued in each successive issue of the paper up to the day of sale; for while the affidavit states that the notice was published in the regular and entire issue of each number of the paper for four weeks, it also says that the first was on the 22d of January, and the last on the 23d day of February. While badly worded, it is susceptible of this construction, which the trial court seems to have given. The amended return of the sheriff states that the publication was on the 22d day of January, and then on continuously and uninterruptedly every day until the 23d of February. This indicates the meaning given the printer’s affidavit by the sheriff. This construction was justifiable and proper. (Lamme v. Schilling, 25 Kan. 92; Flood v. Kerwin, 113 Wis. 673, 89 N. W. 845; Southern Ind. R. Co. v. Indianapolis, etc., R. Co., 168 Ind. 360, 81 N. E. 65.)
A paper published every day in the week except Sunday is a daily paper. (Fairhaven Publishing Co. v. Bellingham, 51 Wash. 108, 98 Pac. 97; 2 Words and Phrases, p. 1811; 29 Cyc. 1121.)
The ruling of the trial court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff was a track layer and engaged in the work of fastening the rails together. Another workman was driving spikes. The plaintiff testified: “When he hit the blow with his hammer on the spike, the spike flew off and hit me. It hit me on the forehead on the left side.” The allegation and proof were to the effect that the hammer was defective and the jury so found. It was alleged that the defendant and the spike driver “knew, or would, by the exercise of ordinary care, have known of the imperfect and dangerous character of said hammer so furnished to and used by said Pedro.” The plaintiff testified that sometimes ten or twelve hammers were used at the camp and sometimes only three or four; that the- greater part of them were in bad condition; that he knew of complaint being made to the foreman regarding the hammers; that all the other workmen made complaint to the foreman and his assistant foreman.
“The foreman promised us good tools and said that he was going to furnish us with good tools in a short time. Quite a while afterwards they brought us four new hammers. It was about 15 days before I received my injuries that they brought the new hammers. There was a further complaint made by [to] the foreman after the new hammers arrived. The foreman promised he would get some more new ones. . . . It was 15 days more or -less after the four new hammers were furnished that I got injured. I examined the hammer that I have been describing the following day after I was hurt.”
The witness had already described the hammer in question as being slanting.
“This is round, that is the mouth of the hammer. Those two pieces there that he just marked out was missing and the other part was remaining on the surface of the hammer.”
In answer to a question as to how long the hammer had been defective the jury answered “no evidence as to how long face was defective.”
“Q. 5. State where the piece of material that struck plaintiff came from and what caused it to break off and fly toward the plaintiff. Answer. From spike. A heavy blow from defective hammer.”
The defendant introduced no evidence except that of a witness who simply told of the injury.
A demurrer to the plaintiff’s evidence was overruled. A motion was made for judgment on the special findings and also for a new trial, both of which were overruled. The defendant in its brief says:
“This case is appealed for the purpose of testing the correctness of the trial Judge’s rulings upon the questions of law raised by the demurrer, and the two motions above referred to.”
The argument is made that the hammer being a simple tool which could be understood as well by the workmen as by the company the duty to inspect and ascertain its condition was eliminated. The cases cited, however, are those in which the workman using the tool was injured. Here the tool used by the plaintiff was not complained of and the injury resulted from a defective tool used by a fellow workman. It is the rule in this state that the employer must use ordinary care to provide safe tools of this character for its workmen. (Railway Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632; Steele v. Railway Co., 87 Kan. 431, 124 Pac. 169; Baker v. Iron Works Co., 90 Kan. 430, 133 Pac. 737; Brooks v. Manufacturing Co., 94 Kan. 86, 145 Pac. 840; Hovis v. Refining Co., 95 Kan. 505, 148 Pac. 626.)
It is forcibly insisted that the jury having found no evidence as to how long the face of the hammer was defective it must necessarily follow that negligence or, in other words, knowledge or means of knowledge on the part of the defendant was not shown so as to establish negligence. The duty to harmonize the findings with one another and with the general verdict leads to the observation that a finding of negligence in the use of defective tools and that the injury was from a heavy blow from a defective hammer indicate that the j ury for some reason felt justified in awarding damages to the plaintiff and it must be presumed that they were instructed in accordance with the allegations of the petition that the defect was or should have been known, by reason of its continuance, to the defendant. Had this precise question been presented it is almost certain that the jury would have found that it had so continued as to amount to knowledge or the means of knowledge. But being asked the question as to the length of time the defect had existed they gave the somewhat natural reply that there was no evidence as to the length of time. Measured by itself this answer was literally correct but the testimony of the plaintiff shows unmistakably that the defect was not of sudden occurrence, for the condition of the face of the hammer described by the plaintiff could not have been caused except by continued use. Again, the undisputed testimony regarding the defective hammers and the repeated promises to provide new ones, together with the description of the one which caused the inj ury must be given due significance, and while it is impossible to see from the finding how many days or weeks the hammer had remained in a defective condition, it is quite clear from all the testimony that the battered, uneven surface of the hammer must have come about by some considerable length of usage, which in view of the complaints and promises, indicate clearly enough negligence on the part of the defendant.
The other view might be taken that the jury so improperly answered the question and so failed to heed the evidence as to deprive the parties of a fair trial, but the situation is such that the rule of harmonizing renders a reversal unnecessary. Railway Co. v. Dorr, 73 Kan. 486, 85 Pac. 533, is relied on. There, however, a verdict for $35,000 for an injury and the express finding that the company had no actual knowledge of the existence of a defect led the court to examine with great care the other finding that the defect had existed “for some time previous to the accident,” and to hold that this finding was too indefinite to support the remarkable verdict. There the jury were pressed for a second and more definite answer, which they refused to make. Here a definite question might well have received a definite answer. This is an instance of an inconsistency between special findings and a general verdict wherein every reasonable presumption should be indulged in favor of the latter. (Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585; Lewellen v. Gas Co., 85 Kan. 117, 116 Pac. 221.) It is not a case in which a judgment on the special findings is compelled. (Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289.) In Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947, it was held that an answer to a question as to how long a certain condition had existed the jury replied “we don’t know,” did not amount to a denial of the existence of such condition but to an assertion that the evidence failed to show the duration of such existence. (See Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action against her two brothers, alleging that in 1892 their mother conveyed to the defendants sixty acres of land in consideration of an oral promise that the defendants would “keep, care for her and clothe and look after her during her natural life.”
The deed thus made recites a consideration of one thousand dollars received by the mother. The plaintiff joined in the deed, but merely to perfect the title.
The petition continues:
“The plaintiff states that the said two defendants subsequently failed utterly to and refused and always continued, failed and refused to meet, keep, or perform the contract, that they at no time, cared for, kept, clothed or looked after the said Harriett E. Penn.
“The facts are that the said Harriett E. Penn, afterwards receiving a pension, as the widow of Stacy Penn, who was an old soldier, really supported, partly at least, the two defendants'.
“Never at any time during the life of said Harriett E. Penn, did the said defendants or either of them, pay any consideration to Harriett E. Penn, their mother, who died in the year 1914; nor did they, or either of them at any time pay for her to any one, any consideration for said lands; nor did she ever elect to bring action against them, or either of them.”
The prayer is for a cancellation of the deed, for judgment decreeing that plaintiff is the owner of a one-third interest in the land, for partition, and for rents and profits.
Was the demurrer to this petition properly sustained? Has the plaintiff any interest or concern in the alleged breach of the oral agreement made between her mother and her brothers twenty-two years ago ? What is her interest ? Has she some legal or equitable claim cognizable in law or equity which survives to her as coheir with the defendants for some wrong or injury perpetrated by her brothers, the defendants, against their mother in the mother’s lifetime?
It is conceded by appellant that no precedent sustaining such a claim or interest as that contended for by plaintiff can be found in Kansas jurisprudence; and it may-well be doubted whether even “the wilderness of single instances” could produce a precedent giving countenance to such a cause of action. But we are adjured to make a precedent here and now. True it is that “new occasions teach new duties, time makes ancient good uncouth,” but several insurmountable obstacles bar the way to the promulgation of any novel doctrine in the instant case.
The first of these is the familiar and old-fashioned but frequently serviceable statute of limitations. If the petition be taken as entirely true, and upon demurrer it must be so considered, the defendants breached the oral agreement over twenty-two years ago and they have held the property adversely for all these years. This situation would effectually bar an action for rescission and cancellation of the deed even if brought by the mother herself, and of course it bars those who claim under the mother. In saying this we do not-overlook the principle which would give the mother a cause of action or successive causes of action for breach of the alleged oral contract, but the scope of such an action would be limited to the statutory period. (McCay v. McDowell, 80 Iowa, 146, 45 N. W. 730; Whitley v. Whitley’s Adm’r, 26 Ky. L. Rep. 134, 80 S. W. 825; Lane v. Wingate, 25 N. Car. 326.)
Another obstacle equally potent is the familiar rule that in the absence of fraud, pleaded and proved, parole agreements made prior to or contemporaneous with a written agreement are inadmissible to alter or contradict the terms of the written instrument. Here there was no pleading of fraud. Here the written instrument recited a consideration of $1000 and acknowledged its receipt.
Again, it might be observed that this alleged oral agreement, of which the deed of conveyance gave no token and reserved no condition of forfeiture or right of reentry, was not a covenant running with the land, but a mere collateral and personal covenant between the mother and her sons. If she had any cause of action against them for the breach of such personal covenant it was a personal action which died with her.
What concern is it of this plaintiff that the defendants breached this personal covenant? How can it be shown that the mother in her lifetime was not satisfied with the attitude of her sons ? She certainly acquiesced in their repudiation of the oral agreement. She may well have remitted or forgiven the oral obligation if there was one. This her pension would permit her conveniently to do, seeing that the petition alleges that she contributed to their support instead of their contributing to hers. The fact that she obtained a pension furnishes the probable reason why the mother never sought to enforce the oral agreement and permitted the statute of limitations to run against it.
These observations do not exhaust the objections which might be made to such a cause of action as the one attempted to be stated by plaintiff, but they will serve to show that the district court made no mistake in sustaining the demurrer to plaintiff’s petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was on a written contract stipulating for the payment by defendant of $1600, when the Catholic school of Hanover and the Roman Catholic church furnished her a clear title releasing her from all claims on account of certain provisions in the will of Joseph McMahon, her deceased husband. There was a verdict and judgment for plaintiffs, and defendant appeals.
By his last will and testament Joseph McMahon, after certain minor bequests, devised one-half of his estate, consisting of real and personal property in Washington county, to his wife, and the other half to the St. John’s Catholic school at Hanover, Kan., and the Catholic church. Shortly after his death and the probate of his will, the question arose as to the validity of the provisions in behalf of the school and church, and on the 8th of October, 1909, the defendant and Rev. Wm. Shellberg, pastor of the St. John’s church at Hanover, entered into the following agreement:
“Washington, Kansas, Oct. 8, 1909. This contract or agreement entered into between the Catholic School of Hanover and the Roman Catholic Church of the first part, and Margaret McMahon, widow of Joseph McMahon, late of Washington county, in the state of Kansas, party of the second part: The party of the second part hereby agrees that when the Catholic School and Church aforesaid furnishes her a clear title, releasing her from any and all claims said School and Church have against her on account of the last will and testament of the said Joseph McMahon, then she is to pay to said officers of the said School and Church the sum of Sixteen Hundred Dollars and no/100. Said agreement hereby to be signed by both Margaret McMahon and Father Shellberg, Priest of the Hanover, Kansas, School, and in case that a clear title is not or can not be furnished by the Catholic School and Church aforesaid and all claims against said estate are legally released, then in that case this contract and agreement- is to be null and void, otherwise to be in full force and effect; Provided further that in this case it shall not be construed to require the School and Church to bring any legal proceeding to clear and set aside’the claims herein mentioned or set forth in said will.
Rev. Wm. Shellberg,
Pastor of St. John’s Ohurch, Eanover, Ks, Party of the first part.
Margaret McMahon,
Party of the second part.”
Nothing appears to have been done by either party under the contract until more than a year thereafter, when Margaret McMahon brought suit to quiet her title to all the property of which her husband had died seized, and she joined as defendants the St. John’s school of Hanover, William Shellberg, rector of the school, and certain others who were described as “consultors” of said school, also the bishop of Concordia and the administrator of the estate- of Joseph McMahon, deceased. William Shellberg appeared in person but not by attorney, filed no pleadings and made no other appearance. One of the consultors of the St. John’s Catholic church at Hanover acknowledged service of the summons and entered his appearance in writing. No defense was made to the action by any one representing the church or school, and on the 28d of March, 1911, Margaret McMahon’s title was quieted as prayed for in her petition.
On her failure to pay the $1600 this suit was brought. It is the contention of the defendant that the petition stated no cause of action, and this was raised by an objection to the introduction of testimony and by a demurrer to the evidence. It is insisted that, because the contract was not made by the church and school, nor signed by the proper officers of the church and school, it is void; that the pastor of a church has no authority to make a contract attempting to dispose of the property rights of the church. And it is also insisted that, if the church acquired no interest in the property, then the contract shows on its face that it was without consideration. We think it is too late for the defendant to question the authority of William Shellberg, as pastor, to represent the school and church. It was understood by all the parties that the contract was made for the benefit of the church and school. It is provided by section 27 of the civil code that “a person with whom or in whose name a contract is made for the benefit of another . . . may bring an action without joining with him the person for whose benefit it is prosecuted.” (See, Brick Co. v. Gas Co., 82 Kan. 752, 109 Pac. 398.)
We also think there was sufficient consideration for the contract. We need not determine here whether certain provisions in the will of Joseph McMahon were void on the ground that they attempted to create a perpetuity. It is enough to say there was a question which called for a decision of a court construing the will before Margaret McMahon would have a clear title to the property. It can not be said that there was not a bona fide dispute between the parties as to whether the school and church had acquired some interest by virtue of the will. Probably the plaintiff in this action and those associated with him placed but little ■ reliance bn the provisions of the will for the benefit of the church and school, but there was a colorable claim of an interest under the will, and, while it may have been a very doubtful one, the promise on the part of plaintiffs to render Margaret McMahon whatever assistance was found necessary to enable her to secure a clear title furnished the consideration for her agreement to pay the $1600. Generally speaking, a compromise of a doubtful right furnishes a sufficient foundation for the agreement. (Finley v. Funk, 35 Kan. 668, 12 Pac. 15; Lewis v. Telephone Co., 95 Kan. 136, 139, 147 Pac. 1122.)
“The usual test, however, as to whether a compromise and settlement is supported by a sufficient consideration is held to be not whether the matter in dispute was really doubtful, but whether or not the parties bona fide considered it so, and that the compromise of a disputed claim made bona fide is upon a sufficient consideration, without regard to whether the claim be in suit or not. The law favors the avoidance or settlement of litigation, and compromises in good faith for such purposes wifi be sustained as based upon a sufficient consideration, without regard to'the merits of the controversy or the character or validity of the claims ■of. the parties, and even though a subsequent judicial decision may show .the rights of the parties to have been different from what they at the time .supposed. The real consideration which each party receives under such a compromise is, according to some authorities, not the sacrifice of the right, but the settlement of the dispute.” (8 Cyc. 509.)
(See, also, A. T. & S. F. Rld. Co. v. Starkweather, 21 Kan. 322; Brooks v. Hall, 36 Kan. 697, 14 Pac. 236.)
The contract here seems to have been fairly made; both parties understood the foundation of the claims of the church and school to an interest in the property. There was neither fraud nor misunderstanding; the parties met on open terms. There was nothing in the contract which made it void as against public policy, and we know of no reason why it should not be enforced against defendant if complied with by the plaintiffs.
We think the trial court rightly ruled that the contract was so ambiguous and uncertain in its terms in respect of what the •plaintiffs were to do or leave undone that it was proper to receive oral testimony to explain the ambiguities. The action of the court in this respect is one of the principal claims of error. The plaintiffs agreed that they would clear the title of defendant, but the contract expressly stipulated that they would not be required to bring legal proceedings to set aside any claims mentioned in the will. At least the defendant agreed that she would not compel them to clear the title by an action in the courts. Was it intended that plaintiffs should procure from the Roman Catholic church or the trustees or proper authorities of the Catholic school at Hanover the execution of releases or conveyances of some kind to Margaret McMahon? Or was it intended that in case Margaret McMahon brought suit to quiet title the other parties to the contract would agree not to! set up any defense to the action ? The trial court permitted the plaintiffs to introduce the testimony of several persons who were present at the office of the attorney who drew the contract. These witnesses testified in substance that the attorney stated in the presence of Mrs. McMahon that he was inclined to'think it would be necessary for her to bring an action of some kind, but he was uncertain about it, and that he had advised with some lawyers for a loan company which was considering a loan on the real estate. These witnesses also testified that at the time the contract' was drawn it was undecided what method should be followed to have the title cleared. They understood there was nothing for plaintiffs to do except help Mrs. McMahon get a clear title, and she was to start some kind of an action either to quiet title or to have the will declared null and void; and as soon as she had her title cleared, plaintiffs were to have their money.
There was evidence tending to show that the plaintiffs arranged matters so that no defense was interposed in the action. We are unable to discover any reason why the defendant should not be bound by her agreement, and therefore 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 compel the defendant to register certain rural high-school district bonds. The cause is submitted on an agreed statement of facts. From this statement it appears that on a proper peti-. tion a rural high-school district was organized in Stafford county and an election was called for the purpose of. voting bonds for the construction of a high-school building. The proceedings were had under chapter 311 of the Laws of 1915. At the election the proposition to vote the bonds carried. The notice of the election proved fatally defective under The State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602, and School District v. Davis, ante, p. 200, 157 Pac. 844. Upon the attention of the board of county commissioners being challenged to this defect and the petition being again presented, that board, upon the same petition, ordered another election. At this election the bond proposition again carried. After the last election an action was brought in the district court of Stafford county by S. J. Kachelman against the rural high-school board, the plaintiffs in this action, to enjoin the issuance of the bonds. That action was tried and j udgment rendered in favor of the defendants. An appeal was then filed in this court. That appeal was afterward withdrawn and another notice of appeal was served. The last appeal was filed July 10, 1916.
The first question for determination is: Did the board of county commissioners have authority to order a second election? Section 2 of chapter 311 of the Laws of 1915 in part reads:
“Whenever a petition, signed by two-fifths of the legal electors residing in the territory of the proposed rural high school district, to be determined by an enumeration taken for this purpose, shall be presented to the hoard of county commissioners of the county in which lies the greatest portion, of territory comprising said district, reciting the boundaries of said proposed district and requesting said board of county commissioners to call a special election to vote on establishing and locating a rural high school and to vote bonds for the construction of a high-school building, the proposed location and the amount of the bonds proposed to be stated in the petition, it shall be the duty of the board of county commissioners forthwith to call a special election in said proposed district to vote on establishing and locating a rural high school and to vote bonds therefor. . . . Such election shall not be called oftener than once in every two years unless by the petition of more than one-half the legal voters of said district presented to the proper county commissioners.”
When a proper petition is filed under this statute it becomes the duty of the board of county commissioners to call a special election to vote on establishing and locating a rural high school and to vote bonds for the construction of a high-school building. That petition is effective until the requirements of the statute have been complied with. The requirements of the statute are not complied with until a valid election is held. In the present case the first election to vote bonds was invalid. The petition was still effective. When the attention of the board of county commissioners was challenged to the defective election, that board had authority, without a new petition being presented, to call a special election to vote bonds for the construction of a high-school build ing. For this reason the board of county commissioners was acting under the law when the second election was ordered. The last part of the statute quoted applies when a valid election has been held and not before that time. The defendant cites Cowles v. School District, 88 Kan. 603, 129 Pac. 176, in support of his contention. The decision in that case does not apply here for the reason that the act based on the petition was valid and the petition had accomplished its purpose.
What effect does the appeal of S. J. Kachelman have on the present action ? The only question to be determined in the Kachelman case is the authority of the county commissioners to call the second election on the petition presented to the board. That question is disposed of. The present case is properly before this court and is ready for final' determination. It should be determined irrespective of Kachelman’s appeal. The fact that the appeal is pending is not a sufficient excuse to warrant the auditor in refusing to register the bonds. He should register the bonds upon the legality of the proceedings, and not refuse to register them because of an action to restrain the issuance of the bonds on grounds that are not tenable under the law.
A peremptory writ of mandamus will be issued. | [
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The opinion of the court was delivered by
William R. Smith, J.:
By this proceeding in error it is sought to reverse a decree of the district court foreclosing a mortgage given by plaintiffs in error on real estate in Kansas to a building and loan association incorporated under the laws of the state of Illinois. The association became insolvent, a receiver was appointed in Illinois to take charge of its prop erty and wind up its affairs, and an ancillary receiver was appointed by the United States circuit court for the district of Kansas. Subsequently the assets of the association in this state were sold by the receiver under orders of the courts mentioned and purchased by the Scammon Investment and Savings Association, which brought this suit.
On or about December 1, 1890, Scaife took out three shares of stock in the Interstate Building and Loan Association. On June 20, 1891, he borrowed $300 from the association, giving a note for the amount, and a real-estate mortgage to secure its payment. He paid interest on the note, premium instalments and dues on the stock to September 4, 1896, when he took more stock in the association, and borrowed $150 additional, giving a new mortgage for $450, in which his wife joined, and which was foreclosed in this suit. He also gave a note for the same amount at the same time. It was stipulated in the mortgage that Scaife should pay $3.60 each month as dues, and $2.62 each month as premium, on the shares of stock, $2.25 a month interest on the money borrowed, and also such fines as might be imposed under the by-laws. All dues, premiums and interest were paid until June, 1898, when a bill was filed in the circuit court of McLean county, Illinois, by David Mackie, jr., against the building and loan association, setting forth the insolvency of the latter, and praying for the appointment of a receiver to wind up its affairs. This suit was cpnsolidated with another, brought by the people, on the relation of J. S. MeCollough, auditor of public accounts of the state of Illinois, in which the same relief was sought. Edward Barry was appointed receiver in the consolidated suit on June 16, 1898.
At this time the assets of the association in Kansas aggregated in value about $29,000. Barry, the receiver, exhibited the proceedings had in the suits in the district court of McLean county, Illinois, to the Honorable C. G. Foster, sitting as United States circuit judge for the district of Kansas, and obtained an order appointing him receiver of the assets of the association in this state, and later, under authority given by the United States circuit court, the Kansas assets of the association were sold to defendant in error.
The contention that there was no suit pending in the federal court when the ancillary receiver was appointed is without substance. The proceedings had in the United States circuit court for the district of Kansas were in aid of a suit in Illinois that had for its purpose the liquidation of the affairs of the association for the benefit of all persons interested in it as creditors or stockholders. In the case of Rust v. United Water-works Co., 70 Fed. 129, 133, 17 C. C. A. 16, which came before the circuit court of appeals on a writ of error to the circuit court for the district of Colorado, an objection was made that the appointment of plaintiff in error as receiver of a water-works company was without force beyond the jurisdiction of the chancery court of New Jersey, which appointed him in the first instance, and hence that he was without power to sue or defend suits for that corporation in the courts of Colorado. The court, speaking through Sanborn, J., said:
“It goes without saying that the court below had the power, upon the presentation to it of the decree of the court of chancery of the state of New Jersey appointing the plaintiff in error the receiver of the property of this insolvent corporation, and the trustee for its creditors and stockholders, to appoint him a receiver and trustee, with the same powers, in the district of Colorado, and to authorize him to sue for, and to defend suits against, the water-works company in that district in the name of the corporation, or in his own name. This power was exercised in this very receivership by Judge Caldwell, in the circuit court of the United States for the district of Nebraska.”
To the same effect see Shinney v. North American Savings, Loan & Building Co., 97 Fed. (C. C.) 9, 11, in which it was said:
“It is no unusual thing for a federal court to appoint an ancillary receiver of assets within its jurisdiction in aid of a primary appointment by a state court of another state.”
In the mortgage given by plaintiffs in error this language appears:
“It is expressly agreed that this mortgage is noiinegotiable, and is uncollectable in the hands of any other person than said association or its successors, or its duly authorized attorneys or agents.”
An argument is made that this stipulation operates as a bar to a suit by plaintiff below, which is the assignee of the note and mortgage. This court does not think so. Title to the obligations sued on vested in defendant in error by operation of law. It was a purchaser of them at a judicial sale. Its ownership does not differ from that which it might have acquired at a sheriff’s or marshal’s sale in pursuance of a levy by execution. The precise point was discussed in Spinney v. Miller, 114 Iowa, 210, 212, 86 N. W. 317, 318, 89 Am. St. Rep. 351, and decided against the contention of plaintiffs in error. In that case it was said:
“Furthermore, it is universally held that a provision restraining the assignment of such an instrument is not operative against an assignment effected by law or through an order of court. Where it is given force, it is restricted to voluntary alienation. (4 Kent. Com. 128.)”
It was claimed in the trial court, and is asserted here, that one David Mackie, jr., was selected by the Kansas stockholders after the insolvency of the association to look after and protect their interests; that he went to Illinois as their agent, and afterward negotiated a purchase of the Kansas assets by the Scammon Investment and Savings Association, of which he was secretary and treasurer, to the detriment of plain tiffs in error and other stockholders and debtors similarly situated residing in this state. It is sufficient to say that this question, which was put in issue by the answer, was decided against the mortgagors by the trial court after a consideration of the oral testimony, which was conflicting. The conclusion so reached will not be disturbed here.
The principal controversy in the case relates to a refusal by the trial court to allow a credit on the note given by Scaife for monthly dues paid by him on his stock in the association. His contention is that after the association ceased to be a going concern, and was disabled from performing its part of the contract with a stockholder, the latter, who was also a debtor to it, should have credit for all moneys paid, whether as dues on stock, interest, premiums, or fines; that insolvency was no fault of one who had paid promptly all exactions up to the time the association went into the hands of a-receiver. The trial court did allow credits for interest, premiums, and fines, so that the question here relates solely to the legal right of plaintiff in error Scaife to receive credit for payments made by him as dues on the stock he held. The dues were nothing more than monthly instalments paid by members of the association for stock sold to them on credit. Some of the members borrowed money, and some did not.
Although the courts are divided, the preponderance of authority is against permitting a borrowing stockholder in a building and loan association that has become insolvent to take credit on his indebtedness to the association' for dues paid in the purchase of stock. Reason also forbids the allowance of such credits. Statutes as well as rules and by-laws governing such associations in their settlements with borrowers are abrogated in cases where the associations become insolvent. (Thomp. Build. Assoc., 2d ed., §300; Spinney v. Miller, supra; Clarke v. Caufman, 66 Kan. 61, 71 Pac. 241.) The rule applicable to the present case is stated by Thompson in commenting on the rights and obligations of borrowers and stockholders in building associations that have become insolvent. He quotes approvingly from Strohen v. Franklin Savings & Loan Ass’n, 115 Pa. St. 273, 279, 8 Atl. 843, 845:
“To a certain extent, it also ends the contract between it and its members respectively, and nothing remains but to wind it up' in such a manner as to do equity to creditors, and between members themselves. As regards the latter, care should be taken to adjust the burdens equally, and not to throw upon either borrowers or non-borrowers more than their respective share. That result may be reached by requiring the borrower to repay what he actually received with interest. He would then be entitled, after the debts of the corporation are paid, to a pro rata dividend with the non-borrower for what .he has paid upon his stock. He will thus be obliged to bear his proper share of the losses. To allow him to credit upon his mortgage his payments on his stock would enable him to escape responsibility for his share of the losses and throw them wholly upon the non-borrowers.” (Thomp. Build. Assoc., 2d ed., §171, p. 338.)
In the same section the author says:
“However, the clear weight of recent authority is against allowing the dues as credits, and properly so, as such action would be an unjust preference.” (Page 344.)
In the following cases the rule approved by Thompson is adopted and applied: Marion Trust Co. v. Trustees Edwards Lodge, etc., 153 Ind. 96, 54 N. E. 444; Huter v. Union Trust Co., Rec., 153 id. 204, 54 N. E. 755; James, Receiver, v. Sidwell et al., 153 id. 697, 54 N. E. 752; Towle et al. v. American Bldg., Loan & Inv. Soc., 61 Fed. (C. C.) 446; Sullivan v. Stucky, 86 id. (C. C.) 491; Brown v. Archer, 62 Mo. App. 277; Pioneer Savings & Loan Co. v. Brockett, 58 Ill. App. 204; Eversmann, Receiver, v. Schmitt, 53 Ohio St. 174, 41 N. E. 139, 29 L. R. A. 184, 53 Am. St. Rep. 632; Anselme v. American Savings & Loan Ass’n, 63 Neb. 525, 88 N. W. 665; Weir v. Granite State Provident Association, 56 N. J. Eq. 234, 38 Atl. 643; Curtis v. Granite State Provident Association, 69 Conn. 6, 36 Atl. 1023, 61 Am. St. Rep. 17; Hale v. Cairns, 8 N. Dak. 145, 44 L. R. A. 261, 77 N. W. 1010, 73 Am. St. Rep. 746; Spinney v. Miller, supra.
The adjustment of the affairs of a bankrupt building and loan association on an equitable basis requires' that all stockholders — borrowing and non-borrowing —be treated alike, and it is the application of this just principle that has impelled the courts in the cases above cited to deny to a borrowing member credit for payments made in the purchase of stock, called dues.
In the cross-examination of David Mackie, jr., a witness for plaintiff, he testified that the building association issued three different kinds of paid-up stock. Counsel for plaintiffs in error then requested the court for leave to amend the answer by pleading that fact. The application was denied, and no complaint .of that ruling is made in this court. Counsel proceed, however, to argue the point in their brief, contending that when such associations issue paid-up stock they are removed from the category of building and loan institutions, and become mere money-lending, dividend-paying corporations that do not benefit the saving poor but aid the rich in finding good investments for their capital. They rely on the case of Rhodes v. Missouri Savings Co., 173. Ill. 621, 50 N. E. 998, 42 L. R. A. 93. In that case real estate in Illinois was mortgaged to a Missouri building and loan association by one of its stockholders, a resident of Illinois. In a suit to foreclose the mortgage it was shown that under the statutes of Missouri such associations were authorized to issue full-paid stock. It was said that the issuance of paid-up stock was not authorized by statute in Illinois, and that no rule of comity between states required that the Missouri association should stand be fore the Illinois courts as a building and loan association.
The statutes set out in the opinion are laws of Missouri, and on them the decision was based. In the present case it was not shown that paid-up stock was issued in the series to which Scaife subscribed. Again, counsel are persistent in the contention that this is a Kansas contract, and that Kansas laws must govern its enforcement. Much space in their brief is devoted to this question. In the case of Loan Association v. Merriman, 67 Kan. 779, 785, 74 Pac. 256, 258, this court said:
“It frequently has been held that, in the absence of statutory prohibition, building and loan associations may issue paid-up stock, and that the holders are members and not merely creditors.” •
For the several reasons stated the contention of counsel on the last point discussed is ill-founded and without merit.
We have given attention to the other claims of error, and find nothing in the record to justify a reversal of the judgment below. It is affirmed.
All the Justices concurring. | [
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The opinion Of the court was delivered by
Mason, J.:
John O’Brien mortgaged a tract of land to the Vermont Savings and Investment Company. He died, and his widow was appointed administratrix. The mortgagee, instead of foreclosing the mortgage by suit in the district court, elected to present the mortgage debt as a claim against the estate and have the land sold for its payment by order of the probate court. Proceedings were taken in accordance with this plan, as a result of which a sale was had, and an administratrix’s deed was made to Mrs. F. G. Thomas. Afterward D. F. Mallory obtained conveyances of the land from the heirs of O’Brien, and asserted title to it under the claim that the administratrix’s deed was void. Mrs. Thomas brought a suit against Mallory to quiet title, the Vermont Savings and Investment Company joining as plaintiff. The petition alleged that Mrs. Thomas had purchased and still held the land as trustee for that company. Issues were framed and a trial was had, resulting in a judgment for the plaintiffs, from which the defendant prosecutes error.
Complaint is made of the overruling of a general demurrer to the petition. It is argued that as Mrs. Thomas claimed no interest in the land otherwise than as trustee there could be no recovery except in virtue of the trust, that the trust was void under the statute because not in writing (Gen. Stat. 1901, §§1210, 3173, and 7875), and that, therefore, the petition stated no cause of action in favor of either of the plaintiffs. An obvious answer to the argument is that a third party has no standing to invoke this statute in order to nullify an oral trust. So long as the trustee is content to be bound by it a stranger cannot be heard to say that it is of no effect. (28 A. & E. Encycl. of L. 877.)
It is also urged that the demurrer should have been sustained upon the ground that the petition did not state the facts constituting Mrs. Thomas a trustee of the investment company — that the averment that she was such a trustee was a mere conclusion of law. The obj ection is without force. It was alleged that she had taken the title in herself for the benefit of the company. This was sufficient for the purposes of this case. The defendant was in no way concerned with the reasons for, or purposes of, the trust.
A further complaint is made of the overruling of a demurrer for a defect of parties plaintiff, but the only fault found in this connection is that the trustee and beneficiary united in bringing the action. Such a joinder seems perfectly proper (22 Encyc. Pl. & Pr. 164), but if otherwise it does not constitute a defect of parties within the meaning of the statute. (McKee v. Eaton, 26 Kan. 226.)
The only other assignments of error relate to rulings that can only be reviewed when all the evidence is preserved in the record. It is not made to appear in the case-made, upon which the petition in error is based, either by express recital or by reasonable implication, that it contains all the evidence, and therefore these assignments cannot be.considered.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to restrain the board of commissioners of the city of Wichita from enforcing an ordinance relating to the subject of . plumbing. The contention was the ordinance is void because unreasonable. An injunction was denied and the plaintiff appeals.
Section 839 of the General Statutes of 1909 reads as follows:
“Each city with a population of seven thousand or more in the state having a system of water-supply or sewerage shall by ordinance, within three months of the passage of this act, prescribe rules and regulations for the materials, construction and inspection of all plumbing and sewerage placed in or in connection with any building in each city, and the board of health or proper authorities shall further provide that no plumbing work shall be done, except in case of repairing leaks, without .•a permit first being issued therefor upon such terms and conditions as such city shall prescribe.”
Pursuant to this authority the city in the year 1912 enacted an ordinance which has since been amended, containing the following provisions:
“Section 23. Fittings approved by this ordinance shall be used for all connections in drain, soil, waste and vent pipes of iron or brass. The main soil waste pipes inside of any building below ground shall be constructed of extra heavy tar coated inside and outside cast iron pipe and fittings.
“Section 24. Soil and waste pipes above ground in any building shall be of extra heavy soil pipe.
“Section 64. All plumbing brass goods such as bath cocks, bibbs, faucets, stop and waste cocks, etc., shall conform in weight, water way, ■quality and general formation to that class of plumbing goods or plumbing fixtures known to the trade as extra heavy. No goods of light weight, ■or cast from yellow brass and known to the trade as competition goods ■shall be used.”
Extra grade plumbing goods are all heavier than those designated as “standard” and are all more expensive. Extra grade brass fixtures are cast from “red brass” or brass in which the copper constituent largely preponderates over the zinc. “Yellow brass” fixtures are made of drawn or rolled brass, the seams being brazed by electricity. In yellow brass the zinc constituent largely preponderates over the copper. Competition goods are simply goods sold in competition with those of extra grade.
There was evidence that before 1912 standard goods were freely used in the city of Wichita, as they are in many other cities of the United States. Such goods stand the tests of initial inspection as well as those of extra grade, are quite as durable as those of extra grade, and consequently are just as sanitary. The advantage in their use is that the builder who must build modestly can do so with satisfaction to himself and safety to the public and at a considerable saving in cost. There was some evidence tending to show that independent plumbers are not able to procure extra grade material on equal terms with members of the association of master plumbers. On the other hand, there was evidence that the light weight goods are not durable, do not stand the strain incident to settling, quickly give out and leak from a variety of causes and are sometimes so light they will not stand the use of the wrench in making repairs. Leaking plumbing is not sanitary and the extra grade material is the cheaper in the end. Permission to use light weight goods opens the door to deception and fraud and embarrasses inspection because of the lack of a standard. These subjects were all duly considered by the board of commissioners and the ordinance in question is based on the experience of other cities.
The plaintiff’s claims are supported by high medical authority. The following is an editorial from the Journal of the American Medical Association for August 29, 1914:
“It is not surprising perhaps that old ideas concerning the causes of disease survive in some strata of society a long time after these ideas have been generally outgrown or discredited. All the same it is a little disconcerting to find that typhoid fever can still be complacently attributed to bad plumbing. When we read that ‘insufficient laws regulating plumbing and sanitation in Virginia, Maryland and the District of Columbia are largely responsible for the high typhoid rate and the prevalence of other’ diseases in the two states and the district,’ and again that ‘much of the fever and other forms of disease with which the health authorities are constantly wrestling is caused by noxious gases and vapors emanating from neglected or defective pipes in the homes of the people,’ we are inclined to rub our eyes and ask ourselves if the education of the community is really proceeding at the pace we sometimes like to believe. The assertions quoted above, however, were reported as made at the Association of Plumbers, Gasfitters and Steamfitters which recently met in Richmond, Va., and not at a convention of health officers or physicians.
“It is hardly necessary to point out that typhoid fever — or any other fever — is not caused by bad smells, and that the small quantity of the gases of decomposition found in well-ventilated sewers has never been proved to exert any injurious effect whatever on health. A connection between plumbing and health has been shown to exist at just one point. Plumbing is of value to public health only so far as it removes human excreta from the immediate neighborhood of dwellings and so does away with the danger of fly-borne typhoid and other infection which arises from allowing infectious material to accumulate in family privy-vaults. Disease germs are not found in sewer air; indeed, it is difficult on physical grounds to see how they could get there. The ‘noxious gases and vapors,’ so dear to the plumber’s imagination, are conspicuous by their absence in all perfectly constructed sewer systems, as every visitor to the great sewers of Paris and other modern cities well knows. ‘Defective plumbing’ has about as much relation to public health as any other mechanical defect in house construction.
“On the financial aspects of modern city plumbing ordinances we prefer not to dwell at this time. It is a well-recognized fact that these ordinances are drawn with no uniformity in our American cities and that what is required in one city may be prohibited in another. High authorities maintain that the system of modern house plumbing which is made legally obligatory on housebuilders in many places entails a large, needless and altogether unjustifiable expense. Conceivably it' is to the financial interest of plumbing supply houses — or somebody — to have the required system of plumbing as elaborate and as expensive as possible.
“One feature of this situation deserves attention. It is plain that the most serious obstacle to the universal replacement in sewered towns of the dangerous privy-vault by the water-carriage system is the high cost of the plumbing. In this respect every unnecessary refinement and elaboration in plumbing outfits and legal requirements is a harm, not a help, to public health. The greatest possible simplicity and cheapness compatible with efficiency is what is needed in really ‘sanitary’ plumbing, not a labyrinth of traps, vents and back vents. If the plumbing interests really wish to aid in hygienic welfare of the community they can best do this, not by insisting on still more complicated devices and ‘inspections,’ but by simplifying and cheapening the cost of installing and maintaining the pipes and fixtures essential for carrying off the house wastes in a speedy and inoffensive manner. Finally let us ask this question: To what extent do the plumbing ordinances in our American cities represent the .prevailing opinion of public health experts and trained health officials, and to what extent do they represent the efforts of commercially interested individuals or organizations to entrench themselves behind the active if not always well-informed desire of the people to safeguard the public health?” (Vol. 63, pt. 2, p. 784.)
It is just possible that the foregoing views are those of a bacteriologist who is biased somewhat by his specialty and that defective plumbing may produce effects deleterious to health beyond those described. However this may be, we have here a subject open to debate which has been duly considered by the legislature and by the city commissioners, and this court can not declare as a matter of fact that the statute has no direct or substantial relation to the public health and welfare. This being true, the statute is valid. The ordinance obeys the mandate of the statute and so far as the court can see does no more than carry out the intention of the legislature. This being true, the court can not, under well understood rules of law, set aside the ordinance.
The judgment of the district court is affirmed.
Dawson, J., dissenting. | [
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Per Curiam:
The first point of error assigned is that the court below erred in admitting in evidence certain bottles of whisky and beer seized from the possession of appellants by an officer without a warrant. There was no error in this. The question was decided against appellants in The State v. Miller, 63 Kan. 62, 64 Pac. 1033.
It is next contended that a new trial should have been granted because some members of the jury smelled of the liquor. The record nowhere shows this, except in the testimony of a witness introduced in support of a motion for a new trial. If the jury smelled the contents of the bottles on the trial the appellants should have objected to it, for, if done, it was in their presence. When the bottles and labels were introduced in evidence the county attorney stated: “I will say, gentlemen, don’t any of you taste it, because it is n’t proper.” The liquor seems to have been introduced for the purpose of showing the labels on the bottles.
We find no prejudicial error in the case. The judgment is affirmed. | [
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-114,
-106
] |
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